The Queen v Wayne Rimene

[2002] NZCA 319

IN THE COURT OF APPEAL OF NEW ZEALAND CA150/02

THE QUEEN

V

WAYNE RIMENE

Coram:	Keith J McGrath J Anderson J
Counsel:	G J King for the Appellant A Markham for the Crown
Judgment (on the papers):	17 December 2002

JUDGMENT OF THE COURT DELIVERED BY KEITH J

1. This appeal against conviction and sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

2. On trial before a jury at the District Court at Wellington the appellant was convicted on one count of injuring with intent to injure.  He was sentenced to 18 months imprisonment to be served cumulatively on an existing sentence.  He appeals against conviction and sentence.

Facts

1. The charge arose out of an incident at a 21^st birthday party at the old Masterton Rugby clubrooms in the early hours of 17 June 2001.  The victim and the appellant who knew each other from school both attended the party.  Sometime between 4am and 5am the victim became involved in a fight with two other partygoers outside the clubrooms.  The appellant joined the assault on the victim, continuing after the other two partygoers were pulled away.  Four witnesses testified they saw the appellant punching and stomping on the victim who by this stage had fallen to the ground. Attempts were made to pull the appellant away from the victim but the appellant resisted these efforts.  When a bystander used his cellphone to call an ambulance the appellant confronted him about being a “nark” and knocked the phone from his hands.

2. The victim was taken to hospital in a semi-conscious state.  He had received numerous injuries including bruising and lacerations to his head and torso.  One eye was swollen almost shut.  The Victim Impact Report indicates ongoing psychological and physical effects.

Grounds of appeal

1. The appeal against conviction is based on three grounds. 

2. The first ground arises from the Crown’s decision not to identify to the accused two eye-witnesses until one month before the trial because of concerns of potential intimidation. The two witnesses identified the appellant as kicking and stomping on the victim as he lay on the ground.  The appellant submits that a miscarriage of justice occurred because of the late disclosure, resulting in unfairness to the appellant, and, in any event, the police conduct constituted an abuse of process.  However the appellant fails to identify any prejudice or miscarriage resulting from the late disclosure.  There is no obligation on the Crown to call all their potential witnesses at the depositions;  R v Kerr CA70/91, 7 February 1992.  The identification of the appellant as the assailant was not new, it was already clear from the evidence of the other two eye-witnesses who had been produced at depositions.  We note that trial counsel did not take any steps to counteract the late disclosure, either in the form of an application for a stay or an adjournment, despite the indication by the Judge who dealt with the application considered in the next paragraph, that an application for an adjournment would be looked on very favourably. In these circumstances we do not consider that the late disclosure caused a miscarriage of justice.  Nor are we persuaded by the appellant’s argument that the conviction should be quashed as a disciplinary response to the decision to make a delayed disclosure of the briefs.  The appropriate response, if justified, would have been for the appellant to seek an order excluding the evidence on the grounds of abuse of process but this step was not taken, no doubt because it was not justified.  This ground of appeal accordingly fails. 

3. The second ground of appeal is that a Judge erred in dismissing the appellant’s pre-trial application under s178 of the Summary Proceedings Act 1957 for the evidence of the two new witnesses to be taken prior to trial.  The Judge had accepted the risk of intimidation as a sound reason for not calling the witnesses at that stage. There was no right to cross-examine the witnesses prior to trial as there was no right to have the witnesses called at the depositions by the prosecution;  see R v Hill and Anor [1989] DCR 556.   As such, given the appellant had not lost any rights and now had a signed written brief from each witness, the Judge held it was not in the interests of justice for an order to be made under s178.  On appeal the appellant again fails to identify any prejudice arising from refusal of this application.  We are not satisfied the Judge erred in the exercise of his discretion.  This ground of appeal also fails.

4. The third ground of appeal concerns the trial Judge’s direction to the jury on intent.  In summing up the Judge repeated the two elements of the charge of injuring with intent  she had set out in a preliminary memorandum for the jury – actual injury and the intent to cause injury.  After giving a full direction on each element the Judge stated

   There is no particular dispute about that second element of the charge [intent] but the Crown is required to prove it beyond reasonable doubt.  The defence has taken particular issue with the first element of the charge.

The appellant submits this amounted to a material misdirection on the defence case on the issue of intent.  The appellant submits that while it is true that the primary defence in the case was identity, the issue of intent should have been left to the jury as an alternative.  We cannot accept that as a result of this direction the issue of intent was not left to the jury.  The Judge made it clear both in her preliminary memorandum and her summing up that intent was an element of the charge requiring proof.  Trial counsel at no time raised intent as a specific issue, the evidence was always directed towards the question of identity.  The direction in the summing up served to remind the jury that although counsel had not specifically raised intent as an issue it was still a matter that had to be proved.  Trial counsel did not object to the summing up at the time.  We find there was no misdirection.  This ground of appeal fails.

Sentence

1. At the time of this offence the appellant had been on parole for about 18 months from a lengthy sentence, the result of a number of cumulative sentences.  As a result of being charged with this offence the appellant was recalled to prison to complete that sentence. At sentencing the Judge took a starting point of two years, taking into account the appellant was on parole at the time of the offending and has a very lengthy list of previous convictions for violence. In light of the prior sentence and the totality of the sentence, the Judge reduced the sentence to 18 months.

2. The appellant submits that the final sentence of 18 months imprisonment, cumulative on the earlier sentence was manifestly excessive.  

3. The maximum penalty for the offence of injuring with intent is five years imprisonment.  The attack in this case was unprovoked and prolonged. It continued even after the victim was unable to protect himself or offer resistance. It continued despite the efforts of bystanders to stop it.  There were no factors to be taken into account in mitigation, no guilty plea, no expression of remorse.  A sentence of 18 months imprisonment was well within the range available to the Judge and cannot be said to be manifestly excessive.

Result

1. For the reasons given above the appeals against conviction and sentence are dismissed.

Solicitors
Crown Law Office, Wellington.