[1] This is an appeal against conviction on one count of causing grievous bodily harm with intent, contrary to s 188(1) of the Crimes Act 1961. The appellant was convicted following a jury trial before Judge Duncan Harvey on that and another count (in respect of which he does not appeal).[1] The question is whether evidence that was not called at trial, in the form of an affidavit from Dr Damian Wojcik, renders the conviction unsafe.

The narrative

[2] There was an affray at the Schnappa Rock Cafe at Tutukaka on 6 March 2008, after a game-fishing competition. The appellant and the complainant were drinking at the bar. The atmosphere was friendly, but after some time the complainant and his friend baited the appellant, an American citizen, about a baseball cap he was wearing, which bore stars and stripes. The appellant was accused, apparently in jest, of being a redneck. The cap was pulled off and handed around, and some pushing and shoving ensued as the appellant sought to recover it, the complainant making it difficult for him. The appellant maintained that the complainant slapped him in the face, and the Judge accepted that at sentencing. He threw a small bottle of beer at the complainant, gashing the top of the complainant’s head. Someone punched the appellant, and he was escorted out of the bar. He was convicted on a separate charge of wounding the complainant with intent to injure him, which has not been appealed.
[3] Unwilling to let matters rest, the complainant followed the appellant out of the bar, followed a few seconds later by two associates. It was the appellant’s case at trial that he was attacked on the street by the complainant and two associates. The Judge rejected that account at sentencing.
[4] What was not in issue at trial was that the complainant became very angry and decided to take matters further, and that as the complainant approached him the appellant took a pocket knife from his pocket and opened it. The appellant also conceded in cross-examination that he stabbed the complainant as the two men stood facing one another, although he maintained that at the time of the incident he was merely attempting to do so and did not know whether he had succeeded. The two men wrestled then went to the ground, with the complainant on top, and there the appellant inflicted a number of stab wounds. The complainant suffered at least 16 stab wounds, in what the Crown characterised as a frenzied attack.
[5] The incident was witnessed by one of the complainant’s associates, Mr Johnston, who confirmed that the fighting outside the cafe began with the two men grappling one another while standing. He maintained that no one else was involved in the fight; all he did was to try to break it up.
[6] The men were separated, and the appellant was taken around the back of the bar. He was described by one witness as very incoherent, not totally with things, and by others as babbling or nervous. However, he was able to give an account of what happened and why he had stabbed the complainant.
[7] The appellant had some injuries, including a cut to his upper chest. At 2 am on 7 March 2008 he was seen by Dr Wojcik, the on-call police doctor. He took photographs of the appellant’s injuries, which numbered about 20 but for the most part were minor compared to those of the complainant. They included a possible fractured rib. The doctor did suggest X-rays to exclude a rib fracture and a finger fracture, but none were taken. He identified a sub-conjunctival haemorrhage (which he now considers a petechia, a small red or purple spot caused by bleeding) in the left eye and evidence of swelling below it, and a number of petechiae on the appellant’s back. The doctor suggested to the police that he thought the cut was self-inflicted. None of the injuries required urgent medical attention.

The trial

[8] The appellant raised self-defence at trial and gave evidence, saying that he acted in self-defence against three assailants and feared for his life. His trial counsel, Mr Watson, had read Dr Wojcik’s medical notes but chose not to contact him or call him. In an affidavit which he filed in this Court, he says that he knew that the doctor had suggested the cut was self-inflicted, and thought his evidence would have highlighted the relatively minor nature of the appellant’s injuries. Nor did he cross-examine a police witness about why the appellant was not taken to hospital for x-rays as he thought the witness would have denied it was necessary. Mr Watson did not object to photographs of the victim’s wounds and clothing, reasoning that the evidence was relevant and any objection unlikely to succeed.

The further evidence

[9] Dr Wojcik has since prepared a report and sworn an affidavit, at the request of Mr Rowan QC. The appellant seeks leave to adduce that affidavit evidence and has himself filed an affidavit. In addition, Mr Watson has filed an affidavit at the request of the Crown.
[10] Although Ms Bicknell opposed the admission of Dr Wojcik’s affidavit, contending the evidence is not fresh, we propose to receive it. The essential point on the appeal is that material and credible evidence was available which might have affected the verdict but was not put before the jury by trial counsel. In those circumstances we think it right to grant leave to file the further evidence.
[11] Dr Wojcik explains that he is not only a general practitioner but also for 15 years now the police medical officer for Whangarei. He was puzzled by the appellant’s petechiae. He now considers that the appellant’s injuries are consistent with him falling onto his back on the kerb and there suffering a number of injuries, including a chest compression injury causing a fracture and the petechiae, which are indicative of high venous blood pressure in that location. The petechiae in the eye had originally suggested manual strangulation but there were no corroborating injuries. The knife wound may be self-inflicted but could have happened before the complainant was stabbed and the knife bloodied. He bases that conclusion on the narrative suggested by Mr Rowan and the absence of visible blood on the appellant’s shirt at the site of the knife wound. Petechiae may develop in less than 30–45 seconds. The wounds to the complainant are consistent with the appellant stabbing him while lying on the ground with the complainant on top. He concludes that there is physical evidence supporting a claim that the appellant stabbed in self-defence to prevent traumatic asphyxia by chest compression. For the purposes of the appeal we will assume Dr Wojcik has sufficient expertise to tender this opinion.

The appeal

[12] The appeal was advanced on the basis of trial counsel error, by failing to call Dr Wojcik, or cross-examine the Detective who did not take the appellant to hospital for x-rays, by failing to challenge Crown witnesses about events at the cafe, and by failing to object to photographs of the complainant’s clothing and a blood trail at the scene. Alternatively, Mr Rowan contended that there was a miscarriage of justice because the evidence of Dr Wojcik is now available. In argument he highlighted the latter ground.
[13] Specifically, Mr Rowan contended that all of the stab wounds may have been inflicted when the appellant was being asphyxiated on the ground and was in fear of his life. He pointed to an absence of defensive wounds on the complainant, the nature and location of the stab wounds, and the appellant’s evidence that he was in a state of panic and fear.

Discussion

[14] We are not satisfied either that defence counsel erred or that the absence of Dr Wojcik’s evidence leads to a real risk of a miscarriage.[2] Like Mr Rowan, we find it convenient to focus on whether the doctor’s evidence might have made any difference to the outcome of the trial.
[15] As to that, the essential difficulty with Mr Rowan’s submission is two-fold. First, there was clear evidence that the appellant stabbed the complainant three times before the two men went to the ground, and so before any question of asphyxia could have arisen. The appellant himself admitted trying to stab the complainant at that time and then conceded that he must have done so. The absence of defence injuries was explained by the complainant’s evidence that he did not realise initially that he was being stabbed. Second, the appellant’s own account was not consistent with asphyxia. When asked at trial what he did as the complainant was on top of him, he explained that he was fearful that the complainant would get hold of the knife so kept stabbing up at him, thinking he would get off. At no point did he say he had difficulty breathing.
[16] The questions for the jury were whether the Crown had proved intent to inflict really serious harm, whether it had excluded the reasonable possibility that the appellant acted in self-defence, and whether it had proved that the force used was not reasonable in the circumstances as the appellant believed them to be. The difficulty for the appellant is that while the evidence of Dr Wojcik tends to confirm that his chest was compressed, and so is consistent with him being in fear of his life at that point, it does not explain why he took out the knife and stabbed the complainant three times initially. In the absence of any such explanation, it must follow that the Crown proved intent and thus excluded self-defence to that point, sufficient to justify a verdict of guilty. The evidence of the subsequent blows which were inflicted by the appellant when the complainant was on top of him on the ground would only have served to add to the strength of the Crown case.
[17] That being so, we do not need to address the question of counsel error, but we record our conclusion that there was none. On the material he had on disclosure, Mr Watson reasonably concluded that the doctor’s evidence did not assist, and was counterproductive in some respects. His evidence, like that of the police officer, would have tended to confirm that the appellant came out of the affray very much better off than the complainant. There was nothing in the notes to suggest that defence counsel ought to have briefed the doctor. Nor was counsel wrong to refrain from objecting to the admission of photographs, which were plainly admissible in circumstances where self-defence was in issue. There is nothing in the other, subsidiary points, which focused on failure to cross-examine sufficiently about events at the cafe; there was no doubt that the complainant went after the appellant and that his associates followed a few seconds later. The Judge accepted that the complainant was the initial aggressor in what followed. The question, as the Judge put it in sentencing, was whether the appellant’s use of the knife was justified.

Decision

[18] We admit the further evidence, but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Walthall DC Whangarei CRI-2008-088-1099, 27 August 2009.

[2] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [66]–[70].

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