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The Queen v Goyen [2006] NZCA 72 (1 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA285/05

THE QUEEN

v

BRUCE WAYNE GOYEN

Hearing: 6 April 2006

Court: O'Regan, John Hansen and Harrison JJ

Counsel: C J Tennet for Appellant
E M Thomas for Crown

Judgment: 1 May 2006

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is dismissed.

REASONS
(Given by John Hansen J)

[1] On 23 June 2005, following a trial before Judge Adeane and a jury in the Napier District Court, the appellant was found guilty on a charge of causing grievous bodily harm with intent to cause grievous bodily harm. On 18 July 2005 he was sentenced to six years imprisonment.
[2] He appeals against both conviction and sentence.

Grounds of appeal

[3] Seven grounds of appeal are contained in the points of appeal filed by counsel, but ground two was abandoned before hearing.
[4] The remaining grounds are:

a) The verdicts of the jury were unreasonable or contrary to the weight of evidence.
b) There was a miscarriage of justice in that the Crown altered its position between opening and closing.
c) The evidence of an expert witness called by the Crown, Dr Skipworth, should not have been admitted.
d) The evidence of a psychologist, Mr Soeterik, was admissible and should have been admitted. The failure to admit that evidence amounted to a miscarriage of justice.
e) There were misdirections by the learned trial Judge as to:

i) self-defence;
ii) failure to adequately put the defence case;
iii) failure to tell the jury of the change of direction of the Crown case and adequately direct on that issue;
iv) in dealing with the severity of the injuries the Judge directed it was something that could be taken into account in determining intent; and
v) failure to direct adequately in relation to inferences and a wrong use of an example.

[5] Initially Mr Tennet submitted there was a miscarriage of justice because the Crown were aware that three witnesses were hostile but nonetheless called those witnesses. However, in argument he did not pursue it independently of the point set out at [4](e)(ii).
[6] The appeal against sentence is based on the ground that it was manifestly excessive.

Background facts

[7] In the early hours of 18 April 2004 the appellant was in his car which was parked on the forecourt of a Napier service station. Apparently he had gone to the service station in an attempt to obtain directions to a motel. It was common ground that earlier that night he had consumed an unspecified amount of methamphetamine.
[8] At this time a number of pedestrians walked across the forecourt. The complainant, Mr Viliamu, apparently slapped at the front panel of the appellant’s car. The appellant’s response was to start the vehicle and accelerate it violently into Mr Viliamu as he walked in front of the car.
[9] As a consequence Mr Viliamu was flung up onto the bonnet of the car, denting it and breaking the windshield. The car continued on, and Mr Viliamu was flung from the bonnet onto a section of vertical railway iron set into the ground as part of a boundary fence. The appellant reversed his car and manoeuvred around the iron post and drove over a concrete lip that formed part of the boundary. The vehicle became stuck for a time on this obstacle before the appellant accelerated forward onto rough ground and over a railway line. In the course of this short distance the appellant drove over the complainant’s legs.
[10] The appellant was stopped near the scene by an off duty police officer.
[11] As a consequence Mr Viliamu suffered serious, life threatening internal injuries.
[12] At trial the Crown called a Dr Skipworth who gave evidence of the effects of methamphetamine consumption. The defence sought to call Mr Soeterik to give evidence of the appellant’s psychological condition. A voir dire was conducted. No formal ruling was given although the Judge expressed the view the evidence of Mr Soeterik was inadmissible. The defence made no further effort to call Mr Soeterik or obtain a formal ruling.
[13] The Judge sentenced on the basis that the appellant deliberately ran into the complainant, flinging him onto the bonnet of the car. The Judge accepted that the evidence did not establish that the act of crushing the complainant against the pole was materially and intentionally prolonged by the appellant, let alone that it was repeated.
[14] The Judge considered the matter fell into category two of R v Taueki [2005] 3 NZLR 372. The Judge found the appellant’s personal circumstances were neither unfavourable nor particularly favourable, and that his previous convictions showed no propensity for violence of the kind that occurred. Balancing all of those factors he considered six years was an appropriate starting point. In the absence of any further aggravating or mitigating matters he imposed that as the sentence.

Discussion

Verdicts unreasonable

[15] Mr Tennet submitted that in the absence of evidence from a crash expert the maps and diagrams relied on by the Crown did not support its theory of the case. He further submitted that if the inadmissible evidence of Dr Skipworth had not been led, the two factors in combination, meant the verdict could not be supported.
[16] The Crown submitted that it was open to the jury to find on the evidence that the appellant was seated in his vehicle when the complainant came into contact with it. The appellant appeared angry and tossed onto the seat beside him whatever was in his hand. He then immediately started the vehicle and revved it loudly, put it into gear and drove at speed directly at the complainant who was in front of him and within his vision. As a result he struck the complainant causing him really serious harm. The Crown submitted that the verdict was readily sustainable on the evidence.
[17] In R v Ramage [1985] 1 NZLR 392 Somers J, in delivering the judgment of this Court, said at 393:

... The common ground advanced by the applicants-that the verdict is unreasonable or cannot be supported having regard to the evidence-is that contained in s 385(1)(a) of the Crimes Act 1961. A verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury: see R v Mareo (No 3) [1946] NZLR 660; R v Ross [1948] NZLR 167; R v Kira [1950] NZLR 420; Chamberlain v R [1984] HCA 7; (1984) 51 ALR 225.

[18] The verdict in this case is not of such character. There was available evidence before the jury that the appellant was angry, started his vehicle, revved it loudly, placed it in gear and drove at speed directly at the complainant. There was also evidence that at that time the complainant was directly in front of the appellant’s vehicle and readily observable.
[19] In light of such evidence this ground is unsustainable.

Miscarriage of justice

[20] Secondly, Mr Tennet submitted that the Crown changed its position between opening and closing. He submitted that the Crown opened on the basis that the appellant drove at the complainant, ran him down intentionally, and then repeatedly rammed him against the length of railway line. He further submitted there was an obligation on Crown counsel in closing to inform the jury that the Crown case had changed. Indeed, the written submission went so far as to suggest that the Crown, at that stage, should have offered a lesser charge.
[21] Mr Thomas submitted that the Crown case always included the proposition that the appellant deliberately ran down the complainant and this was the basis for the charge. He said the Crown evidence had to cover the whole incident, and for that reason the facts were traversed in the Crown’s opening. However, he submitted it was clear from the Crown opening that the act that was described as being deliberate was that of running down the complainant. In those circumstances the Crown had not changed its position.
[22] It is incorrect to suggest that the Crown fundamentally changed its position in the course of the trial. It is not correct that the Crown opened only on the basis of the appellant crushing the complainant against the railway iron with his vehicle and then repeatedly ramming him. A reference to the Crown opening at 134 of the case on appeal makes that clear. The Crown opened squarely on the basis of the appellant deliberately driving into the complainant which caused the complainant to go up onto the bonnet, into the windscreen, into the air and back down again. Certainly the Crown continued that the car trapped the complainant’s body against the iron post and continued pressing against it. By closing, however, the Crown accepted that the evidence it adduced did not sustain this view.
[23] We do not consider that this called for any specific concession by the Crown or direction from the Judge. What occurred removed from the jury as intentional behaviour the worst aspect of the case from the appellant’s point of view. Again, this ground fails.

Inadmissibility of prosecution expert evidence

[24] Thirdly, Mr Tennet submitted that the evidence of Dr Skipworth was not admissible and did not meet the criteria for the calling of expert evidence as laid down by this Court in R v Carter CA155/05 19 December 2005.
[25] Dr Skipworth was called to give evidence relating to the methamphetamine consumption by the appellant. By the end of cross-examination by Mr Tennet he was forced to concede that he could offer little of use to the jury as to the specific effects on the appellant of the methamphetamine he had consumed.
[26] Mr Thomas accepted the admissibility of Dr Skipworth’s evidence was marginal, but said that its probative value outweighed its prejudicial effect. The evidence identified the possible effects of methamphetamine consumption, and the amount present in the appellant’s system. It further identified the effect of the passage of time on the results of consumption, and it made clear to the jury it could not be said with any certainty that the methamphetamine consumed by the appellant caused any of the reactions that may have been observed in him.
[27] Mr Thomas submitted in those circumstances it provided the jury with tools to enable it to determine the likelihood of methamphetamine having played any part in the incident, and whether it provided any support for evidence suggesting the appellant had acted out of anger.
[28] We accept that Dr Skipworth’s evidence was of marginal relevance. Mr Tennet advised the Court that he had challenged its admissibility. However, when pressed in argument he had to concede that in fact no such challenge had been made. It is also apparent from the cross-examination of Dr Skipworth that he could give no specific evidence of the effect of methamphetamine consumption on the appellant. The evidence would certainly give the jury the information outlined by Mr Thomas in his submissions recorded at [26] above. If anything, we feel this evidence would not have assisted the Crown case, and perhaps assisted that of the appellant. Furthermore, Mr Tennet was able to elicit some information from Dr Skipworth as to the social phobia it is said the appellant suffered from and its possible effects.
[29] Given there was no objection to the admissibility of this evidence, and that it has not been shown to be prejudicial to the appellant, we find no miscarriage has occurred as a consequence. This ground fails.

Admissibility of defence expert evidence

[30] Fourthly, Mr Tennet submitted that the evidence of Mr Soeterik should have been admitted. It appears that part of the defence case was that the appellant’s behaviour was occasioned because he suffered from post-traumatic stress disorder, or some form of social phobia. He also submitted that this evidence should have been allowed to balance the evidence of Dr Skipworth. Finally, in this regard, it was submitted that the inability to have Mr Soeterik’s evidence before the jury meant the appellant was unable to give evidence regarding his psychological condition or conditions.
[31] Mr Thomas submitted this evidence could not assist in showing the appellant’s reaction was not one of anger but one caused by his psychological condition. He submitted the evidence was of little probative value, because Mr Soeterik was unable to give an unequivocal diagnosis that the appellant suffered from post-traumatic stress disorder. As to the alleged need to balance the evidence of Dr Skipworth, Mr Thomas submitted that Dr Skipworth’s evidence dealt with the effects of methamphetamine and was entirely different from the proposed evidence of Mr Soeterik that dealt with his psychological examination of the appellant.
[32] The issue of the admissibility of Mr Soeterik’s evidence arose in the context of Mr Tennet’s cross-examination of Dr Skipworth. As a consequence a lengthy voir dire was held in front of the Judge. Its purpose was to assess the prospective evidence of Mr Soeterik before questions relevant to it were put to Dr Skipworth in the presence of the jury.
[33] At the conclusion of the voir dire counsel, Mr Tennet, accepted that the evidence of Mr Soeterik did not create a legitimate foundation for cross-examination of the psychiatrist. The reason for that was self-evident. Mr Soeterirk had formed a view that the appellant suffered from post-traumatic stress disorder. In submissions to us Mr Tennet described this as a "gut level diagnosis". However, once the standard diagnostic tool used by the American Psychiatric Association, DSM-IV, was applied Mr Soeterik was forced to concede that he could not make an unequivocal diagnosis of post-traumatic stress disorder. Given that, and Mr Tennet’s concession, the Judge did not consider it necessary to make a formal ruling on the admissibility of Mr Soeterik’s evidence. However, it appears counsel invited him to express a tentative view. That tentative view was that the Judge anticipated ruling later in the trial that the evidence was not admissible.
[34] At the conclusion of the Crown case Mr Tennet did not seek to call Mr Soeterik, or request a formal ruling from the Judge as to the admissibility of his evidence. Notwithstanding that, the appellant now takes the position that the failure to call Mr Soeterik to give evidence on the appellant’s behalf has led to a miscarriage of justice.
[35] The first ground to support this submission can be quickly disposed of. It was said by Mr Tennet that it was required to balance the evidence of Dr Skipworth. However, Dr Skipworth’s evidence dealt with the effects of methamphetamine on individuals. Mr Soeterik’s evidence had nothing to do with that. It could not have balanced the evidence, and for the reasons given earlier no such balancing was required.
[36] Mr Tennet then submitted the evidence would have been relevant to the jury’s consideration of whether the appellant’s action in driving off was triggered by post-traumatic stress disorder or social phobia. Such a submission is fatally flawed, as Mr Tennet was forced to concede in the course of argument. There was no diagnosis of post-traumatic stress disorder, and absent such diagnosis the condition could not be used as an explanation for the behaviour.
[37] The second point is that there was no indication that Mr Soeterik was going to give evidence as to the effect of the so called "social phobia". It is clear from the voir dire evidence that he was aware of it, but he said this in answer to questions from Mr Tennet:

... The social phobia that you have mentioned as coming through what is that ... well as the Court has already heard, he has preferred mostly after leaving school to live in his own, to live mostly in country areas if he could, to shun socialising with other people, he doesn’t like crowds, he’s afraid of crowds, he doesn’t go near them, and he has difficulties with meeting with people he does not when given the chance to see psychiatrists or dentists or other things that he’s been referred to, doesn’t keep his appointments, would prefer to stay at home and not actually go out into those kinds of places. So he’s largely an avoidant in my view individual avoiding social contact
Does a social phobia (inaudible) diagnosis or a turn about or what ... well it’s more a descriptive term describing the person’s phobic of meeting people in social situations and contexts.
And you carried out these extra tests, not for social phobia but because you were concerned about another condition is that right ... that’s correct. ....

[38] His report dated 17 May 2004 focused on whether or not the appellant suffered from post-traumatic stress disorder. It did not mention social phobia and its likely impact on the appellant in any way. From that it follows that Mr Soeterik was not in a position to give any evidence on social phobia and its effect. On a factual basis this ground is misconceived.

Misdirections

[39] Fifthly, in relation to the alleged misdirections, Mr Tennet submitted there were three substantial issues in the case. The first was the way in which the injuries came to be caused; the second, the intention of the appellant when the vehicle struck the complainant; and the third, self-defence, being the subjective view of the appellant and the reasonableness of his response.
[40] In relation to self-defence he submitted that the direction was too brief, particularly when it was combined with the misdirection as to inferences, the failure by the Judge to identify where the grievous bodily harm occurred, and the watering down of the actions of a Mr Sulusi. He submitted the direction was of insufficient depth and it required the degree of force to be spelled out and delineated to the jury in a much lengthier exposition.
[41] Next Mr Tennet submitted that there was a misdirection as to inferences, and the Judge’s example was highly prejudicial to the defence. He submitted that just because the appellant drove dangerously it did not mean he intended to cause serious harm.
[42] Finally, he submitted that the defence case was not put adequately and complained that the Judge’s directions relating to the Crown case amounted to two pages, and for the defence only one and a half.
[43] Mr Thomas submitted that the Judge’s direction on self-defence was standard, sufficient, and appropriate. He further submitted that the competing contentions of the Crown and the defence in relation to self-defence were properly and adequately described by the learned Judge and put to the jury by him.
[44] Finally, Mr Thomas submitted that the direction on inferences was appropriate, and the example given proper in the circumstances of this case.
[45] In directing the jury as to self-defence the Judge said:

Now the case gives rise, as both counsel have submitted to you, to considerations of self-defence and I am going to let you have the ingredients of that legal concept right now. Everyone is justified, according to our law, in using such force in self-defence as it is reasonable to use in the circumstances which he believes to exist. If a person is justified in applying force to another person in those circumstances, then acts which would otherwise constitute an assault or even something more serious are not criminal at all. You are entitled in certain circumstances to use force to defend yourself.
In relation to this defence, it is important to keep in mind that it is for the Crown to prove beyond reasonable doubt that at the time of the events in question, the accused was not acting in self-defence. The Crown must leave you sure of that. If the Crown have failed to satisfy you of that, then the accused must be found not guilty.
In order to consider self-defence there are three matters that have to be addressed specifically. First, what were the circumstances as the accused believed them to be. And second, according to those circumstances was the accused acting in defence of himself. Both of those issues are to be resolved looking at matters through the eyes of the accused. What was the position as he honestly believed it to be, even though he might have been mistaken. You must take the accused as he is, in the state that he was on that night and assess what position he honestly believed himself to be in.
If you decide that he may honestly have believed that steps in self-defence were necessary, then the third part of the exercise is for you as a jury to decide whether in your view, the force used was reasonable in the circumstances which he believed to exist. If the accused thought he was in circumstances of danger and was responding in self-defence, then the issue is whether you as a jury consider that the degree of force which he used was reasonable and proportionate to the circumstances as he saw them.
Now obviously these matters are to be judged in a commonsense sort of way, bearing in mind that these events did not occur in the calm of the courthouse and that there were stresses on all involved, the accused included.
If you think it is reasonably possible that the accused thought he was acting in self-defence, and if you think the degree of force that he used may have been reasonable, then he is entitled to be acquitted on the basis of self-defence. The matter is one for you, very much based on the evidence which you have heard and a commonsense view of all the known facts.

[46] In the context of this case, the direction was satisfactory and omitted no material matter.
[47] In relation to inferences the Judge said:

You are entitled as a jury to act on logical inferences based on facts which have been proved. If you find certain facts proved you may well feel justified in coming to further deductions based on those. Inferences or deductions of that kind must be proper inferences drawn from proved facts. You cannot just speculate or guess about what might have been going on. This process of inference can often be important where a person’s state of mind or intention is involved because a man’s proven actions are often a good basis on which to draw inferences about his accompanying intentions, what he had in mind at the time those actions occurred.
By way of example relating to this case, if you are satisfied on the evidence, that the accused intentionally used his motor car to ram into the complainant, then you might think there is a ready and sensible inference that his intention was to do really serious harm. Using a motor car in that way, you might think will logically have that sort of consequence, but it is a matter for you. You are entitled to draw fair and reasonable deductions based on the facts which you find to have been proved.

[48] Mr Tennet’s complaint is misconceived. The example of an inference given by the Judge is clearly based on his preceding statement that the jury needed to be satisfied on the evidence that the accused intentionally used his motor car to ram into the complainant, and that the jury might think a ready and sensible inference from this fact, if proved, was that his intention was to do really serious harm. He did not say the jury must draw such an inference, but suggested to them they might think it would logically have such a consequence.
[49] We consider the direction on inferences to be correct and adequate. The example used by the Judge would have been of real assistance to the jury because it related to the central matter in issue in the trial, i.e. did the appellant intentionally use his car to drive into the complainant with the intention of doing serious harm.
[50] We have read the Judge’s directions where he put the Crown and defence contentions to the jury. Those competing contentions have been properly and fairly described by the Judge in his directions to the jury.
[51] For the sake of completeness we note that Mr Tennet also submitted that the Judge did not properly direct the jury on the need for intent to cause really serious injury. But in the passage above at [47] it is clear that the Judge properly and fairly placed this before the jury.
[52] We are satisfied that none of the grounds of appeal have any substance or merit, indeed some were accepted in argument as misconceived. There has been no miscarriage of justice and the appeal against conviction is dismissed.

Appeal against sentence

[53] In relation to sentence Mr Tennet submitted that a careful analysis of R v Taueki [2005] 3 NZLR 372 showed that this matter should have been placed in band one. He submitted that despite the unfortunate injuries the aggravating features are non existent and that the Judge failed to properly take into account the appellant’s social and psychological disadvantage. He further submitted that in the circumstances of this case the sentence should be by analogy to "a bad driving case".
[54] Mr Thomas submitted that the Judge had correctly applied Taueki and that the aggravating features present placed this in band two, and the final sentence was well within range.
[55] This Court in Taueki set out guidelines for sentencing in cases of serious violence. This Court set out three sentencing bands: band one being appropriate for violence at the lower end of the spectrum; band two requiring a higher starting point which featured two or three aggravating factors; and band three, encompassing serious offending involving three or more of the aggravating factors were present and where their combination was particularly grave. The tariff range set was three to six years for band one; five to ten years for band two; and nine to 14 years for band three.
[56] At [31] this Court said:

[31] We now turn to the features of offending which will be seen to contribute to the seriousness of the conduct and criminality involved in a GBH offence. We reiterate that the sentencing Judge will need to consider the combination of factors applying in a particular case when assessing the appropriate sentencing band and the starting point within that band. The factors which we highlight are:

(a) Extreme violence: The extent of the violence involved in the offending will have an obvious impact on the level of criminality. Where any violent conduct is prolonged that will also be relevant, as will violence which is unprovoked or gratuitous. This reflects s 9(1)(a) and (e) of the Sentencing Act.
...
(c) Serious injury: Where the injuries suffered by the victim or victims are very serious, a higher starting point than in cases of minor injury will be called for. Section 9(1)(d) of the Sentencing Act applies. This is particularly the case where the injuries are potentially fatal or are such as to cause long-term or permanent disability impacting on the victim’s quality of life. Counsel for Mr Taueki, Mr Snell, argued that the assessment of criminality should focus on the conduct of the attacker, not the consequences for the victim. He said that it can sometimes be a matter of luck how bad resulting injuries are. While that is true as far as it goes, it must be remembered that the offending to which this decision refers is the intentional inflicting of serious injury. An offender who acts with intent to cause grievous bodily harm and does, in fact, cause such harm cannot escape responsibility for the consequences of his or her actions. However, care has to be taken not to double-count the level of violence inflicted and the seriousness of the injuries which resulted from it.
(d) Use of weapons: The use of a lethal weapon such as a firearm or a knife will be a serious aggravating factor. In short, the more lethal the weapon that is used, the greater the aggravating factor will be. Where offenders use a broken bottle, the likelihood of very serious injury is high and this will also be a serious aggravating factor. Other examples are use of clubs, baseball bats and similar weapons which, particularly when aimed at the head, can cause significant and permanent injury. The use of a syringe with infected blood or an accelerant to set fire to the victim raise similar concerns to the use of a weapon. Where the use of a weapon is premeditated, the criminality will be worse. In particular, if the offender brings a weapon to the scene with the intent of its being used, that will be severely aggravating. Similar considerations arise if the weapon is brought to the scene for use as intimidation, because it can be anticipated that a weapon brought to the scene in such circumstances will, in fact, be used by the offender. Another relevant factor will be the potential for danger to the public where, for example, a firearm is fired indiscriminately in a public place.
...

[57] Fourteen factors were highlighted. We have reproduced only the three that are relevant to this case. We are satisfied that, notwithstanding Mr Tennet’s submissions, those three aggravating features are present. There was extreme violence which can be seen from the deliberate and extreme acceleration of the car into the victim. There was serious injury, which is graphically set out in the Judge’s sentencing notes. Finally, the vehicle was used as a weapon. We do not understand Mr Tennet’s submission that the car being a weapon was inherent in the offence itself. The car was clearly used as a weapon. The appellant was charged with causing grievous bodily harm with intent to cause grievous bodily harm. The use of a weapon is not an essential element of that charge. Its use is always an aggravating feature. We accept, however, that the use of a vehicle as a weapon in these circumstances can be differentiated from cases where persons deliberately arm themselves, for example, with a knife or a club.
[58] Sentencing in accord with Taueki does not simply require a consideration of how many of the aggravating factors are present. At [30] this Court said:

[30] We do, however, emphasise that a sentencing Judge needs not only to identify such factors, but also to evaluate the seriousness of a particular factor. For example premeditation is identified as a factor, but it may vary in particular cases from full-scale planning and orchestration of a concerted vicious attack to a period of a few minutes or so after a perceived slight during which the offender decides to take revenge. The evaluative task is an important aspect of sentencing: without it, there would be a danger of a formulaic or mathematical approach to the assessment of sentencing starting points.

[59] We are satisfied in this case the Judge carried out an appropriate evaluative test, properly considered the aggravating factors, and correctly placed this case at the lower end of band two. The sentence imposed, of six years imprisonment, was clearly within the range available to the sentencing Judge. The sentence was not manifestly excessive.
[60] The appeal against sentence also fails.

Result

[61] For the reasons given the appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	On 23 June 2005, following a trial before Judge Adeane and a jury in the Napier District Court, the appellant was found guilty on a charge of causing grievous bodily harm with intent to cause grievous bodily harm. On 18 July 2005 he was sentenced to six years imprisonment.
[2]	He appeals against both conviction and sentence.

[3]	Seven grounds of appeal are contained in the points of appeal filed by counsel, but ground two was abandoned before hearing.
[4]	The remaining grounds are:

[5]	Initially Mr Tennet submitted there was a miscarriage of justice because the Crown were aware that three witnesses were hostile but nonetheless called those witnesses. However, in argument he did not pursue it independently of the point set out at [4](e)(ii).
[6]	The appeal against sentence is based on the ground that it was manifestly excessive.

[7]	In the early hours of 18 April 2004 the appellant was in his car which was parked on the forecourt of a Napier service station. Apparently he had gone to the service station in an attempt to obtain directions to a motel. It was common ground that earlier that night he had consumed an unspecified amount of methamphetamine.
[8]	At this time a number of pedestrians walked across the forecourt. The complainant, Mr Viliamu, apparently slapped at the front panel of the appellant’s car. The appellant’s response was to start the vehicle and accelerate it violently into Mr Viliamu as he walked in front of the car.
[9]	As a consequence Mr Viliamu was flung up onto the bonnet of the car, denting it and breaking the windshield. The car continued on, and Mr Viliamu was flung from the bonnet onto a section of vertical railway iron set into the ground as part of a boundary fence. The appellant reversed his car and manoeuvred around the iron post and drove over a concrete lip that formed part of the boundary. The vehicle became stuck for a time on this obstacle before the appellant accelerated forward onto rough ground and over a railway line. In the course of this short distance the appellant drove over the complainant’s legs.
[10]	The appellant was stopped near the scene by an off duty police officer.
[11]	As a consequence Mr Viliamu suffered serious, life threatening internal injuries.
[12]	At trial the Crown called a Dr Skipworth who gave evidence of the effects of methamphetamine consumption. The defence sought to call Mr Soeterik to give evidence of the appellant’s psychological condition. A voir dire was conducted. No formal ruling was given although the Judge expressed the view the evidence of Mr Soeterik was inadmissible. The defence made no further effort to call Mr Soeterik or obtain a formal ruling.
[13]	The Judge sentenced on the basis that the appellant deliberately ran into the complainant, flinging him onto the bonnet of the car. The Judge accepted that the evidence did not establish that the act of crushing the complainant against the pole was materially and intentionally prolonged by the appellant, let alone that it was repeated.
[14]	The Judge considered the matter fell into category two of R v Taueki [2005] 3 NZLR 372. The Judge found the appellant’s personal circumstances were neither unfavourable nor particularly favourable, and that his previous convictions showed no propensity for violence of the kind that occurred. Balancing all of those factors he considered six years was an appropriate starting point. In the absence of any further aggravating or mitigating matters he imposed that as the sentence.

[15]	Mr Tennet submitted that in the absence of evidence from a crash expert the maps and diagrams relied on by the Crown did not support its theory of the case. He further submitted that if the inadmissible evidence of Dr Skipworth had not been led, the two factors in combination, meant the verdict could not be supported.
[16]	The Crown submitted that it was open to the jury to find on the evidence that the appellant was seated in his vehicle when the complainant came into contact with it. The appellant appeared angry and tossed onto the seat beside him whatever was in his hand. He then immediately started the vehicle and revved it loudly, put it into gear and drove at speed directly at the complainant who was in front of him and within his vision. As a result he struck the complainant causing him really serious harm. The Crown submitted that the verdict was readily sustainable on the evidence.
[17]	In R v Ramage [1985] 1 NZLR 392 Somers J, in delivering the judgment of this Court, said at 393:

[18]	The verdict in this case is not of such character. There was available evidence before the jury that the appellant was angry, started his vehicle, revved it loudly, placed it in gear and drove at speed directly at the complainant. There was also evidence that at that time the complainant was directly in front of the appellant’s vehicle and readily observable.
[19]	In light of such evidence this ground is unsustainable.

[20]	Secondly, Mr Tennet submitted that the Crown changed its position between opening and closing. He submitted that the Crown opened on the basis that the appellant drove at the complainant, ran him down intentionally, and then repeatedly rammed him against the length of railway line. He further submitted there was an obligation on Crown counsel in closing to inform the jury that the Crown case had changed. Indeed, the written submission went so far as to suggest that the Crown, at that stage, should have offered a lesser charge.
[21]	Mr Thomas submitted that the Crown case always included the proposition that the appellant deliberately ran down the complainant and this was the basis for the charge. He said the Crown evidence had to cover the whole incident, and for that reason the facts were traversed in the Crown’s opening. However, he submitted it was clear from the Crown opening that the act that was described as being deliberate was that of running down the complainant. In those circumstances the Crown had not changed its position.
[22]	It is incorrect to suggest that the Crown fundamentally changed its position in the course of the trial. It is not correct that the Crown opened only on the basis of the appellant crushing the complainant against the railway iron with his vehicle and then repeatedly ramming him. A reference to the Crown opening at 134 of the case on appeal makes that clear. The Crown opened squarely on the basis of the appellant deliberately driving into the complainant which caused the complainant to go up onto the bonnet, into the windscreen, into the air and back down again. Certainly the Crown continued that the car trapped the complainant’s body against the iron post and continued pressing against it. By closing, however, the Crown accepted that the evidence it adduced did not sustain this view.
[23]	We do not consider that this called for any specific concession by the Crown or direction from the Judge. What occurred removed from the jury as intentional behaviour the worst aspect of the case from the appellant’s point of view. Again, this ground fails.

[24]	Thirdly, Mr Tennet submitted that the evidence of Dr Skipworth was not admissible and did not meet the criteria for the calling of expert evidence as laid down by this Court in R v Carter CA155/05 19 December 2005.
[25]	Dr Skipworth was called to give evidence relating to the methamphetamine consumption by the appellant. By the end of cross-examination by Mr Tennet he was forced to concede that he could offer little of use to the jury as to the specific effects on the appellant of the methamphetamine he had consumed.
[26]	Mr Thomas accepted the admissibility of Dr Skipworth’s evidence was marginal, but said that its probative value outweighed its prejudicial effect. The evidence identified the possible effects of methamphetamine consumption, and the amount present in the appellant’s system. It further identified the effect of the passage of time on the results of consumption, and it made clear to the jury it could not be said with any certainty that the methamphetamine consumed by the appellant caused any of the reactions that may have been observed in him.
[27]	Mr Thomas submitted in those circumstances it provided the jury with tools to enable it to determine the likelihood of methamphetamine having played any part in the incident, and whether it provided any support for evidence suggesting the appellant had acted out of anger.
[28]	We accept that Dr Skipworth’s evidence was of marginal relevance. Mr Tennet advised the Court that he had challenged its admissibility. However, when pressed in argument he had to concede that in fact no such challenge had been made. It is also apparent from the cross-examination of Dr Skipworth that he could give no specific evidence of the effect of methamphetamine consumption on the appellant. The evidence would certainly give the jury the information outlined by Mr Thomas in his submissions recorded at [26] above. If anything, we feel this evidence would not have assisted the Crown case, and perhaps assisted that of the appellant. Furthermore, Mr Tennet was able to elicit some information from Dr Skipworth as to the social phobia it is said the appellant suffered from and its possible effects.
[29]	Given there was no objection to the admissibility of this evidence, and that it has not been shown to be prejudicial to the appellant, we find no miscarriage has occurred as a consequence. This ground fails.

[30]	Fourthly, Mr Tennet submitted that the evidence of Mr Soeterik should have been admitted. It appears that part of the defence case was that the appellant’s behaviour was occasioned because he suffered from post-traumatic stress disorder, or some form of social phobia. He also submitted that this evidence should have been allowed to balance the evidence of Dr Skipworth. Finally, in this regard, it was submitted that the inability to have Mr Soeterik’s evidence before the jury meant the appellant was unable to give evidence regarding his psychological condition or conditions.
[31]	Mr Thomas submitted this evidence could not assist in showing the appellant’s reaction was not one of anger but one caused by his psychological condition. He submitted the evidence was of little probative value, because Mr Soeterik was unable to give an unequivocal diagnosis that the appellant suffered from post-traumatic stress disorder. As to the alleged need to balance the evidence of Dr Skipworth, Mr Thomas submitted that Dr Skipworth’s evidence dealt with the effects of methamphetamine and was entirely different from the proposed evidence of Mr Soeterik that dealt with his psychological examination of the appellant.
[32]	The issue of the admissibility of Mr Soeterik’s evidence arose in the context of Mr Tennet’s cross-examination of Dr Skipworth. As a consequence a lengthy voir dire was held in front of the Judge. Its purpose was to assess the prospective evidence of Mr Soeterik before questions relevant to it were put to Dr Skipworth in the presence of the jury.
[33]	At the conclusion of the voir dire counsel, Mr Tennet, accepted that the evidence of Mr Soeterik did not create a legitimate foundation for cross-examination of the psychiatrist. The reason for that was self-evident. Mr Soeterirk had formed a view that the appellant suffered from post-traumatic stress disorder. In submissions to us Mr Tennet described this as a "gut level diagnosis". However, once the standard diagnostic tool used by the American Psychiatric Association, DSM-IV, was applied Mr Soeterik was forced to concede that he could not make an unequivocal diagnosis of post-traumatic stress disorder. Given that, and Mr Tennet’s concession, the Judge did not consider it necessary to make a formal ruling on the admissibility of Mr Soeterik’s evidence. However, it appears counsel invited him to express a tentative view. That tentative view was that the Judge anticipated ruling later in the trial that the evidence was not admissible.
[34]	At the conclusion of the Crown case Mr Tennet did not seek to call Mr Soeterik, or request a formal ruling from the Judge as to the admissibility of his evidence. Notwithstanding that, the appellant now takes the position that the failure to call Mr Soeterik to give evidence on the appellant’s behalf has led to a miscarriage of justice.
[35]	The first ground to support this submission can be quickly disposed of. It was said by Mr Tennet that it was required to balance the evidence of Dr Skipworth. However, Dr Skipworth’s evidence dealt with the effects of methamphetamine on individuals. Mr Soeterik’s evidence had nothing to do with that. It could not have balanced the evidence, and for the reasons given earlier no such balancing was required.
[36]	Mr Tennet then submitted the evidence would have been relevant to the jury’s consideration of whether the appellant’s action in driving off was triggered by post-traumatic stress disorder or social phobia. Such a submission is fatally flawed, as Mr Tennet was forced to concede in the course of argument. There was no diagnosis of post-traumatic stress disorder, and absent such diagnosis the condition could not be used as an explanation for the behaviour.
[37]	The second point is that there was no indication that Mr Soeterik was going to give evidence as to the effect of the so called "social phobia". It is clear from the voir dire evidence that he was aware of it, but he said this in answer to questions from Mr Tennet:

[39]	Fifthly, in relation to the alleged misdirections, Mr Tennet submitted there were three substantial issues in the case. The first was the way in which the injuries came to be caused; the second, the intention of the appellant when the vehicle struck the complainant; and the third, self-defence, being the subjective view of the appellant and the reasonableness of his response.
[40]	In relation to self-defence he submitted that the direction was too brief, particularly when it was combined with the misdirection as to inferences, the failure by the Judge to identify where the grievous bodily harm occurred, and the watering down of the actions of a Mr Sulusi. He submitted the direction was of insufficient depth and it required the degree of force to be spelled out and delineated to the jury in a much lengthier exposition.
[41]	Next Mr Tennet submitted that there was a misdirection as to inferences, and the Judge’s example was highly prejudicial to the defence. He submitted that just because the appellant drove dangerously it did not mean he intended to cause serious harm.
[42]	Finally, he submitted that the defence case was not put adequately and complained that the Judge’s directions relating to the Crown case amounted to two pages, and for the defence only one and a half.
[43]	Mr Thomas submitted that the Judge’s direction on self-defence was standard, sufficient, and appropriate. He further submitted that the competing contentions of the Crown and the defence in relation to self-defence were properly and adequately described by the learned Judge and put to the jury by him.
[44]	Finally, Mr Thomas submitted that the direction on inferences was appropriate, and the example given proper in the circumstances of this case.
[45]	In directing the jury as to self-defence the Judge said:

[46]	In the context of this case, the direction was satisfactory and omitted no material matter.
[47]	In relation to inferences the Judge said:

[48]	Mr Tennet’s complaint is misconceived. The example of an inference given by the Judge is clearly based on his preceding statement that the jury needed to be satisfied on the evidence that the accused intentionally used his motor car to ram into the complainant, and that the jury might think a ready and sensible inference from this fact, if proved, was that his intention was to do really serious harm. He did not say the jury must draw such an inference, but suggested to them they might think it would logically have such a consequence.
[49]	We consider the direction on inferences to be correct and adequate. The example used by the Judge would have been of real assistance to the jury because it related to the central matter in issue in the trial, i.e. did the appellant intentionally use his car to drive into the complainant with the intention of doing serious harm.
[50]	We have read the Judge’s directions where he put the Crown and defence contentions to the jury. Those competing contentions have been properly and fairly described by the Judge in his directions to the jury.
[51]	For the sake of completeness we note that Mr Tennet also submitted that the Judge did not properly direct the jury on the need for intent to cause really serious injury. But in the passage above at [47] it is clear that the Judge properly and fairly placed this before the jury.
[52]	We are satisfied that none of the grounds of appeal have any substance or merit, indeed some were accepted in argument as misconceived. There has been no miscarriage of justice and the appeal against conviction is dismissed.

[53]	In relation to sentence Mr Tennet submitted that a careful analysis of R v Taueki [2005] 3 NZLR 372 showed that this matter should have been placed in band one. He submitted that despite the unfortunate injuries the aggravating features are non existent and that the Judge failed to properly take into account the appellant’s social and psychological disadvantage. He further submitted that in the circumstances of this case the sentence should be by analogy to "a bad driving case".
[54]	Mr Thomas submitted that the Judge had correctly applied Taueki and that the aggravating features present placed this in band two, and the final sentence was well within range.
[55]	This Court in Taueki set out guidelines for sentencing in cases of serious violence. This Court set out three sentencing bands: band one being appropriate for violence at the lower end of the spectrum; band two requiring a higher starting point which featured two or three aggravating factors; and band three, encompassing serious offending involving three or more of the aggravating factors were present and where their combination was particularly grave. The tariff range set was three to six years for band one; five to ten years for band two; and nine to 14 years for band three.
[56]	At [31] this Court said:

[59]	We are satisfied in this case the Judge carried out an appropriate evaluative test, properly considered the aggravating factors, and correctly placed this case at the lower end of band two. The sentence imposed, of six years imprisonment, was clearly within the range available to the sentencing Judge. The sentence was not manifestly excessive.
[60]	The appeal against sentence also fails.