Kauwhata v The Queen

[2018] NZHC 1950

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2018-441-15 [2018] NZHC 1950

BETWEEN

HEMI KAUWHATA

Appellant

AND

THE QUEEN Respondent

Hearing:	31 July 2018
Appearances:	E J Forster for Appellant C C Gullidge for Respondent
Judgment:	1 August 2018

JUDGMENT OF ELLIS J

[1]      On 19 February 2018, Mr Kauwhata was convicted on one charge of theft of property valued under $5001 and one charge of injuring with intent to injure2 following a judge-alone trial before Judge M A Courtney in the Hastings District Court.3

[2]      He now appeals the conviction on the injuring with intent to injure charge, and his subsequent sentence.4  The sentence appeal is wholly predicated on the success of the conviction appeal.  In turn, the conviction appeal is predicated on this Court’s acceptance that there has been a miscarriage of justice because the Judge failed to expressly direct himself in relation to (what is said to be) propensity evidence going to Mr Kauwhata’s intent that was accidentally elicited from Mr Kauwhata during the

1      Crimes Act 1961, ss 219 and 223(d).

2      Section 189(2) (maximum sentence of five years’ imprisonment).

3      New Zealand Police v Kauwhata [2018] NZDC 12848.  Mr Kauwhata was acquitted on a charge of unlawfully using a document to obtain a pecuniary advantage and on alternative charges of

robbery and assault with intent to injure.

4      The relevant sentence involved a nine month uplift on the sentence arrived at for other, presently irrelevant, offending: New Zealand Police v Kauwhata [2018] NZDC 9722.

KAUWHATA v R [2018] NZHC 1950 [1 August 2018]

trial.  The contention is that had the Judge not made this error, Mr Kauwhata could only have been convicted of common assault.

Background

[3]      Mr Kauwhata met the complainant, Mr Wooster, in early 2017. They became friends and Mr Kauwhata moved into Mr Wooster’s house, either as a flatmate or a boarder.  The relationship between the two was described by Mr Wooster as good in the beginning; Mr Kauwhata was initially paying rent and helped with jobs around the property. But the relationship quickly deteriorated and Mr Kauwhata ended up facing charges as a result.

[4]      For present purposes, however, it suffices to set out the Judge’s account of the evidence, and his conclusions, relating to the injuring with intent to injure charge. He said:

[33]     Mr Wooster has acknowledged epilepsy and there is at least one occasion on which the defendant was present when Mr Wooster was suffering an epileptic fit. He had apparently been to the doctor about a week before with regard to these issues and Mr Kauwhata had attended with him. On 16 May Mr Wooster wished to attend the doctor again but he wished to go alone. He says there was an argument and as a result he says the defendant "f1ipped out". He says the defendant then hit his hand with a desk. He says the defendant threw a phone at him. At this stage the complainant says he tried to defend himself and he swung at Mr Kauwhata but he missed him. He claims then that the defendant picked him up by the neck. He described being held by the Adam's apple. He was then thrown on a chair. He says that his head was hit some five or six times on the floor and when asked to describe the force he described it as a level of, say, six or seven out of 10. He said that there was verbal abuse occurring as the physical abuse was happening. He says as a result of being held around the neck he could not breath for a while. He says he received a hit to his right jaw.

[34]      The defendant does acknowledge there was an argument that day over going to the doctor. He says that he was aware of the epileptic fit Mr Wooster had suffered. He says Mr Wooster was intent on driving himself there and he believed that to be unsafe and therefore offered to drive him. He says the argument developed by Mr Wooster taking a swing at him. He says that he grabbed Mr Wooster in a form of bear hug to try and restrain Mr Wooster from hitting him. He says Mr Wooster continued to struggle and they both then fell to the ground to cause the injuries that were then suffered.

[35]      Mr Wooster denies events occurred in that way, repeating that he was physically assaulted by the defendant in the way that he had set out.

[36]      A statement from Mr Wooster's medical practitioner was provided to the Court by consent. That is from Dr Hugh Miller who examined Mr Wooster on 18 May, two days after the date on which Mr Wooster had alleged this assault took place. Dr Miller says that Mr Wooster told him he had suffered from recurrent assaults over the previous several months with the last assault having taken place on 16 May. Mr Wooster described suffering from pain on the right side of the face, the front of the throat, neck area, the back of the neck and the upper back. On examination Dr Miller noted there was tenderness on the right cheek area and some tenderness over the cervical spine, the neck and the thoracic spine, the upper back.

[37]      That account of the injuries is in my view totally consistent with

Mr Wooster's account of what occurred that day. It is totally inconsistent with a bear hug and a fall to the ground. Whilst that might have resulted in an injury to the cheek if the fall was to that side of the face, the tenderness over the neck and upper back is consistent with the description given by Mr Wooster of being grabbed by the neck and held up by the neck and held to the point of breathlessness.

[38]     I therefore find there was an assault which occurred that day as described by Mr Wooster.

[39]      Mr Wooster said that the bruising was there for some two weeks or so after the incident He says that he still feels effects from the assault in terms of chewing something tough like a piece of steak. It was, in my view, a significant injury and therefore would have required significant force.

[40]     The charges in the alternative both require the establishment of an intent to injure. To injure means to cause actual bodily harm and all that is needed in that regard is a hurt or injury calculated to interfere with the health or comfort of the victim. There need not be any permanent intent to injure.

[41]      I accept that there was in this case intent to injure. Intent will usually rest  on  the  circumstances, including the  nature  of  the  act.  In  this  case

Mr Kauwhata is physically bigger. He acknowledged in Court that he was known within the prison system as a bully. He says that he is not a bully now, but I believe that on that particular day he has engaged in such force that he intended to injure Mr Wooster and he therefore did injure Mr Wooster.

[42]     I therefore find that the charge of injuring with intent to injure is established.

The conviction appeal

[5]      As foreshadowed earlier, the central focus of Mr Kauwhata’s conviction appeal was the submission that the Judge erred in finding the requisite intent established because his reference at [41] to Mr Kauwhata’s acknowledgement that he was a bully in prison involved propensity reasoning, without the requisite caution.5

[6]      A rather fainter argument that the Judge had wrongly failed to warn himself that he should not be improperly influenced by the fact that Mr Kauwhata had previously been in prison was, quite rightly, not really pursued before me.

Discussion

[7]      I acknowledge that [41] of the Judge’s reasons is slightly oddly worded. Adopting an interpretation that is most generous to Mr Forster’s argument, the Judge’s words could be seen as suggesting that he concluded that Mr Kauwhata had the requisite intent (to injure Mr Wooster):

(a)       because Mr Kauwhata was physically bigger than Mr Wooster;

(b)because he had acknowledged a previous tendency to be a bully which made it more likely that he had been a bully on the day in question, despite his saying he no longer acted in that way; and

(c)      because of the degree of force used.

[8]      Even articulated in that way I struggle to view the “bullying” evidence through a propensity lens. In particular, I have difficulty seeing how the fact that Mr Kauwhata once had a tendency to be a bully is probative of whether he intended to injure

Mr Wooster.  But even assuming that it is (or that the Judge thought it was), and even if the Judge should have expressly checked himself before placing any weight on it,

Mr  Kauwhata  would  need  to  establish  that  the  failure  gave  rise  to  a  relevant

5      The evidence about having been a bully in prison was unexpectedly volunteered by Mr Kauwhata during his evidence in chief. The topic was revisited in cross-examination. Mr Kauwhata accepted that he had once been a bully but denied that he still was one and, more specifically, that he had bullied Mr Wooster.

miscarriage of justice.6   Mr Kauwhata would need to show that the error gave rise to a “real risk” that the outcome of the trial was affected.  And a real risk only exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.7

[9]      Here, as the Judge’s remaining reasons show, he simply believed Mr Wooster’s account of events over that of Mr Kauwhata.  He was entitled to do that and, indeed, Mr Wooster’s account had a degree of corroboration in the form of the doctor’s evidence.  And on any analysis, an inference that Mr Kauwhata intended to injure

Mr Wooster can be drawn from Mr Kauwhata’s actions in:

(a)picking Mr Wooster (a smaller man) up by the neck and holding him in a way that restricted his breathing;

(b)      throwing him on a chair; and

(c)      hitting his head five or six times quite hard on the floor.

[10]     Accordingly, in my view, there is no risk that the outcome was affected by any error here.

[11]     No miscarriage has been established and the conviction should stand.   It follows that the sentence appeal becomes moot.

[12]     The appeals against conviction and sentence are dismissed.

Rebecca Ellis J

6      In order to meet the “miscarriage of justice” threshold in s 232 of the Criminal Procedure Act

2011, Mr Kauwhata must show that there has been some “error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial

was affected; or has resulted in an unfair trial or a trial that was a nullity”.  No question of nullity arises here.

7      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].