Glass v The Queen
[2011] NZCA 432
•31 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA851/2010 [2011] NZCA 432 |
| BETWEEN SHANNON STANLEY DAVID GLASS |
| AND THE QUEEN |
| Hearing: 24 August 2011 |
| Court: Harrison, Ronald Young and Venning JJ |
| Counsel: H T Young for the Appellant |
| Judgment: 31 August 2011 at 2.30 pm |
JUDGMENT OF THE COURT
Appeal dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Shannon Glass was found guilty at a trial before a Judge and jury in the High Court at Invercargill in November 2010 on one count of wounding with intent to cause grievous bodily harm. He was convicted and sentenced to three years imprisonment.[1]
[1] R v McCulloch HC Invercargill CRI-2009-025-4683, 3 December 2010.
Mr Glass has appealed against both his conviction and sentence. However, his counsel, Mr Young, advises that Mr Glass does not intend to pursue the sentence appeal.
Background
The relevant facts are undisputed and uncomplicated.
One evening in November 2009 Mr Glass was drinking alcohol with a group of four teenagers at his house in Invercargill. Mr Glass was then aged 33 years. His companions were Messrs Evans-Kent and Watkins, who were both aged 15 years, and Messrs Maloney and McCulloch, who were aged 17 and 19 years respectively. Also present was the mother of a friend of the four young men.
During the evening, while in Mr Glass’ presence, the young men resolved to visit an address in Invercargill occupied by a 19 year old man, Riley McKee. Mr McKee suffers from a rare genetic condition, which causes cardiovascular disease and developmental delays, and an associated intellectual disability. Their intention was to use violence against Mr McKee as retribution for allegedly informing upon them to the police. Also, they planned to steal some goods.
Earlier in the evening Messrs Evans-Kent and Watkins had stolen a hammer and a knife from a boat. While the group discussed its plan to attack Mr McKee, Mr Evans-Kent produced the hammer. His intention was to use it in the attack. At around this time Mr Glass left the group and returned with an axe, which he gave to Mr Watkins. In a statement made subsequently to a police officer Mr Glass said:
I’ll be straight up, I gave them the axe ... I only supplied them with the axe. ...
Mr Glass, the woman and the four youths then left his property for Mr McKee’s house. Messrs Evans-Kent and Watkins were armed with the hammer and the axe respectively. The woman departed from the group at some stage. In his police statement Mr Glass admitted going to Mr McKee’s home. But he denied entering the property – he thought that he sat on the fence. Mr McKee said that five men, including an older man who was Maori, entered his house.
Mr Evans-Kent attacked Mr McKee with the hammer. Mr McCulloch punched and kicked Mr McKee. Mr Watkins joined in the attack with the axe which Mr Glass had given him. Mr McKee suffered moderately serious injuries.
Charges
Messrs Evans-Kent, Watkins and McCulloch all pleaded guilty to wounding Mr McKee with intent to cause grievous bodily harm and were sentenced accordingly. Messrs Glass and Maloney pleaded not guilty to the same charge. The Crown charged them both in the alternative with wounding with intent to injure. Its case was that each had had participated in the offending as secondary parties.
The Crown also charged Messrs Glass and Maloney jointly with aggravated burglary of Mr McKee’s property. Mr Maloney pleaded guilty. At the end of the prosecution case the trial Judge, Panckhurst J, discharged Mr Glass on this count – he was not satisfied there was sufficient evidence to establish that Mr Glass entered the building.
The jury returned verdicts of guilty against Mr Glass on the charge of wounding with intent to cause grievous bodily harm and against Mr Maloney on the alternative charge of wounding with intent to injure.
Decision
Mr Young advances Mr Glass’ appeal against conviction on three alternative grounds. First, he submits that the jury’s verdict of guilty against Mr Glass on the count of wounding with intent to cause grievous bodily harm was unreasonable or could not be supported. That is because it was inconsistent with the jury’s verdict of not guilty on that count for Mr Maloney who was, we repeat, convicted on the alternative charge of wounding with intent to injure.
Mr Young developed careful submissions in support of this ground. But it is plainly untenable. The Crown case against Messrs Glass and Maloney was that each played a different role in the attack on Mr McKee. In essence, Mr Glass participated in the offending by giving Mr Watkins an axe knowing that it was to be used in the intended attack and by accompanying and giving support to the attackers at least to the entrance of Mr McKee’s property. By contrast, Mr Maloney participated by supporting the others with his presence inside the house during the attack. But, unlike Mr Glass, Mr Maloney denied any knowledge that Messrs Evans-Kent and Watkins were armed with weapons.
In these circumstances the verdicts could never be characterised as inconsistent or unreasonable. The jury had a sufficient, indeed compelling, evidential basis for differentiating between the levels of culpability of each offender. The jury plainly concluded that Messrs Glass and Maloney participated with different states of mind. Mr Young has failed to satisfy us that the two verdicts cannot stand reasonably together. This ground of appeal must fail.
This ground of appeal appeared pointless in any event. While the offences of wounding with intent to cause grievous bodily harm and wounding with intent to injure provide for different maximum terms of imprisonment, Mr Glass could not have challenged a sentence of three years even if he was found guilty on the lesser charge.
Secondly, Mr Young submits that the prosecutor acted improperly in her closing address to the jury. He says she should not have maintained a submission that there was evidence to support the Crown’s case that Mr Glass had actually entered Mr McKee’s premises when Panckhurst J had earlier discharged Mr Glass on the count of aggravated burglary. A miscarriage of justice is said to have arisen accordingly.
This ground is also untenable. It is correct that the Crown prosecutor devoted some time in closing to evidence which she said showed that Mr Glass did in fact enter Mr McKee’s premises. It is unclear why the prosecutor embarked upon this exercise when, as she later acknowledged in her address, proof of Mr Glass’ entry was unnecessary to the success of the Crown’s case. As Panckhurst J properly directed the jury at [33]:
On the other hand, and this is more referable to Mr Glass, absence is no absolute answer, because if one gives the instrument by which a serious offence is to be committed, here an axe, to the intending assailants, intending that it may be used for that purpose and with an awareness that the person given the axe has the intention to use it with one of the intents I have identified, well then that would support the Crown case and a finding of guilt here. In other words, even if Mr Glass left the scene because he didn’t like what had started to happen, it may have been too late if you came to the view that he had already played a sufficient role in providing the axe at the earlier point in time.
Later in summing up the Judge referred to the prosecutor’s emphasis on evidence of Mr Glass’ alleged entry into Mr McKee’s property as being “really icing, rather than the cake”. That was because the case was proved by virtue of Mr Glass’ admitted participation in earlier events. While the prosecutor’s emphasis on this part of the evidence in her closing address was unnecessary, and arguably diversionary, it could never be classified as improper. Panckhurst J had discharged Mr Glass on the aggravated burglary count on the ground that the Crown had not produced sufficient evidence to satisfy a fundamental element of the charge – that of entry onto Mr McKee’s property. Proof of entry onto the property was not an element of the other charges.
Thirdly, Mr Young submits that the Judge summed up unfairly in that he failed to warn the jury not to speculate; and that the passage from his summing up, cited above at [17], should have been balanced with a reference to the defence case to the effect that Mr Glass’ departure from the scene was circumstantial evidence pointing to a lack of intent.
There is nothing in this point. We have read the Judge’s summing up in its entirety. It was fair and balanced. He directed the jury to disregard emotion and determine the charges on the evidence. He put the defence case fairly and succinctly. If Mr Young’s objections had any substance, we would have expected him to have raised them with the Judge at the end of the summing up.
We might add that the Crown case against Mr Glass was overwhelming. On his own admission, he was plainly guilty of one of the alternative charges. He conceded that he gave the axe to Mr Watkins with knowledge of the group’s intention to attack Mr McKee jointly; and that he accompanied the group to Mr McKee’s house. Whether Mr Glass departed from the group on arrival or entered the property is irrelevant. His criminal culpability was established by then. It is hardly surprising that the jury found him guilty of the primary charge.
Result
Mr Glass’ appeal against conviction and sentence is dismissed.
Solicitors:
H T Young, Invercargill, for Appellant
Crown Law Office, Wellington, for Respondent
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