Satybaldin v R [2010] NZCA 593; [2011] 3 NZLR 181 (7 December 2010)

Last Updated: 25 January 2018

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_{IN THE COURT OF APPEAL OF NEW ZEALAND}

CA331/2010 [2010] NZCA 593

BETWEEN YEVGENIY SATYBALDIN Appellant

AND THE QUEEN Respondent

Hearing: 8 November 2010

Court: Ellen France, Gendall and Cooper JJ Counsel: K I Jefferies for Appellant

N P Chisnall for Respondent

Judgment: 7 December 2010 at 10.30 am

_{JUDGMENT OF THE COURT}

_{The application to admit new evidence is declined and the appeal is dismissed.}

REASONS OF THE COURT

_{(Given by Ellen France J)}

Introduction

[1] The appellant was charged with a number of counts of assault. All of the charges concerned his former partner, Maria Lashuk. After a trial by jury, he was

SATYBALDIN V R CA331/2010 7 December 2010

convicted on four counts and ordered to pay $2,000 by way of emotional harm reparation in relation to the offending.¹

[2] The appellant appeals against his convictions on the basis he was denied a fair trial by the actions of the trial judge, Judge Behrens, in two respects. The first matter relied on is that, after counsel had addressed the jury, the Judge split one count of the indictment into two separate counts. The second complaint is that the Judge did not advise the jury that they could ask questions during the trial. In addition, the appellant says new evidence on one of the counts shows the

unreliability of the complainant’s evidence on that count.²

The factual background

[3] The appellant and Ms Lashuk became romantically involved in early 2008 while they were studying in Wellington as foreign students. They moved in together in late 2008 or early 2009. The charges of assault on the initial indictment were as follows:

(a) Counts 1 and 2: allegations of two assaults in June 2008.

(b) Count 3: an allegation of assault on 7 December 2008. This count involved punching and pushing Ms Lashuk into a clothes rack.

(c) Count 4: an allegation of assault on 8 March 2009. This involved squeezing Ms Lashuk’s throat.

(d) Count 5: an allegation of assault on 28 March 2009. This count alleged an incident in the couple’s flat in the course of which Ms Lashuk said she was pushed, slapped, pulled by the hair, and kicked.

[4] We need to say a little more by way of background about counts 3 and 5.

¹ _{R v Satybaldin DC Wellington CRI-2009-085-4205, 30 April 2010.}

² The notice of appeal contained two other grounds but these were not pursued.

[5] The incident giving rise to count 3 took place on the morning of 7 December

2008. Ms Lashuk’s evidence was that the appellant punched her several times during an argument while they were in the bedroom together and then followed her into the lounge and pushed her into a clothes rack. The appellant said that Ms Lashuk got angry at him but he was just trying to placate her. He says there was no physical contact, although he admitted throwing some of her things out the window.

[6] In terms of count 5, the evidence was that the appellant and Ms Lashuk began arguing over Ms Lashuk’s phone, which the appellant would not give back to her. Matters escalated into a physical confrontation during which Ms Lashuk threw a glass cutting the appellant’s hand.

[7] Ms Lashuk’s evidence was that the appellant started pushing her. She picked up a whisky bottle to protect herself but it slipped from her hands and broke. The appellant then started pulling her hair and slapping her. She said she ended up on the ground being kicked by the appellant. After she had been kicked she said she threw a water glass in his direction. The glass hit a door, shattered and the appellant’s hand was cut by one of the shards.

[8] The appellant gave evidence in which he said he kicked Ms Lashuk only after she had hit him with the bottle and then thrown the glass at him. This was also what he said in his police video interview. The appellant admitted slapping and kicking Ms Lashuk once but denied pulling her hair or kicking her a second time on the ground.

[9] Ms Lashuk’s evidence on count 3 was supported by two other Crown witnesses who met up with her that day. One of these witnesses took photographs of Ms Lashuk with bruises and scratches. Similarly, one of these witnesses described bruising on Ms Lashuk’s neck after the incident in count 4.

