The Queen v Glenn James Hackell - [2002] NZCA 221

IN THE COURT OF APPEAL OF NEW ZEALAND

CA131/02

THE QUEEN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NZCA 221
Decision Date: 10 October 2002

CaseChat Overview and Summary

The case of The Queen v Glenn James Hackell involved an appeal by Mr Hackell against his conviction and sentence for assault with intent to injure, as well as the direction given to the jury regarding self-defence. The appeal was heard in the Court of Appeal of New Zealand on 19 September 2002, before Tipping J, Hammond J, and Baragwanath J. The appellant was represented by R M Lithgow, and the Crown was represented by J M Jelas. Judgment was delivered by Hammond J on 10 October 2002. The primary issues on appeal were whether the trial Judge misdirected the jury regarding the assessment of a pre-emptive strike in the context of self-defence, and whether the jury was correctly directed to apply an objective test of reasonableness in assessing the appellant's actions.

The facts of the case involved Mr Hackell assaulting Mr Walker, causing significant injuries to his jaw and teeth. Mr Hackell claimed self-defence, stating that he had struck Mr Walker in response to an assault. The trial Judge directed the jury to consider the circumstances as the accused believed them to be, whether the accused was acting in self-defence, and whether the force used was reasonable in the circumstances as the accused believed them to be. The appellant's counsel argued that the jury should have been directed that a pre-emptive strike could be an act of self-defence, and that the jury should have been directed to assess the reasonableness of the force used by reference to community standards, rather than their own subjective view.

The Court of Appeal found that the trial Judge's directions to the jury were adequate. The Judge's direction that the jury should consider whether the force used was reasonable from the accused's point of view, and not their own, was appropriate and in accordance with the law. The Court held that there was no need to direct the jury to consider an external criterion such as community standards, as the essential question was whether the force used by the accused was reasonable in the circumstances as the accused believed them to be. The Court also found that the Judge's comments on the credibility of the appellant were not an improper challenge to his veracity, but rather an attempt to assist the jury in understanding the particular choices confronting them in assessing the defence of self-defence.

In conclusion, the Court of Appeal dismissed both the appeal against conviction and the appeal against sentence. The conviction appeal was dismissed as there was no misdirection on the part of the trial Judge. The sentence imposed was found to be entirely appropriate, and the appeal in that respect was also dismissed.

Orders