Stretch v R
[2020] NZCA 195
•29 May 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA571/2018 [2020] NZCA 195 |
| BETWEEN | ALBERT KARL LENIN STRETCH |
| AND | THE QUEEN |
| Hearing: | 29 April 2020 |
Court: | Cooper, Collins and Simon France JJ |
Counsel: | D A Ewen and J McVay for Appellant |
Judgment: | 29 May 2020 at 10 am |
JUDGMENT OF THE COURT
AThe appeal against the conviction under s 188(1) of the Crimes Act 1961 is allowed and the conviction quashed.
BA conviction under s 188(2) of the Crimes Act 1961 is substituted.
CThe matter is remitted to the District Court for sentencing on that charge.
DMatters of bail are to be considered in that Court. In the interim the appellant is remanded in custody until sentencing.
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REASONS OF THE COURT
(Given by Simon France J)
Following a jury trial before Judge Barry, Mr Albert Stretch was one of three defendants convicted of causing Mr Daniel Wiari grievous bodily harm with intent to do so.[1] The Crown case was that Mr Stretch paid his co-defendants to carry out the assault. Mr Stretch challenges his conviction on the grounds of material error in the Judge’s summing up. The consequential issue is whether this Court, if it agrees with the challenge, should direct a retrial or substitute a conviction for a lesser included offence.[2]
Facts
[1]R v Haddon DC Wellington CRI-2016-096-003566, 11 July 2018 (summing up); and Crimes Act 1961, s 188(1), maximum penalty 14 years’ imprisonment.
[2]Crimes Act, s 188(2), maximum penalty seven years’ imprisonment. This offence is causing grievous bodily harm with intent to injure or reckless disregard for the safety of others.
Two defendants, Messrs Haddon and Keepa, visited Mr Wiari’s house. During the visit Mr Wiari suffered serious head injuries caused by being hit with weights that were located in his home gym. Some months after the assault, in the course of a separate investigation, a telephone call between Mr Haddon and Mr Stretch was intercepted. The telephone call implicated Mr Stretch as the initiator of the assault. During the conversation Mr Stretch laid responsibility on Mr Keepa for taking things too far, and also expressed concern at the incident having put Mr Haddon in a bad situation. Mr Stretch stated:
The only reason I offered it to you fellas is ’cos I know that you’re a proud person and you didn’t want handouts … that’s why I wanted to give you something. Like the only reason I thought oh yeah, easy little tap-up for $1300 …
This was the basis of the Crown case against Mr Stretch.
Of the three defendants, Mr Haddon testified. He said Mr Wiari had a standing invitation on his Facebook page to have a boxing match, one on one, with anyone who wanted. Mr Haddon wanted to put up a stake of $1,000 for such a match, in return for a car Mr Wiari owned. Mr Haddon discussed the idea with Mr Stretch, who he said offered to put money up. Mr Stretch’s defence was that this evidence explained what he was talking about in the phone call.
Mr Haddon said he and Mr Keepa visited Mr Wiari, and they were all socialising, an activity that involved both alcohol and drugs. At some point Mr Wiari took offence and produced a gun which he pointed at Mr Haddon’s head. Mr Haddon said he assaulted him in response. Mr Wiari fell against the weights hitting his head. Mr Haddon assaulted him further. The respective defences were that:
(a)Mr Haddon did the assault, but it was in self-defence;
(b)Mr Keepa was present but was not involved, and the assault was, anyway, in self-defence; and
(c)Mr Stretch offered to put up money for a fight, did not know the other two defendants were visiting Mr Wiari on the particular occasion, and the assault was, anyway, in self-defence.
All defendants were convicted. However, of some relevance to the appeal is that at sentencing Judge Barry said he would not have ruled out a verdict based on excessive self-defence.
Error in the summing up
The Crown case was presented under the common purpose limb of s 66(2) of the Crimes Act 1961. The alleged common purpose was to assault Mr Wiari. This in turn meant the charged offence of intentionally causing grievous bodily harm went further than the initial common purpose. As regards Mr Stretch, therefore, the Crown had to prove:
(a)the charged offence was committed by one or both of Messrs Haddon and Keepa;
(b)the offence was committed in furtherance of a common purpose; and
(c)the charged offence was known by Mr Stretch to be a probable consequence of the common plan to assault Mr Wiari.
Of importance to the present appeal, Ahsin v R emphasises that Mr Stretch’s foresight, that is, his knowledge of a probable consequence, must extend to all elements of the charged offence.[3] Not only must he foresee that Mr Wiari would suffer grievous bodily harm, but also foresee that one or both of his co-defendants would intentionally inflict such harm. The question trail provided to the jury stated:
[3]Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [102]–[105].
3.1Are you sure Albert Stretch formed a common intention with Mr Haddon and/or Mr Keepa that they would assault Mr Wiari and he would assist them?
(assault means the intentional application of force by a person(s) to another)
If NO, find him NOT GUILTY and STOP.
If YES, go to 3.2.
3.2Are you sure he knew at the time of forming that intention there was a substantial or real risk that Mr Wiari would suffer really serious harm in that assault?
If NO, find him NOT GUILTY.
If YES, find him GUILTY.
Question 3.2 is in error. It requires the jury to be satisfied as to foresight of the physical harm, but does not instruct the jury it must also be satisfied that Mr Stretch foresaw that one of his co-defendants would intentionally inflict such harm.[4]
[4]The question should have continued (or addressed separately) “... and that Mr Haddon and/or Mr Keepa would inflict that harm intentionally”.
An omission of this type was present in Ahsin v R where it was held to constitute a miscarriage of justice,[5] and we consider the same applies here. For the Crown, Ms Thomson accepts there was an omission but submits no miscarriage had been occasioned. The chain of reasoning supporting this submission was that the jury was instructed correctly as to the elements of the offence as it applied to Messrs Haddon and Keepa. This meant the jury was satisfied that both men intentionally inflicted the harm. They committed “the offence”. In the body of the summing up, the Judge consistently talks of what was needed to prove that Mr Stretch had also committed “the offence” or “that offence”. The proposition is that the jury must have appreciated that Mr Stretch had to foresee both elements of the offence.
[5]Ahsin v R, above n 3, at [103]–[105] and [201].
We do not consider this meets the concern. Mr Stretch is entitled to have the jury correctly directed on the elements of the offence, and expressly on the need for him to have foreseen that one of his co-defendants would intentionally inflict grievous bodily harm. This is important when the charged offence is alleged to be not the common purpose but a foreseeable and foreseen more serious offence. For the reasons given in Ahsin, we likewise consider a miscarriage of justice has occurred.
A substituted verdict?
We address next the issue of a substituted verdict. If it is not a viable alternative, a retrial is required. If it is a viable alternative, we will then address the matters raised by Mr Ewen as to why the Court should not in its discretion substitute a verdict in this case.
The relevant power is s 234 of the Criminal Procedure Act 2011 which requires that:
(a)the substituted offence must be one for which the appellant could have been convicted at the trial; and
(b)the jury must have been satisfied about the facts that would prove the appellant guilty of the substituted offence.
Section 188 of the Crimes Act provides:
188 Wounding with intent
(1)Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.
(2)Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.
(Emphasis added).
The Crown submits a substituted conviction for an offence against the reckless disregard limb of s 188(2) is available. The appellant accepts this is technically correct. We briefly set out why that is so.
The structure of s 188 makes it plain that s 188(2) is a charge for which a defendant, charged with s 188(1), could be convicted. The difference between the two concerns only the mental state of the defendant. In order to have convicted Mr Stretch of the s 188(1) charge he faced, the jury as directed must have been satisfied beyond reasonable doubt that:
(a)Mr Wiari suffered grievous bodily harm at the hands of a co-defendant of Mr Stretch; and
(b)Mr Stretch foresaw that such serious harm could well happen as a consequence of carrying out the common purpose.
The second of these conclusions means the jury accepted that Mr Stretch actually realised at the time of his involvement that grievous bodily harm was something that could well happen at the hands of one or both of the other two men. If he was able to foresee that level of harm arising as a consequence of the common plan, necessarily he foresaw that it was going to be inflicted by one of these two men, either intentionally or recklessly. Accordingly, we are satisfied that the preconditions set out in s 234 of the Criminal Procedure Act are met, and a substituted conviction under s 188(2) is available.
Should a different conviction be entered?
Mr Ewen submits that substitution is inappropriate because of other errors in the summing up. First, he submits that the District Court erred in its direction on the meaning of “probable consequence” in s 66(2) of the Crimes Act — “if the commission of [the] offence was known to be a probable consequence” of the common purpose. Judge Barry directed the jury that probable consequence means that “the person knew there was a substantial or real risk of that offence occurring”. This was repeated in the question trail.
Mr Ewen submits that in using the “substantial or real risk” formulation without more, the Judge conveyed to the jury a lower standard of possibility, instead of the required standard of likelihood. In criticising this, Mr Ewen is in effect renewing submissions made to the Supreme Court in Ahsin about the correctness of this well-established formula. The criticism is that it diminishes the statutory test of “probable”. In Ahsin, the Supreme Court did not consider there was any reason to revisit the matter, and we adopt the same approach.[6] The District Court did not err.
[6]Ahsin v R, above n 3, at [98]–[101].
The main argument advanced against substitution focuses on the role self‑defence played in the trial, given that when sentencing the defendants, the Judge accepted the possibility that the verdict was based on excessive self-defence. Mr Ewen submits that this means it is possible that the assault on Mr Wiari came about because Mr Wiari did something unexpected, namely pointed a gun at Mr Haddon. It would have been impossible for Mr Stretch to have foreseen these events occurring, and this was a possibility that needed to be addressed in the summing up.
Mr Ewen submits the jury should have been warned that if Mr Wiari did produce the gun, and if the serious harm occurred as a result then those facts are relevant to whether Mr Stretch foresaw grievous bodily harm occurring. Mr Stretch could not foresee these things, so it is less likely he foresaw serious harm occurring.
We do not agree there has been an error. We agree Mr Stretch could not have foreseen the self-defence events but that does not matter. The jury was clearly directed that Mr Stretch must foresee that unlawful grievous bodily harm was something that could well happen to Mr Wiari as a result of the common purpose. If he foresaw that, as the jury verdict necessarily found he did, it does not matter exactly how the serious harm came about. It is the unlawful harm that must be foreseen, not the exact circumstances surrounding its infliction.
A third challenge to the summing up concerns the order in which the jury were directed to consider mens rea and self-defence. In a recent decision of this Court, TobinvR, it was held to have been an error to have told the jury first to determine the mental element of the offence before considering self-defence.[7] That was the sequence followed by Judge Barry in this case as well.
[7]TobinvR [2020] NZCA 66 at [28]–[30].
We do not consider Tobin to have laid down a general rule, but rather to be a decision on its own facts.[8] There are other authorities that have held the sequence does not matter, or at least that following this alternative sequence has not caused a miscarriage of justice.[9] We observe that a proper consideration of self-defence will necessarily involve the jury in considering a defendant’s mental state both in terms of the perceived threat and the intended force used in response. The need to consider the defendant’s subjective intentions are inherent in both self-defence and mens rea. It will seldom be the case that where a jury is properly directed on both aspects, a miscarriage of justice will emerge from the sequence in which the jury was invited to consider the issues. We do not consider one to have arisen here.
Conclusion
[8]This is apparent in the Court’s finding that “failing to direct on self-defence prior to the elements of the charge will not necessarily result in a miscarriage of justice” at [28]. Another example of the Tobin position is WangvR [2014] NZCA 251 at [27] where putting self‑defence first was said to be a matter of logic, but it was not held that not doing so would occasion a miscarriage of justice.
[9]MafivR [2015] NZCA 408 at [26].
We are satisfied in the circumstances of the case that the appropriate approach is to allow the appeal, quash the conviction under s 188(1) of the Crimes Act, and substitute a conviction under s 188(2). The parties were agreed that if the Court were to follow this approach, sentencing should be remitted to the District Court, and we will order accordingly. Matters of bail are to be considered in that Court. In the interim the appellant is remanded in custody until sentencing.The appeal is allowed on the terms just set out.
Solicitors:
Crown Law Office, Wellington for Respondent
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