R v Scott Ca381/02
[2003] NZCA 318
•14 May 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA 381/02
THE QUEEN
v
PAUL RICHARD SCOTT
Hearing:30 April 2003
Coram:Anderson J
Baragwanath J
Paterson JAppearances: P Gorringe for Appellant
B J Horsley for Crown
Judgment:14 May 2003
JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J
[1] Mr Scott was convicted by a jury in the District Court at Hamilton on 26 September 2002 of assaulting a Waikato Hospital orderly by biting him. He appeals against conviction and against the nine month sentence imposed on 24 October 2002 which, with a further like term imposed cumulatively for subsequent unrelated offending, resulted in a total of 18 months imprisonment.
[2] Mr Scott claims to have been suffering from a serious medical condition which is alluded to in a certificate dated 16 August 2002 in which a medical practitioner stated:
PAPAKURA FAMILY HEALTH CENTRE
…
16/8/02
To whom it may concern
This is to certify that Paul Scott (DOB 27/10/72) suffers from black outs/seizures due to severe head injury 1996.
He takes Rivotril 0.5g 4 daily which controls his seizures. It is essential that he takes his medication regularly to avoid complications.
…
The exclusion of that certificate from the evidence has been a major theme of the appeal.
The facts
[3] On the day of the alleged offence the appellant presented at the hospital at about 11 am for bruising around his face and a small cut above his left eyebrow as well as some minor wrist injuries that he said had been caused during a scuffle with the police earlier that morning during which he had been subdued. The emergency physician described him as alert but in quite an agitated state, pacing around, and lighting cigarettes several times in a hospital cubicle despite being directed not to.
[4] The doctor wished to perform x-rays to rule out a fracture of the appellant's facial bones and to stitch up the wound on his left eyebrow but he declined to stay for that, saying that he had pressing business in the community. He became increasingly agitated and asked the emergency physician to prescribe for him a drug called Rivotril, which she said is usually used in the psychiatric field for calming aggressive behaviour. He was unable to name any doctor who normally prescribed such medication for him or why he was taking it and so she declined to do so. He became annoyed and developed a somewhat threatening demeanour towards the staff, particularly when asked to put out a cigarette. She felt uneasy and she was joined first by a male nurse and then by a security officer. When asked to calm down and comply with staff instructions he became more agitated and threatening and was then removed from the emergency department.
[5] In an affidavit tendered by Mr Gorringe to this Court as new evidence the appellant’s former partner Ms Vickers said that after the doctor had left the appellant wanted to go to the toilet and she went with him. She said:
On the way back from the toilet, he had a number of black-outs – four or five – and I had to support him by wrapping an arm around his back.
[6] Two witnesses called at trial described what then happened. A hospital attendant said that the appellant was swearing at the security officer:
…his temper was just getting angrier and voices were getting louder…
[7] The security officer asked him some six times to be quiet and sit down and then read him a trespass notice requiring him to leave. He refused to do so and the security officer and x-ray attendant took him by the arms. He was variously described as “really, really violent”, “flapping around waving his arms and kicking”, “struggling violently”, “just going berserk”, “everyone got kicked… the legs were going just everywhere”, “the front door of A & E was smashed by the defendant’s kicking”, “three of us… were needed to get the accused out of the hospital” and “the strength of the man was just unreal, you just couldn’t hold him, he was right out of this world”.
[8] The appellant was led outside the hospital and then:
…he then started to shake and go unconscious a bit… [we] put him down on the ground and [it] looked like a seizure and it lasted for about ten seconds. That’s why I couldn’t hold him so we… put him on the ground and then after that he just got up.
The complainant had had experience of other persons with seizures and described them as calm once they have come out of it. The jury would have been entitled to attribute a similar reaction to the appellant.
[9] The complainant described the circumstances of the alleged assault:
…[the appellant] started to walk like on to the main highway… and that’s when [the security officer] and I brought him back, and then we were standing by the garden… fell on to the garden, and Mr Smith went one way and I landed on top of the accused… as we were falling on to the garden… we managed to slip and he broke free… I landed on top of them, and Mr Smith went the other way, so yeah, he just got up and bit me… on my inner forearm… down by my wrist…
[10] The short cross-examination reads:
Mr Tawhai just talking about outside the hospital, and Mr Scott is on the ground and you described him as being in a seizure. The normal procedures is to put something in their mouth to stop them biting their tongue, is that right, do you know that?… Yes.
