R v Miller CA26/06 [2006] NZCA 418 (16 June 2006)

Last Updated: 26 January 2014

ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA26/06

THE QUEEN

v

_{KENNETH MILLER}

Hearing: 22 May 2006

Court: Chambers, Rodney Hansen and Priestley JJ Counsel: J Haigh QC for Appellant

J M Jelas for Crown

Judgment: 16 June 2006

_{JUDGMENT OF THE COURT}

A The appeal is allowed.

B The conviction is quashed. C A new trial is directed.

4. Order prohibiting publication in news media or on internet or other publicly accessible database until final disposition of new trial.

_{Publication in law report or law digest permitted.}

R V MILLER CA CA26/06 16 June 2006

REASONS

_{(Given by Priestley J)}

Introduction

[1] In November 2005 the appellant was tried in the Auckland District Court facing a charge laid under s 189(2) of the Crimes Act 1961 of injuring with intent to injure. The jury trial was presided over by Judge Hobbs.

[2] On 10 November 2005 the jury returned a guilty verdict which led to the appellant’s conviction. He was subsequently sentenced to 100 hours community work and ordered to pay $2,000 reparation.

[3] The appellant challenges his conviction on appeal. Some points of appeal were abandoned by his counsel. Pursued before this Court were:

1. The failure of the trial Judge to allow the defence of self-defence to be put to the jury;

2. The Judge’s summing up to the jury was said to be unfairly balanced against the appellant.

Background

[4] In January 2005, the appellant employed four bricklayers as casual labourers to assist with a house building project he was carrying out in Albany. One of these bricklayers, Mr Moore, was the alleged victim.

[5] The task of the four employees was to move bricks, stacked on elevated ground above the house, by carrying them down a temporary wooden staircase and placing them closer to the house.

[6] The Crown case was that on 12 January 2005 an argument developed between the appellant and the bricklayers over the safety of the wooden steps. It was

alleged the appellant used insulting words about the physique or weight of one of the bricklayers; that the appellant and the victim, Mr Moore, grabbed hold of each other’s clothing; that the appellant ordered the bricklayers off the property; and that shortly afterwards the appellant struck the victim on the back of his head with a piece of 2” x 4” timber, approximately 350 mm long, which had been lying on the ground.

[7] It is clear from the evidence that this alleged assault precipitated a brawl during the course of which the appellant was beaten up.

[8] The victim, his brother, and one of the remaining two bricklayers gave evidence at trial for the Crown. The bricklayer who, in the ensuing brawl had been the principal assailant of the appellant, did not give evidence and was not brought from Australia for that purpose. Evidence was also given by police officers, to one of whom the appellant gave various arguably inconsistent explanations about what had occurred.

[9] The Crown case, as is apparent from the prosecutor’s opening address, was that the appellant had a bad temper and that, in the wake of a verbal altercation, he had struck the retreating victim on the back of the head with the wood. The defence case was, first, that the Crown witnesses were fabricating their evidence, and secondly, that the appellant, who apparently had reached some prominence in the building industry, was a person of good character. The appellant himself gave evidence at his trial, as did a character witness.

Self-defence at trial

[10] Mr Brosnahan, who was the appellant’s counsel at trial, did not directly put self-defence to the victim when cross-examining him. He did, however, put to the victim that he “went to hit” the appellant, and later “came after him kung fu kicking at him”. Similar suggestions were put to the victim’s brother. There was additionally a considerable volume of evidence referring to a general fracas during which punches, kicks, and kung fu kicks were exchanged.

[11] In a videotaped interview by the police the appellant made reference to being obliged to cover himself for protection during an affray at the bottom of the wooden steps. And in an oral statement made soon after the incident he spoke of picking up a piece of wood to defend and protect himself. This was put to the complainant in cross-examination, but denied.

[12] The appellant himself in evidence stated that he may have picked up a piece of wood when he was being attacked on the ground but had no clear memory of what happened. The appellant also gave evidence, in some detail, of him being assaulted. In cross-examination, the appellant conceded he may well have picked up the wood whilst he was on the ground with everybody coming at him, although he described this as “very unlikely” but possible.

[13] It appears that Mr Brosnahan and Mr Shaw, the prosecutor, discussed between themselves the relevance of self-defence. They appear to have considered that self-defence was a possible defence, with the consequence that Mr Shaw decided to deal with it in his final address. He said to the jury:

There’s just one more point of law I would like to touch on quite briefly before I go onto consider the evidence in a bit more detail and that relates to self defence. You would have heard some evidence at various points about Mr Miller saying he was protecting himself from the actions of the three crown witnesses.

The law of New Zealand justifies anyone –

[14] At this point Judge Hobbs intervened and the following exchange took place:

The Court: Mr Shaw, I’m very, very sorry to do this to you, Mr Shaw. I would only do it in extreme circumstances, but there is no possible issue of self defence in this trial, and I direct you clearly and it may go into the record. I will not allow you or Mr Brosnahan to refer to the issue of self defence. There is no evidence to suggest it. Whether it should be left to a jury is within my discretion and I am ruling that there is no evidence to support any such suggestion in this case.

Mr Shaw: Thank you, sir. I’m not sure if my learned friend would like to say anything about that because I’ve certainly discussed the point with him.

Mr Brosnahan: It’s a matter for Your Honour.

The Court: I don’t mind whether anybody wants to discuss it with me. I

am simply telling you both that is my ruling.

[15] After the jury retired at 12:17 pm on 10 November 2005, Mr Brosnahan raised with the Judge self-defence, referring to it as “the issue your Honour raised right at the start”. The Judge, after hearing Mr Brosnahan, indicated that whether self-defence should go to the jury or not was entirely a matter for his discretion. He then said:

In this case, there is no evidence at all that he was acting in self-defence. The Crown never opened, and I mentioned it and I would have been very angry if they had; if it is not open and I would have probably been very angry if you did either. There is no credible evidence before the jury that could give rise to a defence of that kind.

[16] There were further exchanges. The Judge observed that self-defence had not been put to the Crown witnesses. The Judge then concluded:

The fact that he was thrashing round at others and might hit somebody else is neither here nor there. It had to be put to the complainant. It had to be put to the complainant that he was acting in an aggressive way towards your man before he could even justifiably raise self-defence. Anyhow I do not want to debate.

[17] So far as this last comment by the Judge is concerned, it had, of course, been put to the complainant that he had been acting in an aggressive way.

Should the Judge have let self-defence go to the jury?

[18] Mr Haigh QC, for the appellant, accepted in his submissions to this Court that, on the facts, self-defence might have been a difficult defence to run. Nonetheless he submitted that the evidence disclosed a credible or plausible narrative which might, it being a matter for the jury, support self-defence and that the Judge had erred by not permitting the defence to go to the jury.

[19] The threshold which must be crossed before self-defence can be put to a jury is well established. In R v Tavete (1987) 2 CRNZ 579 at 581, this Court said:

The general principle is not in doubt. Self-defence should be put to the jury where, from the evidence led by the Crown or given by or on behalf of the accused, or from a combination of both, there is a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence. It is sufficient to cite two paragraphs from the judgment of this Court in R v Kerr [1976] 1 NZLR 335, at p 340:

“It is well settled that when a Judge has to rule whether there is sufficient evidence to justify a defence of self-defence being submitted to a jury he must consider the matter on the view of the evidence most favourable to the accused. There is, of course, no onus on an accused to establish such a defence affirmatively but he must be able to point to material in the evidence which could induce a reasonable doubt: see the remarks of Lord Devlin in Lee Chun- Chuen v The Queen [1963] AC 220, 229; cited in this Court in R v Anderson [1965] NZLR 29, 37 lines 5-11. Lord Devlin was speaking in the context of provocation, but the same approach applies in the case of self-defence: R v Lobell [1957] 1 QB 547,

551; [1957] 1 All ER 734, 736.

“We also bear in mind that when a Judge has to decide whether there is evidence fit to be left to a jury he is entitled to have regard to the fact that ‘it is not every facile mouthing of some easy phrases of excuse that can amount to an explanation’ see R v Grice [1975] 1

NZLR 760, 765, where this statement of Lord Morris of Borth-y- Gest in Bratty v Attorney-General for Northern Ireland [1963] AC

386; [1961] 3 All ER 523 was adopted. On the other hand, if there

really is material in the evidence which suggests a defence such as self-defence then that defence ought to be left to the jury unless the Judge is satisfied that it would be impossible for a jury to entertain a reasonable doubt. It is not sufficient that this result may be viewed by the Court as improbable. See Bullard v The Queen [1957] AC

635, 643-644; [1961] 3 All ER 470, 471 (PC).”

[20] This principle was also approved by this Court in R v Wang [1990] 2 NZLR

529. In R v Ronaki CA 451/03 13 May 2004, it was observed that in deciding the threshold issue of whether there is a credible or plausible narrative, a judge must avoid making factual findings which are properly in the domain of the jury.

[21] In R v Bridger [2003] 1 NZLR 636 this Court held that a trial Judge was entitled to assess at the threshold all three aspects of self-defence in deciding whether to allow the defence to go to the jury (the circumstances as an accused honestly believed them to be, whether an accused was acting in self-defence, and whether the force used was reasonable in the circumstances) rather than merely the first two. Blanchard J additionally indicated at [21]:

This Court in Wang rejected an argument that what amount of force is reasonable in the circumstances in the defence of oneself or another is always a question for the jury in a jury trial and never a point of law for the Judge. It accepted that in some cases it would be open to the trial Judge to conclude that the facts were not capable in law of giving rise to a possible defence (justification may be a better word) of self-defence. In our view the consideration of those facts may be directed to both the nature and the extent of the force used by the accused. If the Judge concludes that a properly directed jury could not possibly think that an accused was responding

reasonably to the circumstances which he or she perceived, the Judge may withdraw consideration of self-defence from the jury. That does not involve denying the accused a trial by jury. Rather, the jury is simply not asked to make a ruling on a particularly meritless resort to s 48. The guarantee of a jury trial in the New Zealand Bill of Rights Act 1990 does not require that a jury must consider a defence which cannot possibly succeed.

This dictum indicates that the concept of self-defence is more subtle and complex than indicated by the Judge in his last exchange with defence counsel (supra at [20]).

[22] In the circumstances of this trial, and particularly given that some evidential base for the defence had been laid, although we agree with Mr Haigh that the defence might have been a difficult one to run, we do not consider the defence should have been taken away from the jury. We consider there was a credible or plausible narrative which might have led the jury to entertain the reasonable possibility of self-defence. Such a narrative is apparent from the evidence referred to in [10] – [12].

[23] Secondly , so far as we can gather from the transcripts, the Judge did not invite any submissions from counsel on the issue. Counsel themselves had reached the view (although this would not be determinative) that self-defence was an issue. When Crown counsel raised self-defence in his closing address, the Judge’s response in front of the jury was immediate, and excluded the defence. The issue should first have been the subject of submissions by counsel and measured scrutiny by the Judge. The Judge was wrong not to allow submissions and was wrong not to permit the defence to be raised.

[24] We are satisfied that the Judge’s refusal to allow self-defence to go to the jury resulted in a miscarriage of justice.

Unfairness of the summing up

[25] Given the view this Court has taken on the self-defence point, we strictly do not need to decide Mr Haigh’s second point that the Judge’s summing up was unfairly balanced against the appellant.

[26] Had that point been the sole issue before us, the outcome of this appeal would have been finely balanced. Nonetheless, there is force in Mr Haigh’s observations that on a number of occasions the Judge, when summarising a defence point, added comments which could only, in the eyes of the jury, have detracted from the point being made.

[27] This feature is evident in a number of places in the Judge’s summing up. On the central defence plank of Crown witnesses lying, the Judge described Mr Brosnahan’s submissions as “drawing a long bow you may think, but it is something for you to consider”. Counsel’s comment that there was no blood detected on the timber with which the victim was hit was described by the Judge as an “invitation to speculate”. It was no such thing but rather evidence from which the jury might properly be invited to properly draw an inference. Another factual scenario put by defence counsel was called “a long shot”.

[28] The Judge at the outset of his summing up, when giving the normal direction that a Judge’s view of the facts was irrelevant, said:

It may be in the course of what I am going to say to you that you gather the impression that I have formed a view of the evidence, and obviously I have. I mean, it would be ridiculous to expect me not to. But I am not going to share it with you because any view that I express, even indirectly, while it can be accepted by you, can be equally well rejected by you because you are the sole judges of the fact not me ....

The clear and unusual assertion by the Judge that he had indeed formed a view of the evidence at the outset of his summing up ran the real risk that at subsequent stages, when he dealt with evidence and, as he did, expressed a view on the merits, the jury would, despite the standard direction, carry away the Judge’s view, cloaked as it must be with his authority.

[29] The Judge’s comment on the character evidence called by the appellant, although strictly correct, was in our view neutralised by his comment that it was “blindingly obvious logic” that people can offend for the first time. Mr Haigh expanded on this aspect in his supplementary submissions, but we consider this is not a suitable case to consider the issue of directions on character evidence.

[30] We emphasise the trite but fundamental observation that a judge’s obligation when summing up is to summarise the two cases on each live issue. Certainly a Judge can comment adversely on a submission if it is legally incorrect or unsupported by the evidence. But such comment is qualitatively different from the type of comment which occurred here.

[31] In R v Hoko [2003] NZCA 128; (2003) 20 CRNZ 464 this Court stated:

[34] In New Zealand persons charged with serious criminal offending are tried by jury. That is their right (s 24(c) New Zealand Bill of Rights Act ). As all juries are instructed, matters of fact are solely their province. Accused persons are entitled to expect findings of fact to be left to the jury. That is essential to a fair trial. They are entitled also to be tried before an independent and impartial court (s 25(a)). The jury is a vital component of the court and must not have that independence eroded by improper influences, obvious or subtle.

[35] As we have already said, a trial Judge is entitled to express views on the evidence and assist the jury, so long as the jury is given clearly to understand that they are entitled to disregard those views. There is no obligation to strive artificially for balance in cases where the case for the Crown is strong and that of defence strains credibility. What is of over- riding importance is that the jury clearly understand the critical issues and their role in determining whether or not the Crown has proved its case, and then are left to make their own findings.

[32] In summary, we consider there is force in Mr Haigh’s submissions that the cumulative effect of the Judge’s comments when summarising the defence case was to skew the overall balance of the summing up to the disadvantage of the appellant. But we do need to make a finding as to whether this “robust summing up”, as Ms Jelas, for the Crown, termed it, crossed the line.

Result

[33] Because we consider the Judge was wrong not to allow self-defence to be put to the jury, it follows that the conviction against the appellant is quashed. A re-trial is ordered.

Solicitors:

Simpson Western, Takapuna, for Appellant

Crown Law Office, Wellington