The Queen v Roberts [2009] NZCA 275 (29 June 2009)

Last Updated: 8 July 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA26/2009

[2009] NZCA 275

THE QUEEN

v

PHILOMENA TETAIURU MILLISA ROBERTS

Hearing: 8 June 2009

Court: Arnold, Priestley and Winkelmann JJ

Counsel: RAB Barnsdale for Appellant
M D Downs for Crown

Judgment: 29 June 2009 at 11.30 am

JUDGMENT OF THE COURT

A An extension of time to appeal is granted.

B The appeal is dismissed.

_________________________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

Introduction

[1] At the conclusion of a District Court jury trial in March 2008 presided over by Judge Spear, the appellant was convicted of two of the nine counts she faced. All counts arose out of drunken altercations at a Hamilton party in April 2007.
[2] The appeal is well out of time. Its genesis was an appeal against sentence not pursued which metamorphosed into an appeal against conviction. The application for an extension of time to appeal is opposed by the Crown.
[3] The two convictions (which led to community-based sentences) were for threatening to kill Duncan Vale (the appellant’s cousin), laid under s 306(1)(a) of the Crimes Act 1961, and assaulting M J L Roberts (the appellant’s mother) using a bottle as a weapon, laid under s 202C(1)(a).
[4] The notice of appeal identified grounds relating to fresh evidence and counsel incompetence. These were not pursued. Counsel’s challenge to the s 306(1)(a) conviction was that the Judge had misdirected the jury on self-defence, particularly on the issue of proportionality. The challenge in relation to the s 202C(1)(a) count was that the Judge had wrongly withdrawn self-defence from the jury.

Factual background

[5] The offending took place during the course of heated altercations and physical struggles inside and outside a garage where the party was being held.
[6] The complainant, Mr Vale, gave evidence that he was being punched by the appellant, that the appellant was angry, and had been swearing. The couple fell to the ground and Mr Vale placed the complainant in a headlock. It was at this stage that the appellant threatened to kill Mr Vale. He described her appearance (he being 19 and she being 31) as pretty scary. Although the complainant expressed some doubt about the headlock aspect in cross-examination, another witness at trial gave evidence she heard the appellant threaten to kill the complainant. The appellant herself gave evidence. She described a fight involving her, the complainant and her brother, and said that whilst she was being held by the complainant in a headlock she said “I will fucking kill you Duncan”.
[7] The more serious offending of assaulting her mother, using a bottle as a weapon, occurred shortly afterwards when the appellant had been excluded from the building. She became enraged. She picked up a glass bottle and broke it by striking it twice against the garage’s exterior wall. She then punched her way into the garage by smashing a glass sliding door, lacerating her hand and arm in the process. Her mother, the complainant, described the appellant as “psycho”. She stated her daughter lunged at her with the broken bottle, the blow being deflected by the appellant’s brother. The mother’s evidence was she was facing her daughter and that, had the blow connected, it would have hit her in the chest area. The appellant, when giving evidence, denied that she had lunged at her mother with the bottle. Her evidence was she wanted to discourage her family members from hitting her and to be left alone.

Defences and the Judge’s directions

[8] Counsel for the appellant at trial (not Mr Barnsdale) raised self-defence in respect of the threatening to kill count. The Judge correctly directed the jury on what the Crown had to prove. He pointed out that the appellant had admitted uttering the threat but stated that she did so in self-defence whilst she was in a headlock. The Judge went on to comment that the appellant’s evidence “... indeed is not that far away from the evidence of Duncan Vale and others”.
[9] The Judge then went on to give the jury directions on self-defence. He stated it was “a question of proportion”. Again, he fairly put the appellant’s evidence in that regard. The Judge went on to give the jury an example of self-defence drawn from an analogy used by the Crown to describe the concept of inferences to the jury. The example given by the Judge was if someone was pushed in the street and threatened with being thumped, that person was clearly entitled to defend himself by pushing or perhaps by punching, but that it would be disproportionate to pull out a gun and shoot the assailant dead.
[10] The jury was also given a memorandum prepared by the Judge. Although this could have been available to counsel at the appeal hearing, it was for some reason not included in the case on appeal. In any event, we obtained copies and directed that they be provided to counsel as well. The memorandum is carefully focussed and accurate. It lists what the Crown must prove. It sets out the Crown case as being the appellant uttered the threat to kill and the appellant’s case that the utterance was in self-defence. It sets out the relevant words of s 48. Importantly the memorandum tells the jury that the law of self-defence extends to threats to kill “as if it was the use of force”. Finally, the memorandum reminds the jury that the Crown must exclude self-defence beyond reasonable doubt.
[11] On the count of assaulting the mother with a bottle as a weapon the Judge correctly directed the jury that an attempt to apply force was an assault. He told them that if the appellant had lunged at her mother with a broken bottle intending her to strike her with it, then that would amount to an assault. He directed them that a bottle could become a weapon, depending on how it was used, and that unquestionably a broken bottle, used as a stabbing instrument, was a weapon.
[12] The Judge put to the jury the conflict of evidence between the mother who had described the lunge with the bottle and the appellant’s evidence that this did not occur. The Judge said:

The accused has given evidence to the effect – No, that never happened. I never attacked my mother with the broken bottle. It quite simply did not happen at all. So in those situations, members of the jury, self-defence cannot arise, and I am sure that you will understand why. Difficult for anyone to say they are acting in self-defence if they say they did not act in self-defence, and that is the scenario.

Thus self-defence was not an issue for the jury.

[13] The Judge’s memorandum on the count (coupled with alternative counts of intending to cause grievous bodily harm and assault with a bottle as a weapon in respect of the appellant’s brother where there were acquittals) stated quite simply “self-defence does not arise in respect of [these counts]”.

Discussion

[14] The appellant apparently has strong views that she has been the victim of a miscarriage of justice. She has sworn two affidavits. One refers to a background of past family antagonism, which she considers should have been raised at trial on the issues of credibility and self-defence. The second affidavit asserts that inconsistencies in her mother’s evidence “should have been exploited more” and complains that her sister, who was present throughout the party, was not called by subpoena to give evidence. Finally, the appellant asserts that self-defence “was not put clearly to the jury”.
[15] As we have said, Mr Barnsdale did not advance any submission of counsel incompetence.
[16] In respect of the conviction of threatening to kill, Mr Barnsdale’s submission was that the example the Judge gave to the jury of a disproportionate response (at [9] above) might have confused and misled the jury. The example involved use of force by a gun. Self-defence had been advanced by the appellant, not in respect of any application by her of force, but merely in respect of the threat to kill. Mr Barnsdale submitted a threat was qualitatively different from the application of force. Giving a confusing example to the jury might have led to a miscarriage of justice, particularly in a situation where the threat seemed, on the evidence, to have been uttered whilst the appellant was constrained in a headlock.
[17] There is no strength to this submission. The Judge’s summing up more than once makes it very clear that the jury was dealing with a threat. The example the Judge gave to the jury was to underline, on a totally different set of facts, the issue of a proportionate response. Furthermore, the Judge’s memorandum was tailor-made to the facts on the count and set out the law correctly for the jury.
[18] Thus, the appeal in relation to the s 306(1)(a) conviction must fail.
[19] Mr Barnsdale’s submission on the more serious count was the Judge had been wrong to take self-defence away from the jury. In his submission the wrong defence had been put to the jury on that count by both counsel and the Judge. The issue was not whether the appellant had lunged at her mother with the bottle. Rather it should have been whether the appellant had any intention to use the bottle as an offensive weapon. If there was no intention to use the bottle offensively it followed that the appellant’s holding the bottle (and not lunging with it) was explicable as a form of self-defence. The jury was thus denied the opportunity of considering self-defence, that being the reason the appellant was holding the bottle.
[20] We reject this submission. Counsel’s submission takes a markedly different tack from the appellant’s own narrative at trial. Although her evidence suggested she was holding a bottle in a threatening way to discourage others, we consider that, quite apart from her inconsistent evidence where she denied lunging at her mother, her narrative on the self-defence issue was not credible. The appellant was clearly enraged. She deliberately broke a bottle outside the garage to use as a weapon. She then thrust her arm (injuring herself in the process) through a glass door to force an entry and, on the evidence, moved towards her mother holding the broken bottle as a weapon. There is nothing surrounding her breaking the bottle and forcing her way into the garage to return to the affray which raises any prospect of self-defence.
[21] The issue in respect of the threatening to kill count as to whether the Crown had excluded self-defence beyond reasonable doubt, and the conflict of evidence between the appellant and her mother in respect of the s 202C(1)(a) count are quintessentially jury matters. There is nothing in the evidence, in the Judge’s summing up, or in counsel’s submissions which in our judgment brings s 385(1)(c) into play. This is not a case where it can be said that justice has miscarried (R v Sungsuwan [2006] 1 NZLR 730 (SC) at [70]).

Result

[22] Although this appeal could have been prosecuted more promptly there is no prejudice to the Crown in granting an extension of time to appeal. The appellant has had a last opportunity to ventilate her concerns.
[23] The application for an extension of time to appeal is granted but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington