THE QUEEN v MICHAEL THOMAS PALMER [2001] NZCA 75 (30 March 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 461/00

THE QUEEN

V

MICHAEL THOMAS PALMER

Hearing:	28 March 2001
Coram:	Richardson P Anderson J John Hansen J
Appearances:	G Gotlieb for Appellant A J F Perkins for Crown
Judgment:	30 March 2001

judgment of the court delivered by RICHARDSON P

[1] Following a one day trial in the District Court at Whangarei, Michael Thomas Palmer was found guilty by a jury on a count of assault with intent to injure. The sole ground of his appeal against conviction is that errors by his trial counsel cumulatively rendered the conviction unsafe and unsatisfactory, occasioning a miscarriage of justice.

[2] As summarised by Mr Gotlieb for the appellant, it is submitted that trial counsel had failed to prepare properly for trial and due to this was unable to properly represent the appellant;that he failed to follow the instructions of the appellant in regard to evidence that should have been called and witnesses that should have been cross-examined;that he fell below the standard of competent counsel in the course of the trial, by failing to put to witnesses evidence that should have been put to them and to cross-examine on inconsistencies;and generally that he failed to meet a standard sufficient to properly represent the appellant.

[3] The well settled test is whether the conduct of the defence can be said to have led to a miscarriage of justice, or at least to "a real risk of a miscarriage of justice":R v Quinn [1991] 3 NZLR 146.In order to reach that threshold, the appellant must demonstrate "radical" or "fundamental" mistakes or blunders, not merely decisions that could have yielded better results: R v Pointon [1985] 1 NZLR 109; R v H [1997] 1 NZLR 673; R v Coster (CA 538/95, judgment 19 March 1996); Byford v R (CA 74/93, judgment 25 June 1993).If it is established that trial counsel failed to follow his or her client's instructions, the appellant must also show that the failure led to a miscarriage of justice:R v Reti (CA 296/91, judgment 22 November 1991);R v S [1998] 3 NZLR 392.

[4] It was a short trial.The Crown called three witnesses:the complainant, her adult daughter, Nicola, and Constable Jeeves, the Police Officer who interviewed the appellant.The defence called the appellant and Mr Hayman, who had taken photographs and was also a character witness. The notes of evidence run to only 28 pages.Counsel addressed, the Judge summed up, and the verdict was delivered later that day.

[5] The essence of the case is conveniently summarised by counsel for the Crown in this way:

The charges arose out of an incident between the Appellant and his ex-partner, Tracey Maitland, on 27 March 2000.The Crown case was that the Appellant argued with Ms Maitland, pushed her backwards into a chair;kicked her in the chest, and kicked her in the face.The Crown alleged the Appellant then punched Ms Maitland in the head and continued to kick her in the chest and stomach area.It was common ground that both had been drinking prior to this incident.

The assault was witnessed in part by the complainant's daughter, who gave evidence at trial confirming that she saw the Appellant hitting and punching the complainant.

The Appellant gave evidence and denied that he ever kicked or punched Ms Maitland."At no time did I ever punch her, or kick her....I never assaulted her at all let alone with intention to injure her". Mr Palmer denied doing any more than pushing Ms Maitland.

The Appellant also said in evidence that Ms Maitland attacked him. This was the basis for the defence of self-defence put to the jury.

Given the contradictory evidence presented to the jury, the Crown submits the case must have turned largely on the jury's findings of credibility in relation to Ms Maitland and the Appellant.It is inherent in the jury's verdict that the complainant's evidence was accepted over that of the Appellant.

[6] No issue is taken with the summing up.After giving standard and entirely appropriate directions the Judge said:

[17] Now this has been a short case and you have been helped by very able closing addresses from both counsel.I am not going to insult your intelligence by going over in detail what the evidence is, or indeed, to any large extent what counsel have said because that will be fresh in your memory. The Crown says really, in essence, to a certain extent this case gets down to who do you believe.The Crown says well here it is not just a case of one person and another person in a domestic situation or particularly a domestic situation where both parties obviously were pretty drunk, but you have got an independent witness who was not drunk and who has described to you graphically, what happened.The Crown says well if you accept her evidence of what happened then clearly the kicking and punching showed an intent to injure and at the very least there was an assault on the complainant.

[18] The Crown says it is not credible here to look at the defence of self-defence.The force was excessive, it was unreasonable, he could of walked away and if he punched and kicked her then quite clearly this would not be within the bounds of self-defence.The Crown says here was a woman who was drunk, falling down and staggering, could it reasonably be said here that the accused was acting in self-defence.The Crown says well the character evidence is neutral and I will remind you that people of good character do commit crimes.

[19] The defence case is to the effect the onus of proving these charges is on the Crown, can you be sure?The scenario is that there had been very heavy drink by both complainant and defendant.Drink affects people in different ways, and the defence asks you to consider that the actions of the complainant, as described with the accused coming in and apparently acting in the way he did, as being really a memory that had dimmed with the use of his alcohol.

[20] The daughter had said that the mother had had a lot to drink.The defence says the daughter's evidence should be treated with caution.It would be natural loyalty to the mother and the daughter could well have jumped to conclusions, and have mistaken what she saw through the window.The defence says well can you be sure that the leg was not used merely to restrain the complainant in the chair?The defence says this has been a pleasant weekend for the accused but on the other hand the complainant had broken up with her boyfriend, she had been placed under a lot of stress, she had had a row with her daughter, and can you rule out the possibility or probability that she snapped and she was lashing out?The defence asked you to have regard to the photos.The defence says that certainly you can not be sure that he had an intent to injure her.He specifically said that.Secondly, the defence says that there was, in fact, no assault here.

[21] That is about all I can help you with but I just make this observation. Quite clearly both the complainant and the accused were drunk.On the issue of the intent to injure, the alcohol is a factor.In other words, if you came to a view that there was an assault, it may be that you could not say beyond reasonable doubt that the accused had formed an intent to injure because it is not objectively, it is not what a reasonable person would think, it is what he thought.In the circumstances it does appear that there was very heavy drink here.You can not rule that factor out when you come to the element of intent to injure.

[7] In support of the appeal the appellant has made a lengthy affidavit raising numerous allegations against the trial counsel who has, in turn, responded essentially point by point to the charges made.Counsel has had 30 years litigation experience and has practised solely as a criminal barrister since 1995.He states that the appellant never expressed any concerns to him about his conduct of the case.

[8] In his submissions, Mr Perkins for the Crown has conveniently grouped the complaints made by the appellant against trial counsel under eight heads, namely that counsel (a) did not prepare properly;(b) did not challenge the admissibility of the appellant's statement to Constable Jeeves;(c) did not put the photographs of the appellant's injuries to Crown witnesses;(d) did not call the doctor who examined the appellant;(e) did not challenge the police officer's evidence that the appellant's knuckles were red;(f) did not sufficiently deal with the lack of medical evidence to support the complainant's version of events;(g) did not produce a diagram that could have cast doubt on the complainant's daughter's evidence as to what she saw through the window, and did not challenge an inconsistency between the daughter's evidence at depositions and at trial;and (h) did not introduce evidence of the past relationship between the complainant and the appellant.

[9] As the argument developed, the primary focus of Mr Gotlieb's response was on (a) and (b), Mr Gotlieb particularly emphasising para (a), failure to prepare adequately for the trial.

[10] It is common ground that Mr Palmer spoke to counsel on the telephone before the depositions hearing, that the two sat together during the hearing itself, that Mr Palmer wrote notes to counsel during the depositions hearing advising on specific areas as they came up, and that all three Crown witnesses were cross-examined at depositions.Next, in late September 2000 Mr Palmer supplied counsel with detailed background notes extending over 26 pages.They included six pages covering the weekend of the alleged assault.Then on 6 October counsel interviewed Mr Palmer at length in relation to the trial which was set for 12 October.In his affidavit counsel said that the interview lasted 2½ hours and was an extensive discussion of all aspects of the case:Mr Palmer said it lasted for just over an hour, that he raised various matters with counsel, that counsel recommended that Mr Palmer give evidence and said that everything would be all right, but that he, Mr Palmer, did not know what was meant to be happening and who was going to be witnesses for the defence, other than Mr Hayman.

[11] Mr Palmer had on 4 October consulted with Mr Gotlieb to discuss the trial and Mr Gotlieb also discussed the case with trial counsel. Mr Palmer understood that trial counsel was going to challenge the Police Officer's evidence of his interview with Mr Palmer which took place when the Police Officer arrived at the scene only an hour or so after the incident. The constable had made a record of the interview which Mr Palmer had declined to sign.According to that record, Ms Maitland, who was extremely drunk, started hitting Mr Palmer, everything on his part was self-defence, he hit her once with an open hand, not hard, but she bled from the mouth.Trial counsel said he subsequently spoke to Mr Palmer twice about the matter and Mr Palmer decided to allow the evidence to go in unchallenged as showing that self-defence was raised at the outset, and trial counsel's file note of a subsequent discussion on 11 October confirms that there was to be no challenge to the statement.

[12] The unsigned statement could not become an exhibit at trial and the Police Officer's evidence-in-chief traversed orally the matters it covered. Self-defence was emphasised further in the short cross-examination:

Now, during the course of this interview would you agree that he consistently maintained that he had been attacked by this woman?He did state he was being, he was attacked by her.

And that everything that he did, he maintained that was self-defence?In his statement he did say that he was doing it in self defence.

[13] Then, as bearing on the head of complaint (f) (in para [8] above), the cross-examination continued:

Did you have the complainant examined by any medical practitioner? No.

Do the Police have a doctor available to examine people who have suffered injury?There is a Police doctor available, normally the complainant goes and sees a doctor themselves.

Yes, but you can arrange for a complainant to see a Police doctor free of charge if you want to?Ah, yes, it's not normal practice though.

And in this case you didn't ask the complainant to do that?To see a Police doctor?

Yes?No.

[14] Mr Gotlieb submitted that trial counsel should have submitted a written brief of evidence for Mr Palmer and should have challenged the constable's evidence.In that latter regard Mr Palmer now says that he was never informed of his right to a lawyer, contrary to what the constable had recorded and contrary to the constable's oral evidence in that regard, and that the statement was not correct in saying that he had hit Ms Maitland and made her bleed.

[15] We are satisfied that counsel's preparation for trial was adequate.The relevant part of the extensive written memorandum supplied by Mr Palmer informed trial counsel of what he needed to know and could reasonably serve trial counsel as a brief of Mr Palmer's evidence, which given the nature of the case was necessarily short, covering limited issues.As well, the memorandum, which may in that respect be viewed as instruction to his counsel, complained only about the statement's inaccuracy, not that he was not cautioned and advised of his rights.

[16] Clearly, it was important to the defence to bring out that Mr Palmer had asserted at the first opportunity that he had been attacked by Ms Maitland and had acted in self-defence.Stating that he had hit her with an open hand or slap and that it was that which made her mouth bleed, could reasonably be seen as giving his claim plausibility rather than undermining it.Importantly, too, in cross-examination Mr Palmer accepted that he might have said to the Police Officer that he slapped her but it was not hard.

[17] We are not persuaded that Mr Palmer had good grounds for challenging the admissibility of the statement and, even if counsel's failure to do so was viewed as a failure to follow instructions, we cannot possibly say that that failure led to a miscarriage of justice.

[18] We can deal quite shortly with the other points raised.First, as to head (c) in para [8] above, the photographs were produced as an exhibit. They were available to the jury and they were the subject of a supportive comment by the Judge in the summing up to the jury.Further, it is not apparent that Ms Maitland would have been in a position to comment on the photographs in a way that would support the defence case.Mr Palmer's black eye was visible.Another photograph showed some cuts to the hands and there was an absence of any damage to the knuckles (the Police Officer having said in evidence that he had noticed redness to Mr Palmer's knuckles when he saw Mr Palmer back at the Police Station).Also as to head (d) of para [8], Mr Palmer said in evidence that he had seen a doctor the next day in Wellsford, who confirmed the injuries.But, without an affidavit from the doctor, it is impossible to conclude that any evidence the doctor could have given would have made any difference at trial.And as to head (e), trial counsel said, realistically we consider, that Mr Palmer had the photographs to show the state of his knuckles "and I didn't think that the policeman's evidence about this could be shaken".

[19] Next, as to the absence of medical evidence to support the complainant's version of events, we consider that the cross-examination referred to in para [13] above, had clearly and sufficiently signalled that the Police had not thought it could help their case to have her medically examined. Further, while the diagram referred to in head (g) was available to trial counsel, he said that he never understood Mr Palmer to be suggesting that from where Nicola was standing she would not have been able to see inside.It is difficult to see how any additional cross-examination of Nicola would have assisted the defence case.

[20] We are also satisfied that counsel's decision not to explore in evidence the history of Mr Palmer's relationship with Ms Maitland (head (h)) was a reasonable judgment, and certainly cannot be characterised as a radical error.Finally, the other and lesser matters raised by Mr Palmer are without substance and do not warrant separate discussion.

[21] In the result we are not persuaded that there is any substance in the criticism of trial counsel's conduct.There is nothing in the transcript of the trial itself which occasions concern and we note, too, that the trial Judge went so far as to remind the jury (para [6] above) that they had been helped by very able closing addresses from both counsel.

[22] The appeal is dismissed.

Solicitors

Crown Solicitor, Auckland