THE QUEEN v ANDREW DAVID WORDEN [1999] NZCA 107 (8 July 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca111/99

THE QUEEN

V

ANDREW DAVID WORDEN

Hearing:	29 June 1999
Coram:	Keith J Tipping J Gallen J
Appearances:	R J Stevens for Appellant C L Mander for Crown
Judgment:	8 July 1999

judgment of the court DELIVERED BY TIPPING j

Introduction

[1] The appellant, Mr Worden, was found guilty in the High Court at Wellington of causing grievous bodily harm with intent to cause grievous bodily harm under s 188(1) of the Crimes Act 1961.He was sentenced to five years imprisonment, and appeals against both conviction and sentence.

[2] In March 1998, the appellant was staying in a backpackers' hostel in Wellington.The complainant, Mr Nomura, was a Japanese man travelling around New Zealand.He and a companion, Mr Yamamoto, arrived at the hostel at about 11.00pm in the evening and were allocated bunks in the room in which Mr Worden was residing.They deposited their luggage in the room and went downstairs for a meal.At around 2.00am, Mr Nomura and his companion returned to the room.Mr Nomura turned on the light, and then switched it off when he realised that Mr Worden was there.The two Japanese men then went to bed.Mr Nomura awoke at approximately 6.00am the following morning, disturbed by Mr Worden looking through luggage at the foot of the bed.He realised that Mr Worden was not interfering with his belongings and went back to sleep. The Crown case was that at approximately 7.00am, Mr Worden went downstairs to the kitchen, where he boiled a pot of water.He then returned to the room upstairs and threw the pot of hot water over Mr Nomura, who was asleep.Having told Mr Nomura to "get out of here" Mr Worden was seen leaving the hostel.

[3] Mr Nomura suffered severe burns to his face, neck, left arm and back, which required skin grafts, a three week stay in hospital and continued treatment on his return to Japan.He also suffered a perforated ear drum.While these injuries are healing well, recovery is not complete and they have obviously caused on going pain to Mr Nomura, as well as disrupting his travel.The damage to his ear drum also means that he will be unable to fly for some time.

[4] Mr Worden, who gave evidence, denied assaulting Mr Nomura, claiming instead that the attack had been perpetrated by two Asian men with whom he had spoken briefly in the hostel kitchen on the morning of the attack.These two men, Mr Worden claimed, had gang affiliations and attacked Mr Nomura on the basis of an unpaid debt.Clearly this defence was rejected by the jury.

[5] The Crown case included identification evidence by Mr Nomura, his companion Mr Yamamoto and Mr Payne, the other occupant of the room.These three witnesses identified Mr Worden as the man who poured hot water over Mr Nomura. There was also evidence by others at the hostel who saw a person matching Mr Worden's description in a passage near the room at the time of the offence and leaving the hostel shortly after.After the incident, another resident in the hostel went to Mr Nomura's assistance.Mr Worden was not then in the room, but Mr Nomura pointed to Mr Worden's bunk in what the other man took to be an indication that the occupant of that bunk was Mr Nomura's assailant.

Appellant's case

[6] Counsel made a number of submissions in support of the appeal against conviction.It was argued that the Judge failed to direct the jury adequately or misdirected the jury on a number of evidential issues.Firstly, it was submitted that the direction given by the Judge on the issue of identification evidence did not satisfy the requirements of s 344D of the Crimes Act.As the Crown case was based significantly on identification of Mr Worden by various witnesses, a stronger direction is said to have been required.It was also said that the Judge should have included a special caution about "dock identification", in particular as both Japanese witnesses acknowledged some difficulty in identifying Europeans and the events had taken place very quickly.It was also suggested the Judge undermined or inaccurately summarised the defence case on certain identification issues.

[7] Secondly, it was argued that the Judge gave no real guidance on the standard of proof to be applied, and that the direction given seemed to indicate a lower standard than in fact applied.Thirdly, the Judge's direction on prior inconsistent statements was challenged, on the basis that the Judge had invited the jury to ignore prior inconsistent statements made by the witnesses unless their credibility was undermined.The defence case was not based on the truthfulness of the witnesses, but rather on the fact that there was scope for mistake in identifying Mr Nomura's assailant.It was submitted that the Judge's summing up on this point undermined Mr Worden's defence by shifting the focus from reliability to credibility.Fourthly, the appellant contended that the Judge misdirected the jury on the proper approach to evidence given by the accused.It was argued that the Judge's direction was such that the jury would assume that if it did not believe the evidence of the accused, the Crown's case, being uncontradicted, should be accepted.

[8] Mr Stevens also submitted that the Judge's summing up failed to put the defence case properly, that it lacked balance and that he commented inappropriately on the appellant's evidence. In summary, it was contended that the Judge misrepresented the defence case, that his directions to the jury undermined key elements of the defence, and that the Judge's comments to the jury on Mr Worden's evidence suggested it was less than credible.

[9] Although not mentioned in the appellant's grounds of appeal or in Mr Stevens' written submissions it was contended at the hearing that the Judge has erred in not directing the jury on the general topic of lies.The basis of that submission will be outlined later.

[10] In respect of the appeal against sentence, it was submitted that the sentence of five years imprisonment was manifestly excessive.Counsel argued that the Judge gave too much weight to the nature of the assault and its direct consequences.It is also contended that the Judge did not give sufficient weight to the role the Mr Worden's psychiatric condition may have played in his actions.Counsel submitted that the Judge did not take sufficient account of Mr Worden's personal circumstances and the particular circumstances of the offence.

Discussion of grounds

[11] We have set out the various points raised by the appellant in some detail and have considered them all.We have also considered the Crown's response, which we will not separately identify because it is inherent in what follows. We are unable to see any flaw in the Judge's direction required under section 344D of the Crimes Act 1961.The section itself indicates no particular form of words is required.It refers to the possibility of a witness being mistaken.There can therefore be no complaint about the Judge's use of the concept of possibility of mistake in his explanation of the need for a warning. We regard the appellant's criticisms of the summing up on this point as being semantic rather than of substance.We have no doubt that the jury would have appreciated the force and purpose of the warning from what the Judge said.He clearly covered the essential matters as required by the section.

[12] Similarly we are unable to see anything wrong with the Judge's approach to the question of dock identification.This was in any event a case where there was plenty of evidence pointing to the appellant, quite apart from that aspect. Counsel's criticism of the Judge's direction on the standard of proof fails to recognise the warnings issued from this Court about the undesirability of trying further to define the concept of reasonable doubt.The complaints on this head are unpersuasive.

[13] The attack made on the Judge's approach to prior inconsistent statements is again rather semantic.It focuses on the word credibility used by the Judge.The appellant suggests the Judge should have used the word reliability, as veracity was not in issue.We regard the point as too refined when one is considering a summing up, and how the jury would have understood what the Judge was saying.He was emphasising that it was what a witness says in the witness box which is evidence unless an earlier statement is adopted.The Judge was pointing out that in assessing the credibility of what is said in the witness box, the fact that prior inconsistent statements have been made is relevant. This was a general proposition and we regard it as farfetched to suggest that the jury would have been misled.A counsel of perfection in this context would be to distinguish, if necessary, between honesty and reliability.But we are satisfied the general message the Judge was conveying would have been fully understood and the jury would have appreciated that in the present case, it was not so much honesty which was in issue, but reliability.

Treatment of accused's evidence

[14] The final evidential challenge to the summing up relates to the Judge's treatment of the effect of the accused's evidence.This topic does need some elaboration.In discussing the position which would apply, if the jury rejected the accused's evidence, the Judge said:

Say to yourself, well now, I listened to that evidence and I just don't believe a word of that.I don't think that is acceptable at all.Then you would say, well I can really then rely on the Crown evidence which is uncontradicted.If you were of that view you would convict.

[15] A little later, the Judge said of the three alternative positions that can apply when an accused person gives evidence:

That sort of observation really applies to the case for the defence because if you were to reject the case for the defence you would simply go back to the Crown evidence and say to yourself, well is there sufficient from the Crown witnesses to identify this man, and if there is, you would be entitled to bring in a verdict accordingly.

[16] As to the first of these passages, it was suggested that in the transcription of the Judge's summing up, the words "I" and "can" had been transposed.We have checked the position, as discussed with counsel, and established that the transcript is an accurate record of what the Judge said. Thus the Judge did say "I can" rather than "can I".On that basis the summing up is potentially a little misleading, but we consider there is sufficient in the second passage to remedy any potential misconception from the first, particularly when one bears in mind the consistent theme throughout the summing up, that the Crown carried the onus of proof.We do not accept the proposition that the second passage would have given the jury the impression that the defence case relied entirely upon the evidence given by the appellant.The Judge was simply giving the jury the conventional direction about what to do if they rejected what he described as the case for the defence.Such rejection does not mean that the Crown has proved its case.That requires a separate and independent process of thought based on the evidence which the jury does accept.While the word "uncontradicted", if viewed in isolation, could give the impression of a shift in the onus, the summing up as a whole made it perfectly clear to the jury that the Crown carried the onus throughout and still had to prove the case, even if the accused's evidence was rejected.As the Judge said, in that event the issue was whether there was sufficient from the Crown witnesses to identify "this man".

Balance

[17] The other complaints concerning the summing up are first that it failed properly to put the defence case and lacked balance.We are unable to accept either of those propositions.We consider that the Judge fairly summarised the defence case and that his summary was fairly balanced against the treatment which he gave to the Crown case.As to the balance of the summing up overall, while it is true that the jury could have read into it a degree of scepticism about the defence case, there can be no question of the Judge usurping the function of the jury or going beyond the bounds of legitimate judicial comment on the facts.

[18] The same applies to the final head of complaint, namely the criticism raised by the appellant at the Judge's remark that the appellant's account of his purported meeting with the two Asian men was a "curious" one.What the Judge said was this:

The event that the accused described with his meeting with these two men is a curious one, isn't it, when you come to think about it.I am not expressing a view about it.That is a matter right in your domain, but the thought that two men might commit an attack on an Asian with regard to recovery of money, and not at least wake the person up to see whether the money could be returned, you may think gives some lack of plausibility about the story, but as Mr Stevens says, the reason for it is not within the knowledge of the accused.It perhaps could be a case of mistaken identity but he says it's all very well for the Crown Prosecutor to say it is fantasy and so on.You have to be satisfied that you can exclude it from your considerations in accordance with the standard of proof which I have referred to.

[19] In the context of the case, we consider that the Judge's observations were justified and well within reasonable bounds.Even in this passage the Judge again made it quite clear that the point was one for the jury and not for him.

Lies

[20] The remaining conviction issue is the belated question of lies.Mr Stevens seemed at one point to be arguing that every time the Crown attacks the veracity of the accused's evidence in the witness box or his out of Court statements, a lies warning is required.That would be to require such a warning in almost every case.The very suggestion from the Judge that the accused might be lying is unlikely to be helpful to the accused and a lies warning is necessary only when there is some real danger of inappropriate reasoning.An appropriate way to deal with a suggestion from the Crown that the defence version of events is false or mistaken is to direct the jury that if that is their view they must not jump straight from their rejection of the accused's version to the conclusion that he must be guilty.Whether the accused is guilty in such circumstances requires an assessment of all the evidence the jury does accept against the standard of proof required of the Crown.The fact that here the Crown was challenging the veracity or reliability of the accused's evidence did not of itself require a lies warning, as opposed to the sort of direction just mentioned, which the Judge in essence gave in his direction about the position if the jury rejected the accused's evidence.

[21] The only tenable basis for suggesting that a lies warning should have been given derives from the fact that when first spoken to by the police the accused deniedbeing in the vicinity.He later accepted he had been there.Thus his first denial was a self confessed lie.The Judge might have chosen to give the jury the conventional warning that this self confessed lie should not lead them to the view that the accused must be guilty because he lied.We were informed the Crown had made no particular point about this feature, concentrating on the propositions first that the accused's evidence about the two Asian debt collectors was a fanciful, indeed incredible, tale and second, that the evidence led for the Crown pointed overwhelmingly to the accused as the assailant.Both the direct evidence of identification, particularly that of Mr Payne who had shared the bunk room with the accused for over a week, and the evidence putting the appellant in the close vicinity of the bunkroom at the time of the assault, and of his leaving the hostel in some haste immediately after, did indeed form a strong case against the appellant.In view of the Crown's lack of reliance on the accused's lie and the general tenor of his defence the Judge was in our view entitled to take the view that a lies/credibility warning was unnecessary and indeed could do more harm than good.

[22] We cannot help but observe that the need for such a warning in the context of this case was not obvious.No request was made of the Judge at the conclusion of the summing up.The point was not raised in the grounds of appeal, nor did it form part of the written submissions.The topic of lies seems to have acquired a mystique all of its own.It can often be a matter of judgment, depending at least in part on how the case has been run on both sides, as to whether, and if so, in what form, a lies direction should be given.If no request is made by the defence for a lies direction at trial this Court will not generally be sympathetic to an ex post facto suggestion that a miscarriage of justice has occurred through its absence.In the present case we are satisfied no such miscarriage has occurred.It follows that none of the points raised by the appellant in support of his appeal against conviction are persuasive.That appeal is accordingly dismissed.

Sentence appeal

[23] The appellant also appeals against his sentence of 5 years imprisonment on the ground that it was manifestly excessive.Counsel criticised some of the Judge's sentencing remarks, characterising them as exaggerated.The Judge had described the event as causing the complainant extreme pain and as representing a shocking attack on a defenceless man with an overlay of extreme cruelty.We do not regard those descriptions as out of place.We accept that there was no direct risk to life and that the injuries are unlikely to cause any significant permanent disability.But we are unable to accept the proposition that the Judge gave too much weight to the nature of the assault and its consequences.

[24] Counsel also submitted that the Judge had not given sufficient weight to the appellant's psychiatric condition.This appears on the face of it to be the only explanation for the appellant's behaviour.The Judge accepted that this factor had played "some role".The suggestion that insufficient weight was given to the point is not one which we can accept.Nor can we accept that the Judge, while recognising certain guideline cases, had applied them mechanically without regard to the particular circumstances of the offence and of the offender.

[25] No credit was available to the appellant for a plea of guilty.In our view the sentence was a perfectly proper one and within the range available to the Judge.It certainly cannot be described as manifestly excessive.The appeal against sentence is also dismissed.

[26] Legal aid was originally declined, but in the light of the matters ultimately emerging on the appeal, we consider that this was an appropriate case for a grant of legal aid.We therefore review the earlier decision and grant aid accordingly.

Solicitors

Fanselows, Wellington for appellant