Torea v The Queen

[2005] NZCA 96

IN THE COURT OF APPEAL OF NEW ZEALAND

CA502/04

THE QUEEN

v

JASON CHARLES TOREA

Hearing:20 April 2005

Court:Glazebrook, Baragwanath and Goddard JJ

Counsel:M H McIvor for Appellant

M T Davies for Crown

Judgment:4 May 2005 

JUDGMENT OF THE COURT

Appeal dismissed.
____________________________________________________________________

REASONS

(Given by Baragwanath J)

[1]       The appellant was convicted on 6 October 2004 following jury trial in the District Court at Hamilton on counts of wounding with intent Messrs Hapimana and Strongman.  He was sentenced to three years nine months imprisonment.  His appeal against conviction is on the grounds that the verdicts were unreasonable as the evidence pointed to an attack upon him by the complainants against which he was defending himself and that there was miscarriage of justice because swabs taken from his car would have supported his account that his hand was cut by a knife wielded by one of the complainants.

The facts

[2]       In the early hours of 6 February 2004 Mr Strongman drove his uncle, Mr Hapimana, to his grandparents’ place in search of his children who had been evacuated from a house where during the evening a shotgun had been discharged.  Mr Hapimana had gone inside to look for the children and Mr Strongman was sitting in his car on one side of the road when the appellant and his girlfriend appeared walking along the footpath on the other side.  Mr Hapimana was in the driveway when the appellant yelled out “Yo” which it is common ground is an expression used by members of the Black Power club or gang whose patch he was wearing.  Mr Strongman, who bears a Mongrel Mob tattoo although denying involvement with that gang, took the appellant’s manner to be threatening and aggressive in relation to his uncle who is a small man.  He got out of the car and said words to the effect “You fucking nigger fuck you” or “Fuck up boy”.  The appellant responded “Who are you calling boy?” and there was a confrontation.  Cross‑examined Mr Strongman said that he believed that the appellant was holding something that “looked brass” and he considered looked like a weapon.  A blood covered knuckleduster was later found in the appellant’s car and Mr Strongman was cross‑examined whether the brass object could have been a knuckle-duster.  Mr Strongman acknowledged that he could not be certain that the object was a weapon, being an allusion to a knife with which Mr Strongman claimed his face had been cut. 

[3]       Mr Strongman said that the appellant chased and caught him.  He saw Mr Hapimana approach with a stick to help him.  There was a scuffle between Mr Hapimana and the appellant.  Mr Strongman described his uncle as trying to defend himself by holding his hands up to block his face and that the appellant was striking and trying to inflict injury.  Although it was dark Mr Strongman said that he could tell that the appellant was holding something.  Mr Strongman grabbed the stick from his uncle who he could see was in danger of being attacked.  The appellant’s companion was trying to get him off Mr Hapimana.  Mr Strongman said he could see that Mr Hapimana had been injured, that he had blood on his face.  Mr Strongman used the stick to hit the appellant on the head a couple of times until it broke.  He said that his uncle crawled up on to the step and was sitting there bleeding when the appellant came at him holding the weapon while Mr Strongman was holding the broken stick.  Mr Strongman’s grandparents came out of the house and said that the police were coming.  The appellant left and Mr Strongman got in his car and went on his way.  Mr Strongman realised that he had sustained a cut to his face.  He said that he was just standing and felt nothing until he realised that blood was running down his face.

[4]       Cross-examined Mr Strongman denied that he or his uncle had produced the knife.  He agreed that after he had hit the appellant around the head a few times he stood up and Mr Strongman kicked his legs out from under him and he fell over again.  Mr Strongman said he thought it was then that he got cut as the appellant fell.  He agreed that he had made a statement “You fucking nigger” or “Fuck you” and was getting out of the car to back it up by dealing to the appellant.  So he was not getting out to defend himself but to attack the appellant.  He was asked:

Q.You and for whatever reason your uncle had a crack at this bloke.  You came off second best.  That’s all that happened. That’s what happened isn’t it?  He’s walking with his lady, you were fired up because of the incident earlier in the night, decided to take it out on him?

A.       Oh yeah.

Q.       That’s what happened isn’t it?

A.       Well yeah in a way yeah.

[5]       Mr Hapimana had been drinking all day and was intoxicated.  His account was that he saw the appellant approaching in an aggressive way. In chief he said that Mr Strongman and the appellant were being aggressive and that the appellant reached for his pocket and pulled out something which Mr Hapimana feared was a gun and he went over to grab him from the back.  He said it looked silver, pretty sharp, a little blade.  The appellant turned around.  The next minute Mr Hapimana was on the ground.  He said while he was on the ground he just felt a lot of sharp points around his face.  He was trying to push the appellant off.  He was dazed and blood was flying everywhere.  When the appellant got off he just crawled to the safest place.

[6]       In cross-examination it was put to him that he never saw a knife.  He responded that he saw something silver.  Asked why he had not told the police he said that he did.  Shown his deposition he admitted that he never saw a knife.  Asked why he had said in evidence “Oh well maybe I saw a silver tip” he said he did not know.  He denied he was trying to help out his nephew.  Re-examined he acknowledged that he had not seen a silver tip at any stage.

[7]       A police dog handler, Constable Sangster, received instructions to go to an intersection where a red Commodore car had pulled into a driveway just short of a police cordon.  He and other officers approached the vehicle and instructed the occupants to place their hands on their heads and come out of the vehicle one at a time.  The driver and a woman in the rear did so.  The appellant, who was the front seat passenger, did not comply with the police requests.  He removed his gang patch and opened the vehicle door “staying very low” and went to the driveway.  Because of the firearms episode earlier in the evening the handler approached him with his dog on extended lead about three metres in front of him and called on the appellant to come out.  Upon his refusal to do so the handler commanded the dog to apprehend him. The dog took him by his leather vest and began pulling him towards the car.  The dog completely pulled the vest from the appellant’s back and the handler instructed him to apprehend the appellant.  As the dog got close the appellant struck out with his right hand, the dog took hold of it and the officers were able to drag him out on the driveway where the appellant was secured by another officer. 

[8]       The handler saw a fairly large amount of fresh blood on the appellant’s hand, which was still bleeding.  He noticed that the appellant also had head injuries which the appellant said he had received in a fight when he was hit on the head by a bar.  The handler looked inside the vehicle and saw in the front passenger’s compartment where the appellant had been seated a large amount of blood and a blood-stained knuckle-duster between the passenger’s seat and the centre console.

[9]       Cross-examined as to the causation of the wound on the appellant’s hand, the handler agreed that it was possible that the hand was already injured before the dog seized him.  He said that a dog has two teeth at the top and two at the bottom and he would not expect a knife wound type cut from a dog’s teeth. 

[10]     A medical practitioner, Dr Tam, was called by the police to the Hamilton Central Police Station in the early hours of 6 February to examine the complainant, Mr Strongman.  He described a laceration on the left side of his face three centimetres in length and another on the left side of his shoulder, two centimetres long, the first requiring four stitches and the second two.  He considered that the lacerations had been caused by something sharp.  Photographs of Mr Strongman’s face showed an angled laceration running from just below the point of the left cheek down to a point just above the left hand side of his mouth. 

[11]     A doctor working at the Waikato Hospital Accident and Emergency Department treated Mr Hapimana at about 5.55 am.  He described multiple clean sharp lacerations of which seven required sutures.  Photographs showed a long laceration extending from a point just below and behind the left side of the mouth running right back to just before the left earlobe.  That was described by the doctor as having cut through the left masseter muscle which attaches to the jaw and up to the zygomatic arch (top “cheekbone”).  The muscle is used to close the mouth particularly during eating.  There was fortunately no nerve damage.  A further scar beneath the running from below the nose horizontally to the fold of the left cheek appears to have required at least eight stitches.  But it and further lacerations to the scalp, right cheek, elbow, back and chest were described by the doctor as superficial.  He described the injuries as being consistent with being cut with a knife or sharp object.

[12]     Doctor Tam also examined the appellant.  He had a two centimetre graze on the right side of his forehead, a swelling over the left side of the forehead measuring six centimetres by two and a half centimetres with an abrasion in the middle of the swelling.  There was a laceration over the left side of his scalp and injuries to his right hand.  There was a laceration over his right thumb as well as a three centimetre laceration to the right side of his hand just below the little finger and on the back of the hand.  That required stitching.  The doctor agreed that the last injury was consistent with being a defensive injury to someone using a knife.  The doctor also considered the injury consistent with the results of a bite by a police dog.

[13]     An ESR witness confirmed that there had been a recent cut to the right rear sleeve of the top worn by the appellant of the kind that would be caused by a knife.

[14]     At interview by the police the appellant said that the injury to his hand had occurred before the police stopped him and must have been caused in the fight. 

Submissions

[15]     Mr McIvor submitted that the circumstantial evidence must give rise to a reasonable doubt whether the appellant’s contention was correct.  He emphasised the appellant’s statement to the police in which he said that the complainant’s vehicle pulled up right beside him and his companion:

They called me a nigger.  You know I just turned back… and the next minute they’re out of the car.  I got hit and then you know we started fighting with one of them and one of them grabbed something and smashed me over the head with it.  I’m not too sure if there was a knife produced or whatever but… I got it in the end I cut my hand… I think I might have tried to grab the knife off them or something like that.

[16]     He argued that Mr Strongman’s admission of getting out of his car in a belligerent mood, responding aggressively to the appellant’s “Yo” and the circumstantial evidence of knife cuts to the appellant’s right hand and shirt coupled with the injuries to his head must have left a reasonable jury in doubt whether he had been attacked by Messrs Strongman and Hapimana with a knife and the admitted stick; and that the lacerations to the faces of Messrs Hapimana and Strongman must have occurred after the cuts to the appellant’s hand and sleeve.  The blood near where the appellant was sitting in the car must have derived from his hand at a point before the police dog intervened.  That cut can only have occurred during the fight; it must have been done by a knife wielded by one of the complainants; and so their injuries must have resulted from a subsequent phase in the fight with two men against one when the appellant must have got hold of the knife and used it in self‑defence.

[17]     Mr McIvor further submitted that swabs taken from the car in which the appellant was apprehended would have supported his account that his hand was cut by a knife.  Because they were not tested there has been a miscarriage of justice.

[18]     Mr Davies for the Crown submitted that it was open to the jury to find either that the appellant was not acting in self‑defence; or that the force used by him was not used for the purpose of self‑defence or was not reasonable in the circumstances as he believed them to be and constituted excessive force. 

Discussion

[19]     There was no challenge to the summing up in which the defence of self‑defence was left by the Judge to the jury which had the advantage of Mr McIvor’s challenge to the complainants’ evidence in cross‑examination.

[20]     But we do not accept that the jury’s verdicts were not open to them.  On the account of the complainants the knife later found in the appellant’s car must have been used at early stage when he seemed to be lashing out at Mr Hapimana with something in his hand.  It was open to the jury to conclude that the lacerations to Mr Hapimana’s face graphically shown in the photographs were deliberately caused.  The major laceration could scarcely have happened by accident and the second facial laceration shown in the photographs is parallel to it and consistent with being deliberately caused.

[21]     The knife had a folding blade which is likely to have required the use of both the appellant’s hands to open and lock it.  While the appellant’s wound was consistent with being a defence wound a plausible alternative is that the laceration to his hand occurred either while he was preparing the knife for use or that it pivoted in his hand and cut him during the altercation with Mr Hapimana, perhaps as the two went to the ground.  The cut to the back of the appellant’s right shirtsleeve could, although with difficulty, have been caused while he was holding the knife with his hand forced back during that altercation.  There is no obvious reason why the appellant would have retained possession of the knife if it was not his.

[22]     It was open to the jury to prefer the complainants’ account of the sequence of events to that of the appellant made at interview which he did not enter the witness box to confirm.

[23]     It was further open to them to consider that the lacerations to the faces of the complainants constituted excessive force.  The jury could well have formed a view that the lacerations to Mr Hapimana’s face were not only deliberate but altogether disproportionate to anything the appellant may have thought he was facing from the complainants despite there being two of them and despite also the blows and injuries which he received.

[24]     We recognise the force of Mr McIvor’s submission that the blood in the well of the car in which the appellant was apprehended must have derived from the appellant and have been deposited before his hand was seized by the dog and therefore before it could have been ripped by its tooth in the way Dr Tan considered could have occurred.  Such analysis however means that there was no need for the blood in the car to be tested: it may be accepted that it was the appellant’s blood.

[25]     But for the reasons we have given it by no means follows that there is a reasonable doubt whether it occurred in the course of his defending himself; or that he did not employ excessive force in the course of any self‑defence.  It is impossible from the transcript to discern which route to their verdict was selected by the jury but we are satisfied that each was open to them.

Solicitors:
Crown Solicitor, Auckland