The Queen v Brown
[2008] NZCA 156
•9 June 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA392/07
[2008] NZCA 156THE QUEEN
v
MATTHEW RICHARD BROWN
Hearing:26 May 2008
Court:William Young P, Randerson and Harrison JJ
Counsel:C J Tennet for Appellant
B M Stanaway for Crown
Judgment:9 June 2008 at 2.30 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
An appeal against conviction
[1] Following a trial before Judge Doherty and a jury in the District Court at Christchurch, the appellant was found guilty of injuring Mark Oakenshield with intent to injure him. He subsequently received a community based sentence.
[2] He now appeals against conviction.
[3] In support of the appeal against conviction, Mr Tennet argued that:
(a)The appellant was incompetently represented by his counsel;
(b)The Judge should have declared a mistrial because of Mr Oakenshield’s conduct in the witness box;
(c)The prosecutor’s cross-examination of the appellant and closing address were illegitimate;
(d)The Judge misdirected the jury on self-defence; and
(e)The Judge misdirected the jury as to the standard of proof.
We will discuss the case primarily by reference to these contentions but, before we do so, we must say something about the factual background and the course of the trial.
The factual background and the course of the trial
[4] The case arose out of an incident which occurred at around 9.15am on Thursday 9 March 2006 outside the Crichton Cobbers gymnasium on Chester Street East, Christchurch. The appellant and Mr Oakenshield were both members of the gymnasium.
;There had been some bad blood between them but this was not explored in any detail at trial.[5] The Crown case was along the following lines. The appellant saw Mr Oakenshield outside the gymnasium and rushed towards him. He then headbutted Mr Oakenshield in the face and punched him repeatedly to the head. The appellant then pulled Mr Oakenshield to the ground where the struggle continued. Eventually Mr Oakenshield was able to push the appellant away and stand up. But this resulted in the appellant biting his right middle finger and headbutting him again.
[6] The defence case, supported primarily by the evidence of the appellant but also to some extent by a Mr Douglas Shaw, was that the incident started with Mr Oakenshield assaulting or threatening to assault the appellant. So the defence at trial was essentially one of self-defence although whether the appellant had intended to injure Mr Oakenshield was also in issue.
[7] The appellant’s evidence was that he lost his two front top teeth in the struggle. Mr Oakenshield’s response was that the appellant just spat out a plate to suggest that he had been struck in the face. His primary reason for saying this seems to have been his contention that he had not landed a punch on the appellant.
[8] The primary witness for the Crown was Mr Oakenshield. He received reasonably serious injuries in the altercation and, on his account of events, had every reason to be resentful and indeed angry about what had happened. But the same is true of many (perhaps most) complainants who give evidence in criminal trials and yet do so in a restrained way. Mr Oakenshield’s evidence, however, was not characterised by restraint. He was instead an obstreperous and non-compliant witness who took every opportunity to criticise the appellant.
[9] The tone of his evidence is perhaps captured by the way it started, at the point when he was asked to identify the appellant. He answered in this way:
Yes, that’s Mr Matthew Brown over there, the man who viciously and cowardly [sic] assaulted me that morning.
Later, defence counsel, perhaps slightly provocatively, suggested to Mr Oakenshield that he was fit and a “big strong lad”, and received the following response:
Well I do my best yes. And I’d like to say here that it’s not me that’s the trained fighter, boxer or exponent of seido karate as your client is.
When defence counsel by mistake referred to a statement which Mr Oakenshield had made on 10 March 2006 as having been made on 9 March 2006, he talked over counsel saying:
You are trying to mislead me because this happened to me on the 9th of March. At 9.15 I had my face rearranged by your client who’s sitting over there laughing at me but it’s no joke to me and I am here today – I’ve waited near on 18 months to have justice and I will have it.
There were many similar outbursts.
[10] On two occasions Mr Oakenshield said that he was not a violent person and did not have a criminal record. The more detailed assertion to this effect came by way of response to the suggestion that, at the end of the incident, he had told the appellant that he was going to jail:
Damn right, and I hope that he does go to jail, I’d say this right now if I may, I don’t have a criminal record, I’ve never been a violent recidivist re-offender, and I’m very proud of that, and I would tell you this, if I went round punching everyone’s head in whoever I have a disagreement with, or over sport, or values or training, then I would have been in prison a long time ago in my life and I would have had a long criminal record, which I don’t, and I’m proud of.
[11] Mr Craig Blackwell, another member of the gymnasium and one who knew both the appellant and Mr Oakenshield, observed the altercation. He saw the appellant headbutt Mr Oakenshield. On the Crown case, this would appear to have been the second head butt. The drift of his evidence supported Mr Oakenshield’s account of events, save that he thought that Mr Oakenshield had hit back at the appellant a couple of times following the head butt. He also said that he saw the appellant spit his teeth out and confirmed that it was not a plate.
[12] Mr Mark Neame, the manager of the gymnasium, gave evidence which supported the Crown case. He suggested that, in the period leading up to the altercation, the appellant was angry with Mr Oakenshield.
[13] There was also evidence of a statement made by the appellant in the immediate aftermath of the incident at the police station. In this statement the appellant claimed that he had been defending himself but did not assert that Mr Oakenshield had thrown the first punch.
[14] As already indicated, the appellant gave evidence in his own defence. This evidence was broadly consistent with what he had told the police but was rather more expansive and detailed. In particular he asserted that Mr Oakenshield had thrown the first punch. In the course of this evidence he said:
I’ve never been involved in anything like this in my life …
At the conclusion of his evidence in chief, the Crown prosecutor sought leave to cross-examine him on his previous convictions (which we discuss later in the judgment). This application was declined by the Judge.
[15] The appellant was cross-examined about his statement to the police and, in particular, apparent inconsistencies with his evidence in chief:
Question:So you were warned and cautioned that anything you could say could be used again in a trial.
Answer:I had the opportunity to make a statement or just leave so I chose to make a quick statement because – and I only made a brief statement because I honestly was under the impression I was never going to be charged with assault.
Question:The reality is, is that you’ve looked at all the Crown evidence and you are trying to patch it up now aren’t you?
Answer:No that’s not true.
[16] Later he was cross-examined on what happened at the beginning of the altercation:
Question:I want to take you through your evidence again today and ask you some questions about that. You say that you were laughing at Mr Oakenshield as you approached the doorway to the gym.
Answer:That’s correct.
Question:And you believe that he went to throw a punch at you.
Answer:No.
Question:In your evidence today you said, you said “I believe that he went to throw a punch at me, well he did throw a punch at me so I threw a punch back”. Correct.
Answer:There was no doubt in my mind that there was going to be a fight there is no doubt in my mind Mark Oakenshield was going to fight me.
Question:And that’s based on a prior belief that you had that he was going to fight with you.
Answer:No it was based on his actions.
Question:Didn’t you say in evidence that you heard he’d been going round saying he was going to give you a hiding.
Answer:Yes.
Question:But none of those witnesses are here to give evidence to say they’d heard Mark Oakenshield saying that are they.
Answer:Um, well after the altercation I was banned from, I wasn’t allowed to go anywhere um, near the gym um, otherwise um, I’d been arrested.
Question:You haven’t told the police about the names of those other witnesses that you say, other witnesses or other people who told you that Mark Oakenshield made a threat to you.
Answer:I didn’t say that he had made a threat to me at all, he never made a threat to me. He was just basically going around like you know boys stuff I’m going to knock him over or beat him up.
[17] The defence witness, Mr Shaw, was employed as a cleaner at the gymnasium and, for this reason, knew both the appellant and Mr Oakenshield. He did not observe the start of the altercation but did participate at the end when he tried to separate the two men. He said that Mr Oakenshield at this stage would not let go of Mr Brown and was saying, “You are going to jail for this” and was completely out of control. Mr Oakenshield had blood coming out of his mouth and he was trying to spit the blood onto Mr Shaw and the appellant. He said that Mr Oakenshield dislodged the appellant’s teeth while attempting to grab his face.
[18] In her closing address, the prosecutor obviously made something of the fact that the appellant’s evidence of details of the way in which the fight progressed had not been put to Crown witnesses. We say this because when the Judge came to sum up, he paraphrased aspects of the prosecutor’s closing address in this way:
[54] … She said his description of how the fight progressed and the scenario of the restraint hold was unlikely and you should discount it; it’s the first time it’s been disclosed when it could have been disclosed in the statement to the Police; it was not put to the Crown witnesses by defence counsel… .
First contention: the appellant was incompetently represented by his counsel
Overview
[19] The appellant has sworn a number of affidavits criticising his trial counsel, Mr Allister Davis. These criticisms have been picked up and amplified by Mr Tennet.
[20] The key complaints are that Mr Davis:
(a)Should have sought a mistrial or a strong direction in respect of Mr Oakenshield’s conduct in the witness box;
(b)Within earshot of the jury, pressured the appellant to plead guilty;
(c)Did not call medical and dental evidence that was available and would have assisted the defence case; and
(d)Did not brief or call witnesses who could have given evidence of previous bad behaviour by Mr Oakenshield.
[21] Mr Davis has sworn a comprehensive affidavit in response to all these allegations. We also had the advantage of hearing both the appellant and Mr Davis giving oral evidence.
[22] Mr Davis annexed to his affidavit transcripts of a number of answer-phone messages left for him by the appellant following trial. These transcripts record abusive and threatening comments and generally do not show the appellant in a very favourable light. In one of them, a message left on 19 July 2007 (the day after the trial), the appellant said:
Hey, I may have started that fight but I was the one that had to fight him off for at least eight minutes and that is the truth and, ah, I'm not lying mate you know. I may have … I may have started that fight but, ah, I'm telling you that is the truth.
Before us, the appellant sought to explain his references to starting the fight by suggesting that all he meant was that he had provoked Mr Oakenshield by laughing at him. We do not regard this as a convincing explanation. We listened to the voice message and took it to signify an explanation that differed from what had gone before.
Failure to seek a mistrial or strong direction as to Mr Oakenshield’s conduct
[23] Mr Oakenshield undoubtedly behaved in an overbearing and intemperate way in giving evidence. But, on the whole, this was to the benefit of the appellant. The defence strategy was to portray Mr Oakenshield as an aggressive man and his conduct in the witness box arguably lent credibility to the appellant’s account of events. So the general pattern of Mr Oakenshield’s evidence provided no occasion for Mr Davis to seek a mistrial. Nor was there any necessity to seek a particular direction from the Judge who naturally recorded in his summing up the criticisms originating with Mr Davis of the way in which Mr Oakenshield gave his evidence.
[24] The only aspect of the outbursts of Mr Oakenshield that troubled us (in terms of the fairness of the trial) was his reference to his own absence of convictions, the primary example of which is set out in [10]. Mr Oakenshield may have intended to imply that the appellant had “a violent criminal record”. This is, indeed, the case, as the appellant has nine previous convictions for assault, along with many convictions for like offences, including possession of offensive weapons, threatening words, threatening to kill and contravention of a protection order. Whether Mr Oakenshield knew of these convictions is uncertain. If he intended to refer to these convictions by implication when he mentioned his own clean record, he was acting with a degree of subtlety which was markedly absent from his evidence as a whole.
[25] In any event, the appellant dealt with the point effectively, if illegitimately, by asserting in his evidence in chief that he had “never been involved in anything like this in my life”, an assertion upon which the Judge did not allow him to be cross-examined.
[26] In those circumstances we take the view that references by Mr Oakenshield to his own clean record did not lead to a miscarriage of justice.
Discussing the possibility of pleading guilty in the presence of jurors
[27] Before the trial, the Crown prosecutor indicated to Mr Davis that the Crown would accept a plea of guilty to common assault. Mr Davis passed this offer on to the appellant. In the course of his discussion with the appellant, he noted that he faced a risk of imprisonment if he was found guilty of injuring with intent to injure. The appellant rejected the offer.
[28] It is common ground that this discussion took place just before the trial started. The appellant maintained that this was within the hearing of the jury. Mr Davis is adamant that the discussion took place in the corridor beside the Court and thus not in the presence of the jury panel and that precautions were taken to ensure that this conversation could not be overheard by jurors, in that the door to the Court was shut.
[29] On this point, we prefer the evidence of Mr Davis. He is an experienced lawyer and it is almost inconceivable that he would have acted in the way alleged.
Not calling medical and dental evidence
[30] It is common ground that the appellant suggested that his doctor and dentist should give evidence. Mr Davis obtained a report from the appellant’s doctor and spoke to his dentist (or at least someone associated with the dental practice). He saw no need to call evidence from the appellant’s doctor or dentist as to the loss of the appellant’s teeth. The doctor’s report primarily recorded the appellant’s account of events. Evidence as to what the appellant told him would have had no evidential value and would have been inadmissible at trial. The appellant’s dentist was not much interested in assisting the appellant because he had not paid his bill.
[31] In his evidence Mr Davis was not precise as to the detail of what, if anything, was agreed between him and the appellant as to whether the doctor and dentist were to be called. The drift of his evidence, however, was that the appellant accepted the position that they were not to be called.
[32] For present purposes, what is more important is that there is no indication before us as to the utility of any evidence which the doctor and dentist could have given. We do not have affidavits from either of them. According to the appellant in his evidence before us, he did not have a plate. On the other hand, he accepted that some dental work had been done on his front two upper teeth. In his evidence at trial he said that both teeth had been capped. Conceivably the doctor or dentist could have given some evidence which might have supported his contention that he did not have a plate and possibly as to the level of force which would have been necessary to dislodge the teeth. There was, however, independent evidence at trial which supported the appellant’s contention that at the end of the altercation he had spat out teeth and not a plate.
[33] This was, in any event, something of a non-issue by the end of the trial. In his statement to the police, the appellant asserted that he had lost his teeth as a result of being punched. It will be recalled that Mr Oakenshield’s primary position was that he had not landed any punch on the appellant, let alone the sort of punch which would have knocked his teeth out. But in his evidence at trial, the appellant said that he lost his teeth when he was biting Mr Oakenshield’s finger. The appellant was not challenged in cross-examination on his contention that he had lost teeth and not a plate.
[34] In those circumstances, it has not been demonstrated that evidence from the doctor or dentist would or could have made any difference to the course or result of the trial.
Not briefing or calling witnesses who could have given evidence of previous bad behaviour by Mr Oakenshield
[35] Mr Davis says that he spoke to the witnesses identified by the appellant, in particular Mr Shaw (who was called as a witness) and a Mr Rai Kereopa (who saw the later stages of the altercation). He took the view that Mr Kereopa was not in a position to assist the defence. We do not have an affidavit from Mr Kereopa and must thus rely on notes taken by Mr Davis as indicating what evidence he could have given.
[36] Mr Kereopa was unable to give evidence which particularly supported the appellant’s narrative of events. On the other hand, the notes taken by Mr Davis suggest that Mr Kereopa could have given evidence of some aggressive conduct on the part of Mr Oakenshield towards him. This would have been, however, of distinctly marginal relevance in the context of the case as a whole, given that what had allegedly occurred between Mr Oakenshield and Mr Kereopa was different in nature and quality from what was involved in the incident between the appellant and Mr Oakenshield. Furthermore, a full-scale attack on the character of Mr Oakenshield had the real potential of provoking cross-examination of the appellant on his own convictions.
[37] We accordingly see nothing untoward in the decision not to call Mr Kereopa.
Second contention: the Judge should have declared a mistrial because of Mr Oakenshield’s conduct in the witness box
[38] The behaviour of Mr Oakenshield in the witness box reflected on him more than on the appellant. If the possibility of aborting the trial had occurred to the Judge (which it probably did not), he presumably took the view that it was not for him to second guess the approach taken by defence counsel.
[39] The Judge did not give any particular direction about the way in which Mr Oakenshield gave evidence. Instead he:
(a)Paraphrased what was obviously a strong argument advanced by Mr Davis based on the way in which Mr Oakenshield had given evidence; and
(b)Did not address specifically the possible implication in the evidence of Mr Oakenshield that the appellant had a criminal record.
In our view this was what the case required.
Third contention: the prosecutor’s cross-examination of the appellant and closing address were illegitimate
[40] The complaints about cross-examination focus on the passages set out above at [15] and [16] and there is a related challenge to the elements of the closing address paraphrased by the Judge in [54] of his summing up.
[41] As a matter of logic, the earlier a defence is disclosed the better for the defendant. The converse (the later the defence is raised the worse for the defendant), however, does not usually hold true (at least in terms of the comments which a prosecutor and Judge may make). This is because of the right of silence and the warnings that suspects are given. Difficulties can thus arise where a prosecutor (or Judge) comments adversely on a defence which is raised for the first time at trial, see for instance R v T (CA255/05) CA255/05 24 November 2005 and the cases discussed in that judgment. Mr Tennet endeavoured to rely on this line of cases in relation to the prosecutor’s suggestion that the defendant’s evidence had expanded on the explanation given to the police, see [15] above.
[42] We do not see the relevant questions as objectionable. It was perfectly open to the prosecutor to explore with the appellant the fact that his account of events in evidence was different (at least in the sense of being more detailed) than the one which he had given in the immediate aftermath of the incident to the police. As part of this exercise, it was open to the prosecutor to emphasise the seriousness of the occasion when the appellant was first interviewed by the reference to the warning and caution.
[43] Given that the appellant had, in his evidence in chief, claimed that he had heard from other people at the gymnasium that Mr Oakenshield was going around saying that he was going to give the appellant a hiding, it was also legitimate for the prosecutor to ask whether those witnesses were going to be called or whether their names had been given to the police, see [16] above. These people have still not been identified. In deciding what, if any, weight to put on this aspect of the defence case, the jury was entitled to take into account the failure to call or even identify the people to whom the relevant remarks were allegedly made.
[44] There were material aspects of the appellant’s evidence as to the detail of the altercation and the way in which it developed which had not been put to prosecution witnesses. In this context, we see no problem with the prosecutor commenting on this when addressing the jury, see [18] above.
Fourth contention: the Judge misdirected the jury on self-defence
[45] In his summing up the Judge directed the jury to self defence as follows:
[13] Basically, the defence in relation to intention is that any blows to the complainant, Mr Oakenshield, were delivered by the accused without intention to injure him. But all of this, of course, also raises the issue of self-defence.
[14] Now the first thing to say about self-defence is this. Although it’s referred to as a defence it’s not for the accused to prove that he was acting in self-defence. It’s for the Crown to prove beyond a reasonable doubt that the accused was not acting in self-defence, that is if self-defence is raised. If the Crown doesn’t exclude that as a reasonable possibility then the accused should be acquitted.
[15] The provision in our Crimes Act about self-defence reads this way, and I’m quoting from the Act:
"Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use."
[16] Now there are some subtleties in that but they’ll become apparent if we break the section up into its parts.
[17] The first issue is what is meant by ‘justified’. As a matter of law if you are justified in doing something then it’s not unlawful. It is not a crime even though you meant to do it and in considering the issue of self-defence there are three questions you need to answer. Perhaps Mr Foreman you could write them down in basic terms. The first is this - what were the circumstances as the accused believed them to be at the time? What were the circumstances as the accused believed them to be at the time? Now that’s a subjective test and it’s necessary to examine what he believed was going on at the time. What did he think was the nature and degree of the attack or threat of attack and you assess that by taking into account all of the evidence including what he said about it.
[18] Now, in this case, the accused said that Mr Oakenshield started the matter because Mr Oakenshield was upset, perhaps provoked by the accused’s comment to him and the laughter at him. The accused said that the complainant, Mr Oakenshield, threw a punch at him and an altercation ensued and he was punched several times more. That’s what the accused said happened at the time.
[19] Now the Crown says that there had been earlier bad blood between the two and the accused had threatened to get rid of the complainant from the gym a couple of days before. The Crown says further that on the 9th of March 2006 he immediately confronted and then attacked Mr Oakenshield. The Crown says this was an unprovoked attack initiated by the accused by headbutting and punching the complainant.
[20] Second question. Having considered the first, the second is to decide whether in those circumstances the accused was acting in self-defence of himself at the relevant time. Again that’s to be considered from the accused’s point of view. In other words did he truly believe, then and there, that he was under attack and that he was acting to defend himself against that attack. It’s a straight issue of fact for you to decide; whether in the circumstances, the accused was acting in defence of himself.
[21] As to that, the accused says the complainant refused to let him go despite repeated requests by the accused for him to do so. He estimated that the fight went on for some 10 minutes and this, his only retaliation, was in the course of several attempts to make Mr Oakenshield desist. He says that he was under serious attack with attempts to bite his face and to gouge his eye and at all times he was acting only to defend himself.
[22] On the other hand the Crown says that the complainant, Mr Oakenshield, was headbutted in the face and then punched some 5-10 times right at the outset and the Crown says that you should accept the evidence of both Mr Oakenshield and Mr Neame in this regard and decide that the Crown has proved beyond a reasonable doubt that the accused was the aggressor, not acting in self-defence and that the violence he meted out to Mr Oakenshield was gratuitous.
[23] Now at that stage after those two questions, if you agree with the Crown, then you will go no further because the Crown would have satisfied you beyond a reasonable doubt that self-defence is not a possibility. If, however, you think that it was at least a reasonable possibility that the accused believed he was acting in defending himself then you go to the next step. So if at that stage you think that it was a reasonable possibility he believed he was acting in self-defence then you ask the third question.
[24] The third question is this. Was the force the accused used reasonable in the circumstances as he believed them to be? Was the force the accused used reasonable in the circumstances as he believed them to be? Now that’s an objective test. Whether he thought the type of force he used was reasonable is not the point. It’s for you, as the jury, to decide whether, in the circumstances he thought existed, the force used was reasonable. That’s common sense really isn’t it. It’s because the law doesn’t give people a blank cheque to use as much force as they wish, even if they are defending themselves, and the degree of force used must be reasonably proportionate to the threat. What’s an example? If one person was to slap another’s face aggressively then it might be reasonable for the person who had been hit to act in defence of themselves and it might be reasonable, for example, to push them away. It wouldn’t be reasonable to take a knife and to stab them to death. That would be an entirely disproportionate use of force. So that’s the sort of thing I’m talking about here.
[25] Now, another thing to remember is that by their nature, sometimes these things happen in the heat of the moment and you can’t expect people to weigh up the degree of force to a nicety. There aren’t any jeweller’s scales here where people weigh these things up. It happens quickly often and decisions are made in the heat of battle so to speak. So you can’t really expect people to weigh things up with the benefit of time and thought. Nevertheless, there must be what you consider to be a reasonable balance between the perceived threat and the force used to meet it.
[26] Now, in the context of this case, you would have to decide, if you got this far, whether punching to the face, headbutting in the face or biting the finger of the complainant was an appropriate or proportionate response to the attack that the accused was under.
[27] I just want to say also in regard to self-defence that it is of course implicit in the concept of self-defence that you act to meet an existing threat. If the threat is passed the law will not protect you from the consequences of acting out of revenge or retribution. Using force to get your own back, no matter what has happened in the past, is not acting in self-defence.
[46] This section of the summing up was discussed at some length and rather discursively by Mr Tennet in his written and oral submissions and it has been not entirely easy to discern the precise complaints.
[47] We will deal, as simply as we can, with what we understand to have been the concerns expressed:
(a)It was suggested that in [13] the Judge had conflated an element of the offence (namely an intention to inflict injury) with the issue of self-defence. We disagree. The Judge had earlier in his summing up directed carefully on the elements of the offence and specifically left to the jury the question whether the accused had intended to injure Mr Oakenshield.
(b)There was a criticism that the Crown view of the case was put in [19]. We see nothing in this as it was merely in contradistinction to the defence position which was recorded in [18]. If the jury accepted the evidence of Mr Oakenshield, then that was a complete answer to self-defence.
(c)There was a complaint that the Judge had contrasted the accused’s perception of the circumstances (see [17] of the summing up) with the facts that the Crown alleged to exist. We accept that the Judge did this but he was perfectly entitled to do so. In assessing the appellant’s belief as to the circumstances which confronted him, the jury was necessarily required to make an assessment of how the incident started.
(d)There was a criticism of the suggestion that if the first two questions were resolved in favour of the Crown, the jury need go no further on this aspect of the case. We see nothing objectionable in what the Judge said. It was an accurate statement of the position.
(e)Mr Tennet suggested that the Judge should have made it clear that if the appellant was in part motivated by anger or spite, this was not inconsistent with self-defence, cf R v Howard (2003) 20 CRNZ 319 (CA). We accept that a Judge should not direct a jury that if the defendant acted out of anger or spite or by way of revenge, this is inconsistent with self-defence. But the Judge did not do so. Indeed, since it was not the appellant’s case that he was influenced by anger or spite (or any related emotion), a specific direction of the sort proposed by counsel would at best have confused the jury and at worst lent support to the Crown case.
(f)Finally, Mr Tennet complained that when the Judge referred to the concept of the appellant acting in defence of himself, he did so by reference to what the appellant thought “was the nature and degree of the attack or threat of attack” he faced. Mr Tennet said that this was too narrow and did not allow for “future possibilities” referred to in Howard and also in R v Sadaraka CA274/03 27 May 2004. We disagree. We think the reference to threat of attack was sufficient in the circumstances of this case.
Fifth contention: the Judge misdirected the jury as to the standard of proof
[48] In the course of his summing up the Judge directed on the standard of proof as follows:
[5] … The Crown must prove that the accused is guilty beyond reasonable doubt. Now it’s a very high standard but I must ask you to think of it as this. That standard will have been met if, at the end of the case, you are sure that the accused is guilty. If, after careful and impartial consideration of all the evidence, you are sure that he is guilty then you must find him guilty. Equally, if you are not sure he is not guilty, you must find him not guilty. That’s what a reasonable doubt means – you must be sure.
[49] This direction did not follow the suggested direction which appears in R v Wanhalla [2007] 2 NZLR 573 at [49] (CA). Indeed the later part of the direction became a little scrambled. In the second to last sentence the word “not” was used three times. And, as well, unless there is a punctuation error in the transcribing of the last sentence (and there may well be), what was said is literally the converse of the true position. No doubt, however, that what the Judge meant (and would have been understood by the jury to have meant) is that the words, “That’s what a reasonable doubt means”, referred back to “not sure” in the preceding sentence.
[50] The key point, however, is that the Judge told the jury that they could only convict if sure of guilt. That is at the heart of the test and sufficed in the circumstances.
Disposition
[51] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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