Mavor v Police
[2017] NZHC 1935
•15 August 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2017-425-19
[2017] NZHC 1935
BETWEEN JESSICA NICOLE MAVOR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 June 2017
(further submissions received 29 June 2017)
Appearances:
F E Guy Kidd for the Appellant J N P Young for the Respondent
Judgment:
15 August 2017
Reissued:
12 October 2017
JUDGMENT OF NICHOLAS DAVIDSON J
ADDENDUM
This judgment re-issued on 12 October 2017 because after this judgment was delivered, a discharge without conviction for assault was directed at re-sentencing on 22 September 2017 [2017] NZHC 2301. This judgment should be read subject to this addendum.
Introduction
[1] On 29 March 2017, the appellant was convicted in the District Court at Invercargill on one charge of wounding with reckless disregard for the safety of another under s 188(2) Crimes Act 1961.1 This followed a Judge-alone trial. The appellant submits that a miscarriage of justice has occurred.
1 Police v Mavor [2017] NZDC 6490.
MAVOR v NEW ZEALAND POLICE [2017] NZHC 1935 [15 August 2017] re-issued 12 October 2017
[2] These introductory facts are drawn from the judgment. On the evening of 11 February 2016, the appellant was at a barbeque with a group of friends at a Ms Palmer’s home. Around 10:30pm a group of five or six women, including the appellant, Ms Palmer and a Ms Clearwater, went to The Ranch bar in Te Anau. They were slightly intoxicated when they arrived. Mr Tamariki, also referred to as the “complainant”, was Ms Palmer’s partner. He was at the bar and had also been drinking.
[3] The complainant approached Ms Palmer to give her what he described as a “hug”. The appellant and Ms Clearwater said his approach was not welcomed by Ms Palmer and they told him to leave her alone. He began to walk away from their group, but then tried to rejoin them. In doing so he pushed or shoved the appellant who responded by hitting him in the face while holding a glass in her hand. The glass broke and the complainant sustained a flesh wound to his chin.
The charge
[4]Section 188(2) of the Crimes Act 1961 reads:
188 Wounding with intent
…
(2) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.
[5]The prosecution must prove:
(a)That the defendant [appellant] wounded the complainant; and
(b)That the defendant [appellant] knew that [her] actions could well result in consequences of that kind, and took that risk.
[6] Recklessness requires foresight by a defendant of a possibility that the prohibited event or consequence may result from his or her actions, together with an
intention to continue the course of conduct regardless of the risk.2 Serious harm needs only to be foreseen as possible, not probable.3 The defendant here did not need to foresee the degree of harm that resulted, merely that her actions could well compromise the safety of the complainant.4 I refer to this further under Analysis, but consider the expression “conscious taking of foreseen risk” as apposite to the state of mind required to be proved by the prosecution.
District Court Judgment
[7] At trial, the main issue was whether the appellant knew she had a glass in her hand when she struck the complainant. She denied that knowledge which is central to proof of the charge. The defence also submitted that the appellant was acting in self- defence, because she felt under direct attack from the complainant.
[8] The Judge very carefully summarised the evidence and the respective cases for the prosecution and defence. The appellant did not give evidence in court, but gave her explanation on a DVD interview. The Judge set out her extensive findings.5 She found that the appellant had, during her time on the dance floor, been holding a glass in each hand at times. She inferred that the appellant had the glass in her hand just before she struck and wounded the complainant. There is no doubt about that.
[9] The Judge found that the complainant was not acting aggressively towards the appellant. She found that the complainant moved away from the appellant and her group, but then tried to rejoin Ms Palmer on the dance floor. In doing this he pushed or shoved the appellant, but the Judge did not accept that his actions were more than this. She did not find that he “lunged” or “lurched” towards the appellant, as the appellant said in her video interview.
[10] The Judge accepted that the appellant was protective of Ms Palmer, but did not accept that the appellant was under attack or threat from the complainant. She
2 R v Harney [1987] 2 NZLR 576 (CA); R v Tipple CA217/05, 22 December 2005 at [27]–[35].
3 Aubrey v The Queen [2017] HCA 18, (2017) 91 ALJR 601 at [41]–[47].
4 R v Cunningham [1957] 2 QB 396, [1957] 2 All ER 412 (CA) at 399-400 and 413-414; R v Mowatt
[1968] 1 QB 421, [1967] 3 All ER 47 (CA) at 426; Cryer v R [2010] NSWCCA 18.
5 Above n 1, at [135] – [180].
found that to connect with the complainant’s chin in the way she did, the appellant had to move forward and upwards towards him.
[11] The Judge also found as a fact, that within a minute of the appellant holding the glass in her left hand, she hit the complainant in the face with her right hand holding the glass. The Judge inferred that the appellant transferred the glass from her left hand in the interval, and that this supported the prosecution’s case that the appellant’s action in hitting the complainant with the glass was not “accidental”.
[12] The Judge also found that the appellant’s actions after striking the complainant, and leaving the scene without rendering him assistance, do not support her actions as being accidental. The complainant left the bar immediately. The appellant did so shortly after. While the Judge accepted that the appellant may have been shocked by the result of her actions, the wound she caused by striking the complainant with the glass was not an “accident” and that meant she was aware she held the glass at the time.
[13] The Judge found as a fact that the appellant’s actions were reckless, within the meaning ascribed by law as the appellant intended to hit the complainant, knew she had a glass in her hand, and knew that her actions could well result in his being injured, but took that risk regardless. This is not a finding that she intended that the glass break and wound him, but that she was reckless as to the consequence of her actions.
Principles on appeal
[14]Section 232(2) of the Criminal Procedure Act 2011 (“the Act”) provides that:
(2)The first appeal court must allow a first appeal under this subpart if satisfied that, -
…
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
[15]Section 232(4) of the Act provides:
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that –
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
The proviso
[16] In Wiley v R, the Court of Appeal confirmed that the approach to s 385(1) of the Crimes Act 1961 (repealed) has not been changed by the legislation.6 The Court also confirmed the proviso that an appeal may be dismissed if the appellate court is sure of the appellant’s guilt. The Crown is still able to argue that a conviction was inevitable or the only reasonable possible verdict despite an otherwise fatal uncorrected error. The Court expected that an appeal court would take a “sparing” approach to confirm a conviction in those circumstances, as an alternative conclusion is difficult to reach simply on the trial record.
Review of the evidence on appeal
[17] The appeal proceeds by way of rehearing. The Court may substitute its own view of the facts. Adams on Criminal Law says, by implication, subsection 2(b) requires the appeal court to give a Judge’s reasoning close scrutiny and come to its own decision on the facts.7 In R v Slavich, the Court indicated that closer appellate scrutiny of the reasoning process may be appropriate when a fully reasoned judgment was given.8 Still, the appeal court will only interfere with the trial Judge’s findings of fact in exceptional circumstances. The availability of reasons in Judge-alone cases means the Court is better placed to evaluate the likely outcome of a re-trial, including the effect of new evidence, and whether the re-trial would offer the Crown an unfair opportunity to improve upon its case.9
6 Wiley v R [2016] NZCA 28 at [30] and [56].
7 J B Robertson(ed) Adams on Criminal Law (online looseleaf, ed Thomson Reuters) at [CPA 232.06].
8 R v Slavich [2009] NZCA 188 at [33].
9 Banks v R [2015] NZCA 182 at [22].
Miscarriage of justice
[18] For s 232(2)(c) to apply, and a miscarriage of justice to have occurred, there must be an error, irregularity or occurrence in or in relation to or affecting the trial. It must have created a real risk that the outcome of the trial was affected. The range of such circumstances is not confined. A “real risk” arises if there is a reasonable possibility that a not guilty verdict may have been delivered if nothing had gone wrong
- Sungsuwan v R,10 confirmed in Wiley v R.11
“Lurking doubt”
[19] The Court of Appeal in the United Kingdom has recognised the validity of bringing to bear a “lurking doubt” as to whether an injustice has been done. The principal authority was Cooper where Lord Widgery CJ said:12
It has been said over and over again throughout the years that this Court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing up was impeccable, this Court should not likely interfere.
[20] This requires the Court to ask itself a subjective question as to whether the outcome should stand as it is or whether there is some lurking doubt which made the Court wonder whether an injustice has been done. The Court went on to say:13
This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it.
[21]In Ex parte Pearson, Lord Bingham CJ said:14
Cases however arise in which unsafety is much less obvious; cases in which the Court, although by no means persuaded of an appellant’s innocence, is subject to some lurking doubt or uneasiness whether an injustice has been done (see R v Cooper…). If, on consideration of all the facts and circumstances of the case before it, the Court entertains real doubts whether the appellant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe.
10 Sungsuwan v R [2005] NZSC 57; [2006] 1 NZLR 730; (2005) 21 CRNZ 977 at [110], per Tipping J.
11 Above n 6, at [27].
12 R v Cooper [1969] 1 All ER 32.
13 R v Cooper, above n 12, at 34.
14 R v Criminal Cases Review, ex parte Pearson [1999] 3 All ER 498 at 502.
[22] This seems to me recognition that there are cases where there is a doubt sufficient to leave a court with a sense of unease. It may be hard to define, but it still must be a real doubt.
Submissions
For the appellant
[23] The appellant pleaded that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred on these grounds:
(a)The Judge failed to sufficiently focus on the issue of whether the appellant knew she had a glass in her hand at the time she struck the complaint, an essential element of the charge, and the Judge failed to adequately consider the appellant’s statement to the Police on this issue;
(b)The Judge failed to refer to and consider the evidence of Ms Hayley Dawson;
(c)The Judge erred in concluding that the appellant’s actions, after she hit the complainant “do not support her actions being an accident”;
(d)In assessing the appellant’s action after the incident, the Judge failed to take into account evidence available that:
(i)The complainant immediately ran outside after being hit; and
(ii)The appellant went downstairs the other way so that he could not get to her;
(e)There is fresh evidence (an audio recording) that supports the appellant’s fears for her safety and her explanation for not rendering assistance after the wounding of the complainant;
(f)The Judge erred in concluding that the appellant had transferred her glass from her left hand to her right hand and that supported a finding
that the appellant’s action in striking the appellant with the glass in her hand was not accidental;
(g)The Judge erred in concluding that the evidence of Ms Clearwater, particularly her description of the appellant’s action as retaliation, did not support the appellant’s action being accidental; and
(h)The Judge erred in her approach to the assessment of self-defence and failed to consider the circumstances as the appellant believed them to be (which are to be assessed subjectively).
[24] In written submissions, the appellant, through counsel Ms Guy Kidd, did not address all of these grounds, and before me placed some emphasis on the submission that a miscarriage of justice occurred because the Judge failed to take the evidence of Ms Dawson into account. Ms Dawson’s statement was adduced uncontested under s 9A of the Evidence Act 2006. The Transcript shows that the prosecutor handed up her statement with two others at the beginning of the trial. The evidence is submitted to be important because, just after the incident, Ms Dawson heard the appellant say that she did not realise that she had a glass in her hand when she hit the complainant, which was an admission that she had hit him, but otherwise exculpatory as to the charge she eventually faced and exactly on point as to her state of mind at the time.
[25] Ms Guy Kidd submits that this statement supports the appellant’s version of events in her police interview, and the Judge’s alleged failure to take this into account gives rise to a real risk that the outcome of the trial was affected. However, it is but one point on appeal.
[26] The appellant also submits that the Judge was wrong to infer that transfer of the glass from her left to her right hand in the minute or so before the incident supported a finding that the appellant was aware that the glass was in her hand when she hit the complainant. The act of transfer was not described in evidence but was an inference drawn from a video still. Counsel submits that there are other reasons why the appellant may have transferred the glass, which would count against the conclusion that she was aware it was in her right hand when she hit the complainant.
[27] Counsel also submits that the Judge erred in inferring anything from the appellant leaving the scene and not rendering assistance to the complainant, and that the Judge conflated two issues when addressing Ms Clearwater’s evidence. It was never suggested on behalf of the appellant that she did not intentionally hit the complaint. Rather, the focus was on whether she intentionally hit him knowing or appreciating that there was a glass in her hand.
For the respondent
[28] Mr Young submitted that the Judge appropriately considered all of the evidence and did not err in making any factual findings. While he acknowledges that the Judge erroneously referred to a defence burden in relation to self-defence as being beyond reasonable doubt, this was remedied later when the Judge stated that “I am unable to conclude that there is sufficient evidential basis to support the defendant was acting in self-defence”.15
Analysis
[29] Before I undertake the analysis required, I record some fundamental considerations. The trial judge heard evidence and reached conclusions. They should stand unless they are unsustainable, or wrong. Here, there is evidence which was never tested, so on appeal this Court is in the same position as the Judge in consider that evidence. Ms Dawson’s evidence and the DVD interview are in this category. On a rehearing these facets of the evidence must be considered in themselves, and together, with all the evidence.
Knowledge of the glass in her hand
[30] This is the fundamental question on appeal. The Judge inferred that the appellant knew she had the glass in her hand at the time she hit the complainant, and rejected her denial. The question on appeal is whether this is a conclusion of which this Court can be sure.
15 Above n 1, at [169].
[31] Ms Guy Kidd submits that the Judge regarded the transfer of the glass from her left to right hand over the course of a minute as supporting the prosecution case that the appellant’s action was not “accidental”. There are a number of reasons why she may have transferred the glass to her right hand. It may have been transferred subconsciously, in reaction to movements on the dance floor around her, or possibly, as I see it, that she may have simply wanted to change hands after holding her drink for a while in one hand.
[32] It is reasonable to infer that the appellant must have been aware at some point that she was holding the glass in her right hand, having transferred it there, but the issue is whether the appellant was aware of that when she struck the complainant.
Impulse
[33] The Judge considered that while the appellant was upset and shocked at the result of her hitting the complainant, and it was impulsive, this did not demonstrate that she was unaware that her actions could compromise the complainant’s safety. To this extent, the reasoning cannot be impugned. Her shock and upset were consistent whether she recklessly wounded the complainant, or it was a sheer accident, without intent or reckless disregard for the complainant’s safety.
Fleeing the scene
[34] Ms Guy Kidd submits that the appellant was, with good reason, afraid of retaliation due to injury to the complainant and therefore left the premises for her safety. Counsel protests the Judge’s conclusion that this fleeing the scene did not support the claim that her action was accidental. Although the appellant may have been justified in wanting to get away from the scene to protect herself, this does not indicate whether she knew she had the glass in her hand or not. Either way, harm was done to the complainant, giving him and his associates cause to be angry at the appellant and there was undoubtedly shock at the wounding and the blood. The evidence is equivocal. I do not consider that the appellant’s actions after leaving the scene support the conclusion that she was aware that the glass was in her hand.
Ms Dawson’s evidence and the DVD interview
[35] Ms Dawson’s evidence was not mentioned by either counsel in closing at trial, nor in the judgment. The Judge went through the witnesses, one by one, and neither listed, nor mentioned, Ms Dawson or her evidence.
[36] Ms Dawson was Duty Manager at The Ranch Bar. She was outside the Bar, on the street when the incident occurred. She did not know the appellant, at least by name. It was after the complainant emerged, bleeding, and she had taken steps as Duty Manager, that she saw the appellant who told her she “didn’t realise” the glass was in her hand, and that the appellant looked shocked, and said:
Something along the lines of ‘I forgot’ or ‘I didn’t realise I had the glass in my hand’.
[37]That is to be set alongside what the appellant said in her DVD interview:
“and then he lunged towards me and I went to hit him away. Um, yeah, I reached … I didn’t even realise the glass was in my hand it was just like, it didn’t go through my mind and I hadn’t thought about it. It wasn’t like a thought, thought out reaction, and then so I hit him and obviously he just, he just turned around and left.
…
So I just come up with my hand to push him away and I had my glass in my hand but I was just, it was a normal, I was drinking that night. It was you know, it wasn’t, I didn’t mean to. I didn’t think about it. It wasn’t a thought you know.
[38] Ms Guy Kidd submits that as the Judge failed to refer to Ms Dawson’s evidence anywhere in her judgment, and not in the bullet point list of those who gave evidence, and counsel did not mention it in submissions, the inference is that her evidence was overlooked and not taken into consideration. The appellant made this statement to Ms Dawson very soon after the incident had taken place, and it was consistent with the statement she later gave to Police, that she did not realise she had the glass in her hand.
[39] Mr Young submits that Ms Dawson’s evidence does not add anything to what the appellant said in interview, which was referred to by the Judge. The Judge saw and heard that interview. Counsel correctly submits that the Judge is not required to refer to every item of evidence presented to the Court. The Judge’s role as the fact-finder
is to determine evidence which is useful and accurate and then reach conclusions based on that. A judge is required to reach a decision based on the overall effect of the evidence heard, not on his or her specific findings on every individual piece of evidence.16 Nonetheless, a judge is required to give reasons that adequately reflect how the decision was reached. This enables the judgment to be understood by others and to ensure that it was reached properly.
[40] In Deliu v Connell, the Court held that the Legal Complaints Review Officer (LRCO) “is not required to refer in its decision to all the material it received”.17 The Court found it was sufficient that, in its decision, the LRCO recorded that it had carefully reviewed all the information before the Committee. In Cadman, Morris J heard an appeal about the interpretation of a lease.18 One of the allegations on appeal was that the Judge had failed to refer to the evidence of one of the witnesses when giving reasons for her decision. However, Morris J held that the Judge:19
was called upon to reach decisions and give rulings on the overall effect of the evidence put before her. I cannot conclude from the material before me she has failed in this regard. I have never understood the law to be a judge is required to mention every piece of evidence put before her in a judgment particularly when the judgment, as in this case, is succinct and to the point.
[41] Morris J, however, noted that the Judge referred to having heard from the witness in question, among others. He was therefore able to conclude that she had taken that evidence into account when reaching her decision.
[42] Ms Guy Kidd submits that this relevant evidence was not taken into account, or it is not safe to assume it was, and the outcome therefore cannot stand, as the evidence was right on point. The fact that the Judge did not mention Ms Dawson’s evidence does not of itself mean that she did not take it into account when making her decision. She may have analysed it and considered it not be credible, and/or not relevant or helpful to determine whether the appellant was reckless. To reach that conclusion, I need to infer that the Judge did at least consider Ms Dawson’s evidence when reaching judgment.
16 Cadman v Rensford HC Auckland P3175/91 ,14 March 1996 at 7.
17 Deliu v Connell [2016] NZHC 361 at [34].
18 Cadman v Rensford, above n 16.
19 At 7.
[43] The detailed judgment assessed the evidence on several fronts to reach conclusions. Whether the appellant was aware that she had the glass in her hand at the time she hit the complainant was the key issue but that involved other findings. The fact that the Judge did not canvass or refer to the evidence of Ms Dawson, which supported the appellant’s argument, indicates that she may not have taken it into account. At the very least it gives rise to doubt, as it was on point and was at least to be considered for admissibility and if admissible for weight.
[44] Ms Guy Kidd emphasises that Ms Dawson’s evidence is relevant to the key question, whether the appellant realised she had the glass in her hand when she struck the victim. She pointed out that there was little other evidence on this point beyond the denial by the appellant. Therefore, she submits that there is a reasonable possibility that a more favourable judgment could have been reached if this evidence had been considered. I put this another way. Can this Court on appeal be sure that the evidence was brought to account? If not, what is its effect on the appeal by way of rehearing in this Court, given other findings and given that the Judge was advantaged by having heard all the evidence, and seen the DVD? I have also watched and listened to the appellant’s DVD interview so I am in the same position as the Judge in considering the DVD evidence, and Ms Dawson’s evidence, neither tested at hearing.
[45] The appellant claimed, based on the evidence she gave in her police interview, that she had not realised that she had the glass in her hand. The Judge closely considered the appellant’s interview statement to police.20 She found that the evidence was largely “self-serving” and therefore gave it little weight.21 Any denial is self-serving. I think the Judge meant more than this. Her appraisal of that evidence was in effect a rejection, “self-serving” meaning not credible, not raising a doubt in the Judge’s mind. However, if Ms Dawson’s evidence is relevant, and admissible as to the appellant’s denial, then it must be assessed together with the DVD evidence.
[46] The evidence from Ms Dawson is not determinative. It is evidence of what the appellant said about the incident shortly after, much the same as that given at interview. The appellant’s comments were not made immediately after she hit the victim, but
20 At [107] – [115].
21 At [134].
shortly afterwards. She realised what she had done. This evidence is relevant, but I must determine the admissibility of such evidence, and the credibility and the weight I give it against all the evidence and the Judge’s other findings.
The admissibility of Ms Dawson’s evidence
[47] Section 35 of the Evidence Act 2006 provides that a prior statement consistent with the evidence of a witness is not admissible unless, under s 35(2)(a) it responds to a challenge made to the witness’s veracity or accuracy, including a challenge based on a claim of invention on the part of a witness, or otherwise forms an integral part of the events before the Court (s 35(2)(b)).
[48] If the previous inconsistent statement is admissible under s 35 of the Act then it will be to prove the truth of its contents, confirmed by the Supreme Court in Hart v R.22 However, the statement to Ms Dawson is not admissible as consistent with evidence at trial, as the Supreme Court considers that is only applicable to the evidence given in Court.23 Ms Dawson’s evidence is inadmissible to prove the truth of what the appellant said in interview.
[49] Under s 35(2)(b) of the Act, statements form an integral part of the events before the Court if they are made during the course of the offence. This brings such statements within the range of the common law res gestae doctrine in terms of the Supreme Court Judgment in Rongonui v R.24 Words uttered by complainants while they are subject to criminal offending are not caught by the prohibition on previous consistent statements, because s 35(1) is designed to prevent a bolstering of testimony by reference to something said to the same effect on a previous occasion.
[50] The words spoken by a complainant during an event are not an account of it, but part of it. The authors of Adams say that it is probable that s 35(2)(b) is to be liberally interpreted.25 The admissibility of a statement made by the victim of a fatal attack was determined by the circumstances being so dramatic as to dominate the
22 Hart v R [2010] NZSC 91 at [31].
23 Adams on Criminal Law, above n 7, at [EA 35.01(4)]; R v Singh [2010] NZCA 144 at [48]. Evidence[35.01(1)(4)]; R v Singh at [48].
24 Rongonui v R [2010] NZSC 92.
25 Adams on Criminal Law, above n 7, at [EA 35.15A(3)].
thoughts of the victim and negate the possibility of concoction or distortion.26 The Court of Appeal rejected as a spontaneous utterance statements made by the defendant’s sister three days before the events in question in R v Bain.27
[51] Simon France J, in R v A1/806, admitted evidence of hearsay statements by the defendant’s wife as to what the defendant said to her on the telephone before his fatal actions, admitting the evidence under the doctrine of res gestae, saying “The general factual matrix of the evidence in dispute… is one of compelling contemporaneity, involving intensity and spontaneity”.28 The whole rationale for a spontaneous utterance to be admissible is the guarantee of reliability offered by the proximity between the making of the statement and some startling event, and it is only on that basis that it can be admitted.29 It is enough that the effect of the trigger event is still operative at the time of the statement.
[52] The appellant made her exculpatory remark as she left the scene, clearly shocked, and clearly acknowledging she hit the complainant. It was a statement made a short time after the incident, in my view in the immediate aftermath. The defendant was either telling the truth or falsely making an exculpatory remark. It is in my view admissible, but it is to be weighed with all the evidence. Adams describes declarations as to state of mind as at the cutting edge of the hearsay rule.30 An exception to the hearsay rule may apply when the speaker’s state of mind is in issue, or sufficiently relevant to an issue to justify its admission.
[53] Had the Judge brought Ms Dawson’s evidence to account, it is not known what she would have made of it in conjunction with other evidence including the interview. The Judge had to assess her credibility and her denial that she was aware that the glass was in the striking hand.
[54] The evidence of Ms Dawson was adduced, I infer, for the purpose of proving that it was the defendant who was involved in the incident. To that extent, it
26 R v Andrews [1987] 1 All ER 513 (HL).
27 R v Bain (1995) 13 CRNZ 684; [1996] 1 NZLR 129 (CA).
28 R v A HC Auckland CRI-2005-004-17305, 1 August 2006 at [41].
29 Tobi v Nickolas [1988] RTR 343.
30 Adams on Criminal Law, above n 7, at [EA 09.07].
constituted an admission of her involvement. As there was no doubt about that, I suspect it lost its import in the case, but it included the hearsay exculpatory statement.
[55] The appellant did not “flee”, it seems on the evidence of Ms Dawson. Whether she helped the complainant is not known, but unlikely. He was assisted outside by another. The Judge thought this “fleeing the scene” was not consistent with a sheer accident. That is at best equivocal in my view.
“Intent”
[56] The Judge reached her conclusion with a reference to intent, which is not an element of the charge. I refer to paragraphs [5] and [6] of this Judgment. The Judge said:
[177] Having concluded that self-defence is not open to the defendant, or, in the alternative, being satisfied the prosecution have proven beyond reasonable doubt that the defendant was not acting in self-defence, have the prosecution proved that the defendant had an intention to wound Mr Tamariki with reckless disregard for his safety?
[178] Intention must be looked at, at the very moment of the act. Intention does not require any premeditation or planning, and may be unplanned, impulsive, and immediately regretted. It is still intent if a defendant means to do something only in retaliation. A fleeting or angry intent is still an intent for legal purposes.
[179] In such a case the prosecution has to rely on inferences and conclusions from all of the surrounding circumstances to see whether, in a particular case, a particular state of mind has been proven. The circumstances include what the defendant said and did before, during and after the incident.
At para [180], the Judge concluded that the appellant:
… at the very moment she hit Mr Tamariki with a glass, knew her intended actions could well result in Mr Tamariki being injured (cut with the glass) and that she took that risk regardless.
[57] Thus, the question put at paras [177] and [178] of the judgment included intent and reckless disregard, and at para [180] reverted to the correct test. This is not a charge which in any way involves intent except as to the admitted intent to hit Mr Tamariki.
Conclusion
[58] I do not, on the evidence of the DVD interview itself, have a reasonable doubt about the appellant’s awareness that she had the glass in her hand. There is nothing about the interview statement to leave me in such doubt.
[59] The lack of reference to the evidence of Ms Dawson does not automatically give rise to a miscarriage of justice, but I have held it is admissible, being so closely associated with the incident that it has immediacy and credibility in conjunction with the other evidence including the DVD interview.
[60] The question then is whether the appellant’s evidence given at interview, together with Ms Dawson’s evidence, other important findings of the Judge, and other evidence, leaves this Court in reasonable doubt.
[61] The Judge’s findings as to the conduct of the various people in the bar and the setting for what occurred must stand. There was no “attack” by the complainant on the appellant. The Judge found that the complainant had not lunged at the appellant or been aggressive to her and there is no evidence that the appellant subjectively believed she was under threat from the complainant. This was a conclusion open to the Judge.
[62] The Judge’s findings also do not support a truly reflexive action by the appellant, such as her being startled. Ms Guy Kidd takes issue with the Judge’s conclusion that Ms Clearwater’s description of the appellant’s actions as “retaliation”, which did not support the appellant’s actions as being accidental. She submits that it was never suggested on behalf of the appellant that she did not intentionally hit the complaint. Rather, the focus falls on whether she hit the complaint, knowing that there was a glass in her hand and therefore the Judge erred in assessing Ms Clearwater’s evidence. I regard the expression “retaliation” as equivocal, as the appellant was responding to a firm shove by Mr Tamariki.
[63] The reasonable inference is that someone is aware they hold something in their hand, here the glass. Still, the Court must be sure of the “conscious taking of risk” and the test is whether the appellant recognised the risk that the glass might break,
which also means she had to be aware it was in her striking hand, but still went through with it. That foresight must be of the appellant, as to consciously disregard a possible consequence is to first be aware of it.
[64] There are circumstances where someone may in company brandish an object of such size and in such a way that the only inference is that they were aware of the risk they posed to others.
[65] This case is somewhere in between the truly reflex action and the obvious taking of risk. The appellant did not pick up the glass. The Judge correctly found that she had the glass in her hand while she was dancing. I have reservations about the conclusion that she was aware of the glass being in her hand because about a minute before, or less than that, the glass was in her left hand and it therefore had been transferred to the right. It seems to me there is little in that inference, because the glass may have been transferred hand to hand from time to time. She was holding the glass while she was dancing. I proceed on the basis that she had the glass in her hand, but, other than the usual inference that someone would be aware of that fact, this is as far as it goes.
[66] The Judge’s careful findings with regard to the dynamics of this incident are important. She found that the appellant was protective of Ms Palmer, and she thought she was helping her by keeping Mr Tamariki away. She clearly had reservations about him, which went back some way. Generally, however, she clearly wanted to help Ms Palmer by keeping the complainant away.
[67] The Judge referred to the evidence of Ms Clearwater who said that she thought that the complainant had pushed the appellant on the shoulder, and reacted with a “kind of push back using her right arm”. Ms Clearwater demonstrated the right arm with her hand about hip height by “pushing upwards”. The Judge described the forward and upward movement. The Judge said “she confirmed the defendant did this immediately”. Ms Clearwater described the force used, on a scale of one to ten, as “probably a seven”.
[68] I have concluded this was not a reflexive reaction of a kind where there is no opportunity to appreciate and understand the implications of one’s actions. However, I bring to account that this was an immediate response to being pushed or shoved and with or without the knowledge of the glass in hand, it was a deliberate act.
[69] It is difficult to decide not what someone intended, but as this charge requires what they understood they were doing, and for its foreseeable effect. That involves knowledge and decision making. The prosecution must prove that the appellant was conscious that the glass was in her hand and of the risk she created by her actions, and that she consciously disregarded that risk. The appellant says this was just an immediate reaction to being pushed or shoved by a big man in order to get to her friend.
[70] The most I take from the DVD interview is that the appellant denies any awareness the glass was in her hand. She did not initiate the physical contact. There was no high level aggravation between the complainant and the appellant. That brings me back to Ms Dawson’s evidence. I have concluded that while not admissible as a prior consistent statement, it bore immediately on the incident, very soon afterwards, although it is not possible to fix the exact interval between the complainant being wounded and the discussion between Ms Dawson and the appellant. The appellant’s shock was to be expected, whether the appellant was reckless in her actions as charged, or even if it was a sheer accident. However, the appellant spoke to Ms Dawson, who did not know her name, and said that she did not realise she had the glass in her hand. It is exculpatory and, on that score, might be dismissed, however, she did not have to acknowledge to Ms Dawson that she was involved at all, and when I put that with what she said about her state of mind, it adds to the credibility of her statement.
[71] The Judge did not have detailed submissions before her as to Ms Dawson’s evidence, as I have had the considerable advantage. The Judge’s reasoning was detailed and careful. On appeal I have brought to account Ms Dawson’s evidence on a principled basis, and the Judge, I think, clearly would have addressed that, given her
express reference to the relevance of what the appellant did before, during and after the incident.31
[72] There is no element of intent involved and the charge requires a subjective assessment of the appellant’s knowledge and appreciation of what she was doing, of the risk of wounding. I am left with a reasonable doubt that she had the requisite appreciation that she held the glass when she hit the complainant, and thus foresaw the risk of wounding him by the glass breaking. She too took the very real risk of being hurt if the glass broke.
[73] I have concluded that the provisions of ss 232(2)(c) and 232(4)(a) are satisfied, as all evidence before the Court must be brought to account and there is doubt about that. This is clearly the product of the way the case was put to the Judge.
Disposition
[74] The appeal is allowed and the conviction set aside. A conviction for common assault under s 196 of the Crimes Act 1961 is substituted. The sentence imposed is
31 At [179].
set aside and the appellant will be re-sentenced on the lesser charge. There is adequate sentencing material on the Court file, and I propose to re-sentence in this Court, via AVL link, unless the Court is sitting in Invercargill.
…………………………………………
Nicholas Davidson J
Solicitors:
F E Guy Kidd, Barrister, Invercargill Preston Russell Law, Invercargill
11
0