The Queen v Butler - [2007] NZCA 127

IN THE COURT OF APPEAL OF NEW ZEALAND
CA284/06
[2007] NZCA 127
THE QUEEN
v
PHILLIP JAMES BUTLER
Hearing:13 March 2007

Court:Wilson, Baragwanath and Venning JJ
Counsel:S J Lance for Appellant

K Raftery for Crown

Judgment:16 April 2007 at 12.30 pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       Following trial in the High Court at Auckland the appellant was found guilty of wounding with intent to cause grievous bodily harm and sentenced to five years’ imprisonment. He appeals against conviction and sentence.
Background
[2]       The appellant, together with Eddie Wayne Harris and Joanne Paul, was charged with attempting to murder Mark Scott and, in the alternative, with wounding Mark Scott with intent to cause him grievous bodily harm.
[3]       Ms Paul is the appellant’s partner. She is also Mr Harris’ sister. Mr Scott is known to the appellant. On 9 February they were all at Ms Paul’s home. During the course of the evening there was an altercation between Mr Scott and the appellant. The others joined in.
[4]       As a result of the assault Mr Scott suffered a collapsed left lung, and head and facial injuries. He was hospitalised for four days.
[5]       The trial began on the morning of Tuesday 21 March 2006. Heath J did not sit on Thursday and Friday 23 and 24 March. A jury member was ill on Monday 27 March. The Judge summed up to the jury and the jury went out to deliberate at 11.00 a.m. on Thursday 30 March. The jury deliberated until 9.30 p.m. on 30 March, when they went to a hotel. Their deliberations continued in to the evening on Friday 31 March.
[6]       At 10.22 p.m. on Friday 31 March the jury returned to the Court with verdicts, having earlier advised (at 9.55 p.m.) that they had decisions on five counts but were hung/unresolved on one count.
[7]       Before taking the verdicts the Judge polled each juror. Each juror confirmed the agreement on the verdicts had been freely reached.
[8]       The appellant was found not guilty of attempted murder but guilty of the alternative count of wounding with intent to cause grievous bodily harm. Ms Paul was found not guilty on both counts. Mr Harris was found not guilty of attempted murder but the jury were unable to agree whether he was guilty of wounding with intent.
[9]       Earlier in the evening, at 8.30 p.m. the jury had advised they were hung/had no result on one charge. The Judge then clarified with the jury at 8.45 p.m. that they had unanimous verdicts in relation to one accused. In light of that and the length of time they had been deliberating the Judge invited them to consider whether by going out overnight and coming back fresh in the morning they would be likely to give unanimous verdicts on the remaining two or at least one of the accused. He also asked them to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Butler

Details

AGLC: The Queen v Butler [2007] NZCA 127
Case: [2007] NZCA 127
Decision Date: 16 April 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant Phillip James Butler appealed against both his conviction and sentence. Butler was found guilty of wounding with intent to cause grievous bodily harm and was sentenced to five years’ imprisonment. The legal issues in this case were whether there were errors and irregularities in the trial that led to a miscarriage of justice, and if the sentence was manifestly excessive. The Court found that the trial judge exercised his discretion appropriately and that the verdicts were consistent with the evidence presented. The Court also found that the sentence was within the range open to the sentencing judge, and therefore the appeals against conviction and sentence were dismissed.

Orders