Witehira v The Queen
[2016] NZCA 123
•14 April 2016 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA751/2013 [2016] NZCA 123 |
| BETWEEN | ROBERT WILLIAM WITEHIRA |
| AND | THE QUEEN |
| Hearing: | 9 February 2016 |
Court: | Miller, Fogarty and Toogood J |
Counsel: | G R Boot for Appellant |
Judgment: | 14 April 2016 at 10.00 am |
JUDGMENT OF THE COURT
AThe appeal against conviction is allowed.
BThe conviction of assault using a motor vehicle as a weapon is quashed and no retrial is directed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Toogood J)
Introduction
On 10 September 2013 Mr Witehira was found guilty by a jury in the Hamilton District Court on one representative charge of assaulting Sarah Hunter, a former partner, using a motor vehicle as a weapon. Judge Connell sentenced him to nine months’ supervision and 80 hours’ community work.[1] Mr Witehira appeals against both his conviction and sentence.
[1]R v Witehira DC Hamilton CRI-2010-019-8267, 30 October 2013 [Sentencing notes].
The essential ground for the conviction appeal is that Mr Witehira’s trial counsel (not Mr Boot) conducted the trial on the basis of an incorrect view of the law, which affected decisions about the cross-examination of Ms Hunter, and whether Mr Witehira should give evidence. It is argued that the fundamental error in counsel’s approach had the effect of depriving Mr Witehira of a proper defence and led to a miscarriage of justice.
As to sentence, Mr Witehira says that the Judge failed to give proper recognition to the fact that he had spent 40 days in custody and a period of some five months on electronically monitored bail, prior to trial. It is said that the discount given by the Judge on sentencing was inadequate to recognise these serious restrictions on his liberty prior to trial.
The Crown’s approach to the charge
The indictment charged that:
ROBERT WILLIAM WITEHIRA on the 6th day of October 2010 at Hamilton assaulted Sarah Hunter using a motor vehicle as a weapon.
Representative charge.
Particulars: On various occasions the accused rammed the car the complainant was travelling in.
Opening the case for the Crown, Mr Cornegé described what he understood the complainant’s evidence would be. He said:
Now on 6 October 2010 the complainant Ms Hunter left her home in Taupiri and was driving towards Hamilton and she left at about 10.50 am that morning and she was driving a BMW and in the car were her daughter Zoe, who was in the front passenger seat and her son Lucius, who was in the rear. Now as they were coming out of Gordonton, the complainant Ms Hunter saw a vehicle driven by the accused driving in the opposite direction and she could see that the accused was the driver and also recognised the vehicle, it being a green Nissan and it had some distinctive modifications to it and she continued about five kilometres up the road heading in towards Hamilton at which point the accused’s vehicle, which had clearly turned around and caught up with her, proceeded to strike the back of her car with his car.
Now Ms Hunter was driving at about 100 kilometres an hour at the time so the accused had plainly driven faster than that to catch up and then struck at speed and this occurred a number of times, causing Ms Hunter to have some difficulties controlling the vehicle. Now as the vehicles travelling in towards Hamilton came down the hill towards Rototuna, the accused pulled his vehicle out to the side into the other lane two or three times and he tried, while doing so, to side-swipe Ms Hunter’s vehicle but he had to keep pulling back in when vehicles were coming in the opposite direction and he continued to do the same on Thomas Road. However ultimately, there was some damage caused to the front bumper of his car, either because of what was happening with the swipes or because of what had happened earlier and he pulled over and it’s not alleged that there was necessarily any contact during the side-swipes, but it [is] certainly alleged that there was contact from the rear during that initial period when he had caught up to Ms Hunter’s vehicle.
Mr Cornegé said there was evidence that Mr Witehira’s vehicle was inspected later that day and that there was, among other things, damage to his bumper necessitating repair with some tape; damage to the front right bumper, the indicator and the left-side bumper; and white paint scrapings on the left guard and bumper. The representative charge reflected the complainant’s evidence that there were several collisions and swerving incidents.
As to the ingredients of the charge, Mr Cornegé said to the jury:
… [A]n assault has a number of different definitions and any of these can suffice, so what you’d typically think of as an assault is someone comes up and they punch someone, it’s the intentional application of force. But of course if you also attempt to apply force to someone, so you try to punch someone but you miss them, that is also an assault. But also if you threaten by an act or gesture to apply force, so if you threatened to punch someone, if the person making the threat has or causes the person who is being threatened to believe on reasonable grounds that the person who’s making the threat has a present ability to effect that threat, so there’s really three ways that you can assault someone. … [T]he Crown says that rather than using or rather than punching someone, the accused has either intentionally applied force or attempted to or threatened to [use] a motor vehicle as a weapon …
Evidence of the complainant at trial
Mr Witehira had previously been in a six-month relationship with Ms Hunter. She said that they did not part on good terms and gave evidence of stalking and threatening behaviour by Mr Witehira after they separated. On the morning of 6 October 2010, Ms Hunter was driving with her two children in her BMW motor vehicle, heading south along Gordonton Road towards Hamilton. Ms Hunter’s evidence was that she recognised Mr Witehira and his car as he passed her, heading north. She was immediately concerned and noticed, a short time later, Mr Witehira’s vehicle behind her. Travelling at around 100 km an hour, she saw that Mr Witehira passed two cars, came up right behind her and drove straight into the back of her vehicle without braking. She said she nearly drove off the road.
Ms Hunter said that, after the initial contact, Mr Witehira “just let me go a bit and then tapped me again and tapped me again and he did that pretty much all the way until he pulled over”. She said that a number of times he came up to the side of her car from the rear, otherwise it was just straight into the back of her car. Ms Hunter said on the occasions when Mr Witehira pulled alongside her his vehicle came close enough to hers to really scare her. She said he would come far enough forward to be able to look into the back passenger window. During this time they were travelling around 80 km an hour. She said Mr Witehira had side-swiped her and she looked back in the mirror and saw half his bumper was lying on the ground. He pulled over and she left.
We observe that neither Mr Cornegé in opening, nor Ms Hunter in her evidence-in-chief, used the word “rammed” in alleging that Mr Witehira’s vehicle came into contact with Ms Hunter’s vehicle.
The defence case — cross-examination of the complainant
Mr Witehira’s trial counsel, Mr Henry, conducted the defence to the charge on the basis that the Crown had failed to prove that Mr Witehira was the offender and that, in any event, the jury should not believe Ms Hunter’s evidence that there were a number of collisions between the vehicles. In support of the intended defence, a brief of evidence had been prepared by a Dr Bydder, a physicist known to Mr Witehira’s family, who had examined Mr Witehira’s car around 10 days after the incident. His brief of evidence contained the opinion that Mr Witehira’s vehicle had never been in a collision where the front had contacted another vehicle or other object with noticeable force that could be sensed by occupants of the vehicles. He also said that there was no evidence that the complainant’s BMW vehicle experienced any front or rear collisions.
To understand Mr Henry’s approach at trial, it is necessary to consider what had taken place procedurally in the District Court.
The guilty plea and the Court of Appeal’s decision to vacate it
Mr Henry was initially retained to represent Mr Witehira on an application by him to set aside his plea of guilty to the charge. That application was refused by Judge Tompkins in May 2012, a decision that was overturned by the Court of Appeal in March 2013.[2] The judgment of the Court of Appeal records that the defence Mr Witehira wished to advance was that contact between the two cars was accidental and minimal.[3] In a brief of evidence that had been prepared for him, his proposed evidence was that it was a coincidence that he drove past the complainant. Mr Witehira was to say that as his vehicle came up behind Ms Hunter’s car, she braked suddenly and he tried to avoid her. He was to say that he did end up driving beside the complainant at one point but at no time did he ram her car as alleged.
[2]R v Witehira DC Hamilton CRI-2010-019-8267, 24 May 2012; and Witehira v R [2013] NZCA 58.
[3]At [6].
The Court of Appeal was satisfied that Mr Witehira had consistently denied the charges and was intending to defend them, but there was an unexpected sentencing indication that arose as a result of a so-called “concession” proposed by the Crown.[4] The Court of Appeal recorded:[5]
On the morning of the trial, [counsel for the Crown] approached Mr Witehira’s [then counsel] suggesting that Mr Witehira’s level of culpability would adequately be reflected by one charge of assault with a weapon. The Crown proposed that if Mr Witehira pleaded guilty to that charge and the summary charge of reckless driving then it would offer no evidence on the other two counts in the indictment. The Crown also indicated that it would only seek a sentence of home or community detention in the event of a guilty plea.
After further exchanges between Mr Witehira and his counsel, and between the lawyers, Mr Witehira pleaded guilty to one charge of assault with a weapon and one of reckless driving, but he sought leave to vacate those pleas before he was sentenced.
[4]At [24]–[25].
[5]At [8].
The Court of Appeal held that the Crown had made no concession at all and that the sentencing indication was given without any agreement on the summary of facts. There was no real prospect of imprisonment, in the Court’s view, yet Mr Witehira was led to believe that there was and that he rushed into changing his plea to one of guilty for fear of continued detention.[6] He recanted as soon as he was away from the pressure of that situation.
[6]Witehira v R, above n 2, at [29].
The Court held that Mr Witehira’s guilty pleas were entered without a proper understanding of whether imprisonment was ever a prospect in the event of a conviction, and following a Crown proposal that potentially offered no advantage to him. The Court of Appeal determined that the guilty pleas should be vacated and the convictions quashed. It ordered that a trial date be set after the appellant was given the opportunity to replead. Mr Henry was retained to conduct the defence.
The conduct of the defence
In an affidavit sworn for the purposes of the appeal, Mr Henry said he was instructed before trial that his client denied he rammed the complainant’s car with his vehicle. Counsel described the complaint as being of a graphic, violent, protracted event involving repeated collisions at speed. Counsel said there was a “vindictive issue” between Mr Witehira and the complainant that was not one-sided. Mr Henry pointed out that the serious nature of the complainant’s allegations led to the police opposing bail with the result that Mr Witehira was held in custody for a considerable time.
The brief of evidence prepared by Mr Henry was consistent with the summary of the intended defence described by the Court of Appeal.
Mr Henry described the appellant’s position and his instructions to counsel in the following terms:
5. My discussions with Robert Witehira were spread over a period of time; the first instructions were to vacate the guilty plea that he had been wrongly persuaded to enter.
From the instructions I took at that time the facts were:
…
vi. The file showed an affidavit sworn by Robert in support of the application for bail. In that affidavit Robert stated that his car was on the day in question by coincidence following the complainant along the road in question when the complainant suddenly braked creating an emergency stop on Robert's part. He stopped but touched the bumper of the complainant lightly. I asked him why he put that in the affidavit as he had refused to make a statement to the police of any substance (his statement was really a query about what the complainant was fabricating this time - there was, I was instructed, an earlier fabrication of assault which on advice from the lawyer at the time he pleaded guilty to as it was more "expedient" to plead guilty and take the benefit of an early plea). He responded to me that the affidavit was a statement on oath and if he omitted the "touching" then he would be lying on oath which he would not do.
vii. He instructed me that the event was nothing more than he was travelling on the road in question and came up behind the complainant by chance. As he closed in on her vehicle she created an emergency stop that resulted in the touching of the two crash bumpers.
…
It is against this background that, in his cross-examination of Ms Hunter at the trial, Mr Henry encouraged Ms Hunter to describe the contact between the vehicles in more forceful terms that she had in her earlier evidence. The following exchanges demonstrate counsel’s approach:
Q. Now you've told His Honour and the jury about this green car coming up behind you, when it first hit you how would you describe the force it hit your car with?
A.A lot.
Q.Would you use the word a massive blow?
A.It was intense.
Q.Would you use the words a massive blow, yes?
A.I guess so.
Q.So you nod in agreement to that, now you told His Honour and the jury that it nearly took your car off the road so it was of such force that it affected your ability to steer?
A.Yes.
Q.But you managed to control it?
A.Yep.
Q.You're describing a pretty serious ramming of a car into your back aren't you?
A. Yes.
Q.And your evidence is that he came upon you at high speed, he didn't brake and he just -
A.I didn't-
Q. - clean hit you in the back of the car?
A.Didn't feel like he broke, no.
Q.So you agree with what I just said?
A.Yep.
Q.And that's the first time that you say that his car had contact with yours?
A.Yes.
Q.You then say it happened again, correct?
A.Yep, yeah.
Q.So we're now on the second time that your car was struck in the back and was that also a high speed massive blow?
A. No. None of them were as bad as the first one.
Q. So the first one was the worst?
A. Mhm.
Q.But it was enough to throw you back in your seat?
A.Yes.
And again:
Q.… Now, in your evidence in chief you described it as he was tapping you but what you're describing is far more than tapping, isn't it?
A.I guess, I mean it's just his car knocking my car.
Q.His car was knocking your car?
A.Yeah, that's how I described it as tapping.
Q.So you're telling the jury that Bobby here was violently attacking your car and putting you in fear of your life, aren't you?
A. Yes.
Q. Well, why would you use the word tapping your car, don't you really mean that he was banging into your car and he was trying to ram you off the road?
A. Well it was a bit of both really, in, in another manner he was just playing with me, trying to scare me as well as trying to get my car off the road.
Q. So he was trying to push your car off the road and he was hitting you with force commensurate with trying to push you off the road that's what-
A. Only in the beginning.
The tactic adopted by counsel, which is a legitimate cross-examination ploy, was to encourage the complainant to exaggerate her evidence so that her description of the contact between the two vehicles would be inconsistent with the defence evidence that counsel proposed to call from Dr Bydder, indicating little or no relevant damage to either vehicle. Mr Henry put the defence case, in his opening to the jury after the prosecution case had closed, in these terms:
We understand that what the Crown is alleging here and has to show is he actually intended to use this vehicle as a weapon, which means like the complainant’s saying, he bashed and bashed and bashed, he side-swiped. He hit a car, he did all sorts of things and if you find when you’ve looked at the photographs and you’ve looked at the map and you’ve listened to her evidence, you think she’s told the truth. You think that she was rammed and rammed and rammed like she describes, convict him, because that’s your job. … [B]ut, we say quite simply, he never ever used his car as a weapon because if he had you would not be seeing these pristine photographs of the BMW …
After referring to the complainant’s evidence, counsel continued:
Okay. That’s the back of the car. No light damage, but look there’s a little wee, wee white scratch here and that’s what you’re asked to convict on, and there’s some rust here but there’s a dent that you can hardly see and this was created by a high speed crash that she described as causing her problems with control.
In an affidavit sworn in support of the appeal, Mr Henry deposed that he had advised Mr Witehira that he believed “we would destroy the complainant’s evidence in the hearing simply because it was contradictory to the physical evidence”. Mr Henry said that he discussed the trial strategy with Mr Witehira and, on the basis that the complainant’s evidence and the particulars alleged in the indictment “would be destroyed”, he advised Mr Witehira that he should not give evidence as his ability “to explain the facts (although they were the truth) was not strong”. Mr Henry said:
10.I told him that in my opinion the result of cross-examination would be that the jury would see that her evidence was a lie. I explained that the Courts must reject evidence that is demonstrated to be false, it being axiomatic that Courts do not allow the use of essentially perjured evidence to convict a person of a crime as the burden of proof for crime is beyond reasonable doubt. The two positions being mutually exclusive.
11.I explained to him that in my opinion if we could discredit the complainant by showing her evidence was a lie then there was on my advice no need for him to give evidence. I arranged that in the course of the cross-examination we would need to make a decision that he did or did not give evidence as if he elected to give evidence then I had to put his evidence i.e. the touching of the vehicles, to the complainant. He instructed me that he would accept whatever advice I gave him on whether or not he should give evidence.
12.… I advised him I would at some stage look at him to see how the cross-examination was going and at that time the decision would be made by me as to whether he was to give evidence. I made it very clear it was not in his best interests to give evidence as whilst I had no doubt his evidence would be the truth in my assessment he would not be a good witness and the jury would disbelieve him.
Mr Henry explained in his affidavit that he had conducted many criminal jury trials in the late 1970s and early 1980s and that, during that time, the use of particulars was a key aspect to conducting a defence at trial “as they ensured the Crown set out the issue your client faced; it removed the wriggle-room for the Crown if the evidence broke against them”. Mr Henry said that he noticed when the trial opened that the Crown was not putting the complaint to the Court with any vigour and led a very loose story from the complainant. Mr Henry took the view that having put to the complainant the statements she had made to the police and the defence evidence about the lack of damage to the vehicles, the complainant’s evidence was discredited, a point referred to by the trial Judge in sentencing.[7] Mr Henry said he had formed the view in the midst of cross-examination of the complainant that the proper inferences to be drawn from her evidence were:
(a)she had made a false complaint of “ramming” to the police;
(b)she had lied to the Court in her pre-trial statement; and
(c)her credibility had been discredited to the point that given the Crown obligation of proving the offence beyond reasonable doubt, his client would be entitled to an acquittal.
[7]Sentencing notes, above n 1, at [14].
Mr Henry received instructions from Mr Witehira, by a pre-arranged nod, to continue his cross-examination of the complainant on the basis that Mr Witehira would not give evidence.
Mr Henry closed his case to the jury by asserting that the Crown had moved away from the position it had taken in opening to say that Mr Witehira “might have threatened” Ms Hunter, and conceding that his car might not have hit hers. Mr Henry submitted that the complainant had shifted her position and that she was not a truthful witness. He referred to Ms Hunter’s evidence that Mr Witehira’s bumper had fallen off and argued that what she had said and the physical evidence did not match. He summarised Ms Hunter’s evidence as alleging that the first contact was “a massive blow” to the rear of her vehicle and that there was then contact on the driver’s side. Again, he submitted, the physical evidence did not support those allegations. On that basis, Mr Henry submitted, Ms Hunter’s credibility was shot and she had lied about multiple massive blows. He said that the Crown case had fallen to bits and there was no way the jury could conclude that the chase had even started. He said that the Crown’s case depended entirely on her and she was guilty of a mistruth concerning the bumper.
Analysis
As Mr Henry frankly acknowledged, his conduct of the defence and the case he put to the jury in closing rested firmly on the particulars in the indictment, which alleged that on “various occasions the accused rammed the car the complainant was travelling in”. He encouraged Ms Hunter to embellish her evidence-in-chief in order to show that the allegation of ramming or massive blows was inconsistent with the physical evidence given by Dr Bydder.
But the Crown had not opened its case on the basis that Mr Witehira’s vehicle rammed Ms Hunter’s car multiple times, at least insofar as the reference to the complainant’s car having been “rammed” may indicate extremely forceful contact. As indicated in the extract from Mr Cornegé’s opening set out above at [5], he referred to Ms Hunter’s vehicle having been struck at speed a number of times and that there were at least attempts to sideswipe her vehicle. The Crown’s case was summarised by Mr Cornegé when he said:
… [I]t’s not alleged that there was necessarily any contact during the side‑swipes, but it [is] certainly alleged that there was contact from the rear during that initial period when he had caught up to Ms Hunter’s vehicle.
We consider that defence counsel ought to have understood from the Crown’s opening that the case was put on the basis that such contact as had occurred was consistent with there being some relatively minor damage to either or both of the vehicles, but that it would be open to the jury to convict Mr Witehira if they were not persuaded beyond reasonable doubt that there had been any contact but were sure that there had been the threatened application of force. As indicated in the extract at [7] above, Crown counsel referred expressly to the threatened application of force as constituting an assault, making it clear that “the accused has either intentionally applied force or attempted to or threatened to [use] a motor vehicle as a weapon …”.
Given the approach that had been signalled, therefore, we consider it was incumbent upon Mr Henry to clarify with the Crown prosecutor before Ms Hunter was called to give evidence, whether the Crown maintained the position that the jury could convict only if they were sure that Ms Hunter’s vehicle had been “rammed”. That is because even if Mr Henry’s proposed cross-examination strategy succeeded in persuading the jury that the complainant had exaggerated the extent of the contact between the vehicles, the jury might nevertheless have been sure that violent contact was, at least, threatened by Mr Witehira’s actions in driving his vehicle very close to Ms Hunter’s car while they were travelling at speed.
The need for a revised strategy should have become even more apparent after the complainant gave her evidence-in-chief.
To have any reasonable prospect of casting doubt on the complainant’s allegations that Mr Witehira had driven his vehicle anywhere near hers, the jury would need to be persuaded that she had entirely fabricated the events. That would have involved the jury also considering it reasonably possible that her daughter had participated in the deception.
Mr Henry had available a statement of proposed evidence from Mr Witehira that could have provided a defence to the charge of assault whether by actual or threatened contact, in that the jury may have considered it to be reasonably possible that he lacked the necessary intent. Mr Witehira had maintained from an early stage of the prosecution that any contact was as a result of the complainant having braked suddenly.
This Court is always reluctant to set aside a conviction on the basis that counsel has made a tactical choice that proves to have been unwise, but we consider Mr Henry’s insistence that the Crown could only obtain a conviction if it proved that Mr Witehira had deliberately and with considerable force rammed his vehicle into that of Ms Hunter makes it appropriate to do so in this case. We do not comment on the prospect that the jury may have acquitted Mr Witehira, but we have concluded that Mr Henry’s erroneous insistence that the evidence could not support a conviction, despite the Judge correctly refusing to allow the Crown to amend the indictment because threatened force was an included element in the charge as laid, has created a miscarriage of justice. Mr Witehira was deprived by counsel’s view of the law from advancing a defence that was more likely to result in the jury not being satisfied that the Crown had proved its case beyond reasonable doubt.
We consider the conviction to be unsafe and we set it aside.
That raises the question of whether a new trial should be ordered. We have concluded that it would be unjust to require Mr Witehira to face a new trial.
While acknowledging that it is entirely possible that the jury would convict him even after he gave evidence advancing the defence as set out in his statement, we think the likely sentence to be imposed on the basis of the complainant’s allegation would be approximately that which Mr Witehira had effectively served. Mr Witehira had effectively spent 40 days in custody and the Crown would have to proceed at a retrial on the basis that there was either minor contact at most or threats only. On that basis we do not think any further penalty would be appropriate upon a second conviction. We are reinforced in that view by reference to the offending having occurred in October 2010, with the parties having long since ended their relationship and there being no evidence of Mr Witehira having offended in the meantime. Quite properly, Mr Hamlin conceded these points on behalf of the Crown.
In the circumstances, we quash the conviction of assault using a motor vehicle as a weapon and decline to direct a retrial.
As a result of our findings on Mr Witehira’s conviction appeal, there is no need for us to consider his sentence appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
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