R v Wi

[2007] NZCA 96

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITON OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA259/05 [2007] NZCA 96

THE QUEEN

v

AARON MARK WI

Court:            Chambers, Chisholm and Gendall JJ Counsel:  R J Earwaker for Appellant

M F Laracy for Crown

Judgment:      27 March 2007         at 9.30 am

(On the papers)

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The convictions are quashed. C        A new trial is directed.

D        Bail  is  to  continue  on  current  terms  until  further  order  of  the

District Court.  Any application to vary bail terms is to be made to the

R V WI CA CA259/05  27 March 2007

District Court.  The appellant must present himself to the District Court at Tauranga at the callover scheduled for 9 am on 8 May 2007.

EAn order is made that the reasons for judgment not be published in the news  media  or  on  the  internet  or  in  any  other  publicly  accessible database until final disposition of the new trial.   Publication in a law report or a law digest is, however, permitted.

REASONS OF THE COURT

(Given by Chambers J)

Introduction

[1]      Following a trial before Judge Rollo and a jury, Aaron Wi was found guilty of wounding Constable Gavin Bennett with intent to cause grievous bodily harm and assaulting Constable Paul Horler with intent to injure.   Judge Rollo subsequently sentenced Mr Wi to an effective sentence of seven years’ imprisonment.

[2]      Mr Wi appealed against his conviction and sentence.  Once the Crown had read and considered the submissions filed by Mr  Earwaker, for Mr Wi, Crown counsel, Ms Laracy, filed a memorandum in which she advised that this court was “likely to find that a miscarriage of justice [had] resulted”.  She asked for a telephone conference.

[3]      At that conference, counsel agreed that they did not require an oral hearing unless  the  court  did.    I advised  counsel  that  each  member  of  the  panel  would consider the parties’ submissions separately; if any member of the panel wanted to hear from counsel, the original hearing date (of 23 April 2007) would be maintained. As it turns out, no member of the panel has felt it necessary to hear from counsel.

We have all been satisfied on the basis of the submissions filed that the appeal against conviction must be allowed.

[4]      The facts of the case relevant to the appeal can be briefly stated.  A fracas developed between the two constables and a group of people of whom Mr Wi was one.  It was the Crown case that, during that fracas, Mr Wi had hit Constable Bennett over the head with a beer handle.   The Crown further alleged Mr Wi had later assaulted the other constable by trying to gouge his eyes out.

[5]      There  is  no  dispute  that  Mr  Wi’s  instructions  to  his  trial  counsel, Mr Stephen Clews, a Whakatane lawyer, were that he had not been involved in using force against either constable.  The defence therefore was to be that the two police officers had misidentified Mr Wi as the person who assaulted them.

[6]      Mr Earwaker advances three grounds of appeal:

(a)     Mr Clews failed to follow instructions when making his final address to the jury.

(b)The judge misdirected the jury on an answer to a question asked by them during the course of their deliberations.

(c)     There  is  fresh  evidence  available  in  the  form  of  an  affidavit  from Mr Wi’s brother, Adam, who has confessed to being the person who hit Constable Bennett with the beer handle.

[7]      We do not need to deal with that third ground of appeal, as we are satisfied that the appeal must be allowed on the first two grounds.

Counsel’s failure to follow instructions

[8]      In the course of his final address to the jury, Mr Clews said:

Now I can put the defence to count 1 [the Bennett count] quite simply. That’s the wounding with intent to cause grievous bodily harm and it’s this.

Aaron Wi did not strike Constable Bennett with the handle or with anything else for that matter, excluding his fist.

[9]      Later, he said to the jury:

It’s absolutely right, that would be a proper inference for you to draw if you found  that  it  was  Aaron  Wi  who  was  wielding  the  glass  handle.    But punching somebody on the head doesn’t carry with it the same inference. You might be able to infer from repeated punches to the head an intention to injure, but you’ll all know as a matter of common sense that banging somebody on the top of their head only with your fist isn’t consistent and certainly not consistent beyond reasonable doubt with an intention to cause grievous bodily harm.

[10]     There can be no doubt that those statements carried with them an admission that Mr Wi had been involved in repeatedly punching Constable Bennett on the head. This was completely contrary to Mr Wi’s instructions to Mr Clews.   Mr Clews accepts in an affidavit he has filed in this court that “Mr Wi’s instructions were consistent that he had never hit either officer”, instructions, he says, which were confirmed in writing.

[11]     The judge then, not unreasonably, picked up on the “concession” made by

Mr Clews in his final address.  In summarising the defence case, the judge said:

Now what Mr Clews said about count 1 was that Aaron Wi did not strike Constable Bennett with a handle or anything else, other than with his fist. So the defence case is that Aaron Wi did strike the constable hammer blows over  his  head,  but  he  did  not  have  anything  in  his  hand  to  cause  the wounding,  nor  was  it  with  intent  to  cause  grievous  bodily  harm.    He illustrated that by saying Constable Bennett said that after he was initially struck on the head with the right handed hammer blow, he rugby- scrummaged Aaron Wi back into the corner at the far end of the alleyway and he had his head up against his chest with his body down, protecting himself because he alleged his left arm was being held, so that he could not use that and he was therefore trying to defend himself with his right hand. As Mr Clews illustrated, there were a series of blows that Aaron Wi struck at that stage to the head and shoulders of Constable Bennett that would be consistent with punching, as opposed to wielding the glass.

[12]     The law is clear that counsel may not take it upon himself to disregard his instructions and then to conduct the case as he himself thinks best: R v McLoughlin (1984) 1 CRNZ 215 at 216 (CA) and R v Walling CA355/05 20 March 2006 at [17]. Mr Wi’s defence to the Bennett charge was that he had not assaulted the officer at

all, not that he had repeatedly punched him to the head but had not struck him with the beer handle.

[13]     Mr Clews, to his credit, having now reviewed a transcript of his closing address, accepts, according to Ms Laracy, that “he went beyond his instructions in suggesting to the jury that his client did hit Constable Bennett”.

[14]     In the circumstances, we consider on this ground alone Mr Wi must have a new trial, as he was denied the opportunity to put his true defence to the jury.

Judge’s misdirection to the jury

[15]     The Crown case against Mr Wi so far as the Bennett charge was concerned was always framed on the basis that Mr Wi had hit the constable over the head with a beer handle.  That was reflected in Judge Rollo’s admirable written directions to the jury, where step 1 was framed in these terms:

Did Aaron Wi “wound” Constable Bennett by striking him on the head with a pint glass?

[16]     The reference to the pint glass (or beer handle) was repeated on a number of occasions in the oral part of the summing up.

[17]     During  the  course  of  their  deliberations,  the  jury  asked  the  following question:

May we consider that Aaron Wi may have caused and intended to cause grievous   bodily  harm   without   using   the   beer   handle   in   contrast   to His Honour’s notes on page 6?

[18] The reference to “His Honour’s notes on page 6” is a reference to the written directions and the question set out above at [15].

[19]     The judge gave a lengthy answer to this question.   The judge’s answer is neatly summarised in Ms Laracy’s submissions:

The judge’s response to the jury was that it was open to them to convict the appellant on the basis that the injury was caused with Aaron Wi’s fist, although that was not how the Crown presented the case, and they would have to be satisfied that the conclusion was consistent with the medical evidence.

[20]     Before the judge gave that answer, he consulted with counsel.  Mr Clews is adamant he told the judge that the proposed response was a material misdirection, as it was not consistent with the way the Crown had presented the case nor with directions previously given in the case.   (According to Ms Laracy, the prosecutor does not specifically recall this, but equally accepts that Mr Clews is probably right.) Notwithstanding Mr Clews’s objection, however, the judge proceeded with the answer quoted.

[21]     Ms  Laracy  fairly  concedes  this  was  a  misdirection  which  materially prejudiced the defence.  She makes the following points.

[22]     First, this came at such a late stage in the trial that defence counsel had no way of dealing with this alternative approach to count 1.  No counsel had closed on the basis that the charge might be based on wounding with a fist; nor had the judge directed upon that in his summing up.   The response to the jury’s question was a sudden departure from the directions consistently given up to that point.

[23]     Secondly, the likely cause of injuries is usually a matter for expert evidence. The only medical evidence called in the case was to the effect that the injury was consistent with striking with a “blunt instrument”.  There was no medical evidence that the wound could have been caused by a bare fist.

[24]     Thirdly, Mr Clews had put a very narrow defence to the jury in reliance on the fact that the Crown had “put all its eggs in one basket”.  If he had known that the judge would open the issue up for the jury, he would no doubt have closed and cross-examined  differently,  even  if  it  were  only  a  matter  of  emphasis  (eg  the defensive nature of any blows delivered by Mr Wi).

[25]     Fourthly, Mr Clews advised Ms Laracy that, had he known from the outset that the judge would allow the Bennett charge to proceed on the basis of an assault

by fists, he would have sought to cross-examine the doctor as to whether it was reasonably possible that fists could have caused the injury.

[26]     We accept all those reasons.  It was, with respect to the judge, clearly wrong to allow such a significant shift in the Crown case at that very late stage.

Result

[27]     When these two grounds of appeal are considered together, we are satisfied that there has been a miscarriage of justice.  There must be a new trial.

[28]     Mr Earwaker submitted that the errors made in respect of the Bennett count must also render unsafe the jury’s verdict on the Horler count, because Mr Clews’s acknowledgement  of  an  assault  by  Mr  Wi  (contrary  to  instructions)  must  have tainted the way in which the jury viewed the case as a whole.  Further, he submitted it was clear from the prosecutor’s closing address that the Crown relied on the evidence in respect of the Bennett count to support the Crown case on the Horler count.

[29]     Ms  Laracy  accepted  there  was  a  cross-over.    She  accepted  that,  if  the conviction on the Bennett count were quashed, the conviction on the Horler count must also be quashed.

[30]     For these reasons, both convictions are quashed.  A new trial is directed.

Bail

[31]     Last week, Mr Wi’s father died.   A judge of this court granted him bail pending the outcome of his appeal.   Bail is to continue pending the new trial, on current terms.

Solicitors:

Haigh Lyon, Auckland, for Appellant

Crown Law Office, Wellington