The Queen v Dutton - [2008] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 426/07
[2008] NZCA 137
THE QUEEN
v
JOHN PHILLIP DUTTON
Hearing:20 May 2008

Court:Robertson, Wild and Cooper JJ
Counsel:P F Gorringe for Appellant

A Markham for Crown

Judgment:27 May 2008 at 11.30 am

JUDGMENT OF THE COURT

AAn extension of time for appealing is granted.
BThe conviction of aggravated assault and sentence of 12 months’ imprisonment on Count 4 in the indictment are set aside. A conviction for common assault, and a sentence of six months imprisonment (to be served concurrently with the other sentences imposed in the High Court) are substituted.
CThe appeal is otherwise dismissed.

REASONS OF THE COURT
(Given by Cooper J)
Introduction
[1]       The appellant was tried before Miller J and a jury on an indictment containing four counts.
[2]       The first alleged that he had attempted to murder one Raewyn June Corlett. The second was an alternative and alleged that he had injured Ms Corlett with intent to cause grievous bodily harm. The third alleged that he had entered Ms Corlett’s house without authority and with intent to commit a crime carrying weapons (a rope and three knives). Finally, he was charged with assaulting one Janet King with intent to avoid his detection in the commission of the crime of attempted murder.
[3]       The appellant was acquitted on the first count but found guilty on the second and third. On the fourth count Miller J instructed the jury that if the Crown failed to prove assault with intent to avoid detection in commission of the crime of attempted murder, then the jury was able to find the appellant guilty of an included charge, namely assault. However, the jury convicted him of aggravated assault.
[4]       The appeal is advanced in respect of the three convictions on the basis that trial counsel conducted the defence contrary to instructions, resulting in a miscarriage of justice, namely prejudice to the appellant’s chance of acquittals.
[5]       The appeal was filed out of time, due to a misunderstanding by the appellant as to the time within which it was required to be filed. However, the Crown has not opposed the Court dealing with it on the merits.
Background
[6]       The principal complainant, Ms Corlett, was the appellant’s neighbour. She had helped him in various ways over the ten years that they had been neighbours, assisting him to get medical attention and making contact with family members when she thought that he was unwell. The appellant suffers from agoraphobia, chronic anxiety and depression. He is on an invalid’s benefit and has been unable to work since 1977.
[7]       It was the Crown’s case that the appellant had come to Ms Corlett’s house on an occasion when she was looking after her young nephews. He had been drunk and she had asked him to leave. Ms Corlett maintained that he had responded by smashing some fence palings on her property. When he came over the next day in order to apologise, she told…

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 Dutton

Details

AGLC: The Queen v Dutton [2008] NZCA 137
Case: [2008] NZCA 137
Decision Date: 17 May 2008

CaseChat Overview and Summary

The case of The Queen v Dutton involved an appeal against the appellant's convictions and sentences. The appellant was convicted on three counts: injuring with intent to cause grievous bodily harm, entering a house without authority with intent to commit a crime, and aggravated assault. The appeal was primarily based on the assertion that trial counsel conducted the defence contrary to instructions, leading to a miscarriage of justice. The appellant argued that he had instructed counsel to fully challenge the prosecution's evidence but the defence presented at trial did not reflect these instructions.

The Court of Appeal considered the evidence from the appellant, the trial counsel, and the junior counsel. The appellant claimed that he had instructed counsel to challenge the prosecution's evidence but counsel instead presented a defence focusing on the appellant's mental state and lack of intent. Counsel, however, provided evidence that the defence strategy had been fully discussed with and approved by the appellant. The Court found counsel's evidence to be credible and preferred it over the appellant's version of events.

The Court concluded that counsel had acted in accordance with the appellant's instructions and that the defence strategy was sound. As such, the appeal was dismissed except in respect of the conviction for aggravated assault on count 4. The Court quashed the conviction for aggravated assault and substituted it with a conviction for common assault, reducing the sentence to six months' imprisonment to be served concurrently with the other sentences. An extension of time for appealing was granted.

Orders