R v Karaitiana
[2007] NZCA 47
•6 March 2007
ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST
PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA201/06 [2007] NZCA 47
THE QUEEN
v
KILEY GALVIN KARAITIANA
Hearing: 22 February 2007
Court: Chambers, Chisholm and MacKenzie JJ Counsel: G J King and T D Sagaga for Appellant
P K Feltham for Crown
Judgment: 6 March 2007 at 11 am
JUDGMENT OF THE COURT
A The appeal is allowed.
B The conviction is quashed.
CA new trial is directed on the charge on which the appellant was convicted.
DAn order is made that the reasons for judgment are not to be published in the news media or on the Internet or in any publicly accessible
R V KARAITIANA CA CA201/06 6 March 2007
database until completion of the new trial. Publication in a law report or
law digest is, however, permitted.
REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
[1] The appellant was tried in the District Court at Palmerston North before
Judge Garland and a jury on three counts arising out of an incident at Dannevirke on
5 June 2005:
(a) Possession of an offensive weapon;
(b)Causing grievous bodily harm, with intent to cause grievous bodily harm, to Manuel Waihape;
(c) Wounding Nicholas Pene with intent to injure him.
The appellant was acquitted on the first and third counts, and convicted on the second. He was sentenced to seven years’ imprisonment, with a minimum term of three and a half years. He appeals against both conviction and sentence.
[2] The appeal against conviction raises three grounds:
(a)the verdict was unreasonable and cannot be supported having regard to the evidence;
(b) the verdicts were inconsistent and/or compromised;
(c) the Judge misdirected the jury as to, or failed to put to the jury, available defences.
The appeal against sentence is on the grounds that the sentence was manifestly excessive, and that no minimum non-parole period should have been imposed.
The Crown case
[3] On the morning of Sunday, 5 June 2005, the appellant went to the Dannevirke domain to speak to Mr Waihape’s 13 year old son about some property which the appellant believed the son had stolen. The appellant assaulted the son (an action for which he was subsequently convicted). He then took the boy home and told the boy’s mother (the appellant’s aunt) what had happened. Mr Waihape appeared and was advised of what had happened. Mr Waihape and a neighbour, Mr Pene, accompanied the boy and his mother to hospital, but Mr Waihape then asked Mr Pene to drive him to the appellant’s home to speak to the appellant. The appellant was waiting on the front lawn with an axe when Mr Waihape and Mr Pene arrived; Mr Waihape chased the appellant but was unable to catch him; Mr Pene picked up a child’s bicycle, which he used to dodge the axe which the appellant was swinging. The evidence of each of the participants as to the precise details of this incident on or around the front lawn varied, but it is unnecessary to describe the different versions. The appellant then ran round to the back of the house, got into his car, and drove from the address.
[4] The appellant returned in his car a short time later. In the car with him were his mother, his partner and their two sons (a baby and a five year old). He drove his car to the back of the house and entered the house through the back door. Mr Waihape and Mr Pene, who were walking away after seeing that the appellant had left, saw him returning and walked back to the house. They broke the glass- panelled front door and entered the house. Mr Waihape damaged a number of doors inside the house as he walked through searching for the appellant. The appellant ran out of the house as the two men entered, arming himself with a hammer from the laundry. He exited through the back door and then ran around the side of the house to the front of the section. Mr Waihape went out through the back door and proceeded to smash windows in the appellant’s car parked in the back yard.
[5] The Crown’s case was that the appellant heard the windows smash and returned to the back corner of the house. An altercation ensued between Mr Waihape and the appellant, in the course of which Mr Waihape was struck once on the side of the head with the hammer, and fell to the ground unconscious. The appellant then ran around the car and struck Mr Pene in the arm with the hammer. Again, the various accounts differ as to detail, but it is unnecessary to examine those differences.
[6] The initial incident on the front lawn formed the basis of count 1. The later incidents at the rear of the house by the car formed the basis of counts 2 and 3 respectively. Separately, Mr Waihape and Mr Pene have been dealt with on charges in respect of their own actions in the incident.
Discussion
First ground – verdict unreasonable and not supported by the evidence
[7] The appellant submits that, even if the jury had rejected the defence evidence in its entirety, there was sufficient evidence from the complainants alone to give rise to the defence of self-defence.
[8] We can dispose of this ground of appeal shortly. We consider that there was clearly a sufficient evidential foundation for the guilty verdict. The jury may well have considered that self defence was not available because the appellant need not have got involved in the backyard at all. He could quite reasonably have kept out of harm’s way altogether. Alternatively, there was evidence from which the jury could have reasonably concluded that the force used by the appellant was quite unreasonable. A conclusion that the Crown had negatived self-defence was not unreasonable or unsupported by the evidence.
Second ground - inconsistent verdicts
[9] It is submitted by the appellant that the conviction does not sit comfortably with the acquittals on the other two charges, when the defence relating to all counts was in fact the same, namely that the appellant was acting in self-defence.
[10] Again, this can be shortly disposed of. We do not consider that the appellant has demonstrated that the different verdicts cannot be reasonably explained. Each of the three counts related to separate actions of the accused. Count 1, and counts 2 and
3, related to events at different locations about the grounds, several minutes apart in time. Counts 2 and 3 related to separate assaults on Mr Waihape and Mr Pene respectively. The jury was required to assess separately the circumstances with which the accused was faced, and the reasonableness of his response to those circumstances. Different verdicts on each count were clearly possible.
Third ground – failure to put available defences
[11] The appellant submits that the Judge misdirected the jury as to the available defences, and failed adequately to put to the jury available defences, in that:
(a)No direction was given as to defence of another pursuant to s 48 of the Crimes Act 1961; and
(b)No direction was given as to defence of a dwellinghouse pursuant to s 55 of the Act.
[12] Section 48 refers both to self-defence, and to defence of another. The appellant submits that the circumstances of the incident with Mr Waihape were such that, in addition to self-defence, defence of the appellant’s five year old son should have been put to the jury. The appellant’s evidence was that at the time when he heard the smashing of car windows he initially thought that his son was still in the car and he went that way. He said that he was trying to see if he could see his son in there, but, while he was looking into the car, Mr Waihape approached him and swung at him and he struck out with the hammer. He referred on several occasions
in the course of his evidence in chief to the fact that he thought that his son was in the car, that he was trying to see whether that was so, and that he was trying to protect his family.
[13] As this Court held in R v Tavete [1988] 1 NZLR 428, self-defence should be put to the jury when, from the evidence led by the Crown or given by or on behalf of the accused, or from a combination of both, there is a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence. That principle clearly extends to defence of another and defence of a dwellinghouse. Where a defence which should, in accordance with this principle, be put is not adequately identified by the Judge, the conviction will generally be set aside (R v A, B, C, D, CA301/05, CA295/05, CA310/05, CA288/05, 11 April 2006).
[14] In summing up, the Judge touched on the issue of defence of the son in these ways:
(a) In describing the Crown submissions, the Judge said:
As to the suggestion of self-defence, Mr Murray submitted the Accused was not acting in defence of himself, or of his son at all. What he was doing, Mr Murray submitted, was acting in retribution or in retaliation for the damage that W had caused to his car. And what he did was he attacked W from behind and he hit him on the head with a hammer.
(b)In describing the defence case, the Judge said that counsel for the defence “put the defence case squarely as one of self-defence”. He then said:
Mr Philip then submits that he only goes to the back yard where the two aggressive men are, when he fears for the safety of his five-year- old son who he believes is still in the car at the time when he hears the car windows being smashed. Obviously that is a matter for you to assess. Did he really believe that his five-year-old son was still in the car?
Mr Philip submitted, when he gets to the car, he’s looking for his son, W swings an axe at him and he then swings wildly at W with a hammer, not with the intention, Mr Philip submits, of injuring W, but only with the intention of defending himself from what he perceived as a life-threatening situation.
[15] But the Judge gave no specific directions as to the elements of defence of another. This is to be contrasted with the detailed instructions he gave on self defence. It is true that defence counsel at trial (not the appellant’s current counsel) did not object to the form of the summing up. That failure to object is not, however, fatal to success on an appeal, as it is the Judge’s responsibility to ensure that any possible defence for which there is a plausible narrative is put to the jury for its consideration.
[16] In our view, the circumstances were such that both self-defence and defence of the son needed to be separately considered by the jury. Ms Feltham submits that, at the time when the blow was struck, the only operative threatening situation was Mr Waihape’s swinging at the appellant. She submits that, if accepted, the appellant’s evidence would provide an explanation for his returning to the back yard, but could not possibly be capable of providing a reason for striking Mr Waihape with the hammer. However, we think that that is to take too narrow a view of the circumstances.
[17] The appellant’s evidence was that he had gone to the back yard because of concerns for his son whom he believed to be in the car, the windows of which were being smashed by Mr Waihape. The jury might well have considered relevant, in assessing the reasonableness of the appellant’s actions and of the force used, the reason why the appellant was in the threatening situation in which he found himself. If concern for his own safety were the only issue, then the possibility that he might have avoided placing himself in that situation by not returning to the back yard might have been viewed by the jury as relevant. However, if the jury accepted that he was motivated to return to the back yard by concern for the safety of his son, a quite different view might well have been taken of the appellant’s actions, both in placing himself in a position of danger from Mr Waihape and in responding to that danger.
[18] Ms Feltham further submits that other evidence indicated that the son was not in fact in the car at the time, and that there was no existing threat to the son. However, under s 48 the relevant inquiry is as to the circumstances as the appellant believed them to be, not as to the actual circumstances.
[19] We do not consider that the direction given was sufficient to direct the jury’s attention to the different considerations relevant to defence of another, as distinct from self-defence. We are satisfied that the appellant’s evidence was such as to create a plausible narrative which, if accepted, would have required the Crown to exclude the possibility that the accused was acting in defence of his son.
[20] So far as the question of defence of a dwellinghouse is concerned, the appellant did, in his statement to police, refer to this in these terms:
QIf I put it to you this way that people said that you hit W, what’s your explanation for hitting him
AWell they’re breaking into my house, I’m trying to protect myself and my family and my house, so therefore, well what am I suppose to do
[21] While bearing that in mind, we are of the view that the evidence was not such as to require from the Judge a specific direction on defence of a dwellinghouse . By the time of the incident, Mr Waihape and Mr Pene had left the dwellinghouse . The possibility that they might have sought to return could not be excluded. However, the circumstances at the time the appellant struck the blow on Mr Waihape did not suggest that that was an imminent possibility. We are of the view that, were the jury to reject the defences of self-defence and defence of the son, then separate consideration of defence of a dwellinghouse would not have been required.
Result
[22] For the foregoing reasons, we are satisfied that the appeal against conviction must be allowed in relation to the defence of another issue. The conviction is accordingly set aside and a new trial ordered.
[23] That makes it unnecessary to consider the appeal against sentence.
Solicitors:
Crown Law Office, Wellington
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