[10] The appellant’s defence to counts 1 to 4 was that the assaults did not happen. His defence in terms of count 5 was that some of the events described by Ms Lashuk did not take place and that in slapping and kicking her he had acted in self-defence.

[11] After the closing addresses had been given but before summing up the Judge issued a Minute amending the indictment. In addition to adding particulars to counts

3, 4 and 5, the Judge split count 5 into two counts, one alleging pushing, slapping and hair-pulling (count 5) and the other alleging kicking (the new count 6).³

The decision to amend the indictment

[12] The appellant says that the Judge had no power to amend the indictment and that the amendment was unfair to the appellant.

[13] At the hearing, two possible sources of power for the amendment were discussed. The first of these was s 330 of the Crimes Act 1961 which is headed “Crimes may be charged in the alternative” and the second, s 335 of the Crimes Act, which deals with variance and amendment.

[14] The appellant says this is not a case of duplicity and so s 330 is inapplicable. As to s 335, Mr Jefferies’ submission is that this is not sufficiently wide to cover the present case especially when s 335 is read in conjunction with s 25(f) of the New Zealand Bill of Rights Act 1990 which protects the right of a defendant to cross-examine. If there is power to amend, Mr Jefferies says the Judge was wrong to exercise the power because of the resultant prejudice to the appellant.

[15] In written submissions, counsel for the Crown submitted that s 335 arguably did not apply because there was no variance between the proof and the charge but there was power to amend under s 330(3). In oral submissions, Mr Chisnall said it was possible there was jurisdiction to amend under either section but the real question was whether amendment was prejudicial.

Was there power to amend under s 330 of the Crimes Act?

[16] Section 330 reads as follows:

³ In the initial indictment no particulars were given for counts 3, 4, or 5. Mr Jefferies, who was counsel at the trial, did not object to the changes to count 3 but did object to the splitting of count 5.

(1) 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.

(2) The accused may at any stage of the trial apply to the Court to amend or divide any such count on the ground that it is so framed as to embarrass him in his defence.

(3) The Court, if satisfied that the ends of justice require it, may order any count to be amended, or divided into 2 or more counts; and on the order being made that count shall be so divided or amended, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.

[17] The current state of the law is that s 330(3) does not provide a general power of amendment, but is limited to cases arising under s 330(1). Section 330(1) would appear to cover the full range of what was considered duplicity at common law.

[18] We need to say something about the authorities on which these propositions are based.

[19] The scope of s 330(3) was considered by this Court in R v Bennett.⁴ Somers J for the Court reviewed the legislative history of s 330, noting that its wording followed that of the equivalent provision in the Draft Code appended to the Report of the Royal Commission of 1879 on the Law Relating to Indictable Offences. The first two paragraphs were initially one, divided by a semi-colon, with paragraph three a separate paragraph under the same heading. Somers J considered that format, together with the discussion in the Report, suggested that the power given in s 330(3)

was intended to relate to the case of duplicity in counts.⁵

[20] The Court disapproved of the obiter view expressed in R v Crossan, that the predecessor to s 330(3) was of general application.⁶ The approach of the Court in Bennett was influenced by the other statutory powers in the Crimes Act, in particular ss 335, 342, 345(5) and 347, and the inherent power to prevent abuse of process. Given that general framework of inherent power and specific statutory powers to discharge and amend exercisable only in particular circumstances, Somers J said

⁴ _{R v Bennett [1981] 1 NZLR 519 (CA).}

⁵ _{At 521.}

⁶ R v Crossan [1943] NZLR 454 (CA) at 464.

there was no “apparent rationale for conferring on the Court a further general power of amendment”.⁷ Somers J concluded that the s 330(3) power was limited to cases arising under s 330(1).⁸

[21] The Bennett view of s 330(3) was referred to with approval in R v Accused

(CA423/90).⁹

[22] In the earlier case of Crossan, the Court considered the scope of what is now s 330(3) was narrower than the common law on duplicity and covered only offences charged in the alternative or where a person by one act may have committed two or more offences. In particular, the Court said s 330(1) did not cover the situation where two or more offences arising out of different acts or conduct were charged in one count. The scope of s 330(1) was left open in Bennett but the Supreme Court in Qiu v R disapproved of the restrictive Crossan view, given the increasing use of

representative charges.¹⁰

[23] On this analysis, there would be power under s 330(1) to amend the indictment in the present case because it involved two offences arising out of different acts which were charged in one count.

Was there power to amend under s 335 of the Crimes Act?

[24] Section 335 relevantly provides:

(1) If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment either as filed or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.

(2) If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make the amendment.

...

⁷ _{At 522.}

⁸ _Ibid.

⁹ _{R v Accused (CA423/90) [1991] 3 NZLR 513 (CA).}

¹⁰ Qiu v R [2007] NZSC 51, [2008] 1 NZLR 1 at [8] fn 1.

(7) In determining whether the accused has been misled or prejudiced in his defence, the Court that has to determine the question shall consider the contents of the depositions, as well as the other circumstances of the case.

(8) The propriety of making or refusing to make any such amendment shall be deemed a question for the Court, and the decision of the Court upon it may be reserved for the Court of Appeal, or may be brought on appeal before the Court of Appeal, in the same manner as any other decision on a point of law.

[25] Mr Jefferies relied on R v Harema and in particular, on the observation in that case that there was no inherent jurisdiction enabling the Court to add a new count to an indictment already preferred by way of amendment, unless possibly by consent.¹¹

Mr Jefferies also referred to R v Johnston and the statements there that whether a new and cumulative count, as opposed to an alternative count, may be added by amendment remains doubtful.¹²

[26] We consider the position as to the power to add a count which is additional or cumulative is as set out by Elias J in R v Bristow.¹³ After discussing the various cases, her Honour said this:

On the issue of jurisdiction I consider that the matter remains open, as was confirmed in Johnston. It seems to me that the preferable view is that s 335 does confer jurisdiction to add a count which is additional or cumulative. I prefer the approach taken by Woodhouse J and apparently preferred by McCarthy P that amendment to such a count is available. The real question which needs to be decided is whether there is prejudice to the accused.

[27] We note also that in R v Munro¹⁴ the Court dismissed an appeal where an amendment had been made during trial by deleting the original count (attempting to defeat the course of justice) and substituting two counts of attempting to influence by means of a bribe and by a threat. Both of the substituted counts arose out of the same incident or transaction on which the original count was based.

[28] The more difficult issue in terms of the applicability of s 335 is whether there is a variance between the proof and the charge. The proof in this context is the

¹¹ _{R v Harema [1971] NZLR 147 (CA) at 149.}

¹² _{R v Johnston [1974] 2 NZLR 660 (CA) at 663, 666 and 669.}

¹³ _{R v Bristow [1996] 2 NZLR 251 (HC) at 255.}

¹⁴ R v Munro [1971] NZLR 122 (CA).

evidence. As to what comprises a “variance”, in R v Bovey¹⁵ Turner J said that “variance” had its ordinary meaning ie a difference or discrepancy. This Court in Johnston summarised the effect of Bovey in these terms:¹⁶

... there will also be a variance if there is evidence before the Court, relating to the transaction referred to in the existing count or counts, which if accepted will support a different charge and at the same time will (or, perhaps, may) lead to an acquittal on an existing count.

[29] In our view it is consistent with the approach in Bovey and well within the ordinary meaning of “variance” to conclude that s 335 applied here. Essentially, the charge suggests one act but the evidence (that is, the proof) suggests separate transactions.

[30] On this basis, we consider there would have been power to amend the indictment under either s 330 or s 335.

Was the appellant prejudiced by the amendment?

[31] The real question is whether the appellant was prejudiced by the amendment and, in particular, by its timing.

[32] As to that, Mr Jefferies could not point to any questions that may have been asked in cross-examination or any difference in the way the appellant may have given his evidence if the counts had been split earlier. Rather, it came down to two submissions. First, because the Judge made the amendment, the jury may have taken that as an indication of guilt in relation to those counts. Second, defence counsel did not get the opportunity to address the jury on counts 5 and 6 as separate counts.

[33] The first concern can be shortly disposed of on the basis that it is speculative. The jury was directed to treat each count separately and obviously, because the appellant was acquitted on counts 1 and 2, have not just lumped everything together.

[34] The second point is more troubling because the amendment occurred so very late in the piece. The authorities indicate that the later such a change occurs the

more likely it is that a defendant will be prejudiced.¹⁷ We consider however that in this case there is no prejudice.

[35] It is plain from the Judge’s minute that he was concerned that the appellant was at risk of being convicted of count 5, even though he may have had some chance of an acquittal in relation to the kicking part of the incident on the basis of self- defence. The Judge put it in this way:

[4] I have [considered] [Mr Jefferies’] objection ... but have ruled that the inclusion of a new count is appropriate because it arises from what the [appellant] said in evidence and it also arises from what Mr Jefferies said in his address, namely that the kicking and slapping that is mentioned in count

6 and count 5 was because the complainant was acting in such a way that the

[appellant] was entitled to defend himself against that.

[5] While it is true that specifically, of course, count 6 was not in the indictment when counsel addressed, in effect the inclusion now of a fresh count 6 in my view does not create an unfairness for the accused. In fact in my view it is the opposite because the jury now gets to consider the allegations that were formerly in count 5 in a broken up fashion so that it can consider the [appellant’s] position properly and I think in justice to him.

It seems to us that the Judge was exercising the responsibility of the trial judge to intervene to avoid overly complex counts prejudicial to the defence as referred to by the Supreme Court in Mason v R.¹⁸

[36] Obviously, it would have been preferable if the amendment was made earlier. However, it seems that it was not until all of the evidence had been heard and closings presented that the potential risk became apparent. It is difficult to see then how the appellant can have been prejudiced.

[37] The remaining question is whether the Judge should have allowed counsel to re-address. We understand from Mr Jefferies that although he objected to the amendment he did not separately seek to re-address. Ultimately, we have concluded that the absence of the opportunity to re-address was not critical in this case. Three factors are relevant here.

[38] First, Mr Jefferies did not point to anything he did not say but would have said in terms of the defence or as to how the defence may have been re-cast. Secondly, neither counsel was given the opportunity to address so the matter was dealt with on an even handed basis at least to this extent. Finally, the Judge in summing up fairly and squarely put the defence case.

[39] It is worth saying a little more about the latter point because we do not consider the jury can have been in doubt as to the factual issues that had to be resolved, given the focus and detail in the summing up. In outlining the elements of counts 5 and 6, the Judge explained the defence to each of the counts. Then, when addressing the cases on each count he set out the allegation and the defence. For example, in terms of count 6, the Judge said:

[16] Count 6 is an allegation that the [appellant] kicked the complainant twice on her leg. The count 6 defence is that the [appellant] kicked the complainant once only and that that once only was in self-defence after she threw a glass at him and hit him with the whisky bottle and he was injured. I think the whisky bottle came first and the glass second is the [appellant’s] evidence.

[40] Further, in describing what was required in the context of considering whether the Crown had disproved self-defence beyond reasonable doubt, the Judge repeated what the appellant’s case was in terms of self-defence.

[41] In all the circumstances, we have concluded that there was power to amend the indictment and that the amendment has not prejudiced the appellant. This ground fails.

Section 101 of the Evidence Act

[42] Section 101 of the Evidence Act provides that if a jury wishes to put a question to a witness:

(1) ... (a) the jury must first inform the Judge of the question; and

(b) the Judge must determine—

(i) whether and how the question should be put to the witness; and

(ii) if the question is to be put to the witness, whether the parties may question the witness about matters raised by the question.

(2) If a question from the jury is put to a witness, then, subject to any determination made by the Judge under subsection (1)(b)(ii),—

(a) every party, other than the party who called the witness, may cross-examine the witness on any matter raised by the jury's question; and

(b) the party who called the witness may re-examine the witness.

[43] The appellant says the jury should have been advised by the Judge that they could ask questions during the trial in accordance with s 101. There was in fact no evidence before us as to what the Judge said on this topic because we did not have a copy of the Judge’s opening remarks. However, the Crown did not suggest the point had been addressed by the Judge and so we proceed on that basis.

[44] Mr Jefferies, in developing the submissions on behalf of the appellant on this aspect, relies on observations made by the Law Commission in its report Juries in Criminal Trials.¹⁹ The Commission noted that juries had the right to submit questions but that the right was seldom exercised because juries are often not aware of it. The Commission recommended that juries should be routinely advised of the right.²⁰ That recommendation reflected the findings of the Commission’s research into juries, where the Commission concluded there was some force to the argument juries need to be given more opportunity to ask questions during a trial.²¹

[45] On the other hand, the idea of juries questioning witnesses has been the subject of some cautionary comment. For example, in R v Parata²² this Court said:

[18] We make it clear that we consider it was most unwise for a Judge to encourage the jury to ask questions in the way the Judge did here. It is all too easy for irrelevant questions and questions which cannot properly be answered by a witness, or which counsel know should not be put to a witness, to be asked by a jury: See R v Barnes (1991) TLR 682; [1991] Crim LR 132. As has been said by this Court in a slightly different context:

¹⁹ _{Law Commission Juries in Criminal Trials (NZLC R69, 2001).}

²⁰ _{At [368].}

²¹ Law Commission Juries in Criminal Trials: A summary into the research findings (NZLC PP37,

_{1999) at [4.24].}

²² R v Parata (2001) 19 CRNZ 352 (CA).

In criminal jury trials especially it is probably the experience of most Judges that justice is more likely to be done by leaving their conduct to competent Crown and defence counsel: R v M (1991) 7 CRNZ 439 at 444.

[46] That caution is reflected in directions commonly given to the effect that jurors should not undertake their own investigation but rather decide the case on the evidence before them.

[47] Whether or not these sorts of concerns contributed to the form of s 101, we do not know. What is clear is that the earlier recommendation from the Commission has not been carried forward to s 101. As the wording of the section makes plain, the focus is on establishing a procedure should a jury ask that a question be put. While, as was the case prior to the enactment of the Act, juries can submit questions it is ultimately for the Judge to decide whether and how the question should be put. Further, unlike other sections of the Evidence Act which make particular directions

mandatory,²³ s 101 is silent on the need for the Judge to inform jurors that they may

submit questions.

[48] It may be that information is provided routinely about the ability to ask questions in the materials provided to juries by the Ministry of Justice. We had no evidence about that but the Law Commission in its research into juries did refer to the jury booklet as indicating the existence of the ability to ask questions.²⁴ That coincides with the experience of at least one of the members of the panel. Whatever the position, even though Judge Behrens did not mention the ability to ask questions in summing up, in the course of their deliberations the jury did in fact ask to see statements from a doctor and were told they were not part of the evidence.

[49] The legislative materials relating to s 101 are consistent with our view. In

1999 the Law Commission said of the draft section 101 (all but identical to the section as passed) that it “requires the judge to decide whether and how a jury question is to be put ... and if it is put, whether the parties may put questions about matters arising ...”.²⁵ Similarly, the Evidence Code and Commentary on the section

²³ _{See, for example, ss123 and 126.}

²⁴ _{Juries in Criminal Trials: A summary of the research findings at [4.11].}

²⁵ Law Commission Evidence: Reform of the Law (NZLC R 55, 1999) at [444].

states it “recognises the value of the jury, as judges of fact, being able to have its questions put to a witness ...”.²⁶ In addition, the explanatory note to the Evidence Bill 2005 describes what was then cl 97 as “regulat[ing] the manner in which juries may put a question to a witness”.²⁷

[50] Accordingly, we do not accept the Judge was required to advise the jury of their ability to submit questions. In any event, nothing is advanced to suggest how the omission could possibly give rise to a miscarriage. This ground of appeal has no merit.

New evidence

[51] The appellant seeks leave to admit an affidavit from Maxim Lemeshenko. The appellant says this evidence throws real doubt on the veracity of the complainant’s evidence on count 3.

[52] Mr Lemeshenko deposes that he was present in the lounge area on

7 December 2008 but did not witness any assault in the lounge area. He says he heard the appellant and the complainant arguing in the bedroom. Mr Lemeshenko also says that he did see the appellant and Ms Lashuk throwing each other’s clothing and possessions out of the window. On his account, Ms Lashuk left shortly after that.

[53] This Court in R v Bain said that:²⁸

[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh.

[54] Mr Lemeshenko’s affidavit is plainly not fresh evidence. There is nothing before us to indicate why this evidence with reasonable endeavour could not have

²⁶ _{Law Commission Evidence Code and Commentary (NZLC R55, 1999) at [C366].}

27. At [17]. See also Bruce Robertson (ed) Adams on Criminal Law – Evidence (online looseleaf ed, Brookers) at [EA101.01].

²⁸ R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA).

been called at trial. If Mr Lemeshenko was in the lounge of the flat at the time, the appellant obviously would have known that. Mr Lemeshenko told the police that the two men were friends although in his affidavit Mr Lemeshenko describes the appellant as an acquaintance with whom he got on well but did not develop a friendship where they kept in contact. In his affidavit, Mr Lemeshenko says that up until January 2009 his address was the same address as he gave the police when they interviewed him in connection with the alleged assault. There is nothing to indicate there were any problems in terms of his availability at the time.

[55] Mr Jefferies said the waters in this respect are muddied by the late disclosure of a police job sheet recording a discussion between a police officer and Mr Lemeshenko. However, the disclosure point has to be put in context. While it is accepted that disclosure of the one page job sheet was late, it was in fact disclosed on

15 April 2010 and the trial did not start until 26 April that year. Given the relationship between the two men, there is no reason why Mr Lemeshenko could not have been asked if he was prepared to give evidence or, if not, to seek to summons him. If the latter option meant more time was necessary, an adjournment of the trial could have been sought on that basis.

[56] As this Court noted in Bain, the rule that evidence which is not sufficiently fresh will not be admitted is not “immutable” because the “overriding criterion is always what course will best serve the interests of justice”.²⁹ Tipping J continued:

[22] ... The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[57] The proposed evidence in our view is not so cogent as to mean we should not insist that the fresh evidence criterion be met. The proposed new evidence would provide some corroboration of the appellant’s denial that he pushed Ms Lashuk into

²⁹ At [22].

the clothes rack but Mr Lemeshenko does confirm both that the two were arguing in the bedroom and that they threw each other’s possessions out of the window. The principal assault took place in the bedroom.

[58] The job sheet notes that Mr Lemeshenko confirms his friendship with the appellant and that he “would not give a statement against him”. Further, the job sheet recorded Mr Lemeshenko’s confirmation of the following:

• There was lots of verbal arguments between both of them but couldn’t remember anything physical.

• LEMESHENKO remembers an incident between the two in December last year or the year before.

• Following a verbal argument, SATYBALDIN pushed Marsha [Ms

Lashuk] out of their flat door in Webb Street.

• During this incident, couldn’t remember Marsha being hitting by

SATYBALDIN.

• Couldn’t remember SATYBALDIN being hit by Marsha. LEMESHENKO states that the night before all of them had been to a party

and he had stopped over and slept somewhere in SATYBALDIN’s and

Marsha’s flat.

[59] We decline to admit the affidavit because it is not sufficiently fresh.

Disposition

[60] For these reasons the application to admit new evidence is declined and the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent