Taingahue v R [2016] NZCA 557 (29 November 2016)

Last Updated: 13 December 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA409/2016 [2016] NZCA 557
BETWEEN	CHARLENE JOSEPHINE TAINGAHUE Applicant
AND	THE QUEEN Respondent

Court:	Kós P, French and Venning JJ
Counsel:	G Ghahraman for Applicant P D Marshall for Respondent
Judgment: (On the papers)	29 November 2016 at 2 pm

JUDGMENT OF THE COURT

1. An extension of time to apply for leave to appeal is granted.
2. The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1] Charlene Taingahue seeks leave to commence a second appeal (out of time). On 5 October 2016 Miller J directed Ms Taingahue’s application be dealt with on the papers.
[2] Following a Judge-alone trial before Judge Cathcart in the District Court at Gisborne Ms Taingahue was convicted of one charge of injuring with intent to cause grievous bodily harm.^[1] The charge arose from her involvement in an incident in Gisborne on 7 January 2015. The Judge sentenced Ms Taingahue to three years’ imprisonment.^[2]
[3] Brown J dismissed her appeal against conviction and sentence on 16 June 2016.^[3]
[4] The application for leave to bring a second appeal against conviction should have been filed by 14 July 2016.^[4] Although it was not filed until 11 August, the respondent did not take issue with lateness in its submissions.

Brief facts

[5] We take the background facts from the decision of Judge Cathcart:^[5]

[129] I accept [the complainants’] evidence that they were waiting at the address for [defence witness] Ms Fox to return and that she arrived about five minutes later. I accept their evidence that the return of Ms Fox was followed by the other vehicle shortly thereafter. I accept the Crown’s position on the evidence that the three defendants were accompanied by an unknown woman, that they all got out of the vehicle at the same time. On the evidence, I accept that three of the women, including Charlene Taingahue and Destiny Taingahue, went to [the complainant] Ms Taylor’s side of the vehicle and that Ms Hubbard to the driver’s side.

[130] Also, I accept as both truthful and reliable, Ms Taylor’s evidence that the spanner was used initially and that she was struck over the head, by one of the three women that I have referred to, on her side of the vehicle.

[131] Most importantly, I accept the evidence of both Ms Taylor and [Ms Taylor’s mother] Ms Dominey, that all three women on Ms Taylor’s side of the vehicle, attacked Ms Taylor. One of them, having dragged her from the vehicle. It appears quite clear now that that was the defendant Charlene Taingahue.

[132] ... it is clear that all three women were involved in the assault. As I have indicated earlier, I accept [Ms Dominey’s evidence] that what took place (while she was sitting in the driver’s seat) when her daughter was on the ground, was up close and personal and clear to her sight.

...

[137] I find that there was a three-on-one severe beating of Ms Taylor. At the time she suffered that beating, she was defenceless on the ground and cowering. When she was dragged from the vehicle, she may well have tried to resist the dragging with the use of her legs.

[138] The injuries that she suffered around her head area in particular, and the scrapes that she received on her body, particularly the joints area on the arms, elbows and wrists, are consistent with Ms Taylor’s account.

[139] Also, I make a finding that one of the three women, who was on the right-hand side of that vehicle, inflicted an injury to Ms Taylor with intent to cause her really serious harm. I take the view that that intention is made out in relation to at least one of those three women. It is further borne out by the fact that this was an assault by three women on one. Ms Taylor was on the ground, defenceless and near the kerb. She received repeated head shots. She suffered significant injuries to her head, as depicted in the photographs. I have already found that a spanner was used by one of the three women. In my view, the inference that that principal offender had the intent to cause grievous bodily harm, when the injuries were inflicted, is overwhelming.

[6] This Court must not grant leave for a second appeal against conviction unless it is satisfied that:

• (a) the appeal involves a matter of general or public importance; or
• (b) a miscarriage of justice may have occurred or may occur unless the appeal is heard.^[6]

[7] In Hohipa v R this Court discussed the test to be applied to the first consideration in particular:^[7]

[37] In McAllister v R, this Court addressed the criteria for second appeals by leave under s 264 of the CPA, which deals with second appeals under subpart 5 (contempt) of part 6. The Court observed that the legislature has aligned the criteria for leave in s 264 with those in s 13 of the Supreme Court Act; that being so, as a general principle this Court should approach leave applications in the same manner as the Supreme Court. So for example, the criterion in s 264(2)(a) that the appeal should involve “a matter of general or public importance” — which is identical to s 223(3)(a) — will be met:

... where the proposed appeal gives rise to an issue of ‘general principle or of general importance in the administration of the criminal law by the Courts’. An illustration of a matter of general or public importance is one raising an important question of law having broad application beyond the circumstances of the particular case. By contrast, there are numerous illustrations in the leave decisions of the Supreme Court where leave has been declined on the basis that the application for leave raises issues in the nature of a ‘factual assessment that is specific to the circumstances of the case’ or the application of ‘well-established principles to a particular fact situation’.

[8] Ms Ghahraman submitted that the matter of general or public importance raised in this case was “what evidence is sufficient to support the inference that a defendant intended to cause grievous bodily harm?” She submitted the District Court and High Court misapplied the approach prescribed by this Court in Vincent v R,^[8] which was confirmed by the Supreme Court in dismissing the application for leave in that case.^[9] As a result, Ms Ghahraman submitted, the applicant’s conviction was a miscarriage of justice as it was based on an incorrect finding that there was sufficient evidence to establish intention to cause grievous bodily harm.
[9] While accepting that the proof of intention in cases of this nature rests on circumstantial evidence including the acts of the defendant and the co-defendants, the surrounding circumstances, and the nature of the act itself, Ms Ghahraman submitted that Vincent v R requires the evidence to be capable of proving the mental element beyond a reasonable doubt before the physical elements are considered.
[10] She submitted the District Court Judge effectively reversed the test by considering the injuries ultimately suffered by the victim as well as the applicant’s actions and the actions of her co-defendants at the initial stage. Ms Ghahraman submitted that the law needs to be clarified as to the way that circumstantial evidence might be relied on to prove offending of this nature.

Analysis

[11] The proposed appeal does not raise a question of general or public importance. Both this Court and the Supreme Court have addressed the issue of the proper approach a trial Court must take to the assessment of intent in these circumstances.
[12] What is required for grievous bodily harm is well established. As this Court affirmed in R v Scott:^[10]

“Grievous bodily harm” is not statutorily defined but has a meaning well entrenched in law: “‘bodily harm’ needs no explanation and ‘grievous’ means no more and no less than ‘really serious’”...

[13] The types of injuries inflicted on a victim are part of the evidence from which the intent may be inferred. In Vincent this Court confirmed that the task for the jury is firstly to determine the type of injuries which the applicant intended to inflict and secondly to decide whether injuries of that character were really serious harm.^[11] This Court went on to note:^[12]

The focus of the first question is subjective in the sense that it is the defendant’s actual intention that must be determined. But the jury must consider all the evidence including the nature of the assault and the acts and statements made by the accused before, at, or after the event. In doing so, the jury may draw appropriate inferences from the proven facts in deciding what the appellant actually intended and whether that amounted to an intention to cause grievous bodily harm. As Mr Lithgow ultimately accepted, it is for the jury to determine the second question on an objective basis.

[14] Determination of the type of injuries the defendant intended to inflict will involve consideration of the actual injuries. That is consistent with the previous approach of this Court in the cases of R v Black, R v Howse, and Owen v R for example.^[13]
[15] The issue that the applicant seeks to raise has been settled as a matter of principle. It will be a question of fact in each particular case whether the required intent has been established.
[16] Nor is there any miscarriage if the conviction is sustained. The trial Judge had found that in the course of an attack by three women (including the applicant) the victim was hit over the head with a spanner, and whilst on the ground (where she had been dragged by the applicant) was attacked to the head. She sustained injuries to her head and face, including blackened eyes and lacerations which required stitches. As Brown J held, there was ample evidence to justify the conclusion that at least one of the three women intended to cause grievous bodily harm to the victim. If the applicant was not the principal, her liability for the offence was established under ss 66(1) and (2) of the Crimes Act 1961.

Result

[17] An extension of time to apply for leave to appeal is granted. The application for leave to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Hubbard [2015] NZDC 22361.

^[2] R v Hubbard [2016] NZDC 1484.

^[3] Taingahue v R [2016] NZHC 1310.

^[4] Criminal Procedure Act 2011, s 239(2).

^[5] R v Hubbard, above n 1.

^[6] Criminal Procedure Act 2011, s 237(2).

^[7] Hohipa v R [2015] NZCA 73 (footnotes omitted).

^[8] Vincent v R [2015] NZCA 201.

^[9] Vincent v R [2016] NZSC 15.

^[10] R v Scott [2007] NZCA 589 at [31]; and R v Waters [1979] NZCA 24; [1979] 1 NZLR 375 (CA) at 379.

^[11] Vincent v R, above n 8, at [48].

^[12] At [49] (footnotes omitted).

^[13] R v Black [1956] NZLR 204 (CA) at 210; R v Howse [2003] NZCA 178; [2003] 3 NZLR 767 (CA) at [39]; and Owen v R [2011] NZCA 348 at [56].