Deo v The Queen
[2012] NZCA 482
•23 October 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA207/2012 [2012] NZCA 482 |
| BETWEEN SHARN LIONEL BLACK |
| AND THE QUEEN |
| Hearing: 11 October 2012 |
| Court: Stevens, Venning and Dobson JJ |
| Counsel: H D M Lawry for Appellant |
| Judgment: 19 October 2012 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Following trial in the District Court at Auckland Sharn Black was convicted on one count of wounding with intent to cause bodily harm. He appeals against the conviction on the grounds of miscarriage of justice.
The basis for the appeal is his challenge to a ruling by Judge Gibson declining to allow trial counsel to cross-examine the complainant about his own previous conviction for injuring with intent to injure.[1]
Facts
[1] R v Black DC Auckland CRI-2011-044-2126, 15 November 2011.
On the evening of 1 April 2011 there was a party at Amber Collins’ home in Torbay, North Shore. The appellant was present. During the course of the evening the complainant, together with two of his associates, also came to the party. The appellant and the complainant were known to each other. They had formerly been friends but apparently that relationship had broken down. Issues had developed between them and the appellant was concerned about retribution.
The appellant was standing in a doorway at the property. When he saw the complainant arriving he went down the hallway, into the bathroom, locked the door and then climbed out the window into the garden at the back of the house. The complainant said that Ms Collins told him she wanted the appellant to leave the party. He followed the appellant down the hallway to the bathroom. The complainant banged on the bathroom door, heard a noise that sounded like the window and figured that the appellant had jumped out the window.
The complainant then went around the side of the house, up the driveway to the corner of the house, and at that stage noticed someone standing in or by a hedge. It was the appellant. The complainant said he walked over to the appellant, touched his shoulder, raised his arm and said to the appellant words to the effect “You’ve gotta go,” and “You have to f— off ...”. The complainant said that while telling the appellant to go he felt like he had been punched in the ribs. He said he then grabbed the appellant and they tussled. The complainant said he was not paying too much attention to the punch as they tussled. But he says that a short time later he saw a knife that looked like a hunting knife in the appellant’s hand. After they broke free of the tussle the appellant ran off. It was only then that the complainant noticed one side of his chest was warm. He felt weird. He then noticed blood pouring out of his shirt.
The complainant collapsed shortly afterwards and was taken to hospital. The police were called.
After hiding for a short time the appellant returned to the party. When the police arrived at the scene they found him lying in one of the bedrooms. He was upset.
The appellant did not give evidence. He did, however, make a full statement to the detective in charge of the investigation on the night of his arrest. In fact he spoke to the detective twice. The detective recorded the first interview in his notebook and the second, more detailed one, was recorded by DVD. In short, the appellant admitted that he was the person in the hedge. He said he had gone there to get away from the complainant and his friends. He denied having a knife with him at the time the complainant approached him. He said he did no more than step out of the hedge and push the complainant away.
The detective gave evidence that he had recorded the following exchange in his notebook:
A.… I said, “Tell me about Christeon Murray.”[2]
[2] The complainant’s full name is Christeon Murray. He is also known as “Kit” and “CJ”.
He said, “Kit was going to beat my partner in the Pyramid Club in Wellesley Street in the city. Because of this we moved out of the city.”
The appellant then asked to speak to his lawyer, which was arranged for him. After speaking to his lawyer he continued with the interview. The detective’s evidence of the interview continued:
A. … “Were you scared of Kit?”
He said, “Yes.”
I said, “What did you do with the knife? Did you use a knife?”
He said, “I did not mean for that to happen. I was in the bush, they saw me, I turned around and went like that.” And he stood up and demonstrated a swing.
Q.Can I just get you to indicate what it is that you’re doing with your right hand.
A.I’ve written in my notebook, “Stands up and demonstrates a swing”. I have not recorded in my notebook the way he demonstrated it. By my recollection now it was a round-house movement with his right arm.
Q.The witness is putting his right arm extended out to right-hand side of his body, moving it around in a forward motion to the front of his body ending up in front of his chest.
A. I then asked, “Whereabouts is the knife?”
He said, “You won’t find it.”
I said, “Where is it?”
He said, “Okay the deck is here,” and then he started drawing on a post-it note and said, “There are ponga logs on the deck, turn the second ponga log and turn it. I put the knife in there.”
At five minutes past one I asked the accused, “Where did you get the knife from?”
He said “They had it.”
I said, “How did you get the knife then?”
He said, “I freaked, I saw the two big island guys, I was sitting next to the fence, he came towards me.”
I said, “Where did you get the knife from?”
He said, “The driveway.”
I said, “Where did you get the knife from to stab Kit from?”
He said, “The only time I hit CJ was when he came towards the bush.”
At eight minutes past one I said, “How many times did you stab him?
He said, “The only time I hit CJ was when he came towards me”.
I said, “Why did you hide the knife in the ponga logs for?”
He said,“Because as soon as I knew what had happened, I was embarrassed, scared, I didn’t know what to do”.
Because of the assumption underlying the detective’s questioning that the appellant had a knife, the appellant’s initial answers are somewhat ambiguous as to whether he accepted he had a knife or not.
However, the appellant then gave a further statement which was recorded on DVD. In it he denied on a number of occasions that he had ever had or used a knife at the scene. He said all he had done was to push the complainant. Even when the detective suggested he might have used the knife in self-defence he again denied that he had it at all:
Q.If it wasn’t self defence and stabbing him where did the knife come from?
A. He’s got it he had to have had it.
Q. And he stabbed himself in the chest?
A.I’m not saying that sir but I’m also not saying that I have come at him with a knife okay everyone congratulated me on stabbing the guy. I didn’t stab the guy. I didn’t have a knife if I do have something to do with this stabbing it would have been only because I pushed the guy away I did not mean for that to happen I was fearing for my own life I was just wanting to get out of there.
The trial and the Judge’s ruling
In his opening statement for the appellant trial counsel submitted to the jury that the appellant did not stab the complainant. He said the appellant did not know how the complainant was stabbed but, however it happened, he did not do it. There was no suggestion in the opening that the appellant used the knife in self-defence.
After counsel had opened the Judge heard argument on the issue of the scope of cross-examination of the complainant. The Crown sought a ruling that the accused not be permitted to cross-examine the complainant on a previous conviction for injuring with intent to injure nor about a charge of manslaughter (which was then still to be heard).
Trial counsel argued that the complainant’s conviction for injuring with intent to injure was relevant because it showed he was a person who might bring a weapon to a confrontation. The summary of facts on that charge suggested the complainant had brought a meat cleaver to the incident. Counsel wanted to lead that evidence (through cross-examination) to support the defence argument that the complainant, rather than the appellant, had brought the knife to the incident.
The Judge noted the appellant had expressly disavowed self-defence in his statement to the police. He said the evidence could only be relevant to the point the complainant was armed and looking for a confrontation. He noted there was evidence the complainant was seeking a confrontation, but nothing to suggest he was armed. Further, he noted there was no evidence to support the theory the complainant was armed and accidentally stabbed himself.
The Judge also saw a number of difficulties with admitting the conviction. First, he noted that the complainant did not accept the summary of facts which suggested he was armed with a meat cleaver. There had been a disputed facts hearing which the Judge was told had been resolved in the complainant’s favour. But no ruling or decision to confirm that was available. The Judge was also told the complainant had applied to set the conviction aside. The Judge was concerned about prejudice to the complainant in that pending application to set aside the conviction.
Ultimately the Judge directed that the complainant was not to be cross‑examined on the conviction for injuring with intent to injure. The Judge also recorded that there could not be any remote connection to the facts in issue arising out of the manslaughter charge and directed there was to be no reference made to it.
The appeal
Mr Lawry submitted that evidence the complainant had taken and used a meat cleaver in a previous confrontation was relevant to an issue before the jury, namely whether the appellant or the complainant had the knife and, as such, was properly admissible pursuant to s 7 of the Evidence Act 2006, so that it was unfair to prevent the defence from exploring the issue.
In his written submissions Mr Lawry also submitted that the Judge was wrong to suggest that one reason for ruling the appellant was not to cross-examine the complainant on this issue was that it would be prejudicial to the complainant.
Mr Lawry conceded that, while self-defence had not been advanced as a defence, the Judge had addressed it in his summing up and again in response to a jury question. He submitted that the evidence of the conviction was relevant to the issue of self-defence.
Decision
Evidence of the fact the complainant had been convicted of the offence of injuring with intent to injure would, if not excluded by other provisions of the Act, be admissible under s 49(1) of the Evidence Act.
The conviction would, however, be inadmissible if it was irrelevant: s 7(2). The decision on that is informed by whether or not the evidence of the conviction had a tendency to prove or disprove anything of consequence to the determination of the proceeding. As this Court said in R v Farquhar,[3] a pre Evidence Act case:
The key question to be answered is how is evidence of the complainant’s previous convictions relevant to the case in question.
[3] R v Farquhar CA4/06, 20 March 2006 at [16].
At the outset of the appeal, Mr Lawry confirmed that the appellant accepted he had instructed his trial counsel that:
(a)he had not stabbed the complainant;
(b)he had never had the knife (until after the incident); and
(c)he had not grabbed the knife off anyone else.
Those instructions were consistent with the appellant’s DVD interview.
If the appellant’s defence at trial was self-defence and if there was a proper evidentiary basis for an argument that the appellant knew the complainant had been involved in violent incidents in the past then the fact of the conviction could be admissible to provide a reason for the appellant arming himself with a knife to provide some defence against the complainant. The conviction could also be relevant and admissible if the appellant said that the complainant had the knife and that he had got it off him during the tussle. However, the appellant disavowed those scenarios in his interview. He could not explain how the complainant was stabbed.
The difficulty for the appellant is that on the state of the evidence before the Judge at the time of the ruling, there was no evidentiary basis to support the proposition the complainant had brought the knife to the incident. As an evidentiary ruling, it could have been revisited during trial if the circumstances changed in light of the further evidence given at trial.
We note the Judge reserved the appellant’s right to cross-examine the complainant as to whether he or someone else had the knife. Despite that, the complainant was not cross-examined about it.
On the appellant’s case the complainant must either have been stabbed by someone else or must have had the knife and somehow, when the appellant pushed the complainant away, the complainant must have effectively stabbed himself. But there is no suggestion in the appellant’s statement that the complainant had a knife, nor that the complainant fell forwards and onto the knife. The appellant’s description of pushing the complainant actually contradicts that proposition.
In the absence of any evidentiary basis the mere fact that the complainant had a conviction for injuring with intent to injure was not relevant to anything of consequence in the proceeding.
Further, as the evidence emerged at trial on this issue, it supported the Crown case that the appellant had the knife. Apart from the evidence of the complainant and the appellant’s statement to the police the best evidence was from Ms Collins, who observed the incident. She described the tussle between the complainant and the appellant:
A.Okay, so I saw CJ. I think Eddie was next to CJ like almost watching, I can’t quite remember, I saw CJ and Sharn. I saw CJ pushing Sharn and, um, I saw him. I don’t know how you say it like hitting fists Sharn all over.
Q.What do you mean by that?
A.Well as I said it was quite dark, but what I did see is CJ with his fists, um, I don’t know how, both hands punching Sharn over his body.
Q.What was Sharn doing?
A.More in a crouched position try and get him off him and there was a lot of motion back and forth.
...
Q. Well according to you CJ’s punching?
A. Yeah.
Q. How was CJ punching and how many punches?
A.Like three or four, there was a lot of pushing and shoving, I could see Sharn trying to get him, trying to get CJ off him, um, so I saw Sharn fall to the ground a couple of times.
Q.What did Sharn do next?
A.Then as Sharn got back up um, I saw Sharn with his right hand um, take almost like a swing at CJ.
Q.What do you mean, “Take a swing”?
A.In an arm movement like a swing. I can’t –
Q.You can demonstrate if you want.
A.Like a swing, a a swing like that.
Q.Witness is using her right arm, your fist is sort of horizontal?
A.Yeah.
Q.And going from her right shoulder around in front of her body. What else did you notice?
A.Sorry, maybe directly that way, sorry. Directly towards the ground, like, it’s a bit hard for me you know so um to explain.
Q.Who was it directed at?
A.CJ.
Q.Did you see anything else?
A.Just a silver looking blade, end of a knife.
Q.What happened next?
A.CJ fell to the ground um, and like in a foetal position then Sharn disappeared.
The clear impression the jury would be left with from that evidence is that, while the complainant may have been the initial aggressor, he was using his fists and it was the appellant who had the knife.
There is a further difficulty. Proof of the fact of the conviction itself would not have greatly assisted the appellant. It is essentially the circumstances of the conviction, namely that the complainant had allegedly brought a meat cleaver to an incident, which was potentially relevant. But those facts were not accepted. The complainant would have denied it. If evidence had been led about those circumstances, there was a major risk of a collateral and distracting inquiry in the course of the appellant’s trial. Such an inquiry in what otherwise was a relatively straightforward case had the potential to have an unfairly prejudicial effect on the proceeding: s 8(1)(a) of the Evidence Act. The assessment of the risk of unfair prejudice under s 8 must take into account the interest of the prosecution as well as the defence: Wi v R.[4]
[4] Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [20].
Finally we note Mr Lawry’s submission that the appellant is concerned he was told by trial counsel he could not pursue self-defence. On the basis of his own statement and instructions to his trial counsel, it would have been difficult. However, no issue can arise out of that in any event because the Judge took the initiative and put self-defence to the jury.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent