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The Queen v McDonald [2007] NZCA 142 (20 April 2007)

Last Updated: 1 May 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA356/06
[2007] NZCA 142

THE QUEEN

v

PALMIRO MCDONALD

Hearing: 15 March 2007

Court: O'Regan, Arnold and Ellen France JJ

Counsel: C W J Stevenson for Appellant
M F Laracy for Crown

Judgment: 20 April 2007 at 12 noon

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] The appellant was convicted in the District Court at Palmerston North of wounding with intent to injure. He was acquitted on a charge of assault with a weapon. He appeals his conviction to this Court.

Grounds of appeal

[2] The grounds of appeal raised by the appellant are:

(a) The trial Judge, Judge Dawson, erred in declining a defence application for an included charge of assault;
(b) There were a number of references in the evidence of the complainant and others to previous assaults or alleged assaults by the appellant on the complainant;
(c) A comment made in closing by Crown counsel impugned the character of defence counsel and prejudiced the defence.

[3] The appellant submits that either individually or cumulatively these matters led to a miscarriage of justice.

Facts

[4] The complainant, who was the appellant’s girlfriend, was staying at her home. The appellant turned up and accused the complainant of being unfaithful. An argument ensued. It became physical.
[5] The appellant’s version of events, as recorded in his statement to the police, was that he and the complainant were in the lounge and the complainant became angry and began hitting and punching him. She then kicked the appellant in his testicles. He "lost it" and punched her in the face. In response the complainant hit the appellant repeatedly. He pushed her away. The complainant’s sister, who was present, then took a golf club and threatened to hit the appellant with it. The appellant wrestled the golf club away from the complainant’s sister. The complainant abused the appellant. After this the appellant and the complainant went for a short walk and then returned to the house. The complainant had a bleeding nose. The appellant called for an ambulance after laying the complainant down on her bed so she could rest. The appellant said that in total he had hit the complainant a couple of times. He had not meant to hit her as hard as he did.
[6] The Crown’s version of events was that the appellant chased the complainant after she initially hit him in the lounge. He, not the complainant’s sister, grabbed the golf club and prepared to strike the complainant with it. However the complainant’s sister intervened to prevent this. The complainant tried to call the police, but the appellant took the phone from her and chased her into the bedroom. The appellant kicked her in the face while she was on the floor of the bedroom.
[7] The assault with a weapon charge arose from the incident with the golf club. The wounding with intent to injure charge arose out of the other injuries sustained by the complainant.

First ground: included charge

[8] Under cross-examination, the complainant conceded that she may have slapped the appellant prior to him hitting her. She also conceded she had punched him on previous occasions. In the light of this concession, and of the appellant’s statement to police to the effect that he punched the complainant as a spontaneous response to being kicked in the groin, an application was made during the trial pursuant to s 339 of the Crimes Act 1961 to include a charge of assault or male assaults female.
[9] Judge Dawson declined the application saying the Crown had put evidence before the Court with respect to all the elements of the charges laid. It was a matter for the jury alone whether that evidence established the elements to the requisite standard.
[10] Section 339(1) of the Crimes Act provides:

Every count shall be deemed divisible; and if the commission of the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the person accused may be convicted of any crime so included which is proved, although the whole crime charged is not proved; or he may be convicted of an attempt to commit any crime so included.

[11] In R v Mokaraka [2002] 1 NZLR 793 (CA), Fisher J set out the principles governing included charges at [12]-[19]. As relevant to this case, they can be summarised as follows:

(a) The mere fact that an included charge is possible does not mean it must be put to the jury. It is a matter of discretion for the trial judge;
(b) There must be a live issue as to whether no more than the elements of the lesser charge will be proved. This is a threshold question. The jury must be squarely confronted with the possibility that all of the elements of the lesser charge are proved on the evidence without any of the elements of the principal charge;
(c) Once this inquiry is cleared, the following circumstances tell against putting the included charge: the lesser charge is trifling whereas the principal charge is very serious such that the lesser charge could distract the jury; the question of included charges is raised too late in proceedings such that prejudice results to one party in the way the trial is conducted; the inclusion of the lesser charge provides a pretext for the jury softening its verdict where, if it discharged its duty, it could only find the accused guilty on the principal charge or not guilty;
(d) The judge’s discretion to put the included charge is broad. An appellate court will not intervene unless it is satisfied that the jury may have convicted the accused out of reluctance to see him or her "get away" with disgraceful conduct.

[12] Counsel for the appellant, Mr Stevenson, submitted that in this case, the jury would have had little sympathy for the appellant, given he was a strong young man who had admitted to punching his young girlfriend. It was critical therefore that the jury was given the opportunity to convict the appellant on the lesser charge of common assault, given that if the jury were unsure about the requisite intent to injure, it might convict anyway so as to avoid the consequence that the appellant would avoid criminal liability.
[13] We do not agree. As Ms Laracy for the Crown points out, the appellant denied altogether that any assault took place in the bedroom, as the Crown alleged. The assault he conceded took place is that which he said occurred in the lounge following the complainant’s kicking him in the testicles. No charges arise from this event. Mr Stevenson put it to the complainant in cross-examination that she was punched when in the bedroom. He did so in a question which contained a number of propositions. The complainant answered the question affirmatively but it is far from clear which proposition she was agreeing to. Mr Stevenson also suggested in his closing address that the complainant was punched in the bedroom. So, although the possibility of the appellant having punched the complainant in the bedroom was raised in the course of the trial, there was no proper evidential basis for the alternative scenario which would have founded the included charge.
[14] Crown counsel referred us to this Court’s decision in R v Collier CA81/96 13 August 1996 where this Court upheld a trial Judge’s decision not to allow the jury to consider an included charge of assault where the appellant had been charged with assault with intent to injure. She said that the facts of that case had many similarities to those of the present case. We agree.
[15] We are satisfied that if the jury believed the appellant’s evidence, a verdict of not guilty was clearly available on the assault with intent to injure charge. And if the jury believed the complainant’s evidence, there would be no trouble in finding the requisite intent for the charge as laid by the Crown.
[16] We see no error in the Judge’s approach to this issue. This ground of appeal fails.

Second ground: references to previous assaults and hearsay remarks

[17] The appellant did not give evidence at trial but his statement to police was adduced in evidence. The contents of that statement are summarised at [5] above.
[18] During her evidence-in-chief, the complainant suggested on a number of occasions that the alleged offending was part of a pattern of physically abusive conduct she had suffered at the hands of the appellant. The relevant excerpts from the trial transcript are as follows:

Q: So it went from them arguing and then he lost his temper and it became physical?
A: Yeah I can’t remember. I might of like if he, I know that he, when he manhandles me I sort of like lash out but I can’t remember if I might of like slapped him or something first, I’m not sure.
...
Q: [T]ell us exactly what happened from the point he lost his temper?
A: I know he would have been threatening me ‘cos that’s just him and I normally duck or you know cover myself.
...
Q: And you have said that he has roughed you around in there. What do you mean by that?
A: Just pulling me and, yeah. I always drop, like try and just get away, like get his hands and that.
Q: So how did you end up on the ground, or did you end up on the ground?
A: Yes he just, like grabbing my clothes, you know, trying to hold me or hurt me, [no] but yeah. I normally just drop, like try and –
...
Q: OK we will just –
A: [Interrupts] I can’t remember if he was booting me while, while I was like that, cause normally that was what I would do to like protect myself.
...
Q: And tell us how, how you came to be kicked in the face. Talk us through how that happened?
A: Um, I was sorta, yeah. He’s pacing in and out and I’m, I don’t know if he was hitting me at the time but that’s normally why I curl up like that...
...
Q: Did anything happen with [the golf clubs]?
A: ...In the lounge everything happened real fast... I know [the appellant] was real angry and that I just get, when he gets like that I just go really, really scared and so like my mind and ‘cos it was so long ago, I just, I know that he, he would have been threatening me with it because that’s what he does but I don’t remember the golf club or seeing it actually.
...
Q: What do you say to [the appellant’s statement to police]?
A: Um no. If I did that I’d get a hua of a hiding. I’d be way too scared

[19] Under cross-examination, similar statements were made. The first of these was:

He’s very clever not bruising me so other people can see. If he was punching me or hitting me it was always belly.

[20] Defence counsel then asked the complainant a number of questions about that statement. Later in the complainant’s cross-examination she said:

I’m, when he is angry I’m always ducking to cover myself, protect myself.

[21] Additionally, the evidence-in-chief of the complainant’s father revealed a suggestion that the appellant had previously assaulted the complainant:

Q: Alright so the Accused comes up to you. What happens?
A: And he said something like "We had an argument and I pushed her" and then I said "Oh f... not again" ...

[22] Counsel for the appellant made an application for mistrial. In an oral decision, Judge Dawson refused the application. He pointed out that although the complainant’s allegations of previous violence against her were "regrettable", they were not revelations of previous convictions and could be adequately dealt with by way of a direction to the jury.
[23] In summing up to the jury, Judge Dawson directed as follows:

It is essential that you totally disregard and ignore any such comments that might allude to any violence on prior occasions and also totally ignore any hearsay evidence that may have crept into the evidence. They were not dealt with at the time so that they were not highlighted in your minds at that time. But in coming to your decisions you must ignore any such comments inferring prior violence or hearsay from your considerations.
Your duty as a Jury is to decide whether the Accused is guilty or not guilty of the two charges in this Trial. The Accused is here to be tried for these two Counts alone. He is not here to defend himself against anything else and it would be totally unfair to expect him to do so. Also, it would be wrong to infer that [the appellant] is guilty of either of these two Counts because of some untested, unproved inference of guilt on a prior or prior occasions. Therefore, I am requiring you to consider only the evidence that is relevant to the two Counts in this Trial and has been properly presented to the Court. Any other inference or allegation or wrongdoing or any hearsay your are to put to one side and ignore.

[24] In his evidence-in-chief the complainant’s father also made a hearsay remark concerning what the complainant’s other siblings had told him upon hearing of the appellant’s treatment of the complainant. The complainant’s father said:

I went down the hall and into the lounge and the kids were all huddled up on the couch and then as soon as they seen me they were oh no no no, [the appellant] beat her up and da da da da and they were really, really, oh, concerned as much as frightened.

[25] This remark was an additional basis for the application for mistrial. The Judge accepted the statement was hearsay, but pointed out that no objection was raised at the time the statement was made, and that it was not inconsistent with the evidence of the complainant given under cross-examination.
[26] The ultimate question is whether the complainant’s allegations of prior assault occasioned a miscarriage of justice. In R v Thompson [2006] 2 NZLR 577 at [16] the Supreme Court said:

Whether or not to discharge a jury which has heard a witness disclose illegitimate prejudicial material is for the discretion of the trial Judge on the particular facts. An appellate Court will not lightly interfere with the exercise of that discretion. It depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course.

[27] In that case the Supreme Court was satisfied that any illegitimate prejudice that arose was capable of being cured, and indeed was cured, by the trial Judge’s direction to the jury to ignore the illegitimate prejudicial material.
[28] In R v Ford CA466/05 23 May 2006 at [31] this Court indicated that it might be desirable, where a witness discloses illegitimate prejudicial material in evidence, that the trial Judge directs the jury immediately that the evidence is not to be taken into account, and then reiterates this direction in summing up. However, in the present case, following the Judge’s oral decision in chambers declining the mistrial application, the Judge asked counsel for the defence whether a direction should be given to the jury immediately or at a later time. Counsel indicated that he wished to reserve until later whether a direction should be given to the jury. That meant that the Judge’s proposal to give an immediate direction was rejected, and no direction was given until the Judge summed up at the end of the trial.
[29] The remarks of the complainant were unfortunate. It was particularly unfortunate that neither counsel nor the Judge initiated a break in proceedings so she could be told not to continue referring to past assaults. The proper course would have been for the Judge to initiate an opportunity to instruct the complainant about this in the absence of the jury, whether or not counsel asked him to. The difficulty for defence counsel was that the answers were not in response to questions which could have been expected to elicit answers referring to past assaults, and this meant defence counsel had nothing to object to, until the answers had been given.
[30] Having said that, we are satisfied that the prejudice the evidence of past conduct occasioned was curable, and indeed was cured, by the Judge’s direction in his summing up. Although there were eight comments in total, the gist of all of them was substantially the same: the appellant gets angry and manhandles the complainant, and her response is normally to duck or curl up so as to protect herself. The complainant did not detail specific incidents of past abuse. Similarly the complainant’s father’s remark in his evidence-in-chief simply implied that the appellant had beaten the complainant before, but did not go into specifics.
[31] These general remarks, while illegitimate and prejudicial, were consistent with the appellant’s statement to police that the complainant had abused him verbally and said to him "you said you wouldn’t hit me any more". Mr Stevenson suggested that comment had been edited out of the statement produced to the jury, but there is nothing in the Court record to indicate that that occurred. Even if it did, there was another reference to past assaults in the appellant’s statement. He said that the complainant’s sister had said to the complainant when the complainant began to hit the appellant: "You always start this....you like this kind of stuff". Accordingly, as in Thompson, the information that the jury heard as a result of the illegitimate disclosure was information it could have reasonably inferred from evidence that was legitimately before it. Some of the evidence (about the complainant’s reaction to violence) was also relevant to the issue of self defence, which was before the jury. In the light of these factors and of the Judge’s emphatic direction in summing up, we are satisfied that no miscarriage of justice has occurred.
[32] The remark of the complainant’s father as to what the complainant’s siblings had said in reaction to the news of the offending was hearsay. The Judge directed the jury to ignore hearsay evidence. The hearsay in this instance was not admissible as the Crown contends, but is consistent with the substance of the complainant’s evidence. Further, it does not allege any previous bad conduct by the appellant. No prejudice arose from the evidence and the Judge’s direction was sufficient to cure it.

Ground three: comment by prosecutor

[33] In his closing address, the prosecutor said:

I suggest really that the defence in this case is largely designed to distract you, to move away from what is the plain and overwhelming reality here, that this Accused has been the aggressor, the angry man, right from the start. He started it in the lounge. He’s picked up the golf club. He’s continued it, he’s chased and it’s designed to distract you from the overwhelming reality that he’s gone in and he’s kicked [the complainant] in the face.

[34] An objection was made by defence counsel to the effect that this comment impugned defence counsel’s character and suggested some improper motive. That objection was dismissed by the trial Judge.
[35] There is nothing in this ground of appeal. The comment of the prosecutor, when read in its full context, is an attack on the defence case rather than the lawyer who presented it. When read in context, it refers to the appellant’s account as a self-serving version which fits with the obvious injuries suffered by the complainant while downplaying the seriousness of his conduct. It is not pejorative about counsel or tactics employed by counsel.

Result

[36] We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington

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[4]	The complainant, who was the appellant’s girlfriend, was staying at her home. The appellant turned up and accused the complainant of being unfaithful. An argument ensued. It became physical.
[5]	The appellant’s version of events, as recorded in his statement to the police, was that he and the complainant were in the lounge and the complainant became angry and began hitting and punching him. She then kicked the appellant in his testicles. He "lost it" and punched her in the face. In response the complainant hit the appellant repeatedly. He pushed her away. The complainant’s sister, who was present, then took a golf club and threatened to hit the appellant with it. The appellant wrestled the golf club away from the complainant’s sister. The complainant abused the appellant. After this the appellant and the complainant went for a short walk and then returned to the house. The complainant had a bleeding nose. The appellant called for an ambulance after laying the complainant down on her bed so she could rest. The appellant said that in total he had hit the complainant a couple of times. He had not meant to hit her as hard as he did.
[6]	The Crown’s version of events was that the appellant chased the complainant after she initially hit him in the lounge. He, not the complainant’s sister, grabbed the golf club and prepared to strike the complainant with it. However the complainant’s sister intervened to prevent this. The complainant tried to call the police, but the appellant took the phone from her and chased her into the bedroom. The appellant kicked her in the face while she was on the floor of the bedroom.
[7]	The assault with a weapon charge arose from the incident with the golf club. The wounding with intent to injure charge arose out of the other injuries sustained by the complainant.

[8]	Under cross-examination, the complainant conceded that she may have slapped the appellant prior to him hitting her. She also conceded she had punched him on previous occasions. In the light of this concession, and of the appellant’s statement to police to the effect that he punched the complainant as a spontaneous response to being kicked in the groin, an application was made during the trial pursuant to s 339 of the Crimes Act 1961 to include a charge of assault or male assaults female.
[9]	Judge Dawson declined the application saying the Crown had put evidence before the Court with respect to all the elements of the charges laid. It was a matter for the jury alone whether that evidence established the elements to the requisite standard.
[10]	Section 339(1) of the Crimes Act provides:

[12]	Counsel for the appellant, Mr Stevenson, submitted that in this case, the jury would have had little sympathy for the appellant, given he was a strong young man who had admitted to punching his young girlfriend. It was critical therefore that the jury was given the opportunity to convict the appellant on the lesser charge of common assault, given that if the jury were unsure about the requisite intent to injure, it might convict anyway so as to avoid the consequence that the appellant would avoid criminal liability.
[13]	We do not agree. As Ms Laracy for the Crown points out, the appellant denied altogether that any assault took place in the bedroom, as the Crown alleged. The assault he conceded took place is that which he said occurred in the lounge following the complainant’s kicking him in the testicles. No charges arise from this event. Mr Stevenson put it to the complainant in cross-examination that she was punched when in the bedroom. He did so in a question which contained a number of propositions. The complainant answered the question affirmatively but it is far from clear which proposition she was agreeing to. Mr Stevenson also suggested in his closing address that the complainant was punched in the bedroom. So, although the possibility of the appellant having punched the complainant in the bedroom was raised in the course of the trial, there was no proper evidential basis for the alternative scenario which would have founded the included charge.
[14]	Crown counsel referred us to this Court’s decision in R v Collier CA81/96 13 August 1996 where this Court upheld a trial Judge’s decision not to allow the jury to consider an included charge of assault where the appellant had been charged with assault with intent to injure. She said that the facts of that case had many similarities to those of the present case. We agree.
[15]	We are satisfied that if the jury believed the appellant’s evidence, a verdict of not guilty was clearly available on the assault with intent to injure charge. And if the jury believed the complainant’s evidence, there would be no trouble in finding the requisite intent for the charge as laid by the Crown.
[16]	We see no error in the Judge’s approach to this issue. This ground of appeal fails.

[17]	The appellant did not give evidence at trial but his statement to police was adduced in evidence. The contents of that statement are summarised at [5] above.
[18]	During her evidence-in-chief, the complainant suggested on a number of occasions that the alleged offending was part of a pattern of physically abusive conduct she had suffered at the hands of the appellant. The relevant excerpts from the trial transcript are as follows:

[22]	Counsel for the appellant made an application for mistrial. In an oral decision, Judge Dawson refused the application. He pointed out that although the complainant’s allegations of previous violence against her were "regrettable", they were not revelations of previous convictions and could be adequately dealt with by way of a direction to the jury.
[23]	In summing up to the jury, Judge Dawson directed as follows:

[25]	This remark was an additional basis for the application for mistrial. The Judge accepted the statement was hearsay, but pointed out that no objection was raised at the time the statement was made, and that it was not inconsistent with the evidence of the complainant given under cross-examination.
[26]	The ultimate question is whether the complainant’s allegations of prior assault occasioned a miscarriage of justice. In R v Thompson [2006] 2 NZLR 577 at [16] the Supreme Court said:

[27]	In that case the Supreme Court was satisfied that any illegitimate prejudice that arose was capable of being cured, and indeed was cured, by the trial Judge’s direction to the jury to ignore the illegitimate prejudicial material.
[28]	In R v Ford CA466/05 23 May 2006 at [31] this Court indicated that it might be desirable, where a witness discloses illegitimate prejudicial material in evidence, that the trial Judge directs the jury immediately that the evidence is not to be taken into account, and then reiterates this direction in summing up. However, in the present case, following the Judge’s oral decision in chambers declining the mistrial application, the Judge asked counsel for the defence whether a direction should be given to the jury immediately or at a later time. Counsel indicated that he wished to reserve until later whether a direction should be given to the jury. That meant that the Judge’s proposal to give an immediate direction was rejected, and no direction was given until the Judge summed up at the end of the trial.
[29]	The remarks of the complainant were unfortunate. It was particularly unfortunate that neither counsel nor the Judge initiated a break in proceedings so she could be told not to continue referring to past assaults. The proper course would have been for the Judge to initiate an opportunity to instruct the complainant about this in the absence of the jury, whether or not counsel asked him to. The difficulty for defence counsel was that the answers were not in response to questions which could have been expected to elicit answers referring to past assaults, and this meant defence counsel had nothing to object to, until the answers had been given.
[30]	Having said that, we are satisfied that the prejudice the evidence of past conduct occasioned was curable, and indeed was cured, by the Judge’s direction in his summing up. Although there were eight comments in total, the gist of all of them was substantially the same: the appellant gets angry and manhandles the complainant, and her response is normally to duck or curl up so as to protect herself. The complainant did not detail specific incidents of past abuse. Similarly the complainant’s father’s remark in his evidence-in-chief simply implied that the appellant had beaten the complainant before, but did not go into specifics.
[31]	These general remarks, while illegitimate and prejudicial, were consistent with the appellant’s statement to police that the complainant had abused him verbally and said to him "you said you wouldn’t hit me any more". Mr Stevenson suggested that comment had been edited out of the statement produced to the jury, but there is nothing in the Court record to indicate that that occurred. Even if it did, there was another reference to past assaults in the appellant’s statement. He said that the complainant’s sister had said to the complainant when the complainant began to hit the appellant: "You always start this....you like this kind of stuff". Accordingly, as in Thompson, the information that the jury heard as a result of the illegitimate disclosure was information it could have reasonably inferred from evidence that was legitimately before it. Some of the evidence (about the complainant’s reaction to violence) was also relevant to the issue of self defence, which was before the jury. In the light of these factors and of the Judge’s emphatic direction in summing up, we are satisfied that no miscarriage of justice has occurred.
[32]	The remark of the complainant’s father as to what the complainant’s siblings had said in reaction to the news of the offending was hearsay. The Judge directed the jury to ignore hearsay evidence. The hearsay in this instance was not admissible as the Crown contends, but is consistent with the substance of the complainant’s evidence. Further, it does not allege any previous bad conduct by the appellant. No prejudice arose from the evidence and the Judge’s direction was sufficient to cure it.