R v Harris

[2004] NZCA 15

IN THE COURT OF APPEAL OF NEW ZEALAND

CA338/03

THE QUEEN

v

CRAIG ALASTAIR HARRIS

Hearing:26 February 2004

Coram:Hammond J
Laurenson J
Doogue J

Appearances:  A Stevens for the Appellant

G C de Graaff for the Crown

Judgment:8 March 2004 

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

INTRODUCTION

[1]       The appellant was charged in the District Court at Dunedin, pursuant to s202(c)(1)(a) of the Crimes Act 1961, with assaulting a neighbour, Mrs Moffitt, with a hammer and threatening to do grievous bodily harm to her son, Mr Webb, pursuant to s306(a) of the Crimes Act 1961.

[2]       Mr Harris was acquitted by a jury on the first charge and convicted on the second. He was subsequently sentenced to 80 hours community work.

[3]       Mr Harris now appeals against his conviction on the ground that there was a miscarriage of justice occasioned by trial counsel incompetence.

Factual Background

[4]       At the time of the incident giving rise to the charge, the appellant lived with his family in a State house at No. 2 Blundell Avenue, Port Chalmers.

[5]       The complainant, Mr Webb, was living with his mother, Mrs Moffitt, next door at No. 3 Blundell Avenue, Port Chalmers.

[6]       The two properties had originally been separated by a hedge which was removed by agreement between them some months previously.  The appellant had then erected a wooden paling fence in its place. At some point afterwards, Mrs Moffitt had nailed corrugated iron onto the wooden fence. The iron sheeting was significantly higher than the wooden fence. The erection of the corrugated iron had caused a good deal of acrimony. The accused’s wife disliked both the appearance of the iron and the fact that it was buffeted by the wind to such an extent that it was causing damage to the wooden fence.

[7]       On 4 January 03, Mrs Harris and Mrs Moffitt became involved in an altercation, over the fence. When he became aware of this the accused apparently reached the point where he had had enough.

[8]       Mrs Moffitt said in evidence:

a)After the initial altercation, she had gone inside and had then heard a loud banging noise. She ran outside, checked on her children, then ran to the fence and found the accused was knocking the fence down. He was “hammering the fence, the last piece of tin you see when I went out was at right angles he had knocked it right over”.

b)She went over to the fence. The accused abused her and her son, Mr Webb, who was behind her. In particular, he was alleged to have said to her son “I’m going to put a bloody big fucking hole in your head you little cunt.”

c)She then pushed the piece of tin back up.

d)The accused had a hammer in his hand and it was alleged that the assault, in respect of which the accused was discharged, then took place.

e)She said her son remained on her property at all times.

[9]       Under cross-examination, Mrs Moffitt said:

a)She had not actually seen the accused hammering the fence. The bent portion was in that position when she returned.

b)At the point when the accused threatened her son, she said her son was holding an ornamental Samurai sword.

c)She agreed the accused had not come onto her property.

[10]     Mr Webb said in evidence:

a)He heard a piece of tin being smashed on the fence.

b)He had followed his mother outside to see the accused in his own backyard approaching the fence carrying a claw hammer. The accused started yelling at him and his mother. He thought the accused said, “Fuck off or I will chop you put a hole in your head”.

c)The altercation continued and the alleged assault on the mother then took place.

d)He then went back inside and got the sword. He said he got the sword after the threat and he had not left his mother’s property at any time during the incident.

[11]     Under cross-examination, Mr Webb said:

a)He had made his statements to the Police, one at the time, and the second at the police station about two weeks later. It was only on the second account that he mentioned the threat to him and the alleged assault on the mother.

b)He said he only got the sword after his mother was assaulted.

c)He reiterated the threat had been made before he got the sword.

d)He had only got the sword because he was scared for himself and his mother and was concerned about the fence.

[12]     A Mrs Burrow, who was living with Mrs Moffitt, said she heard:

“A banging over the fence and I looked out the window and the tin was being bent down”.

This was being caused by the appellant “banging it with a hammer of some sort”. Mrs Burrow called out to Mrs Moffitt and Mr Webb. Mrs Moffitt ran out to the fence and Mr Webb followed her.

[13]     The appellant gave evidence. He said:

a)After his wife and Mrs Moffitt had had an argument over the fence, he told his wife he would “go and take the tin off our wooden fence as I was sick of all the arguments. I went outside, went over to the fence and gave it a kick.” He just about broke his foot because he had not realised the fence was reinforced on the other side.

b)He phoned a friend to get a sledgehammer, went home, picked up a hammer intending to knock the tin off the fence.

c)Mrs Moffitt was standing inside her property screaming.

d)Mr Webb came over the fence mainly to frighten the appellant, who said to him “get off my property or I will do you”.

e)Mr Webb then jumped over the fence, went into his home and returned with a sword and invited the appellant to come over and fight him. He then apparently dropped his hammer and a grey sweat top and told him not to be stupid. He was then taken away by his wife and started taking the children’s tent down. 

f)The appellant denied threatening to put a hole in the Mr Webb’s head. The only threat made was to “get off my property or I will do you”.

g)He denied any assault on Mrs Moffitt.

[14]     Under cross-examination, the appellant said:

a)He had intended to break the tin off with the hammer but he denied hitting the fence with the hammer and denied assaulting Mrs Moffitt, and had not threatened to put a hole in Mr Webb’s head.

b)Mr Webb had not interfered with him taking the tin off the fence because he didn’t see it (i.e. the appellant taking the iron off).

c)He  also said:

Q.     If you look at the booklet of photographs, photo 3, in the middle of the photo you see cracks in the corrugated iron can’t you?

A.     Yes.

Q.     I suggest to you they were caused by you pushing the fence over.

A.     If I pushed the fence over or struck the fence with the hammer like the neighbours say I did, the fence would be split all the way through, the corrugates would be bent to me and I’ve looked at the fence 100s of times, its impossible what they are saying happened, and you don’t have enough pictures I have photos but don’t know if I’m allowed to show them, it shows clearly that there is no way the fence has been bent over to ground level or to 45 degree angle impossible.

[15]     Mrs Harris said:

a)After the argument with Mrs Moffitt, the appellant went outside to the fence – she heard a loud bang – he came inside and used the phone – then went back to fence – she didn’t see him carrying anything.

b)Mr Webb then jumped the fence (not carrying anything).

c)Appellant told him in no uncertain terms to: “get the fuck off my property or I will do you”.

d)Mr Webb jumped back over the fence.

e)Appellant walked back towards the house.

f)Mr Webb jumped back over the fence again carrying a knife and left when told to go back.

g)She saw no assault on Mrs Moffitt.

Grounds of Appeal

[16]     The appellant has submitted that his conviction on the charge of threatening to do grievous bodily harm to the complainant amount to a miscarriage of justice occasioned by his trial counsel’s incompetence in the following regards:

a)This case depended to a very large degree on the jury’s findings of credibility as to the evidence of the witnesses present at the time of the incident.

b)There were two particular areas of evidence which were relevant to the credibility of the Crown witnesses.

i)Whether the appellant had hit the fence with a hammer.

ii)The inconsistent statements of Mr Webb.

[17]     As to the first point, the appellant had obtained an engineer’s report which concluded:

a)There were no hammer marks on the fence.

b)The one sheet of iron claimed by the Crown to have been bent over at right angles towards the complainant’s property could only have been pulled over.

[18]     Defence counsel was refused leave to call this evidence because it had not been put to the Crown witnesses. Leave was also refused to recall Mrs Moffitt to enable the report to be put to her.

[19]     Furthermore, it was submitted that Mrs Moffitt had not been taxed sufficiently under cross-examination as to whether the appellant had hit the fence with a hammer.

[20]     Associated with this ground was the submission that photographs introduced by the Crown, at a late stage, were not met with objection, on the ground that they favoured the prosecution case on the issue whether the fence had been hit with a hammer.

[21]     The second matter related to the complaint by Mr Webb, namely:

a)Mrs Moffitt had not been adequately cross-examined as to whether Mr Webb climbed over the fence.

b)Nor was it put to her that the appellant had not in fact made the threat “to put a hole in (her son’s) head”.

c)Mr Webb was not adequately cross-examined regarding inconsistencies in his statements.

d)It was not put to Mr Webb that the appellant had not hit the fence with a hammer.

e)The engineer’s report was not put to Mr Webb.

f)The appellant’s denial as to the threat was not put to Mr Webb.

g)There was insufficient cross-examination of the witness, Mrs Burrows, particularly as to matters relating to the defendant’s case.

[22]     A third ground raised later related to the alleged use of an air gun by Mr Webb, after the alleged assault on Mrs Moffitt. This incident had not been put to Mr Webb. Nor, however, had it been raised by the Crown in the first instance.

[23]     A waiver from solicitor/client privilege has been given by the appellant and an affidavit filed by trial counsel.

Self Defence

[24]     Shortly prior to the hearing of the appeal, the appellant sought leave to raise a further ground of appeal namely, the failure of the trial Judge to direct the jury on self defence notwithstanding this defence had not been raised at trial.

[25]     Crown counsel did not oppose leave being granted to raise this ground because, in the Crown view, the issue was by itself sufficient to justify the granting of the appeal.

[26]     The Crown accepts there was evidence by Mrs Moffitt that her son was holding the samurai sword when he was behind her when she first went out to the fence. There is no dispute that a threat was made by the appellant at the point when both Mrs Moffitt and Mr Webb came to the fence. Notwithstanding that Mr Webb himself, and Mr and Mrs Harris all said in evidence that he had gone back into the house after the threat in order to get the sword, the Crown accepted that the evidence of Mrs Moffitt “amounted to a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self defence”. See R v Tavete CA331/86, 17 December 1987.

[27]     In Tavete the Court also said at p3:

“It is well settled that when a judge has to rule whether there is sufficient evidence to justify a defence of self defence being submitted to a jury he must consider the matter on the view of the evidence most favourable to the accused.”

[28]     The net result was, in the Crown’s submission, there was a credible or plausible narrative by Mrs Moffitt (a Crown witness) that at the time when the appellant made the threat he did so when presented with Mr Webb holding a sword. A threat can, for the purposes of s48 of the Crimes Act 1961, constitute a use of force to pre-empt an anticipated assault on the maker of the threat; see R v Terewi  (1985) 1 CRNZ 623 (CA). Accordingly the Judge was required to direct the jury that the making of the threat could be justified on the ground of self defence “if it accepted Mrs Moffitt’s evidence over that of the other witnesses”. No such direction was given therefore the appeal should succeed.

[29]     We consider Crown counsel to be correct in these submissions. And, given the obligation on the Crown, as part of the overall onus on it to negative any possible ground of self defence, we are driven to the conclusion that the conviction must be, and is, set aside.

[30]     Pursuant to our powers under s385 of the Crimes Act 1961 we direct that there be no retrial. We understand Mrs Moffitt has died since the first trial. Even assuming for the purposes of discussion (but without deciding) that her prior evidence could be admitted at the second trial, she is not now available for reexamination in light of the issue of self defence. This issue cannot now properly be covered, whereas, if it had been apprehended and adequately dealt with at the first trial, it could well have availed the appellant. Hence the appellant is now seriously prejudiced on this issue. That, along with the background to this case, and the fact that Mr Harris was acquitted on the more serious charge, has led us to the direction we have given.

Solicitors:
O'Driscoll & Marks, Dunedin for the Appellant
Crown Law Office, Wellington for the Crown