The Queen v MacDonald - [2008] NZCA 315

IN THE COURT OF APPEAL OF NEW ZEALAND
CA185/2008
[2008] NZCA 315
THE QUEEN
v
KANE LEX MACDONALD
Hearing:29 July 2008

Court:Ellen France, Gendall and Miller JJ
Counsel:J A Young for Appellant

S J Mount for Crown

Judgment:21 August 2008 at 11.30 am

JUDGMENT OF THE COURT

Appeal against convictions and sentence dismissed.

REASONS OF THE COURT
(Given by Gendall J)
Table of Contents
PARA NO.
Introduction  [1]
Background   [3]
“Fresh” evidence  [15]
New evidence  [37]
Is the evidence fresh?  [41]
         The evidence of Mr Gunson in relation to what he says he was told
                  by Mr Danny Mullins  [41]
         The evidence of Mr Gunson in relation to who were the aggressors             [43]
The evidence of Mr and Mrs Karam – is it “fresh”?[46]
         Evidence of Mr Karam[53]
         Evidence of Mrs Tania Karam  [55]
Is the evidence credible and cogent?[61]
The trial Judge interventions  [84]
The summing up  [86]
Unfair or unreasonable process  [93]
Appeal against sentence  [98]
Introduction
[1]       The appellant was found guilty on two counts, namely wounding with intent to injure, and wounding with intent to cause grievous bodily harm after a jury trial in the District Court at Whangarei. He was sentenced to an effective term of four years’ imprisonment: DC WHA CRI-2006-092-000832 3 April 2008. He appeals against his convictions on the basis of fresh evidence (which he seeks leave to adduce); that the Judge intervened excessively during the trial and erred in one factual reference in his summing up; and that the appellant was subjected to an unfair and unreasonable trial process.
[2]       Counsel for the appellant accepted that, if one or both convictions were not quashed, she could not advance any argument on the appeal against sentence.
Background
[3]       The convictions arise out of events that occurred on New Year’s Eve 2005 at a campground at Waipu Cove, Northland. At about 11.30 pm groups of teenagers, largely described as “campers” and “locals”, were engaged in disturbances. Not surprisingly, many had been consuming alcohol. There had been some ill feeling between some members of the different factions earlier in the week. Two brothers named Marc Fata and Ben Fata, who were “locals” were with a group in the campground on New Year’s Eve. A confrontation occurred with a group of teenagers amongst whom was the appellant, Kane MacDonald.
[4]       The Crown’s case was that the appellant was holding a drinking glass, or beer “handle”, and he struck Marc Fata twice to the head and face with it. Medical evidence and photographs confirmed injuries to his face and mouth.
[5]       Marc Fata’s evidence, supported by other bystanders who gave evidence, was that the appellant “bottled” him with the weapon being a glass item with a handle on its top. Some described it as a “bottle”, others a ‘glass”. When the broken pieces were recovered and reconstructed, it was a clear glass with a “Jim Beam” label, and handle attached. The appellant when later interviewed by the police denied striking Marc Fata with…

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 MacDonald

Details

AGLC: The Queen v MacDonald [2008] NZCA 315
Case: [2008] NZCA 315
Decision Date: 21 August 2008

CaseChat Overview and Summary

The appellant, Kane MacDonald, was convicted on two counts of wounding with intent to injure and wounding with intent to cause grievous bodily harm, following a jury trial in the District Court at Whangarei. MacDonald appealed his convictions on several grounds, including the admission of fresh evidence, excessive judicial interventions, errors in the summing up, and an unfair trial process. The appeal against sentence was dismissed if the convictions were not quashed. The evidence presented at trial established that MacDonald struck Marc Fata twice to the head and face with a glass, causing injuries. Additionally, MacDonald struck Ben Fata with a broken glass, severely lacerating his neck. The fresh evidence presented by MacDonald's counsel included the testimony of Mr Gunson, the camp manager, who claimed that on 26 December 2005, there was a disturbance at the campground involving 10 young people, and that the following day, he was told by various people of the reason for the altercation. The proposed evidence of Mrs Tania Karam suggested that she saw a teenager named Mark Melville, running in the campground with blood on his T-shirt and disposing of that shirt in a washing receptacle. The court found that the proposed evidence of Mr Gunson and Mrs Karam did not qualify as fresh, nor was it credible and cogent. The court also found that the trial judge's interventions and summing up were not excessive or prejudicial, and the trial process was not unfair. Therefore, the appeal against convictions and sentence was dismissed.

Orders