R v O'Hagan
[2008] NZCA 498
•27 November 2008
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA604/2008
[2008] NZCA 498THE QUEEN
v
GRANT O'HAGAN
Hearing:13 November 2008
Court:Glazebrook, Wild and Simon France JJ
Counsel:J Scott for Appellant
A J F Perkins for Crown
Judgment:27 November 2008 at 3.00 pm
JUDGMENT OF THE COURT
The conviction appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)Introduction
[1] Mr O’Hagan was convicted following a jury trial of wounding his mother’s partner, Brett Ali, by striking him on the head with a baseball bat. The charge arose from a fight between the two at the home where they lived in April 2007.
[2] The focus of the defence was that the victim, Brett Ali, was the aggressor, and that Mr O’Hagan had not hit Mr Ali with the bat. It was, however, accepted that Mr O’Hagan had introduced the bat into the fracas. During and subsequent to trial three matters of what can loosely be called “non‑disclosure” have arisen and are the basis of the appeal.
[3] First, it is said the prosecution failed to disclose to defence counsel Mr O’Hagan’s previous convictions. A list was provided but it was not updated to include a recent conviction entered nearer to trial. Unaware of this because Mr O’Hagan had not told his counsel of it, defence counsel opened on Mr O’Hagan’s good character, a proposition that was undermined at trial by the disclosure of the recent conviction for obscene exposure in public.
[4] Second, prior to trial, defence counsel had asked for details of any convictions Mr Ali had from his time in Australia. A request was made of Australian authorities, but no answer had been obtained by trial. Subsequent to trial the information is now available and it is said that it would have helped the defence with its claim that Mr Ali was the aggressor.
[5] Third, Mr O’Hagan had accounted for Mr Ali’s head wound by saying that a cog from an automatic transmission Mr Ali was brandishing had separated and perhaps hit Mr Ali in the head (the fracas occurred in the garage part of the residence). During trial it became apparent that defence counsel had not been provided with an ESR report on the cog, which showed a spot of Mr Ali’s blood on one of the teeth. It is submitted this information would have greatly enhanced the defence explanation of Mr Ali’s injury.
[6] Each matter is addressed in turn. However, because the Crown submission is that none of these items would have made any difference within the trial context, it is necessary first to outline the evidence in some detail.
The evidence
[7] The evening’s events arose after Mr O’Hagan had returned home following a night’s drinking. It seems he had an altercation with a female member of the group who had returned to Mr O’Hagan’s house. This altercation resulted in Mr Ali and his then partner, Mr O’Hagan’s mother, being disturbed. Both said they heard the woman accuse Mr O’Hagan of slapping her. Mrs O’Hagan left the bedroom first and went downstairs. Mr Ali followed.
[8] It is common ground that what followed can be divided into two sections. The first stanza involved a scuffle between the two men where Mr Ali, a bigger man, had much the better of it. He accepts he started things by slapping Mr O’Hagan. It is also undisputed that the fight involved Mr Ali getting on top of Mr O’Hagan, and punching him several times causing bruising and damage to the face. How long it lasted, who did what and what words accompanied the blows are in dispute, but the general theme of violence and Mr Ali obtaining ascendancy are not.
[9] The three witnesses who described these events are Mr Ali, Mrs O’Hagan, and the accused, Mr O’Hagan. There is little doubt Mrs O’Hagan went down the stairs first. A naked Mr Ali managed to get past her, and then at the bottom of the stairs, which is also the entrance to the garage, he struck the first blow. The matter spilled into the garage. There are suggestions, denied by him, of Mr O’Hagan at this stage trying to use a heavy toolbox as a weapon. It appears that at one point Mr Ali wielded the transmission, but he says he did so only to reinforce his point and then cast it aside.
[10] This incident ended. Mr O’Hagan went upstairs to his bedroom. Mr Ali was sent by Mrs O’Hagan to have a shower because he had blood on him as well as Janola from a plastic bottle that had been broken in the fight.
[11] The second stanza has Mr Ali and Mrs O’Hagan again in the garage, and Mr O’Hagan initially upstairs. The whereabouts of the fourth member of the household, Mr Andrew O’Hagan, who is the appellant’s brother, depends on which version of the evidence one accepts. Called by the prosecution, he gave evidence broadly comparable to, and supportive of, his brother. The jury verdict indicates it was not accepted.
[12] It is beyond dispute that Mr O’Hagan, having gone up to his bedroom, came back down with a baseball bat. He says he was concerned for his brother’s welfare, and realised if anything more was to occur he needed assistance – hence the bat. The Crown disputed that the brother’s welfare was Mr O’Hagan’s motive for arming himself.
[13] The Crown’s evidence, sourced in Mr Ali and Mrs O’Hagan, must have been accepted by the jury. Their evidence is that they were focussed on cleaning up the garage. Mr Ali was bent over, he spied Mr O’Hagan out the corner of his eye and straightened. As he did, Mr O’Hagan hit him in the front of the head with the bat causing the wound on which the charge is based. Following the initial blow, there were others to the body, which caused bruises. Mr Ali, subsequent to these blows, picked up the transmission and flicked it at Mr O’Hagan. It did not hit Mr O’Hagan or himself. There was then a scuffle for the bat. Ultimately Mr Ali again overpowered Mr O’Hagan and was holding him down when the Police arrived.
[14] Mr O’Hagan’s version is that before returning to the garage he had rung the Police, giving only the address. He said when he hung up he heard a commotion (the basis for his belief his brother was at risk) and went into the garage. Mr Ali already had hold of the transmission. Mr Ali is said to have seen the bat hanging by Mr O’Hagan’s side and said:
“C’mon you little ─, do you want to have another go.”
[15] At that point Mr Ali swung the transmission, the cog separated, flew up and came back down, hitting Mr Ali in the head. In response Mr O’Hagan lifted his bat, and may have tried a swing but Mr Ali prevented it. They scuffled for the bat, and ultimately Mr Ali again gained ascendancy. He was holding Mr O’Hagan down at the point the Police arrived.
[16] Two other items of evidence require mention. First, the Police Officer confirmed that when he arrived there was a large amount of blood coming from the top of Mr Ali’s head. Second, Mr Andrew O’Hagan, whilst largely corroborating his brother, did not offer support to the idea of a threat to him by Mr Ali, or a commotion, prior to Mr O’Hagan coming down with the bat.
Ground one - Mr O’Hagan’s previous convictions
[17] Mr Ali was challenged as being the aggressor. He was asked about his previous convictions, and during cross‑examination it was put to him he had previously assaulted the brother, Mr Andrew O’Hagan. There was a degree of tit‑for‑tat in all this. As noted, the evidence of Mr Ali and Mrs O’Hagan was that the event initiating it all was Mr O’Hagan slapping the female visitor. In talking about this, Mr Ali also volunteered that Mr O’Hagan had previously hit his mother.
[18] The background context, therefore, was cross‑allegations of violence. It was a defence plank that Mr Ali was the stronger man, a violent man, and the aggressor. Another plank was that Mr O’Hagan, by contrast, was of sound character. His mother in evidence had volunteered that the blow with the baseball bat was “very uncharacteristic” of her son.
[19] We have not seen counsel’s opening, but Ms Scott who acted for Mr O’Hagan at trial and on the appeal says she opened on his good character. Pursuant to this, towards the end of his evidence in chief she inquired if Mr O’Hagan had previously been in trouble with the law. Mr O’Hagan responded by admitting a breach of an alcohol ban in 1997, and a drunk and disorderly conviction in 2001. This was explained as involving pulling a Give Way sign out of the ground when drunk.
[20] It appears that these two convictions were the two that were on the conviction sheet that the Police had provided Ms Scott upon her request. It turns out, however, it was incomplete. On 2 April 2008, four months before trial, Mr O’Hagan had pleaded guilty to a charge of “obscenely exposing himself in public”. We were advised that the prosecutor learned of this only during the evidence in chief of Mr O’Hagan, when the officer in charge, upon hearing Mr O’Hagan’s evidence, told him.
[21] Mr Dean, the prosecutor, raised the matter in cross‑examination of Mr O’Hagan, not having sought the leave of the Court. Mr Dean first suggested to Mr O’Hagan that he had not told the Court the full extent of his troubles with the law. Mr O’Hagan said “have I not” and then on repetition of the question “don’t know”. When prompted a third time, he disclosed a breach of bail.
[22] The evidence then continued in this way:
Q.Didn’t you appear in this very Court as recently as the 2nd of April 2008?
A.(no audible response 16.02.47).
Q.Did you? Did you appear in this Court perhaps I should show this to – pass this to Your Honour if I may. Again Mr O’Hagan you’re not telling this Court the full story are you?
A.Would you like to clari – clarify us of that sir?
