Mason v R [2010] NZCA 170 (5 May 2010)

Last Updated: 14 May 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA481/2009 [2010] NZCA 170

BETWEEN JAMES LOUIS MASON
Appellant

AND THE QUEEN
Respondent

Hearing: 23 March 2010

Court: William Young P, Hammond and Baragwanath JJ

Counsel: J L Mason in person
M E Ball for Respondent

Judgment: 5 May 2010 at 4pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Baragwanath J)

[1] James Louis Mason appeals against his conviction before Judge Crosbie and a jury on a count of assault on his four-year old son. The appeal is also against the sentence of nine months supervision and the direction that he undertake such treatment programme, counselling or intervention as might be recommended by the probation service, including for anger management. Mr Mason was acquitted on two other counts of assaulting the four-year old boy and his two-year old brother by lifting and thumping on the ground the bicycles on which each was sitting.
[2] Shortly before Christmas 2007 Mr Mason was taking his three young children across the Bridge of Remembrance over the Avon River in Cashel Street, Christchurch. The two boys were riding bikes with trainer wheels and Mr Mason was pushing their one-year old sister in a pushchair. The younger boy lost control as he turned down a ramp leading down to a park and came off his bike, suffering a nasty injury to his head. Mr Mason picked him up and took him back up the ramp to the bridge. To teach him a lesson he picked his bike up and slammed it hard on the ground three or four times in the course of what he described as a lesson in pedalling and braking, accompanied by obscene language. He then saw the older boy poised to ride down the ramp. On his account, with the pram in his right hand he grabbed “a great hunk” of the older boy’s hair with his left and pulled him hard by it towards himself, swearing as he did.
[3] Two eyewitnesses, a woman and her son, gave a different version, stating that they saw Mr Mason, who was shouting loudly, swearing at his sons and lifting the bikes and slamming them down, then yank the older boy’s ear and punch his face in, on or under his eye.
[4] A Senior Constable of Police who was approaching said she heard Mr Mason speaking in an aggressive and angry tone to the children, bouncing the bike of the younger boy and yelling at him. She made a job sheet entry ten minutes later of her recollection of what Mr Mason said to her:

The wee fellow on the bike had gone down the ramp and hit his head on the rail and had fallen off his bike. The wee fellow knows he shouldn’t go away from me as it’s a busy part of the city but they’re used to it as we live in the city. I hit the big one in the face and that is what I do and the lady [the initial witness] can mind her own business.

[5] The jury acquitted Mr Mason on counts 1 and 2 of the indictment which had alleged assaults against both boys by the lifting their bikes and forcing them to the ground.
[6] Count 3 of the indictment, alleging the conduct for which Mr Mason was convicted, stipulated that he “assaulted [the older boy] ... by pulling his ear and punching him”. There was evidence of two eyewitnesses to support it, as well as the alleged admission to the police officer. There was ample evidence on which the jury could convict.

Submissions on appeal

[7] Mr Mason submitted, although in a different sequence:

• (a) Count 3 should have been divided into separate counts in relation to the two allegations, of punching and ear-pulling. As it was he does not know what is the conduct in respect of which he was convicted.
• (b) All police officers involved in the case should have been summoned to give evidence.
• (c) The police exercised discretion under s 59(4) to warn Mr Mason and the ensuing prosecution was unjustifiable.
• (d) Defence counsel’s submissions were cut short prematurely.
• (e) Mr Mason’s conduct was justifiable under ss 59 and 20 of the Crimes Act 1961.
• (f) A juror was not impartial.

Discussion

(a) Count 3 should have been divided into separate counts

[8] In his oral summing up the Judge is recorded as directing:

[36] ... in relation to count three, you don’t have to find that there was both the pulling of the ear and a punch. You can find one or the other. It’s enough to find that there was, either, the pulling of the ear or the punching if [sic] for the intention of application of force.

[9] We suspect that the Judge actually said:

It’s enough to find that there was, either, the pulling of the ear or the punching with the intentional application of force.

[10] Given the terms of the Judge’s typed Jury Trial Memorandum which was given to the jury we are content to assume that the Judge did so direct. It listed the issues, beginning:

(1) Was there a direct or indirect application, or attempted application, of force to the child? ...

(2) Was this intentional? ...

[11] The jury would surely have understood the oral direction as requiring intentional application of force; the written direction would have removed any doubt.
[12] In his grounds of appeal and a supporting affidavit Mr Mason took issue with the inclusion of both punching and ear-pulling in the one count. Section 330(1) of the Crimes Act states:

A count shall not be deemed objectionable on the ground that it charges in the alternative several different matters, acts, or omissions which are stated in the alternative in the enactment describing any crime, or declaring the matters, acts, or omissions charged to be a crime, or on the ground that it is double or multiple.

Following a waiver of privilege Mr Mason’s experienced trial counsel, Ms Bulger, provided this Court with an affidavit in reply. She stated that she considered but rejected that option as risking four rather than three convictions for assaulting a child if the jury accepted the Crown case.

[13] We regard Ms Bugler’s decision as sensible and practical. Section 329(4) of the Crimes Act requires each count:

... to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to ...

That was done by the allegation reproduced at [6] above.

[14] Mr Mason further submitted that he has suffered injustice because of the Judge’s direction to the jury in the following terms:

... in relation to count three you don’t have to find that there was both the pulling of the ear and a punch. You can find one or the other. It’s enough to find that there was, either, the pulling of the ear or the punching.

Following the jury’s verdict of guilty, the Judge sentenced him on the basis that he had committed the more serious act of punching the older boy.

[15] That submission however overlooks the settled principle that, where a jury’s verdict is ambiguous, the judge at sentence may act in effect as a thirteenth juror and find facts for that purpose, although only within the limits of the verdict. The authorities are collected in Hall’s Sentencing.[1] It follows that the clarity sought by Mr Mason is afforded by the sentencing remarks of the Judge.

(b) Police officers should have given evidence; (c) The police exercised discretion under s 59(4) to warn Mr Mason and the ensuing prosecution was unjustifiable.

[16] Mr Mason submitted that other police officers should have been called to attest to the facts:

• (a) The boy’s face was uninjured.
• (b) He required no first aid.
• (c) Mr Mason was not arrested at the scene.
• (d) The original investigating officer, Inspector Jury, told Mr Mason that although there were conflicting statements Mr Mason was to be warned. Two days later he administered such a warning.

[17] Mr Mason submitted that the evidence of such witnesses might have led the Court to consider that the police had taken the view that Mr Mason’s version was correct and therefore decided not to take the case to trial.
[18] But the facts that the boy displayed no injury and that he required no first aid were clearly established at trial. No purpose would have been served by further evidence of inferior quality, being from persons not present at the scene.
[19] Section 59 of the Crimes Act, insofar as material to this case, states:

Parental control

(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—

• (a) preventing or minimising harm to the child or another person;
  

...

(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.

(3) Subsection (2) prevails over subsection (1).

(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.
[20] Mr Mason submitted that, having given him the warning recognised by subs (4), the Police should not have proceeded against him. We do not accept the submission. The subsection does no more than draw attention to the well-settled principle that the Police possess a discretion, of which the Law Officers are the ultimate judges, whether the public interest warrants prosecution in any particular case. It does not put the Police to an election between the two courses. Only if there were abuse of process, which cannot be suggested here, would the Court declare that it was improper for a prosecution to follow a warning.

(d) Defence counsel’s submissions were cut short prematurely

[21] Ms Bulger denied that her cross-examination of Sergeant Currie had been cut short. The transcript does not suggest otherwise.

(e) Mr Mason’s conduct was justifiable under ss 59 and 20 of the Crimes Act.

[22] The answer to the claim to justification under s 59 ([19] above) is its rejection by the jury.
[23] Section 20 of the Crimes Act states:

General rule as to justifications

(1) All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and apply in respect of a charge of any offence, whether under this Act or under any other enactment, except so far as they are altered by or are inconsistent with this Act or any other enactment.

(2) The matters provided for in this Part of this Act are hereby declared to be justifications or excuses in the case of all charges to which they are applicable.

But there is no relevant rule or principle of the common law that assists Mr Mason. Any common law entitlement to administer force by way of correction is inconsistent with and thus excluded by s 59.

(f) A juror was not impartial

[24] A juror realised that he knew Constable Wall, who had taken an exculpatory written statement from Mr Mason. The constable was married to a cousin of the witness. The juror stated that he had seen the officer twice in the past year and did not know him very well. The Judge raised the matter with counsel, both of whom agreed that no issue of credibility arose and had no objection to the witness’s serving.
[25] There is no basis to apprehend bias and the ground of objection fails.

Sentence

[26] We recognise that in taking his boys for a bike ride and his daughter in her pushchair, Mr Mason was trying to act as a good parent. When the younger boy lost control of his bike and he was injured Mr Mason was in a predicament. With his hands literally full and undoubtedly distressed by what had happened to the younger boy he saw the older boy at risk of similar or worse trouble and acted precipitately.
[27] But, while the blow to the face was not so heavy as to leave a mark, we agree with the jury and Judge Crosbie that it was inexcusable. We also agree with Ms Bulger’s view that by itself, let alone coupled with the ear pulling and Mr Mason’s loss of temper, it justified the sentence of supervision which has now been completed.

Solicitors:
Crown Law Office, Wellington

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[1] Geoffrey Hall (ed) Hall’s Sentencing (looseleaf ed, LexisNexis) at [SA 24.10(b)].