Checketts v R [2012] NZCA 433 (24 September 2012)

Last Updated: 8 October 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA379/2012 [2012] NZCA 433

BETWEEN DAVID MILNE CHECKETTS Appellant

AND THE QUEEN Respondent

Hearing: 18 September 2012

Court: White, Ronald Young and Simon France JJ

Counsel: B P Kilkelly and J K Fraser for Appellant F E Cleary for Respondent

Judgment: 24 September 2012 at 4.00 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by White J)

[1] This is an appeal against conviction and sentence for wounding with intent to cause grievous bodily harm. Mr Checketts was convicted following a District Court jury trial in which he was also acquitted on a charge of male assaults female. Mr Checketts was sentenced by Judge Phillips, who had presided over his trial, to three years’ imprisonment and ordered to pay $20,000 in emotional harm reparation to the complainant.[1]
[2] On appeal Mr Checketts does not dispute that the events giving rise to the charge of wounding with intent to cause grievous bodily harm occurred. He accepts that while intoxicated and following an argument with his flatmate there was a struggle between them during which he bit two of her fingers. As a result the tips of the fingers had to be amputated and she now has difficulty controlling and gripping things with her fingers.
[3] The conviction appeal is on the ground that the jury’s guilty verdict was unreasonable or cannot be supported having regard to the evidence.[2] Mr Kilkelly accepted that to succeed on this ground it was necessary to persuade the Court that, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that Mr Checketts was guilty.[3]
[4] In support of the appeal on this ground, Mr Kilkelly referred to inconsistencies in the evidence given at trial by the complainant and Mr Checketts relating to the place in his house where the incident occurred and the nature of the biting that led to the injuries to the complainant’s fingers. Mr Kilkelly also referred to forensic scene examination evidence from the police supporting Mr Checketts’ evidence as to the place where the incident occurred.
[5] Mr Kilkelly accepted, however, that it was open to the jury to make the findings on the facts that they did in respect of the two charges faced by Mr Checketts. In particular, Mr Kilkelly accepted that it was for the jury to assess the credibility of the complainant and Mr Checketts and that there was sufficient evidence before the jury on which they could find him guilty on the charge of wounding with intent to cause grievous bodily harm. The fact that the incident occurred was important, not where in the house it occurred.
[6] Mr Kilkelly also accepted that Mr Checketts’ defence of self-defence had been properly put to the jury at his trial and that it was open to the jury to reject the defence on the evidence either because they were sure that he was not acting in self-defence when he bit the complainant’s fingers or because the force he used in biting her fingers was an unreasonable and disproportionate response to any threat he believed she posed to him. These issues were appropriately addressed in the closing addresses at the trial, the Judge’s summing up, and the questions for the jury.
[7] Mr Kilkelly acknowledged that there had been no application at the conclusion of the Crown case for a discharge under s 347 of the Crimes Act 1961 on the ground that there was no case to answer.
[8] Mr Kilkelly did not pursue a separate submission that the jury’s acquittal verdict on the male assaults female charge was inconsistent with the guilty verdict on the wounding with intent charge. No evidential analysis to establish any such inconsistency was provided. Given this, we are content to observe that there were reasonable bases on which the jury might differentiate.
[9] In these circumstances we are not persuaded that, having regard to all of the evidence, the jury could not reasonably have been satisfied beyond reasonable doubt that Mr Checketts was guilty on the charge of wounding with intent to cause grievous bodily harm.
[10] The appeal against conviction is therefore dismissed.
[11] Mr Checketts appealed against his sentence on the ground that the order to pay emotional harm reparation of $20,000 to the complainant was manifestly excessive. He did not wish to appeal against his sentence of three years’ imprisonment which had been determined after a discount of 18 months (30 per cent) had been given for the reparation payment.[4]
[12] In the course of the hearing of the appeal, Mr Kilkelly accepted, however, that, if the appeal on this ground were successful and the sentence quashed, it would be appropriate for this Court to remit the case to the District Court for re-sentencing and that, following a reduction in the amount of reparation, the generous discount that Mr Checketts had been given for his term of imprisonment would inevitably be reduced thereby resulting in an increase in his term of imprisonment.
[13] In these circumstances the appeal against sentence was abandoned.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Checketts DC Invercargill CRI-2011-025-2765, 31 May 2012.
[2] Crimes Act 1961, s 385(1)(a).
[3] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
[4] R v Checketts, above n 1, at [16].