Q.Did you not appear in this Court on the 2nd of April 2008 on a charge of obscenely exposing a person in public?
A.Yes sir but I didn’t want to mention that cos obviously its embarrassing.
Q.Right.
A.The situation with that was I was –
Q.I’m not asking you to tell us the details about it, what I’m interested in is why when you told us about your trouble with the law you didn’t see fit to mention it at all, you kept that back?
A.This is a very recent thing that has happened way after this – this incident that we’re here for.
Q.The offending on that occasion took place on the 27th of January this year didn’t it?
A.I’m not sure sir. This is when I was at the beach getting changed to go for a swim.
Q.You don’t need to tell us the details.
THE COURT:
You can re‑examine Ms Scott. Its after the events the jury are concerned in any event as he has correctly stated.
RE-EXAMINATION: MS SCOTT
Q.Mr O’Hagan would you like the opportunity to tell the jury about that offence that you didn’t mention earlier?
A.Um, I had been at Bucklands Beach in Howick and I had been getting changed in my car to go for a swim, um, and an off duty police officer, her daughter and another woman, had been at the waterline at the beach and I had been sitting at the beach for a little while. I’d had some Wendys and stuff and I had had, um, taken off my – my jeans and was about to put on my shorts to go for a swim. I was wearing boxers. They’re a small type of boxers and I actually had my t-shirt over my lap and, um, I was waiting for these women to go past before I went to go and put my – my shorts on and, um, these – these women went past and then one of them came back to my passenger’s window and said, they’d gone past, so I lifted off my shirt, put on my – get me – lift – get my shorts from the passenger side of the car and put them on to go for a swim, and this woman came back to my passenger’s window and said, “You’re under arrest for indecent exposure”. And when – then she came onto my driver’s side and took the keys out of my car and I wasn’t – I didn’t have much of a choice. I got arrested. And charged. And I – I just felt too embarrassed to even try and bring it to this – as far as this, to try and defend it.
Q. Thank you Mr O’Hagan.
[23] Ms Scott argues that the Police were obliged to tell her of the latest conviction. She should have been given an updated list. Had she known of this particular conviction she would never have opened on good character, thereby exposing her client to this conviction emerging. Further, the nature of the charge should not have been disclosed. Ms Scott argues that it is highly prejudicial, and devastating to her client’s credibility. Had leave been sought, as it should have been, Ms Scott would have argued to prevent its disclosure.
[24] We do not agree. The claim of non‑disclosure cannot be maintained because Mr O’Hagan, to whom the duty is owed, knew of the conviction. The fact that he had not told his counsel was a choice he made. As Mr Perkins noted, it was a choice he maintained throughout whatever pre‑trial discussions he had with counsel when tactics were discussed, again when Ms Scott expressly opened on it, and again when Ms Scott invited him in evidence to detail his convictions.
[25] It is also apparent from his answers to Mr Dean that Mr O’Hagan’s failure to disclose the conviction to the jury was a conscious choice he made. He said he was embarrassed. Whilst that is understandable, it was nevertheless a conscious choice on his part, as must have been the decision to not give his counsel the opportunity to discuss it or advise him.
[26] However, a different error does arguably arise. The prosecution is not permitted to lead either veracity or propensity evidence about an accused without the Court’s permission. This is so even if the defence has attacked the veracity of prosecution witnesses, or led propensity evidence about them (ss 38(2)(a) and 41(2) of the Evidence Act 2006 respectively). At the hearing of this matter, the Court and counsel were agreed that the Crown had, therefore, led inadmissible evidence when it asked Mr O’Hagan about this conviction without first obtaining leave.
[27] The consequent issue that arises, however, is what would have happened had leave been sought. Two questions emerge – would the Crown have been permitted to offer evidence through cross‑examination of a further conviction, and, if so, what detail would have been disclosed about the conviction.
[28] The answer to the first question must be yes. The defendant was claiming good character, and inaccurately putting in only part of his criminal record. It will almost always be the case that the prosecution will be permitted to expose this. It is the lack of full disclosure to the Court by the accused that assumes much greater importance than the actual fact of another conviction. Such lack of candour clearly goes to the accused’s veracity as a witness.
[29] The answer to the second question, namely how much detail, is less obvious. In the extract already cited from the evidence, it can be seen that the prosecutor sought to suppress the detail but this occurred only after the name of the charge had already been revealed. There is inevitably a taint of moral turpitude in such a charge. The type of conviction was irrelevant to the trial issues, and so its nature need not have been revealed. On the other hand, to leave a gap is to risk it being filled by speculation that the charge was something far more relevant and telling. Many judges and indeed defence counsel, faced with the situation that arose, may well have opted for revelation and then to deal with it in closing.
[30] We summarise this discussion by noting that if leave was required, the failure of the Crown to obtain it meant it offered inadmissible evidence. Had it sought permission to challenge the accused, leave would inevitably have been given. It is, however, less certain that the name of the charge would have been allowed to be revealed, although we incline to the view that at least as many judges would have said yes as would decline. Finally, we recognise that inevitably this sort of conviction contains moral taint, but we doubt the prejudice involved would have been as decisive or significant as the appellant contends. The charge is so unrelated to the trial issues, that any illegitimate prejudice would have been minor compared with the legitimate prejudice stemming from exposure of Mr O’Hagan’s lack of candour on the stand.
[31] The preceding analysis leads us to the view that if inadmissible evidence was led, it was not in the circumstances of this case a matter of significance although we will consider it again as part of our analysis of cumulative effect. Because we take this view it is not necessary to further analyse the situation, but we do note that on reflection we consider it is arguable that leave was in fact required.
[32] What the Crown wished to do was expose that Mr O’Hagan was lying in his evidence. As it happens he was lying about his previous convictions, but the analysis is the same regardless of the topic of the lie. The fact of a further conviction was being led to expose an inaccuracy of testimony, and it is doubtful it is properly classed as veracity evidence. It is not evidence attacking his disposition generally to be truthful; it is focussed on rebutting an in‑court statement about a specific issue arising for the first time in evidence. If leave is indeed required to lead such rebuttal, the scope of the veracity rules would be very broad.
[33] That said, we agree with Mr Perkins’ statement that it is always sensible for the Crown to seek leave before leading evidence of prior convictions of an accused. The Act has no specific provision preventing their introduction. However, even if the context is not such as to engage the leave requirements of the propensity and veracity rules, previous convictions carry a risk of illegitimate prejudice that make it preferable for there to be a prior assessment rather than an after the event evaluation with the ultimate cost being possibly a retrial.
[34] Finally, we return to Ms Scott’s complaint, which was that she would not have opened on good character had she known of this conviction. In terms of impact on the defence case, it is proper to note that in fact no evidence of good character was led. No character witnesses were called, and all Mr O’Hagan said was that he had two previous convictions, albeit minor. It was, therefore, an aspect of the case that always lacked strength.
Second ground – non‑disclosure of Mr Ali’s Australian convictions
[35] At depositions Mr Ali mentioned he had an Australian conviction. Ms Scott only came to the file shortly before trial. When she read this, she sought disclosure. The Police inquired, but did not get a response in time.
[36] Subsequently the convictions have been obtained. It is clear the process of obtaining them is less straightforward than an internal New Zealand inquiry. It involves formal requests and, in this case, requests to different states of Australia. The elapsed time since trial is less than the time between Ms Scott’s pre‑trial request, and the trial starting. However, that may reflect many different factors and we do not consider there was prosecution neglect in not obtaining this information pre‑trial.
[37] As for the convictions themselves, they relate to conduct between 1982‑1985 (NSW) and 1986‑1991 (Queensland). In New South Wales there are driving offences, one of stealing (punished by admonishment) and two of giving a false name. In Queensland, there are further driving offences, another false name conviction, and three assaults, each described as occasioning bodily harm. The penalties were $300, $400 and $450 respectively, the dates being 1986, 1987 and 1991.
[38] Ms Scott submits that if she knew the nature of the convictions she would have had better opportunity to pursue the defence theory of Mr Ali as the aggressor and as a violent person. Also there are convictions that go to truthfulness that would have assisted.
[39] However, it is important to consider what was before the jury:
(a)Mr Ali accepted he initiated the first incident by slapping Mr O’Hagan;
(b)he also accepted that he got the better of him in the first incident and would have delivered several punches. The jury had photos of the injuries and bruising suffered by Mr O’Hagan;
(c)Mr Ali acknowledged he was “no stranger to violence having been a doorman in my time. Done security for a lot of people”;
(d)he acknowledged convictions for assaulting a Police Officer, disorderly behaviour causing violence, two breaches of non‑molestation orders, and offensive or disturbing use of a telephone. As regards each conviction he gave an explanation that portrayed himself as the victim, which itself could have been as harmful to his credibility as helpful.
[40] Although at trial the whole context of the fight and who did what to whom was inevitably the subject of considerable focus, the charge was very narrow in its compass. Mr O’Hagan accepts that he brought the baseball bat down to the garage prior to the second stanza of the confrontation. The question was, did he hold it by his side, as he said, or did he immediately hit Mr Ali in the head with it as Mr Ali and Mr O’Hagan’s mother said?
[41] Seen against that background and in light of what was already before the jury, we do not consider the availability of Mr Ali’s Australian convictions would have significantly added to the defence case. They do not carry the potential to have affected the outcome or even the trial dynamic, and in reality represent only a bit more of what was already there.
Third ground – non disclosure of ESR result
[42] The starting point is that it is accepted that the Police had the result of the ESR analysis of the cog, and failed to disclose it. It is not suggested this was other than due to an oversight, arising from the transferring of stewardship of the file from one group to another. It is a case, therefore, of an inadvertent breach of disclosure obligations, which raises the sole issue of whether a miscarriage has resulted from the defence not having the information.
[43] It is to be noted that the omission was discovered during trial whilst the officer in charge was being cross‑examined. An adjournment occurred and the Officer went and obtained the file. As a consequence an agreed statement was put before the jury:
It is admitted that traces of blood from Brett Ali were found on a metal differ‑ratio gear that was analysed by the Institute of Environmental Science and Research Limited.
[44] The trial context, which Ms Scott emphasises, is that Mr Ali undoubtedly had a wound to his head that was accounted for by the testimony that Mr O’Hagan had hit him in the head with the bat. A defence explanation was needed. Mr O’Hagan had constantly referred to Mr Ali having hold of the automatic transmission above his head, and a piece of that transmission – the cog – coming loose. It is this cog that has Mr Ali’s blood on it.
[45] In his original statement Mr O’Hagan was asked to account for Mr Ali’s head injury, and referred to the “diff” being held above his head. At trial, he expanded on this to state that:
Brent went to swing the diff and it separated, smacked him in the head and there was a noise a thud, something hit the ground um, I hadn’t quite realised what happened at the time.
[46] Recalling that the jury were told that there were “traces of blood” on the cog, the issue that arises is whether there is any real possibility that the defence could have done better had the ESR result been disclosed earlier, when it should have been.
[47] The appeal is being heard a little over a month after being filed, and so little has advanced from trial. It seems there is no formal ESR report, but an affidavit filed indicates it was a spot of blood on one of the teeth of the cog.
[48] Having reflected on the matter, we consider that Mr Perkins is correct in his submission that the defence was ultimately as well off as it could be. “Traces of blood” is arguably a generous description for a single spot on one tooth. It is very unlikely the defence could translate that finding into stronger support for the cog being the source of the injury, bearing in mind the Police Officer’s description of the amount of blood. There is plenty of evidence from all parties that Mr Ali was holding the item in issue, and so a ready and almost irresistible inference exists as to how a single spot came to be on the cog.
[49] To conclude that the defence has been harmed to such an extent as to amount to a miscarriage would involve too much speculation as to what might have been revealed by further questioning, in circumstances where the intuitive but experienced response is that anything more favourable than the agreed statement already before the jury is very unlikely.
Cumulative effect
[50] The first matter, the revelation that Mr O’Hagan had a recent conviction for exposing himself, undoubtedly carries some risk of prejudice, but in the circumstances it is prejudice that we consider could be easily addressed. The prosecutor should have referred the matter to the Judge, even if not strictly required by the Act. We note also, however, that there was plenty of opportunity for both defence counsel and the Judge to have intervened during a protracted questioning leading up to the disclosure. It is preferable that all parties not sit and allow these matters to evolve like this. Most importantly, the situation was entirely caused by Mr O’Hagan’s deliberate decision to withhold this information from his counsel, and then ultimately from the jury even though under oath.
[51] The second matter, the Australian convictions, involves fresh access to further information of the type already before the jury in considerable quantities.
[52] The third matter is potentially the most significant and, had the ESR result not been before the jury at all, we may have been sufficiently concerned to consider a retrial was required. However, as it happens the jury received the information in a way which is most unlikely to be improved upon.
[53] Accordingly, although there are aspects of the unsatisfactory in each of the three points, neither individually nor cumulatively do they lead us to consider a miscarriage has occurred.
Conclusion
[54] The appeal is dismissed.
Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington
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