NZLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand
You are here:  NZLII >> Databases >> Court of Appeal of New Zealand >> 2013 >> [2013] NZCA 309

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Gash v R [2013] NZCA 309 (17 July 2013)

Last Updated: 25 July 2013

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
20 June 2013
Court:
Wild, Miller and MacKenzie JJ
Counsel:
A J McKenzie and R D Ashton for Appellant J E Mildenhall for Respondent
Judgment:


JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

The appeal

[1] The appellant faced trial in the High Court at Christchurch before Kós J and a jury on one count of attempted murder, an alternative count of wounding with intent to cause grievous bodily harm, one count of assault with intent to injure, one count of male assaults female, one count of threatening to kill or cause grievous bodily harm, and one count of aggravated burglary. He was acquitted on the count of attempted murder and convicted on all other counts.
[2] He appeals against his convictions on the following grounds:
[3] The appellant submits that the above grounds individually or in combination constitute a miscarriage of justice to such a degree that a retrial is warranted.

Facts

[4] The appellant and Ms A were married in 2008 and separated in November 2010. On 9 April 2011 the appellant went to Ms A’s home. She warned him to leave and called the police. A trespass notice was issued by police. A week later, on 16 April 2011, Ms A met with the appellant to discuss matters relating to the termination of their marriage. She had applied for a protection order. Ms A’s evidence was that the appellant told her that if she did not drop the protection order and the requirement that the appellant do a Stop Violence course, he would not be doing it and “if I made him do it then he was going to come to my house, cut my cat’s throat and my throat and anybody else that got in his way.”[1] That formed the basis for the count of threatening to kill or do grievous bodily harm.
[5] About two months later, on 24 June 2011, the appellant went to a caravan located on Ms A’s property which was being used by Ms A and Mr D, another person living at the property, as a bedroom. They were both in the caravan. He entered the caravan armed with a 25 centimetre kitchen knife in his possession and assaulted Ms A by hitting her in the chest area with his clenched fist. He then struck her in the face and head using his elbow. Those events formed the basis of the counts of aggravated burglary and assault with intent to injure.
[6] Mr D got up from the caravan bed in an attempt to stop the appellant from harming Ms A, and a struggle ensued. The appellant sliced the kitchen knife across the right side of Mr D’s neck. This formed the basis of the count of attempted murder and the alternative count of causing grievous bodily harm with that intent, amended at trial to wounding with intent to cause grievous bodily harm.
[7] A woman who was in the house came out to the caravan and interceded with the appellant. He struck her once on the head using a closed fist causing her to fall to the ground. That was the basis for the count of male assaults female.

Admissibility of evidence

[8] The first ground of appeal challenges evidence ruled admissible on a pre-trial application heard and decided by Fogarty J on 12 September 2012.[2] The evidence was of two incidents shortly before the events at the caravan on the evening of 24 June 2011:
[9] Neither incident formed the basis for a charge in the indictment. Fogarty J considered the evidence of both incidents. He also considered the evidence of the threat on 16 April 2011 described at [4], which did form the basis of a charge. He ruled all three items of evidence admissible He held that the evidence was relevant under s 7 of the Evidence Act 2006. He did not accept the defence argument that the test for propensity evidence under s 43 should be applied. He said that it was in a sense evidence of prior criminal behaviour but that was overwhelmed by the fact that the threat, the trespass, having a knife taken off him, and then being found with a knife on him again, were part of the general contextual evidence of the break down in the relationship and the history of the protection order. He was not satisfied that the admission of the evidence had an unfairly prejudi[3]ial effect.3
[10] Mr McKenzie for the appellant submits that the evidence, particularly that of possession of a knife in public and the trespass on 21 June, should have been excluded as its prejudicial effect outweighed any probative value. He submits that it was highly prejudicial and added very little probative force to the Crown case. He submits that the Judge erred in not adopting a nuanced approach to the admissibility of the evidence, in that the possession of the knife and wilful trespass had probative value only in the event that the appellant denied being at Ms A’s home or denied carrying the knife. As both of those matters were conceded, the probative value was lessened but the unfairly prejudicial effect remained. Counsel further submits that the evidence was propensity evidence and the Judge erred in admitting it other than in accordance with s 43.
[11] Ms Mildenhall for the Crown submits that the Judge was correct to deal with the evidence under ss 7 and 8 of the Evidence Act rather than as propensity evidence. She describes the Judge’s assessment of the evidence under s 8 as unassailable.
[12] Fogarty J, in considering admissibility under ss 7 and 8, assessed the evidence as part of a natural explanation to the jury that the couple had been in a relationship that had broken down, that there had been a protection order and an application to remove it, and other issues. He described it as part of the contextual evidence to make explicable, on the Crown’s theory of the case, why the accused acted as he did. We assess the probative value of the evidence in that context as high, and outweighing any unfairly prejudicial effect. We accordingly agree with the Judge’s assessment that the evidence was admissible.
[13] Fogarty J held that the evidence was not propensity evidence. We do not need to address that question. Assuming that it was propensity evidence, the test in s 43 applied. The nature of the evidence is such that the s 43 test would not, in this case, have differed materially from the s 8 test which the Judge applied.[4] Further, the nature of the evidence is such that a propensity direction was not required. Not all propensity evidence requires a specific direction.[5] The direct relevance of the evidence as part of the context was the focus, and there was not a risk of impermissible propensity reasoning which required a propensity direction. The evidence did not depend for its probative force on ideas of co-incidence and probability, nor did it cast aspersions on the appellant’s character that were unrelated to the alleged offending.

Amendment to the indictment

[14] In the indictment on which the appellant was arraigned at the beginning of the trial, the alternative count to the count of attempted murder was a count of causing grievous bodily harm to Mr D with intent to cause grievous bodily harm. Late on the second day of the trial, the Crown applied to amend the count to one of wounding with intent to cause grievous bodily harm.
[15] The Judge issued a ruling allowing the amendment.[6] His reasons were:
[16] In support of the appeal, Mr McKenzie submits that s 345D did not apply as the trial had commenced. He further submits that the Judge was wrong to find that there was no prejudice. He submits that the prejudice consisted in making an acquittal on that charge less likely, and in depriving the appellant of the opportunity to have the benefit of a full discount for a guilty plea if he had pleaded guilty to the lesser charge.
[17] Ms Mildenhall submits that there was jurisdiction to amend the indictment, under s 335 of the Crimes Act, and that the Judge’s reasons fully justified the amendment.
[18] Mr McKenzie’s submission that s 345D did not apply is correct. That section applies only before the commencement of the trial. The Judge did however have power to amend the indictment under s 335(1) which provides:

If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment either as filed or as amended, or as it would have been if amended in conformity with any such further particulars, the court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.

[19] The power to amend under s 335(1) arises where on trial there appears to be a variance between the proof (that is, the evidence at trial) and the charge. That condition was met here. By the stage the amendment was made, Mr D had given evidence. The medical evidence as to the extent of Mr D’s injuries was not in dispute. Mr McKenzie submits that the evidence of the extent of the injuries at trial was not different from what had been anticipated. That may be so. As the Judge clearly thought, it may well have been preferable if the lesser charge had been laid originally, or if an application had been made under s 345D to amend before trial. However, the fact that that was not done does not preclude the ability to amend under s 335. The reasons given by the Judge are relevant to an amendment under that section.
[20] Neither the possibility that the amendment could have been made earlier, nor the amendment itself, gives rise to a potential miscarriage of justice. For the reasons given by the Judge, the defence trial strategy was not adversely affected by the making of the amendment. The prospects of an acquittal were not reduced, because, if the amendment had not been made, and if, as the trial Judge plainly thought, the lesser charge was more appropriate on the evidence, the trial Judge might have considered putting the amended charge as an included charge under s 339. The course adopted was preferable to that.
[21] The amendment did not deprive the appellant of an opportunity to plead guilty to that charge and obtain a full discount. The count was an alternative to the count of attempted murder. A plea to that alternative count would not have been available unless the Crown was prepared to withdraw the attempted murder charge. There would necessarily have been discussion with the Crown if a guilty plea was contemplated. The appropriate charge could have been addressed in that context. It appears from the Judge’s bench note that there was some discussion of a possible plea. The amendment did not prevent that. In any event, any question of the discount that might have been available is hypothetical. The appellant did not plead guilty to the lesser charge.

Late disclosure

[22] This ground of appeal relates to the incident on 16 April 2011 summarised at [4]. Ms A’s statement about the incident, in which she described the words used by the appellant, was disclosed to the defence. The copy supplied was not dated. The officer in charge, who did not become involved until sometime after that incident, tried to clarify when the statement was first made. He tried to contact the constable involved and found he had left the police and moved to Australia. He contacted that constable’s detective sergeant who provided an electronic document which had on it the date of 4 July 2011, that is, after the 24 June incident. Mr McKenzie made enquiries as to the date of the statement. By an email dated 20 July 2012, the officer in charge stated that he had found the initial electronic statement and the properties on it showed it was created on 4 July 2011 so he could only assume that was the date it was written. He said that if that changed he would let the defence know.
[23] Mr McKenzie submits that the defence proceeded to trial on the basis that Ms A’s statement about the incident on 16 April 2011, in which she said that the appellant threatened to cut her throat, was first made after the incident on 24 June.
[24] The date of the statement assumed sufficient importance at trial that the officer in charge was recalled.[7] He explained the steps he took to check whether the 4 July date was correct. He asked the detective sergeant for a copy of the constable’s notebook entries. The only relevant entry found was on 20 April recording an appointment to meet Ms A the following day. The officer in charge said the best inference he could make is that on 20 April the constable arranged to meet Ms A the following day and that on that next day he would have taken the statement from her. There were no entries in the notebook of the constable taking another statement after that. The officer in charge said that he had located the constable’s notebook only recently, and had provided the information to the defence on the first day of the trial.
[25] While the position is less than ideal, we do not consider that there is any risk of a miscarriage of justice arising from the issue of the date of the statement. Ms A’s statement, whenever it was taken, clearly related to and described events which she said occurred on 16 April 2011. Ms A was asked in evidence in chief whether she had reported the threat on 16 April to police at the time and she said that she did. She said that was before the incident of 24 June.[8]
[26] Mr McKenzie did not identify any aspect of the defence strategy which relied upon the proposition that that statement had not been made until after the incident on 24 June. That proposition was not put to Ms A in crossexamination. It would not have been prudent to place much reliance on the point. The Judge, in his bench note recording his direction that the officer in charge be recalled, said that it appeared to him likely that the 4 July date was just the last computer-generated date stamp of the final form of Ms A’s statement and that there was probably an earlier signed statement. That possibility ought prudently to have been anticipated by the defence if reliance was to be placed on the proposition that the statement about the 16 April incident was not made until after the 24 June incident.

The Judge’s directions to the jury

[27] Counsel for the appellant submits that the Judge made three misdirections in his summing up to the jury:
[28] The first claimed misdirection appears in the Judge’s explanation of the question trail for the count of threatening to kill or cause grievous bodily harm, arising from the 16 April incident. The Judge said:[9]

[81] The first question asks you whether there was in fact a threat. A threat to kill – or threat to cause “grievous bodily harm”. Grievous bodily harm means really serious harm. Cutting a throat would be really serious harm. So the question here is whether the threat that Ms [A] said was made to her, to cut the throat of the cat, then her and then to anyone else who got in the way, was made at all.

(Emphasis added.)

[29] That direction clearly related to the situation where what was in issue was a threat to do harm, not actual harm. The Judge returned to the question of what is grievous bodily harm when he explained the question trail for the count of wounding with intent to cause grievous bodily harm. His Honour said:

[117] If you are considering count 2 it is because you have found that the accused intentionally wounded Mr [D] with the knife on 24 June 2011. Question 15 requires you to go on and ask yourself a further question: whether in doing so the accused also intended to cause grievous bodily harm to Mr [D]? Grievous bodily harm is different from wounding. It is a different kind of harm. A wound can be grievous bodily harm, but it isn’t necessarily grievous bodily harm. To intend to commit grievous bodily harm is to intend to commit really serious harm to someone, to interfere seriously with their health or comfort. The impact does not need to be permanent. Again, the question here is not whether in this case actual grievous bodily harm occurred. The question is whether you are sure that it was intended.

[30] In that passage, the Judge was addressing the concept of intent to cause grievous bodily harm in the situation where harm had in fact been caused. A correct definition of grievous bodily harm was given. The fact that the wounding which had in fact been caused to Mr D was not necessarily grievous bodily harm was made quite clear to the jury.
[31] Different directions were required for the two different counts. Appropriate different directions were given. There is no misdirection as submitted.
[32] The second objection to the summing up relates to evidence given by the officer in charge. The appellant had been admitted to hospital as a result of injuries which he received in the 24 June incident. He was in hospital for about 10 days. The officer in charge was asked a series of questions about that. Counsel for the Crown took the matter up in re-examination and put the appellant’s medical records to the witness. There was this exchange:[10]
  1. Now can you confirm that the primary diagnosis or reason Mr Gash was in hospital was because he had acute renal failure?
  2. Yes on page, it’s page 3 of this document it says ‘Current problems: acute renal failure. Most recent creatinine trending down. Urine output good last 24 hours.’ So yeah acute renal failure is the current problems that are identified by medical staff.
  3. Thank you and can you confirm that that was a pre-existing condition that he had?
  4. It appears to be that case from this document but I’m certainly not a medical expert.

[33] Mr McKenzie submits that the defence was confronted with two options, either to object to that evidence and draw the jury’s attention to it or to seek a comment from the Judge in summing up that medical evidence given by the officer in charge should be put to one side as he was not in a position to give such evidence. Counsel chose the latter course but when he made the request of the Judge after his summing up the Judge refused to do so.
[34] The evidence should not have been elicited in the form that it was. Both questions were leading questions and invited hearsay answers. The answers were hearsay statements, not medical opinion evidence from the witness.
[35] However, the inadvertent admission of that small amount of inadmissible evidence did not require a direction by the Judge. The extent of the injuries which the appellant suffered in the incident was of marginal relevance. The reason for his admission to hospital where those injuries were treated was of even less relevance. There can be no risk of a miscarriage of justice from the wrongful admission of the evidence, or the Judge’s failure to direct the jury to disregard it.
[36] The third ground of challenge to the summing up is the Judge’s comment on the credibility of Mr D. Following some general comments as to the assessment of credibility and reliability, the Judge made specific comments about the assessment of the credibility and reliability of Ms A and Mr D. After dealing with Ms A, he said:[11]

[42] Now, I turn to the evidence of Mr [D] and its credibility and reliability. The same process of careful scrutiny is needed of Mr [D]. Although you may perhaps feel that he was inherently a more reliable witness than Ms [A]. That is a matter for you. Disregard my view if you wish.

[43] Mr McKenzie, however, did raise a number of points about his credibility that you do need to consider carefully. For instance whether the fight ended on the driveway or continued to the portaloo. What is suggested to be perhaps more recently invented evidence: the manner of holding during the fight in the caravan; screaming at the knife cut; the throat affliction and his lying frozen with fear.

[44] But you will remember what Detective Wells said about people remembering things after an interview conducted immediately after an incident.

[45] On the one man or two running down the road, you do need to consider in that context also the credibility of Mr McGrath’s evidence in court. How sure was he that there was one man, the accused? How could that be reconciled with what he told PC Tutaki on the night of the incident: “a second male ran after Phil. He was a tall skinny guy”? So while I do not issue any particular warning in relation to Mr [D]’s evidence, he is a witness of particular importance in this case and you need to weigh his evidence with due care in deciding whether you are sure that the offences he is witness to have occurred.

[37] Mr McKenzie submits that there are a number of aspects in which that passage unfairly bolsters the evidence of Mr D, which was critical to the Crown case. He takes issue with the suggestion that the jury “may perhaps feel that he was inherently a more reliable witness than Ms A”. That needs to be seen in the context that this direction immediately followed his directions about Ms A’s evidence, which was in some respects critical of her credibility and reliability. In the last sentence of [45], the Judge emphasised the need for care in weighing Mr D’s evidence.
[38] Mr McKenzie also criticised the Judge’s reference in [44] to an answer by the officer in charge when he was cross-examined about matters on which Mr D had given evidence not included in his statement. The officer said:[12]

It doesn’t bring any recollection to me but it’s not unusual for people to recall things at a later date in my experience. Often we all take statements after the fact and they’ll remember things later on that they should have thought of earlier on so it’s not unusual for people to forget things but to answer your question no it wasn’t mentioned to me prior.

[39] The Judge’s reference to that evidence was not a misdirection. That was an aspect of the evidence upon which the Judge was able to comment as he saw fit. The comment did not exceed the permissible bounds of judicial comment on the evidence.
[40] Dealing collectively with the challenges to the summing up, we must consider the effect, in total, of the challenges. Ms Mildenhall referred to the comments of this Court in Rangihuna v R where it said:[13]

[28] In terms of balance and fairness therefore, the question must be whether the summing up read as a whole properly puts the respective cases to the jury, including both the arguments and evidence. There can be no objection to a Judge making reasonable comments on the content of counsel’s submission or the evidence of either party, where explanation, clarification or amplification may be required. We consider that this Court in Keremete aptly captured the approach:[14]

“The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other: R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact (R v Hall, supra, at p 625). Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms: R v Daly (1989) 4 CRNZ 628 (CA). Inevitably these are ultimately matters of degree and judgment.”

[41] When the summing up is read as a whole, it was fair and balanced. The comments complained of did not go beyond the bounds of proper comment by the Judge.

Unreliable verdict

[42] The final ground of appeal is that the evidence of Mr D was so unreliable that no reasonable jury could rely on it to convict the appellant on the count of wounding with intent to cause grievous bodily harm. It is submitted that the conviction on that count relies almost entirely on the evidence of Mr D.
[43] Mr McKenzie submits that the evidence at trial of Mr D contained additions to his previous accounts. Those additions involved: the way he had been held by the appellant in the course of the incident; whether he had screamed as he was cut; his mentioning of a fear of knives near his throat which he had not earlier mentioned; and his having frozen in fear during the incident. Counsel submits that these were significant additions to Mr D’s previous accounts which directly conflicted with other evidence. Counsel draws attention to a number of gaps in Mr D’s evidence and to what counsel described as a degree of flippancy in his answers. Counsel submits that these difficulties are sufficient to undermine the evidential foundation on which the conviction on the wounding count rests.
[44] Counsel for the appellant rightly acknowledges the high burden on the appellant on this ground of appeal, and that credibility and reliability issues are predominantly the domain of the jury. His submission is that the evidence of Mr D was so weak and confusing that no reasonable jury could have relied on it to convict, and in particular to conclude that any wounding was with the intention to cause grievous bodily harm.
[45] As Ms Mildenhall submits, the appellant is in effect inviting the Court to revisit the jury’s verdict and take a different view of the evidence. She refers to the recent decision of this Court in McDonald v R.[15] There, the Court referred to the well-established proposition that the assessment of the reliability and credibility of witnesses and the weight to be placed on aspects of the evidence, are quintessentially jury functions.[16] It is for the jury to assess the reliability and credibility of witnesses and it is open to the jury to accept or reject the evidence of any witness, either in whole or in part.[17] The Court reaffirmed that it is not the function of this Court to revisit the jury’s verdict on the basis of the written record of the evidence.[18]
[46] We do not consider it necessary to embark upon a detailed discussion of the complaints about Mr D’s evidence. We have reviewed his evidence. That review has satisfied us that none of the matters of which counsel for the appellant complains come close to demonstrating such a degree of unreliability as to call into question the jury’s assessment of the evidence. As Ms Mildenhall submits, the credibility of both Ms A and Mr D and the reliability of their evidence were central issues for the jury. The jury, having heard and seen those witnesses, was well placed to assess their credibility and reliability.

Result

[47] The appeal is dismissed.



Solicitors:
Crown Law Office, Wellington for Respondent

[1] Notes of Evidence at 8/9–11 [NOE].

[2] R v Gash [2012] NZHC 2354.

[3] At [12].

[4] Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [67].

[5] Hannigan v R [2012] NZCA 133 at [17]–[22]. The Supreme Court refused leave to appeal this part of the Court of Appeal’s decision in Hannigan v R [2012] NZSC 43.

[6] R v Gash HC Christchurch CRI-2011-009-7799, 16 October 2012 (Ruling No 1).

[7] NOE at 269.

[8] NOE at 23/19–32.

[9] R v Gash HC Christchurch CRI-2011-009-7799, 18 October 2012 (Summing Up).

[10] NOE at 252/30–253/6.

[11] R v Gash, above n 9.

[12] NOE at 245/2–7.

[13] Rangihuna v R [2010] NZCA 540.

[14] R v Keremete CA247/03, 23 October 2003 at [19].

[15] McDonald v R [2012] NZCA 320.

[16] At [15].

[17] At [15].

[18] At [17].

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2013/309.html