McDonald v The Queen

[2004] NZCA 162

IN THE COURT OF APPEAL OF NEW ZEALAND

CA142/04

THE QUEEN

v

LAURENCE SCOTT MCDONALD

Hearing:26 July 2004

Coram:Glazebrook J
Gendall J
Randerson J

Appearances:  W N Dollimore for Appellant

D J Boldt for Crown

Judgment:29 July 2004 

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

[1]       This is an appeal against conviction following a jury trial in the District Court at Hamilton on 17 March 2004.  The appellant was found guilty of endangering the safety of a motorist by intentionally throwing a bottle at his vehicle (s203(2) Crimes Act 1961) and further, of causing grievous bodily harm to the passenger in that vehicle with reckless disregard for her safety; (s188(2) Crimes Act 1961).

[2]       The grounds of appeal are that the verdicts of the jury were unreasonable and/or could not be supported having regard to all the evidence; that the summing-up of the trial Judge was wrong and unfair; and that a properly directed jury would not have rejected the possibility that another person was responsible for the events that occurred.  The essence of the appeal was that the identification of the appellant as the offender was flawed.

[3]       The events which led to the charges occurred on 6 December 2002.  The appellant was a passenger in a motor vehicle being driven at Whatawhata by a friend, Brandon Keepa.  Passengers in the vehicle were Andre Warena (seated in the front passenger seat), Vincent Keepa (seated on the right side of the back seat), Mark Witehira (seated in the centre of the back seat) and the appellant (seated on the left of the back seat).  All passengers had been drinking.  The car came upon a slower vehicle, a Mazda, and Brandon Keepa proceeded to tailgate it in an intimidatory and dangerous manner.  He was subsequently charged with dangerous driving and failing to stop after an accident and to which he pleaded guilty.

[4]       The vehicle being driven in which the appellant was a passenger then came up alongside the slower moving car.  For some three or four seconds it proceeded to keep pace with it.  The left hand front and rear windows were down.  The driver of the Mazda (Mr Thompson) noticed the passenger in the left rear seat leaning out of the window shouting a form of abuse.  That passenger appeared to be quite aggressive and yelling and then threw a bottle of beer at the car, which hit the car on the side of the bonnet.  Mr Thompson lost control of the vehicle which left the road, hit a bank, and a female passenger suffered serious life threatening injuries.  Mr Thompson described the appellant’s car as being parallel with him for about six seconds and that the occupant of the back left passenger seat who was leaning outside the vehicle had:

Long dark hair, black hair, Maori, um, yeah his hair was mainly up to his shoulders….Apart from his body being out, half way out the window, curly black hair, black.

[5]       All witnesses in the car, and the appellant in his statement to the police accepted that the passenger in the left rear seat was the appellant.

[6]       The Crown called Vincent Keepa whose brother was driving the vehicle.  Seated in the right rear passenger seat, he said that nothing unusual happened in Whatawhata Road.  He met up with the appellant and other occupants of the car about a week later to discuss matters, which eventually led to occupants going to see the police.  His evidence was that he knew nothing personally about the accident, and he saw nothing.  In cross-examination he was more accommodating and said he could remember the passenger in the left front (Warena) seat throwing a bottle out of the car and agreed with counsel’s suggestion that this was “just after the other car had been overtaken”.  He said that he did not see the appellant throw any bottle out and that he did not see the front passenger Andre Warena leaning out of the window.

[7]       The Crown called Mark Witehira, who sat in the centre rear seat of the vehicle.  He said that all of the occupants were pretty drunk, apart from the driver, and he confirmed the location of each of the occupants in the car.  He said that in Whatawhata Road they overtook the other vehicle, there was nothing unusual about it but

As we passed the car [I think the accused], put his head out the window, smiling at them.

….

About from chest up, sort of.

Q.And how did he do that?

A.I don’t know just put his head out, just looking at them.

Q.When he had his head out the window, what part of his body could you see?

A.Just mainly his back.

Q.And how long did he have his head out the window for?

A.Just until we got in front of the car I suppose.

Q.How long do you say that took?

A.Two, three seconds.

He said that no one else in the car had their body out the window and that the appellant had a bottle in his right hand from which he was drinking beer, but that he did not do anything with it, other than retain it in his hand when returning inside the car. 

[8]       In cross-examination he agreed with defence counsel’s suggestion that he saw Andre Warena throw a bottle out the window, he having just flicked it out so as to smash it on the road in front of the car that had been overtaken.  He said that this was an empty beer bottle which was inconsistent with the evidence as to there being contents remaining in the bottle held by the appellant.

[9]       The other Crown witness was the driver of a following motor vehicle, Ms Knight.  She was not able to identify the appellant as having been the person who threw the bottle at the Mazda vehicle.  She was able to confirm the tailgating by the vehicle in which the appellant was travelling, and observing that the driving was erratic so as to cause her to drop back.  Her evidence was that she observed an occupant of the vehicle in front of her leaning out of the window:

He sort of was, just leaning out, this is the first time he appeared out of the vehicle, um, looked to be trying to communicate with the driver of the Mazda.

….

He then went back inside the vehicle, um, and then appeared again outside the vehicle, a lot further out than he had the first time.

….

Q.What could you see of his body?

A.It sort of, from above his waist, his chest, um, his upper torso, leaning out of the vehicle, his arms, both arms.

….

Um, one arm, his left arm appeared to be leaning on the vehicle as support, and the right arm appeared to have a beer bottle.

She said the whole incident happened quickly and that she was probably a couple of car lengths behind the Mazda:

….so I couldn’t really see exactly the car on the other side of the road.

She said she could see the occupant leaning out of the vehicle and could see his arms and chest above the vehicle but she had a blind spot between the two vehicles and did not actually see the bottle thrown but she deposed that she saw an arm come down and then observed broken glass, beer foam and liquid coming over the roof of the Mazda.  The car lost control, left the roadway and hit a bank.  Her evidence in chief was that she could not see exactly from where inside the vehicle the bottle thrower was seated, but assumed he was in the front seat.  She said that initially she believed he was in the front seat, but said that she could not be totally sure.

[10]     In evidence she described the person leaning outside the car as having a short dark haircut with a light coloured T-shirt “possibly a fawny colour, may be a dirty white T-shirt”.  In cross-examination, it was put to her that she originally told the police that the occupant who threw the bottle had normal short hair, she described the T-shirt as fawny, and that the person who threw the bottle came out of the front left hand window.  She agreed that she had said that when her original statement was put to her and she said that “I wouldn’t have thought that the bottle had come from the back because I remember seeing occupants sitting in the back seat”.

[11]     The evidence was that the appellant in a statement to the police said that Warena was wearing a blue hat and blue jersey.  Whilst he could not remember his clothing a video surveillance camera record approximate to the events in question showed him to be wearing a white T-shirt.

[12]     The appellant did not give evidence but made detailed statements to the police.  The defence called as a witness the driver Brandon Keepa, who said that he did not see the appellant throw any bottle out of the car, nor did he see Warena lean out of the car.  His evidence was that he saw Warena drop a bottle out of the window after he had passed the vehicle and was pulling in front of it, the bottle landing and smashing on the road in front of the complainant’s car.

Discussion

[13]     The issue in this case for the jury was simply one of proof of identification of the occupant of Brandon Keepa’s car who threw the bottle.  Mr Dollimore submitted that the identification evidence was weak, and there was corroboration by Crown as well as defence witnesses, that the appellant did not throw the bottle.  He contended that the evidence supported the conclusion that it was the front seat passenger Warena who threw the bottle and that the Crown’s case was fatally flawed because of significant inconsistencies between accounts given by all witnesses.

[14]     The identification issue revolved around where the person who threw the bottle was sitting.  If it was the left rear passenger, it was the appellant.  Occupants of the car contended (as did the appellant in his statement) that it was the front left passenger who dropped the bottle onto the road after the overtaking manoeuvre had been completed.

[15]     Mr Thompson, the driver of the Mazda, was sure that it was the passenger in the left rear seat, who he was able to observe for several seconds, leaning out the window and yelling aggressively as the overtaking vehicle kept pace with his car.  Ms Knight said she could not be sure but initially thought that it was the front seat passenger.  What was critical was that nobody in the appellant’s car, nor Mr Thompson, said that that front seat passenger placed his body outside the car.  Ms Knight’s evidence was that it was that person leaning out of the car who threw the bottle.  The issue was whether she might have been mistaken and Mr Thompson be correct, or whether the jury were left with a reasonable doubt as to the accuracy of Mr Thompson’s evidence.

[16]     The case was about the weight to be placed on all the evidence and whether there was evidence from which a jury could have concluded beyond reasonable doubt that the appellant threw the bottle.  The identification evidence of Mr Thompson was clear and some support for it existed from all witnesses.  It is clear the person who threw the bottle was the man who leaned out the window.  There was evidence that this could not have been the front left seat passenger Warena, he being heavily intoxicated, did not leave his seat, and the other occupants of his car confirmed that. 

[17]     It is trite that the Court on appeal does not look at the evidence and see what conclusion it would have come to so as to set aside a verdict if it does not correspond with such conclusion.  It is not enough that an appellate Court might simply disagree with the verdict of the jury (R v Ramage [1985] 1 NZLR 392 (CA); R v H (CA200/98, 28 October 1998).  The ground advanced, namely that the verdict is unreasonable and cannot be supported having regard to the evidence is contained in s385(1)(a) Crimes Act 1961, but this can only succeed if this Court is of the view that a jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of an appellant.

[18]     A decision as to whether a verdict is unreasonable or cannot be supported having regard to the evidence is not one which lends itself put in extensive elaboration of reasons as Somers J observes in R v Ramaga (supra) at 395.  If there is evidence available to a jury which, if accepted, would support its verdict, then such verdict would not be impugned on the ground of “unreasonableness”.

[19]     In this case there is direct evidence of identification from Mr Thompson.  It finds support in some relevant respects from the evidence of others as to who it was who was leaning out of the vehicle, that is the rear seat passenger.  Whilst the appellant in his statement, the driver of the car, and two of the passengers (but not Warena) said that Warena threw an empty bottle after they passed the Mazda car, Ms Knight’s evidence was that the event happened whilst the appellant’s car was alongside the Mazda, and because of her observation of the froth and liquid, the object thrown was not an empty bottle.  There was ample foundation for the jury’s verdict, depending upon its view of items of evidence.  The defence relied upon were matters which require evaluation by a jury and as the trier of fact it was entitled to reach the view that it did.  This ground fails.

[20]     Criticism is made of the Judge’s summing-up where he deals with some of the identification evidence.  That criticism relates to references made by the Judge to the evidence of Ms McKnight and Mr Thompson.  Those passages are:

[30]     Now, Ms McKnight, was a short distance behind those two cars, driving along.  She thought that the person that threw the bottle was leaning out the front passenger’s side window.  That he had a fawn, white or off-white tee shirt and short hair.  Now, it is important to appreciate that, with the evidence of Mr Thompson and Ms McKnight, in particular, but also all other witnesses, they are giving their evidence about events that happened over a matter of a few seconds.  They are giving evidence from different vantage points and they are subjected to all the human failings of not being able to see over distances as clearly as someone up close, what the light was like, and such like.  Also, the stress of the moment can, of course, cause some inconsistencies.  You have to be alert to those matters.  That is why we have a jury to decide on these issues, not just a Judge, because your common sense tells you, your experience of life tells you, that people put under a stressful situation, such as Mr Thompson, would have a perception of events that might be slightly different to what actually happened.  Also, people who are a distance away are unlikely to see, with the same level of clarity, what is happening compared with somebody who is up close but they might still indeed get it right whereas others get it wrong.

[31]     Now Renee McKnight, she is presented by the Crown as presenting the only truly independent evidence in this case and that, if there are some inconsistencies between her evidence and that of Mr Thompson, this is still understandable and it still provides support for Mr Thompson.  That is, that she could see someone leaning out the window of the car.  She thought it was the front but she may be mistaken.  And that she saw that person throw a bottle at the other car.

[21]     We do not think there is any merit in this criticism.  The Judge was doing no more than reminding the jury that in matters of identification, or observation of fast moving events, in stressful or dramatic situations, there may be inconsistencies between recollections or descriptions by different people as to what occurred.  It is a common sense observation.  Indeed, reference is made to the stressful situation under which Mr Thompson himself was placed, which might have affected his observation of events.  The Judge went on to refer to the evidence of the brothers Vincent and Brandon Keepa and Mr Witehira as to what they saw and how that was different to the evidence of Mr Thompson.  The Judge posed for consideration by the jury various possibilities that they might consider.  But at the end of the summing-up the Judge, balances those references when he emphasised:

You are to be convicted in this country if, and only if, a charge against you is proved beyond reasonable doubt.  If you are left with the strongest of suspicions that the accused might have done it or was likely to have done it, that is not sufficient for proof beyond reasonable doubt.  You would find the accused not guilty ….”

[22]     Counsel submits that the Judge did not remind the jury that the Crown must prove, the guilt of the appellant beyond reasonable doubt and that as a result the appellant had an onus to prove his innocence.  At the commencement of his summing-up the Judge gave the standard directions as to the onus and standard of proof before discussing the evidence and the passage which is quoted emphasises the Judge was again making it clear to the jury where the onus lay and what the standard of proof was.  There is no merit in this submission.

Conclusion

[23]     There was ample evidence to enable the jury to find that it was the appellant who threw the bottle and committed the crimes alleged.  The Court of Appeal will not interfere with such a finding of fact.  The criticisms of the Judge’s summing-up are rejected as no error or unfairness is shown.  It follows that the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington