[1] The appellant, Mr Andrew Kane, appeals against his conviction after trial in the District Court at Auckland on one count of wounding the victim X on 25 April 2008 with reckless disregard for his safety.[1]

A night at the pub, the morning after, and the weeks that followed

[2] Mr Kane and X were acquainted. Mr Kane sometimes worked at a workshop where X, an engineer, also worked. On the night in question the two finished work at the workshop. There is a pub several hundred metres away from the workshop. The two men went there around 5 pm, after some drinks at work.
[3] X drove the two of them to the pub in his van. There they settled in for the evening. Both became drunk. The bar manager described how, at some point in the evening, the bar staff stopped serving X alcohol, giving him water instead, because he was too intoxicated. Also, during the evening, although the evidence on this was disputed, X behaved in an obnoxious manner, with Mr Kane stepping in at one point to diffuse a confrontation between X and another man.
[4] The pub closed at midnight. Mr Kane and X moved outside to the car park, not wanting to leave at that point. Mr Kane and perhaps X kept drinking there.
[5] Sometime between 1 am and 1.30 am the bar manager left with the other staff, having finished cleaning up. The manager recalled seeing Mr Kane and X as well as a separate group of three other persons in the car park as he left.
[6] By this stage, or soon after, Mr Kane decided that he wanted X to drive him home in X’s van. When X refused, Mr Kane knocked him to the ground a couple of times. Mr Kane described it as “slapping” X. X then relented, saying he would drive Mr Kane home, and they both got in the vehicle. X got into the driver’s side of his vehicle. He let Mr Kane enter on the passenger’s side.
[7] At that point X got out of the vehicle and ran to a nearby building site. The next thing he remembered was waking up on the building site at around 2.30 am with his left eye hanging out of its socket and resting on his cheek, and with a severe laceration on the same side of his face. X was found by a group of young people making their way past the building site. They called an ambulance and flagged down a passing police car.
[8] X was taken to North Shore Hospital. He was subsequently transferred to Middlemore Hospital. Fifty stitches were required to surgically repair his eye. His vehicle was found with the key in the ignition at the workshop. Mr Kane had driven away in it, leaving X behind.
[9] Mr Kane was not interviewed by police until 10 June 2008, on which date he “turned himself in”. He had left the Auckland area in the intervening period, claiming in evidence that he had felt threatened by messages from some of X’s friends, which included, he claimed, death threats, and also because he knew the police were looking for him and he was afraid of going into custody.
[10] During the police interview Mr Kane made various statements adverse to his defence. The first was recounted in evidence by Detective John Taylor, the interviewer. He said that Mr Kane had told him “I did what I did and I will have to suffer the consequences”. Mr Kane did not deny under cross-examination saying this. Instead he maintained that he was referring to when he had “slapped” X. Mr Kane then asked to see the photographs of the injuries, explaining “I need to see what I did to my mate”. Under cross-examination he proffered that his choice of words was guided by his feeling responsible for leaving X behind that night. He claimed that it was for similar reasons that he said “I am sorry that I did that to my mate” upon being shown the photographs.
[11] While remanded in custody awaiting trial, but after making his first court appearance in the matter, Mr Kane wrote a letter to his former partner. In it he said:

Yes you’re right the cop who came to see me when I went in showed me the photos and ... I was pretty shocked. The poor dude. I loved [X] like a brother, as he and yous well know. And I am definitely not trying to side-step what happened. I did hurt him but not that bad I’m sure OK.

The trial

[12] The trial turned on a single issue: who caused X’s injuries?
[13] There were no eye witnesses to the actual assault, and X could not remember who had attacked him. He did remember, however, that Mr Kane had acted aggressively towards him after he had refused to give him a ride when they were leaving.
[14] The critical pieces of evidence in favour of the prosecution case were that the appellant admitted assaulting X as they were about to leave, and the various statements (above) that he had made to the police during the initial interview and to his ex-partner in his letter from prison.
[15] The defence case was that there was a real doubt about who had assaulted X. X’s inability to remember who had assaulted him was emphasised. There was the fact that other people were seen outside the pub after closing. There was also the evidence of the argument earlier in the night between X and another man, and the evidence given that Mr Kane had stepped in to diffuse that situation.

The appeal

[16] The appeal has proceeded on the footing that the prosecution withheld material evidence which caused serious prejudice to Mr Kane’s trial, thereby resulting in a miscarriage of justice.
[17] That evidence (in an affidavit of George Raj, who knows Mr Kane) is as follows. The context is that Mr Raj and Mr Kane were former colleagues, and Mr Raj was also at the pub on the night in question.

During the evening I noticed that [X] was extremely intoxicated, by this I mean I observed a number of occasions where this male was unable to walk steadily around the bar, he stumbled over other patrons, and was being quite obnoxious to people he bumped into, making abusive comments to them after shoving or bumping them.

I personally saw an incident where [X] had abused and insulted a young lady in the bar, and this young lady’s boyfriend had threatened to have a physical altercation with [X] because of his behaviour and the way he acted towards the man’s girlfriend.

The situation was very heated. I also recall witnessing Andrew get involved in the incident and speaking to [X] and calming the situation.

I am certain that Andrew’s actions helped diffuse what was looking like an inevitable physical confrontation between [X] and the male because of [X]’s intoxication and his behaviour.

[18] Mr Raj’s proposed evidence could not conventionally be considered “fresh”: he was at the pub that night and with reasonable diligence a brief could have been obtained from him prior to trial.
[19] The appellant sought to overcome that hurdle by the allegation that evidence had been improperly withheld. Whether that is so is distinctly disputed. Detective Taylor has sworn an affidavit and has deposed that he has no record of ever speaking to Mr Raj as part of his inquiry. He said that if he had spoken to him he would have made a written record. Mr Raj on the other hand claims that one month after the assault “the police visited me at home, they informed me that a serious assault had taken place at the [pub] that night”. On his own affidavit, Mr Raj was cautious in what he said to the detective. He deposes, “... I was ... reluctant to speak to them without legal advice as a matter of caution given that they appeared to be questioning me as a suspect in this matter”.
[20] It is difficult to resolve an issue of that character without cross-examination, and neither party sought to cross-examine on this appeal. A police officer has said there was no such discussion. It is difficult to see why he would have maintained that position if he had spoken to Mr Raj, because there is nothing particularly helpful to the appellant’s case in what Mr Raj has said.
[21] It is important to note that the contention now sought to be advanced was squarely before the jury in any case. It had formed part of Mr Kane’s evidence in chief. In other words, Mr Raj’s proposed new evidence does not offer a new, alternative explanation. It sought to strengthen some information already before the jury.
[22] Mr Raj’s evidence is not at all cogent. Viewed in the light of the strong circumstantial case for the prosecution, it is quite apparent that the evidence of Mr Raj would have been only of marginal assistance to Mr Kane. In our view it is certainly not sufficient to tip the scales to a point where it could properly be said there was a miscarriage of justice, let alone one that would demand a fresh trial.
[23] The application to adduce the new evidence is declined, and the appeal is dismissed.
[24] Even if we had admitted the new evidence, we would have arrived at the same conclusion.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Kane DC Auckland CRI-2008-044-7648, 19 November 2009.

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