The Queen v Duncan [2008] NZCA 365 (15 September 2008)

Last Updated: 29 September 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA283/07CA384/08

[2008] NZCA 365

THE QUEEN

v

LEAH MIHIPEKA DUNCAN

Hearing: 26 August 2008

Court: O'Regan, Chisholm and Ronald Young JJ

Counsel: L C Ord for Appellant
T Epati for Crown

Judgment: 15 September 2008 at 11.30 am

JUDGMENT OF THE COURT

1. An extension of time for the filing of the appeal against sentence (CA384/08) is granted.

B The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] Ms Duncan appeals against conviction on one charge of wounding with intent to cause grievous bodily harm (CA283/07). The conviction relates to an incident which also involved two co-offenders, Mr Takarei and Mr Isaacs, who were found guilty of the same charge.
[2] Ms Duncan appeals her conviction on two grounds:

• (a) The Judge failed to provide adequate directions on the issue of parties; and
• (b) The Judge erred in admitting parts of a video interview and failing to give a direction as to lies.

[3] Recently, Ms Duncan filed an appeal against sentence (CA384/08). This has been treated as an application for extension of time to appeal: the notice of appeal is over a year out of time. There is no prejudice to the Crown in extending the ambit of the appeal to deal with sentence and the Crown does not object to an extension being granted. We therefore give an extension. The sentence appeal is pursued on the basis that the sentence imposed on Ms Duncan, five years imprisonment, was manifestly excessive.
[4] Ms Duncan’s trial took place before the Evidence Act 2006 came into force.

Background

[5] Following a separation from his own partner, Mr Nuku had boarded with Ms Duncan and her partner Mr Takarei, for a short period in August 2006. During this time Mr Nuku’s conduct caused Ms Duncan some concern and, by the time Mr Nuku returned to his own home, the two were no longer on good terms.
[6] On 23 August 2006, a few days after Mr Nuku had returned to his own home, Ms Duncan and the co-offenders went to Mr Nuku’s home. In the backyard of the property, Mr Isaacs and Mr Takarei attacked Mr Nuku. The Crown case was that Ms Duncan was present and participated in the attack. Her case was that she stayed in the car in which she and her co-offenders had travelled to Mr Nuku’s property. Mr Isaacs used a metal handle from a car jack and Mr Takarei used a butcher’s knife. The Crown’s case was that at some point during this attack Ms Duncan got hold of the knife and attempted to cut Mr Nuku’s throat, but instead inflicted a significant cut to Mr Nuku’s ear. The attack came to an end only when Mr Nuku managed to overpower the attackers and persuade them to withdraw.
[7] As a result of the attack Mr Nuku suffered at least two significant lacerations to his scalp. One of the cuts penetrated through to the skull. He also suffered numerous other injuries, scrapes and bruises, including partial severance of one of his ears.

The direction as to parties

[8] The Crown case at trial was that the accused were all principal offenders. They were also individually charged on the basis of being parties to each other’s offending. As already noted, Ms Duncan’s defence was that she was neither a principal nor party to the offending, as she had not been in the backyard when the offending occurred. Instead it was advanced that she was seated with her child in her car, which was parked outside the front of Mr Nuku’s property during the attack. At trial, Ms Duncan’s counsel emphasised the fact that Mr Nuku had not mentioned Ms Duncan’s involvement when he made his complaint at the police station immediately after the attack. In essence, her case was that Mr Nuku had exaggerated events and had untruthfully included Ms Duncan as a participant in the attack.
[9] Counsel for the appellant, Ms Ord, submitted that the direction as to parties given by the Judge, in both his summing up and a subsequent jury question, was incorrect. This is because it did not leave the jury with the option of finding that even if Ms Duncan had been present at Mr Nuku’s property when the offending occurred, she may not have been party to the offending.
[10] The Judge had directed the jury on the following terms:

Our law provides for what lawyers call “parties to offending” and the law says that first of all you are guilty if you actually commit the offence yourself, if you are the hands-on perpetrator. But secondly, you are also guilty if you assist or encourage someone else to do criminal harm. If you intentionally assist or encourage someone else in the doing of criminal harm then you are also guilty of the resulting crime.

A person who is guilty as a party, that is by assisting or encouraging, has to take some active part in matters. Simply being present as a by-stander is not sufficient. But once there is active participation in the offending, no matter how slight it may be, then everybody who intentionally assists or encourages is also responsible for the criminal offence being committed....

[11] The jury asked the Judge whether to be found guilty as a party, a person needs to be “personally at the scene of the crime” or if they could be guilty without actually being present.
[12] In response to this question the Judge acknowledged that he did not know which of the accused this question related to. However he expressly stated that if the jury was contemplating someone having been outside in a car, they should find that person not guilty. He also commented:

Generally speaking, mere presence at the commission of a crime is not enough to make one a party. Some degree of active involvement is required in that regard.

But there can be circumstances where someone is voluntarily and deliberately present, witnessing the commission of a crime and offering no opposition to it or dissent from it when he or she might be expected to do so. That can, in some circumstances, justify an inference on the part of a jury, that by being present that person intended to encourage and assist in the commission of the offence.

Whether those circumstances exist is always a matter for a jury on the basis of what they decide to be the proved facts. But there can be circumstances where someone goes right to the scene of a crime while it is being committed, offers no dissent, and simply by being there, intends to give further encouragement and support to the principal offends and to embolden them in what they are doing. That can make you a party. It is all a matter of fact.

[13] The underlying premise of Ms Ord’s submission is that the jury may have found that Ms Duncan was present at the time of the offending but did not actively participate in it. However, that was a possibility which neither the Crown nor the defence put forward at the trial. The Crown’s case, based on Mr Nuku’s evidence, was that Ms Duncan had actively participated and had inflicted the cut to Mr Nuku’s ear. The defence case was that Ms Duncan had stayed in the car with her child. Accordingly, there does not seem to be any factual basis for the premise on which this ground of appeal was advanced.
[14] Ms Ord argued that the jury question, if it was directed at Ms Duncan’s situation (as seems likely, though it is possible that it was related to Mr Isaac’s situation) indicated that the jury was considering the possibility that Ms Duncan was present when the offending occurred but not participating in it. The Judge’s response indicates that he thought it was possible the question related to Ms Duncan, but that the jury’s concern was whether she could be a party if she was in the car during the attack. The direction he gave on that possibility was favourable to Ms Duncan.
[15] Even if it had been open to the jury to find Ms Duncan was passively present when the attack occurred, we do not see any reason for concern about either the Judge’s direction on the law relating to parties or his answer to the jury question. The Judge was clear in his direction that, if a person was present but passive that would be insufficient to make him or her a party. Equally, in his answer to the jury he made it clear that mere presence was not enough, and that some degree of active involvement was required. The focus of Ms Ord’s criticism of the answer to the jury question was that the Judge went on to say that a person who is voluntarily and deliberately present, witnessing the commission of the crime and offering no opposition or dissent when he or she might be expected to do so, could be a basis for an inference that the person was intending to encourage and assist the commission of the offence. We do not see this direction as out of step with the position as described in this Court’s decision in R v Schriek [1997] 2 NZLR 139 at 148 – 150.
[16] Given that direction, it seems the jury must have rejected the defence position, that Ms Duncan remained in the car. If that occurred, there was no evidential basis for the jury to find she was present at the time of the offending but not participating in it.

Admission of the exchange in the video interview

[17] The police interviewed Ms Duncan on the day following the attack. The interview was videotaped. During the interview the officer left the room to give Ms Duncan a break. During this time Ms Duncan had an exchange with Mr Takarei, who was being interviewed in the next room. This was recorded on the video.
[18] During the exchange Ms Duncan suggested to Mr Takarei that he tell the police that Mr Nuku had stolen the metal handle used in the attack and that this handle was used against Mr Takarei, who got it off Mr Nuku and used it in self-defence. She also suggested he tell the police that Mr Isaacs was not present when the fight took place, but had been picked up by Ms Duncan and Mr Takarei afterwards.
[19] It appears that counsel for Mr Takarei (not Ms Duncan’s counsel) sought a ruling to the effect that this evidence was inadmissible, but the Judge declined the application. Ms Ord’s submission on appeal is not that the evidence was inadmissible, but that the Judge needed to provide a specific direction to the jury as to how the evidence should be used, and this needed to take the form of a lies direction. (As noted earlier, the trial took place before the Evidence Act came into effect so s 124 of that Act did not apply). Ms Ord said that the prosecutor had suggested in his closing address that, during this exchange with Mr Takarei, Ms Duncan was “concocting a story” about what happened. She said that this meant that the Crown invited the jury to draw an inference that, because Ms Duncan had concocted a story, she was guilty. She said that a lies direction was necessary to ensure that the jury did not adopt that approach.
[20] There were two aspects to the exchange between Ms Duncan and Mr Takarei. The first was her suggestion that Mr Takarei say that Mr Isaacs was not present. Clearly that was designed to protect Mr Isaacs, rather than Ms Duncan and Mr Takarei themselves. The second aspect was that she suggested Mr Takarei say that Mr Nuku had taken the metal handle from Ms Duncan’s property and had used this to attack Mr Takarei, and that Mr Takarei had acted in self defence. This was designed to exculpate Mr Takarei, though it did not have any significance in relation to the position of Ms Duncan herself. Mr Takarei gave evidence broadly consistent with the version of events suggested by Ms Duncan, in that he said that he had been attacked by Mr Nuku when he had gone to Mr Nuku’s property, and that Ms Duncan and their child had waited in the car while this occurred. He did not specifically refer to the weapon held by Mr Nuku as being the metal bar, but said he could not tell what the weapon was.
[21] The prosecutor did not suggest to the jury that the “concoction” was an indicator of Ms Duncan’s guilt in itself. Rather, he pointed out that in the videotaped exchange she was telling Mr Takarei what happened, when on her version of events Mr Takarei was the one that was present at the time of the attack and she was some distance away in her car. Thus, the point of the prosecutor’s submission was to undermine her claim that she was not present when the attack happened.
[22] The defence position was to downplay this exchange. In his closing address, Ms Duncan’s trial counsel exhorted the members of the jury to keep their eye on the ball, and not to look at “some yelled conversations in the police station”. He said that even if jurors thought that what Ms Duncan was saying during that exchange was a little strange, that did not prove her involvement in the attack, and indeed did not prove anything. He told the jury to focus on the real issue, which was the credibility of Mr Nuku.
[23] In his summing up, the Judge referred somewhat obliquely to the Crown prosecutor’s reference to this exchange in his closing address. The Judge simply referred to the prosecutor’s submission that “you may think that at the Police Station she was trying to put words into Mr Takarei’s mouth”. Later, when summarising the defence case he said:

Concerning her actions at the Police Station in that little break in the interview, Mr Stone [Ms Duncan’s trial counsel] says that this is a side issue, and even if you think it was a bit strange, it does not justify you in coming to any suspicious conclusions against her. In other words, Mr Stone says, draw fair and reasonable inferences from what you see but do not go speculating or guessing in a suspicious fashion.

[24] Counsel for the Crown, Ms Epati, pointed out that a lies direction may have undermined this approach to some extent, because it would have required the Judge to identify the “lie” and repeat it to the jury. She referred us to the recent decision of this Court in R v Robertson [2008] NZCA 282 in which this Court said at [10]

The fact that the standard lies direction requires the Judge to identify, and thus reiterate, the alleged lies is always a potential downside from the defence perspective: it gives the lies a certain prominence which they might not otherwise have. It is because of this that most Judges, in fairness to the accused, do not give the standard lies direction unless requested by the defence.

[25] Ms Epati also emphasised that a lies direction had not been sought by trial counsel in this case, and relied on the comment made in the decision of this Court in R v Worden CA111/99 8 July 1999 at [22] that, where no request is made for a lies direction at trial, this Court will not generally be sympathetic to a later suggestion that a miscarriage of justice occurred through its absence.
[26] Ms Epati emphasised that a tripartite direction was given in the present case, which this Court in Robertson had seen as a form of lies direction which was more favourable than a standard lies direction. While it is true that a tripartite direction was given in the present case, it was directed at the evidence of Mr Takarei, who was the only one of the three accused who gave evidence at trial. Nevertheless, it said in general terms, that where a jury hears evidence from an accused person and does not believe that evidence, the jury needed to remember that this did not automatically mean that the accused person was guilty. Rather the accused person’s evidence should be put to one said and the jury should then focus on the Crown evidence to see whether it proves the case. While we agree that this direction would, if given in reference to Ms Duncan’s evidence, have been adequate to deal with the situation, we do not think that in context it can fairly be classified as giving a direction to the jury as to the way in which it should deal with the alleged “concoction” by Ms Duncan.
[27] Having said that, there is no suggestion that the Judge was asked to give a lies direction. The tactical approach of the defence was to downplay the effect of the alleged concoction and the Judge’s repetition of defence counsel’s submission in that regard emphasised that. The Judge may have been conscious that Mr Takarei’s evidence was largely consistent with the alleged concoction, so that a lies direction in relation to Ms Duncan would have implied his rejection of Mr Takarei’s evidence at trial. While we consider that it would have been appropriate to give a direction similar to the standard lies direction if defence counsel had asked for it, we do not consider that the failure to give the direction in accordance with what appears to have been the defence strategy in relation to the alleged concoction has led to a miscarriage of justice in this case.
[28] The appeal against conviction therefore fails.

Sentence

[29] Ms Duncan was sentenced to five years imprisonment. Ms Ord submits that this is manifestly excessive in all the circumstances.
[30] When determining the appropriate sentence, Judge Adeane referred to the guidelines in R v Taueki [2005] 3 NZLR 372 (CA). In considering which band applied, he identified five aggravating factors. These were the level of premeditation, the seriousness of the injuries inflicted, the fact that there were multiple attackers, the fact that Mr Nuku was attacked in the head and the fact that the offending was akin to a home invasion. However he described the violence which was inflected as being at the lower end of the scale as far as the categories in Taueki were concerned. He classified the offending as being within band 2 of Taueki (five – ten years) and saw the offending as falling within the middle of that band, which led to his taking a starting point of seven and a half years imprisonment.
[31] The Judge then considered what mitigating factors were present. Although he indicated he was not entirely satisfied that there was some element of provocation which led to the offending, he appears to have made some allowance for that factor. He also allowed for the possibility that the description of the offending by Mr Nuku may have overstated its gravity. He therefore discounted the seven and a half years starting point in relation to Mr Tarakei and Mr Isaacs to six years, having found that there was no basis for differentiating the degree of participation they had in the offending.
[32] In relation to Ms Duncan, however, the Judge was equivocal. Early in his sentencing remarks he observed that Ms Duncan had made a deliberate attempt to cut Mr Nuku’s throat, but had instead ended up inflicting a significant cut to his ear. However when it came to setting the sentence, the Judge expressed the view that her part in the offending would never be clearly known. He said that the jury may have been contemplating her responsibility from the point of view of encouraging and assisting the others rather than being fully involved to the extent that Mr Nuku described. However, he described Ms Duncan as the catalyst of the offending.
[33] The Judge described Ms Duncan’s position as “pitiable” because of the impact of her imprisonment on her two young children. He therefore made an allowance “on compassionate grounds of an additional year” and sentenced Ms Duncan to a term of five years imprisonment. He declined the Crown’s request for the imposition of a minimum period of imprisonment.
[34] Ms Ord submitted that the starting point was too high because:

• (a) The injuries received by Mr Nuku were not so serious that they had long term consequences or required his hospitalisation;
• (b) The level of premeditation was not as high as the Judge indicated;
• (c) The Judge ought to have made a finding about the degree of involvement of Ms Duncan, and that should have led him to conclude that she had a lesser role in the offending than her co-offenders, thereby justifying a lower starting point;
• (d) The Judge ought to have made a greater deduction for mitigating factors, in view of the significant support Ms Duncan had in the community (as attested by references provided to the Court at sentencing, and her lack of previous convictions for violent offending).

[35] In our view the Judge’s decision to place the offending in band 2 of Taueki was uncontroversial, given the number of aggravating features which the Judge correctly identified. While the setting of a starting point in the middle of that band may have been at the higher end of the available range, it was certainly not outside the range. We do not see any reason to criticise the Judge’s finding as to the level of premeditation: it was clear that animosity had built up between Ms Duncan and Mr Nuku, and that the attack had been planned to the extent that a reinforcement (Mr Isaacs) had been recruited, and both the metal handle and the knife had been taken to the scene, with a view to being used by Mr Takarei and Mr Isaacs during the attack.
[36] We agree that the Judge’s consideration of Ms Duncan’s involvement was equivocal, but it is clear that the jury had been faced with a stark contrast between the prosecution and defence view of the offending, and must have accepted the prosecution view. If that is correct, then they would have concluded that Ms Duncan took an active role and inflicted injuries on Mr Nuku with a knife. In those circumstances we can see no basis for setting a lower starting point for her than her co-offenders, particularly as she was, to use the Judge’s words, the catalyst for the offending. Indeed, the fact that the Judge set the same starting point for all offenders indicates he also took that approach. In the end the only difference between the end sentences for Mr Takarei and Mr Isaacs on the one hand and Ms Duncan on the other appears to be the “compassionate” deduction of one year.
[37] We can see no basis for interfering with the Judge’s assessment of mitigating factors. Indeed, the Judge took a merciful approach in allowing an extra discount because of the impact on the children of Ms Duncan. A discount of one third from the starting point was generous in circumstances where no discount was available for a guilty plea or signs of remorse.
[38] We see no proper basis for interfering with the sentence imposed by the Judge and therefore dismiss the sentence appeal.

Result

[39] The appeals against conviction and sentence are dismissed.

Solicitors:
Ord Lillico, Wellington for Appellant
Crown Law Office, Wellington