MEY v R [2004] NZCA 321 (17 December 2004)

Court of Appeal of New Zealand

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MEY v R [2004] NZCA 321 (17 December 2004)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA169/04

THE QUEEN



v



RAMON DIRK JOHANNES DE MEY

Court: McGrath, Glazebrook and Hammond JJ

Counsel: Appellant in person
T Smith for Crown

Judgment: 17 December 2004

(On the papers)

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by McGrath J)

Introduction

[1]	The appellant, Mr de Mey, appeals against his conviction by a jury for common assault. There is no appeal against the sentence of 100 hours community service imposed on him in the District Court. It was filed out of time but the appeal can be dealt with on its merits. An extension of time to appeal is accordingly granted.
[2]	This appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant material, including written submissions which have been received in accordance with r 29 of the Court of Appeal Criminal Rules 2001, have been considered by members of the court who have conferred and subsequently agreed upon this judgment and associated reasons.

Facts

[3]	At about 10 pm on 14 November 2002, the appellant met the complainant while walking along Lambton Quay. They had known each other for some time. He called out to the complainant and approached him. When asked by the complainant what he was doing there, the appellant gave no answer. The Crown case was that he had already been several times to the complainant’s home and was in the area hoping to meet up with him. The complainant invited the appellant home for coffee. They walked back to his apartment, talking amicably.
[4]	Once at the apartment, the complainant said that he took the appellant into the lounge and left him there, returning to the hallway to switch off the light and chain the door. When he tried to return to the lounge the appellant was blocking the door. The appellant then placed his hands around the complainant’s neck, squeezing extremely hard with both hands. The complainant tried to remove the appellant’s hands from his throat, and to make his way towards the door of the apartment. Eventually he reached the door and unchained it. The appellant removed one hand from his throat and scratched the complainant’s arm but soon resumed his attempts to strangle the complainant with both hands. Nonetheless, the complainant succeeded in reaching the corridor outside the apartment, where he called for help but no one answered. He then managed to escape the appellant’s grasp and ran away down the corridor. After seeking the assistance of a neighbour he rang the police. The assault caused numbness around the complainant’s mouth and cheek, earache and abrasions on the neck and arm.
[5]	The appellant’s version of events was quite different. He said that they had entered the living room, where the complainant had suddenly reached for his groin. The appellant had lost his temper and reacted by pushing the complainant away, briefly grabbing his neck and punching him in the face a few times. He said that he was angry with the complainant and wanted to teach him a lesson. The complainant, however, broke free and fled the apartment. The appellant accepted in his statement that he had gone too far and had used too much force.
[6]	The appellant was charged, in the alternative, with assault with intent to injure and common assault. He chose to represent himself at his trial. His cross-examination of the complainant focused on a previous inconsistent statement he had made in the course of a police interview. In that statement, the complainant had said that the appellant had turned on him as they were entering the flat. The complainant said that the discrepancy was caused by the police officer only making a general record of what had happened rather than recording everything he had said. The officer, however, said that he took statements down word for word. There was also a question about whether the complainant had initially been reluctant to involve the police.

The summing up

[7]

Judge Ongley, in his summing up, reminded the jury that it had been put to it by the appellant that the complainant had been inconsistent, which could be seen as indicating that his evidence was not credible. The Judge also directed the jury to consider whether the appellant had been acting in self-defence. The directions were accurate and balanced, and care was taken by the Judge to tell the jury that in the interests of fairness they needed to make some allowance for the fact that the appellant was unrepresented. He could not put his case with the eloquence and persuasion of a defence lawyer.

Conviction and sentence

[8]

The jury convicted the appellant of common assault, rejecting the more serious charge of assault with intent to injure. Presumably it did so on the basis that it was not satisfied that the appellant intended to cause more than transitory or trifling harm. Judge Ongley gave the appellant the benefit of the doubt in relation to self-defence, sentencing him on the basis that he had gone too far in defending himself. He sentenced the appellant to 100 hours of community work.

Submissions

[9]

In his written submissions the appellant has provided us with a lengthy analysis of the evidence, which he says proves that the complainant’s account was false in relation to the duration and severity of the attack and as to what had prompted it. He further submits that his statement, in which he said that his motive in attacking the complainant was to teach him a lesson, was consistent with self-defence. It follows, he argues, that he should have been acquitted. The appellant also says that the jury would not have acquitted him on the more serious charge unless satisfied that he was acting in self-defence. His conviction is therefore inconsistent with the jury’s view of the assault with intent to injure charge.

[10]

Ms Smith for the Crown responds that the main issue was whether the appellant acted in self-defence. The Judge had correctly directed the jury on that issue. The appellant’s objection is that he should not have been convicted as the complainant’s evidence was not credible. That however was a matter for the jury. As the appellant had admitted in his statement (which was before the jury) that he had gone too far, there was ample evidence on which it could reject self-defence.

Discussion

[11]

The appellant’s cross-examination of the complainant highlighted certain inconsistencies which, as the Judge said in his summing up, were matters the jury had to take into account in deciding whether the complainant’s story was credible. However, the appellant had admitted that an assault took place. So even if they doubted the complainant’s credibility, the jury still had to consider whether the appellant was acting in self-defence. There was evidence capable of establishing beyond reasonable doubt that the force used was excessive. This came from the appellant’s own statement as well as the evidence of the complainant and the medical evidence. As a matter of law an assault intended to teach the victim a lesson is not self-defence, and feelings of anger may in some circumstances support an inference of excessive force. The matter was one for the jury. The verdict indicates that it did not accept the appellant’s analysis of his statement and there was evidence to support that verdict. It follows that the appeal must be dismissed.

[12]

Insofar as the appellant complains that the jury did not have the analysis he now puts forward before it, he chose to conduct his own defence and must take the consequences of that. In any case, with the assistance of the Judge, the essential elements of his defence were put before the jury. We are satisfied that his trial was fair and that there was no miscarriage of justice.

Result

[13]	For these reasons the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington