The Queen v David Kerr

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 152/01

THE QUEEN

DAVID KERR

Hearing:	28 August 2001 (at Auckland)
Coram:	Thomas J
Anderson J Hammond J
Appearances:	MJ Dyhrberg for the Appellant MA Woolford for Crown
Judgment:	28 August 2001

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

David John Kerr stood his trial before a jury in the District Court at Auckland in April 2001 on a count of wounding Jacqueline Haines with intent to injure her. He was convicted and subsequently sentenced to three years imprisonment.
Mr Kerr appealed against both the conviction and the sentence. The sentence appeal has been abandoned, and is dismissed.
The grounds of the appeal against the conviction as lodged were:
(a)That Mr Kerr’s counsel in the District Court trial “did not adequately defend him to the extent that a miscarriage of justice has occurred”; and
(b)That the verdict of the jury was unreasonable and cannot be supported having regard to the evidence.
During the course of the argument before us today, Ms Dyhrberg narrowed (a) considerably. Essentially the issue became whether counsel had made a fundamental error in calling Mr Kerr to give evidence.

The Facts

On 15 June 2000 Ms Haines and her female partner, Ms Rochelle Jones, repaired to a house occupied by a Bonnie White in Glenfield, Auckland. Ms White had a sister, Joanna Miller, who was Mr Kerr’s partner. Mr Kerr and Ms Miller were staying with Ms White at that time.
This visitation by Ms Haines and Ms Jones was a social one. It was common ground that these parties consumed a significant amount of alcohol; music was played; there was some dancing and social interchange.
It was also common ground that by about 8.30pm relations between Mr Kerr and Ms Haines had become abrasive. The precise reason for this was in dispute at the trial. Mr Kerr’s version of events was that what led to the difficulties were observations by him that Ms Haines (who is a welder by trade) had made a bad job of certain work on Bonnie White’s vehicle and that Ms Haines took umbrage at this suggestion. Ms Haines’ version was that Mr Kerr was generally aggressive and chauvinistic that evening.
In any event, it is what happened thereafter which led to the events which came to trial. The Crown case was that Ms Jones told Ms Haines to go outside and “chill out”. She did so, but was followed outside by Mr Kerr a short time later. Ms Haines claimed to be sitting in the garden when Mr Kerr came outside; there was some more argument between them; he punched her in the face; he knocked her over backwards; she struggled with Mr Kerr; and while she was in a semi-recumbent position Mr Kerr smashed his drinking glass into the back of her head, thereby causing a wound which later required her to be admitted to hospital for sutures. Ms Haines was found to have a broken nose, two black eyes, and this wound to the back of her head.
Mr Kerr’s version of events (both in a statement to the Police, and at trial) was that he had thought he should remove himself outside this house, away from the source of friction inside it. He claimed to have been outside five minutes or so, and that as he was coming back up the steps into the house he was attacked by Ms Haines. During the ensuing struggle, he attempted to ward Ms Haines off, but the couple fell. He said he put his hand out to put the glass down as they went to ground; that in the course of the fall the glass was broken; that Ms Haines accidentally fell on it, thereby suffering her head wound; and that he cut his hand.
The context of the trial was therefore one in which the Crown allegation was one of intentional assault; the defence was one of accident, at least with respect to the head wound. There was evidence from the complainant and the accused, and each of these two principals was supported to a marked degree by his or her partner in their account of the incident. The case was therefore a paradigm single issue jury trial case, and depended entirely on an assessment of what these witnesses had to say, in face of this jury.
It is right to record that there is no complaint about the Judge’s summing up, whether in terms of any technical directions, or as to balance. Patently, the Judge put the competing cases in an even-handed manner. And, apart from putting what had been said by the principal witnesses in concise form, the Judge suggested to the jury that it might wish to consider how the glass could have been broken in the manner suggested by Mr Kerr if it had been put down on grass; he also invited the jury to consider whether participants to a fracas of this kind would have gone back inside and socialised peaceably for a time afterwards, if indeed there had been an intentional assault of the suggested character. The summing up was “straight down the middle”, as it is sometimes put in practice. The jury plainly accepted, to the criminal standard, the evidence of the complainant over that of the accused, supported as it was to a distinct degree by Ms Jones.

Conduct of Trial Counsel

This ground of appeal impugns the conduct of trial counsel, whom we designate as “X”.
As Cooke J noted in Pointon, “this Court has to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel.” ([1985] 1 NZLR 109, 114 (CA)). That said, an appeal against conviction may lie where the conduct of the defence has resulted in mistakes so serious that a “miscarriage of justice” can be made out (R v Horsefall [1981] 1 NZLR 116 (CA)). In R v Pointon (Id.), this Court emphasised that the test is whether counsel made a “radical mistake or blunder”. This requires more than just a failure to do all that it might have been prudent to do (R v Kneale [1998 2 NZLR 169; R v Quinn [1991] 3 NZLR 146, 153 (CA)). If counsel’s advice and trial tactics were appropriate in all the circumstances, it will not matter that he or she may have been mistaken as to some of the matters requiring consideration (R v B, CA 302/99, 11 October 1999).
Ms Dhyrberg submitted that certain omissions on X’s part had the cumulative effect of resulting in a miscarriage of justice. These omissions are said to fall into two categories: a failure of counsel to procure medical evidence as to the injuries sustained by Mr Kerr; and a suggested failure to prepare the defence case adequately, leading to an erroneous and critical decision to call the appellant.
As to the failure to procure medical evidence, this is a canard. There was clear and uncontradicted oral evidence that Mr Kerr’s hand was cut in a particular manner by the broken glass. The jury was also assisted by photographs of the injured hand. The situs of the injury was between the thumb and forefinger. Mr Kerr is now endeavouring to advance a thesis that his hand would not have been cut in that manner if the incident had occurred in the manner suggested by Ms Haines. It is not at all clear that this aspect featured prominently at trial. If there had been any real dispute about the nature of the injury perhaps the medical evidence could have been useful. But a perusal of the record does not indicate that there was any challenge by the Crown to the injury actually suffered. In those circumstances, formal medical evidence would not have added anything. Even if there had been any doubt about that issue, the medical evidence would have been of very limited (if any) use in determining the issue of how the glass was actually broken. That was precisely the advice X was himself given by doctors prior to the trial. And a late attempt to get formal evidence before us from a distinguished forensic pathologist for Mr Kerr was fruitless – Professor Koelmeyer was quite unable to say this injury was more consistent with the defence account. And, even if there had been any mistake of the character attributed to counsel, it certainly does not come into the category of a “radical mistake” as envisaged by the authorities. There is nothing at all in this point of appeal.
The second aspect of this head of appeal is that it is claimed that X was inadequately prepared and, that somehow, because of this, Mr Kerr was called to give evidence when it would have been better that he not be called. This change of direction came about because, in the result, Mr Kerr’s affidavits did not withstand close examination.
Mr Kerr made an affidavit in which he deposed that he never met with X for a proper interview and to go through the evidence of the Crown, despite requests on his part. He complained that apart from the trial, he only ever met X in Remuera some two weeks before the trial. He further deposed:
The longest period I spent with him talking about my case was approximately ten minutes at the second callover which was one week before trial, and approximately fifteen minutes prior to trial. These discussions took place in the foyer of the District Court. Each time we met at court fixtures I said we needed to get together to prepare for my trial.
Mr Kerr says he became increasingly anxious. He was only able to speak to his counsel on the telephone four or five times. He deposed that at no time prior to trial did X go through the Crown statements with him. He says “I believe that decisions about the evidence to be called and how to discredit the Crown witness should have been made in discussions with me”.
As to the decision to give evidence, Mr Kerr acknowledged that:
I had told trial counsel on a couple of occasions that I would give evidence if necessary. I was not resistant to giving evidence myself and calling evidence and was always prepared to so if that was the best thing to do for my defence. The subject of giving evidence was only ever discussed to the extent that I confirmed I would give evidence if necessary.
Any force in the suggestion that X was inadequately prepared evaporated in face of the affidavits made by him, after the appeal was lodged. X had started, of course, with the advantage that Mr Kerr (on X’s advice) had made a full Police statement of some six pages. Mr Kerr has never sought to resile from that statement. And when counsel met with Mr Kerr he confirmed that version of events. There was a significant time period of nearly four hours on the day depositions were called, and during that time X again discussed the relevant evidence with his client. There were further meetings (which were carefully detailed by X) on the occasion of a standby trial and at call-overs. There is no question that X had a sound grasp of the case, and the defence. That is evidenced by the way he dealt with the evidence of the witnesses throughout the trial. We have perused the entire record: the evidence was lead and cross-examined on competently over the trial. The witnesses were challenged in the manner they ought to have been, as to the reliability of their recall; on any inconsistencies; and like matters. In our view, everything was before the jury which ought to have been before it, to enable it to reach a sound verdict on the only issue in the case: accident or not.
The only issue left under this head of appeal was whether it could be said that the decision to call X was a “radical blunder”. The first point to note here is that it is unusual to have a case in which a client is complaining of having been called – usually the point is made that, if called, the client could have answered the charge. Be that as it may, the same principles obtain.
In face of Ms Haines’ evidence, and the important corroborating evidence of Ms Jones, it is difficult to see how Mr Kerr could have had any prospect of success whatsoever, without himself giving evidence. That is not to say that as a matter of law he had to do so. But the practical forensic context of the litigation has to be borne in mind. And Mr Kerr deposed that, if necessary, he was prepared to give evidence. His counsel was therefore in possession of adequate authority to pursue the course which was in fact pursued. Mr Kerr in fact gave evidence. He stuck to his story. He seems to have been aggressive at times, and possibly his demeanour did not sit well with the jury, but that is not something that can be laid at counsel’s door.
Even assuming that there was some force in any of the complaints made (and that is not the view we take) it would be necessary to show that those errors or professional misconduct impacted on the outcome in a way contemplated by the authorities. There is no evidence that comes anywhere near supporting a holding of that character. In the result, this ground of appeal is also dismissed.

Jury’s Verdict Unreasonable

The principles which pertain to an appeal under this head are very well established. In R v Ramage [1985] 1 NZLR 392 this Court said, “[it has to be demonstrated that] … a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury” (at p393). (Italics added).
That test was recently reaffirmed in R v H (CA 200/98, 28 October 1998) where this Court approved a dictum of Edwards J in R v Allendale & Dennett [1905] 25 NZLR 507 viz.:
… this Court cannot interfere with the verdict of a jury in a criminal case unless it is satisfied that the verdict as such is twelve reasonable men, giving due weight to the presumption of law in favour of the prisoner’s innocence, could not properly have found. All questions of the credibility of witnesses, and within the above limits of the weight to be attached to their evidence, are for the determination of the jury and must be held to have been determined by their verdict (at p508).
Enough has been said of the evidence in this case to indicate that, at root, this was a straight out credibility case. What was before it was very distinctly a jury issue, in which all of the witnesses were heard by the jury; their evidence was thoroughly traversed; the issues it had to determine were put before them fairly, and in a balanced way by the presiding Judge. There is no room at all in this instance for the submission that the jury must have entertained a reasonable doubt. To arrive at any other view would patently be to usurp the function of the jury. This ground of appeal is therefore also dismissed.
Appeal dismissed.

Solicitors:

Crown Law Office, Auckland

[2001] NZCA 230

28 August 2001