The Queen v Wright

[2006] NZCA 247

IN THE COURT OF APPEAL OF NEW ZEALAND

CA43/06

THE QUEEN

v

PAUL LESLIE WRIGHT

Hearing:29 August 2006

Court:William Young P, Panckhurst and Ronald Young JJ

Counsel:J R Rapley for Appellant

I R Murray for Crown

Judgment:12 September 2006 at 11am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.

BThe appeal against sentence is allowed.

CWe substitute for the sentence of six years a sentence of five years imprisonment.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]       The appellant and the complainant were flatmates.  On Sunday 12 June 2005 they started drinking alcohol in the morning and carried on doing so until around 9pm that night.  There was then an altercation between them and each was injured.  The injuries to the complainant included stab wounds to his chest, arm and leg.  The appellant suffered an injury to his hand.  The appellant was later found guilty in the District Court at Timaru of wounding the complainant with intent to cause grievous bodily harm.  He was subsequently sentenced to six years imprisonment.  He now appeals against conviction and sentence.

[2]       The issues for us on this appeal are whether:

(a)the Judge was wrong not to leave self defence to the jury;

(b)the appellant was illegitimately prejudiced by evidence led as to what the complainant told a neighbour after the incident; and

(c)the sentence imposed was excessive.

[3]       Before discussing those issues directly, we will first explain the course the case took at trial.

The course the case took at trial

[4]       The complainant’s account of events was as follows.  At around 9pm he was drinking in the lounge in the house which he and the appellant shared.  The appellant came into the room from the kitchen and attacked him with a knife.  As a result he suffered serious stab wounds to his chest, arm and leg.  Counsel who represented the appellant at trial (not Mr Rapley) cross-examined the complainant extensively on his prior convictions, his drinking and his use of methadone, a strategy which was to assume some significance when the appellant was later sentenced.

[5]       The appellant did not give evidence at trial but rather relied on a statement he made to the police which was recorded by video.  In the course of this statement the appellant said that he had been assaulted by the complainant while he (that is the appellant) was walking down the hall, having just been to the toilet.  A struggle ensued which was resulted in both men ending up in the complainant’s bedroom.  In the course of the struggle the complainant produced a knife and stabbed at the appellant’s face.  The appellant grabbed the complainant’s arm and pushed the knife down towards his groin.  The complainant released the knife which the appellant picked up and put on a bedside table.

[6]       Noticeably absent from the appellant's account of events as first given to the police was an obvious explanation for the complainant's stab wounds, particularly to his chest.  When the interviewing officer pressed the appellant on this point he said that these wounds must have been inflicted without him realising it when he was struggling with the complainant.  He explained that during that struggle, he and the complainant at one stage were wrestling on the ground.  This was broadly the way the case was presented to the jury.  In particular, the appellant did not rely on self defence.  Thus the complainant was not cross-examined on the basis that the appellant had stabbed him but had done so in self defence.  Rather, the appellant’s case was that he had not deliberately stabbed the complainant and that if his actions had contributed to the stab injuries which the complainant suffered, this occurred accidentally in the course of the struggle.

[7]       Blood spots (originating almost certainly from the complainant) were located on the carpet of the lounge near where the complainant said that he was attacked.  There were, however, no other obvious signs of there having been a struggle in that room.  Likewise there was no evidence of there having been any struggle in the complainant’s bedroom. 

[8]       The complainant’s conduct immediately following the incident was rather more consistent with his evidence than the appellant’s corresponding conduct was with his account as recorded in his video statement.  The evidence before the jury was that the appellant had, in the immediate aftermath of the incident, made a remark to his 13 year old son (who had been sleeping at the house) to the effect that the complainant had stabbed him.  But when the police and ambulance officers arrived the appellant was obstructive and uncooperative.  On the other hand, the complainant went next door to his neighbour’s house where he told the neighbour that he had been stabbed by the appellant and asked him to ring an ambulance.

[9]       The evidence from the neighbour to this effect was led without objection.  In the course of his evidence, he was asked by the prosecutor if he had formed the view that the complainant’s presentation was false, a question to which he responded in the negative. When he was cross-examined it was put to him that the complainant had alleged that he had been stabbed eight times, a proposition which he eventually accepted after being reminded of what he had told the police at the time.   This was relied on by defence counsel in his address to the jury as indicating that what the complainant told the neighbour was false (as he had received only four stab wounds).

Was the Judge wrong not to leave self defence to the jury?

[10]     Mr Rapley maintained that the Judge had been wrong not to direct the jury as to self defence. 

[11]     The appellant acknowledged using force against the complainant (for instance in forcing the complainant’s hand away) and it was implicit in this acknowledgement that this was by way of self defence.  So it is true, as Mr Rapley maintained, that there was a self defence component to his explanation.  Where Mr Rapley’s submission fails is that the charge against the appellant focused on what the Crown claimed were deliberately inflicted stab wounds and such self defence considerations as the appellant had implicitly invoked (involving a struggle only in which the complainant was accidentally injured by the knife which he allegedly produced) did not extend to such an attack.

[12]     The appellant faced a single charge, wounding with intent to cause grievous bodily harm.  No alternative or included counts were left to the jury.  So unless satisfied beyond reasonable doubt that the appellant had stabbed the complainant with the intention of causing grievous bodily harm, the jury would have acquitted the appellant.  It follows that the jury, by their verdict, rejected as a reasonable possibility the defence of accident which was advanced on behalf of the appellant. 

[13]     Self defence arguments that were implicit in the appellant’s explanation to the police were intimately tied up with the defence of accident.  There is thus no rational basis upon which the jury, having rejected the accident defence, could have been left with the view that it was reasonably possible that the appellant had stabbed the complainant in self defence.

Was the appellant illegitimately prejudiced by the evidence of the remarks made by the complainant to the neighbour?

[14]     Mr Rapley maintained that this evidence was inadmissible hearsay. 

[15]     We disagree.  The evidence was plainly admissible as part of the res gestae.  It is very similar to the evidence held to be admissible by this Court in R v Olamoe [2005] 3 NZLR 80 and indeed in a number of cases referred to in that judgment. As well, the decision by defence counsel not to challenge the admissibility of the evidence may well have been tactical as counsel sought to exploit, both in cross-examination and indeed later in his address, the apparent inconsistency between the complainant’s assertion to the neighbour that he had been stabbed eight times and the more limited number of stab wounds detected on medical examination.

[16]     We agree with a secondary complaint made by Mr Rapley about the inappropriateness of the prosecutor asking the neighbour to hazard an opinion as to whether the complainant had presented himself in a false way.  It is right to say, however, that in the context of the case as a whole, this infelicity is of no moment.  The neighbour gave evidence of the way in which the complainant was behaving – that he was upset and shaking.  We are inclined to think that he could properly have been asked if he saw anything in the complainant’s demeanour or conduct which was inconsistent with what he was saying.  So, all in all, the infelicity involved such a minor departure from what was appropriate that it could not have had any impact on the verdict of the jury.

[17]     The cogency of the evidence was associated with the improbability that in the immediate aftermath of the stabbing the complainant (who was in obvious need of immediate medical attention) would have concocted a false explanation for his injuries.  The Judge gave no such explanation to the jury.  Although he should have done so, we see no prejudice to the appellant resulting from this omission.  This is, after all, a pretty obvious point and was very much in line with the way the arguments of counsel on this aspect of the case were advanced.  Indeed, if the Judge had directed the jury in terms of Olamoe, this would, if anything, have been more damaging to the appellant than the course he took.  Such a direction would have required the jury to focus on the inherent implausibility of the appellant’s contention. 

Was the sentence imposed excessive?

[18]     In his sentencing remarks, the Judge placed the offending squarely within band two of the three bands discussed in R v Taueki [2005] 3 NZLR 372 (CA). In reaching this view, he took into account a number of aggravating factors:

[13]     …  First, there is the extent of the violence which you resorted to in launching an unprovoked attack on the victim.  I am quite satisfied that even though there may have been tension between the two of you on that particular evening, there was no such physical provocation warranting your violent response.

[14]     Secondly, the injuries sustained by the victim, particularly the stab to his chest, were serious.  Mr Radford has suggested that one of the stabs to the back of his leg was possibly more serious.   I have difficulty in accepting that submission.  In my view the chest wound, in particular, was potentially very serious.

[15]     Thirdly, the use of the knife, a potentially lethal weapon, is a significant aggravating feature.  Its use involved some premeditation because you left the lounge, went to the kitchen to get the knife and then returned to the lounge where I am satisfied the attack took place.

[16]     The attack was sustained over a period and involved four stabs and I am satisfied several unsuccessful attempted stabs.  I accept that it was not a prolonged attack, but it was certainly sustained for a significant period of time.  It certainly must have seemed from the victim’s point of view to be a sustained attack.

[17]     Fourthly, the offence took place in the victim’s home which he was sharing with you and where he was entitled to feel secure.  It therefore, in my view, involved a significant breach of trust.  The fact that your son was in the house at the time is another aggravating feature and Mr Finch has referred to that at the end of his victim impact statement.  He added in that final paragraph how sorry he was that you did this when your son was in the house and he hopes that it does not have any long term effects upon your son.

[18]     Fifthly, there was an attack on the victim’s character during the course of the trial.   Previous convictions going back to the mid 1990’s were raised with him in cross-examination, as was the fact that he is a heavy drinker and is on the methadone programme as a result of drug addiction problems.  Presumably, Wright, you were aware of the victim’s background and his problems when you decided to continue sharing accommodation with him.  During the interview you described the victim as one of your few close friends and there is reference to that at page three of the pre-sentence report. 

[19]     The only factors which the Judge regarded as material by way of mitigation were first that the appellant, at the age of 44, had only one previous conviction (albeit perhaps somewhat unfortunately for the possession of a knife in a public place) and secondly that the inevitable sentence of imprisonment would have a major impact on the appellant’s son. 

[20]     Against that background he imposed a sentence of six years imprisonment.

[21]     The striking feature of the Judge’s sentencing remarks is his treatment of the defence strategy at trial as an aggravating feature of the offending.  Mr Murray, for the Crown, sought to justify this approach on the basis that

This is one of those rare cases where the defence was a wholesale attempt to blacken the character of the complainant.  The appellant did not give evidence and subject himself to cross-examination [and this] justifies the court treating the way in which the defence was conducted as an aggravating feature.

[22]     We have no difficulty in rejecting the Crown argument on this aspect of the case.  The way the case was run at trial was not an aggravating feature.  It follows  that the sentencing exercise miscarried and that we are required, in effect, to re‑sentence the appellant.

[23]     On our assessment,  the appellant’s culpability is at or towards the bottom of band two of the Taueki bands.  We put the offending in that band primarily because the violence was life threatening.  On the other hand the offending does not exhibit (at least to any significant extent) the aggravating factors identified in [31] of Taueki. On that basis, we consider that the appropriate sentence for the appellant is five years and we propose to reduce the sentence accordingly.

Conclusion

[24]     The appeal against conviction is dismissed.  We allow the appeal against sentence and substitute for the sentence of six years which was imposed a sentence of five years imprisonment.

Solicitors:
Crown Solicitor, Timaru.