Marsters v R [2014] NZCA 395 (15 August 2014)

Last Updated: 22 August 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA840/2013 [2014] NZCA 395
BETWEEN	JULIUS MARSTERS Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2014
Court:	O’Regan P, Goddard and Andrews JJ
Counsel:	A J McKenzie for Appellant J E Mildenhall for Respondent
Judgment:	15 August 2014 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by Goddard J)

[1] The appellant was convicted by a jury of three counts of male assaults female.^[1] The Crown case was that the appellant assaulted the complainant on three distinct occasions while they were out on public streets shortly before 11.00 pm. Based on accounts given by eyewitnesses, the jury found the appellant had struck the complainant in the head when they were at the corner of Gloucester Street and England Street in Christchurch; that he struck her on the head again when they were further down England Street; and immediately after that he had pulled her backwards by the hair or by her hoodie or by a combination of those.
[2] The first two counts in the indictment charged the appellant with assaulting the complainant by striking her on the head with his hand. These charges related to the first two incidents reported by independent witnesses. The appellant denied that either of these incidents had occurred.
[3] The third count in the indictment charged the appellant with assaulting the complainant “by grabbing her by the hair and/or her hoodie and pulling her along the street”. This was also reported by one of the independent witnesses. The defence position in relation to this charge was that the appellant was simply propelling the complainant away from his property by her hoodie and was justified in doing so by virtue of s 56 of the Crimes Act 1961.

Background facts

[4] The appellant and complainant had been in a difficult relationship compounded by a considerable age difference. They had a daughter together who, at the time of the incident, was in the care of Child, Youth and Family Services.
[5] On the evening in question the complainant was at the appellant’s house in England Street. According to the complainant they had an argument about a young woman flatmate who had been there earlier. The complainant stormed out of the house, followed closely by the appellant. They walked along England Street, arguing loudly. The complainant’s evidence was that she was screaming at the appellant and he was yelling at her to calm down. She slapped him and told him to back off but he still followed her as she walked down the street. They came to the intersection of Gloucester Street with England Street and the complainant said she carried on walking away from the direction of the appellant’s flat. He continued to walk with her and was grabbing at her roughly and telling her to calm down and shut up. As they approached Worcester Street, she said the appellant hit her in the head a couple of times and, after that, he pulled her along by her hair.
[6] One of the independent witnesses, who recognised the pair as neighbours, gave evidence of seeing the appellant grab the complainant and strike her twice in the face. Another witness said he saw the appellant strike the complainant in the head and then grab her hair and drag her along the street.
[7] In his statement to the police, the appellant denied having assaulted the complainant and said that all he was trying to do was to get her to leave his house and not return. He said:

1. ... At times she would turn to go back to go and confront the flatmate but I told her she wasn’t.
17. Was there any physical contact between you and Marina from the time you left your house on England Street till the time you were spoken to by the police on Worcester Street?
1. Only with regard to aiding her in her ability to cruise along the street, holding her hand, nothing untoward, just those persuasive actions to get her to leave the property and not return and cause anymore trouble.

[8] In his evidence at trial the appellant said:

17. ... you accept that you were walking down the road and that there was verbal comments, abuse going both ways?
1. Yes.
17. You crossed over the inter – first intersection which was I think Gloucester and England Street and you were walking along England Street?
1. Yes.
17. Were there times when you might stop or was it just a constant walk, ...?
1. It was numerous times, um, there was numerous times that we’d stop, we’d argue, there was numerous times where, ah, Marina would attempt to return back to England Street, um, I’d attempt to take her in the opposite direction, um, the only times I ever headed back towards England Street was basically to try and get Marina to go in the opposite direction.

[9] As noted, the defence case at trial was a denial by the appellant of having struck the complainant and justified use of reasonable force in pulling her along the street by her hoodie.

The appeal

[10] The appellant appeals against conviction on the grounds that:

• (a) the Judge erred by refusing to allow the s 56 defence to go before the jury; and
• (b) the complainant made prejudicial accusations about the appellant during the trial which were not adequately remedied by the Judge.

[11] In relation to the first ground Mr McKenzie argued that the s 56 defence extends to prevention of trespass when a trespasser has not yet reached the property in question. In relation to the second ground, he said statements made by the complainant about the appellant during her evidence at trial should have led to a dismissal of the charges or the declaring of a mistrial.
[12] The statements at issue made by the complainant during her evidence were:

• (a) “I’d never let a rapist with my daughter”; and
• (b) “He abused me for three years. He’s gonna get away with it”.

[13] A further ancillary matter raised by Mr McKenzie in oral submissions was a complaint that the Judge had effectively cross-examined the appellant at the conclusion of his giving evidence and had thus entered the arena of the trial.

Section 56 of the Crimes Act

[14] Section 56(1) provides:

Everyone in peaceable possession of any land or building, and every one lawfully assisting him or her or acting by his or her authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him or her therefrom, if he or she does not strike or do bodily harm to that person.

[15] Whether facts at issue are capable of giving rise to a defence under s 56 is a question of law for the judge to determine. What is required is a credible or plausible narrative which might lead the jury to entertain the reasonable possibility that defence of the property in question justified the action taken.

Discussion

[16] The first ground of appeal is only applicable to the third count, as the first and second counts charged the appellant with striking the victim. Striking an alleged trespasser is expressly excluded from that which constitutes reasonable force under s 56. In any event the appellant denied having struck the complainant, so relying on s 56, unless in the alternative, would be inconsistent with the defence case in relation to those charges.
[17] In relation to the third count, the alleged hair or hoodie pulling took place at least a block away from the appellant’s property and after they had been walking along and arguing for some time. Section 56 only permits force directed at preventing a trespass or removing a trespasser.^[2] Whether viewed in terms of physical proximity to the dwelling house or in terms of the imminence of any trespass, a properly directed jury could not possibly accept that the appellant was acting to prevent the complainant from trespassing on his property at the time of this assault. No credible or plausible narrative therefore arose to invest the appellant’s claim with an air of reality and the Judge was correct not to allow the defence to be put to the jury.
[18] In relation to the second ground of appeal, it is clear the complainant was a difficult witness to control at times and the impugned comments she made during cross-examination by Mr McKenzie, referred to at [12] above, were both irrelevant and potentially prejudicial. However, given her volatility and clear antipathy to the line of questioning being pursued at the time of her outbursts, the situation was no doubt best dealt with in the tactful manner in which the Judge did deal with it; attempting to calm her down and directing her as follows:

Ms Smith listen to me Mr McKenzie is entitled to ask questions of you about what happened that night and ancillary matters and I will stop him if there’s a justifiable objection to the evidence. Those are the rules we play by, do you understand that? And it’s not for you to volunteer evidence that may cause real difficulty in this trial. We need to try to keep it confined to the issues. Now it’s the Crown’s job, of course, to present the case for the Crown and Mr Elliott may have some more questions for you later in response to the questions that Mr McKenzie asked, all right? So that’s his job. Okay? So you’ll help us most of all if you just respond to the questions and leave it to the professionals to do their jobs, okay? Understand that? I know it’s difficult but that’s the way it is.

[19] In the summing-up the Judge directed the jury they must put the complainant’s allegations to one side, not only because they were unproven but because they were wholly irrelevant. The prosecutor in closing also strongly emphasised to the jury that they must put aside the comments made by the complainant and not treat them “as true” or “as relevant” or “take them into account at all” or let them “feature in your thinking”.
[20] There was no application by the defence to declare a mistrial and we are satisfied that the complainant’s statements were dealt with appropriately and adequately by the Judge at the time and that the jury were properly directed by him in summing up.
[21] Accordingly, there was no prejudice to the appellant and no miscarriage of justice.
[22] In relation to the ancillary complaint that the Judge had effectively
cross-examined the appellant at the conclusion of his evidence, the Judge explained this to the appellant as seeking to provide him with an opportunity to comment on a “fairly obvious point” that “two lots of people unconnected with each other [were] mak[ing] the same sort of allegation” and that the jury may think it “unlikely that two of them made the same mistake”.
[23] Mr McKenzie was given the opportunity to re-examine on the issue and did so, asking if those two people were correct in what they saw, to which the appellant replied:

No they’re not correct in what they saw. I believe ... that somehow there’s been a misconception there and it’s late at night hands are flying and, you know, I never struck, I’ve never struck Marina.

[24] In summing up the Judge referred to his questioning of the appellant and directed the jury as follows:^[3]

[44] Now, at the end of his cross-examination, I gave the defendant the opportunity to comment on the fact that the witnesses Halbert and Vickers had both described him hitting the complainant to the head. I did that because fairness required it, as that similarity is a factor that you may wish to consider and I intended to mention it to you in summing up. But do not infer that I have any opinion as to its relevance and importance. That is for you and you alone to assess. Again, consider what the defence says that both were or might have been genuinely mistaken.

[25] Given the direction, we do not find the Judge’s endeavour to clarify the situation by providing the appellant with a frank opportunity to confront the essential issue transgressed the permissible boundaries. However, we observe these matters are often best left for counsel to deal with.

Conclusion

[26] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Marsters DC Christchurch CRI-2012-009-13681, 6 December 2013.

^[2] Taueki v R [2013] NZSC 146, [2014] 1 NZLR 235 at [69].

^[3] R v Marsters DC Christchurch CRI-2012-009-13681, 15 August 2013.