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Court of Appeal of New Zealand |
Last Updated: 11 September 2015
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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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Respondent |
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BETWEEN
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Appellant |
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Respondent |
JUDGMENT OF THE COURT
C The application for an extension of time to appeal in CA422/2014 is granted.
D The appeal against conviction and sentence in CA422/2014 is dismissed. ____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1] Toti Junior Toti and James Mafi were found guilty following a trial before Judge Dawson and a jury in the Auckland District Court in April 2014 on joint charges of assault with intent to injure and of causing grievous bodily harm with intent to cause that result. Mr Toti was also found guilty on a separate charge of injuring with intent to injure. Each was convicted and sentenced to nine years imprisonment.[1] Both appeal against conviction and sentence.
[2] Ms Jayanandan, who was not trial counsel, advances Mr Toti’s appeal against conviction on the grounds that:
- (a) the prosecutor unfairly played and commented upon closed circuit television (CCTV) footage in his opening address to the jury;
- (b) the prosecutor unfairly introduced the alternative of liability as a secondary party to that of principal when closing to the jury;
- (c) the Judge’s directions on party liability were confusing or not balanced; and
- (d) trial counsel erred when closing to the jury by effectively conceding that Mr Toti was guilty on the count of injuring with intent to injure and that this error was compounded by the Judge when directing the jury.
[3] Ms Kincade advances Mr Mafi’s appeal against conviction on the grounds that the Judge’s directions on self-defence were inadequate in that:
- (a) they required the jury to consider self-defence after having considered the elements of the offending;
- (b) they referred inappropriately to the need for a reasonable balance between the force which Mr Mafi used and the threat which he perceived and did not adequately explain the concept of reasonable force;
- (c) they did not include directions about a pre-emptive act of selfdefence or the absence of any duty to retreat; and
- (d) they included a factual error about the duration of Mr Mafi’s absence from the CCTV footage.
Facts
[4] The essential facts were not in dispute at trial. What was in dispute was the nature and extent of the participation in the offending of each of Messrs Toti and Mafi and whether Mr Mafi, when striking one of the victims, was acting in defence of his cousin, Thomas Mafi.
[5] In summary, the Crown case was that in the late hours of an evening in November 2012 Messrs Toti and Mafi were drinking with friends on the footpath outside a pub in Point Chevalier. Two men, Messrs Richard Van Den Bogaard and Michael Lovelock, drove past. Mr Toti threw an object at their car. An exchange of words quickly evolved into a physical altercation when Mr Toti ran to the car window and punched Mr Van Den Bogaard in the face, fracturing his nose.
[6] Mr Van Den Bogaard got out of the car. He exchanged blows with an associate of Messrs Mafi and Toti. Mr Lovelock, who was in the passenger seat, also got out of the car. He intended to break up the fight.
[7] What happened next is critical. Mr Mafi charged at Mr Lovelock. He punched him in the head with such force that he fell to the ground. Mr Mafi briefly left to join in the fight against Mr Van Den Bogaard. By the time he returned Mr Lovelock had regained his footing. Mr Mafi punched him again in the head, knocking him to the ground where he lost consciousness. Mr Mafi then rejoined the attack on Mr Van Den Bogaard.
[8] Mr Toti and another person returned to Mr Lovelock, who was by then lying unconscious on the ground. They kicked him in the head before rejoining the attack on Mr Van Den Bogaard.
[9] The attack, which lasted less than one minute, was captured on CCTV footage. Even though the images recorded were grainy, the evidence they yielded proved critical at trial. There were also eye witnesses who were able to give damaging accounts of the parts played by the defendants by reference to descriptions which matched the circumstantial identification of each.
[10] Apart from suffering a broken nose, Mr Van Den Bogaard’s injuries were limited to bruising to his ear, jaw and eye. Mr Lovelock was not so fortunate. He was hospitalised and put in a medically induced coma. He suffered complex facial bone fractures and, more significantly, bleeding around and contusion to his brain. As a result, he is permanently brain damaged.
[11] Mr Toti did not give evidence at trial. But through his counsel he acknowledged that he had punched Mr Van Den Bogaard. His defence was that he did not intend to injure him and that he did not participate in the attack on Mr Lovelock.
[12] Mr Mafi gave evidence at trial. He admitted participation in the attack on both victims. His defence was that he was acting throughout in defence of his cousin.
[13] Mr Toti was found guilty of one count of injuring Mr Van Den Bogaard with intent to injure him. He was also found guilty jointly with Mr Mafi of charges of assaulting Mr Van Den Bogaard with intent to injure and of causing grievous bodily harm to Mr Lovelock with intent to cause that result.
Conviction
Mr Toti
[14] Mr Toti filed his appeal out of time, but as the delay is minimal we grant an extension. As noted, Ms Jayanandan advances four grounds of appeal. First, she submits that the prosecutor, Mr Shaw, acted unfairly by playing and commenting on the CCTV footage during his opening address. She says that Mr Shaw pre-emptively set the tone for the trial by inappropriately drawing the jury’s attention to what would become vital evidence at trial. Instead, she says, the Crown should have introduced the CCTV footage after opening in the usual way through appropriate witnesses so as not to usurp the jury’s function.
[15] This submission has no merit. A prosecutor is always entitled in an opening address to refer to evidence to be given at trial. Whether and to what extent he or she does so is a matter of judgment. Here, there was no challenge to the admissibility of the CCTV footage which was the primary evidence for the Crown. It was simply a matter of timing; the jury was always going to be invited to consider the footage and still images in detail and with care because both were sufficiently clear to identify most of the actions taken by those responsible for the attack. Reference to the footage in opening before its formal admission could not possibly usurp the jury’s function.
[16] Moreover, as Mr Carruthers points out, Mr Toti’s trial counsel expressly agreed to this course.
[17] Second, Ms Jayanandan submits that the Crown wrongly or unfairly invited the jury to find Mr Toti guilty on the basis that he was a party to the offending whereas he was charged solely as a principal; and that by failing to amend the charge to incorporate a specific reference to secondary liability by reference to s 66 of the Crimes Act 1961 the Crown misled Mr Toti in his defence because it changed its position in closing without prior warning.
[18] Again, this submission ignores the uncontroverted trial record and is without merit. Mr Carruthers drew our attention to Mr Shaw’s advice to the Judge and defence counsel before opening that the Crown would rely on proving Mr Toti’s criminal liability alternatively either as a principal or secondary party to the other’s principal liability. All defendants were jointly charged. With counsel’s concurrence, the Judge carefully directed the jury both orally and in the question trail on the alternatives of primary and secondary liability. There can be no suggestion that either Mr Toti or his counsel were misled about the nature of the Crown case against them. It could not have been more straightforward. In these circumstances the omission of a reference to s 66 in the formal counts is irrelevant.
[19] Third, Ms Jayanandan submits that the Judge failed to direct the jury properly on party liability. She says that his directions may have led the jury to conclude that they must either acquit or convict each defendant provided they were satisfied that one or more them was a principal.
[20] There is nothing in this submission either. The Judge made it plain to the jury that if it did not find any of the defendants guilty as a principal party then it could not find any of the others guilty as a secondary party who assisted or encouraged the offending. His direction was orthodox and correct.
[21] Fourth, Ms Jayanandan submits that in his closing address Mr Toti’s trial counsel made a concession of proof of two critical elements of the charge of injuring Mr Van Den Bogaard with intent to injure – the elements of intent and the result of injury. As a result, the jury was left with no option except to convict. This concession, made at a late stage, was said not to be in Mr Toti’s best interests and, furthermore, the jury may have returned verdicts of guilty on the remaining charges by inferring that the concession extended to all charges.
[22] Ms Jayanandan did not suggest that counsel’s concessions were made without authority. Nor did she suggest that they constituted an error of the type which might give rise to a miscarriage of justice. To the contrary, counsel cannot be criticised for conceding what was obvious – the nature and extent of the injuries suffered by the victim – or that the person who inflicted the blows or assisted in that respect acted with the necessary intent. Counsel’s obvious strategy, and the only one realistically available, was to focus the jury on the essence of Mr Toti’s defence that he did not participate in the offending.
[23] In summary, all Mr Toti’s grounds of appeal are without merit and must fail. We add that the Crown case against Mr Toti was very strong. The uncontroverted evidence both from the CCTV footage and eye witnesses was that he was drunk and aggressive and both the instigator and perpetrator of most of the violence. The Crown’s uncontested medical evidence was that Mr Lovelock’s most severe brain injuries were caused by kicks to his head while he lay unconscious on the ground. While his attack on Mr Lovelock’s head was not captured on camera, the eye witness and associated circumstantial evidence led overwhelmingly to Mr Toti’s identification as the offender.
Mr Mafi
[24] Mr Mafi’s defence at trial was that the victims began the fight, although Ms Kincade accepts that his evidence to this effect may have been rejected by the jury. She also accepts that Mr Mafi was responsible for striking both the separate punches to Mr Lovelock’s head – and other separate blows to Mr Van Den Bogaard. Both blows to Mr Lovelock were delivered with such force that they knocked him to the ground. These concessions are proper but they also reflect the formidable difficulties faced by Mr Mafi at trial in relying on the defence of defence of another.
[25] Ms Kincade focuses on the Judge’s directions on self-defence. First, she submits that he erred in directing the jury to consider the elements of the offences before it considered self-defence – that is, on the principal or lead charge of causing grievous bodily harm he directed the jury to make a finding on the element of intention to cause really serious bodily harm before the issue of whether Mr Mafi was acting in defence of another. Thus, Ms Kincade submits, to reach its verdict, the jury must have made its finding that Mr Mafi intended to cause really serious bodily harm before proceeding to the next stage of determining self-defence. By that stage, the defence would be rendered superfluous. Logically the jury should have considered self-defence first and then only addressed intent if it found that selfdefence was absent.
[26] We accept that in similar types of trials this Court has recommended that as a matter of logic a Judge should direct the jury to consider self-defence before any issue of intention.[2] However, as Mr Carruthers submits, a failure to follow this course will not necessarily result in miscarriage of justice.[3] That is because, regardless of the order in which the jury addressed the issues, it did so according to the Judge’s express direction that self-defence was a complete defence to the charge.
[27] Second, Ms Kincade submits that the Judge may have misled the jury when directing it on the third element of the defence of self-defence – that the force used in the circumstances as Mr Mafi believed them to be was reasonable. In this case the Judge directed the jury that there must:
have been a reasonable balance between the threat that James Mafi believed Thomas Mafi faced, and the force that James Mafi used to meet it.
[28] Furthermore, she says, the Judge did not fully explain the nature and elements of the defence of self-defence. However, we note that in summing-up the Judge provided the jury with written materials which included the statutory definition of self-defence. Also included in the written materials were separate question trails for the jury to follow for each of Messrs Toti and Mafi on each charge.
[29] We agree with Ms Kincade that the Judge’s direction on a reasonable balance was wrong: the law does not require a jury to undertake a comparative assessment between the threat which Mr Mafi believed his cousin faced and the force which he used to meet it. The Judge’s one sentence reference to balancing the reasonableness of the threat with the force used was misplaced. Instead the composite direction on this element should have been: first, to ascertain what were the circumstances as Mr Mafi believed them to be (the subjective inquiry); and, second, whether in those circumstances the force used was necessary to meet or prevent the apprehended threat (the objective inquiry).[4]
[30] However, we are not satisfied that this error caused a miscarriage. The Judge correctly directed the jury both orally and in the question trail to consider the circumstances as Mr Mafi believed them to be and to determine whether the Crown had proved that the force used was unreasonable.
[31] Moreover, we agree with Mr Carruthers that by the conclusion of the evidence Mr Mafi’s defence existed in name only. Its essence was that he only became involved in the fight because he was following his cousin, Thomas, who had a broken arm, and wanted to protect him from trouble or harm. Mr Mafi’s credibility problems in that respect were obvious. There could be no question whatsoever that Thomas was at risk when, after twice knocking Mr Lovelock to the ground, Mr Mafi gratuitously joined in a second attack on Mr Van Den Bogaard. And the other problem with Mr Mafi’s assertion that Mr Lovelock was pursuing his cousin Thomas was that Mr Lovelock’s foot was in a moon boot and his mobility was plainly impeded, as some Crown witnesses confirmed.
[32] Mr Mafi effectively conceded that self-defence was unavailable for the first blow he struck against Mr Lovelock. He admitted in cross-examination that he did not consider whether it would be appropriate to grab and restrain Mr Lovelock if he was in fact threatening Thomas. Nor did he consider just stepping between the two men or, more aptly, removing Thomas from the fray. The only option he considered was to charge in and punch Mr Lovelock. He accepted that he could easily have wrapped his arms around Mr Lovelock to prevent him applying any force to Thomas; and that “that would’ve been a better option”. He agreed that, “instead of firing it up”, he might have calmed the situation.
[33] In cross-examination Mr Mafi admitted, by reference to the evidence available from the CCTV footage, that he “ran up and punched” or “charged” Mr Lovelock forcefully in the head on the second occasion. He then volunteered that “I blind shot him”, and agreed that he meant that Mr Lovelock did not see the punch coming. He corroborated the evidence of two Crown witnesses that he “king hit” Mr Lovelock. Mr Mafi further admitted that footage showed that immediately after Mr Lovelock fell to the ground Thomas was with others “around the corner”.
[34] In these answers Mr Mafi incriminated himself beyond his counsel’s redemption. He was effectively conceding that the force he used was unreasonable even if he could credibly maintain any vestige of an assertion that he was acting to protect Thomas. He may count himself fortunate that the Judge did not give more explicit factual directions in this respect or withdraw the defence from the jury.[5]
[35] Third, Ms Kincade submits that the Judge erred in omitting to direct the jury about pre-emptive strikes. However, in the circumstances just narrated he was not under any such duty. Mr Mafi had already admitted, for the first punch at least, that he could have achieved his alleged objective of protecting Thomas without resorting to the use of force.[6] He expressly admitted that alternative courses were open to him. Nor did the Judge err in not directing the jury that there was no duty to retreat under self-defence. We agree with Mr Carruthers that such a direction was unnecessary, given that the Crown had never raised the existence of such a duty.
[36] Fourth, Ms Kincade submits that the Judge erred when directing the jury that Mr Mafi was out of view on the CCTV footage for about three seconds. What the Judge had said in summing-up by reference to Ms Kincade’s submission, was that the maximum time Mr Mafi could have been off the CCTV footage because he was around the corner would have been three seconds. At Ms Kincade’s request, the Judge rectified the mistake. He pointed out that Ms Kincade’s submission was not that Mr Mafi was around the corner for three seconds but that it was “the longest period he could have been at the corner”. Apart from the fact that this error was obviously of no consequence, it was fully repaired by the Judge before the jury retired.
[37] In summary, the Crown case against Mr Mafi was as strong as it was against Mr Toti. Our only reservation about the conviction of both men arises from the Judge’s omission to direct the jury specifically on causation on the lead charge of causing grievous bodily harm to Mr Lovelock. An agreed statement of facts signed by counsel admitted that Mr Van Den Bogaard suffered a bilateral nasal fracture, tenderness of the ear and jaw and left eye redness. By these admissions the parties agreed that Mr Van Den Bogaard suffered injury as a result of the attacks on him. It was unnecessary for the jury to address this issue. The only real issues for the jury on the charges relating to Mr Van Den Bogaard were identification and intent.
[38] Proof that Messrs Mafi and Toti caused Mr Lovelock grievous bodily harm was an element of that charge. The statement of agreed facts was arguably equivocal in its admission that Mr Lovelock suffered serious injuries of the type to be described in evidence by Dr Simon Stables, a forensic pathologist; and that he “suffered brain injury as a result of the incident”. In view of the Crown’s case that the two men were jointly liable for Mr Lovelock’s injuries the Judge should have directed the jury to consider whether, if each was liable as a principal, it was satisfied that the blows or kicks struck separately by each of them caused really serious harm; or, if they were liable as secondary parties, to consider whether each encouraged or assisted the other in that result.
[39] However, on analysis of the trial record and evidential transcript we are satisfied that the Judge’s omission could not possibly have led to a miscarriage of justice. In Mr Toti’s case, once the jury accepted that he was criminally liable either as encouraging Mr Mafi to punch Mr Lovelock or as the principal offender who kicked Mr Lovelock in the head, causation of really serious harm to the victim was axiomatic. Indeed, consistently with his apparent theory of the case that Mr Toti was not involved in the attack on Mr Lovelock, Mr Toti’s trial counsel did not cross-examine Dr Stables at all.
[40] In Mr Mafi’s case, Dr Stables’ opinion was that the blows struck to Mr Lovelock’s head and its subsequent contact with the ground were in combination the likely cause of fractures to his nose and eye socket and surface bruising. It is beyond doubt that these injuries themselves amounted to really serious harm; they were caused by Mr Mafi. Ms Kincade’s very brief cross-examination was limited to a few questions designed to reinforce that Mr Mafi’s punches alone were not the sole or primary cause of Mr Lovelock’s more severe brain injury. This evidence alone was sufficient to prove the element of causation and the substantive charge of causing grievous bodily harm.
[41] In Dr Stables’ opinion the damage to the deep part of Mr Lovelock’s brain was caused by a combination of blows, head contact with the ground and, of particular significance, kicks to the head. Again these injuries amounted to really serious harm. Mr Mafi’s contribution to them was beyond question. Proof of his participation was not strictly necessary because the elements of the charge were already made out by evidence that he had caused the facial fractures earlier described. Dr Stables’ evidence about Mr Lovelock’s brain injuries simply reinforced Mr Mafi’s causative participation in the attack.
[42] Also, when directing the jury in summing-up the Judge reminded its members that they had to be sure of an intention to cause really serious bodily harm. The same direction was given in the question trails. The Judge did refer to Dr Stables’ evidence but only in the context of a general direction about the nature and effect of expert evidence. As we have said, he should have given a specific direction about causation, even if only briefly by reference to Dr Stables’ evidence. But we are satisfied that his omission could not possibly have been material to the result.
[43] Finally, it is significant that counsel of Ms Kincade’s experience did not raise with the Judge at the conclusion of his summing-up any reference to his omission of a direction on causation.
[44] It follows that both appeals against conviction must fail.
Sentence
Mr Toti
[45] Ms Jayanandan submits that the end sentence of nine years imprisonment imposed on Mr Toti was manifestly excessive. She says that the Judge erred in placing the overall offending within band 3 of R v Taueki and adopting a starting point of ten years imprisonment on the lead charge of causing grievous bodily harm.[7] From this base, the Judge allowed a discount of one year for mitigating features including Mr Toti’s remorse, age and other personal circumstances.
[46] Ms Jayanandan suggests that, taking account of the aggravating features, an appropriate starting point was seven to eight years imprisonment. She also submits that the fact that Mr Toti was 22 years of age, was employed and has a partner and young child justified a greater discount than one year. She submits that the final sentence should have been in the range of six to seven years imprisonment.
[47] While a starting point of ten years imprisonment was stern, we are not satisfied it was excessive. The Judge was entitled to apply the Taueki band 3 tariff of nine to 14 years imprisonment. A number of aggravating features were present. Included among them were those identified by the Judge: the group attack, multiple victims, extreme violence, Mr Lovelock’s vulnerability – in particular because he was lying unconscious on the ground when Mr Toti kicked him repeatedly – and his permanent and severe brain damage suffered as a result.[8] The Judge was satisfied that only the skill of the medical staff who treated Mr Lovelock saved his life and spared Mr Toti from facing a more serious charge.
[48] It was also open to the Judge to find that Mr Toti was the instigator and a significant perpetrator of the violence. His level of culpability was very high.[9] The deduction of one year for his personal circumstances was generous. Mr Toti’s appeal against sentence must fail.
Mr Mafi
[49] Ms Kincade also challenges the Judge’s adoption of band 3 from Taueki as it applied to Mr Mafi’s offending. She submits that the Judge found more aggravating features than were in fact apparent. As a result, he placed the offending in band 3 when it should have been band 2, with a starting point range of five to ten years imprisonment.
[50] Ms Kincade also submits that the Judge should have differentiated between the roles played by Messrs Toti and Mafi. She points out Mr Toti started the fight, his role in the offending was different because there was no suggestion of self-defence or defence of another, Mr Toti kicked Mr Lovelock while he was on the ground and Mr Mafi’s role was limited to two punches to Mr Lovelock. She noted also that Mr Mafi was 22 years old at the time of the attack, had no history of violence, lives in a stable relationship and has a young child.
[51] Ms Kincade relies on two other factors. First, Mr Mafi was on bail and subject to a 24 hour curfew for about one year and then a 12 hour curfew for another year – no account was given for this factor at sentencing. Second, Mr Mafi also deserves some credit for giving evidence for the Crown in an unrelated murder trial.
[52] We have already concluded that the Judge did not err in fixing the circumstances of the offending with all its aggravating features as attracting a starting point within band 3. Mr Mafi’s unsuccessful reliance on a defence of self-defence is irrelevant once it was rejected by the jury. It is artificial to differentiate between the roles played by two of the main offenders in a joint attack of this type on others. This was a concerted attack by two or more men who each participated with the others in sustained acts of gratuitous violence; and it does not matter that one attack in this joint enterprise may have had a more serious effect than that of his codefendant.
[53] We accept that the Judge did not make specific allowances for Mr Mafi’s time spent on bail. He was not then aware of Mr Mafi’s assistance to the police in giving evidence at a homicide trial. In this latter respect we have considered a recent memorandum filed by Mr Carruthers outlining the circumstances of the prosecution and of Mr Mafi’s evidence. We agree with Ms Kincade that while Mr Mafi’s evidence was of limited use it was still of some use to the Crown at trial. This factor alone, which we repeat was not known to the Judge, when considered in conjunction with the restrictive terms of bail, justifies an additional credit against the starting point of one and a half years imprisonment. Mr Mafi may count himself fortunate that the Judge was prepared to allow a separate credit of one year for his personal circumstances. Mr Mafi’s appeal against sentence is allowed.
Result
[54] Mr Toti’s appeal against conviction and sentence is dismissed.
[55] Mr Mafi’s application for an extension of time to appeal is granted. His appeal against conviction is dismissed. His appeal against sentence is allowed. The sentence of nine years imprisonment is quashed and a sentence of seven and a half years imprisonment is substituted.
Solicitors:
Crown Law Office, Wellington
for Respondent
[1] R v Mafi and Toti DC Auckland CRI-2012-004-18382, 27 June 2014.
[2] R v Seu CA81/05, 8 December 2005 at [69]; Wang v R [2014] NZCA 251 at [27].
[3] R v Seu, above n 2, at [70].
[4] See for example Vincent v R [2015] NZCA 201 at [25].
[5] See Vincent v R, above n 4, at [30]–[31].
[6] R v Wang [1990] 2 NZLR 529 (CA) at 535–536.
[7] R v Taueki [2005] 3 NZLR (CA) 372 at [40].
[8] R v Mafi and Toti, above n 1, at [16]–[18].
[9] At [22].
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