Hicks v R [2023] NZCA 277 (3 July 2023)

Last Updated: 10 July 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA326/2022 [2023] NZCA 277

	BETWEEN	STUART WILLIAM HICKS Applicant
	AND	THE KING Respondent

Court:	Gilbert, Brewer and Moore JJ
Counsel:	A J Bailey and R J T George for Applicant B So for Respondent
Judgment: (On the papers)	3 July 2023 at 9.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

[1] Mr Hicks was found guilty by Judge M J Callaghan of four charges of violence against his partner.^[1] He was sentenced to 10 months’ home detention.^[2]

[2] Mr Hicks appealed his conviction to the High Court. Osborne J dismissed the appeal.^[3]

[3] Mr Hicks now applies for leave to bring a second appeal. By minute of 25 July 2022, Collins J directed that the leave application should be determined separately from the proposed appeal and be dealt with on the papers.

[4] The application was set down for determination by us on the papers in the week of 19 September 2022. However, prior to any decision being released, Mr Bailey, who was then acting for Mr Hicks, advised that the basis of the application would change. It was to be founded on a contention that counsel acting on the appeal in the High Court failed to follow Mr Hicks’s instructions. Mr Bailey (who had a close working relationship with the previous counsel) was granted leave to withdraw and Ms Levy KC was recognised as his replacement. We anticipated that a new panel would need to be convened to consider the application in due course. The determination of the application was formally adjourned.

[5] The application was not substantively progressed. Legal aid for Mr Hicks was withdrawn from 12 May 2023. Ms Levy was granted leave to withdraw. Gilbert J, by minute of 11 May 2023, advised Mr Hicks that any further documents in support of his application must be filed and served no later than 25 May 2023. Otherwise, the matter will be determined on the basis of the existing submissions and other materials.

[6] On 24 May 2023, the registry received an email from Mr Hicks to the effect that he will not take further steps.

[7] We will now decide Mr Hicks’s application for leave to bring a second appeal on the submissions and materials before us in the week of 19 September 2022.

[8] We must decline Mr Hicks’s application unless we are satisfied that the appeal involves a matter of general or public importance; or a miscarriage of justice may have occurred.^[4]

Background

[9] Mr Hicks’ partner alleged that in the course of a violent confrontation at their home Mr Hicks assaulted her in a variety of ways, including by manual strangulation. Mr Hicks said, to the contrary, that he had been attacked by her and that he was justified in using the force he admitted to because he was acting in self-defence. He denied the allegations of strangulation.

[10] Prior to the trial before Judge Callaghan, Mr Hicks obtained an expert opinion from Dr Clare Healy as to whether the allegations against him were consistent with photographic evidence of the complainant’s injuries. Dr Healy’s opinion was substantially against Mr Hicks. Accordingly, Dr Healy’s evidence was not called at the trial. In fact, there was no medical evidence called at the trial.

[11] After his conviction in the District Court, Mr Hicks obtained another expert’s report. This report was from Dr John Drummond whose opinions favoured Mr Hicks’s position. Mr Hicks sought to introduce Dr Drummond’s report as evidence in support of his appeal to the High Court.

[12] The Crown raised the existence of Dr Healy’s report and submitted that it should be disclosed. Mr Hicks eventually agreed to disclose Dr Healy’s report because the Crown was relying on the non-disclosure to oppose the admission of Dr Drummond’s report and it was accepted that Dr Healy’s report could be relevant to the question of whether Dr Drummond’s report should be admitted as fresh evidence.

[13] By memorandum dated 16 February 2022, Crown counsel filed Dr Healy’s report in the High Court. Counsel submitted:

9. It appears as though [Mr Hicks], for tactical reasons, instructed his trial counsel not to call Dr Healy at trial. This decision is understandable given the contents of her statement. However, the fact that Dr Healy provided an opinion to defence, its contents, and the tactical decision not to utilise her evidence at trial go to the heart of the issue on appeal.
10. Her expert evidence support[s] the findings of the trial judge and are contrary to the evidence and submissions filed by [Mr Hicks] for the appeal.
11. If [Mr Hicks] wishes to proceed with the application for fresh evidence further cross-examination of Dr Drummond will be required and it may be that Dr Healy needs to be called to give evidence. In the respondent’s view her evidence could be entered by consent.

[14] On 4 May 2022, the Crown filed a further memorandum. Crown counsel said:^[5]

2. The appeal was originally set down for 9 December 2021. At that point, the original expert report obtained by [Mr Hicks] from Dr Clare Healy had not been disclosed to the Crown. The appeal was adjourned, in part, to allow that report to be disclosed.
3. The report has since been provided to the Crown. The Crown has since filed that report with the Court. The Crown understands from discussions between counsel that there is no opposition to that report being adduced on appeal by consent.

...

6. When assessing the cogency of Dr Drummond’s evidence, it is submitted that Dr Healy’s report should be considered.

[15] Osborne J had regard to Dr Healy’s report for the purposes of the appeal before him. There is no indication that any objection was taken by counsel for Mr Hicks to the Judge doing so. The Judge made it clear that he had Dr Healy’s report, including by referring to it when asking questions of Dr Drummond. All that the Judge said in his judgment about how Dr Healy’s report came to him was:^[6]

[32] Before turning to Dr Drummond’s evidence, I will refer to a formal statement (that was expressly prepared for the purpose of s 82 CPA) of Dr Clare Healy. Dr Healy has a specialisation in forensic medicine and extensive experience in the area of sexual assault. She had provided her report to the barrister who represented Mr Hicks at his trial. She was not called as a witness. Her formal statement was disclosed to the Crown after Mr Hicks commenced this appeal. After initially refusing to do so, in response to requests from the Crown, the privilege in relation to the report was waived by Mr Hicks before the hearing of this appeal.

The application

[16] Mr Bailey, for Mr Hicks, filed proposed grounds of appeal in a document dated 13 July 2022. The written submissions in support of the application are dated 29 August 2022. The only proposed ground of appeal to which they could be said to (tangentially) relate is: “[t]he complainant’s injuries were not consistent with the assaults that were alleged”. This is the ground we will consider in the context of the submissions.

[17] Mr Bailey submits that Osborne J should not have had regard to Dr Healy’s report. That is because, it is submitted, Mr Hicks never agreed to Dr Healy’s report being received as evidence in the appeal:

20. Having disclosed Dr Healy’s report it was permissible for the [Crown] to use it as a platform for cross-examination. This was expected by [Mr Hicks] just as, for example, a (reputable) journal article may be used as a basis for cross-examination of an expert witness. However, there is an important distinction between this and the content of such reports/articles becoming admissible evidence (unless, of course, accepted by the expert in evidence).

[18] Mr Bailey further submits:^[7]

23. If [Mr Hicks] was aware that Dr Healy’s report would be relied upon as it was by the High Court Judge, he would have requested that she be available to give evidence, just as Dr Drummond was required to be available for (extensive) questioning by the [Crown].
24. The outcome of this was that a report prepared by Dr Healy, who was neither a witness in the District or High Court, was heavily relied on by the High Court Judge to undermine Dr Drummond’s evidence. This, in turn, led to the Judge ruling Dr Drummond’s evidence inadmissible as fresh evidence. As noted, [Mr Hicks] was neither seeking to rely on Dr Healy’s report or agreed to its admission (as evidence).

Discussion

[19] We note that Mr Bailey was not counsel at the appeal in the High Court. We assume that when he filed his submissions he was unaware of the two Crown memoranda to which we have referred. These were provided to the Court in the Crown’s bundle of documents dated 13 September 2022, more than two weeks after Mr Bailey’s submissions.

[20] The Crown’s submissions are also dated 13 September 2022. They refer to, and rely on, the two memoranda.

[21] There is nothing before us which would indicate that Osborne J’s use of Dr Healy’s report was improper.

[22] Similarly, there is nothing in the way the Judge compared the two reports which would indicate a miscarriage of justice occurred. Dr Drummond’s evidence was primarily to the effect that the quality of the photographs of the complainant’s injuries was too poor to permit an inference that the complainant was strangled. Dr Healy thought otherwise and it is possible the photographs she had were of a higher quality than Dr Drummond’s.

[23] In any event, Osborne J was plainly right that Dr Drummond’s evidence was not fresh. Nor did it have a cogency that required it to be admitted in the interests of justice. The evidence did little more than opine that the photographs were too indistinct to corroborate the complainant’s account. This was an attempt to have a “second bite of the cherry”.^[8]

[24] The application for leave to bring a second appeal does not involve a matter of general or public importance. Nor does it satisfy us that a miscarriage of justice may have occurred.

Result

[25] The application is for leave to bring a second appeal is declined.





Solicitors:
Crown Law, Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] R v Hicks [2020] NZDC 19938.

^[2] R v Hicks [2021] NZDC 3053.

^[3] Hicks v R [2022] NZHC 1308.

^[4] Criminal Procedure Act 2011, s 237(2). “Miscarriage of justice” is defined in s 232(4) as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that — (a) has created a real risk that the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity.

^[5] Footnote omitted.

^[6] Hicks v R, above n 3.

^[7] Footnote omitted.

^[8] N v N [1999] NZFLR 481 (HC) at 484; and Naidu v Ministry of Business, Innovation and Employment [2021] NZHC 3502 at [5].