The Queen v MacDonald [2008] NZCA 315 (21 August 2008)

Last Updated: 27 August 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA185/2008 [2008] NZCA 315THE QUEEN

v

KANE LEX MACDONALD

Hearing: 29 July 2008

Court: Ellen France, Gendall and Miller JJ

Counsel: J A Young for Appellant
S J Mount for Crown

Judgment: 21 August 2008 at 11.30 am

JUDGMENT OF THE COURT

Appeal against convictions and sentence dismissed.

REASONS OF THE COURT

(Given by Gendall J)

Table of Contents

Para No.

Introduction [1]
Background [3]
“Fresh” evidence [15]
New evidence [37]
Is the evidence fresh? [41]
The evidence of Mr Gunson in relation to what he says he was told
by Mr Danny Mullins [41]
The evidence of Mr Gunson in relation to who were the aggressors [43]
The evidence of Mr and Mrs Karam – is it “fresh”? [46]
Evidence of Mr Karam [53]
Evidence of Mrs Tania Karam [55]
Is the evidence credible and cogent? [61]
The trial Judge interventions [84]
The summing up [86]
Unfair or unreasonable process [93]
Appeal against sentence [98]

Introduction

[1] The appellant was found guilty on two counts, namely wounding with intent to injure, and wounding with intent to cause grievous bodily harm after a jury trial in the District Court at Whangarei. He was sentenced to an effective term of four years’ imprisonment: DC WHA CRI-2006-092-000832 3 April 2008. He appeals against his convictions on the basis of fresh evidence (which he seeks leave to adduce); that the Judge intervened excessively during the trial and erred in one factual reference in his summing up; and that the appellant was subjected to an unfair and unreasonable trial process.
[2] Counsel for the appellant accepted that, if one or both convictions were not quashed, she could not advance any argument on the appeal against sentence.

Background

[3] The convictions arise out of events that occurred on New Year’s Eve 2005 at a campground at Waipu Cove, Northland. At about 11.30 pm groups of teenagers, largely described as “campers” and “locals”, were engaged in disturbances. Not surprisingly, many had been consuming alcohol. There had been some ill feeling between some members of the different factions earlier in the week. Two brothers named Marc Fata and Ben Fata, who were “locals” were with a group in the campground on New Year’s Eve. A confrontation occurred with a group of teenagers amongst whom was the appellant, Kane MacDonald.
[4] The Crown’s case was that the appellant was holding a drinking glass, or beer “handle”, and he struck Marc Fata twice to the head and face with it. Medical evidence and photographs confirmed injuries to his face and mouth.
[5] Marc Fata’s evidence, supported by other bystanders who gave evidence, was that the appellant “bottled” him with the weapon being a glass item with a handle on its top. Some described it as a “bottle”, others a ‘glass”. When the broken pieces were recovered and reconstructed, it was a clear glass with a “Jim Beam” label, and handle attached. The appellant when later interviewed by the police denied striking Marc Fata with the glass in his hand, but contended he did punch him in self-defence. Later in the interview, whilst maintaining self-defence, he admitted striking him with the glass in his hand. When he came to give evidence the appellant said that he did not have the glass item in his hand and simply punched Marc Fata in self-defence, after the latter had attacked him. The defence’s position at trial was that the appellant was attacked, was forced to defend himself, and did so, but not when he had the glass in his hand.
[6] The jury clearly accepted the evidence called by the Crown from eyewitnesses as to the striking of Marc Fata by the appellant with the glass in his hand, which resulted in the conviction of wounding with intent to injure.
[7] Ben Fata was standing beside his brother to his left so as to face the appellant’s right.
[8] The Crown’s case was that immediately after Marc Fata had been struck by the appellant, he smashed what was then a broken glass (its handle being held by him) onto the neck of Ben Fata, severely lacerating it. Ben Fata’s evidence was that he had seen his brother Marc hit by the appellant on the head with a “Jim Beam bottle” and then he himself was hit with a “bottle” but did not see who did it. After falling to the ground he got up and ran away. He went from the playground area across the campground in the direction of the toilet block and camp office. He was there found by some others, including Ms Kate Godfrey. She assisted him with his wound, now bleeding profusely. They went to the office area where a large group of teenagers were “swarming around”. A person pushed Ben Fata and Ms Godfrey through a glass door at the office, causing serious lacerations to Ben Fata’s shoulder and to Ms Godfrey. Ben Fata’s evidence was that thereafter he was chased by some men who began punching him. He recognised one of them as being the appellant’s father, and he said that he was also pursued by a group of teenagers, and at that stage there was “blood everywhere”.
[9] The person who propelled Ben Fata and Ms Godfrey through the glass window was Mathew Reiri, who was found guilty at the joint trial of an offence relating to those actions and was sentenced to 12 months’ home detention.
[10] There was Crown evidence of continued animosity from the appellant directed at Ben Fata, when he was at the office with Ms Godfrey endeavouring to treat his wounds. This was that the appellant was being then restrained by two females, and was shouting out words to the effect that he wanted “to kill” someone.
[11] Crown evidence relating to the wounding of Ben Fata included medical evidence that the laceration to Ben Fata’s neck was caused by a sharp implement and the broken glass handle collected from the campground was capable of causing such injury, although it could also have been caused by a knife or other sharp object.
[12] DNA of Ben Fata was found on a glass sample taken from the sharp end of the broken glass handle, with statistical odds of 1:10,000,000. The Crown case was that it could only have got onto that broken, jagged end through contact with his neck. The appellant denied hitting Ben Fata. There was some DNA on the broken glass handle consistent with that of the appellant, although only a partial profile and with such odds ratio as to not assist in establishing whether the DNA originated from the appellant.
[13] When the police first spoke to the appellant he said he had been assaulted by “both of them” and that “I dropped the handle and started to punch them”. When the appellant gave evidence he said he was upset with Ben Fata because he was the one “that planned the attack on me, Marc didn’t really know me that I knew of, he didn’t know me, he’s the one that may have planned it for his brother to attack me”. It was his case that Ben Fata was the aggressor.
[14] When giving evidence the appellant denied threatening or shouting as alleged by Crown witnesses, and denied having any contact at all with Ben Fata. His evidence was that he punched only Marc Fata (without the glass) in self-defence from an attack upon him. It is implicit from the jury’s verdicts that they rejected that evidence.

