THE QUEEN v STACEY BENJAMIN TAHANA [2000] NZCA 39 (6 March 2000)

IN THE court of appeal of new zealand

ca 351/99

THE QUEEN

V

STACEY BENJAMIN TAHANA

Hearing:	22 February 2000
Coram:	Gault J Williams J Goddard J
Appearances:	H Lawry for the Crown T M Saseve for the Appellant
Judgment:	6 March 2000

judgment of the court DELIVERED BY GODDARD J

[1] The appellant was convicted by a jury of wounding with intent to injure and assault with a knife.He appeals against his conviction for wounding with intent to injure on the ground that the trial Judge misdirected the jury by misstating the defence as one of self-defence only.His appeal against conviction on the second charge was abandoned.

Background Facts

[2] The charges arose from an incident outside a tavern in Otahuhu last November.The appellant and two friends had been drinking in a car-park across the road from the tavern.At about 10:00pm they set out to cross the road to the tavern but for some reason stopped in the middle of the road, thereby obstructing the path of the complainant's approaching car.The complainant was forced to stop to avoid colliding with the appellant's group.There were two passengers in his car; his girlfriend and an associate.

[3] The complainant sounded his horn and the appellant's group responded verbally and with gestures.This situation continued for a short time before the appellant and his friends moved off towards the tavern.The complainant then parked his vehicle at the side of the road and went over to the appellant's group.Some verbal abuse was exchanged, followed by the complainant pushing the appellant in the chest.A fight then broke out.At some point the appellant produced a Swiss army knife from his back pocket, which he said he carried for protection, and held it at the complainant in a threatening manner.

[4] The complainant's evidence was that he was then jumped by two of the appellant's group and pushed to the ground.While he was struggling to get up again he sustained stab wounds to his chest and left arm.These wounds required extensive reconstructive surgery and have left him without feeling in his left hand.The wound to his chest was approximately 5cm long and penetrated along the outside of the chest cavity.The wound to his arm was approximately 7cm long and penetrated to the bone, causing extensive nerve damage.The complainant said it was not until he got to his feet that he saw the blood on his left arm and saw the appellant standing about 2m away from him, presenting a knife at him with its point uppermost.The complainant then fled to his car and the appellant pursued him.The appellant leaned in the open passenger's window, holding the knife with the point extended towards the complainant's girlfriend.He jabbed the knife at her several times saying "do you want some of this?".The complainant's associate pulled the girlfriend out of the car so as to avoid her being stabbed.It is this incident which formed the basis of the second charge of assault with a knife.

Grounds of Appeal

[5] The grounds of appeal arise from the trial Judge's directions to the jury about the defence as advanced at trial.Mr Saseve submitted that the defence at trial had been two-step.First, that after being pushed or punched by the complainant, the appellant had pulled his pocket knife out and showed it to the complainant, in order to stop the complainant from attacking him and his friends.This act of producing the knife and presenting it had been defensive. Secondly, he contended that the complainant, far from than being discouraged by this action, charged the appellant, causing both of them to fall on the ground. During the struggle which ensued, the complainant's injuries were somehow accidentally inflicted.Thus, although the appellant was holding the knife at the time the injuries were sustained, he did not inflict them intentionally: rather, they were accidental.

[6] Mr Saseve submitted that the trial Judge had misstated these two quite discrete lines of defence by directing the jury only in relation to self-defence.

The Summing Up

[7] In support of his argument, Mr Saseve referred to the following passages from the summing up, in which the Judge directed the jury on the necessity for the Crown to prove specific intent to injure:

The question the Crown must prove to you beyond a reasonable doubt that such wounding or such wound was inflicted by the accused with intent to injure.

And further:

The Crown must prove to you that he in fact, when he presented the knife to Mr Moelasi and used it in the fashion that he did that he actually intended to cause the injury which in fact resulted as an end result of his act.

The question of importance there, for your consideration, is the defence that has been presented.The accused says that the injury that was inflicted was in the circumstances of what is known as self-defence.

[8] Mr Saseve's argument was that, in these introductory passages, the Judge focused the jury's concentration on intentional infliction of injury, rather than on an accidental infliction, directing the jury that the question for them was whether that intentional infliction was in self-defence.

[9] Mr Saseve next made critical reference to the lengthy direction which followed.In that direction, the Judge related the legal elements of the defence of self-defence to the facts as disclosed on the evidence.Mr Saseve submitted that this direction wrongly emphasised only a defence of self-defence.In particular, he pointed to the following passage:

As members of jury you look at and say "all right, he found himself in that particular situation and we consider perhaps it was necessary for him to use force in order to defend himself".Then you stand back and say to yourself but, was the use of that knife inflicting the injury that he inflicted on Moelasi reasonable in the circumstances?Was the violence used in defending himself proportionate to the threat that he perceived was going to happen to him ...

...If you come to the conclusion that indeed he may have found himself in that situation then you look from your point of view as members of the community, as the jury, at the force that he used to repel.The use of the knife, was that reasonable in the circumstances or did he exceed his right of using that force in a situation of self-defence.Because if the force he used to repel the threat which he perceived was disproportionate then self-defence is not available to him.

[10] It is important also, however, to read the above passage in the context of the two immediately preceding paragraphs in which the Judge referred to the predicating circumstance of imminent danger and the justifiable repelling of that with reasonable force:

The accused says that the injury that was inflicted was in the circumstances of what is known as self-defence.The law says that a person is allowed to use force in self-defence in circumstances where he finds himself presented with a situation where the use of force is justified when he is faced in imminent danger of either being assault to himself or that he is doing that in protection of someone else.The law says that if a person finds himself in a situation of imminent danger of being assaulted, of being injured himself, then he is entitled to use force to defend himself.To repel the imminent assault which he considers is going to happen to him.But the law says then in that situation the person who is confronted with that dilemma is allowed to use only such force as is reasonable in the circumstances.

So what you have to consider first of all is were there circumstances where the accused himself perceived that he was in danger - imminent danger of being assaulted by Mr Moelasi, that he found himself in a situation where it was inevitable that he had to do something to protect himself.That situation you look at from the accused's point of view.What are the circumstances he says he found himself in where he found it necessary to use force in order to repel Mr Moelasi's perceived threat.Threat from Mr Moelasi which he perceived was imminent that he uses some force to defend himself.You look at that situation from his point of view.Having done that, then you consider, as reasonable people of the community, as to whether the use of the knife in this particular situation was reasonable or not.That you do as members of the community.

[11] During the summing up the Judge read to the jury the extracts from the appellant's statement to the Police and from his evidence at trial, containing his explanation of events and assertion that the injuries were inflicted during a struggle initiated by the complainant.Mr Saseve submitted, however, that in repeating these and other extracts from the evidence, the Judge had really emphasised the Crown's contention that the complainant was not the aggressor. But we do not see how that would have been the impact of repeating the appellant's own explanations.

[12] At the conclusion of his summing up and after the jury had retired to the jury room to deliberate, the Judge made the usual enquiry of counsel as to whether any matters arose from his summing up.Mr Saseve raised the issue of the defence that had been put at trial, and the following exchange took place:

MR SASEVE:It may not have come across clearly, but the defence as far as self-defence, that he pulled out the knife, the injuries that was sustained by Mr Moelasi were not intentionally inflicted by Mr Tahana, they were as a result of this struggle and I think -

THE COURT:Mr Saseve, that then involves a question of accident.

MR SASEVE:That's correct sir.

THE COURT:But it was never put to the jury on the basis the defence was one of accident.

MR SASEVE:I covered it in my address sir, that when he held it out that was to deter him from [carry]ing out the attack and that there is this frantic struggle on the ground and the injuries were sustained.

THE COURT:Mr Lawry?

MR LAWRY:Sir, I thought that was going to the intent issue, the simple issue is that of self-defence that the intent is not just the thrusting but taking out the knife and pulling out the blade and pulling it forward, that was the reason it's [not] accidental.

THE COURT:I thought I have explained to the jury the use of the knife.

[13] The Judge did not bring the jury back and give any further direction on the defence run at trial, as a result of the above.

The Defence at Trial

[14] During his cross-examination of the complainant at trial, Mr Saseve challenged him as to whether he had punched the appellant first, rather than simply pushing him.This allegation was adamantly denied by the complainant, who insisted that he had simply pushed the person closest to him (the appellant) in the chest to make him stay away.The purpose of this cross-examination was clearly to try and establish the complainant as the aggressor, so as to give rise to the reasonable possibility that the appellant was acting in self-defencewhen he produced the knife.The complainant, however, remained unmoved on the point.He also reiterated that, when he retreated to his car, the appellant had chased after him with the knife.At no time did Mr Saseve put it squarely to the complainant that his wounds had been sustained inadvertently during the struggle.

[15] In fact, the defence as it was put to the complainant by Mr Saseve was as follows:

MR SASEVE:Let me put to you Mr Tahana's defence Mr Moelasi, was it the case that after you punched one of the people in Tahana's group that you then turned to him and punched him? ... no there was nothing like that happened like I was saying before, after I pushed him and he wasn't fall down they jumped back on me I fall down on my right knee and that's when I got stabbed when I got up I saw him moving back just hold the knife up like this and say to me I got a knife would you like more of this that's when I know I already got stabbed.

THE COURT:Who did you push in the chest? ... him.

You pushed the accused in the chest? ... yes.

MR SASEVE:So you would disagree then that after you had made contact with Tahana that he then pulled out the knife and told you to fuck off? ... say again.

Do you agree or disagree that after you made contact after you say you pushed Tahana, Tahana did not or pulled out the knife and told you to fuck off why are you doing this to me? ... like I say [I] pushed him.Two of them jumped back at me, then I fall down, that's when they were on top of me than I was trying to grab myself up that's when he move out and say look I got a knife would you like some more of this.He was stabbing me at the same time when they were jumping on me.

