The Queen v Campbell
[2009] NZCA 478
•15 October 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA230/2009
[2009] NZCA 478THE QUEEN
v
ANDREW JOHN CAMPBELL
Hearing:1 October 2009
Court:Robertson, Chisholm and Priestley JJ
Counsel:C J Tennet for Appellant
M D Downs for Crown
Judgment:15 October 2009 at 12.30 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
Table of Contents
Para No
Introduction [1]
Background [3]
This appeal [15]
Verdict unreasonable having regard to the evidence [19]
Errors by trial counsel [27]
Failure to call character evidence [30]
Failure to put lack of intent [32]
Self-defence not adequately put [37]
Inadequate cross-examination/lack of preparation [43]
Jury question [47]
Failing to object to the doctor’s evidence [50]
Conclusion [61]
Prosecutorial misconduct [62]
Misdirection by the Judge [66]
Alleged misdirection concerning Dr Lyons’s evidence [67]
Alleged misdirection as to standard of proof [68]
Outcome [72]
Introduction
[1] Following trial in the District Court at Auckland before Judge Perkins and a jury, the appellant was found guilty of injuring with intent to cause grievous bodily harm (count 3). He was found not guilty on charges of entering a ship with intent to commit a crime (count 1) and assault with intent to facilitate flight (count 2). A sentence of 300 hours community work was imposed.
[2] Mr Campbell appeals against his conviction on four primary grounds:
(a) the verdict was unreasonable having regard to the evidence;
(b) errors by trial counsel;
(c) prosecutorial misconduct; and
(d)misdirections by the trial Judge.
If the appeal succeeds the appellant seeks to have the conviction quashed rather than the matter being remitted back to the District Court for a re-trial on count 3.
Background
[3] The three counts before the jury arose from events at the Viaduct harbour, Auckland, during the early hours of 1 January 2007. All the primary participants had been drinking.
[4] On New Year’s Eve Barrymore Evans, the complainant in relation to counts 1 and 3, moored his yacht, “Lady A”, at the Viaduct harbour so that he could celebrate the New Year with friends. Later that night Andrew Campbell, the appellant, arrived at the harbour with friends on his family’s motor launch, “Achilles”. The two boats were berthed near each other.
[5] During the early hours of New Year’s morning Mr Evans and one of his guests, Anthony Gojak (the complainant in relation to count 2) heard a noise on the deck of “Lady A” and went up to investigate. Mr Gojak, who was ahead of Mr Evans, saw Mr Campbell at a chilly bin which contained alcohol and ice, and believed that Mr Campbell was helping himself to alcohol.
[6] Mr Campbell’s explanation, by way of a video interview and at trial, was that they had run out of ice on the “Achilles” and that he had been told by “Martin” from the “Lady A” (who had been earlier drinking on their boat) that he could go and get ice from the chilly bin on the yacht. Mr Campbell said that he had earlier been to the yacht to get ice from the chilly bin. Some support for this explanation was provided by Martin Wienk, one of the Crown’s witnesses.
[7] Although there is a sharp divergence between the prosecution and defence about what happened from this point, there is a measure of agreement that there was a tussle and that Mr Gojak ended up in the sea. Both sides allege that the other was the aggressor. It was the Crown case that Mr Campbell armed himself with a winch handle that happened to be on the deck and attacked Mr Gojak. On the other hand, Mr Campbell claimed that the other two men picked up winch handles from the cockpit of the “Lady A” when they came on deck, and attacked him.
[8] The jury’s verdicts on the first two counts indicate that the Crown failed to prove its contention that Mr Campbell went on board the “Lady A” to steal alcohol and that after he was confronted he assaulted Mr Gojak with intent to facilitate his flight from the yacht.
[9] Count 3 arose from a further confrontation between the three men. After the incident on the yacht, both Mr Evans and Mr Campbell left the yacht and went to what was variously described as a “pier” and “pontoon” where they were joined by Mr Gojak who had climbed out of the sea. It is not disputed that Mr Campbell was in possession of one of the winch handles (which he said he had taken off Mr Gojak when Mr Gojak was attacking him).
[10] On the Crown’s version of events, there was a further confrontation on the pier/pontoon which resulted in Mr Campbell falling into the sea. It is contended that when Mr Evans leaned over to pull Mr Campbell out of the sea, Mr Campbell hit Mr Evans on the head with the winch handle, causing a severe cut to the head which later required several stitches.
[11] While Mr Campbell does not dispute that he hit Mr Evans on the head with the winch handle, he claims that he was acting in self-defence and that he did not intend to cause grievous bodily harm to Mr Evans. He said that, following a brief struggle, he was thrown into the sea by the other two men. As he bobbed up they tried to kick him and they both said that they were going to drown him. When Mr Evans lent down to push him under the water, he reacted by “gently” swiping Mr Evans on the side of the head with the winch handle.
[12] By this time two other people from the “Achilles” had arrived on the scene. Both gave evidence for the defence. In broad terms they support Mr Campbell’s allegation that he was being attacked by the other two men while he was in the water. One of the witnesses said that one of the attackers took off his belt which had a big buckle and starting swinging it around. Neither witness saw the blow with the winch handle.
[13] Evidence was led at trial about the injuries suffered by both Mr Evans and Mr Campbell. Mr Evans suffered a significant cut to his head which required several stitches. Photographs of the injury were before the jury. Mr Campbell also suffered a cut to his head and an injury to his left hand, both of which he said had been sustained when Mr Gojak attacked him with the winch handle. Photographs of Mr Campbell’s head injury were before the jury.
[14] At trial Dr Malcolm Lyons was called as a defence witness. He confirmed that, when he examined Mr Campbell on 16 January 2007, he found the injuries mentioned above. When cross-examining the doctor, the prosecutor asked him to express a view about the injury to Mr Evans’s head (by reference to the photographs). Notwithstanding the doctor’s initial response that he had no expertise in forensic medicine and that the question was outside his normal area of clinical judgment, the doctor provided an answer that was arguably not helpful to the defence.
This appeal
[15] A detailed affidavit has been sworn by Mr Campbell in support of his allegation of radical error by trial counsel leading to a miscarriage of justice. In summary it is alleged that trial counsel erred in the following respects:
(a)failed to call character evidence even though such evidence was available;
(b) failed to put lack of intent to the jury for its consideration;
(c)put self-defence “badly and slightly incorrectly” (Mr Tennet’s terminology);
(d)failed to prepare adequately;
(e)failed to ensure that the whole of the video interview was replayed (following a question from the jury); and
(f)failed to object to Dr Lyons’s evidence or to ask the Judge to declare a mistrial after the evidence had been given.
Under cross-examination, Mr Campbell said he considered that the worst feature of his trial counsel’s performance was the failure to object to Dr Lyons’s evidence.
[16] Carol Campbell, Mr Campbell’s mother, also swore an affidavit in support of the appeal. She arranged and typed all the defence witness statements and a “points for discussion document” that was provided to trial counsel. She deposed that she attended the entire trial and could tell that trial counsel “was not doing a good job, especially on the first day of the trial”. Mrs Campbell was not cross-examined.
[17] In his affidavit trial counsel, Mr Kovacevich, responded to each of these allegations. He denies that he had any specific instructions to call character evidence and notes that Mr Campbell’s absence of previous convictions was before the jury. With reference to the allegation that he failed to advance lack of intent, Mr Kovacevich responds that this would not have sat comfortably with the defence of self-defence. While he accepts that there was an error in his opening statement about the ingredients of self-defence, he claims that the error was remedied in his opening address to the jury and that the defence of self-defence was properly put. He denies that he was inadequately prepared. With reference to the video interview he contends that the parts that were replayed responded to the jury’s question. And while he acknowledges that he was “shocked” by the doctor’s evidence under cross-examination, he considered that there was little that he could do about it.
[18] We now turn to the specific grounds of appeal advanced by the appellant.
Verdict unreasonable having regard to the evidence
[19] Mr Tennet argued that the verdict could not be regarded as reasonable because: the jury “completely rejected” Mr Gojak and Mr Evans’s evidence in respect of counts 1 and 2; the evidence “came out in a fairly confused way when in fact it was quite simple”; and the Crown had to “disprove intent” and “exclude self-defence”. Under those circumstances, submitted Mr Tennet, having acquitted on counts 1 and 2 the jury should have also acquitted on count 3.
[20] A verdict will be unreasonable in terms of s 385(1)(a) of the Crimes Act 1961 if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty: R v Owen [2008] 2 NZLR 37 (SC) at [5]. In that decision the Supreme Court also confirmed that an appellate Court is performing a review function, not one of substituting its own view of the evidence; that it must give appropriate weight to the jury’s advantage in hearing and seeing the witnesses; the weight to be given to individual pieces of evidence is essentially a jury function; reasonable minds may disagree on matters of fact; and appellate Courts should not lightly interfere in this area: at [13].
[21] When those considerations are applied to this case it is clear that this ground of appeal is unsustainable. That is so whether the factors advanced by Mr Tennet are considered individually or collectively.
[22] We do not accept the sweeping proposition that the jury must have “completely” rejected Mr Gojak and Mr Evans’ evidence in respect of counts 1 and 2. In relation to count 1 the only direct evidence that Mr Campbell was stealing alcohol came from Mr Gojak who saw “a gentleman helping himself to a chilly bin of alcohol”. Rather than the jury necessarily completely rejecting Mr Gojak’s evidence, they might well have concluded that although he was mistaken about the theft of alcohol, his evidence relating to count 3 was reliable. Given that Mr Evans’s evidence did not specifically cover the alleged theft of alcohol, there is no question of his evidence having been completely rejected.
[23] Similar logic applies to count 2. Given that there was no burglary it was obviously open to the jury to conclude that there was no intent to facilitate flight “in the commission of a crime”. That conclusion would not require a wholesale rejection of the evidence of Mr Gojak and/or Mr Evans. In any event the evidence that Mr Gojak had been assaulted by Mr Campbell was weak. Apart from referring on several occasions to “a bit of a tussle” before he ended up in the water, Mr Gojak did not specifically allege that he had been assaulted. Indeed, when he was asked whether he could describe the tussle his answer was: “Not blow by blow, just, you know, I did this, he did that, blah blah blah, I can’t do that in all honesty, no.” Mr Evans did not give any direct evidence that Mr Gojak was assaulted.
[24] The allegation that the evidence came out in a “fairly confused way when it was in fact quite simple”, cannot advance the appellant’s argument. Regardless of whether the events were quite simple, it was not disputed that Mr Campbell hit Mr Evans on the head with the winch handle, and it was for the jury to determine whether count 3 had been proved by the Crown. Clearly this Court does not enjoy the jury’s advantage in resolving that issue and we have not identified anything in the presentation of the evidence that would justify intervention.
[25] Finally, we cannot understand how the obligation on the Crown to prove intent and exclude self defence could advance the proposition that the verdict was unreasonable (unless, of course, some other ground of appeal is made out). Those are classic jury issues and on the evidence it was open to the jury to conclude that the Crown had proved intent and negatived self-defence.
[26] This ground of appeal fails.
Errors by trial counsel
[27] The crux of this ground of appeal is that errors by trial counsel gave rise to a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act.
[28] The principles to be applied were summarised by the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730:
[70] ... while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
Earlier (at [66]) the Court had observed that where the conduct of counsel was reasonable in all the circumstances the client will not generally succeed in asserting a miscarriage of justice so as to gain the chance of defending on a different basis on a new trial.
[29] With those principles in mind we now consider the alleged errors relied on by the appellant.
Failure to call character evidence
[30] Mr Campbell’s primary complaint seems to be that, having discussed the matter with Mr Kovacevich, he did not realise that character witnesses could be called in support of his defence. However, the six references attached to his affidavit appear to post-date the jury’s verdicts and we assume that they were used for sentencing (by which time Mr Kovacevich had been dismissed). This might explain why Mr Kovacevich deposed that the only significant character/veracity evidence he was told about concerned the absence of any previous convictions.
[31] We have not been persuaded that there is anything in this allegation. First, as Mr Tennet acknowledged, s 37 and following of the Evidence Act governs whether the evidence (as evidence of Mr Campbell’s veracity) could have been admitted and, given the comments of this Court in R v K [2008] NZCA 194, there would probably have been major problems in having that evidence admitted. Secondly, we have not been provided with the character evidence that the appellant would have sought to adduce at trial, which undermines our ability to assess admissibility issues and tends to support trial counsel’s assertion that he did not receive any specific instructions to adduce such evidence. Thirdly, given that the jury was aware that Mr Campbell had no previous convictions, it is unlikely that the outcome on count 3 would have been different if character evidence had been admitted.
Failure to put lack of intent
[32] Mr Tennet categorised this as an “implicit failure” to follow a “clear defence”. He emphasised that in his video interview Mr Campbell had been at pains to point out that he did not intend to cause grievous bodily harm, he had been careful about how he hit Mr Evans, and he was acting in self-defence. Although Mr Tennet acknowledged that the matter of intent had been covered “briefly” by the Judge, he contended that it had never been stressed by trial counsel, and it should have been.
[33] For his part Mr Kovacevich explained in his affidavit that the appellant’s proposition that he had carefully considered the level of force before using the winch to “just” make contact with Mr Evans’ head did not sit comfortably with the self-defence proposition that the appellant believed he was in serious danger from Mr Evans and Mr Gojak when he struck the blow. For that reason he largely left it to the Judge to direct the jury that intent needed to be proved beyond reasonable doubt, and generally concentrated upon self-defence in his addresses.
[34] We have no difficulty in accepting that the judgment of trial counsel was reasonable in all the circumstances. Any attempt to emphasise the intent issue ran the risk of undermining the primary defence of self-defence. Given that situation it was entirely understandable that Mr Kovacevich left it to the Judge to cover the issue of intent in his summing-up.
[35] We do not agree with Mr Tennet that the Judge’s direction about intent was brief. With specific reference to count 3, Judge Perkins directed the jury:
... you can only find the accused guilty of this charge if you are satisfied beyond reasonable doubt that first Mr Campbell wounded Mr Evans and I do not think there is any doubt about that, but at the time he intended to cause him harm or injury that is really serious. Whether he actually caused really serious harm is not the point. The point is that when he struck the blow, did he intend to cause that kind of injury or harm? That is not necessarily the cut on the head, because that in your assessment may not be really serious hurt but the issue is whether he intended to cause really serious hurt when he struck Mr Evans on the head. If he did not intend to inflict grievous bodily harm, really serious hurt, then the charge is not proved because even though it is clear that he wounded him, he did not do so with the intention that is required under that charge.
And shortly after providing that very comprehensive direction the Judge told the jury that they should “remember what I said in deciding on matters of intention”.
[36] The jury could not have been under any illusion that the Crown had to prove intent beyond reasonable doubt.
Self-defence not adequately put
[37] Mr Tennet was critical of trial counsel’s opening statement, opening address, and closing address. In relation to the opening statement the criticism is that trial counsel’s explanation of the third element of self-defence was wrong and counts 1 and 2 were conflated. The opening address is criticised on the basis that counsel failed to adequately correct the error he had made in the opening statement. And the summing-up is criticised on the basis that there was no attempt to outline the elements of the defence and even if they were put in the closing they were still “jumbled”.
[38] It is true that Mr Kovacevich made an error in his opening statement when he told the jury that the third component of self-defence (whether the force used was reasonable) had to be considered “from the accused’s point of view”. But that error was corrected in Mr Kovacevich’s opening address. In any event, Mr Kovacevich told the jury on more than one occasion that the Judge would be directing them as to the law.
[39] The Judge’s summing-up on self-defence has not been, and could not be, criticised. Moreover, the Judge provided the jury with further directions in response to their question about self-defence.
[40] We also reject the criticism about the conflating of counts 2 and 3. After explaining that the defence to counts 2 and 3 was self-defence, Mr Kovacevich outlined the three components of that defence and then told the jury that those elements applied to both counts 2 and 3. By its very nature an opening statement is brief. Apart from the fact that the explanation of the third element of self-defence was wrong (which was remedied), there was nothing untoward in the approach adopted by trial counsel in his opening statement to the jury.
[41] Nor is there any merit in the criticism of the closing address. Having told the jury in that address that self-defence was a complete defence to count 3, Mr Kovacevich discussed the evidence in detail. During the course of that discussion he reminded the jury that “there are three steps to self-defence”. He then repeated the first two elements of self-defence and related those elements to the evidence. Later he undertook that exercise with reference to the third element. And at a later point in his final address he returned to the issue of self-defence with specific reference to Mr Campbell’s video interview.
[42] This ground also fails.
Inadequate cross-examination/lack of preparedness
[43] In relation to cross-examination, which was linked to the allegation of lack of preparedness, Mr Tennet argued that there was “room” to put matters to Mr Evans “particularly where he cavilled” and that certain areas should have been explored further. These included the “drunken assumption that the appellant was stealing alcohol”, “overall the description of the scuffle is limited”, and various inconsistencies in the evidence. Mr Tennet also claimed that counsel should have cross-examined Mr Gojak about various matters contained in his statement to the police and that both complainants should have been cross-examined about the likelihood of a winch handle having been left on the deck.
[44] Under cross-examination before us Mr Kovacevich rejected the suggestion that he was not properly prepared. He acknowledged, however, that he had made an error by not cross-examining Mr Gojak and Mr Evans about the likelihood of a winch handle having been left lying on the deck. But he said that after the matter had been drawn to his attention by Mr Campbell he had “worked very hard to ensure that that matter was addressed” and he had closed to the jury on that point.
[45] Both complainants were extensively cross-examined and we have not been persuaded that any of the matters raised on behalf of Mr Campbell are of such significance that they are likely to have affected the outcome of the trial. Indeed, many of the points relate to events concerning counts 1 and 2 on which Mr Campbell was found not guilty. Particular reference has been made to the issue of whether a winch handle would have been left lying on the deck. We note, however, that expert evidence was called by the defence on that issue and it was referred to during Mr Kovacevich’s closing. Moreover, the issue of whether the winch handle had been left lying on the deck was not directly relevant to count 3. Finally, the Judge’s summing-up was very favourable to the defence on the topic of how Mr Campbell came to be in possession of the winch handle.
[46] This ground is without merit.
Jury question
[47] After they had retired the jury came back with the following question:
We need to see part of the video again – specifically the part relating to when he (accused) was pushed or fell into the trough (water).
Following discussion between the Judge and counsel portions of the video were replayed.
[48] Mr Tennet’s submission was framed in this way:
4.18 The next issue is over the jury question ... the Appellant’s belief on that is quite certain. It may be that the nature of the question meant that only portions of the video needed to be played. However, Counsel reiterates that he failed to put the issue of lack of intent so that the portions played for the video tape need to be viewed in that way. However it is submitted that it should have been played in its entirety.
Presumably the reference to the appellant’s belief reflects Mr Campbell’s affidavit in which he claims that the parts which were replayed to the jury “ended up being just what the prosecutor wanted them to see which were the worst bits and [Mr Kovacevich] failed to get all the positive parts replayed on my account”.
[49] Given that the jury had specifically identified the part of the interview that they wanted to be replayed, it is impossible for us find any error, especially when we do not even know which parts of the video interview were replayed. In any event it would have been little short of extraordinary if the Judge had overridden the jury’s specific request by subjecting them to a replay of the whole interview, the transcript of which runs into 78 pages.
Failing to object to the doctor’s evidence
[50] During cross-examination the prosecutor questioned Dr Lyons about Mr Evans’s head injury:
Q.... There has been evidence in this trial that this injury was caused in a manner which I describe as this. A boat winch handle held in the left hand, moved from left to right in a swiping motion, so that the contact point between the winch handle and the gentleman’s head as pictured here was at the rounded end of the winch handle. Either the very end or the lug nut, or this part of the winch handle which I can only describe as the star section. Could that have caused such an injury that we see there in this photograph?
A.I’d like to say that I have no expertise in forensic medicine, so the question you have asked me is somewhat outside my normal area of making clinical judgment. Having said that, I would say that it seems unlikely, but you know I have to point out that I do not make these associations normally in my everyday practice of emergency care.
Q.I understand that, doctor, and I’m sure the Court will take that into consideration. Can I put to you another scenario involving the winch handle and ask if you’re prepared to volunteer an answer perhaps instead if the part of the winch handle which came into contact with the gentleman’s head were one of the straight edges of the winch handle, would that have been more consistent with this injury as opposed to what I first described to you?
A.Given my previous reservations, my answer to that is yes it is more likely that it would be from that straight edge, yes.
Cross-examination ended at that point and the topic was not covered in re-examination. The Judge then questioned the witness about whether Mr Evans’s injury could have been caused by a “sort of a cross slicing action” (as alleged by Mr Campbell) and the doctor confirmed that this was a possibility.
[51] During his closing address the prosecutor mentioned the doctor’s evidence in the context of whether the force used by Mr Campbell was reasonable. The prosecutor said that the jury would have to make some decisions about whether it was “a swipe that was done gently and carefully”, as Mr Campbell asserted, or something that involved greater force. He said that the Crown’s position was “just have a look at the doctor’s evidence about the injuries”. Crown counsel then went on to say that if the jury had any doubts they should look at the photographs of the laceration to the top of Mr Evans’ head and then make their own assessment. He also commented that in the doctor’s opinion the injury was more consistent with the straight edge of the winch handle having caused the injury.
[52] Defence counsel did not mention the matter during his final address and there was no reference to it in the Judge’s summing-up.
[53] In his affidavit Mr Campbell said that he was shocked that his counsel failed to say anything at all when this evidence was being given. He deposed:
The effect on the jury was obvious at this point, because the prosecutor said something like – “But you are a doctor after all Dr Lyons, you must be able to give an opinion”. I am so sure the Jury took his answer on board as they were not given any direction from [Mr Kovacevich] that this was not substantiated evidence and should not be taken into account.
While we have no doubt that Mr Campbell is sincere when he expresses his recollection about what happened, we note that the transcript does not include any comment by the prosecutor along the lines suggested by Mr Campbell.
[54] Mr Tennet submitted that once the doctor had made it clear that he was being asked to comment on a matter beyond his area of expertise, trial counsel should have taken steps to prevent this line of questioning going any further. Alternatively, once the inadmissible evidence had been given, trial counsel should have asked the Judge to declare a mistrial or at the very least the Judge should have been asked to direct the jury that the evidence was inadmissible and no weight should be placed on it.
[55] We turn to these matters.
[56] When cross-examining Dr Lyons, the prosecutor was not confined to the matters that had been traversed in evidence in chief. The fundamental principle in terms of s 7 of the Evidence Act is that relevant evidence is admissible. Thus, given the witness’s medical qualifications the prosecutor was entitled to ask him about the injury to Mr Evans, provided, of course, that the scenario he was putting to the witness accurately reflected the evidence that had been given. That scenario was that it was the end of the winch handle that had come into contact with Mr Evans’s head.
[57] No doubt the scenario put by the prosecutor was based on answers given by Mr Campbell in response to questions from the Bench. When asked which part of the winch handle hit Mr Evans’s head, Mr Campbell responded “it would have been the very end of the winch”. He then demonstrated what he meant to the jury by reference to the winch handle (which was an exhibit). Later Mr Campbell told the Judge that he believed that it was the end “but I cannot be certain” and he described it as a “swipe across” the head, not a direct blow downwards. It follows that the prosecutor’s question accurately reflected the evidence.
[58] The next issue is whether the witness’s comments about his expertise rendered the opinions he subsequently proffered inadmissible. Under cross-examination before us, Mr Kovacevich said that although he was shocked that the doctor volunteered the information, he did not consider it inadmissible. And, given the absence of any intervention from the trial Judge, it can be safely inferred that he was of the same mind. Indeed, he asked the witness questions on the topic and obtained an answer favourable to the defence about the “swiping” motion.
[59] We have not been persuaded that there was a radical error by trial counsel by virtue of the failure to object to the evidence. It is significant that Dr Lyons did not express reservations about his expertise in categorical terms (he only said the question was “somewhat” outside his normal area of making clinical judgment). Equally importantly he obviously felt sufficiently qualified to express an opinion, albeit subject to the caveat that he expressed. While some defence counsel might have objected to enable the admissibility issue to be tested, others would have adopted Mr Kovacevich’s approach (expressed in his affidavit) that objecting to the evidence of your own witness would look “very poor” in the eyes of the jury.
[60] In any event, we do not think it is likely that the evidence under consideration altered the outcome. This reflects several factors. First, while the answers given by the doctor to the prosecutor might have been unhelpful to the defence, that needs to be balanced against the answer he gave to the Judge about the swiping motion, which was helpful to the defence. Secondly, the jury was aware that although Mr Campbell believed that it was the end of the winch handle that struck Mr Evans’s head, he could not be certain. This is likely to have ameliorated any adverse impact that the doctor’s evidence might have had. Thirdly, notwithstanding the significance placed on this evidence by the appellant, the reality is that the significant gash on Mr Evans’s head depicted in the photographs was always going to be at the forefront of the jury’s assessment of whether the force used was reasonable.
Conclusion
[61] We have not been persuaded that the alleged errors by trial counsel, either alone or collectively, gave rise to a miscarriage of justice.
Prosecutorial misconduct
[62] Given the conclusions already reached we can be relatively brief.
[63] According to Mr Tennet there was prosecutorial misconduct at three stages: first, when the prosecutor embarked upon cross-examination concerning the injuries suffered by Mr Evans; then by persisting with the questions after the doctor had indicated that he had no expertise in forensic medicine; and, finally, by using the inadmissible comments of the doctor in his closing address.
[64] We have not been persuaded that there was any prosecutorial misconduct. The prosecutor’s questions of Dr Lyons were legitimate. In the absence of an objection by defence counsel or intervention from the Bench, the prosecutor was entitled to continue with his questioning despite the reservations expressed by Dr Lyons about his expertise. And he was entitled to make use of the evidence in his closing address.
[65] This ground of appeal is without merit.
Misdirection by the Judge
[66] Two grounds are advanced: first, the evidence given by Dr Lyons should have resulted in the jury being discharged or at the very least there should have been a direction relating to that evidence; secondly, the Judge’s directions about onus of proof were inadequate.
Alleged misdirection concerning Dr Lyons’s evidence
[67] For reasons already given the proposition that the Judge should have declared a mistrial on account of Dr Lyons’s evidence is unsustainable. As to the second component of this ground, we accept that the Judge’s direction about expert evidence (relating to Mr Lannigan, the yacht expert) should have included Dr Lyons. However, again for reasons already given, we do not consider that this resulted in a miscarriage of justice.
Alleged misdirection as to standard of proof
[68] When summing-up in relation to the onus and standard of proof the Judge directed the jury:
The most important of all legal principles concerns the onus and standard of proof and you have heard counsel address you on this, but I need to repeat it quite firmly to you. That is to say, who must do the proving and what quality of proof is required before you as a jury may act on it. The onus of the essential ingredients of each of the charges here is firmly on the Crown. That onus rests on the Crown from beginning to end. There is no onus on an accused to prove anything, let alone to prove his innocence. As I said, he is deemed to be innocent until he is proved guilty.
The accused person in a trial such as this does not even have to give evidence. In this case, he has chosen to do so but he still carries no onus. The law is that the Crown must prove each essential ingredient of the charges beyond reasonable doubt before you can find the accused guilty of a particular charge before you.
Now to be satisfied beyond reasonable doubt simply means that you feel sure that the accused is guilty of the charge. I will repeat that. To be satisfied beyond reasonable doubt simply means that you feel sure that the accused is guilty of the charge. If you do feel sure, then it is your duty to find the accused guilty. Conversely, if you are not sure, if you are left with a reasonable doubt, then it is equally your duty to acquit the accused and you apply that test to each of the charges which the accused is facing in this matter and you must consider each charge separately.
Later he returned to the issues of burden and standard of proof in relation to self-defence, but there is no criticism of that part of the summing-up.
[69] Mr Tennet submitted that the Judge’s direction about the standard of proof failed to meet “the standard recommended” in R v Wanhalla [2007] 2 NZLR 573 (CA). However, apart from alleging that the “main principles” in Wanhalla needed to be stated to the jury, no specific deficiencies were identified.
[70] Since Wanhalla was delivered this Court has often indicated to trial Judges the advantage of using the formula set out in that decision at [49]. See, for example, R v Brown [2008] NZCA 156, R v Bowen [2007] NZCA 253 and R v Peato [2009] NZCA 333. We repeat that call.
[71] Having said that, it is necessary to determine whether the direction in this case constituted a misdirection giving rise to a miscarriage of justice. As indicated in Brown at [50], the key issue is whether the Judge told the jury that they could only convict if they were sure of guilt. We are satisfied that the direction did so and that there has been no miscarriage of justice.
Outcome
[72] The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington
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