R v Harrison

[2007] NZCA 588

IN THE COURT OF APPEAL OF NEW ZEALAND

CA545/07
[2007] NZCA 588

THE QUEEN

v

MARYANNE MICHELLE HARRISON

Hearing:22 November 2007

Court:Glazebrook, Williams and MacKenzie JJ

Counsel:A Sharko for Appellant

K B F Hastie for Crown

Judgment:19 December 2007 at 11am

JUDGMENT OF THE COURT

TIME FOR APPEALING IS EXTENDED, BUT THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

[1]       The appellant was convicted following trial before Judge Mackintosh and a jury in the District Court at Napier in July 2007 on one count of wounding with intent to cause grievous bodily harm.  She was acquitted on two counts of injuring with intent to cause grievous bodily harm.  The principal ground of the appeal is that “the evidence was unreliable and should not have been left to the jury”. 

[2]       Extension of time to appeal is also sought.  That was not opposed, and the appeal was only a few days out of time.  Time for appealing is extended accordingly.

The evidence

[3]       The three charges arose out of an incident on 31 January 2007.  The appellant had driven her vehicle to a house in Napier occupied by her brother and his partner.  Also at the house that evening were the appellant’s sister, and a number of others.  The appellant got into an altercation, which escalated from verbal to physical, with her sister.  The Crown case was that the appellant then got into her vehicle, which was parked in the driveway, and intentionally drove at her sister (Berta), her brother (Frank) and Ms Kohi (Dione), thereby wounding Berta and injuring the two others.  Berta suffered cut tendons in her hand, lacerations to her shoulder and leg, cuts and scratches to her face, and some bruising, caused by the vehicle and by broken glass from a window struck by the vehicle.  Frank received injuries to his leg, and Dione received abrasions to her arm.  The appellant was convicted on the count in respect of Berta.

[4]       There were several eyewitness accounts of what occurred, including accounts from all three victims.  Frank gave evidence of a fight developing between his sisters and of his trying to break it up.  He said that he did not remember the appellant’s vehicle being in the driveway and that he did not know how he had received the injuries for which he received hospital treatment.  Dione also gave evidence of the physical altercation between the two sisters, and that the appellant left and went to her truck which was in the driveway.  She said that she did not ever see the truck moving, or see anyone in it.  She remembered Frank and Berta being injured, by being run over, she presumed, by a truck.  As to how abrasions, which she suffered, were caused, she said she thought the appellant had hit her with the truck but all she could remember was just walking and then she just fell.  She was not really sure what caused her to fall.  In cross-examination she agreed that she was unable to say whether the injuries she got were simply from falling by intoxication or being pushed over by something.

[5]       Mr Rehutai was also at the house and witnessed events.  His evidence was that the appellant’s four wheel drive vehicle was parked in the driveway, that an argument and physical altercation developed between the complainant and her sister; that the appellant got into her vehicle; that he saw her in it when the vehicle hit her sister; and that there was no one else in the vehicle with her.  He said that Berta had been standing a couple of metres away from the vehicle when the vehicle first starting moving towards her.  Mr Rehutai did not see the vehicle touch anyone else.  He saw the vehicle also hit the house.  The vehicle reversed out of the driveway and left the address.  In cross-examination he acknowledged he had had a lot to drink, 15 bottles of Steinlager, over a period from five or six in the afternoon until the time of the incident, the early hours of the following morning.  It was put to him that it would be fair to say that his recollection of the events would be clouded by the large amount of alcohol he had to drink.  He did not agree with that and said that he was “pretty much focused”.

[6]       Berta gave evidence that her sister, the appellant, got into the truck on the driver’s side, that it reversed down the driveway and then came forward again.  She was standing on the driveway.  She threw a bottle at the truck, which hit the windscreen.  It then reversed back down the driveway and came forward again.  As to what happened when the truck came forward the second time she said:  “in my dreams it’s, I’ve been having nightmares, in my dreams I threw Dione out of the way.  I thought the truck hit Dione but in my dreams I threw Dione out of the way.”  She further said:  “I thought that that’s what happened but when I had, I was told I had a delayed reaction, and in my dreams, in my reactions, in my panic attacks it’s a totally different event.”  She said that the truck moved forward and backwards five or six times.  She was asked whether it touched anything else.  She said:  “I thought it did but in my dreams I jumped out of the way.  I thought the truck hit me and Frank in my nightmares I jumped out of the way.”  She was asked to explain that and said:  “In my dreams it feels like, I feel as though I’m going to die and I jumped, jumped out of the way and jumped into the - and cut myself.”  In cross-examination she was asked: 

Q:You have told the Court a lot about how you remember things in your dreams.  Would it be fair to say that the position now is that you find it difficult to differentiate what is a dream or what actually happened? 

A:       I am still trying to understand what a delayed reaction is. 

Q:Right.  But when you describe events, well let me just ask a question, when [you] have had a dream or a nightmare about events you can remember that dream or nightmare sometimes? 

A:Yeah. 

Q:Is it the situation today that sometimes you don’t know whether what you are recalling is a dream or what actually happened?

A:Yeah.

[7]       There was also evidence from a neighbour directly across the road who was woken by breaking glass.  When she looked out her front window she saw what she described as “a car going nuts in the driveway”.  She described it as racing up the driveway about four or five times.  She said: “it was speeding up, it was like it was after something”.  It was put to her in cross-examination that a previous witness had said the vehicle only moved up once then reversed.  She was very sure that it happened as she had described.

[8]       The appellant’s statement to police was also in evidence.  The appellant, in that statement, admitted that she had been driving her car, that Dione, Frank and Berta had been standing in front of it, that she did drive forward to them (she said “just slightly”) and when asked whether she hit them said “nah, it was just their hands”.

“No case” submission at trial 

[9]       At the conclusion of the Crown case, the defence made an application under s 347 of Crimes Act 1961, submitting that there was no case to answer on the grounds that the evidence of Berta and Mr Rehutai was so inherently reliable that it should be discounted and that the remaining evidence was not enough to convict.  That submission was rejected.  The case was left to the jury with the result that the appellant was found guilty on the account relating to his sister Berta and not guilty on the accounts relating to Frank and Dione.

Appellant’s contentions on this appeal

[10]     In this Court, the appellant advances what is in essence the same submission as that made on the s 347 application.  Mr Sharko submits that the present is one of those cases where there is “some evidence but it is of a tenuous character” as referred to in R v Galbraith [1981] 1 WLR 1039 (CA). He submits that the Judge should not have left the evidence of Berta or Mr Rehutai to the jury. He submits that the evidence of Berta cannot be said to be anything other than inherently unreliable because of her inability to distinguish reality from a dream and that, given his level of intoxication, the evidence of Mr Rehutai also has to be inherently unreliable.

The respondent’s contentions

[11]     Counsel for the respondent submits that the stated ground of appeal appears to be against the refusal to discharge under s 347, and that there is no right of appeal to this Court against such a refusal.  Counsel submits that the more relevant ground is that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence under s 385(1)(a) of the Crimes Act.  Ms Hastie submits that the test to be applied by an appellate Court in determining an appeal under that section has recently been considered by a full bench of this Court in R vMunro [2007] NZCA 510. This Court rejected the argument that the test in R vRamage [1985] 1 NZLR 392 (CA) should be revisited. It reaffirmed the test as being whether, on all of the evidence, a jury acting reasonably ought to have had a reasonable doubt. Counsel for the Crown submits that this was a classic case for a jury to determine. They had to decide the three separate counts not only on the evidence of these two witnesses but on all the evidence, and questions of credibility are matters for the jury to determine.

Discussion

[12]     To the extent that this purports to be an appeal against the trial judge’s ruling under s 347, there is no jurisdiction for such an appeal.  We apprehend that the appeal is advanced on two grounds:

(a)That the evidence of Mr Rehutai and Berta was so inherently unreliable that it should not have been left to the jury at all, so that there has been a miscarriage of justice under s 385(1)(c); and

(b)On the basis submitted by Counsel for the Crown, namely that the issue is whether the grounds of appeal in s 385(1)(a) is made out, and that the appropriate test to apply on that issue is that set out in Ramage, as confirmed in Munro which was recently approved by the Supreme Court in Owen v R [2007] NZSC 102 at [4].

[13]     On the first ground, Mr Sharko submits that the evidence of Mr Rehutai and Berta is so inherently unreliable that it should not have been left to the jury.  The general rule as to admissibility, now stated in s 7 of the Evidence Act 2006 (though this trial preceded that Act) is that all relevant evidence is admissible.  That essentially restates the common law principle.  There are, both at common law and under the Act, a number of recognised exceptions to the general principle, and in certain contexts, the inherent unreliability of the evidence is a relevant factor in considering the admissibility of evidence.  That is so in the case of the admissibility of hearsay evidence (R v Manase [2001] 2 NZLR 197 (CA) and R v Bain CA 255/95 19 December 1995; s 18(1)(a) Evidence Act 2006);  identification evidence (R v Holtz [2003] 1 NZLR 667 (CA); s 45(1) Evidence Act) and accused’s statements (R v Vaka [2007] NZCA 158; s 28(2) Evidence Act). Apart from such specific situations as those, the assessment of the reliability of evidence is generally a matter within the province of the jury, and the exclusion of evidence on the grounds of its inherent unreliability must be undertaken with due regard to the respective functions of judge and jury. Cases of exclusion of evidence on this ground will necessarily be rare. The evidence of Berta and Mr Rehutai in this case falls far short of that threshold.

[14]     On the second ground, namely whether the verdict is unreasonable and should be set aside under s 385(1)(a), that is to be approached on the basis of the test in Ramage.  We must consider whether, on all the evidence, a jury acting reasonably ought to have had a reasonable doubt.

[15]     As to Mr Rehutai’s evidence, it cannot be said that a jury acting reasonably must have reached the conclusion that Mr Rehutai’s evidence was not reliable.  His account was coherent, and in many important aspects it was consistent with other evidence.  His account of events does not, on its face, suggest that his comprehension of events, or his later recollection of them, was so affected by intoxication as to reach a point that its reliability was so suspect that no reasonable jury could have relied upon it.  Mr Sharko submits in effect that this Court should take the step of removing his evidence from the jury, on the grounds of intoxication, with no independent evidence of the level of intoxication, or any expert assessment of its potential effect on the reliability of his evidence.  To do so would not be in accordance with the basic principle that questions of reliability are for the jury. Whether or not the evidence was reliable was an assessment for the jury to make, not this Court.

[16]     So far as Berta’s evidence is concerned, she acknowledged an uncertainty in respect of some aspects of her evidence.  Mr Sharko submits that her evidence should have been ruled inadmissible in its entirety, because of an inability to distinguish between a dream and reality.  She had referred in her evidence to a delayed reaction.  Some uncertainty of recollection of this traumatic incident is understandable, as is the likelihood that she would go over the critical aspects of it later in her mind.  Her acknowledgement of uncertainty on certain aspects may well have been helpful to the appellant.  The submission that the whole of her evidence should be excluded because she was unable to distinguish reality from imagination must be rejected.  Her account was in many respects broadly consistent with other evidence.  To rule her evidence inadmissible in its entirety because she acknowledged uncertainty of recollection of the moments of trauma would be to usurp the function of the jury to assess the reliability of each part of her evidence.

[17]     The jury was entitled to accept Mr Rehutai’s and Berta’s evidence for the reasons already discussed, particularly as it was broadly consistent with the appellant’s statement, the physical injuries and the other eyewitness accounts as we have described.  Further, we are satisfied that the other evidence available was of itself sufficient, if accepted by the jury, to establish the count in respect of Berta.  The jury obviously considered their verdicts carefully, as they acquitted on the other two charges, an outcome which might well be viewed as fortunate for the appellant.  There was clearly sufficient evidence to justify a conviction, so the contention that the verdict was unreasonable cannot succeed.

[18]     Accordingly, we are satisfied that, applying the Ramage test, and taking proper account of the basic principle that questions of reliability and credibility are for the jury, this is not a case which meets that test.  Nor are the circumstances such that there has been a miscarriage of justice.

Result 

[19]     For these reasons the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington