The Queen v Dutton

[2008] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 426/07
[2008] NZCA 137

THE QUEEN

v

JOHN PHILLIP DUTTON

Hearing:20 May 2008

Court:Robertson, Wild and Cooper JJ

Counsel:P F Gorringe for Appellant

A Markham for Crown

Judgment:27 May 2008 at 11.30 am

JUDGMENT OF THE COURT

AAn extension of time for appealing is granted.

BThe conviction of aggravated assault and sentence of 12 months’ imprisonment on Count 4 in the indictment are set aside.  A conviction for common assault, and a sentence of six months imprisonment (to be served concurrently with the other sentences imposed in the High Court) are substituted.

CThe appeal is otherwise dismissed.

REASONS OF THE COURT

(Given by Cooper J)

Introduction

[1]       The appellant was tried before Miller J and a jury on an indictment containing four counts.

[2]       The first alleged that he had attempted to murder one Raewyn June Corlett.  The second was an alternative and alleged that he had injured Ms Corlett with intent to cause grievous bodily harm.  The third alleged that he had entered Ms Corlett’s house without authority and with intent to commit a crime carrying weapons (a rope and three knives).  Finally, he was charged with assaulting one Janet King with intent to avoid his detection in the commission of the crime of attempted murder. 

[3]       The appellant was acquitted on the first count but found guilty on the second and third.  On the fourth count Miller J instructed the jury that if the Crown failed to prove assault with intent to avoid detection in commission of the crime of attempted murder, then the jury was able to find the appellant guilty of an included charge, namely assault.  However, the jury convicted him of aggravated assault.

[4]       The appeal is advanced in respect of the three convictions on the basis that trial counsel conducted the defence contrary to instructions, resulting in a miscarriage of justice, namely prejudice to the appellant’s chance of acquittals.

[5]       The appeal was filed out of time, due to a misunderstanding by the appellant as to the time within which it was required to be filed.  However, the Crown has not opposed the Court dealing with it on the merits.

Background

[6]       The principal complainant, Ms Corlett, was the appellant’s neighbour.  She had helped him in various ways over the ten years that they had been neighbours, assisting him to get medical attention and making contact with family members when she thought that he was unwell.  The appellant suffers from agoraphobia, chronic anxiety and depression.  He is on an invalid’s benefit and has been unable to work since 1977. 

[7]       It was the Crown’s case that the appellant had come to Ms Corlett’s house on an occasion when she was looking after her young nephews.  He had been drunk and she had asked him to leave.  Ms Corlett maintained that he had responded by smashing some fence palings on her property.  When he came over the next day in order to apologise, she told him to leave.  Subsequently, after another incident, she made contact with the police. 

[8]       A few days later she was inside talking to her friend Ms King on the telephone.  The appellant entered the house armed with a rope and knives.  It was the Crown’s case that in the struggle which followed the appellant intended to kill Ms Corlett. 

[9]       Ms King lived nearby in the same street.  She ended the telephone discussion with Ms Corlett and hurried to the scene where the struggle between Ms Corlett and the appellant was on-going. 

[10]     According to Ms Corlett, at one stage the appellant succeeded in placing the rope, in the form of a noose, around her neck.  She claimed that he had banged her head against a wall, using his left hand to hold the rope and her hair while she grasped his right hand in an attempt to stop him.  Eventually, he bit her so as to release his right hand. 

[11]     Ms King left to call the police.  Police officers gave evidence that when they arrived shortly after that, the appellant was standing over Ms Corlett and pulling hard at the rope that remained around her neck.  She had then been seated or was kneeling on the floor facing him.  According to Constable Murdoch, the appellant was applying considerable effort pulling on the rope, and he persisted to do so, failing to respond to demands that he stop.  It had been necessary for the police to physically put an end to the appellant’s assault.

The defence at the trial

[12]     Miller J summarised the defence to the attempted murder charge in the following way in his summing up:

[49]     The Defence case begins by accepting that Ms Corlett did nothing to bring this on herself and she had been a good neighbour to Mr Dutton.  It says the case is about what was in Mr Dutton’s mind at the time of the incident.  The question is whether the Crown has proved beyond reasonable doubt that he meant to kill and I ask you to focus on that question.

a)The Defence suggests that had he really meant to kill, he would have done so.  He had the means to do so, knives as well as a rope and the time and the strength as shown by his resistance when the police intervened.  You will recall the evidence that although the rope was around her neck for a long time it was never pulled so tight that she was unable to breathe, you will recall that at one stage she told you he said he could stop her breathing, but did not do that.  She was able to speak to the police as soon as Mr Dutton was subdued and in an interview after the attack, she told the police that the rope wasn’t as tight as she reckoned he could have had it, he could have done away with her had he wanted to.  The Defence points to the photograph of the mark on her neck and suggests that all of this evidence is consistent with there not being an intent to kill or more accurately with the Crown having failed to prove that there was.

b)The Defence suggested in evidence that Constables Murdoch and Stone had little opportunity to see what Mr Dutton was doing when they first entered.  The light was poor, and things happened very quickly, so the Constable, that is Constable Murdoch, may have been mistaken when he said that Mr Dutton was pulling hard on the rope.  When he first looked through the glass door, which is not easy to see through as you would have noticed, he and Constable Stone thought that the standing figure was punching the person on the floor.  Indeed, Constable Stone thought he heard a female yelling inside the house, suggesting she was able to use her voice when the police arrived.

c)The Defence also noted in evidence that the knot bore no resemblance to a hangman’s noose;  suggesting it was just a knot.

d)The Defence points to his behaviour before the incident and his very calm demeanour in talking to the police immediately afterwards and his medications, Prozac and Valium, and emphasises that  you must not assume just because of the attack that he meant to kill.  It suggests his mental state was questionable, that he was unwell, that he had lost the plot.  And it says from all of this that the Crown has not proved that he meant to kill.  I will say more about question of drug use later on because it is relevant to all of the charges, so I will come back to that question.

e)With respect to motive the Defence suggested in evidence that the fence issue didn’t motivate him.  As Mr King told you that it had been dealt with, he had received a police warning and that was that.  He wasn’t seeking to punish her, rather he got some new medications and he also apologised to her a few days before the incident.  He wanted to put it behind him.  When she spoke to him on 6 August, the day of the incident, he was again apologetic.  The Defence says that something happened to trigger him, but it wasn’t the fence issue or her complaint to the police.

[13]     In relation to count 2, Miller J said that the appellant did not dispute that he caused Ms Corlett’s injuries.  The defence on that count was that the Crown had failed to prove that the appellant intended to cause really serious harm.  Although he may have injured her, he did not cause her really serious harm so lacked the necessary intent to be convicted on that count.

[14]     On count 3, the defence was that the appellant had entered the house through an open door (while Ms Corlett had been on the telephone) as he had been accustomed to doing on previous occasions to use the telephone.  On Count 4, the defence was that in the absence of an intention to kill Ms Corlett, the appellant could not be convicted of the charge as alleged.  Insofar as the included charge of assault was concerned, the defence was that the appellant had not intended to strike the complainant.

[15]     The appellant did not give or call evidence.  The defences were based on the Crown’s evidence, the relevant witnesses having been cross-examined by Mr King. 

The appeal

[16]     For the purposes of the appeal, Mr Dutton swore an affidavit setting out what his instructions to counsel had been.  After appropriate waivers of privilege, the Crown filed affidavits both from Mr King who was senior defence counsel at the trial, and from Mr Rickard-Simms who was his junior.  All three deponents were cross-examined.

The appellant’s evidence

[17]     In his affidavit of 31 March 2008 the appellant summarised his instructions to Mr King as being that:

(a)He had not assaulted Ms Corlett except for lightly biting her arm to make her release his hair.  She had in fact assaulted him.  She was an untruthful witness and her injuries were self-inflicted.  She suffers from “documented disturbance of her mind”.

(b)Ms King’s evidence at depositions had been largely supportive of his position.  She had seen no rope or knife.  She had hit him;  he had not hit her.  At the time that she arrived, he had been defending himself against Ms Corlett’s attack on him.

(c)The evidence of two police officers, Constables Murdoch and Stone was untrue.  They had not seen him hitting Ms Corlett or pulling on a rope around her neck.  The rope had only been around her neck in the bedroom, and not in the hallway in view of the police.  Instead, one of them, Constable Murdoch, had “viciously assaulted” him with his baton, breaking his left arm.  The second police officer, Constable Stone, had repeatedly stamped on his back whilst Constable Murdoch stood on handcuffs that were twisted up between his shoulder blades, breaking another bone.  He had also sustained cuts down to the bone on his right wrist.

[18]     According to the appellant, Mr King had not properly discussed the case with him.  He had given Mr King “screeds” of notes and letters which could have formed a proper basis for challenging Ms Corlett’s evidence.  His instructions to Mr King had been to challenge her evidence, and that of the two police officers fully, alleging that they were not telling the truth.  Mr King had told him at a meeting on the day before the trial that he thought he would be able to succeed on the attempted murder charge, but in relation to the other matters, Mr King had simply shrugged.  According to the appellant, he had been disturbed by that indication, which was the first time Mr King had indicated any view on the likely outcome of the case.

[19]     In his affidavit, the appellant said that the defence presented at the trial was nothing like what he had instructed Mr King to do.  He continued:

To my horror, he accepted the descriptions by Ms Corlett and the Police Officers of what occurred in the house.  The defence for me which he portrayed was my allegedly deteriorating state of mind.  (I refer to my health issues elsewhere in my Affidavit).  Thus the jury heard only that I agreed with virtually all that the Crown witnesses said, but I denied guilt because I did not form the specific intentions required to [sic] law to commit the offences, or indeed actually commit the offences.  This line of defence had not been previously raised with me, let alone discussed.  If it had been, I would have refused to allow it.  It was not my case, which was that the Crown version of the incident was factually untrue.  I had not given Mr King a discretion to defend the prosecution on a basis other than the one I gave him.

[20]     The appellant accepted in his affidavit that he had not been capable of giving evidence at the trial, because of his state of health.  He maintained, however, that there had been no discussion about his giving evidence prior to the trial.  Further, although he was unable to give evidence, the material that he had provided to Mr King before the trial had been so detailed that he would have been able to establish more than a reasonable doubt about the prosecution evidence by cross-examination alone.  As he put it:

I had critically dissected Ms Corlett’s evidence and that of the two Police Officers almost word by word, and provided plenty of comment to my Counsel to work from.

[21]     That observation was obviously made with respect to the evidence that had been given at depositions.

[22]     The appellant said that on the second day of the trial, at the conclusion of the Crown’s case, he had been presented with a document to sign.  Mr King had told him that it was a standard document indicating that he did not wish to take the stand.  According to the appellant he simply signed the document and did not read it at the time.

[23]     The document was attached to the appellant’s affidavit as Exhibit “C”.  It was headed “Record of instructions to counsel” and read as follows:

I, John Dutton hereby record in writing my instructions to my counsel, Greg King and Tony Rickard-Simms.  I instruct my counsel not to call me to give evidence at my trial and not to call any evidence in my defence. 

It has been emphasised to me that this decision is mine and mine alone to make and I make my decision after consultation and advice from my counsel.  I confirm that a brief of evidence had been prepared for me to give evidence if I so chose. 

It has been explained to me that I have to live with my decision on whether or not to give or call evidence at my trial.  I understand that and have thought carefully about this.  I confirm my instruction.

[24]     According to the appellant, the question of whether witnesses other than him could have been called in his defence had never been discussed.

[25]     There was supplementary evidence from the appellant at the hearing of the appeal when he confirmed that his instructions to Mr King had been to fully challenge the prosecution evidence.  During the trial itself, it had been shocking, devastating… awful sitting there and listening to Mr King agreeing with the Crown witnesses”.  He had consistently told counsel that the three witnesses in question were “lying through their teeth”.

[26]     Cross-examined by Ms Markham, however, the appellant conceded that mention had been made of the possibility of calling other witnesses for the defence and that he had not complained to counsel that his instructions were not being followed during the trial.

The respondent’s evidence

[27]     The evidence from Mr King and Mr Rickard-Simms contradicted that of the appellant on all important points.  They were able, amongst other things, to rely on a note that had been made by Mr Rickard-Simms summarising a discussion that had taken place between them and the appellant at Rimutaka Prison on Sunday 11 June, the day before the trial.  We do not consider that it is necessary to set it out in full.  It included the following:

Dutton:… She said “John what are you going”.  Said it from the hall.

I tripped her up – I fell down she laid back against me – I put the rope over her head.  She said John I can’t breathe.

Dutton:I loosened the rope.

I tapped on her head like knocking on a door – Saying let go of my hair –

Greg:I’ve called that Hogtying are you O.K. with that.

Dutton:Yes, I just wanted to detain her –

Greg:Did you give any thought to what the police would do.

Dutton:No my judgement was entirely clouded.

Greg:If we turn this into Dutton v Police the Jury will side with the Police.

I’m not going to attack Corlett the way you say.

Dutton:That’s O.K.  I understand that.

Gone through brief – made amendments.  He is happy with that.

[28]     Mr King explained that the notes were not a verbatim transcript of all that had been said at a two hour meeting.  He maintained that there had been a full and frank discussion of the pros and cons of various approaches to the defence, including a full factual attack on the Crown witnesses.  It had been Mr King’s advice that that would be a tactically risky course to follow.  At paragraph 25 of his affidavit he said:

I am completely comfortable that Mr Dutton was fully aware and agreeable to the trial tactics employed in his defence.  In light of Mr Dutton’s stance on not giving evidence, and considering the effect of what he would say if he did, it was agreed that the trial should focus on his motivation and intention and that the defence would be a denial of mens rea.  The trial was duly conducted on this basis.

[29]     And later at paragraph 28:

I acknowledge as a consequence of the way the defence was conducted that there were aspects of the complainant’s evidence and also that of other Crown witnesses which Mr Dutton firmly disagreed with which were not challenged by me in cross-examination.  What I do say however was that the trial tactics, including not to challenge witnesses on these factual matters was agreed to by Mr Dutton.  Our concern as discussed with Mr Dutton was that a strong challenge to the witnesses, especially the complainant’s credibility, in the context where he would not be giving evidence in his own defence could serve to seriously undermine his case.  I am completely satisfied that Mr Dutton was agreeable to his defence being on this basis.

[30]     At the conclusion of the Crown case, defence counsel had asked Mr Dutton to sign the document set out in [23], in which he confirmed his decision not to give evidence.  As to the appellant’s claim that he simply signed the document without reading it, Mr King stated that the document had in fact been fully explained to the appellant and indeed read out to him.  The appellant had also read it through himself, and then signed it in the presence of both Mr King and Mr Rickard-Simms.  In addition to signing it, he had initialled each individual paragraph before the document was signed by counsel.

[31]     Mr King denied that there had been no discussion about the possibility of calling other defence witnesses.  According to Mr King, a possibility of calling the appellant’s brother (who had had dealings with him about the time of the offending) as well as his general practitioner, a psychiatrist, Dr Judson, who had prepared a report for the Court and a toxicologist, Dr Robinson had been discussed.  The record taken by Mr Rickard-Simms of the discussion that took place on 11 June certainly shows that those witnesses were mentioned at that time, with explanations being given by Mr King as to why it would be inappropriate to call them.

[32]     Mr King said that the appellant had expressed no concerns whatsoever regarding the conduct of the trial as it proceeded.  When attending on the appellant during a number of adjournments he had seemed happy with what was taking place.  At the conclusion of the trial on 14 June, the appellant shook Mr King by hand and thanked him for his efforts.  He was apparently very relieved to have been acquitted on the charge of attempted murder, and aware of the implications of that for the sentencing.

[33]     On 21 July 2006 Mr King represented the appellant at the sentencing hearing.  In meetings both before and after the sentencing, the appellant raised no issues about how his defence had been presented at the trial.

[34]     In a letter dated 24 July 2006, but not received by Mr King until some time after that, the appellant wrote to Mr King in the following terms:

24.07.06

Howdy Greg,

1.I wrote a while back asking for Tony’s address but…

2.It was about having all the statements etc. returned.  Photos…

3.I’d like transcripts of trial and sentencing too.

May as well read the lunacy.
I did see two write-ups in the papers.
It’s really weird being told I did this and I did that.
I really was there, and I really do know what happened.
Corlett knows.
I know.
Corlett is a piece of filth.

4.How do I go about making a complaint?  To the P.C.A.

5.How do I go about compensation?

I’ve been waiting five weeks, so far …

If you are as busy, as it seems you are maybe you could slip me Tony’s address.

All y’all take good care of y’all and all y’all care about,

Johnny Too Bad

[35]     There was a suggestion at the hearing of the appeal that the appellant may have wanted Mr Rickard-Simms’ address (he is the “Tony” mentioned in paragraph 1) so as to instruct him to act on the sentencing, replacing Mr King.  However, as can be seen, the letter itself does not support that proposition, paragraph 2 giving a different explanation.

[36]     Mr Rickard-Simms confirmed Mr King’s evidence, and was able to supplement it in a number of respects.  In his affidavit, he recorded speaking to the appellant during the trial, at the conclusion of Ms Corlett’s evidence.  A note he took at the time read:

Speak to John:  he acknowledges matters are on track.

[37]     Mr Rickard-Simms accepted that when he spoke to the appellant during the trial, he would regularly attack witnesses stating that they were lying, in particular Ms Corlett and the police witnesses.  However, he said that at no stage had there been any indication that he was not satisfied with the conduct of the defence, or with counsel.  On the final day of the trial, after counsel’s closing addresses but prior to the summing up Mr Rickard-Simms spoke to the appellant in the cells.  A note that he took on that occasion included the following:

Speak to John in the upper cells:  “Really appreciate what you guys have done for me”.

[38]     According to Mr Rickard-Simms:

The defence and the manner of how the trial was to be run were discussed at length with the appellant on many occasions and usually in my presence.  The appellant was aware and approved the tactics employed.

Discussion

[39]     We accept the evidence of Mr King and Mr Rickard-Simms, and prefer their evidence to that of the appellant for a number of reasons.  First, we have no reason to doubt the accuracy of the notes taken by Mr Rickard-Simms with respect to the meeting that took place at the prison on the day before the trial and of the notes that he took during the course of the trial about his meetings with the appellant.  According to the former, instructions had been sought and obtained that the trial was not to proceed on the basis of an attack on the factual accounts to be given by the complainant and by the police officers.  It appears that that particular issue was specifically put to the appellant and he accepted the advice that had been given as to the appropriate trial tactics to be followed.  The note is consistent with the evidence of both Mr King and Mr Rickard-Simms. 

[40]     Although he has consistently maintained that he told counsel that the Crown’s principal witnesses were lying, and did so during the course of the trial, there is no evidence from the appellant that he made any complaint during the course of the trial about the manner in which the defence was being conducted.  Had he thought that the conduct of the defence was “shocking, devastating [and]… awful” it is inexplicable that he made no observation to counsel about that at the time.  Such evidence, had it been given, would in any event be totally inconsistent with Mr Rickard-Simms’ notes made during the course of the trial as to the appellant’s attitude at the time.

[41]     The appellant signed the document recording his decision not to give evidence after the conclusion of the Crown case.  If there had been a failure by counsel to follow his instructions, it is very difficult to understand why presentation of the document for his signature did not prompt some form of remonstration at that point. 

[42]     We have no reason to doubt Mr King’s evidence that had the appellant insisted on mounting a factual attack on the key Crown witnesses he would have been in a position to do so.  The appellant’s version of events had been reduced to a written brief that had been provided and he could have been called to give his version of events.  However, given the appellant’s consistent position that he would not give evidence, counsel would have been left in the position of mounting an attack on Ms Corlett’s account of the events that transpired without being in a position to call any defence evidence to back up the attack.  It is easy to see how such an approach could have been counter-productive.  Apart from anything else, it would have given ample opportunity for Ms Corlett and the police officers to repeat their version of events.

[43]     Given that the appellant evidently accepted that he had entered Ms Corlett’s house without being asked, carrying a rope and armed with at least one knife, the essential elements that the Crown needed to prove on count 3 could not be contested.  It had also been part of Mr Dutton’s instructions to counsel that he had actually gone to the house with the intention of detaining Ms Corlett so as to ensure that the police would come to the scene.  This was because he was in real need of help, and had been feeling increasingly unwell mentally.  He thought that the police would definitely come if he was able to tell them he had detained the complainant.

[44]     Having regard to these aspects of counsel’s instructions, we are in no doubt that the line taken by the defence was sound tactically.  That adds credibility to the evidence given by Mr King and Mr Rickard-Simms that the intended tactics at the trial were fully explained to the appellant and accepted by him. 

[45]     The fact that Mr King’s services were retained for the purposes of the sentencing hearing, and the generally friendly terms of the appellant’s letter of 24 July 2006 confirm our preference for the evidence of Mr King and Mr Rickard-Simms.

[46]     In the circumstances we are satisfied that counsel conducted the defence in accordance with the appellant’s fully informed instructions.

Further observations

[47]     The conclusion we have just expressed means that the appeal must be dismissed.  For completeness we note that had we accepted the appellant’s contentions, we would not have concluded that there had been a miscarriage of justice on the present facts.  The tactics adopted at the trial were sound.  They resulted in the appellant being acquitted on the most serious of the charge he faced, that of attempted murder.

[48]     Had there been a full attack on the accuracy of the evidence given by Ms Corlett and the police officers, they would have been in a position simply to reiterate their evidence with the defence not being in a position to call any evidence in response.  It is difficult to see  how that could have resulted in a successful defence.  It might very well have distracted the jury from what was inevitably the main thrust of the defence on all of the charges which the appellant faced, namely the lack of the necessary mens rea to commit the offences.

[49]     In sentencing the appellant, Miller J observed:

You are not entitled to credit for a guilty plea, and Ms Corlett had to give evidence with all of the stress that that carries, but some allowance must be made for Mr King’s point that you took issue not so much with the events but rather with the intention that was attributed to you.  The jury acquitted you of attempted murder, and it was made clear in cross-examination of Ms Corlett that her truthfulness was not challenged.

[50]     The appellant was sentenced to an effective term of five years’ imprisonment.  It is apparent that the manner in which the defence was conducted was not only important in securing the acquittal on count 1, but also paid a dividend at sentencing.  

[51]     Miller J imposed a sentence of one year’s imprisonment for an aggravated assault on Ms King.  Although that was in accordance with the verdict, in fact the appellant should not have been convicted of that offence, since his acquittal on Count 1 meant that the aggravating element had not been proven. Miller J’s summing up and the materials that he gave to the jury during the summing up referred to an included charge of assault, which in context must have been a reference to common assault under s 196 of the Crimes Act.  In the circumstances we consider that the appropriate course to follow is to quash the appellant’s conviction for aggravated assault, and to substitute a conviction for assault.  The jury must have been satisfied that the appellant had indeed assaulted Ms King.

[52]     Under s 196 of the Crimes Act the maximum term of imprisonment able to be imposed is one year’s imprisonment.  In our view, the appropriate sentence on the facts of this case would have been one of six months.

Result

[53]     An extension of time for appealing is granted.  We allow the appeal as to conviction on aggravated assault (count 4) which is quashed.  A conviction for common assault is substituted.  We quash the sentence of one year’s imprisonment on aggravated assault, and sentence Mr Dutton to six months’ imprisonment on common assault. 

[54]     The appeal is otherwise dismissed.

Solicitors:

Crown Law Office, Wellington