Tobin v R
[2020] NZCA 66
•19 March 2020 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA678/2018 [2020] NZCA 66 |
| BETWEEN | MAXWELL CHARLES DALLIMORE TOBIN |
| AND | THE QUEEN |
| Hearing: | 3 March 2020 (further submissions received 12 March 2020) |
Court: | Courtney, Ellis and Brewer JJ |
Counsel: | Appellant in Person |
Judgment: | 19 March 2020 at 10.30 am |
JUDGMENT OF THE COURT
A The appeal against conviction is allowed.
B The conviction for wounding with intent to cause grievous bodily harm is quashed.
CA retrial is ordered.
DAny question of bail is to be dealt with in the District Court.
EThe record of the first warning given to the appellant by the District Court on 31 August 2018 is cancelled in respect of the conviction quashed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
In June 2016 there was an altercation between the appellant, Maxwell Tobin, and one of his neighbours, John Morris, that led to Mr Tobin being charged with wounding with intent to cause grievous bodily harm: Mr Tobin was sitting in his car and Mr Morris was standing at the driver’s window when Mr Tobin grabbed Mr Morris’ beard and drove off. Mr Morris sustained serious injuries (though there was a dispute at trial as to exactly how the injuries were caused). Mr Tobin was convicted and sentenced to four years and six months’ imprisonment.[1] He appeals his conviction.[2]
[1]R v Tobin [2018] NZDC 21467.
[2]Mr Tobin advised at the outset of the hearing that he did not wish to pursue his appeal against sentence.
The ground of appeal is that there has been a miscarriage of justice or the risk of a miscarriage of justice as a result of:[3]
(a)the police investigation being conducted improperly with the police forming the view that Mr Tobin was guilty prior to charging him;
(b)the police interview being conducted in breach of the New Zealand Bill of Rights Act 1990;
(c)the charging notice wrongly describing the location of the alleged offence;
(d)Mr Tobin being described in court documents in terms that mean he is a “corporation” and a notice should therefore have been filed under s 12 of the Criminal Procedure Act 2011;
(e)the lack of corroborative evidence or expert analysis to support Mr Morris’ account; and
(f)evidence regarding Mr Morris’ criminal history not being before the jury.
[3]Criminal Procedure Act 2011, ss 229 and 232.
An appellant who asserts a miscarriage of justice must show, first, an error or irregularity at trial and, secondly, that what went wrong led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty verdict may have been given if nothing had gone wrong.[4]
[4]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
There is no merit in grounds (a) and (b). Acknowledging Mr Tobin’s strong views about the way the police investigated the case, there is, nevertheless, no basis for concluding that the investigation had any effect on the fairness of the trial or the verdict. As to the police interview, the video was not played at the trial so no prejudice could have resulted from that and since Mr Tobin gave evidence the jury heard his account of the incident.
Nor is there any merit in ground (c), which was a matter incapable of affecting the fairness of the trial. There is no merit in ground (d), which is nonsensical. There is no merit in ground (e) because corroborative evidence was not required and there was evidence available to the jury on which, properly directed, it could reach a verdict.
Nor is there merit in ground (f). Mr Morris’ credibility was certainly in issue at trial. Mr Tobin’s counsel put to him that he was lying. He was cross-examined about active charges he was facing relating to firearms and cannabis offending. Inconsistencies in his account were emphasised in closing as evidence of dishonesty. But Mr Morris had only historical convictions for dishonesty which were not probative. Mr Tobin could not point to any evidence not already before the jury that could reasonably be thought to have affected the outcome.
There is, however, a matter that Mr Tobin (understandably, given his lack of representation on the appeal) did not raise and which causes us concern. That is the Judge’s direction to the jury on self-defence.[5] We invited further submissions on this aspect. The Crown filed supplementary submissions, which we have taken into account. Mr Tobin also filed further submissions but did not address the issue of self-defence, explaining that he did not have access to legislation and viewed this matter as one for the Court to decide. He also reiterated aspects of his argument that were canvassed during the appeal. The conclusions we have already recorded remain unchanged.
The evidence
[5]R v Tobin DC Kaikohe CRI-2016-029-000738, 30 August 2018.
The following is undisputed. Mr Morris and Mr Tobin had lived in nearby, rural properties in Northland for about seven years. They had been on good terms until early 2016 when Mr Morris put up mesh to contain his 11 dogs, which had previously run free. According to Mr Tobin the dogs barked continuously when Mr Morris was away from the property. Mr Tobin’s wife, particularly, found the situation upsetting.
