Thondhlana v The Queen
[2012] NZCA 233
•7 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA536/2011 [2012] NZCA 233 |
| BETWEEN GERALD THONDHLANA |
| AND THE QUEEN |
| Hearing: 23 May 2012 |
| Court: Arnold, Ronald Young and Keane JJ |
| Counsel: C J Tennet for Appellant |
| Judgment: 7 June 2012 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
Mr Thondhlana faced trial in the Christchurch District Court before Judge Neave and a jury on five counts: threatening to kill; threatening to do grievous bodily harm; burglary; assault with intent to injure; and demanding with menaces. He was convicted of assault with intent to injure and acquitted of the other counts.
This appeal against conviction is based on alleged miscarriages of justice because:
(a)trial counsel erred in failing to call a relevant witness; failing to raise self-defence before the jury; and failing to object to inadmissible evidence;
(b)the Judge inappropriately intervened during the appellant’s evidence;
(c)the Judge failed to direct the jury on self defence; and
(d)the Judge failed to adequately put the defence case to the jury and misdirected the jury on the law relating to inferences.
The facts
The appellant became convinced that his partner was having an affair. All of the alleged criminal offending arose from the appellant’s enquiries to establish whether this was true.
As to the assault with intent to injure charge, the Crown allege that the appellant had gone to a house to further his enquiries about the alleged infidelity. The appellant asked those in the house whether his partner had been to the house and what she had been doing there. Gilbert Gore, a 16 year old young man, was at the house.
The Crown case was that the appellant believed Mr Gore knew something about his partner’s presence at the house but was refusing to tell him. The Crown alleged that the appellant grabbed Mr Gore by the shirt, dragged him out the door and along the driveway outside the house and then tried to upend him, head first, into a rubbish bin. When Mr Gore resisted, the appellant pushed the victim into a rose bush causing scratches and cuts.
The appellant gave a statement to the police and gave evidence at trial. He said that he was at the house making enquiries when Mr Gore had attacked him with a broom handle and that another resident of the house had been behind Mr Gore with some metal object. Mr Gore had hit him several times with the broom handle including once on his finger causing severe pain. The appellant said that, in defending himself, he had initially grabbed Mr Gore and held him but when another man had approached he had pushed Mr Gore away and left. He denied that he had attempted to upend Mr Gore into a rubbish bin.
Failing to call relevant evidence
The appellant was seen at Christchurch Hospital on 14 November 2010, two days after the events at the house. The doctor who attended the appellant has filed an affidavit in this appeal as part of an application to call new evidence. He says that his examination of the appellant’s right index finger showed an injury to the smallest and furtherest of the three bones in his index finger. This meant the finger could not fully straighten because of tendon damage.
As to the cause of the injury, the doctor said:
My comments are from the perspective of an orthopaedic trainee with limited experience. A “mallet finger” injury is usually caused when a force suddenly and forcibly bends the tip of a straightened finger. This typically occurs when a ball hits an outstretched finger at sports. It is possible that a broomstick striking the tip of an outstretched finger could cause this type of injury.
The appellant said in his affidavit filed in support of this appeal that he had instructed his trial counsel to obtain evidence from the doctor as to the injury and to call him as a witness at trial. The appellant said that his trial lawyer told him it was not necessary to call the doctor to give evidence and did not do so.
Mr Thondhlana’s trial counsel also swore an affidavit. He denied he had ever been instructed to call the doctor to give evidence. He agreed that he and Mr Thondhlana had discussed the possibility of calling the doctor to give evidence but that he told the appellant that the doctor’s evidence would not help.
Counsel for the Crown and the appellant gave notice of their wish to cross-examine, respectively, the appellant and his trial counsel. After discussion with counsel at the beginning of the appeal, it was agreed that, in the circumstances, cross‑examination would not assist this Court in resolving the appeal.
We do not consider that any miscarriage of justice arises because the doctor’s evidence was not before the jury. The fact of the appellant’s injured finger and his evidence as to its cause was directly before the jury from the police video of the appellant’s statement and from the appellant’s evidence. The police video showed the appellant’s injured finger with a police officer remarking on the injury. There could be no question that the jury were aware of the injury suffered by the appellant and how he claimed it had occurred.
The doctor’s evidence could not establish that a broom stick caused the injury. His evidence was that it could have caused such an injury as obviously could a number of other events. Nor did the Crown, as the appellant’s trial counsel said, dispute the existence of the injury to the appellant’s finger. The only “live” issue therefore relating to the injury to the finger was how this injury occurred. The doctor’s evidence could not have helped on this point. Only the appellant’s evidence was relevant.
We are therefore satisfied that no miscarriage of justice occurred as a result of the doctor’s evidence not being called.
Failing to object to inadmissible evidence
In his written submissions the appellant identified four items of inadmissible evidence that he said should not have been allowed to be given at trial. However, before us this ground of appeal was abandoned.
Judicial intervention
The appellant says there were a number of objectionable interventions by the Judge during the evidence and “the interventions had the effect of slanting the evidence in favour of the prosecution and bolstering the credibility of the complainant”.
Christian names
The first complaint is that the Judge used Christian names when summing up to the jury in respect of all of the witnesses apart from the appellant (including the only other defence witness). The appellant complains that the use of Christian names by the Judge gave a favourable slant to these witnesses.
The Judge’s use of Christian names seems to have arisen because the civilian witnesses, who knew each other, understandably referred to each other by their Christian names when they gave evidence. It would have assisted the jury’s understanding of the facts, therefore, for the Judge to also use Christian names when summing up the case to the jury.
We reject the suggestion that the Judge’s adoption of what was a sensible expedient in this case somehow indicated to the jury that he was sympathetic to the Crown witnesses and lacking in sympathy to the defence.
Further, as the Crown said, given the four acquittals it is unlikely the jury were unfairly influenced.
Broomstick questioning
At the end of Mr Chimwayange’s evidence (who had been present at the house when the assault occurred) the Judge asked him whether, in discussions he had afterwards with the appellant, the appellant had mentioned he had been attacked with a broomstick. Counsel submits this question was designed to create the possibility of the appellant having made an inconsistent statement.
However, the appellant’s evidence was that he did not tell Mr Chimwayange anything about the broomstick. He simply said to Mr Chimwayange that he had been attacked at his house. There was, therefore, nothing objectionable in the Judge’s question.
Mr Gore’s police statement
The Judge asked Constable MacPherson, who had taken a statement from Mr Gore, what stage in the events at the house the statement described. The Constable said that Mr Gore’s description of the events of that day had begun when he was dragged out of the door by Mr Thondhlana. The Constable confirmed that he had not asked Mr Gore about what had occurred before that event.
The appellant says that the Judge’s questioning meant that Mr Gore was “let off the hook” in respect of his alleged failure to mention to the police that the appellant had turned up at the house peaceably and that he had been in the house and had talked to Mr Gore’s brother calmly before the confrontation.
Mr Gore gave evidence at the trial before the Constable. Mr Gore explained why he had not mentioned the earlier events at the house. He said that his failure to mention the earlier events was due to shock and that, in any event, the police questioning had focussed on what occurred from the moment he was grabbed at the door after Mr Thondhlana had returned to the house. The police had not asked him about earlier events. In those circumstances, it was unobjectionable for the Judge to ask the Constable about the point at which Mr Gore’s statement had commenced.
Questions of the accused
Mr Thondhlana’s evidence occupied some 29 pages of the notes of evidence, including cross‑examination and re‑examination. The Judge’s questioning during the course of his evidence‑in‑chief and cross‑examination would have barely occupied a total of two pages.
In cross‑examination Mr Thondhlana was asked where various people were, inside or outside the house prior to the assault. The Judge then asked three questions of the appellant, all intended to discover when the appellant first became aware that Mr Gore had a broomstick. We reject the submission that these questions were some form of unfair cross‑examination by the Judge. They were simply questions by way of seeking clarification.
Later in the appellant’s evidence there were questions by the Judge occupying approximately one page of transcript. The questions related to what happened at the house prior to the assault. The Judge attempted to identify the comings and goings of both the appellant and others in the house prior to the assault. The appellant’s counsel took no objection to these questions (save the last), which were designed to clarify the appellant’s evidence.
In the final question of the exchange the Judge asked:
Q :So you say Gilbert has gone and got a broomstick after his brother has left the house following a perfectly friendly exchange?
A :Yes.
Counsel submits that the tenor of the last question is unfair and loaded. The Judge’s question summarised the evidence already given by the appellant. The appellant said when he first went to the house and spoke to others there, the exchange was polite and friendly. He left the house and when he returned, Mr Gore had the broomstick and the violence began. We accept the question could be seen as highlighting a weakness in the appellant’s evidence. However, this was already apparent from the evidence given. No miscarriage arises from the Judge’s question.
The final complaint relates to the end of cross‑examination of the appellant, when the Crown asked the appellant how Mr Gore received scratch marks to his legs. The appellant responded. The Judge then said:
I do not quite understand your last answer. Are you saying that from what your understanding of what happened was you do not know how he could have sustained the scratches on his feet or that you think that it is consistent with him having gone into the bush? I just do not quite know what you are saying.
The appellant said that he did not know how Mr Gore had got the scratch marks and provided possible explanations.
There is nothing objectionable in the Judge’s question. When the appellant was asked about the scratch marks, his initial response was difficult to understand. The Judge was perfectly entitled to try and clear this matter up.
Summing up objection
During the course of his summing up, the Judge mentioned that although there had been some evidence that the bush into which it was said the appellant pushed Mr Gore was a rose bush, he thought it looked rather more like a camellia than a rose bush. He invited the jury to look at the pictures of the bush, which were an exhibit at the trial.
The context in which this occurred was that the Judge was summarising the case for the Crown. There was a question about whether or not the injuries to Mr Gore occurred when the accused was trying to put him in the bin, or when he was pushed into the bush. This related to the Crown submission that Mr Gore had been prepared to accept that some of his injuries might have been occasioned when he was pushed into the bush (whether rose or camellia) rather than exclusively from being pushed into the bin. The Crown said Mr Gore’s willingness to concede points that were not initially in favour of this story illustrated his credibility.
We do not think there was anything of importance as far as this trial is concerned in the Judge’s invitation to the jury to look carefully at the photographs of the bush, nor whether the bush that Mr Gore was allegedly pushed into was a rose or a camellia bush.
Self-defence
We consider both the appellant’s complaints that trial counsel failed to put self-defence to the jury in his final address in respect of the assault charge and the Judge’s failure to sum up on self-defence.
The Judge did not sum up in the traditional way as far as self-defence was concerned. The Crown accepts that his failure to do so amounted to an error of law, but submits that no miscarriage of justice arose. We are satisfied that in the circumstances, there was no miscarriage of justice arising from the Judge’s failure, nor in the circumstances did trial counsel’s approach to self-defence give rise to a miscarriage of justice.
At [3] – [6] we summarised the competing factual claims of the Crown witnesses and the appellant. On the appellant’s version of events, self-defence was raised.
The Crown in their final address to the jury said that if the jury believed the appellant, or if his evidence left the jury with a reasonable doubt about what happened, then the appellant was entitled to be acquitted. This was also the approach trial counsel for the appellant took. Trial counsel said to the jury that if they could not reject the appellant’s story as untruthful, then the appellant was entitled to an acquittal.
The Judge said in his summing up:
[33] Once you’ve heard the accused’s evidence, and the evidence that he calls in support of it, there may be three scenarios that you are left with. The first is you might be quite satisfied that what the accused said is true, in which case, obviously, you will acquit him. It would be a denial of counts 1, 2 and 4 and in respect of count 3 his defence would be that he was effectively acting in self-defence.
[34] You may get to the situation where you say well I don’t know that I believe him but I’m just not quite sure any more as to exactly what happened. I think the Crown might be right but I can’t dismiss what he has to say or something along those lines and, of course, it would be fairly plain that if you are in that scenario you’ve got a reasonable doubt, you are just not sure what happened and, therefore, of course, once again, there must be an acquittal and not guilty verdict because the Crown will not have proven the case beyond reasonable doubt.
[35] The final scenario may well be you say well I reject what the accused and his witnesses have to say or his witness, in this case, has to say. If you get to this situation what you have to do is to put that evidence to one side. You can screw that up and put it in the rubbish bin with my view of the facts you don’t agree with. It’s as if that evidence was never given and you must then look at what’s left of the evidence and decide whether or not you find the case proven beyond reasonable doubt and whether you’re satisfied that the evidence that’s left that the Crown have presented has proven the case beyond reasonable doubt. So it is vital to recall the accused doesn’t have to prove anything, the Crown does, but if he does give evidence it is for you to consider in the way that I’ve suggested.
And further, when summarising the Crown case the Judge said:
If you accept the accused’s version it might reasonably be the case then he will have been acting in self‑defence and will be entitled to an acquittal.
The Judge, therefore, made it clear that if the jury accepted what the appellant said about the events at the house was true or might reasonably be true then he was entitled to be acquitted on the basis that he was acting in self-defence. And so, if the jury thought it was a reasonable possibility that the appellant had been attacked by Mr Gore with a broomstick and in response had grabbed him and then pushed him, the Judge told the jury they should acquit the appellant.
As to the alternative, if the jury rejected the appellant’s evidence as untrue, then, as the Judge pointed out, this did not mean they should convict. They would have to be satisfied that what the complainant and the other witnesses had said was truthful. However, once the appellant’s evidence had been rejected as untrue by the jury, there was no factual basis on which the jury could be asked to consider self-defence. Once they had rejected the appellant’s evidence, the only evidence they had about the events at the house was from Mr Gore and his witnesses. In those circumstances there was no narrative which gave rise to self-defence. It would have been wrong therefore for the Judge to have left self-defence as an option for the jury to consider, which the Crown would have to disprove, once the jury got to the stage of rejecting the appellant’s evidence.
The Judge also provided the jury with a written question trail. The trail with respect to this count said:
Third Count
1Did the accused take hold of Gilbert Gore and try to put him in a rubbish bin?
If no = Not Guilty. If yes go to Qn 2
2When he took hold of him did he intend to cause him harm that is more than trifling or transitory?
If no = Not Guilty. Only if yes to both questions = Guilty.
As we have noted,[1] the appellant’s evidence was that in response to being hit with the broomstick he grabbed the complainant in a hug and then pushed him away. As the Judge directed, if the jury thought the events as described by the appellant might reasonably have happened (a reasonable doubt about the Crown case) then the answer to the first question in the trail was “no” and the appellant was entitled to be acquitted.
[1] At [6].
We see no error in the approach taken by trial counsel and the Judge. In the circumstances we think it would have been unnecessarily complex for the jury to have been given a detailed self-defence direction. The Judge’s direction favoured the appellant. It assumed once his evidence was accepted the Crown could not possibly prove this was not self-defence. Similarly if his evidence raised a reasonable doubt in the jury’s minds.
However, if the appellant’s evidence was rejected, then there was no narrative on which the defence of self-defence could be based. We therefore see no miscarriage of justice.
Failure to adequately put defence case
The appellant says that when the Judge referred to Mr Gore’s age (17 years) in the context of a discussion about the credibility of witnesses and said “.... You all know what that’s like”, he was giving a sympathetic view of Mr Gore.
The Judge said this:
You can look at the demeanour with which someone gives their evidence, although I suggest considerable care should be taken in respect of that. A number of factors can be relevant there. They may be age, experience, nationality, cultural factors. The best example I can think of perhaps is look at the way Gilbert Gore gave his evidence. Now I’m not saying one way or another whether you should or shouldn’t believe his evidence but he is a classic example of the sorts of ways a witness may present. On one view of it you could have taken the view that he was distinctly unhappy to be here but that could have been for a number of reasons because giving evidence is just a difficult situation for anybody. It could have been because he is not telling the truth. It could have been it was telling a story he didn’t want to recall, found uncomfortable. It could have been because he’s 17 and you all know what that is like.
The Judge was at great pains to ensure that he gave a balanced view of the competing issues relating to Mr Gore’s credibility. No objection could possibly be taken to this passage.
The appellant also complains that the Judge in his summing up “said the scratches on Gilbert’s legs might enable the jury to find his evidence consistent”.
The Judge said:
Firstly, you’ve got the marks on the ground which could be said to be consistent or inconsistent with the narrative, depending on your view of it, and, secondly, the marks that were found on Gilbert’s legs. Do they or don’t they confirm what happened to him?
This was also a balanced approach, pointing to the relevant evidence and telling the jury that it is for them to decide whether the scratches were consistent or inconsistent with what the witnesses had to say.
The appellant complained that the Judge favoured the Crown when he said in his summing up:
Why would Gilbert for no reason arm himself with a broomstick and attack the appellant?
However, this comment was made when the Judge was summarising the Crown case. Clearly it was not intended to convey his own view. Accordingly, it is unobjectionable.
The appellant says the Judge unfairly remarked on the defence witness Ms Hungwe. She was the appellant’s partner. The appellant alleges the Judge contrasted the independence of Mr Gore with Ms Hungwe.
The Judge in his summing up said:
Whether or not she has a purpose to serve in giving her evidence it will clearly be a matter you have to consider. I do not think there is any evidence that she was afraid of the accused, contrary to the question put to her in cross‑examination, but, on the other hand, she gave clear evidence of trying to mend her marriage, notwithstanding the mixed messages, according to the accused, she appears to have been sending to him. So you’d have to consider whether or not that affects the weight you attach to her evidence.
This was an appropriate, balanced summary of what the jury should consider. It was not unfair to the appellant.
Other complaints by the appellant relating to the Judge’s references to inconsistent statements, whether the Judge’s summing up on demeanour of witnesses was adequate, and the existence of scuff marks on the driveway, could not individually or in combination result in a miscarriage of justice.
Inferences
The appellant complains that the Judge’s direction on inferences was inadequate in two ways. Firstly, it was not specifically tailored to the facts which gave rise to the assault count. Secondly, the Judge did not use the word “fair” when giving his direction on inferences.
As to the latter point, there is no obligation on a Judge to use the word “fair” when giving an inference direction.
During his summing up the Judge referred to the Crown obligation to prove intent in the assault count. He used that reference as a basis to instruct the jury on inferences. He said:
[53] It is probably appropriate at this point just to mention that what you are being asked to do, when you are determining what was in the accused’s state of mind, is to draw what we call an inference. An inference is a logical deduction from proven facts. If, for example, we are here in an enclosed room and assume we can’t see the sky, we hear what sounds like thunder and there’s the sound of something falling on the roof that sounds like rain and somebody walks in shaking an umbrella with water on their coat it is a reasonable inference that we can draw from all those proven facts that it is raining. We do not have any direct evidence. We cannot see it’s raining or feel it’s raining but we put together from the facts that we know a conclusion that it has been raining and that is what you are being asked to do. The Crown says from the facts that we can prove directly you are able to draw the inference about what was in the accused’s state of mind because somebody’s state of mind can only ever be proven as a matter of inference because, obviously, it is impossible to have direct evidence as to what’s in somebody’s mind.
[54] Where you have more than one inference that’s reasonably possible you must draw the inference that’s favourable to the accused because, obviously, if the Crown’s asking you to draw an inference about an element of the offence, because it’s the elements of the offence that have to be proven and there’s more than one reasonably possible answer, then, of course, they won’t have been able to have proven the case beyond reasonable doubt.
The Judge made it clear that any inference had to be a logical deduction from proven facts. That was sufficient in the circumstances.[2]
[2] R v Puttick (1985) 1 CRNZ 644 (CA) at 647.
Given the relative complexity of the facts and the number of charges, it was not realistically possible for the Judge to discuss all possible inferences available. Further, the live issue in the assault count came down to a credibility issue. The Judge did tailor his direction to the question of whether the jury could infer an intent to injure in the assault count.
We are satisfied there was no inadequacy in the Judge’s summing up.
Conclusion
We are satisfied that there was no error by trial counsel or the Judge that caused a miscarriage of justice. The appeal against conviction must therefore fail.
Solicitors:
Crown Law Office, Wellington for Respondent
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