The Queen v John Anthony Edwards
[2002] NZCA 87
•6 May 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 379/01 |
THE QUEEN
V
JOHN ANTHONY EDWARDS
| Hearing: | 1 May 2002 |
| Coram: | Gault J Blanchard J Anderson J |
| Appearances: | Appellant in person S P France for Crown |
| Judgment: | 6 May 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
Nature of the appeal
Mr Edwards appeals against his conviction by a District Court jury on one count of assault with a weapon contrary to s202C(1)(a) of the Crimes Act 1961. The weapon in question was a windscreen cleaning brush as may be commonly found on the forecourt of service stations for use on customers’ vehicles.
On 19 October 2000 the appellant and the complainant, Mr C J Linton, were patronising the Mobil Service Station at Ludlam Crescent, Lower Hutt. It was mid-day and the forecourt was busy with customers including some who, like the appellant, were awaiting service. Mr Linton bought petrol, cigarettes and a can of soft drink. He got into his car, lowered the electrically operated windows, and started to take a drink from the can. The appellant, who had been cleaning his windscreen with the brush made some facetious remark to Mr Linton about the time he was taking. Provocatively, he cast water from the brush across the windscreen of Mr Linton’s car. The complainant took umbrage at this and attempted to alight from his car to remonstrate with the appellant. Mr Linton’s evidence was that he was about to open the car door to get out when the appellant slammed the door on his leg, catching it between the door and the chassis of the car. He then jumped through to the other side of the car to get out from the passenger’s side, but the appellant ran around the car and struck him with the brush across the face. Mr Linton said he was in a sort of dizzy state and tried to grab the appellant so he could not hit him again, but he was struck again and the brush broke. Mr Linton said that the appellant tried to get him in the throat with the handle so he grabbed the appellant, they both fell to the ground and there was mutual punching until other patrons pulled Mr Linton off Mr Edwards.
The case for the appellant at trial was essentially that Mr Linton was the aggressor at all material times. Specifically, in respect of the use of the windscreen brush, the appellant’s case was that he had no intention to strike the complainant and in fact did not. He merely held the brush out at arm’s length “to hold him at bay” and Mr Linton “simply charged”. The effect of the appellant’s evidence is that any injury to Mr Linton occasioned by the windscreen brush was entirely self-inflicted without any intention on the appellant’s part that Mr Linton and the brush should come into contact.
Three independent witnesses of the incident were called by the Crown. They testified to the appellant being the aggressor, striking Mr Linton about the face, with the complainant attempting to protect himself as he retreated.
As a result of the incident, Mr Linton sustained a cut and grazing to his lower lip, grazes to the knuckles and fingers of his right hand, lower neck, right elbow and forehead. One of his teeth was permanently damaged and his face permanently scarred.
There was medical evidence that the appellant himself suffered a head contusion which required debridement. That evidence was presented on behalf of the appellant, obviously with the consent of the Crown, by way of a doctor’s certificate which at the time of production to the Court was remarked upon by the Judge, to the appellant’s then counsel Mr King, in the following way:
The Court: I think you’ve already indicated Mr King that translated that means there was a graze on the back of the head that needed cleaning.
Mr King: Back of the head that needed cleaning out.
Consistent with a well-known practice of service stations, the one in question had a video camera for surveillance of the forecourt. This camera rotated and if in operation at the time may have captured all or some of the incident in question. A police constable investigating the complaint by Mr Linton made inquiries about the availability of a videotape during a visit to the service station but was informed that there were difficulties accessing it. No doubt, had the incident been of a more serious nature, those difficulties would have been surmounted by the Police, but the constable did not consider it necessary to pursue the matter. Whether and to what extent the incident was captured by the camera is entirely speculative. The ability to check the contents of the tape disappeared with the periodic over-recording of material in accordance with Mobil’s practice.
Before final addresses the Judge had a brief discussion with counsel in the course of which she indicated that she would not put self-defence to the jury. A question has arisen on the appeal whether Mr Edwards’ then counsel consented to such course and if so, what his authority was in that behalf. It is unnecessary to resolve that factual issue because it is the Judge’s responsibility to put self-defence to the jury for its consideration. As this Court said in R v Tavete [1988] 1 NZLR 428, at 430 lines 41-44:
The general principle is not in doubt. Self-defence should be put to the jury where, from the evidence led by the Crown or given by or on behalf of the accused, or from a combination of both, there is a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence.
Grounds of appeal and argument by appellant
Mr Edwards has provided this Court with detailed written submissions. The essential grounds may be summarised as follows.
1. The Judge erred in law by precluding consideration by the jury of self-defence as a defence pursuant to s48 of the Crimes Act 1961.
2. There was a miscarriage of justice by reason of the unavailability of the video surveillance tape.
3. The prosecutor misconducted himself in the course of cross-examining the appellant.
4. The defence was prejudiced by the Judge’s reference to Mr Edwards’ injury, as referred to in para [5] above.
The appellant embellished the issue of the unavailability of the video surveillance tape in terms of a conspiracy between Mobil and the Police. His submissions gained no additional weight either from that fanciful proposition or from another submission that Mobil were somehow at fault for providing allegedly fragile windscreen brushes for use on their service station forecourts.
The submission of misconduct by the prosecutor relates to an objection by Mr Edwards, not his counsel, to certain questions put by the prosecutor in cross-examination which were advanced on a basis that Mr Edwards had disputed. Mr Edwards’ response was to tell the prosecutor how he should put his questions.
Respondent’s submissions
We do not intend to set out extensively the submissions advanced by Mr France on behalf of the Crown. Their nature and cogency is indicated in the discussion appearing below. He contended, by reference to the evidence in the trial, that there was no credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence. The other matters of concern to Mr Edwards were manifestly inadequate to support the appeal.
Discussion
We deal immediately with the grounds of appeal other than that relating to self-defence because their insubstantiality may be briefly demonstrated.
As to the absence of the videotape, we perceive not the least ground for an assertion of a conspiracy on the part of the Police and/or Mobil to obstruct justice by deliberately withholding evidence. The contents of the tape are speculative. In theory they would be just as likely to support the Crown case as the defence.
The way in which the disputed cross-examination proceeded cannot be characterised as prosecution misconduct. Our conclusion to that effect on reading of the transcript is reinforced by the absence of any objection on the part of Mr Edwards’ very experienced counsel and by the nature of the Judge’s response. She invited the prosecutor to carry on asking questions as he considered appropriate. Nothing said could have resulted in a miscarriage of justice in any event.
The complaint about the Judge’s description of Mr Edwards’ injury is similarly unpersuasive. The Judge’s observation was plainly intended to assist the jury as a reference back to a submission by appellant’s counsel in opening. Counsel’s response was to repeat with precision what he had obviously said earlier.
Turning now to the question of whether self-defence should have been left with the jury, we identify a fundamental weakness in the ground of appeal. The prosecution evidence on the issue was essentially that of the complainant and the three eye-witnesses who all had the appellant advancing and striking. The evidence for the defence was that of the appellant who had Mr Linton charging at the brush held statically by Mr Edwards’ outstretched arm. Unlikely though Mr Edwards’ explanation might seem, that was nevertheless how he and his counsel portrayed the situation. When cross-examining the complainant defence counsel said:
Mr Edwards did not strike you, I put to you Mr Linton, with the brush. Any contact that occurred between the brush and you happened as he was trying to retreat as you were charging at him?
In examination-in-chief Mr Edwards said:
I had the wash brush in my hand, I was holding the brush end, the other end had a substantial soft plastic knob on it, I held this out at arms length to literally do that, to hold him at bay. … Well, he simply charged … I was simply bowled backwards, I was back-pedalling literally as fast as I could go. … the brush would have still been held at arms length…
On Mr Edwards’ version his use of the wash brush was neither in terms of an assault nor as a weapon; the complainant’s injury was without volition by Mr Edwards and in effect self-inflicted by the complainant. If there were any reasonable possibility that this were so, Mr Edwards would have been entitled to acquittal, not on the basis of self-defence but on the basis that the ingredients of the crime were simply not established.
If, on the other hand, the jury were to reject Mr Edwards’ explanation the residual evidence on the issue was that of the complainant and the three eye-witnesses, all of whom described the appellant as an aggressor with the wash brush. Self-defence simply did not arise.
The way in which the matter was left with the jury was the only rational way it could be. There was no credible or plausible evidential narrative of Mr Edwards striking Mr Linton in self-defence for consideration by the jury.
Since the hearing of the appeal we have received from Mr Edwards a memorandum of further submissions in support of the appeal. Particularly since Mr Edwards was unrepresented by counsel, we were prepared to receive and consider the further submissions but having done so have not been persuaded that the appeal should succeed.
We conclude that no miscarriage of justice or error of law occurred and the appeal is dismissed.
Solicitors
Crown Law Office, Wellington
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