The Queen v He

[2007] NZCA 284

IN THE COURT OF APPEAL OF NEW ZEALAND

CA5/07
[2007] NZCA 284

THE QUEEN

v

BAOHUAN HE

Hearing:20 June 2007

Court:O'Regan, Harrison and Heath JJ

Counsel:P T R Heaslip for Appellant

S B Edwards for Crown

Judgment:10 July 2007 at 12 noon

JUDGMENT OF THE COURT

A        THE TIME FOR APPEALING IS EXTENDED.

B        THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]       Baohuan He was tried in the District Court at Manukau before Judge Gittos and a jury on two counts, one of male assaults female and one of assault with intent to injure.  The charges arose out of an incident that occurred in the early hours of 2 April 2004.

[2]       The jury returned a verdict of guilty on the charge of male assaults female.  Mr He was found not guilty on the charge of assault with intent to injure.  Mr He was sentenced to a term of 100 hours community work on 17 October 2006. 

[3]       Mr He appeals against conviction on the male assaults female charge.

Leave to appeal

[4]       The appeal is brought out of time.  An affidavit has been sworn by counsel originally instructed to act on the appeal confirming that an appeal was filed within time, but in the wrong Court.

[5]       In the absence of opposition from the Crown and in light of the explanation and short delay, we extend the time for the appeal against conviction to be made.

Competing submissions

[6]       The appeal was brought on three distinct grounds.

[7]       First, Mr Heaslip, for Mr He, contended that trial counsel erred in failing

(a)to make an application that named witnesses (not called at the preliminary hearing) were deposed prior to trial; or

(b)to require the Crown to apply for a declaration of admissibility of the evidence of those witnesses. 

[8]       Second, Mr Heaslip submitted that there were deficiencies in the trial Judge’s summing up.  The alleged deficiencies concerned the way in which the Judge directed the jury on self-defence issues. 

[9]       Third, it was submitted that the summing up lacked balance.

[10]     At the hearing of the appeal, Mr Heaslip abandoned the first point and accepted that the appeal should be determined primarily by reference to the Judge’s directions on self-defence.  The submission of lack of balance remained alive, though it was pursued only faintly.

[11]     For the Crown, Ms Edwards submitted that the Judge was entitled to deal with questions of self-defence and defence of another together.  She submitted that the evidence on those topics was inextricably linked.

[12]     Ms Edwards also contended that there was no evidential foundation for defence of property.  Accordingly, the trial Judge was not required to direct the jury on that issue.

[13]     Finally, Ms Edwards submitted that there was no lack of balance in the trial Judge’s summing up.

Did the Judge mis-direct on self-defence?

(a)   Background facts

[14]     The evidence is not easy to follow from the transcript and the precise findings of fact made by the jury are unclear.  What follows is, necessarily, an incomplete summary of the facts, but sufficient to set the scene for a discussion of the legal issues that arise on appeal. 

[15]     Mr He, at the time of the offending, was aged 36 and living in Howick.  He was born in China.  He has lived in New Zealand since 1996.

[16]     In the early hours of 2 April 2004, Ms Li came to Mr He’s property in Howick.  The Crown accepted at trial that she had been harassing Mr He after their relationship had soured.  There was evidence that she had sent letters to Mr He and had come to his property late at night seeking an explanation of why the relationship was over. 

[17]     Mr He was at home with a female friend, Ms Wong.  Ms Li shouted from outside for him to come out.  She was speaking in Cantonese, the dialect spoken by Mr He.  Mr He recognised another female voice outside the property.  She was speaking in Japanese.  Mr He was concerned that if Ms Wong were to leave his house, Ms Li may hurt her.

[18]     An altercation did, in fact, occur when Mr He left the dwelling to take Ms Wong home.  While they were outside, but still on Mr He’s property, Ms Li began to point at Mr He’s female friend, asking who she was.  Mr He’s case was that he pushed Ms Li away to try to protect himself and his friend from likely violence.  The Crown case was that Mr He struck Ms Li in anger when he came out of his home, hitting her in the stomach and about the head, knocking her to the ground.

(b)   The directions on self-defence

[19]     Mr He’s complaint is that the Judge failed to deal discretely in the summing up with self-defence, defence of another and defence of property.  Defence of property was raised in the closing address of trial counsel for the accused.  We infer that the issue was raised in the context of defending land or buildings

[20]     Section 48 of the Crimes Act 1961 provides:

48     Self-defence and defence of another

Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

[21]     Section 48 deals with self-defence and defence of another.  Both are put forward as matters of justification for what would otherwise be a criminal act.  In many cases, including this one, the defence may arise from an intention to defend both oneself and some other person.

[22]     Judge Gittos directed the jury on self-defence issues as follows:

[25]  As to self defence, Members of the Jury, although self defence is referred to as a defence it is not for the accused to prove that he was acting in self defence.  If the issue of self defence is raised by the defence on the evidence then it is for the Crown to prove beyond reasonable doubt that the accused was not acting in self defence.  If the Crown does not exclude self defence as a reasonable possibility the accused should be acquitted.

[26]  Our Crimes Act says this about self defence “everyone is justified in using in the defence of himself or another such force as in the circumstances as he believes them to be, it is reasonable to use”.  What is meant by justified – if you are justified in doing something then doing it is not a crime, even though you meant to do it.  What the Crimes Act is saying there is, you are justified in using force in defence of yourself or somebody else.

[27]  In considering self defence there are three factors that you have to consider.  First of all you have to decide what the accused believed the circumstances were at the time.  So you have to look at it from his point of view and ask yourself what did he believe was happening at the time, what did he think was the nature of the attack or the threat of bodily harm that was being made to him or to Ms Wong, if that was the way it strikes you, and you assess that by taking into account all of the evidence.  Secondly, bearing in mind what you consider the accused believed was happening and what sort of threat he or Ms Wong was facing, was he acting to defend himself or was he acting to defend Ms Wong from the harm that was threatening him or threatening Ms Wong.  Again that is to be looked at from his point of view.  Was he in his mind protecting himself or protecting her?  Did he believe that he or Ms Wong was in danger of some bodily harm from something that the complainant, Ms Li, was going to do?  Did he believe he was using force against her to defend himself or to protect Ms Li [sic, Ms Wong]?

[28]  So you assess that by looking at all the evidence on the matter and if you are satisfied beyond reasonable doubt, if you are sure that he did not believe that he was facing some sort of bodily harm himself or that Ms Wong was in that sort of danger, then you need go no further.  If you are satisfied he did not have that belief then the Crown will have excluded self defence.  Bear in mind that it is implicit in the concept of self defence that the accused acted to meet what he believed to be an existing threat and he had to do something to protect himself or to protect somebody else.  The law does not protect somebody from the consequences of acting out of revenge or retribution.  Retaliation, revenge, retribution, that is not self defence.  Self defence is intervention, use of force to protect yourself against an immediate threat.

[29]  If you are satisfied that the accused believed that the threat had passed but he was acting in retaliation that is not self defence, but if you think it is at least a reasonable possibility that he did believe he was in danger of bodily harm or that Miss Wong was in danger of bodily harm, and that he intended to act in self defence against that danger then you go to the third step.  The third step is this, you ask yourselves was the force that he used reasonable given what he believed was happening at the time.  The question is not whether he thought the force was reasonable, it is whether you think the force was reasonable.  When you come to that point you are not sitting in his shoes you are looking at it objectively with your own judgment.

[30]  The question is do you think it was reasonable given what he believed was happening at the time and that is because the law does not give people a blank cheque to use as much force as they want to or as they think they should, even if they are defending themselves.  Obviously these things happen in the heat of the moment and people cannot be expected to weigh up the degree of force in a very exact and precise sort of a way but nevertheless there must be a reasonable balance between the threat that the accused believed he or his girlfriend was facing, and what he did in the way of using force to meet it.

[31]  If you are satisfied that the amount or type of force was excessive given what he or she believed at the time then his actions would not be justified and the Crown will have excluded self defence.  It is a matter of you deciding what you think the force used was and whether indeed it was used in self defence and if it was, whether it was more than what was necessary to deal with whatever threat he thought he was facing.

[23]     We have set out the directions at some length so that they may be seen in context.  In our view the Judge fairly captured the nature of the two defences.  The issue was whether the Crown had excluded the reasonable possibility of Mr He having acted in a defensive manner.  The trial Judge’s directions were orthodox and unobjectionable.

[24]     The Judge was entitled, on the facts of this case, to deal with the issues of self-defence and defence of another together.  That course was both convenient and sensible.  The methodology employed by the Judge was, in our view, likely to enhance the jury’s ability to understand the concepts they were being asked to apply.

[25]     The defence of defence of land or buildings arises from s 56 of the Crimes Act.  Section 56(1) states:

56     Defence of land or building

(1)Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person.

[26]     The Judge gave no direction on defence of property.  He did, however, refer briefly to trial counsel’s submissions on that topic when summarising the case for the accused.  Judge Gittos said:

[38]  The defence in closing suggested that the focus had rather shifted on the way the Crown case had been presented to you and finally closed from where it had started at the outset.  That is a matter for you.  He said to you well it is permissible to use reasonable force to remove a trespasser, although he acknowledged that beating and assaulting somebody would not be reasonable force.  The limits to which one might resort to force to remove a trespasser would be to escort them forcibly from the property.  Mr Speed invites you to the view that if you accept the accused’s evidence, which is that all he did was to push Miss Li to try and get her out of his property and to get her away from Miss Wong, and attempted to kick her, that that was no more than a reasonable amount of force used to remove a person who was trespassing.

[27]     Notwithstanding the point raised by trial counsel in closing, there was no evidential foundation to support the proposition that Mr He was acting in defence of property when he assaulted Ms Li.  The true issue was one of self-defence or defence of another.  In the absence of any evidential foundation, the Judge was not required to direct the jury on defence of property.

(c)Challenge to balance of summing up

[28]     As we understood Mr Heaslip’s oral argument, the primary basis for the submission of lack of balance arises from the Judge’s summary of the Crown closing in which he said, among other things:

[32]  The evidence and the arguments of Counsel will be fresh in your minds and I do not propose to go through it all with a fine tooth comb.  The case is really quite a simple one.  The Crown says here is a young man who has been beset and harassed really by this woman, who will not let the relationship go.  He has been subjected to the business of having letters and things sent to him and she coming around to his house at night demanding an explanation.  The Crown says that has finally got on top of him.  He has become angry particularly when this behaviour is carried on in front of his house in the middle of the night and his girlfriend and guest is present.  He has come out and attacked her in anger and struck her, as she says, in the stomach and about the head, knocked her to the ground.  The Crown says her evidence about that is quite clear and whatever you make of her eccentricities over the relationship and things she may or may not have done does not really matter a jot.  It is what happened that night that is important and the evidence she gave about that, the Crown suggests to you, is clear. (our emphasis)

[29]     We are satisfied that comment, made in the context of a summary of the Crown case, could not, on any view, amount to lack of balance.  It reflected the Crown’s advocacy of its case, not the Judge’s view. 

[30]     In addition, the submission made by the Crown was not inaccurate.  While it was necessary for the jury to consider the background in order to understand the circumstances in which the incident occurred, the jury’s task was to focus on whether the Crown had excluded the reasonable possibility that Mr He acted either in defence of himself or Ms Wong.

Result

[31]     For those reasons, we extend the time for appealing against conviction but dismiss the appeal.

Solicitors:
Crown Law Office, Wellington