The Queen v Lewis

[2008] NZCA 471

IN THE COURT OF APPEAL OF NEW ZEALAND

CA407/2008
[2008] NZCA 471

THE QUEEN

v

JOSEPHINE FERNE LEWIS

Hearing:22 September 2008

Court:O'Regan, Gendall and Fogarty JJ

Counsel:Appellant in person

M T Davies and N M H Whittington for Crown

Judgment:6 November 2008 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       The appellant was convicted after a jury trial in the District Court of threatening to damage a dwelling house with intent to intimidate or annoy and possession of an offensive weapon (an axe) in circumstances that prima facie showed an intention to use it to commit an offence involving the threat or fear of violence.  She was sentenced by the trial Judge, Judge Harland, to 50 hours community service.  She appeals her conviction but not her sentence.

Background

[2]       The appellant lives on a rural block in a remote area.  The events which led to the charges on which the appellant was convicted occurred on 5 June 2006.  The owners of a property adjoining that of the appellant were working on a fence, which they said they believed was located on the boundary between the two properties.  However, evidence was led at the trial from a surveyor to the effect that the fence on which they were working was located on the appellant’s property.  The surveyor’s evidence was that the line of the actual boundary had been cleared for fencing and there were signs of the remains of a fence on the true boundary line.

[3]       The neighbours had apparently removed posts located on the real boundary line.  The appellant was upset at what she saw as an attempt to assume control over some of her land by treating the internal fence located on it as the boundary fence, and at the removal of the true boundary fence.

[4]       The Crown case was that there was a heated exchange between the appellant and the neighbours, following which the appellant returned to her house and uplifted an axe and then returned to the site of the internal fence.  The appellant says that her intention was to damage the internal fence (located on her land) so that it could not be treated as a boundary fence.  The neighbours say that she confronted them at the road frontage of the two properties where the disputed fence joined the road.  They say that she threatened them both with the prospect of setting fire to their property and that she displayed a threatening manner towards them with her axe as she was hacking at the fence.

[5]       At the trial there was a fundamental conflict of evidence between the neighbours (husband, wife and son) and the appellant.  There were a number of inconsistencies in the evidence of the husband, wife and son, which were highlighted to the jury by the appellant’s counsel.  The question for the jury was whether they were satisfied beyond reasonable doubt, on the basis of the evidence given by the neighbours, that the offences occurred.  Their verdicts indicate that they rejected the appellant’s account of events and accepted that the evidence of the neighbours, notwithstanding its inconsistencies, was sufficiently reliable to found a verdict of guilty on both counts. 

The appeal

[6]       The appellant was represented at trial by counsel, but conducted her own appeal in this Court.  Prior to the hearing she provided the Court with a large volume of material tracing the history of her disputes with various neighbours and with the local police, and her efforts to pursue those disputes through approaches to Ministers, Members of Parliament, the local council, the Police Complaints Authority and others.  She also submitted to the Court a statutory declaration by a Mr Smith, who is a former owner of the neighbours’ property, in which he confirmed that he had commenced the construction of a fence on the true boundary between the neighbours’ property and that of the appellant some years ago – he thought about 2003.  Mr Smith said that before he sold the property he had been in the process of building a new deer fence on the true boundary, that all the posts except approximately ten were in the ground and that the deer netting was left on the boundary in rolls ready to be attached. 

[7]       After the hearing of the appeal, counsel for the Crown notified the Court that the copy of the Crown submissions which had been sent to the appellant before the appeal hearing had been returned to Crown counsel undelivered.  This meant that, unbeknown to both the Court and Crown counsel, the appellant had not seen the Crown submissions when she addressed us at the hearing.  In view of this, we arranged for a copy of the Crown’s submissions to be sent to the appellant after the hearing, and gave her the opportunity to respond in writing to the Crown submissions.  She took that opportunity and filed a letter outlining her position and, subsequently, a detailed response to the Crown submissions, which amplified on the points she had made at the hearing.  We have considered this material, along with the submissions made at the hearing.

Evidence relating to the boundary fence

[8]       One of the concerns which led to the altercation on 5 June 2006 was that the neighbours had removed fence posts on the true boundary line.  There was conflicting evidence at the trial as to what had happened to these posts: the husband said they had been stacked in a shed on their property, the wife said that they had taken them away and were proposing to use them in other areas on their farm and the son said that they were rotten.  The situation with these posts appears to still be unresolved, and it is to be hoped that, if they were wrongly removed, they are returned and re-erected on the boundary line so that the fence at the correct point can be completed, and the source of friction between the neighbours can be resolved. 

[9]       The appellant said that Mr Smith’s declaration contained important evidence that should have been adduced at the trial.  She said her trial counsel ought to have called Mr Smith to give evidence but failed to do so.  This raises issues of:

(a)Whether Mr Smith’s declaration is admissible as evidence in support of the appeal;

(b)Whether the failure to call Mr Smith amounted to counsel incompetence;

(c)Whether the fact that the jury did not hear Mr Smith’s evidence meant there was a miscarriage of justice.

[10]     Ms Lewis did not seek leave to adduce fresh evidence and did not comply with the requirements of r 12B of the Court of Appeal (Criminal) Rules 2001 (the Rules).  But given that she is self-represented we put that to one side.  The question as to whether the evidence ought to be adduced in support of the appeal depends on whether it is fresh, credible and cogent.  In this case it is not fresh in the sense that it could have been obtained with reasonable diligence at the trial: indeed, the appellant’s complaint is that her counsel could have and should have called Mr Smith but did not do so.  We have no reason to doubt its credibility.  It is cogent in that it relates to an issue that was considered by the jury, albeit something of a collateral issue.  Nevertheless, we are satisfied that it is appropriate to admit the evidence in support of the appeal, and to determine the appeal on its merits.

[11]     The appellant’s criticism of her trial counsel is that he was meant to call Mr Smith but did not.  She said that she expected that he would and was surprised that he did not.  The appellant did not comply with r 12A of the Rules, which means that we have not had any evidence in reply from her counsel as to what the circumstances were which led to the evidence of Mr Smith not being called.  In those circumstances it would not be fair for us to make a finding that her counsel failed to follow her instruction to call Mr Smith or was otherwise incompetent.

Was there a miscarriage of justice?

[12]     That is not the end of the matter, however, because the appellant’s point on appeal is focused not on the reason that Mr Smith was not called, but rather the fact that he was not called and that the evidence which would have supported her case was therefore not before the jury. The appellant said that the unavailability of the evidence of the former owner of the neighbours’ property as to the existence of an at least partially completed fence on the true boundary meant that she did not get a fair trial.  We do not accept that that was the case.  The issue of the location of a fence on the boundary was aired at the trial, with the surveyor’s evidence and the evidence of the appellant and her son. 

[13]     We do not accept that additional evidence on the subject of the partially completed fence on the true boundary would have affected the verdict.  While the existence of the partially completed fence on the true boundary was important background to the dispute, the real issue at the trial was what transpired when the appellant and the neighbours came into confrontation on 5 June 2006.  That was a matter on which the evidence was greatly disputed, and in respect of which the evidence of the neighbours was internally inconsistent.  But all of the issues which could have been raised at trial were raised by the appellant’s counsel, and the assessment of credibility made by the jury was made on a properly informed basis. 

[14]     In the written material filed after the hearing, the appellant clarified her concern about the fact that the jury did not hear Mr Smith’s evidence.  Her argument is that Mr Smith’s evidence about the existence of the fence on the real boundary would have supported her position in relation to the fence.  She said that that would have improved the jury’s assessment of her credibility and diminished the jury’s assessment of the neighbours’ credibility. 

[15]     We do not accept that the evidence would have had the significance which the appellant attributes to it.  While the existence of the fence on the boundary line is obviously a matter of great significance to the appellant, we do not consider that it had similar significance in the context of the present case.  The allegations against the appellant related to an incident that happened following the first confrontation at the fence line, after the appellant returned to her house and retrieved her axe.  It was relevant that the neighbours said that they did not, at the time of the alleged incident, know that the boundary fence which they removed was on the boundary line. 

[16]     The state of their knowledge at that time was in issue, but the confirmation that the fence was, in fact, on the boundary line was of less significance.  As we have already noted, the reason for the confrontation and for the appellant’s concern at the actions taken by the neighbour were all squarely in front of the jury, as was the evidence from the surveyor as to the location of the proper boundary line and the appearance that a fence had been previously built there.  We do not accept therefore that the failure to call Mr Smith had a material impact on the jury’s assessment of the credibility of the appellant and the neighbours respectively.

Was the verdict unreasonable?

[17]     In essence, the appellant contends that the jury ought to have believed her evidence and rejected that of the neighbours.  We respect the sincerity with which the appellant made that contention but, in effect, the appellant is asking that this Court substitute its view on the veracity of the evidence of the neighbours and the appellant respectively, which it would plainly not be appropriate for us to do.  In essence the appellant was asking us to find that the jury verdict was unreasonable, invoking s 385(1)(a) of the Crimes Act 1961 (the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence). 

[18]     As was recently confirmed by the Supreme Court in R v Owen [2008] 2 NZLR 37 at [14] and [15], a verdict is unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt. The Court confirmed that an appellate court must keep in mind that it is not the arbiter of guilt, and that reasonable minds might disagree on findings of fact. The Supreme Court also confirmed in Owen at [13] that an appellate court is performing a review function, not one of substituting its own view of the evidence. When undertaking its review function, it must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example of this.

[19]     Applying that approach to the present case, it is clear that there is no proper basis for this Court to interfere with the verdict of the jury in this case.  The Court cannot override the jury’s assessment of the credibility and reliability of the evidence given at the trial.  There was no complaint about the manner of the conduct of the trial, and the issues for decision by the jury were clearly explained to them by counsel in their closing submissions and by the Judge in the summing up.

Result

[20]     We therefore dismiss the appeal.

Solicitors:
Crown Law Office, Wellington