The Queen v Carnachan - [2009] NZCA 196

IN THE COURT OF APPEAL OF NEW ZEALAND
CA606/2008
[2009] NZCA 196
THE QUEEN
v
LOUIS CARNACHAN
Hearing:4 May 2009

Court:Glazebrook, Potter and Venning JJ
Counsel:M W Ryan for Appellant

M A Woolford for Crown

Judgment:21 May 2009 at 3.00 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No

Introduction  [1]
Background  [3]
Should the jury have entertained a reasonable doubt?  [9]
The parties’ submissions  [9]
Cause of injuries  [11]
Way the victim fell  [15]
State of consciousness  [19]
Overall assessment  [24]
Should evidence of the co-offenders’ convictions have been
heard by the jury?  [29]
Should the Crown have called a witness known to be hostile?              [33]
The parties’ submissions  [33]
Assessment  [36]
Result  [40]
Introduction
[1]       Mr Carnachan was found guilty, after a trial before Judge Barbara Morris and a jury, on one count of causing grievous bodily harm to Mr Tagoai (under s 188(1) of the Crimes Act 1961).
[2]       Mr Carnachan appeals his conviction on three grounds:
(a)       The jury ought to have entertained a reasonable doubt as to his guilt;
(b)The Judge erred in law in preventing the defence from adducing evidence of the co-offenders’ convictions;
(c)The Judge erred in law in allowing the Crown to call a witness whom the Crown knew was hostile.

Background
[3]       On 19 June 2005, the victim, Mr Tagoai, and three of his friends went to Grey Lynn to attend a party. When they arrived, they found a large group of youths congregated both inside and outside the venue, including Mr Carnachan, Mr Fameitau and Mr Fine. As the victim and his friends walked down the entranceway towards the venue from the street, they were approached by Mr Fine. Mr Fine asked the victim if he was from De La Salle College and the victim replied that he was. Mr Fine then challenged the victim to a fight. They made their way back towards the street, after the victim clarified that it would be a “one on one” fight. Once on the street, a large group of youths surrounded them and the victim and Mr Fine exchanged punches in a “boxing” stance.
[4]       During the course of this fight Mr Carnachan, who was watching from a nearby premise, armed himself with a metre long piece of heavy timber and approached the victim from behind. Mr Carnachan lifted this piece of timber above his head and struck the victim with it, connecting on the back of his head. The action caused the victim to fall down onto the road. A general fight involving a number of the onlookers appears to have ensued.
[5]       During this meleé, and while the victim was lying on the road, Mr Fine bent down, took hold of the victim’s head with one hand and, using his other hand, punched the victim numerous times on his face with a closed fist before letting the victim’s head drop to the ground. Mr Fine then…

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 Carnachan

Details

AGLC: The Queen v Carnachan [2009] NZCA 196
Case: [2009] NZCA 196
Decision Date: 21 May 2009

CaseChat Overview and Summary

The Queen appealed against the decision of the High Court at Auckland [2008] NZHC 2799, which quashed the conviction of Louis Carnachan for causing grievous bodily harm to Mr Tagoai. The Court of Appeal had to decide whether the jury should have entertained a reasonable doubt as to the appellant’s guilt, whether evidence of the co-offenders’ convictions should have been heard by the jury, and whether the Crown should have called a witness known to be hostile. The Court found that it was open to the jury to convict the appellant, the evidence of the co-offenders’ convictions added nothing to the narrative and the rationale for the rule in R v O’Brien [2001] 2 NZLR 145 had been abrogated by the Evidence Act 2006. The appeal was dismissed.

Orders