THE QUEEN v CHRISTOPHER HAPIMANA BEN MARK TAUNOA [2002] NZCA 226 (23 September 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 155/02

THE QUEEN

V

CHRISTOPHER HAPIMANA BEN MARK TAUNOA

Coram:	Keith J Blanchard J Tipping J
Counsel:	J Mather for Appellant A Markham for Crown
Judgment (On the papers):	23 September 2002

judgment of the court delivered by tipping j

[1] This appeal against conviction and sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by members of the Court who have conferred and agreed upon this judgment.

Offences and sentence

[2] The appellant was convicted after a jury trial of injuring with intent to injure.The complainant was a fellow inmate at Paremoremo Prison.The appellant was sentenced on 23 April 2002 in the District Court at Auckland to a term of imprisonment of 21 months.

Relevant facts

[3] The appellant and the complainant were both inmates at ParemoremoA Prison. The appellant is serving life imprisonment on a conviction for murder.The two were engaged in a game of chess in a workshop room in the Prison when the appellant assaulted the complainant by punching him several times about the head and face, causing the complainant to fall to the ground.The complainant sustained cuts and bruising and a fractured nose and cheekbone.The complainant said that the assault occurred because he had won the game of chess against the appellant.The appellant argued that he was acting in self-defence under a threat of violence to him by the complainant.

Pre-trial application

[4] The appellant filed a pre-trial application for leave to cross-examine the complainant as to the complainant's previous convictions for violence.This was to establish that the complainant had a propensity for violence which could support the appellant's contention that he, the appellant, acted in self-defence.

[5] The Judge reviewed the relevant authorities and thought that they revealed that where a complainant's propensity for violence was relevant, the defence should be permitted to call direct evidence of it.However, the defence should only be allowed to call evidence of past episodes of violence on the part of the complainant where they indicated a propensity to be violent in situations similar to the one that he or she faced on the day in question.There had to be some connection between the acts of violence on previous occasions and the question whether, given the present situation, it was likely the complainant would have acted in a violent way.

[6] In this case the complainant had 19 previous convictions, including numerous convictions for violent offending.However, the Judge found that all of the complainant's serious convictions involved violence or threats of violence towards women, and were committed by the complainant in situations involving a degree of stealth or ambush.This category of violence was different to that allegedly used by the complainant in the present situation, because in the present circumstances it was alleged that the complainant made an aggressive approach.Accordingly the Judge declined leave to cross-examine the complainant on his previous convictions.

[7] In declining leave, the Judge also considered the fact that if the appellant was granted leave to cross-examine the complainant on his convictions, the Crown would seek leave to adduce evidence of the convictions of the appellant.And the Crown would have had a very powerful argument to cross-examine the appellant on his convictions if the convictions of the complainant were admitted.The Judge considered that if evidence of the appellant's conviction for murder was put before the jury, it would raise tremendous prejudice against the appellant.For these reasons the Judge refused the appellant's and the Crown's applications to adduce evidence of the previous convictions of the complainant and the appellant.

Grounds of appeal

[8] The appeal against conviction is on the basis that the trial Judge erred in declining to grant the appellant's application to cross-examine the complainant as to his previous convictions.The appellant's primary submission is that the Judge erred by taking into account an extraneous factor when arriving at his decision to decline leave, that extraneous factor being the tremendous prejudice against the appellant that could arise if the appellant's previous convictions were put before the jury.The appellant submits that if the complainant's convictions were admitted it did not follow that all of the appellant's convictions should also have been admitted.Although the appellant had 47 previous convictions, it is argued that only two of those were relevant to a propensity for violence - a conviction for assault with a blunt instrument and the conviction for murder.In any event, the appellant indicated at the time that he was prepared to have his previous convictions before the jury.It is submitted that the Judge should not have taken into account any prejudice to the appellant that may have resulted from having his previous convictions before the jury, as that was a matter where the appellant was entitled to make his own decision.

[9] The appellant also submits that the key question in cases such as the present, as articulated by Fisher J in R v Wilson [1991] 2 NZLR 717, is whether the evidence of the complainant's previous convictions would increase the likelihood that the person acted violently and aggressively on the occasion in question.It is submitted that the evidence in the present case met that test and the unfairness that arose from having the previous convictions of the complainant withheld from the jury amounted to a miscarriage of justice.

[10] The appellant's submissions do not address the issue of the appeal against sentence although we have been advised that it is still before the Court for consideration.The Notice of Appeal, however, states that the sentence appeal is on the grounds of manifest excess.In particular, the appellant submits that the sentence imposed did not give the appellant sufficient allowance for the consequences he had already suffered for his actions.

Reasons

[11] This is an appeal from the exercise of a discretion and the Judge has not been shown to have erred in principle or to have been plainly wrong.It is clear from the authorities that, to be admitted in evidence, the complainant's previous convictions must indicate a propensity to commit violence in situations similar to those in issue (R v Davis [1980] 1 NZLR 257, 261; R v Wilson [1991] 2 NZLR 707, 712-713).In this case, all of the complainant's prior convictions related to violence against women.It was open to the Judge to find that they were in a different category to the circumstances of the prison assault and were therefore inadmissible.

[12] It was also open to the Judge to take into account the issue of the prejudicial effect of the appellant's convictions as a relevant consideration. The Judge was concerned to ensure a fair trial.In any event, this factor was not determinative in the Judge's decision to decline leave.It is clear from the Judge's ruling that the decisive factor in declining leave was the lack of a sufficient connection between the complainant's previous convictions and the present situation.

[13] In relation to the appeal against sentence, we cannot accept the appellant's submission that insufficient allowance was made for the consequences he had already suffered.The sentencing Judge took into account a number of factors in the appellant's favour when considering the appropriate sentence to be imposed, including the fact that the appellant had been disciplined by the prison authorities and that he had faced additional hardship because a criminal charge was brought against him.A sentence of 21 months imprisonment was well within the range available to the Judge and cannot be said to be manifestly excessive.

Decision

[14] The appeal is dismissed.