The Queen v Goyen - [2006] NZCA 72

IN THE COURT OF APPEAL OF NEW ZEALAND
CA285/05
THE QUEEN
v
BRUCE WAYNE GOYEN
Hearing:6 April 2006

Court:O'Regan, John Hansen and Harrison JJ
Counsel:C J Tennet for Appellant

E M Thomas for Crown

Judgment:1 May 2006

JUDGMENT OF THE COURT

A         The appeal against conviction is dismissed.
B         The appeal against sentence is dismissed.
REASONS
(Given by John Hansen J)
[1]        On 23 June 2005, following a trial before Judge Adeane and a jury in the Napier District Court, the appellant was found guilty on a charge of causing grievous bodily harm with intent to cause grievous bodily harm. On 18 July 2005 he was sentenced to six years imprisonment.
[2]        He appeals against both conviction and sentence.
Grounds of appeal
[3]        Seven grounds of appeal are contained in the points of appeal filed by counsel, but ground two was abandoned before hearing.
[4]        The remaining grounds are:
a)The verdicts of the jury were unreasonable or contrary to the weight of evidence.
b)There was a miscarriage of justice in that the Crown altered its position between opening and closing.
c)The evidence of an expert witness called by the Crown, Dr Skipworth, should not have been admitted.
d)The evidence of a psychologist, Mr Soeterik, was admissible and should have been admitted. The failure to admit that evidence amounted to a miscarriage of justice.
e)There were misdirections by the learned trial Judge as to:
i)self-defence;
ii)failure to adequately put the defence case;
iii)failure to tell the jury of the change of direction of the Crown case and adequately direct on that issue;
iv)in dealing with the severity of the injuries the Judge directed it was something that could be taken into account in determining intent; and
v)failure to direct adequately in relation to inferences and a wrong use of an example.

[5]        Initially Mr Tennet submitted there was a miscarriage of justice because the Crown were aware that three witnesses were hostile but nonetheless called those witnesses. However, in argument he did not pursue it independently of the point set out at [4](e)(ii).
[6]        The appeal against sentence is based on the ground that it was manifestly excessive.
Background facts
[7]        In the early hours of 18 April 2004 the appellant was in his car which was parked on the forecourt of a Napier service station. Apparently he had gone to the service station in an attempt to obtain directions to a motel. It was common ground that earlier that night he had consumed an unspecified amount of methamphetamine.
[8]        At this time a number of pedestrians walked across the forecourt. The complainant, Mr Viliamu, apparently slapped at the front panel of the appellant’s car. The appellant’s response was to start the vehicle and accelerate it violently into Mr Viliamu as he walked in front of the car.
[9]        As a consequence Mr Viliamu was flung up onto the bonnet of the car, denting it and breaking the windshield. The car continued on, and Mr Viliamu was flung from the bonnet…

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 Goyen

Details

AGLC: The Queen v Goyen [2006] NZCA 72
Case: [2006] NZCA 72
Decision Date: 1 May 2006

CaseChat Overview and Summary

The Queen brought an appeal against the conviction and sentence of Bruce Wayne Goyen. The appeal against conviction was dismissed. The appeal against sentence was also dismissed. The appellant had been found guilty of causing grievous bodily harm with intent to cause grievous bodily harm and was sentenced to six years imprisonment. The appellant appealed against both the conviction and the sentence. Seven grounds of appeal were put forward, however, one was abandoned and the remaining six were considered. The first ground was that the verdicts of the jury were unreasonable or contrary to the weight of evidence. The second ground was that there was a miscarriage of justice in that the Crown altered its position between opening and closing. The third ground was that the evidence of an expert witness called by the Crown, Dr Skipworth, should not have been admitted. The fourth ground was that the evidence of a psychologist, Mr Soeterik, was admissible and should have been admitted and that the failure to admit that evidence amounted to a miscarriage of justice. The fifth ground was that there were misdirections by the learned trial Judge in relation to self-defence, failure to adequately put the defence case, failure to tell the jury of the change of direction of the Crown case and adequately direct on that issue, dealing with the severity of the injuries, and failure to direct adequately in relation to inferences and a wrong use of an example. The final ground was that the sentence was manifestly excessive. The appeal against conviction was dismissed because none of the grounds of appeal had any substance or merit. The appeal against sentence was also dismissed because the aggravating features were present and the sentence imposed was clearly within the range available to the sentencing Judge.

Orders