R v Auckram

[2007] NZCA 570

IN THE COURT OF APPEAL OF NEW ZEALAND

CA282/07
NZCA [2007] 570

THE QUEEN

v

KENNETH ROSS AUCKRAM

Hearing:9 October 2007

Court:Arnold, Ronald Young and Fogarty JJ

Counsel:C Muston for Appellant

M D Downs for Crown

Judgment:12 December 2007 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

[1]       Kenneth Auckram stabbed Garry Arthur Barr in the chest, with a knife.  He was convicted by a jury of wounding with intent to cause grievous bodily harm.  He appeals his conviction.

[2]       The issue at trial was whether or not he was acting in self-defence.

[3]       On the day in question, Mr Auckram was in a house at Ruawai, which he was renting to buy from Karen Smith.  He was in arrears of rent.  Ms Smith arrived uninvited, together with Mr Barr.  There was some dispute about the purpose of the visit, but at the very least they were there to discuss the arrears of rent.  There was an argument.  Mr Auckram went into his bedroom, armed himself with a baton, and came out fighting, hitting Mr Barr with the baton.   Mr Barr subdued and disarmed him.   They then had a discussion about the rent.  Mr Auckram told Mr Barr that he had receipts for the rent in his car.  All three of them went outside to the carport.  Mr Auckram opened a car door while Mr Barr stood beside him.  Mr Auckram grabbed a knife, which he opened and shortly after stabbed Mr Barr. 

[4]       Later that day the police apprehended Mr Auckram driving his car.  The car was seized and subsequently searched by the police.  There were no receipts in the car. 

[5]       The Judge summarised the Crown argument in his summing up in this way:

[33]     [Counsel for the Crown] then turned to the surrounding circumstances relating to the wounding beside the car.  He suggests to you that it is significant that when the police checked the car the next day, they describe it as being very clean and certainly there were no receipts for rent there.    The evidence is that there had been some discussion about receipts for rent being in the car when the two gentlemen went outside.  He submits to you that either the receipts were never in the car or that Mr Auckram had taken them out, but what he suggests to you is significant that either way Mr Auckram was not getting receipts when he went to the car, but he was going there specifically to get the knife. 

[34]     In considering the circumstances surrounding the wounding he suggests that Mr Barr did not see the knife because he did not take any evasive action.  He invites you to consider where the knife hit Mr Barr in terms of wherever else it could have hit Mr Barr on the body and he suggests to you that that place where it contacted Mr Barr is of some significance.

[35]     Having identified the issue of self-defence as being the significant issue from the Crown’s point of view, [counsel for the Crown] submits to you that it can not be said that Mr Auckram was acting out of self-defence in [the wounding with intent count].  He described Mr Auckram as simply being an angry man who wanted to remove these people from his property and that that is not self-defence.  If you do not accept that submission, he says then that even if you did think he was acting in self-defence, that the force was not reasonable.  The inherent risks in … using a knife to a person’s body are so serious that it is not possible for that to be reasonable force.  As I have said to you already, the issue of determining reasonable force, if you get to that point, is for you and you alone.

[6]       This Court did not have a record of the prosecutor’s address but counsel accepted the Judge’s summary of the Crown closing as accurate.

The ground of appeal

[7]       Mr Muston, counsel for Mr Auckram, submits that Crown counsel was not entitled to submit to the jury that when Mr Auckram went to the car it was not for the purpose of obtaining the receipts but to get the knife (see the end of paragraph [33] of the summing up, above).   He says this was asking the jury to disbelieve the unchallenged evidence of Mr Auckram when he said:

… there was some discussion like about the receipts and that, I said I’ve got receipts,  he goes “where are the receipts I want to see them, show them to me” and I said “they are in the car” and that’s it he’s shoving me and we are going out the door and I’m you know, he’s right in my face, like this all of the time, on me like stand over, doing his shit and heading out the door and we are like pushing and shoving and as he is just, you know get them “get the fucken things” and we go to the car, open the door, he’s still on top of me, he’s got his left hand on the door, his right hand on the roof of the car, I go into the car, the console consists of two parts, a front and a back, OK, the front part’s open, there’s a knife there that my younger son’s mother gave me at Christmas for Christmas, and I just grabbed the knife thinking this will make him fuck off, you know, I pulled, I opened the knife and turned around and said “now just fuck off you piece of shit” and as I come out of the car he slammed the door on this arm and punched me in the head, and as he punched me in the head I lashed out with the knife and stabbed him. …

(Emphasis added.)

[8]       Mr Auckram was cross-examined.  But he was not challenged on his evidence that he had receipts in the car.  Nor was it put to him that he was not getting receipts when he went to the car but was going there specifically to get the knife.  Mr Muston said that to close to the jury to the contrary was improper, in breach of the principle in R v Hart (1932) 23 Cr App R 202 (CA).

[9]       In Hart the Court considered the conviction of Hart for assault. The defendants called three witnesses whose evidence, if accepted, made it impossible for Hart to have committed the assault. They were not cross-examined. Yet the jury were asked to disbelieve them. The Lord Chief Justice said (at 207):

In our opinion, if, on a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness-box or, at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted.  Here no questions were asked in cross-examination.  Having regard to that matter, and also to the summing-up, we have come to the conclusion that the conviction was unsatisfactory and cannot stand, and that the appeal ought to be allowed.

Whether the Hart principle was breached

[10]     In response, Mr Downs for the Crown submitted that the Hart principle had not been breached.  He submitted that there was a degree of common ground between both Mr Auckram and Mr Barr that there had been a discussion about receipts in the car.  He also emphasised that the Judge’s summing up suggested that the Crown closing was either that the receipts were never in the car or that Mr Auckram had taken them out.  Either way he was not getting receipts when he went to the car.   Mr Downs says that it was put to Mr Auckram that:

You made a conscious decision to arm yourself with a knife didn’t you?

He also drew attention to the passage in the Crown evidence recording that the car had been searched and nothing of interest had been found.  He argued that Mr Auckram and his counsel knew or ought to have known that the Crown would point to the absence of receipts as evidence of guilt as why else would that evidence of a search have been led.

[11]     Mr Downs argued that it is a question of judgment and degree as to the extent to which witnesses should be cross-examined before a submission can be made that they be disbelieved; that there is no rule requiring a prosecutor to put every facet of his or her case in cross-examination.  He emphasised that the passage in Hart applied only where the prosecution intended to ask the jury to disbelieve a witness “on a crucial part of the case”.   He said further that counsel may ask the jury to disbelieve a witness where counsel has adopted a “raised eyebrow” approach but has not explicitly put to the witness that he or she is lying: R v Lovelock [1997] Crim LR 821 (CA). 

[12]     We are satisfied that the principle in Hart was breached in this case.  It was right and proper that Mr Auckram should have been challenged in the witness box as to the presence of receipts in the car before a submission was made that it was significant that the car was checked the next day and no receipts were found.  Further, he should have been challenged that he was not getting receipts when he went to the car but rather he was going there specifically to get the knife.

[13]     Had he been challenged, Mr Auckram, through his counsel, says he would have given evidence that for safekeeping he had removed the receipts from the car after the stabbing and that they were in his wallet when he was arrested.  We note there is no doubt that there were receipts.  They were produced at depositions as exhibits.

Whether the breach led to a miscarriage of justice

[14]     Mr Downs’ principal submission was that any failure to put the case to Mr Auckram was inconsequential.  In elaboration he said that there was no miscarriage of justice. 

[15]     He emphasised that the Crown submission in closing contemplated the possibility that the receipts were in the car but that in any event Mr Auckram was going to the car to get the knife.  He took the Court through passages of evidence which indicated that once he was at the car Mr Auckram did not look for the receipts but rather grabbed the knife.  He then argued it was open to the jury to find that the appellant stabbed without warning or further threat.  In this latter regard there was a dispute on the facts as to whether Mr Barr had tried to close the door of the car on Mr Auckram before the stabbing. 

[16]     Mr Downs submitted that Mr Auckram never intended to get the receipts because the evidence showed he never looked for them.  Rather the evidence supports an inference that what he was truly doing was looking for a weapon – a weapon which he threw away after the incident.

[17]     Mr Downs submitted that the appellant’s evidence on this point was significantly similar in that the appellant never gave evidence that he looked for the receipts in the car, rather that he grabbed the knife.  The difference between the evidence of Mr Auckram and Mr Barr, says Mr Downs, is as to the behaviour of Mr Barr while Mr Auckram was getting the knife and before he was stabbed.

[18]     Further, in his written submissions Mr Downs argued that the jury very likely concluded that whatever the appellant’s reason was for going to the car, what ensued was not self-defence.  Regardless of the reason why he went to the car it is what he did that is significant: he stabbed an unarmed man in the chest. 

[19]     Section 385(1)(c) of the Crimes Act 1961 provides relevantly:

385     Determination of appeals in ordinary cases

…

(1)     On any appeal [against conviction] … the Court of Appeal … must allow the appeal if it is of opinion—

…

(c)     That on any ground there was a miscarriage of justice;

…

Provided that the Court of Appeal … may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[20]      In cases such as these, the critical question resolves into a consideration as to whether the verdict is unsafe: R v Sungsuwan [2006] 1 NZLR 730 at [6] per Elias CJ (SC).

[21]     By finding that the principle in Hart was breached we have found that in a significant matter there has been unfairness.  The question is whether that unfairness may have led to an unsafe verdict.  To test that proposition we have to examine whether the Court can be confident that the verdict would inevitably have been the same without the error on the part of the Crown counsel.  In such cases the verdict is not unsafe and there is no miscarriage of justice. 

[22]     The Crown’s closing submission to the jury that the decision to get the knife was premeditated was not justified.  It was an unfair submission.  The question as to whether the verdict was unsafe becomes whether or not that unfair submission might have distorted the analysis by the jury of the self-defence considerations.

[23]     Section 48 of the Crimes Act provides:

48     Self-defence and defence of another

Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

[24]     The application of this section involves three questions:

(a)What were the circumstances as the accused believed them to be?

(b)Did the accused use force for the purpose of defending himself?

(c)Was the force used reasonable in the circumstances as he believed them to be?

[25]     All three questions were live in this trial.  There was a dispute of fact as to whether the fight was still continuing in the carport or had come to an end inside the house.  Within that broad question there was a more particular issue as to whether Mr Barr was behaving aggressively inside the carport beside the car.  There was a dispute as to whether Mr Auckram was acting to defend himself at the time he wielded the knife.  Finally, but not least, there was a question for the jury as to whether the force he used was reasonable given what the jury found he believed was happening at the time.  This is an objective test.  If the jury were satisfied that the stabbing was excessive, given what Mr Auckram believed at the time, then the Crown would have excluded self-defence. 

[26]     Regardless of how the jury answered the first two questions, self-defence could succeed only if the jury were satisfied that the stabbing was a reasonable response in the circumstances, as Mr Auckram believed them to be.  We take the interpretation of the circumstances most favourable to Mr Auckram.  He said that in the carport Mr Barr slammed the door on his arm and punched him in the head prior to the stabbing.  We also assume in his favour that Mr Auckram did stab the knife into Mr Barr to defend himself.  The final question becomes whether, nonetheless, we can be confident that the jury would have found that the stabbing was not a reasonable response in those circumstances.

[27]     The stabbing had to be the focus of the jury’s attention.  Mr Auckram said he had grabbed the knife to scare Mr Barr off the property.  Even if that step had been premeditated inside the house, and it may well have been, it has no relevance to the objective question of whether stabbing was a reasonable response.  Whether he had always intended to get the knife is not, as a subjective consideration, relevant to the third question.  The issue for the jury was whether he was under attack, as he said he was, and if so, or if not, whether stabbing was a reasonable response.  We consider that even if the jury had accepted Mr Auckram’s evidence that Mr Barr had forced the car door against his arm and attempted to punch him in the head prior to the stabbing, it would inevitably have considered that Mr Auckram’s response was excessive.  These two men had just had a fight, where Mr Auckram was armed and had been subdued by Mr Barr, who then let him go.  The worst likelihood for Mr Auckram was that he might be bruised in a fight with Mr Barr.  Put another way, no reasonable jury, properly instructed, could reasonably have concluded that Mr Auckram’s use of the knife to stab Mr Barr amounted to a reasonable use of force in the circumstances he described.

[28]     Accordingly, we have come to the conclusion that the unfair submission of the Crown would not have affected the jury’s consideration of the ultimate issue of reasonable force.  For these reasons we do not think the improper Crown closing submission may have led to an unsafe verdict.  We find there has been no miscarriage of justice and accordingly dismiss the appeal. 

Solicitors:
Crown Law Office, Wellington