Austin v The Queen
[2018] NZCA 334
•30 August 2018 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA514/2017 [2018] NZCA 334 |
| BETWEEN | SHAUN DAVID AUSTIN |
| AND | THE QUEEN |
| CA523/2017 | ||
| BETWEEN | ROBERT ERIC AUSTIN | |
| AND | THE QUEEN | |
| Hearing: | 25 July 2018 |
Court: | Williams, Brewer and Thomas JJ |
Counsel: | W T Nabney for Mr Shaun Austin |
Judgment: | 30 August 2018 at 3.00 pm |
JUDGMENT OF THE COURT
AMr Shaun Austin’s appeal against conviction is dismissed.
BMr Robert Austin’s appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
In the early hours of the morning of 1 April 2015, two men attacked and robbed two other men at Ti Point Wharf in Leigh. The attack was violent. One of the attackers struck one of the victims in the head with an axe, causing loss of consciousness and serious injury.
Mr Shaun Austin and Mr Robert Austin, brothers, were eventually arrested and charged in relation to this offending.[1] Both denied being the attackers. Both denied being at the scene.
[1]Mr Shaun Austin was charged with aggravated robbery (Crimes Act 1961, s 235; the maximum sentence for which is 14 years’ imprisonment); wounding with intent to cause grievous bodily harm (s 188(1); the maximum sentence for which is 14 years’ imprisonment); and injuring with intent to cause injury (s 189(2); the maximum sentence for which is five years’ imprisonment). Mr Robert Austin was charged with wounding with intent to cause grievous bodily harm and injuring with intent to cause injury.
At trial, the issue was whether the Crown could prove the attackers were (individually) the Austin brothers. Neither gave evidence. The jury’s task was to evaluate the circumstantial evidence presented by the Crown in the light of the cross‑examinations and the submissions of counsel.
The Crown’s case was very strong. We do not need to set it out. The jury convicted the appellants.
Mr Shaun Austin now appeals his convictions on the ground his counsel, Ms Wickliffe, did not conduct his defence in accordance with his instructions. In his affidavit, and in his oral evidence before us, he maintains that although he initially told Ms Wickliffe he was not present during the attack, he changed his instructions shortly before trial to the effect that he was present at the incident but he was not responsible for the assaults and robbery.
Mr Robert Austin appeals his convictions on the ground the trial Judge, Judge Blackie, did not properly instruct the jury on how to deal with circumstantial evidence going to identity. The Judge, it is submitted, instead gave the jury the impression that identity had been established.
In the event his convictions stand, Mr Robert Austin also appeals his sentence of six-and-a-half years’ imprisonment. He says it is manifestly excessive.
Mr Shaun Austin’s appeal
It is fundamental law that a defendant has the right to have his or her defence put at his or her trial. If Ms Wickliffe put Mr Shaun Austin’s defence as “he was not there” when his instructions to her were that his defence was “he was there but he was not responsible for the assaults and the robbery”, then that right was breached. If we find this occurred, then we will allow the appeal.
Ms Wickliffe categorically denies that Mr Shaun Austin told her he was present during the attacks before the trial. Ms Wickliffe says he told her after the trial. Mr Shaun Austin gave evidence to the contrary. We look at the issue objectively.
Towards the end of the Crown case, Ms Wickliffe gave Mr Shaun Austin a typed document headed “Client Instructions for Trial” to read and sign if he agreed with it. It covers two-and-a-half pages. Relevant passages are:
…
3.Further, I had instructed my Counsel, that it was my defence that I was not present at the scene at Ti Point Wharf and hence I was not involved in the relevant incident.
4.My Counsel raised with me the difficulties with my denial, given the evidence which that (sic) been briefed by the Police and was to be led at Trial. Namely, the fact Robert Austin’s phone number had polled to that general area, had been recorded by Cameron Percy on that night and that there was evidence of a person giving the name of Steve Osten to Cameron Percy. There was also evidence about the two men being in a Red Ford Falcon and being brothers. I accept that my Counsel discussed the evidence in detail with me to ensure that I understood the same. She was very frank with me about the prospects of a successful outcome.
…
10.I have provided my Counsel with instructions on the evidence and we have discussed my instructions in advance of the trial. I am ready and prepared to give evidence in my defence. I know that I can be called to give evidence if I want to. My position, as instructed, is pretty simple. I simply say I was not there and would say I was with Abbie, driving around. However, I know that depends on the credibility of Abbie’s evidence.
11.The Crown case is about to complete, and will do so today. I know at that time, I must elect whether to give or call evidence. I have decided not to do so. Again, I have received detailed and helpful advice on this aspect and after carefully considering it, including a consideration of how the evidence at Trial has proceeded, I have followed it. I am confident with this decision. I will not call or give evidence.
12.I confirm that I accept that my Counsel has explained to me that while some advances have been achieved at trial it remains a strong case against me.
Mr Shaun Austin signed this document at the foot of each page. His evidence to us is that he received the document while he was in the dock and he really did not get a chance to read it correctly. He had it “a couple of minutes at the most before signing and returning it”.
Ms Wickliffe’s evidence is that she may have given the document to Mr Shaun Austin while he was in the courtroom. She said she told him to take his time looking at it, and did not get it back from him until a later adjournment. Ms Wickliffe said she saw Mr Shaun Austin in the cells almost every adjournment:
Never once did he say to me I am not happy with how you’re doing things. In fact, I’m sure that we had a discussion where he said he was fine. With some of the cross-examination that I did I felt that I made some headway and he was really happy about that.
Mr Shaun Austin’s evidence is to the effect he was unhappy that Ms Wickliffe did not follow his instructions and his demeanour in court made that plain. Ms Wickliffe’s evidence is that Mr Shaun Austin’s demeanour in court caused her difficulties because he kept trying to communicate with his partner who was seated near to the dock. It had nothing to do with complaints about her handling of the case, of which there were none.
Ms Wickliffe went to see Mr Shaun Austin in prison after the trial. At this meeting, Mr Shaun Austin handed her a detailed handwritten statement in which he sets out an account of what happened at Ti Point Wharf. It is completely different to the account given by the victims. It alleges that at one point one of the victims knocked Mr Shaun Austin unconsciousness with a branch, causing him injury. Ms Wickliffe’s evidence is this was the first she knew of any such account. This is challenged by Mr Shaun Austin. However, Ms Wickliffe takes notes of her meetings. Her contemporaneous notes of this meeting include:
MYou saying you were there now?
SYes.
MRan it on basis not there – can’t do much now w what happened.
SL knocked me out cold w big pole under wharf. Ran straight into post the skinnier Korean holding. V pissed, dazed, confused.
Rob texted Max, making out he’s me – Max snapped him.
Max further up Nth. Me house-sitting 4 days. Looked after dogs. Can see text re hanging out washing.
All Rob’s fault. He the aggressor. Hang me out to dry.
MExplained the way trial run “I wasn’t there” means can’t dispute what happ’d. Bec not there.
SU’std. Just fucked off. Might as well kill self.
General talk re Abbie/future, do well in sentence, get out asap. Aim for ⅔ to get out 1st time. Perked up by time I left.
We have no difficulty preferring Ms Wickliffe’s evidence to that of Mr Shaun Austin. The records kept by Ms Wickliffe show a professional, determined and empathetic counsel who did her best with a client who was at times difficult to deal with. As part of her professional approach to her job, Ms Wickliffe kept a good record of her interactions with Mr Shaun Austin. We are satisfied Ms Wickliffe defended Mr Shaun Austin in accordance with his instructions and it was only
after he was convicted that he produced his alternative account. Ms Wickliffe’s contemporaneous notes record the moment she found out about it.It follows we dismiss Mr Shaun Austin’s appeal against conviction.[2]
Mr Robert Austin’s appeals
Appeal against conviction
[2]There was in the written submissions an appeal point relating to whether Mr Shaun Austin was properly advised of his right to give evidence. This was not pursued. On the evidence, it could not have been made out.
In his written submissions, Mr Rickard-Simms, for Mr Robert Austin, stressed the principal issue in Mr Robert Austin’s trial was whether the Crown’s circumstantial evidence was sufficient for the jury to conclude Mr Robert Austin was one of the two attackers. Initially, Mr Rickard-Simms cast this as a matter of identification. However, before us, he re-cast the issue as one of sufficiency of evidence and the need for the trial Judge to give a warning that great care should be taken in evaluating the Crown’s evidence since it is circumstantial in nature.
We are satisfied there is nothing in this point. The whole trial was about whether the jury could infer from the Crown’s circumstantial evidence that, in Mr Robert Austin’s case, he was one of the two attackers. As we have said, the Crown’s case was very strong and we have no doubt that such an inference was properly available to the jury. In any event, there was no error on the part of the Judge:
(a)The Judge gave a standard direction on inferences. Indeed, when considered in the light of this Court’s decision in Edwardson v R, the Judge was overly favourable to Mr Austin by directing that if two inferences can be drawn, one favourable to the Crown and the other favourable to the defence, then the jury must draw the inference favourable to the defence.[3]
(b)The question trail, which the Judge read out and discussed in relation to the charges, directed the jury towards the obligation on the Crown to prove beyond reasonable doubt that the criminal actions were those of the named defendant. For example, the Judge said:
[49] So if you answer that affirmatively you’d go to question 2, “Has the Crown proved beyond reasonable doubt that Robert Eric Austin was with Shaun David Austin when he was wounded?” If you’re satisfied that Robert Eric Austin was there when Shaun David Austin wounded Jaehun Kim, then you go and ask yourselves the third question, “Has the Crown proved beyond reasonable doubt that Robert Eric Austin was directly involved in the wounding of Jaehun Kim in the sense that his actions were intended and did reinforce the actions of Shaun David Austin in causing bodily harm that was really serious?”
(c)The Judge also summarised the defence cases. It was very clear that Mr Robert Austin’s case was that he was not in any way involved in the attack, and that it was for the Crown to prove beyond reasonable doubt the contrary before convictions could be entered.
[3]Edwardson v R [2017] NZCA 618.
Mr Rickard-Simms submitted that questions asked by the jury, which might be said to go to identity, emphasised the need for special caution in this case. We do not agree. The questions were more along the lines of the jury asking whether evidence existed, rather than expressing confusion over their task. It is true that the Judge did not give the sort of direction that trial judges often give when circumstantial evidence is to be evaluated (for example, that one strand of rope might not bear the weight of a case but a number of strands interrelated might). However, nothing comes from this.
The jury could have been in no doubt that the key issue was whether the Crown evidence could prove beyond reasonable doubt that Mr Robert Austin was one of the attackers. There was no need in this case for any special direction going to the use of circumstantial evidence, including a need for caution. There is no risk of a miscarriage of justice.
It follows we dismiss Mr Robert Austin’s appeal against conviction.
Appeal against sentence
The Judge first assessed a starting point for Mr Shaun Austin of 11‑and‑a‑half years’ imprisonment.[4] However, that included an uplift of 18 months’ imprisonment for previous convictions and for offending while on parole.[5] So, the component of the starting point in relation to the offending itself was 10 years’ imprisonment. The Judge then, in response to some personal matters reported by Mr Shaun Austin’s partner, reduced the starting point by six months to reach an end sentence of 11 years’ imprisonment.[6] Mr Robert Austin’s sentence was assessed against Mr Shaun Austin’s culpability.[7]
[4]R v Austin [2017] NZDC 18676 at [21].
[5]At [20].
[6]At [22].
[7]At [23].
It was not part of the Crown’s case that Mr Robert Austin had been the main attacker, the one who used the axe as a weapon. The Judge said:
[23] … You are an active aider, an abettor, and active party but as far as the wounding with intent charge was concerned you were not the principal. I accept that you played a lesser role, an important role because you were there to prevent Mr Kim getting assistance and, of course, you committed the subsequent offence of the assault to Mr Lee but I accept it was a much lesser role.
Judge Blackie adopted a starting point for Mr Robert Austin of six years’ imprisonment, being 60 percent of his brother’s starting point.[8] He uplifted the starting point by six months to account for Mr Robert Austin’s previous convictions for violent offending.[9]
[8]At [24].
[9]At [24].
Mr Rickard-Simms submits the starting point was too high. He submits five years would be appropriate. Further, the Judge should have given credit for an intervention by Mr Robert Austin which might have discouraged Mr Shaun Austin from further serious violence. The Crown case was to the effect that at one point Mr Shaun Austin asked Mr Robert Austin for a knife so that one of the victims could be “finish[ed] off”. Mr Robert Austin said, “let’s go”.
The offending, in brief, involved an attack on two men who were night‑fishing at Ti Point Wharf. Mr Shaun Austin attacked one, Mr Kim, who had been sleeping in his car. He threatened him with an axe. He punched him in his face and body, and demanded his money and car keys. Mr Kim complied. Mr Shaun Austin tried to drive off in Mr Kim’s car but crashed it. Mr Kim opened the car door and tried to get the axe. He failed and Mr Shaun Austin again attacked Mr Kim.
Meanwhile the other man, Mr Lee, had been fishing. Hearing Mr Kim screaming he ran over to help. He found that Mr Kim had been forced to his knees and told to remove his jacket. Mr Shaun Austin struck Mr Kim in the head with the axe rendering him unconscious. At this point Mr Lee managed to wrest the axe from Mr Shaun Austin and he flung it into the sea. Mr Lee was then grabbed by Mr Robert Austin who held him while Mr Shaun Austin attacked him. Mr Shaun Austin kicked Mr Lee in the head. Mr Kim was dragged closer to the shoreline and left there. It was after that when Mr Shaun Austin said, “[l]et’s finish him off,” and asked for a knife. Mr Robert Austin said, “let’s go” and suggested they leave. They did.
Mr Kim suffered serious injuries, including fractures to his right eye socket and cheek.
There is no challenge to the starting point of 11 years’ imprisonment adopted for Mr Shaun Austin. In our view, it resulted from an orthodox application of R v Taueki.[10] The issue is whether the Judge chose a starting point for Mr Robert Austin which properly accounted for the lesser role he played.
[10]R v Taueki [2005] 3 NZLR 372 (CA).
In this regard, it is important to recognise that Mr Robert Austin’s role in the violence did not commence with his restraint of Mr Lee. He was present throughout and was convicted as a party to his brother’s attack on Mr Kim.
We agree with Crown counsel that, given the presence of extreme violence, serious injuries, multiple attackers, the use of a weapon and blows to the head, the offending was properly placed at the higher end of band two (five to 10 years) or the lower end of band three (nine to 14 years) of Taueki.
The Judge’s characterising of Mr Robert Austin’s offending as an “active aider, an abettor” of his brother’s offending is apt.[11]
[11]R v Austin, above n 4, at [23].
We agree with Mr Rickard-Simms that, in the circumstances, the Judge might have been able to take Mr Robert Austin’s rejection of Mr Shaun Austin’s suggestion that there be a “finish[ing] off” as a mitigating feature. However, it would have been of limited value given that Mr Shaun Austin immediately gave up the idea and nothing more was required of Mr Robert Austin. In any event, the Judge fixed a starting point for Mr Robert Austin which was only 60 percent of his brother’s. That was more generous to Mr Robert Austin than it need have been.
We find the end sentence of six-and-a-half years’ imprisonment was within the range available to the Judge. Accordingly, his appeal against sentence is also dismissed.
Decisions
Mr Shaun Austin’s appeal against conviction is dismissed.
Mr Robert Austin’s appeals against conviction and sentence are dismissed.
Solicitors:
Pacific Coast Law, Papamoa for Mr Robert Austin
Crown Law Office, Wellington for Respondent