Cleave v R [2011] NZCA 40 (1 March 2011)

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Cleave v R [2011] NZCA 40 (1 March 2011)

Last Updated: 10 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA127/2010 [2011] NZCA 40

BETWEEN STEVEN JOHN CLEAVE Appellant

AND THE QUEEN Respondent

Hearing: 9 February 2011

Court: Ellen France, Potter and Miller JJ

Counsel: M A Stevens for Appellant M E Ball for Respondent

Judgment: 1 March 2011 at 10.30 am

JUDGMENT OF THE COURT

A An extension of time for filing the appeal is granted.

B The appeal against conviction is dismissed.

100. The appeal against sentence is allowed. The sentence of four and a half years imprisonment is quashed. A sentence of three and a half years imprisonment is substituted.
     

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

[1] After a trial by jury the appellant, Steven Cleave, was convicted of one charge of wounding with intent to cause grievous bodily harm. He was sentenced on 25 January 2010 by Judge Farish, the trial judge, to a term of imprisonment of four and a half years.[1] The appellant appeals against conviction and sentence.
[2] The primary issue on the conviction appeal is whether the approach of trial counsel, Timothy Twomey, has resulted in a miscarriage of justice. On the sentence appeal, the focus is on the Judge’s assessment of the appellant’s culpability.

Facts

[3] We largely adopt the summary of the factual background set out in the written submissions filed by the Crown.
[4] The incident leading to the charge took place around midnight on 28 April 2009 at an address in Christchurch. The appellant was boarding at the address with his former partner, Susan Hodge. He was on bail at the time with a condition that he reside at this address.
[5] The complainant, Aaron Grey, his former partner, Shirley Alexander, and another man, Ryan, were also at the address having been invited there. The appellant was the only one of the group who was sober.
[6] Over the course of the evening, there were ongoing undertones between the appellant and Mr Grey which led the appellant to become increasingly agitated. Matters came to a head when a disagreement took place between the appellant and Ms Hodge about Mr Grey attempting to “muscle in” on his relationship with Ms Hodge. Mr Grey challenged the appellant about his behaviour towards Ms Hodge whereupon the appellant went inside and armed himself with a broom handle and a white handled boning knife and went back to Mr Grey.
[7] The appellant confronted Mr Grey and told him to “F... off and that he had had enough”. Mr Grey, seeing the broom handle but not the knife, said something along the lines of “You’re going to need more than that to harm me”. There was a scuffle in the course of which Mr Grey sustained three wounds, one to his left cheek and two to his scalp. The wound to the cheek and one of the scalp wounds required stitches, the other wound did not. The appellant received a small injury to his top lip.
[8] The appellant made a 111 call soon after the incident in which he said he had stabbed the complainant but said he did it because he was afraid.
[9] The appellant gave a brief statement to the police when they attended the scene in which said he had had a scuffle and that the other male had been hurt but he had not intentionally stabbed him. Police seized two knives from the appellant’s room. The first knife had a white handle and was observed to have blood on it. The appellant pointed this knife out to the police as the one he had used. The second knife had a black handle and no visible blood staining.
[10] At trial, the defence raised lack of intention and self-defence.

Grounds of appeal

[11] There have been some changes to the grounds of appeal but as the case on appeal was argued the grounds can be dealt with under the following topics:

(a) Whether the appellant was denied his right to elect to give evidence.

(b) The impact of the decision not to call the appellant;

(c) The approach to cross-examination of the complainant; and

(d) The impact of not having the black handled knife forensically tested.

[12] We deal with each in turn applying the principles in relation to appeals alleging trial counsel error set out in Sungsuwan v R. [2] In that case the Supreme Court said:[3]

In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will not be necessary. But whatever approach is taken, it must remain for an appellate Court to ensure justice where there is a real concern for the safety of the verdict as a result of the conduct of counsel even though, in the circumstances at the time, the approach may have met the objectively reasonable standard of competence.

Decision to elect not to give evidence

[13] The argument for the appellant is that he was denied his right to elect to give evidence primarily because his wish to give evidence was overridden by Mr Twomey. The appellant also relies on the impact of communication difficulties with Mr Twomey over the course of the trial.
[14] The high point of the appellant’s affidavit on this aspect is that he was pressured into agreeing not to give evidence. He says the pressure came from Mr Twomey’s response to him at a meeting during the trial. In particular, he says that Mr Twomey told him that his proposed evidence was “too bizarre” and that if the appellant did not sign the typed list of instructions and the handwritten notes indicating his decision to elect not to give evidence, Mr Twomey would walk out leaving the appellant on his own. In addition, the appellant refers to difficulties he had in communicating with Mr Twomey during the trial. He says Mr Twomey became “very frustrated” with him and yelled at him.
[15] In his affidavit, Mr Twomey described in some detail the nature of the various discussions and correspondence he had with the appellant. We summarise this information in an appendix attached to this judgment. For present purposes we need only note Mr Twomey’s evidence that, at a meeting he had with the appellant on 10 December 2009 after the close of the Crown case, the appellant expressed a wish to have his say. Mr Twomey says he advised him against that and the appellant ultimately accepted his advice. Mr Twomey also says that he was patient but firm with the appellant and did not yell at him.
[16] In cross-examination, Mr Twomey firmly rejected any suggestion of threatening behaviour on his part. He said he had sought to be persuasive not forceful. He said it would not have entered his mind to walk out on the appellant. Mr Twomey also rejected the suggestion put to him in cross-examination that he may have done something that could have given rise to a misunderstanding on the appellant’s part in this respect. Nor could he recall saying the appellant’s proposed evidence was “bizarre” although he accepted it was possible that he did. Certainly, he said he told the appellant that he “has to portray the case to a jury that a jury will accept what had happened”.
[17] We prefer Mr Twomey’s account that he did not threaten to walk out on the appellant and nor did he act in a way that might have led to a misunderstanding about his willingness to continue. No doubt Mr Twomey gave the appellant firm advice but we are satisfied that the appellant made a voluntary decision to accept that advice. Indeed, the appellant in his affidavit refers to the need to “let” Mr Twomey do things his way albeit because the appellant did not think he could run the trial himself. This is consistent with the view that, at the end of the Crown case, there were things the appellant would have liked to tell the jury but he chose to accept the advice of his counsel that he should not do so.
[18] We emphasise two matters in support of our conclusion that Mr Twomey’s account is accurate. First, it is just not plausible that Mr Twomey would threaten to walk away given his approach to the case up to that point. Mr Twomey appears to have approached the case in a considered way and with an awareness of his obligations to his client. It is hard to see that, even if frustrated, he would have effectively abandoned those obligations at the last minute.
[19] Secondly, Mr Twomey’s account is supported by the record. From the record, we can see that the appellant must have known it was his decision whether or not to call evidence. Mr Twomey told the appellant in September 2009 that he would have to give Mr Twomey instructions as to whether he wanted to give evidence. Further, Mr Twomey wrote to the appellant before trial advising him that a decision to give evidence was for him. In his letter of 20 October 2009, Mr Twomey said this:

Although [in an earlier letter] I also advised that pleading self defence will require you to give evidence, that is your decision to make and you need to give me written instructions as to whether or not you want to give evidence at your trial.

[20] In that letter, Mr Twomey went on to explain that an accused person is not required to give evidence and the directions the Judge would make in the situation where an accused did not give evidence. There is no suggestion that the appellant did not understand this advice.
[21] Further, the appellant not once but on two separate occasions signed documentation recording that after taking legal advice he had elected not to give evidence. There was an initial trial date in November which was not proceeded with so the matter had been raised prior to that date as well as later. The second of the documents to this effect appears to have been signed on 9 December 2009 prior to the commencement of trial.
[22] Nor do we accept that any difficulties experienced by the appellant in communicating with Mr Twomey over the course of the trial had any material impact. The record makes it plain that the appellant gave instructions to Mr Twomey and that the two were able to engage in an appropriate manner. To illustrate, as part of the evidence, we have a draft brief of the appellant’s proposed evidence prepared by Mr Twomey.[4] The appellant obviously considered an earlier draft of the brief provided to him by Mr Twomey because he had asked for amendments and Mr Twomey duly amended the draft.
[23] Mr Twomey accepts that the appellant became agitated and worried by the time of the trial. In sentencing, the Judge refers to advice from Mr Twomey that it “became increasingly difficult” to obtain logical instructions.[5] Matters got to the point where, in August 2009, Mr Twomey sought legal aid funding for the appellant to be assessed by a psychiatrist. Mr Twomey says he did not pursue this avenue after failing to get any response from the Legal Services Agency. However, Mr Twomey did not consider that things had got to the stage where the appellant was not able to give instructions and it is not suggested on appeal that there was an issue about fitness to stand trial.
[24] As it happens, we also have the benefit of a psychiatric report prepared for the Judge for sentencing. Dr Erik Monasterio, a consultant psychiatrist, concludes that the appellant did not present with evidence of a mental disorder as defined in the Mental Health (Compulsory Assessment and Treatment) Act 1992. Dr Monasterio went on to say:

Although the [appellant] provides a bizarre and unusual explanation for factors occurring at the time and after the alleged offences he does not provide a history of mental disorder as defined under Axis I of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition — TR [Test Revision]. ...

... the [appellant] experiences a paranoid personality structure which may account for the [appellant’s] unusual account of factors occurring in the aftermath of the alleged offences.

[25] The Judge’s impression at sentencing was that although the appellant may, by the time of sentence, have been becoming unwell there was no evidence of any mental disability at the time of the offending.[6]
[26] For these reasons, we conclude that the appellant was not denied his right to elect to give evidence.

The impact of the decision not to call the appellant

[27] Mrs Stevens argued that even if the appellant’s decision not to give evidence was voluntary, counsel erred in advising the appellant not to give evidence in support of his claim of self-defence and that this decision affected the outcome.
[28] The appellant and Mr Twomey provide differing accounts as to the instructions given by the appellant. On the appellant’s account, from the outset, he told Mr Twomey that the wound behind Mr Grey’s left ear was not created by the white handled knife but must have been done by someone else using the black handled knife. He also says that on two other occasions he told Mr Twomey about the black handled knife and they discussed the question of forensic testing of that knife, a topic to which we return later. He says that at a second meeting during the trial, he told Mr Twomey he wanted to get up and have his say “about the black handled knife and that I think the girls cut Aaron Grey further to get rid of” the appellant.
[29] Mr Twomey accepts that, in varying ways, the appellant had raised with him the possibility of others in the house having some involvement in the wounding of Mr Grey although the appellant did not, essentially, resile from the fact he had caused some of the wounds.[7] Again, the detail of the instructions as Mr Twomey recalls them is set out in the appendix. For these purposes though, what matters is Mr Twomey’s evidence that at the meeting on 10 December, the appellant’s concern was that the jury may not understand the white handled knife could not have caused the depth of the wound to Mr Grey’s head.
[30] Mr Twomey accepted in cross-examination that, ordinarily, when self-defence is run one would expect to call the defendant. However, for a variety of reasons, by the close of the Crown case he did not consider that the appellant’s case would be assisted by him giving evidence. Essentially, Mr Twomey considered that the evidence led through the Crown case was sufficient to raise reasonable doubt on the issue of the appellant’s intention to cause really serious harm and the backup defence of self-defence would not be assisted by the proposed evidence the appellant then wished to give. Mr Twomey also said that the evidence led had already established the superficial nature of the wounds.
[31] In terms of the state of the instructions given by the appellant, we accept Mr Twomey’s account. That account is reflected in the contemporaneous documentation. Mr Twomey accepted in cross-examination that he could not exclude the possibility there was some discussion of the black handled knife at the meeting on 10 December. But it seems highly unlikely that if that knife had assumed the importance now ascribed to it by the appellant Mr Twomey’s note would not have averted to it. The note, albeit brief, did record discussion about the white handled knife.
[32] Accordingly, the situation Mr Twomey was dealing with at the time, that is, after the close of the Crown case was that the evidence the appellant said he wanted to give did not relate to self-defence. Moreover, the proposed evidence would have advanced a description of what had happened which was inconsistent with the appellant’s written instructions to Mr Twomey. This proposed evidence, consistently with the appellant’s instructions, had not been put to any of the witnesses. The options then available to Mr Twomey were limited. He could have sought an adjournment although to what point is unclear. Alternatively, he could have sought the recall of various witnesses but that may have only served to undo the position reached. Either way, this proposed evidence would not have advanced the case for self-defence.
[33] Further, the matter has to be considered in context. Mr Twomey, correctly in our view, saw the absence of specific intent as his client’s best defence. We turn shortly to consider the criticism about Mr Twomey’s cross-examination which relates to that defence. Subject to that discussion, the evidence relevant to intent was before the jury. The Judge in summing up put the defence case in this way:

[39] ... If you are looking at all of the circumstances there are a series of circumstances that say he didn’t mean to cause him really serious harm. One, the knife was capable of causing really serious harm but he didn’t. He stopped far short of that. That’s what Mr Twomey says because the injuries luckily weren’t that serious.

[40] Secondly, his actions immediately after are not consistent. That is, that he rang the ambulance to get assistance for Mr Grey.

[41] Thirdly, that Miss Hodge was not frightened or concerned about Mr Cleave having the knife.

[42] Fourthly, that other persons had been acting aggressively and Mr Cleave was the only sober person there. That he was not acting in an irrational fashion.

[43] Fifthly, that he was afraid at the time and that he didn’t have the opportunity; that because the incident unfolded so quickly he didn’t have the opportunity to actually make a conscious decision to intend to cause Mr Grey really serious harm.

[34] Finally, the end result of the careful path Mr Twomey steered was that, although the appellant did not give evidence, an evidential foundation was laid for self-defence. Although the trial Judge in a discussion prior to the commencement of trial had expressed an initial view that she would not leave self-defence to the jury because the force used was not reasonable, self-defence was ultimately left to the jury.
[35] When all of those matters are taken into account, the reality is that if the appellant had gone into the witness box and given the proposed evidence, it would only have made matters worse.

The approach to cross-examination of the complainant

[36] Criticism is made of the cross-examination of the complainant. The criticism relates particularly to the examination of Mr Grey about the punch. The relevant passage from the evidence is as follows:

Q So you went towards him didn’t you?

A Yes I did.

17. And you said to him, “You’re going to need something a bit bigger than that”, didn’t you?
1. Yes.
17. And then you punched him in the mouth didn’t you?
1. No. If I did –
17. So Shirley was she outside with you?
1. Yes. And if I did hit him then how come I’m not arrested, eh, how come I didn’t get arrested?

...

17. Did you see anybody else punch Steven?
1. No.

[37] The appellant’s argument is that this was very important to his case because it developed the idea that Mr Grey’s actions were provocative of the appellant’s response. Mrs Stevens suggests in her written submissions further questions that should have been put on this topic. However, when those are analysed, the matters not directly addressed by Mr Twomey were that Mr Grey was taller and heavier built than the appellant and that the complainant was not asked to look at the photograph of the appellant showing him with a fat lip. Mrs Stevens properly accepted that these were matters of emphasis but maintained they were significant.
[38] We do not see them as anything more than a criticism of tactical decisions made by defence counsel. Mr Twomey had to make an assessment about how far to go in his questioning once Mr Grey had denied a punch. In making that assessment, the background was that Mr Grey had been unwilling to give evidence at depositions and it was not known if he would give evidence at trial up until quite late in the piece. In other words, he was a not a particularly willing witness.[8] In response to a question in evidence in chief, Mr Grey had already said he did not know how the appellant had hurt his lip. There were some risks in pressing too far given the appellant had instructed Mr Twomey that he had hidden the knife behind his back.
[39] The nature of the tactical decisions that had to be made was also apparent from the evidence of the two women in the house. Ms Hodge said that she did not see Mr Grey throw any punches or act aggressively towards the appellant. She said she saw Mr Grey raising his arms, she thought in self-defence, but not lashing out. Mr Twomey put to Ms Hodge the reason why she might not have seen anything, namely, that she was on the ground. Ms Alexander in cross-examination accepted there was pushing and shoving going backwards and forwards. She did not see Mr Grey punch the appellant but agreed that everything happened quickly and was “over in a flash”.
[40] The jury could presumably see the height and weight differences between the two men. In addition, Detective Bruce gave evidence of the appellant’s statement in which he said that Mr Grey had punched him first. She had also recorded that the appellant showed her his slightly fat upper lip.[9] Detective Bruce also said that she took two photographs of the appellant which showed some swelling on the upper lip. These photographs were produced as exhibits.
[41] Finally, there was evidence about the aggression directed to the appellant prior to the knifing incident and about his fear.
[42] The decision not to cross-examine further reflected a reasonable decision on Mr Twomey’s part and that decision did not have any material impact on the trial.

Testing of the black handled knife

[43] We reject the submission that in not having the black handled knife tested, Mr Twomey failed to follow instructions. The appellant does not put the matter quite so directly in his affidavit. Rather, he says he asked Mr Twomey if he had had the black handled knife tested and that Mr Twomey’s response was that he was going to use the police evidence not what the appellant said. In cross-examination, Mr Twomey rejected the suggestion he had said anything to this effect. We accept his evidence on this point. It is not plausible, given the care Mr Twomey took to ensure he had written instructions, that he would say he was not going to take any account of the appellant’s views on this topic.
[44] It seems much more likely from the record that the black handled knife did not take on the significance now given to it by the appellant over the course of the trial. The only issue then is whether, in any case, Mr Twomey should have ensured that the black handled knife was forensically examined and that evidence put before the jury. The argument is that if he had done so, this would have put a different complexion on the case.
[45] We do not see any merit in this point. Because the appellant in the 111 call and in his statements to the officers who attended the scene had accepted he had stabbed Mr Grey, both knives were produced as exhibits at trial and referred to in evidence, but neither was forensically examined. The jury were aware that the black handled knife had not been tested and that the appellant had not been asked about it. Mr Twomey asked one of the officers who had spoken with the appellant at the scene whether the officer was satisfied that the black handled knife was not involved. The officer he said he could not be sure but that it did not look like it contained any bloodlike material. The fact the police could not discount the possibility the black handled knife may have been used during the incident did not of course preclude the finding the appellant stabbed Mr Grey with the white handled knife.
[46] For these reasons, the appeal against conviction does not succeed. We turn then to the sentence appeal.

Appeal against sentence

[47] In taking a starting point of four and a half years imprisonment, the Judge identified two aggravating features, namely, the use of a lethal weapon (the knife) and an attack on the head.[10]
[48] There is no issue about the presence of these two aggravating features. It was appropriate to place this offending in band one in terms of R v Taueki.[11] However, although the Judge went on to identify various factors that mitigated the seriousness of the offending, those factors do not appear to have been taken into account in determining at what end of the band this offending fell.
[49] The factors identified by the Judge were as follows:

(a) The attack was preceded by “simmering disagreement” between the appellant and Mr Grey over the evening with the appellant becoming increasingly anxious and agitated;[12]

(b) Mr Grey stepped up to the appellant;

(c) The attack was brief and momentary; and

(d) The resulting injuries were not serious which suggested the appellant’s culpability may have been better reflected in a lesser charge.

[50] When the factors identified by the Judge are considered and matters looked at in the round, we consider the starting point of four and a half years imprisonment was manifestly excessive. While the Judge was right to reject self-defence we consider she was wrong not to recognise an element of provocation given the first and second factors identified above. Further, while the potential for serious harm and the resultant need for deterrence must be factored in, there was in fact no serious injury arising out of what was a very brief incident. To reflect the seriousness of the offending given those various factors, a starting point of three and a half years imprisonment was appropriate. There are no personal mitigating factors so the end sentence is three and a half years imprisonment.

Result

[51] For these reasons, an extension of time for filing the appeal is granted but the appeal against conviction is dismissed. The appeal against sentence is allowed. The sentence of four and a half years imprisonment is quashed. A sentence of three and a half years imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

APPENDIX

Date	Contact between the appellant and counsel	Instructions and source
19 May 2009	Telephone call from the appellant to Mr Twomey.	Appellant said he hit Mr Grey once and “the girls” had a hand in it. (File note of 19 May 2009.)
27 May 2009	Meeting.	Appellant did not enlarge on belief “the girls” had a hand in it. (Letter to appellant of 28 May 2009.)
3 June 2009	Telephone attendance.	Appellant said white handled knife could not have caused wound on Mr Grey’s face. The wound had been extended by the others. Appellant accepted he had caused wound on Mr Grey’s head. (File note of 3 June 2009.)
22 September 2009	Telephone attendance.	Appellant said there was only one knife and Susan Hodge had held his hand and forced his hand (holding the knife) into Mr Grey. (File note of 22 September 2009.)
20 October 2009	Letter to appellant explaining issues at trial and that decision to elect to give evidence is for appellant.
October 2009	Appellant provided with a draft brief of his evidence.
4 November 2009	Initial trial date.	Appellant records that after receiving legal advice he elects not to give evidence.
29 November 2009	Telephone discussion.
30 November 2009	Letter to appellant attaching redrafted brief of evidence.	Appellant said he did not mean to hurt Mr Grey with the knife but just wanted to protect himself.
9 December 2009	Trial commencement date – discussion.	Appellant rejects offer of pleading to lesser charge. Says the girls cut Mr Grey further. Records that after receiving legal advice he elects not to give evidence. (File Note of 9 December 2009.)

Date	Contact between the appellant and counsel	Instructions and source
10 December 2009	Discussion after close of Crown case.	Appellant says white handled knife could not have caused depth of wound. (File Note of 10 December 2009.)

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[1] R v Cleave DC Christchurch CRI-2009-009-6486, 25 January 2010.
[2] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
[3] At [70].
[4] The draft brief is what the appellant describes as the typed list of instructions.
[5] At [8].
[6] At [11].

[7] Mr Twomey says that at one point the appellant said the wound had been caused by the white handled knife being forced into Mr Grey’s head by Susan Hodge holding on to the appellant’s hand.
[8] Judge Farish at sentencing described him as a reluctant witness: at [6].
[9] That evidence was supported by Detective Constable Haigh’s account of these events.
[10] R v Cleave DC Christchurch CRI-2009-009-6486, 25 January 2010 at [16].
[11] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA).
[12] At [18].