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Court of Appeal of New Zealand |
Last Updated: 12 July 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
19 June 2013 |
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Court: |
Wild, Miller and MacKenzie JJ |
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Counsel: |
A J S Snell and M J Phelps for Appellant
S B Edwards for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Mr Joseph (aka Fox) appeals both against conviction and sentence.
[2] At trial in the District Court at Gisborne in February 2012 the jury found Mr Joseph guilty on one count of wounding with intent to cause grievous bodily harm (GBH) and a second count of injuring with intent to injure. He was acquitted on a further count of injuring with intent to injure.
[3] Judge D M Wilson QC subsequently sentenced Mr Joseph to six and a half years imprisonment.[1]
[4] Mr Joseph appeals against his two convictions on the ground that the Judge needed to – but did not – give the jury an identification warning, either in terms of s 126 of the Evidence Act 2006, or along the lines suggested by this Court in R v Turaki. [2] In the result, justice miscarried.
[5] The basis for Mr Joseph’s sentence appeal is that two things combined to produce a sentence that was manifestly excessive. The first was the Judge’s failure to reflect “excessive self-defence” in his sentencing starting point; the second too great an uplift for the injuring with intent to injure conviction.
Factual background
[6] This case concerns two successive incidents of street violence in Gisborne in the early hours of 20 February 2011.
The Stanley Rd wounding
[7] Mr Joseph was returning, with his partner Ms Campbell, from a reggae concert. While walking along Stanley Rd they became involved in an altercation. It involved another couple, Mr Grace and his partner Ms Mua. There was a suggestion a third man may also have been involved.
[8] While fighting with the other man or men, Mr Grace sustained a number of wounds to his chest, abdomen, lower back and arm. Surgery was required for one of the wounds, stitches for all of them.
[9] Mr Grace did not see the weapon used to inflict the wounds, indeed he did not immediately realise he had been wounded. The Crown alleged that Mr Joseph had smashed a glass bottle and used the neck of the bottle to inflict the wounds. When sentencing Mr Joseph the Judge said that he was not clear what had been used to inflict the wounds.
[10] While the men were fighting, so also were Ms Campbell and Ms Mua.
The Childers Rd injuring
[11] After Mr Grace had collapsed on the road bleeding, Mr Joseph and Ms Campbell left the scene. They went on down Stanley Rd and turned left into Childers Rd. They were pursued by Ms Mua and her cousin Ms Turner. Ms Mua was yelling at Mr Joseph – remonstrating with him for stabbing Mr Grace.
[12] The Crown alleged that Mr Joseph attacked Ms Mua in Childers Rd, punching her about 10 times in the head with a closed fist until she fell to the ground. He continued to punch and kick her on the ground. The Crown case had Ms Campbell then joining in the attack, kicking Ms Mua while she lay on the ground. It was on the count of injuring Ms Mua with intent to injure her that the jury found both Mr Joseph and Ms Campbell not guilty.
[13] When Ms Turner attempted to pull Mr Joseph away from Ms Mua, Mr Joseph turned on Ms Turner, repeatedly punching her in the head with a closed fist until she also fell to the ground. He then punched and kicked her on the ground, before picking her up by the hair and holding her off the ground while he continued to punch her in the head. The jury found Mr Joseph and Ms Campbell guilty of injuring Ms Turner with intent to injure her, Ms Campbell presumably on the basis that she was a party to Mr Joseph’s attack.
The Stanley Rd wounding – the evidence describing the person who did it
[14] Two initial points. First, when interviewed by the police on 17 March 2011 (about a month after the incidents), Mr Joseph admitted he was involved in the fight in Stanley Rd in which Mr Grace was wounded, but denied he had done the wounding. Similarly, he admitted he was involved in the incident in Childers Rd in which Ms Turner was injured, but denied injuring her. Second, none of the Crown witnesses identified Mr Joseph as the person who wounded Mr Grace or injured Ms Turner. “Visual identification evidence” was thus not a feature of Mr Joseph’s trial.[3] None was given and none was needed, because Mr Joseph admitted he was at the scene both of the Stanley Rd wounding and the Childers Rd injuring.
[15] When interviewed by the police on 17 March 2011, Mr Joseph initially said he was wearing a black and white native T-shirt with a wheku face on it, a rasta flag around his neck, and black jeans. At the end of the interview Mr Joseph was asked again, and more specifically, about the clothing he was wearing at the time of the two incidents. He then agreed that he had put on, over the top of his native T-shirt, a blue and white basketball singlet with a hoodie and numbers on it. He said he had done that “halfway down the road ‘cos I was cold”.
[16] Mr Grace described being attacked by two people in Stanley Rd. He initially thought they were both men, but when the “hoodie” came off one of them he realised that person was a woman. Mr Grace was cross-examined about the statement he had made to the police on 23 February 2011 (three days after the incident). He accepted that he had stated then that he had been attacked by two men and one woman. He was taken through the descriptions he had given of those three people. He agreed he had told the police “the first guy who started punching me, he was wearing a puffy jacket. It was a blue baseball or basketball one and jeans. He had black tidy hair. It was styled. It was about two inches long. He was Māori and looked about 30something ... He had white writing on the jacket. I’m not sure what it said. He had dark skin and scarring or acne on his face”. He put the man’s height at a little under six foot tall – about three or four inches taller than Mr Grace who was five foot seven.
[17] When it was put to Mr Grace in cross-examination that three people had attacked him he said “I’m not sure. I know there was two” and “like I said I only seen two across the road”.
[18] Ms Mua said three people had attacked Mr Grace, she initially thought it was “three guys”. When she followed two of them after the stabbing she realised one of the people was a female.
[19] She described hearing a bottle being smashed and seeing one of the people holding the neck end of the bottle in his right hand and using it in a “punching motion sort of thing” on Mr Grace. Only later did she realise Mr Grace had been stabbed. She was not able to describe the man she saw wielding the bottle neck.
[20] There was evidence about the Stanley Rd wounding from two independent witnesses. One, a young man also walking down Stanley Rd on his way home, said that two males and two females were involved in the fight. He said that the man who was not wounded was Māori, a bit bigger, and he thought may have had a tattoo on his forehead. Having refreshed his memory from a statement he made to the police (the date of this was not given in evidence), he said that this man was wearing a blue basketball singlet, with the name of a team and a number on it. He could not remember either the name or the number.
[21] This first independent witness was cross-examined about his statement to the police that he had seen “a guy chasing after” the man and the woman who ran off further up Stanley Rd following the wounding. He could not give any description of this man. Re-examination ended with the following exchange about this man who chased the couple up the road:
- Did that person have anything to do with the fight on the road?
- No, he wasn’t involved in any of the fighting, no.
[22] The second independent witness was a resident who was woken by the yelling and screaming from the street. He first saw two girls fighting and then two males became involved, but he said “there was about 10 people sort of milling around the four”. He was not able to describe either of the males who were fighting.
The Childers Rd injuring – the evidence describing the person who did it
[23] As noted in [14] above, in his videotaped interview with the police, Mr Joseph acknowledged that he and Ms Campbell had been involved in an altercation with two women in Childers Rd. On his account these two women had started the altercation. He explained one of them “pulled on my rat’s tail (he indicated his hair) and stuff like that, pulling me back, saying something about um, her man’s been stabbed and stuff like [4]hat”.4 Asked how the incident ended Mr Joseph said “Ah, they were lying on the ground, she was still yelling ... she ran onto the road and stopped cars and shit and we were yelling out “help”[5]...”.5
[24] Ms Mua described pursuing two of the three people who had attacked Mr Grace in Stanley Rd and catching up to them on Childers Rd. There was this exchange:[6]
- How did you know that the two that you followed were involved in what happened with Hayden?
- Because they were wearing exactly the same clothing, exactly the same clothing.
And:[7]
[25] In cross-examination Ms Mua agreed that she had told the police shortly after the incidents that the person she had seen wielding the bottle had been wearing a Bob Marley rasta coloured T-shirt – a black T-shirt with rasta colours in a square on the front.
[26] The key evidence about the Childers Rd injuring came from a resident, a lady who was just going to bed but heard yelling on the street and went outside to see what was happening. She described seeing a man hitting a woman. She said “It was quite horrific, so I yelled out “leave her alone”.” She then ran inside and rang the police. The transcript of that 111 call was in evidence, including these excerpts:
Op This is the Police where is your emergency.
Caller Um Childers Road, Gisborne.
Op Okay what’s happening there.
Caller Um these guys are just walking past my place and they’ve bashed somebody down the road.
Op Alright.
Caller And the guy’s wearing um ... a hoody with something written on it “01” and they’re heading up towards Elgin.
...
Op Heading okay. How many males were involved?
Caller Um well the one that did the bashing was a, guy and a girl it looked like.
...
Op Are you, are you able to give me that, those descriptions of that guy again and the ...
Caller Yeah he had a ...
Op ???
Caller he had a hoody on, a black sleeveless hoody.
Op Okay.
Caller And it had white writing on it. And it was some, some writing up the top and it had “01” I think.
...
The Judge’s approach in summing up
[27] Judge Wilson gave the jury typical general directions about witness credibility and reliability.[8] In doing that he suggested it was a case where the jury “might think that the unbiased observers are particularly helpful”.[9] He also asked the jury to be aware of the dynamic that some of the witnesses were involved in the street fights while others were only observers. Some of those observers were people who had been woken by the yelling and gave evidence about what they then saw out the window of their home or observed when they went out onto the street.[10]
[28] Later in his summing up the Judge summarised what he considered was the most important evidence for the jury to consider in deciding whether the Crown had proved its case against Mr Joseph and Ms Campbell. The evidence the Judge summarised involved the descriptions witnesses gave of the assailants in the two incidents, in particular their ethnicity, their physical features, their clothing and so on. The Judge also summarised what Mr Joseph and Ms Campbell had said in the course of their videotaped interviews with the police. In the course of his summary, the Judge said this:
[33] Just remember ladies and gentlemen, you are dealing with people giving evidence about stress situations like these people were in; that it is like that – it is hard, it is difficult for them. But if you do not lapse in to the feeling of sympathy that you might have, you have still got to coldly and clinically analyse that evidence to decide whether you should accept it or not or to the extent to which you should accept it.
The law
The Evidence Act 2006
[29] Visual identification evidence is defined in s 4 of the Act. As the definition applies to this appeal, it is evidence by a witness that Mr Joseph was at or near the scene of the Stanley Rd wounding and/or the Childers Rd injuring. Its admissibility in evidence in a criminal proceeding is controlled by s 45 of the Act. Section 126 requires a judicial warning about identification evidence where the prosecution case “depends wholly or substantially on the correctness of one or more visual ... identifications of the defendant ...”. The section sets minimum requirements for the warning, without stipulating particular wording.
[30] Sections 4, 45 and 126 relate to evidence identifying a defendant as at or near the crime scene or one of the crime scenes. The words we have emphasised are the critical words. The three sections apply when a witness identifies the defendant, or a defendant, from a photograph montage: for instance if a witness were to say “the man in photograph 4 is the one I saw stomping on the head of the woman lying on the footpath”.
[31] None of the witnesses in Mr Joseph’s trial gave visual identification evidence. None of them was able to identify Mr Joseph as one of the people at the scene of the Stanley Rd wounding, let alone identify him as the person who wounded Mr Grace. The position was the same for the Childers Rd injuring. Accordingly, s 126 did not apply and the Judge was not required to give a warning to the jury in terms of that section. Mr Phelps ultimately accepted this, submitting instead that a warning “as identified in R v Turaki in respect of observation and resemblance evidence” was required.[11] We revert at [42] to Mr Phelps’ submission.
[32] In R v Turaki this Court distinguished visual identification evidence from observation evidence, describing the latter as evidence about a defendant’s alleged participation in the offence. The Court said:[12]
... Observation evidence differs from identification evidence, because it is not the presence of the offender at the scene of the offence that is in dispute, but rather his ... role in the offending.
[33] The Court in Turaki stated that s 126 had no application where the defendant accepted he was at the scene of the offending, but denied he was the offender.[13]
[34] None of the witnesses in Mr Joseph’s trial gave observation evidence either. As none of them was able to identify Mr Joseph, none could describe Mr Joseph’s role in the offending.
[35] The evidence given in Mr Joseph’s trial was description evidence, a species of resemblance evidence. Of this type of evidence, this Court in Turaki said this:
Resemblance evidence
[94] A distinction must also be drawn between “visual identification evidence” and resemblance evidence. Resemblance evidence is a form of circumstantial evidence and refers to evidence that a person shares certain features or attributes in common with the accused. Description evidence, by which an eyewitness describes the physical characteristics of an individual involved in an offence, thus falls within the scope of resemblance evidence. Section 126 has no application to description or resemblance evidence, although again it may be appropriate for the judge to direct the jury on some of the matters set out above at [90]—[91].
[36] In R v Peato[14] this Court differed from the view expressed in Turaki about the application of s 126 to observation evidence. It saw no logical distinction between evidence identifying the defendant as present at the crime scene, and evidence identifying which of several possible attackers wielded the weapon which injured the victim.[15] It read the s 4 definition as encompassing evidence identifying the defendant as the perpetrator of a crime in a case where the defendant admitted being at the crime scene but denied committing the crime. The Court took the view such “observation” evidence will engage s 45, and also s 126 if the observation evidence is important to the Crown case.[16]
[37] The Court in Peato summarised its view in this paragraph:
[43] We consider that s 126 may be interpreted as referring to all evidence relating to the identification of a person, regardless of whether that evidence is “visual identification evidence” within s 4. In particular, s 126 may include observation evidence, being evidence identifying the defendant as the person who committed the offence by doing a particular act. To restrict the need for a warning strictly to “visual identification evidence” as interpreted in Turaki would undermine the purpose of s 126 which is to ensure that juries are aware of the well recognised reliability problems with eye-witness evidence as to identification.
[38] In Deo v R[17] a conviction was unsuccessfully challenged on the basis that the Judge had failed to give a s 126 warning about the evidence of a witness who had “described the driver of the van [involved in the offending] as best he could”.[18] The witness had described the driver variously as a “Fijian/Islander” and a “Fijian Indian”. This Court categorised that as description or resemblance evidence which was circumstantial evidence of identification rather than direct visual identification evidence. After referring to the difference of views expressed in Turaki and Peato, the Court in Deo observed:[19]
However, nothing in Peato suggests that the Court did not accept the distinction between visual identification and resemblance evidence, or what the Court said in Turaki about that.
[39] We agree with Turaki and Deo that s 126 does not apply to description evidence. So it does not apply here. The reasons are twofold. First, and at a fundamental level, a warning to a jury is only necessary where, on the evidence, the possibility exists that a witness may have mistaken one person for another.[20] The possibility of that mistake does not exist where there is only description evidence.
[40] Secondly, if no witness has identified the defendant, then a s 126 warning to the jury about relying on the correctness of the identification of the defendant is not needed, and is inappropriate. The jury would be confused and would wonder what the Judge was talking about.
[41] In the passage cited in [35] above from Turaki, this Court observed that a direction to the jury about description evidence may be appropriate, even though s 126 has no application. The Court suggested the direction could cover, as appropriate to the particular case, the factors mentioned both in the well known case R [21] Turnbull,21 and by the Law Commission in its report on what is now the Eviden[22] Act 2006.22 Those factors included:
- (a) things affecting the witness’s ability to observe and thus describe, for example distance, lighting and whether the witness was in a stressful situation;
- (b) factors particular to the witness, for example poor eyesight or bias;
- (c) any difference in race or ethnicity between the witness and the person observed affecting the reliability of the description; and
- (d) the time lapse between the observation and the evidence.
[42] Returning to Mr Phelps’ submission, the following were the circumstances of the “identification” evidence he submitted required the Judge to give the jury a warning or direction in Mr Joseph’s trial:
(i) None of the witnesses knew [Mr Joseph] prior to the incident;
(ii) The incident happened at 1:28am in the morning of 20 February 2011 under cover of darkness;
(iii) Alcohol had been consumed by a number of the witnesses;
(iv) The incident began and ended very quickly and might be described as a stressful situation;
(v) There were multiple participants in the fighting (both male and female);
(vi) There were multiple (and conflicting) descriptions of the participants;
(vii) There were multiple (and conflicting) descriptions of the clothing worn by the participants; and
(viii) There were multiple (and conflicting) descriptions of the actions of the participants.
Consideration and decision
[43] The jury knew about each one of those circumstances. For example, they were told both incidents occurred at about 1.30 am when it was dark. The first six photographs in their photograph booklet were of the Stanley Rd crime scene, taken shortly after the incident when it was still dark. They heard a lot of evidence about the extent to which witnesses were affected by alcohol or by drugs. Over two days they heard the “multiple (and conflicting)” descriptions Mr Phelps refers to. Thus, the direction Mr Phelps urged should have been given would have been about matters that were patent to the jury. For that reason the jury may not have found it helpful. We do not consider it was required here.
[44] By contrast, a jury is unlikely to know about the number of cases in which a mistaken visual identification resulted in a miscarriage of justice, necessitating the steps taken, first by the courts and then by the Legislature, to prevent such miscarriages occurring. That background is mentioned in Turnbull,[23] Peato[24] and also in Deo. In the last of those cases this Court referred to the Supreme Court’s judgment in Harney v Police where the Court observed:[25]
... As defence counsel often say to juries, there have been famous miscarriages of justice arising from misidentification by an honest, and therefore apparently believable, eyewitness.
[45] What might have been more helpful to the jury here was a more focused analysis by the Judge in summing up of the description evidence that, on the one hand, pointed to Mr Joseph as the person who had wounded Mr Grace and then injured Ms Turner and, on the other hand, pointed away from Mr Joseph. However, the directions to the jury were a matter for the Judge, and did not involve any misdirection.
[46] On our analysis these are the points that emerge from that evidence:
- Mr Grace (although he was unsure) and Ms Mua both thought two men had attacked Mr Grace. But both were involved in the fray. The two independent witnesses, neither involved in the fighting, both observed only one man fighting Mr Grace.
- Mr Grace and one of the independent witnesses described the clothing worn by the man (on Mr Grace’s account, one of the two men) fighting Mr Grace as a blue basketball hooded singlet with writing and a number on it. Ms Mua had a recollection of the assailants wearing rasta type clothing. Mr Joseph admitted he was wearing a blue and white basketball singlet with a hoodie and numbers on it.
- Mr Grace and one of the independent witnesses also described the man (or in Mr Grace’s case one of the two men) fighting Mr Grace as Māori, with dark hair. The independent witness also thought he had a tattoo on his forehead.
- Ms Mua was adamant that the two people who set upon her and Ms Turner in Childers Rd were two of the people in the Stanley Rd wounding incident. In any event, Mr Joseph admitted that.
- The independent witness to the Childers Rd injuring gave, in the course of her 111 call, the detailed description of the man she saw giving an “horrific” beating to a woman which we have set out in [26] above. That description of the clothing and the man closely matches that of the independent witness and of Mr Grace in respect of the Stanley Rd incident.
[47] The photograph taken in August 2010 of Mr Joseph which was in evidence in the trial shows a Māori man with dark longish hair and a tattoo on his forehead.
[48] This appeal was not advanced on the ground that the jury’s verdicts were unreasonable or were not supported by the evidence. That is no doubt because, when the evidence is analysed as in [46] above, it points unerringly to Mr Joseph as the person who both wounded Mr Grace and injured Ms Turner.
[49] We are satisfied that there was no miscarriage of justice at Mr Joseph’s trial. His appeal against conviction is accordingly dismissed.
Sentence
[50] Mr Phelps’ first submission was that Judge Wilson’s sentencing starting point of five years imprisonment on the wounding charge was too high because it did not reflect the Judge’s finding that the offending involved excessive self defence. Mr Phelps submitted the appropriate starting point was in the range four to four and a half years.
[51] The Judge’s starting point correctly placed the wounding in the overlap area between the top of band one (sentencing starting points in the range three to six years) and the bottom of band two (five to 10 years) in this Court’s guideline judgment in R v Taueki.[26] As Ms Edwards submitted, the Stanley Rd wounding was at the serious end of the range of examples given of band one street attacks.[27] So the five year starting point was appropriate. Mr Joseph’s counsel at sentencing did not cavil with it, and nor did Mr Phelps.
[52] In Taueki the Court identified as a matter reducing the seriousness of GBH offending:[28]
Excessive self defence: Similarly, where a party has acted out of self-defence but has gone too far, the fact that the attack initially commenced as an effort to defend himself or herself (or another) may be seen as reducing the seriousness of the offending.
[53] In sentencing Mr Joseph, the Judge explained why he made no allowance for excessive self defence:[29]
... Initially your involvement might have been thought to be motivated by a degree of self defence. Although on the evidence I heard, it was pretty much a toss-up as to who was the initial aggressor. You were on either side of the road and ultimately came together. This street violence followed. What took it out of the ordinary was the use of the weapon. That moved it away from any possibility of self defence; whatever that weapon was. You know – I do not.
[54] That view was open to the Judge here. It follows that this first ground of appeal against sentence fails.
[55] Mr Phelps’ second ground was that the Judge “did not provide any discount for what he recognised was the appellant’s genuine remorse”. This ground rested on the following passage in the Judge’s sentencing remarks:
[8] Mr Joseph, you have written voluminously to the Court about this. You have expressed your honest and truthful remorse. You say that violence is uncalled for in our community. You point, of course and you are justified in doing this, to good things that you are capable of – the way in which you provided sound advice around holiday programmes; your graduation from scuba school; and it is obvious that there are good aspects of your character that unfortunately on this occasion you set aside.
(Our emphasis.)
[56] Contrary to Mr Phelps’ submission, the Judge does not in that paragraph recognise or accept that Mr Joseph was genuinely remorseful. What he does do is note Mr Joseph’s assertions of honest and truthful remorse. The fact that the Judge gave no discount for remorse indicates that he did not accept that there was any. That can be contrasted to the Judge’s acceptance of remorse in the case of the co-offender Ms Campbell. In sentencing her the Judge observed “your expression of remorse for what has happened is a genuine one”.[30] Ms Campbell was sentenced to six months community detention and 80 hours community work for her part in injuring Ms Turner.
[57] There can be no sound complaint that a Judge has not given an allowance for remorse where it is clear the Judge did not accept that there was genuine remorse. This second ground of appeal against sentence also fails.
Result
[58] None of the grounds of appeal has succeeded. The appeal is accordingly dismissed.
Solicitors:
Crown Law Office,
Wellington for Respondent
[1] R v Joseph DC Gisborne CRI-2011-016-675, 28 March 2012.
[2] R v Turaki [2009] NZCA 310 at [90].
[3] We explain “visual identification evidence” below at [29].
[4] Transcript of videotaped interview at 10.
[5] Transcript of videotaped interview at 42.
[6] Notes of Evidence at 39/20–23 [NOE].
[7] NOE at 41/8–42/2.
[8] R v Joseph DC Gisborne CRI-2011-016-675, 24 February 2012 (Summing Up) at [6]–[9].
[9] At [7].
[10] At [9].
[11] R v Turaki, above n 2, at [90]–[91].
[12] At [92].
[13] At [93].
[14] R v Peato [2009] NZCA 333, [2010] 1 NZLR 788.
[15] At [22].
[16] At [31].
[17] Deo v R [2012] NZCA 484, [2013] 1 NZLR 45.
[18] At [18].
[19] At [19].
[20] The Court in Peato at [23] cited the following passage from the English Court of Appeal’s judgment in R v Slater [1995] 1 Cr App R 584 (EWCA) at 590: “But, in our judgment, the possibility of mistake is a necessary prerequisite for an identification issue to arise such as to require a Turnbull direction.” (Their emphasis added.)
[21] R v Turnbull [1977] 1 QB 224 (CA) at 228.
[22] Law Commission Evidence Code and Commentary (NZLC R55, Volume 2, 1999) at C398.
[23] At 228.
[24] At [22].
[25] Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [15].
[26] R v Taueki [2005] 3 NZLR 372 (CA) at [34] and [36]–[39].
[27] These examples are given in Taueki at [37](a) (for band one) and [39](a) (band two).
[28] At [32](b).
[29] At [4].
[30] At [12].
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