Albert v R [2011] NZCA 526 (17 October 2011)

Last Updated: 27 October 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA141/2011 [2011] NZCA 526

BETWEEN RHEON ST. CLAIR ALBERT Appellant

AND THE QUEEN Respondent

Hearing: 4 October 2011

Court: Stevens, Ronald Young and Andrews JJ

Counsel: C W J Stevenson for Appellant A M Toohey for Respondent

Judgment: 17 October 2011 at 10.15 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The conviction on count 3 is quashed. We direct the entry of an acquittal on this count.

100. The conviction on count 2A is quashed. We direct a retrial.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] The appellant was convicted by a jury on two counts of wounding two women, Ms McGill and Ms Maaka with reckless disregard (counts 2A and 3 respectively).[1] At the same trial the appellant was acquitted on counts of wounding Mr Moananui with intent to cause grievous bodily harm (count 1) and wounding Ms McGill also with intent to cause grievous bodily harm (count 2).
[2] The appellant and members of the Mongrel Mob, including Mr Moananui had fallen out regarding the ownership of some puppies. On 6/7 August 2009 Mr Moananui and others came to the appellant’s house demanding property. The appellant punched one of the men. He was then attacked and severely beaten by a number of those present.
[3] After the attackers left, the appellant obtained a shotgun from a neighbour’s house. He loaded it and shot Mr Moananui whom he said was advancing on him. Ms McGill went to Mr Moananui’s assistance. The appellant then discharged the shotgun a second time. The appellant said that he was shooting over the heads of some men in the area as a warning shot. Ms McGill was hit in the back. Ms Maaka who had been in the park across the street from the confrontation was also hit by shotgun pellets.
[4] This appeal is based on two grounds:

• (a) The verdict on count 3 of wounding with reckless disregard relating to Ms Maaka was unreasonable.[2] The appellant says he was acquitted on count 1 of wounding with intent to cause grievous bodily harm, when he was acting in self defence. Given it was a reasonable possibility that Ms Maaka was also struck from the first discharge of the gun (when the jury had found the appellant’s actions justified as being in self defence), then the appellant should also have been acquitted on count 3.
• (b) Judge Fraser, the trial Judge, erred when directing the jury on the two wounding with reckless disregard counts resulting in a miscarriage of justice because:[3]
  • (i) he incorrectly categorised the appellant as effectively admitting to conscious risk taking; and
  • (ii) he failed to direct the jury on “reasonableness”.

[5] As to the appeal against sentence the appellant says his sentence was manifestly excessive in the circumstances.

Further facts

[6] It seems that the appellant and members of the Mongrel Mob including Mr Moananui had bred dogs and puppies had been born. The Mongrel Mob members were upset because they thought the appellant had drowned some puppies. Mr Moananui and other Mongrel Mob associates went to the appellant’s house on 7 August 2009. The complainants, Ms McGill and Ms Maaka, who were associated with Mongrel Mob members, were in a park across the road from the appellant’s house.
[7] The appellant and the Mongrel Mob members began talking about the dogs. The appellant then punched Mr Moananui in the neck and the appellant was then attacked. The attack caused a number of injuries including a cut to the appellant’s head. A neighbour intervened and the Mongrel Mob members left, although the appellant says they made threats as they left.
[8] The appellant then went to a neighbouring garage where he knew a sawn off shotgun was kept. He loaded the firearm and returned to the street outside his house. Mr Moananui was across the road from the appellant’s property. The appellant says that Mr Moananui then advanced on him. He believed Mr Moananui had something in his hand but could not identify what it was.
[9] The appellant then shot Mr Moananui. The appellant said he was aiming low at Mr Moananui’s legs. Mr Moananui was shot in the back and the scrotum. Ms McGill, who had been in the park, heard the gunshot and saw Mr Moananui fall. She ran over to him.
[10] Shortly afterwards the appellant fired another shot. As Ms McGill was helping Mr Moananui she was shot in the back. Although it was not clear at trial both the Crown and appellant now accept Ms McGill was wounded by the second shot. The appellant said that he saw other males in the area before his second shot and that he wanted to fire a warning shot. He said this shot had an upward trajectory. He had not aimed at anyone.
[11] Ms Maaka, who was further back behind Mr Moananui, found that she had been shot in the back at some point during the incident.

Unreasonable verdict

[12] This submission relates solely to count 3, wounding with reckless disregard for safety relating to Ms Maaka. The appellant says his acquittal on count 1 was because the Crown could not disprove self defence and this should inevitably have meant an acquittal on count 3.
[13] The Crown accepted that given the evidence at trial, it was not possible for the Crown to prove whether Ms Maaka had been hit on the first or second discharge of the shotgun. It was, therefore, a reasonable possibility that Ms Maaka was hit from the first discharge. The first shot had hit Mr Moananui which, the appellant says, was justified in self defence. In those circumstances the appellant’s actions, which resulted in Ms Maaka being shot, would also be justified on the grounds that he was acting in self defence.
[14] The Crown accepts that, if the appellant’s acquittal on count 1 was based on self defence, then the jury’s verdict on Ms Maaka’s wounding could not stand and would be unreasonable. They accept an acquittal on count 1, based on self defence, was reasonably open to the jury. However, the Crown say that it was also reasonably open for the jury to acquit on count 1 because they had not proved the appellant’s intention to cause grievous bodily harm when he shot Mr Moananui. Given that possibility, the verdict on count 3 would not be unreasonable.
[15] The appropriate approach to the appellant’s submission that the verdict was unreasonable is to ask whether it was reasonably open to the jury to acquit the appellant on count 1 because the Crown could not prove an intention to cause grievous bodily harm. If it was reasonably open for the jury to do so then it could not be established the acquittal on count 1 was justified as being in self defence.[4] It follows, therefore, the shooting of Ms Maaka could not be excused as inevitably the product of a justified shooting in self defence.
[16] We approach this ground of appeal taking a view of the evidence most favourable to the Crown submission that the jury could reasonably acquit based on lack of intent.
[17] Unsurprisingly the Crown in its final address to the jury at trial stressed that firing a shotgun at reasonably close range even at the lower part of a person’s body showed an intention to cause grievous bodily harm to Mr Moananui by the appellant. The Crown supported this submission at trial, by pointing out that some of the pellets were in Mr Moananui’s back and close to vital organs.
[18] The Judge in his summing up in relation to this aspect of the Crown case said:

[29] And that question is, are you sure that at the time Mr Albert caused the wound, the accused, Mr Albert, intended to cause serious bodily harm to Mr Moananui. The Crown says you should have little difficulty with this. If you fire a shotgun at someone, and this case at Mr Moananui, you must intend to cause really serious bodily harm. You will recall that Mr Albert accepted in his evidence that if you shoot someone at close range, you could expect to be seriously injured. If you answer yes to that question if you get that far, then you will find the accused, Mr Albert, guilty. If you answer no to that question, then you find him not guilty.

[19] As the trial Judge noted, in cross-examination the appellant in answer to the question “Well would you expect when you shoot someone from a close range in the legs for them to be serious injured” answered, “I could accept that”.
[20] Counsel for the appellant did not mention lack of intent to cause grievous bodily harm at all in his closing address.
[21] The Crown and the trial Judge’s remarks made it clear they thought the jury would have little difficulty in concluding the appellant had an intention to cause grievous bodily harm to Mr Moananui when he shot him. The appellant accepted deliberately shooting someone even in the legs would likely cause serious injury. In those circumstances the jury were entitled to infer the appellant intended to cause serious injury.
[22] We are satisfied that an acquittal on count 1 based on the lack of the requisite intent was not a verdict reasonably open to the jury on the facts of this case. This assessment is based on what are effectively the undisputed facts, the appellant’s discharge of a shotgun at relatively close range at the lower part of the complainant’s body intending to hit him. Serious injury comprising grievous bodily harm from such a shot seems inevitable and the intention of the shooter.
[23] In those circumstances, we do not think it could be reasonably maintained that the jury’s verdict could have been based on a Crown failure to prove intent. Given that conclusion, we are satisfied the appellant’s acquittal on count 1 was because the jury concluded he was acting in self defence.
[24] As we have noted it was a reasonable possibility that Ms Maaka was shot with a pellet when the appellant fired first hitting Mr Moananui. Given this wounding of Mr Moananui was justified as in self defence then the shooting of Ms Maaka might reasonably also have occurred when the appellant was acting in self defence.
[25] We are, therefore, satisfied the verdict in count 3 was unreasonable being a verdict not reasonably open to the jury. The conviction should be quashed. We direct that an acquittal be entered.[5]

Judge incorrectly categorised the appellant as admitting to conscious risk taking

[26] The appellant’s case was that the Judge’s directions to the jury, as to whether the appellant appreciated a risk to others when he fired the second shot, effectively told the jury the appellant had admitted this element of the crime in his evidence. Given our conclusion at [24] this ground of appeal has no direct relevance to count 3. However, understandably the Judge’s summing up of the elements of conscious risk taking applied to both counts 2A and 3.
[27] As to this the Judge said:

[36] In working your way through those, you may come to question 5, at page 14, and that is, are you sure that when the accused Mr Albert discharged the firearm he recognised there was a risk to the safety of others? If Ms McGill was struck with the first shot then Mr Albert acknowledged in his evidence that there was a risk that someone could be seriously injured, that is a risk to safety. If she was struck by the second shot, he also acknowledged the risk by saying he shot upwards, recognising that.

...

[39] You then move to question 5, if you get that far. Are you sure that when the accused, Mr Albert, discharged the firearm he recognised all the risks of the safety to others? I say that if Ms Maaka was injured by the first shot, then Mr Albert acknowledged the risk that someone could be seriously injured; ie, a risk to safety, and with the second shot he acknowledged the risk by again saying that he shot upwards. That’s in recognition of the risk.

(Emphasis added.)

[28] As we have noted ([10]), both parties now accept that Ms McGill must have been hit from the second shot.
[29] Although the Judge at [39] of his summing up is referring to Ms Maaka, there is also reference to the second shot. Given there remained uncertainty at trial about what shot had hit Ms McGill, the Judge’s comments about the first and second shots and the appreciation of risk of serious harm by the appellant relating to Ms Maaka had equal relevance to Ms McGill.
[30] In his cross-examination the appellant was asked:

Q: So there was always the risk of someone else being shot, wasn’t there?

A: Potentially.

[31] The Crown in their submissions categorised this evidence as a form of admission by the appellant of appreciation of risk. We do not consider it is an admission. The question and answer do not establish the appellant appreciated the risk of serious harm to others when he discharged the firearm, at the critical time. The appellant’s answer is an acknowledgment at the time of the question that he recognised there was a potential risk of someone being shot.
[32] The tenor of the Judge’s summing up[6] was that the accused’s evidence was effectively an admission that he appreciated the risk of serious harm when he fired the gun but he took the risk all the same.
[33] We do not consider that the Judge was correct to say to the jury that the appellant had acknowledged the risk when he shot upwards on the second occasion. This evidence of the appellant was equally explicable on the basis that he recognised a risk to others if he fired at body height, or lower, but no risk if he fired the gun “in an upward fashion”.
[34] The appellant’s evidence was that the second shot was a warning shot fired to the side of where Mr Moananui was and in the general direction of men coming down the road and in a “skywards fashion” or similar. The appellant said that, while he had seen four males after he discharged the gun on the first occasion, he had not seen anyone in the park. He said the second shot was a warning shot rather than any deliberate attempt to shoot anyone. Thus, the element of appreciation of risk to safety by the appellant at the time of that second shot was very much in play. It needed to be proved by the Crown beyond reasonable doubt.
[35] We acknowledge that the Judge in his directions to the jury told them to ignore any view that he might express about the facts if it did not accord with their own view. However, as we have noted, the summing up effectively directed the jury that the appellant had admitted in his evidence an element of the charge, appreciation of risk.
[36] We are satisfied that the appellant did not admit that when he fired the second shot he appreciated serious harm could be caused to others. We are satisfied, therefore, as a result of the remarks of the Judge on this occasion, a miscarriage of justice has occurred.
[37] The proper course, therefore, is to quash the conviction arising from count 2A and order a retrial.

Summing up point

[38] In his summing up the Judge directed the jury as to the legal ingredients of wounding with reckless disregard and how they related to the facts of the case by reference to the written material he had provided to the jury.
[39] The first part of the Judge’s directions is set out at [27], above. The Judge then said:

[37] The final question for that count if you get there is, are you sure that when the accused, Mr Albert, in other words knowing that there was a risk to the safety of others, discharged the firearm anyway? Well that is a matter for you, as is all of the evidence.

[40] We also reproduce the relevant parts of the Judge’s question trail:

5. Are you sure that when the accused, Mr Albert, discharged the firearm he recognised that there was a risk to the safety of others?

If “yes” go to Question 5.

If “no” then you will find the accused, Mr Albert, “not guilty”.

6. Are you sure that when the accused, Mr Albert, knowing that, discharged the firearm anyway?

If “yes” then you will find the accused “guilty”.

If “no” you will find the accused “not guilty”.

[41] Both counsel accepted that, in directing a jury with respect to a charge under s 188(2) and reckless disregard, the Judge must tell the jury that an accused is reckless where; he or she is aware of or appreciates the risk of causing serious injury or death by what he/she is doing; that he/she takes the risk anyway; and in the circumstances known to the person it was unreasonable to take the particular risk (an objective assessment).[7]
[42] The Crown accepted the Judge failed to direct the jury on the last (objective) element relating to reasonableness. The Judge did not tell the jury that they had to assess in the circumstances whether the Crown had proved it was unreasonable to take that risk.
[43] The Crown submit, however, that the failure by the Judge to direct the jury as required did not on the facts of this case amount to a miscarriage of justice. They submit that the jury had effectively already rejected objective reasonableness when they (as they must have) rejected self defence in relation to counts 2A and 3. (The appellant contended at trial he was acting in self defence when he fired both shots.)
[44] On each of these counts the Judge told the jury the Crown would have to disprove self defence. He gave the well established direction that the jury would need to determine what the circumstances were as the accused believed them to be; given these circumstances was the appellant defending himself; and finally was the force used reasonable in the circumstances?
[45] The Crown submission is that in rejecting self defence (given the guilty verdicts on these counts) the jury must have concluded that the Crown had proved the force used by the appellant in firing the gun was not reasonable in the circumstances. This conclusion, the Crown said, effectively involved the same assessment required of the jury under s 188(2). Whether in firing the shotgun in the particular circumstances it was reasonable of the appellant to take the risk of hitting others.
[46] The appellant submits, however, there was significant evidence on which the jury could have concluded irrespective of reasonableness that when the appellant fired the second shot as the men approached that he was not defending himself but wanting the men to stay away. Thus, the jury may have concluded that the Crown had disproved self defence because the Crown had proved the appellant was not defending himself when he fired the second shot. As a result the jury may not have needed to consider “reasonableness” at all when rejecting self defence.
[47] The appellant in evidence at trial said the second shot was intended as a warning shot. After Mr Moananui had been shot the appellant said Mr Moananui threatened to come back and kill him.
[48] After he had shot Mr Moananui the appellant said other men who were beyond Mr Moananui began advancing toward Mr Moananui but “they were apprehensive ...”. The appellant then said he discharged the gun a second time “in the general direction but in an upward fashion this time”. He said it was more of a warning shot than actually aiming at anybody. People then began to flee.
[49] The appellant says that this evidence makes it clear that the appellant did not claim he was defending himself, nor was he defending himself when he fired the second shot. No one was directly threatening him. He did not claim self defence but that he fired the second shot as a warning shot “in a skyward direction”.
[50] We consider the jury could reasonably have rejected self defence with regard to the wounding with reckless disregard charges on the basis that the Crown had proved the second shot was not fired in defence of the appellant, but as a warning to others in the area to keep away.
[51] As we have noted, the Crown accepted that their submission that the Judge’s failure to sum up on reasonableness “did not matter”, could only apply if the verdict of guilty on counts 2A and 3 was based on a rejection of self defence because the appellant’s action was not reasonable in the circumstances as he believed them to be.
[52] However, the appellant has satisfied us it was reasonably open to the jury to reject self defence on counts 2A and 3 because the appellant was not defending himself. In those circumstances the jury may not have considered reasonableness at all when assessing self defence in relation to these counts.
[53] It cannot, therefore, be said that inevitably the jury had rejected reasonableness as part of their consideration of self defence before they came to consider reasonableness in relation to counts 2A and 3.
[54] However, there is a further issue relating to reasonableness; whether on the facts of this case it was reasonably open to the jury to conclude, assessed objectively, that in the circumstances it was reasonable for the appellant to fire the warning shot. If such a conclusion could not reasonably be open to the jury then there would be no miscarriage of justice. We have serious doubts about whether it was reasonably open to the jury to reach such a conclusion in the circumstances. It is difficult to see how the accused could maintain he acted reasonably in relation to s 188(2) if the prosecution had proved lack of self defence in relation to the same charge. However, we do not need to express a firm view of this issue, given our conclusions on the appellant’s other grounds of appeal.

Result

[55] In summary, therefore:

• (a) We quash the appellant’s conviction on count 3. Our conclusion is that the verdict with respect to count 3 should follow the verdict with respect to count 1. In those circumstances the proper course is to enter an acquittal.
• (b) We quash count 2A. We consider a miscarriage of justice occurred when the effect of the Judge’s summing up was to wrongly direct the jury that the appellant had admitted conscious risk taking. We order a retrial.
• (c) We reach no final view as to the effect of the Judge’s failure to sum up on reasonableness relating to recklessness. The reasonableness of the appellant’s conduct is, however, likely to be an issue to be addressed at the retrial.

[56] Because of our conclusions on the conviction appeal there is no need for us to consider the sentence appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Crimes Act 1961, s 188(2).
[2] Crimes Act 1961, s 385(1)(a).
[3] Crimes Act 1961, s 385(1)(c).
[4] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37.
[5] Crimes Act 1961, s 385(2).
[6] At [36] and [39].
[7] R v Tipple CA217/05, 22 December 2005.