McGLAUGHLIN v The Queen
[2005] NZCA 233
•8 September 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA 456/04
CA 8/05THE QUEEN
v
PHILLIP RAURU MCGLAUGHLIN
Hearing:18 July 2005
Court:Glazebrook, Randerson and Goddard JJ
Counsel:W C Pyke for Appellant
A Markham for Crown
Judgment:8 September 2005
JUDGMENT OF THE COURT
Leave to appeal is granted but the appeal against both conviction and sentence is dismissed.
____________________________________________________________________
REASONS
(Given by Randerson J)
Introduction
[1] On 25 June 2004 the appellant was convicted following trial in the Tauranga District Court before Judge Harding on one count of wounding with intent to cause grievous bodily harm contrary to s 188(1) of the Crimes Act 1961. A Mr Rewita was charged as a party but acquitted.
[2] On 4 August 2004 the appellant was sentenced to seven years imprisonment with a minimum non-parole period of three and a half years. The sentence included a concurrent term of six months imprisonment and a period of disqualification imposed on a further charge of driving while his licence was suspended for a third or subsequent occasion.
[3] The appellant seeks leave to appeal out of time against his conviction and sentence. The appeal against conviction is brought on the ground that the Judge wrongly allowed the prosecutor to cross-examine the appellant and a witness called on his behalf about their alleged gang involvement and wrongly allowed cross‑examination of the witness about his previous convictions. A related ground of appeal is that the Judge did not direct the jury about the use which they could make of evidence on those topics.
[4] The appeal against sentence is brought on the ground that it was manifestly excessive.
The Crown case
[5] The charge arose from an incident on 21 September 2003 when the victim, a Mr Wayne Martin, was seriously injured in a Te Puke bar. The appellant and Mr Rewita were also drinking at the bar as was Mr Rewita’s partner, Ms Clare Jenkins. The three men were all known to each other and to the bar staff as friends or acquaintances.
[6] Mr Martin also knew Ms Jenkins and there was some interaction between the two which the Crown alleged resulted in Mr Rewita becoming annoyed with Mr Martin. A minor physical confrontation ensued between Mr Rewita and Mr Martin. There had also been some interaction between Mr Martin and the appellant which the latter accepted had caused him to become annoyed with Mr Martin as well.
[7] At some point Mr Martin went into the toilets. He said in evidence that he was aware of someone following him but did not know who it was. As he was standing at the urinal, he was hit on the side of his head. There were several further blows. He fell to the ground whereupon the attacker (who was wearing boots) kicked him repeatedly in the head. He was bleeding but managed to crawl into the hallway outside the toilet door where the attack on him continued according to his evidence.
[8] There was evidence corroborating Mr Martin’s account from three witnesses in the bar. Another patron (Ms Ngatai) saw Mr Martin lying on the floor near the entry to the toilet area. She observed a man fitting the appellant’s description jumping on his shoulder area about four times. The attacker was wearing boots and she later observed the man being asked to leave by the bar manager. It was not disputed that the man asked to leave the bar was the appellant.
[9] The bartender, Ms Moorehead, heard a thud coming from the rear of the premises and saw someone lying on the ground. This person was later identified as Mr Martin. Her evidence was that she asked the bar manager, a Mr William Turner, for assistance. Shortly afterwards she saw the appellant standing over Mr Martin. Importantly, Ms Moorehead said that when the appellant returned to the bar, he gave a “high five” to Mr Rewita.
[10] The third corroborating witness was Mr Turner who took Mr Martin back into the toilets where he and Mr Hannah cleaned Mr Martin up. Mr Turner’s evidence was that there was blood in and around the toilet area before the cleaning up process started.
[11] The Crown also relied on the medical evidence as tending to support Mr Martin’s account of what happened. Evidence was read by consent from a Dr Caramello who described Mr Martin’s injuries upon his arrival at the Tauranga Public Hospital. The main injury was a deep straight laceration on his mid to posterior right scalp which went down to the bone. There was a second head wound consisting of a small laceration about two to three centimetres in length which ran from the medial forehead in a vertical line and extended to the right eyebrow at the medial side. As well, Mr Martin had a blood nose which appeared to have been broken and he had bruising to the left upper abdomen extending to the lower ribs area and over the right side of his back. Dr Caramello considered that the injuries were consistent with blunt trauma to the head, abdomen and back.
