Michael Thomas Palmer v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 373/02

IN THE MATTER OF A REFERENCE UNDER SECTION 406(A)
OF THE CRIMES ACT 1961

BETWEEN	MICHAEL THOMAS PALMER
Appellant

AND	THE QUEEN
Respondent

Hearing:	2 December 2002
Coram:	McGrath J Baragwanath J William Young J
Appearances:	G Gotlieb for Appellant J C Pike for Crown
Judgment:	9 December 2002

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

The referral

Following jury trial in the District Court at Whangarei on 12 October 2000 the appellant was convicted on a charge of assault of his former de facto partner with intent to injure her. The Governor-General in Council has referred the question of that conviction to this Court pursuant to s406(a) of the Crimes Act 1961. The question so referred is to be heard and determined by this Court as in the case of an appeal by the appellant against conviction by s385(1)(c). This Court is to allow the appeal if it is of the opinion that on any ground there was a miscarriage of justice.
An initial appeal from that conviction was argued before this Court on 28 March 2001 on grounds that included challenge to the evidence of the complainant’s daughter as to what she had seen through the window of the house in which the offence was alleged to have occurred. But because it was the function of the jury to resolve the conflict of evidence between the Crown and defence witnesses on what was a simple issue of credibility, and the case had been fairly put to the jury, on the evidence before the jury there could be no challenge to its rejecting the appellant’s account. The appeal was dismissed on 30 March 2002.
The appellant had had a 12 year relationship with the complainant that had ended two or three years before the events of 27 March 2000. He was the father of two of her children and was staying with her on a weekend visit. They had both been drinking heavily prior to the incident that occurred in the early hours of the morning, between 3 am and 4 am, which led to the police being called.
The prosecution case comprised the evidence of the complainant, that of her daughter who was not the child of the appellant, the appellant and the attending police officer.
The complainant deposed that she had been sitting in a chair in the lounge of her home when the appellant entered the room and punched and kicked her several times without provocation. She said her daughter then entered the room and the appellant ceased his attack.
The daughter’s account was that she had been for a short walk outside the house and on her return looking from outside through the lounge window she had seen the assault. She had first seen her mother in a chair and the appellant leaning down towards her. She initially thought that her mother had fallen over because of the amount of alcohol she had consumed and that the appellant was helping her up but as she walked further around she saw him punch her mother several times and kick her. She then ran around to the back door of the house and entered the lounge. As she did so she saw the appellant holding her mother in his left hand, about to punch her with his right. She yelled at the appellant and he then stood back.
She deposed that after the incident her mother had blood coming out of her mouth, her right temple was slightly swollen and later a bruise appeared below her right eye on the side of her head.
The attending police officer deposed that when questioned shortly after the incident the appellant said that the complainant had attacked him, that he had hit her once in the head with an open hand and that he saw blood coming from her mouth and assumed it was because of the blow. He claimed to have acted throughout the incident in self-defence. The police officer testified that he saw redness to the side of the complainant’s face and redness to the knuckles of the appellant.
The defence case comprised the appellant’s evidence and that of a character witness, who also produced photographs of injuries to the appellant, taken the day after the incident.
The appellant’s account was that the complainant had attacked him, that he had pushed her into a chair and that every time she tried to get out of it, he pushed her down to stop her harming either of them. He said that the complainant’s daughter entered the room and told him to leave her mother alone. This calmed the complainant, who stopped trying to get out of the chair and attack him. The appellant denied punching or kicking the complainant, although in cross‑examination accepted that he might have told the police officer that he slapped her. The photographs of the appellant showed a black eye, a bruise on the arm and cuts, and an absence of damage to his knuckles.
The new evidence is in the form of an affidavit from the complainant’s next‑door neighbour, a man of 67 years of age. He states that he was awakened by a row at the complainant’s house. He got up and went to the front of his house. He saw the complainant arguing with her daughter outside the house and the daughter walking away from it, while the complainant went inside. He heard the complainant start arguing with the appellant and saw the daughter stop outside his own property and smoke a cigarette. He inferred that she was listening to the argument. The witness said that he heard the complainant say “Don’t kick me” and the appellant denying kicking the complainant. He then saw the daughter rush up to the house, pick up an object and go in through the front door. He heard her say “Don’t you hit my mother”. He continued to observe the house until the police arrived.
The witness’s affidavit contradicts the evidence of the daughter in several important respects. In contrast to her evidence that as she was walking past the lounge window she saw the appellant standing over the complainant, the witness says that the daughter became aware of the altercation while standing outside his property, from where she could not have seen through the window into the lounge. She then ran into the house through the front door, which is by a route that did not take her past the lounge window. Although the front door is beside that window, the witness says that the daughter went straight inside without looking in the window.
The witness’s account that the daughter could not have seen inside the lounge window from the position where he said she was standing outside his property was confirmed in an affidavit from a former senior police officer, who is now a private investigator.
Another affidavit has been sworn by the father of the complainant’s daughter, who comments disparagingly on the complainant’s sexual behaviour and drug taking and describes her as being verbally and physically abusive to him prior to end their marriage. He talks disparagingly also about the daughter, with whom he and his second wife could not get on, and describes a visit culminating in his expelling the daughter from his house. He states that she later made a false complaint against him of sexual abuse. He asserts that both the complainant and the daughter are dishonest and have been affected by an upbringing of drug and alcohol abuse.
The Crown has acknowledged that the evidence of the witness is “fresh evidence” which is or might be regarded by a jury as credible. In these circumstances if the evidence, although not conclusive, has a sufficiently significant bearing on the case to justify that course, the normal outcome will be a new trial: R v Barr(Alistair) [1973] 2 NZLR 95, 98; Collie v R [1997] 3 NZLR 653, 657. The ultimate question is “the interests of justice”: R v Zachan (CA 304/94, 11 August 1995), at page 6.
The Crown does not challenge that these criteria are met. We are satisfied that they are and that the new evidence requires in the interests of justice that the conviction be set aside.
The issue on which competing arguments were advanced was whether a retrial should be ordered.

The submissions

Mr Gotlieb for the appellant submitted that it should not. His client, who was sentenced to 6 months imprisonment, suspended for 9 months, and 5 months periodic detention, has completed the sentence. He submitted that in such circumstances this Court has in other cases been prepared to decline to exercise its power under s385(2) to direct a new trial. He submitted that considerations relevant to the exercise of that discretion are the gravity of the offending alleged and the fact of the sentence’s having been served following a trial over which sufficient doubt has been cast for a retrial to be required. He submitted that the evidence did not establish serious injury to the complainant; such injuries as she sustained were, he submitted, balanced by those suffered by the appellant.
Mr Pike submitted that the ordinary course of ordering a retrial should be adopted.

Discussion

The starting point is that s406(a) requires this Court to deal with the reference as in the case of an appeal against conviction, which imports the provisions of s385. It is the common outcome of a successful appeal on procedural grounds that a retrial is ordered.
In the present case the complainant’s evidence as to the nature of her injuries was supported by the appellant’s admission. We were told that there are other charges outstanding against the appellant in relation to his treatment of the complainant, decisions in relation to which await determination of the present reference.
If the alleged offending stood alone and outside the circumstances of a domestic relationship we would have regarded the circumstance of the appellant’s having served his sentence as a strong pointer against ordering a new trial. But the relationship between the parties cannot be categorised as wholly historical. There is currently pending between them litigation in the Family Court concerning the children of the marriage.
The decision to set aside the conviction is not premised on any acceptance of the appellant’s account but on the fortuity of neither the Crown nor the defence being aware of the existence of the eyewitness. To decline to order a new trial would deprive the Crown Solicitor, and if necessary the Solicitor-General, of the opportunity to determine whether interests of justice require such trial to take place. Their decisions will be made within a wider context and on the basis of greater knowledge of the facts and the parties’ relationships than is available to us. Moreover such decision could have implications for the conduct of the litigation in the Family Court.
In these circumstances it is in our view undesirable that the present proceedings should be concluded by default without an adjudication as to the merits, both because of its potential relevance to the pending decisions in relation to other potential charges and because of the importance such adjudication, either way, may have for the future positions of the parties in the matrimonial proceedings.
We accordingly accept the Crown’s submissions and formally order that there be a new trial.

Solicitors

Crown Law Office, Wellington

[2002] NZCA 306

9 December 2002