Grayson v The Queen

[2005] NZCA 177

IN THE COURT OF APPEAL OF NEW ZEALAND

CA436/04

THE QUEEN

v

GUY RICHARD GRAYSON

Hearing:23 June 2005

Court:Chambers, Potter and Doogue JJ

Counsel:T M Sutcliffe for Appellant

K J Glubb for Crown

Judgment:4 July 2005     

JUDGMENT OF THE COURT

A        The application for leave to appeal out of time is granted.

B        The appeal is dismissed.

REASONS

(Given by Potter J)

Table of Contents

Para No

Introduction  [1]
Background  [5]

Self-defence  [13]
Honest belief  [27]
Result  [32]

Introduction

[1]       Guy Richard Grayson appeals against a conviction of assaulting a Police Constable with intent to obstruct him in the execution of his duty under s 192(2) Crimes Act 1961 (Count 3 in the indictment).

[2]       The appellant was acquitted of two charges of assault of a Mr Soloman and a further charge of assault relating to the Police Constable.

[3]       The notice of appeal sets forth two grounds of appeal, that the verdict of the jury was unsupported by the evidence and that the trial Judge misdirected the jury.  The first ground of appeal was not pursued.

[4]       The appeal proceeded on the basis that in her summing up to the jury the trial Judge, Judge Clark, misdirected the jury in that she:

(a)Failed to direct the jury that the defence of self-defence needed to be considered; and

(b)Failed to direct the jury that it would be a defence to the charge if the appellant honestly believed the Constable was not acting in the execution of his duty.

Background

[5]       On 9 January 2004 a Mr Gillard and a Mr Soloman arrived at the appellant’s home to discuss an issue concerning some dogs that were in their care.  The visit quickly deteriorated into a brawl between the visitors, the appellant and his son Jesse.  There was a lot of noise, shouting and fighting which attracted the attention of neighbours.  The Police were called by the appellant’s wife.  By the time the Police arrived Mr Gillard and Mr Soloman had retreated from the appellant’s property and there was abuse being exchanged between the parties.  There were significant conflicts in the evidence in respect of the Police response to the situation when they arrived.  Witnesses for the prosecution, who included two neighbours, Mr Flogdell and Mr Dunn, said that the Police acted in a calm manner, attempting to keep the parties separated and trying to settle things down, whereas the appellant and members of his family were agitated and verbally aggressive.  The appellant and his partner Ms Sharpe, claimed that the Police actions were aggressive and aggravated the situation. 

[6]       The Constable tried to separate Jesse and to have him sit on the ground, while the appellant was calling for him to come back to his family.  Jesse moved away from the Constable, who said he twice warned Jesse that if he continued to move away he would be arrested.  Jesse then ran away.  The Constable advised him that he was arrested and chased him as he ran away. 

[7]       The Constable’s account of what then happened is as follows:

… Jesse, um, Guy Grayson was still standing on the drive, driveway, um, Jesse immediately went behind Guy and I believe his mother Renee Sharpe had moved in at that stage and they was, he was standing between both of them.

What happened? … Um, I tried, I tried to reach for Jesse, um, to effect my arrest basically and take him into custody.  Um, Guy and Renee I believe at that stage, um, basically got in my way.  They, ah, actively prevented me from, from touching Jesse.

How did they do that? … Um, they, they shielded him by standing in between me and him, Jesse was behind them.  They were in front of Jesse, and in front of me.  Every time I tried to reach over to grab Jesse, or to move around to get him, to bring him out of the driveway, they’d move, um, put their hands up, to, to prevent me from getting any closer to Jesse.

And what did you do then? … I, I, I warned them that they were obstructing, me, um, and the consequences of that obstruction and continued to try and get Jesse to try and effect my arrest.

[8]       The Constable said the appellant was swearing at him and abusing him.  The Constable described what happened next as follows:

… the toing and froing and me trying to take Jesse into custody, um, the defendant and his partner trying to, trying to protect Jesse, um, from me, went on down the driveway more towards the garage …

… Once we got to the fence there, the whole situation continued, um, for like, it, it was exactly the same, they, they continued to prevent me taking Jesse into custody.  Um, once we got to the fence, or I was at that stage, that um, I had limited options available to me, I’d already tried to encourage them to release Jesse, by, by saying they were obstructing me and I was going to arrest them, um, I tried to take hold of Jesse and take him into custody, which I was prevent from doing, so my next option for me was to deploy my pepper spray which I warned them I was going to do on numerous occasions, but they didn’t pay heed to any warning, um, so I deployed my pepper spray, and, um, sprayed all three, Jesse, Renee Sharpe and Guy Grayson.

[9]       He said that the pepper spray did not seem to have very much effect at all.  He described the appellant as being most aggressive, extremely angry; he believed the appellant was unpredictable.  He said the appellant disappeared out of his sight so he directed his attention towards Jesse:

Then what happened? … Um, as I directed my attentions towards Jesse and Renee Sharpe, out of the corner of my eye, I, I just saw something coming towards me, I, I moved to my left and ducked and realised that it was Guy, had moved round to my right hand side, had thrown a punch, um, at which point I had released Renee and, um, Jesse, and deployed my aspen [a telescopic baton].

[10]     The appellant denied making any attempt to strike the Police Officer.  He did not accept that the Police Officers were trying to calm the situation down.  He said in answer to cross-examination:

… They didn’t arrive to calm the scene down at all, they instigated the problem with the mannerism and the way they carried themselves, and spoke and just etc.

Now you say the Constable swearing at your daughter caused you to tell members of your family, particularly Jesse Grayson, not to co-operate with the Police, yes? … in my right state of mind that I was in actually, I didn’t really see this Constable as any person responsible enough to be telling my son what to do after the abuse he’s just given my daughter, and the way he was conducting himself, I didn’t see he was a very responsible person at all to be telling my son, yelling at my son what to do, which seemed a bit strange that he isolating my son off over to the other side of the fence and he already had this violent demeanour about him, and as we’ll see later on, he does end up beating up my son, as well as my wife.  So I, my fears were justified.  My reasons –

And you deliberately encouraged your son not to co-operate with the Police Officer, didn’t you? … I’d never encourage my children not to co-operate with the Police, or the law, ever.  I don’t, I don’t bring my children up in that way.  At one stage there, if you’d like to know what I did say, because I thought this Policeman wasn’t conducting himself in a controlled manner, I thought he was a bit out of control in the way he was conducting himself and everything, and his whole way of going about it was a bit funny, I wanted my son with my family, where we could protect him.

So you knew the Police Officer was telling Jesse Grayson to stay where he was and sit down, didn’t you? … Vaguely, yes.

You knew, Constable Scott-Dickins was there as a Police Officer, didn’t you? … I did.  He wasn’t behaving like a Police Officer.

You knew he was in uniform, didn’t you? … I did.

He’d arrived in a marked patrol car, hadn’t he? … Yes

He’d been called to the scene to try and control the situation, hadn’t he?  … To try and help us, yes

And when he didn’t do what you thought he should do, you then began obstructing him, didn’t you? … Not at all.

He wasn’t behaving the way you wanted him to, so again, your aggression took over, didn’t it? … I wasn’t the one trying to control anybody in that situation.  He was the controller, and he was like a mad man.  Racing around with his baton flailing in the air.  He, he was a lunatic.  He wasn’t a normal Police Officer.

[11]     In evidence in chief the following evidence was given by the appellant:

Constable Scott-Dickins said that Jesse was standing between you behind you, was that right? … Yeah, he was with the family.

So what were you doing when Constable Scott-Dickins pepper sprayed you? … Oh that was the time I had my hands in the air going “Whoa” you know, like we’re the ones that called you, you know and trying, trying to calm him down a bit.  Because he’d come running up right onto the property through those trees and was just yelling and screaming.

Did you strike or intend to strike Constable Scott-Dickins at any stage? … Ah, no I didn’t, I wouldn’t strike a Police Officer.

You waved your hands in the air and say you got sprayed next by Constable Scott-Dickins, did you see anybody else get sprayed? … Not at that point.

What did you see happened next or what did you do next? … Um, after being sprayed I saw Jesse being ordered around by the constable.

When you say ‘ordered around’, what do you mean? … Well it was, when I say ‘order’ he was giving orders, to very aggressively.

[12]     The appellant said he then went inside and then:

… Well I had to protect my family from what I could see, I went back up to the ranch slider, um, excuse me, I saw, no I didn’t see I could just hear and out of, I could, because I still had the paper spray in my eyes, um, I could hear Jesse, basically everybody was screaming and I could sort of see bits of them through my squinty eyes lined up against the fence, and Constable Dickins had his baton out at that point, and he was sort of like, basically everybody was screaming and from what I could work out he was beating everybody up against the fence and pepper spraying them.  He, he had about four people that I could work out, up against the fence.

Self-defence

[13]     The Judge said this about the relevance of defence of self-defence to the trial:

There have been references in this trial to the issue of self-defence.  That has no part to play in your decision making.  It has no relevance at all, and it is important that you really just put that to one side.

[14]     In relation to Count 3 in the indictment the Judge directed the jury:

Now, turning to count three in the indictment, that is a charge that relates to Constable Scott-Dickins, and the specific allegation is that Mr Grayson assaulted Constable Scott-Dickins, the Police Constable, with intent to obstruct Constable Scott-Dickins in the execution of his duty.  When considering that charge, there are four elements that the Crown must prove beyond reasonable doubt to establish that charge.  The first is this; that Mr Grayson assaulted Constable Scott-Dickins.  And again I told you what an assault is.  It is the deliberate application, or attempted application, of force.  The degree of force doesn’t matter.  Now, second, that the person who was assaulted was a Police Officer and known or assumed by Mr Grayson to be a Police Officer.  Third, that Constable Scott-Dickins was engaged in the execution of his duty at the time of the assault, and known or assumed by Mr Grayson to be engaged in the execution of his duty.  And fourth, that Mr Grayson assaulted Constable Scott-Dickins with the intention of obstructing him, that is, hindering him in the execution of his duty.

[15]     This passage of the Judge’s summing up clearly directed the jury as to the four essential elements of the charge under s 192 including the element of intention, namely the intent to obstruct or hinder the Police in execution of their duty.

[16]     It is not surprising that the Judge did not direct on self-defence.  It was not part of the defence case.  The appellant’s case was that he did not attempt to strike the Police Officer and further, that he was not even there at the time the assault is said to have occurred.  The Judge summarised the defence case fairly, as follows:

But when looking at the particular charges, and count three in the indictment, which is the assault on Constable Scott-Dickins acting in the execution of his duty, Mr Clarke asked you to consider the evidence from both Constable Scott-Dickins on that point, as well as Constable Brown, and also the accused’s evidence as to a denial of the incident taking place.  He referred you to Constable Brown’s evidence as to seeing the accused waving his arms around in that area, and an acknowledgement that there had been pepper spray used on the accused, and asked you to consider whether you were satisfied, first of all, whether there was an assault, or whether the accused may have been responding to the pepper spray having been used on him.  He submitted to you that you had to decide whether in fact there was a different explanation, or whether the position was as the Crown said, an attempted punch.  But in those circumstances Mr Clarke’s submission to you was that there was a reasonable doubt as to an assault taking place, and if there was a doubt in respect of the assault, then that was the end of the matter, and said the same reasoning as to the assault applied to count four.

[17]     Mr Sutcliffe submitted that nevertheless it was open to the jury on the evidence to conclude that the appellant threw a punch in the heat of the moment and that the issue of self-defence could then arise.  He referred to R v Christiansen (2001) 19 CRNZ 256, for authority that the absence of the necessary mens rea under s 192 of the Crimes Act and the positive defence of self-defence under s 48 are quite separate defences. 

[18]     He referred to R v Kerr [1976] 1 NZLR 355 at 340, and R v Wang [1990] 2 NZLR 529 at 534 confirming R v Tavete [1988] 1 NZLR 428 at 430 for authority that:

The general principle is not in doubt.  Self-defence should be put to the jury where, from the evidence led by the Crown or given by or on behalf of the accused, or from a combination of both, there is a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence.

Further that:

A trial according to law requires an adequate direction by the Judge to the jury of all matters whether of fact or of law, which upon the evidence, are reasonably open to the jury to consider in reaching their verdict.  … this includes matters of defence such as self-defence, provocation, manslaughter or accident, notwithstanding that such matters are not raised or are even expressly disavowed on behalf of the accused …

[19]     The issue therefore, is whether there was material on which the jury acting reasonably could find that the appellant acted in self-defence, or be left in a reasonable doubt as to whether he did. 

[20]     The Crown submitted that there was simply no material in this category, that there was no “credible or plausible” narrative which might have led the jury to entertain the reasonable possibility of self-defence, even when a view of the evidence most favourable to the appellant is taken.  The Crown submitted that most significantly, there was never any suggestion of an assault by the appellant in defence of himself or another.  The appellant first said that he did not strike or intend to strike the Constable (refer [11] above).  In cross-examination he was asked:

You tried to punch him, didn’t you?

The appellant replied:

I was inside at the time he’s claiming that I punched him outside.  Thank you.

He confirmed that position when it was put to him that he was preventing the Constable getting to his son Jesse.  He said:

Not at all.  I wasn’t there at the time.

[21]     The appellant’s partner, Ms Sharpe and Jesse Grayson also said that only they were present at the time Constable Scott-Dickins sprayed them and went to apprehend Jesse. 

[22]     Mr Sutcliffe submitted that nevertheless, there was evidence from the appellant that he was acting to protect his son.  The appellant’s evidence was that he thought the Constable was “a bit out of control” and he wanted his son with his family where they could protect him.  There was also the evidence of the Police Officer that the appellant and his partner were preventing the Constable from touching Jesse and that they were trying to protect Jesse from the Constable.

[23]     Mr Sutcliffe acknowledged that the evidential narrative was “thin” but submitted that those being the circumstances as the appellant believed them to be – that he needed to protect Jesse and prevent the Constable from touching him – the issue of self-defence should have been put to the jury with appropriate directions in relation to the force used by the appellant.

[24]     We do not accept the submissions for the appellant.  There was no evidence upon which the jury could entertain the reasonable possibility that the appellant was acting in defence of himself or defence of Jesse.  The jury was faced with a direct conflict of evidence between the prosecution witnesses and the defence witnesses, which the verdict on Count 3 indicates was resolved against the appellant.

[25]     Further, in this case where the defence is that the alleged assault simply did not happen, there is a real risk that were self-defence to have been put to the jury by the Judge when it formed no part of the defence case, it would have had the effect of undermining the defence case.  This was not a situation such as that in Christiansen where the use of force was admitted and the issues were then, whether the force was used by the appellant in defence of his friend or whether the appellant believed that the Constable used excess force and was not acting in execution of his duty, thereby providing a positive defence in terms of s 192.

[26]     This ground of appeal has no merit.

Honest belief

[27]     The second point, that the Judge failed to direct the jury that it would be a defence to the charge if the appellant honestly believed the Constable was not acting in the execution of his duty, may be dealt with briefly.  The Judge gave the following direction:

It would be a defence to this count if Mr Grayson had no understanding that the person assaulted was a Police Officer, or that he believed that the Police Officer was not acting in the execution of his duty.  Acting in the execution of his duty means that the Police Officer from the moment he sets out on a lawful task, connected with his role or function as a Police Officer, continues to act within the scope of that lawful task.

[28]     Mr Sutcliffe accepted that the Judge correctly directed the jury as to the four elements of the offence under s 192, and further accepted that because of the direction quoted in [27], there was “fundamentally” no error on the face of the summing up, but he submitted that the Judge should have gone further and directed the jury to the evidence of the appellant about the actions and behaviour of the Constable drawing attention to passages such as those set out at [10] and [11], where the appellant gave evidence that he thought the Constable was “a bit out of control”, “wasn’t behaving like a Police Officer” “… was like a mad man” “… wasn’t a normal Police Officer”. 

[29]     Of course, as the Crown rightly submitted, if the Judge had chosen to direct to that level of detail, she would have had to balance it by directing the jury to the evidence for the prosecution on this matter, including the evidence of Constable Scott-Dickins himself, Constable Brown, who was the second Police Officer at the scene, and the evidence of the neighbours Mr Flogdell and Mr Dunn which essentially described the conduct of the Police Officers as trying to calm down the situation and that Constable Scott-Dickins was not yelling, but looked reasonably calm.

[30]     The extent to which the Judge deals with factual detail in a summing up, is essentially within the Judge’s discretion, subject to the requirement for balance. 

[31]     This ground of appeal is also without merit.

Result

[32]     Leave to appeal is granted but for the reasons given above the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington