SILVIA CARTWRIGHT, Governor-General
ORDER IN COUNCIL
At Wellington this 7th day of October 2002
Present:
RIGHT HONOURABLE HELEN CLARK PRESIDING IN COUNCIL
Her Excellency the Governor-General, acting under section 406 (a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, refers the question of the conviction of Michael Thomas Palmer for the offence
of assault with intent to injure to the Court of Appeal for reconsideration. The background to, and the reason for, the reference appear in the Schedule.
Schedule
1. Interpretation-In this Schedule:
"the applicant" means Michael Thomas Palmer.
Background
2. Conviction, sentence and appeal-(1) On 12 October 2000, the applicant was convicted in the District Court at Whangarei on one count of assault with intent to injure, contrary to section 193 of the Crimes Act 1961.
(2) On 7 November 2000, the applicant was sentenced by the District Court at Whangarei to six months' imprisonment, suspended for nine months, and five months' periodic detention.
(3) The applicant's appeal against conviction was dismissed by the Court of Appeal on 30 March 2001. The sole ground of the appeal was that errors by his trial counsel cumulatively rendered the conviction unsafe and unsatisfactory, occasioning a miscarriage of justice.
3. The circumstances surrounding the applicant's conviction-(1) The applicant was the father of two of
the complainant's children and on 27 March 2000 was staying with the complainant on a weekend visit. Both the complainant and the applicant had been drinking heavily. An incident occurred in the early hours of the morning of
27 March 2000 between the applicant and the complainant in which the complainant was injured.
(2) The complainant claimed that the applicant attacked her. She gave evidence that she had been sitting in a chair in the lounge of her home when the applicant entered the room
and punched and kicked her several times. Her daughter then entered the room, intervened and the applicant ceased his attack.
(3) Ms Gestro, the daughter, testified that she had been for a short walk outside the house and had observed the assault through the lounge window on her return. She had first observed her mother in a chair and the applicant leaning down to her. Ms Gestro initially thought that her mother had fallen over due to the amount of alcohol she had consumed and that the applicant was helping her up. However, she then saw the applicant punch her mother several times and kick her. She ran around to the back door of the house
and entered the lounge. As she entered the lounge she observed that the applicant had her mother in his left hand and was about to punch her with his right. Ms Gestro yelled at the applicant and he stood back.
(4) Ms Gestro also gave evidence that, after the incident, her mother had blood coming out of her mouth, her right temple was slightly swollen and, later on, a bruise appeared below the right eye on the side of her head.
(5) The attending police officer gave evidence that, when questioned shortly after the incident, the applicant said
that the complainant had attacked him, that he hit the complainant once in the head with an open hand, and that
he saw blood coming from her mouth and assumed it was because of the blow. The applicant claimed to have acted throughout the incident in self?defence. The police officer testified that he saw redness to the side of the complainant's face and redness to the knuckles of the applicant.
(6) The applicant gave evidence that the complainant had attacked him, that he pushed her into a chair and that every time she tried to get out of it he pushed her down to prevent her harming either of them. The complainant's daughter then entered the room and told him to leave her mother alone. This calmed the complainant, who stopped trying to get out of the chair and attack the applicant. The applicant denied ever punching or kicking the complainant.
4. Applicant's application for exercise of mercy of the Crown-(1) The applicant's application for the exercise of the mercy of the Crown in respect of his conviction for assault with intent to injure was made on 23 October 2001.
(2) The ground of the application is the discovery of a new witness, Mr Reginald Tripp, who claims to have observed the movements of Ms Gestro outside the house at the time
in question. Mr Tripp claims that Ms Gestro first became aware of the altercation while standing outside his own property, at a point where she could not have seen inside
the lounge. According to him, Ms Gestro then ran into the house through the front door, not the back door, without passing in front of the lounge window. Mr Tripp's evidence, if accepted, would discredit Ms Gestro's claim to have witnessed the incident.
5. Documents-(1) The following documentary material was considered in determining the application:
(a) The petition and the accompanying material filed in its support;
(b) police job sheets relating to the incident;
(c) affidavit of Reginald William Tripp dated
18 December 2001;
(d) affidavit of Matthew Bruce Palmer dated
20 December 2001;
(e) letters dated 11 and 25 February 2002 from
R. S. Garbett, defence counsel at trial;
(f) letter dated 11 March 2002 from P. J. Magee,
the prosecutor at trial;
(g) letters dated 13 January 2002 and 25 February
2002 from Senior Sergeant Stokes, New Zealand Police; and
(h) the report of an independent barrister and solicitor, Mr G. Winter, dated 15 July 2002, concerning
his interview of Mr Tripp.
Reason
6. Reason-The reason for the reference is that the documents described in clause 5 indicate that fresh evidence is available that is of sufficient weight and cogency to justify re?opening the applicant's case by means of a referral to the Court of Appeal.
MARIE SHROFF, Clerk of the Executive Council.