Yes. And when you fell on top of him your hand fell on his mouth is that right?… Yes.
Yeah. And his jaws closed on your hand?… At the time like when he bit me yes.
[11] Re-examined the witness confirmed that he had landed on the appellant:
…I was down, down like below him but my arm went on top of his mouth.
So he was on top of you but your arm was on top of him?… Yes.
Which part of your arm was on top of his mouth?… Where he bit me.
[12] So while the evidence-in-chief suggested that the appellant got up after the fall and bit the complainant, the cross-examination and re-examination had the complainant’s arm going on top of the appellant’s mouth at which stage the biting occurred.
[13] In giving evidence the appellant denied any recollection of a four day period including the events that gave rise to the charge. He said that on 1 November 2001 he had been on a regimen of four tablets of Rivotril per day.
Grounds of appeal
[14] The appellant’s initial ground of appeal filed by trial counsel was that the learned trial Judge had erred in declining leave for the medical certificate to be put to the emergency physician. The transcript records defence counsel as saying at the commencement of his cross-examination:
I seek Your Honour’s leave to put a document to the doctor. I understand my friend does not object to it going in. It may be an appropriate time.
[15] The Judge ruled the certificate to be inadmissible and declined the application. Later, when defence counsel attempted to produce the certificate during the appellant’s evidence-in-chief, he repeated the ruling.
[16] Following Mr Gorringe’s instructions to take over the conduct of the appeal from trial counsel, an application was filed for leave to substitute for the rejection of the certificate as the appellant’s ground of appeal, the ground that trial counsel had committed radical error in failing:
a)to act on the appellant’s instruction to call Ms Vickers; and
b)either failing to inform the appellant that she ought to be called or informing him that she was not to be called without having investigated her potential evidence.
The proposed new evidence
[17] Three affidavits were tendered: that of Ms Vickers; one by the appellant and one by the appellant’s mother.
[18] The appellant's gives an account of a severe head injury in 1996 resulting in blackouts and seizures when under pressure, for which he is required to take Rivotril every day. He spoke of suffering facial injury in an altercation with the police while in overnight custody following arrest on 21 October. He said he advised trial counsel that Ms Vickers had told him she had been with him at the hospital and that while she did not see the bite she observed his behaviour throughout most of the time at hospital. He had left to counsel whether to call her.
[19] The appellant’s mother confirmed that in 1996 he suffered a severe head injury in which his brain was damaged. He required medication on a long-term basis to control activity in his brain. Rivotril was prescribed, to be taken daily in the form of tablets. She said that without Rivotril the appellant has migraines, blackouts and seizures. Even with it he still has headaches, including migraines, and when stressed can have blackouts and seizures. On having a seizure he is unconscious and his body moves with jerks and thrashing around. After regaining consciousness he carries on as if nothing has happened but is disorientated and sometimes runs away.
[20] Ms Vickers, after recounting the blackouts on the way back to the toilet, referred to an argument developing between the appellant and the security officer and his being taken outside by three men. She said:
13. I followed Paul and the three men outside. After we went out through the main doors of the hospital to the outside area, Paul had a seizure and fell to the ground. I recall this as being on concrete or asphalt, outside the front doors. I saw Paul fall to the ground and shake. I have seen one previous seizure, by a person with epilepsy, which is similar to what I saw Paul undergoing on this occasion.
14. The three men jumped on Paul. They covered him and I was unable to see much of Paul at all as a result. As a result of Paul being covered in this way, I did not see the actual bite to the arm of one of the men, which I understand he did.
15. After the seizure had cleared, Paul stood up, and we stood together for a little while for his head to clear…
16. I had not known at that time that Paul had bitten one of the guards but I found out shortly afterwards.
17. Throughout the time at the hospital I could tell that Paul was having difficulty handling the situation there. He was excitable and confused. He wanted particularly to have his medication but none was given to him.
…
[21] Following the waiver of privilege by the appellant, his trial counsel filed an affidavit responding to criticism that he had failed to interview and to call Ms Vickers. His account was:
6.0 Mr Scott advised me that he was “out of it” on drugs when he was arrested and it was due to his condition before being apprehended that he could not remember any detail of what events occurred in the Police cells in Hamilton nor could he remember what happened at the Waikato Hospital later.
7.0 In effect I did not have any evidence from Mr Scott relating to the incident at the Hospital.
8.0 DEFENCE: the defence case was put to the jury on the basis that Mr Scott had a seizure at Waikato Hospital and any assault that may have taken place (the bite) was done unintentionally, as Mr Scott did not have the intention of biting the complainant.
9.0 There was considerable documentary evidence by staff at Waikato Hospital indicating that Mr Scott did in fact have a seizure. “He came out of his seizure” [counsel referred to a notification form which was not adduced] There was no dispute about Mr Scott’s “shake and shudder”. The Defence case was put to the jury on the basis that the biting was a flow on effect from the seizure and all the behaviour the witness’s talked about. The biting was not an intentional application of force.
10.0 VICKERS: In any event I was aware that Ms Vickers was at the Hospital and could be an eye witness, however she could not give expert evidence regarding Mr Scott’s fit or seizure. Ms Vickers was simply confirming Mr Scott’s behaviour. It appeared that the Crown witnesses to be consistent with a fit or seizure, and to that extent Ms Vickers could not add to the defence case.
11.0 In any event Ms Vickers accepts in her affidavit that she did not see the [biting] incident.
12.0 The fact that the Appellant appeared to be having a fit or seizure does not seem to be in dispute. Ms Vickers was aware of the appellant’s past criminal history including his consumption of illegal drugs, since Ms Vickers was an ex-girlfriend there was a risk that she may give evidence that was prejudicial to the defence, and since she could not add to the defence case there was a risk in calling her. That decision not to call her was conveyed to Mr Scott and he accepted the decision.
[22] Since the evidence of Ms Vickers about the series of blackouts was not known to the appellant or could reasonably be expected to exist we are prepared to admit it. That of the appellant and his mother adds nothing significant to the medical certificate and was available. We do not admit it.
[23] Neither side applied for leave to cross-examine.
Submissions
[24] In the course of oral argument Mr Gorringe elected not to abandon the original ground of appeal and added it to the new ground. He added a further challenge to the Judge’s summing up and to a direction given the jury in response to a question. Mr Horsley had prepared on the basis that the certificate point was to be abandoned. He advised that Crown counsel at trial disputed defence counsel’s statement to the Judge:
I understand [Crown counsel] does not object to [the certificate] going in and said that the application was opposed by the Crown.
[25] Mr Gorringe’s ultimate submission was that there was available to the appellant a substantial defence which was never properly placed before the jury. That defence was that the biting occurred by the involuntary closure of the appellant’s mouth in the course of a seizure. There has been a miscarriage as a result of a combination of the following:
a)There was potentially available and should have been led before the jury evidence from the author of the medical certificate. Either the Judge erred in failing to give effect to the apparent agreement between counsel evidenced by the transcript which recorded a sensible method of getting the material before the jury or trial counsel erred in failing either to secure the Crown’s consent or to subpoena the doctor. It matters not why the evidence was not adduced: the essential point is that definitive expert evidence from the appellant’s medical practitioner as to his condition would possess a quality altogether greater than the evidence the jury did receive from lay witnesses about the episode.
b)By reason of the absence of Ms Vickers the jury lacked the important evidence of the four or five seizures occurring shortly before the episode giving rise to the charge. Trial counsel could not fairly be criticised for failing to call Ms Vickers to give such evidence, of which the appellant with his lack of recollection of the events would have been unaware. There is no suggestion that she told the appellant about it; she and he separated some two months after the episode.
c)The final point is that in summing up the trial Judge directed the jury as follows:
It’s been a very short case indeed so I don’t need to spend terribly much time on the respective cases. But the Crown case here simply is that you should infer from the circumstances of this case that the accused, when he came to hospital, reacted badly to being asked to comply with some internal hospital rules. He became angry. The staff were concerned about him and, when he wouldn’t leave or be provided with what he wanted, in the course of his struggle with the people who were required to remove him, he deliberately bit Mr Tawhai, the man from Chubb, and that the nature of the bite – the fact that Mr Tawhai’s description of it being an unpleasant experience and a hard bite – suggests that this wasn’t some sort of inadvertent accidentally putting the hand in the mouth with the mouth accidentally closing on it. It was a deliberate bite. And the Crown says that that’s the inference you should draw from all the surrounding facts.
The defence says that you cannot exclude the possibility that this was accidental. They suggest that because of the alleged absence of his medication the accused may have been, as the doctor described, anxious and aggressive. The accused himself does not remember the incident at all. That really doesn’t take this matter any further, because the fact that you don’t remember something does not mean, at the time that it happened, that you did not know what you were doing. What you need to concentrate on is the evidence of what happened at the time and ask yourself is that the indications that the accused then knew what he was doing and the serious of steps that he took, did they give the appearance to you of someone who knew precisely what they were doing, or is it someone who did not know what they were doing at all? But the fact that the accused does not remember anything, or says he doesn’t remember anything, really doesn’t take this case a whole lot further.
The defence suggests, really, that the fact that Mr Tawhai was wrestling with this man at one point and his arm came near the mouth, means that you cannot exclude the possibility that this bite, or this bodily contact, was an inadvertent or accidental matter.
That really, I think, has summed up somewhat brutally and, perhaps, shortly the respective cases and I’ll just check with counsel that they’re content with that description.
In response to a question from the Bench both counsel expressed agreement with the way he had put their respective case.
[26] Mr Gorringe submitted that the Judge's summary of the defence case:
The possibility that this is accidental…because of the alleged absence of his medication the accused may have been, as the doctor described, anxious and aggressive this bite… was an inadvertent or accidental matter….
did not squarely put the essential defence that, the complainant’s arm having positioned itself fortuitously over the mouth of the appellant, his jaw convulsed in another episode of seizure.
[27] To the Crown submission that the jury would have understood the issues very clearly, Mr Gorringe pointed to the Judge's answer to a question by the jury:
Your question is, “The Jury would like to be reminded of the definition of intent. There is a lot of discussion as to whether or not it can have been a conscious decision to bite in the very short window of opportunity.”
Intent or intention means that the act in question must be deliberate. Intent by its very nature is not capable of direct proof. It rests on inferences from what the evidence proves a person did or said before, at, or after the event as well as the surrounding circumstances and the nature of the act itself. The accused must have meant to do it. It must have been one of his aims or goals.
The second part of your question suggests to me that it might be helpful if you consider that the accused was struggling with the complainant and others and if you were of the view that the bite was part of a deliberate struggle, even if the decision to inflict it was made at the precise moment it was delivered, so long as it was deliberate it would be intentional. But if the action were an instinctive or an accidental closure of mouth over the arm of the complainant, it would not be intentional.
So you are going to have to look at the surrounding circumstances and consider, irrespective of the amount of consideration given to it, whether it was a considered act and was a deliberate one.
[28] He submitted that in referring to:
an instinctive or an accidental closure of mouth over the arm of the complainant.
the direction did not squarely put the option of convulsion so that the bite was not in law a willed act of the appellant.
[29] For the Crown Mr Horsley supported the Judge’s ruling to exclude the medical certificate. He said that the Crown were entitled to have first-hand evidence from the appellant’s physician on a matter of such importance. He did not however seek adjournment of the appeal to allow that to occur. We must therefore deal with the material we have.
[30] As to the evidence of Ms Vickers, he submitted that her account added nothing material to the evidence, which did not explain the nature of the four or five blackouts she saw or the potential significance. Having said she did not see the bite her account adds nothing fundamentally new to the trial evidence.
[31] Mr Horsley acknowledged that the form of the summing up presented a ground requiring consideration. While its terms were unfortunate, the jury must be credited with having understood the two themes: of an accidental falling of the complainant’s arm on to the mouth of the appellant; and of an involuntary seizure resulting in an unwilled closing of the jaw.
Discussion
[32] It is plain from the jury’s question that they needed assistance in the area of the appellant’s intent. Accordingly anything truly significant to that might reasonably have led to a different result.
[33] It may be that in isolation none of the three grounds finally relied upon by Mr Gorringe would have been enough to establish miscarriage. It might be said of the first point as to the relative significance of the greater specificity of expert evidence compared with the general evidence the jury possessed about the appellant’s medical condition; of the second that the four or five episodes of seizure added little to the evidence of spasm shortly before the alleged biting, something of which the jury was well aware from the graphic evidence of two witnesses; and as to the third that it is fair to the trial Judge to comment that his general reference to accident is not inconsistent with muscular spasm. Trial counsel did not see fit to challenge it; there was no allegation of radical error as to that.
[34] But the three grounds together in our view are sufficiently concerning to require that the verdict be set aside. The appellant did suffer from a serious condition likely to give rise to blackouts of which definitive medical evidence was available but not before the jury; earlier in the day he had sustained the facial injury which led the doctor to propose x-rays, so there was evidence of a heavy and recent blow to that part of the head; the series of blackouts described by Ms Vickers was closely proximate to the alleged assault which, itself following a blackout, could well have been the first of two episodes closely linked, rather than one from which there was the normal recovery; and the summing up did not clearly put the defence for which there was such support.
[35] It follows that the assault conviction must be set aside and that the nine month sentence imposed on this count falls with the conviction.
[36] It is however necessary to draw attention to unfinished business. The learned sentencing Judge, who was not the trial Judge, had the responsibility of sentencing in relation to unrelated offending which he described as follows:
…There are essentially three strands of offending being pulled together today in terms of sentencing. One strand is charges of resisting, theft – three charges of that, possession of a knife, possession of cannabis, assault, trespass, intentional damage, possession of a pipe, which were all the subject of a defended hearing before me on 17th of May. In a reserve[d] decision delivered on 27th of May I found all the charges proven except CRN 0464 possession of a knife on which an acquittal was entered. Sentencing was tentatively then scheduled for as soon as possible after 31st of May, that being a nominal date fixed when the hearing was concluded.
[2] It then emerged that unknown to me there were other charges in the system which to some extent overlapped at least some of the matters that I was dealing with. They were the subject of a jury trial. The jury returned verdicts of guilty on two assault charges. The assaults arose out of a rather bizarre incident at Waikato Hospital. The details of which were traversed in the evidence before the jury and in the hearing before me and commented on at some length in my decision.
[3] The third strand involves charges laid just nine days ago under the Crimes Act of possessing an offensive weapon in a public place namely a samurai sword and he pleaded guilty to that this morning…
[37] The Judge decided that the appellant would receive a nine month term on what he wrongly regarded as two assaults (in fact the complainant in the other assault case did not attempt to give evidence and on that count the appellant was discharged. Accordingly there is no remaining basis whatever for the sentence of nine months for assault). The Judge then said:
…In my view the appropriate prison term on those matters is one of nine months. As far as the samurai sword incident is concerned, against the potential maximum, against the background of the totality of offending it is my view that an additional prison term of nine months that is also the appropriate answer. So that makes a total prison term of 18 months. In my view all the other offending can be made to fit in within that frame work. It is not completely logical because not all the offences are necessarily related, for example there is a theft of scrap metal involved and that is a different matter all together, but in itself not of particular consequence. I won't, at this stage, define precisely what the exact prison terms will be, but I make it clear that as I write these matters up the prison terms imposed on those will be concurrent, that is they won't alter the totality of the total term of imprisonment. The question of conditions on release arises as the total sentence is one of 18 months.
[38] It appears from the appellant’s list that the Judge later purported out of court to impose a variety of specific sentences on the charges mentioned concurrent with the 18 months sentence. But he had no power to do so. In Stratford v Ministry of Transport (1991) 7 CRNZ 501, 504 Eichelbaum CJ stated
Subject to very limited exceptions, once a Judge has delivered the decision and reasons, the Court is functus officio.
[39] While there is jurisdiction to vary a sentence or clarify a doubt or ambiguity in it, as stated by the English Court of Appeal in R v Dowling (1989) 88 Cr App R 88, 91
if a judge is minded [to do so] he should do so in open court. He should not do it behind the scenes or by transmitting a message. Only if the matter is finally resolved in open court will all concerned and the public hear the final decision from the judge himself and in his own terms.
Edmonds v Baycorp Ltd [2003] NZAR 111, 117 para [22] is to similar effect.
[40] It will therefore be necessary for the District Court to proceed to sentence the appellant upon the charges other than that relating to the samurai sword incident.
[41] The formal order is that the appeal against conviction is allowed. We direct a new trial.
Solicitors:
Crown Law Office, Wellington
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