The Queen v Hunter

[2009] NZCA 249

IN THE COURT OF APPEAL OF NEW ZEALAND

CA221/2008
[2009] NZCA 249

THE QUEEN

v

SHANE AARON HUNTER

Hearing:27 May 2009

Court:Hammond, Ronald Young and Clifford JJ

Counsel:J W Mackey for Appellant

N P Chisnall for Crown

Judgment:17 June 2009 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       A jury found the appellant guilty of causing grievous bodily harm with intent (s 188(1) Crimes Act 1961) when they accepted he had deliberately driven his car at the victim injuring his shoulder, upper back and right knee and fracturing his ankle in three places.

[2]       The appellant submits that a miscarriage of justice has occurred arising from his trial counsel’s conduct.  He also claims that there was undue delay between the events which gave rise to the trial and the trial such that a stay of proceedings should have been ordered: s 25(b) New Zealand Bill of Rights Act 1990.

Facts

[3]       The Crown case at trial was that an employment dispute arose between Mr Victor Anderson, the complainant, and the appellant.  Mr Anderson maintained the appellant owed him wages for work done.  They arranged to meet in the early hours of the morning on 5 February 2006 at Madills Farm in Kohimarama, Auckland.

[4]       Mr Anderson said the appellant turned up with his brother and at least one other man and threatened him.  He said the appellant then drove his car directly at him, striking him and dragging him 15 metres along the road causing the injuries described.  Shortly afterwards a friend of the complainant arrived and damaged the appellant’s car with a fence paling.

[5]       The appellant’s case, based on a statement to the Police, was that when he arrived at Madills Farm his car was attacked by the complainant and his friends and when he tried to escape he accidentally ran over the complainant.  He said, therefore, he did not intentionally cause any injury and in any event he was acting in self-defence fearing being physically assaulted by the complainant and his friends.

[6]       The appellant alleges his trial counsel made five errors in his conduct of the case, which either individually or collectively give rise to a miscarriage of justice.  We consider each in turn.

The appellant not giving evidence

[7]       The appellant says the decision not to call him to give evidence was a radical error by trial counsel Mr Eastwood resulting in a miscarriage of justice: R v Pointon [1985] 1 NZLR 109 (CA) and R v Sungsuwan [2006] 1 NZLR 730 (SC).

[8]       Constable Spiro gave evidence at trial.  She interviewed the appellant after the events.  She read and produced a copy of a statement of the appellant at trial.  In the statement the appellant denied he had deliberately run over the complainant and said he drove off because the complainant and his friends were attacking his car with bottles, sticks and bats.  He said the complainant “got his leg stuck behind the wheel as I took off”.

[9]       The appellant in an affidavit filed in support of the appeals says that he could have given the jury a far more extensive description of these events had he given evidence and he could have responded to the complainant’s claim that he had tried to run him over a second time.

[10]      The appellant says that, in any event, the trial Judge, Judge E M Aitken, “practically obliterated” his statement when she told the jury in her summing up that they were entitled to take into account in assessing the weight to be given to his statement that the appellant was not on oath and had not been cross‑examined when he made the statement.  The Judge’s comment regarding the appellant’s statement was entirely orthodox. A trial Judge may point out to a jury that an accused’s statement is neither sworn nor subject to cross‑examination and that the jury may take these matters into account in assessing what weight to give the statement.

[11]      Given that “trial counsel” conduct was raised by the appellant in this appeal, affidavits were filed by both the appellant and trial counsel.  Trial counsel, Mr Peter Eastwood, was cross‑examined before us.

[12]      Annexed to Mr Eastwood’s affidavit was a memorandum, signed by the appellant, which acknowledged he had discussed the case with his counsel and decided neither he nor his brother should give evidence at trial.  In addition there was a brief of evidence of the appellant prepared by Mr Eastwood.

[13]      In his affidavit the appellant made no mention of the fact that he had signed a memorandum saying he had discussed the case with his counsel and that he had decided neither he nor his brother should give evidence.  Nor did the appellant mention the brief of evidence in his affidavit.  We accept Mr Eastwood’s evidence that an appropriate discussion was had with the appellant about giving evidence.  The note signed by the appellant confirms it was his decision not to give evidence. 

[14]      The fact that the appellant may now regret not giving evidence cannot change the decision he made not to give evidence after discussion with his trial counsel.  This was a legitimate tactic in the context of the case.  The appellant’s explanation was before the jury through his statement made to the Police and the other photographic evidence of the damage to his car.

[15]      We consider there was no trial counsel error and no miscarriage of justice arising from these circumstances.

[16]     We add these further comments.  After the appellant gave notice he wished to raise trial counsel error he filed an affidavit as to the circumstances surrounding the decision not to give evidence.  Mr Eastwood then filed his affidavit, which annexed the memorandum relating to giving evidence and the typed brief of evidence from the appellant.  This material required a reassessment by appellant’s counsel of the merits of the appeal based on trial counsel error leading to a miscarriage on this point.  No such reassessment seems to have been undertaken and what was clearly an unmeritorious challenge was persisted with.  In this case, if the appellant had not been on legal aid, we would have considered an order for costs against the appellant.

Failing to object to evidence

[17]      The appellant says that Mr Eastwood allowed “irrelevant, inadmissible and prejudicial” evidence to be admitted at trial.  He identifies four specific occasions.  We consider each in turn.

[18]     First, early in his evidence the complainant described how he first came to know and work for the appellant and his brother.  The complainant mentioned the purchase of some mag wheels and the fact that his car had gone missing.  There was no evidence the complainant’s car was taken by the appellant.  Before these issues were developed, counsel for the appellant objected and the case moved on.  While the evidence about the mag wheels and the complainant’s car did not seem to be relevant there was nothing about it that was prejudicial to the appellant.

[19]     Second, during his evidence the complainant described receiving phone calls when he was in hospital.  He said:

A:Just my phone would go off once in a while and just you know, (witness makes hammering noise on dock) we’re building your coffin Victor and stuff like that, I know the Hunters you know, that’s the attitude.

Q.Do you know who it was who was ringing you and saying that?

A:Oh, could have been either one of them, but I’m going to say Shane today.

Q:Well are you sure which one or were they both or what was going on?

A:Yeah, it was one of the, one of the Hunter brothers.

Q:Saying that they were building your coffin?

A:There was like noises in the background, no shit, (witness makes hammering noise on dock) building your coffin.

[20]     This evidence could have been admissible if the complainant’s evidence was that the appellant had made the phone calls and s 46 of the Evidence Act 2006 relating to the admissibility of voice identification evidence was satisfied.  The evidence had probative value for the Crown, given it showed an aggressive, threatening attitude to the complainant by the appellant.  This was potentially relevant to the flavour of what had occurred at the park on the night of the offence. 

[21]     However, its admissibility was dependent on whether the Crown could prove, on the balance of probabilities, that the phone call was made by the appellant. The Crown did not lead evidence from the complainant as to the circumstances under which he purported to identify the appellant or his brother as the caller.  The complainant’s evidence as to which brother made the call was in any event uncertain.  It, therefore, seems unlikely the Crown could have established the caller was the appellant.  It would also have been subject to the overall test that its probative value outweighed its prejudicial effect (s 8 Evidence Act 2006). 

[22]     However, we do not consider its admission caused a miscarriage of justice.  The complainant in his evidence was not clear who made the phone call.  We agree with the respondent’s submission that in those circumstances the jury were hardly likely to give the remarks much weight.

[23]     Third, at trial the appellant elicited evidence that after the events which gave rise to the charge he complained to the Police about the complainant wilfully damaging his car.  This evidence was designed to support his claim that he had been a victim.  The Crown’s response was to lead evidence that the appellant had not co‑operated in the prosecution of the wilful damage charge.  This evidence was relevant and admissible as a response to the evidence introduced by the appellant, and cannot give rise to a complaint.

[24]     Fourth, these events arose when the complainant’s employment was terminated arising from a fight between him, the appellant and his brother.  The appellant’s case had been that the complainant was the aggressor in this fight.  This evidence was admissible.  It was relevant to set the scene of what happened later.  If the jury accepted the appellant’s version of the earlier events then that potentially supported his claim that the complainant was the aggressor at the park when they met in February 2006.

[25]     No miscarriage of justice occurred arising from the admission of the evidence complained of.

Putting to witnesses that the accused would give evidence

[26]     On two occasions during cross‑examination counsel for the appellant suggested to the complainant that the appellant would “say” something or “give evidence” about something in conflict with the complainant’s evidence.  On a third occasion the trial counsel’s words were “Shane’s position is …”.  This did not involve any direct claim that the appellant would be giving evidence.

[27]     Mr Eastwood would have been better not to have put to witnesses that the appellant would “say” or “give evidence” when cross‑examining them unless it was certain he would do so.  The Judge, however, made no adverse comment about these questions in her summing up.  In the circumstances, therefore, no obvious harm came to the appellant’s case. 

Judge’s criticism of defence counsel

[28]     An associated criticism of trial counsel’s conduct arose from the Judge’s comments in her summing up about trial counsel’s final address.  The appellant claims that Mr Eastwood’s references to the appellant giving evidence together with the Judge’s criticism would have meant the jury would have lost faith in the defence, thereby causing a miscarriage of justice.

[29]     In her summing up the Judge referred, on three occasions, to trial counsel’s address to the jury to correct what counsel had said.  We consider all were relatively minor matters and would not have caused a miscarriage of justice.

[30]     First, Mr Eastwood in his final address had compared the facts of this case with another apparently well publicised incident in Auckland at the time.  The Judge simply encouraged the jury to focus on the incident before the Court rather than any other matter.  The second involved a submission counsel made to the jury that if the complainant had been dragged along the road they could have expected to hear of greater injuries.  The Judge reminded the jury that no such possibility had been put to the doctor who gave evidence.

[31]     Finally trial counsel suggested to the jury the appellant may have been unfamiliar with the car he was driving which belonged to his wife which may have contributed to his poor driving that night.  The Judge pointed out there was no evidence to establish how familiar the appellant was with the car he was driving. 

[32]     These were somewhat careless remarks by Mr Eastwood and the Judge was correct to point this out to the jury.  On the other hand the Judge made it clear her comments were not a criticism of counsel but simply arose out of the Judge’s responsibility to ensure a fair trial.

[33]     We reject the suggestion that these minor matters could have caused the jury to “lose all faith in the credibility of the defence” and the defence case as the appellant now maintains.  There is nothing to suggest the jury would, as the Judge told them, have done anything more than set these aspects of the defence case to one side.

Trial counsel’s comments on appellant’s actions

[34]     The final direct criticism of Mr Eastwood by the appellant revolved around his comments to the jury in his final address that, while the appellant’s actions in driving toward the complainant may have been reckless that night, they were not intended to deliberately hurt him.

[35]     The appellant submits that these comments were “astonishing”.  We consider this was a perfectly legitimate tactic for defence counsel. It could not be denied that the appellant had caused the complainant’s injuries by running him over.  But the Crown had to prove it was deliberate.  The appellant’s counsel legitimately stressed to the jury that even if they thought the accused had been driving recklessly that was not enough to convict him of the charge.  We reject this criticism. 

[36]     Overall we are satisfied Mr Eastwood was well prepared for this trial and conducted it competently.

Delay

[37]     This final ground of appeal alleges this trial should have been stayed based on undue delay (s 25(b) New Zealand Bill of Rights Act).

[38]     During the course of argument counsel reformed this appeal point as a complaint that a vital defence witness was not available at trial and as a result a miscarriage of justice had occurred.  The appellant said in his affidavit that a flat‑mate had been present in his car on the night of the incident but that he had lost track of the person waiting for the trial.

[39]     The appellant did not identify the flat‑mate’s name, when he lost contact with him, whether he told his trial counsel about this potential witness, what efforts were made before trial to try to find this witness nor whether this witness had any relevant evidence to give.  We reject this complaint.

[40]     For the reasons given the appeal is dismissed.

Solicitors:

Crown  Law Office, Wellington