THE QUEEN v LEICESTER MALCOLM RUTLEDGE & JOHN VINCENT CUNNINGHAM [1999] NZCA 50 (21 April 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 412/98 & 413/98

THE QUEEN

V

LEICESTER MALCOLM RUTLEDGE & JOHN VINCENT CUNNINGHAM

Hearing:	30 March 1999 (at Christchurch)
Coram:	Eichelbaum CJ Thomas J Heron J
Appearances:	A D Garland for Crown K Phillips for Appellants
Judgment:	21 April 1999

judgment of the court delivered by HERON J

[1] This is an appeal against conviction and sentence in respect of two men who were found guilty by an Invercargill jury that on or about 4 December 1997 at Winton, unlawfully entered a dwelling house at 107 McKenzie Street, with intent to commit a crime therein.They were also charged that on or about 4 December 1997 at Winton, they assaulted Mark Anthony Stevens.On the second charge they were acquitted but on the first charge were convicted and each fined $500.

[2] The events the subject of the charge occurred at night.There was a dispute as to the exact time but it was late in the evening in darkness and occurred at an address where the complainant boarded with his uncle Gary Stevens.

[3] The appellant, Cunningham, was also an uncle of the complainant and knew where he lived.By agreement between them the two appellants decided to visit Mark Stevens at his address.There the house was in darkness and they knocked on the door and on receiving no reply, went into the house.The appellant Rutledge followed Cunningham who carried a torch.At the bedroom door Cunningham handed Rutledge the torch.According to Rutledge he shone the torch toward Mark Stevens and then onto his own face after pulling the bed covers from him.According to Mark Stevens, Rutledge, turning the light on, rushed in and stormed over towards his bed.At that point the respective versions differ considerably with the complainant alleging that he was seriously assaulted by Rutledge with Cunningham performing the role of lookout or guard.The assault was, Stevens claimed, because he had not paid a debt.According to Rutledge, there was no physical assault at all, nor any threats.Rutledge said he went as far as squatting down to Stevens' level, while Stevens sat on the side of the bed, where he was told that Rutledge was obviously there to talk about the money and that Rutledge was annoyed that some attempt had not been made to pay the money back.

[4] Accordingly the case went to the jury with evidence relevant to the first count being largely supplied by the appellants as to their entry into the house and the steps taken at the bedroom door with the torch and the removal of the bed clothes and a highly contested version of events as to what followed thereafter.The jury were obviously not satisfied that there was an assault. In that respect the Judge had told them in the summing up, that in respect of that count they were to focus on an actual physical assault.He said:

Theoretically pulling the bedclothes off a sleeping person could constitute an assault if it amounted to an indirect application of force to the body of the sleeping person, and it might be hard to imagine pulling blankets off somebody without applying some force no matter how slight to their person, but in this trial you should not find either of the accused guilty of assault on that basis.

That is not what this trial is about.I just offer that to you as an example of the legal position that the application of force for the purpose of assault can be very slight.

This trial is all about a beating.This trial is all about punching and kicking and being thrown about the room.That is what the Crown alleges and that is what the Crown must prove before either accused can be found guilty of an assault.

[5] S.2 of the Crimes Act 1961 contains the definition of assault as follows:

"Assault" means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; and "to assault" has a corresponding meaning.

[6] The Judge whilst omitting any reference to the alternative definition of assault contained in S.2 considered that to be relevant to the first count, which involved a consideration whether their now acknowledged unlawful entry was accompanied by an intention to commit a crime.In other words it was open to the jury, in the way in which the Judge directed, to find that on entry Rutledge intended to threaten, he being in a position to accomplish his purpose or convey as much, or he intended to actually physically assault.He indicated to the jury that the relevant state of mind for the purposes of count 1 could be established having regard to what in fact they later did once inside the dwelling house.Accordingly their acquittal on the second count on any form of assault would render it difficult to conclude that they entered the dwelling house with the intention to commit an assault of that form.The Judge recognising these matters, gave to the jury, the following written issues:

RUTLEDGE ISSUES

Count 1

Has the Crown proven beyond reasonable doubt

1. That he entered the house unlawfully - ie with knowledge that his entry had not been permitted by either of the occupiers? and

2. That when he entered he intended to assault Mark Stevens either by physical violence or by threats of violence?

Count 2

Has the Crown proven beyond reasonable doubt

1. That he assaulted Mark Stevens by punching him and/or kicking him and/or throwing him about the room?

CUNNINGHAM ISSUES

Count 1

Has the Crown proven beyond reasonable doubt

1. That he entered the house unlawfully - ie with knowledge that his entry had not been permitted by either of the occupiers? and

2. That when he entered he intended to aid and/or abet Rutledge to assault Mark Stevens either by physical violence or by threats of violence?

Count 2

Has the Crown proven beyond reasonable doubt

1. That Rutledge in fact physically assaulted Mark Stevens? and

2. That before entering the house he knew that Rutledge was going to physically assault Mark Stevens, or, that he would threaten him with violence and that physical violence was likely? and

3. That he intended to aid and/or abet Rutledge to physically assault Mark Stevens or to threaten him with violence? and

4. That he did something to aid and/or abet Rutledge to assault Mark Stevens?

[7] By contrasting paragraph two in count 1 for both appellants, it can be seen that the alternative definition of assault, namely by threat, was left to the jury as the type of crime the appellants might have had in mind at the time that they entered the dwelling house.It is now said that the guilty verdict on count 1 is inconsistent with the not guilty verdict on count 2.The test in respect of inconsistent verdicts is enunciated in R v Irvine [1976] 1 NZLR 96 (CA).There the Court said: (99)

For the purposes of the present case it is sufficient for us to adopt the approach which found favour with the Criminal Division of the Court of Appeal in R v Drury [1971] 56 Cr App R 104, and R v Durante [1972] 1 WLR 1612; [1972] 3 All ER 962.In the first of those cases the Court of Appeal held that there is no general rule that the mere fact that a jury has returned ex facie inconsistent verdicts on counts in an indictment means that the Court is obliged of necessity to quash the conviction.

In the second case the Court expressed its approval of the following passage taken from the judgment of Devlin J in R v Stone (unreported, UK, 13 December 1954), (CCA):

When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him.He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.But the burden is upon the defence to establish that.

The foregoing approach appears entirely consistent with what was said by Spence J (with whose judgment five of the other Judges of the Supreme Court of Canada agreed) in Koury v The Queen (1964) 43 DLR (2d) 637, especially at p 652.

[8] It is interesting to note that in R v Irvine the Crown had limited the scope of count 1 in that case to cover events up to and including a certain point of time, but count 2 alleged a state of mind which may not have been present during the time of the first count, but could have occurred in respect of the second count.That is not unlike the situation in the present case where the jury are being required to look at a state of mind some moments before the actual alleged assault.Accordingly the jury may have considered that the two appellants had a state of mind to the effect that they were intending to threaten only or arguably, were intending to physically assault, but carried out neither.In this case the jury were not asked to consider the element of threatening as an ingredient of the second count, so no assistance on that contemplated crime is given by their subsequent actions in acquitting of actual physical assault.But the two crimes are different in their nature in that the first involves an enquiry as to a state of mind sometime materially earlier than the timing of the second count.As the Judge said, some assistance by way of inference can be given to the jury by what in fact the appellants accomplished, or were found to have done.However there was other evidence as to their admitted actions from which a jury could have drawn an inference of their true intention notwithstanding their disavowal of any intention to threaten.The act of stripping off the bedclothes in a peremptory way may, as the Judge said, even have constituted an assault, but it also could have provided some evidential basis for the jury to reject the explanation that they had no intention to threaten by act or gesture at the time of entering the dwelling house.On any view of it, their actions were intimidatory and there is a short step between that and threatening.Had the jury been left with the issue as to whether on the second count there was no beating but in fact a threatening constituting an assault, they may have found accordingly.The Judge however, obviously wishing to ascertain the true nature of the ingredients of the second count, if it was established, and the extent of the offending overall, removed that prospect from them in a way which was to their overall advantage, in that they had to face one category of a charge of assault only.It was also the category where the evidence of the complainant was it would seem most disputable.

[9] Having regard however to what was said in Irvine, we consider that there was evidence from which an inference could have been drawn, that they were at least intending to threaten sufficient to constitute an assault at the time that they entered the dwelling house, and if that is so then the crime is complete.To draw that inference one has to do so from proven facts.The inference has to be a reasonable one and not speculation or guess work.See R v Puttick [1985] 1 CRNZ 644..

[10] In R v Accused (1998) 15 CRNZ 622, this Court said after referring to R v K unreported, 13 August 1996, CA 49/96:

Under New Zealand law, the question in terms of s 385(1)(a) of the Crimes Act 1961 is whether the verdict in question should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. Simply because a verdict can be supported on the evidence does not itself mean it cannot be unreasonable on the grounds of inconsistency with other verdicts. To adopt the approach that a verdict supported by the evidence cannot be inconsistent would itself be inconsistent with the statutory ground and with R v K.The only point we would add to what was said in R v K in the light of the circumstances of the present case, is that the reasonable explanation for the differentiation must be found in the evidence properly used.It will not be a reasonable explanation if it depends on a use of evidence or a process of reasoning which the law does not permit. (630)

[11] It was submitted that if the charges to which the different verdicts relate are essentially all part of a single transaction and the evidence of all of them is similar, inconsistency is more likely to be established.See R v Manhaas CA 228/98, 3 September 1998.

[12] In Manhaas an examination of the counts made it difficult to rationalise the jury's inconsistent verdicts, depending as they did largely on matters of credibility.In the end the court was not required to do other than indicate that there was a difficulty in identifying the basis upon which the jury could reasonably have differentiated between the charges.This case is different to the extent that the differentiation arises from the nature of the charges.One is concerned with unlawful entering of property with a certain state of mind.The other is concerned with what is then accomplished some short time later which may differ from an earlier intention depending on the circumstances.A more likely explanation is that the Judge left open the issue of an intention to threaten on the first count, giving rise to the differentiation which could be made between the two counts, therefore eliminating any question of inconsistency.

[13] The appellant submitted that neither the complainant witness or that of his uncle who occupied the house, could have assisted the jury in deliberations on the first count if the jury had doubts about their evidence on the second count.However it was really common ground as to what happened up to a certain point after they had entered.Their intention was largely a matter to be inferred from uncontested evidence as to what they said and did and the background circumstances to their unexpected arrival at this address.

[14] The appellant submitted that the trial Judge left the case to the jury on an all in basis suggesting the jury first look at count 2 in relation to Rutledge and their decision on that count could then be the basis for their decision on the first count.This it was submitted, supports the appellants submission that an acquittal on the second count is inconsistent with the verdict on the first.

[15] What the Judge said was this:

Now putting that matter to one side, it seems to me that the key to the whole case is this.Has the Crown proven beyond reasonable doubt that Rutledge assaulted Mark Stevens by punching or kicking him or throwing him around the room?

It seems to me that once you have answered that issue the rest of the case will unravel for you.

You must decide that issue before you can determine whether the Crown has proven beyond reasonable doubt that Cunningham aided and abetted the assault, and I suggest that the answer to the issue of whether or not Rutledge is guilty of assault will also help you to decide Count 1 in the indictment in relation to both accused, whether at the time of entry either of them had the requisite criminal intent.

[16] However when discussing the ingredients of count 1 the Judge made it clear that if they had an intention either to commit the assault either in the physical sense or in the threatening sense, they would both be guilty of the first count if in addition Cunningham had assisted.The Judge's view that the case might unravel for them after considering count 2, was by no means taking that version of the offence away from them when they came to consider the first count.That view is reinforced by the issues which were before the jury in the way previously described.

[17] The appellants further submitted that the jury were called on to draw an inference as to the guilt of the appellants on the first count by looking at the surrounding circumstances to find the required intention.By the jury's finding on the second count, they indicated reservations about the evidence of the principal Crown witnesses.It was submitted that this must have left the jury with only the surrounding circumstances of the entry itself, at night and without invitation.It was submitted that at the best that evidence is equivocal and at the worst, it can only lead a jury to guess or speculate.

[18] This is a critical issue in the case but when there is uncontested evidence as to anger about the debt, discussion in the hotel, the time and manner of entry and stripping of the bedclothes from the complainant, we think there is enough for a jury to infer that the intention when entering the house was to threaten by words or gestures.If that was the intention of Rutledge when he entered the premises, and provided Cunningham assisted him knowing that that was his intention and intending himself to assist he was liable also.It was a discrete issue carefully isolated and analysed by the trial Judge, and in our view it was open for the jury to reach a conclusion based on that evidence as to that issue.

[19] If Rutledge had gone to the house with the intention of threatening Mark Stevens, Cunningham's knowledge of this is again largely a matter of inference. Cunningham led the way and handed the torch to Rutledge at the last minute whereupon the stripping of the bedclothes occurred.In our view there is an available inference that he must have known of Rutledge's intention to threaten by words or gestures on entering and there is ample evidence that he assisted in what Rutledge intended to do.There is no evidence that Cunningham disassociated himself with the actions of Rutledge up to that point, or expressed any concern that the intrusion went as far as it did.

[20] Finally it was the overall submission of the appellants that the cornerstone of the Crown case was proof of a physical assault and without a guilty verdict on that there is no sufficient basis for the drawing of the inference that the appellants had the intention to assault by threats at the time of entry.For the reasons that we have given we do not uphold that submission and consider that there was sufficient evidence.

[21] A third ground of appeal claiming misdirection by the trial Judge was, very correctly, not pursued.

SENTENCE APPEAL

[22] Despite a large measure of provocation by the action of the complainant, there was no justification for two mature men entering these premises without permission intending to threaten the complainant over a relatively small sum of money, notwithstanding the apparent deceit of the complainant.We think that the Judge was right to record the Court's disapproval of any attempt to mete out summary justice to a young man who owed money.Whilst the convictions are a considerable penalty in themselves, we consider that this was considered action on the part of two persons and the Judge was right to record it in the terms that he did.He said:

The aggravating feature of the offence of which you have been found guilty is that it was high handed and arrogant of you both to be going around to this house late at night in order to mete out summary justice to a young man who owed money.

It is to your credit that events did stop short of physical violence on the jury's verdict, and of course it is to the credit of you both that before today you stood before the Court as men of good character, and I have no doubt that you both feel the sting of the judgment of the jury in this case.

[23] We think that the fine was appropriate and this was not a case where a S.19 discharge could have been given.These are inevitably matters of impression and the Judge who conducted the trial is in the best position to measure the gravity of the offending and the true nature of it having heard all the evidence.

[24] It follows that the appeals against both conviction and sentence are dismissed.