Benson v The Queen
[2011] NZCA 416
•29 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA72/2011 [2011] NZCA 416 |
| BETWEEN PETER JOHN BENSON |
| AND THE QUEEN |
| Hearing: 23 August 2011 |
| Court: O'Regan P, Ronald Young and Venning JJ |
| Counsel: J C Hannam for Appellant |
| Judgment: 29 August 2011 at 10.30 am |
JUDGMENT OF THE COURT
A The time for filing the notice of appeal is extended.
B The application to adduce evidence in support of the appeal is dismissed.
C The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
Following a jury trial in the District Court at New Plymouth the appellant was convicted of one count of wounding with intent to cause grievous bodily harm. Judge Roberts sentenced him to four and a half years’ imprisonment. The appellant filed an appeal against conviction and sentence.
The appeal was out of time. The Crown does not oppose the application for an extension of time to file the appeal. The appeal was initially filed in the wrong Court. The extension of time to file the appeal is granted.
The appellant no longer pursues the appeal against sentence.
Background
On 5 December 2009, the complainant, Mr Katene, and his flatmate Mr Lowe were drinking at their home in New Plymouth. Mr Katene and his partner Ms Graham lived in a bach on the property. Mr Katene and Mr Lowe started drinking about 10 or 11 am before going to a local hotel during the afternoon. When they returned home in the early evening, the appellant was there. The appellant was Mr Lowe’s brother-in-law. He was also a friend of Mr Katene’s. They had worked together. All three continued drinking into the evening.
The appellant is on a methadone programme. He took his allocation of methadone for the day and also took a couple of 2.5 mg pills of Lorazepam (for anxiety). Mr Katene and Mr Lowe engaged in some play fighting, punching each other in the arm before they fell asleep in the lounge.
Mr Katene said the next thing he knew, he woke up, put his hand to his head, and saw blood on his hand. He saw the accused standing in front of him and said words to the effect of: “What the f you do that to me for bro?” Mr Katene said the accused might have said “Sorry”. Mr Katene then went to find his partner, Ms Graham who was in the bach, but he fainted near the clothesline. Ms Graham saw him and called 111. Police and ambulance officers attended and Mr Katene was taken to hospital.
Ms Graham said that she heard Mr Katene say “Why the f did you do that bro?” and later, when she went outside to Mr Katene, she could hear the appellant saying that he was sorry.
Mr Katene had sustained a deep gash to his forehead. He was spoken to by a police officer at the scene, before he was taken to hospital. The police officer recorded him as saying: “It was Peter [the appellant]. I was inside asleep and woke up to a shovel hitting my face”. He said he saw Peter do it.
The police officer then went inside and found a spade in the centre of the lounge. The spade had blood on it. Forensic evidence strongly suggested that the blood on it was Mr Katene’s.
The appellant was arrested for assault and given his Bill of Rights advice. He was then taken to the New Plymouth Police Station. Detective Sergeant Wright spoke to him at the station at about 11.30 that night. Detective Wright noted that the appellant was very intoxicated. The appellant said he had had four cans of alcohol pre-mixers. The Detective only asked him a few questions:
Q. What happened?
A.I hit him ‘cos I thought he was going to attack me so I attacked him.
Q.How many times did you hit him with the spade?
A.Twice.
Q.Did you hit him in the head?
A.I don’t know.
The detective decided that he would arrange for the appellant to be spoken to in the morning when he would not be so affected by alcohol. Given that the appellant had confessed to hitting the complainant with a spade the detective was content to leave the formal statement until the next morning.
The next morning, at about 11.00 a.m., the appellant was interviewed by Detective Ashton. She read back Detective Sergeant Wright’s notes from the night before and asked the appellant what he had to say about that. The appellant said:
A.I don’t know what happened. I just swung a couple of times to keep him back. I don’t know how we got into the argument.
...
Q. Would the amount of times you hit Neville be correct?
A. Yes.
Q. Whose spade was it?
A. I don’t know. It was just there. I don’t live there.
...
Q. How much had you had to drink?
A. I don’t know.
Q. What were you drinking?
A. A couple of mixers, Vodka mix.
Q. Had you consumed anything else?
A. No.
The appellant gave evidence at trial. He said he had arrived at the house about 3 o’clock in the afternoon, before the others came home, that he had a few beers, and, after taking a couple (of pills), he couldn’t recall what happened to the pills and that, while he had “little bits and pieces” of recollections of some things, it was sort of a blank. He recalled waking up in the police station.
The defence at trial was that the statements the appellant made to the police were unreliable because he was badly affected by a combination of the alcohol and the Lorazepam pills. Further, Mr Katene could not possibly have seen who had hit him, because he must have woken up after he had been hit, so that the jury could not be satisfied beyond reasonable doubt that the appellant was the person who had hit Mr Katene. Finally, if it was the appellant, the jury could not be satisfied that at the time he hit Mr Katene he had the requisite intent.
The jury rejected the defence arguments and found the accused guilty.
The basis for the appeal
At the start of the trial the appellant challenged the evidence of the statements he had made to Detectives Wright and Ashton on the basis they were unreliable and inadmissible under s 28 of the Evidence Act 2006. Judge Roberts ruled them admissible.
Mr Hannam submitted that the evidence he had obtained from a medical officer, Dr Judson, and the appellant’s partner, Ms McDonnell after trial, supported an argument the appellant would have been so severely affected by a combination of alcohol and prescription drugs that he would have been unable to recall the events of the night. The appellant’s statements to the police should therefore have been ruled inadmissible as unreliable. Mr Hannam submitted that if those statements were excluded there was insufficient evidence to convict the appellant.
Decision
The only appeal ground in his written submissions that Mr Hannam still relied on, namely there was insufficient evidence to support the conviction, is misconceived. Even if we accepted the appellant’s argument that his statements should not have been before the jury, there was sufficient evidence for them to have found the charge proved.
There was no issue that there were only three people in the lounge at the time the blows were struck. They were the appellant, the complainant and Mr Lowe. There was no credible evidence to support a suggestion Mr Lowe wielded the spade and struck Mr Katene. When the complainant awoke he was bleeding from a gash to his forehead. He saw the appellant in front of him. He challenged the appellant as to why he had done it and the appellant said “Sorry”. Either that apology, or a later one, was overheard by the complainant’s partner Ms Graham. A spade with the complainant’s blood on it was found in the lounge. The spade was likely to have caused the injury. In the circumstances there was sufficient evidence, quite apart from the evidence of the appellant’s admissions to the police, for the jury to properly conclude the appellant had hit the complainant with the spade and caused the injury to the complainant’s head.
The jury could also have drawn an inference that the wound was inflicted with intent to cause grievous bodily harm from the fact a spade had been used to strike Mr Katene’s forehead. The issue in relation to intent was whether the appellant may have been so affected by alcohol as to be incapable of forming the necessary intent. The Judge directed the jury appropriately on that aspect.
So, even if the evidence of the appellant’s statements had not been before the jury, there was sufficient evidence upon which he could have properly been convicted. There is no prospect of the appeal succeeding on the ground advanced in Mr Hannam’s written submissions.
During the course of argument Mr Hannam accepted that the appellant’s argument was perhaps more properly considered as a submission there had been a miscarriage of justice because the appellant’s statements were wrongly admitted and should not have been before the jury, or at the least, Dr Judson and Ms McDonnell’s evidence should also have been before the jury. Mr Hannam had not made an application to adduce further evidence in support of the appeal but after prompting from the Court sought leave orally.
Dr Judson’s evidence is that, assuming the appellant had consumed six Lorazepam tablets together with an undefined amount of beer, then a person in that state:
would be unlikely to be able to give an accurate account of events. In addition it would be likely that he would not recall what he had said once he had sobered up. ...
The combination of alcohol and 6 Lorazepam pills would have affected [the appellant’s] ability to communicate with the police officer and his mental state would have been impaired.
Dr Judson’s evidence is based in part on Ms McDonnell’s evidence that when she found the Lorazepam bottle it had less than half, perhaps as few as two or three tablets in the bottle. The appellant had apparently received a new bottle of Lorazepam on 4 December, the day before the assault.
The Supreme Court has recently set out the test to apply to the admission of fresh evidence on a criminal appeal in Fairburn v R:[1]
[25]The principles to be applied by an appeal court when considering the admission of further evidence were stated by the Court of Appeal in its judgment in R v Bain [[2004] 1 NZLR 638 (CA) at [18]-[27]] and approved by the Privy Council in that case [Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]]. It is worth repeating what the Court of Appeal said:
[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.
[23] Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract. Both inherent and contextual credibility will usually need consideration. Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary. The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s 389 of the Crimes Act. The freshness and credibility criteria are the standard measures which guide the exercise of the discretion. In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.
[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.
...
[26] It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.
[27] The third screen or control in a further evidence case subsumes the proviso. If qualifying further evidence might reasonably have led the jury to an acquittal, it would be logically impossible to apply the proviso. It could not then be said that the jury would without doubt have convicted, even if the further evidence had been before it. Hence the purpose of the proviso is built into the third control.
Although not so described in this passage, the third screen or control is often referred to in terms of “cogency”.
[1]Fairburn v R [2010] NZSC 195 [2011] 2 NZLR 63 at [25]. See also Witehira v R [2011] NZCA 255 at [39].
The proposed evidence of Dr Judson and Ms McDonnell is not fresh in the sense discussed by this Court in Bain[2] and approved by the Supreme Court in Fairburn. Mr Hannam responsibly conceded that the evidence of both Dr Judson and Ms McDonnell could have been called at trial if inquiries had been made of them at that time.
[2] R v Bain [2004] 1 NZLR 638 (CA).
Next, Dr Judson’s evidence is based on an assumption the appellant must have consumed six of the Lorazepam pills on 5 December. There is no evidence to support that assumption. The appellant himself said he took a couple. Ms McDonnell’s evidence of the bottle having perhaps as few as two or three tablets is in contrast to the evidence of Ms Graham (who said she found 10 pills in the bottle). There is just no evidence to explain what happened to the other pills.
Further, in any event, Dr Judson’s evidence is so general as to be of limited value. It could not possibly have led the Judge to take a different view of the admissibility of the appellant’s statements. Despite Dr Judson’s opinion, the appellant was able to give brief answers to Detective Wright on the night when arrested and, when spoken to by Detective Ashton after sobering up the next morning, he admitted the attack even though he said he didn’t know what had happened. While the appellant was vague on the details of the incident he accepted that he had swung (the spade) at the complainant.
If Dr Judson and Ms McDonnell’s evidence had been available when the challenge to the statements was considered it would not have led to the exclusion of the statements. Even if it had been before the jury at trial we are satisfied it cannot be said that it might reasonably have led to a finding of not guilty.
For the above reasons we dismiss the application for leave to adduce the evidence of Dr Judson and Ms McDonnell in support of the appeal.
Result
The appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
0