The Queen v Barrett

[2008] NZCA 474

IN THE COURT OF APPEAL OF NEW ZEALAND

CA303/2008
[2008] NZCA 474

THE QUEEN

v

KELLY SEAN BARRETT

Hearing:13 October 2008

Court:Arnold, Randerson and Hugh Williams JJ

Counsel:W C Pyke for Appellant

M D Downs for Crown

Judgment:7 November 2008 at 3.30 pm 

JUDGMENT OF THE COURT

A        An extension of time within which to appeal is granted.

B        The appeals against conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Hugh Williams J)

Background

[1]       Following a jury trial in the Hamilton District Court the appellant, Mr Barrett, was convicted on two counts of injuring a woman on 6 and 9 October 2006 with intent to injure her or cause her grievous bodily harm.  The charges arose out of incidents in a car and at her house.  He also pleaded guilty to one count of attempting to pervert the course of justice.

[2]       He now appeals against his conviction in relation to the incident at the woman’s house on the basis of her later possible recantation in respect of some of her evidence concerning that incident.

[3]       On 20 April 2007, Mr Barrett was sentenced by Judge Wolff to six years imprisonment on the count relating to the incident in the house, three years imprisonment on the count relating to the incident in the car and two years imprisonment on the charge of perverting the course of justice, with all terms to be served concurrently.

[4]       Mr Barrett also appeals against the six year sentence of imprisonment on the basis that determination of the conviction appeal in his favour should have consequences for the overall sentence.

[5]       Understandably in the circumstances, Mr Barrett’s appeal was filed out of time.  He seeks an extension of time within which to appeal.  The Crown raised no opposition.  Leave is granted accordingly.

Facts

[6]       In her trial evidence, the complainant related an incident in a moving car on 6 October 2006 in which, despite her being the driver, she was punched in the face and eye.  Three days later, at her house, her evidence was that the appellant hit her about five or six times on the body with a curtain rod, attempted to throttle her and kicked her while she was on the ground.  She also said he punched her and pulled her hair, dragging her off the bed.  She said she was concerned for her life at being hit in the head because of an earlier brain injury.  Mr Barrett was aware of that injury.

[7]       In cross-examination it was put to her that the beating with the curtain rod never occurred – something repeated by the appellant in evidence – but she firmly refuted that.

[8]       Her bruising and other injuries were seen by her daughter who arrived soon after the incident.  She had bruising to her neck and other injuries which a doctor confirmed were consistent with blows from an instrument such as a curtain rod.

[9]       On 8 November 2007, over a year later and while the appellant was in custody, the complainant wrote to him.  Amongst a number of emotional and other observations, she said:

… the rod, yeah, I don’t no [sic] how that came about I had brusing [sic] accross [sic] my back I couldn’t say if you used it or not I don’t really care anymore.

[10]     When that passage came to the Crown’s attention in preparing for this appeal, arrangements were made for the complainant to be re-interviewed.  That occurred on 28 August 2008.  The complainant made a statement saying among other things that the letter was written in reply to one from the appellant.  We did not see that letter.  She refused to swear an affidavit supporting that statement.  The Crown, properly, did not rely on her statement and we have put it to one side.

Law

[11]     Where the issue of fresh evidence arises on appeal, the correct approach is as set out in R v Bain [2004] 1 NZLR 638 at [22]‑[27] (CA). There it was held that courts must first consider freshness; secondly, credibility; and thirdly, “whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial”: see also R v Barr (Alistair) [1973] 2 NZLR 95 at 98 (CA) and R v K (An Accused) [1984] 1 NZLR 264 at 270 (CA).

[12]     Since Mr Downs for the Crown accepted the letter was fresh evidence, it is unnecessary for us to consider that aspect, which leaves the two remaining points for consideration.

Submissions

[13]     Mr Pyke – counsel for the appellant though not trial counsel – submitted that the jury had to determine which of the conflicting accounts of the events of 9 October it preferred.  He asked whether, with the complainant resiling after trial from the serious allegation of the use of a weapon on her, a miscarriage of justice may now be said to have resulted.  He submitted the use of the curtain rod must have been a significant plank in the Crown case.  Cross-examination as to the complainant’s doubts concerning the use of that weapon may have led the jury to doubt the credibility of both that evidence and the balance of her assertions – though he made clear the appellant was not trying to argue that the change concerning the curtain rod evidence undermined the Crown’s evidence on all counts.

[14]     Mr Downs submitted that, though the complainant’s letter amounted to fresh evidence, it did not follow that its receipt meant the appellant suffered a miscarriage of justice.  Based on the authorities, he submitted the Court was not duty bound to accept that, by reason of the letter, the complainant’s trial testimony was inherently unreliable.  All it showed was deep ambivalence in her attitude to the appellant.  He stressed the evidence supporting the conviction under challenge was far from confined to the use of the curtain rod.  It involved a number of other assaults on the day in question including the attempt to strangle the complainant and kicking her, including injuries to the head.  The appellant’s explanation in evidence was, he submitted, implausible.

Discussion and decision

[15]     The position concerning the evidence on the 9 October count was, in our view, correctly summarised by the Judge in his summing-up.   He made plain that the “mark on the neck from the throttling … alone can support this charge” if the jury took the view it occurred with the requisite intent.  The Judge also said it “can also be from the use of a curtain rod … but both or either of those incidents could support the charge, as could the kicks that were described on that day or any punches that were done to the head”.  The curtain rod was not, he said, “some sort of talisman on which this count depends”.  There was “far more to this count than simply the curtain rod”.

[16]     The Judge appeared to give rather more prominence to the curtain rod incident in sentencing but linked those remarks to recording the appellant punching the appellant and dragging her to the floor despite her head injuries.  Each blow, he said, had the “potential to cause very, very serious harm indeed”.

[17]     We take the view the trial Judge was justified in addressing the issue as he did, both in summing-up and in sentencing. 

[18]     The complainant’s evidence was of a number of assaults on her on 9 October.  As a result she suffered the moderately severe injuries shown in the photographs.  Depending on the jury’s view, any or all of those assaults could have amounted to proof of her being injured by the appellant with intent to cause her grievous bodily harm.  Certainly it could not be said that only injury arising from the curtain rod would have satisfied the requirements of the charge. 

[19]     Further, the letter the complainant wrote was in response to one from the appellant, apparently demanding an explanation as to why her evidence had not reflected his assertion that the curtain rod was never used.  As noted, that letter was not before us and it is therefore difficult to see her letter in context.  Her reply is ambiguous about use of the rod and her choice of words may well reflect her general ambivalence, so well reflected in the letter, as to the nature of her relationship with the appellant.  The letter also seems to confuse the two aspects of use of the rod and the injuries to her back.  Overall, the complainant’s letter is, at best, equivocal.  Further, even if the letter had been less equivocal, given the absence of sworn evidence from the complainant or the opportunity for cross-examination, we would not be able to assess the credibility of her “recantation” as required by the authorities.

[20]     We take the view that in those circumstances the appellant has not demonstrated that the complainant’s letter relating to the 9 October count may have given rise to a miscarriage of justice such that a new trial on that count is justified.  There was ample evidence to support the appellant’s conviction on that count irrespective of the now equivocal evidence as to the appellant’s assault on the complainant with the curtain rod.

[21]     Accordingly no basis is made out to order a new trial on the 9 October count. The appeal against conviction on that count is accordingly dismissed.  As a consequence, the appeal against sentence is also dismissed.

Solicitors:

Crown Law Office, Wellington