The Queen v Gennaro Leslie Ruocco

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 423/01

THE QUEEN

GENNARO LESLIE RUOCCO

Hearing:	21 March 2002
Coram:	Richardson P McGrath J Durie J
Appearances:	C M Clews and D G Hayes for Appellant J C Pike for Crown
Judgment:	21 March 2002

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

Introduction

This is an appeal against conviction. The appellant was sentenced to two years imprisonment having been convicted of the charge of causing grievous bodily harm with intent to cause grievous bodily harm.

Background facts

On the evening of 5 January and the early hours of 6 January 2001 the complainant had been drinking along with others at a friend's place in Te Awamutu. At around 2 am a number of the friends left the party. When they left the property they left the gate open allowing the dog on the property to escape. The complainant and a few of his friends started to walk up the road and shouting at the dog in an attempt to retrieve it.
There are a number of different recollections as to the events that took place surrounding the incident. The complainant says that after they eventually caught the dog a man came out of a property and started telling them to shut up. The complainant claims that the appellant told them to shut their mouths or he would smash their heads in. The man then went away and returned with a baseball bat. At this point the complainant says there was a further exchange of words with a friend of his. He claims that he said nothing but then walked over to see what was going on and this is when the appellant came at him and hit him across the head with the bat. He then fell to his knee and then felt another hit across the back of his spine. As he walked away he fell over, landing on his back. He looked up, saw the appellant take another swing at his head, he put his arm up to stop the bat from striking him in the head, and was struck on the arm. The complainant’s friends then took him to hospital.
The appellant gives a different account of the events. His evidence was that around 2 am he was woken by his dog barking frantically outside. The appellant went outside to investigate the noise and was told by his 8 year old son that his garage had been broken into. Having noticed a group of people outside his neighbours’ property he went to talk to them. He said that one of the men approached and swung a bat at him. He was able to grab the bat off the man and in self-defence hit him with it. His evidence was that he thought he hit the complainant on the left shoulder. As a result the man went down on his knee, but at the same time he started calling for the other men to get the appellant. At some point after the first hit a beer glass was thrown in the direction of the appellant. The appellant said that the man who originally swung the bat at him approached him again. In response he took another swing at him with the bat, this time it struck the complainant in his chest area, causing him to fall to the ground. The Crown case at the trial was that the appellant then struck the complainant a third time, breaking his wrist. The appellant denied that and said that the complainant must have broken his wrist when he fell after the second hit.
There is conflicting evidence as to who initially came at whom with the baseball bat. Mr Donald Paekau, the appellant’s neighbour, gave evidence that he too was woken up that night by a lot of swearing and yelling. He also went outside to investigate the noise. After witnessing the initial exchange of words between the appellant and the group of people he saw the appellant go back into his house. He next witnessed one of the men approaching the appellant who was back outside. The appellant then hit the man on his arm with a bat causing him to fall to the ground. He then said he saw some of the other men approach the appellant and then heard the sound of glass smashing. Following this the appellant was approached again and again he responded by hitting the man with the bat.
Mr Colin Jones, who was one of the complainant’s friends there on the night in question gave evidence that it was the appellant who came out with the baseball bat and attacked the complainant. Mr Jones during examination in chief said that after the complainant had been hit with the baseball bat he threw his beer glass in the direction of the appellant. This, he said, was when the appellant tried to hit him, but he ended up hitting the complainant again and while the complainant was down the appellant took the third swing breaking his wrist when the complainant put his hand up to protect his head.
Another witness Miss Renee Shilton, also a friend of the complainant’s, in her evidence stated that when the appellant struck the complainant the first time it connected with his arm or wrist and not his head. Under examination in chief she said she witnessed Mr Jones throw the beer glass in the direction of the appellant, but under cross examination she said she didn’t know if she saw the beer glass being thrown, but remembered hearing it smash. When the complainant was hit the second time she thought he was probably hit in his back.
The medical evidence showed that the complainant sustained a cerebral contusion (bruised brain) with concussion, posterior linear scalp contusion, fractured left ulna and a minor abrasion to his right knee.Police photographs also show that the appellant sustained some bruising to his lower back, although there was no mention of this in the medical report.
As a result of the above incident the appellant was charged with causing bodily harm with the intent to cause grievous bodily harm.

The trial

At the trial the appellant contended that the complainant initially assaulted him and that it was the appellant who was carrying the baseball bat. The appellant admitted to striking the complainant twice. He denied that he struck the complainant a third time. It was the defence case that the whole episode was one of the appellant acting in self-defence after being confronted by a group of people.
The original indictment contained a single count of causing grievous bodily harm with intent to do so. However, at the conclusion of all the evidence the trial Judge amended the indictment changing the single count to three counts. This was done with the consent of both the Crown and defence counsel. The first count was in relation to the first blow to the side of the head, the second count was in relation to the blow to the lower back and the third count for the third blow to the left forearm. The defence, however, in its closing submissions maintained that this was one episode in which the appellant was acting in self-defence from 3 or 4 assailants.
The Crown case relied on the evidence of the group, who in general terms said they were heading home after a party when they were confronted by the appellant. There was a verbal exchange and some swearing. The appellant then came out with a baseball bat. At that stage the complainant was not involved in the verbal exchange but when he walked towards the appellant, the appellant struck him with the bat, and then he fell to the ground. At some stage after the first blow and before the second blow a glass was thrown in the direction of the appellant. The appellant then made a further advance and struck the complainant again, this time in the lower back. The complainant fell on to his back and looked up to see the appellant taking a further swing. In order to protect himself he put his hand up and this resulted in the fracture to his forearm.
The Judge in his summing up to the jury, having given the general instructions, distributed to the jury a memorandum.   Included in this memorandum was a suggested approach.   This read as follows:
6)          Suggested approach
a)          First, consider the evidence of the accused.
i)If you accept his account or believe that the events might possibly have unfolded in the way that the accused stated in his evidence, you should then determine whether the Crown has proved beyond reasonable doubt that the accused was not acting in self defence;
ii)If the Crown has not proved beyond reasonable doubt that the accused was not acting in self defence – you should find the accused not guilty.
b)          If you do not accept the accused’s evidence and reject it then:
i)in respect of count 1, has the Crown proved beyond reasonable doubt:
(i)that the accused struck the complainant with the bat to the side of the head;
(ii)if so, did this cause the complainant grievous bodily harm; and
(iii)at the time the blow was struck, did the accused intend to cause the complainant grievous bodily harm
(iv)if this is so proved, has the Crown also proved beyond reasonable doubt that the accused was not acting in self defence at the time that he struck the complainant in this way.   If so, then your verdict should be guilty.   If the Crown has not disproved self defence then not guilty.
(ii)In respect of counts 2 and 3, has the Crown proved beyond reasonable doubt:
(i)that the accused struck the complainant with the bat to lower back (count 2) or to the left forearm (count 3)
(ii)if so, did this injure the complainant (count 2) or cause the complainant grievous bodily harm (count 3); and
(iii)at the time that that particular blow was struck, did the accused intend to cause the complainant grievous bodily harm.
(iv)If so, self defence is not available to the accused in respect of counts 2 and 3.   That is, if you reach this position, you would have accordingly rejected the accused'’ evidence in this respect and accepted the Crown evidence.   In those circumstances, such force would not be justifiable as applied in self defence and you should find the accused guilty.
His Honour then continued his summing up, addressing the jury on self defence generally and then returned to the “suggested approach” noted in his memorandum. His Honour mentioned that he was treating counts two and three differently from count one, because there was the initial confrontation. His Honour went on to say that in respect of counts two and three he had removed self defence from the jury, on the basis that in his opinion that it could never arise in the circumstances outlined by the Crown witnesses.
The jury retired at 4.05 pm on 20 November 2001. At 5.25 pm on the same day they returned with three questions. The first was in relation to a policeman’s evidence relating to two bats which had been located. The second related to the Doctor’s statement concerning the complainant’s injuries and the third question was what was Mr Paekau’s account of the appellant’s movements just before the incident. The relevant evidence was then read back to the jury.
The jury deliberated until just after 10 pm and returned advising that they had reached a decision on two of the counts and asking whether it was necessary to come to a decision on the remaining count. The trial Judge directed the jury that it was always best that a decision be reached. A Papadopolous direction was given and the jury then retired.
The jury returned at 11.05 pm with the verdicts of not guilty on the first two counts and guilty on the third count.

Appeal to this court

The appellant has advanced four grounds of appeal. The first is that the trial Judge misdirected or failed to direct the jury. Counsel submitted that the Judge should not have removed self defence from the jury in relation to counts two and three, that being in contest between the Crown and defence throughout the trial.
In response the Crown argued that the Judge did not remove self defence. If the jury found that the appellant was or might have been telling the truth about being attacked and acted in self defence in the two blows he said he struck, the appellant was to be acquitted on all three counts. If, however, they rejected the appellant’s account - as they must have done to find him guilty on the third count - they could still find on the evidence that the accused acted in self defence when he struck the first blow.
The second ground of appeal was that the trial Judge should not, having amended the single count to three counts, have thereafter removed the Crown obligation to negate self defence in relation to counts 2 and 3. The appellant argues that this led to an unfair trial. It was contended that throughout the trial it was the Crown case that this “whole episode” was an attack by the appellant, and it was the defence case that the appellant was defending himself during the “whole episode”. Counsel argued that the jury had obviously believed the evidence of the appellant in relation to the first two counts and submitted that the jury’s question at 10 pm must have been in relation to the remaining third count. The issue must therefore have been whether there was a third blow or not. It was submitted that if the jury found that there had been a third blow, as they did, then in fairness the next question should have been whether it was struck in self defence.
The Crown submitted that the Judge was entitled to direct differently in relation to each count on the issue of self defence, that, in the light of the verdict on count 2, it was unnecessary to consider the directions as to that count and that there was no foundation in the Crown evidence for self defence to be raised on the third count and the appellant had denied striking that third blow.
The third ground of the appeal was that the jury verdicts in relation to count two and three were inconsistent, rendering the guilty verdict unsafe. The appellant submitted that the jury accepted the evidence of the appellant in relation to the second count and must have accepted the Crown’s evidence in relation to the third count. However, the appellant contended that the jury had been directed that, in rejecting the appellant’s evidence and accepting the Crown evidence on either count two or three, the question of self defence had been removed and therefore they must convict.
The Crown pointed out, in relation to the not guilty verdict on count two, that the reasons could only be known to the jury. They could have acted contrary to the Judge’s instruction or found that there was insufficient intent.
The fourth basis of the appeal was that there was an unsatisfactory verdict. It was submitted that the jury must have had difficulty in reaching a decision in relation to the third count in light of their question at 10 pm which was followed by a Papadopolous direction and as a result the jury was under pressure to reach a verdict in relation to the third count.
The Crown submitted that this was entirely speculative.
For reasons we can state quite shortly, we are satisfied that the appeal must fail. Both the Crown case and the defence began with the confrontation in the street between the noisy group and the appellant. The appellant's evidence was that he was under threat, wrested the baseball bat off one of the group and struck two blows in quick succession. He denied striking a third blow, denied hitting the complainant on the wrist, and surmised that the complainant would have broken his wrist when he hit the ground after the second blow. The Crown case was that the appellant had brought the bat out of his house and struck three blows.
The Judge fairly, perhaps generously, suggested that if the jury accepted the appellant's account or believed that the episode might have happened in that way, which could instil fear of risk of bodily danger to which the appellant had responded in that way, they could conclude that the Crown had not proved beyond reasonable doubt that the appellant was not acting in self‑defence and they should find him not guilty on all three counts. But if not determining the episode on that basis in favour of the appellant, they would have to consider each count separately and so in relation to each count would have to be satisfied that the necessary intent had been established, and in relation to the first count only, whether self defence had been negatived. Clearly, in considering the counts separately the jury must be taken to have rejected the appellant's overall account.
As regards the third count, we are satisfied that the Judge was right to remove self defence from the jury. On the Crown case there were three separate blows. The third was some short distance in time after the second blow. By then the complainant had fallen to the ground when trying to walk away and, on the Crown case, had looked up, seen the bat being wielded, put up his arm to protect his head, and had his wrist broken by the third blow.
There is simply no evidential foundation in the evidence of the Crown witnesses for self defence to be considered by the jury and, of course, the appellant had denied ever striking that blow. The jury was well entitled to find that the elements of the charge, including the necessary intent, had been established. In that regard there is no necessary inconsistency between the verdicts on counts 2 and 3. On the Crown case they were separate blows a short time apart where people were milling about. Having found the appellant not guilty on the first count relating to the first blow, they were entitled on the evidence to find that the appellant did not have the intent that was necessary in order to convict on count two. In relation to the third count, having found there was a third blow, the jury was entitled to find that the appellant had intended to cause grievous bodily harm in striking the appellant's forearm.
Finally, as to the fourth ground of appeal, we agree with the Crown that one can only speculate. The jury may have moved to count 3 after deciding count 1, deferring what they may have regarded as the more difficult count 2. Or, they may have given the appellant the benefit of the doubt as to intent in relation to count 2. It is always difficult to know what the jury may have been thinking during their deliberations. We are, however, satisfied that there is nothing to indicate the jury felt pressured in reaching its verdict of that the verdict is otherwise unsafe.
For the reasons given the appeal is dismissed.

Solicitors
Kit Clews, Hamilton, for appellant
Crown Law Office, Wellington

[2002] NZCA 28

21 March 2002