The Queen v Ripia

[2004] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND

CA164/03

THE QUEEN

v

JAMES WALKER RIPIA

Hearing:25 February 2004

Coram:Hammond J
Laurenson J
Doogue J

Appearances:  L C Rowe for appellant

B J Horsley for respondent

Judgment:1 March 2004 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1]       The appellant was convicted following trial by jury in the District Court at Kaikohe on one count of wounding with intent to cause grievous bodily harm.  He was sentenced to 3½ years imprisonment.  He now appeals against his conviction on the following ground: that a miscarriage of justice was occasioned by one or more of the following:

(a)       trial counsel’s failure to brief or call expert evidence;

(b)       trial counsel’s failure to ensure the complainant gave evidence at trial; and

(c)       misdirections as to matters of fact by the trial Judge to the jury in summing up.

[2]       The appellant has filed an affidavit dealing with his concerns about trial counsel and an affidavit in the form of a “would say” brief from a forensic pathologist, Dr Sage.  A waiver of privilege has also been filed.  An affidavit in reply has been received from trial counsel.

Background

[3]       At the time of the offending the appellant and the complainant were in a de facto relationship and were living in a hotel room in Kaikohe.   On 9 August 2002 the appellant was downstairs in the hotel bar, drinking.  At some stage the complainant also came down the stairs but returned to her room.  A short time later the appellant followed the complainant upstairs.

[4]       As a result of hearing a commotion upstairs one of the bar staff, Braida Harris, went up to investigate.  When approaching the room occupied by the couple, she noted blood on the walls and broken glass down the hallway.  Ms Harris’s evidence was that when she got to the room she saw the complainant sitting on the floor with the appellant standing over her with clenched fists.  The complainant was covered in blood and had a large gash on her forehead.   Ms Harris told the appellant to leave the room.  When he did so, she heard the appellant say to the complainant, “Get smart again [and] I’ll give you another hiding”.

[5]       The police were called.  The appellant admitted that he had punched the complainant in the face and had tried to hit her on the head with a fire extinguisher after she had punched him and attacked him. He claimed however that he had failed to hit her with the extinguisher because she had her hands up and blocked it.  He said, however, that the injuries suffered by the complainant already existed when he entered the room and that his actions were in response to the complainant attacking him after he tried to ascertain how she had hurt herself.   The injuries, said the appellant, must have been self-inflicted.  The appellant did not refer specifically to the significant wound on the complainant’s forehead.  Nor did the appellant suggest there was an accident.

Submissions

Failure to call expert evidence

[6]       Counsel for the appellant submits that trial counsel made a radical error in failing to brief or call expert medical evidence as to the likely or possible cause of the injury to the forehead suffered by the complainant.  At trial, the Crown relied on two medical witnesses.  A statement from a Dr Bertoni was read by consent.  It referred to a “laceration” on the forehead.  Dr Sunil gave evidence.  His evidence was that the complainant has suffered a “sharp clean cut lacerated wound”.  On questioning by trial counsel, he gave evidence that one did not normally get such a wound with a blunt object but he did not consider himself enough of an expert to comment on the degree of sharpness that would be required.  He said a sharp object including a sharp edge could have been the cause.

[7]       Counsel for the appellant submits that trial counsel’s approach of using the prosecution witness to obtain evidence that other causes of the wound were medically possible failed because the prosecution witness was not expert in forensics.  As such, counsel submits, trial counsel failed to provide a reasonable alternative explanation to the jury on the critical issue of how the material injury could have been caused.  This was necessary, it is said, given the strong circumstantial case.  Had a pathologist been called, expert evidence would have been available identifying other reasonably possible causes of the wound other than a glancing blow with the fire extinguisher.  This would have provided significant support for the theory that the infliction of the wounds was accidental.  In addition, a pathologist’s evidence would have been relevant to the question of intention (in that such evidence suggests that the wound is consistent with a glancing blow) and the severity of the wound (a pathologist’s evidence is that the wound was “moderate”, as opposed to evidence of Dr Bertoni that the wound was “severe”).

[8]       Mr Horsley, for the Crown, submits that the appellant has failed to establish that the failure to call evidence from a pathologist had a significant prejudicial effect on the outcome of the trial.  Mr Horsley submits that the pathologist’s evidence is equivocal; the injuries are said to be consistent with a glancing blow from the extinguisher as well as an accidental injury.  The pathologist’s evidence does not, says Mr Horsley, provide any assistance to the jury as to what did or did not cause the wound.  The pathologist’s evidence does not rule out the likelihood of a glancing blow from the extinguisher when the complainant defended herself against it.  This was a matter where the jury could easily apply their common-sense without the need for expert evidence.

[9]       Although the pathologist’s evidence is equivocal, it does provide evidence that an accidental version of events was, at least in terms of the cause of the wound, medically possible.  Given the strong circumstantial case, this would seem to have been useful in bolstering the appellant’s credibility.  However, Dr Sunil had acknowledged that the injury was consistent with falling on a sharp edge.

[10]     The evidence of the pathologist does not appear to be particularly relevant to intention.  A glancing blow was a possible cause of the wound.  This does not appear to detract from the proposition that a person who attempts to hit the head of another with a heavy fire extinguisher intends to cause injury or grievous bodily harm.

Failure to call the complainant

[11]     The complainant did not give evidence at the trial.  The Crown elected not to call her on the basis that she was an unreliable witness who was mentally unstable and unfit to give evidence. 

[12]     Counsel for the appellant submits that the interests of justice required that the complainant give evidence and that the prosecution should have been required to call the complainant under s368(2) of the Crimes Act 1961.  Counsel points to the statement made by the complainant on 16 August 2002, which is inconsistent with the Crown case and indicates that certain wounds may have been self-inflicted.  The complainant’s statement also gives, says counsel for the appellant, an insight into the degree of intoxication she was suffering.  That was relevant to the possibility that the wounds had been caused by accident.

[13]     Mr Horsley notes that in an initial statement the complainant claimed that the appellant caused the wounds with a knife, a bottle and a glass.  Mr Horsley submits that the second statement by the complainant is “bizarre” and cannot be right.  (For example, in her statement the complainant states that other people were present during the fight.  However, when Ms Harris entered the room, no-one was present.)  Mr Horsley submits that the complainant’s previous medical history and those conflicting statements properly gave the Crown cause for concern as to calling an obviously unreliable witness.  There was adequate evidence to proceed in her absence.

Summing up

[14]     The appellant submits that the trial Judge misdirected the jury in the following ways:

(a)       The Judge when summing up on the question of whether the injury could have been self-inflicted commented that there was no evidence of any breakage that might indicate that the wound was caused “self-inflicted accidentally”.  Also, the Judge commented that the jury might think it curious that there was no sign of anything in the way of a sharp instrument or weapon with which someone could cut themselves on the forehead.  Counsel submits that this was incorrect as there was evidence from Dr Sunil that the injury could be caused by the “sharp edge” of a lectern and there were multiple items of furniture which falling against could have caused the injury.

(b)       The Judge suggested that the base of the fire extinguisher could have caused the head wound, in the absence of expert evidence to that effect.  Counsel submits that the Judge’s focus on the potential of the fire extinguisher to cause the wound may have lead the jury to adopt that narrow focus as opposed to considering whether it was reasonably possible that another object might have caused the wound.

(c)       The Judge stated that the appellant in his video said that “he did intend to hurt her”.  Counsel submits that this was incorrect.  What the appellant actually said was that he:

tried to hit her anywhere with (the extinguisher), anywhere it would hurt her, but it didn’t work because she had her hands and arms everywhere

Counsel submits that the statement was in the context of an attempt to hit the complainant, which proved unsuccessful on his account.  Counsel submits that by failing to provide the context the judge potentially caused the jury to think that the appellant has a clearly stated intention to injure.

[15]     Mr Horsley submits that the statements by the Judge were not directions to the jury but rather formed part of a commentary on the evidence given and the Crown and defence closings.  As the Judge clearly directed that all these matters were for the Jury, Mr Horsley submits that the comments fall well within the ability of judges to express views on the evidence: R v Afele (CA 330/02, 10 December 2002).

Discussion

[16]     The question for us in this case is whether, viewed cumulatively, the matters raised on behalf of the appellant establish that there was either a miscarriage of justice or a real risk of a miscarriage of justice.  We say “viewed cumulatively” because we doubt whether, if taken separately, any of the matters raised on behalf of the appellant would reach the requisite threshold.

[17]     The first matter raised on behalf of the appellant is trial counsel’s failure to brief or call expert medical evidence.  It is true the pathologist’s evidence put before this Court indicates that the critical wound to the forehead could have been caused to the complainant in a variety of ways of which a glancing blow from the fire extinguisher was but one.  Nevertheless trial counsel has obtained the acknowledgement in cross-examination of the medical witness called at trial that the particular wound could have been caused by a sharp edge, and he could have pointed to sharp edges within the rooms occupied by the complainant and the appellant.  Notwithstanding that the evidence of the pathologist may have improved the case for the appellant, it is difficult to see that the failure to obtain expert medical evidence constituted radical error on the part of the trial counsel to satisfy the test in R v Pointon [1985] 1 NZLR 109; (1984) 1 CRNZ 348. Trial counsel would have been fully justified in taking the view that the evidence of Dr Sunil sufficiently established a doubt as to the cause of the wound. While the evidence of the pathologist is before the Court, it would not have substantially strengthened that doubt.

[18]     We think the criticism of trial counsel for failing to request the Crown to call the complainant or seeking the Court to order her call possibly has more merit.  Her evidence may have substantially strengthened Dr Sunil’s evidence that there had to be a doubt about the cause of the injury given the complainant’s intoxication at the time and the possibility that she had fallen on a sharp edge.  However, given the complainant’s medical state, it may well have been that the trial Judge would have justifiably in the overall interests of justice refused to require the Crown to call the complainant as a witness.  Thus, while there could be said to be a degree of error on the part of trial counsel in not pursuing this aspect of the matter, it is again difficult to say that it was a radical error which by itself has either led to a miscarriage of justice or a real risk of a miscarriage of justice.

[19]     There are similar difficulties for the appellant when the criticisms of the Judge’s summing up on issues of fact are looked at separately.  The Judge was merely commenting on the evidence.  It seems unfortunate that in at least one instance of significance he was wrong, i.e. when he said there was nothing else in the room that could cause such an injury when the evidence that had been given on the point was insufficient for conclusions to be drawn.  Nevertheless the Judge’s comments were in the context of a self-inflicted wound.  Viewing the case as a whole, he had fairly put the case for the appellant as presented at trial.

[20]     However, when we view these matters collectively, it is clear that there is a real risk of injustice in this case.  The problem for the appellant is that it appears the Crown, his counsel at trial and the trial Judge never focussed upon the real possibility that the inebriated complainant may have caused the gash on her own forehead by accident.  This was never negatived by the Crown and never pursued strongly by trial counsel.  It was never squarely put before the jury by the trial Judge as it was not the focus of the case.  However, on the evidence before the Court accident was a real possibility.  It is true it was mentioned as a possibility to the jury, but it does not appear to have been examined in any detail.

[21]     There was clear medical evidence that the wound upon which the Crown relied could have been caused by a sharp edge.  That evidence is strengthened by the evidence of the pathologist before this Court.  While the wound, on that pathologist’s evidence, may still have been consistent with a glancing blow from the fire extinguisher, it would seem difficult to conclude that there was no doubt that it was caused by the appellant’s wielding of the fire extinguisher.  There was no blood on it.  There was no blood apparently on any of the sharp edges in the bedroom.  On the other hand, there was substantial blood around the toilet bowl.  The pathologist suggests the rim of the toilet bowl as a possible cause of the injury.

[22]     There had to be a real possibility of accident given the complainant’s insobriety at the time.  If she had been called as a witness, it would have been highly likely that the case for the appellant would have been strengthened and the doubt as to the cause of her material injury increased. 

[23]     In turn, if these facets of the matter had been more clearly before the trial Judge, he would have examined the likelihood of accident more carefully and have been less inclined to negative the likelihood that the complainant’s wound was caused by something in the room.  At the very least he would have been likely to have left the question open in his comments.

[24]     Thus, when looked at globally, we consider the matters raised on behalf of the appellant do establish a real risk of a miscarriage of justice in this case.  Standing back, we have a distinct uneasiness that overall the appellant did not receive a fair trial in that the real possibility of accidental injury was neither sufficiently explored by trial counsel nor put clearly before the jury by the trial Judge.  We mean no criticism of the trial Judge given the way the trial was run.  However, we cannot exclude the possibility that if the issue of accidental injury had been fairly and squarely before the jury it could have acquitted the appellant.

Decision

[25]     The appeal is allowed and the conviction and sentence imposed on the appellant are quashed.  We note that it appears the appellant has served the substance of the sentence imposed.  In that circumstance and the circumstances of the complainant, we do not think it appropriate to order a new trial.

Solicitors:
Armstrong Barton, Wanganui, for appellant
Crown Law office, Wellington, for respondent