Paterson v The Queen
[2014] NZCA 235
•11 June 2014 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA425/2013 [2014] NZCA 235 |
| BETWEEN | EDWARD PAUL PATERSON |
| AND | THE QUEEN |
| Hearing: | 20 May 2014 |
Court: | White, Ronald Young and Simon France JJ |
Counsel: | A J McKenzie for Appellant |
Judgment: | 11 June 2014 at 2.00 pm |
JUDGMENT OF THE COURT
AApplication for an extension of time granted.
BThe appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
Introduction
The appellant, Mr Paterson, was convicted in the Christchurch District Court on three charges: assault, threatening to kill and wounding with intent to cause grievous bodily harm. He was sentenced by Judge Neave to five years’ imprisonment.[1]
[1]R v Paterson DC Christchurch CRI-2012-009-3823, 31 May 2013.
Mr Paterson appeals against his conviction and sentence on the third charge. The conviction appeal is on the ground that Judge Neave at the trial erred in his approach to “transferred malice” and failed to direct the jury on the issue of “(in)voluntariness”. The sentence appeal is on the ground that five years’ imprisonment is manifestly excessive.
The appeal was filed two days late. There being no objection, we extend time.
Background
The three charges arose out of incidents in a bar during which Mr Paterson headbutted one of the bar staff, a Mr Fey, and threatened to kill him with a butterfly knife. Then, in the course of a struggle between Mr Paterson and Mr Fey, another bartender, a Mr Davey, who had come to Mr Fey’s assistance, was stabbed in the abdomen.
Mr Paterson pleaded guilty to assaulting and threatening to kill Mr Fey, but defended the third charge, under s 188(1) of the Crimes Act 1961, that, with intent to cause grievous bodily harm to Mr Fey, he wounded Mr Davey.
Mr Paterson’s defence at trial had two elements:
(a)He only intended to scare Mr Fey, not to stab him.
(b)When Mr Davey intervened, Mr Paterson released his pressure on the knife and turned around to “assess the threat”. At that point, he believed Mr Fey pushed the knife into Mr Davey so that even if he had initially intended to stab Mr Fey, Mr Davey’s intervention meant that he no longer had that intention when Mr Davey was stabbed.
The trial Judge framed the key issue for the jury as being, “what was in Mr Paterson’s mind at the time Mr Davey was stabbed”. If the jury was satisfied beyond reasonable doubt that at this time he was trying to stab Mr Fey, he would be guilty. If, however, Mr Paterson was not then intending to stab Mr Fey – either because his intention to stab Mr Fey had been broken by Mr Davey’s intervention or he never intended to stab Mr Fey – he would not be guilty of the offence alleged.
The Judge provided the jury with an “Issues Table” which read:
Has the Crown proven beyond reasonable doubt:
1. That Mr Davey was wounded (i.e. received a cutting injury)?
This is undisputed and you can move to Question 2.
2.That Mr Paterson’s actions brought about the wounding of Mr Davey?
- If yes – go to Question 3.
- If no – Not Guilty.
3.At the time of the wounding of Mr Davey, that Mr Paterson was trying to stab Mr Fey?
- If yes – Guilty
- If no – Not Guilty
N.B.
If it is reasonably possible that at the time Mr Davey was stabbed that:
(a)Mr Paterson was only trying to frighten Mr Fey;
(b)Or if he was trying to stab Mr Fey. That Mr Paterson was distracted by the arrival of Mr Davey so that when he stabbed Mr Davey he was no longer pursuing his intention to stab Mr Fey – even if that was only momentarily and the intention returned later; or
(c)That Mr Davey effectively walked on to the knife or it was pushed by Mr Fey at a time when it was not being used to try and stab Mr Fey.
Unless the Crown has satisfied you beyond reasonable doubt that none of those are reasonable possibilities, then the accused must be found Not Guilty.
If the Crown proves beyond reasonable doubt that Mr Davey was wounded at a time when both Mr Fey and Mr Paterson are struggling for the knife and Mr Paterson is trying to stab Mr Fey, then the Accused will be Guilty
The Judge, in his direction to the jury, said in relation to question 2 in the Issues Table:
It has to be proven that it was Mr Davey’s injuries were caused by Mr Paterson in the broadest sense and if Mr Paterson’s actions brought about the wounding of Mr Davey then, or the Crown has to prove I should say that Mr Paterson’s actions brought about the wounding of Mr Davey. And again I don’t really think this is significantly in dispute although there’s one area which I’ll come to when I’m talking about Count 3 which might shade into question 2. The issue is whether or not in confronting Mr Fey with the knife and struggling with him and Mr Davey ending up being stabbed when Mr - when he tries to intervene between the two of them that Mr Paterson’s actions have brought about his injury. If it’s at all possible that it was just a pure accident then of course Mr Paterson won’t have caused the wounding but I think the more likely focus of your enquiries will be on question 3 but again these are questions of fact which are for you and you’ll remember what I’ve said about any views you think I’m expressing in that regard.
Then when commenting on the three exculpatory scenarios in the Issues Table the Judge explained to the jury:[2]
Then there’s that third possibility and this really shades into what I was talking about before in respect of a possibility of an accident and questions of causation it’s possible to put this point I think in either question 2 or question 3, that if it’s effectively the situation that Mr Davey’s walked on to the knife or Mr Fey has somehow pushed the knife and it’s accidentally managed to wound Mr Davey and it isn’t being used to try and stab Mr Fey either because that’s not what Mr Paterson was trying to do at all or that intention if it did exist had stopped. Then again Mr Paterson won’t be guilty and unless the Crown has satisfied you beyond reasonable doubt that none of those that I’ve just mentioned are reasonable possibilities then the accused must be found not guilty. But if the Crown proves beyond reasonable doubt that Mr Davey was wounded at a time when both Mr Fey and Mr Paterson are struggling for the knife and Mr Paterson is trying to stab Mr Fey then the accused will be guilty. So if for example Mr Paterson is trying to stab Mr Fey, Mr Fey pushes him away in the course of that and the knife goes into Mr Davey well that won’t be a defence for Mr Paterson because he’s still trying to stab Mr Fey and it occurs in the course of that action.
[2]Emphasis added.
During its deliberations, the jury asked the Judge the following question:
… if the intention is lost momentarily, whilst distracted by the approach of Mr Davey, then returns, does this constitute maintaining the intent?
Judge Neave answered their question as follows:
This is essentially a question of fact as is the issue you have to determine for you. The focus must be on what is Mr Paterson’s state of mind at the time that Mr Davey is stabbed. If he has lost his intention and, even if it comes back later and doesn’t have it at the time of the stabbing then the necessary intention hasn’t been proved but it must be more than simply losing focus, as I have told you, or having something overlaying a continuing intention. It’s a question for you to determine whether you are satisfied beyond reasonable doubt that at the time of the stabbing Mr Paterson has an intention to stab Mr Fey. If he doesn’t, for whatever reason, then he won’t have the necessary intent and the verdict would have to be not guilty. If he has the intention even if he’s got another intention at the same time then the verdict would be guilty.
The conviction appeal
For Mr Paterson, Mr McKenzie submits that the Judge should have “bolstered” this reply to the jury’s question with a comment as to voluntariness. In particular, the Judge should have said that it was a question for the jury to determine whether it was satisfied beyond reasonable doubt that at the time of the wounding Mr Paterson had control over the knife. If there was a reasonable possibility that Mr Paterson had lost control of the knife (due to being overpowered by Mr Fey) then voluntariness was lost and any wounding would be involuntary.
“Transferred malice”
The starting point is s 188(1) of the Crimes Act which provides:[3]
188 Wounding with intent
(1)Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.
[3]Emphasis added.
As the juxtaposition of the emphasised references to “any one” and “any person” makes clear, the intention to cause grievous bodily harm (the mens rea of the offence) does not need to relate to the person in fact harmed (the actus reus of the offence). In other words, the intention to cause grievous bodily harm to one person may provide the mental element of the offence of causing harm to another person. The intention or mens rea is transferred for the purpose of committing the offence. This has been described as the doctrine of “transferred malice” or “transferred intention (or mens rea)”.[4]
[4]AP Simester, WJ Brookbanks and Neil Boister Principles of Criminal Law (4th ed, Brookers, Wellington, 2012) at 133–134; Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA196.04].
The doctrine is well-established. Mr Marshall for the Crown provided valuable submissions describing the history of the doctrine and its acceptance internationally.[5] He also referred to two New Zealand High Court decisions where the doctrine has been recognised.[6] As Mr McKenzie accepts that the doctrine may apply in New Zealand and as we consider the text and purpose of s 188(1) is clear, it is unnecessary for us to address this issue further in this case.
Voluntariness
[5]R v Hunt (1825) 1 Mood 93 at 95, 168 ER 1198 (Comn Pleas) at 1199; R v Latimer (1886) 17 QBD 359 at 361; Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 (HL) at 261; R v Gnango [2011] UKSC 59, [2012] 1 AC 827 at [16]; R v Deakin (1974) 16 CCC (2d) 1 (MBCA); Gordon v R 2009 ONCA 170, 241 CCC (3d) 388; Standish v R (1991) 60 A Crim R 364 (TASCCA); R v King [2003] NSWCCA 399, (2003) 59 NSWLR 472.
[6]Chandler v Police [2010] NZAR 25 (HC) at 27–28 and Narayan v Police [2010] NZAR 36 (HC) at [23]–[24].
The real issue on this appeal is whether, as Mr McKenzie submits, the trial Judge erred in respect of his directions to the jury on voluntariness.
There is no dispute that voluntariness is an essential element of all criminal liability.[7] The Crown accepts that voluntariness requires a willed action from the mind to the muscles, the result of which constitutes the relevant actus reus. As this Court has held, for an act to be voluntary, it must be “a product of the person’s reason”.[8]
[7]Bratty v Attorney-General of Northern Ireland [1963] AC 386 (HL) at 409–411 per Lord Denning; Simester, Brookbanks and Boister, above n 4, at 83–95; David Ormerod Smith and Hogan’s Criminal Law (13th ed, Oxford University Press, New York, 2011) at 56.
[8]M (CA688/2012) v R [2013] NZCA 134, (2013) 26 CRNZ 196 at [24].
For an act to be involuntary, a person must have lost physical control over the movements of his or her body, such that the person’s actions “are not responsive to reason”.[9] It is not enough that a person’s control is impaired, reduced or partial.[10] An unintended result should not be conflated with an involuntary act.[11]
[9]Simester, Brookbanks and Boister, above n 4, at 85.
[10]Attorney-General’s Reference (No 2 of 1992) [1994] QB 91 (CA) at 105.
[11]Ormerod, above n 7, at 57.
When determining whether a particular actus reus is voluntary, it is important to focus on all aspects of the actus reus. As this Court held in R v Wickliffe, where the appellant, who in the course of a robbery had shot and killed a man, claimed that his gun had gone off accidentally when the deceased had pushed him back against a door, the jury was not bound to view the pressing of the trigger in isolation, but was entitled to regard the appellant’s immediately preceding conduct “as part of the act causing death or the killing”.[12]
[12]R v Wickliffe [1987] 1 NZLR 55 (CA) at 60.
Similarly, the actus reus of the offence under s 188(1) will include a blow that glances off something or someone and hits another person or a blow that is pushed away by the intended victim into a third party.
The Judge’s directions in this case
Turning then to the Judge’s directions in the present appeal,[13] we accept the Crown’s submission that the Judge correctly directed the jury as to the requirement of voluntariness. After the Judge explained that Mr Paterson’s actions had to have “brought about the wounding of Mr Davey”, the Judge directed the jury that:
(a)If the stabbing of Mr Davey was “a pure accident”, Mr Paterson would not be guilty.
(b)Similarly, if Mr Davey walked onto the knife, or it was pushed into him by Mr Fey, and Mr Paterson was not at that time trying to stab Mr Fey, he would not be guilty.
(c)If, however, Mr Davey was stabbed during a struggle in which Mr Paterson was trying to stab Mr Fey, he would be guilty, even if it were Mr Fey who pushed the knife into Mr Davey.
[13]Above at [8]–[9].
It would have been clear to the jury from these directions, when read with the “Issues Table” to which they related, that Mr Paterson could not be convicted unless the Crown proved beyond reasonable doubt that, at the time Mr Davey was stabbed, he was (a) acting with intent to harm grievously Mr Fey and (b) caused a wound to Mr Davey, even though the result was unintended.
It would have also been clear to the jury from these directions and the notes to the “Issues Table” that if they accepted that there was a reasonable possibility that the stabbing was “a pure accident” or Mr Davey had walked on to the knife or it was pushed into him by Mr Fey, when Mr Paterson was not at that time trying to stab Mr Fey, Mr Paterson would be not guilty. In other words, the actus reus, the stabbing of Mr Davey, would have been involuntary. These specific directions were therefore more than sufficient to ensure that the jury understood that Mr Paterson should not be found guilty if they accepted that there was a reasonable possibility that the stabbing was involuntary.
It was not necessary for the Judge to refer to Mr Paterson’s “control over the knife” as submitted by Mr McKenzie. To the extent that the element of “control over the knife” was relevant to the issue of voluntariness in the stabbing of Mr Davey it was more than adequately covered in these directions, especially the third exculpatory scenario in the Issues Table with its reference to the knife being “pushed” by Mr Fey when it was not being “used” by Mr Paterson to try and stab Mr Fey.
Nor do we accept Mr Paterson’s submission that the Judge should have “bolstered” his reply to the jury’s question with a comment on voluntariness. The jury’s question related to the necessity for Mr Paterson to have maintained his “intent” to stab Mr Fey throughout the attack if it had been lost momentarily whilst distracted by the approach of Mr Davey.[14] The Judge’s answer correctly focussed on Mr Paterson’s state of mind at the time Mr Davey was stabbed.[15]
[14]Above at [10].
[15]Above at [11].
The jury’s question did not require the Judge to deal with the issue of voluntariness again, let alone to repeat his earlier direction. We agree with the Crown that to have done so would have run the risk of conflating Mr Paterson’s conduct (actus reus) with his state of mind (mens rea).[16]
[16]M (CA688/2012) v R, above n 8, at [24].
For these reasons we are satisfied that Judge Neave did not err in his approach to “transferred malice” or fail to direct the jury on the issue of voluntariness. The appeal against conviction is therefore dismissed.
The sentence appeal
Judge Neave imposed the sentence of five years’ imprisonment on the third charge by adopting a starting point of six years’ imprisonment based on two aggravating features of the offending, namely the serious injury caused to Mr Davey and the use of a weapon, which placed the offending on the boundary between bands one and two in the relevant tariff decision, R v Taueki.[17]
[17]R v Taueki [2005] 3 NZLR 372 (CA) at [36]–[39].
From that starting point, the Judge deducted:[18]
(a)four months for Mr Paterson’s youth and lack of relevant previous convictions;
(b)four months for his offer of $3,000 reparation; and
(c)four months for counselling he had undertaken and his attempts to address his “outstanding issues”.
[18]R v Paterson, above n 1, at [15]–[16].
With these deductions, the end sentence of five years’ imprisonment was reached. Concurrent sentences of six months’ imprisonment were imposed on the other two charges.
Mr McKenzie submits that the starting point of six years’ imprisonment was too high because the seriousness of Mr Davey’s injury was overstated. He also submits that some credit should have been given for the remorse shown by Mr Paterson towards Mr Davey.
We do not agree that the seriousness of the injury to Mr Davey was overstated by the Judge. The knife wound inflicted by Mr Paterson to Mr Davey’s stomach required immediate hospitalisation, emergency surgery and had lasting effects. In his victim impact statement, Mr Davey described being taken to hospital after the attack, where he had a CT scan. He was then taken into surgery to check for internal bleeding. The surgeon “opened [him] up and ... pulled stuff out to make sure that the bowel wasn’t nicked or anything wasn’t cut internally”. Fortunately, the blade missed his bowel by 5 mm. Had it not, this could have meant “ongoing bad stuff forever, even death”. Mr Davey said he spent three or four days in hospital. He was advised to stay longer, but wanted to get home. Over the next month at home, he was in lots of pain and had difficulty sleeping. His mother had to look after him, as he “could not do much”.
In his sentencing notes, Judge Neave described the injury as follows:
[6] Mr Davey suffered significant injury. There was a stab wound to his stomach. Fortunately it missed any vital organs and the surgery that he took was more in the nature of exploratory surgery to make sure there was no more significant damage. He found it obviously painful, he lost wages as well as he found the whole thing rather frightening again which is unsurprising. His life was just getting back to normal, as with many people, after the earthquakes and this was obviously something he did not need and the other complainant was obviously frightened by the whole exercise as well.
We agree with the Crown that there is nothing to suggest that the Judge overstated the seriousness of the injury.
We also agree with the Crown that the use of the butterfly knife was an even more significant aggravating factor. Mr Paterson admitted that the knife was not a chef’s knife, but a weapon. It is well-established that “the more lethal the weapon that is used, the greater the aggravating factor will be”.[19]
[19]R v Taueki above n 17, at [31](d).
The combination of the serious injury to Mr Davey and the use of a lethal weapon justified the starting point of six years’ imprisonment.[20]
[20]Ibid at [36]–[37].
We do not accept that Mr Paterson is entitled to any credit for remorse. As Judge Neave pointed out,[21] while Mr Paterson was remorseful insofar as Mr Davey was concerned there was nothing to indicate that he was equally sympathetic to Mr Fey’s plight which rather undermined his sympathy for Mr Davey. Furthermore, Mr Paterson had pleaded not guilty to the charge involving Mr Davey.
[21]R v Paterson, above n 1, at [5].
We are therefore not persuaded that the sentence imposed by the Judge was manifestly excessive.
Result
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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