R v Scott

[2007] NZCA 589

IN THE COURT OF APPEAL OF NEW ZEALAND

CA453/07
[2007] NZCA 589

THE QUEEN

v

JACK COLIN RAHURAHU SCOTT

CA520/07

THE QUEEN

v

CRAIG RAYMOND LEWIS

Hearing:21 November 2007

Court:Glazebrook, Williams and MacKenzie JJ

Counsel:J P Temm for Appellant Scott

C J Tennet for Appellant Lewis
F E Guy Kidd and M Inwood for Crown

Judgment:19 December 2007 at 12pm

JUDGMENT OF THE COURT

A        The appeals by each appellant against conviction are dismissed.

BThe appeals by each appellant against sentence are allowed and a sentence of 2 years’ imprisonment substituted, with leave granted to each appellant to apply for home detention.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Table of contents

Para No

Issues on appeal  [1]
Facts  [5]
Directions on “wound”  [14]

R v Waters  [16]

Submissions on “wound”  [18]
Discussion and decision on “wound”  [25]
Burglary conviction appeals  [53]
Sentence appeals  [57]
Result  [68]

Issues on appeal

[1]       On 25 July 2007, at the conclusion of their trial in the Rotorua District Court, the appellants, Messrs Scott and Lewis, were convicted by the jury on one count each of wounding a Mr King with intent to injure him and burglary of Mr King’s property.

[2]       The principal ground of their appeals against conviction is that their actions in relation to Mr King did not amount to wounding him within the definition of that term in the authorities.

[3]       On 30 August 2007, Judge Cooper sentenced each of the appellants to three years’ imprisonment for the count of wounding with intent to injure and convicted and discharged them on the burglary count.

[4]       The principal ground of their appeals against sentence is that the three year term was manifestly excessive in the circumstances.

Facts

[5]       On 10 August 2005, Mr King had an altercation with a neighbour across the road who refused to return his son’s rugby ball.

[6]       The neighbour complained to a relative, Mr Scott, and he decided, with Mr Lewis, to approach Mr King to “talk and try to neutralise the situation so that it doesn’t happen any more”.

[7]       They went to Mr King’s house, and a confrontation rapidly ensued.  The parties swore at each other.  The appellants were ordered out but remained.  Mr Scott was said to have grabbed Mr King’s son.  Mr Lewis hit Mr King in the face with his fists.  Mr Scott also punched Mr King in the face with his fists.  In all, Mr King said the assailants landed about 15 blows on him and “after that blotto” though he said Mr Scott forced him to go to the neighbours’ to apologise.  The Crown case was that Mr King picked up a forestry tool on his return and threatened the appellants.

[8]       Mr Scott’s evidence was that it was Mr King who adopted the confrontational stance, grabbed a weapon  and threatened the pair, whereupon they withdrew. 

[9]       Mr King’s son fetched another neighbour.  According to the Crown, her arrival at the King residence ended the incident.  She said Mr King had blood all over his face, was carrying what she described as an axe and was shouting and swearing at the appellants.  She said his face and jaw were swollen.  Blood came from a cut above his left eye.  Mr Scott said he noticed the cut but it was not caused by either appellant.

[10]     Police were called.  Constable Rodway noted that Mr King complained of having a sore head.  He said he noticed Mr King’s jaw was swollen.  There were “cuts to his ear and above his eye”.  The Constable took the matter no further as Mr King declined to continue with the complaint.

[11]     Unbeknown to the appellants, Mr King had undergone bypass surgery about four months before the incident and had been on the anti-coagulant drug, Warfarin, ever since.  A neurosurgical registrar, Dr Winder, who saw Mr King at Auckland Hospital on 18 August 2005, said Warfarin blocks coagulation and inhibits formation of blood clots.

[12]     The incident between the appellants and Mr King occurred on 12 August 2005.  Despite Mr King’s initial disinclination to continue with a complaint, his worsening condition – particularly difficulty in talking – soon persuaded him otherwise.  He was photographed by police on 16 August, went to Rotorua Hospital on 17 August and was transferred to Auckland Hospital the following day.  He was found to be grossly dysphasic ‑ trouble speaking ‑ and had a right hemiparesis –weakness on the right side – and significant swelling and bruising to the left eye orbit and throat.  A CAT scan showed an intra-cerebral haemorrhage.  Dr Winder said all those conditions were consistent with Mr King’s description of the appellants’ assault on him.

[13]     A craniotomy – removal of part of the left side of his skull – was urgently carried out and the blood clot on the brain surface removed.  Dr Winder said being hit about the head could have caused the blood clot with a person on medication such as Mr King.  Trauma which might be insignificant for most people, can, with someone taking Warfarin, increase the magnitude of resulting haemorrhage of the small arteries in the brain.

Directions on “wound”

[14]     Judge Cooper’s directions to the jury on the wounding with intent to injure charge were:

[14]     Count 2 is the charge of wounding and there are three essential elements in that charge.  The first is that the complainant, Mr King, was wounded. Now a wound means a break in the continuity of the skin and it can be internal or it can be external.  For example, the cut above Mr King’s forehead would be within the legal definition of a wound.  A cut to his ear would be within the legal definition of a wound and a bleed internally, caused by a parting of the tissues internally, would also be within the legal definition of a wound. You might not have too much difficulty about the fact that the complainant was wounded.  The next essential element, which is at the real heart of this case, is it has to be proved beyond reasonable doubt in respect of each accused that the accused caused that wound, that the accused wounded the complainant.

[15]  The third essential element is, if you are satisfied that the accused did wound the complainant, the third essential element is that when each accused did so, he had the intention of injuring the complainant.  Now to injure simply means to cause actual bodily harm.  That means harm that is calculated to interfere with the health or comfort of a person.  It need not be permanent damage and it really just simply means harm that is more than trifling.

[15]     That direction was clearly intended to reflect the decision of this Court in R v Waters [1979] 1 NZLR 375 (CA).

R v Waters

[16]     In Waters, the appellant was admitted to the complainant’s house but attacked her on entry, banging her face several times against the floor whilst he sat on her back.  Her nose bled heavily.  The incident continued in a way which gave rise to another charge.  The appellant was acquitted on that but convicted on a charge of wounding the complainant with intent to cause her grievous bodily harm.

[17]     The only bleeding from the complainant was from inside her nose.  The judgment considered whether that was sufficient to amount to a “wound”.  In reliance on English authority from the two decades prior to 1850 – later discussed – and dictionary definitions, this Court concluded:  at 377:

In England in order to constitute a wounding “there must be an injury to the person by which the skin is broken;  the continuity of the whole skin must be severed, not merely that of the cuticle or upper skin.  The skin severed need not, however, be external, but it is not sufficient to prove merely that a flow of blood was caused unless there is evidence to show where the blood came from. …”.

and:  at 378:

We do not detect in these cases any unduly technical interpretation of the word “wound” or one which differs from the meaning ordinarily given to the word. A breaking of the skin would be commonly regarded as a characteristic of a wound.  The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound will more often than not be external.  But there are those cases where the bleeding which evidences the separation of tissues may be internal.  Harman’s case [sic:  R v Warman (1846) 1 Den 183; 169 ER 203] and Waltham’s case [R v Waltham (1849) 3 Cox CC 442] are illustrations of this.  We do not understand the dictionary meaning of the term to exclude them.

Submissions on “wound”

[18]     For Mr Scott, Mr Temm submitted the Judge was factually in error in referring to a cut to Mr King’s ear:  all the photographs, he submitted, showed only dried blood in that area without any laceration, though he acknowledged there was a discharge of blood from inside the ear.

[19]     More importantly, however, he submitted, an intra-cerebral haemorrhage was not a “wound” as that word was defined in Waters and the decision was not authority for the proposition, as put by the trial Judge, that a wholly internal injury with no damage to the skin could amount to a “wound”.  He also submitted that Mr King’s haemorrhage would not satisfy the requirements of a “wound” in England (C (A Minor) v Eisenhower [1984] 1 QB 331), or in Canada (R v Germaine 2006 YKTC 42) or in Australia (Devinev R [1982] TasR 155 (CA)).

[20]     For Mr Lewis, Mr Tennet, who was not counsel in the District Court, made similar submissions.  He also raised a number of other points but, for reasons explained during the hearing, they were all unsustainable.

[21]     For the Crown, Mrs Guy Kidd submitted that the direction in the summing-up accorded with Waters and that, even if other jurisdictions define “wound” differently, Waters has been the guiding authority in this country for a long time.

[22]     She advised that the issue of what constituted a “wound” was discussed between counsel and the trial Judge at the beginning of trial but, because of the other wounds which Mr King suffered – especially the cut over the eye ‑ it was decided it was unnecessary to determine the question, hence the Judge’s direction that the jury might have no difficulty with the fact of wounding.  That also explained why, when invited, Crown counsel did not raise the issue at the end of the summing-up.

[23]     Mrs Guy Kidd noted that Dr Winder was not cross-examined so the possibility of the haemorrhage occurring other than as a result of the trauma to which he was subjected by the appellants was not raised.

[24]     She drew attention to medical dictionary definitions to found her submission that a rupturing of blood vessels giving rise to bleeding is regarded as a “wound” for medical purposes, irrespective of whether there is an external incision in the skin.

Discussion and decision on “wound”

[25]     In our view, a number of aspects bear on the correctness of the Judge’s direction in summing-up as to what, in law, amounts to a “wound”.

[26]     First, it is pertinent to set out the provisions of ss 188 and 189.  They read:

188Wounding with intent

(1)Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.

(2)Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.

189Injuring with intent

(1)Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to cause grievous bodily harm to any one, injures any person.

(2)Every one is liable to imprisonment for a term not exceeding 5 years who, with intent to injure any one, or with reckless disregard for the safety of others, injures any person.

[27]     Analytically, it is clear, first, that the sections create a hierarchy of diminishing seriousness in either of the two intents which the prosecution must prove and, secondly, they create a series of consequences which cover the range of results of accused persons acting in accordance with one or other nominated intent.

[28]     The more serious intent is that of causing grievous bodily harm either under ss 188(1) or 189(1).  That exposes convicted persons to maximum terms of imprisonment of 14 or 10 years depending on the results of their actions.  Secondly, if the accused’s intent is to injure (or act with wilful disregard for others’ safety), then, depending on the result, they expose themselves to maximum terms of imprisonment of seven or five years.

[29]     It is clear, however, that there are only two intents in the sections and the prosecution must nominate one or other in order to prove any of the many variants of the offences in ss 188 and 189.

[30]     What can cause confusion – and indictments at first sight worded in a circular fashion ‑ is the later repetition, in the consequences portions of the sections, of the intent requirements.  Thus there are different offences for persons acting with either the intent to cause grievous bodily harm or the intent to injure, even if their actions cause the same result, namely wounding, maiming, disfiguring or grievous bodily harm.  And, because of the lesser penalty, actions with either of those intents but resulting only in injury under s 189, must be seen as being less serious than acting with the intents which cause the results listed in s 188.

[31]     “Grievous bodily harm” is not statutorily defined but has a meaning well entrenched in law: “ ‘bodily harm’ needs no explanation and ‘grievous’ means no more and no less than ‘really serious’ ”:  Director of Public Prosecutions v Smith [1961] AC 290 at 334; Waters at 379. “Injure” is defined in s 2 as “actual bodily harm” and, in the statutory hierarchy, “wound” falls between the two.

[32]     In framing an indictment under ss 188 or 189, it therefore follows the prosecution must first consider whether it believes it can prove intent to cause grievous bodily harm within that definition or intent to injure within the s 2 definition.

[33]     It must then consider what consequences it can prove.  They must be to “wound” within the definition in Waters elaborated upon and updated as appears elsewhere in this judgment, to cause the less commonly encountered “maims” or “disfigures” as defined by dictionary definitions and explained by authority (Sidnell (ed) Garrow & Turkington’s Criminal Law in New Zealand (looseleaf ed last updated October 2007) at CR188.5 and 188.6), to cause “grievous bodily harm” within the definition in Smith and Waters, or to “injure” within the definition in s 2.

[34]     Turning, in light of those comments, to what amounts to a “wound” for New Zealand law, first, since “wound” is a non-technical word and is not statutorily defined, it should be given its natural and ordinary meaning.  The noun is defined as “a hurt caused by the laceration or separation of the tissues of the body” and the verb as meaning “to inflict a wound on (a person, the body etc) by means of a weapon;  to injure intentionally in such a way as to cut or tear the flesh”:  Oxford English Dictionary (2ed 1989) at 591, 592.

[35]     As is to be expected, specialist medical dictionaries define “wound” similarly.  An example is: “trauma to any of the tissues of the body, especially that caused by physical means and with interruption of continuity”: Stedman’s Medical Dictionary (5ed 2005) at 1585.  (See also Dorland’s Illustrated Medical Dictionary (27ed 1988) at 1847; Blacks Medical Dictionary (41ed 2005) at 774).

[36]     We note none of those definitions limit the definition of “wound” to laceration of the skin.

[37]     Next, it is pertinent to analyse the decision in Waters to see if it is limited, as Mr Temm contended, to laceration of the skin either on the surface of the body or internal skin such as the lining of the nose.

[38]     The decision of this Court in Waters has now stood for nearly 30 years and has, throughout that time, been regarded as the definitive statement of what amounts to a “wound” in New Zealand law.  A close reading of the judgment shows two things.  The first is that despite the necessity shown by later English cases for a breaking of the whole of the skin to be demonstrated to amount to an “wound”, the word “wound” was not defined in New Zealand law as incorporating that requirement.  Secondly, as the later of the passages cited clearly shows, although a breaking of the skin will usually be a feature of a “wound”, the judgment is careful to note that “where the bleeding which evidences the separation of tissues may be internal”, that may still amount to a “wound”.  It is significant that, in that passage, the judgment does not confine the definition of “wound” either to incision of skin or to trauma on the surface of the body.

[39]     It is true, as Mr Temm submitted, that this Court in Waters substituted conviction under s 189 of the Crimes Act 1961 – injuring with intent to cause grievous bodily harm – for the conviction under s 188(1) but that, as the judgment shows, was a course chosen, first because the Court regarded the question as to whether nose bleeding might amount to a “wound” as a question of fact and, secondly, because in that case the medical evidence did not disclose whether the complainant’s nosebleed was a “wound” resulting from the ‘fracture of the entire skin, be it external or internal”:  at 379. 

[40]     It is next instructive to consider some of the English cases on which Waters relied.

[41]     The two earliest were said in Waters not to focus on whether the breaking of internal skin would suffice to constitute a wound.  The first was R v Wood and McMahon (1830) 1 Mood 278, 281; 168 ER 1271, 1272, where the complainant had been belaboured by his assailant but the only blood may have come from his nose. It was held by a majority that, after “considerable discussion and difference of opinion”, this did not constitute a wounding. Similarly, in R v M’Loughlin (1838) 8 Car & P 635, 638; 173 ER 651, 652, the complainant was hit with a bottle. The medical evidence was that there was an abrasion of the cuticle but not the whole skin. In directing the jury, the Judge held that the “skin should be broken, it must be the whole skin and it is not sufficient to show a separation of the cuticle only”. The accused were acquitted of wounding.

[42]     Of the remaining four cases discussed in Waters, two, R v Jones (1848) 3 Cox CC 441 and Waltham are reports only two or three lines long.  In the former, it was held not to be a wounding for the accused to kick a woman in the private parts followed by “occasional discharge of blood mingled with urine but the surgeon could not undertake to say from what precise vessels the blood originally flowed”.  In the latter a kick, this time to a man in his private parts, was held to be a wounding because, although the external skin was unbroken, the membrane lining the urethra was ruptured causing a small flow of blood and urine.

[43]     In R v Smith (1837) 8 Car & P 173, 175; 173 ER 448, 449, the complainant was assaulted in such a way as to fracture his jaw but with no wound on the face. According to the surgeon, the “skin was broken internally not externally”. That was held to amount to a wounding. And in the case most factually comparable to the present, Warman, the accused was charged with murder and convicted of manslaughter after having hit his wife about the head.  Externally, it appears there was only a small wound to the scalp but the medical evidence was:

… “I found, on examining the head, no external breach of the skin–I found a collection of blood in the back part of the head; she died from extravasation of blood which pressed on the brain;  on examining and cutting the scalp I found a collection of blood between the scalp and the cranium, just above the spot, when within the cranium I found the pressure on the brain;  I call that a contused wound with effusion of blood, that is the same thing as a bruise.  The internal part of the skin was broken, – medically, we call the breaking of the skin, whether broken externally or internally, a wound.

[44]     It is true that, in Eisenhower, Robert Goff LJ regarded Warman as unusual because the case started with a Coroner’s inquisition which led to the criminal charge.  The Judge suggested the ruling revolved around whether there was a “mortal wound” ‑ the phrase used in the Coroner’s inquisition ‑ rather than whether there was a “wound”.  But, with respect, it does not necessarily seem to be a sound basis for distinguishing Warman.  At least for New Zealand, Waters saw the case differently.

[45]     Waters, Eisenhower, Germaine and Devine all discussed those English cases.  Indeed, in Eisenhower, Robert Goff LJ noted that in England what amounts to a “wound” had not been reconsidered since 1850.  That led him in that case to hold: at 340:

There must be a break in the continuity of the skin.  It must be a break in the continuity of the whole skin, but the skin may include not merely the outer skin of the body but the skin of an internal cavity of the body where the skin of the cavity is continuous with the outer skin of the body.

And:  at 341:

It is not enough that there has been a rupturing of a blood vessel or vessels internally for there to be a wound under the statute because it is impossible for a court to conclude from that evidence alone that there has been a break in the continuity of the whole skin.  There may have simply been internal bleeding of some kind or another, the cause of which is not established.  In these circumstances, the evidence is not enough, in my judgment, to establish a wound within the statute.

[46]     In Germaine the Territorial Court of Yukon held that “wounding requires a breaking of the skin”:  at 15.

[47]     And in Devine the Court of Criminal Appeal of Tasmania held a wound to the face causing bleeding and requiring stitching amounted to a “wound” within the relevant statute because it was sufficient if the injury penetrated below the epidermis of the skin even if it did not cut the skin to its full depth:  per Green CJ at 158; per Nettlefold J at 164;  and per Cosgrove J at 168.

[48]     Two observations need to be made concerning that review of authority.  The first is that what amounts to a “wound” as discussed in Waters includes the requirements for a “wound” in England, Canada and Australia, though Waters extends that definition in the distinction we have emphasised.  Secondly, given advances in medical knowledge since 1850, and given that the overseas cases accept, for example, that rupturing of internal skin such as that in the buccal cavity or the vagina can amount to a “wound”, it seems illogical not to regard the rupturing of an internal membrane causing bleeding as a “wound”.

[49]     For all those reasons, we confirm the passages in Waters to the effect that any rupture of the tissues of the body, internal or external, with one of the two intents in the section can amount to a “wound” for the purposes of charges brought under s 188.

[50]     It follows that Mr King’s intra-cerebral haemorrhage resulting from rupture of the arteries in his brain and their bleeding into the space between the inside of his skull and the outer brain, amounted to a wounding.

[51]     We note, in passing, that even without the intra-cerebral haemorrhage, the cut above Mr King’s eye might have amounted to a wound within s 188.

[52]     The summing-up as to what amounts to a “wound” for s 188 was accordingly correct and the appeals against conviction under that section fail.

Burglary conviction appeals

[53]     Messrs Scott and Lewis appeal their convictions for burglary on the basis that inclusion of this count in the indictment amounted to over-charging by the Crown.  They argue that it was inappropriate in the circumstances and the convictions should be quashed.

[54]     It is sufficient to deal with this ground of appeal by saying that the Judge plainly thought, both from his remarks in summing-up and the sentence imposed, that the burglary count added little, if anything, to the case.  The Judge opened his remarks on sentencing by saying that:  at [1]:

The burglary charge is very much part and parcel of the total incident that occurred on the day and I do not think in fact merits a separate charge.

[55]     Despite that view, the Judge did not withdraw the burglary charge from the jury and the jury was plainly satisfied to the required standard that the appellants, having been ordered to leave Mr King’s house, failed so to do and that at that time they intended to commit the crime of wounding with intent to injure.

[56]     The appeals against conviction on the burglary count accordingly also fail.

Sentence appeals

[57]     After rejecting counsel’s submission that the appellants’ purpose in going to Mr King’s house was for discussion, the Judge summarised the injuries, including Mr King’s surgery and medication.

[58]     He recounted the very serious permanent consequences suffered by Mr King as a result of the intra-cerebral haemorrhage including lengthy hospitalisation and treatment.  He held the appellants equally culpable.  Both were involved in punching Mr King around the head in his home in the presence of his 8 year old son.

[59]     Mitigating factors, the Judge said, included:  at [21]:

… the extent of the injury, that is the very serious brain injury, was not something that you contemplated or foresaw.  It has to be said that your actions, nevertheless, caused that serious injury.

[60]     The Judge noted that factors relevant to sentencing listed in R v Taueki [2005] 3 NZLR 372 at [31] (CA), which contributed to the seriousness of similar offending included the fact that the assault occurred in the complainant’s home, focused on his head causing serious injury, although not contemplated, and the consequences. He placed the offending within Band 2 in Taueki and concluded that the “very least sentence that I can impose is one of 3 years imprisonment”.

[61]     Mr Temm submitted repetition in the Judge’s sentencing remarks of comments as to the seriousness of the complainant’s ongoing injuries and disablement implied that the length of the term of imprisonment was overly influenced by that factor.  He suggested a sentence in the order of 18 months would have been appropriate.

[62]     Though Mrs Guy Kidd accepted the sentence did not follow the now conventional formula as to setting starting points and formulating end points, it nonetheless correctly identified the Taueki aggravating factors.  The Judge’s finding as to the seriousness of the injuries was plainly open to him.  Any suggestion the sentences should have been reduced because of Mr  King’s vulnerable status was rejected by this Court in Taueki though that was a case, unlike this, involving grievous bodily harm: at [31](c).

[63]     Though Taueki is the guideline judgment relating to grievous bodily harm offending, it has been accepted that the factors listed in that case as aggravating or mitigating the seriousness of offending apply also to injuring charges – though recognising reduced sentences result from the reduced maxima:  R v Highley CA164/06 13 September 2006.

[64]     Seen in that light, we agree with the Judge that this was offending by the appellants within Band 2 of Taueki, that is to say, within the middle range for offending involving intentional injury.  With respect, however, we take the view that the appellants’ lack of use of weapons other than their fists, and their lack of knowledge of the likely consequences, should have led the Judge to select a lower starting point of the order of 2‑2½ years’ imprisonment.

[65]     What makes assessing whether the sentence ultimately imposed was manifestly excessive is, however, first, the fact the Judge made no reduction for the substantial personal mitigating features he found existed and, secondly, what may appear to have been the contradictory approach of making no express allowance for the fact that the very serious injuries which Mr King endured and continues to endure were not contemplated or foreseen by the appellants.  They were simply unaware that punching Mr King perhaps up to 15 times about the head would have very serious permanent consequences for him because of his surgery and medication.  If those consequences were neither contemplated nor foreseen by the appellants, we conclude, with respect, that sentences of three years’ imprisonment were not appropriate.

[66]     Looking at the matter afresh, we take the view that a combination of substantial personal mitigating features and allowance for the appellants’ ignorance of their actions having extremely serious consequences, warrants a reduction in the final sentence to one of 2 years imprisonment.

[67]     In those circumstances, we also consider that, having regard to each appellant’s personal circumstances, leave should be granted to them to apply for home detention.

Result

[68]     In the result:

(a)All the appeals by each appellant against conviction are dismissed;

(b)the appeals by each appellant against sentence are allowed and a sentence of 2 years’ imprisonment substituted for that imposed in the District Court with leave granted to each appellant to apply for home detention.

Solicitors:
Crown Law Office, Wellington