The Queen v Krishane Hiroti
[2002] NZCA 251
•25 September 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA384/01 |
THE QUEEN
V
KRISHANE HIROTI
| Coram: | Keith J McGrath J Anderson J |
| Submissions: | No submissions for the Appellant S P France for the Crown |
| Judgment: (On the papers) | 25 September 2002 |
| JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
Introduction
The appellant was convicted, following trial by jury in the District Court at Napier, on one count of causing grievous bodily harm with intent to injure. He was acquitted on an alternative count of doing so with intent to cause grievous bodily harm. The appellant was sentenced to 4 years imprisonment. He originally appealed against both his conviction and sentence but a notice of abandonment of the appeal against sentence was later filed on his behalf. This judgment accordingly focuses on the appeal against conviction.
The appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. Consideration is required of certain provisions of that Act because the appellant is in custody, has been declined legal aid for the appeal and, as a result, is unrepresented. We address the particular requirements of the Act concerning an appellant in his situation later in the judgment. First, however, we turn to the facts.
The facts
On 3 March 2001 the appellant was at his home in Hastings with his infant child. He had been drinking for much of the day with the 74 year old victim, who was one of his neighbours. Both were very drunk. An argument commenced between the two over the appellant’s parenting of his child and an altercation developed. The police were called and on arrival found the victim unconscious with blood about his face on the laundry floor. The victim’s son was present, highly upset, and engaged in an attempt to attack the appellant. The police found pieces of flesh, apparently from finger tips, at the scene and gave them to ambulance staff.
The victim had suffered extensive injuries including two skull fractures, one at the right front and one at the back, a laceration above his right eye, fractured ribs, a collapsed lung and injuries to his fingers among them being severed fingertips. He was hospitalised and on a ventilator for 3 days before regaining consciousness. He was in hospital for twelve days.
At his trial the appellant’s evidence of the events which resulted in the victim’s injuries portrayed the injured victim as the aggressor. The appellant said the victim had starting coming towards the appellant, abusing him. At the time the appellant said he was holding his child whom he passed over to another neighbour who was also present. The victim had grabbed the appellant and a struggle between the two had ensued. According to the appellant the victim, because of his drunkenness then tripped and started to fall over, landing on concrete. The victim was too heavy for the appellant to stop the fall and the appellant followed the victim down. The appellant was unable to break his own fall with his hands and his full weight came down on the victim through the appellant’s knees striking the victim’s chest. The appellant said he got up, leaving the victim on the floor, and went off to tend to his child. Later he saw the appellant walking around covered with blood and falling over again. Soon after others who had been at the house, including the victim’s son, came back to find the victim badly injured. The police were then called.
In his evidence the appellant said that the neighbour, who had been drinking with the appellant and the victim, was also present for at least part of these events. That neighbour gave evidence in which he said that he had seen the appellant punch the victim on the nose twice earlier in the evening in the course of their argument. This neighbour said he had left the house some ten minutes later at the appellant’s request. He denied in his evidence being present when the principal injuries were inflicted on the victim. He also denied ever being handed the baby.
Medical evidence called by the Crown indicated the injuries to the victim had been caused by at least four separate events. The likely cause was an assault rather than a single fall.
The procedure for determining the appeal
A Judge of this Court, acting under s392A of the Crimes Act 1961, decided that this appeal can fairly be dealt with on the papers and that it has no realistic prospect of success. As a result he determined the mode of hearing should be on the papers. The appellant has been declined legal aid for the appeal. He is presently in custody serving his sentence. He had legal assistance in the preparation of his notice of appeal enabling the formulation of the ground of appeal in some detail. The sole ground of appeal is that there was a miscarriage of justice arising from inadequacies in the trial Judge’s direction to the jury on the making of inferences. The appellant has however had no legal assistance with preparation of any written submissions to be considered in determining the appeal and has prepared no such submissions himself. In response to a letter from the Court’s Registry enquiring if he intended to file further submissions the appellant responded that he did not intend to file any further material.
The appeal accordingly raises the question of whether the Court has power to determine a criminal appeal on the papers where no written submissions have been received from the appellant. In R v Taito (PC50 & 59/2001, 19 March 2002) which was decided on the legislation as it stood prior to the 2001 amendments the Privy Council said:
The Court of Appeal was therefore only empowered to dismiss the appeals after a proper hearing. Plainly, in none of the cases was there any hearing. The appellants were not represented or present. The Court of Appeal heard no argument.
The Privy Council went on to hold that the dismissal of the Taito appeal under the ex parte procedure the Court followed at that time was of no force or effect.
Clearly it is only to the extent that the 2001 amendment to the Crimes Act 1961 has empowered determination of criminal appeals, without a hearing involving the representation or presence of the appellant, that the determination by this Court of the present appeal will be in accordance with law. Power to hear and determine an appeal on the papers was given in 2001 by the new s392A which, as indicated, a Judge has decided should be applied in this case. Section 392A(1) requires that:
An appeal or application for leave must be dealt with by way of a hearing involving oral submissions unless the Judge or Court making the decision on the mode of hearing determines, on the basis of the information contained in the notice of appeal, notice of application, or other written material provided by the parties, that the appeal or application -
(a) can fairly be dealt with on the papers; and
(b) either has no realistic prospect of success or clearly should be allowed.Any matters relevant to the decision on mode of hearing may be considered in deciding if an appeal can be fairly dealt with on the papers. An inclusive list of such matters is set out in s392A(2). They include whether an appellant has been legally assisted in preparation of the appeal, has been provided with copies of the relevant trial documentation, the gravity of the offence and the nature and complexity of the issues the appeal raises (s392A(2)(a)). Importantly the Court may change the mode of hearing at any time at its own initiative or on the application of any party (s392A(4)).
Under the legislation where an appeal is to be decided by way of a hearing on the papers the parties may make written but not oral submissions to the Court. As well, neither the parties nor their representatives may appear before the Court and the appeal must be determined on the basis of the written material that is before the Court (s392B(2) to (4)).
In summary the scheme of the 2001 amendment was to empower the determination of certain criminal appeals to the Court of Appeal by a process that did not involve an oral hearing of the appeal. A Judge could decide that the mode of hearing should be on the papers on the basis of information contained in the notice of appeal, the notice of application, or other written material provided by the parties. The Judge however could do so only if the appeal could be fairly dealt with in that way and, so far as the present case is concerned, if the appeal had no realistic prospect of success.
As the Court has a continuing power to change the decision in the mode of hearing at any time it follows, in our view, as the Crown suggested in written submissions, that the Court hearing the appeal on the papers must itself be of the mind that the appeal can be fairly dealt with by that mode when deciding the appeal. We have accordingly considered afresh that initial decision, having regard to all the matters set out in s392A. We have also considered the extent of the impact of the judgment of the Privy Council in Taito under the amended legislation.
While the 2001 amendment restructures the legislative basis on which the Privy Council decided Taito at least one fundamental aspect of the ratio of that decision remains. It is that the Court of Appeal must have sufficient information as to the appellant’s grievance concerning the decision appealed against for the Court fairly to deal with the appeal. Having approached the present appeal on that basis we have decided that we are sufficiently apprised of the appellant’s grievance to fairly determine the appeal on the papers. The grounds of appeal which we will shortly examine, were prepared at a time when the appellant had legal assistance. They succinctly and effectively isolate the single point of appeal. They also adequately address whether the proviso in s385 of the Crimes Act should be applied if the ground of appeal is made out. Other circumstances may require the Court to take a different approach but we are fully satisfied that in the present case the criteria under s392A for the appeal to be determined on the papers are satisfied despite the absence of any submissions from the respondent additional to what appears in the notice of appeal. In those circumstances it seems to us within the spirit of the legislation and appropriate to proceed under the on the papers mode.
The ground of appeal
As we have said, the ground of the appeal is that there has been a miscarriage of justice arising from the trial Judge’s direction to the jury in the making of inferences. By way of background the notice of appeal refers to the evidence given at the trial by the victim, the neighbour and the appellant, correctly observing that the victim, when giving his evidence had little recollection of the alleged attack. The notice of appeal, again correctly, also says that the neighbour’s evidence was that he had left the appellant’s home before the gravamen of the alleged attack had occurred. It also says that the appellant, in his evidence, accepted in cross-examination that he had punched the complainant but otherwise that he had denied application of force other than inadvertently, in self defence or in defence of his infant child who he claimed to be holding during part of the time that the alleged attack was taking place. In a video statement to the police, which was shown at the trial, the appellant had accepted that he “had lost it”. The Notice of Appeal also indicated that the Crown had called other circumstantial evidence, including scene examination and medical opinion evidence, to support its case.
The Notice of Appeal then continued:
7.2 Misdirection on Inferences
7.2.1The trial Judge failed to direct the jury in his summing up that a verdict of guilty could only follow if the only reasonable inference is that the accused was guilty and that all other inferences consistent with innocence were only possibilities which raised no reasonable doubt. R v Maxwell (1988) 3 CRNZ 644.
7.2.2The omission to give the Maxwell direction was of particular importance as the jury was required to draw inferences to determine the material facts of the case and the Appellant’s intent.
7.2.3Counsel for the Appellant sought that the Maxwell direction be given to the jury when asked by the trial judge in the absence of the jury.
7.2.4This was a material omission that resulted in a miscarriage of justice.
The Notice of Appeal goes on to refer to evidence of the victim’s intoxicated state, which indicated his blood alcohol level, at the time of his admission to hospital, was over 3 times the legal limit for driving. Reference is also made to evidence of the victim’s aggressiveness when intoxicated and of his blocking the appellant from leaving the kitchen at one point. The Notice of Appeal finally refers to an acknowledgement by the victim in his victim impact statement that: “I had a lot to drink that day and may have been argumentative.” These facts, it was submitted, made the scenario in the appellant’s evidence plausible, and called for inference making by the jury on which judicial guidance should have been given.
Decision
In his summing up to the jury the trial Judge gave a direction concerning the appellant’s evidence in the following terms:
If you decide that the accused’s evidence was truthful and reliable in all material respects, then you will accept it as a complete answer to the Crown case and he must be acquitted.
The second possibility is that while you may not accept the accused’s evidence as the truth, the whole truth and nothing but the truth, it nevertheless leaves you with reasonable doubts as to just what the true position was. The accused is entitled to the benefits of those reasonable doubts expressed again in the form of a verdict of not guilty.
The third possibility is that you may reject the evidence given by the accused. Even if that is your view you should not automatically then conclude that he is guilty of these charges. In that case you simply set his evidence aside and go back to the rest of the evidence in the case to decide whether it establishes the guilt to the required standard.
The fact that an accused has given evidence which you find unacceptable, does not of itself prove that he is guilty of the charge.
The Judge went on to give a direction on self defence and then said:
The Crown has presented a deal of evidence of what the witnesses say and they saw and what happened on the day in question. The Crown asks you to draw inferences from that evidence. You must consider all that evidence in your deliberations.
Now the accused in his defence says that the inferences you are asked to draw from the evidence of the other witnesses are wrong. He concedes Mr Taiaroa suffered serious injuries, and he does not dispute the medical evidence as to them. However, he describes now an assault which the victim made on him, and during the struggle the falling of the two of them and the slamming of the door, Mr Taiaroa suffered the injuries to his chest, ribs and hands.
We take the view that in these passages the Judge put the defence case to the jury fairly and adequately. On his direction if the jury had been left in any reasonable doubt as to the appellant’s explanation of how the victim’s injuries were caused, the appellant would have been acquitted on both counts. In other words what the jury was told was sufficient to indicate that the appellant should be convicted only if the jury was satisfied that there were no inferences consistent with the evidence giving rise to reasonable doubt.
To the extent that the case required a consideration of inferences, or inferential analysis, this was in relation to the circumstantial evidence on which the Crown relied, taken as a whole. The issue was whether, if the appellant’s testimony were rejected, the residual evidence proved guilt beyond reasonable doubt, by a process of inference. This was not a case involving reasonably available inconsistent implications.
The defence case was accordingly straightforward and not one in which the jury would have been assisted by a more complex direction on inferences as suggested in the Notice of Appeal. This distinguishes the present case from R v Maxwell (1988) 3 CRNZ 644. As this Court has previously said where elaborate general directions on inferences are unnecessary they are best avoided R v Hart [1986] 2 NZLR 408, 413; R v Goldsack (CA425/00, 18 June 2001, paragraph [14]).
Conclusion
The sole ground raised in the appeal against conviction accordingly fails and is dismissed. It is unnecessary to consider the point concerning the proviso to s385. As earlier indicated the appellant did not proceed with the appeal against sentence which is also dismissed.
Solicitors
Crown Law Office, Wellington
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