R v Hamish Timmins

[2003] NZCA 121

IN THE COURT OF APPEAL OF NEW ZEALAND

CA250/02

THE QUEEN

v

HAMISH TIMMINS

Hearing:16 June 2003

Coram:Glazebrook J
Heath J
Doogue J

Appearances:  R M Lithgow for Appellant

B J Horsley for Crown

Judgment:23 June 2003 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1]       The appellant was found guilty by a jury in the Wanganui District Court on two representative charges of assaulting his stepson with a weapon and assaulting the stepson when he was under the age of 14 years.  The appellant was sentenced to an effective term of 2½ years’ imprisonment.  He appealed against sentence and conviction.

[2]       The sole ground of appeal against conviction pursued on behalf of the appellant is that there was a miscarriage of justice because the appellant did not give evidence on his own behalf and, as a result, it was impossible to provide a proper and available defence.

[3]       The appellant accepted that he had used disciplinary force in controlled circumstances to his stepson with his hand, a hairbrush and a piece of hose.  His defence was that the force used by him was reasonable.  It was for the prosecution to establish beyond reasonable doubt that it was unreasonable.  In respect of a third count in the indictment, namely a representative charge of assaulting the stepson when under the age of 14 with his hand, the appellant was acquitted.  There was evidence as to the severity of the application of force with the hairbrush and, in particular, with the hose which entitled the jury to take the view that the force applied was unreasonable.  The issue arising on the appeal is whether the appellant counsel’s failure to advise affirmatively that the appellant give evidence was a radical error that created a real risk of a miscarriage of justice.

[4]       The sentence appeal is pursued on the basis that the sentence imposed was manifestly excessive.

Background

[5]       The appellant and his wife married in 1996 after they met through a Christian sect devoted to biblical principles.  At the time of the marriage the wife had a 5 year old boy.  The marriage continued until late 2000.  There were two children of the marriage.

[6]       At trial the stepson, then aged 11, spoke of being hit by his stepfather both on his hand and bottom by hand from shortly after his mother married the stepfather.  The stepson spoke of his being hit on the hand and bottom with a hairbrush from the age of 7 or 8 to about 9½ and with a hose for about the last of those years.  He accepted all the punishment was meted out to him in his bedroom for wrongful conduct after his stepfather had discussed with him the nature of his transgressions as seen through his stepfather’s eyes.  He was uncertain as to the frequency of the punishment or the extent of its severity.  He spoke of being hit with the hairbrush about twenty times in all on his hand and his bottom with six or seven hits on each occasion.  He was hit with the hose “lots of times” with up to 30 times on any one occasion.  He spoke of screaming and of bruising.  On the last occasion he could not sit down until the afternoon of the day after the beating.

[7]       The mother gave evidence that on average her son was punished about once a week.  However, she said she never saw the punishment being administered.  She confirmed that on occasions her son screamed and was bruised as a result of the punishment applied.  The mother accepted that she also used corporal punishment to her son but said it was only by hand, which her son confirmed.

[8]       Three members of the staff at the school which the stepson attended gave evidence the appellant had made it known that he regarded corporal punishment as acceptable.  On the final occasion of punishment of the stepson by the appellant, after the appellant became aware that the stepson had lied to him, he told one of the staff that his stepson would not be at school the next day. 

[9]       A police officer gave prejudicial evidence as to the appellant’s reaction to him when he sought the appellant’s statement in respect of the events alleged.  Counsel for the appellant objected to such evidence but it was admitted by the trial Judge.

[10]     At the end of the Crown case counsel for the appellant recommended to the appellant that he should not give evidence and the appellant accepted such advice.

[11]     It should be noted that the appellant had sought to have certain witnesses called on his behalf.  Trial counsel had done his best, including the service of a witness summons on one of the witnesses, to ensure that they attend trial but they did not.  There is nothing before us as to what precise evidence they could have given helpful to the appellant and we ignore this aspect of the matter.

Appellant’s case on conviction appeal

[12]     The appellant acknowledges that he smacked his stepson with his hand, a hairbrush and with a piece of hose.  However, he says that his stepson and his wife exaggerated the number of times and the way and the severity in which his stepson was being hit.  The appellant’s evidence, on his view, would have established that his disciplining of his stepson was reasonable or at least made the jury question whether it was unreasonable.  It is noteworthy, however, that the appellant does not dispute the essence of what his stepson said about his actions or the consequences but seeks to minimise their extent and effect in a general way.

[13]     Counsel for the appellant submits that in this case there needed to be evidence to counter what was said by the stepson and his mother and the school staff and the police officer.  Much of that evidence, it is said, was simply prejudicial in respect of the appellant and was not capable of challenge by trial counsel but could have been answered by the appellant.  Somewhat unusually this was a case where there is no statement from the appellant before the Court at all either in writing or by video record or even orally.  Thus the jury had nothing from the appellant except what was put to them by counsel.  If the appellant had been able to give evidence he would not only have been able to give the background of his relationship with his wife and his stepson but answer the direct allegations against him.  Hence it was said for the appellant that the appellant’s case did not have a realistic chance of succeeding without the jury hearing contrary evidence.  Such witnesses as the appellant had wished to call were not available for various reasons.  Therefore it was impossible to provide a proper and available defence without calling the appellant.  The failure to call him thus created a real risk of miscarriage of justice.

Respondent’s case on conviction appeal

[14]     For the Crown it was submitted that the trial turned upon the Crown establishing that the actions taken by the appellant in the course of discipline were not justified because the force used was not reasonable.  It seems clear from the evidence as a whole that there is no suggestion that any of the force used was other than in the course of discipline, hence the only issue for the jury was whether it was unreasonable.

[15]     There has been no attack on the summing up so it must be assumed that it properly dealt with all questions in issue.  Although the appellant now wishes to give evidence to minimise the evidence of his stepson and wife as to the extent and severity of the punishment applied by him, he is not denying the essence of it.  Ultimately therefore the question would have remained the same for the jury, namely whether the Crown had established that the force used was unreasonable.  The appellant does not appear to deny that on at least one occasion the force used by him is of such seriousness that his stepson could not sit after it.  That alone would have justified the jury’s verdict in respect of assault with a weapon.  On his own evidence at this time the appellant would have to acknowledge much of what was said by his stepson and his wife in respect of his punishment of the stepson.  Thus the outcome could not have been different.

Discussion of conviction appeal

[16]     As was recently stated in R v Momo CA 115/02, 23/7/02:

[13] The principles applicable where appeal grounds rest upon alleged failure by [trial] counsel are well settled. In order to reach the threshold that a risk of miscarriage of justice exists an appellant must demonstrate “radical” or “fundamental” mistakes or blunders by trial counsel, not merely decisions that could have yielded a better result; R v Pointon [1985] 1 NZLR 109 (CA). The test is well known and it must be whether the conduct of the defence can be said to have led to a miscarriage of justice or at least to a real risk of miscarriage of justice: R v Jones (CA426/00, 30 March 2001).

[17]     In this case the appellant was represented at trial by experienced and capable counsel.  Trial counsel would inevitably have a better feel for the manner in which the evidence of the stepson complainant and his mother and of the other witnesses has come out than subsequent counsel or the Court from the transcript of such evidence.  From his dealings with the appellant, trial counsel would have been in a better position to make his own assessment of the likely impact of the appellant upon a jury than subsequent counsel or this Court.  It is understandable that the appellant would now genuinely believe that he could assist at his case at trial if he had given evidence but whether that would have been the case is quite another matter.  Trial counsel was in a position to make that evaluation.  It was not a case where there was any substantial dispute about what had happened.  It was rather a question of how that weighed with the jury.  If the appellant had given evidence the jury’s attitude towards him was just as likely to be more critical rather than less critical.  He would have been open to cross-examination.  When he could not deny the substance of what occurred, even if there is challenge to the detail, the position could have been much worse for him than through his not giving evidence.

[18]     It has to be noted that the jury did acquit the appellant in respect of one of the three charges.  This in itself established that trial counsel made some headway with the jury.

[19]     In some cases, such as Pointon, the circumstances in their entirety will require counsel to advise an accused that evidence should be given because otherwise conviction is inevitable.  This was not such a case as the acquittal indicates.  All the ingredients of the appellant’s defence were clearly before the jury.  The appellant was properly advised of his trial risks if he gave evidence.  Whether he gave evidence had to be a tactical decision made in the circumstances of the trial with an assessment of the appellant’s personality.  It is not a case where the defence could not be put without the appellant’s evidence.  The jury can have been under no illusions as to that defence and the basis for it.  There is no basis for us to hold that trial counsel made any error in the advice given to the accused, let alone any radical or fundamental error.  Nor is there any basis for us to consider that the failure of the appellant to elect to give evidence has led to any real risk of a miscarriage of justice.

Sentence appeal

[20]     The sentence appeal proceeded on the basis that the sentence imposed was out of line with those considered appropriate in a number of cases referred to the Court and was accordingly manifestly excessive.  We have considered the cases referred to us but do not think it helpful to attempt any analysis of them.  They were: R v Fuimoana CA 276/95 27/7/95; R v Waiti CA 15/96 26/3/96; R v Matafeo CA 222/96; CA 223/96 11/9/96; R v Russell CA 358/00 30/11/00; Mickey & Fuimaona v The Police AP 160/00, 10/8/00.

[21]     As counsel accepts it is an area where there is no tariff and the trial Judge had the cases before him.  He was affected as much by the period of time over which the offending extended as its severity.  Another Judge may have taken a different starting and finishing point to the sentence imposed but it is impossible for us to say that that adopted by the Judge was manifestly excessive.  The fact that the appellant believed he was entitled to apply force of the kind applied to his stepson is not a mitigating circumstance as suggested by counsel.  Indeed it could be taken as an aggravating circumstance that the appellant felt he was justified in so severely beating his stepson that the boy was bruised and even unable to sit down. 

[22]     Counsel also took issue with the Judge putting unknown weight on an earlier offence by the appellant of sexual violation by unlawful sexual connection of his natural daughter.  In context we are satisfied the Judge was entitled to take account of that offence in the manner he did.  He did not emphasise it as an aggravating feature as he might have done but rather appears to have been negating any suggestion that the appellant’s relationships with his children were good.

[23]     The sentence imposed may have been towards the upper end of the available sentencing range but as already stated it was not manifestly excessive.

Decision

[24]     For the reasons given the appeals in respect of both conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington