Michell v The Queen
[2005] NZCA 257
•31 October 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA327/05
THE QUEEN
v
KERRYN MITCHELL
Hearing:25 October 2005
Court:Hammond, Baragwanath and Potter JJ
Counsel:D R La Hood for Appellant
M F Laracy for Crown
Judgment:31 October 2005
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
REASONS
(Given by Hammond J)
Introduction
[1] The appellant, Kerryn Mitchell, was found guilty by a jury in the District Court at Wellington on 19 July 2005 of injuring with intent to injure, and two charges of assault with a weapon.
[2] On 23 August 2005 Ms Mitchell was sentenced to eight months imprisonment. Leave to apply for home detention was denied.
[3] Ms Mitchell now appeals against both her convictions and her sentence.
Background
[4] During the early hours of Sunday 7 November 2004 Ms Mitchell was in custody, in a police cell. She had been arrested and charged in relation to three assaults on police officers. About 8.00 am a female police constable went to this cell to serve Ms Mitchell with breakfast. Whilst the constable was bending at the door of the cell, Ms Mitchell rushed at her, without warning. She grabbed the constable’s hair, pulling some of it out. The police constable fell to the floor of the cell block. In so doing, she suffered serious injury to her knee. A security guard came to the constable’s aid. Ms Mitchell had managed to get hold of the constable’s pepper spray. She sprayed both the police constable and the security guard with this spray. The charges with which this appeal is concerned are the “breakfast charges”, not the charges arising from the events earlier in the evening.
[5] This bare recital of facts does not do justice to the very unusual feature of this case. Around 1990 Ms Mitchell had some interaction with the police which appears to have left her distinctly traumatised and with a consuming “phobia” in relation to the police. Whatever the rights and wrongs of those events might have been, it is common ground that thereafter Ms Mitchell has had a long history of offending arising out of conflicts with and assaults on the police.
[6] Her serial responses were such that an experienced consultant forensic psychiatrist, Dr J B Barry-Walsh, has summarised her psychiatric condition as follows:
She suffers from post-traumatic stress disorder. In particular, it is believed that her early contact with police, around 1990, included several traumatic incidents which sensitised her to contact with the police. This is likely super-imposed on pre-existing personality traits, including alcohol misuse and a tendency at times towards acting in an impulsive and reckless manner … This has manifest[ed] itself by high levels of anxiety and arousal, together with depressed mood and a particular phobic response to the police, especially the Lower Hutt Police. This response is manifest[ed] by a ‘flight or fight’ response. This means that Ms Mitchell is constantly vigilant of her environment and scanning it for police. She has an awareness of their routines. When she sees a police officer, she has an immediate emotional response of heightened arousal, anxiety and fear that may either trigger an angry response, or alternatively, an attempt at flight. It needs to be emphasised that this difficulty has significantly altered the manner in which Ms Mitchell lives. Over the time that I have known her, her daily routines have been dominated by her concern that she may have contact with the police … she has a high level of anxiety when commuting into town to work … and difficulty sleeping because she remains in a vigilant and aroused state.
[7] The intensity and duration of Ms Mitchell’s condition are borne out by the fact that since 1989 she has committed 86 offences, of which 20 have been against the police.
The course of trial
[8] Mounting a defence for Ms Mitchell presented formidable obstacles. In the District Court she was represented by an experienced criminal law barrister, Mr Paino. There was no way that Ms Mitchell was going to enter pleas of guilty, but there was seemingly no line of defence available, let alone one with a fighting chance. Initially, it was apparently decided to run the defence case on the basis of self defence, and Mr Paino opened on that basis. But by the close of the trial, the defence had changed to one of a lack of the requisite intent with respect to the charges as framed.
[9] A decision was also taken to place before the jury evidence as to her “police phobia”, which necessarily involved saying something as to the circumstances out of which that phobia had arisen. Quite why this was done is not altogether apparent to us: a defence of insanity was never in contemplation, and New Zealand law does not recognise a defence of diminished responsibility. A relevant phobic state could conceivably have a bearing on sentencing, but that would have been better dealt with post-trial. It may be that the defence hoped to elicit some sympathy from the jury towards Ms Mitchell; and there seems to have been a sense that this evidence might go to her “intent” at the relevant time.
[10] Whatever the reason for introducing this evidence, it came out at trial in the following way. After acknowledging that she had psychiatric or psychological counselling “every week” of the year, Ms Mitchell was asked by Mr Paino:
Q.Right. Now, did an incident - or did something happen to you in the early 1990’s that gave rise to your attendance at the psychiatric unit or seeking assistance there?
A.In 1990 I was strangled by a police officer, and in 1994 I was again strangled by a police officer.
Q.And where did that happen?
A.The first one was in the police station.
Q.At?
A.Lower Hutt.
Q.Yeah.
A.The second one was in the back of a police car on the way to Lower Hutt Police Station.
Q.And as a result of that incident of being strangled, what happened then? Did you fear for your life or not?
A.On both occasions, yes. On - yeah both occasions.
Q.So if the last - latter incident was 1994, since then have you or did you undergo any psychiatric assistance or treatment?
A.Since 1994 we’ve been going - I’ve been going regularly to a psychologist and a psychiatrist for treatment.
Q.And before your current treatment at a forensic unit were you seeing another psychologist?
A.I’ve seen a psychologist through - I’ve seen two psychologists through the Capital Coast Health and prior to Capital Coast Health I was seeing a private psychologist.
Q.And what was her name?
A.A private psychiatrist called Ross Broadmore.
[11] Ms Mitchell was cross-examined on this evidence by Crown counsel, Mr Sainsbury, as follows:
Q.Just in terms of these two incidents where you say you were strangled by the police, when was the first one?
A.The first one was the 3rd of May 1990.
Q.And that was at Lower Hutt Police Station?
A.Yes.
Q.And the second one?
A.25th of January 1994.
Q.That was in a police car?
A.On the way to the police station.
Q.And that was in Lower Hutt
A.Yes.
Q.Now as a result of those incidents are you quite fearful of the police?
A.Yes.
Q.Would I understand the position to be that you would try and avoid the police?
A.Yes.
[The record then notes that the Court repaired to chambers, with counsel.]
[12] It is apparent from a written ruling which the trial Judge gave, that there was some discussion in chambers between the Judge and counsel as to where this evidence was going. The Judge ruled:
[1] I am ruling that at this time Mr Sainsbury, at the moment, you may not ask Ms Mitchell questions about her 45 previous interactions with the police.
[2] You may of course ask her about the incident earlier in the evening, and you may ask her about the incidents of ’90 and ’94, and it may be, dependent on further answers, that you will be permitted to ask her about other events, if and when they become relevant.
[13] There is no record of any further discussion on this issue between the Judge and counsel prior to the Judge summing up. The Judge summed up on the footing that the defence to each of the three charges was one of lack of intent.
The appeal against conviction
[14] Following the trial, the appellant filed her own appeal. Her Notice of Appeal is a rambling, and sometimes less than coherent document, extending over several pages.
[15] It fell to Mr Nisbet, who had by now acquired the responsibility for advancing a difficult brief, to formalise the grounds of appeal. The grounds which he felt “responsibly” able to advance to this Court are stated to be as follows:
The learned trial Judge’s directions have caused a real risk of a miscarriage of justice for the following reasons:
· the directions on prejudice and sympathy fail to deal adequately with the extensive evidence of the appellant’s previous dealings with the police
· the directions on the standard of proof were erroneous.
[16] This appeal was then brought on, as a matter of urgency, to ensure that it is disposed of before Ms Mitchell has served her sentence. It was allocated a fixture, as a matter of exigency, when another appeal was abandoned. However that meant that Mr Nisbet was unable to appear because of prior commitments. Mr La Hood appeared as counsel, at relatively short notice. We are grateful to him in that respect. We record that he has carefully advanced everything which could be said on Ms Mitchell’s behalf.
First ground of appeal: propensity evidence
The complaint
[17] Mr La Hood’s central submission is that there were inadequate directions to the jury, given that Ms Mitchell’s prior history of “misconduct” was quite deliberately put before the jury. We use the term “misconduct” advisedly. He said that there should have been a specific direction that the jury could not take such evidence (deliberately introduced by the defence) and use it to support an inference that because Ms Mitchell had misbehaved previously in circumstances apparently akin to this case, she was therefore more likely to have offended on this occasion. In short, that there should have been a specific direction against improper propensity reasoning.
[18] Mr La Hood suggested that the required direction in this case was that the evidence was adduced “solely for the jury to assess the accused’s state of mind at the relevant time, that the jury should otherwise put that evidence to one side, and must not reason that because she was under arrest for similar allegations and had previously been arrested on at least two other occasions that somehow makes it more likely she is guilty of the offending.”
[19] Mr La Hood said that the only direction which went anywhere near - but did not adequately reach - these concerns, was that the Judge told the jury in his general directions that it must “put aside any feelings of prejudice or sympathy one way or another in this case, and just arrive at your verdict by dispassionately and analytically considering the evidence that you have heard”.
The Crown response
[20] Ms Laracy submitted that there was no real risk of prejudice against Ms Mitchell arising from the defence introduction of the fact that the appellant had had previous altercations with the police. She argued there was no basis for any concern that the jury may have reasoned from this evidence that the appellant had a propensity for deliberately assaulting police and that in the circumstances, no special or further direction was required.
Discussion
[21] The place to begin is with what the Judge actually said to the jury. In his general directions, he instructed the jury as noted in [19] above.
[22] The Judge did not deal directly with the problems presented by the “misconduct” evidence which had been introduced in the manner we have already indicated. He referred to it only indirectly.
[23] When he referred to the defence closing address, the Judge said that Mr Paino, as counsel for Ms Mitchell, “asked you to look at her state of mind at the time of the event against that background, and against the background of Dr Barry-Walsh’s evidence about her anxiety, her level of anxiety and degree of arousal and fear, which Mr Paino submitted existed at the time”.
[24] In referring to the Crown case in his summing up, the Judge said that the prosecutor “suggested to you that the evidence of Dr Barry-Walsh actually was helpful in that it provided an explanation of why the accused might attack the police constable in a situation where you might think that a normal person would think there was absolutely no reason to attack a constable who was serving breakfast …”.
[25] The general approach of appellate courts to alleged misdirections still remains as set out by Lord Alverstone CJ in the often-cited case of Stoddart (1909) 2 Cr App R 217:
Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction that has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which might have led to a miscarriage of justice (at 246).
[26] The first point to be made in this case is that it is unfortunate that the Judge did not see counsel briefly before summing up, as to what if anything counsel considered should be said about the “misconduct” and “phobia” evidence which had in fact been introduced. That judicial practice is a salutary one in difficult or unusual cases (which this was), and can lead to the avoidance of subsequent attacks on jury verdicts.
[27] Secondly, this is not a case in which previous “convictions” as such were led, which would undoubtedly call for a firm direction against propensity reasoning. It is true that there were references to “arrests”, but arrests are not convictions. The conduct referred to was more at the level of “misconduct”, or possible misconduct, and certainly persistence in altercations with the police.
[28] Thirdly, the situation in which this evidence was adduced - to the extent that it was adduced - is unusual. The difficulty is that the evidence was capable of leaving the jury, or some members of it, with a view that “she has done this sort of thing before, and this is just serial behaviour”. Indeed, the Crown took advantage of what had been said in closing as to these past events. Further, as a matter of balance, there were things that needed also to be said for the Crown.
[29] This Court has said, many times, that a summing up must be tailored to the instant case, and the real issue the jury is faced with. What, in our view, was required here was an indication by the Judge that the Doctor’s evidence could not be relevant to whether these disputed events had in fact occurred on the day in question; that the jury should not use propensity reasoning; and that (in fairness to the Crown) the accused was not entitled to a sympathy vote on account of any condition she might have, there being no live issue of insanity or diminished responsibility. The evidence as adduced was to be seen by the jury as being relevant solely to whether, on the day in question, Ms Mitchell was capable of forming the requisite intent for these offences. If, having considered all of the evidence the jury considered that it was a reasonable possibility that Ms Mitchell was so afflicted by her phobia that she did not form any conscious intent at all, then the jury would have to say that it had a reasonable doubt about the issue of intent, and the Crown would not have proved that issue to the necessary standard. In short, the Crown needed to satisfy the jury that Ms Mitchell intended to do what she did, even if it was an intent formed while afflicted by her phobia to some degree.
[30] We consider that directions along these various lines were required as part of the Judge’s general duty to ensure that the essential issues were properly framed for the consideration of the jury. They were not given. The result would normally be a retrial.
[31] That said, we consider this is patently a case for the application of the proviso to s 385 of the Crimes Act 1961. The evidence is incontrovertible that the events in question actually occurred; the sole issue as the trial unfolded was that of intent, and there was nowhere else for the jury to go but to convictions, on that issue.
Second ground: the standard of proof
[32] The second ground of appeal is misdirection as to the standard of proof.
[33] What the Judge said appears in [12] of the summing up, as follows:
And then there is what is called the standard of proof, that is the level to which each charge and each element of each charge needs to be proven before you can bring in a verdict of guilty on that charge; and that standard of proof is beyond reasonable doubt. So each charge, each element of each charge, has to be proven beyond reasonable doubt before you can bring in a verdict of guilty on that charge.
And then in [13] this was said:
In this context reasonable means what it says. It means a doubt which you find is a reasonable one in the circumstances of this case. It follows that before you can convict the accused on any charge, you must be satisfied from the evidence of the accused's guilt, you must be sure of her guilt. If you are satisfied in that way, then it is your duty to find the accused guilty. If on the other hand you are left with a reasonable doubt on any charge, it is equally your duty to acquit her, and you apply that standard, that onus and standard of proof, to each of the three charges that are before you (italics added).
[34] Mr La Hood’s complaint is with the word “satisfied”. He acknowledges that it was followed by the word “sure”, but he submitted “that is the only wording that should have been used”. He said the error was compounded by the fact that there is “no other reference to the standard being a high one”.
[35] It is of fundamental importance that a summing up should make it clear to the jury as to where the burden of proof lies in respect of each fact in issue, and as to the standard of proof that is required. But this Court has many times emphasised that it will consider the adequacy of a summing up in its entirety, and against the whole background to the case, and that the “extraction” of single words, or even phrases, out of their context and the context of the summing up as a whole, is inappropriate.
[36] Even taken literally, this ground of appeal is not made out. The use of the word “satisfied” (which is what is objected to) in the fourth sentence of [13] is merely a reference back to the preceding sentence that the jury must be “sure” of Ms Mitchell’s guilt. This is because of the use by the Judge of the words “in that way”. In short, extrapolation of the one word in this instance is an illustration of the very sort of complaint that this Court has consistently set its face against. And this case is not at all an example of the difficulty sometimes encountered of trial Judges unwisely enlarging upon what is meant by “sure” and thereby running the risk of producing a watered down standard. On the contrary, the test of “sure” was in this instance never departed from.
[37] This ground of appeal also fails.
The sentence appeal
[38] In his written submissions, Mr Nisbet submitted that Ms Mitchell “suffers from a disorder that prevents her from dealing appropriately with the police, especially those police in uniform … this most unusual ‘malady’ has impacted on [Ms Mitchell’s] life now for many years.” He said she has in the past been capable of living within the community and working successfully. Mr Nisbet also acknowledged that “at first blush it is obviously difficult to seriously criticise the sentence imposed”.
[39] In the end, however, as Mr La Hood acknowledged, the sentence appeal came down to a concern that, because of the unique features of the case, leave to apply for home detention should have been granted.
[40] We do not consider this sentence appeal to be made out. The mode of sentence of imprisonment, and the term of it, are quite unexceptional for what happened in this case. And it was well open to the Judge, if the offences were made out, and in light of Ms Mitchell’s prior offending, to consider that the circumstances of this case warranted a served prison term. Ms Mitchell simply has not responded to prior sentences; and, as the Judge noted, serving “home detention” might well have brought her into further (undesirable) contact with the police.
Solicitors:
Val C Nisbet, Wellington for Appellant
Crown Law Office, Wellington
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