“Fresh” evidence

[15] There was some confusion about the effect of the earlier order of this Court granting leave to adduce the further evidence. As we understand it, the effect of the order was to direct the appellant to file the relevant evidence and did not address questions of freshness or cogency.
[16] The fresh evidence the appellant says should be admitted and, requires the appeal to be allowed, falls into two categories.
[17] The first category the appellant’s counsel contends is fresh is that of the camp manager, Mr R Gunson. This is to the effect that on 26 December 2005 there was a disturbance at the campground involving 10 young people (mainly teenagers), and that the following day he was “told by various people” of the reason of the altercation. He was later “told” that some of the local teenagers were going to come to the camp to deal with those involved in the Boxing Day altercation. As a consequence he told local police so that they would increase their visits, which they did.
[18] The appellant’s counsel submitted this evidence, if given, would have added support to the claim to self-defence by the appellant because she says it pointed towards Marc (or Ben) Fata being the aggressors.
[19] The second category of “fresh” evidence is said to be that of Mrs Tania Karam to the effect that she saw a teenager named Mark Melville, running in the campground with blood on his T-shirt and disposing of that shirt in a washing receptacle. The proposed evidence of Mrs Karam, or relevant parts of it, are set out in more detail at para [55].
[20] The question of “fresh” evidence arose in the following way.
[21] The trial took place over the period 18 – 28 February 2008. Before the Crown’s case had concluded, Detective Reihana (the officer in charge of the scene), visited the Waipu campground to make arrangements for a view to be undertaken. Whilst he was there, Mr Gunson volunteered some information to him.
[22] Mr Gunson was friendly with the appellant’s family as they frequently stayed at the camp. In his affidavit he deposes that another camper, Mr Danny Mullins had told him:

Tania Karam had seen Mark Melville run into his parents’ caravan with blood all over his T-shirt. Danny said the T-shirt was white. This was said to have happened at about the same time as the incident that Ben Fata was injured. The information was Mark Melville took off his T-shirt, put on a new one, and put the bloodied shirt into a bucket of water. Evidently also, Tania was in the Melville caravan at the time. She had apparently gone there looking for Mark’s parents.

[23] Mr Gunson deposes that when Detective Reihana visited on 25 February 2008:

I told Detective Reihana that a woman had seen a young man wearing a white T-shirt, covered in blood, run to his parents’ caravan, change his clothes and soaked the bloodied T-shirt in a bucket.

[24] Names and details of site holders and persons who Mr Gunson knew were then provided to Detective Reihana including the names of Tania Karam, Danny Mullins and Mr and Mrs Melville, all of whom (it seems) were regular patrons of the establishment. Detective Reihana told Mr Gunson that he would follow up what he had been told.
[25] Detective Reihana recorded that information in his notebook and advised Detective Glendinning, Officer-in-charge of the case, on that day that he had received:

Third-hand information from Mr Gunson that someone had been seen washing out a blood stained shirt on the night of the assault.

[26] Detective Glendinning, due to the third-hand nature of the information considered it to be of little value and “likely to be just gossip or talk”, and said he did not think any more about it.
[27] It was not until after a conviction and sentence that defence counsel became aware of the hearsay information provided by Mr Gunson. A private investigator interviewed Mr and Mrs Karam. There is no evidence that he or anyone else approached Mr and Mrs Melville, or their son Mark.
[28] Mr and Mrs Karam have made a joint affidavit. We observe that that is somewhat unusual in criminal cases, but we have been able to discern the evidence of each. They know the appellant “quite well because we have all been going to the Waipu Camping Ground for the past 10 years”, and they know the appellant’s parents well as they do not live too far away. The MacDonalds, Karams, Mullins, and Mr Gunson, at least are acquaintances from the camping at Waipu.
[29] The Karams depose that they arrived at the Melville campsite at about 7 pm on New Year’s Eve. At about 11 pm Mrs Karam and another camper, Ms Raewyn Titford, went to the toilets. She says they saw a group of teenagers in the vicinity of the toilets and recognised Kane MacDonald. There was yelling, screaming and swearing, no fighting was seen “but there were teenagers swarming everywhere”.
[30] Upon her return to the Melville campsite she mentioned the disturbance to Mr Karam. He left with some others to go to that area. Mr Karam deposes that he went to the toilet area where:

The altercation had moved towards the camp office. I heard glass breaking. It was probably a window or a door. ....

I ... didn’t see anything happen at the office at all. The sliding door was broken, so that would have been the glass that I heard.

....

I ... think the police had turned up just as I left the office area. I went back to the Melville site and everybody was back there again including ... Mark and Grant Melville.

[31] He said that they were back at the campsite for only a short while when Mrs Mullins came and asked for help and that:

She said there was another fight over at the MacDonald site. The men all went over there. That is I ... and Mark.

[32] The narrative is then picked up by Mrs Karam. She says that after she and another woman were left at the Melville site on their own (when the men had gone to the toilet/office area, she did not know for how long):

Mark Melville came sprinting towards us from the direction of the road to the office. I, Tania, first saw him when he was coming across the common ground in front of Site 131. I don’t know where he had ran from prior to that.

Once he got closer we could see that he had blood on his top. There was quite a lot of blood on it. Enough for us to think, “holy hell, what has happened.

While he was still running, and before he stopped, he started taking his top off. The top Mark was taking off was a green polo shirt. Then he went to the outside sink on the site. .... He threw it in the sink. He filled the sink up with water, and left it filling.

While it was filling he ran inside the caravan and got another T-shirt. I ... can’t recall what the colour of the T-shirt was that he put on. I can’t even say if it was a T-shirt or a polo.

[33] Mrs Karam then deposes that before she knew it “the guys came back again. Everyone was talking and had their opinions about what had gone on, and that someone had been hurt.” She says that “we never really got the opportunity” to talk about the T-shirt, because everyone went down to the MacDonald site because there was another fight going on there. She deposes that:

Mark wasn’t injured as far as we were aware, so all we could assume is that the blood came from someone who must have been bleeding and near to Mark at the time. That is absolute speculation on our part.

I, Tania, know that Mark didn’t have a blood nose or anything like that when I saw him change his top.

[34] She refers to another camper, a member of the Camp Board, coming to the Melville site and speaking to a Mr Melville Snr the next day.
[35] Mr Karam later deposes that he never saw Mark Melville at any stage.
[36] Counsel for the appellant contends that this new evidence points to some other person, namely Mark Melville, being the offender for one or both assaults with the glass at the playground area.

New evidence

[37] The jurisdiction to allow an appeal on the ground of discovery of fresh evidence arises from s 385(1)(c), Crimes Act 1961. An appeal against conviction shall be allowed if the Court is of the opinion that on any ground there was a miscarriage of justice. The overriding test is the interests of justice. Admission of new evidence is governed by criteria in R v Bain [2004] 1 NZLR 638 at [22] – [27] (CA), affirmed on appeal by the Privy Council in Bain v R [2007] UKPC 33; (2007) 23 CRNZ 71 at [34] (PC) and discussed in R v Hutton [2008] NZCA 126. The principles are well established and need no detailed discussion. They are:

• The proposed evidence must be “sufficiently fresh”. If it could have been called at the trial with reasonable diligence it will not qualify as sufficiently fresh. But it is not always necessary that the evidence be fresh before the Court will consider it. If it is strong and demonstrates a real risk of miscarriage of justice, the requirement that it be fresh is of less importance.
• The proposed evidence must be sufficiently credible or sufficiently cogent: see, for example, Hutton at [27(b)].
• Once the first two filters are satisfied, the third enquiry is whether the new evidence, if considered alongside the evidence given at the trial, might have caused a reasonable jury to entertain a reasonable doubt about guilt. This Court is not the arbiter of guilt, and is not to take upon itself the task of deciding that issue.

[38] As expressed by Lord Bingham of Cornhill in Bain:

[103] A substantial miscarriage of justice will actually occur if fresh, admissible and apparently credible evidence is admitted which the jury convicting a defendant had no opportunity to consider but which might have led it, acting reasonably, to reach a different verdict if it had had the opportunity to consider it. ... It is, ... the duty of the criminal appellate Courts to seek to identify and rectify convictions which may be unjust. That result will occur where a defendant is convicted and further post-trial evidence raises a reasonable doubt whether he would or should have been convicted had that evidence been before the jury.

[104] ... It is the effect of all the fresh evidence taken together, not the evidence on any single point, which compels [the conclusion that a miscarriage of justice has occurred].

[39] Before dealing with the “fresh evidence” issues we briefly refer to counsel’s argument that the trial was unfair because the police withheld information favourable to the defence. Clearly the detective should have conveyed that information to defence counsel. The Crown accepted that there should have been disclosure. It may well have been gossip, and unreliable but nevertheless, the defence was entitled to follow up the information if it wished. Whether or not it could have obtained similar information through its own diligent efforts over the previous two years we discuss later.
[40] In the end, the effect of the “new evidence” is to be determined by established principles, and non-disclosure by the police – if it would have made no difference – is not a sustainable ground of appeal provided no risk of a miscarriage of justice arises.

Is the evidence fresh?

The evidence of Mr Gunson in relation to what he says he was told by Mr Danny Mullins

[41] Although he was not told of this earlier, it does not follow that it is relevant fresh evidence. That is because his evidence is hearsay by Mr Mullins, of questionable reliability, (he said that he told Detective Reihana that Mr Mullins told him that someone had seen a young man wearing a white T-shirt covered in blood to run into his parents’ caravan; whereas Mrs Karam describes the shirt as “green”).
[42] Much of Mr Gunson’s evidence relates to being told that a male in a green T-shirt was responsible for pushing Ben Fata through the glass door/window; how he and others endeavoured to locate a person in a green T-shirt; observing that Marc Fata was wearing such apparel; and another camper identified another young man wearing dark clothing, but that identification was mistaken. Further that evidence has no bearing on the appeal. There was no argument at trial that the male in the green T-shirt who pushed Ben Fata through the window was the accused Mr Reiri. He was convicted of that offence. Mr Gunson’s evidence on these matters is neither relevant nor admissible.

The evidence of Mr Gunson in relation to who were the aggressors

[43] Assertions that the local teenagers intended to set upon the teenagers at the camp, including the appellant and his friends, was evidence easily obtainable at the time, given that the supposed earlier altercation had been between the appellant and locals. In any event, there was ample evidence as to tensions on that night, with different groups of teenagers abusing each other, and there was evidence from the appellant and others that angry words were exchanged between large groups of teenagers during a general confrontation.
[44] Counsel for the appellant contended that the evidence from Mr Gunson “tipped the balance” as to who may have been the aggressor in the altercations. Mr Gunson’s evidence, or proposed evidence, simply illustrates that he had asked for additional police visits. The direct evidence relevant to self-defence came from the appellant and related to a short exchange between himself and Marc Fata, and he said that Ben Fata was standing alongside. He said Marc Fata attacked him. The real issue before the jury was whether a glass was used as a weapon by the appellant to the face and head region of Marc Fata and, if so, whether the Crown had excluded its justification as self-defence. Separately, and unrelated to any claim of self-defence, whether, a broken glass weapon was used by the appellant to the neck of Ben Fata.
[45] We do not admit the evidence of Mr Gunson as to which group was intent on “starting” the confrontation. It is not sufficiently fresh, or cogent in the sense that it would have relevantly added to the evidence that had already been given.

The evidence of Mr and Mrs Karam – is it “fresh”?

[46] The appellant’s counsel says that the defence were unaware of this until after trial. Mr Gunson’s advice to Detective Reihana should have been conveyed in the course of the trial to the defence counsel, but that is not the end of the matter insofar as determining its admissibility on appeal, and whether it might have led to a different outcome.
[47] Whether or not counsel was aware or it, the question arises whether the appellant knew of it, or could have ascertained it, by reasonable efforts, over the two years prior to trial.
[48] Mr Mount, on behalf of the Crown, pointed to certain features which illustrate that the evidence was not fresh in the sense that it could not have been obtained by a reasonable diligence on the part of the defence. He says the appellant’s position, at least in relation to Ben Fata, from the very start of inquiries was that he was not responsible for the wounding to the neck. If he was not, the issue then had to be, who was? That had to have been a topic of considerable discussion and inquiry over the intervening two years.
[49] The MacDonald family were (it seems) friends of Mr Gunson, through camping at the same venue over a period, and also with Mr and Mrs Karam, and Mr and Mrs Mullins (who both gave evidence for the defence). The Mullins’ campsite was next door to that of the MacDonald family. Clearly Mr and Mrs Karam were also friendly with the Mullins and Melville families.
[50] There have been camping holidays on three January occasions since the events on New Year’s Eve 2005 and before trial. The Crown says there was reasonable opportunity available to the MacDonald and Karam families to discuss the case. Certainly some of the camping records exhibits attached to the affidavit of Mr Gunson support the view that the MacDonald, Karam and Mullins families were camping there in January 2008, and apparently on closely related sites. The Melville family were there at least in December 2007. The Melville family site is two sites from that of the Karam’s. According to Mr Gunson, the MacDonald site was next door to the Mullins’ site and close to that of the Karam’s and Melville’s. The Crown says it is inconceivable that extensive discussions did not take place leading up to depositions and trial.
[51] Both Mr and Mrs Mullins gave evidence at trial for the defence, three days after Mr Gunson provided the hearsay statement of Danny Mullins to Detective Reihana. So the Karam advice was given to the campground manager in the week before evidence was given for the defence. The defence case concerning the wounding of Ben Fata was that it was someone other than the appellant. The Crown says that it is difficult to accept that the Karam evidence, such as it was, was not reasonably available to and discussed with, the MacDonald family at some stage, over two years.
[52] The Crown says the police interviewed many people, and left contact details with Mr Gunson if other witnesses should come forward with information, and the appellant was told by the interviewing detective that he would see all witnesses that were referred to him.

Evidence of Mr Karam

[53] Mr Karam’s evidence could not be described as fresh nor of relevance to the defence. He describes going with others, from the Melville site to the toilet area where he heard glass breaking, probably from the window or door of the nearby office. He saw a sliding door to be broken. He returned to the Melville site at about the time the police arrived. A number of people including Mark Melville were present. Thereafter as a result of being told of a “another fight over at the MacDonald’s site” he went there with some men, including Mark Melville. He says he was not present and did not see Mark Melville with blood on his top which was observed only by Mrs Karam.
[54] His evidence is not fresh, nor is it cogent. If admitted it would not have had any positive impact at all upon the defence case at trial.

Evidence of Mrs Tania Karam

[55] We doubt that would qualify as “fresh” evidence. What she, and a Ms Raewyn Titford (a friend of hers staying in the camp with the Karam family) say they saw was (according to Mrs Karam) mentioned by Mrs Titford the following day to Mr Melville. The MacDonald, Mullins, Karam and Melville sites (being Nos 144, 143, 136 and 138) were closeby. So at least three persons, being friends or acquaintances of the appellant’s family, camping in closeby proximity, spoke about this matter at the time. On the following day, another camper who was on the Camp Board visited the Melville site and spoke to Mr Melville about the night before.
[56] Mrs Karam obviously told Mrs Mullins at some stage; it is not said when that was. Mrs Mullins’ campsite was next door to the MacDonald campsite and she gave evidence at trial of events that occurred at that campsite. She said that at some stage during the evening she was doing dishes at the camp kitchen, observed the appellant and his sister, heard smashing of glass from near the office (no doubt of the sliding glass door), and later saw the appellant’s cut hand being bandaged. Of course, she could not have given in evidence anything that was later said to her by Mrs Karam. Yet if the affidavit of Mr Gunson is correct, she must have told her husband, Danny Mullins, as it was Danny Mullins who told him what Mrs Karam had seen.
[57] Mr Danny Mullins gave evidence for the defence at trial in which he said he saw the accused with a cut hand and blood on his face being attended to.
[58] From this analysis, at the very least, Mr and Mrs Karam knew of the proposed evidence, as did Mr and Mrs Mullins and Ms Raewyn Titford, as well as “a lot of other people”. The named people were friends of the appellant’s family.
[59] There is some force in the Crown submission that there was reasonable opportunity available to the appellant’s family to discuss the case and events of that night. The events were dramatic and must have been discussed between and amongst Mr and Mrs Mullins, Mr and Mrs Karam, and the appellant’s family, all of whom are well known to each other, after the appellant was charged.
[60] Nevertheless, even if the evidence does not strictly qualify as being “sufficiently fresh”, if a miscarriage of justice is likely to have occurred and admissible and credible evidence which the jury had no opportunity to consider raises a reasonable doubt whether he should have been convicted had that evidence been before the jury, then it can, and should, be admitted. It is then considered in relation to the merits of the appeal. So we turn to consider whether the evidence is credible and cogent.

Is the evidence credible and cogent?

[61] To a large extent, the cogency of evidence may be linked its potential impact on the trial. Obviously if evidence is not credible, that is not worthy of belief, it ought not be admitted and would not have any impact upon a trial. Evidence however can be credible, that is worthy of belief, but still not cogent in the sense of being relevant to an essential fact in issue, and having force in pointing to a particular fact or inference.
[62] There is nothing to suggest that the proposed evidence of Mrs Karam as to her observations is not credible. The real issue is whether it is cogent in the sense that it has any relevant bearing on essential facts in this case, that is to the guilt, or reasonable doubt of guilt, of the appellant. That can only be assessed by looking at Mrs Karam’s evidence, and how, if given it might fit or impinge upon other evidence given at trial. It has to be looked at together with all the trial evidence.
[63] The proposed evidence and observations of Mrs Karam do not place Mark Melville at the playground when the neck injury was sustained. Nor does any other evidence. When the timeframe is analysed her proposed evidence is consistent only with Mark Melville coming into contact with some person who was bleeding at, or near the office area, after Ben Fata had been wounded.
[64] The sequence of events as they relate to Mrs Karam’s observation and Mr Karam’s affidavit is as follows.
[65] It is clear that Ben Fata received the neck wound at or near the playground. He made his way across the campground. A map of the camp was produced. He was seen by Ms Godfrey (and others) near the office area in a disorientated state from his neck being cut, and a large group of people were milling around, according to Ms Godfrey. By then he was bleeding profusely. Her evidence was that the appellant was yelling abuse at Ben Fata and she describes being punched and pushed through the glass window (by the accused Mr Reiri), sustaining lacerations to her left arm. Ben Fata received a further deep laceration to his arm. Both were bleeding. Other witnesses generally confirmed her evidence and she described that an “older man and younger teenager were trying to fight Ben” and were told to go away as he was badly hurt. Ben Fata’s evidence was that he was chased and punched by others and he recognised one as the appellant’s father, and that “Kane and his mates, roughly eight” were punching him. He said there was “blood everywhere”.
[66] Mark Melville had to be somewhere in the vicinity given that the direction from which he is said to have run was precisely along the roadway from the office area across some common ground and not from the direction of the playground area where Mark and Ben Fata were said to be struck with glass. That was on the opposite side of the camp. And this was at a time when Mr Karam and others were at the toilet/office area and the glass door had been broken.
[67] There was general evidence from some witnesses that there was “blood everywhere”, with groups of teenagers pursuing others, and chaos was rife. A large group of teenagers were milling around Ben Fata.
[68] The evidence of Ms Greer Flynn was that the appellant had cuts to his hands and was shouting words in the direction of Ben Fata to the effect that “I am going to kill him” and that he was being held back by others. There was other evidence which tended to confirm observations, generally to the effect that Ben Fata was seen to be cut at the office with people milling and crowding around and angry talk and abuse occurring and the appellant a party to that. That chronology and evidence points directly to the conclusion that the blood on Mark Melville’s shirt was obtained in one of the altercations or events, or if contact with a bleeding person, at the toilet or office area. By that time, apart from Ben Fata and Ms Godfrey bleeding, so too, was the appellant. It does not support the speculation that, considerably earlier at the playground, blood got onto Mr Melville because he was the assailant.
[69] Counsel for the appellant submitted that, the proposed evidence if given, would have altered the course of the trial, and convictions may not have been entered. She argued the evidence was inconsistent with the Crown case and consistent with that of the defence and “raises a likelihood of a third person involved in the altercation”. She says it is compelling evidence which, along with the hearsay evidence of Mr Gunson as to what he heard might have been a “planned attack”, provide support for the defence’s theory on issues of self-defence and identity. She said that Mark Melville could not be excluded from responsibility for causing the neck injury to Ben Fata.
[70] The question is whether the evidence said to support that proposition is so tenuous and weak as to fall into the category of not being cogent, or of sufficient force, so as to have some probative value as to who struck Ben Fata in the neck with the glass?
[71] The telling and perhaps pivotal evidence which may have persuaded the jury that Ben Fata’s injury to the neck arose through being hit there by the appellant whilst holding the broken remnants of the glass (accepting his statement to the police that it broke in his hand), was the DNA of Ben Fata on the broken end of the glass handle.
[72] Whilst counsel for the appellant submitted the DNA evidence may have arisen through Ben Fata standing on the broken glass at the playground. However, the evidence before the jury was that he, prior to being pushed through the sliding glass door, had no lacerations to his feet.
[73] Counsel for the appellant took the Court through a detailed and careful analysis of many aspects of the evidence, which she says supported the conclusion that doubt must have existed. They were all matters which were before, and firmly put to, the jury. That is apparent from the summing up of Judge Duncan Harvey when directing the jury as to circumstances that the Crown said linked the appellant with the injury caused to Ben Fata’s neck. The Judge said the jury were to consider circumstances that favoured the defence and:

On the other hand the defence say well hang on there are other people in this area. The injury to Ben Fata could have been caused by somebody standing behind him; and it could have caused when a number of people swarmed around him and could have been caused with an unrecovered weapon.

and referred to the defence proposition that:

[T]he genesis of this incident was Kane MacDonald being attacked in that playground at a time when he thought it was safe. ... . He was not involved in the incident earlier in the week ... .

... [O]n 31 December, fuelled by anger, fuelled by alcohol, Ben decided to go and find his brother because he wanted to get even with Kane. ... [I]t is simply a nonsense for the Crown to suggest that there was not some plan here.

[74] The Judge emphasised the defence’s case that the appellant was not an aggressor and forced to protect himself and his sister.
[75] As to the identity of the assailant on Marc Fata, it was never contended that the altercation he had was with anyone other than the appellant. Apart from the evidence of Marc Fata that he was smashed with a “bottle” into his mouth and his teeth knocked out by the appellant, five witnesses gave direct evidence that they saw Marc Fata being hit in the head with a glass object. Three of these witnesses identified the appellant. Ms Flynn had not been drinking and her evidence was that neither Marc Fata nor Ben Fata had done anything prior to the attack.
[76] The appellant himself in his interview with the police asserting self-defence, said that he got “about three hits” but did not “get Ben”. He said that there was blood everywhere as he himself was hit in the face and that he received a cut hand. It was open to the jury to conclude the cut hand was as a result of a glass item breaking when held. He said that there were people milling around and he later saw Ben Fata outside the office. Whilst maintaining that he acted in self-defence in relation to striking Marc Fata, the following exchange eventually occurred in his interview:

1. Mark took a right-handed jab at me [demonstrating]. I went around and his arm interfered with it. It connected [but] it didn’t break. Um I brought it back around and the second time it broke. Ah as soon as it broke, it shattered, it went everywhere.

Q Broke? What on his where, where did you hit him?

A Well it was around, yeah, it hit him.

Q Yeah.

A I think that, well apparently it must have been his mouth. Um.

Q But you hit him twice, with the glass? Yeah?

A Yes.

....

17. And someone else that’s been spoken to has seen the glass actually smash on his head. So you’re right. Yep so that’s what happened eh?
1. Yeah.

[77] Thereafter the appellant denied striking Ben Fata although acknowledging that he was present and standing to the right with Marc in front. In his interview he said:

Like I said, I didn’t touch Ben. Mark was in my face. Mark was right there. Mark was swinging the arms at me. I was going for Mark. Mark was the one doing the damage to me. Ben was out of my concern. I didn’t even go for Ben.

[78] There was no evidence from any source, Crown or defence, to suggest that Marc Fata was struck by any person other than the appellant, the issue being self-defence. The suggestion or argument by Ms Young that the evidence of Mrs Karam could have raised a doubt as to the identity of Marc Fata’s assailant is untenable.
[79] The case was all about inflicting wounds or attacks upon Marc and Ben Fata through the use of a glass. It was fundamental to the Crown case that there was “glassing” assaults by the appellant. Eyewitnesses, and to a large extent to the admissions of the appellant, supported the Crown case as it related to the assault on Marc Fata. Once the defence of self-defence was rejected the evidence against the appellant on that count was strong.
[80] Ben Fata was close by his brother Marc, and within moments he said was hit to the head and sustained a laceration to his right neck. The evidence was it could only have come from a glass or knife. Ben’s DNA was located on the sharp broken jagged end of the glass handle. Evidence of a teenager, with blood on his shirt running from direction of the office area, on the other side of the camp some time later after there had been further altercations with a number of bleeding people (at least three present), and teenagers swarming around, is not, of such cogency or nature that might reasonably have led the jury to a different verdict. It is tenuous and weak. This is not such a case where there is cumulative evidence which might compel that conclusion, such as in Bain. Nor is it a case where evidence that falls into the category of a new eyewitness saying that a different assailant was seen to be involved in the wounding, or that someone else has confessed or acknowledged to be responsible, or that it contradicts an important feature of the Crown case: e.g. R v Cassidy [1995] 3 NZLR 184 (CA).
[81] We are very mindful of the fact that it is not for this Court to determine guilt or innocence and if there are properly matters which should, in order to ensure a miscarriage of justice does not occur, have been considered by a jury, then a retrial must follow. But that is not the case here.
[82] We do not consider that the evidence that a teenager was seen running from the general direction of the office to his caravan after Ben Fata and Ms Godfrey had been pushed through the camp window, and put a bloodied shirt in water, if given at trial could reasonably have led the jury to acquit.
[83] Apart from having considerable doubt as to the “freshness” of the Karam evidence, in any event its cogency or force, as it related to the issues at trial, is tenuous and so weak as to not lead to any concern over a miscarriage of justice.

The trial Judge interventions

[84] Counsel submitted that the number and nature of interventions of Judge Harvey may have led the jury in a certain direction, that is, to view the defence counsel and defence case adversely.
[85] The inquiry has to be whether the Judge’s interventions or questions created a real danger that the trial was unfair: R v Loumoli [1995] 2 NZLR 656 (CA). Whilst counsel says that the jury’s “perception of counsel’s credibility” may have been affected by judicial intervention, we have carefully examined the transcript. We are satisfied that there was nothing inappropriate, or untoward, either in the nature or number of interventions of the trial Judge. The Judge was entitled to remind counsel that certain alleged inconsistent statements had not been put to witnesses, and to ensure counsel remained mindful of the rules of evidence. Interventions may be necessary to ensure that counsel leads evidence that is admissible and relevant, and conducts cross-examination in accordance with established practice. That is what generally occurred here. We do not think that the Judge’s interventions or questioning were excessive. Nor were they likely to create any danger that the trial was unfair for that reason.

The summing up

[86] Counsel for the appellant contended that the Judge made a significant error in summing up by telling the jury that the appellant held a “beer glass in his hand” when it was “a Jim Beam glass”. The appellant says that the significance of this was that at depositions Ben Fata said he smelt beer on his clothes so he knew someone had been attacking him holding a beer bottle. However, at trial he said he smelt Jim Beam on his clothes after the event. Ben Fata was cross-examined over that discrepancy and maintained he smelt Jim Beam.
[87] The Crown submitted that a “beer glass” can be used in a generic sense. Indeed the Judge in his exchange with counsel said it was clearly a beer glass even though it had “Jim Beam” label on it. The evidence of what the glass itself looked like was clear, from the items collected and photograph of it. It was, as one witness said, a glass “handle”. There is no substance to this point contended by the appellant.
[88] Counsel further submitted that the summing up did not fairly put the defence case that was presented to meet the circumstantial case relating to the wounding of Ben Fata. We reject that argument.
[89] We have already referred (in [73] – [74]) to some passages in the summing up. The Judge referred to submissions by counsel for the appellant over 11 paragraphs. He refers to the self-defence contention as it related to Marc Fata, there being no DNA of his being found on the glass. He referred to the absence of eyewitnesses saying that the appellant hit Ben Fata; submissions as relating to the DNA of Ben Fata found on the glass remnant; the reference to his clothes being covered in beer being inconsistent with earlier statements; and generally summarised the defence case as outlined in the closing addresses of counsel. He did not have to repeat everything that counsel had said in her address.
[90] The requirement in summing up to deal with the defence case was considered in R v Anderson 1951 NZLR 615 (CA), in particular at 628: There this Court said:

In the course of performing his duty, the Judge has to deal with the evidence upon which the Crown relies, and to indicate its weakness and, at times, its strength. While doing this, he is not bound to include in summing up every criticism adduced on behalf of the accused, even though his counsel may think that criticism of very great weight. If it is of great weight, there seems little doubt that some members of the jury at least will have formed that opinion, and will express it in the deliberations of the jury.

[91] In R v Raymond [1956] NZLR 527 at 531 Gresson J said:

To require the Judge to make reference to every argument might have the effect of compelling him to discuss also the answers thereto; and, so long as every question or fact is left open for decision by the jury, the Judge may legitimately elect to be silent with regard to the matters of defence rather than to reveal his opinion that they are groundless, or to appear to argue the case in favour of the prosecution.

[92] The summing up was not unbalanced and properly dealt with and summarised the defence’s case as it related to the wounding of Ben Fata. This ground is not sustained.

Unfair or unreasonable process

[93] This argument of counsel is linked to the claim that the trial was unfair because the prosecution during trial did not tell defence counsel of what Mr Gunson had said. She argued that the appellant’s “fair trial rights were breached”. Linked to this is her assertion that the trial and outcome was unfair because the prosecution failed to present all available evidence to the jury, which was fatal to the trial. She said it denied the appellant his right to a fair trial as affirmed by s 25(a) of the New Zealand Bill of Rights Act 1990.
[94] The essence of the submission is that the police ignored other evidence available at the time; the jury was misled; and the fresh evidence counsel says, “overwhelmingly supports the appellant’s defence”. Essentially counsel says that the prosecution failed to interview possible witnesses, failed to disclose the Karam information during trial, and failed to disclose that there was a “plan” on the part of the victims to instigate an attack. She argued that this was a departure from good practice to such an extent, and so persistent and prejudicial, as to be irredeemable so that the convictions had be quashed as unsafe.
[95] This submission cannot be sustained. The evidence is that the police interviewed every witness who either came forward or who they could locate. They left contact details with the camp manager. A detective was a patron at the camp. The appellant and Mr Gunson, were told that any possible witnesses, or persons who could assist, could contact the police. There was a period of at least two years during which this could have been done. Naturally, active police conduct that prejudices an accused, such as a deliberate decision to limit police inquiries, so as to avoid discovering exculpatory material, will be sufficient to argue that a miscarriage of justice arises: Penney v R [1998] HCA 51; (1998) 155 ALR 605 (HCA). But that is far from the present case. The officer had third-hand hearsay conveyed during trial by a friend of the appellant, who apparently received it from another friend of the appellant’s family who was later to give evidence for the defence.
[96] As we have said the advice from Mr Gunson, regarding the hearsay comments, made during the trial to Detective Reihana, should have been conveyed to the appellant’s counsel, but we have concluded that did not without more render the trial unfair. The person who conveyed the hearsay advice to Mr Gunson was a defence witness. The real issue was whether the evidence of Mrs Karam (and/or Mr Karam) if given, might reasonably have led the jury to reach a different verdict and, because it was not given, a miscarriage of justice may have arisen. That issue has been dealt with on its merits in this appeal.
[97] No miscarriage of justice arises in respect of either guilty verdict. For the reasons given, the appeal against convictions is dismissed.

Appeal against sentence

[98] Counsel did not pursue this, accepting that if the convictions were not quashed, the sentence was not manifestly excessive. The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington