The Queen v Watkins [2006] NZCA 316 (23 November 2006)

Last Updated: 29 November 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA169/06

THE QUEEN



v



ADAM MICHAEL WATKINS

Hearing: 17 October 2006

Court: Arnold, Randerson and Ronald Young JJ

Counsel: J Gwilliam for Appellant
E M Thomas and K E Salmond for Crown

Judgment: 23 November 2006 at 4 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

[1]	The appellant was convicted on one count of causing grievous bodily harm with intent to cause grievous bodily harm following a jury trial before Judge Tuohy. He was sentenced to five and a half years imprisonment. He now appeals against conviction and sentence.

Basis of appeal

[2]	The appeal against conviction is based upon the Judge’s summing up to the jury. In particular, the appellant claims that in his summing up, the Judge:

(a) Misdirected the jury in respect of the "intent" element of the charge;

(b) Did not put the appellant’s case fairly to the jury, both generally and specifically in relation to the "intent" element.

[3]	As to the appeal against sentence, the appellant argues that the Judge:

(a) Gave insufficient weight to mitigating factors;
(b) Gave undue weight to aggravating factors;
(c) Adopted a starting point that was too high.

Factual background

[4]	The appellant travelled by car, in the company of another young man and two young women, to the home of one of the young women. The young woman concerned went into the house while the others remained in the car. When the young woman came out of the house she was followed by her brother. He was angry with her. He punched and headbutted her in the driveway to the house and on the street. He then turned round and went back up the driveway.
[5]	In the meantime the appellant, who had seen what had occurred in the driveway, got out of the car, took a wheel brace from it, went up behind the brother and without warning struck him on the back of the head with the wheel brace. The brother fell to the ground, unconscious. He suffered significant head injuries.
[6]	The appellant then left in the car with his companions.
[7]	When the appellant was subsequently interviewed he claimed that he was not the person concerned and had been elsewhere at the time of the assault. At trial, his primary defence was that it was not he who had struck the appellant and he led alibi evidence. However, in his closing address to the jury defence counsel argued also that the Crown had not proved beyond reasonable doubt that there was an intent to cause grievous bodily harm.

Discussion

Conviction

[8]	In his summing up, the Judge correctly identified the two elements of the charge which the Crown had to prove, the first being that the accused caused grievous bodily harm to the victim and the second that there was an intention to cause serious harm. As to intention, the Judge said:

[30] The second element that has to be proven is this: that at the time the really serious injury was caused, at the time the blow was struck, the accused had an intention to cause grievous bodily harm, that is, really serious harm to [the brother].
[31] It is not necessary for the Crown to prove that the accused intended to cause exactly the injury that was caused. But the Crown has to establish that the accused had an intention to cause [the brother] harm of that kind or magnitude, harm that was really serious of some type.
[32] This second element of the offence has been put in issue by Mr Gwilliam on behalf of the accused during his closing address, and you must be satisfied that it has been proven before you can convict. You will probably be asking yourself how do you decide what someone’s intent is. Intent is of course a state of mind. People do not usually announce their state of mind at any particular time or hold up a sign saying "This is what I intend."
[33] It is something that you have to deduce by looking at the circumstances, by looking at what the person did and said, if anything, at the time when the act in question was done, and also by looking at the nature of the act itself. But remember, any deductions or inferences you draw about the accused’s intent from those surrounding circumstances need to be fair and logical and reasonable inferences from proven facts, not speculation or guesswork.
[34] Having said that, it is a matter for you, but you may think that it is not hard to conclude that if somebody deliberately strikes another person on the back of the skull without warning from behind with a wheel brace hard enough to cause a serious skull fracture, then that person intended at the time to cause really serious harm or injury.
[35] But, as I say, that has been put in issue, it has been questioned and you have to be satisfied yourselves that that intent has been proven, the second element has been proven, as well, of course, as having to be satisfied that the first element has been proven before you can convict.
[36] In this regard, I want to say that the motive for any attack is not the point here. Whether it be anger for what [the brother] had done or whatever, it is the intention at the time of the attack that counts, whether there was an intent to cause grievous bodily harm or not.

[9]	Mr Gwilliam for the appellant complains that what the Judge said at [31] and [34] created a risk that the jury would jump to the conclusion that simply because serious harm had in fact been caused that must mean that the appellant intended to cause that serious harm. We do not agree that the summing up created any such risk.
[10]	A judge is entitled to indicate his or her own views of the evidence in summing up to the jury, "provided that as a whole the summing up is a fairly balanced and a fair presentation of the case to the jury": R v Fotu [1995] 3 NZLR 129 at 138 (CA). Here the Judge made it plain that the decision as to intent was for the jury. He did so not only in his general opening remarks to the jury on the respective functions of judge and jury, but also specifically in the context of his explanation of the requisite mental element. This can be seen from the extract quoted at [8] above. Further, the Judge did not suggest that there was any presumption as to intention, nor did he indicate to the jury that they could draw an inference of intention on the basis simply of the injuries received. In terms of drawing an inference as to intention, the Judge identified a number of factors - the deliberate striking of another person, on the back of the head, from behind without warning, with a wheel brace, and with sufficient force to cause a serious skull fracture. All were circumstances relevant to the jury’s assessment as to the presence or absence of the necessary intention. Accordingly we reject this appeal point.
[11]	Mr Gwilliam also complains that the Judge did not give sufficient emphasis to one element of the relevant circumstances going to intention, namely the events immediately preceeding the attack. About that the Judge said:

[19] It was obviously quite wrong for [the brother] to strike his sister, but that can never be justification for him to be attacked after the event in the way alleged here. Any assault on his sister had finished by the time [the brother] was attacked, and there is no room in this case for any defence based on protecting the sister. So do not get hung up on what happened immediately before this event between [the brother and his sister].
[20] Its only relevance to the issues facing you is that the Crown says that those events provided a motive for the accused to strike [the brother]. Mr Gwilliam also says that it is a background matter which you have to keep in mind when you judge whether it is proven or not that the attacker had the intent to cause grievous bodily harm. So it is relevant in those ways, but there is no suggestion of justification here, and there could not be.

[12]	Later, the Judge returned to this point. He said:

[71] Mr Gwilliam in his closing address pointed out that the case is very much about identification, but that is relevant to the first element. Is it proven that the accused caused the grievous bodily harm? Is it proven that the accused struck with the wheel brace? But he also pointed out that you must be satisfied of the second element, that if he did, if you are satisfied of the first, well he suggested you go to the other way around. That you needed to be satisfied that the assailant had an intent to cause grievous bodily harm, and he suggested to you looking at the immediately preceding events between [the brother and his sister]. In effect this may have been an impulsive sort of act where there was not the intent to cause really serious bodily harm. As I have said that is an issue for you.

[13]	We consider that the Judge did fairly put this aspect of the defence case to the jury. In this context it must be remembered that the primary defence at trial was that the accused was not the assailant. The argument that the Crown had not established that the assailant had the necessary intent was raised in closing as a second, and somewhat contradictory, line of defence. The Judge properly made the point that the motive for the attack was irrelevant, but also made it clear in the foregoing passages that the events preceding the attack were relevant to the assessment of intention.
[14]	Finally, Mr Gwilliam submits that there are parts of the summing up (two passages are identified) which indicate bias against the appellant. There is, in our view, no basis for that submission.
[15]	Mr Gwilliam attempted to draw some support for his arguments from the fact that the jury was able to reach a verdict after a short retirement (25 minutes). We consider that this was a reflection of the strength of the case against the appellant rather than the result of any inadequacy in the Judge’s summing up.
[16]	Accordingly, we dismiss the appeal against conviction.

Sentence

[17]	R v Taueki [2005] 3 NZLR 372 sets out the approach to be followed by sentencing Judges in cases of this type. It is clear from his sentencing notes that the Judge recognised this as the relevant authority and attempted to apply its principles.
[18]	The Judge noted the impact of the attack on the victim. He said that ten months after suffering the injury the victim was not able to work, could not climb a ladder and often felt dizzy. He would have a depression in his skull for the rest of his life and would not be able to play contact sports as previously he had. The Judge did not accept that the appellant had attacked the victim in an effort to defend the victim’s sister or even as a result of provocation. The Judge said that the appellant acted partly because he was angry but partly also because he was "showing off and being the big man to those in the car". The Judge noted that the appellant had given the "thumbs up" to a neighbour immediately after the attack.
[19]	Three of the factors identified at [31] of Taueki as contributing to the seriousness of the criminality involved in this type of offending were present in this case – serious injury, the use of a weapon and an attack to the head. The presence of these factors means that the offending was properly placed at the top of band one in Taueki (3-6 years) or at the bottom of band two (5-10 years). The Judge selected a starting point of six years, but gave a reduction of six months as a result of the appellant’s acknowledgement of his guilt and expression of remorse after conviction. Clearly a starting point of six years was open to the Judge as it falls within the area of overlap between bands one and two. There can be no complaint about the amount of the discount. We consider that the final sentence of five and a half years was within the range properly available to the Judge.
[20]	Accordingly we dismiss the appeal against sentence.

Decision

[21]	The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington