Wrench v The the King
[2022] NZCA 563
•17 November 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA261/2022 [2022] NZCA 563 |
| BETWEEN | DANIEL LUKE WRENCH |
| AND | THE KING |
| Hearing: | 27 October 2022 |
Court: | Brown, Mallon and Downs JJ |
Counsel: | Appellant in person |
Judgment: | 17 November 2022 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Downs J)
Introduction
Daniel Wrench was found guilty by a jury of two charges of assault with intent to injure and one of strangulation. He was found not guilty of a third charge of assault with intent to injure. Each of the assault (with intent to injure) charges concerned a headbutt. Mr Wrench had the benefit of legal representation at trial. He appeals against conviction and now self-represents.
Background
Mr Wrench has a manufacturing business. He lives at the property with his wife, Elizabeth Fox. Mr Wrench employed the complainant, Kane Boyce, in his business. Mr Boyce lived at the property as well, in a small, detached unit rented from Mr Wrench.
Work tensions developed between Mr Wrench and Mr Boyce. It is not necessary to elaborate. Eventually, Mr Wrench dismissed Mr Boyce. However, by agreement, Mr Boyce continued to live in the unit.
On 12 February 2021, Mr Boyce and his partner, Taylor Carnachan, went out drinking. Mr Boyce became intoxicated; Ms Carnachan did not (she was driving). When Mr Boyce and Ms Carnachan returned to the unit, Mr Wrench and Ms Fox went to see them. Mr Boyce told Mr Wrench to “get the fuck out” and an argument developed. What happened thereafter formed the basis for all of the charges. In brief, Mr Boyce said:
(a)Mr Wrench headbutted him to the face. The two men then grabbed each other.
(b)Mr Wrench then squeezed his neck, choking him. Mr Boyce said he struggled to breathe.
(c)He pushed Mr Wrench away. Mr Wrench headbutted him a second time, again to the face.
(d)He later removed a decorative wooden axe from the wall to “scare … off” Mr Wrench, but did not use it to strike him. Mr Wrench then headbutted him a third time.
Ms Carnachan said she saw Mr Wrench headbutt Mr Boyce, then strangle him “for a good two minutes”. Ms Carnachan did not see a second or third headbutt but did see Mr Boyce later holding the axe.
Ms Fox called 111 during the incident, at 10.38 pm, but the call was terminated. Ms Carnachan also called 111 at 10.41 pm. She and Mr Boyce each spoke to the operator. The operator then called back at 10.43 pm, and Mr Wrench spoke briefly to him or her. All of the calls were placed in evidence with transcripts:
(a)Mr Boyce said Mr Wrench had headbutted him three times but did not refer to being choked by him.
(b)Ms Carnachan described the incident as a fight and as a brawl, which began after Mr Wrench “came over and started abusing [Mr Boyce]”. Ms Carnachan said Mr Boyce had been “punched in the face”. At trial, Ms Carnachan said she was distressed during the call, and focussed on getting help. She said she did not appreciate the content of the call would be important.
(c)Mr Wrench said Mr Boyce and Ms Carnachan “got … irate” with him but there was “no, not actually a fight”. Mr Wrench reiterated, “there’s no physical fighting”.
Constables Isaac Watts and Matthew Hyde arrived at the property at 10.52 pm. Constable Watts noted Mr Boyce was injured and there was “blood splatter in the scene”. Constable Hyde described Mr Boyce as “very emotional” and “very upset”; “you could see he was agitated but also almost on the verge of tears”. The officer said Mr Boyce had “a lot of blood around his nose and mouth”. Associated photographs show injuries to Mr Boyce’s face, body, and hands.
Constable Hyde arrested Mr Wrench. Mr Wrench said he had been struck with an axe and wanted “them trespassed”. He otherwise remained silent. Constable Hyde noted Mr Wrench had a cut and blood on his forehead. Associated photographs show both, as well as injuries to Mr Wrench’s body and hands.
Sergeant Zak Exler arrived at 11.15 pm. Ms Fox asked to show him an axe used by Mr Boyce, and the two approached the unit rented by Mr Boyce. Mr Boyce came out, and she and he hugged. Ms Fox asked Mr Boyce, “why did you hit him with the axe?”. Mr Boyce replied, “I didn’t hit him, I just held it up hoping it would scare him to leave and I dropped it when he came at me”. Ms Fox replied, “Oh, I couldn’t see because I was outside”. The two again hugged. Mr Boyce then said Mr Wrench needed to be held accountable. An argument developed between Mr Boyce and Ms Fox, and Sergeant Exler intervened.
As observed, Constable Watts noted blood splatter. No forensic examination was conducted for DNA.
The Crown did not call Ms Fox as a witness. Mr Wrench did not give or call evidence.
Mr Couchman, Mr Wrench’s lawyer, primarily defended the case on the basis the charges had not been proved to the criminal standard. Mr Couchman cross‑examined Mr Boyce and Ms Carnachan extensively. In cross-examination, and later in closing, Mr Couchman highlighted discrepancies between:
(a)The evidence of Mr Boyce and that of Ms Carnachan.
(b)What Mr Boyce said to police, and what he said at trial.
(c)What each witness said to the 111 operator and later said about the incident, whether to police, in evidence, or both.
Mr Couchman argued the discrepancies meant the jury could not be sure of Mr Wrench’s guilt. Similarly, Mr Couchman argued Mr Boyce’s and Ms Carnachan’s evidence was affected by collusion, and therefore unreliable. Each acknowledged having spoken to the other before making a police statement. Before trial, police emailed Mr Boyce his statement and Ms Carnachan’s. Mr Boyce forwarded the email to Ms Carnachan, and she read both statements.
Mr Couchman also referred to the possibility that Mr Wrench was acting in self-defence once Mr Boyce removed the ornamental axe from the wall. On Mr Boyce’s narrative, this occurred before the third headbutt but after all of Mr Wrench’s other violence.
Judge Lummis left the defence of self-defence to the jury in relation to the third headbutt.
Mr Wrench was found guilty of the charges in relation to the first and second headbutts, and the strangulation charge. He was found not guilty of the charge in relation to the third headbutt.
Unreasonable verdicts?
An appellate court must allow a conviction appeal if, having regard to the evidence, the jury’s verdict was unreasonable.[1] Mr Wrench argues the three guilty verdicts are so.
[1]Criminal Procedure Act 2011, s 232(2)(a).
Applicable principle is governed by the Supreme Court’s decision in R v Owen.[2] A verdict will be unreasonable if, given all of the evidence, a jury acting reasonably should have had a reasonable doubt about the defendant’s guilt. In determining whether this is so, an appellate court must give appropriate weight to the advantages possessed by the jury in deciding the case, for example, assessment of the honesty and reliability of a witness’s testimony. Assessment of weight afforded to individual pieces of evidence is a jury function, and reasonable minds may disagree on matters of fact. The body charged with fact-finding is the jury. Appellate courts should not lightly interfere in this area. The appeal court is not conducting a retrial on the written record. An appellant must articulate clearly in what respect the verdict is said to be unreasonable and why, after making proper allowance for the points above, the verdict should nevertheless be set aside.[3]
[2]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.
[3]At [13]–[15], confirming this Court’s approach in R v Munro [2007] NZCA 510, [2008] NZLR 87 at [86]–[87].
Mr Wrench contends the guilty verdicts are unreasonable because Mr Boyce and Ms Carnachan were not credible or reliable witnesses. Mr Wrench emphasises the discrepancies identified at trial by Mr Couchman. We give five examples:
(a)Mr Boyce said in his statement that Mr Wrench administered the second headbutt inside the unit, as he was trying to shove Mr Wrench out the door. In evidence, Mr Boyce said this occurred either outside or in the doorway to the unit. In re-examination, he said the same thing, adding, “I’m not too specific on where exactly it happened but [I] definitely got headbutted three times in the face”.
(b)Mr Boyce said in his statement that Mr Wrench administered the third headbutt inside the unit, and Mr Wrench then dragged him outside over the steps. In evidence, Mr Boyce said this headbutt occurred outside, on the front step to the unit.
(c)Mr Boyce said Mr Wrench headbutted him three times. Ms Carnachan saw only one.
(d)Ms Carnachan did not refer to Mr Boyce being strangled or headbutted by Mr Wrench during her conversation with the 111 operator.
(e)Mr Boyce did not refer to being strangled by Mr Wrench during his conversation with the 111 operator.
Mr Wrench also emphasises the “collusion” between Mr Boyce and Ms Carnachan, given each spoke to the other before making a statement and Ms Carnachan’s acknowledgment that she read Mr Boyce’s statement before trial.
We make five points.
First, when an appellant advances discrepancies in the prosecution’s evidence as Mr Wrench does, the question is “whether, notwithstanding the advantage the jury had in assessing credibility, the discrepancies … are such that no reasonable jury could have been satisfied to the required standard”.[4]
[4]Roberts v R [2016] NZCA 578 at [22].
Second, there are difficulties with this question being answered in Mr Wrench’s favour. Mr Boyce consistently said Mr Wrench headbutted him three times, including to the 111 operator at the time of the incident. Mr Boyce was similarly consistent that he took the decorative axe from the wall but did not use it to strike Mr Wrench. Mr Boyce was visibly injured when police arrived and “very upset”. He was adamant to Ms Fox, at the scene, that Mr Wrench needed to be held accountable. In short, Mr Boyce’s evidence, conduct at the scene and appearance supported the proposition that Mr Wrench repeatedly headbutted him.
Mr Boyce did not tell the 111 operator that Mr Wrench had choked or strangled him. However, Mr Boyce did tell police this and, of course, told the jury in his evidence. Ms Carnachan said she saw Mr Wrench strangle Mr Boyce “for a good two minutes”. Ms Carnachan was not shaken in relation to this aspect in cross‑examination. It follows Mr Boyce’s testimony in relation to the strangulation charge was directly supported by that of another witness.
Third, while alleged collusion could arguably explain this aspect, that possibility is undercut by the obvious differences between Mr Boyce’s and Ms Carnachan’s evidence. Furthermore, Mr Boyce said his evidence was based on his recollection of events, and Ms Carnachan denied changing hers to accord with Mr Boyce’s. Differences between the two accounts supported these contentions and the allied conclusion that collusion was not a material feature of the case.
Fourth, the discrepancies relied on by Mr Wrench are largely matters of detail. They primarily concern where, exactly, each event occurred (inside the doorway to the unit, outside the doorway to the unit, and so on), or the precise sequence of events. Given the nature of the incident, it was open to the jury to conclude the discrepancies did not significantly detract from the credibility or reliability of Mr Boyce or Ms Carnachan.
Fifth, Mr Wrench’s analysis goes to the very heart of the jury’s function — assessment of credibility and reliability — and invites a different outcome on the written record. Relatedly, all of the points Mr Wrench makes were advanced to the jury by his lawyer, Mr Couchman, during cross-examination, in his closing address to the jury, or both. As Mr Davie on behalf of the Crown observes, the case is therefore indistinguishable from many before this Court in which a contention of an unreasonable verdict has been rejected:
(a)R v Wood:[5] “Counsel took us through the case in detail. It depended entirely on the jury’s assessment of the credibility of the complainant and the accused’s witnesses. There were inconsistencies and discrepancies and the Judge commented on them in his summing up which cannot be faulted. In the end it was a matter for the jury …”.
(b)Abdi v R:[6] “We accept there were some discrepancies in the evidence but these matters were all before the jury. In the end, they did not avail Mr Abdi. We are not taken to the point where we could conclude that no reasonable jury could convict on the evidence presented.”
(c)Diack v R:[7] “Despite the inconsistencies highlighted by [counsel for the appellant], which are not uncommon in cases of this nature, the jury was satisfied that [the complainant]’s evidence was reliable and credible and we are satisfied there is no arguable basis for us to interfere.”
(d)R v Kino:[8] “As a subsidiary ground [counsel for the appellant] argued that the verdicts of guilty were unreasonable and not supported by the evidence. There were as he pointed out a number of inconsistencies in [the complainant’s] evidence. However, they all came down to matters of credibility, which were for the jury to assess. This ground cannot succeed either. Accordingly, [the appellant]’s appeal is dismissed.”
(e)R v Puckey:[9] “To make the point the cross-examination of [one Crown witness] ran to 32 pages of the notes of evidence and of [another Crown witness] to some 20 pages. The jury was well able to assess the credibility of those witnesses and we cannot possibly say that inconsistencies and contradictions in the evidence were such as to render the verdict unreasonable and unsupported by the evidence.”
[5]R v Wood [1989] 2 NZLR 303 (CA) at 305.
[6]Abdi v R [2014] NZCA 302 at [14].
[7]Diack v R [2010] NZCA 137 at [27].
[8]R v Kino [1997] 3 NZLR 24 (CA) at 27.
[9]R v Puckey CA177/94, 18 July 1995 at 8–9.
We are satisfied the jury’s verdicts are not unreasonable for these reasons. In short, the case turned on the jury’s assessment of the credibility and reliability of the evidence of Mr Boyce and Ms Carnachan. Indeed, that was the point of the trial. It was open to the jury to accept the material aspects of their evidence.
A miscarriage of justice?
The Judge left the defence of self-defence to the jury in relation to the final headbutt.[10] Mr Wrench contends the defence should have been left in relation to every headbutt. Mr Wrench, therefore, contends a miscarriage of justice has occurred, meaning an error, irregularity, or occurrence that created a real risk that the trial’s outcome was affected.[11]
[10]Self-defence is governed by s 48(1) of the Crimes Act 1961, which reads:
(1) Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
[11]Criminal Procedure Act, s 232(2)(c) and (4).
Mr Wrench did not give or call evidence, make a statement to police,[12] or, through Mr Couchman, make an opening statement of issues to the jury.[13] His case at trial must, therefore, be discerned from Mr Couchman’s cross-examination of Mr Boyce and Ms Carnachan, and from Mr Couchman’s closing address.
[12]Beyond saying he had been struck with an axe and wanted “them trespassed”. Mr Wrench told the 111 operator, “there’s no physical fighting”.
[13]Criminal Procedure Act, s 107(2).
Mr Couchman put this series of questions to Mr Boyce about the incident:
Q.Because the way I’m saying it is that you punched him first and that’s what started the whole thing?
A.Well if I punched him, king hit him, where’s the evidence on my hands? ‘Cos you can see there’s like light little scrape marks that if I king hit him, as you would know as a lawyer, any sort of king hit produce[s] quite a decent amount of damage on the hands.
Q. Does it? I didn’t know that.
A. (inaudible 16:46:53) king hit him then I’m standing right next to him.
Q. So you deny that proposition? That you hit him?
A. I deny (inaudible 16:46:59).
Q. When he wasn’t looking, or turning, actually, and you hit him –
A. What is it? Was he standing next to me or was he turning?
Q. He was walking in, you were just to his right, and then as he was going in he started to turn and then you smacked him, right in the side of the head?
A. No. Where’s the (inaudible 16:47:18) side of his head then?
Q. You do accept that you then proceeded to get engaged in a fight which involved wrestling, grappling, ending up on the ground? You recall all that?
A. Yes.
Q. And then what happened, I suggest to you, is that at some point you were both, got to your feet, right?
A. Yep.
Q. Taylor, I suggest to you, was probably outside watching? As was Liz?
A. (inaudible 16:47:47).
Q. And then what happened is that you grabbed that ornamental axe that we can see on the couch?
A. No.
Q. And you proceeded to come towards the defendant holding that above your head, didn’t you?
A.At the end of it, yeah. And not holding it above my head, I had it next to me.
Q. Well you held it up, I suggest to you, and you brought it down on top of the forehead or the head region of the defendant?
A. No.
Q. And he then grabbed you and headbutted you back into the studio where you stumbled backwards, you either fell or came close to, do you recall that?
A. No.
Q. And then he backed out of the studio and that’s when Liz was there and he left? You recall that?
A. No.
Q. Well that, I suggest to you, is the sequence of events and against that background, or backdrop, we’ll have a look at your – the 111 call shall we?
A. Yeah.
Mr Couchman later repeated much the same questions:
Q. You I suggest then smacked the, or punched the defendant in the side of the head, around about the temple area, with your fist, but you deny that?
A. Yes.
Q. You say yesterday that one of the reasons you were able to say or deny it, is because you had no mark on your knuckle, knuckles?
A. It didn’t happen.
Q. What happened, I suggest, is that you then, or the defendant rather grabbed hold of you by the chest area with both hands and swirled you around into the unit, where you ended up against that wall, that internal wall where we can see some shoes at the base of it, correct?
A. No.
Q. And then from there, you two proceeded to get involved in what essentially could be called a fight?
A. No.
Q. And by a fight, I mean there were punches being thrown, do you agree?
A. No.
Q. Did you hear your partner talk to the 111 operator, when you were –
A. Sequence of events you’re saying but she (inaudible 12:22:20).
Q. Are you aware or do you know whether she described or told the operator about punches being thrown?
A. She did.
Q. Yes, yelling and punches, that’s all that was mentioned, do you recall that?
A. (inaudible 12:22:35)
Q. But in any event, there was wrestling, you two ended up on the ground inside the unit?
A. No.
Q. More wrestling, punching, grappling, do you accept that?
A. No.
Q. Basically it’s just a continuation of a fight?
A. No.
Q. Do you recall the women, both women being present, yelling out for you guys to stop, to break it up?
A. No.
Q. You don’t recall the defendant saying to his partner: “Ring the police,”?
A. No.
Q. What you do recall is you saying to your partner: “Ring the police,”?
A. Yes.
Q. At some point you and the defendant were both on your feet, inside the apartment?
A. Yes.
Q. And you at some stage grabbed an axe, the ornamental axe that we’ve been shown in the photo?
A. Yeah.
Q. And that you held that axe above your head, looking and facing the defendant?
A. Yes.
Q. And then you brought that axe down on top of the defendant’s head, causing an injury?
A. No.
Q. And when you saw blood on him, you knew that blood was not from you, you knew it was from the injury you probably inflicted?
A. No.
Mr Couchman put these questions to Ms Carnachan about the incident:
Q. And I’m suggesting to you that there was an altercation on the porch on the outside area of the ranch slider door, between Kane and the defendant, you say no? This is –
A. At the start?
Q. – at the beginning?
A. No.
Q. And I’m saying that you might not have been able to see it from where you were positioned but did you see a punch being thrown by Kane towards the defendant?
A. By Kane towards the defendant?
Q. Yes.
A. No.
Q. Did you see the defendant and Kane enter from the outside area through the ranch slider whereby Kane is up against that wall that we can see in the photographs, that inside internal wall?
A. No. Me and Kane entered the property by ourselves. And then Lizzy and Dan entered.
Q. And I’m suggesting to you that there was an altercation between the defendant and Kane and that resulted in both men coming inside the ranch slider with Kane being against that wall, the defendant having his back to the ranch slider and they were facing each other?
A. No.
Q. And then I’m suggesting to you that what happened from that moment onwards was a fight between these two men involving lots of yelling and lots of punching?
A. No.
Q. And then at some point they fell to the ground, that was inside the flat?
A. No.
Q. Do you accept that at some point they fell to the ground inside the flat?
A. Not them two. Kane’s standing. And Daniel fell outside. Not inside.
Q. And at some point Kane was inside the property facing the ranch slider and he had this axe in his hand?
A. Yes.
Q. And I’m suggesting to you that the defendant was slightly into the property with the ranch slider [more] or less immediately behind him, were they in that position at some point?
A. No.
Q. You know the position when you say the Kane put the axe down?
A. Yes.
Q. You’re saying he put that down without having struck anybody with it before?
A. Yes.
Q. When he had that, before he put it down, was he facing the ranch slider?
A. Yes.
Q. And he would’ve been facing the defendant?
A. Yes.
Q. Did you see him or where were you positioned at that moment? In the bedroom or in the lounge?
A. In the bedroom.
Q. So that was – the axe incident, if I can call it that, was towards the end of the altercation, wasn’t it? That was one of the last things to happen?
A. Yes.
Q. And you saw Kane lift up that axe and strike the defendant?
A. No.
Q. On the head?
A. No.
In closing to the jury, Mr Couchman raised self-defence only in relation to the third headbutt:
I suggest to you that he wouldn’t have put it down and you can have a real doubt about whether he put that axe down. I suggest to you that you might well think that he didn’t put it down but he kept it in his hand, and that we also know from Taylor that she describes the same incident, doesn’t she? “The defendant is outside” she says in her police statement, again, the Crown will be relying on her statement that she gave at the time at the police station, not what she said subsequently, and she describes again, we’ve got this situation where the decorative axe is hanging on the wall, and that her partner Kane grabs it. He is told apparently to put it down, and he puts it down and then is attacked. Members of the jury if you have a doubt about whether he put that thing down then what you’ve got in that matter is a person at the end of a fight, the end stages of a fight, when they’d been tussling, grappling, rolling around, punching according to Taylor’s evidence. You’ve got this fighting going on and then you have a man with an axe and then if a person has an axe in that situation and they are in your immediate vicinity, the law provides that you can act with self-defence, and you can do what we call pre‑emptive, you can act pre-emptively. If you apprehend that somebody has the means to hit you with something, and that you’ve been fighting, and you think that they could well hit you, the circumstances look like that’s what’s going to happen, you don’t have to wait until you get hit to act, you can get in first.
Mr Couchman went on to say:
But the law says that the force that you use has got to be commensurate, it’s got to be proportional to the threat. The law doesn’t say that if somebody pushes you that you can then crack somebody with an axe in self-defence, it’s got to be reasonable. The force you use has got to be reasonable and proportional to the threat that you perceive or to the assault that you incurred. So, all I’m simply saying is that if you find that there was a striking of the axe on the defendant as by the injury that wasn’t necessarily caused by a headbutt, then you can find that that in that situation self-defence is very much a live issue, but even if it’s not, the injury is not connected to an axe I suggest to you, you’ve got to think of it from a pre-emptive point of view. If somebody is in close proximity to you, you’ve been fighting, they’ve got an axe, they’re as I say within striking distance, you don’t have to wait members of the jury to be hit with it before you pre-emptively strike back, the law says, providing that is proportional, and a headbutt if delivered in that situation is proportional to being struck on the head or thinking potentially that you will be struck.
So, Mr Wrench’s case was that:
(a)He did not administer the first or second headbutts alleged by Mr Boyce. Simply put, these did not happen. Rather, Mr Boyce initiated the violence by punching him with a “king hit”. (Mr Boyce denied this. So too Ms Carnahcan.)
(b)After the contested king hit, Mr Wrench and Mr Boyce were grappling on the ground, fighting, or both.
(c)He did not strangle or choke Mr Boyce. (Mr Boyce and Ms Carnachan said otherwise.)
(d)Toward the end of the incident, Mr Boyce got the decorative axe from the wall and struck Mr Wrench to the head with it. (Mr Boyce and Ms Carnachan said Mr Boyce had the axe but did not use it to strike Mr Wrench.)
(e)He headbutted Mr Boyce (once), but in response to being hit on the head with the decorative axe.
Self-defence is left to a jury only when there is a credible or plausible narrative in the evidence to support the defence.[14] Because Mr Wrench did not testify or make a police statement, that narrative had to arise from the evidence of Mr Boyce or Ms Carnachan for the defence to be left to the jury. Their evidence did not support a credible narrative of self-defence other than from when Mr Boyce took the decorative axe from the wall, for, on the defence case as put in cross-examination, Mr Wrench headbutted Mr Boyce only after Mr Boyce had the axe, and on the evidence, this occurred immediately before the third headbutt.
[14]Simon France (ed) Adams on Criminal Law – Offences and Defences (online ed, Thomson Reuters) at [CA48.17].
Explained another way, Mr Wrench’s case was that the first and second headbutts did not happen. The defence of self-defence arises only in response to, or in anticipation of, the application of force by another person to the defendant. Mr Wrench could not defend himself against force which, on his case, was neither applied nor threatened by another person.
Mr Wrench’s contention of the defence being available earlier imagines a different trial, in which an alternative sequence was put to and accepted by Mr Boyce or Ms Carnachan. The Judge, however, was required to address self-defence in the context of the evidence as actually given.
Mr Wrench also contends the question trail wrongly presupposed the existence of three headbutts. We see nothing in this point. The Judge emphasised when summing up that the “sole responsibility to decide all questions of fact” lay with the jury. The question trail made it clear that the Crown had to prove that each headbutt occurred, and the Judge made the same point throughout the summing up. The Judge also reminded the jury that Mr Wrench’s case was that the first and second headbutts did not occur, and as discussed, that the defence of self-defence was advanced in relation to the third. We also add the obvious point that the question trail had to refer to three headbutts, as each headbutt was the subject of a charge.
This leaves a related contention. Mr Wrench contends the Judge unfairly cut across his case when summing up in relation to the final headbutt. We italicise the sentence of concern to Mr Wrench:
[35] Then we finally have a final count of assault with intent to injure and this is the final occasion of the final headbutt. I think everybody agrees that the final headbutt is the headbutt that took place outside, although whether that was on the porch or on the gravel you might be less certain about but it does seem that it was out of the house. That is the first thing that you need to be sure about, again, is that Mr Wrench intentionally headbutted Mr Boyce the third time outside of that house. If no, if you are not sure about that, then again it is not guilty. If you are sure then you move on to the second question.
[36] Now it is very similar to the first two charges that we have been looking at but here the narrative is a little bit different because at this point, I can see you looking at me going: “What’s different?” it is to do with the wooden axe, that decorative axe has come into play around this time. Now there is some confusion on the evidence as to when exactly that has come into play and that is going to be a matter that you are going to have to work through and work out what you are sure has happened. The defence accepts or seems to accept that the final headbutt did occur, there has not really been any suggestion that that was made up or did not occur. But the suggestion is it was in response to the threat of the axe, so that is something you are going to have to grapple with. When did the axe come into play, what was going on with the axe, what did Mr Boyce do with the axe, how long did he hold the axe, how close was he to Mr Wrench at that time, those are all things that you might be needing to consider at this point. Because the axe is in play, it is accepted that the issue of self-defence comes into play for this last charge, so you will see I have written a little bit there about self-defence and the questions here are a little bit different to what we have for questions 1 and 2.
Mr Wrench says it was not accepted at trial the third headbutt was administered outside the unit; it is possible it occurred inside the unit. Mr Wrench contends this unfairly undermined his case.
We see nothing in this point either. First, Mr Couchman’s cross-examination of Mr Boyce — as to which see [31] above — implied that Mr Wrench acknowledged headbutting Mr Boyce outside the unit.[15] Second, Mr Boyce’s evidence was that this occurred outside the unit, and to the extent this differed from his police statement, the Judge’s observation did not undermine the challenge to his credibility and reliability.[16] Third, whether the headbutt occurred inside or outside the unit did not affect the availability of the defence of self-defence. Fourth, Mr Couchman did not raise any concern with the Judge about this aspect of the summing up, and Mr Wrench makes no complaint about Mr Couchman’s competence. Fifth, and perhaps most importantly, Mr Wrench was found not guilty of this charge.
Result
[15]Mr Couchman’s later cross-examination, as to which see [32] above, is equivocal as to where the third headbutt occurred.
[16]Mr Boyce told police that Mr Wrench administered the third headbutt inside the unit, and Mr Wrench then dragged him outside over the steps.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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