R v Lindroos

[2006] NZCA 197

IN THE COURT OF APPEAL OF NEW ZEALAND

CA463/05

THE QUEEN

v

JAMES WALLACE LINDROOS

Hearing:24 July 2006

Court:Robertson, Goddard and Gendall JJ

Counsel:Appellant in person

B J Horsley for Crown

Judgment:2 August 2006 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

REASONS OF THE COURT

(Given by Goddard J)

[1]        The appellant was convicted by a jury of wounding with intent to cause grievous bodily harm.  The single ground of appeal is that the Judge M E Sharp erred in directing the jury on the test for self-defence.

Background facts

[2]        At the time of the incident the appellant, who is a carpenter, was staying in a two roomed sleep-out at a property on Waiheke Island.  The complainant, who he had known for about 10 years, “on and off”, came to Waiheke Island to do contract earthmoving work.  The appellant agreed to provide him with temporary accommodation at the sleep-out.  As it transpired the complainant stayed at the sleep-out for a month or so.

[3]        On the evening in question the appellant, who had been drinking and playing pool at a local hotel during the evening and was intoxicated to some extent, came home to find that the complainant was entertaining his nephew and the nephew’s girlfriend in the sleep-out.  The landlady, who was sitting in a car in the driveway talking to a friend, complained to the appellant about the presence of the guests in the sleep-out.  The appellant was angry and confronted the complainant and his guests about the presence of the latter, upon which he said the complainant became enraged and assaulted him, inflicting a number of blows to the appellant’s head and shouting at him louder and louder.

[4]        When spoken to by the police later that day, the appellant said he seemed unable to reason with the complainant and every time he asked the complainant to stop that “just seemed to give him license to go harder, harder”.  He said that he “ended up with a knife in my hand, he got cut”.  The appellant was however unable to be certain where he had got the knife from. 

[5]        At trial the evidence of the complainant and his nephew and the girlfriend was that they were sitting in the kitchen of the sleep-out when the appellant arrived home and told the nephew and his girlfriend they had to leave.  The complainant said he got annoyed at this and approached the appellant and the two of them then went into the other room of the sleep-out.  The complainant said he closed the door of that room and then lost his temper with the appellant and hit him with a closed fist in the face.  He only conceded having hit the appellant twice in the face, although the appellant’s version to the police was that the complainant hit him a number of times about the head causing him to fall to the floor.  The complainant said he then helped the appellant up and they both went back to the other room where the appellant apologised to the nephew and his girlfriend.

[6]        Both the complainant and his nephew’s girlfriend said the appellant then went back into the other room and when he came out again he came where the complainant was standing talking to the girlfriend.  At this time the nephew was outside looking for car keys so that they could go home.  Because of the manner in which the appellant approached the complainant, the complainant said he asked the appellant whether he had anything behind his back.  At that point the appellant struck out at him with a knife, inflicting a severe laceration to the appellant’s left under arm and then struck further blows to the appellant’s chest and then to his back as he was turning to run out of the building.  These events were confirmed by the nephew’s girlfriend who was a close eyewitness.

[7]        The appellant did not give evidence at trial so that his version of events was as given in his police interview that same evening.  In that he admitted having stabbed the complainant with a knife which he had held and opened behind his back.  He was equivocal about where he had obtained the knife from and whether he had gone into the other room to get it or had found it more proximately.  He was unsure what he had said to the complainant when he produced the knife and “cut” him, but said that he did it because he did not want to get hurt again and because he thought the complainant would come at him a second time if he did not take steps to prevent this.  He said that at the time he was having flashbacks to a previous beating he had received from an unrelated third party some years previously and which had caused him to be hospitalised.

[8]        Apart from the appellant’s asserted perception that he was at risk of a further assault by the complainant, there was no evidence that the complainant was either making or threatening to make a further move towards him at the time he produced the knife from behind his back and inflicted the wounds.

[9]        The interval between the initial assault on the appellant by the complainant in the bedroom and his subsequent wounding of the complainant was estimated by the complainant to be “a good 10 minutes”.  He said it was not as if the appellant had gone straight into the other room and come straight out again.  He said that after that initial assault in the bedroom had finished he and his nephew had spent about ten minutes looking around for the car keys.  The nephew’s girlfriend estimated the time lapse between the two incidents as greater, about 15 or 20 minutes.  The appellant’s landlady, who had remained outside in the car talking to her friend throughout, estimated the time lapse from when she first spoke with the appellant on his return home and when she subsequently saw both the complainant and appellant run out of the sleep-out as “something like 5 or 8 minutes”. 

[10]     On those various estimates the time lapse was somewhere between five and twenty minutes.

The summing up

[11]     There was no dispute that the appellant wounded the complainant with the knife intending to cause him grievous bodily harm. The sole issue for the jury was whether the appellant had acted in self-defence.  Before directing the jury on the elements of self-defence, Judge Sharp emphasised that the onus was on the Crown to prove beyond reasonable doubt that at the time of the wounding the appellant was not acting in self-defence and that it was not for him to prove that he was acting in self-defence.

[12]     Judge Sharp then outlined the defence of self-defence in the following way, commencing with a statement that there were three matters for the jury to decide.  The first two of these she articulated as:

1.        Was the force used by the accused in defence of himself or another.

2.What were the circumstances as the accused believed them to be.  It is necessary to consider what the accused thought or what he believed about those circumstances.

[13]     Expanding at that point on the circumstances as the appellant said he believed them to be and as the others present had described them, the Judge directed the jury as follows:

In this respect you have been referred to the video interview of the accused with the police officer wherein he indicated that he was flashing back to a previous beating that had seen him hospitalised and where he said (and it is not contested at all) that the complainant had assaulted him just a little earlier and where he also said that when he wounded the complainant, he did so because the complainant was coming at him again.  Those are my words not his.  He was moving towards him again.

I would also however, of course, to balance this refer you to the evidence of the complainant himself and to the evidence of [the nephew’s girlfriend] where it appears (if you accept their evidence) that there was a break.  It is up to you to decide how long that break was but a pause, if you like, between the assault by [the complainant] on the accused and the accused wounding with the knife of [the complainant].  The accused does not speak in terms of that break of time and the Crown relies on that break of time as saying, this was by no means an act of self defence on the part of the accused because there was this break of time.  He came out of his room after a reasonably substantial length of time and in an act of aggression rather than a defensive mood, he then attacked the complainant.  The accused says otherwise on videotape of course.  He does not seem to recall there being much or anything of a break between the assault and his own acts with the knife to wound the complainant and on videotape he said that he saw the complainant’s arm moving towards him again and he struck with the knife.  So you will have to balance all of those things up and determine whether or what the circumstances were as the accused believed them to be.

[14]     The Judge then turned to discuss the third element of self-defence, the reasonableness of the force used:

The third matter to decide is was the force used reasonable in those circumstances as the accused believed them to be.  You must consider the accused’s used of the knife and whether the degree of force that he used was reasonable.  This is not a matter to be weighed finely but rather in a common-sense manner conscious of the stresses on an accused at the time.

[15]     The Judge then returned to a discussion of all three elements of the defence:

Just to go over all those three points again, the first point that you must decide is, was the force used by the accused in defence of himself or another?  The second, what were the circumstances as the accused believed them to be?  Third, was the force used unreasonable in those circumstances as the accused believed them to be.  So, if for example you were to find that the force that was used by the accused was in defence of himself and if you were to find that the circumstances as the accused believed them to be were such that he genuinely considered himself to be at risk, if you then just for example went on and determined that the force that he used in those circumstances was not reasonable, then the Crown would have managed to negative the defence of self defence.  If, on the other hand, you find all of those three maters in favour of the accused then the Crown would not have managed to negative self defence.

[16]     The Judge then traversed the features of the case for both the Crown and the defence.  In the course of her very detailed traverse of the defence case she highlighted the following:

The circumstances are as the accused believed them to be.  The defence says, well we know that there was an earlier serious attack on Mr Lindroos for which he was hospitalised and he has flashbacks to this he says during the video interview.  We know that he was given a beating by [the complainant] on the night and that he says “I didn’t want him to do it again”.  He says [the complainant] is reaching for him so that is what is going on in his mind.  Those are the circumstances as he believes them to be.  He says that he picked up the knife as a safeguard.

The defence says, was Mr Lindroos acting in self defence?  Why did he act in this way?  Why was [the complainant] stabbed, and you were referred to Mr Lindroos’ video interview where he says, “I didn’t want to get hit again.  When he came at me again that’s when I stabbed him”.

The issues on appeal

[17]     Section 48 of the Crimes Act 1961 provides that:

Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

[18]     On appeal Mr Lindroos submitted that Judge Sharp had erred in not directing the jury strictly in accordance with the preferred formula in R v Li & Ors CA140/00 CA141/00 28 June 2000.  In Li this Court suggested at [22] that the preferable approach in directing on self-defence is as follows:

… the jury is asked to consider first what the accused believed the circumstances to be, from his or her point of view.  The second question is whether, bearing in mind that belief of the accused about what was happening, he or she was acting in self-defence (again, considered from his or her point of view).  The last question is whether, given that belief, the force used in self-defence was actually reasonable.

[19]     Mr Lindroos pointed out that in Li and in similar cases the courts have emphasised that it is the second of the three questions posed in s 48 of the Crimes Act 1961 (assessment of the circumstances as the accused subjectively believed them to be) that provides the departure point for the other two questions, and hence that the second question relating to an accused’s subjective belief should generally be the first question the jury is asked to determine.  On this issue he also cited and relied upon the authorities of R v Reyland CA439/03 13 July 2004 and R v Sarich CA407/04 16 May 2005.  All of these decisions approved the format suggested by Tipping J in Shortland v Police HC INV AP74/95 23 April 1996 and subsequently approved in both R v Hackell CA131/02 10 October 2002 and R v Bridger [2003] 1 NZLR 636 (CA).

[20]     Mr Lindroos also noted the passage in Bridger in which it was emphasised that it will often be necessary to assess whether an accused was acting defensively in the perceived circumstances by assessing amongst other things what the accused did in response to those circumstances. 

[21]     Mr Lindroos’ central submission was that by starting with the threshold question of whether “the accused was acting in the defence of himself or another”, before posing as a second question what the circumstances were as the accused believed them to be, there may have been a risk that the jury had wrongly regarded the threshold question as involving an objective enquiry into the reasonableness of the force used rather than an assessment of his subjective intention to act defensively in the circumstances as he subjectively perceived them to be.

[22]     Mr Lindroos further submitted that although he had intentionally struck at the complainant’s arm with the knife, he had not intentionally wounded him in the chest area.

[23]     As a further submission, Mr Lindroos said that he had been acting pre-emptively at the time he wounded the complainant, to prevent what he believed was a further imminent attack on him asserting that the situation was one totally dominated by the complainant and hence had given rise to the perceived need to defend himself in the manner he had adopted.

Applicable legal principles

[24]     Mr Lindroos is correct in his submission that the preferred approach to a direction on self-defence is as stated in Li and approved in the further authorities cited by him.  However, there is no compulsion on a trial Judge to explain the separate elements of s 48 of the Crimes Act 1961 to a jury in that order and the observations in Li are merely for guidance.  As subsequently observed by this Court in Reyland the formulation in Li is “preferable” rather than compulsory.  What is important is that the jury should be clearly given to understand that the onus is on the Crown to prove beyond reasonable doubt that an accused was not acting in self-defence, regardless of the order in which the separate elements of s 48 are explained.  As this Court noted in R v Howard (2003) 20 CRNZ 319 at [23]:

Section 48 is a simple comprehensive provision.  Judges should be wary of giving it unnecessary embellishment.  They should in general read the terms of s 48, direct the jury to the three questions repeated above [being the same three questions outlined earlier in this judgment] and make any necessary linkages to the evidence.

[25]     Therefore, whatever formulation is followed by a trial Judge in directing a jury on the special defence of self-defence, the fundamental necessity is to draw to the jury’s attention the need to assess both the self-defence limb and the reasonable force limb of s 48 in light of the circumstances as the accused perceived them.  This was re-emphasised in Sarich at [37]:

The essential aspect is that both the subjective and the objective elements of the test are to be assessed in light of the circumstances as the accused saw them.  As stated in Reyland, whatever formulation a trial Judge uses in his or her summing up, the necessity is “to draw to the jury’s attention the need to assess both the self-defence limb and the reasonable force limb of s 48 in the light of the circumstances as the accused saw them”.

Discussion

[26]     On reading Judge Sharp’s summing up in its totality, it is clear that the jury can have been in no doubt as to the importance of assessing whether the appellant was acting in self-defence and whether the force he used was reasonable in light of the circumstances as the appellant said he perceived them to be.  Nor can there be any doubt from the summing up that the jury would have fully understood that the burden of negating self-defence was on the prosecution throughout.  The summing up is both careful and detailed in its treatment of the case for the defence and included specific reference to what the appellant did by way of response as an important factor in assessing whether he was acting defensively:  this is in accordance with the advice in Bridger.

[27]     The sole issue of self-defence was squarely before the jury and it was for them to weigh the appellant’s statement of the circumstances as he believed them to be (as portrayed in his video interview) against all of the other evidence at the trial, including the eyewitness evidence.  There were clearly live issues as to the timing of the appellant’s response to the perceived circumstances and the reasonableness of the force that he used by way of response.  The time lapse involved (whether five or twenty minutes), the immediate presence of third parties and the ability of the appellant to have removed himself from any further risk of perceived harm were all factors that the jury had to weigh.

[28]     We find no fault with the directions on self-defence as given by the trial Judge and are satisfied that the jury could have been under no misapprehension as to the correct application of self-defence to the facts of the appellant’s case.

Conclusion

[29]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington