Burrows v The Queen
[2014] NZCA 296
•4 July 2014 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA361/2013 [2014] NZCA 296 |
| BETWEEN | TIMOTHY HUGH FERGUSSON BURROWS |
| AND | THE QUEEN |
| Hearing: | 30 April 2014 |
Court: | Harrison, Courtney and Clifford JJ |
Counsel: | Appellant in person |
Judgment: | 4 July 2014 at 10 am |
JUDGMENT OF THE COURT
AExtension of time to appeal is granted.
BThe appeal is dismissed.
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REASONS OF THE COURT
(Given by Courtney J)
Introduction
Following a jury trial in the Manukau District Court Timothy Burrows was found guilty and convicted of two charges of injuring with intent to injure. The complainant was his former partner, Ms Husband. The charges arose from an argument between them during which Mr Burrows forced Ms Husband to the floor, strangled her and put his hand over her nose to prevent her from breathing then bit her arm. Count 1 related to the strangling/stifling and count 2 to the biting.
Judge Johns sentenced Mr Burrows on 3 July 2012. She imposed sentences of 18 months’ intensive supervision and 120 hours’ community work. She also required Mr Burrows to attend relationship counselling and an anger management programme as directed by his probation officer.[1] Mr Burrows appeals his convictions only.
Leave to appeal
[1]R v Burrows DC Manukau CRI-2011-092-11407, 3 July 2012 at [18]–[21].
Mr Burrows filed his notice of appeal on 4 June 2013, well out of time. He required leave, to which there was no objection from the Crown. We accordingly grant an extension of time and consider the substance of the appeal.
Appeal against sentence not pursued
The notice of appeal indicated that Mr Burrows was appealing both his convictions and sentence. At the hearing, however, he addressed only the points that related to his appeal against conviction. Since the sentence was well within the range for offending of this kind we do not need to consider that aspect further.
Grounds of appeal against convictions
Not all of the grounds of appeal against conviction that were identified in the notice of appeal were pursued in argument. In particular, Mr Burrows did not advance complaints about his counsel’s conduct of the defence or assertions of bias on the part of the Judge or the failure of the police to prosecute Ms Husband for other incidents. Mr Burrows’ argument before us can be summarised as a complaint of miscarriage of justice as a result of:
(a)Late disclosure of a second set of photographs received on the day of the trial;
(b)The trial Judge refusing to allow Mr Burrows to give evidence about a previous assault on him by Ms Husband; and
(c)An error in the summary of facts describing the relationship between Mr Burrows and Ms Husband as on again/off again when he asserts that it had ended.
Further evidence
The notice of appeal had also indicated that Mr Burrows wished to adduce further evidence in support of his appeal. In her minute dated 6 August 2013 French J noted this and the requirement for him to file and serve an affidavit setting out the further evidence.[2] At a subsequent telephone conference, Mr Burrows confirmed that a letter he had written to the Court dated 6 August 2013 contained the further evidence he wished to adduce (a greeting card he claimed to have received from Ms Husband earlier in 2013). The letter was not in the form of an affidavit. At the next telephone conference on 5 September 2013, however, French J directed that he confirm the contents of the letter on oath at the hearing of the appeal.
[2]Pursuant to the Court of Appeal (Criminal) Rules 2001, r 12B.
At the hearing Mr Burrows did not seek to advance his application to adduce further evidence. Given the nature of the Crown case and the evidence at trial we cannot see that any subsequent contact from the complainant could have met the requirement of cogency in terms of its possible impact on conviction.[3]
The Crown case
[3]L (CA716/2013) v R [2014] NZCA 187 at [21]; R v Bain [2004] 1 NZLR 638 (CA) at [18]–[27]; Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].
The Crown case relied primarily on the evidence of Ms Husband and of the doctor who examined her immediately following the incident.
Ms Husband gave evidence about the nature of the relationship she and Mr Burrows had had. There had been difficulties in the relationship. She described incidents on 3 June 2010 and 26 July 2010 when arguments had turned physical. Mr Burrows had served her with a trespass order following the 26 July incident. Notwithstanding that she continued to visit him.
The incident that gave rise to the offending occurred on 17 July 2011. Ms Husband had gone to Mr Burrows’ house during the day. He and a friend were smoking a legal high drug. Later, when Mr Burrows changed brands his mood changed. In the evening Mr Burrows’ friend went home and Ms Husband cooked dinner for her and Mr Burrows. At about 8 pm Mr Burrows went to bed.
Sometime later Mr Burrows got up, went into Ms Husband’s handbag and took a camera out of it. There was an argument about the camera. Mr Burrows put Ms Husband in a bear hug. She was pushed back against the table and ended up on the floor. Mr Burrows grabbed her neck and at the same time applied pressure to her nose. She may have lost consciousness. When she came to, Mr Burrows was standing over her. When she started to get up, he grabbed her arm and bit her wrist. He then told her to get out. She took her handbag and dog and rang the Police.
In cross-examination, Ms Husband was asked about the previous incidents and the nature of her relationship with Mr Burrows. She accepted that she had punched a hole in his wall once. She accepted that she had once bitten him on the hand, but only to free herself from him. She would not accept that he had frequently asked her to stay away and that she made a habit of coming around uninvited.
In cross-examination about the alleged assaults that were the subject of the charge she acknowledged an inconsistency between her evidence and a previous statement on whether she had actually fallen unconscious, accepting that she was not sure if that had happened. Otherwise she maintained her previous account of Mr Burrows holding her down, strangling her, trying to stifle her and biting her wrist.
Ms Husband’s evidence was supported by Dr Parr, the Police medical officer on duty at Counties Manukau in the early hours of 18 July 2011. He examined Ms Husband and made notes, which he used to refresh his memory during his evidence. He described petechial haemorrhages on the skin around both eyes and around the nose and mouth. He described an abrasion to her neck. He described a circular abrasion with broken skin consistent with a bite on her right wrist. He was shown two sets of photographs and confirmed that they accurately depicted what he had observed. The Crown produced the two sets of photographs. The first was taken by a Police constable at about the time of the medical examination. The second set was taken some nine hours later by a Police photographer.
Constable Trotter, who attended the incident at Mr Burrows’ home, also gave evidence. He described the scene when he arrived, his discussion with Ms Husband and produced the DVD interview that Mr Burrows had given that night.
In her summing-up to the jury the Judge fairly put the Crown and defence cases and the elements of self-defence (Mr Burrows having asserted earlier that it was Ms Husband who started the fight). The case turned very much on the jury’s assessment of Ms Husband and the extent to which they considered the photographs were consistent with her account.
Grounds of appeal
(a) Late disclosure of photographs
Mr Burrows asserted that in the eight or nine hours between the photographs being taken Ms Husband had applied make-up and strangled herself to make things look worse. He was not provided with the second set of photographs until the morning of the trial and he said that he was prejudiced by this. However, Mr Burrows also told us that he was offered an adjournment in order to consider the matter further. He discussed the issue with his counsel, Mr Robertson, and decided to proceed.
There is no basis on which the late disclosure of the photographs could have been said to have affected the fairness of Mr Burrows’ trial. With the benefit of discussion with counsel he declined the opportunity to apply for an adjournment to consider the matter further. It was not put to Ms Husband in cross-examination that she had attempted to make herself look worse in the second set of photographs. Nor was it put to Dr Parr that Ms Husband’s appearance in the second set of photographs was not consistent with her earlier appearance. Most significantly, the primary evidence of Ms Husband’s injuries came from the doctor’s own observations. In these circumstances, the late disclosure of the second set of photographs could have had no bearing on the outcome.
(b) Intervention by the Judge
Mr Burrows’ next ground was the Judge’s intervention so as to exclude evidence about a previous assault by Ms Husband on Mr Burrows.
There was evidence about the nature of the relationship between Mr Burrows and Ms Husband and other incidents of violence between them. In cross‑examination Ms Husband agreed that she had punched a hole in the wall at Mr Burrows’ house. She was referred to a family violence report which recorded that “she is upset and took her frustrations out on [Mr Burrows]” though she did not recall that. When she was asked about the incident on 27 July 2010 in which it was alleged that she had bitten Mr Burrows on the shoulder she denied biting him on the shoulder but admitted biting him on the hand in order to free herself. There was no attempt by the Judge to prevent any of this evidence being given.
During his evidence-in-chief Mr Burrows was also referred to the family violence report. The Judge asked him to read the report to himself and answer questions from Mr Robertson after he had finished doing so. When Mr Robertson’s examination resumed the Judge intervened, but only to direct him to give evidence about what he could recall, in the following exchange:
EXAMINATION CONTINUES: MR ROBERTSON
Q: Do you recall this event on the 3rd of June?
A: Yes.
Q: What happened?
A:Um can I just say that I’m a bit mystified as to [sic] this statement appears to be only what [Ms Husband] has reported and I’m –
THE COURT:
Q:Can I just pause you there? We don’t want to hear about that, we want to hear now what you can recall about, from your own memory, what you can recall about what happened that day okay?
A:Um just simply that there was a disagreement. [Ms Husband] refused to leave. We struggled, she bit me on the shoulder and just basically it was a similar sorta [sic] deal to what we’re dealing with today.
This intervention is unobjectionable. There was no effort to prevent Mr Burrows from giving the evidence he wanted to give. It was merely a direction to ensure that the evidence he gave was admissible.
Mr Robertson asked a few more questions about the 3 June incident and then moved on to question Mr Burrows about the incident on 27 July 2010, which the Judge explicitly permitted, noting that Mr Robertson had cross-examined the complainant on the matter. Mr Robertson referred Mr Burrows to the photograph of the hole that Ms Husband had punched in the wall and asked him questions about that. At one point he asked Mr Burrows “Why did she punch the wall?” The Judge intervened, indicating that Mr Burrows could not answer the question. Mr Burrows insisted that he could answer it, producing this exchange:
THE COURT:
Q: Well I don’t think you can. Did she say anything as she punched it?
A:Well I just, I just appreciate to be allowed to expand just a little bit if I may?
Q:Well I can tell you that you can’t give evidence about what her thoughts were because you don’t know what her thoughts were?
A:Well I can give other evidence about the whole situation if –
Q:You can … as long as –
A:– and I –
Q:– as long as it’s relevant?
A:Okay I’m sure this would have gone – now just a little bit of background …
Mr Burrows then gave a further description about the incident to suggest that Ms Husband had deliberately targeted that wall because it was one of the few that did not need replacing as a result of water ingress.
There could be no criticism of the Judge for this intervention either. Mr Burrows’ speculation as to Ms Husband’s intentions was inadmissible. In any event, Mr Burrows was permitted to continue with his explanation.
There were no other interventions by the Judge in relation to previous incidents. Indeed, the Judge’s interventions generally were very limited and usually only for clarification. As a result, there can be no complaint about the manner in which the Judge conducted this aspect of the trial.
(c) Summary of facts
The third matter that Mr Burrows raised with us was what he said were inaccuracies in the summary of facts. The summary of facts recorded that Mr Burrows and Ms Husband had been in a relationship for approximately three years. However, Mr Burrows insists that the relationship had ended by the time this incident occurred. Ms Husband confirmed that she was not in a relationship with Mr Burrows for very long but in cross-examination would not accept that the relationship had been over at the time of the incident. Nevertheless, there was effective cross-examination regarding the trespass order and a text she had sent on 28 August 2011 referring to her sadness that they could not be together.
The existence of the relationship was of peripheral significance. The prosecutor did refer to the relationship in closing, but did not put any emphasis on it. Whether the relationship was current or not was not a significant part of the Crown case. Mr Robertson did canvass the relationship in somewhat more detail during closing for the defence, focusing on Mr Burrows’ efforts to end the relationship, the previous incidents of violence between them and the trespass order. Overall, however, this was not a significant issue for the defence either. Nor did the Judge’s summing-up focus on the nature of the relationship. She directed the jury very much in terms of the evidence relating to the incident on which the charges were based.
The summary of facts was never provided to the jury. In these circumstances, the reference in the summary of facts to the relationship being current could not have made any difference to the outcome of the trial.
Result
None of the matters that Mr Burrows raised with us in argument could have had an effect on the outcome of the trial or otherwise affected the fairness of it. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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