The Queen v Glenn James Hackell
[2002] NZCA 221
•10 October 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA131/02 |
THE QUEEN
V
GLENN JAMES HACKELL
| Hearing: | 19 September 2002 |
| Coram: | Tipping J Hammond J Baragwanath J |
| Appearances: | R M Lithgow for Appellant J M Jelas for Crown |
| Judgment: | 10 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY HAMMOND J |
Introduction
Mr Hackell was found guilty by a jury on a count of assault with intent to injure (s.193 Crimes Act 1961) in the District Court at Invercargill. A plea of self defence was rejected by the jury. On 19 April 2002, Mr Hackell was sentenced to 12 months imprisonment. He now appeals against both his conviction and sentence.
The principal issues on the appeal are the directions which should be given to a jury where an accused has “struck the first blow”; and the standpoint from which a jury is to assess the reasonableness of the actions taken by that accused.
Background
Mr Hackell was employed in a sales capacity by a Mr Walker, the complainant. Mr Hackell was in the habit of going to Mr Walker’s home daily, to account for his business dealings.
On 22 March 2001, Mr Hackell went to Mr Walker’s home with a friend, but with a different purpose in mind. Mr Hackell was angry because he had learned that Mr Walker had reported Mr Hackell’s partner to Social Welfare for alleged benefit fraud.
Unusually, Mr Hackell had removed his tie; and his sleeve was rolled up. He invited Mr Walker outside the home to “resolve” matters. Mr Hackell proceeded outside. Mr Walker then endeavoured to shut him out of the house. Mr Hackell forced the door open and made his way back into the lounge.
The Crown case was that Mr Walker and his wife then told Mr Hackell, on several occasions, to leave their home. As Mr Walker turned away from Mr Hackell, Mr Hackell punched Mr Walker in the jaw. This caused significant injuries to his jaw and teeth. Allegedly, Mr Hackell continued raining punches on Mr Walker. He kicked him, causing bruising to Mr Walker’s body. Mr Hackell and his friend then left the premises. Somewhat surprisingly, Mr Hackell continued to be employed by Mr Walker.
At trial, Mr Hackell claimed he had acted in self defence. He said that Mr Walker pushed him hard in the shoulder twice, physically threatened him with his fist drawn back as if to strike him, and then jabbed him in the face with his left hand. It was only then, or so it was claimed, that Mr Hackell struck Mr Walker with an upper cut. Mr Hackell also claimed that he did not deliver any further blows than that to Mr Walker. Whilst there was dental evidence revealing a blow to the jaw, there was no further medical evidence or photographs introduced in evidence to substantiate that any further injuries were in fact suffered by Mr Walker.
The Appeal Against Conviction
The appeal against conviction is advanced primarily on the basis that the trial Judge misdirected the jury on the issue of self-defence. It is submitted:
First, the Judge did not specifically advise the jury that, as a matter of law, a pre-emptive strike may be an act of self-defence;
Secondly, the trial Judge misdirected the jury as to the nature of the objective test to be employed by it. Specifically, Mr Lithgow submits that the jury ought not to have been directed to apply its own collective view of what comprised “reasonable force” in the circumstances. Rather, the jury should have been directed to determine what the community at large would regard as “reasonable”, and assess the appellant’s actions against that standard.
There is a subsidiary point of criticism, relating to the appropriateness of mixing the legal directions with challenges to the appellant’s veracity which, it is argued, undermined the defence case in a way that led to a miscarriage of justice.
The Essential Law
Under s.48 of the Crimes Act 1961, everyone is justified in using in the defence of themselves such force as in the circumstances as they believe them to be, it is reasonable to use. If a person is justified in using the force applied, the act is not unlawful. It is for the Crown to prove beyond reasonable doubt that at the time the relevant blows were struck an accused was not acting in self-defence.
This “defence” (more correctly, “justification”) raises three questions:
(a)What were the circumstances as the accused honestly believed them to be?
(b)In those circumstances was the accused acting in the defence of himself or another?
(c)Was the force used reasonable against the circumstances as the accused believed them to be?
The Judge followed this pattern which is referred to in Adams on Criminal Law at CA48.07. This three fold classification was adopted by Tipping J in Shortland v Police, 23 April 1996, HC Invercargill, AP74/95. His approach was approved by this Court in R v Wei Hau Li, 28 June 2000, CA140/00. The Court said:
The preferable approach, and the one upon which trial Judges usually proceed, is that taken by Tipping J in Shortland v Police (High Court Invercargill AP74/95, 23 April 1996) (see Adams CA48.07). In summary, on this approach the jury is asked to consider first what the accused believed the circumstances to be, from his or her point of view. The second question is whether, bearing in mind that belief of the accused about what was happening, he or she was acting in self-defence (again considered from his or her point of view). The last question is whether, given that belief, the force used in self-defence was actually reasonable.
In the present case counsel raised issues relating to the third question.
A Pre-emptive Strike?
Mr Hackell’s case was that he was the subject of a minor assault, and that he thereafter believed that it was “all on”. Then, on his account, he delivered a single upper cut to Mr Walker by way of pre-emptive strike.
Mr Lithgow’s first submission is that the jury should have been told that a pre-emptive strike could be an act of self-defence. And further, that “the jury should have been told, unambiguously, that who threw the first blow is only one of many factors when deciding whether the accused was in fact defending himself, and whether the response was reasonable”.
It is convenient to begin by noting here, how the Judge directed the jury.
First, at the beginning of his summing up, and after giving a perfectly acceptable direction as to the general functions of the Judge and jury, His Honour said:
Use your common sense. You are drawn at random from the community. Each one of you has got your own life experience, your own knowledge of human nature, and it is a strength of the jury system that when you 12 go into the jury room, you have available to you a fund of good common sense that would not be available to one person deciding something alone, so please use your common sense. (Italics added).
Secondly, in that portion of the summing up dealing specifically with self defence, the Judge first recited the provisions of s.48. He also told the jury that section would be provided to them in writing. He then said:
There are three matters for you to decide, and the first of them is what were the circumstances as the accused believed them to be. What was the situation that he thought he was in.
It is necessary to consider what the accused thought, what he believed about those circumstances, and in this respect, he says that he had been pushed hard in the shoulder, twice, by Mr Walker. That Mr Walker physically threatened him with one fist under his chin and the other drawn back as if to strike him. That Mr Walker then jabbed him in the face with his left hand. That he, the accused, thought that it was all on, the fight was about to begin, so he struck Mr Walker with the uppercut. Now that is what he says the circumstances were as he believed them to be.
You do not have to believe him. The issue remains, did he really believe the circumstances were as he says in his evidence, and as to that you have this conflict of evidence, haven’t you, between what the accused says on the one hand and the Walkers on the other. Both sides of the story cannot be right, someone has got it wrong. If you accept what the Walkers say and you are sure that they are telling you the truth, then naturally you must reject what the accused has said as to what he believed. However, if you are not sure, if there is a reasonable possibility that he did not hold the belief that he says that he held, that he really thought the circumstances were as he says, then you should accept what he says and then assess his actions accordingly.
The second issue is, having sorted out the circumstances as the accused believed them to be, the next issue is bearing in mind that belief about what was happening to him, was he acting in defence of himself, or was he simply attacking the complainant, was he defending himself or was he really the aggressor. Well again, this must be considered from his point of view, did he in the circumstances as he believed them to be, did he feel that he was acting in self defence, did he believe he was defending himself, and again the same conflict of evidence arises doesn’t it between the Walkers on the one hand and what he says on the other. If there is a reasonable possibility that he considered that he was defending himself, then he is to be treated as acting in self defence.
If that is the case then there is a third issue that has to be decided. Given his belief, given what he believed about the circumstances, given that he believed, or might have believed, he was acting in self defence, was the force that he used in self defence reasonable. That is reasonable from your point of view, not his. Do you think what he did was reasonable. (Italics added)
It is not simply a question of whether his uppercut was a reasonable response to what you might think was a light jab in the chin. Was it a reasonable response to the total circumstances that he thought was confronting him, namely that the jab, as light as it was, was the beginning of a fight and that more was coming. (Italics added)
This question of the reasonableness of his response is not a matter to be weighed with fine scales, but rather in a common sense manner conscious of the position that the accused considered himself to be in at the time.
Both counsel have, not surprisingly, focused upon this issue of justification and self defence, and the conflicting versions as to how this hostility, this violence, commenced.
Mr Lithgow is correct that s.48 is not confined to cases where an accused resists physical force which has actually been applied. The section may extend to force used for the purpose of defending or protecting oneself or someone else from force which the accused believes is threatened (R v Wang [1990] 2 NZLR 529 (CA)).
That said, no authority has been cited to us which suggests that there is a positive obligation on a Judge to raise, in terms, the issue of a pre-emptive strike. The argument here appears analogous to that put forward in R v Powell (CA 202/01, 25 October 2001) where it was suggested that the Judge in that case, in his self defence direction, should have invited the jury to consider how imminent was the apparent peril, how significant was the feared harm, and what alternative did the appellant have (those being considerations relevant to a defensible pre-emptive strike). In that case R v Wang was cited as authority by counsel for the relevance of those issues. However, this court held:
We think the jury would well have understood from the direction we have quoted that the circumstances giving rise to the response, in the agony of the moment, involved considerations including those said to have been omitted. The decision in Wang was focused on the assessment by a Judge whether self defence should be put to the jury [at all] rather than on directions to be given. It is not authority for a proposition that omission of the specific considerations amounts to misdirection.
In our view, the same reasoning applies in this instance. The Judge in this case, whilst not expressly referring to a pre-emptive strike, allowed for this possibility (and indeed covered all the relevant bases) when he stated:
Was it a reasonable response to the total circumstances that he thought was confronting him, namely that the jab, as light as it was, was the beginning of a fight and that more was coming.
In short, the jury was directed by the Judge to consider whether it accepted Mr Hackell’s account as to what he believed, and whether on his belief, he acted reasonably, if pre-emptively, in self defence. Patently, the jury must have rejected Mr Hackell’s account, on the facts.
There is accordingly nothing in this ground of complaint.
Reasonable Force (A Pre-emptive Strike)?
The complaint under this head is that the direction in fact given (“was the force used reasonable …. from your point of view, not his ….”) was inadequate and inappropriate. Mr Lithgow argued that this direction “erroneously encourage[d] the jury to substitute their collective subjective view as to what was reasonable” (italics added). He said that “the jury should have been told that the response from Hackell had to be reasonable within the broad frame of what is acceptable within the community at large, taking into account his subjective point of view, as to what was happening … thus, the test of what is ‘reasonable’ is determined by a reference to a point external to the jury itself”. (Italics added). This second point of appeal is therefore directed to the standpoint from which the jury must determine reasonableness.
As it transpired, Mr Lithgow did not seek to challenge on this appeal the fullness (or perhaps lack of fullness) of the Judge’s summing up in relation to certain of the distinct aspects which may arise in relation to a pre-emptive strike: for instance, whether the perceived danger to the accused was “imminent”; or whether retreat or disengagement was a reasonable possibility. It is not therefore necessary for this court to engage in an extended analysis of these aspects of the defence. In case they should be of assistance to other trial Judges, we note the decisions of this Court in R v Ranger (1988) 4 CRNZ 6, and R v Wang (supra), and the decision of the Privy Council in Beckford v R [1988] AC 130 (PC; Jamaica).
Mr Lithgow’s submission was simply this. He maintains that, however it was conveyed, the jury must have been led to appreciate that what it was required to do in this case was to determine reasonableness by reference to what the jury considered the community would regard as reasonable.
It may be (we have not been called upon to determine this point in this case) that there are some offences in which such a direction, or some variation of it, may be necessary or appropriate. (See eg s.135 Crimes Act (indecent assault); and s.23(2)(b) (insanity)). What this court has to address is the particular controversy raised before us, and no more.
The law in New Zealand is settled by the decision of this Court in Wei Hau Li (supra) with which the Court’s earlier decision in R v Kneale (1997) 15 CRNZ 392 is consistent. The essential question is whether the force used by the accused was reasonable in the circumstances as the accused believed them to be. The Crown must establish that the force used was more than reasonable. It is unnecessary and unhelpful to direct the jury to determine that simple question by reference to some elusive external criterion such as community standards. Collectively the jury fix the standard in the particular case; but there is no need to complicate the matter by directing them in those terms.
When the Judge said “that is, reasonable from your point of view not his,” he was aptly making the subjective/objective contrast in simple words. When he said “do you think what he did was reasonable” the Judge was simply underlining that point. The Judge’s “do you think” was both appropriate in its context and in accordance with the law. Reasonableness, or more accurately whether the Crown has proved the use of unreasonable force in the circumstances as the accused believed them to be, is a straightforward question of fact for the jury to determine. That question should not be overlaid with the niceties which Mr Lithgow’s argument entails. There was no miscarriage of justice on this head.
Intermingling
Mr Lithgow complained that the legal direction as to self defence was interspersed with comments by the Judge which challenged the credibility of Mr Hackell. It is said that, when looked at in the context of the summing up as a whole, the net result was that the Judge undermined the defence case in a way that led to a miscarriage of justice.
We do not read the summing up in this way. The Judge was rightly highlighting the determinations of fact the jury would have to make in considering the defence. As the Judge pointed out, this would involve the jury, when confronted with two conflicting versions of events, having to chose one witnesses story over another. That meant, of course, that there was a possibility that Mr Hackell was not telling the truth but equally there was the reasonable possibility, alluded to by the Judge, that Mr Hackell had got it right.
This cannot and should not be construed as an improper challenge to the veracity of Mr Hackell. What the Judge was endeavouring to do was to assist the jury by taking the relevant legal tests out of the abstract and putting them into the context of the particular case, and highlighting the particular choices confronting the jury. That is a practice on which this court has had occasion to comment favourably on other occasions. In short, law in the abstract can be dangerous in the overall context of a summing up, and the Judge was avoiding that very concern.
The Appeal against Sentence
The concern on this appeal was clearly with the conviction. As to sentence, Mr Hackell’s main complaint appears to have been that the Judge was led to believe that he had been previously convicted of threatening to kill (whereas in fact the charge had been threatening to harm).
Only two points need be made. First, whilst it is clear that the sentencing Judge did take the charge of threatening to kill into consideration on sentence, this was only mentioned in the context of Mr Hackell’s other criminal convictions for assault. What was important was that the totality of his past criminal history contributed to an assessment by the Probation Officer, which was accepted by the Judge, of Mr Hackell as a “high risk reoffender”. We are quite unable to see that this minor error made any material difference to the outcome.
Secondly, and more importantly, the sentence of 12 months imprisonment was, in our view, well within an acceptable range for cases of this nature. This court has previously stated that it generally upholds sentences of nine to twelve months for offending of this character. (See R v Mogon CA 160/97, 30 July 1997). Sentences of less than one year have tended to be handed down where there are substantial mitigating factors – most importantly an absence of prior convictions, or a strong prospect of rehabilitation, neither of which is relevant here.
Conclusion
In the result, there was no misdirection on the part of the trial Judge. The conviction appeal is dismissed. Likewise, the sentence imposed was entirely appropriate. The appeal in that respect is also dismissed.
Solicitors:
Crown Law Office, Wellington
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