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Thomas v R [2014] NZCA 202 (28 May 2014)

Last Updated: 4 June 2014

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
8 May 2014
Court:
O’Regan P, Courtney and Clifford JJ
Counsel:
J K W Blathwayt for Appellant C A Harold for Respondent
Judgment:


JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] The appellant, Mr Thomas, was convicted after a jury trial of one count of assault with a weapon under s 202C(1)(a) of the Crimes Act 1961.[1] The trial Judge, Judge I B Thomas, sentenced him to a term of imprisonment for 18 months, cumulative on a sentence for unrelated offending. The appellant appeals against conviction.

Grounds of appeal

[2] The appeal is advanced on the following basis:
[3] Counsel for the appellant, Mr Blathwayt, argues that the cumulative effect of the above matters was that there was a miscarriage of justice.
[4] Before addressing the grounds of appeal, we will briefly set out the factual background.

Facts

[5] The appellant and the female complainant had a brief relationship between 22 November 2012 and 27 November 2012. The police summary of facts records the events as follows:

On Thursday, 22 November 2012 the complainant met the Defendant for the first time and exchanged phone numbers.

By the next day the Defendant was sending aggressive and abusive text messages together with loving text messages to the complainant’s phone.

On Friday, 23 November 2012 Police attended the Defendant’s home for an unrelated matter.

From this point on, the Defendant was texting the complainant that she was a nark and she needed to prove otherwise.

The texts continued in an obsessive manner and again remained threatening and loving.

The complainant arranged to meet the Defendant on Monday, 26 November 2012 in Carterton.

The complainant parked her vehicle in a quiet road in Carterton where she had been text [sic] to meet the Defendant.

She got out of her vehicle but could not see him.

She got into her vehicle and as she sat in the car, the driver's door remained open.

The Defendant appeared inside the driver’s door with his back to the window facing the complainant.

As soon as the complainant became aware he was present, he reached over her head and put a jug cord around her neck.

He pulled it tightly, causing the complainant to have to scratch and pull the cord to restrict its tightness.

Using the cord, the Defendant pulled the complainant’s face towards him and immediately punched her to the side of the face causing bruising to her lower left chin causing the complainant to see stars.

The Defendant then hugged the victim and told her that he loved her and he knew she would come, as if nothing had happened.

The complainant received a ligature mark around her throat and a visible bruise to her jaw as a result of this attack.

The Defendant is unemployed and has previously appeared.

[6] The summary of facts refers to the date of the offending as Monday 26 November 2012. By the end of the trial, the Crown case was that it was Tuesday 27 November 2012. That is a matter of some significance in the context of the present appeal. The Crown case was that the fact the assault occurred on 27 November 2012 was established by reference to text messages sent between the appellant and the complainant in the period leading up to the assault.

Unreasonable verdict

[7] Mr Blathwayt argued the verdict was unreasonable: he argued that a jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of the appellant.[2]
[8] The focus of this argument is the date on which the assault is said to have happened.
[9] The timing was important because the defence case was that the ligature wound on the complainant’s neck was already there when the complainant met the appellant on 27 November 2012. The defence relied on evidence from the appellant’s sister, Ayla Quinn, who said she saw the complainant shortly after the time at which the assault was alleged to have occurred. She said she asked the complainant about the injury to her neck and the complainant told her the injury had occurred when the complainant had intervened in a fight between the complainant’s sister and her sister’s partner. Ms Quinn also said she believed the appearance of the injuries indicated they had occurred sometime before this exchange between her and the complainant occurred. She observed that scabs had already formed on the complainant’s neck at the time of the exchange.
[10] The complainant disputed Ms Quinn’s evidence. She accepted she was with Ms Quinn shortly after the assault. The appellant was also present. The complainant said that when Ms Quinn noted the ligature mark on the complainant’s throat, the appellant (not the complainant, as Ms Quinn had said) told Ms Quinn the mark had been caused by the complainant’s sister’s partner. The complainant said she went along with that because she was terrified.
[11] There was also a reference in a notebook entry by one of the police officers investigating the alleged offence of a discussion between the police officer and the complainant’s grandmother (with whom the complainant was living at the relevant time) which assisted the defence case. It seemed the grandmother had said to the police officer that she had observed the ligature mark on the complainant’s neck on Monday 26 November, that is, before the offending was alleged to have occurred. The grandmother was not called to give evidence. We were told this was because she was elderly and it appeared she may have been confused.
[12] The complainant’s own evidence about the date was vague. When initially asked in evidence-in-chief about the date she gave various dates, and it was only after the text messages were referred to that she confirmed the alleged offending occurred on 27 November 2012. The nature of the text messages was consistent with the offending having occurred at the time of the meeting between the complainant and the appellant on the morning of Tuesday 27 November 2012. As outlined in the summary of facts,[3] the appellant’s text messages varied between aggressive and affectionate. It seemed that he blamed the complainant for the fact that a police raid had occurred at his sister’s house. He referred to the complainant as a nark. The complainant said that he was also using that term at the time of the attack. However, she said that after attacking her, he then attempted to be affectionate and to hug her.
[13] The appellant himself said in an unsworn statement given to the police that he did not cause the injuries, and they were already present when he met the complainant on Tuesday 27 November 2012. He also told the police the complainant had told his family the complainant’s sister’s partner had caused the injury to the complainant’s throat.
[14] Mr Blathwayt said that the inability of the complainant to identify accurately the day of the week on which she was attacked ought to have raised a reasonable doubt on its own. He said the hearsay account of the grandmother’s observation about having observed the ligature marks on the day before the alleged attack was also important. He was critical of the way the case had been investigated and presented. He said the factors set out below indicated the Crown had not proved beyond reasonable doubt that the attack occurred at the time and date alleged by the Crown and, once a reasonable doubt arose as to that aspect, the jury ought to have concluded there was a reasonable doubt the appellant was the perpetrator.
[15] The factors referred to by Mr Blathwayt were the following:
[16] Mr Blathwayt said in light of all these factors the jury ought to have concluded that the complainant’s evidence was unreliable. He suggested it may even have been an occasion for the Judge to invite the jury to make an adverse inference as suggested by this Court in K (CA421/2008) v R.[4] We disagree. K (CA421/2008) v R involved offending which was said to have taken place in front of the complainant’s brothers, yet none was called to give evidence. We see that as a far cry from the present case.
[17] The police officers responsible for the investigation were cross-examined about the gaps in the police investigation. No proper explanation was given for failing to have a medical examination undertaken, and it was clear that the efforts to locate the jug cord were meagre. The police officer who had spoken to the owner of the Mobil Service Station described having watched the CCTV footage, but said that it was not very clear. He could not see the injuries on the complainant. He accepted that the demeanour of the complainant was not indicative of someone in distress. The erasure of the CCTV footage was an error by the staff of the service station, rather than a failing of the police.
[18] All of the matters were before the jury. The Crown case largely depended on the complainant’s evidence and the support for the timing of the assault from the text messages between the complainant and the appellant. Although the Crown case could have been supported by medical evidence, there is nothing to indicate the medical evidence would have provided a clear statement of the timing of the inflicting of the injuries on the complainant. The photographic evidence was good quality and was taken on the day of the alleged offending, as well as there being a further photograph of the complainant taken two days later. The emergence of the bruising on the complainant’s face was obvious in the later photo.
[19] While we accept there are grounds for criticism of the way the offending was investigated and consequent gaps in the Crown case, we do not consider that it was unreasonable for the jury to believe the complainant’s account of the nature of the offending and the time at which it occurred, and to accept the complainant’s version of what was said (and who said it) at the encounter with Ms Quinn. We do not believe that a jury acting reasonably was required to find that a reasonable doubt existed. This ground of appeal therefore fails.

The Judge’s summing-up

[20] Mr Blathwayt alleged a number of shortcomings in the Judge’s summing-up. We will deal with each of them in turn.

Unfair summary of defence case

[21] The Judge said the following about the defence submission on gaps in the Crown case:

[23] On the other hand, as we heard from Mr Blathwayt, his straight and plain submission was that you cannot be sure on the evidence you have. He submitted to you that there is a lack of evidence in a number of areas and pointed of course to a lack of medical evidence, the failure to contact other potential witnesses. There are mistakes made about the dates and matters such as that. Mr Blathwayt's defence put the police on notice on a matter that should have been checked but were [sic] not and the submission is of course that this leaves the Crown case somewhat weakened. Mr Blathwayt submits that on that basis you cannot find the complainant's evidence reliable. You are entitled to accept the denials of the accused and the offering of that alternative explanation, as supported by Ms Quinn, and on that basis you will find that you cannot be satisfied beyond reasonable doubt and you should find the accused not guilty.

[22] Mr Blathwayt strongly criticised the Judge’s use of the phrase “somewhat weakened” when referring to the impact of the gaps on the evidence on the Crown case. He said this misrepresented the submission he had made in his closing address at the trial that the absence of evidence on the matters discussed earlier was such that the jury must be left in a state of reasonable doubt and that a guilty verdict would be unsafe.
[23] We accept that the phrase “somewhat weakened” was an inaccurate paraphrasing of what Mr Blathwayt had said in his closing address and understated it. However, it reminded the jury of the submissions Mr Blathwayt had made and it was immediately followed by a reference to Mr Blathwayt’s submission that the jury “cannot be satisfied beyond reasonable doubt”. Given the clear directions the Judge had already given about the onus and standard of proof, we do not believe the jury would have been in doubt as to the task before them. This was not a matter which prompted Mr Blathwayt to ask the Judge to recall the jury to clarify the directions.

Appellant’s unsworn statements

[24] The Judge gave the following direction in relation to the unsworn statements of the appellant which were before the jury in the form of notebook entries by the investigating police officer (the appellant did not give evidence at the trial):

[13] So, turn then to look at the notebook interviews that Detective Constable Cadwallander took on 29 November on two separate occasions. The accused did not have to make those statements of course, but they are properly part of the material for you to consider. They are not given on oath. They are not subject to cross-examination. They are simply to be treated as normal evidence, just like all other evidence. What weight you give to it is a matter for you. You may accept some of it, all of it or none of it and you can view it as favourable to the accused or unfavourable, it all depends on how you assess it.

[25] Mr Blathwayt said this was a case in which a tripartite direction should have been given, even though the appellant did not give evidence at the trial. He accepted that this was at odds with the position outlined by this Court in R v Herewini.[5] Mr Blathwayt relied on this Court’s decision in R v Boardman as authority for the proposition that the Judge should have exercised the discretion to give a tripartite direction, but having considered that decision we are puzzled as to why he believed it supported his submission.[6] If anything, it supports the Crown’s position in this appeal.[7]
[26] Mr Blathwayt was particularly concerned about the fact that the jury could view the appellant’s statements “as favourable to the accused or unfavourable, it all depends on how you assess it”. He said there was no basis in which the exculpatory statements made by the accused could be “unfavourable”, yet the Judge invited the jury to consider the possibility that the evidence was, in fact, unfavourable. Mr Blathwayt said this must have at least been confusing to the jury.
[27] The wording used by the Judge was a commonly used formulation. But commonly used directions should be used only when appropriate to the case before the Court. We agree with Mr Blathwayt that it was not helpful to allow for the possibility that the jury would find the appellant’s statements “unfavourable” to his case, given that they were wholly exculpatory. We think the Judge’s intention was to make clear to the jury that it was entirely over to them how they assessed the evidence, notwithstanding that it was unsworn and untested by cross-examination. The reference to the possibility the evidence was unfavourable did not assist this. However, the summing-up made it clear to the jury how it was to approach the evidence and the directions on the burden and standard of proof were clear. We do not think the “unfavourable” remark was material in the context of the summing-up as a whole.

Ms Quinn’s evidence

[28] The Judge gave the following direction in relation to Ms Quinn’s evidence:

[14] And then there is the evidence for the defence of Ms Quinn. Now, that does not shift the burden of proof. As I have said, the Crown still has to prove the case beyond reasonable doubt on all the evidence that you have heard. In any event of course, that evidence simply goes to a peripheral issue as to who made this explanation for [the complainant’s] injury to Ms Quinn. Obviously if you are satisfied that it was told to Ms Quinn by [the complainant] as she has said and you are satisfied on that, then obviously that would go to be assessed with the assessment of [the complainant’s] credibility about who made the explanation. If you are not sure of who made the explanation or you reject what Ms Quinn says for example, then it effectively does not have any effect on the question of credibility of [the complainant]. It is a peripheral matter. As I say, if you find Ms Quinn’s evidence credible, then it may affect your assessment of [the complainant’s] credibility.

[29] Mr Blathwayt said this direction focused on the issue of who had told Ms Quinn that the complainant’s sister’s partner had caused the complainant’s injury. Mr Blathwayt said this was not, as the Judge said, a “peripheral issue”. Mr Blathwayt was also concerned that the Judge had said that if the jury found Ms Quinn’s evidence credible, then it “may affect your assessment of [the complainant’s] credibility”. He said the Judge should have said that if the jury found Ms Quinn’s evidence credible, then in those circumstances there would be a reasonable doubt as to the reliability of the complainant.
[30] We do not think the Judge needed to give a direction in such strong terms. While it would have been a significant blow to the complainant’s credibility if the jury had accepted Ms Quinn’s version of events (that the complainant herself had said the injury was caused by someone else) it was not necessarily a fatal blow given the complainant’s explanation that, at the time, she was terrified of the appellant who was standing next to her when the statement was alleged to have been made. The Judge correctly stated at the end of the summing-up that Mr Blathwayt had said if the jury accepted the appellant’s denials and the offering of the alternative explanation as recounted by Ms Quinn, then it could not be satisfied beyond reasonable doubt and would find the appellant not guilty.[8] While we consider the use of the term “peripheral” was unlikely to have assisted the jury, we do not consider that, when read in the context of the summing-up as a whole, the matters complained of by Mr Blathwayt are matters of substance.

Medical experts

[31] The Judge gave the following direction about the lack of medical evidence:

[17] You should of course concentrate on the evidence that you have heard and not on what you do not have. You should not speculate about what matters are not here. Mr Blathwayt’s obviously made a number of criticisms about other work the police could have done, but the reality is that that evidence is not here and you must rely only upon what you have heard. We know there is no medical evidence. We have two sets of photos. Some observations by witnesses, but the reality is there is no medical expert to talk about ages. Was Ms Quinn over-egging it a little when she talked about scabs, do they appear on those police photos taken very soon after the event? It is a matter for you. I am not a medical expert and nor is anybody else here.

[32] Mr Blathwayt criticised the Judge’s comment about “over-egging” and said this was an invitation to the jury to disbelieve Ms Quinn and an indication of the Judge’s own view of Ms Quinn’s evidence.
[33] We agree that the “over-egging” remark should not have been made. But we do not consider this point is of sufficient gravity to make the summing-up, read in its entirety, unfair. The Judge began the summing-up by making it clear to the jury that it was its sole responsibility to decide questions of fact, and that if the Judge indicated a view the jury should disregard it as findings of fact were for the jury and not for anybody else.

Presence of prison guards

[34] Mr Blathwayt said the Judge omitted to give a direction as to the presence of prison guards in court with the appellant. He said that the text messages, in which the appellant was aggressive towards the complainant and accused her of being a “nark” may have conveyed the impression that the appellant was a dangerous person and the presence of prison guards would have reinforced that. Mr Blathwayt noted the Judge’s failure to give a direction at the trial and ask the Judge to recall the jury to give a direction on that topic. The Judge declined to do so. The Judge considered that the jury would not know the difference between prison guards and ordinary court attendants and said he could not see how it would make any difference.
[35] We do not see this as a material omission. The jury was aware that the accused had interaction with the police, given the “nark” accusation. We agree with the Judge that if he had called the jury back to give a direction on this, it may have suggested to the jury that the point was more significant than it was in fact.
[36] Overall we consider that the summing-up adequately equipped the jury to consider the issue before it. This was a short and relatively simple case and we do not believe that the jury would have been under any illusions as to its task. If the matters now raised had been of significant concern at the trial, no doubt counsel would have raised the matters with the Judge for correction. That did not happen.

Amendment of indictment

[37] Mr Blathwayt said that the late amendment of the indictment (substituting “27 November” for “26 November”) prejudiced the appellant. We disagree. The complainant’s confusion over the date was a matter which was aired in front of the jury and Mr Blathwayt made much of it in his closing address, as he was entitled to do. Section 335 of the Crimes Act allows for an indictment to be amended where there is a variance between “the proof and the charge”. That was obviously the case once the complainant, after her initial confusion, confirmed that the date of the alleged assault was 27 November, as identified by reference to the text messages. The Judge’s decision to allow the amendment of the indictment was an uncontroversial use of the s 335 power.

Result

[38] We do not consider that justice miscarried in the present case. We therefore dismiss the appeal.





Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Thomas DC Wellington CRI-2012-091-2583, 16 August 2013.

[2] Crimes Act 1961, s 385(1)(a) (now repealed); Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17]; R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.

[3] At [5] above.

[4] K (CA421/2008) v R [2009] NZCA 176 at [30].

[5] R v Herewini CA241/04, 26 November 2005 at [30], where this Court said it would be “a very rare and unusual situation indeed before fairness would demand [a tripartite] direction be given in relation to an exculpatory statement made out of Court”.

[6] R v Boardman CA173/03, 29 October 2003.

[7] Mr Blathwayt appeared to rely on the fact R v Boardman involved some criticism of the trial Judge’s direction that either the complainant or the defendant was lying, and it was the jury’s task to work out who to believe: at [12]. But there was no reference to the need for a tripartite direction, and in any event, the appeal was unsuccessful.

[8] See the quotation reproduced at [21] above.

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