Huang v Minister of Immigration

[2008] NZCA 337

IN THE COURT OF APPEAL OF NEW ZEALAND

CA224/2008
[2008] NZCA 337

THE QUEEN

v

TEARIKI ADRIAN KURA

Hearing:26 August 2008

Court:O'Regan, Chisholm and Ronald Young JJ

Counsel:P F Johnson for Appellant

S B Edwards for Crown

Judgment:1 September 2008 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       In 2007 the appellant had been granted bail on the conditions that he not enter licensed premises and not consume alcohol.  On the evening of 17 June 2007 three police officers found Mr Kura in an inner-city bar in Christchurch.  They believed he had consumed alcohol.  They arrested him, but as they did so, he attacked the officers and ran off down the road.

[2]       He was subsequently convicted by a jury of injuring two police officers with intent to escape (s 191(2) of the Crimes Act 1961) and escaping from custody.

[3]       The grounds of appeal are:

(a)Judge Farish, the trial Judge, misstated the elements of aggravated injury by failing to tell the jury that the Crown had to prove that the appellant intended to injure the police officers or was reckless as to whether it occurred (see R v Tihi [1989] NZLR 29 (CA)); and

(b)The crime of escaping was not complete since the appellant was within sight of the police officers the entire time until his surrender (see R v Keane [1921] NZLR 581 (CA)).

Facts

[4]       After three police officers arrived at the Christchurch bar on the evening of 17 June they spoke to the appellant.  When they established his breach of bail they arrested him.  As the officers attempted to handcuff him he began to physically resist.  The appellant struck one police officer in the face, knocking him to the ground.  He ran out of the bar and onto Colombo Street pursued by the three police officers.  On the street he was pepper sprayed and battoned by the officers.  He responded by punching two of the officers to the ground.  Eventually, the appellant ran further down Colombo Street and got into a police car a block away, effectively surrendering to the officer in that car.

[5]       One of the police officers had a gash over his left eye with eight stitches, a broken nose, two black eyes, a split lip and a number of bruises.  He was discovered to have mild traumatic brain injury.  The other police officer had suffered a dislocated jaw.

[6]       The appellant’s case at trial was that he had been defending himself from attack by the police officers.

Aggravated injury

[7]       This Court, in Tihi, when considering the elements of an offence under s 191 said at 28 - 29:

As it stands the section can achieve the rational object of imposing criminal liability on an offender for the harm specified in subs (1) or (2) if he exposes others to that risk by actions undertaken in the course of conduct intended to achieve the purposes set out in (1)(a), (b), or (c); and whether or not he means to cause that harm.

However we think the preferable view is that the section does not impose strict liability.  The introductory phrase “with intent to” in subs (1) establishes a connection between the harm and the conduct described in (a), (b), and (c), in that it must have been inflicted as part of the offender’s purpose of implementing that conduct, tending to the conclusion that he must at least have turned his mind to the risk of harm.  Strict liability would run counter to the well established presumption in favour of mens rea in all criminal offences, especially in the light of the maximum sentence of 14 years under subs (1).  Accordingly before he can be guilty, it must be shown that the accused either meant to cause the specified harm, or foresaw that his actions were likely to expose others to the risk of suffering it.

[8]       It seems clear that neither the Judge nor either counsel were aware of Tihi.  The Judge therefore, without complaint from counsel, told the jury:

[29]     There are two essential elements that the Crown are required to prove.  One is that the accused caused an injury to Sergeant Dean and/or Senior Constable Harris.  An injury, as I said to you yesterday, is bodily harm that is more than trifling or transitory.  In this case Ladies and Gentlemen I understand that there is no dispute that the injuries cause [sic] to both Sergeant Dean and Senior Constable Harris were clearly injuries because they were clearly more than trifling or transitory.

[30]     The real issue though, in this case, is the second element that the Crown are required to prove.  That is that they must probe beyond a reasonable doubt that the accused, Mr Kura, in injuring the officer was doing so with the intention of facilitating his flight, that is, that he was trying to escape from the police officers.

[9]       The Crown accept this aspect of the Judge’s summing up was in error.  They say, however, the omission by the Judge was not material to the trial or the verdict and therefore no miscarriage of justice has occurred (see s 385(1)(c) of the Crimes Act).

[10]     We agree that the Judge’s omission to sum up to the jury on intention to injure or recklessness was an error.  However, we are satisfied it did not cause a miscarriage of justice.  On the evidence of the police officers, the appellant, who was a trained boxer, had punched the first constable a number of times to the face causing serious injury and knocking him to the ground.  As to the second officer, who weighed 115 kilograms, he was knocked to the ground with what the appellant described as “one hard punch” to the face dislocating his jaw.

[11]     After retirement, the jury asked the Judge a question about self-defence which made it clear they had unanimously concluded that the appellant had not used reasonable force in the circumstances.  The jury’s verdict meant they accepted the Crown had proved the appellant was not acting in self-defence.

[12]     Consistent with those facts and conclusions, we consider the jury could only have concluded that the appellant either intended to cause injury or was reckless.  We are therefore satisfied that if the judge had accurately described the elements of the crime it would have made no difference to the jury’s verdict.  On the facts the jury would inevitably have concluded the Crown would have proved either intention to injure or recklessness.

[13]     We are therefore satisfied there has been no miscarriage of justice here.

Escaping from custody

[14]     The appellant’s submission is that based on Keane, he could not have “escaped” from lawful custody while, as here, he remained within the sight of the police officers.  We reject that submission.

[15]     The facts in Keane were quite different than the present case.  In Keane, the appellant had been convicted of assisting a prisoner to escape from a prison. The prisoner was working outside the prison and walked away and into Auckland city. The appellant then lent him some clothes. The Court concluded that the prisoner had escaped before his contact with the appellant and therefore the appellant could not be guilty of assisting an escape. In the course of discussing the actions of the prisoner, this Court said at 583:

If a prisoner has regained his liberty by getting away from the precincts of the prison, and also from the sight and control of all prison officials, he then has made his escape, and is no longer in lawful custody.

[16]     Here the appellant was under arrest and ran off from the arresting officers.  The key question as to whether the escape was complete was not whether the police officers could see the appellant but whether the officers had lost control of the appellant.  Here the appellant had removed himself from where he had been arrested against the will of the police officers.  The officers had no control at that stage over the appellant.  His escape was therefore complete.

[17]     We therefore reject this ground of appeal.

Result

[18]     Both grounds of appeal having been rejected, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington