Coleman v The Queen

[2004] NZCA 312

IN THE COURT OF APPEAL OF NEW ZEALAND

CA180/04

THE QUEEN

v

JOSEPH TUA COLEMAN

Hearing:25 November 2004

Court:Chambers, Baragwanath, and Goddard JJ

Counsel:S J Bonnar for Appellant

J A Farish for Crown

Judgment:15 December 2004 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Chambers J)

A finding of murder in Otahuhu

[1]       In March this year a jury in the High Court at Auckland found Joseph Coleman guilty of the murder of George Matehaere, a man described by the Crown as “a transgender Samoan”.  Mr Coleman was tried at the same time as his de facto wife, Diane Henare-Wynyard, who had been charged with wilfully attempting to obstruct the course of justice in various ways.  Those charges arose from events occurring in the aftermath of the killing.

[2]       Mr Coleman and Ms Henare-Wynyard lived in the same block of apartments in Otahuhu, Auckland, as Georgie Matehaere (as the deceased liked to be called).  There was no dispute at trial that on 16 December 2002 Mr Coleman had picked up a baseball bat and struck Georgie Matehaere on the head.  Georgie Matehaere died from the injuries incurred some six days later. 

[3]       Mr Coleman accepted that he was guilty of manslaughter, but denied that he had murdered the deceased.  The defence was run on two basis:

(a)   Lack of murderous intent;

(b)   Provocation.

[4]       It is clear from the jury’s verdict that they concluded Mr Coleman did have the necessary intent and that the Crown had excluded provocation beyond reasonable doubt.

[5]       Mr Coleman now appeals against his conviction. 

Issues on the appeal

[6]       There are two major issues on the appeal.  Both relate to alleged improper practice by prosecuting counsel in his final address to the jury.  Mr Bonnar, for Mr Coleman, submits that prosecuting counsel’s errors were not adequately rectified by the trial judge in the course of his summing up.  Accordingly, Mr Bonnar submits, there has been a miscarriage of justice, with the consequence that the conviction should be quashed and a new trial ordered. 

[7]       We turn now to consider the alleged errors by prosecuting counsel. 

Section 167(b) – misstatement of the test?

[8]       The Crown case was always put on alternative bases.  The first basis was that this homicide was murder because Mr Coleman meant to cause the death of Georgie Matehaere: Crimes Act 1961, s 167(a).  The alternative basis was that set out in s 167(b):

If the offender means to cause the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:

[9] Mr Bonnar accepts that the Crown is entitled to run a murder prosecution on alternative bases. Mr Bonnar advised us that the Crown, in their opening comments and again in counsel’s final address, placed more emphasis on s 167(b) than on s 167(a), and we accept that that may well have been so. Mr Bonnar quite properly acknowledged, however, that the Crown had never expressly disavowed reliance on s 167(a), and certainly the trial judge, Paterson J, summed up on both bases. We note as well that Paterson J, when sentencing Mr Coleman, did not accept defence counsel’s submission that the jury must have found Mr Coleman guilty under s 167(b): HC AK CRI092-26917-03 11 May 2004 at [10].

[10]     Mr Bonnar’s complaint arose from something Mr Burns, leading counsel for the Crown at trial, said when addressing the jury on the elements of s 167(b).  The impugned paragraph was as follows:

He [Mr Coleman] knew perfectly well, as you can guess yourselves, that belting someone on the head with a fair amount of force with a baseball bat is likely to cause their death…[the baseball bat is] the silent witness, but it speaks volumes because you must know, as everybody does, that if you belt someone on the head with a baseball bat, there’s a very good chance you are going to kill them, all right?  So the Crown says, there you go.  That’s what’s needed to be proved for murder.  And the Crown has proved it. 

[11]     Mr Bonnar’s submission is that this erroneously stated the test.  What was at issue, Mr Bonnar said was Mr Coleman’s knowledge, not what a reasonable person should or ought to have known.  It is of course axiomatic that, before a murderous intent in terms of s 167(b) can be found, the jury must be satisfied that the bodily injury was known to the offender to be likely to cause death: those are the express terms of the paragraph.  We do not consider that Mr Burns departed from those express terms and his comment must be seen in its context.  Just a minute before, Mr Burns had, after explaining s 167(a), turned to what needed to be proved under s 167(b) and said:

And culpable homicide can be murder if the accused means to cause any bodily injury known to him to be likely to cause death, and reckless whether death ensues or not.  So in this case, what the Crown says is, when he whacked her on the head with that baseball bat, he knew that a blow using what’s been described by the pathologist as a severe degree of force, was likely to, could well have caused Georgie’s death.

[12]     That was entirely accurate.  No one can know for certain what was in Mr Coleman’s mind when he swung the baseball bat, because obviously one cannot see into another’s mind.  The fact finder must draw inferences as to the accused’s state of knowledge from facts proved.  The drawing of inferences inevitably involves the application of common sense and of the fact finder’s knowledge of the world and of how it works to proved facts.  That is all Mr Burns was saying.  It was unexceptionable.

[13]     Mr Bonnar accepts that Paterson J correctly stated the law on this topic when he summed up to the jury.  His Honour had also given the standard direction in his summing up to the effect that “the law is the judge’s province” and that the jury was obliged to apply the law as he stated it to be.  This was in line with what Mr Burns had said to the jury in the course of his final address.  Mr Burns had said:

Can I emphasise at the outset – the judge tells everybody about the law.  It’s His Honour’s function.  Me and my friend, Mr Bonnar, are here to represent separate sides.  We put views of the facts to you which you may choose to accept, you may toss them aside and say, “They’re rubbish.”  But when it comes to the law, if anything that we say is contradicted by His Honour, then His Honour is right.  That’s the way our system works…

[14]     Mr Bonnar, while accepting that Paterson J’s direction on this topic was accurate, said that he had nonetheless failed to correct explicitly Mr Burns’s error.  There is nothing in that submission.  First, we do not consider there was an error in what Mr Burns said, especially when considered in context.  Secondly, provided the judge correctly states the law, it is not necessary for him or her to go further and explicitly correct errors of law stated by counsel.  On some occasions, the judge may feel that to be necessary.  It is a question of judgment in the particular circumstances of the case.  In particular, the egregiousness of counsel’s error may be a telling factor in the judge’s decision.  But certainly here there was no need whatever for the judge to “correct” Mr Burns’s statement.  Mr Bonnar candidly admitted that he had not asked him to, either prior to summing up or after it. 

[15]     The first ground of appeal fails. 

Prosecutorial reliance on inadmissible evidence?

[16]     Mr Bonnar’s second complaint relates to a submission Mr Burns made in the course of his summing up when dealing with the issue of provocation.  Mr Bonnar’s argument is that Mr Burns mounted a submission based on evidence which was inadmissible against Mr Coleman. 

[17]     The argument needs some explanation, and in particular needs to be put into context.  An issue in the case against Mr Coleman was whether he had acted under provocation when attacking Georgie Matehaere.  Mr Coleman’s case was that he had been provoked by the deceased’s constant glue-sniffing in the precincts of the apartment complex in which they both lived.  It was the defence case that Mr Coleman was particularly incensed about Georgie Matehaere’s sniffing glue in the presence of Mr Coleman’s mokopuna.  It was the defence case that Georgie Matehaere had been sniffing glue on the day of the attack and that it was her actions in sniffing glue that day that finally triggered Mr Coleman’s explosive response. 

[18]     The defence faced the difficulty of raising a reasonable doubt on this topic when neither Mr Coleman nor Ms Henare-Wynyard intended giving evidence.

[19]     Mr Bonnar adopted a particular tactic to deal with this difficulty.  Stuart Woods was to be called as a Crown witness.  He too lived in the same apartment block.  He was not present at the time of the attack on Georgie Matehaere, but he arrived home not long after.  He was later interviewed by the police.  He gave a statement.  In that statement, he reported that someone came up to him and told him that Mr Coleman had hit Georgie Matehaere on the head with a bat.  He went over to see Mr Coleman at his flat.  He spoke to Ms Henare-Wynyard.  She apologised to him.  He didn’t know why.  He asked her why she was apologising.  She said, “’Cos it happened at your whare, Stu.”  His statement then continued as follows:

I said, “What gives Bucket [Mr Coleman] the right to come over to my house and do that to Georgie?  Even if she was hoofing in my house, it’s not up to Bucket to do that.”

She said, “You know the kaupapa [the rules], Stu.  You know they do that in front of our moko all the time.  When Bucket told her off, she laughed.  Next minute Bucket walked out the door.”

[20]     Mr Bonnar thought that this evidence could usefully be adduced in support of the proposition that Georgie Matehaere had been regularly sniffing glue in front of the mokopuna, contrary to Mr Coleman’s wishes, and that he had regularly told her off to no avail.  Presumably he knew that Ms Henare-Wynyard either would not or probably would not be giving evidence and thought that he could get this evidence in through Mr Woods. 

[21]     Mr Woods duly gave evidence.  He did not mention in his evidence‑in-chief the precise passage of what Ms Henare-Wynyard had allegedly said.  It may be that Crown counsel decided not to lead it; perhaps the witness simply forgot that part of what had been in his statement.  Mr Bonnar immediately set out to plug the gap.  His first question to Mr Woods in cross-examination was this:

You told us that that afternoon you had a conversation with Diane Henare‑Wynyard, when she had been apologising to you.  Did Ms Henare-Wynyard say to you that afternoon these words: “You know the kaupapa, Stu.  You know they do that in front of our moko all the time.  When Bucket told her off, she laughed.  Next minute Bucket walked out the door.”  Are those the words that Ms Henare-Wynyard used? … Yes.

[22]     We shall refer to this evidence as “the kaupapa evidence”.  At the time Mr Bonnar asked this question the evidence was unclear as to whether Mr Coleman had been present when Ms Henare-Wynyard said this.  Mr Burns sought to clarify that in re-examination.  He asked whether Mr Coleman had been in the room when those words were spoken.  Mr Woods replied that he did not think so. 

[23]     The introduction of this evidence favoured the defence because it helped establish that Mr Coleman had been concerned about glue‑sniffing in front of his mokopuna. 

[24]     Mr Bonnar would have been less pleased, however, when Mr Burns sought to make use of the kaupapa evidence in his final address.  Mr Burns, when dealing with provocation, said this to the jury:

You know what the real reason is [for the assault]?  Think about what was said, and this is out of Mr Coleman’s own mouth.  We heard it put to Stuart Woods.  We heard it put to Stuart Woods, “Did Diane Henare‑Wynyard say to you, ‘It’s the kaupapa, Stu.  They do it in front of our moko, in front of our grandchildren.  Bucket (that’s Joe) told him off and he laughed.’”  Then Bucket went out, got the bat and killed him.  Was Georgie killed because she was a glue sniffer who needed a lesson being taught or was Georgie killed because she laughed at Joe Coleman, the big man there?  She laughed at everybody, but he didn’t like it.  He didn’t like it.  There was no respect.  You remember what Georgie was like when she sniffed glue?  Some of her friends said that she was lovely, she was funny, they liked her company, but she didn’t – she was pretty irreverent.  She’d sing waiata up on the balcony, welcoming people onto the marae, showing a lack of respect.  And at the end of the day that, I suggest to you, is what led to Georgie’s death.  It wasn’t anything to do with teaching her a lesson about glue sniffing, because if it had been, that lesson would’ve been taught to everybody else in the complex.  Georgie was beaten to death because she laughed at Joe Coleman and he “lost his rag”, and if that’s right, you have to say to yourself, “Would the ordinary New Zealander, if they were laughed at by somebody, lose their power of self-control to the point where they couldn’t stop themselves from doing what they did?”  That’s the real essence here, and if you think about it in those terms, it doesn’t excuse what he did one little bit.  He was sick of this fa’a’fafine laughing, maybe sick of her sniffing glue as well, but the last straw wasn’t the glue, it was her disrespect and that’s what led to her death.  And in a civilised country you do not beat people to death for laughing at you.  So it’s not provocation at all. 

[25]     Later in the address, Mr Burns returned to this topic, in somewhat similar terms.  

[26]     Having heard the use that Crown counsel had made of the kaupapa evidence, Mr Bonnar decided to distance himself from it and sought to have it declared inadmissible in Mr Coleman’s trial, on the grounds that it was hearsay, an out of court statement not made in Mr Coleman’s presence.  Notwithstanding the fact that he himself had introduced the evidence and indeed wanted at least the first part of the statement in as evidence of Mr Coleman’s concern about glue-sniffing in front of the mokopuna, Mr Bonnar decided to eschew all reliance on it.  In his closing address to the jury, Mr Bonnar dealt with this issue at length.  He told the jury that the evidence on which Mr Burns’s provocation submission had been based was inadmissible against Mr Coleman, with the consequence that the entire Crown theory was not based on admissible evidence.  He said that there was no evidence admissible against Mr Coleman that the attack had been provoked by Georgie Matehaere having laughed at Mr Coleman.  Rather, Mr Bonnar urged the jury to accept the defence thesis that Mr Coleman had long been concerned about glue-sniffing in the complex and finally his patience had been overborne when Georgie Matehaere was found sniffing glue again that day. 

[27]     Mr Bonnar raised his concern about Mr Burns’s address with Paterson J, who dealt with the dispute in his summing up.  We do not need to deal in any detail with what Paterson J said for reasons we shall now set out. 

[28]     Mr Bonnar’s submission on this topic is entirely based on the proposition that the kaupapa evidence was inadmissible for or against Mr Coleman.  But we are satisfied that it was not, for the reason given by Ms Farish, for the Crown.  Ms Farish referred us to s 15 of the Evidence Amendment Act (No 2) 1980:

15Admissibility of oral and documentary hearsay evidence by consent

In any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement, whether oral or in a document, made by a person intending to establish the fact or opinion shall be admissible as evidence of that fact or opinion, with consent of all parties to the proceedings. 

[29]     Mr Coleman, through his counsel, made this evidence admissible in his trial when Mr Bonnar put the evidence to Mr Woods.  It is unreal to suggest that the question was being put simply to assist the Crown case against Ms Henare-Wynyard or her defence: that was not Mr Bonnar’s job.  The evidence was admitted because Mr Bonnar wanted to use at least part of the statement as evidence of the facts or opinions expressed in it.  Because the evidence which he sought to rely on may later have backfired on his client is no justification for his being able to recant on the consent his client impliedly gave.  The Crown did not object to the evidence.  By consent of both parties to Mr Coleman’s trial, therefore, Ms Henare-Wynyard’s statement became admissible as evidence of the facts stated in it.  Among those facts was that Mr Coleman had told Georgie Matehaere off that morning, that Georgie had laughed, and that the next minute Mr Coleman had walked out the door.  The Crown was then entitled to make use of that evidence as it saw fit.  It was open to the Crown to use that evidence as the basis of its submission as to what truly triggered Mr Coleman’s assault on Georgie Matehaere.  For the sake of completeness, we observe that Ms Henare-Wynyard’s consent to the admission of the kaupapa evidence was not required: the evidence automatically became evidence in her trial as she had made the alleged statement. 

[30]     The judge, under Mr Bonnar’s prompting, dealt with the issue of the admissibility of the kaupapa evidence in Mr Coleman’s trial.  We do not go into the details: the gist of the direction was that the kaupapa evidence could be used as evidence in Mr Coleman’s case only if he was present when this statement was made.  No one referred the judge to s 15.  As it turns out, the judge’s ruling to the jury was much more favourable to Mr Coleman than the law required. 

[31]     We therefore reject Mr Bonnar’s submission on this topic.  There was an evidential basis for Mr Burns’s submission.

[32]     We may also observe that the defence case on provocation was extremely weak.  There was really no explanation for what triggered the assault on this particular day other than the telling off followed by the laughter.  Absent that, what was it that triggered Mr Coleman on this occasion?  There were after all a number of glue-sniffers apart from Georgie Matehaere.  And glue-sniffing was a regular occurrence within the complex.  What else led Mr Coleman to single Georgie Matehaere out  and on this occasion as opposed to others?  There was no evidence from Mr Coleman on the topic.

Result

[33]     We dismiss the appeal. 

Solicitors:
Raymond Donnelly, Christchurch, for Appellant
Crown Law Office, Wellington