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The Queen v Mabry [2006] NZCA 287 (13 October 2006)

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The Queen v Mabry [2006] NZCA 287 (13 October 2006)

Last Updated: 30 October 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA157/06

THE QUEEN

v

BRUCE MABRY

Hearing: 9 October 2006

Court: Glazebrook, Gendall and Venning JJ

Counsel: J S Jefferson for Appellant
B J Horsley for Crown

Judgment: 13 October 2006 at 11am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

[1] Mr Mabry was convicted after a trial in the District Court on one count of wounding with intent to cause grievous bodily harm. Mr Mabry appeals against his conviction.
[2] The only ground of appeal is that the trial Judge’s comments on Mr Mabry not giving evidence at trial were unbalanced and went too far. In all the circumstances it was submitted that the Judge’s comments removed from the jury the consideration of an alternative version of events and reversed the onus of proof.
[3] In order to assess that submission we must first fill in some more of the factual background and outline what the Judge said in his summing up.

Background facts

[4] The charge rose out of an incident that occurred on 28 June 2005. The complainant gave evidence that he was visiting some friends in Napier. When he left his friends’ house he saw Mr Mabry standing near where he had his car parked. Mr Mabry came towards him in an aggressive manner and started hitting him. At some stage during the fight Mr Mabry had the complainant in a headlock and was trying to get something out of his pocket. After the complainant got out of the headlock, he noticed that Mr Mabry had a knife in his hand. He tried to wrestle the knife off Mr Mabry and, at that time, one of his friends intervened in the fight. The two men were separated and Mr Mabry moved off down the street.
[5] The friend then noticed that the complainant was bleeding profusely and an ambulance was called. It turned out that he had been stabbed. The complainant was cross-examined extensively on whether he had started the fight and whether he was in fact the one who had had a knife in his possession. Both of these propositions were denied. The friend who intervened in the fight was never asked whether he had seen a knife in the possession of the complainant or whether there had been an opportunity for the complainant to dispose of the knife. The friend did however say that he had not seen Mr Mabry holding a knife. The police, after the incident, located a knife generally fitting the description given by the complainant (although not positively identified by him as the knife he had seen) some ten metres down a driveway further down the street.
[6] When stopped by the police, Mr Mabry made some brief comments acknowledging that he had had a fight. He said that the complainant had swung the first punch and that he did not know how the complainant had received injuries to his chest. Mr Mabry denied that he had a knife. When asked how the other man received stab wounds to his chest he responded "If he had a knife I may have taken it from him but I don’t remember". He was then asked whether the complainant had presented a knife to him and he responded "I don’t remember but if he did I may have got it off him but I don’t remember". Mr Mabry did not give evidence at trial.

Summing up

[7] In his summing up, Judge Rea made it clear that the Crown had to prove the charge beyond reasonable doubt. The Judge did this both in a general sense at the beginning of the summing up and again while explaining the elements of the offence. The Judge also made it clear near the beginning of the summing up that it was up to the jury to make an assessment of the facts. In terms of assessing the evidence, the Judge said:

Obviously, as I said to you at the start, it is not only what people tell you that is important. It can be how they say it. How do they react when they are challenged? How does what one person has to say about a particular event fit in with what somebody else has to say?
You have to make assessments of people, and certainly in this case you are going to have to do that. But that is part of your function in deciding what the facts are.

[8] In his general remarks, the Judge also explained to the jury what was evidence in the case, and what was not. He made it clear that the speeches that the lawyers had made were not evidence but merely submissions. He stressed that it was the answers to the questions that were evidence and not counsel’s questions. In particular, he stressed that counsel’s cross-examination of the complainant suggesting that it was the complainant who had brought the knife into play was not evidence. The mere fact that counsel put that proposition to the complainant did not make it true. It is the answer that the witness gave that is the evidence. Whether the jury accepted that answer or not was a matter for them. However the Judge pointed out that there was no evidence from anyone else, including from Mr Mabry, to support the proposition that the complainant had a knife.
[9] After going through the elements of the charge, the Judge turned to Mr Mabry’s statement to the police, which he read in relevant part to the jury. He said that it was up to the jury to decide whether they accepted the accuracy of what Mr Mabry had said to the police officer. It was also up to them to determine how much weight that they placed upon that statement.
[10] He went on to say that, in this case, Mr Mabry had refrained from giving evidence in court. However, he made it quite clear to the jury that there is no obligation on any person who is charged with a criminal offence to give evidence. He said that the defence does not have to prove anything. It is the prosecution that has to prove the case. He said that the jury must never draw a conclusion that, because Mr Mabry did not go into the witness box, he is somehow guilty or has something to hide. He then went on to say:

You however have not had the opportunity of seeing him give his account of what happened. You have not seen any cross-examination or questions challenging any account that he may give, and in fact you have to remember that there is no alternative explanation in the evidence other than that given by [the complainant] and what is contained in the statement made by the accused to [the police officer] that I have read the majority of to you just a moment ago. You have to decide the case on the evidence. There is no evidence here that [the complainant] was ever in possession of the knife. There is no evidence here that [the complainant] ever attacked the accused with a knife. The evidence is all the other way. Whether you accept that or not of course is for you.
The effect of Mr Mabry not giving evidence in this case simply means that there is not an alternative explanation from his point of view before you in evidence on oath. That does not mean that he has any obligation to do that. He does not. It simply means as a matter of fact there is no such alternative explanation other than what you have from [the complainant].

[11] After going through the Crown case, the Judge put to the jury the defence case that the blow was accidental. The Judge said:

It is important to say to you that Mr Jefferson [counsel for Mr Mabry] does not have to prove to you that it was an accident. If you cannot be sure that the blow was deliberately inflicted, then Mr Mabry is not guilty on this charge. It is not an issue of the defence raising the potential of accident and having to prove it. It is for the Crown to prove that the blow was intentionally struck.

[12] He then outlined in some detail the factors that the defence had submitted showed that the blow was accidental and noted that there was no concession that it was Mr Mabry who inflicted the wound or that, if he did, he intended to cause really serious injury.
[13] There was one further matter raised by the Judge. That is whether the knife found down the driveway was the knife that had inflicted the wound. The Judge said that in the end that would be a matter for the jury but they must remember that the complainant was not positively able to identify that particular knife as being the knife he had seen. He said that the jury needed to look closely at the evidence to determine whether in fact it was the weapon in question but reminded them that the Crown did not have to prove that it was that particular knife. He went on to say:

If you are satisfied beyond reasonable doubt that [the complainant] was stabbed by the accused with a knife or similar object, that Mr Mabry did it deliberately and that he intended to cause really serious bodily harm, then the Crown do not have to turn up with the weapon that did it provided you are satisfied that there was some implement that did do that with that intention, then that would be sufficient.
But I raise this with you so you do not just automatically say "oh well they’ve got a photograph of the knife, that must be it". You have to be more analytical than that.

Did the Judge go too far in his directions on Mr Mabry not giving evidence?

[14] Mr Jefferson, for Mr Mabry, conceded that the Judge was entitled, in the circumstances of the case, to direct the jury that counsel’s questions of the complainant as to whether he had had a knife were not evidence. He also conceded that this was a case where it was appropriate for the Judge to say that there was no evidence that the complainant had a knife. Finally, he conceded that this was a case where it was not inappropriate for the Judge to comment on Mr Mabry’s failure to give evidence.
[15] All these concessions were in our view well made. Counsel’s questions are not evidence and there can be nothing improper in directing the jury to that effect. There was no evidence that the complainant had a knife, including in Mr Mabry’s statement to police. There can be nothing wrong in the Judge pointing this out.
[16] As to the comment on Mr Mabry’s failure to give evidence, in R v McRae (1993) 10 CRNZ 61 at 64 Tipping J for this Court noted situations in which judicial comment on the failure of an accused to give evidence might be expected. One situation he identified was where the accused attempts to place an alternative fact scenario before the jury by putting facts or allegations to Crown witnesses through counsel. This case fits squarely within that. While we do not have the closing addresses of counsel, it seems fairly clear from the summing up that the possibility of the complainant having a knife had been canvassed in closing, as well as being put to the complainant in cross-examination.
[17] However, Mr Jefferson submitted on behalf of Mr Mabry that the extent of the comment on the accused not giving evidence was unwarranted and that, taken overall, the summing up may have led the jury to believe that the burden of proof lay on the defence, not the Crown. He also submitted that the jury were effectively left with the impression that they had to accept the complainant’s evidence. He accepted that the jury had been given directions on how to assess the evidence but said that these came too early in the summing up.
[18] There is no doubt that any comment made on an accused not giving evidence must be balanced and fair. It should also be made clear that an accused does not have to give evidence and that his or her silence cannot be relied on establishing guilt. In our view, the Judge’s summing up in this case meets those requirements. The Judge stressed a number of times that it was for the Crown to prove the case against Mr Mabry and that this must be to a standard of beyond reasonable doubt. The jury can have been left in no doubt where the onus of proof lay. It was also made clear on a number of occasions that Mr Mabry had no obligation to give evidence.
[19] The defence case, with its contentions of accident and lack of intent to inflict serious injury, was put to the jury in some detail by the Judge and this discussion followed the comment on Mr Mabry not giving evidence. It was stressed that it was up to the Crown to exclude those defences and to prove all of the elements of the charge. As to the complaint that the directions on how to assess the evidence came too early in the summing up, the summing up, like the trial, was short, and the issues were hardly complicated. It is inconceivable that the jury would have forgotten the directions on how to assess the evidence when they were deliberating. In any event, it was made quite clear by the Judge in the course of his comments on Mr Mabry not giving evidence that it was up to the jury to decide whether or not they accepted the Crown evidence.

Result

[20] For the above reasons the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	Mr Mabry was convicted after a trial in the District Court on one count of wounding with intent to cause grievous bodily harm. Mr Mabry appeals against his conviction.
[2]	The only ground of appeal is that the trial Judge’s comments on Mr Mabry not giving evidence at trial were unbalanced and went too far. In all the circumstances it was submitted that the Judge’s comments removed from the jury the consideration of an alternative version of events and reversed the onus of proof.
[3]	In order to assess that submission we must first fill in some more of the factual background and outline what the Judge said in his summing up.

[4]	The charge rose out of an incident that occurred on 28 June 2005. The complainant gave evidence that he was visiting some friends in Napier. When he left his friends’ house he saw Mr Mabry standing near where he had his car parked. Mr Mabry came towards him in an aggressive manner and started hitting him. At some stage during the fight Mr Mabry had the complainant in a headlock and was trying to get something out of his pocket. After the complainant got out of the headlock, he noticed that Mr Mabry had a knife in his hand. He tried to wrestle the knife off Mr Mabry and, at that time, one of his friends intervened in the fight. The two men were separated and Mr Mabry moved off down the street.
[5]	The friend then noticed that the complainant was bleeding profusely and an ambulance was called. It turned out that he had been stabbed. The complainant was cross-examined extensively on whether he had started the fight and whether he was in fact the one who had had a knife in his possession. Both of these propositions were denied. The friend who intervened in the fight was never asked whether he had seen a knife in the possession of the complainant or whether there had been an opportunity for the complainant to dispose of the knife. The friend did however say that he had not seen Mr Mabry holding a knife. The police, after the incident, located a knife generally fitting the description given by the complainant (although not positively identified by him as the knife he had seen) some ten metres down a driveway further down the street.
[6]	When stopped by the police, Mr Mabry made some brief comments acknowledging that he had had a fight. He said that the complainant had swung the first punch and that he did not know how the complainant had received injuries to his chest. Mr Mabry denied that he had a knife. When asked how the other man received stab wounds to his chest he responded "If he had a knife I may have taken it from him but I don’t remember". He was then asked whether the complainant had presented a knife to him and he responded "I don’t remember but if he did I may have got it off him but I don’t remember". Mr Mabry did not give evidence at trial.

[8]	In his general remarks, the Judge also explained to the jury what was evidence in the case, and what was not. He made it clear that the speeches that the lawyers had made were not evidence but merely submissions. He stressed that it was the answers to the questions that were evidence and not counsel’s questions. In particular, he stressed that counsel’s cross-examination of the complainant suggesting that it was the complainant who had brought the knife into play was not evidence. The mere fact that counsel put that proposition to the complainant did not make it true. It is the answer that the witness gave that is the evidence. Whether the jury accepted that answer or not was a matter for them. However the Judge pointed out that there was no evidence from anyone else, including from Mr Mabry, to support the proposition that the complainant had a knife.
[9]	After going through the elements of the charge, the Judge turned to Mr Mabry’s statement to the police, which he read in relevant part to the jury. He said that it was up to the jury to decide whether they accepted the accuracy of what Mr Mabry had said to the police officer. It was also up to them to determine how much weight that they placed upon that statement.
[10]	He went on to say that, in this case, Mr Mabry had refrained from giving evidence in court. However, he made it quite clear to the jury that there is no obligation on any person who is charged with a criminal offence to give evidence. He said that the defence does not have to prove anything. It is the prosecution that has to prove the case. He said that the jury must never draw a conclusion that, because Mr Mabry did not go into the witness box, he is somehow guilty or has something to hide. He then went on to say:

[14]	Mr Jefferson, for Mr Mabry, conceded that the Judge was entitled, in the circumstances of the case, to direct the jury that counsel’s questions of the complainant as to whether he had had a knife were not evidence. He also conceded that this was a case where it was appropriate for the Judge to say that there was no evidence that the complainant had a knife. Finally, he conceded that this was a case where it was not inappropriate for the Judge to comment on Mr Mabry’s failure to give evidence.
[15]	All these concessions were in our view well made. Counsel’s questions are not evidence and there can be nothing improper in directing the jury to that effect. There was no evidence that the complainant had a knife, including in Mr Mabry’s statement to police. There can be nothing wrong in the Judge pointing this out.
[16]	As to the comment on Mr Mabry’s failure to give evidence, in R v McRae (1993) 10 CRNZ 61 at 64 Tipping J for this Court noted situations in which judicial comment on the failure of an accused to give evidence might be expected. One situation he identified was where the accused attempts to place an alternative fact scenario before the jury by putting facts or allegations to Crown witnesses through counsel. This case fits squarely within that. While we do not have the closing addresses of counsel, it seems fairly clear from the summing up that the possibility of the complainant having a knife had been canvassed in closing, as well as being put to the complainant in cross-examination.
[17]	However, Mr Jefferson submitted on behalf of Mr Mabry that the extent of the comment on the accused not giving evidence was unwarranted and that, taken overall, the summing up may have led the jury to believe that the burden of proof lay on the defence, not the Crown. He also submitted that the jury were effectively left with the impression that they had to accept the complainant’s evidence. He accepted that the jury had been given directions on how to assess the evidence but said that these came too early in the summing up.
[18]	There is no doubt that any comment made on an accused not giving evidence must be balanced and fair. It should also be made clear that an accused does not have to give evidence and that his or her silence cannot be relied on establishing guilt. In our view, the Judge’s summing up in this case meets those requirements. The Judge stressed a number of times that it was for the Crown to prove the case against Mr Mabry and that this must be to a standard of beyond reasonable doubt. The jury can have been left in no doubt where the onus of proof lay. It was also made clear on a number of occasions that Mr Mabry had no obligation to give evidence.
[19]	The defence case, with its contentions of accident and lack of intent to inflict serious injury, was put to the jury in some detail by the Judge and this discussion followed the comment on Mr Mabry not giving evidence. It was stressed that it was up to the Crown to exclude those defences and to prove all of the elements of the charge. As to the complaint that the directions on how to assess the evidence came too early in the summing up, the summing up, like the trial, was short, and the issues were hardly complicated. It is inconceivable that the jury would have forgotten the directions on how to assess the evidence when they were deliberating. In any event, it was made quite clear by the Judge in the course of his comments on Mr Mabry not giving evidence that it was up to the jury to decide whether or not they accepted the Crown evidence.