THE QUEEN v RICHARD GLENGARRY HARAKI [2000] NZCA 2 (2 February 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca425/99

THE QUEEN

V

RICHARD GLENGARRY HARAKI

Hearing:	2 February 2000
Coram:	Gault J Keith J Tipping J
Appearances:	D M Madsen for the Appellant C L Mander for the Crown
Judgment:	2 February 2000

judgment of the court DELIVERED BY KEITH J

[1] The appellant was convicted of three offences relating to the same complainant but arising out of two particular incidents which occurred more than three months apart.The first incident, on 17 December 1998, led to a conviction for threatening to kill and acquittal on a charge of possession of an offensive weapon (a fence batten) with intent;and the second, on 2 April 1999, to convictions for injury with intent to cause grievous bodily harm and for wilfully attempting to prevent the course of justice.

[2] The appellant was sentenced in total to three years six months imprisonment: three years for the injury offence with nine months concurrent for attempting to prevent the course of justice and a further cumulative sentence of six months for threatening to kill.The appeal is against both conviction and sentence.

Appeal against convictions

[3] All three convictions are challenged on the ground that there has been a miscarriage of justice in that the complainant gave inadmissible and prejudicial evidence of an earlier assault on him by the appellant and that the Judge gave no direction about the use the jury were to make of that evidence. In the alternative the conviction for the offence of threatening to kill is challenged on the ground that that conviction is inconsistent with the verdict of not guilty on the charge of possession of an offensive weapon.

[4] The ground relating to inadmissible evidence is based on an answer given by the complainant to a question put to him by defence counsel (who is not counsel on the appeal).The complainant's evidence was that on the morning of the incident in December he was awakened by a lot of bad language and noise outside his front door at about 9am.He said that the voice was the voice of the appellant who was a neighbour.He got out of bed, walked along the hallway and could hear the appellant and see him through his open letter flap.The appellant, according to the complainant, was threatening to kill him.The complainant said that the appellant then came back wielding a fence batten around in the air.In cross-examination the complainant was asked whether, so far as he was concerned, he had done anything that would provoke this kind of reaction from the appellant:

I never, not even from the previous fight a couple of months before that.He bashed me up in my own doorway.

[5] Defence counsel immediately said that he was talking about the incident on 17 December and repeated his question in that context.

[6] The complainant confirmed that he had done nothing to provoke that reaction: "No.I was in bed."This cross-examination is presumably to be seen in the context of challenging the complainant's identification of the appellant who in his evidence was to flatly deny doing any of the actions complained of. The complainant's answer was that he knew that the appellant had made the threats:as well as hearing him, he had seen him with his own eyes.

[7] Defence counsel did not take any action in relation to the complainant's evidence of the fight a couple of months earlier.He did not ask the Judge to give any special direction on the matter.Mr Madsen, as counsel for the appellant, responsibly accepted before us that he could not say that the Judge should have discharged the jury at that point.

[8] It is perhaps relevant that the Judge had earlier intervened when the prosecutor, during the complainant's evidence in chief, tried to get the complainant to develop further his answer that he found it very uncomfortable living next door to the appellant because he was a very intimidating person. After the complainant had said "I heard a noise out in the forecourt one day and I opened the door thinking that someone was talking or ..." the Judge asked whether the evidence was strictly relevant and the prosecutor indicated that he was happy to leave the matter there.The complainant later mentioned that the appellant was wearing a leather jacket with a Mongrel Mob patch on it.

[9] The appellant's submission is that the evidence given by the complainant of an earlier assault, in the context of his evidence that he found it uncomfortable living next to the appellant because he was very intimidating and that the appellant was a patched Mongrel Mob member, was evidence only of a propensity for violence towards the complainant and was not admissible as similar fact evidence.

[10] The written submission continued that there was a need for a direction to be given to the jury about how they were to use the challenged evidence.The direction should first have asked the jury to decide whether they were satisfied that the earlier assault actually happened and, if they were, that they were not to assume that, because the accused had assaulted the complainant on an earlier occasion and that he was a gang member whom the complainant found intimidating, he was therefore guilty of the charges in December or April.We agree with the Crown's written submissions that such a direction was to be avoided.It would have been quite wrong for the jury to have been invited to embark on a consideration of the earlier alleged assault on the basis of a reference made by the complainant in the course of cross-examination about a matter peripheral to the two incidents before the Court.Mr Madsen rightly accepted that this written submission put the matter too laboriously.

[11] In his oral submissions, Mr Madsen contended only that the Judge should have directed the jury that the evidence of the earlier assault should be ignored.The evidence was not relevant.At least the jury should have been directed how they were to use the evidence.Mr Madsen accepted that the complainant's other evidence of the relationship - that he felt uncomfortable living near the appellant, that the appellant was very intimidating and that he was a patched Mongrel Mob member - was a proper part of the background to the threatening to kill charge.The earlier alleged assault can in our view be properly seen in the same light and as more probative than prejudicial. Further, as the Crown points out, the jury were given the standard direction relating to sympathy and prejudice and were cautioned about not speculating or using guesswork in drawing inferences.They were also directed to isolate the evidence in relation to each count, and they did in fact find the accused not guilty on one of the charges.We agree that directing the jury's attention back to a piece of evidence which has been inadvertently and briefly disclosed, rather than mitigating any prejudice, might have served only to highlight that evidence and aggravate any potential prejudice.We, too, would assume that defence counsel took the view that it was better not to draw the jury's attention back to the answer by the complainant.That can be seen as a prudent and tactically understandable position.We can see no prospect of a miscarriage of justice on this account.

[12] Accordingly this ground of appeal fails.

[13] The second ground of appeal is that the conviction for threatening to kill, arising from the December incident, cannot stand because it is inconsistent with the acquittal on the charge of possession of an offensive weapon.

[14] Defence counsel cross-examined the complainant about how well, and for how long, he could see the appellant and in particular the fence batten that the complainant said the appellant held in his hands.The jury may well have been impressed by the answers to that line of questioning which emphasised the smallness of the letter slot and the distance, halfway down the hall, from which the complainant was watching and listening to the events.It seems to us to be reasonable for the jury to have held that the charge of threatening to kill was established beyond reasonable doubt (on the basis mainly of what the complainant heard) while not being satisfied to the same standard that the complainant had seen the appellant waving the batten (not produced in evidence) about in a threatening manner.As the Crown says, the cross-examination at the very least may have created a reasonable doubt.Having regard to the nature of the cross-examination the jury could properly accept the defence submission that they could not be sure what the appellant was carrying, given the complainant's limited opportunity to observe the appellant through the mail slot especially when he had backed away from it.Trial counsel also took up that line of cross-examination with one of the detectives.

[15] Accordingly this ground of appeal fails and the appeal against conviction is dismissed.

Appeal against sentence

[16] The appeal against the sentence of three years imprisonment for injuring with intent to cause grievous bodily harm is put on the basis that it is manifestly excessive for two reasons:

* The facts typically equate with the lesser offence and consequently the lesser penalty of assault with intent to injure or possibly injuring with intent to injure and

* A comparison with earlier decisions of this court shows that the sentence was disproportionately severe.

[17] The distinct sentence of six months imprisonment for threatening to kill and its cumulative effect are not challenged.

[18] In his sentencing remarks the Judge, who had had the advantage of seeing the complainant and appellant give evidence, said that there were no mitigating factors.He mentioned a number of aggravating factors including the mismatch in age and strength and the appellant's comments following both incidents that the complainant deserved it.He gave his principal attention however to two matters : the manner of the attack and its motivation as it appeared from the jury's conviction on the charge of preventing the course of justice:

... you followed [the complainant] into the toilet [at a hotel] ... you attacked him from behind without warning and then you delivered a beating to him that involved you kicking him with your boots and also punching him.There was a description where you took a run at him with the boots.

There is also evidence from the victim that he begged you to stop, but you carried on and he gives a vivid description too of trying to retain his consciousness.You only stopped it seems because someone else put their head in the door so to speak.Afterwards you simply went back into the bar and carried on drinking.

...

In terms of this later incident, there was of course the situation that if the jury was satisfied that it was motivated, at least in part, by an attempt by you to dissuade or intimidate, dissuade the victim from giving evidence in the upcoming Court case [based on the December incident], or at least to intimidate him in some way, and that puts an even worse complexion on that particular incident.

The attack, in short, in my view, was a vicious and a sustained one.

[19] The Judge also referred to the impact on the victim:

[the victim] suffered cuts to his head, problems to his nose, badly bruised hips and ribs.On a more general level he says he could hardly move for a week and was very sore for at least a month.Having said that, there is no permanent injury and ... it is perhaps surprising that they are not a lot more serious given the nature of the attack that he described.

However, the fact that there are no permanent injuries or more serious injuries, in my view is simply a matter of luck.

There is, however, beyond the physical impact, the emotional impact that I am obliged to take into account and this incident has obviously affected him and will affect him for a long time to come.There is reference to him having to look over his shoulder, he does not feel safe, even in his own home, and rightly or wrongly he is worried about the other people you associate with, and in particular, your association with the Mongrel Mob.

[20] The appellant's first submission that the facts equate with the lesser offence of assault with intent to injure or possibly injury with intent to injure is flatly rejected by the jury's verdict.The assault on 2 April was charged as injuring with intent to cause grievous bodily harm (Crimes Act 1961 s189(1)) or in the alternative injuring with intent to injure (s189 (2)).The jury found the appellant guilty of the more serious offence with its penalty of 10 years imprisonment compared with five years for the lesser offence.We recall the sustained and vicious nature of the assault including running attacks with steel capped boots.

[21] Like the sentencing Judge, we must also emphasise the jury's conclusion that the appellant administered the beating in an attempt to dissuade the complainant from giving evidence in the court proceedings relating to the earlier incidents.We were rightly referred to our recent judgment in R v Clutterbuck (CA372/99, 17 November 1999) which referred to the decision in R v Hillman (CA14/92, 14 May 1992) as clearly establishing a benchmark of three years imprisonment for relatively serious cases of attempting to obstruct, prevent, pervert or defeat the course of justice.

[22] Mr Madsen in the course of his careful submissions referred us to a number of cases which, however, tend to emphasise the difficulty of establishing a tariff in cases such as this.Not one of them however involved the additional element of attempting to interfere with the course of justice.

[23] There are various ways in which the sentence could have been calculated in this case.For instance, the two offences involving threatened and actual violence might have been treated together and the conviction for interfering with the course of justice providing a cumulative sentence.Whichever way the calculation is made we cannot agree that the total sentence of 3½ years is inappropriate.

[24] Accordingly the appeal against sentence is also dismissed.

Review of refusal to grant legal aid

[25] Mr Madsen applied for review of the refusal to grant legal aid.We do not think that the grant of legal aid would be justified in this case and accordingly that application is dismissed.

Solicitors:

Gifford Devine, Hastings for the Appellant

Crown Solicitor, Wellington for the Crown