Rossi v The Queen
[2015] NZCA 539
•13 November 2015 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA373/2014 [2015] NZCA 539 |
| BETWEEN | JUSTIN MICHAEL ROSSI |
| AND | THE QUEEN |
| Hearing: | 2 November 2015 |
Court: | Stevens, Fogarty and Mallon JJ |
Counsel: | J A Dean and J D Dallas for Appellant |
Judgment: | 13 November 2015 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
The appellant, Mr Rossi, was charged with five counts, comprising assault with intent to injure, male assaults female, two counts of common assault and one count of assaulting a constable. Following his trial before a jury, Mr Rossi was acquitted of all but the charge of assault with intent to injure. The acquittals all related to events at a party on 2 June 2013. The charge on which he was convicted related to an altercation taking place between himself and his then fiancée, Ms Meiring, earlier in May 2013. Mr Rossi was convicted and sentenced for that offence to eight months’ imprisonment by Judge Barry in the Nelson District Court.[1]
[1]R v Rossi DC Nelson CRI-2013-042-1358, 9 July 2014. He has served his sentence and since been deported.
Mr Rossi now appeals against his conviction on that charge. He contends Judge Barry erred in allowing a key witness to refresh his memory with reference to the statement he gave police and that the Judge erred in his summing-up as to the directions he gave to the jury.
Background
The complainant, Ms Meiring, gave evidence that at some point during May 2013, Mr Rossi came into the cabin where he and the complainant were staying in Motueka. He was angry and had an outburst in relation to a co-worker of the complainant with whom he thought she was sleeping. He then placed the complainant in a “sleeper” or choke-hold. He restrained her by pushing her onto a bed and applied pressure to her throat from behind. The complainant had trouble breathing and then blacked out. Another person present, Mr Harte-West, witnessed these events.
The later events on 2 June 2013 also involved allegations of Mr Rossi arguing with the complainant and assaulting her. Mr Harte-West and his brother (Daniel Harte‑West) tried to intervene, leading to a fight giving rise to the common assault charges. Upon the police arriving, Mr Rossi attempted forcibly to resist arrest, leading to the charge for assaulting a constable.
Mr Harte-West gave a written statement to the police about both instances. In his statement, he described first the events on 2 June, then described how he saw Mr Rossi placing the complainant in a choke-hold on the earlier occasion. At trial, Mr Harte‑West gave evidence for the Crown. In the course of his evidence-in-chief, he was questioned by the prosecutor about the June events. It became clear to the prosecutor and to the Judge that Mr Harte-West could not recall the answers to a number of questions put to him. The Crown applied and was granted leave to furnish Mr Harte-West with a document containing his written statement to refresh his memory.[2] There was no objection by defence counsel to leave being granted and the Judge permitted the witness to look at the document.
[2]Under s 90 of the Evidence Act 2006.
After his conviction for assault with intent to injure in relation to the May choke‑hold incident, Mr Rossi raised with his trial counsel (not Mr Dean) the failure to object to the prosecutor’s s 90 application. Trial counsel withdrew from representing Mr Rossi and filed an affidavit setting out his account of material matters from the trial.
There are two issues on appeal:
(a)Whether Mr Harte-West ought to have been permitted to refresh his memory from the document shown to him?
(b)Whether the Judge correctly directed the jury on the element of intent to injure?
Refreshing memory
Mr Rossi contends Mr Harte-West should not have been allowed to refresh his memory and that doing so has occasioned a miscarriage of justice. Mr Dean contends that the Crown had only sought permission for Mr Harte-West to refresh his memory in respect of the June events, not the earlier incident. Mr Harte‑West’s evidence was therefore bolstered because it was given in reliance on the document and might have been seen by the jury as corroborative of Ms Meiring’s account of events during which Mr Rossi placed her in a choke-hold.
Mr Dean submits that the prosecutor, when he applied for leave to refer the document to the witness, had not attempted to adduce any evidence of the choke‑hold incident. Thus when Mr Harte-West refreshed his memory from the whole document, including his statements about the choke-hold, he was “primed”. The placing of the entire statement before the witness, while unintentional, was prejudicial and caused a miscarriage of justice.
The starting point for analysis is s 90 of the Evidence Act 2006. The relevant provision is s 90(5):[3]
For the purposes of refreshing his or her memory while giving evidence, a witness may, with the prior leave of the Judge, consult a document made or adopted at a time when his or her memory was fresh.
[3]Sections 90(1) and (2) prohibit using a document or allowing a witness to consult a document that has been excluded under ss 29 or 30. Section 90(3) requires every party in the proceeding to be shown the document if the document is proposed to be used to question a witness.
There are restrictions on the circumstances in which a witness may consult a document, while giving evidence. Section 90(4) provides:
(4) If a witness proposes to consult a document while giving evidence,–
(a)that document must be shown to every other party to the proceeding; and
(b)that document may not be consulted by that witness–
(i)without the prior leave of the Judge or the consent of the other parties; or
(ii)if the purpose of consulting that document is to refresh his or her memory while giving evidence, except in accordance with subsection (5).
These provisions codify a longstanding practice of permitting a witness to refresh memory where the witness has no or only partial recollection of the relevant events.[4] The section requires that a document used to refresh a witness’s memory while giving evidence must have been “made or adopted” at a time when his or her memory was fresh. Whether or not both parts of the test are satisfied is a question of fact for the Judge. The rationale for requiring a need to refresh the witness’s memory is to prevent artificially corroborating, priming or reconstructing the evidence in the witness’s mind, thus bolstering his/her testimony.
[4]Singleton v Police [2012] NZCA 618.
Both at common law and following the enactment of the Evidence Act, the key issues in allowing a witness to refresh his or her memory with reference to a document are: contemporaneity (whether the document itself has been made at a time when the witness’s memory was fresh);[5] and the need for refreshment (whether the applicant under s 90 has established that the witness needs to have their memory refreshed). There may also be an issue as to whether a witness is not being asked to “refresh” their memory, but rather is being asked to offer the document as evidence of the truth of its contents, thereby becoming an issue of admitting the document itself into evidence.[6]
[5]As to “made or adopted when the witness’s memory was fresh” see R v Foreman (No 8) HC Napier CRI-2006-041-1363, 28 April 2008; and R v Rongonui [2009] NZCA 279, [2010] 1 NZLR 742, aff’d in Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23 at [55].
[6]See generally Bruce Robertson (ed) Adams on Criminal Law — Evidence (looseleaf ed, Brookers) at [ED13.03]; Richard Mahoney and others The Evidence Act 2009: Act and Analysis (3rd ed, Brookers, Wellington, 2014) at [EV90.05]–[EV90.08]; and Sir Rupert Cross and David Mathieson (eds) Cross on Evidence (looseleaf ed, LexisNexis) at [EVA90.04]–[EVA90.09].
The issue of how a document is to be used once leave is granted under s 90 has received comparatively little attention. Mr Lillico referred us to a decision of the Full Court of the Supreme Court of Victoria, R v Baffigo, as authority for the proposition that once the witness is allowed to consult the document, counsel may not control the manner in which it is used by the witness.[7] This emanates from the general principle that, once the witness is allowed to refresh his or her memory by consulting a document, the party calling that evidence may not use that evidence in an improperly leading manner.[8] Section 90 does not address the manner in which a document, once leave is granted itself, is to be used by the witness and counsel.
[7]R v Baffigo [1957] VR 303.
[8]See for example R v Foreman (No 2) [2008] NZCA 55 at [50]. See also Rongonui v R [2010], above n 5, at [55], where Crown counsel had used a number of leading questions to take the witness through her previous statement to the police. Tipping J confirmed that s 90(5) does not permit a party who called the witness to lead the witness through the key part of a prior statement. For the interaction of s 90(5), s 89(1) (permitting the use of leading questions) and s 94 (declaring a witness hostile to permit leading questions on the basis of her previous testimony, see Woodhouse v R [2014] NZCA 80.
There is no dispute that Mr Harte-West gave his statement to police at a time when his memory was fresh.[9] The issue then is whether the Judge correctly determined Mr Harte-West needed his memory refreshed. When the question of refreshing memory arose as Mr Harte-West was giving his evidence-in-chief, no objection to that course was taken. In particular, trial counsel did not seek to restrict any refreshing by the witness from the document only as to the events in June. This tends to suggest a deliberate defence strategy, to which further reference will be made below.
[9]The second limb of s 90(5).
Section 90 of the Evidence Act speaks of the need to obtain the consent of the other parties or “the prior leave of the Judge”.[10] Plainly the statute contemplated judicial control of the granting of permission, having regard to all the circumstances of the case. This could include the nature of the evidence concerned, the time in the trial when the evidence is being given, whether the witness is giving evidence by way of evidence-in-chief, cross-examination or re-examination[11] and other relevant factors. Judicial permission to refresh memory is likely to be highly contextual. Part of that context is that the witness is, in most, cases likely to have been shown any statement they made by their counsel prior to giving evidence. Any further application to refresh memory would be simply a matter of assisting the witness to recall the events about which he or she is deposing in Court.
[10]Evidence Act, s 90(4)(b)(i).
[11]As occurred in R v Cho (No 3) HC Auckland CRI-2007-090-70, 11 September 2008.
Here the statutory requirements were complied with. As to whether the whole document could be referred to, there is nothing in s 90 to restrict that and we note that the section uses the word “document” rather than “statement” or “part of a statement”.[12] No objection was made by defence counsel to the witness’s reference to any part of the document, which the prosecutor sought leave from the Judge to adduce.
[12]See the definition of “document” in Evidence Act, s 5(1).
We accept that if thought appropriate, defence counsel might ask a judge at a point prior to leave being granted that the witness only refer to part of the document. Whether the extent to which the document was consulted was limited in that way would no doubt depend on all the circumstances and we anticipate that a judge may well accede to a defence request of that type. But it would be a matter for the trial Judge to assess in the light of all relevant factors.
We are satisfied that there was no error in the way in which Mr Harte-West’s statement was used to refresh his memory in this case. Even if we had found any technical breach, we are satisfied that nothing occurred in relation to Mr Harte‑West’s evidence that could be said to amount to a miscarriage of justice.[13]
[13]Compare the decision of this Court in Lahina v R [2008] NZCA 251 where the prosecutor had not established any lack of memory at all on the part of the witness but nevertheless had gained leave to refresh the witness’s memory by providing a written statement. This Court found this did not give rise to the risk of a miscarriage of justice.
We have already referred to the fact that trial counsel did not object to Mr Harte-West referring to his statement to the police. For completeness we note trial counsel said that he did not receive instructions from Mr Rossi to object to Mr Harte-West reading his whole statement and he (trial counsel) accepted that “the call was mine”. We see this as very much a matter of trial strategy that was judged by counsel at the time to be in the interests of the defendant. Trial counsel’s conduct was reasonable in the circumstances and, as we have said, could not be seen as creating a risk of any miscarriage of justice.[14]
Jury directions
Intent to injure
[14]As discussed by the Supreme Court in R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [66]; and R v Scurrah CA159/06, 12 September 2006 at [17]–[20]. See generally Hall v R [2015] NZCA 403.
Secondly, Mr Rossi argues the Judge erred by failing adequately to put the elements of the offence of assault with intent to injure and self-defence to the jury. The consequence is said to be that Mr Rossi lost the chance of an acquittal on the basis he was acting simply to calm the complainant down and stop her from hitting him.
A question trail clearly set out the three factual issues to be determined by the jury. The first question concerned whether Mr Rossi deliberately applied a choke‑hold to Ms Meiring on the bed in their cabin to the point where she appeared to lose consciousness. The second question squarely (and accurately) raised self-defence. The third question was whether at the time Mr Rossi intended to inure Ms Meiring. Relevantly, the question trail contained an accurate definition of “intent to injure”.
The Judge directed in accordance with the question trail. The relevant parts of Judge Barry’s summing-up are as follows:
[25] And then on count 1, the defence position is that it never happened. There was no chokehold applied in the cabin, that you could discount Joshua Harte-West’s evidence, there is no evidence from either the defendant’s interview or the evidence of Nicole Meiring of him even being there and the defence say it didn’t happen but if you were to accept that such an incident did happen, then whatever he did would have been self-defence and in any event you could never be sure there was an intention to injure because this was, on the accounts of what witnesses there were, a brief blackout and then she just went off to work pretty well straight afterwards.
[26] So the question is, are you sure he applied a chokehold to Ms Meiring, to the point she appeared to lose consciousness? If no, find him not guilty, if yes you go to question 1.2 [of the question trail] and consider whether you are sure that Mr Rossi was not acting in self-defence and you have got to be sure he was not acting in self-defence because it is for the Crown to disprove beyond reasonable doubt that he might have been acting in self-defence.
…
[31] If [self defence is rejected] then you carry on to 1.3 and 1.3 is are you sure that at the time Mr Rossi intended to injure Ms Meiring and if the answer is no you are not sure that he intended to injure her, you would find him not guilty on count 1 and if the answer is yes, then you would find him guilty on count 1.
As to the question of what “with intent to injure” means, Judge Barry gave the following explanation:
[32] The Crown submit that you can infer that intention from the actions and the circumstances. …
[33] … the Crown say well the degree of force and the circumstances in which it is applied and the duration until blackout leaves a situation, if you accept that happened, that the only logical conclusion is that he must have intended to cause her some injury. The defence say well it didn’t happen for a start but that if it did, on the face of what you heard about her recovering and going to work pretty well straightaway afterwards, that you can’t be sure that there was an injury and nor could you be sure that there was an intention to injure her. So that is a matter for you.
Mr Rossi contends the summing-up inadequately conveys that if the jury found he was not acting in self-defence, the Crown was still required to prove he had intent to injure. Specifically, counsel emphasises that Mr Rossi’s intent was not to injure, but merely to calm the complainant down. If his purpose was merely to calm her down, the requisite intent is not present. Accordingly, the jury direction was deficient.
This challenge has no merit. The summing-up set out above indicates, and the question trail confirms, the Judge carefully separated and explained the different elements of the offence, including the defence of self-defence, the detail of which is not challenged. The Judge also described the onus of proof operating on the Crown in each case. There was an explicit direction to consider whether Mr Rossi had an intention to injure Ms Meiring and the jury were specifically directed by the question trail to consider the issue of intent to injure separately from self defence and only if they had rejected that. Thus the Judge left the jury with a pathway to acquit Mr Rossi even if they rejected he was acting in self-defence.
It is also significant that the key aspect of the defence was that the choke‑hold in the cabin did not happen at all. Trial counsel did not seek in closing to run an alternative defence that Mr Rossi was trying to calm Ms Meiring down. To have done so would have risked discrediting the primary defence.
The primary defence was discussed in the Judge’s directions. All of the evidence was before the jury and it was open to them to consider the issue of Mr Rossi’s actions in the context of the narrative from the complainant that she started the assault. The jury would have addressed the jury questions in the question trail in the light of the Judge’s directions in what was a relatively simple factual scenario and on which the jury was able to form a view on the facts.
In any event, Mr Rossi has not shown that the failure of defence counsel and of the Judge to refer separately to Mr Rossi to try to calm the complainant down (in relation to the issue of intent to injure) and the defence of self-defence was a miscarriage of justice.
Unreasonable verdict
Mr Dean also referred briefly in the written submissions to a further ground of appeal that the jury’s verdict was unreasonable having regard to the evidence. This submission was not developed further in oral submissions.
We agree with the respondent’s submission that the high threshold for interference with a guilty verdict on the basis of unreasonableness or unsupportability is not met in this case. There was corroborated evidence from Ms Meiring that she had been put in a choke-hold to the point of unconsciousness. The jury could reasonably have been satisfied to the required standard that Mr Rossi was guilty. It was also open to the jury to reject self-defence, given that there was no corroboration in relation to Ms Meiring hitting Mr Rossi.
Even if the jury accepted Ms Meiring had been hitting Mr Rossi, it was still open to him to leave the room rather than applying a choke-hold to the point where Ms Meiring lost consciousness. There was a clear basis for the jury to consider that the choke-hold was disproportionate to any threat that Mr Rossi might have thought that Ms Meiring was presenting.
This ground of appeal as to the unreasonableness of the verdict has no merit.
Result
For the reasons given, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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