In the evening of 11 June 2016, when Mr Morris was visiting a friend’s house, his attention was drawn to a Facebook post by Mr Tobin’s wife which suggested that Mr Morris had been mistreating his dogs. This upset Mr Morris, who was very attached to his dogs. His friend advised him not to get angry about it and to just go home. But Mr Morris did not take that advice. He left his friend’s house and drove past to the Tobins’ property where he yelled a warning to them from his car, words to the effect of “you had better watch your fucking back”. He then drove home.
Within a short time Mr Morris heard his dogs barking and went outside to find Mr Tobin in his Land Rover. The respective accounts of what happened from that point had some areas of consistency but diverged on the critical aspects.
Mr Morris’ account
Mr Morris could not recall seeing headlights but did recall a single spotlight shining on him. He started down the driveway towards Mr Tobin's vehicle. He heard Mr Tobin call his name. He saw Mr Tobin reverse his vehicle out of the driveway and drop into a dip or a ditch on the other side of the road then return to the road, facing on an angle towards a letterbox situated on the opposite side of the road from Mr Morris’ property.
Mr Morris went around to the driver’s door and said to Mr Tobin words to the effect of “tell your so and so missus to watch her mouth”. He may have been waving his finger as he said this. Mr Tobin then hit Mr Morris on the mouth, though not hard enough to cause him to fall, just to rock back. Next, Mr Tobin grabbed Mr Morris’ beard and, holding Mr Morris at arm’s length, began to drive. Mr Morris held onto the vehicle with his feet dragging behind him. He saw the letterbox approaching. Mr Tobin swerved into the letterbox. Mr Morris rolled away to avoid his head hitting the letterbox, which caught his right side under the armpit. After hitting the letterbox Mr Morris sagged against the side of the vehicle as Mr Tobin kept driving for a further 40-50 feet. Mr Tobin then pushed him off and drove away.
Neighbours who came to investigate found Mr Morris a short distance from the letterbox. Although initially reluctant to seek medical treatment Mr Morris was eventually taken to hospital. He suffered bruising down the right side of his chest, fractured ribs, a punctured lung and damage to his shoulder.
Mr Tobin’s account
Mr Tobin prefaced his account with a description of his previous experiences with Mr Morris, which had caused him to be concerned about Mr Morris’ threatening words on the night of 11 June 2016. In February that year Mr Morris came over to the Tobins’ house and told them the police had found weapons on his property but that he had denied knowing anything about them. He went on to comment that he knew how to make explosives and knew how to make things disappear. He added that if anyone tried to separate him from his dogs he would “feud” with them. Mr Tobin said that these comments really concerned him and that he no longer wished to have Mr Tobin as a friend.
Shortly after that Mr Morris visited again, this time to say that if he “had to go away for a period of time” he might need some neighbours’ help looking after his dogs. Mr Tobin was frightened by this. He went to see Mr Morris soon afterwards and told him that he could not help look after the dogs. He ceased his connection with Mr Morris after that because “I don’t want someone sitting in my lounge making threats to myself or to anyone else, even if they’re oblique threats”.
As to the events of 11 June 2016, after Mr Morris had driven to the Tobins’ house and shouted in the threatening way described, Mr Tobin became concerned that Mr Morris might do something unpredictable. He drove to Mr Morris’ property to speak to him. His Land Rover had headlights and Mr Tobin also had a headlamp (commonly used in rural areas where there is no lighting). He drove into Mr Morris’ driveway then reversed out and positioned the vehicle pointing back towards his property so that Mr Morris could talk to him from across the passenger side. He called out to Mr Morris, asking whether he was there. He was looking to the left, up the driveway to see if Mr Morris was coming.
Mr Morris reached the passenger side of the Land Rover and was “floundering with his fists”. Mr Tobin decided that nothing could be gained from trying to talk to Mr Morris and that he should leave. He tried to keep an eye on what Mr Morris was doing, to make sure he was clear of the vehicle before moving off. Then, when he turned to look at where he was going, he was dazzled by the light from his headlamp. He felt disoriented. There were trees immediately in his view. He braked and stopped because he was aware of a creek behind the letterbox which he needed to avoid. He corrected and readied himself to drive off.
Mr Tobin could hear Mr Morris “cackling”. Before he could drive off again Mr Morris appeared at his driver’s door and grabbed his headlamp. He started punching Mr Tobin’s head on the right-hand side. Mr Tobin grabbed Mr Morris’ beard to stop him punching, put the vehicle in gear and moved off. As Mr Morris’ weight came off his feet Mr Tobin gave him a push and let him go. He did not sense that Mr Morris had hit the letterbox.
After Mr Tobin left Mr Morris he returned home and called 111 to say that his neighbour had tried to assault him so he had “grabbed [Mr Morris] by the beard and took off and then dropped him when I felt it was appropriate”.[6]
Jury directions on self-defence
[6]From the transcript of the 111 call.
Mr Tobin’s counsel put self-defence squarely before the jury. His cross‑examination was directed to it and his closing addressed it clearly. The Judge gave specific directions on it. We are, however, concerned that the Judge’s directions did not adequately equip the jury to consider the issue.
Self-defence justifies an act that would otherwise be unlawful. If an act is shown to have been done in self-defence the issue of criminal intent will not arise for consideration. It is for this reason that the issue of self-defence is regarded as one to be considered before intent.[7] The Judge did not do this; the jury was directed to consider the elements of the charge first:
[16] … I now want to go on to the elements of this charge which have been brought which is, of course, causing grievous bodily harm with intent to cause grievous bodily harm. Now, the Crown must prove beyond reasonable doubt that, first of all, and I am going to deal here with the facts as the Crown allege – or the evidence or the facts the Crown alleges as the Crown alleges them to be that Mr Tobin intentionally drove his Land Rover at the letterbox intending Mr Morris to be struck by the letterbox. That is what the Crown specifically is alleging in this case, that Mr Tobin intentionally drove his Land Rover at the letterbox intending Mr Morris to be struck by the letterbox. So, they are saying her did that act deliberately.
[17] Second, the Crown is saying that by those actions, the driving at the letterbox and swiping him up against it, as it says he did, Mr Tobin caused Mr Morris grievous bodily harm and that simply means really serious harm. That is the second element.
[18] And the final element is that when Mr Tobin drove in the manner, and with the intention described above, he intended to cause Mr Morris grievous bodily harm, i.e. really serious harm. And I emphasise that the time you are looking at is when that act was done, so you have got the act of hitting him with the letterbox, as the Crown would have it, or causing him to be hit by the letterbox, that act has to be intentional, not done by accident, second, that he has to have caused grievous bodily harm by that act and, finally, that when he did that act intentionally, he actually intended to cause really serious harm, they are the three elements.
[19] Now, I have made that very specific because Mr Morris in his evidence has admitted that, in point of fact, according to him after driving a short distance he simply threw Mr Morris aside. What the Crown is saying is it does not accept that and if you think that might have happened, well, that is the end of it basically. It has nailed its colours to the mast of one particular alleged act and that is hitting him against the mailbox. So, that is why I have made it specific, that is what you have to focus on, you have to focus on whether that act has been proved and the intentions that go along with it.
[7]R v Seu CA81/05, 8 December 2005 at [69][70]; Wang v R [2014] NZCA 251 at [27].
It was only after these directions that the Judge raised the issue of self-defence:
[20] Now, I need to go on to self-defence. Now, you will only need to consider the issue of self-defence if you have answered those first three questions in the affirmative, in other words, if you found those facts or you have found those elements proved on the basis of those allegations of fact, so you will have had to find facts in accordance with the Crown’s submissions basically. Now, in common sense that will necessarily mean that you have rejected Mr Tobin’s evidence as to how Mr Morris came to be injured and accepted Mr Morris’ evidence as a truthful account. That really follows as night follows day in this case or else you couldn’t really have found it in the affirmative.
[21] So, you will also have found that when Mr Tobin caused Mr Morris to strike the letterbox, he intended to cause grievous bodily harm and that Mr Morris suffered grievous bodily harm but the defence is also asserting that at the relevant time, which is when Mr Tobin caused Mr Morris, as the Crown would have it, to strike the letterbox, Mr Tobin was acting in self-defence so I would ask you also to consider that.
[22] Now our law says that everyone is justified in using, in the defence of himself, such force, in the circumstances as he believes them to be, it is reasonable to use. I will repeat that, our law says that everyone is justified in using, in the defence of himself, such force as, in the circumstances as he believes them to be, it is reasonable to use. So, circumstances he believes them to be, not necessarily as they are, but objective test, you have got to decide whether that force was reasonable when you are considering this issue.
[23] Now, once the issue of self-defence is raised it is for the Crown to prove that the defendant did not act in self-defence and that even if he did, the force used was not reasonable in the circumstances as he believed them to be. So, in other words, once its raised its head, self-defence, it is for the Crown to disprove it and that really all follows from the onus being on the Crown not just to prove the elements of an offence but also to disprove a defence that has been raised.
[24] Now, I say that you might wonder how self-defence could be a live issue if you have rejected Mr Tobin’s evidence as to how the injury was caused and his mental state at the time it was caused, if you got to that stage, you might say how come self-defence is really still a live issue? But, that really arises from the facts and I will tell you about this again later, that you can, when you are deciding what evidence to accept and what evidence to reject, you can accept all of a witness’ evidence, you can reject all of a witness’ evidence but you can also accept some parts of a witness’ evidence and reject others. So, for instance, in this case, you may reject Mr Tobin’s evidence in relation to the matters that you are required – in relation to the three elements but still, you might not be prepared to reject his evidence in other areas and, specifically, the issues – the areas that relate to whether or not he might have a defence of self-defence and I will explain that more fully when we come to the question trail but that is basically, as I say, those are the elements and that is self-defence and what has to be disproved, if you like, by the Crown before you could find Mr Tobin guilty. And I do not mean at all when I have gone through this to be making any presumptions about what you will find because I am not, it is just explaining, as I say, what the elements are that you need to find before you could find guilt and also explaining to you how self-defence is still a live issue.
The Judge then went on to direct regarding the evidence and the approach the jury might take to assessing the evidence, including the issue of credibility. Towards the end of her summing up the Judge resumed directing on the elements of the charge by reference to the question trail:[8]
[49] So, the charge is causing grievous bodily harm with intent to cause grievous bodily harm. So, the first question is “Has the Crown satisfied you beyond reasonable doubt that Mr Tobin intentionally drove his Land Rover at the letterbox intending Mr Morris to be struck by a letterbox ?” So, did he act deliberately when – first of all, you have to be satisfied, of course, that Mr Morris – Mr Tobin actually caused him to strike the letterbox and that that was deliberate. So if the answer was yes, you go to question 2, if the answer was no, you find Mr Tobin not guilty.
[50] Second, “Did Mr Tobin, by those actions, cause the complainant grievous bodily harm”? In other words, really serious harm. If the answer is yes, then you go on to question 3, … And if no, you find Mr Tobin not guilty.
[51] Question 3, “Has the Crown satisfied you beyond reasonable doubt that when Mr Tobin drove in the manner and with the intention described above, Mr Tobin intended to cause Mr Morris grievous bodily harm?”... If yes go to question 4 …
[8]R v Tobin, above n 5, at [49][51]; [55][57].
We note here that these directions did not accurately reflect the elements of the charge. In the circumstances of this case the Crown was required to prove (1) that while Mr Tobin was driving and holding Mr Morris’ beard, Mr Morris hit the letterbox (2) that Mr Morris suffered grievous bodily harm as a result of hitting the letterbox and (3) that Mr Tobin deliberately drove at the letterbox intending to cause Mr Morris grievous bodily harm. The first question posed by the Judge, which should have been directed solely at the act that caused the injury, wrongly included an element of intent that was properly the subject of the third question.
The Judge then gave an extensive explanation about the meaning of “really serious harm” before turning to self-defence:
…
[55] So, that brings us to self-defence. Now, if you reach this point in your deliberations, you have got to decide, obviously, what Mr Tobin believed the circumstances were when he drove as he did thereby causing Mr Morris grievous bodily harm. That is before you go on to decide question 4 and 5. To have come this far, it is likely, if not definitely the case, that you will have decided what the circumstances actually were because you will have had to reach those decisions to have got to the stage where you are satisfied that Mr Tobin would be guilty unless the Crown fails to disprove self-defence.
[56] So, question 4, “Given what you have found Mr Tobin believed at that time, has the Crown proved beyond reasonable doubt that at the time his actions caused Mr Morris to strike the letterbox, he was not acting to defend himself from Mr Morris?” So, that is the relevant time when he caused Mr Morris to strike the letterbox, if you found that he did, at that time, has the Crown proved that he wasn’t acting in self – not acting to defend himself from Mr Morris and if you are satisfied that yes, the Crown has proved that, you will find Mr Tobin guilty, if no, you would go to question 5.
[57] Five, “Given what you have found Mr Tobin believed at the time he caused Mr Morris to strike the letterbox, has the Crown satisfied you beyond reasonable doubt that judged by the standards of our community, when he did that, Mr Tobin used more force than was reasonable?” And if the Crown has satisfied you that he used more force than reasonable. If the answer is yes, you would find Mr Tobin guilty, if no, you would find Mr Tobin not guilty.
In supplementary submissions, Ms Johnston, for the Crown, acknowledged that self-defence had not been addressed before the issue of intent. However, she referred to the practice of directing on self-defence prior to the question of intent as “ideal” but not the only approach and as not necessarily amounting to an error or irregularity for the purposes of s 232 of the Criminal Procedure Act. Ms Johnston pointed, by way of example, to R v Seu[9] and Mafi v R.[10] In the latter, this Court noted that a failure to give directions on self-defence before the elements of the offence “will not necessarily result in miscarriage of justice … because, regardless of the order in which the jury addressed the issues, it did so according to the Judge’s express direction that self-defence was a complete defence to the charge.”[11]
[9]R v Seu , above n 8, at [70].
[10]Mafi v R [2015] NZCA 408.
[11]At [26].
Ms Johnston submits that the jury would have understood from the Judge’s summing up that Mr Tobin would have a complete defence if the Crown could not disprove that he was acting in self-defence. Further, that it was appropriate in this case for the jury to be directed to consider the elements of the offence before self-defence because Mr Tobin was challenging the mechanism by which the injury was caused to Mr Morris. It was therefore logical for the jury to decide whether they accepted Mr Tobin’s version of events before considering self‑defence.
We do not accept these submissions. It is correct that failing to direct on self‑defence prior to the elements of the charge will not necessarily result in a miscarriage of justice but it does create a higher risk of the jury failing to properly consider the issue. In this case we do not see that Mr Tobin’s challenge to the means by which Mr Morris came to be injured precluded an orthodox direction on self‑defence prior to intent. To the contrary, we think that the way the jury was directed created a real risk that it would come to the question of self-defence already armed with conclusions inimical to a genuine consideration of the issue.
The circumstances of the incident meant that there were four possible scenarios. The first was the Crown case, that Mr Morris hit the letterbox, suffered grievous bodily harm as a result and that Mr Tobin intended both to happen. Self‑defence, if accepted, would have been a complete defence to this scenario. But the effect of the summing up was that by the time the jury came to consider self‑defence it had already reached the conclusion that Mr Tobin had deliberately injured Mr Morris, intending to cause him grievous bodily harm. In our view there was a real risk that the jury’s assessment of the defence of self-defence was adversely influenced by that conclusion.
The Judge actually recognised this difficulty when she posed the question at [24] of the summing up of how self-defence could be a live issue if the jury had already rejected Mr Tobin’s evidence as to how the injury was caused and his mental state at the time it was caused. Although the Judge indicated that she would answer that hypothetical question later, in fact the conundrum was never resolved.
The other possible scenarios would all lead to acquittal because an essential element of the offence would be missing in each. If Mr Morris had not hit the letterbox (Mr Tobin’s position) the Crown would have failed to prove the case that it had advanced. If Mr Morris hit the letterbox, but by accident, the element of intent would be missing. If Mr Morris hit the letterbox and Mr Tobin intended that to happen but did not intend to cause grievous bodily harm, the element of intent would be missing.
We consider that, even though the jury was told that a finding of self‑defence would preclude a guilty verdict and that it was for the Crown to disprove self‑defence, by the time the jury came to consider the issue it would already have answered all the questions required to convict Mr Tobin. Coming to the question of justification against that backdrop created a real risk of the outcome being different to what it would have been had the jury been considering self‑defence having decided only that Mr Morris had hit the letterbox.
Moreover, the Judge’s direction on self-defence was, itself, inadequate. The recognised approach to directing on self-defence is to direct on the three questions that arise when self-defence is left to the jury and to make the necessary linkages to the evidence.[12] Those questions are: (1) what were the circumstances as the defendant honestly believed them to be? (2) in those circumstances was the defendant acting the defence of himself or another? (3) was the force used reasonable against the circumstances as the defendant believed them to be?
[12]R v Bridger [2003] 1 NZLR 636 at [18] and R v Howard (2003) 20 CRNZ 319 (CA) at [23]. See also Te Hei v R [2018] NZCA 154 at [23] and Theobald v R [2018] NZCA 409 at [56].
Although the Judge did refer at [22] to the “circumstances as he believed them to be”, her explanation of “circumstances … not necessarily as they are, but objective test” omitted the reference to honest belief and was clearly wrong in its reference to objectivity. Later, at [55] the reference to “what Mr Tobin believed the circumstances were when he drove as he did” did not accurately reflect the question as usually put.
Although the Judge canvassed the evidence about Mr Morris’ behaviour earlier in the evening there was no more than a vague reference to the background. Mr Tobin’s fear of Mr Morris as a violent and unpredictable man based on things that Mr Morris had said about his past on previous occasions, which formed an essential part of the foundation for the defence, was not properly canvassed.
We are satisfied that these errors in the summing up created a real risk of a miscarriage of justice.
Result
The appeal is allowed. The conviction for wounding with intent to cause grievous bodily harm is quashed. A retrial is ordered.
Any question of bail is to be dealt with in the District Court. The record of the first warning given to the appellant by the District Court on 31 August 2018 is cancelled in respect of the conviction quashed.
Solicitors:
Crown Law Office, Wellington for Respondent
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