Clement v The Queen
[2013] NZCA 414
•3 September 2013 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA801/2012 [2013] NZCA 414 |
| BETWEEN | ROBERT DOUGLAS CLEMENT |
| AND | THE QUEEN |
| Hearing: | 23 July 2013 |
Court: | White, Goddard, Simon France JJ |
Counsel: | J C Hannam for the Appellant |
Judgment: | 3 September 2013 at 3.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
The appellant was convicted by a jury in the District Court at New Plymouth on 19 October 2012 on one charge of wounding with intent to cause grievous bodily harm (s 188(1) of the Crimes Act 1961).
He now appeals against conviction, alleging that a miscarriage of justice occurred.
The appeal
The ground of appeal is that the trial Judge, Judge Roberts, held a predetermined view of the appellant’s guilt, which affected the conduct of the trial to the extent that it was not fair and a miscarriage of justice resulted.
The predisposition on the part of the Judge to regard the appellant as guilty is alleged to have resulted from the Judge having presided over the earlier trial of a co‑defendant, Noel Bland, in mid-2011. Mr Bland was also charged with wounding the same victim with intent to cause grievous bodily harm and convicted by a jury. The submission advanced was that the jury at the appellant’s trial, more than a year later, would have been aware of certain remarks the Judge had made about Mr Clement’s involvement in the incident, when he sentenced Mr Bland.
Overlaying this ground of appeal, is a further issue arising from an example the Judge gave the jury to illustrate how reasonable inferences might be drawn from the evidence. It is contended the example used was one from which the jury could have drawn a negative inference about the appellant’s credibility.
Background
The victim of the wounding was badly assaulted outside the Central Tavern in Eltham on 5 April 2010. The assault occurred following an incident which began inside the Tavern, involving the victim and the publican, and culminated in the victim smashing two windows as he walked away from the Tavern. CCTV footage captured the events that occurred inside the Tavern and there were eyewitness accounts of events that occurred outside the Tavern. One of the eyewitnesses, who was with the victim, gave evidence that he saw Mr Bland and the appellant attacking the victim who was on the ground. Another witness, whose evidence had been put forward by Mr Bland at his appeal as fresh evidence, and who was driving past the Tavern at the time, saw a scuffle going on outside the Tavern and described seeing a man lying on the ground, who the appellant was “rucking with his foot”. When asked to elucidate on that action, the witness said, “Well, just like you ruck a ball, you know”. Other witnesses spoke of seeing the victim lying in the gutter bleeding. One described the appellant leaning right over the man in the gutter, crouching over him, cursing and carrying on, and swearing at him.
In the event, the victim suffered serious injury, sustaining broken bones in his face, broken ribs and being left with a residual brain injury.
Mr Bland
Mr Bland was sentenced to six years’ imprisonment and it is clear from the sentencing notes that during the plea in mitigation offered on his behalf much was made of the appellant’s involvement in the attack on the victim.[1] The question raised was whether the police had charged the wrong person. At the time the appellant had not been charged over the incident.
[1]R v Bland DC New Plymouth CRI-2010-021-661, 19 August 2011.
During his sentencing remarks, the Judge referred to Mr Bland and another (clearly the appellant) as having sought and secured a confrontation with the victim. The Judge also referred to the plea in mitigation that Mr Bland’s role in the offending had been lower than that of the appellant.
In identifying the appropriate sentence for Mr Bland, the Judge identified five of the factors set out in R vTaueki as relevant to the offending.[2] The fourth of these factors was that Mr Bland and the appellant “... were working in tandem”.
[2]R v Taueki [2005] 3 NZLR 372 (CA) at [31].
Mr Bland’s sentence was subsequently upheld on appeal.[3]
The appellant’s trial
[3]Bland v R [2012] NZCA 165.
After the appellant was charged and a trial date set, an application was made for an adjournment on the grounds the proposed trial Judge, Judge Roberts, had already expressed a view about the appellant’s involvement during the sentencing of Mr Bland. The Judge declined to recuse himself, stating:
... counsel’s concern is that I have already expressed a view, a view that his client, Mr Clement was not able to challenge. The view, if it can be termed that, that I did express was in the sentencing of Mr Bland. Of course, the sentencing notes do not go to the jury and as fact finder I will have no part at all in making this assessment that Mr Hannam is so concerned about.
I acknowledge some commentary to indicate that I had formed a view on things to the jury would be quite inappropriate, and usually I preface anything I say that my take on the facts, deliberately or unintentionally conveyed, if it has no correspondence with the jury’s assessment, they are to reject it.
The trial proceeded and the appellant gave evidence. During the course of his evidence in chief, the appellant denied that he had been “rucking” the person on the ground, as one witness had said, and explained that he had simply been leaning over the victim and telling him off for smashing the windows. He denied having inflicted any damage on the victim. He said that while the victim was lying in the gutter he couldn’t actually see his face and couldn’t see whether his face was covered in blood. He said, “I’m not leaning right over looking into his face. I’m leaning over looking at him, not right to his face”.
Photographs of the victim in his bloodied state had been produced in evidence and, during the cross-examination of the appellant, the prosecutor put the following to him:
Q.You stood over him when his face was like that, bleeding, swearing at him and spat into his wounded face.
A.Nah, he didn’t look anything like that and I did, you could hardly see his face ‘cos he was sort of lying halfway in the gutter. I did not touch the man and that’s all I am saying. I just did not touch him.
...
Q.Well you had no qualms crouching or leaning over a man, with those injuries, bleeding, swearing at him and spitting in his face.
A.I did not see how severe they were until you show me his pictures. It didn’t look anything like that when I was out there and I only lent over him for a few seconds, swearing at him and went back inside.
Earlier in his evidence in chief, the appellant had, however, said the following:
Q.Now when you saw Mr Hardgrave, how was he looking?
A.He didn’t look very good.
Q.When you say he didn’t look very good, what was it that made him not look very good?
A.Oh his face was all covered in blood and all bruised, well bruised, a few lacerations on it and he just didn’t look very good, looked a bit dizzy.
During his summing up, the Judge, in instructing the jury as to how reasonable inferences might be drawn from the evidence, provided an example by reference to the photographs of the victim that had been produced in evidence. He said:
A simplistic example might be that were you to encounter perhaps the man there shown in the photographs, book 1, you might, seeing his injuries, conclude that he had been given a beating. You may not have seen the beating, but it is a logical conclusion to draw.
At the end of the summing up, Mr Hannam raised a concern with the Judge over the particular example chosen to illustrate how inferences might be drawn. The concern was that the photographic evidence and any inference that might be drawn from it had significance for the appellant’s credibility, in terms of his denial under cross-examination that he had stood over the victim “when his face was like that, bleeding” and had sworn at the victim and spat into his face. Mr Hannam submitted that the Judge’s reference to the inference that might be drawn from the photographs, that the victim had been beaten up, could have been interpreted by the jury as a judicial comment or an expressed view about the appellant’s credibility.
Mr Hannam requested that the jury be recalled and provided with a different example of how to draw inferences and directed to disregard the example of the photographs.
After discussion with both Mr Hannam and the prosecutor, the Judge declined to recall the jury in order to give a further direction.
On appeal the further submission was that the selection of the photographs as an example reflected the Judge’s predetermined view of the appellant’s guilt.
Discussion
The main point on appeal can be disposed of in short order. We find no merit in the contention that the Judge brought any aura of bias to the trial or that he conveyed any view whatsoever of the appellant’s guilt. As Ms Bicknell submitted, no miscarriage was caused, as the Judge’s role was as the trier of law, not of fact, and any private view he may have held as to the appellant’s guilt (if indeed he did hold such a view) did not affect the jury’s proper consideration of the evidence.
None of the criteria for recusal applied to the Judge’s situation and there is no reason why a judge may not preside at the consecutive trials of co-accused. Indeed, it is conceivable that had Mr Bland’s appeal against conviction succeeded, his retrial would have been heard jointly with that of the appellant and the Judge would not have been obliged to recuse himself from the trial of both.
The Judge properly directed the jury as to his and their respective roles as the triers of law and of fact and expressed no view as to the appellant’s guilt.
Turning then to the example of the photographs to illustrate inferential reasoning, this was not the only example the Judge used to assist the jury with how to draw inferences based on scenarios arising from the trial. In our view, the example provided was unexceptional. The Judge did not personalise the example to the appellant and was careful to posit it on a purely theoretical basis. The example did not imply that the observer of the injuries in the photographs could have been involved in the beating. In fact, the opposite is so.
The second example, which concerned a scenario inside the Tavern involving different persons and was not personalised to the appellant, likewise did not invite or imply any guilt on the appellant’s part nor impugn his credibility.
The examples chosen by the Judge were helpful because they arose in the context of the trial and were not abstract or dissociated. In this way we consider them to have been of more assistance to the jury than examples used in the past, such as the example involving a ‘wet umbrella’.
We do not accept that the Judge was commenting on the photographic evidence, as submitted by Mr Hannam, and that in declining to redirect the jury on the matter, the Judge left the jury with a view that on the facts the appellant was guilty and his account was false.
As Ms Bicknell submitted, any such redirection would simply have highlighted the inconsistency of the appellant’s evidence as to whether he noticed the victim’s injuries. Both counsel agreed that in context it was clear that the Judge had only referred to the photographs in an attempt to illustrate inferential reasoning. The decision not to recall the jury and redirect them about the photographs did not give rise to any miscarriage of justice.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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