Owen v R [2011] NZCA 348 (29 July 2011)

Last Updated: 2 August 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA44/2011 [2011] NZCA 348

BETWEEN DAVID PAUL OWEN Appellant

AND THE QUEEN Respondent

Hearing: 19 July 2011

Court: Stevens, Potter and Ronald Young JJ

Counsel: C J Tennet for Appellant R J Collins for Respondent

Judgment: 29 July 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Potter J)

Introduction

[1] The appellant David Paul Owen was charged together with Lennox Stones that they intentionally injured Jamie Hughes on 4 October 2009 at Dunedin. Following trial by jury in the District Court at Dunedin before Judge Kellar, they were convicted of that charge. A verdict on an alternative charge of injuring in circumstances such that if death had been caused they would have been guilty of manslaughter was not required.
[2] The appellant now appeals his conviction.

Grounds of appeal

[3] Seven grounds of appeal were identified in the written submissions of Mr Tennet, counsel for the appellant. Two were abandoned in the course of oral submissions. They were that the verdict was unreasonable and not supported by the evidence and that the Judge failed to direct on lies giving rise to a miscarriage of justice. A further somewhat novel ground, which focussed on the presence in the indictment of the alternative charge, was that the prosecution overcharged. Mr Tennet did not press this ground but asked the Court to consider it in the event of a retrial.
[4] The remaining grounds of appeal were that there were substantial misdirections by the trial Judge amounting to a miscarriage of justice in respect of the following:

(1) parties;

(2) self defence;

(3) intention;

(4) inferences.

[5] Mr Tennet approached his oral submissions on the basis that the strongest grounds of appeal related to the claimed misdirections in relation to parties and self defence.

Factual background

[6] The facts were in a narrow compass. There was a brief physical altercation in which the appellant and Mr Stones were involved at about 1.30 a.m. on 4 October 2009 in Princes Street, Dunedin. Mr Stones and a female friend were having a heated discussion in the entranceway to the flat of a Mr Duncan Robertson. Mr Robertson wanted to gain access to his flat and they were blocking the way. There was some sort of physical confrontation between Mr Robertson and Mr Stones. Mr Hughes intervened and grabbed Mr Stones. The appellant, who was a friend of Mr Stones, then intervened. Punches were thrown. There was disputed evidence as to who threw punches at Mr Hughes and where they struck him. The evidence of the prosecution witnesses (Mr Hughes and Mr Robertson) was that there were multiple punches to the back of Mr Hughes’ head, and Mr Hughes also said around his right ear and to the side of his head. The appellant said he hit Mr Hughes in the face which damaged his hand and caused him quite a bit of pain. Mr Stones said he did not recall landing any punches on Mr Hughes.
[7] Much of what happened was not in dispute including:

• (a) The identity of the participants - the appellant, Mr Stones and Mr Hughes;
• (b) How events started and progressed to the point where Mr Hughes restrained Mr Stones;
• (c) That the appellant intervened in the altercation at this point;
• (d) That Mr Hughes was injured. The medical evidence was that the injuries included bruising under his right eye, about a 2mm superficial laceration to the left ear and a horizontal fracture of the left incisor tooth. Dr Annabel Trust who was working in the emergency department at Dunedin Hospital on 4 October 2009, expressed the opinion that Mr Hughes could suffer from post-concussion symptoms in the short term and that the injuries he received were consistent with his being hit in the face.

[8] At the heart of the case was therefore the manner of the appellant’s intervention and his intention when he intervened in the altercation.
[9] The Crown case was that, Mr Stones having been restrained by Mr Hughes, the appellant intervened with disproportionate violence and that the appellant and Mr Stones proceeded to assault Mr Hughes in a manner that was consistent with an intent to injure and precluded justifiable self defence.
[10] The appellant’s case was that he intervened in a manner that was proportionate to the threat he considered Mr Stones faced when restrained by Mr Hughes. He maintained that any force he used did not carry with it an intent to injure and that the Crown could not exclude self defence beyond reasonable doubt.

Parties

[11] The appellant and Mr Stones were charged as parties under s 66(1) of the Crimes Act 1961. In opening, counsel for the Crown put this aspect of the Crown case as follows:

... the accused are charged as parties because the Crown might not be able to say exactly who delivered what punch, exactly who caused what injury. So what the Crown says is that they assisted one another in causing these injuries and that really they had a common intention, that they both intended to cause injuries to Mr Hughes.

[12] In closing the Crown counsel said:

The Crown case in the very, very basic terms is that they both threw punches, both of them aiming those punches at the head and face region of Mr Hughes and by acting in concert or together, they caused the injuries that he suffered. Perhaps put another way, but for the assistance of one another, they wouldn’t have caused these injuries. The evidence about how many punches wasn’t entirely clear ... Essentially, the first count is that they intended to cause the injuries.

[13] Section 66 of the Crimes Act sets out the circumstances in which a person will be guilty of a criminal offence. This may arise either by participation as a principal offender under s 66(1)(a), or as a secondary offender by aiding, abetting, inciting, counselling or procuring any person to commit an offence under s 66(1)(b)-(d).
[14] In this case the Crown relied on s 66(1)(a), (b) and (c), namely that the appellant and his co-offender were guilty of the crime charged either as principal parties or because they aided or abetted the other in the commission of the offence.
[15] To be liable as a secondary party the Crown must prove:

• (a) knowledge by the offender of the essential matters that constitute the offence committed by the principal party; and
• (b) an intention or purpose to help or encourage the principal to do the acts that constitute the offence.

[16] Both the appellant and the Crown referred to the case of R v Witika where this Court said:[1]

... if the evidence does go far enough to show that both must have been criminally involved, it is not necessary for the precise part played by each to be identified. The essential question is whether the evidence goes to length of showing that one must have struck the blows and the other must have encouraged, or possibly that both struck some blows.

[17] The Crown also referred to the passage in Adams on Criminal Law explaining Witika:[2]

Although it is not necessary for the prosecution to identify the precise part played by each person, it must be proved that the offence was actually committed by one who is the principal party with the other person aiding or abetting etc as a secondary party, or that both were principal parties.

[18] Likewise in R v Renata this Court said:[3]

Where the principal offender cannot be identified it must be enough for the purposes of s 66(1) to prove that each individual accused must have been either the principal offender or a party in one of the other ways covered by that subsection.

[19] The Judge summed up to the jury on parties as follows:[4]

Now I just want to mention the issue of parties because they are tried jointly and as parties, and a person who is a party to a crime is equally as guilty as the person who actually commits an offence. That is a general proposition of law. In this case, the Crown says it may not be possible to know which of Mr Owen or Mr Stones caused what injury. The Crown says that Mr Owen and Mr Stones assisted each other to injure the complainant Mr Hughes. Now the law is that some positive or active steps must be taken by the defendants, in this case it is by their conduct, and some degree of active involvement is necessary. To be a party to an offence a person must intend that what he does assists the person who commits the crime. In this case, the Crown says it may not be possible to know who inflicted what injury but it is sufficient if the Crown satisfies you that each of the defendants must have been either a principal or a party.

[20] The appellant submitted that the Judge did not make it clear in his direction on parties that for the appellant to be guilty as a party the Crown had to prove both knowledge on his part that Mr Stones intended to injure Mr Hughes and intention to assist Mr Stones to do so.
[21] The Judge’s direction on parties was succinct. He did not refer to the requirement that a secondary party must have knowledge of the essential matters that constitute the offence committed by the principal offender. But the Crown case was not put on this basis. The Crown case was that both Mr Owen and Mr Stones had the requisite intent to injure Mr Hughes and that one of them (although it was uncertain which of them or whether both of them) actually caused injury to Mr Hughes.
[22] The only uncertainty in this respect was who threw what punch or punches that caused the injuries to Mr Hughes. There was no point in the Judge expanding the direction on parties to cover the range of possibilities for the roles of the appellant and Mr Stones that arose from the factual scenarios. To do so would have introduced unnecessary complication. The way the Crown put the case was that both the appellant and Mr Stones must be proved to have intent to injure. This was followed through in the Judge’s directions and in the question trail he provided to the jury.
[23] The jury were told or directed on no less than five occasions that to find the appellant guilty on Count 1, the charge of injuring with intent to injure, the Crown must prove beyond reasonable doubt that he had an intent to injure.
[24] This essential ingredient of Count 1 was advised to the jury in:

• (a) the Crown’s “Explanation of Charges” included in the jury book with the indictment;
• (b) the Crown’s opening address;[5]
• (c) the Crown’s closing address;[6]
• (d) the Judge’s summing up;[7]
• (e) the Judge’s question trail which he handed out to the jury and referred to in his summing up, in which the second question on Count 1 was: “Are you sure that at the moment Mr Owen injured Mr Hughes he intended to injure Mr Hughes?”

[25] It would have been a distraction and introduced undue complexity had the Judge in directing about parties introduced a further or different knowledge requirement, namely that Mr Owen had to have knowledge that Mr Stones had intent to injure. On the case put forward by the defence for Mr Owen such a scenario is hypothetical. Thus any technical deficiency in the parties direction in that respect could not give rise to a miscarriage of justice.
[26] Further, on his own admission, Mr Owen landed a serious punch to Mr Hughes’ face. He said in evidence:

... I just wacked, I just hit him and it hit his face, his tooth ... I believe I hit him in the mouth.

[27] Alternatively, on the evidence of the prosecution witnesses the appellant hit Mr Hughes on the back of the head and the ear.
[28] On either factual scenario there was abundant evidence upon which the jury could conclude (subject to the Crown excluding that Mr Owen was acting in self defence) that Mr Owen was guilty as a principal offender.
[29] As Mr Collins succinctly said in his written submissions:

On the Crown case ... the jury were entitled to convict the appellant if they were sure he either caused an injury to Mr Hughes, with the requisite intent, or assisted Mr Stones to cause an injury, with the requisite intent.

[30] This ground of appeal fails.

Self defence

[31] The appellant complains that the Judge’s directions on self defence were inadequate in four respects:

(1) The second question identified in R v Li[8]was not made clear: whether the appellant was acting in self defence had to be assessed from the appellant’s point of view. The appellant submitted: “The jury would have been left with the impression they could look at the test on an objective viewpoint”.

(2) The Judge merely put the competing contentions and did not direct the jury sufficiently on the onus of proof.

(3) The Judge failed to analyse or marshal the evidence to assist the jury.

(4) The Judge was obliged to point out that Mr Stones was falsely imprisoned. It was submitted “It may be one thing to launch into a random stranger, but it can be reasonable to attack a gigantic man who is wrongly imprisoning your friend”.

[32] We deal with each of these points in turn.

(1) Subjective test:

[33] The Judge directed the jury on self defence as follows:[9]

When you consider the issue of self defence, you first of all examine what were the circumstances as Mr Owen and/or Mr Stones believed them to be. So it is from their perspective. What did they believe them to be? And then secondly, in those circumstances, has the Crown proved beyond reasonable doubt that Mr Owen and/or Mr Stones was not acting in defence of themselves or another person. And if you get beyond that, you then ask, “Are you sure? Has the Crown proved beyond reasonable doubt that the force Mr Owen and/or Mr Stones used was not reasonable in the circumstances as each of the defendants believed them to be?”

[34] The Judge clearly stated the subjective test, referring to “... the circumstances as Mr Owen and/or Mr Stones believed them to be.” He emphasised this in the immediately following sentences: “So it is from their perspective. What did they believe them to be?” He then went on to the objective part of the test making it clear that the objective test was to be applied “in those circumstances”. In context that can only mean the circumstances as assessed from the appellant’s perspective, as the Judge had directed.
[35] In the question trail the Judge reiterated and clarified the directions he gave to the jury. The question he posed for the jury on self defence was: “Are you sure that Mr Owen was not acting in self defence?”

Consider:

1. The circumstances as Mr Owen believed them to be;

2. Whether Mr Owen was acting in defence of himself or another person;
3. Whether the force Mr Owen used was reasonable in those circumstances.

[36] That the words “in those circumstances” were not repeated in 2. cannot have left any room for doubt in the minds of the jury. The Judge had clearly directed the jury that questions 2 and 3 were to be assessed from the appellant’s perspective, and the reference in 3 to “in those circumstances” clearly refers back to “the circumstances as Mr Owen believed them to be” in 1.
[37] In closing to the jury, defence counsel referred to these three questions and took the jury through them, in relation to the first question outlining in some detail Mr Owen’s evidence about the circumstances as he believed them to be. Counsel then dealt with the second and third questions as posed by the Judge in the jury question trail. Counsel said to the jury: “I think the issues I have just raised in answering that first question also answer the second question”. In relation to the third question counsel said:

We have covered subjectively what Mr Owen believed the circumstances to be and in answering this third question, you need to mix those subjective answers with your objective assessment of whether what he then did was reasonable.

[38] The jury can have been left in no doubt that the circumstances were to be assessed from Mr Owen’s subjective perspective. This aspect of the self defence ground of appeal must fail.

(2) Onus of proof

[39] The Judge made it abundantly clear in his directions to the jury that it was for the Crown to exclude self defence beyond reasonable doubt. He said, referring to the issues sheet:[10]

... the third issue for you to consider is, “Are you sure that Mr Owen (and the same thing for Mr Stones) was not acting in self defence?” So it for the Crown to prove beyond reasonable doubt that Mr Owen and/or Mr Stones was not acting in defence of themselves or another person, and if the Crown has proved that then the Crown also has to prove that the force used was not reasonable in those circumstances. So it is for the Crown to prove that the defendants were not acting in self-defence in considering those matters.

[40] The question trail also clearly directed the jury that the onus of proof rests on the Crown and that the Crown must prove each of the elements of the count beyond reasonable doubt. Accordingly this submission must fail.[11]

(3) Judge’s failure to marshal evidence

[41] The Judge summarised the facts quite briefly. This was a short trial occupying two days before the Judge summed up to the jury. He explained to the jury he would provide an outline of some of the evidence in relation to the elements of the charges against Mr Owen and Mr Stones but did not propose to go over all the evidence as covered by counsel in their closing addresses. Having summarised the evidence he concluded:[12]

Overall, the defence is that the Crown has not proved that Mr Owen and/or Mr Stones were not acting in defence of themselves or each other but also that the force they used was reasonable in the circumstances that they believed them to be. Hence, the defence is that the Crown has not satisfied you beyond reasonable doubt that the force used was not reasonable in the circumstances.

[42] He then asked the jury to retire to consider their verdicts.
[43] The evidence was succinctly summarised by the Judge and the defence case was fairly put. There is nothing in this point.

(4) False imprisonment:

[44] The restraint of Mr Stones by Mr Hughes was part of the factual matrix for the jury to consider. In summarising the facts the Judge said to the jury:[13]

We know also that Mr Owen sees Mr Hughes restraining his friend Mr Stones, and that Mr Owen comes to Mr Stones’ aid.

[45] It was for the jury to assess what Mr Owen perceived the circumstances to be when he saw his friend being restrained by Mr Hughes and then to assess whether in those circumstances he acted in defence of Mr Stones and whether the force he used was reasonable.
[46] Whether or not Mr Hughes’ restraint of Mr Stones amounted in a legal sense to “false imprisonment” was irrelevant and a direction on this aspect would not have been appropriate. It would have moved the jury’s focus away from the essential issues, namely the circumstances as Mr Owen perceived them to be and whether his response to those circumstances was reasonable.
[47] The circumstances as Mr Owen perceived them to be were graphically put to the jury in closing by defence counsel with this question:

His friend is being restrained with his head against the concrete, was he supposed to just stand there?

[48] That was the context in which it was suggested the jury should assess Mr Owen’s perception of the circumstances. The issue of false imprisonment did not arise.
[49] Therefore, all aspects of this ground of appeal must fail.

Intention

[50] The appellant contends that the Judge “... did not deal with intention either adequately or at all”.
[51] In summing up the Judge directed the jury:[14]

So if you are sure that Mr Owen and/or Mr Stones injured Mr Hughes, then you ask yourself, “Are you sure that they or either of them did so with intent to injure Mr Hughes?” And then if you’re unsure about that, as the issue table shows, so if you find you’re unsure about that, then find Mr Owen and/or Mr Stones not guilty.

[52] In giving this direction to the jury the Judge referred to the issues sheet where the question on intention is clearly stated for the jury: “Are you sure that at the moment Mr Owen injured Mr Hughes he intended to injure Mr Hughes?”
[53] The direction was clear. Further, the jury were consistently directed to the essential element of intent to injure.[15] This ground of appeal has no merit.

Inferences

[54] The appellant submitted (although Mr Tennet conceded in the course of oral submissions it was not an appeal point) that the Judge’s direction on inferences was deficient because in directing the jury he did not use the word “fair”. Rather the Judge directed the jury that they could draw conclusions which are “... safe, logical and rational”. The direction the Judge gave the jury was as follows:[16]

A similar commonsense view is called for in deciding what inferences or conclusions you draw from evidence that you regard as reliable. Inferences are simply conclusions drawn from proven facts. Provided there is a factual basis and a logical process which leads to a conclusion from those facts, you are entitled to draw inferences. You need to look at the surrounding evidence that you think is reliable and ask yourself whether it is safe, logical and rational to draw that conclusion. It must be logical and rational. It must never be speculation or guesswork. If, in relation to any aspect of the case the evidence would support two conclusions of similar weight, then to choose between them would be to guess and you should not do that.

[55] In the context of this direction the use of the words “safe, logical and rational” rather than “fair, logical and reasonable” is a distinction without a difference. The Judge made it clear that the jury were not to guess or speculate and that inferences drawn from the evidence must be logical and rational. He correctly directed the jury not to choose between two inferences of similar weight. There was no need for the Judge to return to the onus of proof in this context, as the appellant submitted. Clear directions that the onus rested on the Crown from beginning to end had been given.
[56] In this case where intention was an essential element of the charge and the defence of self defence, the Judge could have further assisted the jury by explaining that intention has to be determined on the basis of inferences because we cannot see what is going on in someone’s mind. Also, by providing examples of inferences that were available from the evidence in relation to intent. For example, that if the jury accepted the evidence of Mr Owen that he punched Mr Hughes only once in the face, they were entitled to have regard to the nature of the injury suffered, when considering whether to infer an intent on Mr Owen’s part to injure Mr Hughes.
[57] However, the absence of a further explanation or examples that might have assisted the jury in relation to inferences does not constitute a ground for appeal.

Conclusion

[58] This was a straightforward trial concerning an incident which spanned at most several minutes. The evidence occupied about one and a half days. Comprehensive addresses from both the Crown and defence followed. The Judge then summed up briefly and succinctly, appropriately addressing the essential issues in the case. In addition he provided the jury with a comprehensive and clear question trail. None of the grounds of appeal advanced by the appellant either individually or in combination have merit.

Result

[59] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Witika (1991) 7 CRNZ 621 at 623.
[2] Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA66.11].
[3] R v Renata [1992] 2 NZLR 346 at 349.
[4] At [13].
[5] See above at [11].
[6] See above at [12].
[7] See above at [16].
[8] R v Li CA140/00, 27 June 2000.
[9] At [23].
[10] At [22].

[11] Mr Tennet submitted an additional memorandum after the hearing and drew to the Court’s attention the judgment of this Court in R v Kingi CA122/05, 10 August 2005. We have considered the judgment but it does not assist in this case.
[12] At [34].
[13] At [20].
[14] At [21].
[15] See above at [23]–[24].
[16] At [6].