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The Queen v van der Hulst [2006] NZCA 94 (18 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA469/05

THE QUEEN

v

ELAINE JUDITH VAN DER HULST

Hearing: 16 May 2006

Court: O'Regan, Panckhurst and Potter JJ

Counsel: K Clews for Appellant
B J Horsley for Crown

Judgment: 18 May 2006

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS

(Given by Panckhurst J)

Introduction

[1] The appellant was found guilty upon one count of wounding with intent to injure. The complainant was her partner whom, on 5 April 2005, she wounded with a kitchen knife in the course of a domestic dispute.
[2] This appeal against conviction is based upon three alleged misdirections in the summing-up of the trial Judge, Judge Tompkins.
[3] We are satisfied that the summing-up was entirely adequate to the occasion and that it contained no misdirection, as alleged. These brief reasons explain the basis for that conclusion.

Background

[4] The appellant faced alternative counts, each of which alleged wounding, but one with intent to cause grievous bodily harm and the other an intent to injure. The jury acquitted in relation to count 1, but returned a guilty verdict in relation to count 2 (wounding with intent to injure). Ms Van der Hulst was sentenced to supervision for 12 months, subject to special conditions.
[5] The major issue at trial was self-defence. The appellant maintained that she was under attack when she wounded her partner, with the knife from an empty dinner plate (after she had discarded a cooked meal when her partner declined to eat it).
[6] The three criticisms made of the summing-up relate to the directions pertaining to self-defence. We can turn immediately to these.

The alleged misdirections

[7] Mr Clews submitted that the summing-up contained a factual misdirection because, at some points, the Judge referred to a stabbing with a knife, whereas it was common ground that the appellant had both a knife and a fork in her hand at the relevant time. However, on a reading of the summing-up as a whole, we are in no doubt there is no substance to this criticism. At some points the Judge referred to both implements, while at others he adopted the shorthand of referring to only the knife. But, there was no scope for the jury to be confused on account of this method.
[8] The second argument was that on account of the structure of the summing-up the jury may have been misled into thinking that self-defence was only relevant to count 2. Again, we disagree. On more than one occasion the Judge expressly said that self-defence was relevant to both counts, albeit his initial reference to the topic was in relation to count 2. In any event, this argument suffers from the insurmountable problem that the appellant was acquitted in relation to count 1.
[9] The final criticism was that although the Judge correctly explained to the jury that there was an onus on the Crown to prove, beyond reasonable doubt, that the accused was not acting in self-defence, he compromised this direction a little later by saying that if the requisite intent was proved in relation to either count "you will then go on, you will then have to go on to consider whether the Crown have excluded, as a reasonable possibility, that the accused was acting in self-defence" (emphasis added). Mr Clews submitted that the emphasised words derogated from the correct direction, such as to constitute a misdirection. We disagree. The quoted words were no more than an acceptable and helpful way of explaining the extent of the onus upon the Crown by importing reference to the standard of proof as well, namely that even the reasonable possibility of self-defence needed to be excluded.

Result

[10] The appeal against conviction is dismissed.

Solicitors:
Kit Clews, Hamilton for Appellant
Crown Law Office, Wellington

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[1]	The appellant was found guilty upon one count of wounding with intent to injure. The complainant was her partner whom, on 5 April 2005, she wounded with a kitchen knife in the course of a domestic dispute.
[2]	This appeal against conviction is based upon three alleged misdirections in the summing-up of the trial Judge, Judge Tompkins.
[3]	We are satisfied that the summing-up was entirely adequate to the occasion and that it contained no misdirection, as alleged. These brief reasons explain the basis for that conclusion.

[4]	The appellant faced alternative counts, each of which alleged wounding, but one with intent to cause grievous bodily harm and the other an intent to injure. The jury acquitted in relation to count 1, but returned a guilty verdict in relation to count 2 (wounding with intent to injure). Ms Van der Hulst was sentenced to supervision for 12 months, subject to special conditions.
[5]	The major issue at trial was self-defence. The appellant maintained that she was under attack when she wounded her partner, with the knife from an empty dinner plate (after she had discarded a cooked meal when her partner declined to eat it).
[6]	The three criticisms made of the summing-up relate to the directions pertaining to self-defence. We can turn immediately to these.

[7]	Mr Clews submitted that the summing-up contained a factual misdirection because, at some points, the Judge referred to a stabbing with a knife, whereas it was common ground that the appellant had both a knife and a fork in her hand at the relevant time. However, on a reading of the summing-up as a whole, we are in no doubt there is no substance to this criticism. At some points the Judge referred to both implements, while at others he adopted the shorthand of referring to only the knife. But, there was no scope for the jury to be confused on account of this method.
[8]	The second argument was that on account of the structure of the summing-up the jury may have been misled into thinking that self-defence was only relevant to count 2. Again, we disagree. On more than one occasion the Judge expressly said that self-defence was relevant to both counts, albeit his initial reference to the topic was in relation to count 2. In any event, this argument suffers from the insurmountable problem that the appellant was acquitted in relation to count 1.
[9]	The final criticism was that although the Judge correctly explained to the jury that there was an onus on the Crown to prove, beyond reasonable doubt, that the accused was not acting in self-defence, he compromised this direction a little later by saying that if the requisite intent was proved in relation to either count "you will then go on, you will then have to go on to consider whether the Crown have excluded, as a reasonable possibility, that the accused was acting in self-defence" (emphasis added). Mr Clews submitted that the emphasised words derogated from the correct direction, such as to constitute a misdirection. We disagree. The quoted words were no more than an acceptable and helpful way of explaining the extent of the onus upon the Crown by importing reference to the standard of proof as well, namely that even the reasonable possibility of self-defence needed to be excluded.