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Gurran v R [2015] NZCA 347 (4 August 2015)

Last Updated: 20 August 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
9 July 2015
Court:
Cooper, Keane and Kós JJ
Counsel:
F E Guy Kidd and JAT Ross for Appellant JEL Carruthers for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. Leave to adduce further evidence is declined.

  1. The appeal against conviction is dismissed.

  1. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós J)

[1] On the evening of Tuesday 3 January 2012 Mr Ian Robertson was seriously injured inside his Mt Maunganui flat. He had 10 broken ribs, a collapsed lung, bleeding in his chest cavity, a cut to the back of his head and wounds and bruising to his chest, back, arms and legs. The only other person present at the time was Mr Dion Gurran.
[2] A jury in the Tauranga District Court convicted Mr Gurran of wounding Mr Robertson with intent to cause grievous bodily harm.[1] Judge Wolff sentenced him to seven and a half years’ imprisonment.[2] Mr Gurran now appeals both conviction and sentence.

Background

[3] Mr Gurran was 40 and Mr Robertson, 75. Mr Gurran and Mr Robertson were friends, despite their very different ages. They would drink together at the Mt Maunganui RSA, and sometimes at Mr Robertson’s flat.
[4] At about 7.30 pm on Tuesday 3 January 2012 Mr Gurran telephoned his mother. He asked her to come to Mr Robertson’s and help him. He said that Mr Robertson was hurt. When she arrived she found Mr Robertson lying hurt on his kitchen floor. In evidence, she stated that she asked him what had happened, “He kinda went — the young fella had punched him. Just went like that [indicating a boxing motion].” Mr Gurran said, “Don’t be silly. You, you just fell over you silly old bugger.” Mr Robertson replied, “You, you hit me.”
[5] Mrs Gurran’s evidence was that as she rang for an ambulance, her son came around behind her, kicked Mr Robertson on the floor and “smacked him on the side of the face”. He did both actions perhaps three to five times. Her evidence as to the force used varied between “stomping” and “nudging”.[3]
[6] The ambulance officer arrived at about 8.15 pm. He found Mr Robertson injured, but coherent. In evidence he stated that Mr Robertson told him, pointing at Mr Gurran, “That bastard kicked [or punched] the shit out of me.” The officer was not quite sure whether the word used was “kicked” or “punched”.
[7] At about 8.30 pm the police arrived. They arrested Mr Gurran for assaulting Mr Robertson. A little before 1.00 am they interviewed Mr Gurran. We will come back to that.[4]

The account given by Mr Robertson

[8] Around two weeks later Mr Robertson gave a written statement to Det Sgt Yardley. He described a drinking session with Mr Gurran. First at the RSA, then continuing in Mr Roberston’s flat. He said Mr Gurran had suddenly got up and started kicking him in the legs, around his shins. He recalled Mr Gurran yelling. He could not remember what Mr Gurran had said. Mr Robertson fell from his chair to the ground. Mr Gurran continued to kick him. Mr Gurran kicked him in the stomach and ribs area, and around the head. He also recalled Mr Gurran “straddling” him, slapping him on the face. Then, kicking him again. He recalled Mr Gurran’s mother turning up. And the ambulance, shortly afterwards. He denied having touched Mr Gurran’s groin.[5] He said, “I am not that way, I wouldn’t go that way, never in my life.”
[9] That was the only account Mr Robertson gave. By the time of trial, in March 2013, he was suffering advanced dementia. The Crown applied for his written statement to be admitted in evidence. In a pre-trial ruling Judge Harding was satisfied Mr Robertson was in a fit condition to make his statement. He considered medical reports from Drs Fraser and Fernando and evidence from Det Sgt Yardley, and determined that Mr Roberston was unavailable as a witness. He determined that the probative value of the statements was not outweighed by the risk of unfair prejudice. That was despite the potential importance of cross-examination of the complainant. The statement was read to the jury.
[10] Mr Robertson died after the trial, from natural causes.

The six different accounts given by Mr Gurran

[11] Mr Gurran has now given six different accounts of what happened on the evening of 3 January 2012. There are fundamental disparities between them, specifically:
[12] First in time there is the observation made at the scene, overheard by Mr Gurran’s mother: “You, you just fell over you silly old bugger.”[6]
[13] Secondly, there is the account given by Mr Gurran in the police interview later that evening, starting at 12.42 am.[7] In this interview Mr Gurran said, “it’s not the only time that he’s tried to touch me”, and that Mr Robertson, “grabbed at me one ... time too many”:[8]

[T]onight he grabbed me, had enough. (PUNCHES HAND) Boom, that’s what he got. Boom, don’t worry, was a reaction, wasn’t, wasn’t you know to beat a 75 year old man up it was just because he grabbed me.

[14] Mr Gurran continues on in the interview about being touched in the groin area by Mr Robertson. He says it’s “not like I fucken beat him to death, have I?” He continues, “I whacked him in the head, is that alright, that’s what I did.”
[15] But as the interview proceeds, Mr Gurran retreats. He says he just pushed Mr Robertson over and did not punch him. And then he says he cannot actively recall doing either. Mr Robertson had told the police Mr Gurran had kicked him. Mr Gurran denied doing so. He said he could not remember what he had done. Just that, “I snapped”. Notably he says nothing at all in this interview about Mr Robertson taking a fall in the toilet. Later this becomes Mr Gurran’s primary explanation for Mr Robertson’s injuries. But in the police interview nothing has happened to Mr Robertson in the toilet. Rather he has “grabbed at me” on his way back from going to the toilet in the usual way.
[16] Thirdly, Mr Gurran’s father deposes in an affidavit sworn in support of this appeal that he spoke to his son a few days after his arrest.[9] Mr Gurran Sr deposes that he asked his son what happened, and got this response:

That’s when he told me that Ian went to the toilet, he messed his pants and got himself wedged between the toilet and the wall. Dion told me that he tried to stand Ian up and was trying to get Ian’s pants off which were soiled. After pulling him up, Dion said that Ian was giggling and grabbed at his crotch and Dion said something like “oh you dirty thing” and pushed him away. Dion told me that Ian staggered back and hit his head. He didn’t say what he’d hit his head on.

A friend of Mr Gurran, Ms Gemma Whitehead, deposes to same effect in her affidavit. She is specific that she was told Mr Gurran was groped in the toilet. So in this third version there is a fall, and a groping, in the toilet.

[17] Fourthly, on 17 January 2012 — two weeks after the event — Mr Gurran made some notes while in custody. He annexed these to an affidavit in support of this appeal. So far as relevant they read:

Ron left. Ian an I kept drinking Ian sort of playing cards listening to the radio. At some stage Ian got up to use the toilet an fell over in there wetting his pants on the outside it wasn’t easy to get him to his feet. I don’t recall Ian bleeding at that stage but I heard im say to me when I got bak to the table that he had taken sum bark [off] (skin) as he calls it. I was still drinking beer that I had bought at this stage. This is when Ian had pulled up his bottle of whiskey hm brew. An I poured two shots one each I asked if he was ok an his reply was I’m in good condition. It wasn’t long it seemed Ian was off to the loo again he had to walk past me to get there this when it appeared to me he was trying to touch my groin area, I jumped pushed Ian in the chest an he fell hitting his head between the kitchen and lounge area there was blood coming from his head at the back an he wasn’t talking I sat his head on my knees but there was to much blood.

So here is a new fourth account then, combining aspects of the others: a fall (in the toilet — absent in the second version), a rescue, resumed drinking (absent in the third version), then a groping at Mr Gurran’s groin (in the living area, not toilet), a snap and push, and further injuries.

[18] Fifthly, there is the evidence Mr Gurran gave in his own defence at trial. In evidence-in-chief he referred to Mr Robertson having fallen in the toilet and getting stuck — wedged — there. Then rescuing him. And then being groped by Mr Robertson on the way back into the living area of the unit. Different to the second version, with the addition of the fall in the toilet, and rescue. Different to the third version, with the groping on the walk back. And different to the fourth version, which has resumed drinking between rescue and the alleged groping on the way to the toilet. He also said in evidence that Mr Robertson had not groped him before, but “had made indications about stretching out on his bed before.” He denied kicking Mr Robertson.
[19] Sixthly, following the conviction, Mr Gurran wrote to the Judge in mitigation of the sentence he was about to receive. The letter stated, so far as relevant:

I myself believe everyone is responsible for their actions and reactions to lifes diversity’s, therefore I accept the jury’s decision of a guilty verdict, I will not appeal the decision or sentence that is imposed on me today.

...

Violence is not a natural part of my nature but under the influence of extreme intoxication, I wasn’t able to think with clear, rational, mindful insight and employ proper judgement to make the appropriate decision required for the situation at the time, which clearly reflects the consequences of my actions and of the situation that I am today... hell on earth.

I alone, am responsible for where I am today ... I have made the decision to totally abstain from alcohol ... it is the only choice I can make to protect myself from inappropriate decision making in the future. ...

We accept Mr Carruthers’ submission that this can only be construed as an admission of wounding with intent to cause grievous bodily harm. That is, consistent with the admissions made in the original police interview, undiluted by other potential causes for the grievous injuries endured by Mr Robertson — such as a fall onto a toilet, or onto a concrete path outside the day before.[10]

Fresh evidence?

[20] Mr Gurran seeks leave to adduce affidavits from his father, Mr Neil Gurran, and from Ms Gemma Whitehead, a friend. We have described their evidence already, at [16] above. It is that (1) Mr Gurran had told them that Mr Robertson had fallen in the toilet, and (2) he had done so soon after arrest — so the account was not one of recent invention.
[21] The Crown opposes admission of the affidavits. It says they are neither fresh nor cogent.
[22] Applying the approach in Lundy v R, Witihera v R and Banks v R, we decline to admit this affidavit evidence.[11] It is not fresh, but we put that to one side. We do not doubt the credibility of the two deponents. But their evidence is of very modest probative value. It does not affect the safety of the verdict. It establishes that within a few days of arrest Mr Gurran was talking of Mr Robertson having fallen in the toilet. But that must be set against two other considerations. The first is that in the “second version”, given to the police immediately after the incident, the fall in the toilet was not referred to at all.[12] Had the conversations deposed to by Mr Gurran Sr and Ms Whitehead occurred more or less contemporaneously with the police interview, rather than several days later, they might have been more significant. Secondly, this “third version” is simply one amongst a number of varying accounts given by Mr Gurran. The jury at trial had three to choose from. On any retrial, were one ordered, they might have six.

Issues

[23] This appeal gives rise to six issues:
[24] Ms Guy Kidd did not pursue a challenge to the admission of Mr Robertson’s statement. And at the hearing before us she effectively accepted that a challenge made to admission of Mr Gurran’s police interview could not succeed. In particular Ms Guy Kidd accepted she would have to show radical error by trial counsel in not challenging admissibility of the interview.[13] She accepted that threshold could not be met in this case. That is plainly correct and we need not spend time on that topic.

Issue 1: Did trial counsel err in not ensuring evidence of the complainant’s mental impairment was before the jury?

[25] In applying to admit Mr Robertson’s statement as hearsay evidence, the Crown disclosed some medical reports. Dr Fraser’s report, dated 6 March 2013, noted that Mr Robertson had a history of advanced dementia. He was unable to recognise his daughter, his primary caregiver. Dr Fernando’s report, dated 16 January 2013, said:

He has got a dementia which is most likely to be Alzheimer’s although the assault that he underwent may have had a part in aggravating it. Reportedly the dementia started approximately two years ago.

Hospital medical records disclosed by the Crown indicated Mr Robertson suffered a serious brain injury in the 1970s after another assault. He suffered some memory issues after that.

[26] Trial counsel, Mr Rickard-Simms, gave evidence before us. He accepted it was possible that Dr Fernando’s letter was only shown to Mr Gurran on the morning trial began. He accepted that he had not taken instructions from Mr Gurran about whether to introduce evidence of Mr Robertson’s dementia at trial.
Mr Rickard-Simms had fought that battle on the pre-trial application. Judge Harding had accepted Det Sgt Yardley’s evidence that Mr Robertson was lucid when giving his statement. Mr Gurran did not wish to appeal Judge Harding’s ruling. Mr Rickard-Simms was also concerned about Dr Fernando’s observation that the assault may have aggravated Mr Robertson’s dementia.
[27] Ms Guy Kidd submitted that counsel had made a radical error in not taking instructions and in not adducing evidence before the jury of Mr Robertson’s health issues (including memory issues and onset of dementia). Ms Guy Kidd also submitted that trial counsel should have called a medical expert for the defence.
[28] We do not accept these submissions.
[29] The fundamental difficulty is that no expert evidence was put before us as to the potential significance of this alleged omission. Without it we are in no position to conclude that counsel erred materially. Such evidence might or might not have established that Mr Robertson’s memory was impaired materially in January 2012 (rather than in 2013). Against that, however, stood a number of difficulties for the defence.
[30] First, Mr Robertson gave essentially consistent statements to Mrs Gurran (while lying on the kitchen floor), the ambulance officer (ditto) and to Det Sgt Yardley (when he took his statement in hospital some days later). Det Sgt Yardley was cross-examined at the pre-trial hearing before Judge Harding. His evidence strikes us as fair. He conceded, for instance, that Mr Robertson was still confused when he first saw him. He was still heavily sedated then. He also conceded that Mr Robertson was painfully slow in reading his written statement some days later. But he also formed (and explained) the view that Mr Robertson was lucid and consistent on the two occasions he interviewed him on 11 and 13 January 2012.
[31] Secondly, the photographic and medical evidence plainly demonstrates that a serious beating had been meted out to Mr Robertson. It is consistent with Mr Robertson’s account. As we have noted, Dr Duggan, the Crown medical witness, considered the fall the evening before unlikely to be the source of 10 broken ribs. A fall in the toilet might, she said, have broken some ribs. But common sense excludes such a fall as the source of injuries so serious and extensive as those evident in the photographs and medical evidence. Any medical witness for the defence would have had to deal with that very conspicuous reality.
[32] Thirdly, the fundamental difficulty for the defence was that Mr Gurran effectively condemned himself in the varying and inconsistent accounts he gave of what had occurred. That difficulty would only be exacerbated on retrial, when two or three further accounts could be put to him. Cross-examination of Mr Gurran at trial focused on his inconsistent out of Court statements.[14]

Issue 2: Did the Judge err in failing to give the jury an adequate reliability warning regarding the complainant’s evidence?

[33] Judge Wolff dealt with the issue of Mr Robertson’s reliability in a number of places in his summing-up. He explained to the jury that it was unusual for a complainant’s evidence to be given in writing, without the complainant present for cross-examination. He explained to the jury that that was because Mr Robertson was now elderly and unwell, and that it had nothing to do with the alleged assault. Then he said:

[21] You may convict on the evidence of a complainant who has had their evidence read to you, provided you are sure that his account is true. You have not obviously, however, had the advantage of seeing and hearing from him in person and you will need to make due allowance for that before accepting his account. I am going to come back to that. I am going to suggest some ways that – some tests that you will need to apply to his evidence before you accept it and the way that you will need to go about that.

He went on to discuss intoxication, and its significance or otherwise for the defence. Importantly, he said that alcohol should also play its part in the assessment of Mr Robertson’s evidence. He too appeared to have been affected by alcohol. That should be taken into account in assessing his evidence. The Judge referred to statements made by Mr Robertson to other witnesses that should be taken into account in assessing his reliability. The Judge followed that with a series of standard directions on assessing the reliability of out of Court statements: the circumstances when the statement was made, the seriousness of the occasion, whether it was made under oath and the lapse of time since it was made.

[34] Judge Wolff also handed to the jury a document called “Outline of Summing Up”. It was used by the Judge as the basis of the oral summing-up he then gave. This Court has noted the undesirability of supplementary written jury materials that shadow, but diverge from, the summing-up itself.[15] In this instance the jury materials said:

You may convict on the evidence of a complainant who has had their evidence read provided you are sure his account is true. You have not however had the advantage of seeing and hearing from him in person, and you will need to make due allowance for that before accepting his account.

Plainly the Judge based [21] of the summing-up on that passage. While we deprecate the practice, the divergence in this case, in context, does not appear to us to be material.

[35] No more specific warning was solicited by trial counsel. Mr Rickard-Simms said to us that he contemplated seeking further direction, particularly in relation to the absence of evidence on oath and of cross-examination. He considered the Judge had briefly turned his mind to these points (in the summing-up) but had “not taken it as far as [he] would have liked”. The Judge did recall the jury after completion of the summing-up to clarify a matter the prosecutor had raised with him. Further direction on reliability was not raised with the Judge.
[36] Ms Guy Kidd submitted that this was a case where the Judge should have been satisfied that Mr Robertson’s evidence may be unreliable, necessitating a reliability warning under s 122 of the Evidence Act. Relevant factors included intoxication, Mr Robertson’s dementia and a divergence on details prior to the incident at Mr Robertson’s flat. Mr Robertson had said in his statement that he, Mr Gurran and a Mr Currie had all been to the RSA prior to the incident. Both Mr Currie and Mr Gurran said in evidence that was not correct.
[37] We agree with Ms Guy Kidd that a reliability warning was required. Mr Robertson was not there to give his evidence. It was unsworn. His recollection could not be tested in cross-examination. There was ample evidence he and Mr Gurran were seriously intoxicated at the time of the incident. We do not consider the apparent discrepancy whether Messrs Robertson, Gurran and Currie had attended the RSA before the event was sufficiently material to require separate identification in the reliability warning. Mr Robertson’s dementia (if it existed in January 2012) was not in evidence. It did not require identification as a factor for reflection.
[38] However, we consider that the warnings given by the Judge in the course of his summing-up were sufficient for the purposes of s 122. No particular form of words need be used in giving a reliability warning.[16] In terms of the Supreme Court decision in CT v R, it identified the relevant risks calling for caution.[17] In requiring the jury to be sure that Mr Robertson’s account was true, it set the bar at the appropriately high level. Our clear sense is that the reason trial counsel did not seek further direction at the time was because what had just been directed was adequate.
[39] Nor do we consider any deficiency in the warning could have given rise to a risk of miscarriage of justice, given the overwhelming Crown case Mr Gurran had to confront. We note again the matters referred to at [30]–[32] above.

Issue 3: Did the cross-examination of the appellant, and the prosecutor’s closing address, infringe s 32 of the Evidence Act?

[40] A significant focus of the prosecutor’s cross-examination of Mr Gurran was the inconsistent accounts he had given of what had happened in Mr Robertson’s flat. In particular he challenged Mr Gurran on his omission to refer to Mr Robertson’s alleged fall in the toilet in his police interview. The prosecutor also devoted attention to this inconsistency in his closing address to the jury. He submitted that the failure to tell the police about the fall in the toilet was because it “simply didn’t happen”, and that Mr Gurran’s evidence otherwise to the jury was unreliable.
[41] Judge Wolff’s summing-up noted (and emphasised) Mr Gurran’s right to silence. He noted Mr Gurran had been asked in cross-examination why he had not told the police certain things. In particular, about Mr Robertson’s fall in the toilet. The Judge continued:

[63] Well you can use that question and its answer to assess his reliability, but I need to remind you that he did not have to say anything to the police so the fact that he did not say anything should not count against him. The reason that that is complicated is because we all have televisions in our houses and the English caution to an accused, with which you are probably more familiar with, actually directs an accused person that if they rely on anything that is not said to the police officer it can be used against them [sic]. That is not the New Zealand caution.

[64] The New Zealand caution simply says you have got a right to silence. So you cannot use it against him because he did not say it. But what you can do is assess in whether you – which account he gives, as to be the more accurate and reliable, the fact that he did not mention it on the first occasion. Have I made that too complicated now or do you understand it? Anyone want me to repeat that? No, okay.

[42] Ms Guy Kidd submitted that the prosecutor here crossed a “difficult line” between a challenge to the appellant’s credibility into an invitation to infer guilt by his failure to raise the fall in the police interview. She submitted this was a breach of the prohibition in ss 32(1)(b) and 32(2)(a) of the Evidence Act.
[43] We do not accept that submission.
[44] Section 32 of the Evidence Act provides:
  1. Fact-finder not to be invited to infer guilt from defendant’s silence before trial

(3) This section does not apply if the fact that the defendant did not answer a question put, or respond to a statement made, before the trial is a fact required to be proved in the proceeding.

This provision has received recent attention from this Court in: Smith v R, McNaughton v R and Hastings v R.[18] In light of the legislation, those decisions and the circumstances in this case, we make seven points.

[45] First, prior to enactment of the Evidence Act the common law permitted a limited challenge to the credibility of a defendant who had failed earlier to disclose a defence that he was now advancing in testimony in his own defence.[19]
Cross-examination and a careful and balanced comment by both prosecutor and Judge to the jury was permitted. The limited challenge permitted reflected the importance of protecting the underlying right to silence of an accused person.[20] But a challenge to credibility could certainly be made where a defendant had not exercised the right to silence at all and by improbable or inconsistent out of court statements incriminated himself.[21] In short, the defendant, if giving evidence, could be challenged on what he had said in evidence or before.
[46] Secondly, when the Evidence Act was being drafted the Law Commission report made clear that the purpose of this part of the code was to protect the right to silence. But in the Law Commission report the following is also said:[22]

... If a defendant falsely asserts that he or she has not been given an opportunity to answer the charge against him or her, s 32(3) does not prevent the prosecution from cross-examining the defendant on the assertion.[[23]] The reason is that the subject of such cross-examination is not the defendant’s exercise of the right not to answer questions, but the lie that was told about it.

The same might have been said of questioning about inconsistent accounts given where the right to silence has been waived. The Law Commission’s protective approach was, of course, retrenched further by Parliament in passing the Act, narrowing the gap between the new legislation and the preceding common law.[24]

[47] Thirdly, as this Court said in Smith v R, s 32 is a proscription only on inviting an inference of guilt from silence before trial in response to investigative questioning or in not disclosing a defence.[25] It does not proscribe challenge to the defendant’s credibility where the defendant said nothing before advancing a defence in evidence at trial. To that extent the former common law rule remains. The dividing line certainly can be difficult. But still less does s 32 proscribe challenge to credibility where the right to silence has been waived and the defendant has offered out of court explanations inconsistent with testimony given in his own defence at trial. As the Court of Appeal noted in McNaughton v R:[26]

... The prosecutor could properly have challenged Mr McNaughton’s credibility by submitting that he lied in his evidential interview and had now changed his position at trial. He could have referred in a balanced and fair way in the measured and dispassionate way expected of a Crown prosecutor to the inconsistencies in Mr McNaughton’s position. ...

[48] Fourthly, it needs to be noted that s 32 is still applicable, in the way just noted, where the defendant has said something but not disclosed a defence later advanced at trial.[27] In McNaughton the defendant had spoken to a number of people about the events in issue, but not disclosed his eventual defence — self-defence. The prosecutor’s cross-examination and closing went beyond simply challenging credibility (which is permitted) to an illicit invitation to infer guilt from the exercise, albeit partial, of the right to silence.[28] The same error occurred in Smith v R.[29]
[49] Fifthly, the focus of s 32(1)(b) is on inferences drawn from failure to disclose “a defence”. In our view this is not such a case. Here the defence was always that Mr Robertson had gained his injuries (or most of them) from a mishap or mishaps for which Mr Gurran was not responsible. He accepted responsibility only for any injuries Mr Robertson suffered after the alleged groping, at which point Mr Gurran (on his own account) either “whacked” or pushed him. He accepted he might be guilty of common assault. Where these other alleged mishaps occurred, and how, is not the defence. They are mere details supporting the defence. The defence was disclosed from the outset. Mr Gurran did not exercise a right to silence in relation to his defence. Nor as to these supporting details. On the contrary, he was loquacious, to his ultimate cost.
[50] Sixthly, having read the notes of evidence and closing addresses, we do not consider that the prosecutor overstepped the mark. He did not move from an appropriate challenge to credibility based on an inconsistent prior statement to an improper invitation to infer guilt by reason of an exercise of the right to silence. Apart entirely from the point made in the preceding paragraph, the challenge made was to credibility. It was legitimate for the prosecutor to contend that the account of the toilet fall was pure invention. In making that submission he was duty bound to have first put that proposition to Mr Gurran in cross-examination. The prosecutor did so.
[51] Finally, even if that were not the case, the directions given by the Judge, which we have reproduced at [41], were adequate to delineate the inferences that might permissibly be drawn by the jury.

Issue 4: Did the Judge’s summing-up inadequately summarise the defence?

[52] It is convenient to start this issue with the submission for the appellant. Ms Guy Kidd submitted that Judge Wolff’s summary of the defence case was inadequate and unfair in three respects:
[53] We do not accept the first criticism made — that the Judge referred to Mr Gurran’s account as a “possibility”. Defence counsel himself had put it that way. The Judge gave a standard tripartite direction in relation to Mr Gurran’s evidence, again in terms of possibilities. Reference to Mr Gurran’s account as a possibility is simply consistent with the burden of proof lying on the Crown. To invite the jury to have found that what Mr Gurran had said in fact happened would have run the risk of skewing the burden.
[54] Nor do we accept fully the second and third criticisms. These concern
non-reference to details of the defence. But a judge’s duty in summing up is to summarise the nature of the defence case and squarely put the nature of the arguments and the evidence.[30] Factual summaries should be concise and tailored to the issues the jury needs to determine. They should not recite closing addresses at any length.[31]
[55] Ms Guy Kidd’s argument focused on the written jury materials (or “Outline of Summing Up”) provided to the jury by the Judge. That focus was unsurprising. As a summary it was far less substantial than the accompanying oral summing-up. The Crown in its submissions naturally focused on the latter. This divergence is the very reason why we do not think that such an outline should be provided to a jury.[32] As Ms Guy Kidd submitted, juries will return to written directions and pay heed to them. Important matters left out may be given less priority.
[56] The summary of the Crown and defence cases, both general and specific, are very spare in the jury materials. But there is no marked disparity in length or detail. The defence case is summarised in two places.

Defence case (general)

The crown has not proved these allegations to the required standard because Mr. Robertson's injuries are possibly explained by a fall. Mr. Gurran's account to you should be accepted as a possibility.

...

Defence case

You cannot be sure what happened both men were quite drunk and injuries to a frail elderly man who had a history of falls could have been caused by a fall on this occasion too. While Mr. G admits an Assault in the form of a push or a punch, he denies a sustained attack.

If it is only a single blow/push you cannot draw the inference that he intended to cause really serious harm.

[57] It is correct that the jury materials do not refer to a fall in the toilet. But they refer adequately to the possibility of falls generally. There can be no doubt that the jury was well aware of that line of defence. Arguably, given the inconsistency of Mr Gurran’s own evidence in relation to the location of the fall, a lack of specificity as to the location in the summing-up was favourable to him. Both counsel referred to the toilet fall account in some detail in their closing addresses. The Judge referred to the potential for Mr Robertson having fallen in the toilet in his oral summing-up:

[34] [The ESR scientist] was not able to tell you what caused the blood, who delivered the blow, if a blow was delivered at all, where it was delivered and nor could she tell you where the first injury occurred. She certainly did not accept the proposition that the first injury occurred in the toilet but she could not discount that either.

[58] That passage also encompasses the bloodstain issue, to a very limited extent. The Judge probably should have made more of this in summing up. The presence of Mr Robertson’s blood smeared on the toilet wall gave some support to the defence theory that he had fallen there. Far from unequivocally, however. It was also consistent with a beating beginning there or (less credibly) Mr Robertson going there after a beating. And it was not consistent with Mr Gurran’s “fourth version” of events.[33] The reality, however, is that after the defence closing address focusing so heavily on the bloodstain, it would have been prominent in the jury’s consideration of the evidence. The Judge’s omission to make greater mention of this defence plank was not material.
[59] We are satisfied that the oral summing-up put the nature of the defence case adequately. It was not unbalanced. It put the major themes to the jury. The written jury materials, alone, would not have put either case adequately. But in context we consider that the jury would not have been misled by those materials. This was a short trial of some two and a half days. The jury had heard the Crown and defence closings, in some detail, the afternoon before the summing-up. The jury would have understood that the oral summing-up enlarged upon and set out more of the evidence than the jury materials they had received. What is required of a summing-up on the respective cases, at a minimum, is two things: the nature (but not necessarily the details) of the two cases, and fairness (which is not the same as balance if the respective cases are, as is often the case, fundamentally imbalanced).[34]
[60] Finally, to the extent there was any inadequacy in the summing-up or written jury materials, the case against the defendant remained overwhelming. No miscarriage of justice on that basis alone could have arisen.

Issue 5: Has a miscarriage of justice occurred?

[61] We do not consider that there is anything at all in the grounds of appeal addressed in issues 1 and 3. To the extent deficiencies in the summing-up were identified in our analysis of issues 2 and 4, neither individually nor collectively do those deficiencies give rise to a miscarriage of justice. That is because Mr Gurran still faced an overwhelming Crown case as a consequence of his inconsistent accounts of the events of the night of Tuesday 3 January 2012.

Issue 6: Was the sentence imposed manifestly excessive?

[62] Judge Wolff adopted a starting point of nine years’ imprisonment. That is not challenged on appeal.
[63] The Judge then allowed a discount of 18 months for the combination of Mr Gurran’s intoxication (which the Judge recognised was an unusually lenient approach) and remorse (expressed in the letter referred to at [19] above).
[64] Ms Guy Kidd submits that a greater discount should have been given for personal mitigating features. Medical evidence before the Court indicated Mr Gurran had an historic head injury and a personality disorder that made him less able to tolerate general prison conditions than the average inmate.
[65] We agree, however, with Mr Carruthers’ submissions for the Crown. No discount for intoxication was appropriate. We do not exclude, however, the possibility that a diagnosis of alcoholism relevant to the offending might justify some discount, in the same way that contributory mental impairment may.[35] Further, Mr Gurran’s renewed denial of responsibility, in the face of the letter he wrote to the Judge in successful mitigation of his sentence, means that he no longer deserves credit for remorse.
[66] Any available discount for Mr Gurran’s health issues is more than adequately met by the 18-month discount given.
[67] The Judge has not erred in the final sentence imposed. It is not manifestly excessive. The sentence appeal must be dismissed.

Result

[68] Leave to adduce the further affidavit evidence of Mr Neil Gurran and Ms Gemma Whitehead is declined.
[69] The appeal against conviction is dismissed.
[70] The appeal against sentence is also dismissed.


Solicitors:
AWS Legal, Invercargill for Appellant
Crown Law Office, Wellington for Respondent

[1] It acquitted him on a second charge of assaulting his mother.

[2] R v Gurran DC Tauranga CRI-2012-070-208, 27 May 2013.

[3] A physical exchange of some sort between Mr Gurran and his mother when she was attending to Mr Robertson gave rise to the charge of assault.

[4] At [13].

[5] This was an aspect of Mr Gurran’s defence.

[6] See [4] above.

[7] The interview concluded at 1.36 am.

[8] Inconsistently, later in the interview Mr Gurran says, “Cos I’ve been [his] mate for what, a fucken year and nothing like that’s happened and then all of a sudden he touches me like that ...” See also [18] below.

[9] We deal later in this judgment with the question of whether this further evidence should in fact be received on this appeal: see [20] below. The narrative offered was presented to us as evidence that may be available on a retrial, and we consider it here accordingly.

[10] There was evidence before the jury that Mr Robertson was unsteady on his feet, and that he had fallen on to his concrete path the evening before. The doctor called to give evidence thought it unlikely the injuries to Mr Robertson’s ribs were caused by his fall the night before. She accepted it was possible that a fall onto the toilet might cause ribs to break.

[11] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; Witihera v R [2011] NZCA 255 at [36] - [40]; Banks v R [2014] NZCA 575 at [28].

[12] See above at [13].

[13] In terms of the requirement in R v S [1998] 3 NZLR 392 (CA) at 394–395.

[14] We return to this topic at [40].

[15] Singh v R [2014] NZCA 306 at [9] and [27]; Bruce v R [2015] NZCA 332 at [28].

[16] Evidence Act 2006, s 122(4).

[17] CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [54]–[55].

[18] Smith v R [2013] NZCA 362, [2014] 2 NZLR 421; McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467; Hastings v R [2015] NZCA 180.

[19] See for example R v Coombs [1983] NZLR 748 (CA) at 751–752.

[20] Reinforced now by s 23(4) of the New Zealand Bill of Rights Act 1990.

[21] See for example Wong Kam-ming v R [1980] AC 247 (PC) at 260.

[22] Law Commission Evidence Code and Commentary (NZLC R55(2), 1999) at [C159].

[23] Section 32(3) in the Law Commission’s draft prohibited the prosecution from cross-examining a defendant on the fact that the defendant did not answer a question put or respond to a statement made to that defendant in the course of official questioning before trial, or on the fact that the defendant failed to disclose a defence before trial.

[24] See Smith v R, above n 18, at [40]–[41], referring to Elisabeth McDonald Principles of Evidence in Criminal Cases (Thomson Reuters, Wellington, 2012) at 262–264.

[25] At [42].

[26] McNaughton v R, above n 1818, at [26].

[27] McNaughton v R, above n 18, at [15].

[28] At [26]–[27].

[29] Smith v R, above n 18, at [47].

[30] R v Shipton [2007] 2 NZLR 218 (CA) at [37]; Rangihuna v R [2010] NZCA 540 at [23].

[31] Singh v R, above n 15, at [27].

[32] See above at [34] .

[33] See above at [17]. The jury did not have that, although a jury on any retrial would.

[34] Keremete v R CA247/03, 23 October 2003 at [19]; Ibbetson v R [2011] NZCA 228 at [30].

[35] R v Bridger [2003] 1 NZLR 636 (CA) at [42]–[43]; E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68]–[70].

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