The Queen v Farquhar

[2006] NZCA 36

IN THE COURT OF APPEAL OF NEW ZEALAND

CA4/06

THE QUEEN

v

BRUCE SCOTT FARQUHAR

Hearing:27 February 2006

Court:Glazebrook, O'Regan and Robertson JJ

Counsel:S L Baigent for Appellant

M D Downs and M J Inwood for Crown

Judgment:20 March 2006 

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION AND SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Robertson J)

Introduction

[1]       Bruce Scott Farquhar appeals against both his conviction in the District Court at Dunedin on 27 September 2005 after a jury found him guilty of injuring with intent to injure and his consequent sentence of 18 months’ imprisonment imposed by District Court Judge MacAskill (who had presided at the trial) on 15 December 2005.

[2]       The appeal against conviction was advanced on the sole ground that the Judge was in error in the manner in which he directed the jury that the complainant’s bad character was relevant only to his credibility and not to the appellant’s claim of self-defence.

[3]       The appeal against sentence was on the grounds that it is manifestly excessive and that the Judge was improperly influenced by an outstanding unrelated charge against Mr Farquhar.

The facts

[4]       The offending occurred in the Southern Tavern in Dunedin in the early hours of the morning of 7 August 2004.  The appellant and the complainant (Mr Driver) had both been drinking for a substantial time.  The appellant was told to “fuck off” by Mr Driver who considered that Mr Farquhar was obstructing a player in a game of pool.

[5]       The appellant approached the complainant and asked him to repeat what he had said.  He again was told to “fuck off” whereupon Mr Farquhar punched Mr Driver in the head knocking him to the floor.  As the complainant struggled to get up off the floor, Mr Farquhar kicked him in the head.  Mr Driver suffered bruising around the eyes and scalp, a fractured cheekbone, nasal bone and broken collarbone.  Mr Farquhar claimed that the complainant had threatened to stab him and that he was acting in self-defence.

[6]       The Judge sentenced on the ground that the jury had rejected as a reasonable possibility the fact that Mr Farquhar was acting in self-defence.  He considered the sentencing range was 18 months to two years.  The Judge noted a prior conviction for a violent offence as being an aggravating factor, but as it was in 1989 gave little weight to it.  He considered that remorse, community involvement and the appellant’s family commitments were mitigating factors and so he imposed a sentence at the lower end of the range namely 18 months’ imprisonment.

[7]       The Judge held that, in light of his personal circumstances, Mr Farquhar was an appropriate candidate for home detention but opined that he had reservations because the appellant was facing another trial on a substantially similar offence.  Notwithstanding, he gave leave to apply for home detention on the basis that the ultimate decision was for the Parole Board.

Conviction appeal

[8]       This relates solely to the two paragraphs in the Judge’s summing up when he said at [31]-[32]:

Firstly, under the hearing of character and demeanour of the complainant, you heard evidence that the complainant had been in prison, though not what for, and that he has since this incident been convicted of assault and of intimidating a police officer.  That evidence is evidence about the character of the complainant.  It is not relevant to the issue whether he said he was going to stab the accused.  You must not assume that the complainant said that he was going to stab the accused or that he is an untruthful witness just because he has convictions.  The evidence is relevant as to the issue of his credibility, that is whether you believe his evidence.  On that issue, it is for you to decide how the convictions affect your judgment.  I observe, however, that the complainant’s credibility is not at issue with respect to the particular incident that resulted in the accused being charged, that he, the complainant, has no recollection of it; but it may occur to you that there are other parts of the complainant’s evidence where his credibility is in question.

You should distinguish evidence of the complainant’s character from the evidence of the witnesses as to his demeanour that night.  You should consider the evidence of Mr Constable and Mr McCormick and decide whether it assists you in deciding what sort of mood the complainant was in that night and whether it supports the defence case that he was in an aggressive frame of mind.  In considering that issue, you will need to consider also the evidence of the other prosecution witnesses insofar as it relates to the complainant’s demeanour, particularly that of Mr Manson.

The appellant’s case

[9]       Ms Baigent, for the appellant, submitted that the Judge was mistaken in law in directing the jury that the complainant’s bad character was only relevant to the complainant’s credibility.  She argued that the Judge ought to have directed that the evidence could also be used to assist the jury to determine: the demeanour of the complainant on the night in question; to demonstrate the complainant’s propensity for violence when he had been drinking; to bolster the credibility of the appellant; and, to justify the extent of force used against the complainant.  Ms Baigent also contended that the evidence could be used to bolster the credibility of the two witnesses who testified to aggressive behaviour on the part of the complainant, both earlier in the evening and just before the incident.

[10]     Counsel contended that the complainant’s criminal history was a material matter from which the defence could argue that the complainant, on the evidence presented, was an aggressive drunk who used excessive force against a more vulnerable person, and may have intended to do so on this occasion.  Counsel accepted that the appellant punched then kicked the complainant when the complainant was moving towards the appellant and was within touching distance.  Ms Baigent argued that this was supportive of the defence contentions that the force used was justified in all the circumstances.  She submitted that the appellant was entitled to have this aspect of the case squarely before the jury.

[11]     It was submitted that, by limiting the purpose of this evidence to credibility alone, the Judge made an error of law that led to a miscarriage of justice.

Crown response

[12]     Mr Downs, for the respondent, submitted that evidence of bad character of the complainant was relevant only in that it said something about the likelihood that the complainant acted in a particular way on the night in question.  He contended that there was no established practice in New Zealand governing the directions to be given to a jury when such evidence is adduced.  Mr Downs submitted that this was not an appropriate case to establish what should be standard practice as:

(a)the shortened timeframe of the appeal had not allowed for comprehensive submissions to assist the Court; and,

(b)even if the jury was misdirected on the purpose of the evidence, no miscarriage of justice occurred.

[13]     Mr Downs noted that, unlike the authorities cited by the appellant, the complainant’s offending occurred after the complainant attacked him.  He further stated that although the complainant’s convictions could suggest a propensity for violence while intoxicated, they did nothing to indicate that the complainant resorted to violence of the degree alleged by the appellant (that is, the use of a knife).  Mr Downs further argued that the victim’s propensity for violence must be weighed against specific evidence of his conduct on the night in question, especially the eye-witness accounts and security camera footage. 

[14]     The issue before the jury was not whether the complainant was hostile, but the extent of the hostility.  Given this, Mr Downs submitted that the propensity evidence had little room for traction.  He contended that it was questionable as to whether a credible narrative of self-defence vis-à-vis the assault could have ever existed.

Discussion

[15]     Evidence of a complainant’s convictions may be relevant when self-defence is an issue in a case R v Davis [1980] 1 NZLR 257, 262 (CA), R v Wilson [1991] 2 NZLR 707 (HC), R v Taunoa CA155/02 23 September 2002 at [11].  While Davis and Wilson both focussed on the admissibility of such evidence, the Court did comment about how such evidence may be used.  In Davis Cooke J noted that convictions for violent crimes can suggest a propensity for violence.  He further stated that knowledge of a complainant’s violent disposition may be helpful to the jury in assessing the veracity of an accused person’s claim to self-defence.

[16]     Davis took a restrictive view on the question of when such propensity evidence can be introduced.  It is questionable whether Davis would be decided in the same way today given the more liberal view now taken to the admissibility of similar fact evidence.  The key question to be answered is how is evidence of the complainant’s previous convictions relevant to the case in question.  Unlike in the case of an accused, there is no consideration of prejudicial effect, as the only potential prejudice is to the complainant.

[17]     We are of the view that District Court Judge MacAskill was wrong to direct the jury that this evidence was available only in such a circumscribed way.  Evidence of a complainant’s previous convictions is not necessarily limited to issues of credibility.  We are also of the view that the Judge, in directing that the complainant’s convictions were relevant only to his credibility, was effectively excluding the evidence from any real role in the trial.  The complainant could not remember the course of events on the night in question and, therefore, his credibility on this crucial issue was simply not an issue.

[18]     Evidence of this kind, providing that it demonstrates a sufficient propensity for violence in relevant circumstances, could be available to bolster the contention of an accused person with regard to self-defence.  Such evidence will be of greater value when the person claiming self-defence knew something of the criminal history of the complainant, although this was not the case here.  It was questionable whether the evidence of the complainant’s convictions was admissible in the circumstances of this case.  On balance, we consider that it was, because the convictions, although subsequent to the incident, do suggest a propensity for violent behaviour on the part of the complainant when drunk.  As such they were relevant in that they could have bolstered the credibility of the witnesses who testified to the complainant’s aggressive behaviour on the night in question.

[19]     Despite the error, the critical issue is whether there was in fact any miscarriage of justice.  In our view, although the evidence was correctly admitted, it was only of marginal relevance.  The key issue in the trial was whether the complainant said he had a knife.  Without the possibility of a weapon, the kick in the head while the complainant was down must have been excessive force and could not have been self-defence.  The evidence of the complainant’s convictions did not support the accused’s claim that the complainant threatened to stab him as it did not establish any propensity on the part of the complainant to perpetrate violence with a weapon.  Further, there was significant evidence available from eye-witness accounts and from security camera footage suggesting that there was no knife and that the appellant’s contention that he was acting in self-defence because of a perceived attack with a knife lacked credibility.  Therefore, there is no basis for suggesting there was a miscarriage of justice.

Appeal against sentence

[20]     We find no substance in the sentence appeal.  Ms Baigent argued that the Judge had given too much weight to the appellant’s previous convictions which were years ago and insufficient weight to his remorse, community service and low risk of re-offending.

[21]     Mr Downs submitted that, in terms of R v Taueki [2005] 2 NZLR 372 (CA), and earlier sentencing principles, a starting point in the vicinity of two years was well within the appropriate sentencing discretion and that the sentence of 18 months properly reflected the mitigating factors which existed.

[22]     The Judge clearly took into account all matters which were relevant and which required consideration.  The decision is plainly within the available sentencing discretion.  The Judge’s concern about subsequent offending did not stop him granting leave to apply for home detention.

Conclusion

[23]     Accordingly the appeal against both conviction and sentence must be dismissed.

Solicitors:
Crown Law Office, Wellington