Steven James Nixon v The Queen

[2001] NZCA 469

IN THE COURT OF APPEAL OF NEW ZEALAND  CA87/01

STEVEN JAMES NIXON

V

THE QUEEN

Hearing:         19 June 2001

Coram:           Gault J Robertson J Hammond J

Appearances: R.E. Neave for Appellant

J.C. Pike for Crown Judgment:       19 June 2001

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

1. On 23 February 2001 Mr Nixon was convicted by a jury of male assaults female, in a District Court trial in Christchurch. The charge was laid under s194(b) of the Crimes Act 1961. On 9 March 2001 he was sentenced to 12 months imprisonment. Leave was granted to Mr Nixon to apply for home detention. Mr Nixon now appeals against both his conviction and his sentence, to this Court.

The Conviction Appeal

1. By his notice of appeal, Mr Nixon raised a number of issues. These went to the competence of his trial counsel (not Mr Neave); he suggested that in various ways he

had had inadequate time to prepare a defence; and he said that the verdict was against the weight of evidence.

1. In this Court, Mr Neave responsibly narrowed the focus of the conviction appeal to state the issues now raised, this way:

Whether the appellant had adequate time to prepare his case once initial counsel stood down, and whether in all the circumstances there has been a breach of s24(d) of the New Zealand Bill of Rights Act 1990 and/or a miscarriage of justice has occurred.

1. The background to the case can be shortly stated. The Crown case was that early in the morning of 17 August 2000 Mr Nixon was at his flat in Christchurch. A female flatmate, H, arrived at the flat. An argument developed between these two persons regarding the tidiness of the house. Mr Nixon told H to leave. She refused to do so. She said it was her house also. Mr Nixon then grabbed H by her top and pushed her out of the door, thereby causing her to fall onto a concrete area outside; and Mr Nixon then approached her, and kicked her three times in the back across the tailbone. This caused some bruising to the back of her thigh and her right hip area. There was a distinct contest as to whether Mr Nixon was wearing combat boots at the time. Undoubtedly H was bruised, and she had to have an x-ray. She was provided with crutches for six days. After the alleged assault, H left the address. She kicked the side of Mr Nixon’s car as she did so.

1. Mr Nixon’s version of events was that he told H to leave because she was too messy; and that she in fact exited the house through a door, but then tried to re-enter, after he had shut this door. He said H then suggested that there had been an assault on her. He disputed that assertion - through the half open door, which he had opened – and she left. He then shut the door, and he heard the noise of his car being kicked.

1. On the verdict which it returned plainly the jury accepted H’s account of this incident; and it found the essential ingredients of the charge proved, to the criminal standard.

1. The events leading to the complaint before us - that the trial was precipitately and inappropriately advanced - are as follows. The assault was on 17 August 2000. Legal

aid was granted to Mr Nixon on 8 September 2000. Mr Fogarty was assigned. A pretrial conference was held on 23 January 2001 to settle a trial date. A provisional date was set for the week of 12 February 2001. On 12 February 2001, Mr Fogarty sought leave to withdraw. He advised the Court that Mr Nixon no longer had confidence that counsel would adequately present his defence at trial. There is no affidavit as to what the difficulty was between Mr Fogarty and his client.

1. On 13 February 2001, Mr Hlavac was assigned, on the strict understanding that the trial was to proceed on 15 February 2001. Then at 2.15pm on 14 February 2001, Mr Hlavac sought an adjournment of the trial, on the grounds that he had not been able to discuss matters with Mr Nixon, and that Mr Nixon had indicated that he was concerned whether he could arrange for several prospective defence witnesses to attend on the trial date. That application for an adjournment was refused by Holderness DCJ. On 15 February 2001, Mr Hlavac indicated to the Court that he would not be able to conduct Mr Nixon’s defence. The Court then granted an adjournment, until 22 February 2001. Mr Nixon was on bail, and he was thus able to assist in the trial preparation, if necessary. The trial in fact commenced on 22 February 2001 before Noble DCJ and a jury. Sentence was later also passed by Noble DCJ.

1. Mr Neave accepted that whether it is viewed as an issue arising out of s24(d) or s25(a) or (f) of the New Zealand Bill of Rights Act 1990, or under s385(1)(c) of the Crimes Act 1961, “the issue is the same: namely whether on the facts of this case there has been a miscarriage of justice”. Reference was made to R v De Montalk (Court of Appeal, CA66/98, 25 June 1998); R v Solomon (Court of Appeal, CA422/97, 24 February 1998); and R v Shaw [1992] 1 NZLR 652.

1. Mr Neave made an application for leave to adduce affidavits from Mr Hlavac, and a Christchurch solicitor, Mr Glover. That is not unusual in cases of this kind. The Crown did not oppose the admission of those affidavits. We grant the leave sought.

1. Mr Hlavac deposed to the difficulties he had faced as counsel appointed on short notice. He has deposed there was plain evidence which Mr Nixon wished to have called. And that Mr Nixon wished to give evidence himself. He subsequently did

so. Of these four potential witnesses, one was able to offer evidence concerning the complainant's demeanour after the assault. That witness was in fact briefed, and she gave evidence at trial. The three remaining potential witnesses all provided information which amounted to generalised suggestions of bad character in relation to the complainant. Mr Hlavac took the view that evidence of that character would not be admissible.

1. The only allegation of any specificity was a suggestion from one of these potential witnesses that the complainant had previously made an allegation of criminal conduct of a sexual character, which had subsequently been demonstrated to be false. Mr Hlavac took the view that this false allegation, if such it was, in the context of a defence that the complainant was not telling the truth, might be significant. But he said he had insufficient time to properly pursue that matter.

1. It is that, and only that, issue which now forms the basis of the appeal against conviction. Mr Nixon complains that he was wanting to advance the proposition that because H had made a false suggestion elsewhere, she could not be considered reliable in this instance – or that at the very least, it threw doubt on her credibility in the instant case. But he says that, in the events which occurred, he was prevented from doing so.

1. The first point to be made, is that it does not at all follow that any such incident would necessarily make H unreliable in the trial we are reviewing.

1. Secondly, assuming a question of the kind sought to be put had been put to the witness, she might have answered in the affirmative. That would seem to indicate an open and responsive witness. If she had answered in the negative, the defence would then have been squarely confronted by what is often referred to as the Hitchcock rule: that answers given by a witness to questions put to her in cross-examination concerning collateral facts are treated as final, and cannot be contradicted by extrinsic facts. The rationale is that without such a rule there is the danger – as here - that litigation will be will be prolonged and become side-tracked into subsidiary issues, or even other cases not before the Court. (See the classic statement by Pollock CB in

A.G. v Hitchcock (1847) 1 Exch 91, at 99; 154 E.R. 38,42). It is well established that

the Hitchcock principle applies to the parties as well as to ordinary witnesses. And it is undoubtedly the case that there are some exceptions to the rule, which we need not traverse here. Essentially, they go to whether there is a sufficient connection to the relevant issue in the case presently before the Court. It has to be, at best for the defence, distinctly problematic whether – in the event of a negative answer – an attempt to contradict that answer in this case would have been permissible. Finally, on this point, Mr Glover’s affidavit is itself a classic example of the difficulties inherent in trying to establish what happened in some other incident which is not squarely before a trial Court.

1. Thirdly, it is even more problematic what, if any influence, such evidence might have had if admitted. Mr Neave stressed, and rightly so, that credibility was in issue. That has to be so. But we are unable to accept that, even if properly before the jury, this item of evidence might have had the cogency argued for. We are not persuaded that the result of the trial would have been any different.

1. Fourthly, Mr Nixon was, to a distinct extent, the author of his own misfortune, if such it was. He plainly knew about witnesses he might wish to have called some weeks before the first trial date. Up until the point of time he dismissed his first counsel, he had in fact engaged in some preparation for his case. Then, he was given a seven day adjournment. The case was not complex, and Mr Nixon did not make himself available at times, in an appropriate way, for counsel.

1. It has not been demonstrated to our satisfaction that there was a miscarriage of justice of a character which requires the intervention of this Court. The appeal against conviction accordingly fails.

1. In fairness to the named counsel, and in particular Mr Hlavac, we note that in this Court counsel rightly made no criticism of their conduct of the case. Counsel had done all they could to advance Mr Nixon’s case fully.

The Sentence Appeal

1. Mr Nixon was sentenced to 12 months imprisonment. The Judge declined to suspend the sentence.

1. The Judge determined that s5 of the Criminal Justice Act 1985 applied, because there was a serious danger to the safety of the complainant. And he took the view that even if he was wrong about that point, a prison sentence was warranted because of Mr Nixon’s previous convictions. The Judge found this to be “a vicious, spiteful, and nasty assault on a demonstrably vulnerable and needy young woman”.

1. Mr Neave took issue with this reasoning. He said that this case could not be said to come within s5 of the Criminal Justice Act 1985. He accepted that the conduct was disgraceful and unpleasant, but he said that even if it was regarded as spiteful and nasty it nevertheless was not a vicious assault or one that “attracts the epithet of serious violence or danger”. Even if the section does apply, he suggested that too much weight had been placed on Mr Nixon’s previous convictions.

1. Mr Pike submitted that the Judge was entitled to rest his sentence on Mr Nixon’s record of violence, coupled with the circumstances of the particular offence. He submitted that “ it must be seen as inevitable on a second offence involving moderate violence that a truly deterrent sentence was unavoidable”.

1. The Pre-Sentence Report notes that Mr Nixon had moved to the South Island from New Plymouth to distance himself from a skinhead group with whom he had been associating there. After arriving in Christchurch he had rented a number of properties before purchasing a motor home in which he and his family resided. At the time of the offending, he was living in rental property with his partner and their children. Mr Nixon has had intermittent employment. His criminal record is a relatively extensive one. It commenced in September of 1985. It includes a respectable number of convictions. Those relevant here, are assaults and threatening behaviour; disorderly behaviour; a 1993 offence for male assaults female (which led to a six months sentence of imprisonment); and fighting in a public place. Mr Nixon has a history of non-compliance with sentences of periodic detention, in the early

1990s. In the particular circumstances, the Probation Service recommended a sentence of imprisonment.

1. As to the mode of sentence, in our view this case was within s5. The victim was evicted, from a house, by being manhandled outside, in such a manner that she landed on concrete, and she was kicked three times. The Judge did not find it necessary to determine whether Mr Nixon was wearing combat boots. We agree that is of no particular significance in this case. This was serious violence of a kind contemplated by the statute. Having said that, even absent s5, this was a serious case, particularly when it is viewed, as it must be, against the relevant criminal record of the appellant. This was, undoubtedly, for the victim, an undignified, traumatic and violent event of a kind which society and the Courts will not tolerate. As such, and given the previous record, a sentence of imprisonment was entirely appropriate.

1. As to the term of imprisonment, this was a firm sentence, but we do not consider that it can be said to have been manifestly excessive. The circumstances in which the offending occurred; the particular facts of the incident; and (particularly) the fact that Mr Nixon has a record of violence to women all pointed to a sentence of some months imprisonment. We are not prepared to say this sentence was outside one which was available to the sentencing Judge.

Appeal dismissed.

Solicitors:

Crown Law Office , Wellington for Respondent