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Court of Appeal of New Zealand |
Last Updated: 17 November 2014
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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: |
22 October 2014 |
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Court: |
White, Simon France and Asher JJ |
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Counsel: |
N M Dutch for Appellant
J E Mildenhall for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
B The appeal against sentence is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
[1] The appellant, Phillip Rauru McGlaughlin, was found guilty after a second jury trial at the Tauranga District Court on one count of injuring with intent to injure and one count of injuring with intent to cause grievous bodily harm.[1] These counts arose from two separate incidents. He was sentenced to a total sentence of three years and nine months’ imprisonment, being composed of cumulative sentences of one year’s imprisonment on the first count and two years and nine months’ imprisonment on the second.[2]
[2] In relation to the first incident, which arose at a bar on the evening of 26 June 2012, it was the Crown’s case that the complainant, Ms A, was drunk and grieving the death of her grandchild. She took offence at some of Mr McGlaughlin’s words and actions and punched him. In response Mr McGlaughlin punched Ms A in the body and head causing her to fall to the ground. While she was on the ground, he repeatedly kicked her. Bar patrons pulled him away but he managed to break free from them as the victim continued to act aggressively. He approached her again and punched her with closed fists until he was again restrained. Mr McGlaughlin admitted that he was involved in an incident with the complainant but stated that he never had any intention to injure her, and disputed the extent of her injuries, and the extent of the assault.
[3] In relation to the second incident, the second victim, Ms B, had been staying at Mr McGlaughlin’s house. The Crown alleged that on 11 July 2012 she was asleep in bed with Mr McGlaughlin’s son, X, when Mr McGlaughlin came into the bedroom unannounced, pulled her out of bed by her hair and took her out into the hallway where he repeatedly punched and kicked her head and upper body. In the course of the assault the victim lost control of her bladder. The photographs of the second victim’s face show numerous lumped bruises on the forehead above the eyes, consistent with a savage beating focussed on the head. The catalyst for the attack, it was suggested, was Mr McGlaughlin’s anger at the second victim and his son some days earlier having had sex in the shower in his house. Mr McGlaughlin denied being involved in any assault, and pointed out that his actions of staying in the house and going to bed were inconsistent with any involvement.
[4] Mr Dutch who appeared for Mr McGlaughlin raised a number of points in support of the appeal against conviction. He alleged that there had been misconduct in relation to several actions by the prosecutor, Ms O’Brien. In her opening to the jury she had referred to various matters, including witness intimidation but failed to lead evidence in support of those matters. She had referred to a witness, Mark Aiono, who had made a 111 call to the police during the bar incident, but the Crown had not located him and he did not give evidence. She had then obtained an explanation from a police witness as to why Mr Aiono had not been called, despite this being irrelevant. It was also submitted that she used unnecessarily exaggerated and emotive language in both her opening and closing addresses.
[5] Mr Dutch submitted that the Crown should have called Ms P who was Mr McGlaughlin’s partner at the time and was in the house on the night of the second incident. He objected that the photograph booklet produced by the police included photographs of boots, but that there had been no evidence led in respect of those boots.
[6] Mr Dutch’s criticisms were not directed solely at the prosecutor. He submitted that the Judge should not have:
- (a) answered a jury question seeking to know why Ms P did not give evidence by telling them they were not allowed to know, without first speaking to counsel (and the guilty verdicts delivered a short time later indicated that the jury inferred this was because of intimidation); and
- (b) allowed the police officer who spoke to X to give evidence of their conversation at the time, and that the officer’s job sheet of their conversation should not have been put to X.
[7] Other points relating to the use of screens and proof of injury to Ms A that had been set out in the written submissions were not pursued in oral submissions.
[8] Mr Dutch submitted that, when taken together, the prosecutorial misconduct, the failure of the Judge to refer the jury question to counsel and the admission of the job sheet into evidence resulted in a miscarriage of justice.
[9] In relation to the sentence appeal, Mr Dutch submitted that the sentence was manifestly excessive and wrong in principle. He submitted that the Judge was wrong to take the first complainant’s vulnerability into account and that the starting point adopted by the Judge for the injuring with intent to injure count was too high. Further, he submitted that there was no basis for the 12 month cumulative sentence to the second count.
[10] We first deal with the appeal against conviction and assess each of the discrete grounds advanced by Mr Dutch and then turn to consider the appeal against sentence.
Prosecutorial error
[11] Prosecutors have a duty to act fairly with professional detachment, and avoid unduly emotive language. They must not inflame bias and prejudice against an accused person.[3] As this Court in R v Roulston put it, prosecutors:[4]
... must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack on the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person.
[12] While prosecutors must act with professional detachment, prosecutors are “entitled, indeed expected, to be firm, even forceful” in prosecuting the case.[5] However, this forcefulness must not cross the line into an emotive appeal or involve making unsubstantiated claims.[6]
[13] In order to determine whether the prosecutor fulfilled her prosecutorial duties or went too far, it is necessary to go through a number of the prosecutor’s statements in opening and closing, which have been the subject of criticism by Mr Dutch.
Statement in opening about reliance on fear
[14] The prosecutor in the first paragraph of her opening, having set out that there had been two attacks against two women who were vulnerable, stated:
Both women knew him and, although there were other people around each time the women [were attacked] in each case, the Crown alleges that Mr McGlaughlin relied on these attacks [sic] not coming to Court because of the fear that each of the women had for him and other people around.
[15] This statement contained the allegation that Mr McGlaughlin relied on the fear the victims had of him to ensure that he could attack them without complaints being made. This statement, which, even if correct, was not particularly relevant to the key matters at issue and was prejudicial, was not supported by the evidence. While it was clear or could be inferred that the second victim feared Mr McGlaughlin, it was not clear that the first victim (who had initiated the physical confrontation) had such a fear. Indeed she continued her association with Mr McGlaughlin immediately following the attack and was and still is supportive of him. More importantly there was no evidence that Mr McGlaughlin carried out the attacks relying on this fear. Such a proposition was not put to any witness.
[16] After setting out the Crown case in opening, a prosecutor may in due course find that witnesses do not come up to brief and matters which it can be expected will be proved are not proved. This is a trial reality and is not prosecutorial error. However, a prosecutor should never make a statement to the jury that he or she does not believe on good grounds will be proven during the trial.[7] This is particularly so when it comes to highly prejudicial remarks about a defendant.
[17] The opening reads as if the prosecutor at the very outset of her opening was seeking to generally blacken Mr McGlaughlin in the eyes of the jury. This is not permissible, and was an abuse of the privilege the prosecutor had to address the jury.
Second victim “frantically” looking
[18] The prosecutor in her opening said of the second victim that before the assault she was “... looking frantically for somewhere else to stay.... [H]aving witnessed this assault in the bar, she felt her time at Mr McGlaughlin’s was limited”.
[19] It is true that the second victim, having witnessed the first assault, had become anxious to leave Mr McGlaughlin’s house. But at no stage did the second victim state that she was looking “frantically” for somewhere else to stay or use words to that effect. This was a prosecutorial overstatement, which was prejudicial insofar as it gave the jury the impression that Mr McGlaughlin was a man who by the first assault made the second victim desperate with fear.
Reference to Mr Aiono who was not called
[20] The prosecutor in her opening, when she was listing the witnesses stated that she intended to call “Mark [Ai]on[o], [who] was the gentleman who made the 111 call because the bar staff didn’t”. Mr Aiono had given evidence at the first trial, but he was a reluctant witness. He had been summonsed to the second, but had not at that point been located by the police. He was never located and therefore did not give evidence.
[21] A prosecutor should not state to a jury that a witness is being called when the prosecutor is aware the witness has not been found and therefore does not know that witness will be called. This can be a serious error. It can lead to a jury placing weight on prospective evidence which is never adduced, which can be entirely unfair to a defendant.
Reference to “absolute rage” in closing
[22] In her closing remarks on the second incident Crown counsel stated that Mr McGlaughlin’s “absolute rage had been sated ...” and “it was a horrendous five to 10 minute long incident”. Mr Dutch criticised these remarks. In this instance we do not agree with Mr Dutch that this was prosecutorial error. The language was more emotional than is desirable, particularly the word “sated”, but there was a basis for saying that he was in an absolute rage. Although it was colloquial, it was a “horrendous” incident.
Reference to “mud and baseless suggestions”
[23] The prosecutor said in her closing that “what we have is again more mud and baseless suggestions being thrown around”. This was a rather loose comment, but it was a colloquial summary of what it was claimed were false efforts by the defendant to blame other persons for his conduct, including a claim that the second victim was untruthful. While the language the prosecutor used was verging on the intemperate, it did not cross the line into prosecutorial error.
Evidence being led in relation to Mr Aiono
[24] As has been set out, Mr Aiono was not called as a witness. However Constable Murray McGowan, was asked who had called the police, and advised that it was Mr Aiono who had made the call. He was asked without objection whether a summons had been prepared for Mr Aiono and whether efforts had been made to serve it. He stated that a summons had been prepared but that efforts to locate Mr Aiono had not been successful.
[25] On occasions it can be appropriate to elicit from a witness an explanation as to why certain evidence that the jury might expect to have before it has not been adduced or a witness not called. However, caution is necessary as this can operate unfairly against a defendant if it contains any adverse implication against the defendant. The prosecutor in her opening had made the suggestion to the jury that witnesses would be too frightened to give evidence. For the jury then to be told that efforts had been made to locate a prospective witness and those efforts had not been successful, could create the implication that this was a prospective witness who was too frightened to co-operate with the police.
[26] For the same reason a reference that the prosecutor also made to some of the bar customers not wishing to give the police details about what they had seen and not wanting any involvement in the trial was wrong, again against the backdrop of the prosecutor’s statement. The jury might infer that their reluctance was because of fear of Mr McGlaughlin.
The jury question
[27] There had been reference in opening to Mr McGlaughlin having a partner, Ms P, who stayed at the house from time to time, including the night in question. There was no indication from either the Crown or the defence that she would be called.
[28] In the course of their deliberations the jury forwarded a question to the Judge, Judge Bidois, asking if the jury was allowed to know why Ms P was not called as a witness. The Judge sent a response back to the jury indicating “no”. Mr Dutch was critical of this action, saying that counsel should have been informed of the jury question.
[29] We agree with Mr Dutch that counsel should always be informed of any jury question and have a chance to make any submissions as to the appropriate response.[8] The Judge’s response to the question should have been made to the jury in open court, and should set out the question and the response, and be recorded.
[30] However, it is plain in this case that the substance of the Judge’s response to the jury was right, and there could be no other answer. It was open to either party to call Ms P. Neither had chosen to do so, both presumably for their own good reasons. There was no suggestion that she was unavailable. Comment on the reasons for her not being called would have been inappropriate. In the absence of evidence a jury should not speculate on why a witness was not called. There was no basis to infer that the jury thought she had not given evidence because of intimidation. There was no such submission and the jury had been directed to have regard only to the evidence. There was no prejudice arising from the lack of consultation with counsel.
[31] Therefore, we do not consider there is anything in this point although, as we have said, we agree with Mr Dutch that it would have been good practice for the Judge to have shown the question to counsel and obtained their views.
Admitting and putting the job sheet
[32] After the police had been to Mr McGlaughlin’s home following the assault on the second victim, a Constable had prepared a job sheet. It recorded X’s statement that his father, Mr McGlaughlin, was angry with the second victim. He said that when they were asleep his father entered the room and pulled the victim, who had been lying beside him, into the hallway. He had seen the second victim on the ground and Mr McGlaughlin was with her. He heard thumping and bumping in the hallway. After five or 10 minutes the second victim came back and showed him injuries to her face and her body.
[33] The police called X to give evidence. When they did, he claimed that he had no recollection of what happened that night between going to sleep and waking up when the police had arrived. When he was asked about what the police officer had recorded in his job sheet setting out what he had said, he responded saying that he probably would not be helped by looking at that job sheet. He maintained his inability to recall anything. He was given the opportunity to refresh his memory by reading the job sheet and there was the following exchange:
- Do you remember all of the things you spoke to Detective Marsh about when you first woke up in your bedroom?
A I don’t remember everything that we spoke about.
A No I wouldn’t.
Q Sorry?
A I wouldn’t.
[34] Later he was again asked whether he would be assisted with reading the job sheet which he considered was inaccurate, although he denied having seen it. There was this exchange:
- So regarding what you said to Detective Logan Marsh and which he recorded about an hour later at the police station, can you remember the things you said in the bedroom to Detective Marsh?
A No, I, I cannot.
A Ah, yeah, you can read it out.
A Oh, what is –
Q – and I would pass it to you to read to yourself –
A Yeah.
Q – all right?
[35] The Crown sought leave pursuant to s 35(3) of the Evidence Act 2006 to admit the officer’s job sheet into evidence as a prior consistent statement. The Judge conducted a voir dire on the issue and ruled that the evidence was admissible.
[36] The Judge found that the taking of the note by the officer was contemporaneous in the sense that it was made by the officer shortly after he had attended the scene. This finding was not challenged by Mr Dutch.
[37] In the summing up, the Judge made a statement to the jury about X’s evidence. The Judge cautioned the jury as to how they should treat X’s evidence. He said:
[75] You then have the evidence of what the police officer recorded in his job sheet. Various use has been put to that by both the Crown and the defence. The Crown rely on it because in part it fingers in a way, the accused. The Crown rely on the five to 10 minute timeframe based on what [X] told the police.
[76] The defence says that you need to trea[t] with real caution the evidence of [X]. And I give you an example where you need to be really careful, is about what context [you can] put to what the police officer has recorded. Because the shower account is relevant. What the police officer recorded was as if it was attributable to the accused. That is why, that was the motivation for the assault. But when you consider what [X] said in evidence, that was something that the accused’s partner had told him about and so if you look at the job sheet, or what was recorded there, it did not have that context.
[77] But again like many, or all the matters before you, those are factors that you will just have to deal with and take into account, give whatever weight you consider are relevant to those pieces of evidence.
[38] The job sheet did not record a prior consistent statement of X’s, as X denied all recollection of what happened in the witness box although he stated that parts of the job sheet were inaccurate. Therefore, s 35 did not apply. When the prosecutor cross-examined X on the evidence, she was careful not to ask any leading questions. There was no need therefore for a declaration of hostility.
[39] In all the circumstances the Constable’s evidence of the discussion and the reference to the job sheet were relevant evidence given by the Constable and was put to X for the jury to assess, as the Judge said. This was the approach of the Supreme Court in Hannigan v R.[9] In that case, a statement given to the police was used to point out inconsistencies in recall. The Court considered that this statement was admissible either through the person who gave the statement or the police officer who took the statement.[10] The same applies in this case. The admission of this statement did not breach any rule of evidence. Its admission was helpful to the Crown in that it added to the weight of evidence indicating that Mr McGlaughlin had carried out the assault. In his statement, Mr McGlaughlin had vaguely indicated that someone else had come into the house and carried out the assault. X did say in his evidence that some of the statements in the report did not match up to what he thought had happened that night. So to this extent it was relevant evidence and was properly admitted, and what was made of it was for the jury to decide.[11]
The photograph of the boots
[40] The photograph booklet that was given to the jury contained, amongst other relevant photographs, two photographs showing a pair of men’s boots. The boots were well used and had some general staining on them, but did not contain any obvious blood or other incriminating material on them, and indeed were not identified as belonging to any particular person.
[41] The boots had not been referred to in evidence. The jury would have had no idea why the photographs were in the booklet. In fact, the boots had been referred to at the first trial by Mr Aiono but were not referred to in the second trial by any person.
[42] It is unfortunate the boots were included in the booklet and it is possible that a juror might have speculated that they were boots used in one of the assaults. On the other hand there were no markings on them to invite prejudice on the part of a juror, and the jury had received the usual warning from the Judge to only have regard to the evidence. We think the chance of any illegitimate speculation was slight.
Miscarriage of justice?
[43] We have identified certain mistakes and actions of the prosecutor amounting to prosecutorial error. These were:
- (a) The statement in opening about Mr McGlaughlin relying on fear.
- (b) The statement in opening that the second victim was “frantically” looking for accommodation.
- (c) The reference in opening to Mr Aiono giving evidence of making the 111 call.
- (d) Asking Constable McGowan about efforts to summons Mr Aiono as a witness.
- (e) Asking Constable McGowan about efforts made to get bar customers to give details or be involved.
[44] It is necessary to consider the possible effect of the remarks and actions, and whether they may have improperly influenced the jury.[12] As the Supreme Court in Condon v R explained, “[a] verdict will not be set aside merely because there has been an irregularity in one, or even more than one, facet of the trial”.[13] It is only when the departure from good practice is so “gross, or so persistent, or so prejudicial, or so irremediable” rendering the trial unfair that a miscarriage will have occurred.[14]
[45] The mistakes made by the prosecutor, while they should have been avoided, would not in our assessment have improperly influenced the jury.[15] They did not go to the core factual issues of the trial. Her remarks were made at the start of a trial which then proceeded over four days. They were not repeated in her closing submissions. Jury recollection of them is likely to have dissipated in the face of the testimony and submissions received.
[46] Mr Dutch in his closing address pointed out to the jury that the prosecution suggestion in opening that Mr McGlaughlin was not relying on complainants coming to court was quite unsupported by evidence. He pointed out that what they had heard was a submission and not evidence. This helped neutralise any damage. Indeed, Mr Dutch was able to use the prosecutor’s error to Mr McGlaughlin’s advantage to show that the police were overstating their case.
[47] While the prosecutor should not have referred to Mr Aiono as a witness, his evidence was not described and the Crown case was not strengthened by the reference to him. There was no prejudice to the defence. The questions as to the ability of the police to call certain witnesses, while unfortunate in the light of the opening, did not in themselves contain any perjorative references to the accused, and would not in our assessment have assumed significance in the jury’s deliberations.
[48] The Judge in his summing up gave strong directions over five detailed paragraphs that the jurors needed to put to one side feelings of emotion or prejudice against Mr McGlaughlin. He was careful to draw to the attention of the jury aspects of the evidence favourable to the defendant. He emphasised that the jury could only consider adduced evidence. Although it was not strictly necessary, the Judge gave a visual identification warning in relation to the second victim’s evidence. These directions would have had the effect of neutralising the adjectival opening remarks and any implications arising from the references to why witnesses were not called.
[49] It is our view that there was in the end no danger of the jury view of Mr McGlaughlin and the evidence being affected in any material way by the remarks made by the prosecutor in her opening. They would have been seen as advocacy and any effect would have abated during the trial. There was no miscarriage of justice.[16]
[50] The appeal against conviction therefore fails.
Appeal against sentence
[51] The Judge’s approach on sentence was to fix a starting point of two years and nine months for the assault on the second victim, then fix a starting point of about 15 to 18 months in relation to the assault on the first victim, and reduce that second sentence to 12 months. This resulted in a total sentence of three years and nine months’ imprisonment.[17]
[52] Mr Dutch argued that the total sentence was manifestly excessive due to the sentence the Judge imposed on the first count of injuring with intent to injure being wrong in principle and involving too high a starting point. He submitted that the Judge was wrong to take the first victim’s vulnerability into account, and submitted that the offending fell within band one of the bands set out in R v Nuku.[18] He submitted that there was no basis for an 18 month starting point and a 12 month end sentence. An uplift of no more than two months was appropriate for that offending.
[53] There is no merit in these submissions. The first victim was a slight middleaged woman who was grieving the death of her grandchild. She was significantly intoxicated. The attack against her was savage, involving punches to the face causing bruising and swelling. Mr McGlaughlin is a solidly built man, a former gang member, and was described by the Judge as “powerful”. There is also evidence that Mr McGlaughlin stomped on the victim’s thigh when she was lying on the ground.
[54] The starting point in relation to the offending on the first victim was influenced by the fact that the victim herself initially punched Mr McGlaughlin and appeared to make efforts to attack him further on occasions during the course of the assault. These attempts were entirely ineffective as she was a slight woman and he was a powerfully built man. Nevertheless, the element of provocation warranted some recognition in the fixing of the starting point. We are satisfied that the starting point reached by the Judge did involve such a recognition.
[55] The assault on the second victim was by far the more serious of the two. It involved an entirely unprovoked attack on a sleeping, defenceless woman, and the infliction on her of serious injuries to the upper body and head. The description of the injuries includes a reference to widespread bruising to her upper body and face, including “bruising to a spongy area of her skull. She had black eyes and a cut”. The charge was injuring with intent to cause grievous bodily harm for which there is a maximum sentence of 10 years’ imprisonment.[19] In terms of the sentencing range available, two years and nine months’ imprisonment was a low starting point.
[56] The two incidents were entirely separate and no totality deduction was required. We are satisfied that the end additional sentence of 12 months for the assault on the first victim was within the range. On its own a sentence of home detention (ignoring aggravating and mitigating factors) might have been an option for the injuring with intent to injure count, but when this was combined with the later more serious offending the only way of recognising the assault was by imposing cumulative a sentence with the more serious injuring with intent to cause grievous bodily harm count. Mr Dutch’s suggestion that a two to three month uplift to the injuring with intent to cause grievous bodily harm count should have been applied was unrealistic.
[57] The question must be whether, when both incidents are viewed overall, the end sentence was manifestly excessive.[20] In our view it was not. Indeed Mr McGlaughlin should consider himself fortunate that there was no uplift added for a pre-2003 serious history of assaults. An end sentence of three years and nine months’ imprisonment was in the available range.
[58] The sentence appeal therefore fails.
Result
[59] The appeal against conviction is dismissed.
[60] The appeal against sentence is dismissed.
Solicitors:
Crown
Law Office, Wellington for Respondent
[1] In the first trial, the jury was unable to reach a verdict in relation to the second incident. A verdict of guilty was entered on the first incident, but an appeal was allowed and a new trial ordered: McGlaughlin v R [2013] NZCA 601.
[2] R v McGlaughlin DC Tauranga CRI-2012-070-3549, 17 March 2014.
[3] Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, sch, r 13.12(b) and (c); and R v Hodges CA435/02, 19 August 2003 at [20].
[4] R v Roulston [1976] 2 NZLR 644 (CA) at 654; affirmed in Stewart v R [2009] NZSC 53, [2009] 3 NZLR 425 at [19]–[22].
[5] R v Hodges, above n 3, at [20].
[6] Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, sch, r 13.12(c) and (d); and see Bruce Robertson (ed) Adams on Criminal Law – Criminal Procedure (online ed, Brookers) at [TP24.04].
[7] Tran v R [2000] FCA 1888, (2000) 105 FCR 182 at [135] and see Adams on Criminal Law – Criminal Procedure, above n 6, at [TP24.04].
[8] R v Lichtwark [2007] NZCA 542 at [22]; R v F (CA179/09) [2009] NZCA 520 at [59]; and MacDonald v R [2011] NZCA 446 at [18] and see Adams on Criminal Law – Criminal Procedure, above n 6, at [TP16.05].
[9] Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612.
[10] At [104].
[11] Evidence Act 2006, s 7(1) and (3).
[12] R v Roulston, above n 4, at 655.
[13] Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
[14] At [78].
[15] Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]–[31].
[16] Bruce Robertson (ed) Adams on Criminal Law (online ed, Brookers) at [CAS385.08] and [CAS385.14].
[17] R v McGlaughlin, above n 2.
[18] R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
[19] Crimes Act 1961, s 189(1).
[20] Crimes Act, s 385(3)(b); and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
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