The Crown solicitor David Collins QC has conceded there was a miscarriage of justice in the trial of a Christchurch musician who was convicted of assaulting his four-year-old son. This is because the trial judge had not directed the jury to reach a unanimous verdict on both elements of the alleged offence – the ‘ear-flick’ (which Mason admits did occur) and the ‘punch’ (which he has adamantly and consistently denied).
James Louis Mason was found guilty at a Christchurch District Court trial last year of punching his son in the face and pulling his ear in December 2007…..
[Mason appealed to the Supreme Court, where he was represented yesterday by Wellington barrister Greg King].
During the [Christchurch District Court] trial, Mason denied punching his son but said he did grab his hair and flick his ear. He said he should have been charged with two separate offences, not one for both the alleged punch and the ear pulling.
The jury was told that only one element was required for a guilty verdict. The Court of Appeal upheld the conviction
Mason appealed to the Supreme Court, where he was represented today by Wellington barrister Greg King.
Crown solicitor David Collins QC conceded today there had been a miscarriage of justice because the trial judge had not directed the jury to reach a unanimous verdict on both elements of the offence.
The major problem with the trial had been the failure to tell the jury that they had to be unanimous on which part of the charge they found proved, if any, Collins said.
Mason’s lawyer, Greg King, said Mason’s trial lawyer had agreed to the allegations being combined, without consulting Mason, because it avoided the risk of convictions for two assaults instead of one but that benefit was lost in sentencing when the judge sentenced on the basis of the worst possible view of the jury’s verdict.
There should have been separate charges, Mr King said.
Mason might have ended up being convicted of both charges but at least he would have known what he was found guilty of having done.
Mason was sentenced to nine months’ supervision, with a condition to take treatment or counselling as directed, including for anger management. Mason has completed the sentence.
The court reserved its decision.
Report On James Louis Mason v The Queen CA 481/2009
By SPCS | Published: March 23, 2010 (SPCS observer in court who spoke with both James Mason and his wife about the proceedings on the day)
In Wellington before Court of Appeal Judges: Hon. Justice William Young (President), Hon. J. Grant Hammond and Hon. J. David Baragwanath. Tuesday 23 March 2010.
In the second case heard in Courtroom 2 before the Court of Appeal on Tuesday morning 23 March 2010, James Louis Mason, 51, Christchurch musician and father of six, defended himself against his 2009 conviction of assault against his 4-year-old son……….