THE QUEEN v DEAN MICHAEL KERR [2000] NZCA 267 (11 April 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 504/99

THE QUEEN

V

DEAN MICHAEL KERR

Hearing:	22 February 2000
Coram:	Blanchard J Robertson J Williams J
Appearances:	M J Coxon for Appellant A R Burns for Crown
Judgment:	11 April 2000

judgment of the court DELIVERED BY WILLIAMS J.

[1] On 3 November 1999 the appellant, Mr Kerr, was convicted by a jury on one count of wounding a Mr Slaughter with intent to injure him.

[2] His appeal against that conviction was originally based on the Judge's answer to a jury question.During retirement, the jury asked:"Can we find him guilty on a lesser charge of assault?"

[3] The trial Judge's note of her response is in the following terms :

The answer is that the Crown have charged Mr Kerr that on or about the 24^th of December 1998 at Auckland with intent to injure Mr Slaughter wounded him.That is what the Crown has opened on.That is the way their evidence has been called, and so having started and finished on that basis then it is a case of he is either guilty or not guilty on that charge.

That is the answer that the lawyers and I have settled.I will ask you please to return and keep considering your verdict.

[4] The jury returned with its verdict almost immediately afterwards.

[5] On Christmas Eve, 24 December 1998, the complainant, Mr Slaughter, went to the Office Bar in Pakuranga, Auckland with four or five friends.Others were present whom he knew.He said he had one beer and two vodkas throughout the evening.During a visit to the toilet, he was spoken to about his association with a woman acquaintance in the bar by a man who appeared to Mr Slaughter to be very drunk.Returning to the bar, the man joined a group which included Mr Kerr.Mr Slaughter thought Mr Kerr was drinking quite heavily.

[6] A little later Mr Kerr swore at Mr Slaughter about trying to pick up one of his girlfriends.Mr Slaughter said he took a step towards Mr Kerr to hear him better over the bar noise.Mr Kerr approached him.Mr Slaughter asked Mr Kerr to move away because of his language.At that point, according to Mr Slaughter, Mr Kerr swung a pint glass towards Mr Slaughter's face, hitting him below the jaw and smashing the glass.Mr Slaughter said he was knocked onto his back by the blow and by a punch thrown by Mr Kerr.Mr Kerr then fell on him briefly until he was pulled away by the bouncer.Mr Slaughter then found he had three cuts to the neck which he said came from the breaking glass.He required hospital attention.

[7] In cross-examination, Mr Slaughter acknowledged that he did not tell the police that he was struck by a glass and that he told them that he knew little of what occurred.He explained that by reference to pressures he was under at the time, delays in the taking of his statement, and his injuries.He also pointed to passages in cross-examination at depositions where he mentioned the glass.

[8] A woman with whom Mr Slaughter had been talking and who had not been drinking that evening corroborated Mr Slaughter's version of events.She said that she:-

Saw what I assumed was a glass when the arm movement came round, I saw the hand cut and then heard the noise so, I knew straight away that it was glass.

[9] A bouncer who intervened grabbed Mr Kerr's arm and said he was holding the broken glass so tightly that it cut the bouncer's hand.He confirmed Mr Kerr as the aggressor.

[10] Another friend of Mr Slaughter's also corroborated his statement that Mr Kerr had swung his glass at Mr Slaughter's head, hit him in the neck and breaking the glass before they fell to the ground and the bouncer intervened.

[11] Mr Kerr said that he arrived at the Office Bar about 3.30 p.m. and was drunk by the time the incident occurred about 8 p.m.He said Mr Slaughter approached him in an aggressive manner.Mr Kerr put his glass down.Mr Slaughter grabbed him by the shirt front whereupon Mr Kerr punched him and was punched back.They both fell to the ground.Mr Kerr was pulled to his feet by the bouncer and:-

I grabbed the glass on the way up thinking I was going to protect myself with it ... when he asked me to drop it I did so straight away.

[12] He denied hitting Mr Slaughter with the glass and denied speaking to Mr Slaughter about his trying to pick up one of Mr Kerr's girlfriends and said that Mr Slaughter's and his own injuries were caused by broken glass on the floor.

[13] The essential question for the jury was accordingly whether it accepted the version of events advanced by Mr Slaughter and the other Crown witnesses. Mr Kerr presumably felt able to admit assaulting Mr Slaughter by throwing the first punch because he was not charged with that offence.Although we did not have the Judge's summing-up (because no complaint was made about it) it would appear that the matter was put to the jury on this basis as the Judge confirmed by her ruling following the question.What is unclear from the jury's question is whether it did not accept the Crown's version of events or focused on Mr Kerr's admission of assaulting Mr Slaughter by throwing the first punch, or whether it was satisfied that Mr Kerr wounded Mr Slaughter but, for whatever reason, perhaps intoxication, the Crown had not proved that the wounding was with intent to injure.

[14] At the hearing an additional issue arose as the Judge's note recorded that the direction which she gave had been agreed with counsel, including counsel acting for Mr Kerr.If counsel acting for him - who was not Ms Coxon who appeared on the appeal - agreed to the course of action adopted by the Judge, it would be difficult for Mr Kerr to resile from that agreement on appeal.

[15] However, during an interchange on that topic, Mr Kerr, who happened to be present at the hearing, intervened to say that counsel at the trial had committed him to the course adopted by the Judge without reference to him.He said he was not consulted concerning the jury's question but was in custody during the discussion and was merely told what counsel had agreed when he was brought back to the courtroom.He said he was present when the Judge delivered her ruling.

[16] The possibility that trial counsel agreed to the course proposed by the Judge without instructions from the appellant changed the basis for the appeal and an opportunity was given for Mr Kerr and trial counsel to file affidavits as to what occurred.Affidavits were received from each with a memorandum from counsel for the Crown as to his recollection of events.

[17] Counsel for the Crown at the trial - not Mr Burns - said that counsel were called into the Judges' Chambers when the question was received.The Judge indicated that she had a firm view that the prosecution had committed itself to the more serious charge in the way it had run the case and the alternative verdict should not therefore be left to the jury.Prosecuting counsel accepted that position because on his view of the way the case had been run there was no proper basis for the jury to return the lesser verdict.

[18] Mr Kerr's affidavit said that he was not present when counsel and the Judge settled the answer to the jury's question and was not consulted at that stage.He was in an ante-room when his lawyer told him that the jury had asked a question and that "he had made the call for me," going on to say that "the decision had been made and it was all or nothing".Following that he was taken into the Courtroom and the Judge directed the jury in the terms set out.

[19] Trial counsel's affidavit said that he spoke to Mr Kerr after receiving the question and before going to the Judge's Chambers thinking it was good news.He said Mr Kerr :

... sought my advice as to the implications of the suggested alternate charge and I gave it (it turned out to be wrong) but strictly speaking I did not consult him.(Emphasis added)

[20] He confirmed that immediately following that exchange counsel were called into the Judge's Chambers without Mr Kerr being present and that what eventuated was as set out by Crown Counsel.The words we have emphasised suggest little effective difference between the accounts given by the appellant and trial counsel.

[21] The Judge's view on the question appears to have been firm and robustly expressed both to counsel and the jury.Accordingly, even if Mr Kerr's instructions had been sought, counsel may have been unable to dissuade the Judge from taking the course she did.

[22] But, that notwithstanding, in our view it was counsel's obligation to take instructions from Mr Kerr on the stance to be urged on the trial Judge as to the response to the question.It is an accused's right, not that of his or her counsel, to determine the way in which the case should be conducted (R v Accused (CA 78/88) [1988] 2 NZLR 385, 390).Counsel's omission was not a mere mistake in tactics which only rarely gives grounds for ordering a new trial (R v Pointon [1985] 1 NZLR 109, 114).Had Mr Kerr's instructions been sought, and had they been to press the Judge to leaving the possibility of conviction for assault to the jury (assuming such was open as a matter of law) then, having regard to the way in which the question was phrased, there must at least have been a possibility that counsel would have been able to persuade the Judge to answer the jury's question affirmatively. Counsel's omission to obtain instructions might therefore have had a significant prejudicial effect on the outcome of Mr Kerr's trial (R v Horsfall [1981] 1 NZLR 116, 123).Alternatively, the Judge might have been persuaded to spell out to the jury, as would have been preferable, that it must be satisfied that all elements of the offence charged had been established to the required standard and that they should not be influenced that a finding of not guilty would have the result that Mr Kerr avoided conviction.

[23] In those circumstances, Mr Kerr's conviction on the charge of wounding with intent to injure was unsafe and must be set aside.The matter is remitted to the District Court for retrial.If the issue in this appeal arises at the retrial, no doubt the trial Judge will be guided by decisions such as R v Maxwell[1990] 1 All ER 801.

[24] The appeal is allowed accordingly.

Solicitors

Crown Law Office, Auckland