Patea v The Queen

[2010] NZCA 338

IN THE COURT OF APPEAL OF NEW ZEALAND

CA145/2010
[2010] NZCA 338

BETWEENSIALOFI NEE AH KEE PATEA

Appellant

ANDTHE QUEEN

Respondent

Hearing:20 July 2010

Court:O'Regan  P, Panckhurst and MacKenzie JJ

Counsel:No appearance for Appellant

T Epati for Respondent

Judgment:30 July 2010 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Background

[1]        On 3 March 2010, at the end of a jury trial at which Judge P A Moran presided, Ms Patea was convicted of assault with intent to injure under s 193 of the Crimes Act 1961.  She now appeals that conviction.

[2]        The assault related to an incident outside her home in June 2009.  The appellant was living with her partner, Mr Young, and her three children from a previous relationship. 

[3]        The complainant is the ex-partner of Mr Young, and they have a child together.  The complainant had custody and Mr Young had a “contact” arrangement whereby he saw his daughter weekly.  At the time of the incident, the complainant was waiting outside the appellant’s property for her daughter to return from such a visit. 

[4]        There was considerable animosity between the appellant and Mr Young on the one hand, and the complainant on the other.  The complainant had been trespassed from the property and had two convictions for intentionally damaging the property.

[5]        The Crown case was that the complainant yelled out to Mr Young to stop the appellant’s daughter from throwing stones at her.  The appellant then came out and an altercation ensued.  The appellant punched the complainant in the face twice, splitting her lip open.  The complainant then punched the appellant in the stomach.  The appellant drove the complainant to the ground and banged her head on the concrete.  An eyewitness gave evidence that the appellant slapped and punched the complainant between 15 and 20 times, threatening the eyewitness when she tried to phone police. 

[6]        At trial, the appellant admitted that an assault occurred, but claimed she acted in self defence.  She claimed that the complainant was the aggressor. 

[7]        The appellant was found guilty and sentenced to 150 hours of community service.

Notice of Appeal

[8]        The appellant filed a notice of appeal on the 19 March 2009.  In this notice, she set out the following grounds of appeal:

(a)That the Trial Judge misdirected and misguided the jury.

(b)That the defence counsel was grossly incompetent in failing to adequately put the defence of self defence to the jury, in particular, he failed to set out the circumstances as the appellant believed them to be.

(c)          That the complainant has recommenced her behaviour.

(d)The gravity of the offence is countered by the appellant’s “absolute right to defend and protect her children and herself.”

[9]        In that notice of appeal, the appellant also sought that the appeal be dealt with on the papers, as she did not want to have to travel to Wellington to appear.  The appellant is self-represented.  Her partner, Mr Young, appears to be assisting her with the appeal.

Mode of Hearing

[10]       Justice Ellen France issued a minute determining pursuant to s 392A of the Crimes Act 1961 that the case should be heard at an oral hearing, rather than on the papers.  In particular, she placed reliance on the fact that there was an accusation of trial counsel incompetence, which would need to be supported by evidence.  She considered this made it inappropriate for the appeal to be heard on the papers.  She also considered that the grounds for a decision that an appeal be dealt with on the papers under s 392A were not made out.

[11]       Mr Young, the appellant’s partner, then applied for a reversal of that decision.  Hammond J issued a minute stating that reconsideration was not necessary.  Following further correspondence, O’Regan J issued a minute stating that the oral hearing would proceed, pointing out that he agreed with the assessment of Ellen France J that an oral hearing was required given the nature of the points of appeal.  In that minute O’Regan J explained that, if the appellant wished to pursue her allegations against her trial counsel she would need to file an affidavit and that if no waiver of privilege were filed the Court would be hampered in dealing with those allegations.  No affidavit or waiver has been filed.

[12]       The Panel for the hearing was allocated and the appellant was informed.  Mr Young (not the appellant) objected to this allocation of the Panel.  There was no basis for this objection and the appellant was informed that the hearing would proceed at the allocated time with the allocated Panel.

[13]       The appellant did not file submissions.  Mr Young filed a short notice of submissions on the appellant’s behalf reiterating his objections to the panel and stating that submissions would not be filed until “the Court appoints Judges strictly in accordance with s 25(a) of the New Zealand Bill of Rights Act 1990.”

[14]       The appellant did not appear at the hearing and was not represented by counsel.  Without the benefit of written or oral submissions we have had to consider the appeal on the basis of the material contained in the notice of appeal.  Crown counsel filed written submissions and was present in Court at the allocated hearing time.  We did not call upon her to speak to her written submissions.  Mr Young filed an email criticising the Crown submissions.

Grounds of appeal

[15]       The thrust of the appeal is that the issue of self defence was not appropriately dealt with at trial by the appellant’s counsel and was not put adequately to the jury.

[16]       Dealing first with the complaint about trial counsel, it is clear from reading the transcript of the trial that the issue of self defence was the focus of much of the evidence.  The appellant gave evidence that she knew of the previous offending by the complainant, which formed part of the relevant circumstances.  Trial counsel summarised the circumstances in the closing address for the defence in a manner which highlighted the need to consider the circumstances as the appellant believed them to be.

[17]       Thus the issue of self defence was clearly before the jury.  We are reluctant to entertain criticisms of the trial counsel in circumstances where we have no articulation of what error counsel is supposed to have made, no waiver of privilege and a transcript of submissions which contradicts the complaint as stated in the notice of appeal.  It is clear from the transcript that trial counsel did put the issue of self defence in issue and did emphasise the need for the jury to consider the circumstances as the appellant believed them to be. 

[18]       We can also see no substance in the complaint that the Judge did not put the case for the defence in summing up.  Rather, he fully explained what the requirements for self defence were and again dealt with the need to consider the circumstances as the accused believed them to be.

[19]       As to the third ground of appeal (that the complainant has recommenced her behaviour), no fresh evidence has been put before us that would change the way the circumstances as the appellant believed them to be were characterised at trial.  Mr Young has indicated in email correspondence with the registrar that the “stalking” by the complainant has ceased.  In any case, any subsequent behaviour by the complainant as alleged in the notice of appeal can have no relevance to what happened at the trial.

[20]       The fourth ground of appeal seems to be that the offending was in self defence, and was not sufficiently grave to justify a conviction.  Having been found guilty by a jury, the appellant cannot complain about the entry of a conviction.  We note that there was no appeal against the sentence imposed on the appellant.

Outcome

[21]       The appeal is dismissed. 

Solicitors:

Crown Law Office, Wellington for Respondent