So Tahana never held up the knife the first time or at any time and say to you fuck off why are you doing this to me why are you hitting me? ... no.

So you would also say no if I said to you that at that stage you charged him and there was a struggle and both of you fell onto the ground? ... like I said, he just jumped on me, they all go down because they were on the top of me.

So you [are] saying no to what I'm saying to you that never happened? ... no. He pulled out the knife he showed me the knife after he stabbed me that's the first time I saw the knife.

[16] The appellant also gave evidence at the trial.He described an aggressive confrontation on the part of the complainant who, he said, started throwing punches at him, causing him to stumble back and then started throwing punches at one of his friends also.When the appellant saw the attack on his friend he was really scared, went for his knife and pulled it out - telling the complainant to "stop" and

"f' off".He said, the complainant then charged him, causing him to lose his balance.The complainant then pulled him to the ground where they struggled.All the while the appellant had the knife in his hand.At no stage during his evidence in chief was there any express reference to accident.Rather, the appellant said in answer to Mr Saseve:

So why should the jury believe you now about that? ... Coz I'm telling it how it is just trying to tell them it was self-defence I was just scared that's all when he attacked it was just scary.

[17] When cross-examined by the Crown prosecutor, the essential thrust of the appellant's evidence remained the same, namely, self-defence.This is clear from the following passage of cross-examination, when the concept of accident is first frankly introduced to the trial by the prosecutor:

You didn't stab him? ... No I didn't try and reach out and stab him with the knife.

Well you accept that that knife was in your hand with a blade open when he received that gash on his arm do you accept that? ... yes.

You accept that it was still in your hand when you cut the chest? ... yes.

Was that from one blow or two blows? ... I'm not too sure how it happened.

Really?Coz what your saying is that you used the knife in self-defence is that what you're saying? ... Yes.

You're not saying it was any sort of accident or anything like that are you? .... [no answer recorded]

Mr Moelasi had some big holes in his body, you're not saying that was by some sort of accident are you ? ... yes.

Was accidental was it? ... yes.

You're not lying again now are you? ... no.

[18] In his earlier statement to the Police, the appellant had also painted a picture of self-defence, emphasising that he was aggressively tackled by the complainant; that the complainant was bigger and stronger than him; and that the complainant was getting the better of him when they were on the ground, struggling.

Discussion

[19] Although the intention may have been to run a clear and discrete defence of accident or inadvertence in relation to the actual infliction of the stab wounds, this did not really emerge at trial.On the contrary, the whole emphasis of the defence, as illustrated in the above passages of evidence, went to self-defence.That was the essence of the defence, both in cross-examination of the complainant and in the appellant's evidence in chief. This was obviously the impression gained by the prosecutor, as reflected in his question "you're not saying it was any sort of accident or anything like that are you?", and, obviously, the impression of the trial Judge.It is difficult to see, from a reading of the trial transcript, how any other impression could have been gained.

[20] Plainly in light of the way the defence was run and the evidence given by the appellant the Judge was required to direct the jury on self-defence.In fact, however, had the defence been properly analysed it would not have been couched in terms of self-defence at all.Self-defence pre-supposes intentional conduct.The infliction of the wounds (the offence) was never acknowledged by the appellant to have been intentional.

[21] The summing up would have been clearer if the Judge had directed the jury on the need for the Crown to establish wounding with intent to injure rather than accident and then told the jury if that was not established the verdict should be not guilty.He then should have directed that if wounding with intent was proved, they should go on to consider whether that was in self-defence.

[22] However, having regard to the directions given, the jury, in reaching the verdict they did, must have found that the Crown had proved both intentional wounding and absence of self-defence.On the evidence of this case that was clearly inconsistent with accident.Accordingly, even if directed as suggested, the jury clearly would not have accepted that the wounding was accidental.

[23] It is implicit that intent and mere inadvertence or accident are mutually exclusive.Therefore, whilst the trial Judge did not make express reference to a defence of accident in relation to the actual infliction of wounds or as an alternative to self-defence, the clear and correct direction he did give about the necessity for the Crown to prove a specific intent to injure on count one, could have left the jury in no doubt about the situation.Further, that direction favoured the defence because it set the threshold of intent at a higher level than actually charged.

[24] We are satisfied that no misdirection in relation to the defence, as put at trial, occurred.The defence of accident, so far as it was run, was squarely before the jury in the form of the evidence given, through Mr Saseve's closing address and through the Judge's reiteration of the appellant's explanations as part of his summing up.

[25] Further, we are satisfied that the verdict of the jury on count one is entirely consistent with the evidence as given, the only reasonable inference arising being intent to injure the complainant, on the basis of the appellant's actions both before and after the wounds were inflicted.

Judgment

[26] The appeal is dismissed.

Solicitors:

Meredith Connell, Auckland, for the Crown

T M Saseve, Auckland, for the Appellant