The Queen v Carnachan [2009] NZCA 196 (21 May 2009)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Carnachan [2009] NZCA 196 (21 May 2009)

Last Updated: 27 May 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA606/2008

[2009] NZCA 196

THE QUEEN

v

LOUIS CARNACHAN

Hearing: 4 May 2009

Court: Glazebrook, Potter and Venning JJ

Counsel: M W Ryan for Appellant
M A Woolford for Crown

Judgment: 21 May 2009 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Table of Contents

Para No
Introduction [1]
Background [3]
Should the jury have entertained a reasonable doubt? [9]

The parties’ submissions [9]

Cause of injuries [11]

Way the victim fell [15]

State of consciousness [19]

Overall assessment [24]

Should evidence of the co-offenders’ convictions have been
heard by the jury? [29]

Should the Crown have called a witness known to be hostile? [33]

The parties’ submissions [33]

Assessment [36]

Result [40]

Introduction

[1] Mr Carnachan was found guilty, after a trial before Judge Barbara Morris and a jury, on one count of causing grievous bodily harm to Mr Tagoai (under s 188(1) of the Crimes Act 1961).
[2] Mr Carnachan appeals his conviction on three grounds:

(a) The jury ought to have entertained a reasonable doubt as to his guilt;

(b) The Judge erred in law in preventing the defence from adducing evidence of the co-offenders’ convictions;
(c) The Judge erred in law in allowing the Crown to call a witness whom the Crown knew was hostile.

Background

[3] On 19 June 2005, the victim, Mr Tagoai, and three of his friends went to Grey Lynn to attend a party. When they arrived, they found a large group of youths congregated both inside and outside the venue, including Mr Carnachan, Mr Fameitau and Mr Fine. As the victim and his friends walked down the entranceway towards the venue from the street, they were approached by Mr Fine. Mr Fine asked the victim if he was from De La Salle College and the victim replied that he was. Mr Fine then challenged the victim to a fight. They made their way back towards the street, after the victim clarified that it would be a “one on one” fight. Once on the street, a large group of youths surrounded them and the victim and Mr Fine exchanged punches in a “boxing” stance.
[4] During the course of this fight Mr Carnachan, who was watching from a nearby premise, armed himself with a metre long piece of heavy timber and approached the victim from behind. Mr Carnachan lifted this piece of timber above his head and struck the victim with it, connecting on the back of his head. The action caused the victim to fall down onto the road. A general fight involving a number of the onlookers appears to have ensued.
[5] During this meleé, and while the victim was lying on the road, Mr Fine bent down, took hold of the victim’s head with one hand and, using his other hand, punched the victim numerous times on his face with a closed fist before letting the victim’s head drop to the ground. Mr Fine then stood up and kicked the victim, who was still unconscious, several times in the head. Mr Fine was wearing a heavy type of dress boot at the time and used his right foot to kick the victim in a manner that one would use to kick a soccer ball. Mr Fine then started kicking and stomping on the body of the victim as he lay on the road. He did this at least six times.
[6] When Mr Fine had finished kicking the victim, Mr Fameitau approached, holding the same piece of timber that Mr Carnachan had previously used. Mr Fameitau lifted the piece of timber above his head and struck the victim, as he lay unconscious, on and about his body on at least two occasions. Mr Fameitau, Mr Fine and Mr Carnachan then turned their attention towards the victim’s friends and chased them from the scene. An ambulance and the police were called to the scene by onlookers.
[7] As a result of this assault, the victim was admitted to Auckland Hospital where he remained in critical care and was put into a drug induced coma. At this point the victim was very close to death. The victim suffered a fracture to the back of his skull and the experts agreed that, as a result, he suffered what is called countercoup bruising to the front of the brain. A countercoup injury occurs where there has been a blow to one side of the skull, which leads to the brain being injured on the other side. This injury is caused by the brain moving within the skull and hitting the bony surface on the other side of the skull. The victim also suffered other bruising and bleeding to the brain and orbital fractures which were consistent with kicks or punches to the head. In addition, there was extensive bruising to the legs and chest area.
[8] The victim underwent surgery on several occasions during the next ten days to alleviate the pressure on his brain. He remained in hospital in a coma for three weeks before he regained consciousness. He spent a total of six weeks in hospital before he was released. The victim was readmitted to hospital with a serious infection a month after his release and developed seizures which he is now on medication for. He has also lost his sense of smell as a result of his injuries and still suffers emotionally in that he often feels depressed and irritable. His forehead has been compressed and his skull is misshapen at the top of his head. Although he is able to walk and talk and present normally, it is unclear whether he will make a full recovery both mentally and emotionally.

Should the jury have entertained a reasonable doubt?

The parties’ submissions

[9] Mr Ryan, on behalf of Mr Carnachan, submits that the jury should have had a reasonable doubt as to Mr Carnachan’s guilt because:

(a) The evidence of both expert witnesses confirmed that the fracture to the victim’s skull was more likely than not caused by a fall to the ground;

(b) Both expert witnesses confirmed that the presence of the countercoup injury was more consistent with a fall to the ground as opposed to a blow to the back of the head with a piece of wood;
(c) For the fracture to the victim’s head to have occurred as a result of a fall to the ground, the victim would have needed to fall backwards. The preponderance of the evidence, including that of the victim himself, was that the victim fell forward;
(d) The fact that the victim was not unconscious directly after the fall suggests that the countercoup injury was caused by the actions of the co-offenders and/or others at a later stage.
[10] Mr Woolford, on behalf of the Crown, submits that:

• (a) It was open to the jury to conclude that the skull fracture was caused by Mr Carnachan, either directly by the force of the blow itself or indirectly as a result of the fall;
• (b) The jury was entitled to accept the evidence from two of the witnesses that the victim fell backwards. In any event, the victim could have fallen forwards but twisted to land on the back of his head;
• (c) The expert evidence was that the countercoup injury was highly unlikely to have been caused by the subsequent kicks and punches and there was no evidence of any second fall;
• (d) The evidence pointed towards the victim becoming unconscious just after the blow to the back of his head.

Cause of injuries

[11] The Crown medical expert, Dr Streat, confirmed that Mr Carnachan’s blow to the victim’s head with a piece of wood was a possible mechanism by which the fracture to the back of the victim’s head and the resulting countercoup bruising could have occurred. Dr Streat was unable to comment as to whether the blow to the head with the piece of timber or the fall to the ground was more likely to have caused the skull fracture but confirmed that either mechanism was “much more likely than being kicked or punched”.
[12] When asked to comment on whether a punch or kick could have generated sufficient force to fracture the back of the victim’s skull in this manner, Dr Streat commented:

I think a punch is exceedingly unlikely to have caused a fracture like this. I think that a kick would have had to have been a very substantial kick to have done this and it would [have] had to have dispersed its force across a relatively wide area rather than a narrow focus. It may well be that those injuries might produce substantial injury within the skull without producing injury to the skull itself.

[13] Dr Streat was also asked to comment whether a person raising the victim’s head from the ground and letting it drop could have caused the skull fracture. He said that it was fairly unlikely as he did not think the force involved would be enough, although he conceded it could be at one end of the realms of possibility.
[14] Professor Ferris was the defence expert. He said that, while he could not discount the possibility that the injuries at the back of the victim’s skull (and the countercoup frontal lobe bruising) were due to the blow with the piece of wood, the injuries were more consistent with a fall. He said that one could probably discount punches or kicks as causes of the skull fracture.

Way the victim fell

[15] The evidence was divided on whether the victim fell backwards or forward. Two witnesses said that the victim fell backwards, although both agreed that they could be mistaken.
[16] One witness had originally said that the victim fell forward onto his knees but, in his evidence in Court, said that was incorrect as he had not seen the victim fall. Another said that the victim fell forward and was lying on the ground “on his front”. Two witnesses said that the victim fell to the side but one of them said that he fell face first and then ended up on his back, although the witness was not sure how.
[17] The victim himself said that he fell forward with his hands in front of him and that he landed on his hands. However, he said that, when he was on the ground, he was staring at the boys opposite him, which means that he did not land face down. He also remembered at some stage lying on his back.
[18] We accept the Crown submission that the way in which the victim fell may be less important than the manner in which he landed on the ground. We accept that the victim may initially have fallen forward or sideways but, in doing so, rotated so as to land on the back of his head. Indeed, the jury would have been entitled to consider this scenario inherently more likely than one which saw the victim fall forwards and then, while on the ground, turn over onto his back. Most of the witnesses appear to have agreed that the victim was lying face up when he was attacked on the ground by Mr Fine and the others. A number of witnesses also confirmed that, immediately after being struck on the back of the head and falling to the ground, the victim did not move any more.

State of consciousness

[19] Both parties accept that the timing of the loss of consciousness probably indicates when the skull fracture and associated countercoup bruising was likely to have occurred. Both parties also rely on the time that the victim became unconscious to support their position. The Crown submits that the victim lost consciousness straight after the blow to the back of the head. Mr Ryan submits that loss of consciousness occurred later.
[20] The evidence on the victim’s unconsciousness was somewhat equivocal. As noted above, a number of witnesses said that the victim did not move again once he had fallen. The victim himself said that he had tried to get up after he had fallen but that he could not. He said, however, that he did not close his eyes until the ambulance came. He described seeing his friend hit Mr Carnachan after he (the victim) had fallen to the ground and remembered being punched and kicked (including to the head) in an attack that went on for “a minute”. At some stage during this attack, he lost memory of what was happening. He did, however, remember the ambulance coming and his friend Jean arguing with one of the ambulance staff because she wanted to accompany him to hospital.
[21] In Dr Streat’s opinion, the victim’s loss of consciousness occurred either as a result of a second injury or an internal mechanism occurring within the brain after the skull fracture (by which we assume he meant the countercoup injury). He also confirmed that the second injury could have been the victim falling onto the ground or the assault shortly after.
[22] Professor Ferris said that he would not have expected the level of cognition that the victim appeared to have just after he had fallen from a person with the type of skull fracture the victim had. He considered that, once the skull had been fractured and there had been countercoup bruising to the front of the brain, the victim would have been unconscious. He also said that the time at which the victim’s level of unconsciousness was the deepest, would indicate the time at which most severe head injury occurred. He, however, noted that he was not a neurologist or neuro-psychologist.
[23] The ambulance officers gave evidence that unconscious people can hear what is being said. This evidence was used to support a Crown submission that the fact that the victim heard what was being said after his fall to the ground does not mean that he was conscious.

Overall assessment

[24] It is not disputed that Mr Carnachan struck the victim on the back of the head with the piece of timber. It is not disputed that this caused the victim to fall. Neither is it disputed that the victim suffered grievous bodily harm as a result of the fracture to the back of his skull, with the associated countercoup bruising to the frontal lobe.
[25] The jury was entitled to accept Dr Streat’s evidence that the subsequent punches and kicks were exceedingly unlikely to have caused the skull fracture and countercoup bruising. Dr Streat said that the most likely cause of the fracture and consequent bruising was a fall but that the injuries could also have been caused by the blow administered by Mr Carnachan. The jury was also entitled to accept Dr Streat’s evidence that either the blow or the subsequent fall (both caused by Mr Carnachan) were more likely to have caused the fracture and countercoup bruising than the subsequent kicks and punches. Indeed, that was consistent with Professor Ferris’ evidence: see at [14] above.
[26] Further, the jury was entitled to accept the evidence of those witnesses who said that the victim had fallen backwards. Even if the jury was unsure on this point and considered that the victim could have fallen forward, it was entitled to infer that he had landed on the back of his head. There was, in any event, no evidence of any subsequent falls. It is accepted by the Crown that ramming the victim’s head into the ground, if sufficient force was used, could bring about countercoup bruising. We agree with the Crown, however, that there was no evidence of any such action. The evidence regarding Mr Fine’s actions was limited to Mr Fine dropping the victim’s raised head to the ground – see at [5].
[27] The preponderance of evidence was that the victim lost consciousness almost immediately after the blow and his consequent fall. This again suggests that either the blow to the back of the head or the fall had caused the fracture to the back of the victim’s skull and the resulting countercoup injury. Even on the victim’s evidence, his loss of consciousness occurred only a minute after the fall.
[28] All of the above factors lead to the conclusion that it was open to the jury to convict Mr Carnachan. Further, all of the matters set out above, and the parties’ respective positions on them, were very clearly set out by the Judge in her summing up. The Judge also stressed the onus and burden of proof on a number of occasions. The jury can have been under no misapprehension as to its task.

Should evidence of the co-offenders’ convictions have been heard by the jury?

[29] Mr Fine pleaded guilty to charges arising out of his involvement in the attack on Mr Tagoai. Mr Fameitau and Mr Carnachan were to have been tried together but in the event this did not occur as Mr Carnachan had absconded. Mr Fameitau was thus tried separately and found guilty. Mr Ryan submits that the fact of the convictions should have been before the jury.
[30] It is accepted by Mr Carnachan that the jury heard all of the relevant evidence with regard to the subsequent assaults on the victim by his co-offenders and that these were presented as undisputed facts. In these circumstances the fact of their convictions adds nothing to the narrative and would have provided no assistance to the jury in determining the question they had to decide with regard to Mr Carnachan, which was basically a question of causation. Therefore, while some judges may have allowed evidence of the convictions to be led, Judge Morris cannot be criticised for not doing so.
[31] We note in any event that the Judge did remark, in the course of the evidence, that the jury had heard of other people being involved in the attack and “that their matters have already been dealt with, so you’ve heard about a previous trial.” The Judge also warned the jury in her summing up not to become distracted by thoughts about what happened at any previous trials. She reminded the jury that its task was to assess the case against Mr Carnachan based on the evidence that it had heard.
[32] This ground of appeal must fail.

Should the Crown have called a witness known to be hostile?

The parties’ submissions

[33] Mr Ryan submits that, in accordance with the principles expressed in R v O’Brien [2001] 2 NZLR 145, the Crown should not have called Mr Lubbers as a witness because he was known to be hostile. Mr Ryan submits that the O’Brien rule is preserved by s 12 of the Evidence Act 2006, as it is not expressly abrogated by the Act.
[34] The Crown first submits that there is a distinction between someone who is known to be unwilling to come to Court and someone who is known to be hostile. The Crown was aware that Mr Lubbers did not want to come to Court but submits that this does not mean that the Crown knew that he would give evidence in a manner which would result in the Crown applying to have him declared hostile.
[35] The Crown’s next submission is that, even had the Crown known Mr Lubbers would be hostile, there was nothing to stop him being called as a witness. In the Crown’s submission the Evidence Act has removed the rationale for the O’Brien rule, which was that it would be improper for the Crown to call a known hostile witness for the purpose of getting otherwise inadmissible hearsay before the Court.

Assessment

[36] We accept the Crown submissions on this point. As the Crown submits, while it was clear that Mr Lubbers was reluctant to come to Court and give evidence, this does not necessarily mean that the Crown knew that he would not be prepared to tell the truth in the witness box. More importantly, however, contrary to the position under the common law, a prior statement by a witness in a proceeding is now no longer considered hearsay.
[37] A hearsay statement is defined in s 4 of the Evidence Act as a statement made by a person other than a witness which is offered in evidence to prove the truth of its contents. Prior inconsistent statements of hostile witnesses are admissible pursuant to s 37(4)(a). Once the statutory test has been met, a prior inconsistent statement is admissible for the truth of its contents, rather than (as under the common law) simply as a tool to impugn the credibility of a witness. The rationale for the rule in O’Brien was to prevent a party knowingly putting itself in a position to put inadmissible hearsay statements before the Court. That rationale no longer exists.
[38] In R v Vagaia [2008] 2 NZLR 516 (HC) Asher J concluded that there is now no general rule restricting the calling of witnesses known to be hostile. Asher J’s decision was endorsed by this Court in R v Morgan [2008] NZCA 537 at [31]. There is no reason for us not to follow this very recent decision of this Court.
[39] Mr Ryan submits that those cases did not refer to s 12 of the Evidence Act. Section 12 only requires that regard must be had to the common law where the Act does not deal with the admission of any particular evidence or does so only partially. This applies only to the extent that the common law is consistent with ss 6, 7 and 8 of the Act. Section 12 thus does not automatically preserve the common law and certainly does not in this case. As the rationale for the rule in O’Brien has been abrogated by the Evidence Act, then the Act is inconsistent with the rule.

Result

[40] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington