R v David Boardman
[2003] NZCA 247
•29 October 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA173/03
THE QUEEN
v
DAVID BOARDMAN
Hearing:20 October 2003
Coram:Glazebrook J
Baragwanath J
Goddard JAppearances: M A Stevens for Appellant
G C de Graaff for Crown
Judgment:29 October 2003
JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J
Introduction
[1] Mr Boardman was convicted after a trial by jury on one charge of wounding with intent to injure. He was acquitted on a further charge of wounding with intent to cause grievous bodily harm. He appeals against that conviction.
Background
[2] Mr Boardman was drinking at a tavern owned by the victim, Mr Taimalie, in Dunedin on New Year’s Eve. An altercation ensued during which Mr Taimalie received a number of nicks, scratches, cuts and shallow puncture wounds to his chest, neck, stomach, legs and arms. Mr Boardman accepted that Mr Taimalie’s wounds were caused by his knife. The question at trial was whether Mr Boardman was acting in self-defence. Both Mr Taimalie and Mr Boardman gave evidence at trial, recounting their different accounts of the event. There were no other witnesses, apart from police witnesses who gave evidence concerning Mr Boardman’s statements to the police and his demeanour at the time the police arrived.
[3] Mr Taimalie’s evidence was that Mr Boardman, annoyed at the confiscation of his BYO vodka, became abusive and aggressive. Mr Taimalie asked Mr Boardman to leave the premises on three occasions. On the last occasion when Mr Taimalie was holding the front door open, instead of leaving, Mr Boardman lunged at Mr Taimalie with a pocket-knife protruding from his fist like a hook. A struggle ensued, with Mr Taimalie trying to remove the knife from Mr Boardman. Mr Boardman continued to stab Mr Taimalie with the knife, causing roughly 6-8 cuts before other patrons became involved. During that second phase, Mr Boardman managed to stab Mr Taimalie another three to four times in the leg and stomach. The knife was retrieved and Mr Boardman was dragged outside where he tried to punch Mr Taimalie about the head.
[4] Mr Boardman gave a different account of events. He described Mr Taimalie “storming” towards him after reproaching him about another patron’s BYO vodka. Afraid Mr Taimalie was going to strike him in the head, and being particularly concerned because of a previous head injury, Mr Boardman’s evidence was that he unclipped his key-ring pocket-knife and showed it in an attempt to scare Mr Taimalie off. He alleged Mr Taimalie then hit him in the head, and he responded in his panic and confusion trying to get Mr Taimalie off him. He could not recall using the knife but could remember trying to defend himself. Mr Taimalie then beat him on the ground in a frenzied state. Mr Boardman denied any intention to cause serious harm to or injure Mr Taimalie, and maintained it was Mr Taimalie who bore that intent.
[5] The police evidence was that, when they arrived at 2.30am, Mr Boardman was lying outside the tavern on the footpath with his arms around a pole yelling for help. He screamed and resisted attempts to handcuff him. One of the officers gave evidence that Mr Boardman appeared heavily intoxicated. Mr Boardman refused to provide details as to his identity or to walk to the patrol car. He was carried to the police car, and required the attention of three officers during processing, a period of time during which he was reported to be abusive. At 11.18pm, Mr Boardman was given his rights and made a brief statement to police. He admitted being at the tavern and said that he only pulled out the knife to scare Mr Taimalie as he thought he was going to be attacked. He further stated that he did not strike Mr Taimalie with the knife.
Submissions of the parties
[6] Essentially Mr Boardman has two main complaints. The first is that the judge in his directions misdirected the jury on the question of self-defence, telling the jury to decide whether they believed Mr Boardman or Mr Taimalie and that it was for the jury “to sort out where the truth lies”. Mrs Stevens points to the decision of this Court in R v Tanielu CA409/02, 26 May 2003 where a similar misdirection had been given. The second complaint is that the issue of Mr Boardman’s intoxication was dealt with inadequately and in isolation from the issue of self-defence.
[7] There were two other issues raised. The first was that the judge had failed to deal with a credibility issue relating to the level of Mr Boardman’s intoxication. The second was that the judge had made inappropriate comment on the question of Mr Boardman’s demeanour when the police arrived. During the course of the hearing, however, Mrs Stevens conceded that the judge’s comments were legitimate, except to the extent that they were accompanied by a repetition of the misdirection in relation to self-defence. This is really therefore part of the first ground.
[8] The Crown submitted that the judge’s directions on the onus of proof and self-defence cannot be criticised. The statement about it being for the jury to sort out where the truth lies followed those directions on the law in a section that was plainly comment. In the Crown’s submission, in the context of the summing-up as a whole, the jury can have been left in no doubt as to their task.
[9] The Crown submitted further that the judge dealt with the issue of intoxication entirely properly. In the circumstances, intoxication was not relevant to the issue of self-defence. In addition, the alleged clash of credibility was at most a question of difference in perceptions of intoxication and not a matter that needed to be referred to by the judge.
Discussion
[10] We deal first with the alleged misdirection on self-defence. It is common ground that the judge gave standard and proper general directions on the onus of proof, the manner in which the jury should approach the accused’s evidence, and on self-defence, including the fact that it was for the Crown to prove beyond reasonable doubt that Mr Boardman was not acting in self-defence. The judge then went on to make the remarks Mr Boardman complains of:
Those are the self-defence provisions. I hope you are not confused. I am sure, however, that everything will fall into place once you decide what happened here. I say that because you are faced with two quite different accounts. They are accounts that, in my opinion, cannot be reconciled. It is pretty difficult to put both those accounts together and try and reconcile them in some way.
My suggestion, to put it bluntly, is that either the complainant is lying or the accused is lying. It is for you to sort out where the truth lies.
[11] As indicated above, Mrs Stevens, for Mr Boardman, submits that this is a misdirection. In her submission it was for the Crown to prove that Mr Boardman did not act in self-defence, not for the jury to enter into a balancing exercise. She submits that this error was compounded later on when the judge said:
What you have to ask yourself then is, does his demeanour when the police arrived, assist you in working out what happened inside the hotel only a short time before? Does it assist you in working out who might be telling you the truth about what happened? You also might ask, whether those are the actions of a man who has just been attacked as he claimed? You may think that if he had just been assaulted and merely acted in self defence, that he might have told the police about that when they arrived. (Emphasis added)
[12] We comment first that there was a direct clash between Mr Taimalie’s evidence and Mr Boardman’s. The judge’s comment (and he clearly states that it is his opinion) that the respective accounts cannot be reconciled is entirely proper. We agree that the comment that followed was a misdirection. It was not the jury’s task to work out who to believe. The jury’s task was to decide whether the Crown had proved its case to the requisite standard. For this aspect of the case this meant that the jury had to decide if the Crown had proved beyond reasonable doubt that Mr Boardman was not acting in self-defence. The question is whether that misdirection has led to a miscarriage of justice.
[13] In our view, this is a very different case from R v Tanielu. In that case the misdirection occurred, unlike here, before the jury had heard the standard direction on onus of proof. Indeed, it was set out at the beginning of the summing-up as the jury’s primary task. Similar comment was then intermingled with the standard direction on the respective roles of the judge and jury, on how an accused’s evidence was to be assessed and at various other points throughout the summing-up, without there being a clear differentiation made by the judge between comment and direction.
[14] There was no intermingling of that type in this case. The directions on onus of proof, the role of the judge and jury, the manner of treating an accused’s evidence and self-defence were exemplary, and preceded the statements complained of. In our view, the jury can have been left in no doubt about their role and the role of the Crown.
[15] In addition, the passage set out in para [10] above in its turn came just before a section where the judge was (quite properly) giving the jury further assistance on applying the legal tests on self-defence to the facts of the case. The judge began by summarising the evidence of Mr Taimalie as to the sequence of events and his evidence that Mr Boardman attacked him without warning. He then said that, if the jury were sure Mr Taimalie’s account were correct, then self-defence did not apply:
On that account the accused is the aggressor and has produced the knife without any reason or any justification at all. So if you believe the complainant’s account, if you are sure that his account is correct, then the self-defence provisions do not apply. It was simply not a self-defence situation at all. (Emphasis added)
[16] The judge went on to summarise Mr Boardman’s evidence to the effect that Mr Taimalie was the aggressor. He then quite clearly directed the jury that, if they thought Mr Boardman’s account was or might be true, then self-defence would apply. He said:
Now if you believe that is what happened, or think it might be true, then I think the Crown would be hard pressed to say that the accused was not acting in self-defence. Although I might be oversimplifying matters, I suggest that really is how you should approach it.
So, if you believe what the complainant says, then obviously you would exclude the accused’s account and self-defence does not apply. On the other hand if you do not believe the complainant, but instead believe the accused, or believe that his account might be true, then plainly self-defence does apply. It would therefore be difficult to see how the Crown can succeed. (Emphasis added)
[17] Taking the misdirection in context we do not consider that the jury can have been in any doubt as to their task. The comment about deciding who to believe and sorting out the truth would in our view have been understood in the light of the directions which preceded it and the comments which followed. It is unfortunate that the remark about deciding who to believe was repeated later in a slightly different form in the course of the comments on demeanour but again, in the light of the whole of the summing-up, we do not consider that would have deflected the jury from their task. This ground of appeal fails.
[18] Moving to the issue of intoxication we note first that we do not consider there was any significant clash of evidence between Mr Boardman and Mr Taimalie as to the level of Mr Boardman’s intoxication. Mr Taimalie did not agree with the police officer’s observation that Mr Boardman was heavily intoxicated but he did agree that Mr Boardman was “pretty mellow”. Mr Boardman described himself as “well-heeled”. There may be subtle nuances with regard to the two terms but these were not elucidated in the evidence.
[19] The Judge dealt with the issue of intoxication after the remarks on demeanour quoted at para [11]. He in fact does refer to the alleged conflict of evidence over the level of intoxication and then gives some directions on the topic. He said:
The other feature that you may take into account of course is this business of intoxication. You remember Mr Taimalie, the complainant, did not accept that the accused was intoxicated. Constable Peat, and I have just read the evidence, said he appeared heavily intoxicated. I am not sure that he was agreeing that he actually was, but he certainly gave the appearance. Sometimes intoxication can be important in a criminal jury trial in that it might be suggested that a person is so intoxicated that he or she is incapable of forming the necessary intent that might be embodied in a particular charge. Those situations are rare and as I understand it, it has not really been suggested that that is the situation here because on the one hand the accused cannot be claiming to be acting in self defence, and at the same time be saying that he was so intoxicated that he did not know what he was doing. Of course, if someone has been drinking or is intoxicated, and this is a matter of commonsense, it may still have some other impact. As you know, intoxicated people sometimes act in ways they might not when they are sober. I am not sure whether that has any bearing. Equally if someone is intoxicated, you have to ask whether that affects their recall of the event itself. Again it is a matter of commonsense, and for you to consider.
[20] Mrs Stevens does not take issue with most of this direction but submits that a direction on intoxication should have been associated with the directions on self-defence and, in particular, directed at the question of what Mr Boardman believed the circumstances to be at the time of the incident and whether, for example, he believed himself under attack.
[21] We agree that, where intoxication is an issue, it would usually be necessary to relate any direction on intoxication to the self-defence direction. In our view this was not a case, however, where Mr Boardman’s perceptions were at issue. There were two conflicting versions of events. As the judge said effectively this meant that, if the jury were sure that Mr Taimalie’s version of events was correct, then the Crown had proved its case with regard to self-defence. If they considered it a reasonable possibility that Mr Taimalie was the aggressor, then the Crown had not done so. In any event, we note that in cross-examination Mr Boardman denied that his perception and judgment were impaired to a significant degree:
Q.So you are saying that even though you had consumed significant quantities of alcohol your perception and judgment were not impaired in any way?
A.I wouldn’t go so far as saying in any way but was in a good mood being New Years Eve and was aware of things that were happening because I was in a good mood.
[22] It can be seen therefore that intoxication was not in this case relevant to the question of self-defence, except perhaps in a manner unhelpful to Mr Boardman (given alcohol can loosen inhibitions). This ground of appeal must also fail.
Result
[23] For the reasons given above the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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