Flavell v The Queen
[2015] NZCA 336
•28 July 2015 at 10.15 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA744/2014 [2015] NZCA 336 |
| BETWEEN | SONNY WIREMU FLAVELL |
| AND | THE QUEEN |
| Hearing: | 23 July 2015 |
Court: | Stevens, Heath and Collins JJ |
Counsel: | A G Speed for Appellant |
Judgment: | 28 July 2015 at 10.15 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against conviction for breaching a protection order is allowed and the conviction is quashed.
CThe appeal against conviction for injuring with intent to injure is dismissed.
DThe appeal against sentence is allowed. The sentence of two years and three months’ imprisonment is quashed and substituted with a sentence of two years’ imprisonment.
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REASONS OF THE COURT
(Given by Collins J)
Introduction
Following a jury trial in the Auckland District Court Mr Flavell was convicted on two charges, namely:
(a)injuring with intent to injure (the injuring charge);[1] and
(b)breach of a protection order (the protection order charge).[2]
[1]Crimes Act 1961, s 189(2).
[2]Domestic Violence Act 1995, s 19.
The jury acquitted Mr Flavell on one charge of male assaults female.[3] Mr Flavell was sentenced to two years and three months’ imprisonment on the injuring charge and 18 months’ imprisonment on the protection order charge.[4] The sentences are concurrent.
[3]Crimes Act, s 194(b).
[4]R v Flavell DC Auckland CRI-2013-004-10738, 18 September 2014 [sentencing notes].
Mr Flavell has applied to appeal out of time his convictions on two grounds, namely:
(a)that the protection order charge was wrong in law and should never have been before the jury; and
(b)the evidence relating to the protection order charge was so prejudicial to the injuring charge, that Mr Flavell suffered a miscarriage of justice in relation to that conviction.
The Crown properly raises no objection to Mr Flavell’s appeal being pursued out of time. Mr Flavell’s appeal raises issues that require consideration by this Court and we therefore grant leave to appeal.
Background
In 2000 a protection order was issued against Mr Flavell in favour of his former partner. At that time, the protection order extended to Mr Flavell’s son, Taylor Flavell, who was then living with his former partner. The protection order contained standard conditions, including the requirement Mr Flavell not physically abuse her or Taylor Flavell.
Under s 16(1A) of the Domestic Violence Act 1995, a protection order ceases to apply to a child of the person in whose favour an order is made once the child turns 17 and if he or she is no longer “ordinarily or periodically” residing with the person who has been granted the protection order.
As at 21 September 2013, Taylor Flavell had turned 20 and was living with his partner at an address in Mt Roskill. Mr Flavell’s former partner lived at her home a short distance from where Taylor Flavell and his partner lived. Mr Flavell lived at another address, also near where Taylor Flavell and his partner lived.
On the evening of 21 September 2013 Taylor Flavell and his partner hosted a barbecue at their place. Mr Flavell and his former partner were guests. Alcohol was consumed. At some point a dispute broke out between her and Mr Flavell. It would appear she became aggressive. She was escorted from the property by Taylor Flavell. Thereafter, Mr Flavell and Taylor Flavell began to fight. Mr Flavell left his son’s property and went to his home. Some time later Mr Flavell returned to Taylor Flavell’s place. Crown witnesses said Mr Flavell brought a cricket bat with him. Mr Flavell accepts he took possession of a cricket bat, but says it was already at Taylor Flavell’s place.
Mr Flavell and Taylor Flavell resumed their fight. Mr Flavell claimed he was acting in self-defence and that he used the cricket bat only after Taylor Flavell swung a machete at him. Mr Flavell struck Taylor Flavell on his knees with the cricket bat. The pair continued fighting until others intervened. It was alleged at some point Mr Flavell also punched Taylor Flavell’s partner, which resulted in Mr Flavell facing a charge of male assaults female. He was ultimately acquitted of that charge.
Taylor Flavell, Mr Flavell, and the officer in charge of the investigation gave evidence about the protection order.
Taylor Flavell’s evidence was:
Q.Taylor, I understand you’ve got a protection order against your father. Do you recognise that document?
WITNESS REFERS TO EXHIBIT 4
A. Um, suppose so, yeah.
Q. And is it your understanding that that is the case?
A.Well, I think it was from my mother had put it on when I was younger, yeah.
Q.If you can turn to that document in front of you, and look at the conditions under 1(a), which is on the very next page, the second page. Can you just read out to the Court 1(a), 1(b) and 1(c) please?
A.“The respondent and any associated respondent must not physically or sexually abuse any protected person or threaten to physically or sexually abuse and protected person, or damage or threaten to damage property of any particular person.”
Q.Thank you. If you can just turn to the last page which should be –there’s a stamp on it, there’s a few pages there – the third page is the easiest way to refer to it. Can you read the date at that bottom of that page please?
A.23 November 2000.
Q.And if you just go back to that front page, can you see your name listed on the bottom of that page as a protected person?
A.Yup.
The officer in charge, Constable Bhosale’s evidence was:
Q.We’ve previously had in evidence the fact that there was a protection order against Mr Sonny Flavell which was laid by his [former partner] and also covered the son. If the witness could be referred to the protection order.
WITNESS REFERRED TO PROTECTION ORDER
Q. And this will be produced as Crown exhibit 4.
A.Produce that as exhibit.
EXHIBIT 4 PRODUCED – PROTECTION ORDER
Q.And officer, if you could just refer to the last page of that protection order, and does that indicate that the protection order was served on Sonny Flavell?
A.Yeah it indicates that it was served on Sonny Flavell by a Court bailiff.
Mr Flavell’s evidence was:
Q. Mr Flavell, do you recognise that protection order?
WITNESS REFERS TO EXHIBIT 4
A. Yes.
Q. And are you aware of the contents of that order?
A. Ah, yes.
The Crown properly accepts Mr Flavell should not have been convicted of the protection order charge. It is clear the terms of the protection order no longer applied to Taylor Flavell at the time of Mr Flavell’s alleged offending. This should have been appreciated before trial.
The Crown also accepts the protection order was not relevant to the injuring charge until Mr Flavell elected to give evidence and put his veracity in issue. Thus, the present case is distinguishable from cases in which evidence of a protection order was directly relevant to related violence charges.[5]
Trial issues
[5]Derrick v R [2011] NZCA 163 at [27]–[28]; Gash v R [2013] NZCA 309 [12]–[13].
There were three issues at trial. First, whether Mr Flavell intentionally struck Taylor Flavell with the cricket bat. Second, whether Mr Flavell was acting in self-defence when he struck Taylor Flavell with the cricket bat. Third, whether Mr Flavell intentionally struck Taylor Flavell’s partner.
The evidence relating to the protection order charge and the injuring charge was essentially the same. Both charges were dependent on the jury being satisfied Mr Flavell intentionally struck Taylor Flavell with the cricket bat and that when he did so, he was not acting in self-defence.
The Crown in its closing emphasised to the jury the need to pay careful attention as to when Mr Flavell took possession of the cricket bat. When cross‑examined, Mr Flavell confirmed he had the cricket bat in his hands before Taylor Flavell picked up the machete.
In summing-up, Judge Ronayne provided the jury with three question trails, which clearly set out the issues that the jury needed to consider. The first question trail concerned the injuring charge, the second question trail concerned the male assaults female charge and the third question trail concerned the protection order charge.
Judge Ronayne did not specifically warn the jury to treat the trial as three separate trials. While a direction to that effect would have been highly desirable, the failure to do so did not cause a miscarriage of justice in the circumstances of this case because the question trails clearly differentiated between the three charges and identified the factual issues the jury needed to consider in relation to each charge.
Appeal issues
The issue on the conviction appeal in this case is whether the existence of the protection order charge and the evidence relating to that charge led to a miscarriage of justice in relation to the injuring charge.
There are two aspects to this inquiry.
First, the evidence relating to the breach of the protection order charge was the same evidence as that which related to the injuring charge. Both charges were dependent on the jury accepting Mr Flavell intentionally struck Taylor Flavell with the cricket bat and that he was not acting in self-defence when he did so. In this respect, the evidence relating to the alleged breach of the protection order could not have caused a miscarriage of justice in relation to the injuring charge, merely by virtue of its relevance at trial.
The second aspect of the inquiry focuses on whether the fact the jury were told of the protection order by itself caused a miscarriage of justice in relation to the injuring charge.
Under s 232(2)(c) of the Criminal Procedure Act 2011, Mr Flavell’s appeal must be allowed if we are satisfied “a miscarriage of justice has occurred for any reason”. “Miscarriage of justice” includes any error, irregularity or occurrence that “has created a real risk that the outcome of the trial was affected” or has “resulted in an unfair trial”.[6]
[6]Criminal Procedure Act 2011, s 232(4)(a)–(b). See McAllister [2014] NZCA 175, [2014] 1 NZLR 764, describing the test under s 232 and confirming at [38] that not every error will give rise to a miscarriage of justice.
Assessing whether a miscarriage of justice has occurred involves a careful evaluation of the significance of any established error or irregularity within the context of the trial.
In the present case, the jury were told that the violence perpetrated by Mr Flavell on the evening of 21 September 2013 occurred in the context of a family gathering. There was evidence of Mr Flavell arguing with his former partner and evidence of Mr Flavell punching Taylor Flavell’s partner, although the jury did not convict Mr Flavell in relation to that matter. The context of the offending was a family gathering that degenerated into disputes between Mr Flavell and his former partner and his son.
The evidence about the protection order is likely to have been prejudicial to Mr Flavell as it may have led the jury to think he was a person who had the capacity to be violent towards members of his family.
In the circumstances of this case, however, we are not persuaded that a miscarriage of justice occurred. Our reasons for reaching this conclusion can be succinctly stated.
First, Mr Flavell admitted he intentionally struck Taylor Flavell with the cricket bat.
Second, the jury were entitled to be satisfied Mr Flavell was not acting in self-defence once he accepted at trial that Taylor Flavell picked up the machete only after Mr Flavell had armed himself with a cricket bat.
Third, Mr Flavell’s claim he was acting in self-defence was undermined by his admission in cross-examination that when he returned to the barbecue he spoke in an aggressive manner to Taylor Flavell and his partner.
Fourth, the fact the jury acquitted Mr Flavell of assaulting Taylor Flavell’s partner strongly suggests the jury were not prejudicially disposed towards Mr Flavell’s case. The jury must have had a reasonable doubt about the Crown’s theory that Mr Flavell intentionally punched Taylor Flavell’s partner.
Fifth, once Mr Flavell elected to give evidence and put in issue his veracity, the evidence of the protection order would in all likelihood have been admissible, had the point been considered as a discrete evidential issue.
Sixth, the sequence of the charges and question trails meant that the jury logically working through the charges would most likely have convicted Mr Flavell on the injuring charge without reference to the protection order charge.[7]
[7]Set out above at [19].
In these circumstances, we are satisfied there was no real risk the presence of the protection order charge affected the jury’s verdict on the injuring charge. There was no miscarriage of justice. While Mr Flavell’s conviction for breaching the protection order must be quashed, his conviction for injuring with intent is upheld.
Sentence appeal
When sentencing Mr Flavell, Judge Ronayne adopted a starting point of two years and six months’ imprisonment in relation to the injuring charge.[8] Although it is not entirely clear, there appears to have been an element of uplift in that starting point to reflect the breach of protection order conviction.
[8]Sentencing notes, above n 4, at [24].
Section 236 of the Criminal Procedure Act confers upon this Court a broad discretion to ensure the sentence for the relevant conviction, here the injuring charge, accurately reflects Mr Flavell’s culpability. Section 236(2)(b) enables us to substitute any sentence with one that is allowed by law.[9]
[9]See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] onwards, discussing the test for second leave to appeal against sentence under s 250. The wording is similar to first appeals against sentence and confirmed the approach to the substantive inquiry has not materially altered under the Criminal Procedure Act.
Mr Flavell accumulated 60 previous convictions for various offences between 1979 and 2001. Those convictions include seven previous convictions for contravening a protection order. We have examined for ourselves the pre-sentence report and the letters of support for Mr Flavell. His former partner explained she is an experienced social worker specialising in women’s health. She wrote in very positive terms about Mr Flavell and provided an assurance Mr Flavell had never been violent towards Taylor Flavell prior to 21 September 2013.
We are concerned, however, that the injuries inflicted to Taylor Flavell were serious and caused ongoing trauma for him. We consider the starting point should be adjusted, to reflect our decision on the conviction in respect of the protection order.
We have concluded the appropriate course is to quash the sentence of two years and three months’ imprisonment and substitute a sentence of two years’ imprisonment.
Result
The application for extension of time to appeal is granted.
The appeal against conviction in relation to the protection order charge is allowed and the conviction is quashed.
The appeal against conviction for the injuring charge is dismissed.
The appeal against sentence is allowed. The sentence of two years and three months’ imprisonment imposed in the District Court is substituted with a sentence of two years’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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