Fox v The Queen

[2004] NZCA 194

IN THE COURT OF APPEAL OF NEW ZEALAND

CA47/04

THE QUEEN

v

OLIVIA FOX

Hearing:3 August 2004

Coram:McGrath J
Glazebrook J
O'Regan J

Appearances:  W C Pyke for Appellant

J C Pike for Crown

Judgment:23 August 2004 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]       Ms Fox was convicted after a jury found her guilty of one count of injuring with intent to injure. She was acquitted on another count of assaulting the same complainant in an initial fracas that occurred outside a nightclub in Thames. The injuring offence happened later in the evening, some distance away from the nightclub and involved the complainant being struck by a bottle.

[2]       Ms Fox appeals against her conviction on two grounds. The first is that Judge Wolff’s directions on her trial counsel’s submissions on identification gave rise to a miscarriage of justice or, alternatively, that trial counsel’s submissions on identification amounted to radical counsel error. The second is that the conduct of defence counsel during the trial was likely to have been met by jury disapproval to the prejudice of Ms Fox, particularly in light of criticisms of defence counsel made by Judge Wolff.

Background facts

[3]       As indicated, the trial related to two incidents in the township of Thames. Ms Fox’s conviction arose out of the second incident. The complainant’s evidence was that she was walking down a street some distance away from the nightclub, when Ms Fox pulled up in a car, got out, walked up to her, pulled a bottle from behind her back and struck her with it under the eye socket.

[4]       In her statement to police, and in evidence at trial, Ms Fox admitted that she had a bottle while fighting with the complainant but denied striking her with it.

[5]       A friend of the complainant, Ms Tania Lyon, testified that four people emerged from the car, a male and three females. She heard a verbal exchange and then turned away. When she turned back she saw the complainant and Ms Fox on the ground with her husband, Mr David Lyon, standing on Ms Fox’s wrist. Ms Fox was holding a bottle. Mr Lyon recounted taking a bottle out of Ms Fox’s hand and placing it in a police car. He testified that he saw Ms Fox attempt to strike the complainant but says that he did not see the bottle connect. Nor did he see Ms Fox carrying a bottle when she walked over from the car. Another witness saw the complainant being struck with the bottle but could not identify which of the two girls that she saw was the perpetrator.

[6]       A friend of Ms Fox, Ms Samantha Watene, was called by the defence. Ms Watene testified that she walked up to the complainant with Ms Fox close behind her and started talking to the complainant. The next thing she saw was that Ms Fox and the complainant were wrestling on the ground. Ms Fox was on the ground with the complainant on top of her. Ms Watene also said that she saw a bottle in Ms Fox’s hand, which was kicked out of her hand by a man. She did not see anyone strike the complainant with a bottle. In answer to a question from the Crown prosecutor, Ms Watene said that she did not strike the complainant with a bottle.

Judge’s summing up

[7]       The passage complained of in the Judge’s summing up in relation to the first ground of appeal is as follows:

Counsel, Mr Cooke, has said to you what he describes as conjecture as to an explanation. Counsel’s conjecture or counsel’s opinions are not evidence and you must base this case, as I have said to you earlier, on the evidence that you have heard in this case. His conjecture, which appears to be to accuse the defence witness Samantha Watene of being the offender, and therefore she is lying in order to protect herself is not supported by any evidence in this case. Samantha was available to give evidence. She was not asked about this. She was not given the opportunity of explaining her position. Counsel’s conjecture is not evidence and none of the things that he said in relation to that are in any way supported by the evidence.

[8]       The Judge also made a number of other criticisms of trial counsel in his summing up, referring to issues that had arisen during the trial and which now form the basis of the second ground of appeal. The Judge, for example, dealt with the character evidence that had been called. During the course of the trial, the Judge had criticised Ms Fox’s counsel for allowing the character witness to go outside the proper scope of character evidence by expressing an opinion about the honesty of Ms Fox. The Judge said in his summing up that this evidence should not have been led and that it was irrelevant as it was the jury’s task to decide on the credibility of Ms Fox. The Judge also said that counsel had suggested in the course of his closing address that the jury should place some weight on the consequences of this case for Ms Fox. The Judge noted that that was entirely inappropriate as the jury’s task was to decide on the facts of the case and the facts alone. The Judge then made the following comments:

I am really concerned that I have had to mention in sequence here two or three matters where I am apparently criticising counsel and it has happened during the course of the trial. As I indicated to you, it is my job to ensure that the evidence that goes before you and the matters that go before you are in accordance with the legal requirements. It would be quite wrong to draw any inference adverse to the accused because I have ensured that the evidence remains relevant and admissible. Remember that we are not trying either counsel here. We are trying the accused, and the importance is to concentrate on the relevant issues that affect the accused and I do not want for one moment for anyone to think that by preventing improper material getting before you or commenting on it that in any way I am expressing any view at all about the accused. There are important matters that have been raised in this case, such as identification and so on, that you must consider carefully. Make sure, and I say this because I noticed yesterday that some of you were finding the cross-examination of some of the witnesses somewhat tedious and were getting a little bit agitated by it. Remember it is counsel’s job to test the evidence. It is the accused that is on trial and you should not be in any way influenced by the way counsel have conducted the case. I am sorry that I have had to put it in that way, but it is very important in light of the three criticisms in a row that I have just made.

[9]       After the jury retired the Judge recorded a minute in the following terms:

In the course of this summing up, because of the way this case has proceeded and because there have been a number of occasions when I have had to address matters of irrelevance, inadmissibility and the like, I had included the comments that I made concerning the concentration on the case of the accused rather than the performance of counsel. I do so with some reluctance, but the number of occasions on which there appeared to have been a misunderstanding of the laws of evidence and improper material being tendered was such that I felt that it was appropriate to do so.

Ms Fox’s affidavit

[10]     Ms Fox filed an affidavit for this appeal. In that affidavit she says that she left the manner of presentation of her case entirely to her trial counsel to determine. She cannot precisely recall what her counsel said about Ms Samantha Watene when he addressed the jury but she says that it was not her intention and not her instructions to shift the blame for an act that she had allegedly done onto a friend and whanau member. She expresses the concern that the Judge, having found it necessary to criticise the submission by her counsel, effectively took away any question as to identification from the jury, an issue critical to her defence.

[11]     She also expresses her concern in the affidavit that the Judge’s many interruptions and criticisms of her counsel during the trial and in the summing up prejudiced her defence. She notes that, whenever the Judge found it necessary to speak to her then counsel, it was clear from the Judge’s tone that he was annoyed with him.

Affidavit of trial counsel

[12]     The Court also had before it an affidavit from Ms Fox’s trial counsel. He says that there was never any intention to place the responsibility for the injuries sustained by the complainant on the defence witness, Ms Watene. Ms Watene’s evidence was essentially limited to the fact that she did not see Ms Fox strike the complainant with a bottle. He deposes that, in making passing references to Samantha Watene in his closing address, the sole purpose was to demonstrate that the person responsible for the complainant’s injuries could not be established beyond a reasonable doubt. There was no attempt or intention to impeach a defence witness and to place the blame on Ms Watene. The comments he made were in accordance with the instructions of Ms Fox who had always denied responsibility for causing injury to the complainant.

[13]     With regard to the Judge’s criticism relating to the character witness, trial counsel deposed that he asked a general question of the character witness and did not anticipate that the answer given would include an assertion as to the character witness believing Ms Fox. He notes that counsel cannot always predict how a witness may respond to a question. In terms of the comments made by the Judge as to tedious cross examination, trial counsel observes that the trial Judge reminded the jury that it was the role of counsel to test the evidence. He notes that, in cases which stand or fall on the correctness or otherwise of identification evidence, cross examination can at times become lengthy.

Submissions of the parties

[14]     On the identification issue, Mr Pyke, on behalf of Ms Fox, submitted that the trial Judge’s criticism of trial counsel’s submission about Ms Watene’s role effectively negated the usual cautions that were given in relation to the visual identification of the accused. In any event, the criticism was not accurate as Ms Watene had in fact been asked by Crown counsel whether she had hit the complainant with a bottle and had denied it. She had, therefore, been given an opportunity to answer the allegation that she was the perpetrator. It was accepted, however, that it was not open to defence counsel to suggest that Ms Watene was responsible without an adequate evidential foundation and that there was no such evidential foundation.

[15]     It was noted that it was uncertain what had actually occurred at trial. If trial counsel had impeached his own witness then this, it was submitted, was radical trial counsel error. The jury would likely have seen this attempt to shift the blame to a friend as deceitful and there would be a real risk that the jury would reject Ms Fox’s evidence out of hand and give little weight to the other submissions regarding the inadequacy of the identification evidence as a result.

[16]     In Mr Pyke’s submission, it would have been possible for defence counsel to submit that, if the jury accepted that the complainant was struck with a bottle, there might be still reasonable doubt as to the identity of the person who struck her,  on the basis of the possibility that the complainant mixed up the two possible assailants, Ms Watene and Ms Fox (and Mr Pyke accepted that these were the only two possible assailants). If all trial counsel had done was to make a submission in these terms, then it was submitted that the trial Judge’s comments were inappropriate.

[17]     With regard to the second ground of appeal, Mr Pyke pointed us to a number of interventions, directions and comments by the trial Judge and defence counsel’s responses that might have had a prejudicial effect on the defence. While Mr Pyke conceded that many of the interruptions were justified he submitted that the manner of correction worked against Ms Fox. In Mr Pyke’s submission, the criticisms of defence counsel went beyond technical matters. It was therefore submitted that the conduct of defence counsel throughout the trial and the criticisms this conduct attracted from the trial Judge have given rise to a miscarriage of justice. This is because the jury must be taken, despite the trial Judge’s attempts in his summing up at curing the prejudice he perceived to be present, to have concluded that some of defence counsel’s conduct was in accordance with Ms Fox’s instructions.

[18]     In the Crown’s submission the defence in relation to the injuring count was identification but only in the sense that Ms Fox said that it could not be proved that she struck the complainant with the bottle, if that event in fact occurred. She had admitted fighting at the scene and having a bottle in her hand. It was submitted further that this was not a case where instructions had been given but then departed from. It was rather a case of counsel exploiting, with the unfortunate consequence that judicial disapproval was publicly expressed, a perceived opportunity to suggest that the blame lay elsewhere, a submission that ought not to have been made without a proper evidential foundation. Mr Pike, for the Crown, pointed out that Ms Fox had testified at trial and she had said nothing to suggest that the blame could be placed on Ms Watene. It was submitted that the direction given by the Judge was entirely proper.

[19]     On the second ground of appeal, it was submitted that there was nothing in the record that would sustain a submission from Ms Fox that the integrity of the trial process may have been adversely affected by trial counsel’s conduct or the Judge’s interruptions. This is backed up, in the Crown submission, by the fact that the jury acquitted her of the assault charge and  there is no suggestion that the jury was improperly influenced by prejudice. In addition, Mr Pike submitted that the case was in fact a very strong one and there could be no suggestion that there had been a miscarriage of justice.

Discussion

[20]     With regard to the first ground of appeal, we agree that there is some uncertainty as to what counsel said that led to the comment complained of in the summing up. We accept the Crown submission, however, that it does not matter either way. If trial counsel did impeach his own witness, then this would have been improper and the Judge’s direction unexceptional. Even if the approach by trial counsel had been the gentle approach suggested by Mr Pyke, it would still have involved suggesting that Ms Watene might have been responsible for the attack, given there were only two possible contenders. This suggestion would have been without an evidential foundation and the Judge’s comments would still have been justified.

[21]     We also accept the Crown’s submission that this is not a case where Ms Fox’s trial counsel acted against instructions. His instructions were of a general nature and were undertaken in the context of a case where the Crown case was a very strong one and where Mr Pyke concedes that there were only two possible assailants, Ms Fox and Ms Watene. In these circumstances we do not consider either that, whatever approach trial counsel took, there has been radical counsel error. This ground of appeal must fail.

[22]     With regard to the second ground of appeal, if there had been any prejudice arising from trial counsel’s conduct during the trial and the interventions by the Judge (and we are by no means convinced by our perusal of the record that any prejudice would have arisen), it was quite clearly dealt with by the Judge in his summing up. This ground must also fail.

Result

[23]     Ms Fox’s appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington