THE QUEEN v NEVILLE CHRISTOPHER CLARKSON [2001] NZCA 13 (8 February 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca337/00

THE QUEEN

V

NEVILLE CHRISTOPHER CLARKSON

Coram:	Thomas J Blanchard J Tipping J
Judgment (On the papers):	8 February 2001

judgment of the court DELIVERED BY TIPPING j

[1] The appellant was found guilty by a jury in the District Court at New Plymouth of causing grievous bodily harm with intent and was sentenced to four and a half years imprisonment.He appeals against both his conviction and his sentence.
[2] The appellant applied for legal aid in respect of this appeal.The Registrar declined the application after the necessary consultation under s15 of the Legal Services Act 1991.Following a review, the Registrar's decision to decline legal aid was upheld.The appeal has been determined on the basis of written submissions made by the appellant.

[3] At about nine thirty in the evening of 24December 1999 the appellant went to the Kakaramea Hotel.The complainant arrived shortly afterwards.Almost immediately the two became involved in a verbal altercation concerning some furniture which the appellant was moving into a property where the complainant was living, and which the appellant intended to purchase and was paying rent on.The argument continued for five to ten minutes and became rather heated, at which time the publican stood between the two men and told them to take their argument elsewhere.
[4] The appellant then left the hotel, went to his car and waited for the complainant.When the complainant left the hotel 10 to 20 minutes later the appellant attacked him from behind with a baseball bat or something similar. The complainant was struck on the head and fell to the ground.The appellant then struck him again several times and continued kicking him, only stopping when others came from the hotel after hearing the complainant's cries for help. The appellant then stopped the attack.He drove away a short time later.
[5] As a result of the attack the complainant spent two nights in hospital.He had received extensive injuries.He suffered a broken arm, two deep lacerations to his forehead and a skull depression.He also suffered bruising to his left elbow, shoulder and back, and bruising around both eyes.When spoken to by police the appellant refused to comment on the incident but generally insinuated that the complainant had threatened him in the hotel that evening.The defence did not call evidence at trial.The appellant's defence was primarily one of self defence.This was clearly rejected by the jury who found him guilty.
[6] The appellant appeals against his conviction on the basis that the Judge erred in law in failing to address the jury on the question of self defence in response to their questions relating to intention.The Judge had directed the jury as to self defence in his summing up and no challenge is made to that direction, and rightly so.The Judge correctly outlined the necessary elements and the evidence relied on by the appellant in support of his defence.It is simply the appellant's contention that the Judge should have repeated his direction in answer to the jury's question.
[7] The jury had deliberated for about two hours when they returned with two questions in relation to intent:

Is there any provision if we decide Clarkson is guilty of grievous bodily harm, but can't agree on the intent?
Can you please clarify intent, including the length of time the intent was before acting on it, is using a weapon intent?

The Judge answered the questions with reference to the time at which intent was to be considered, the use of the weapon and a discussion of inferences as to whether people can be said to intend the consequences of their actions.In light of the jury's questions the Judge's answer was entirely appropriate. There was no need for further reference to the issue of self defence.
[8] Lack of intent and self defence are entirely distinct defences.It was for the Crown to prove beyond reasonable doubt that the appellant intended to cause grievous bodily harm to the complainant and also that the appellant was not acting in self defence.Clearly the jury's questions related to this first issue and the Judge was right not to further confuse the jury by repeating his direction on self defence.In finding him guilty, as they did, the jury obviously accepted that the appellant had the requisite intent and rejected the contention that he acted in self defence.
[9] On the evidence we are satisfied that these findings were well open to the jury.The appellant hit the complainant to the head numerous times with a baseball bat or something similar and continued to hit and kick the complainant once he had fallen to the ground.Hence, there was clearly evidence on which the jury could conclude that the appellant intended the harm that in fact resulted.The evidence in support of self defence was always slim. In particular, the length of time which the appellant waited for the complainant in the carpark and the absence of any weapon or physical threat from the complainant are in our opinion crucial.The trial Judge stated in a ruling:

There is, in my view, very little evidence upon which there can be any suggestion of self defence...I err on the side of caution and in favour of the accused.I propose to leave the matter before the jury, but if there is a threshold, it is so little over it that the gap between the threshold and this evidence is almost indiscernible and Ms Hughes, of course, may expect some comment on the weight to be attached to that in my summing up.

We agree.There was little evidence to support the appellant's defence of self defence and we consider that it was clearly open to the jury to reject that defence.Indeed, we consider that had the Judge declined to leave the defence to the jury it would have been difficult to challenge such a decision on appeal.
[10] We are satisfied that the Judge was correct to limit his answer to the jury's questions to intention.There was no need to go to further direct the jury on self defence.In light of the above discussion of the defence we are also satisfied that, even if such a direction was required, the jury rightly rejected the defence so that, in any event, no miscarriage could have been said to have occurred.The appellant's appeal against conviction fails.
[11] The appellant also appeals against his sentence of four and a half years imprisonment on the basis that it was manifestly excessive.The Judge referred to R v Hereora [1986] 2 NZLR 164 and noted that sentences of imprisonment of three to five years had been upheld in the absence of significant aggravating features, or five to eight years for cases exhibiting a combination of aggravating features.By way of aggravation the sentencing Judge noted that there was a degree of premeditation, albeit limited, and the significant effect on the victim who continues to fear for his safety.The Judge also noted that the appellant did not recognise that he had an anger problem, but considered this to be a lack of a mitigating feature rather than an aggravating one.In mitigation the Judge recognised that the appellant was a good father, was not generally a user of alcohol and had a strong work ethic. He sometimes, however, got himself into misunderstandings which boiled over into confrontations.The appellant has a previous conviction for injuring with intent to cause grievous bodily harm in not dissimilar circumstances in 1994.
[12] In light of the features outlined above the Judge concluded that the appellant's offending fell towards the top end of the first category described in Hereora or towards the bottom end of the second category.He viewed the appropriate sentence to be one of four and a half years imprisonment and we are satisfied that this was well within his discretion.This was an attack from behind on an unarmed man in retaliation for an earlier confrontation.It involved premeditation and a significant level of violence. We do not consider that the sentence imposed in this case was excessive.
[13] For the reasons given the appeals against both conviction and sentence are dismissed.