Albert v The King
[2025] NZCA 554
•23 October 2025 at 11:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA287/2025 |
| BETWEEN | ERNEST HARLEM ALBERT |
| AND | THE KING |
| Hearing: | 9 October 2025 |
Court: | Whata, Venning and Osborne JJ |
Counsel: | C S Taylor for Appellant |
Judgment: | 23 October 2025 at 11:00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
Mr Albert was convicted of two charges of wounding with intent to cause grievous bodily harm. He was sentenced to nine years and five months’ imprisonment.[1] Mr Albert appeals his convictions.
Facts
[1]R v Albert [2025] NZDC 9071.
The undisputed facts of the offending can be stated briefly. Mr Albert travelled with C to C’s address. A 76-year-old neighbour, B, dropped in. Sometime later, B went outside to a car while C went down the hallway. Mr Albert grabbed a kitchen knife and stabbed C multiple times. He then went outside. B was, by then, in the car. Mr Albert reached in through the passenger door and grabbed B. B resisted. Mr Albert stabbed him in the chest and took the car. Sometime later Mr Albert drove to the police station.
The trial
The Crown case
The Crown case was simple. C saw Mr Albert in Kawakawa after a tangi. He offered to give Mr Albert a lift and they decided to go to C’s home. They had a few beers. B arrived. They both noticed Mr Albert doing what C described as “sign language”. Mr Albert wanted to smoke some meth. C said he could not do so in his house. They agreed to drop Mr Albert at a nearby house to enable him to smoke his pipe. B went out to the car, C down the hall to get a crate. Unprovoked, Mr Albert stabbed C in the back multiple times. C then escaped. Mr Albert went to the car where B was waiting and stabbed him. Mr Albert then took the car.
The defence case
Mr Albert initially defended both charges based on self-defence. His counsel opened to the jury claiming that Mr Albert stabbed the victims to get away from harm, that he barely knew them, that he had been taken to an isolated rural location and that they had threatened him. Just prior to closing however, the trial Judge withdrew self‑defence from consideration by the jury in relation to the stabbing of B. No formal decision was given, but there is a reference to this in the sentencing remarks. The Judge observed that there was no credible narrative to support a finding that Mr Albert was acting in self-defence.[2] As a result, Mr Albert pleaded guilty to the charge relating to B (the B charge).
[2]At [12].
Mr Albert maintained self-defence to the charge relating to C on the basis that Mr Albert genuinely believed his life was under threat. On Mr Albert’s case:
(a)He got into C’s car after the tangi thinking that C would take him home.
(b)He did not know C well, and C’s house was described by defence counsel as something “from a horror film”. This did not feel right to Mr Albert and he started to feel uncomfortable. He stayed in the car and only went in after C became relentless with his demands to get him inside the property.
(c)Mr Albert went to the toilet outside and was followed by C. C then told him: “Fuck. Bro, haven’t you, um, figured it out yet? You ain’t going anywhere” and said “[t]he last cunt that tried to leave early, we used him for target practice”.
(d)B turned up but did not shake Mr Albert’s hand, saying it was “too late for handshakes”. C then said to Mr Albert:
Do you know what a pothole is? … Yeah, that’s what you are? There are some potholes you can run over once or twice and then there’s those ones like you that, um, need to be filled up, like, um, oh filled up with concrete like today.
(e)Mr Albert tried to leave, pushing up against C, and C told B that it “looks like change of plans. Looks like you[’re] driving, and I’ll do the rest”. B then went out to the car.
(f)There was a tussle with C, Mr Albert grabbed a knife and stabbed C to the front of his body. C then turned to block his exit. Mr Albert kept stabbing C three or four times in the back because he felt threatened and wanted to leave.
(g)Mr Albert got outside and thought that C was going to get a weapon. He saw B in the car. He grabbed B to pull him out of the car, but could not break B’s grip on the steering wheel. He was still worried that C might come up behind him with a gun, so he stabbed B once in the chest so he could escape in the car. He then pulled B out of the car and drove away.
(h)The background to all of this is that at the time of the offending Mr Albert was trying to leave the Rebels MC gang and he considered this was a factor in why C brought him back to his isolated rural home and the reason why C may have wanted to do him harm.
Summing up
No issue is taken with the Judge’s summing up to the jury save in relation to the way the Judge dealt with the withdrawal of self-defence in relation to the B charge. The Judge said:
[27] Before I do that I should explain, and this was raised in part by Mr Taylor, why there is now only the one charge before you. Part of my role is to be what is, I suppose could be best described as a gatekeeper. I have to ensure that juries only hear evidence which is going to help them, evidence which they are allowed to hear, and there are a whole lot of rules under the Evidence Act [2006] and other bits and pieces of legislation, and part of my job where self-defence is raised is to ensure there is what is called a credible narrative of self-defence before the jury can consider it.
[28] Here I ruled at the end of all of the evidence that there was not a credible narrative in relation to [B] and so, if Mr Albert had not pleaded guilty to that charge, and I was now summing up to you in relation to both counts, I would tell you and direct you that so far as [B] was concerned, you could not consider whether Mr Albert was acting in self-defence because I decided, and this is part of my job, that there was no threat from [B] to Mr Albert at the time he stabbed him, because self-defence is to defend yourself against a threat a person is making to you. So that is a very short explanation, my decisions are much longer than that, and you are entitled, in my view, to hear that.
[29] So, this is why now we only have the one charge. There is what is called a credible narrative which is a very low bar. At the end of the day, it is for you to decide whether firstly, Mr Albert was acting in self-defence when he stabbed [C] or not, not for me.
Rulings
On the first day of trial, Mr Albert sought to cross-examine C on two matters:
(a)A photograph showing C in front of a motorcycle wearing a leather vest decorated with the letters MFFM.[3]
(b)C’s prior conviction for assault in 2014.
[3]Mr Taylor, for Mr Albert, submits ‘MFFM’ may be gang insignia linked to the Mongols MC gang or a group linked to riots that occurred in Moerewa in 1979.
Both items were said to show a propensity to violence and support the self‑defence narrative. The Judge refused to allow evidence of these matters to be led.[4] The Judge said in relation to the photo:
[12] In my view a single black and white photograph taken some time prior to the alleged incidents, that the jury will need to consider, has no probative value at all. I rule it that could not be shown to [C] nor the jury.
[4]R v Albert [2025] NZDC 8176.
In relation to the prior conviction, the Judge described the prior offending as follows:
[13] [C] was convicted with assault with intent to injure in relation to an event on 8 February 2014. [C] and the victim had been attending a 21st birthday party in Moerewa. During the course of the night the victim had a short scuffle with a family member at the party. He ended up walking home.
[14] The following morning, 9 February 2014, [C] became aware of an injury sustained by the family member. He went to confront the victim about the injury. He rode around on his motorcycle in an area where the victim had set up his tent. He did not find the victim as the victim had run off and hid in the bush nearby.
[15] An hour later [C] returned. On that occasion he found the victim. He hit the victim with an iron bar to the victim’s left elbow.
The Judge found:
[22] I consider that the evidence is not propensity evidence. It is inadmissible. A conviction in 2014 and the circumstances of it are vastly different to the circumstances alleged by Mr Albert in this case. In the 2014 case [C] spent some time looking for the person he did assault following an altercation between the victim and a family member. It was provoked somewhat by the victim. There is no suggestion here [C] provoked violence from Mr Albert. This was an unprovoked assault on him. The level of the violence used in respect of 2014 and what is alleged here is vastly different. It does not, in my view, meet the definition of propensity evidence in that it does not show a propensity to act in a particular way or have a particular state of mind. It also carries the obvious risk of illegitimate prejudice to the Crown through blackening of the character of [C] through an event which occurred nine years prior to the alleged offending by Mr Albert.
