Ellis v The Queen - [2013] NZCA 301

IN THE COURT OF APPEAL OF NEW ZEALAND

CA423/2012
[2013] NZCA 301

BETWEEN	AARON PATRICK JOHN ELLIS Appellant
AND	THE QUEEN Respondent

Hearing:	18 June 2013
Court:	Wild, Miller and MacKenzie JJ
Counsel:	C J Tennet for Appellant H W Ebersohn for Respondent
Judgment:	12 July 2013 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by MacKenzie J)

Background

The appellant stood trial before Judge Morris and jury in the District Court at Palmerston North in June 2012 on three charges of breach of a protection order. He was convicted on two charges and acquitted on the third. He appeals against conviction.
The Crown case was that the appellant had been in a relationship with Ms R which she had terminated in January 2010. There had, during the course of the relationship, been a final protection order made, in April 2005, which had been served on the appellant. The three charges related to that order. The first count on which the appellant was convicted related to a series of text messages and phone calls between January and March 2010. The second count related to a hearing in the Palmerston North Family Court on 27 May 2010 where both the appellant and Ms R were present, at a hearing concerning the couple’s children. The Crown case was that during the course of the hearing the appellant made insulting and derogatory comments directed at Ms R.
The trial commenced on 18 June 2012. The Crown case occupied the first week. The appellant gave evidence which occupied a full day, Monday 25 June. Following closings and summing up on 26 June the jury returned verdicts on 27 June. Following the verdicts the Judge convicted the appellant and ordered him to come up for sentence if called upon.[1]

The grounds of appeal

[1]R v Ellis DC Palmerston North CRI-2010-031-162, 27 June 2012.

The grounds of appeal, as set out by Mr Tennet in his submissions, are as follows:
(a)radical error by trial counsel leading to a miscarriage of justice;
(b)there were misdirections in summing up in that the burden of proof direction did not follow the script in R v Wanhalla and there was no tripartite direction in respect of the appellant’s evidence;[2]
(c)the direction on inferences was wrong;
(d)a propensity evidence direction was needed but none was given; and
(e)the verdict on the count relating to the incident in the Family Court was unreasonable because:
(i)there are public policy reasons for holding that conduct in Court cannot constitute a breach; and
(ii)the fact the comments were made in Court amounted to a reasonable excuse.

Counsel error

[2]R v Wanhalla [2007] 2 NZLR 573 (CA).

The appellant was represented at trial by Mr Hewson. At an earlier stage, Mr Becker had acted for him. The appellant initially raised allegations against both Mr Becker and Mr Hewson. At a telephone conference before Randerson J on 21 May 2013, Randerson J recorded that the appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ellis v The Queen

Details

AGLC: Ellis v The Queen [2013] NZCA 301
Case: [2013] NZCA 301
Decision Date: 12 July 2013 at 11.30 am

CaseChat Overview and Summary

In the case of Ellis v The Queen, the appellant was convicted of breaching a domestic violence protection order and the matter was brought on appeal. The High Court was tasked with assessing whether the trial judge had provided a proper direction to the jury regarding the evidence presented by the defence, inferences drawn from the facts, and the appellant's propensity for past behaviour towards the complainant. The central legal issue before the court was whether the trial judge's directions to the jury were adequate and whether any errors amounted to a misdirection that could have affected the outcome of the trial.

The court found that the trial judge's direction regarding the effect of defence evidence was appropriate and did not result in a misdirection. The judge had explained that the jury needed to be satisfied beyond reasonable doubt of the appellant's guilt after considering all the evidence, including that presented by the defence. The court held that the judge's explanation, along with the question trail provided, was sufficient to prevent the jury from engaging in inappropriate reasoning that might lead to a wrongful conviction. The court also determined that the judge's explanation of inferences was adequate, despite not using the term "fair." The judge's use of an example not directly drawn from the case facts was not deemed problematic, as the focus should be on whether the explanation was adequate rather than the specific wording.

Furthermore, the court concluded that the absence of a propensity direction regarding the appellant's past behaviour did not constitute a misdirection. The court found that the trial judge's directions were comprehensive and appropriately guided the jury in their deliberations. The court determined that the jury had been properly instructed and that no misdirection had occurred that would warrant a new trial. The appeal was thus dismissed, upholding the conviction of the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Judge said:[11][16] Well what of the fact that the defence called evidence, that Mr Ellis gave evidence? As I said that does not alter the fact that the Crown must prove the breach of the protection order beyond reasonable doubt, it is simply more evidence that you put into the mix in determining if the Crown has proved that breach. If you are sure of the offence, the breach has been proved, having heard all the evidence including the defence evidence, then you would find Mr Ellis guilty subject to the defence I will talk to you about in a moment. If taking into account all the evidence you accept, from both the Crown case and Mr Ellis’ evidence, you are left unsure then you must acquit.[11]R v Ellis, above n 9. Again, the form in which the direction about defence evidence is commonly given is not a script which must be followed and not departed from. The Judge’s task is to explain the possible effect of defence evidence in a way which ensures that there is no risk of inappropriate reasoning on the part of the jury.[12] As Mr Ebersohn for the Crown submits, a question trail can be an aid to reducing the risk of impermissible reasoning, in that working through a question trail would counter any tendency of the jury to leap to a conclusion of guilt if they rejected defence evidence. We consider that the Judge’s direction, in the context of the summing up as a whole and of the question trail, was appropriate to ensure that there was no risk of impermissible reasoning such as might lead to a miscarriage of justice. There was no misdirection as asserted. The third claimed misdirection is as to inferences. The first complaint is that the Judge described inferences as “… not guesses, they are logical reasonable conclusions from what you find proved.”[13] Mr Tennet submits that the word “fair” should also have been used. The second complaint is that it would have been of assistance for the Judge to identify where inferences need to be drawn, such as what inference there might be that the appellant knew that there was a protection order in force. He submits that would have been preferable to using an example not drawn from the facts of the case, as the Judge did here.[13]R v Ellis, above n 9, at [37]. We are satisfied that neither of these complaints gives rise to a misdirection. While the phrase “fair, logical and reasonable conclusions” is commonly used to describe inferences, there is again no script which must be followed. The Judge’s task is to explain the concept to the jury, and the focus must be on whether there was an adequate explanation, rather than on the precise words used in giving the explanation. While judgments of this Court encourage the use of examples drawn from the facts of the particular case in describing inferences, it is still not uncommon for judges to use examples not drawn from the facts. The fourth alleged misdirection is that no propensity direction was given in respect of the appellant’s past behaviour to the complainant. That past behaviour, which the Crown put forward as a campaign of intimidation and harassment, was relied on to support the proposition that the appellant’s comments in the Family Court were intended to harass or intimidate and to establish that the appellant had no defence of a reasonable excuse.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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