The Queen v Laird

[2007] NZCA 212

IN THE COURT OF APPEAL OF NEW ZEALAND

CA452/06
[2007] NZCA 212

THE QUEEN

v

GLENN CARL LAIRD

Hearing:14 May 2007

Court:Chambers, John Hansen and Priestley JJ

Counsel:B A Crowley for Appellant

M D Downs for Respondent

Judgment:29 May 2007 at 12.30 pm

JUDGMENT OF THE COURT

A        The extension for time to appeal is granted.

B        The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by John Hansen J)

Introduction

[1]       On 22 September 2006, following trial in the Wellington District Court before Judge Mackintosh and a jury, the appellant was convicted of possession of an offensive weapon and wounding with intent to injure.  He was acquitted on a charge of aggravated burglary.

[2]       On 26 October 2006 Judge Mackintosh sentenced him to two years’ imprisonment on the wounding with intent charge and 12 months imprisonment, to be served concurrently, on the possession of an offensive weapon. 

[3]       He appeals against his conviction and sentence on the wounding with intent charge.

The facts 

[4]       On 2 November 2005 the appellant had been drinking for some time with his girlfriend and the complainant.  They all returned to the complainant’s flat in Owen Street where further alcohol was consumed and both the complainant and the appellant became very intoxicated.  There were others present in the flat.  A play fight developed between the appellant and the complainant which apparently got out of hand when a window was smashed.  The complainant instigated the play fight. 

[5]       As a result of the window being broken, the atmosphere changed.  The appellant was told to leave.  A struggle ensued, and the complainant and another male present succeeded in pushing the appellant out the door.  There was some disagreement on the evidence, and on the complainant’s view the appellant’s foot remained in the door.  The appellant then produced a metal bar from his pants and smashed a pane of glass in the front door.  The steel bar was approximately 30 centimetres long and 1.5 centimetres in diameter, with a piece of rope attached to one end.  After breaking the window the appellant struck the complainant in the head by reaching through the broken window.  The complainant was stunned and fell back from the door.

[6]       The other male retreated upstairs and the complainant back into his own bedroom.  The appellant used the bar to smash against the bedroom door, making a number of holes in it, before forcing his way in.  He then struck the complainant about the head and body with the bar. 

[7]       A third male at the address came downstairs and observed what was occurring.  Fearful for the complainant’s life, he rugby tackled the appellant to the floor.  The appellant struggled violently, but unsuccessfully, to break free.  With the complainant’s assistance he was held on the ground until the police arrived.

[8]       The complainant was taken to hospital, where several wounds on his head required stitching, and he was treated for a fracture to his finger.  The appellant told the police he was acting in self-defence.

[9]       At trial, the appellant maintained that he was acting in self-defence.  He further stated he was worried for his girlfriend, who he thought was inside, so he grabbed the steel bar and, panicking, accidentally cracked the glass in the door.  The appellant maintained that he was attacked by the complainant and only used the bar in self-defence.  He stated that it was an accident that the complainant had been struck in the head.

[10]     After deliberating for approximately two and a half hours, the jury submitted the following question:

By application of “robust common sense” alone and without supporting evidence, can we reach a guilty conclusion on one of the counts?  If we all agree?

The Judge did not consult counsel, but succinctly advised the jury in Court “No.”

[11]     Shortly thereafter the jury returned, finding the accused guilty on the count of possession of an offensive weapon (count 1) and wounding with intent to injure (count 3).  He was acquitted on the count of aggravated burglary (count 2).

The appeal

[12]     Despite the numerous grounds advanced in the notice of appeal, in the end there were only two issues:

a)Is there a risk that the jury employed an illogical reasoning process when determining guilt on counts 1 and 3?

b)Was the sentence manifestly excessive?

[13]     The appeal was filed shortly out of time.  The appellant has given an acceptable explanation for that.  The Crown did not oppose an extension of time being granted for the appeal.  We grant that extension.

Submissions

[14]     Mr Crowley accepted that logically the question set out at [10] referred to count 2, where the jury ultimately returned a verdict of “not guilty.” 

[15]     Mr Crowley submitted that the question asked by the jury indicated that they considered it permissible to simply apply “robust common sense” regardless of the evidence before them.  He further submitted that the Judge’s direction was not comprehensive enough to disabuse them of that erroneous thought and, accordingly, the convictions entered on counts 1 and 3 were suspect.   He submitted that the Judge should have directed the jury to reconsider their deliberations in relation to all counts on a proper basis. 

[16] Mr Crowley also made submissions pursuant to s 25(a) of the New Zealand Bill of Rights Act 1990. However, while not abandoning these, he did not advance them further in his oral submissions. He accepted this submission was founded on his analysis of the jury’s approach at [15] above.

[17]     In relation to sentence, Mr Crowley submitted that the sentence was manifestly excessive. 

[18]     Mr Downs submitted that the ground of appeal advanced was a contention the jury deliberately disobeyed the Judge’s direction in response to the answer to that question.  He submitted there was nothing to support such a submission.

[19]     Finally, Mr Downs submitted the sentence imposed was well within the range available to the sentencing Judge.

Discussion

[20]     In her summing up the Judge stated at [5] and [6]:

There is no one step formula that I can give you to apply to the process of assessing evidence but I think the most useful thing I can say that at the end of the day what is required, working as a team, is the application of robust common sense and then as I said if you work together collectively as a team you should sift out the evidence you think you can rely [sic] and then at the end of that task, asks [sic] yourselves are we satisfied applying our collective common sense to everything we have heard that the Crown has proved guilt.

A similar common sense approach is called for in deciding what inferences or conclusions you can draw from the evidence that you regard as reliable.  Now in this trial you are required to determine in relation to the elements of the offences, a number of intentions.  That is what the accused was thinking at the time.  (Our emphasis).

[21]     It appears from the jury’s question that they were troubled by one of the counts.  It is clear that, on that count, they considered Mr Laird “guilty” if they applied “robust common sense”.  But it is also clear they thought the evidence fell short on that count.  The Judge disabused them of the idea they could find the appellant guilty without being satisfied on the basis of the evidence.  Very shortly thereafter, they returned two guilty verdicts and one of not guilty.  Mr Crowley accepted that logic dictated that the count on which the jury had been concerned as to lack of evidence must have been count 2.  It follows that the jury must have taken the Judge’s answer to heart and acquitted on that charge, on the basis that there was insufficient evidence to substantiate it.

[22]     Mr Crowley’s argument is based on a supposition that the jury, having correctly applied the Judge’s direction to count 2, then ignored it with respect to counts 1 and 3.  That, however, is mere speculation and, what is more, it is illogical speculation.  First, it makes little sense to assume the jury correctly applied the direction to one count but not to others.  Secondly, it is clear that, at the time the question was asked, the jury had already determined two of the three counts.  It follows from the way the question was phrased that they were all satisfied there was “supporting evidence” for their findings on the other counts; it was only “on one of the counts” that they thought evidence was lacking – while clearly thinking he was probably guilty of the count.

[23]     We do not consider the Judge’s answer to the question inadequate.  Firstly, counsel made no request to the Judge to amplify the remark.  Secondly, the answer is clearly correct.  Thirdly, it is apparent the jury applied it correctly as they promptly brought in a “not guilty” verdict on the charge which had clearly been troubling them on an evidential basis. 

[24]     We have no concern that the verdicts on the other counts were unsafe.  No miscarriage has resulted from the jury’s question and the Judge’s response.  Leave to appeal out of time is granted but the appeal is dismissed.

Sentence appeal

[25]     The appellant complaints that the sentence was manifestly excessive.  Mr Crowley contended that in the circumstances of this case both a lower starting point and end sentence were appropriate. 

[26]     This was serious violence.  The Judge took a starting point well within range and made a modest, but reasonable, allowance for the limited mitigating factors.  Nothing has been pointed to that suggests the sentence is manifestly excessive.

[27]     The appeal against sentence is also dismissed.

Solicitors:
Crown Law Office, Wellington