The Queen v Hill

[2009] NZCA 42

IN THE COURT OF APPEAL OF NEW ZEALAND

CA647/2008

[2009] NZCA 42

THE QUEEN

v

LEWIS HILL

Hearing:         18 February 2009

Court:            Ellen France, Harrison and Cooper JJ Counsel:           M Datt for Appellant

M D Downs for Crown

Judgment:      27 February 2009 at 10.00 am

JUDGMENT OF THE COURT

The appeal is allowed and the conviction is set aside.

REASONS OF THE COURT

(Given by Harrison J)

R V HILL CA CA647/2008 [27 February 2009]

Introduction

[1]      Mr  Lewis  Hill  was  convicted  following  trial  before  a  Judge  alone  in  the indictable jurisdiction of the District Court at Hamilton on one charge of aggravated burglary.

[2]      Mr Hill appeals on a number of grounds.  The only arguable issue is whether

or not the Judge’s finding that at the time of entering the premises Mr Hill intended

to commit a crime therein is unreasonable.

Background

[3]      Mr  Hill  and  the  complainant,  Mr Norman  Charlton,  both  lived  in  Huntly. Motor vehicles driven by each of them collided in the township one evening in early February  2007.   Mr Hill’s  vehicle  then  pursued  Mr Charlton’s  vehicle.   Both  cars were driven aggressively before a confrontation occurred.   The circumstances were plainly acrimonious but neither man was physically injured.

[4]      Mr Hill subsequently learned of Mr Charlton’s residential address which he visited on 16 February.  He said that he went there to find out why Mr Charlton had tried to run him down.  He said that he took with him a baseball bat for the purposes of  protecting  himself  and  of  damaging  Mr Charlton’s  car  as  retribution  for  the damage  caused  to  his  vehicle  during  the  earlier  incident.     Mr Hill  entered  the property and walked to the house.   Having left the baseball bat outside on the deck, Mr Hill  entered  into  the  lounge  through  a  ranch  slider  door  where  he  encountered Mr Charlton.

[5]      The  events  which  immediately  followed  were  in  contest  at  trial.    Mr Hill alleged  that  he  and  Mr Charlton  were  involved  in  a  brief  scuffle  before  the  latter drew a knife and approached him.   Mr Hill said that he then retrieved the bat from the  deck  and  used  it  in  self  defence.   He  struck  Mr Charlton  on  the  head  causing moderate injuries.

District Court

[6]      Mr Hill was charged with two offences: (1) aggravated burglary in that while committing burglary of Mr Charlton’s premises he had a weapon with him, namely a baseball  bat;  and  (2)  injuring  with  intent  to  cause  grievous  bodily  harm   (or alternatively with intent to injure).

[7]      Messrs Charlton and Hill gave evidence at trial along with other witnesses. Judge  Clark  reserved  her  decision.   She  made  adverse  credibility  findings  against Mr Charlton but not against Mr Hill.   She acquitted Mr Hill on the second count of injuring with intent to cause grievous bodily harm on the ground that the Crown had failed to prove that Mr Hill did not act in self defence.

[8]      However, Judge Clark found Mr Hill guilty of the first count of aggravated burglary.  It was common ground that he entered Mr Charlton’s premises unlawfully. The threshold issue was whether or not he intended to commit a crime at that point. The Judge was satisfied that he did.  The grounds for her conclusion are as follows:

[17]           [Mr   Hill’s]   explanation   is   that   he   intended   to   smash   the complainant’s car and took the bat with him for that purpose.  The car in this case was outside the property, and in this case the crime of burglary in my view is not really alleged in respect of the car outside, although there were references to whether the yard was enclosed or not.   That however, the car outside  and  the  intention  to  damage  it,  affect  the  issue  as  to  whether  a burglary  has  been  committed,  and  is  relevant  more  to  [Mr  Hill’s]  state  of mind.  [Mr Hill] said he wanted to seek an explanation from the complainant and  there  was  no intention  of  committing  a  crime  inside  the  James  Henry Crescent premises.

[18]           That explanation needs to be seen in light of the following matters.

[Mr Hill] was clearly angry.   He had stewed on this matter for a number of days.   He  had  already  placed  the  matter  in  the  hands  of  the  police,  who

should have been the organisation responsible for seeking any explanation.

He took a baseball bat with him and placed it to the side of the door, making

it readily available.   He did not knock on the door and stand back and wait for the  occupant to answer  with  any intended  discussion  being held  at  the door.

[19]           Immediately upon entry, and confronting [Mr Charlton], there was a scuffle.   At no time did [Mr Hill] make it clear that he was simply there to talk,  for  example  by  backing  off,  holding  his  hands  up,  indicating  that  he was  not  there  to  fight  or  scuffle,  and  having  pushed  [Mr  Charlton]  away, [Mr Hill] did not immediately retreat.

[20]           As a result of those factual findings I reject [Mr Hill’s] explanation that he was simply there to get an explanation.   Having rejected [Mr Hill’s] account, I am satisfied that  there was an  intention to  commit  a  crime,  and accordingly burglary is proved.

Appeal

[9]      Mr Hill through his counsel, Ms Meena Datt, submits that Judge Clark had insufficient  evidence  to  support  the  conclusion  that  Mr Hill  intended  to  commit  a crime when he entered the premises.   In legal terms, as Mr Mathew Downs for the Crown submits, the question is whether or not the verdict is unreasonable or cannot

be supported having regard to the evidence: s 385(1)(a) Crimes Act 1961.

[10]     We agree with Ms Datt.  We can explain our reasons shortly.

[11]     Judge  Clark  did  not  identify  the  crime  which  she  says  Mr Hill  intended  to commit  on  entering  Mr Charlton’s  house.  Like  Mr Downs,  we  assume  she  was referring to the crime of assault.  Her inference of guilty intent was based on findings

of fact that Mr Hill was angry at the relevant time; that he took the bat to the side of the door, making it readily available; that he failed to wait there for an invitation to enter; that immediately upon entry he was involved in a scuffle with Mr Charlton; and that he continued to engage in a physical fight instead of retreating.

[12]     We do not regard these facts whether treated individually or in combination

as  logically  supporting  an  inference  of  guilty  intent  or  as  justifying  rejection  of

Mr Hill’s evidence that he entered Mr Charlton’s house ‘to  get an  explanation’ for

his previous conduct.   Mr Hill freely acknowledged that he took the baseball bat to Mr Charlton’s  property  for  the  purpose  of  smashing  his  car. That  unchallenged evidence is consistent with an intent to use the weapon to commit the crime of wilful damage.  In this respect it is relevant that Mr Hill was charged with unlawful entry of the premises, not of the property.

[13] Neither was Mr Hill challenged on his evidence that he left the bat outside the door and entered the house unarmed. Judge Clark expressly found that he placed the bat immediately ‘outside the ranch slider door to defend himself’: at [12].

Logically, if Mr Hill intended to use the weapon to assault Mr Charlton, he  would have  retained  physical  possession  throughout.  The  Judge’s  finding  that  he  acted deliberately in leaving the weapon outside the house, even if it remained within his physical  control,  is  inconsistent  with  proof  of  an  intention  to  assault  Mr Charlton once inside.  So, too, is the Judge’s finding to the effect that Mr Hill only resorted to use of the bat in self defence after he was attacked.

Result

[14]     Accordingly we  are  satisfied  that  the  decision  to  convict  was  unreasonable and Mr Hill’s appeal is allowed.  His conviction is set aside with the effect that he is acquitted on the charge of aggravated burglary.

Solicitors:

Berman and Burton, Auckland, for Appellant

Crown Law Office, Wellington