Ireland v R [2011] NZCA 205 (23 May 2011)

Court of Appeal of New Zealand

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Ireland v R [2011] NZCA 205 (23 May 2011)

Last Updated: 2 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA681/2010 [2011] NZCA 205

BETWEEN ELIZABETH MARGARET IRELAND Appellant

AND THE QUEEN Respondent

Hearing: 17 May 2011

Court: Harrison, Simon France and French JJ

Counsel: R A B Barnsdale for Appellant B D Tantrum for Respondent

Judgment: 23 May 2011 at 10 am

JUDGMENT OF THE COURT

1. A conviction for common assault is substituted for the existing conviction of wounding with intent to injure.
2. The existing sentence of six months’ home detention is quashed. We substitute a sentence of 250 hours’ community work, and nine months’ supervision with a special condition as to alcohol counselling (see [21](b)).

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] Ms Ireland appeals her conviction following trial in the District Court at Hamilton on a charge of wounding with intent to injure.[1] The focus of the appeal is whether in summing up Judge Clark adequately instructed the jury on the elements of the offence as they arose in this case.

Facts

[2] Ms Ireland and the victim were both dancing on a small dance floor in a pub. They bumped, seemingly because Ms Ireland was somewhat intoxicated. Eventually weary of being jostled, the victim pushed Ms Ireland. Ms Ireland responded by coming back at the victim and swinging a round house punch.
[3] Ms Ireland had a beer glass in her hand at the time. It broke. The victim suffered a serious wound to her cheek requiring several stitches.
[4] In her statement Ms Ireland said she used the glass in self defence. However, other things she said raised a question about whether she was aware at all that the glass was in her hand.

Indictment

[5] In response to this uncertainty the Crown, somewhat unusually in our experience, laid three alternative charges, which we summarise:

• (a) wounded V with intent to cause her grievous bodily harm

Particular: intentional use of the glass

(b) wounded V with intent to injure

Particular: intentional use of the glass

(c) wounded V with intent to injure

Particular: non-intentional use of the glass.

[6] It was never disputed that Ms Ireland wounded the victim. There seems to have been some issue raised about how she might have done that, but the point is fanciful. Plainly the glass broke and caused the wound.
[7] It can be seen counts one and two charge the same conduct, but with different states of mind. The defence to these charges was that the Ms Ireland did not intentionally use the glass. She was unaware it was in her hand. The jury acquitted on these, meaning they at least had a doubt about the matter.
[8] Count three is the exact same charge as count two. However, it posits that Ms Ireland unintentionally used the glass. We presume that means that in her drunken state she was unaware she was holding it. The primary defence was self defence, although it was seemingly also disputed whether Ms Ireland had an intent to injure. The jury convicted, meaning self-defence was rejected.

Decision

[9] The appeal ground relates to whether the summing up adequately instructed the jury about count three. We are satisfied it did not, and consider the deficit flows from the indictment and an inadequately thought through prosecution case.
[10] It is surprising that the case proceeded with three alternative charges in relation to a single punch in a pub, albeit the victim suffered a wound. If the Crown was to pursue the option represented by count three, it needed from the outset to identify the basis for it. “Non-intentional use of the glass” is not really a particular – it just says what the Crown is not alleging. Yet that became the only description ever attached to count three. In itself it is an unhappy expression – “use” is a purposive term, whereas non-intentional conveys the opposite.
[11] What was never done was identification for the jury of the factors that it was said supported an inference of intent to injure, given that on this alternative charge the glass could not be one of them. More concerning from a safety of the verdict viewpoint is that the failure to identify the facts relied upon meant it was never clearly explained to the jury that in deciding upon intent to injure in count three, the jury could not use the glass as a basis for drawing the inference.
[12] Mr Tantrum relied upon the Judge’s jury handout, but in our view it exacerbates the problem. Omitting the directions on self-defence, the handout provided:

NOTE: On all issues the burden of proof beyond reasonable doubt lies on the Crown
COUNT 1:	Wounding with intent to cause grievous bodily harm
COUNT 2:	Wounding with intent to injure (in the alternative)
	Particulars for Count 1 and 2 “intentional use of the glass”
COUNT 3:	Wounding with intent to injure (in the alternative)
	Particulars for Count 3 “Non-intentional use of the glass”
Note:
“Wounding” means causing an injury involving the breaking of the skin, a cut or laceration of some kind. “Grievous bodily harm” means really serious hurt or harm. “Injure” means causing actual bodily harm, which need not be disabling or permanent but more than trifling.
Not in dispute: The accused Elizabeth Margaret Ireland wounded the complainant Rebecca Jane Mosen
QUESTIONS:
1.	Are you sure that when the accused wounded the complainant she deliberately used a glass?
	If the answer to question 1 is YES, go to question 2. If the answer to question 1 is NO, find the accused not guilty on both counts 1 and 2 and go to question 3.
2.	Are you sure that when the accused wounded the complainant she intended to cause grievous bodily harm?
	If the answer to question 2 is YES, go to questions 4 and 5. You do not then need to consider counts 2 and 3. If the answer to question 2 is NO, find the accused not guilty on count 1 and go to question 3.
3.	Are you sure that when the accused wounded the complainant, she intended to injure her?
	If the answer to question 3 is YES, go to questions 4 and 5. If the answer to question 3 is NO, find the accused not guilty on counts 2 and 3.

[13] The handout is correct as far as it goes. The problem however is that it treats the “intent to injure” element in counts two and three as the same inquiry. But the factual circumstances underlying each charge are very different:

• (a) for count two it is intentional use of the glass;
• (b) for count three it is unintentional use of the glass, where the jury must find intent to injure in the other conduct of the accused.

[14] It is theoretically possible that Ms Ireland may have intended to injure when she threw a punch. The jury could have been invited to look at the other conduct, namely how Ms Ireland approached the victim, anything that was said, the nature of the blow (excluding the glass), Ms Ireland’s drunken state, and her actions after the initial blow where she had to be restrained from launching another attack. It would, however, be a somewhat artificial exercise given the reality that she was holding a glass which actually caused the injury.
[15] The fact that none of this was explained to the jury leads us to the conclusion that the summing up on count three was deficient and the conviction cannot stand. We struggle to understand why the indictment added this unnecessary complication. We also view with some concern the fact that a relatively simple matter like this required a five day jury trial.

Resolution

[16] The appeal must be allowed. We raised with counsel the appropriate outcome if we reached this conclusion. It is plain that, once self-defence is discounted, Ms Ireland must be guilty of assault.
[17] We have concerns about a retrial on the wounding with intent to injure count. The jury hearing the evidence would be required to proceed on the basis that Ms Ireland did not intentionally use the glass. That is an unreasonable constraint given that a different conclusion is certainly open on the facts. It would also require the jury to assess the facts by first putting aside the object that actually caused the wounding. All in all we consider it would be a very artificial inquiry.
[18] Having heard from counsel in relation to these points, we are satisfied the correct course is to exercise our powers under s 386(2) of the Crimes Act 1961 and substitute a conviction for common assault under s 196 of the Act.
[19] We turn then to sentence. Ms Ireland was sentenced to six months’ home detention, but has been on bail since sentencing. The present sentence must be quashed. The maximum penalty is now one year imprisonment, down from 7 years’. A reduction in the existing sentence is plainly needed to reflect the lesser intent and the much lower maximum penalty.
[20] Ms Ireland is 25 years old. She is a single mother with two dependents, and until this incident had no previous convictions. She is open to attend counselling courses, and was assessed as being at a low risk of reoffending. The victim in the matter has coped well and does not wish to see a sentence that ruins Ms Ireland’s life.
[21] The assault caused serious albeit unintended consequences. We consider a punitive community-based sentence is appropriate. In agreement with the recommendation of the pre-sentence report we impose the following:

• (a) 250 hours’ community work;
• (b) nine months’ supervision with the standard conditions set out in s 49 of the Sentencing Act 2002, and a special condition that she attend drug and alcohol assessment, and complete any recommended treatment to the satisfaction of the probation officer and service provider.

Result

[22] In the result we:

• (a) convict Ms Ireland on a charge of common assault in substitution for a conviction of wounding with intent to injure pursuant to s 386(2) of the Crimes Act 1961;
• (b) quash Ms Ireland’s sentence of six months’ home detention;
• (c) substitute a sentence on the charge of common assault of 250 hours’ of community work and nine months’ supervision with a special condition as to alcohol counselling as set out in [21](b).
  

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Ireland DC Hamilton CRI-2009-099-8908, 17 September 2010.