[12] The Crown also called a neurologist, Dr Lynch. A CT scan had revealed a collection of blood overlaying the right side of Mr Martin’s brain. Mr Martin was described as being profoundly unwell and suffering from epileptic seizures. He underwent a procedure at Auckland Hospital but difficulty continued to be experienced in controlling the seizures. On-going medication was required. There had been adverse effects on Mr Martin’s memory and he was suffering from headache and depression. Dr Lynch confirmed that the injuries were entirely consistent with blunt trauma to the head. His evidence was that the injuries were consistent with punching or kicking. In his view there were a number of blows but he could not exclude the possibility of a single blow having caused the brain injury.
[13] It was put to him that the scalp wound could have been caused by Mr Martin’s head striking a solid object. His response was that the head wound was likely to have arisen from blunt injury delivered over that area. In other words, a solid object connecting with the head.
[14] In re-examination, Dr Lynch stated that the major blow to the head was with a linear or straight object such as the edge of a boot, something hard and unyielding. In describing the force required to cause an injury of that nature, Dr Lynch said it was the sort of injury seen in car accidents when, at a speed of 30 miles an hour, there is a sudden stop.
[15] The Crown relied on this evidence to corroborate Mr Martin’s account of being punched and kicked and as tending to contradict the defence case that the major head injury had been caused by Mr Martin falling and hitting his head against the edge of a steel bin.
The evidence for the appellant
[16] When spoken to by the police the appellant said: “I’ve got nothing to say there, prove it was me. I am only a little feller”. He went on to deny any involvement and stated that he was not at the bar at the time in question. In evidence the appellant gave a very different account. He admitted he had not told the police the truth when interviewed and that he was at the bar at the relevant time. His account was that Mr Martin was making a nuisance of himself. He was drinking other people’s beer and the appellant had complained to the bar manager about this. It is common ground that the bar manager did indeed warn Mr Martin about drinking other people’s beer but the bar manager’s view was that this had occurred through a genuine mistake. The appellant also stated that Mr Martin was being loud and abusive and that Mr Martin had called him a nark and said he was ugly.
[17] After a time, the appellant said he told Mr Martin to go outside and “sort himself out”. Mr Martin had responded to this in strong language. Shortly afterwards, the appellant said he went outside and he was in the process of rolling a cigarette when the door of the bar burst open, Mr Martin came out and hit him in the head. He was actually hit twice around the head he said but responded with several punches. The third punch was an upper cut to Mr Martin who fell back and struck his head against a nearby steel bin. The appellant then went back inside with Mr Martin following closely behind. Mr Martin had tried to grab the leg of his pants somewhere just outside the toilet doors. Mr Martin fell onto the floor in the area just outside the toilet doors but he, the appellant, continued into the bar. Almost immediately the appellant was asked to leave by the manager and he did so. He denied “high fiving” with Mr Rewita.
[18] During cross-examination, the issue of involvement with the Mongrel Mob was raised with the appellant in the following passage:
Now Mr Horsley asked you whether you were friendly with Chaz Hannah didn’t he? Yes
Now you’re associated with the Mongrel Mob? I used to be a member of the Mongrel Mob 11 years ago, its 11 years ago, it’s got nothing to do with this.
[19] These matters arose towards the end of the day’s sitting and the Judge asked the jury to retire at that point. The following morning, after hearing argument, the Judge gave an oral ruling that the prosecutor could cross-examine the appellant on the closeness of any relationship between the appellant and a defence witness Mr Charles Hannah but he was not permitted to further explore any gang involvement by the appellant. The basis for the Judge’s ruling will be examined later.
[20] Mr Hannah gave evidence on the appellant’s behalf, largely supporting the appellant’s account of what happened. He had been playing pool with the appellant. He confirmed the appellant’s evidence about Mr Martin drinking other people’s beer and being warned by the bar manager. He also confirmed that Mr Martin had called the appellant a nark. There had been some brief words between the appellant and Mr Martin. He noticed the two men go outside. The appellant had gone outside first and Mr Martin followed shortly afterwards. At one point, through the doorway, Mr Hannah said he saw Mr Martin hit the appellant across the face. He did not see any more because the door closed but a minute later he saw the appellant enter the bar. Mr Martin followed but he fell to the ground soon after he had come through the door. Mr Hannah thought Mr Martin must have tripped. He did not see the appellant do anything to Mr Martin at that point. Mr Hannah said he then went over and helped Mr Martin up. He took him into the toilet and cleaned him up. This process resulted in Mr Martin’s blood being splashed about in the toilet area.
[21] In cross-examination, Mr Hannah admitted telling the police that he did not see the appellant at the bar on the day in question, explaining he did so because he did not want to be involved. The prosecutor also put a series of questions to Mr Hannah about previous convictions and involvement with the Mongrel Mob. The relevant passage from the notes of evidence is:
You see you’ve had trouble in the past with dishonesty haven’t you? Yes.
You were convicted in 1991 in the District Court in Rotorua of theft? But what has this got to do with this.
It’s about my past? My past has got nothing to do with this.
THE COURT – I’ve ruled that the lawyer may ask you these questions Mr Hannah.
CROSS-EXAMINATION CONTINUES BY MR HOLLISTER-JONES
Is it correct, convicted in 1991 in the District Court in Rotorua of theft? Yeah that was a while ago.
Then ’92 of aggravated robbery? Yes.
And in 1996 of burglary and burglary by night and theft ex car? Can’t remember.
The burglary, can you remember that? That’s in 1990 –
6, 16th of September 1996 in the District Court at Rotorua? That’s about 10 years ago.
Well can you recall being convicted in that Court on that date of that charge? No I can’t.
You got four months PD, can you remember getting four months PD? 10 years ago.
1996? I can’t remember.
And have you had any involvement in the Mongrel Mob? What has that got to do with Mr Martin.
I’m asking you – can you answer that question? Can you say that again.
Have you had any involvement with the Mongrel Mob? Yes.
Are you a patched member of the Mongrel Mob? I don’t see why I have to say any of this because it’s got nothing to do with what happened to Mr Martin.
THE COURT –
I’m afraid Mr Hannah that unless I rule the questions inadmissible or there is an objection you are advised to answer his questions? Yes I am.
CROSS-EXAMINATION CONTINUES BY MR HOLLISTER-JONES
Part of the – one of the unwritten rules of the Mongrel Mob is that you lie to the Police, is that right? I don’t know, you’re saying it.
I’m asking you the question. Is that part of your scene in the Mongrel Mob that you lie to the Police? (no audible response)
Are you able to answer that? Can you say that again.
Is it part of your scene as a patched member of the Mongrel Mob that you’ll lie to the Police? Don’t lie to the Police.
Or that you’ll come along to Court and lie for other people? No.
That part of your – the way you and your gang operate? Look I just put my hand on the Bible. I’m not lying.
[22] The final witness called by the appellant was Mr Rewita’s partner Ms Jenkins. She said she did not see the appellant and Mr Rewita “high fiving” but confirmed in other evidence that there had been an offensive statement made by Mr Martin to her which had upset Mr Rewita. There had been a minor physical confrontation between Mr Rewita and Mr Martin. She said she had not seen the appellant that evening.
[23] In summary, the Crown case was that there was an unprovoked attack by the appellant on Mr Martin in the vicinity of the toilets while the defence was that the victim attacked the appellant outside in the carpark and that the appellant responded by punching the victim in self-defence, the head injury being caused by the victim falling and hitting his head on the steel bin.
Ruling on cross-examination about gang involvement
[24] Judge Harding recorded that the Crown did not wish to cross-examine the appellant on past convictions but intended to question the appellant and his witness Mr Hannah about their involvement with a gang and their allegiance to a gang code which allegedly went as far as members lying for other members. The Crown submission before the Judge was that the relationship between the appellant and the witness Mr Hannah was a relevant issue which the Crown was entitled to explore in cross-examination. Alternatively, the Crown submitted that the appellant had placed the character of the Crown witnesses in issue by suggesting some of them had collaborated in their evidence.
[25] The Judge recorded the submission for the defence that there had been no real attack on the character of the Crown witnesses and that to permit cross-examination on the gang connection would be prejudicial with little probative value.
[26] The Judge found there was no justification to allow the Crown to cross‑examine on the issue of gang involvement founded on the alleged attack by the appellant on the character of the Crown’s witnesses. But the Judge accepted that the credibility of witnesses at the trial was a crucial issue. Essentially, the jury had to decide whether to accept the Crown case that there was an unprovoked attack on Mr Martin by the appellant in the toilet areas at the tavern or the appellant’s account that he was attacked by Mr Martin outside the tavern and defended himself. The Judge recognised that corroboration of the appellant’s account from Mr Hannah would be important.
[27] In those circumstances, the Judge ruled that the Crown was entitled to test the credit both of the appellant and Mr Hannah. The closeness of the appellant’s relationship with Mr Hannah could be explored and the Crown was also entitled to suggest that Mr Hannah would be prepared to come along to Court and support the appellant, regardless of the true position. The Judge considered that in terms of R v Tinker [1985] 1 NZLR 330, the Crown was entitled to ask the appellant questions about his alleged gang involvement, noting that the appellant had already denied any current involvement in a gang. The position in relation to Mr Hannah in that respect was left over for later consideration.
[28] After the Judge’s ruling on the scope of cross-examination, the prosecutor did not further question the appellant about his gang involvement or attempt to explore his association with Mr Hannah in any other respect. In relation to Mr Hannah, the Judge recorded later in the trial that defence counsel had informed the Court he could not properly object to cross-examination on the previous convictions of the witness or any previous gang association. The Judge agreed that Mr Hannah’s cross-examination could proceed on that basis.
The issues
[29] The issues arising from submissions on behalf of the appellant on appeal are:
(a)Whether the Judge erred in allowing cross-examination of the appellant as to historic gang involvement with the Mongrel Mob.
(b)Whether the Judge erred in allowing cross-examination of Mr Hannah as to his historic gang involvement and as to his previous convictions.
(c)Whether the Judge erred in failing to direct the jury as to the use which could be made of the evidence about gang involvement and Mr Hannah’s previous convictions.
Cross-examination of the appellant as to historic gang involvement
[30] Mr Pyke for the appellant submitted that the prosecutor ought to have alerted defence counsel and the Judge of his intention to cross-examine the appellant about previous gang associations so that the Judge could make a ruling. In the light of his ruling once the objection was raised, we accept that the Judge would almost certainly have ruled that cross-examination on this subject was inappropriate.
[31] There can be no criticism of the Judge who was clearly taken by surprise when the appellant was questioned on this subject. But given the terms of s 5(4)(b) Evidence Act 1908, we consider it would have been good practice for the prosecutor to have signalled his intention to the Judge before embarking on this line of cross‑examination. Under s 5(4)(b), where an accused gives evidence and is cross‑examined relating to any previous conviction or as to his or her credit, the Court may limit the cross-examination as it thinks proper. The existence of this discretion pre-supposes that the presiding Judge be given the opportunity to exercise it before it is too late. That did not occur in the present case.
[32] Here, the Crown did not seek to cross-examine the appellant on past convictions but we agree with the Judge that cross-examination as to the appellant’s previous gang connections undoubtedly went to his credit. It followed that s 5(4)(b) was clearly engaged. However, the evidence having been heard by the jury, the real question is whether the introduction of that evidence (assuming that it ought not to have been adduced) has led to a miscarriage of justice.
[33] In that respect, we accept Ms Markham’s submission for the Crown that there is no appreciable risk of a miscarriage of justice having occurred. We note in particular that the photographs of the appellant which were exhibited at trial show him bearing a prominent tattoo on his neck with the words “Mongrel Mob” displayed. The fact of his connection with the Mongrel Mob was therefore plainly before the jury irrespective of the prosecutor’s questions. We also accept Ms Markham’s submission that the appellant’s response to counsel (that he had ceased any involvement with the Mongrel Mob some 11 years before) placed him in a better position than if he had not been asked at all about his involvement.
Cross-examination of Mr Hannah as to previous convictions and gang connections
[34] Mr Pyke submitted that defence counsel should not have accepted that there could be no proper objection to the Crown’s application to cross-examine Mr Hannah as to his past convictions and gang connections. However, we note that counsel error has not been advanced as a ground of appeal and we must put that to one side accordingly. Mr Pyke submitted nevertheless that the Judge ought not to have allowed cross-examination on these issues. He submitted that the Judge had not given consideration to s 13 Evidence Act and did not appear to have turned his mind to the relevant considerations under that provision or to the decision of this Court in R v Holtz [2003] 1 NZLR 667, 675. Reliance was also placed on the decision of this Court in R v Vaise and Anor CA336/04, CA395/04 26 November 2004.
[35] We accept the submission made by Ms Markham that very different considerations apply to the cross-examination of witnesses and cross-examination of an accused. The risk of illegitimate prejudicial effect against an accused through evidence of previous misconduct is ordinarily much greater than in the case of a witness other than the accused. We agree with Ms Markham that Holtz and Vaise may be distinguished on the basis that this Court was there considering the admissibility of past convictions in relation to the appellant/accused.
[36] The cross-examination of witnesses other than the accused does not engage s 5(4). Rather, as this Court has recently discussed at some length in R v Wood CA105/05 26 July 2005, the statutory basis for cross-examination lies in ss 12 and 13 Evidence Act. The inter-relationship between those sections is discussed in Wood at [23] - [26] and again at [35] - [39].
[37] Where it is intended to cross-examine a witness other than the accused about previous convictions, the usual purpose is to attack the credit of the witness. As this Court held in Wilson v Police [1992] 2 NZLR 533, s 12 is directed against the rule prohibiting proof of a collateral matter and enables proof of a previous conviction to be tendered if the fact of conviction is denied. Wilson also stands for the proposition that s 13 gives the Court discretionary control over cross-examination as to credit. As stated in Wilson, the proper practice for any counsel proposing to put a previous conviction to a witness for the purpose of impeaching credit is to seek the leave of the Judge. In a jury trial this should obviously be done in the jury’s absence.
[38] The extent of the latitude commonly afforded to cross-examination of witnesses other than the accused is demonstrated by the following passage from Phipson on Evidence (15th ed 2000) at para 19 - 22:
The picture, with regard to the character of the opponent’s witness is wholly different. Here, the general principle, to which there are exceptions, is that such a witness may always be challenged as to his credibility by reference to material which shows him to be of bad character, as well as by reference to other material. Of course no such principle applies where the witness is an accused person…
The general principle is that questions revealing bad character may be asked as long as they satisfy the ordinary canons of legal relevance …
[39] And in Cross and Tapper on Evidence (10th ed 2004) at 381:
An opponent’s witness may be discredited in a wider variety of ways than one’s own. In addition to demonstrating lack of knowledge or capacity and inconsistent statements, it is possible to raise his previous convictions, discreditable conduct, bias, corruption or lack of veracity. There are however two general restrictions. The first is that the matter must be relevant, at least to the witness’s credibility, though this is sometimes rather notional… The second general restriction is that the judge has the duty to prevent questioning of an unduly offensive, vexatious or embarrassing character, and to prevent the process of the court from being abused to torture witnesses by oppressive cross-examination.
[40] In New Zealand, these principles must be considered in the light of ss 12, 13 and 14 Evidence Act and judicial discretion is to be exercised accordingly.
[41] Reference may also be made to decisions of this Court in R v Williams CA 448/02 12 June 2003 at [34] and to R v Tinker (above) where this Court permitted cross-examination of a witness as to his association with a convicted bank robber. It was held that the questions were relevant to the credibility of the witness. This Court stated at 333:
We are of the opinion that the question fairly came within the rule that in order to discredit a witness’s testimony he may upon cross-examination be asked any question concerning his antecedents, associations or mode of life which would be likely to have that effect, though he cannot always be compelled to answer.
[42] The distinction between cross-examination of an accused and a witness other than the accused was emphasised in R v Oakes [1995] 2 NZLR 673, this Court observing at 683 that the protection afforded a witness by s 13 is for the benefit of the witness, not the accused. We would add that the same applies to s 14.
[43] Applying these principles to the present case, we are unable to accept Mr Pyke’s submission that the Judge ought to have disallowed cross-examination of Mr Hannah as to his past convictions. It is common ground that Mr Hannah’s credibility was directly at issue. We accept the Crown’s submission that the past convictions put to Mr Hannah in cross-examination were clearly relevant to his credibility. He admitted having been convicted in 1991 of theft but could not recall the other convictions put to him (aggravated robbery in 1992 and burglary and theft in 1996). In terms of s 12 Evidence Act, the Crown could have adduced evidence of those convictions but chose not to do so. The prosecutor was nevertheless entitled to put them, the answers obtained being likely seriously to affect the opinion of the jury as to his credibility (s 13(2)(a) Evidence Act). In our view, the convictions mentioned were not too remote in time (s 13(2)(b)) and there was no significant disproportion between the importance of the imputation arising from the convictions and the importance of Mr Hannah’s evidence (s 13(2)(c)).
[44] We note too that experienced trial counsel did not object to the proposed questioning. His decision not to do so was a considered one.
[45] Ms Markham submitted that no miscarriage of justice could have arisen in any event since the protection afforded by s 13 exists for the witness rather than the accused. We are not persuaded by this submission because if the credibility of one of the appellant’s witnesses was improperly damaged, this could have the potential to affect a fair trial for the appellant. However, in the circumstances of this case, we are satisfied there was nothing improper in the cross-examination as to past convictions permitted by the Judge.
[46] For similar reasons, we consider it was entirely proper for the Judge to permit cross-examination about Mr Hannah’s past gang connections and whether, as a patched member of the Mongrel Mob, he would lie to the police or come to Court and lie for other people. Again, these issues were likely seriously to affect the opinion of the jury as to Mr Hannah’s credibility, were not remote in time and there was no improper disproportion between the importance of the imputation and the importance of the evidence.
[47] Mr Pyke submitted there was no proper evidential foundation for this line of cross-examination but Ms Markham submitted that the cross-examination went beyond mere injury of character in terms of s 13(1) and was directly relevant to the issues at trial. In particular, she submitted that the purpose of the cross-examination was to suggest that by reason of his gang allegiance, Mr Hannah had deliberately fabricated his evidence for the purpose of assisting the appellant’s defence.
[48] There was she said, a clear evidential foundation for this line of questioning given the strong Crown case which directly contradicted the evidence of the appellant and Mr Hannah in most important respects; the admissions by both the appellant and Mr Hannah that they had lied to the police; the suspicious commonalities in their evidence; and the fact that the two had been drinking and playing pool together at the time of the incident. We accept Ms Markham’s submissions that there was a proper foundation for the prosecutor’s cross-examination on this issue.
[49] We add that the issue of past gang connections by itself would be likely to affect credit in terms of s 13(1) and no further evidential foundation would be required in that respect other than a proper basis for supposing the witness had such a connection.
Failure to direct the jury as to the use which could be made of the evidence of previous convictions and gang connections
[50] It is common ground that the Judge gave the conventional direction to the jury in his summing up that they were to reach their decision free from prejudice or sympathy. But the Judge did not give any specific direction about the use which the jury could legitimately make of the evidence of previous convictions and gang connections.
[51] Mr Pyke submitted that this was a material misdirection relying upon Vaise (above). In the circumstances of that case, this Court held there should have been a clear direction by the Judge that it would be wrong to reason that because the appellant had aspirations with the Mongrel Mob, he might have a propensity to commit this sort of offence and a further direction that the relevance of the evidence on this point was relevant only to the issue of credibility. Mr Pyke also submitted that the Judge should have directed the jury that the evidence of the appellant’s past gang connections was inadmissible and should be totally disregarded.
[52] In response, Ms Markham submitted that whether a specific direction to the jury on the issue of possible prejudice should be given is a matter for the trial Judge’s discretion. Ms Markham informed us there was no mention in the prosecutor’s notes of his closing address about the appellant’s Mongrel Mob connection and there is nothing in the Judge’s summing up to suggest that this topic was mentioned by counsel. The reference by the prosecutor in cross-examination to the appellant’s connection with the Mongrel Mob was brief and not pursued. The appellant’s unchallenged response was not prejudicial to him given that it was to the effect that he had left the gang some 11 years before.
[53] Ms Markham also submitted there is always a danger that a specific direction may give unwarranted prominence to an issue that, in the context of this trial, was not significant. She reminded us that Vaise dealt with the evidence of the accused/appellant rather than a witness. Finally, she drew to our attention that experienced defence counsel had not sought a direction on this issue.
[54] As to Mr Hannah’s membership of the Mongrel Mob, we were informed that the prosecutor’s notes again indicate this issue was not raised by either counsel in closing. Rather the prosecutor’s submission, as recorded in the notes, was that Mr Hannah’s evidence should be disregarded as unreliable, and dishonest. It was also submitted by the Crown that he was proven liar.
[55] On this issue, Ms Markham made similar submissions as to the need for a direction, pointing out again that no direction had been sought by experienced trial counsel.
[56] It will often be desirable to give a direction of the kind contemplated in Vaise in a case of this kind where an issue of gang affiliation is raised in respect of an accused. That is because there can be a risk of illegitimate prejudice through inappropriate propensity reasoning and in some contexts, reference to gang affiliations may give rise to material prejudice. In Vaise, the issue of gang affiliation was directly relevant to the complainant’s evidence that she was compliant due to fear of the appellant through his gang involvement.
[57] As a general rule, we do not see any need to give a direction of this kind in relation to a witness. But there may be exceptional cases when such a direction is desirable where, for example, the prosecutor has emphasised gang connections affecting a witness and invites the jury to conclude there was a similar connection involving the accused.
[58] But, we do not consider there was a need for such a direction in the present case or, if there was, that there is any appreciable risk of a miscarriage of justice in the absence of such a direction.
[59] In the end, while relevant to credibility, the issue of Mr Hannah’s past convictions and the Mongrel Mob connections of the appellant and Mr Hannah were not of great prominence. The issue does not appear to have featured in the closing addresses of counsel and the issue was not raised with the Judge by experienced trial counsel. A general direction to put aside sympathy or prejudice was given to the jury and we accept Ms Markham’s submission that a specific direction by the Judge may have given undue prominence to the issue. This was a strong Crown case and the appellant and Mr Hannah had both effectively destroyed their own credibility by lying to the police about the incident when interviewed shortly after the event. In the circumstances, we do not accept that there was any real risk of a miscarriage of justice.
Sentence appeal
[60] In his written submissions (not pursued orally), Mr Pyke advanced this aspect of the appeal by submitting that the Judge gave too much weight to the consequences of the assault and to the absence of serious violent offending in the appellant’s past and too little to his personal circumstances. Mr Pyke acknowledged that a sentence of six to 12 months was justified for the driving conviction but submitted that the resulting sentence was manifestly excessive even allowing for that factor.
[61] In our view, the Judge correctly identified the aggravating factors. First, there has been a very serious impact on the victim. He has developed epilepsy and is now dependent on others. He continues to have significant memory difficulties, suffers from depression, cannot drive a motor vehicle and suffers mood swings. The Judge described the impact on the victim as a total change of his life in consequence of the assault. Secondly, the Judge did not see much difference between the use of a weapon and the appellant jumping on the victim’s upper body about four times while wearing boots. Thirdly, the Judge accepted there was a degree of premeditation in the sense that there was a deliberate decision to follow the victim into the toilets and then attack him. The Judge also noted that the victim was vulnerable to a degree being affected by alcohol and entirely unprepared for what happened. Fourthly, the Judge observed that the appellant had a significant number of previous convictions including some for violence. However he fairly noted that many of the previous offences were driving related and that the rate of offending had tapered off in recent years.
[62] The Judge considered there were few mitigating factors. But he acknowledged that the appellant had abandoned his previous association with a gang in order to look after his child. He accepted that the appellant had some health difficulties but noted that the Probation Officer considered the appellant still had a reasonably high risk of reoffending. There was little sign of remorse the Judge considered because the appellant continued to maintain that the attack occurred in the way he described in evidence and that he was acting in self-defence.
[63] The Judge approached the matter on the basis of the decision of this Court in R v Hereora [1986] 2 NZLR 164. We consider this to be appropriate on appeal notwithstanding the recent tariff review by this Court in R v Taueki and Ors CA 384/04, CA 417/04, CA 434/04 30 June 2005. The Judge adopted a starting point of seven years before mitigating factors. Taking into account the driving offence in terms of total culpability, he arrived at the seven year sentence and a concurrent term of six months on the lesser charge.
[64] We agree with Ms Markham’s submission that the total sentence of seven years imprisonment with a minimum period of three and a half years was not manifestly excessive and that the case falls within the middle category of Hereora, suggesting a sentence in the five to eight year range. The appellant is no stranger to violence and this was a vicious assault in circumstances where the victim offered no resistance. Serious head injuries with permanent consequences have been sustained by the victim in consequence of repeated stomping and kicking about his head and upper body. When one takes into account a sentence of at least six months for the separate driving charge, we agree that the sentence could not be described as manifestly excessive. Indeed, it was well within the range for offending of this type.
[65] For these reasons, the appeal against both conviction and sentence will be dismissed.
Solicitors
Crown Law Office, Wellington
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