Gurran v R [2015] NZCA 64 (11 March 2015)

Last Updated: 17 March 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA412/2013 [2015] NZCA 64
BETWEEN	DION EDWARD GURRAN Appellant
AND	THE QUEEN Respondent

Hearing:	18 February 2015
Court:	Miller, MacKenzie and Lang JJ
Counsel:	F E Guy Kidd and JAT Ross for Appellant JEL Carruthers for Respondent
Judgment:	11 March 2015 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to withdraw the notice of abandonment of Mr Gurran’s appeal is granted. Directions are made in paragraph [30] to timetable the hearing of his appeal.
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REASONS OF THE COURT

(Given by Miller J)

[1] Mr Gurran moves to withdraw the notice by which he abandoned his appeal against conviction for wounding Ian Robertson with intent to cause grievous bodily harm and the sentence of seven years, six months imprisonment.

The facts

[2] The conviction resulted from an incident which took place on 3 January 2012 at the home of Mr Robertson, a 75-year old man who had become a friend of Mr Gurran’s. For our purposes a brief narrative will suffice.
[3] Mr Gurran and Mr Robertson had been drinking together. At about 8.00 pm Mr Gurran, who is now aged 44, phoned his mother, Delphine Gurran, and said that Mr Robertson was hurt. She found Mr Robertson lying on the kitchen floor with multiple injuries including ten broken ribs and a collapsed lung. There was a significant amount of blood in the kitchen and in the toilet.
[4] Mrs Gurran deposed that her son slapped and kicked Mr Robertson in her presence and accused Mr Robertson of attacking him. She said he also attacked her; that was the subject of a separate charge, on which Mr Gurran was acquitted.
[5] Mr Gurran himself told an ambulance officer that Mr Robertson had attacked him, and at interview several hours later, still intoxicated, he claimed that he had reacted with a punch when Mr Robertson made a sexual advance.
[6] About 10 days later Mr Robertson made a statement to the police in which he said that Mr Gurran had attacked him out of the blue while they were drinking in the lounge.
[7] Mr Gurran was denied bail pending trial. He spent the remand at Waikeria Prison.

The trial and sentencing

[8] The trial began on 25 March 2013. The Crown witnesses included Mrs Gurran and the ambulance officer, Craig Hooper. Mr Gurran’s DVD interview was played. Police witnesses gave scene evidence, and an ESR witness gave evidence about bloodstains found at the scene. Mr Robertson did not give evidence. He was affected by dementia when the incident happened, and by the time of trial his condition had advanced to the point where he was unable to give evidence. His statement was admitted in evidence over the opposition of defence counsel. The jury were told that he was unwell, but not that he had been suffering from dementia at the time of the incident.
[9] Mr Gurran gave evidence. His account was that Mr Robertson fell in the toilet, which must have accounted for the broken ribs. There was forensic evidence consistent with a fall there. He said that he helped Mr Robertson back into the kitchen, but Mr Robertson made an inappropriate advance which led Mr Gurran to punch or push him once, which caused Mr Robertson to fall to the floor and accounted for blood and other forensic evidence found there. He denied kicking Mr Robertson in his mother’s presence and was acquitted on the charge of assaulting her.
[10] The prosecutor made much in cross-examination and in closing of Mr Gurran’s failure to refer to a fall in the toilet in his police interview, accusing him of having made it up after receiving the police disclosure.
[11] At sentencing Mr Gurran wrote to Judge Wolff accepting responsibility for his actions and indicating that he would not appeal.
[12] After sentencing Mr Gurran was transferred to Rangipo Prison.

Jurisdiction

[13] The jurisdiction to set aside a notice of abandonment is not in issue. We adopt the summary in McCready v R:^[1]

[6] ... in R v Cramp ... this Court emphasised the intended finality of an abandonment and the importance of finality in criminal cases. However, setting aside a notice of abandonment is not limited to situations in which the notice was itself a nullity. The Court may set aside a notice in exceptional circumstances having regard to the importance of finality in criminal cases, the circumstances in which the notice was given, the necessity for an applicant to satisfy the Court that the reasons for an application are of an exceptional nature, and the interests of justice.

Circumstances of abandonment

[14] Mr Gurran filed his appeal in time and trial counsel, Mr Rickard-Simms set about preparing the argument. It was his opinion that the appeal had good prospects of success; the Judge had failed to put the defence case and, in his opinion, the hearsay statement of Mr Robertson should not have been admitted.
[15] Shortly before submissions were to be filed counsel was advised that Mr Gurran did not wish to continue with the appeal. Counsel spoke to Mr Gurran by telephone, finding him unsure whether he wished to pursue the appeal or not. Counsel advised him that he believed the appeal had a good chance of success. But Mr Gurran worried, in particular, that he would be returned to Waikeria Prison should a retrial be ordered. He had been assaulted there while on remand. Rangipo Prison does not have remand facilities. Counsel was unable to assure him that he would get bail pending a retrial.
[16] In response to that advice, Mr Gurran instructed counsel that he did not wish to proceed with the appeal. He confirmed this instruction in a subsequent telephone call, telling counsel that he was frightened to go back to Waikeria. He remained adamant, and as a result counsel filed a notice abandoning the appeal on 17 March 2014.
[17] Mr Gurran experienced a moderate traumatic brain injury when younger and also suffers from a personality disorder which causes him to experience paranoia, low self-esteem, social anxiety, difficulty relating to others and avoidance of group therapy. A consultant psychiatrist, Darren Malone, has expressed the opinion that Mr Gurran’s disordered personality is the cause of his decision to abandon the appeal; it magnified his fear of leaving segregation and returning to the general prison population as a remand prisoner.
[18] As Mr Carruthers pointed out, Mr Gurran’s decision to abandon his appeal was an informed one. His counsel had advised him that he had reasonable prospects of success. However, it is not in dispute that Mr Gurran acted for psychological reasons which caused him to experience fear of being removed from Rangipo Prison, where he felt secure, to Waikeria.

The merits

[19] It is also necessary to consider whether the appeal has any merit.
[20] New counsel, Mrs Guy Kidd, means to advance the following grounds:

(a) The trial Judge failed to adequately sum up the defence case and in particular the fact of and relevance of a fall by the complainant in the toilet and the blood located in the toilet.

(b) The Judge failed to warn the Jury regarding reliance on the hearsay evidence of the complainant and the hearsay evidence of other witnesses as to what the complainant had said: s 122 Evidence Act.

(c) The Judge included in the question trail an “outline of the summing up” and inadequate summary of the Defence case.

(d) Inadequate directions on intoxication were given.

(e) The admission (and use) of the appellant’s DVD interview was unfair.

(f) There is evidence to rebut the Crown Prosecutor’s suggestion that the appellant’s evidence that the complainant fell in the toilet was something invented after the receipt of disclosure.

[21] Because we have decided that the application must be granted, we will say little about these grounds. We note in particular that some raise questions about the conduct of the trial and although a waiver of privilege has been signed, the Crown has not had an opportunity to brief Mr Rickard-Simms. The affidavit which he has sworn was prepared at the request of the appellant.
[22] It suffices for our purposes to identify three grounds of appeal which appear to have some merit and briefly explain why.
[23] The first relates to the accusation of recent invention which was advanced by the prosecutor in cross-examination and made much of in closing. There is affidavit evidence from other witnesses to the effect that Mr Gurran did not invent his account after disclosure; he advanced it much earlier than that. No challenge was advanced to this evidence before us. Defence counsel may have been unaware of this other evidence, and in any event would have had very little time to respond to the Crown attack. The prosecutor made repeated and emphatic use of the point in cross-examination and in closing, highlighting Mr Gurran’s failure to speak when he had the chance. In the circumstances, there may also be a question whether the prosecutor’s use of Mr Gurran’s statement breached s 32 of the Evidence Act.^[2]
[24] Next, there is a challenge to the directions given by Judge Wolff regarding the evidence of Mr Robertson. Section 122(2) of the Evidence Act required that the Judge consider giving a warning regarding Mr Robertson’s evidence, which was of course hearsay. Such a warning would ordinarily point to the unsworn nature of the statement, and emphasise that the defence had been unable to test the evidence, and identify any circumstances or features of the evidence that raised doubt about its reliability.^[3]
[25] Judge Wolff did explain that the jury had not had the advantage of seeing and hearing from Mr Robertson in person and would need to make due allowance for that before accepting the statement. He suggested that he would give the jury some tests that they would need to apply to his evidence before accepting it. He went on to warn the jury that they must take Mr Robertson’s own intoxication into account when assessing his statement. He gave a general warning about previous statements made by a number of witnesses, emphasising that the jury must consider the circumstances in which the statement was made and whether the person making the statement knew that what was being said was important and needed to be accurate and reliable. He also explained that the supporting evidence of other witnesses, notably Mrs Gurran, could be used to assess Mr Robertson’s statement.
[26] Mrs Guy Kidd submitted, however, that the Judge did not sufficiently explain to the jury why Mr Robertson’s statement might be unreliable, and emphasised that he said nothing about defence counsel’s inability to cross-examine. There is evidence that the statement was wrong in some details; notably, it asserted that there had been shouting, but a neighbour, Owen Chivers, deposed that he heard none. It also stated that the attack followed a drinking session at the local RSA, but Mr Gurran denied that they had been there that day. In the circumstances, the inability to cross-examine may have been a significant disadvantage. It may also be that the reliability of Mr Robertson’s statement was affected by his dementia and longstanding pattern of heavy drinking. If so, counsel may have erred by failing to make anything of these matters.
[27] Finally, there may be merit in Mrs Guy Kidd’s complaint that the Judge did not adequately sum up the defence case. He did record that the defence pointed to the possibility of a fall and denied a sustained attack, but he made no mention of the defence narrative, which began with a fall in the toilet and was central to the defence.
[28] Mr Carruthers argued forcefully that none of these matters is sufficient to establish a miscarriage of justice. Counsel pointed to the evidence of Mrs Gurran and the ambulance officer, and the medical and forensic evidence. He emphasised that trial judges may summarise the parties’ cases briefly and observed that the summing up was balanced. However, we are of the view at this stage that some of the proposed grounds of appeal have prospects of success.

Decision

[29] We are satisfied that the circumstances of this case are sufficiently exceptional to justify leave. Accordingly, the application is granted.
[30] We direct that steps now be taken to comply with rr 12A and 12B of the Court of Appeal (Criminal) Rules 2001. For purposes of sub-rules (2) of both rules, time is to run from the date of delivery of this judgment.

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

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^[1] McCready v R [2010] NZCA 596 (footnotes omitted).

^[2] McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467.

^[3] R v Qui [2007] NZSC 51, [2008] 1 NZLR 1; and R v Ngarino [2009] NZCA 200.