The Queen v Wi [2009] NZCA 81 (17 March 2009)

Last Updated: 25 March 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA586/2008

[2009] NZCA 81

THE QUEEN

v

AARON MARK WI

Hearing: 4 March 2009

Court: Arnold, Ronald Young and Venning JJ

Counsel: G J King for Appellant
N P Chisnall for Crown

Judgment: 17 March 2009 at 10 am

JUDGMENT OF THE COURT

A Leave to file an affidavit from Mr Earwaker is granted.

B The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] Following a jury trial before Judge Harding the appellant was found guilty on one charge of wounding a police constable with intent to cause him grievous bodily harm and one count of assaulting another constable with intent to injure him (ss 188(1) and 193 of the Crimes Act 1961 respectively). The Judge sentenced him to seven years imprisonment, with a minimum period of imprisonment (MPI) of four years, on the wounding count and to 18 months imprisonment on the aggravated assault count, to be served concurrently.
[2] The appellant now appeals against both conviction and sentence.

Factual background

[3] Senior Constable Bennett and Constable Horler were on patrol in a police car in the Papamoa area on the evening/early morning of 15/16 November 2003. As they were checking a car park adjacent to a restaurant sometime after midnight they heard someone yelling. The voice was that of a male. He was directing invective at them. They decided to check what was happening. Both were in uniform. They left the car and walked to where the noise was coming from.
[4] The appellant, his mother, his partner, his two brothers and the partner of one of them had been guests at a wedding function held at the restaurant. When the function finished shortly after midnight on 16 November they were the only guests left. They were standing outside an exit from the restaurant. Three female staff members were tidying up in the restaurant. The appellant’s group had watched a delayed telecast of a rugby game, which New Zealand had lost. The appellant was apparently upset by the result and was aggressive and abusive towards members of his family, who were attempting to calm him down.
[5] Constable Bennett approached the group by walking up a grass bank. As he came to the top of it, he heard a woman screaming and the sound of a struggle. He ran to the top of the bank. He saw the group, but could not see clearly what was happening. As the constable approached, the appellant’s mother interposed herself between him and the appellant. The constable pushed her aside. The Crown said that the appellant ran at the constable, hitting him on the head with a beer handle. Constable Bennett then grabbed the appellant in a rugby tackle. The appellant continued to hit him on the head with the beer handle, striking him somewhere between six and ten times in total. One of the appellant’s brothers, Varian, was also swinging punches at Constable Bennett.
[6] At this point Constable Horler arrived to assist Constable Bennett. He struck Varian Wi with his torch in an effort to stop him swinging punches at Constable Bennett. With the assistance of the restaurant staff, Constable Horler managed to move the members of the appellant’s family inside the restaurant. Constable Bennett continued to struggle with the appellant outside. Constable Horler came to his colleague’s assistance and, in an effort to subdue the appellant, pepper-sprayed him. The appellant then lashed out at Constable Horler, gouging his face.
[7] Ultimately, the constables were able to subdue and handcuff the appellant, and take him into custody.
[8] Broadly, the defence theory of the case was that the appellant was the victim of a sustained and vicious beating at the hands of the constables, which had begun without provocation. The appellant accepted in evidence that he was intoxicated and abusive, but said that the Crown witnesses were lying when they said he had attacked Constable Bennett. He said that Constable Bennett had attacked him with his torch. The appellant said he had no recollection of how Constable Horler received the scratches to his face.
[9] The appellant was originally tried before Judge Rollo and a jury and was convicted. This Court allowed his appeal against conviction and ordered a retrial: [2007] NZCA 96. The appellant was then retried, but that trial ended in a hung jury. This led to his third trial, before Judge Harding.

Grounds of appeal

[10] The appellant advanced four grounds of appeal against conviction, namely:

(a) The evidence did not support the jury’s verdicts;

(b) Judge Harding erred in allowing the appellant to be cross-examined on the basis of a letter that he wrote to the Police Complaints Authority (now the Independent Police Complaints Authority) (PCA) concerning the incident that gave rise to the charges;
(c) Judge Harding erred in not allowing his counsel to lead evidence from a police witness that he had no prior convictions for violent offending;
(d) His trial was rendered unfair as a result of the fact that his trial counsel (not Mr King) was obliged to give his closing address during the late afternoon/early evening when the jury was tired.
[11] In relation to the sentence appeal, the appellant challenged both the length of the sentence and the imposition of a MPI.

Discussion

[12] We deal with each ground in turn.

Jury’s verdicts not supported by the evidence

[13] The approach to be adopted where it is argued that a jury’s verdict should be set aside on the ground that is unreasonable or cannot be supported having regard to the evidence (s 385(1)(a) of the Crimes Act) is set out in the decision of the Supreme Court in R v Owen [2008] 2 NZLR 37 and, to the extent approved in Owen, in the decision of this Court in R v Munro [2008] 2 NZLR 87. In Owen the Supreme Court said that “a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty”: at [17].
[14] As Mr King appropriately recognised, this is a difficult ground of appeal to sustain in the present case in light of the evidence. Accordingly, we deal with it briefly.
[15] Mr Adam Wi gave evidence for the defence that it was he who had attacked Constable Bennett with the beer handle, not the appellant. No other defence witness said that he or she had seen Adam Wi hit Constable Bennett with the handle, however. For the Crown, both Constables gave firm evidence that it was the appellant who had repeatedly hit Constable Bennett with the beer handle. In addition, two of the restaurant staff gave evidence that the appellant was the aggressor and had hit the constable. One, Ms Temple, said that she had observed the appellant with a handle in his hand and saw him hit the constable on the head. She was challenged in cross-examination, to the effect that she had not seen the appellant with a handle in his hand. But she rejected that. Ms Temple had made some hand-written notes immediately after the incident because she was unable to sleep. She said under cross-examination “My first hand-written notes say that [the appellant] used physical violence and glassware”, and she was not shaken from that proposition.
[16] Apart from that, Constable Horley gave evidence that it was the appellant who scratched his face when he was pepper-sprayed.
[17] There was additional evidence against the appellant, for example medical evidence. In our view, the Crown case was a strong one, and we consider that the jury could reasonably be satisfied beyond reasonable doubt that the appellant struck both Constables. Accordingly, we reject this ground of appeal.

Letter to Police Complaints Authority

[18] On 19 February 2004 the appellant wrote to the PCA complaining about the incident. He copied the letter to a serving police officer, Inspector Christopher Douglas, who later provided it to the Crown. The appellant’s purpose in copying the letter to Inspector Douglas was apparently to ask him to investigate his complaint.
[19] In the letter the appellant claimed that the police were guilty of an unprovoked and vicious attack on him and other members of his family.
[20] The Crown sought leave to cross-examine the appellant on the letter. In a written decision dated 4 August 2008, Judge Harding granted leave. He did so on the basis that s 32 of the Police Complaints Authority Act 1988, which requires the Authority and its staff to maintain secrecy in respect of all matters that come to their knowledge in the exercise of their functions, did not apply. This was because Inspector Douglas was not a member of the PCA and the Crown had not obtained a copy of the letter from the PCA.
[21] Mr King challenged this reasoning. He argued that the letter was a confidential communication and, as a matter of fairness and for public policy reasons, should not have been the subject of cross-examination. He said that the position should have been dealt with by reference to ss 8 and 96 of the Evidence Act 2006. The essence of Mr King’s submission was that the jury should not have been told that the appellant was pursuing a complaint with the PCA against the two constables. Mr King said this introduced an irrelevant consideration into the trial in that the jury may have felt that the constables were effectively on trial, so that if they acquitted the appellant they were condemning their careers. The jury, he submitted, would be less willing to entertain a reasonable doubt, given the possible impact on the two constables.
[22] We reject this submission for three reasons:

(a) First, we agree with the Judge that s 32 does not apply in the circumstances of this case. It did not extend to Inspector Douglas, for the reasons which the Judge gave.

(b) Second, we do not accept that there is a real risk that the letter would have affected the jury in the way suggested by Mr King. The Judge instructed the jury appropriately on the nature of its responsibility. We see no risk that somehow the members of the jury would have been side-tracked into regarding the two constables as being on trial or in jeopardy, as Mr King argued.

(c) Third, the letter was potentially of some benefit to the appellant. He gave evidence that the principal Crown witnesses were lying and that, rather than having attacked the constables, he had been the subject of an unprovoked and savage attack by them. The letter was consistent with that claim, and was written well before the present trial.
[23] Accordingly, we reject this ground of appeal.

Inability to raise appellant’s lack of previous convictions

[24] At the time of the incident giving rise to these charges, the appellant had no convictions for violent offending. He had only one conviction, and that was for driving with excess blood alcohol. At the appellant’s first two trials, the defence had led this evidence from a police witness, as was commonly done. However, by the time of the appellant’s third trial, the Evidence Act 2006 had come into force. In a written ruling dated 4 August 2008 Judge Harding ruled that this line of questioning was not permissible, applying the decision of this Court in R v Kant [2008] NZCA 194.
[25] In Kant this Court said:

[37] Under the previous law, evidence of the absence of previous convictions would have been relevant both to the appellant’s credibility/veracity and to the unlikelihood he would have committed the offences charged. However we consider the position under the Evidence Act 2006 is materially different. The Act draws a clear distinction between veracity evidence and propensity evidence and defines both concepts in specific ways. While the Act recognises there may be some overlap between the two concepts, the legislation specifically provides that evidence that is solely or mainly relevant to veracity is governed by the veracity rules and the propensity rules do not apply: s 40(4).

[38] In the present case, we do not consider the appellant’s absence of previous convictions is evidence tending to show that he acts in a particular way in terms of the definition of propensity. Rather, we consider, as this Court did in [R v Falealili [1996] 3 NZLR 663], that such evidence is generally neutral. It follows that the evidence of the lack of previous convictions would not have been admissible as propensity evidence.

[39] We also consider, although with some diffidence, that, generally speaking, a lack of previous convictions will not be admissible as veracity evidence for two reasons. First, it does not bear on the appellant’s disposition to refrain from lying. A person with no previous convictions may be just as likely to lie or refrain from lying as one who has convictions (unless perhaps the convictions are for dishonesty or perjury). Secondly, even if evidence of a lack of previous convictions were regarded as veracity evidence, it could not have been admitted because it would not meet the substantial helpfulness test under s 37(1). It is essentially neutral in effect.

[40] If this view is right, then no miscarriage of justice has arisen, as, even if trial counsel had sought to elicit evidence from the officer–in-charge of the appellant’s lack of convictions, the evidence should have been ruled inadmissible. Even if our view is not right, however, we are satisfied that, in this particular case, no miscarriage of justice arose. That is because, had this evidence come in, then there would have been a strong likelihood that the Crown would have successfully sought to re-open the question of whether it should have been able to call the evidence of the two female employees who had made complaints about the appellant. We refer to that in more detail below.

[41] Our views on the ability to elicit evidence of a lack of previous convictions should be considered tentative. This is a difficult issue and would warrant attention by the permanent court at an early opportunity.

[26] Mr King submitted that the Judge’s ruling was wrong and that the appellant was unfairly prejudiced. He made the following points:

(a) It was unfair that evidence that was favourable to the appellant and which had been adduced at his earlier trials could not be adduced at his third trial, particularly as the appellant was not responsible for the delay between the time of the incident and the time of his third trial.

(b) The evidence was admissible on the basis that it was necessary to rebut the Crown case that the appellant was acting in an aggressive and violent way on the evening in question. The appellant had been denied his right under s 25(e) of the New Zealand Bill of Rights Act 1990 to present a defence.
[27] While it was common prior to the coming into force of the Evidence Act for defence counsel to elicit evidence of an accused’s lack of previous convictions, it must be remembered that an absence of convictions was not, in itself, evidence of good character. As noted by the Court in Kant, this is clear from R v Falealili [1996] 3 NZLR 663 (CA) where the majority said (at 667):

We think there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person’s good character. It may be a factor in assessing a person’s good character, but standing on its own it is generally neutral. A person of bad repute may well have no convictions. We do not think it is necessary for directions to be given merely because absence of previous convictions has been elicited.

[28] The appellant did not call evidence of good character. Evidence of a lack of previous convictions for violence would not have constituted such evidence, and if the evidence had been elicited, a “good character” direction would not have been required. Given that the evidence was neutral, and that the case against the appellant was a strong one, we do not see that there has been any miscarriage of justice on this ground.
[29] That said, we reiterate the view expressed in Kant that this issue merits consideration by the permanent court.

Defence counsel’s closing

[30] The appellant seeks the Court’s leave to file an affidavit by his defence counsel at trial, Mr Earwaker. There was no objection from the Crown. Accordingly, we grant leave.
[31] The appellant’s complaint is that Mr Earwaker had to begin his closing address to the jury at approximately 4.20 pm, following a lengthy closing address by counsel for the Crown. Mr Earwaker’s address went through until well after 6 pm, by which time the air-conditioning in the court-room had been turned off. At the conclusion of Mr Earwaker’s address, the Court adjourned for the day, and the Judge gave his summing up the following morning. The appellant says that he was prejudiced by what occurred and that as a consequence there was a miscarriage.
[32] In his affidavit, Mr Earwaker says that when the Crown finished its closing at 3.50 pm he expressed his concern to Judge Harding about the time and the likelihood that his address would go well after 5 pm. Judge Harding said that he would consult the jury about whether they wished to continue or to stop for the day. Having considered the position, the jury advised that they wished to continue with the closing addresses. Mr Earwaker explained the position to the appellant, and he was happy with it.
[33] Mr Earwaker commenced his address. Around 5.30 pm he noted that the air-conditioning had gone off and pointed that out to the Judge. Later, just before 6 pm, Mr Earwaker noted that several members of the jury were yawning, although they appeared attentive. The Judge suggested a short break, during which members of the jury stood up and stretched for a few minutes. Mr Earwaker then continued with his address. He said that he was beginning to flag at this point, and, although he had completed the substance of his address, he cut short some of the comments that he had in mind making about points raised by the Crown. After Court adjourned for the day, Mr Earwaker checked with the appellant, who said he was happy with the address and felt that everything had been covered well.
[34] We are grateful to Mr Earwaker for the comprehensive affidavit he has filed, and for the very fair way in which he couched it. Clearly the circumstances were not ideal. But the jury wished to hear the closing addresses together, and were, as Mr Earwaker acknowledges, attentive throughout. Further, the Judge was sensitive to the need to give the jury a break and the appellant said that he was happy with the way Mr Earwaker presented the closing. In those circumstances, we see no material prejudice to the appellant. Accordingly, we reject this ground of appeal.
[35] We have considered and rejected each of the four grounds individually. We accept that grounds which individually do not give rise to a miscarriage of justice may collectively do so. However, we are satisfied in the present case that even viewing these grounds collectively, they do not give rise to a miscarriage.

Sentence appeal

[36] Dealing with the lead charge, wounding with intent to cause grievous bodily harm, Judge Harding said that the features of the offending placed it well within band 2 of R v Taueki [2005] 3 NZLR 372 (CA), if not at the bottom of band 3. The features which the Judge emphasised were the use of the weapon (the handle), the attack to the head, the fact that the victims were on duty police officers and the ongoing effects of the injuries: at [21].
[37] The Crown had suggested a starting point of nine years imprisonment and Mr Earwaker six years. The Judge adopted a starting point of eight years. From this he deducted six months to reflect the appellant’s previous good character and the extended time on bail, which produced a sentence of seven years six months. However, because the appellant had been sentenced to a term of imprisonment of seven years after his first trial and because he saw no material differences in the circumstances, the Judge deducted a further six months, producing an end sentence of seven years. He imposed a sentence of 18 months imprisonment in relation to the assault charge, to be served concurrently.
[38] In relation to the MPI, the Judge considered s 86 of the Sentencing Act 2006 and found that three of the four specified criteria were met – accountability, denunciation and deterrence. The Judge considered that there needed to be “a very clear message given to those who are minded to attack members of the Police and cause them significant harm”: at [26]. The Judge imposed a MPI of four years, as the Judge had done after the first trial.
[39] Mr King submitted that the sentence was manifestly excessive. He said that the appellant had no previous convictions for violence and said that the appellant’s behaviour that evening was out of character. (The appellant was assessed as having a low risk of re-offending in the pre-sentence report.) He emphasised the appellant’s personal circumstances – a qualified tradesman in a long-term relationship with a young family – and noted that he too had suffered injuries in the fracas. Mr King pointed to the long delay in the resolution of the case, through no fault of the appellant. He said that all the objectives of sentencing could be adequately accommodated without the imposition of a MPI. Accordingly, Mr King submitted, an end sentence of around three years with no MPI was appropriate.
[40] We agree with the Judge that this offending fell well within band 2 of Taueki, for the reasons he gave. The starting point range for band 2 is five to 10 years. The Judge selected a starting point of eight years, which was clearly available to him. He then reduced that by one year, which in our view adequately acknowledged the appellant’s personal mitigating factors and the fact that the appellant was on bail for some time.
[41] The real issue is whether a MPI should have been imposed. We consider that it was justified: see Taueki at [51] – [57]. The Judge was entitled to conclude that serving one-third of the nominal sentence would be insufficient for the purposes of accountability, denunciation and deterrence. This was a serious attack, fuelled by alcohol, on two constables in the performance of their duties. As is clear from their victim impact reports, each feared for Constable Bennett’s life and each has suffered long-term psychological and other effects. The Judge was entitled to give these factors the weight that he did.

Decision

[42] The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington.