Janse v The Queen
[2012] NZCA 214
•28 May 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA526/2011 [2012] NZCA 214 |
| BETWEEN WAYNE GOODWIN JANSE |
| AND THE QUEEN |
| Hearing: 16 May 2012 |
| Court: O'Regan P, White and Miller JJ |
| Counsel: Appellant (In person) |
| Judgment: 28 May 2012 at 11.00 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
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REASONS OF THE COURT
(Given by Miller J)
Introduction
This appeal is brought against conviction and sentence on one count of injuring with intent to injure[1] and another of male assaults female.[2] Both charges concern a confrontation between the appellant, on the one side, and his former partner and her new partner, on the other. The appellant was found guilty at trial and sentenced by the trial judge, Judge Tuohy, to six months community detention, 150 hours community work and emotional harm reparation of $3,000 for the male victim.
The appeal
[1] Crimes Act 1961, s 189(2).
[2] Crimes Act 1961, s 194(b).
The appellant had counsel, Mr Antunovic, at trial, but represented himself on appeal with the aid of a McKenzie friend, Mr Benjamin Easton. In his submissions he advanced many and diverse complaints, which he grouped broadly as follows: defects in circumstantial evidence forming part of the Crown case and used to suggest that he had lain in wait for the complainants; counsel’s alleged failure to call or question certain witnesses; lies offered in evidence by the complainants; incompatibility of alleged punches to the male victim with a dislocated finger suffered by the appellant; unfairness in the summing up attributable to the Judge’s “domestic violence bias”; and counsel’s inadequate representation at sentencing.
The appellant gave evidence before us about his allegations against counsel, who swore an affidavit following a waiver of privilege and was cross-examined by the appellant. The appellant himself was cross-examined briefly.
Background
We summarise the background sufficiently to set the issues in context. The parties agree that a confrontation occurred at about 6 pm on Friday 11 June 2010, at the Whitby home of Nicholas van Dijk. Mr van Dijk is the partner of Rebekah Greig, the appellant’s former partner and mother of his two youngest children, a son and a daughter who were then aged 5 and 3 respectively. Nor is it in dispute that the appellant and Ms Greig were in conflict, she maintaining that he had behaved badly enough for her to secure a protection order, and he that for more than a year she had done all she possibly could, through Family Court processes and otherwise, to deny him access to the children, for whom he had been the primary caregiver before separation.
It is also common ground that the appellant, who lives in Wellington, came to the house uninvited, though he hotly denies that the visit was premeditated. He says he happened upon the house by accident. He concedes that a constable had called him on 2 May 2010 to warn him to stay away from that address and another used by Ms Greig, but he maintains that he had forgotten the address. Rather, he was looking for a relative’s address in Camborne and drove to Whitby because, having poor eyesight, he mistakenly associated the relative with the address of the next person listed in the telephone book. The route to the Whitby address took him past Mr van Dijk’s property. He says that he noticed his daughter on the street as he drove by and stopped on the spur of the moment, parking round the corner then walking back to the house.
Finally, it was also common ground that when the appellant reached the house he found Ms Greig in the driveway, putting the daughter into her car, and Mr van Dijk already in his car with the son. They were about to leave to run separate errands.
The trial issue was whether the appellant was the aggressor in what happened next, or acted in self-defence. The Crown maintained that he exchanged words with Ms Greig then punched her twice in the face when he realised that his son was in Mr van Dijk’s car. He had previously warned her that he would not be responsible for his actions if he saw the children with Mr van Dijk. He then went to Mr van Dijk, levelled an accusation about taking his son, and punched Mr van Dijk repeatedly through the car window as he sat belted into the driver’s seat. Mr van Dijk tried to fend him off by pushing the car door open.
The appellant maintained that Ms Greig pulled his pony tail as he bent to speak to the younger child and he merely pushed her away, then went to the other car to speak to his son; Mr van Dijk opened the driver’s door abruptly, hitting him, and grabbed his finger, dislocating it and causing him to lash out in pain until Mr van Dijk let go. At the same time Ms Grieg intervened, pulling and hitting at the appellant. The appellant says that Mr Antunovic failed in numerous ways to press his case on this central conflict of evidence.
Ms Greig made a 111 call on her cellphone. While she was doing so the appellant walked back to his car, which was parked around the corner. He then drove back, stopping beside Ms Greig and exchanging what he says were civil words before leaving. The Crown alleged that he actually drove at her, charging him with assault with a weapon, then demanded her phone and told her that she shouldn’t call the police. The jury acquitted him on that count.
The appellant then drove to a nearby train station and left his car, taking the train to Wellington where he bussed to hospital and took treatment for a dislocated finger. He said that he felt he was not safe to drive; the Crown said that he left the car to evade arrest. It is not in dispute that he offered the hospital a false identity and account of how he came to suffer the injury. He maintained that he wanted to protect his mother, whom he would otherwise have named as next of kin, and tried to correct the hospital records the next day.
At trial the Crown called the two complainants, a neighbour whose account of events immediately after the incident generally corroborated theirs, a doctor who described the appellant’s presentation at hospital, relying on notes prepared by the now-unavailable doctor who actually attended to him, and witnesses who observed or treated injuries to the two complainants. The injuries included black eyes, lacerations and a significant facial fracture in Mr van Dijk’s case, and reddened and swollen cheeks in Ms Greig’s. The officer in charge of the case gave evidence that when she interviewed the appellant on 17 June she observed injuries, including swelling to knuckles on both hands and a large bruise to his bicep. Photographs were arranged for the next day, but the appellant, having taken legal advice, refused permission. Also adduced was a recorded interview with the son, who said that the appellant accused Mr van Dijk of stealing his family then stated, “[the appellant] did some fighting with Nick, but Nick didn’t fight back.” He also demonstrated a punch to the face. He also said, however, that Mr van Dijk opened the car door, and he said that the appellant’s hair was messy.
Apart from giving evidence himself, the appellant also called the relative whom he claimed to have been meaning to visit and two character witnesses who described him as a good father and, so far as they knew, a non-violent person. He maintains that he wanted to call other witnesses, principally as to character, but was dissuaded by Mr Antunovic. At the end of the trial he also produced an enhanced audio copy of the 111 call, which included words described as inaudible in the Crown version. It was played to the jury just before closing addresses.
Crown counsel had not opened on the basis that the appellant had lain in wait for Ms Greig, but he levelled that accusation in cross-examination. The appellant wanted to rebut this claim by proving that just prior to the incident he had picked up his car from a yard to which it had been towed. He says that he produced a receipt proving that fact but Mr Antunovic did not try to get it into evidence.
In closing, Mr Antunovic urged the jury to accept the appellant’s account as honest and sincere. He suggested that the complainants were lying. He had laid the foundation for this attack in cross-examination and in the appellant’s evidence, challenging Ms Greig’s account of the conflict that led to the appellant losing contact with the children. He had also examined the record of the 111 call, suggesting that it was inconsistent with her account. In closing, he also pointed to aspects of the son’s statement that suggested the son had been coached. He dealt with the car being towed, inviting the jury to infer that the appellant had retrieved his car, checked it, found the present and decided to deliver the present to his relative, all of which was inconsistent with premeditation. No mention was made of the time at which the appellant retrieved the car from the tow yard. Mr Antunovic suggested that the dislocated finger was not consistent with the series of closed-fist punches that the Crown alleged.
The Judge summed up at 1.30 pm on Friday 1 July and the verdicts were delivered at 6.51 pm. The appellant maintains that the Judge limited the trial to just three days, Mr Antunovic acquiescing.
We turn to the issues on appeal.
Lying in wait
When Crown counsel suggested in cross-examination that the appellant had lain in wait for the complainants he responded that that was unlikely because his car had been towed that day. He concedes that Mr Antunovic saw this point as important, but he also concedes that he was swiftly shown to be mistaken in his evidence; his car had been towed on the previous day.
After his evidence the appellant found the receipt, which showed that he collected the car at 4.53 pm on 11 June. The 111 call was made at 5.59 pm. The appellant’s account is that having collected the car he saw in the boot a Christmas present he had bought some six months earlier for his relative’s daughter and he decided then and there to drop it off, first locating the address in his telephone book. This was said to preclude lying in wait.
There was a dispute about just when the appellant drew the receipt to Mr Antunovic’s attention. The appellant and Mr Antunovic agree that Mr Antunovic said it was too late, but the appellant suggests it happened on the second day of trial, about the time the evidence closed at the end of the day. Mr Antunovic believes that it was raised with him just after the closing addresses the following morning and he considered it was by then too late to get it into evidence.
The trial record shows that the accusation of lying in wait was advanced on the afternoon of the second day of trial, 30 June 2011. The evidence closed that day and the Court adjourned at 5.06 pm. When the Court resumed the next morning the appellant’s version of the 111 call was played, followed by the closing addresses.
We find that the appellant brought the receipt to Court after the overnight adjournment, and we accept that Mr Antunovic knew nothing of it until that morning. On the view we take of the matter we need not decide whether it was given to Mr Antunovic before or after the closing addresses, for this is not a case of counsel error. The question is simply whether there is a real risk that the receipt would have affected the outcome: if so, its absence may have occasioned a miscarriage of justice.
We do not accept that the receipt might have affected the outcome, for several reasons. First, the appellant is wrong insofar as he claims that the Crown case rested on proof of premeditation. The real issue was why he went to the address at all. Lying in wait was not the essential issue, as the Judge told the jury. The appellant’s account of having stopped on the spur of the moment is not inconsistent with guilt. And if he did wait nearby, he may have done so intending to speak to his children or Ms Greig, not to assault anyone. Second, the receipt was not inconsistent with him lying in wait. The Crown did not suggest that he had done so for more than “a little bit of time”, as counsel put it when cross-examining the appellant. Rather, its case was that he stretched coincidence too far by claiming that he happened to see his daughter as he drove by, for Ms Greig’s evidence was that she and the children had only just gone outside when he walked up.
Finally, the appellant seems to perceive this issue as a lost opportunity to demonstrate that he was a credible witness. But we accept Ms Toohey’s submission that had the receipt been produced, the appellant would have been questioned about his claim that he collected his car at about 5 pm on a Friday, searched the boot and decided there and then to drive to Whitby in heavy traffic to deliver a long-delayed present to a relative to whom he was not sufficiently close to know her address. That account was more likely to detract from his credibility than to enhance it.
Counsel’s failure to call witnesses
The appellant maintains that Mr Antunovic failed to call a number of witnesses: his older daughter Bijou and son Zaan; his friend Declan Bailey; a lawyer, Ramona Rasch; and an unidentified neighbour. He also complains that one of the two character witnesses, Stephen Hawke, should have been asked to compare the appellant’s and Ms Greig’s parenting practices. He accepts that he agreed with Mr Antunovic not to call those of this group whom he identified as possible witnesses at trial.
We do not accept that counsel’s advice was bad or that the evidence might have made any difference, for four reasons. First, some of these witnesses could only have given evidence of character, but the appellant called two character witnesses who had the advantage of independence. They described the appellant as a good and very involved father. Crown counsel did not bother to cross-examine the two witnesses, presumably because they could not tell the jury what the appellant might do under provocation of the kind that he attributed to Ms Greig.
Second, Mr Antunovic or his junior spoke to Bijou and Zaan, but Bijou was reluctant to give evidence and Zaan stated that if asked he would say the appellant has a temper. On being told of that, the appellant agreed not to call them. We do not accept his submission that, with benefit of hindsight, Mr Antunovic may have misunderstood their positions or should have pressed them.
Third, Mr Harvey is the witness who prepared the revised 111 call, and he photographed the appellant’s injured hand on 23 June 2010. That evidence went in without opposition. An affidavit from Mr Harvey shows that he could also have deposed to the appellant’s good character, but it adds nothing to the evidence that was called. The appellant also claims that Mr Harvey would have been able to say that the appellant’s knuckles on his left hand, which were covered with tape when photographed, were not marked as they would have been had he punched the complainants with his left fist. This mattered because Crown counsel suggested in cross-examination that the appellant conveniently kept his knuckles covered with tape when Mr Harvey photographed them. However, Mr Harvey’s affidavit says nothing about the matter.
Fourth, there is no evidence from the remaining witnesses to explain what they would have said. It appears that Ms Rasch has advised the appellant on trust matters, and there was a suggestion in cross-examination that Ms Greig had wanted to be appointed a trustee of the appellant’s family trust, but we do not know what Ms Rasch would say. We do not know what Mr Hawke would have said about comparative parenting practices either, but such evidence is on its face irrelevant and so inadmissible. In any event, the appellant concedes that he probably never instructed Mr Antunovic to ask Mr Hawke about it.
The appellant also suggests that his three-year old daughter ought to have been called, notwithstanding that he also claimed that his son’s evidence was suspect because Ms Greig coached the children. There is nothing before us to show what the daughter would have said, or to suggest that that she would have been able to give evidence, or to show that the jury would have found her reliable having regard to her age.
Trial confined to three days
The appellant complains that Mr Antunovic advised against calling other witnesses because he was adamant that the trial must be completed within three days. Mr Antunovic denies that, and we accept his evidence. The appellant’s account is also implausible; it assumes that the Judge would deny an accused the right to call relevant evidence and that experienced counsel such as Mr Antunovic would stand for it.
Counsel’s failure to exploit or investigate the telephone calls
Two telephone calls were in issue during the trial. The first was the 111 call made by Ms Greig. A transcript of that call was produced during the Crown case. It recorded that some statements were inaudible. The appellant had Mr Harvey clean the audio record up, using software which he says was readily available, so that most of it was audible. He complains that Mr Antunovic should have done this. The short point is that it was done and played to the jury. The transcript shows that Mr Antunovic had it before that time; he wanted to play it during the appellant’s evidence. Inconsistencies between Ms Greig’s account and the 111 call had already been put to her in cross-examination. No miscarriage of justice has resulted.
The second call was made between the appellant and Mr van Dijk at an earlier date. Mr van Dijk said that the appellant had threatened him during this call. The appellant said that was implausible, for the call lasted fully six to seven hours and Mr van Dijk would have ended it had he been threatened. The jury asked whether they could have a phone record of the call and asked how long it was. The Judge told them that it was too late.
The call duration is of minimal probative value in itself. Mr van Dijk agreed it was a long call, of about 40 minutes, and said that the appellant veered from being accusatory, emotional and threatening. The appellant wanted the jury to infer that he could not have spoken in those ways because the call was much longer than that. We accept, however, that the jury question suggests they saw call duration as an indicator of the appellant’s reliability. His difficulty is that he has not produced any evidence that the call was as long as he claims. It must be doubted whether he could do so, since he concedes that it was a local call.
Evidence of injury to Ms Greig
Ms Greig maintained that she had been punched twice, first on the left cheek and then on the right. To support this, the Crown relied on the evidence of a police officer who interviewed Ms Greig, who said Ms Greig was upset and had redness on both cheeks. The left cheek was also slightly swollen. The officer’s evidence was read into the record.
The appellant claims that Ms Greig suffers a skin condition that sometimes reddens her cheeks. However, he did not establish that Mr Antunovic was told about the condition before he cross-examined Ms Greig, who was not asked about it, or before the police officer’s evidence was read. The issue arose in the appellant’s cross-examination, when he said that she had the skin condition and that it often made her cheeks red. It was put to him that it would not explain the swelling. In the circumstances no criticism can be made of counsel, whose instructions, which he pursued in closing, must have been that any injury resulted from the appellant flailing about as she and Mr van Dijk attacked him.
Before us, the appellant’s alternative contention is that medical evidence ought to have been called to establish that redness was due to the skin condition. Again, there is nothing to suggest that any expert witness would be prepared to say so, or that evidence that the skin condition sometimes causes redness would assist, especially since Ms Greig herself attributed her appearance on this occasion to the appellant.
Verdicts unsafe for complainants’ lies
The appellant argued that the evidence showed the complainants were lying, so the verdicts are unreasonable.
We have already dealt with some particulars of these allegations, such as the telephone calls. The appellant also submitted that his acquittal on the assault with a weapon charge renders the other verdicts unsafe, because the acquittal proves that Ms Greig was lying. We disagree. The acquittal does not indicate that either complainant was lying throughout. It indicates only that having heard the 111 call, the jury were not sure the appellant had deliberately driven at Ms Greig.
The appellant also criticised Mr Antunovic for failing to make enough of the complainants’ lies in his closing address. We reject this submission. As we have noted above, in cross-examination counsel laid the foundation for an attack on the complainants, and he pursued it with some vigour in closing, making the most he could of alleged inconsistencies between their accounts and the 111 call. The Judge fairly summarised the defence case on the point. The jury might reasonably conclude both that the complainants were telling the truth and that the appellant was not.
The appellant’s injuries
The appellant suffered a dislocated finger. He contends that this injury resulted from the finger being bent back, and claims it is incompatible with the Crown’s case that he punched the complainants with closed fists, so much so that it unarguably creates a reasonable doubt.
This issue was before the jury. Indeed, it was central to the competing narratives. Mr Antunovic emphasised it, and the Judge instructed the jury that they must decide whether the injury resulted from the finger being twisted back, as the appellant said, or from repeated punching, as the Crown said. The question how the appellant came to suffer a dislocated finger was explored in cross-examination of the doctor who gave evidence about the appellant’s presentation at hospital. He confirmed an obvious dislocation of the left ring finger at the first joint and agreed that the finger might have been sticking out almost at a right angle, as the appellant contended. Further, he said that would require reasonable force and might result from someone bending the finger back. The notes also confirmed that the appellant had claimed that he fell on some steps.
We observe that it was not in dispute that it was the appellant who inflicted the serious injuries to Mr van Dijk’s eyes and face. Mr van Dijk said he was subjected to furious punching. The jury must have accepted that the appellant’s own injury did not preclude a finding that he used a closed fist to inflict these apparently targeted injuries.
The appellant contends that the injury also mattered because it explains why he chose not to drive his car. That claim was before the jury too. However, the appellant further maintains that Mr Antunovic ought to have established via expert evidence that no reasonable person would drive with such an injury and that the injury is inconsistent with punching.
We reject these submissions. Again, there is no evidence that any expert medical witness would be prepared to say these things. Nor do we accept that such evidence would likely have helped the appellant on what were questions of primary fact for the jury. For example, the appellant was clearly capable of driving, because he did drive from the property; no expert could say that he would not have driven the extra distance to Wellington. And he might have injured his finger by catching it on the car after inflicting the punches that Mr van Dijk described, as Crown counsel suggested in his closing address. There was evidence that Mr van Dijk was trying to back his car away as he was being attacked and that the accused had bruising to his right bicep which might have come from hitting the car as he punched Mr van Dijk.
The summing up
We have already addressed some of the appellant’s complaints about the summing up. We here respond to the only other complaints of any possible substance. So far as the remainder go, we simply record our conclusion that the summing up was orthodox, balanced and accurate.
The appellant complains that the Judge exhibited bias by telling the jury not to give way to sympathy for him. This complaint finds its context in the appellant’s belief that Ms Greig had denied him access to the children and behaved badly over the separation. The Judge permitted evidence about these collateral issues on the assumption that it might affect credibility, but he then warned the jury not to decide the case based on their sense of the rights and wrongs of the access dispute, or to be influenced by sympathy or prejudice. We agree with the Judge that such a warning was required.
The appellant also complains about the Judge’s lies direction. That such direction was required cannot be disputed, for the appellant undeniably gave a false name at the hospital. Further, his claim that he did so to avoid worrying his mother, whom he would have named as next of kin, confronted the difficulty that he had no need to name her at all; he actually named his sister on the form, and further, ticked a box stating that he did not want next of kin told of his hospital visit. Nor did that concern dictate that he must lie about how he came to be injured. The appellant complains rather that the Judge gave no lies direction for the complainants. This is to misunderstand the point of the lies direction, which was to protect the appellant by warning the jury to take care when drawing inferences from his proved lies. Nor was the Judge required to tell the jury that the complainants were lying; that was for the jury to decide.
Similarly misconceived is the appellant’s challenge to the Judge’s standard direction on self-defence. Nor was the Judge wrong to give the usual direction that there is a first time for everything when addressing the character evidence called by the appellant.
Other matters
The appellant raised other miscellaneous matters in his submissions. We do not catalogue all of them, for none is capable of amounting to a miscarriage of justice even if made out. For example, he argues that he has bad eyesight and that explained his mistake when reading his relative’s address in the telephone book. He told the jury that, but before us he suggested that Mr Antunovic ought to have called expert evidence about his eyesight. However, his own evidence that he does not see well was unchallenged. He also complains that the Judge refused to allow the Crown to recall Mr van Dijk’s neighbour, who would have said that she thought she saw him near the property some weeks earlier. He says he thereby lost an opportunity to show that he was in Australia at that time. But, the neighbour not having been recalled, his own evidence that he had just come back after a month in Australia was never challenged.
Overall assessment of the conviction appeal
The appellant has fallen well short of persuading us that his counsel or the Judge erred in any way. Nor could he show that the jury verdicts are unreasonable. On the contrary, the Crown enjoyed a very strong case, starting with the undisputed facts. The appellant’s explanation for being in the area was quite implausible and his conduct immediately after the offence was inconsistent with having acted in self-defence.
The sentence appeal
The appellant complains that at sentencing Mr Antunovic lacked commitment and the Judge displayed bias. We reject these submissions, for which we find no support in the record or in the evidence before us. The appellant’s submissions suggest he may not realise that a Judge must sentence consistently with the jury verdicts and any factual findings that necessarily follow them.
In a careful and thorough sentencing, the Judge accepted that the appellant had gone to the address in a state of acute emotional pain from the separation and, more particularly, from the loss of contact with his children. He was prepared to accept that the appellant may have gone there with no plan of confrontation in mind, only to lose control when he saw his son in the car with Mr van Dijk. Given the verdicts, that was the most favourable view of the facts reasonably available. He accepted references that described the appellant as a loving father and a generous and well-liked man for whom violence is quite uncharacteristic. He also accepted that the reoffending risk is low. These conclusions allowed the Judge to impose a sentence that must be considered lenient given Mr van Dijk’s injuries.
The Judge expressed regret that the appellant was unable to accept the verdicts and observed that Mr Antunovic had skilfully represented him. We share those sentiments. The appellant fails to recognise that this case is not all about the rights and wrongs of his access dispute with Ms Greig, still less their respective characters. It is all about what he did around 6 pm on 11 June 2010.
Decision
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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