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DONALDSON v R [2004] NZCA 284 (23 November 2004)

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DONALDSON v R [2004] NZCA 284 (23 November 2004)

Last Updated: 3 December 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA453/99

THE QUEEN

v

MICHELLE FAYE DONALDSON

Hearing: 11 October 2004

Court: Glazebrook, Hammond, William Young JJ

Appearances: A Shaw and T Ellis for Appellant
B M Stanaway for Crown

Judgment: 23 November 2004

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS

(Given by Glazebrook J)

Introduction

[1] On 1 October 1999, the appellant, Ms Donaldson, was found guilty by a jury of a charge of assault. On 5 November 1999, she was sentenced by Judge MacDonald in the District Court at Dunedin to three months periodic detention and six months supervision.
[2] This is a rehearing of her appeal against conviction and sentence, a previous appeal to this Court having been dismissed on the papers on 29 June 2000. We note that Ms Donaldson was one of the appellants whose case was considered by the Judicial Committee of the Privy Council in R v Taito [2003] 3 NZLR 577.

Background

[3] On 23 May 1999, at around 2:30 am, Ms Donaldson was in central Dunedin with some friends, including another woman, Ms Cassie Andrew. The complainant, Mr Kevin Stanger, was also downtown with three friends. Mr Stanger’s group saw Ms Donaldson assaulting a young man to whom Mr Stanger’s group had just been talking.
[4] Mr Stanger and his friend, Mr Adrian Thompson, went to question Ms Donaldson. She was allegedly abusive and swung an empty bottle at Mr Stanger. Mr Stanger took the bottle away from her and, at that point, members from Ms Donaldson’s party intervened, apparently thinking that Mr Stanger was about to hit Ms Donaldson with the bottle. Mr Thompson was knocked unconscious onto the pavement. Mr Stanger and a third member from his group, Ms Robertson, knelt down beside Mr Thompson to see if he was alright, at which point the Crown case was that Ms Donaldson kicked Mr Stanger in the eye. Ms Donaldson denied kicking Mr Stanger. She said that it was in fact Ms Andrew who was the assailant.
[5] Mr Thompson identified Ms Donaldson as the person who had hit the young man and as the person whom Mr Stanger had confronted. Mr Stanger was not able to identify his assailant at trial but said that it was the same person he had confronted earlier. Ms Robertson identified Ms Donaldson as the assailant to the police straight after the incident and at trial. Ms Robertson had also told the police that the assailant had a pierced tongue with a stud through it.
[6] Constable Baker gave evidence that he had examined the tongues of both Ms Andrew and Ms Donaldson at the time of the incident. Ms Andrew did not have a tongue piercing, whereas Ms Donaldson did. He had recorded this in a job sheet completed shortly after the incident.
[7] Ms Donaldson’s lawyer had arranged for Ms Andrew to attend the depositions hearing under subpoena. In the end, she was not called as a defence witness at depositions, although there was an attempt (resisted by the Crown) to have the Crown call her. There was evidence at trial that Constable Baker had spoken to Ms Andrew some time after the depositions hearing and he acknowledged in cross-examination that, at that time, she had been wearing a tongue stud. By way of background information and without objection from Mr Shaw, Mr Stanaway showed us the record made by Constable Baker of the interview with Ms Andrew. Aspects of her statement provided some assistance to the defence in that she claimed that Ms Donaldson was not responsible for the assault but this was expressed in a way which suggested that she would not have been a powerful witness for the defence. As well, she had said that she had not been wearing a tongue stud on the night in question and that Constable Baker had inspected her tongue.
[8] A member of Ms Donaldson’s group, Mr Carran, gave evidence that Ms Andrew had been responsible for the altercation with Mr Stanger and for kicking him in the eye. A bystander, who knew all the participants, gave evidence to similar effect. Mr Carran also said that the police constable had not checked Ms Andrew’s tongue immediately after the incident. His evidence was that he had noticed that Ms Andrew had her tongue stud in because she had been playing with it earlier in the evening. Mr Carran’s evidence was:

do u remb what happened when the plce started speaking to cassie and michelle – yeah, they pulled them out of the group and moved them away, like four metres away from us.
and did u stay with the group or did u go over – yeah, i went over bec I got asked to roll a cigarette for Michelle.
and what happened when u got over – i got told in some unreasonable term to go away from them.
did u stay there or did u go away at tht stage – i went back over by where everyone else ws.
what did u see taking place between the plce and Michelle and cassie – from where i ws i cld see them motioning to Michelle to her mouth and she hd to go like this, INDICATES STICKING TONGUE OUT.
u just indicate she hd to stick her tongue out – yeah.
hs she got something on her tongue – yeah, tongue piercing.
and did u see anyth else – it ws with one of those, like a little bolt thing, tht goes thru there with a ball in there and probably a ball underneath.
what abt Cassie Andrew – no they didnt worry abt asking her.
cld u see Cassie Andrew from where u were – yep.
hv u ever observed whether Cassie Andrew hs a tongue bar – yeah, she hs.
did u observe her on tht night whether she hd tht tongue bar in – yeah, she ws playing with it earlier on before we seen einstein....

XXD Mr Wright
u say the male plceman do i take it u accept tht it is the constable at the back of the court there – yeah.
and u say tht he never got this other girl cassie to show whether she hd a tongue stud in or not – no he didnt.
so if he hs told this jury he did he is lying – yeah.
and if he went back to the plce station and wrote up a job sheet to the effect tht one girl hd a tongue stud and the other didnt tht wld be quite wrong wldnt it – ys it wld.
the plce officer wld be lying under oath and he wld be writing up a report of something tht wld be quite false – yeah, he wld.
when were u first asked abt this matter – on monday.
this monday – yeah.
on this monday u were asked to come along to court and give evi in respect of it – i got asked to get a hold of Michelle’s lawyer on thursday and i came in to see him on monday.
so thts the first u knew of it, monday of this week – i knew i might hv to come up and give evi before tht, like two months beforehand, i just got asked on monday to come in....
how long hv u known cassie – for just over a yr.
how long hv u known Michelle – for abt a yr and a half.
and are u saying tht it ws cassie who ws causing the agro outside the National Mutual building – yes.
it ws cassie from whom the bottle ws taken – ys.
cassie hd a stud in her tongue – ys.
and it ws cassie who kicked Mr Stanger in the head – ys.
hvnt u just substituted cassie for Michelle all thru yr evi – no.
u dont know any of the other men who were involved – no.

Conviction appeal

Submissions on behalf of Ms Donaldson

[9] The first ground of appeal relates to alleged unfairness in the Judge’s summing up. Mr Shaw pointed first to the fact that the Judge told the jury that, if it rejected the evidence of the Crown witness Constable Baker, it would mean that he had "committed perjury and committed all sorts of other terrible sins". Mr Shaw submitted that this comment indicated to the jury that the Judge preferred the evidence of the Crown. This in turn made it difficult, in Mr Shaw’s submission, for the jury not to accept the Constable’s evidence in full.
[10] The second alleged unfairness in the summing up was where the Judge had attempted to explain why neither party had called Ms Andrew. Mr Shaw submitted that the Judge explained away the Crown’s failure to call her and criticised the defence for not doing so. This wrongly implied that the defence had something to hide by choosing not to call Ms Andrew. Mr Shaw also said that the defence had been expecting Ms Andrew to be called.
[11] The second ground of appeal, as filed, was that the trial Judge had declined the request of trial counsel to include four matters in his summing up. Trial counsel cannot now recollect what these matters were and the files of both Crown and defence counsel cannot be located. Neither the Court nor the Judge now have any record of these matters or any ruling on them. It is clear, however, from the Crown Book that, after the summing up and after the jury had retired, there was a discussion between counsel and the Judge that lasted for seven minutes. We note at this point that it appears from the Crown Book that there had also been concerns raised by defence counsel after the Crown counsel address. Again, no record now exists of these discussions.
[12] In Mr Shaw’s submission, the failure of the trial Judge to record trial counsel’s application or to record the reasons for refusing that application breached Ms Donaldson’s right to a fair trial contrary to s 25(a) of the New Zealand Bill of Rights Act 1990, the analogue common law right, and art 14(1) of the International Covenant on Civil and Political Rights. The breaches mean that Ms Donaldson cannot now pursue the second ground of her appeal effectively.
[13] Her inability to pursue that second ground was, in his submission, exacerbated by the failure of this Court to conduct a lawful hearing of her appeal in 2000. The delay in having a proper hearing of the appeal has meant that documents necessary for the appeal are no longer available.

Submissions of the Crown

[14] Mr Stanaway, for the Crown, submitted that the Judge’s summing up was orthodox and appropriate. The trial Judge did not express any personal view on the strength of the evidence, but stressed that the facts were for the jury. The Judge’s comment on perjury, when placed in context, referred to the submissions of counsel for the Crown, and this was balanced with reference to the matters raised by Ms Donaldson’s trial counsel. In any event, it was submitted that, even if the Judge had conveyed that he believed the constable, a judge is not precluding from indicating his view of the evidence: R v Afele CA330/03, 10 December 2002.
[15] With respect to the second alleged ground of unfairness in the summing up, the Crown submitted that the Judge was merely trying to allay jury speculation as to what Ms Andrew might have said and why she was not called. In response to the allegation that the defence was expecting Ms Andrew to be called, the Crown submitted that it was noticeable that there had been no application made under s 368 of the Crimes Act in relation to Ms Andrew. In Mr Stanaway’s submission that was not surprising given that it was clear, based on Ms Andrew’s interview with Constable Baker after depositions, that her evidence would have been of little use to the defence.
[16] Turning to the second ground of appeal, Mr Stanaway submitted that the convention of a trial Judge inviting counsel to make corrections to his or her summing up is not an inevitable practice. Further, a trial judge has the discretion to determine whether or not to act on the objections raised. In addition, trial counsel had made no request for the Judge to record the application for redirection or to provide a judgment recording his decision.
[17] In Mr Stanaway’s submission, the four matters raised could, in any event, have been pursued on this appeal, but only two points of contention with the summing up are pursued. Defence counsel have not been able to point to any other aspect of the summing up that raises any concern. Nor were any alleged omissions highlighted. In these circumstances, in the Crown’s submission, any failure to record trial counsel’s objections cannot have given rise to a miscarriage of justice.

Discussion of conviction appeal

[18] With regard to the first ground of appeal, the first impugned passage in the summing up relates to the issue of the tongue stud. The passage is as follows:

In this case, and there has been much made of it, there is the tongue stud. You have not had the advantage of seeing Ms Andrew, but from all accounts there may be some similarities between the accused and Ms Andrew. It is apparent that there was another blond woman who was there in dark clothing. It may be that they were wearing similar shoes or the same type of shoes but as far as the Crown is concerned, the feature they point to which is quite different is the tongue stud or the tongue piercing. This is a matter that you will need to consider.
The defence contend via the evidence of Mr Karrum [sic] that Constable Baker made no check of this other woman’s tongue, that is Ms Andrew. Constable Baker said he did and later confirmed that in a job sheet. It is a matter for you to decide on that aspect. Mr Wright has addressed you on what it means if you in fact reject what the constable says. It means he has committed perjury and committed all sorts of other terrible sins. You take those matters into account and also take into account what Mr Barr has said about that issue.

[19] Mr Shaw contended that the comment on the Constable having "committed perjury and committed all sorts of other terrible sins" was a remark setting out the Judge’s own view of the evidence. We are unable to read it in this light. In context, it is clearly a reference to prosecuting counsel’s submissions. Even had it been a comment of the Judge, a Judge is entitled to express a view on the evidence as long as it is made clear that the jury does not have to accept that view. In this case, it is apparent from the passage in question and the summing up as a whole, that it was made clear that the jury had to come to its own view.
[20] Mr Shaw’s alternative submission was that the passage shows a lack of balance on a key issue. We are also unable to accept that submission. The jury were specifically referred to Mr Carran’s evidence that after the incident there had been no check made of Ms Andrew’s tongue. The significance of this as the only distinguishing feature between the two girls was stressed and the Judge directed the jury to take account of what defence counsel had said about the issue.
[21] Mr Shaw complained that the Judge should have mentioned Mr Carran’s evidence that, earlier in the evening, he had seen Ms Andrew’s tongue stud. There is nothing in this complaint. The jury was clearly directed to Mr Carran’s evidence and the Judge was not obliged to summarise all of that evidence. Mr Shaw also complained that it had not been put squarely to Mr Carran that he was mistaken or lying. Again, we do not agree. Reading his evidence as a whole, we consider that this was clearly put to Mr Carran.
[22] The next passage complained of in the summing up relates to Ms Andrew. Judge MacDonald said:

There is, of course, the other aspect that it is suggested by the defence that not only was it not the accused, but they offer up a positive defence by saying who in fact it was. That was Ms Andrew. I will just deal with that for a moment. You may be troubled by the fact that you have not had the benefit or the advantage of seeing Ms Andrew. The position, as I see it, is that the Crown obviously took the view that Ms Andrew was not the offender and therefore elected not to call her. As far as the defence is concerned, they argue that they have got no obligation to prove anything and that, of course, is right. But equally I must say to you, particularly if Ms Andrew was an associate of the accused, that it was certainly open to the defence to call Ms Andrew along if they had chosen. Although Mr Barr criticised the Crown strongly for not having Ms Andrew here, that is a choice the Crown has made. There was the option still available to the defence without suggesting in any way that the defence has any onus or burden of proving anything in this trial.

[23] It is clear from the tenor of this discussion that the comments were made in response to the closing address of defence counsel and criticisms made in that address of Ms Andrew not being called by the Crown. In these circumstances, the Judge was entitled to point out to the jury that it was open to the defence to have called Ms Andrew as long as he (as he did) made it clear that the defence did not have to prove anything. We also accept Mr Stanaway’s submission relating to the significance of the fact that a s 368 application was not made in relation to Ms Andrew. There is no evidence that counsel for the defence was expecting Ms Andrew to be called as a Crown witness. The course events took at depositions in fact suggests the contrary. Given the contents of her statement to Constable Baker, the reality is that it was never likely that either party would have called her.
[24] We turn now to the second ground of appeal. It is certainly best practice for matters relating to the summing up raised by counsel (even in the absence of the jury) to be recorded in some manner. This applies even if there is no specific request in that regard by counsel. In this case we do not know why there is no record of the discussion. It may be because the recording device was not running (but that may not have been the fault of the Judge). It may be that there was a recording but that it was wiped.
[25] Whatever the position, Ms Donaldson must show that the absence of the record has led to a miscarriage of justice. In this case that cannot be shown. The summing up is available. It would have to be assumed that, if there were omissions in the summing up which may have affected the outcome, these would have been identified by her counsel on appeal. There have been no such omissions identified in the summing up and we have already dealt with the alleged deficiencies counsel have identified in it.
[26] This ground of appeal must fail.

Appeal against sentence

Sentencing remarks

[27] Ms Donaldson was sentenced on 5 November 1999. Judge MacDonald took the view that something additional to supervision was required to bring home to Ms Donaldson that she cannot act in this way. He characterised the incident as a "cowardly assault", in that Mr Stanger was defenceless and caught by surprise. The Judge took the view that the entire incident, including Mr Thompson having been knocked unconscious, occurred as a result of Ms Donaldson’s initial act of hitting an intellectually disabled young man. He also noted that no credit could be claimed for a guilty plea.

Submissions of the parties

[28] Mr Shaw, for Ms Donaldson, contended that the sentence was manifestly excessive and inappropriate. Periodic detention should not have been imposed. Mr Shaw pointed out that the Judge had imposed periodic detention in circumstances where this was not recommended by the pre-sentence and probation reports. He also pointed out that Ms Donaldson was barely 17 years old at the time of the offending and that she had no previous convictions (then) and only had an outstanding fine for driving without a licence. In Mr Shaw’s submission, the assault was not serious.
[29] He submitted that the offending in this case was less serious than that in R v Tevaga [1991] 1 NLZR 296 in which 100 hours of community service was imposed. It was also less serious than F v Police HC PMN, AP31/97, 30 July 1997 in which a sentence of six months supervision and three months periodic detention was imposed.
[30] Mr Stanaway, for the Crown, submitted that the sentence was neither excessive nor inappropriate. The Judge had heard the evidence and he was entitled to take into account the circumstances of the offending as an aggravating feature. Here a young intellectually disabled man was struck for no apparent reason, the complainant was abused and insulted for being a good Samaritan and he was defenceless and caught by surprise.
[31] Tevaga is, in Mr Stanaway’s submission, distinguishable on its facts. In that case the Court had been influenced by the appellant’s age, favourable antecedents, and that he had already been penalised via a suspension imposed by the Manawatu Rugby Football Union. Further, the case of F v Police shows that three months periodic detention is not manifestly excessive. In that case a term of periodic detention was imposed in a case involving significant mitigating factors. Finally, it was submitted that the Judge was not bound by the sentencing report’s recommendations and was entitled to take the view that the offending warranted denunciation and deterrence by the inclusion of a term of periodic detention.

Discussion of sentence appeal

[32] We do not consider that the imposition of three months periodic detention was manifestly excessive. It was within the range of penalties available to the Judge. The Judge, as the trial Judge, was in the best position to assess the seriousness of the assault. He was entitled to take into account the events leading up to the assault and Ms Donaldson’s role as precipitating those events. There is no doubt that it was, as the Judge said, a cowardly assault and one on a person who had been trying to help a vulnerable young man. In addition, any assault involving a kick to the head cannot be regarded as anything but serious.

Solicitors:
Crown Law Office, Wellington

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[1]	On 1 October 1999, the appellant, Ms Donaldson, was found guilty by a jury of a charge of assault. On 5 November 1999, she was sentenced by Judge MacDonald in the District Court at Dunedin to three months periodic detention and six months supervision.
[2]	This is a rehearing of her appeal against conviction and sentence, a previous appeal to this Court having been dismissed on the papers on 29 June 2000. We note that Ms Donaldson was one of the appellants whose case was considered by the Judicial Committee of the Privy Council in R v Taito [2003] 3 NZLR 577.

[3]	On 23 May 1999, at around 2:30 am, Ms Donaldson was in central Dunedin with some friends, including another woman, Ms Cassie Andrew. The complainant, Mr Kevin Stanger, was also downtown with three friends. Mr Stanger’s group saw Ms Donaldson assaulting a young man to whom Mr Stanger’s group had just been talking.
[4]	Mr Stanger and his friend, Mr Adrian Thompson, went to question Ms Donaldson. She was allegedly abusive and swung an empty bottle at Mr Stanger. Mr Stanger took the bottle away from her and, at that point, members from Ms Donaldson’s party intervened, apparently thinking that Mr Stanger was about to hit Ms Donaldson with the bottle. Mr Thompson was knocked unconscious onto the pavement. Mr Stanger and a third member from his group, Ms Robertson, knelt down beside Mr Thompson to see if he was alright, at which point the Crown case was that Ms Donaldson kicked Mr Stanger in the eye. Ms Donaldson denied kicking Mr Stanger. She said that it was in fact Ms Andrew who was the assailant.
[5]	Mr Thompson identified Ms Donaldson as the person who had hit the young man and as the person whom Mr Stanger had confronted. Mr Stanger was not able to identify his assailant at trial but said that it was the same person he had confronted earlier. Ms Robertson identified Ms Donaldson as the assailant to the police straight after the incident and at trial. Ms Robertson had also told the police that the assailant had a pierced tongue with a stud through it.
[6]	Constable Baker gave evidence that he had examined the tongues of both Ms Andrew and Ms Donaldson at the time of the incident. Ms Andrew did not have a tongue piercing, whereas Ms Donaldson did. He had recorded this in a job sheet completed shortly after the incident.
[7]	Ms Donaldson’s lawyer had arranged for Ms Andrew to attend the depositions hearing under subpoena. In the end, she was not called as a defence witness at depositions, although there was an attempt (resisted by the Crown) to have the Crown call her. There was evidence at trial that Constable Baker had spoken to Ms Andrew some time after the depositions hearing and he acknowledged in cross-examination that, at that time, she had been wearing a tongue stud. By way of background information and without objection from Mr Shaw, Mr Stanaway showed us the record made by Constable Baker of the interview with Ms Andrew. Aspects of her statement provided some assistance to the defence in that she claimed that Ms Donaldson was not responsible for the assault but this was expressed in a way which suggested that she would not have been a powerful witness for the defence. As well, she had said that she had not been wearing a tongue stud on the night in question and that Constable Baker had inspected her tongue.
[8]	A member of Ms Donaldson’s group, Mr Carran, gave evidence that Ms Andrew had been responsible for the altercation with Mr Stanger and for kicking him in the eye. A bystander, who knew all the participants, gave evidence to similar effect. Mr Carran also said that the police constable had not checked Ms Andrew’s tongue immediately after the incident. His evidence was that he had noticed that Ms Andrew had her tongue stud in because she had been playing with it earlier in the evening. Mr Carran’s evidence was:

[9]	The first ground of appeal relates to alleged unfairness in the Judge’s summing up. Mr Shaw pointed first to the fact that the Judge told the jury that, if it rejected the evidence of the Crown witness Constable Baker, it would mean that he had "committed perjury and committed all sorts of other terrible sins". Mr Shaw submitted that this comment indicated to the jury that the Judge preferred the evidence of the Crown. This in turn made it difficult, in Mr Shaw’s submission, for the jury not to accept the Constable’s evidence in full.
[10]	The second alleged unfairness in the summing up was where the Judge had attempted to explain why neither party had called Ms Andrew. Mr Shaw submitted that the Judge explained away the Crown’s failure to call her and criticised the defence for not doing so. This wrongly implied that the defence had something to hide by choosing not to call Ms Andrew. Mr Shaw also said that the defence had been expecting Ms Andrew to be called.
[11]	The second ground of appeal, as filed, was that the trial Judge had declined the request of trial counsel to include four matters in his summing up. Trial counsel cannot now recollect what these matters were and the files of both Crown and defence counsel cannot be located. Neither the Court nor the Judge now have any record of these matters or any ruling on them. It is clear, however, from the Crown Book that, after the summing up and after the jury had retired, there was a discussion between counsel and the Judge that lasted for seven minutes. We note at this point that it appears from the Crown Book that there had also been concerns raised by defence counsel after the Crown counsel address. Again, no record now exists of these discussions.
[12]	In Mr Shaw’s submission, the failure of the trial Judge to record trial counsel’s application or to record the reasons for refusing that application breached Ms Donaldson’s right to a fair trial contrary to s 25(a) of the New Zealand Bill of Rights Act 1990, the analogue common law right, and art 14(1) of the International Covenant on Civil and Political Rights. The breaches mean that Ms Donaldson cannot now pursue the second ground of her appeal effectively.
[13]	Her inability to pursue that second ground was, in his submission, exacerbated by the failure of this Court to conduct a lawful hearing of her appeal in 2000. The delay in having a proper hearing of the appeal has meant that documents necessary for the appeal are no longer available.

[14]	Mr Stanaway, for the Crown, submitted that the Judge’s summing up was orthodox and appropriate. The trial Judge did not express any personal view on the strength of the evidence, but stressed that the facts were for the jury. The Judge’s comment on perjury, when placed in context, referred to the submissions of counsel for the Crown, and this was balanced with reference to the matters raised by Ms Donaldson’s trial counsel. In any event, it was submitted that, even if the Judge had conveyed that he believed the constable, a judge is not precluding from indicating his view of the evidence: R v Afele CA330/03, 10 December 2002.
[15]	With respect to the second alleged ground of unfairness in the summing up, the Crown submitted that the Judge was merely trying to allay jury speculation as to what Ms Andrew might have said and why she was not called. In response to the allegation that the defence was expecting Ms Andrew to be called, the Crown submitted that it was noticeable that there had been no application made under s 368 of the Crimes Act in relation to Ms Andrew. In Mr Stanaway’s submission that was not surprising given that it was clear, based on Ms Andrew’s interview with Constable Baker after depositions, that her evidence would have been of little use to the defence.
[16]	Turning to the second ground of appeal, Mr Stanaway submitted that the convention of a trial Judge inviting counsel to make corrections to his or her summing up is not an inevitable practice. Further, a trial judge has the discretion to determine whether or not to act on the objections raised. In addition, trial counsel had made no request for the Judge to record the application for redirection or to provide a judgment recording his decision.
[17]	In Mr Stanaway’s submission, the four matters raised could, in any event, have been pursued on this appeal, but only two points of contention with the summing up are pursued. Defence counsel have not been able to point to any other aspect of the summing up that raises any concern. Nor were any alleged omissions highlighted. In these circumstances, in the Crown’s submission, any failure to record trial counsel’s objections cannot have given rise to a miscarriage of justice.

[19]	Mr Shaw contended that the comment on the Constable having "committed perjury and committed all sorts of other terrible sins" was a remark setting out the Judge’s own view of the evidence. We are unable to read it in this light. In context, it is clearly a reference to prosecuting counsel’s submissions. Even had it been a comment of the Judge, a Judge is entitled to express a view on the evidence as long as it is made clear that the jury does not have to accept that view. In this case, it is apparent from the passage in question and the summing up as a whole, that it was made clear that the jury had to come to its own view.
[20]	Mr Shaw’s alternative submission was that the passage shows a lack of balance on a key issue. We are also unable to accept that submission. The jury were specifically referred to Mr Carran’s evidence that after the incident there had been no check made of Ms Andrew’s tongue. The significance of this as the only distinguishing feature between the two girls was stressed and the Judge directed the jury to take account of what defence counsel had said about the issue.
[21]	Mr Shaw complained that the Judge should have mentioned Mr Carran’s evidence that, earlier in the evening, he had seen Ms Andrew’s tongue stud. There is nothing in this complaint. The jury was clearly directed to Mr Carran’s evidence and the Judge was not obliged to summarise all of that evidence. Mr Shaw also complained that it had not been put squarely to Mr Carran that he was mistaken or lying. Again, we do not agree. Reading his evidence as a whole, we consider that this was clearly put to Mr Carran.
[22]	The next passage complained of in the summing up relates to Ms Andrew. Judge MacDonald said:

[23]	It is clear from the tenor of this discussion that the comments were made in response to the closing address of defence counsel and criticisms made in that address of Ms Andrew not being called by the Crown. In these circumstances, the Judge was entitled to point out to the jury that it was open to the defence to have called Ms Andrew as long as he (as he did) made it clear that the defence did not have to prove anything. We also accept Mr Stanaway’s submission relating to the significance of the fact that a s 368 application was not made in relation to Ms Andrew. There is no evidence that counsel for the defence was expecting Ms Andrew to be called as a Crown witness. The course events took at depositions in fact suggests the contrary. Given the contents of her statement to Constable Baker, the reality is that it was never likely that either party would have called her.
[24]	We turn now to the second ground of appeal. It is certainly best practice for matters relating to the summing up raised by counsel (even in the absence of the jury) to be recorded in some manner. This applies even if there is no specific request in that regard by counsel. In this case we do not know why there is no record of the discussion. It may be because the recording device was not running (but that may not have been the fault of the Judge). It may be that there was a recording but that it was wiped.
[25]	Whatever the position, Ms Donaldson must show that the absence of the record has led to a miscarriage of justice. In this case that cannot be shown. The summing up is available. It would have to be assumed that, if there were omissions in the summing up which may have affected the outcome, these would have been identified by her counsel on appeal. There have been no such omissions identified in the summing up and we have already dealt with the alleged deficiencies counsel have identified in it.
[26]	This ground of appeal must fail.

[28]	Mr Shaw, for Ms Donaldson, contended that the sentence was manifestly excessive and inappropriate. Periodic detention should not have been imposed. Mr Shaw pointed out that the Judge had imposed periodic detention in circumstances where this was not recommended by the pre-sentence and probation reports. He also pointed out that Ms Donaldson was barely 17 years old at the time of the offending and that she had no previous convictions (then) and only had an outstanding fine for driving without a licence. In Mr Shaw’s submission, the assault was not serious.
[29]	He submitted that the offending in this case was less serious than that in R v Tevaga [1991] 1 NLZR 296 in which 100 hours of community service was imposed. It was also less serious than F v Police HC PMN, AP31/97, 30 July 1997 in which a sentence of six months supervision and three months periodic detention was imposed.
[30]	Mr Stanaway, for the Crown, submitted that the sentence was neither excessive nor inappropriate. The Judge had heard the evidence and he was entitled to take into account the circumstances of the offending as an aggravating feature. Here a young intellectually disabled man was struck for no apparent reason, the complainant was abused and insulted for being a good Samaritan and he was defenceless and caught by surprise.
[31]	Tevaga is, in Mr Stanaway’s submission, distinguishable on its facts. In that case the Court had been influenced by the appellant’s age, favourable antecedents, and that he had already been penalised via a suspension imposed by the Manawatu Rugby Football Union. Further, the case of F v Police shows that three months periodic detention is not manifestly excessive. In that case a term of periodic detention was imposed in a case involving significant mitigating factors. Finally, it was submitted that the Judge was not bound by the sentencing report’s recommendations and was entitled to take the view that the offending warranted denunciation and deterrence by the inclusion of a term of periodic detention.