R v T CA547/95 [1996] NZCA 271 (8 May 1996)

Last Updated: 12 February 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.547/95}

THE QUEEN

v

_T

Coram: Gault J McKay J Keith J

_{Judgment: 8 May 1996 (ex parte)}

_{JUDGMENT OF THE COURT DELIVERED BY GAULT J}

The appellant was convicted by a jury of being a male assaulting a female. He was sentenced to three months periodic detention as well as six months supervision with the special condition that he attend counselling for anger management. He appeals both the conviction and his sentence and has filed written submissions after having been refused legal aid.

The appellant and the complainant are married but have been separated since April 1993. The complainant has custody of their three children but the appellant has visitation rights. On 17 December 1994 the appellant arrived at the complainant’s house to collect the children and sent his daughter (by another relationship) into the house for them. The appellant remained in his car. The complainant was not expecting the appellant to arrive so the children were not ready to leave. During the rush to ready the children the complainant sent the appellant’s daughter back to the car to tell the appellant that the youngest child did not have any good shoes to wear. The appellant then entered the house and, according to the Crown case, confronted

the complainant, swearing at her and demanding to be told what was happening. The complainant suggested letting the child go bare-foot or buying some cheap shoes for him. The appellant then punched the complainant in the face with a closed fist which knocked the complainant backwards. He then hit the complainant several times and continued with the verbal abuse. The complainant was backed up against a wall and the appellant began to kick her and hit her about the head and chest. The complainant curled herself up in an attempt to protect herself but the kicking continued. The complainant yelled to one of her friends who were present to call the Police at which point the appellant ceased the attack and the complainant was able to escape. She received bruises about her head, arms and legs as a result of the attack.

The appeal against conviction is based on three grounds. In the first the appellant suggests that the complainant consented to what occurred and that there was therefore no assault. He described it in his evidence as grappling and now refers to it as “a consensual fight”. He complains that the trial Judge refused to direct the jury that his honest belief in consent was the determining factor in this defence and that evidence as to the relationship between himself and the complainant was therefore relevant. This ground of appeal is dismissed without hesitation. The evidence of three prosecution witnesses clearly supported the jury’s decision that the complainant was not consenting as she was hit and kicked by the appellant. Indeed, it would be surprising for the jury to have held otherwise unless they had disbelieved all of the prosecution evidence in favour of the appellant’s evidence. Insofar as the jury did not do so this is clearly a matter of credibility and is not the proper province of this Court. In fact, even if the jury had believed the appellant’s version of events there was still no suggestion in the appellant’s evidence that he honestly believed that the complainant was consenting to an attack. His evidence was that he did not punch or kick her.

The appellant has also argued that his honest belief in the circumstances was relevant, and ought to have been put before the jury as part of the defence of self

defence. However, this was not a situation which could in any sense have been described as one of self defence. Indeed the Judge in his summing-up records that defence counsel did not rely on it and so the Judge was also correct to direct the jury that self defence was not relevant.

The appellant’s second ground of appeal is that the trial Judge was prejudiced against the appellant and that this prejudice was obvious to the jury and improperly influenced their decision to convict. He bases this allegation upon the fact that during the trial preceding the appellant’s the Judge called a mediation conference after which the defendant pleaded guilty whereupon he was discharged without conviction. The trial Judge who presided over that trial was the same Judge as in the appellant’s trial and three of the jurors also sat on both cases. This argument is without substance. It is hardly surprising that the Judge did not call a mediation conference in the circumstances of the appellant’s trial where the appellant contested the charge and argued that the complainant had consented to being kicked and beaten.

The appellant also argues under this ground that the Judge was incorrect to direct the jury to consider the manner in which he gave evidence as well as the evidence which he had given. The appellant had been swivelling in his chair whilst giving his evidence and argues that it was improperly prejudicial for the Judge to direct the jury on this aspect of the trial. This argument is again without substance. The Judge’s direction was legally correct and entirely justified in the circumstances.

The appellant’s third ground of appeal against conviction is that the trial Judge misdirected the jury on the onus of proof in respect of his defence of consent. In particular, he argues that the consent suggestion could have justified an acquittal if it caused the jury to harbour a reasonable doubt about the prosecution case even although the jury remained unsure about the accuracy of the appellant’s version of events. The Judge directed the jury that it could only consider consent in this case if it believed the appellant’s version of events and rejected the evidence of the

prosecution witnesses. In the circumstances of this case that was an entirely proper direction. The onus on the Crown to disprove consent only arises if there is evidence from which consent can reasonably be inferred. In this particular case the only way in which there could possibly have been evidential support for an argument of consent would have been if the jury had wholly believed the appellant’s version of events (and even then he did not claim belief in consent). In any event, the factual implausibility of the appellant’s evidence indicates that no miscarriage of justice could have arisen from the directions given.

The appeal against conviction being totally without merit, it is dismissed.

The appellant also appeals against his sentence on the grounds that it was manifestly excessive. The appellant believes that he ought to have been discharged without conviction as was the defendant in the trial immediately preceding his own.

Sentencing, and particularly the decision to discharge without conviction, is a matter dependant upon the particular facts of each individual case. In the circumstances of this case it would not have been appropriate to have discharged without conviction and the sentencing Judge did not err in refusing to so do. The fact that a discharge without conviction was considered appropriate in the case heard immediately before the appellant’s is totally irrelevant to that determination. The sentences of three months periodic detention and six months supervision which were imposed were entirely appropriate in the circumstances of this case and we see no reason to interfere with the Judge’s proper exercise of discretion.

The appeal against sentence is therefore also dismissed.