R v Toni Colin Reihana
[2003] NZCA 135
•3 July 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA 143/03
THE QUEEN
v
TONI COLIN REIHANA
Hearing:26 June 2003
Coram:Anderson J
Panckhurst J
Paterson JAppearances: Appellant appears In Person
J M Jelas for Crown
Judgment:3 July 2003
JUDGMENT OF THE COURT
[1] Following a trial in the District Court at Christchurch the appellant was convicted upon a charge of assaulting a female. He appeals against that conviction upon the grounds that the trial Judge misdirected the jury in relation to a crucial issue of fact and erred in failing to leave self-defence on a sufficiently broad basis. The appellant also seeks leave to adduce additional evidence on appeal.
[2] The sentence imposed was ten months imprisonment without leave to apply for home detention. This too is the subject of challenge upon the grounds that the sentence was clearly excessive.
Background
[3] The relevant events occurred on the morning of Monday, 22 April 2002. The appellant called at the address of the complainant, where she resided with her children. This he was accustomed to do. The two had been in a relationship from which there were two pre-school age children. The complainant also had three sons from an earlier marriage one of whom, Nick, was the complainant in relation to a related count of assault.
[4] Mr Reihana’s visit was unarranged. However, it was not unexpected in that he had been in regular contact with the complainant during the preceding weeks. But such contacts were necessarily restricted to take account of a restraining order made by the Family Court which prohibited contact between the appellant and two of the boys, including Nick. The flavour of the situation was indicated by the circumstance that shortly prior to 22 April the appellant had stayed with the complainant at her home while the boys who were protected by the order were away during their school holidays. Upon their return he left, and contact continued on a basis which respected the terms of the order.
[5] It was about 10.00 am when the appellant arrived at the house on the Monday morning. According to the appellant the purpose of the visit was to “try and straighten things out” since there had been disagreement between him and the complainant when they spoke the previous Friday and Saturday. Unbeknown to the appellant Nick was at home. He had not gone to school that day.
[6] Upon seeing the appellant at the french doors which gave access to an open plan living area, the complainant said he could not come in because Nick was at home. In giving evidence the appellant acknowledged that he heard words to that effect but said that he did not believe the complainant. He let himself into the house with a key which was in his possession. Once inside there were further requests by the complainant for Mr Reihana to leave. He responded that he only wanted to use the telephone which was almost within reach on a breakfast bar. By now voices were raised. Nick, who was in an adjacent room, came into the living area. He added to his mother’s demands that the appellant leave. The complainant acknowledged in cross-examination that he may well have pushed Mr Reihana in the direction of the doors in order to impress upon him the need to go. According to the complainant and Nick it was at this point that the appellant punched the complainant in the left eye causing her to fall to the floor.
[7] Nick in his evidence and confirmed by his mother’s evidence then uplifted a bread and butter knife from the kitchen bench or drawer and approached the appellant. Mr Reihana confronted Nick and without much difficulty overpowered and disarmed him. At this point a friend of the complainant arrived at the address. Shortly thereafter the police were called.
[8] The appellant’s version of the events inside the house was rather different. He said that the complainant was immediately abusive towards him once he was inside. He endeavoured to uplift the phone and as he did so was attacked by the complainant who was screaming, punching and clawing him. Nick entered the living area, immediately uplifted the knife and approached the appellant. Aware of the danger he flung his arms in a manner designed to stop the complainant clinging to him and so that he could turn his attention to the threat which Nick posed. There was no intentional punch to the eye, as alleged, rather what was variously described as a reflex action or accidental blow in the particular circumstances just outlined.
[9] The appellant agreed that he soon overpowered and disarmed Nick. However, a struggle between the two continued during which the complainant intervened and it was common ground the appellant said words to the effect “you will end up getting another one”, before she was pushed away.
[10] Photographs which were produced at the trial vividly depicted the complainant’s injuries. Her left eye was bruised and swollen almost to the point of complete closure. The eyebrow was split and required sutures.
[11] The trial in the District Court occupied two days, 16-17 April 2003. The appellant represented himself. The circumstance of self representation pervaded the trial. The trial Judge found it necessary to intervene regularly, particularly when the appellant cross-examined the complainant with reference to the relationship which formed the background to the events on the day. On the evening of 17 April the jury found the appellant guilty of assaulting the complainant in terms of s194 of the Crimes Act 1961. He was acquitted of assaulting Nick. The different verdicts indicate that the jury concluded there was an assault by punching on the complainant, but that the force applied to Nick was in self-defence or may reasonably have been.
[12] Mr Reihana raised three grounds in support of the appeal against conviction. These were that the trial Judge misdirected the jury upon a crucial issue of fact, erred in declining to leave self defence vis á vis the complainant’s attack upon him, and that evidence which was wrongly excluded at trial occasioned a miscarriage of justice. For reasons which will become obvious it is convenient to deal with the first two grounds together.
Misdirection: self defence
[13] As the short summary of the evidence set out above indicates, there was no difference between the three key witnesses as to when Nick came into the living area. Put another way it was common ground that he entered soon after Mr Reihana came inside and that he was present at the time when his mother sustained the injury to her left eye. By contrast there was a stark conflict between the appellant on the one hand, and the complainant and Nick on the other, as to when Nick armed himself with the knife. Was it before the blow to the complainant (as the appellant said) or only after the blow (as the complainant and her son said).
[14] Despite the absence of dispute as to the timing of Nick’s entry into the room, the Judge said in the first paragraph of his summing-up:
You decide the facts in this case. The crucial fact for you to decide in this case is when the accused hit Heather, when the accused hit Heather. Was it before Nick emerged from the lounge, or was it after Nick had gone behind the bench and started to or had picked up the knife? That is the crucial fact that you have to decide in this case and I will come back to it later.
[15] The trial Judge did so. Near the end of his summing-up, after he had explained self defence and related it to the different factual scenarios, the Judge said
this:
But of course all of that Mr Foreman and members of the jury brings me back to where I started because all of that depends upon whether you find as a fact that the accused hit Heather before or after Nick came into the room and began to take up the knife.
[16] Mr Reihana submitted that the two quoted passages contained a misdirection of fact which effectively subverted the trial process and denied him the opportunity of a self defence finding in relation to count one. He said that by including in a single sentence the propositions whether Nick had come into the room and whether he had taken up the knife, the Judge inadvertently linked the two concepts as if they were one. If the jury followed this lead and considered the separate points as if they were one composite issue, his case suffered a decisive blow. The jury might have concluded that Nick did not have the knife at the time the blow was struck to the complainant and (in terms of the Judge's direction) nor was he in the room. With Nick not even in the living area at the relevant time the appellant’s claim of self defence was bound to fail.
[17] Mr Reihana’s second and related submission was that the Judge erred in the way he left self defence to the jury in relation to count one. The effective direction is neatly captured in a passage towards the end of the summing-up:
Having mentioned self defence to you and explained it to you, that three stage process, I take you back to count one, the assault on (the complainant). Remember that if you find that it is reasonably possible that the blow he struck (the complainant) was accidental or inadvertent then you find him not guilty. If on the other hand he meant to hit her, that the blow to the eye was intentional, then in those circumstances you would also need to consider whether the Crown has proved beyond reasonable doubt that he was not acting in self defence, because there is always the possibility that you might deliberately strike another person so as to free yourself in order to defend yourself against imminent danger presented by the third person, the other person (Nick). So apply that in relation to count one.
[18] Quite rightly Mr Reihana submitted that thereby self defence in relation to count one was only left to the jury as an incident of the defensive action necessary to place the appellant in a position to defend himself against a knife attack by Nick. In other words it was not left to the jury that the blow struck to the complainant’s left eye could have been in direct response to her attack on Mr Reihana, characterised by him as screaming, punching and clawing.
[19] What became increasingly apparent to us during the course of submissions was the extent to which the appellant’s complaint about the self defence direction was linked to the contention of factual misdirection. As Mr Reihana explained once the jury were invited to consider whether Nick was in the room and armed at the time of the blow to the complainant as a composite issue, and, if they answered that question in the negative, self defence was not a possibility. If, on the other hand, defensive response against the complainant’s attack was left to the jury, then self defence remained a viable option regardless whether Nick was in the room or not.
[20] The way in which self defence would be left to the jury in relation to count one was discussed before closing addresses and the summing-up. The trial Judge indicated that force used by the appellant to rid himself of the attentions of the complainant so that he may concentrate upon Nick by then armed with the knife, was an interpretation which was open on the evidence. The prosecutor accepted as much. Mr Reihana did not disagree, but also submitted that self defence in relation to the complainant’s direct attack upon him should also be left to the jury. A submission to that effect was certainly made during the deliberation period, when the jury sought further directions in relation to self defence. But the Judge considered self defence was only available in relation to count one on the basis described above (paragraph [17]). He said that there was “no evidence to support the contention” of self defence against the complainant’s attack. At another point he said that “it is an afterthought because in my assessment there is no evidence upon which it would be proper for a Judge to give such a direction as you contended for”.
[21] Ms Jelaś accepted that the manner in which the Judge defined the crucial factual issue for the jury was unfortunate. She agreed that the evidence of all participants was consistent and confirmed that Nick was in the living area at the time the complainant sustained the blow to her eye. Counsel accepted that the real issue was whether at that point in time Nick was armed with the knife. As to that aspect evidence was divergent and, moreover, whether Nick was then armed was indeed a crucial issue of fact.
[22] However, Ms Jelaś did not accept that the sentence by which the Judge defined the crucial issue was apt to confuse the jury. She argued that because the evidence was all one way and established that Nick was in the room at the relevant time, the jury would inevitably have taken from what the Judge said that it was whether Nick had already armed himself which was the crucial issue for determination by them. In other words that the preface, whether Nick was in the room, would not have featured in the jury’s thinking, much less confused them.
[23] We agree. We accept the appellant’s submission that it was unhelpful for the Judge to define the crucial issue of fact in the way that he did. But we are not persuaded that there was scope for the jury to be misled by the formulation which was adopted. We think the jury would have taken the reference to whether Nick was in the room as introductory to the real question, whether he was armed, and would not have treated the two issues as a composite proposition. After all the evidence was clear and there was no inconsistency between any of the three witnesses. We are sure the jury appreciated that whether Nick was armed or not was the crucial issue which the Judge intended to identify.
[24] We are also satisfied that the direction on self defence in relation to count one was appropriate. Two short passages from the evidence demonstrate why that is so. Late in his cross-examination of the complainant Mr Reihana asked her:
Q.What do you say to the proposition that I accidentally and inadvertently struck you while trying to release myself from your grip?
A.You, you lost control in the situation Tony. You out of nowhere punched me in the face.
[25] And in his own evidence in describing the blow to the complainant the appellant said:
I thought he was going to stab me. I genuinely thought he was going to stab me because the way he entered the room his language usage, his posture, I just had to take evasive action. Unfortunately for the hysterical Heather, um, she got in the way. It was accidental. I didn’t mean to hurt, I didn’t mean to hit her, um, she inadvertent as I say, I wasn’t even looking at her, um, as is typical with Heather she is the author of her own misfortune …”
It follows that Mr Reihana did not assert that he struck a deliberate blow, much less that he did so in measured response to the threat which the complainant represented to his safety. To the contrary his evidence was all to the effect that any force which he applied to the complainant was unintentional as he endeavoured to free himself to concentrate upon Nick.
[26] It follows that self defence in relation to count one was left to the jury on an entirely appropriate basis, given the appellant’s evidence. It would have been wrong for the Judge to leave self defence on a basis for which there was no evidentiary foundation. In light of the way Mr Reihana developed his argument, we think his concern as to the way in which self defence was left flowed from his concern about factual misdirection. But once it is accepted that the jury would not have been misled as to the crucial issue, the need for self defence in relation to the complainant’s attack falls away. Mr Reihana accepted this, but could not of course concede the point given his submission that the factual direction did have the potential to mislead.
Excluded evidence
[27] In support of the appeal the appellant sought to adduce fresh evidence. This comprised various documents from proceedings in the Family Court including a decision of a Judge dated 26 November 2002 in a case involving the appellant and CYFS. There was also a discharge summary for the complainant following mental health treatment which she received in mid 2000, the record of a decision and recommendations of a family group conference in December 1999 (which pertained to four of the complainant’s children, including Nick), and a security incident report of July 2000 (which pertained to an incident in the foyer of the Family Court in which the complainant was involved).
[28] It is apparent from the record of the trial that the appellant attempted to introduce at least four of these documents as exhibits during the evidence of the complainant or himself. The Judge ruled that the documents were inadmissible and could not be produced. We are in no doubt that such ruling was correct. The documents contained material which was either collateral or which was in the case of the Family Court decision, opinion evidence.
[29] Moreover, it is readily apparent from the record that Mr Reihana was able to adequately explore the themes in relation to which he sought to introduce the documentary material. These were the complainant’s mental health history, the fact and outcome of various Family Court hearings, and confirmation of an incident in which the complainant had been involved with another person in the foyer of the Family Court. Plainly these issues were at most background and collateral to the questions which fell for determination at the trial. To the extent that the trial Judge excluded material his ruling was correct and to the extent Mr Reihana seeks to introduce further documents on appeal they are not material in any event.
A further matter
[30] Although not raised by the appellant as a ground of appeal it is necessary to refer to the manner in which a jury question was dealt with during the deliberation period. The trial record includes a verbatim account of the exchanges between the Judge, the prosecutor and Mr Reihana in relation to this aspect. The jury asked to be reminded by a “read back through Nick’s testimony as to how and when (the appellant) hit (the complainant)”. At first the Judge indicated an intention to answer the question in the conventional way, by reading back parts of Nick’s evidence in chief and cross-examination. Correctly, he observed that it would also be necessary to read back the corresponding aspects of the appellant’s evidence in order to achieve balance.
[31] However, in the course of the process of identifying the relevant passages the Judge made the suggestion that it may be preferable to provide the entire notes of evidence to the jury, rather than to read back those extracts required to answer the question. He commented that he had not adopted this approach previously and had been rather opposed to it on principle, but said he was inclined to provide the transcript on this occasion. A lengthy discussion ensued. During its course it emerged that part of the cross-examination of the appellant had not been typed back.
[32] In the event at about 8.50 pm, shortly after the jury had returned from a meal break, their three questions were answered. That which related to Nick’s evidence was dealt with by provision of the whole trial transcript supplemented by a playing back of the cross-examination of the appellant which had not been transcribed. In addition the Judge provided page references to those portions of the evidence which were most relevant to the question. By 9.16 pm all three questions had been answered and the jury resumed their deliberations.
[33] We do not consider that the provision of the transcript to the jury was appropriate in the circumstances outlined. Where this course is taken the practice has generally been to provide more than one copy of the transcript and to do so from day to day throughout the trial. Typically the transcript has been provided in longer cases as opposed to those which occupied less than two days. The decision to provide the transcript is taken at the commencement of the trial and special steps are put in place to ensure its accuracy before distribution. Moreover, a practice has emerged whereby the jury is directed to raise for clarification any factual issues where the transcript does not accord with their recollection of the evidence as given.
[34] In this case the decision to provide the transcript was taken very late in the day and effectively as an expedient in relation to a jury request for evidence to be read back. This was not good practice. There was no time for the various safeguards which are emerging in this area to be implemented and there was no cautionary direction of the type indicated given to the jury. However, we do not think that thereby the risk of a miscarriage of justice arose. It is to be noted that the jury returned with its verdicts at 9.47 pm, some thirty minutes after the transcript was provided to them. This sequence of events is consistent with the jury using the transcript in relation to the relatively narrow inquiry indicated by their question. And there is no suggestion that the transcript contained any inaccuracies, in particular in relation to the jury’s area of interest.
[35] The appeal against conviction is dismissed.
The sentence appeal
[36] The appellant was sentenced on 1 May 2003 to ten months imprisonment, with leave to apply for home detention refused. An immediate application for bail pending appeal was made. This too was refused.
[37] The Judge assessed the offending in these terms:
This was a very nasty assault in the course of a domestic dispute. When you are being ordered out of her home, out of nowhere you punched her once in the eye. It was a very hard punch, sufficient to split the eyebrow and completely blacken and almost close the eye. Photographs were produced in evidence. I have read the victim impact report. I take into account what you say about it. The victim was hospitalised. She underwent a degree of pain and suffering. The bruising took about a month to disappear and her eyesight was temporarily affected. The offending occurred in her home and so she had feelings of insecurity. Those feelings lasted for some time and she continues, she says, to be fearful of and intimidated by you.
[38] The Judge identified as aggravating features that the offence occurred in the complainant’s home after the appellant had been asked to leave, that the weight of the blow was significant and that the appellant had a previous conviction for breach of a protection order which related to the complainant. He identified as mitigating factors what were described as “your personal circumstances” and the fact that the appellant had no previous convictions for violent offending.
[39] The aggravating and mitigating features were seen as being about equal. Accordingly, against the background of a maximum penalty of two years imprisonment, the Judge fixed ten months imprisonment as the starting-point and made no adjustment either way. Leave to apply for home detention was refused on account of the seriousness of the offending, the consequences to the victim, her “revictimisation” at trial and on account of the appellant’s conduct in court which demonstrated a clear contempt for authority. Collectively these reasons satisfied the Judge it was inappropriate to grant leave.
[40] We note that the sentencing process was also marked by difficulty. It began on 30 April. Part way through the sentencing remarks Mr Reihana was warned against interrupting the Judge. When he did so a third time he was removed from the court. However, upon reflection the Judge decided to defer the sentencing until the following day and complete it with the prisoner present.
[41] At the commencement of his submissions in this Court Mr Reihana drew attention to observations made by the Judge immediately before the third
interruption for which he was removed from the court. These were:
I regret to say that I found you to be an egocentric, manipulative, controlling and obsessive bully. You knew all the time that you were guilty. That is, you carefully avoided the very real central issue in cross-examination of her until you were directed to squarely put your case to her.
The appellant characterised these words as an unnecessary and unfair attack on his personality, indeed an affront to his mana. The balance of his submissions in relation to the sentence imposed were to the effect that ten months imprisonment was clearly excessive for an assault which consisted of a single blow in the circumstances of this case and by a person who had no previous convictions for offences of violence.
[42] Ms Jelaś submitted that the sentence was within the available range, if perhaps a stern response for an assault of this kind.
[43] There is no tariff for this offence. The circumstances of its commission and of offenders can vary greatly. Nonetheless we have reviewed a number of decisions of this Court in relation to the offence of assault on a female including R v Rennie CA281/91, decision 9 September 1991; R v Morris CA89/94, 25 May 1994; R v Baldwin CA518/95, 4 December 1995 and R v Nixon CA87/01, 19 June 2001 in which sentences of three months imprisonment, twelve months supervision, two months imprisonment and twelve months imprisonment (with leave to apply for home detention) were either upheld or substituted on appeal. The case of Nixon concerned a domestic assault which culminated in the complainant being kicked and injured as a result. The appellant had previous convictions. We are satisfied that the present sentence is beyond the range of penalties generally imposed for this offence.
[44] It is difficult to resist the conclusion that the sentence which the appellant received was at least in part influenced by the way he conducted himself at trial and at the sentencing. Certainly it is unfortunate that the Judge chose to describe the appellant’s personality in the very strong terms which he did. Observations of a personal kind may be unavoidable in the course of identifying the culpability of an offender for sentencing purposes. Here that was achieved in other passages of the sentencing remarks where the Judge referred to the offence itself and the manner in which the appellant conducted his defence. The further expression of opinion was we think unfortunate.
[45] This was a serious offence. The appellant was told not to enter the complainant’s home, but he persisted in doing so. The verdict in relation to count one indicates that the jury was satisfied that the appellant punched the complainant unexpectedly and in anger, not in self defence. His actions thereafter did not warrant criminal sanction. The only mitigating feature was that this was a first conviction for an offence of violence. In all the circumstances we are satisfied that the sentence imposed was clearly excessive. The sentence is halved, that is a term of five months imprisonment is substituted for the original ten months.
[46] Leave is granted to apply for home detention.
Solicitors:
Crown Law Office, Wellington Central
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