Makatea v The Queen
[2010] NZCA 50
•4 March 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA594/2009
[2010] NZCA 50BETWEENRAWIRI DAVID MATHEW MAKATEA
Appellant
ANDTHE QUEEN
Respondent
Hearing:24 February 2010
Court:Arnold, Harrison and Fogarty JJ
Counsel:J C Hannam for Appellant
P K Feltham for Respondent
Judgment:4 March 2010 at 2.30 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
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REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1] Mr Rawiri Makatea appeals against his conviction in the District Court at New Plymouth on 24 July 2009 following trial before a jury on charges of assault and wounding with intent to cause grievous bodily harm and reckless disregard.[1] He does not appeal against his sentence of seven and a half years’ imprisonment.
[1] R v Makatea DC New Plymouth CRI-2008-043-294, 14 September 2009.
[2] Mr Makatea's appeal against conviction is advanced on two grounds. He says that the trial Judge erred, first, in refusing leave to cross-examine the victim on his previous convictions for violence and, second, in refusing to allow Mr Makatea to raise the possible defence of self-defence.
Background
[3] The relevant facts were not ultimately in dispute at trial. The victim, Mr Daniel Spittal, went with a small group to a friend's house in Waitara for a few drinks one evening in August 2008. He departed about an hour-and-a-half later but returned early the following morning after an argument with his partner. By that stage the gathering had grown to a party at which about 30 people were present. Among them was Mr Makatea.
[4] Mr Makatea began acting in an aggressive manner towards Mr Spittal and others. He boasted that he represented a local gang. Mr Spittal spoke in favour of a competing entity. Differences on the merits of the two groups led to some physical pushing and shoving between the men. As a result, Mr Makatea was asked to leave the premises.
[5] Mr Spittal has no memory of subsequent events. However, there were two eye-witnesses. One was Ms Merekahe Goodwin. She had fallen asleep on a couch at one stage during the party. She awoke to hear Mr Makatea calling Mr Spittal "a honky" and abusing him. He then punched Mr Spittal three or four times. Mr Spittal returned one punch.
[6] Ms Goodwin next saw that Mr Spittal had Mr Makatea in a headlock (Mr Spittal is about 6' 6" tall; Mr Makatea about 5' 6" tall). Mr Makatea then picked up a beer bottle from the ground. Ms Goodwin heard smashing. She saw Mr Makatea using the broken bottle to stab Mr Spittal. In answer to a question from Mr Makatea's counsel, Mr Julian Hannam, she said the blows were "too many to count". She later agreed with him that Mr Makatea probably inflicted about "five separate cutting like injuries". Ms Goodwin suffered a cut eyelid when she attempted to intervene and disarm Mr Makatea.
[7] Ms Goodwin acknowledged that she was heavily intoxicated. However, while Mr Hannam subjected her to extensive cross-examination, he did not attempt to discredit her evidence. In answer to a question from Mr Hannam, Ms Goodwin stated that Mr Spittal was initially standing when being stabbed by Mr Makatea but gradually began to hunch over and finally dropped to the ground.
[8] Ms Percella Robinson-Te Namu, Mr Makatea's cousin, was the other eye‑witness. She confirmed the introductory difference between the two men and Mr Makatea's subsequent aggression. She described Mr Spittal as "a funny drunk [who] made everyone laugh". She heard somebody direct Mr Makatea to leave. As Mr Makatea was leaving, Mr Spittal made a remark which caused Mr Makatea to return.
[9] Ms Robinson-Te Namu saw Mr Makatea grab a bottle, smash it on the door and jump on Mr Spittal. Mr Makatea started stabbing him while they were in the doorway. She saw six or seven stabs inflicted. She saw Mr Spittal fall to the ground where he was kicked by Mr Makatea and an accomplice. Others at the party intervened and forced Mr Makatea to withdraw. She said that Mr Spittal was unable to stop the attack.
[10] A doctor who examined Mr Spittal at hospital gave evidence by consent. In summary, Mr Spittal suffered five clean edged wounds to his neck – one was 4 cm long, 2 cm deep and tunnelled towards his carotid artery; a clean, sharp 8 cm long wound behind his ear, described as being like a surgical incision; a half-closed right eye with bruising; and swelling about his right eye and over his right cheekbone. Mr Spittal also suffered an injury to the buttocks.
[11] Mr Makatea made a statement to the police and gave evidence at trial. To the police he asserted that Mr Spittal was the aggressor who approached him for a fight; that Mr Spittal swung the first blow which he ducked and returned; and that, while punching Mr Spittal, he had a bottle in his hand which he used to try and protect himself. At trial Mr Makatea acknowledged that his memory of events was severely impaired by intoxication and the passage of time. He was unable to explain the cause and nature of his difference with Mr Spittal. He had no memory of hitting Mr Spittal or being headlocked. He vaguely remembered stabbing Mr Spittal with a bottle but said it was for the purposes of fighting back. He remembered exchanging punches which did not connect.
[12] Mr Makatea made two important concessions in cross-examination. He acknowledged that he could have left the party if Mr Spittal was in fact intimidating him but that he chose to remain. He conceded also that Mr Spittal may only have thrown one punch at him which failed to connect. The balance of his cross-examination was characterised by an inability to remember events which might contradict the accounts given by Ms Goodwin and Ms Robinson-Te Namu. He did, however, accept the likelihood that Ms Goodwin was correct in saying that she heard him smash a bottle. He did not deny that he stabbed Mr Spittal a number of times.
Issues
(1) Previous convictions
[13] Mr Hannam submits that the trial Judge, Judge Roberts, erred in refusing to allow him leave to cross-examine Mr Spittal on his previous convictions. He says that they fell into two categories, preceding and post-dating these events. He accepts that to be admissible Mr Spittal's previous convictions must have (1) been relevant to the circumstances prevailing when Mr Makatea struck him and (2) disclosed a connection between the type of Mr Spittal's previous offending and his behaviour before the attack. Mr Hannam relies on the frequency and number of Mr Spittal's convictions to show that he is a person who habitually acts violently. The ultimate purpose of admitting such evidence was, Mr Hannam submits, to enable the jury to consider a submission that Mr Makatea's "account that Mr Spittal struck at him first could be correct or that there could be a reasonable doubt that [Mr Makatea] was the aggressor".
[14] This argument must fail on a number of grounds. It is only necessary to discuss one. Mr Hannam's proposed submission to the jury was without a factual foundation. The uncontested evidence of Ms Goodwin and Ms Robinson-Te Namu was that Mr Makatea was the aggressor who struck the first blow. Thus it was irrelevant whether or not Mr Spittal had a history of violent offending. His conduct did not provoke or initiate Mr Makatea's attack. His behaviour beforehand, according to Ms Robinson-Te Namu's unchallenged account, was good natured. Mr Hannam's fallback submission that the jury might nevertheless wish to consider evidence of Mr Spittal's previous criminal convictions for an unspecified purpose suggests that the real objective behind the application to cross-examine was to produce prejudicial material which was of no probative value.
[15] While Mr Spittal had previous convictions, there is nothing to suggest that they would establish the necessary degree of connection with this offending. They were at a low level and were for common assault, wilful trespass, disorderly behaviour and fighting in a public place in a discrete period between July 1998 and May 2001. And there was no evidence in any event that Mr Makatea knew of Mr Spittal's history before the attack.
[16] We are satisfied that Judge Roberts correctly concluded that Mr Spittal's previous offending was irrelevant and unduly remote in time, place and circumstance from the subject charges. His decision to refuse leave to cross-examine Mr Spittal on his prior convictions cannot be challenged.
(2) Self-defence
[17] Mr Hannam also submits that Judge Roberts erred in refusing to allow Mr Makatea to raise the issue of self-defence before the jury, thereby preventing him from relying on a defence which had a proper evidential foundation. Mr Hannam emphasises that Mr Spittal was a larger man who was acting belligerently towards Mr Makatea; that Mr Spittal threw the first punch in a confrontation in the hallway; that Mr Makatea believed that he was facing a threat despite Mr Spittal's punch missing its target; and that Mr Spittal had Mr Makatea in a headlock at one stage.
[18] This argument must fail. Section 48 of the Crimes Act 1961 defines self-defence as follows:
Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.
[19] It is common ground that consideration of self-defence requires a jury to undertake a three-stage inquiry: (1) did the accused person use force for the purpose of defending himself; (2) what were the circumstances as the accused believed them to be (the two subjective tests); and (3) was the force used reasonable in those circumstances (the objective test).[2] The trial Judge must decide whether there is sufficient evidence available for the jury to provide a basis for a s 48 defence. The defence should be available unless it would be impossible for the jury to entertain a reasonable doubt that the accused had acted in defence of himself. However, there must be a credible or plausible factual narrative upon which the defence is available. The Judge is entitled to withdraw self-defence from consideration if he or she is satisfied that there is no such narrative or that a properly directed jury could not possibly conclude that the accused person was acting reasonably.[3]
[2] R v Bridger [2003] 1 NZLR 636 (CA) at [18].
[3] At [21].
[20] We agree with Ms Feltham for the Crown that there was no plausible or credible factual narrative upon which any of the three elements of self-defence might be available for consideration by the jury. We endorse her submission that:
… when the evidence is considered at its highest as far as the appellant is concerned, this was a situation where [Mr Makatea] chose to return to the house and was then confronted by Mr Spittal, who swung one punch at him. [Mr Makatea] was able to avoid this and any other punches that may have been thrown. Rather than leave, [Mr Makatea] picked up a bottle, fashioned it into a weapon and then repeatedly stabbed the unarmed Mr Spittal, inflicting serious injuries to multiple areas on the back of his body. Even if he did perceive a threat from the initial punch thrown by Mr Spittal, that threat must have dissipated when it became clear to [Mr Makatea] that none of Mr Spittal's swings were connecting. Despite this, [Mr Makatea] escalated the incident by deciding to not only use a weapon, but to continue his attack until he was forcibly removed by others at the party.
[21] Furthermore, the facts as established were not capable in law of giving rise to a possible defence of self-defence.[4] We are satisfied that Judge Roberts correctly concluded that at the third or objective stage of the inquiry it would be impossible for a jury to entertain a doubt on self-defence in these terms:[5]
[25] The third issue, thus, was the force in all the circumstances as he believed them to be, reasonable. This man had a weapon that he had fashioned for conflict. It was he who initiated that final set-to, as between himself and Mr Spittal. There must be a balance between the threat that he perceived he faced, and the force that he used to meet it.
[26] I am satisfied that no reasonable man, confronted with the situation even on the most favourable interpretation to Mr Makatea, would react in the manner that he is alleged to have done. The repeated stabbing, inflicting of serious injury, in my judgment, clearly demonstrates that even if there was the perception of threat then it went far, far beyond what was necessary to repel that threat.
[4] R v Wang [1990] 2 NZLR 529 (CA) at 536-537.
[5] R v Makatea DC New Plymouth Cri-2008-043-2941, 24 July 2009.
Result
[22] Mr Makatea's appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington
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