Threshold for appeal
We must allow the appeal against conviction if Mr Albert has suffered a miscarriage of justice, meaning an error in relation to or affecting the trial that has created a real risk the outcome was affected or resulted in an unfair trial or trial that was a nullity.[5]
Grounds of appeal
[5]Criminal Procedure Act 2011, s 232(2)–(4).
Mr Taylor, for Mr Albert, identifies two main grounds of appeal:
(a)The Judge erred by not permitting cross-examination of C on the circumstances of his prior conviction and the photograph.
(b)The Judge was wrong to withdraw self-defence in relation to the B charge.
Excluded evidence
As to the first ground, Mr Taylor makes the following key points. First, C’s prior conviction for assault with intent to injure was strong evidence showing a propensity to violence and that C uses threats to instil fear into his victims. Relevantly, the facts of the prior offending included persistent attempts to find the victim over an extended period, threatening to kill the victim, and then assaulting the victim with a metal bar, all in retribution for the victim having harmed C’s relative. Second, the photo showed that C may have had a gang connection and this, together with the prior conviction evidence, supported the defence theory that Mr Albert had a genuine belief that C meant to do him serious harm.
Assessment
We see no merit in either point. Propensity evidence must show a tendency to act in a relevant particular way or to have a relevant particular state of mind.[6] As the majority of the Supreme Court in Mahomed v R noted:[7]
[3] The rationale for the admission of propensity evidence rests largely … on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.
[6]Evidence Act 2006, s 40(1)(a).
[7]Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 per Tipping J (emphasis in original).
Here, the conviction relates to a single incident, some nine years prior to Mr Albert’s offending, of threatened and actual retributive physical violence in response to an act of violence against a family member. At best, it is weak evidence only of a tendency to such violence that has no probative value in the present context. We agree with the Judge that none of the key facts of the prior offending are mirrored here. No family members are involved. There are no direct threats of violence to Mr Albert. At most, as noted above, Mr Albert gave evidence that C made threats in obtuse and metaphorical terms, all while telling him, in Mr Albert’s words, to “[s]it down and have another beer”, “[h]ave another joint, or both” and “[j]ust have a fucking [a]nother beer, roll another joint”.
Furthermore, even on Mr Albert’s case, C did not instigate the violence — rather C was stabbed first by Mr Albert in the chest and then when C turned his back to him, multiple times in the back. And there is nothing to suggest that C had reason to be violent towards Mr Albert, other than Mr Albert’s speculation that it was gang related. Conversely, the risk of improper reasoning from the prior conviction is evidently high given Mr Albert’s case on appeal and the proposition that a jury could reasonably infer from such deficient material that C presented a risk of violence to Mr Albert and/or that Mr Albert held a genuine belief that he would be harmed by C.
As to the photograph, we do not reproduce it here for privacy reasons. But it is an innocuous image of C in a vest with insignia that may or may not suggest he was part of a gang. We cannot see how it could have advanced Mr Albert’s case. The jury could only speculate on its significance.
Availability of self-defence
Mr Taylor submits that the Judge fundamentally erred in withdrawing self‑defence and that the Judge’s summing up (see above at [6]) cut across the defence closing address. He says the decision ignored the circumstances as Mr Albert believed them to be; that by the time Mr Albert stabbed B, he believed B to be acting in concert with C’s plans to do him serious harm; and that it was wrong to divorce the threat presented by C from the threat presented by B.
We commence our analysis with some general statements of principle. As this Court said in Fairburn v R:[8]
[32] It is long established law that self-defence involves three elements, namely: whether the force used by the accused was in defence of him or herself; whether in the particular circumstances the accused believed that to be so; and whether the force used was reasonable in the circumstances as the accused believed them to be.
[33] If the issue of self-defence is properly raised by any of the evidence — and the Judge has a responsibility in that respect independent of what the defence might be advancing — it is for the Crown to prove beyond reasonable doubt that the accused was not acting in self-defence. If the Crown does not exclude that as a reasonable possibility, the accused should be acquitted.
[34] It will be observed therefore that there are three questions to consider. First, it is necessary to ascertain what the accused believed the circumstances were at the time: what did she think was happening at that time? What did she think was the nature of the attack or the threat of bodily harm? Secondly, having ascertained that factor, was she acting to defend herself from the harm that was threatening her? Again, that is looked at subjectively. The third step is then to ask whether the force that she used was reasonable, given what she believed was happening at the time.
[35] Sometimes there is a difficulty at trial in that a justification of self‑defence may be raised in circumstances that are little more than fanciful. This raises the issue: when, if at all, should self-defence be withheld from a jury (as the Judge did here)?
[36] The principle which has been established for many years in New Zealand, is that as a general proposition:
self-defence should be put to the jury unless it would be impossible for the jury to entertain a reasonable doubt that the accused had acted in the defence of [herself] or another within the terms of s 48.
[8]Fairburn v R [2010] NZCA 44 (footnotes omitted).
The Court also said that “so long as the belief is honestly held it does not matter that it was unreasonable”.[9]
[9]At [39].
We also accept that self-defence is also available even when the victim is not the aggressor.[10]
[10]See for example Albert v R [2011] NZCA 526.
But, in all cases, there must still be a credible narrative of self-defence at the time of the stabbing. There was none here. The evidence of Mr Albert is informative in this regard. He said:
Q. So you’ve come around to the front of the house?
A. Yeah.
Q. Now, did you have eyes on where [C] was going?
A. Yeah.
Q. And where was he going?
A.He was just running in front of me, like, um, (inaudible 14:06:35) what do you mean? To, before the corner of the house or?
Q.Yes, talk us through it, like (inaudible 14:06:40) like is this, take us there.
A.So he’s running in front of me, I’m running through, we go around the, we hit the corner of the house in the front, turn left, he turns left, I turn left. Um, he runs pretty much in line with the front of the house and then towards the fence, and then shoots back up toward the house.
Q. When you see that, what’s going through your mind?
A. Um, I thought he was going back in to get a weapon or something.
Q. Do you see [B] at any point?
A.Yeah, yep, pretty much at that same point right then, when we’re coming across the front of the house, um, he’s in [C]’s truck facing towards us. And we come, yeah, he’s facing towards us as we’re running towards the left of the front of the house, kinda like right in line with the corner of the house on the other end, the car door kinda lined up with that, facing us.
Q. And when you see [B], what do you do?
A. I run pretty much to the truck.
Q. And why do you go to the truck?
A.‘Cos I sorta seen it as a – [C] had run back towards the house so I was, yeah, I kinda had in my mind that he was going to get a weapon and I needed to get outa there, and I seen the vehicle and…And then I ran, oh well, it was lined up the front of the house but kinda right at the corner, the right-hand side, the door woulda been about there, looked like it was just gonna start backing up towards the tarpaulin, but um, [B] was kinda looking towards the house when we come running around and just there’s kinda where you come past the truck I loop around it, come up to the driver’s door, and just at that time [B] sorta (inaudible 14:09:50) to the other side, like. I dunno if he was –
…
Q.So as you’ve gone around the car, he’s turned his body back towards, looking in front of him? He’s twisted his body back from where, looking over his right shoulder –
A. Yeah, yeah.
Q. – he’s twisted his body back to face in line with the front of the vehicle? Is that fair to say?
A. Yeah.
Q.And so you’ve come round the car and then you’re at the driver’s door now?
A. Yep.
Q. Tell me what you do?
A. I open the door and um, ask him to get out.
Q. What does he say?
A.He didn’t say anything. He um, just locked his arms in the steering wheel and kinda like tried to floor the gas, the truck in reverse, and it stalled. And I opened the door, so –
…
Q. Did you stall the vehicle or did [B] stall the vehicle?
A. He did.
Q.He did. So as it was reversing, so he’s locked his arms under the steering wheel, and is the driver’s door shut at this time?
A. Nah, it’s open.
Q. It’s open.
A. I’ve opened it, yeah.
Q. You’ve opened it?
A. Yeah.
Q. And when does the vehicle come to a stall?
A. I’m kinda there, trying to pull him out at the, and at the same, yeah.
Q. It stalls?
A.Yeah, in that time, and um his arms are locked inside the steering wheel like that, yeah, and I wrapped my arm, ‘cos his right-hand side’s facing me, I sort of try and grab him like around this arm with these two arms, or.
Q. So what hand have you used, sorry?
A. Both of my arms.
Q. Both your arms?
A. Yeah.
Q.And what, and on what part of the body of [B] have you grabbed?
A. On his right-hand arm.
Q. His right hand. Carry on.
A.I start trying to pull him out of the truck, and um, he was quite strong, (inaudible 14:14:14), and I know it sounds (inaudible 14:14:17) but um, he just in the tussle (inaudible 14:14:24).
Q. Were you surprised by his strength, did you say?
A. Yeah.
Q. Keep telling us Mr Albert, what happens next?
A.And then um, just while I’m pulling on his arm, in my mind I’m not sure if I’m thinking people are going to come from different directions, sorta thing so just in the heat of the moment I just, um, stabbed him, ‘cos I was trying to get him to let the wheel go.
Q. And before that stab, what were you thinking?
…
A.Yeah, pretty much that, um, people were gonna come from everywhere, and [C] was gonna come from behind me with a gun, yeah.
…
Q. And so when the stab wound – after the stab wound, what happened?
A.I pull him out of the truck, um, just pull him out, pretty much, um… push him to the side and then jump in the truck and, um, leave.
On this evidence, B, an elderly 76-year-old, at the precise time he was stabbed, had both arms wrapped around the steering wheel. He therefore presented no threat whatsoever to Mr Albert. An orthodox self-defence case was therefore never available to Mr Albert.
We also consider Mr Albert’s alternate claim to be fanciful. First, apart from Mr Albert’s claim that he felt threatened, there is no evidence whatsoever to suggest he was at any risk of violence from C or B at any time. On the contrary, on all of the available evidence, including Mr Albert’s, C was an unprovoked victim of potentially lethal violence at Mr Albert’s hands. Second, at the key moment, B was, as we have said, elderly and defenceless. If removing him from the car and escaping was the objective, stabbing him with potentially lethal consequences was utterly disproportionate to that goal. Third, Mr Albert had a clearly alternative course of action, namely, to simply leave the premises on foot.[11] Fourth, there was no evidence capable of supporting an inference that C had a gun or other weapon or would use it. We cannot see how a jury, properly directed, could possibly find Mr Albert was acting in self-defence. For these reasons also, if we were wrong about the decision to withdraw self‑defence from the jury, we would nevertheless find that there was no real risk that the jury might come to a different verdict or any risk of unfairness.
[11]A similar conclusion was reached in Afamasaga v R [2015] NZCA 615, (2015) 27 CRNZ 640 and Fairburn v R, above n 8, as cited by Mr Taylor.
We turn to the Judge’s jury direction about withdrawing self-defence on the B charge. Mr Taylor submits that this direction altered the landscape of his defence at trial, including that among other things, Mr Albert was forced to plead guilty to the B charge.
We agree with the Crown that no miscarriage of justice arises from this. It is useful to repeat the salient part of the direction here:
[28] Here I ruled at the end of all of the evidence that there was not a credible narrative in relation to [B] and so, if Mr Albert had not pleaded guilty to that charge, and I was now summing up to you in relation to both counts, I would tell you and direct you that so far as [B] was concerned, you could not consider whether Mr Albert was acting in self-defence because I decided, and this is part of my job, that there was no threat from [B] to Mr Albert at the time he stabbed him, because self-defence is to defend yourself against a threat a person is making to you. So that is a very short explanation, my decisions are much longer than that, and you are entitled, in my view, to hear that.
The critical comment is that the Judge linked the self-defence to the threat posed by B. In so doing he left open to the jury to find that Mr Albert was still in fear of what C might do. We therefore see no proper basis for finding that the direction was erroneous, or even if it was, there is no real risk that it affected the outcome.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent.
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