O'Connor v Police [2012] NZHC 102 (3 February 2012)

Last Updated: 19 February 2012

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2011-416-000018

_{NZHC [2012] 101}

BETWEEN SEAN ALAN O'CONNOR Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 3 February 2012

Counsel: EJ Forster for Appellant

S Manning for Respondent

Judgment: 3 February 2012

_{ORAL JUDGMENT OF RODNEY HANSEN J}

Solicitors: Mr EJ Forster, P O Box 838, Hastings, (Fax: [phone])

Elvidge & Partners, P O Box 609, Napier 4140 for the Crown

(Email: [e-mail] )

SEAN ALAN O'CONNOR V NEW ZEALAND POLICE HC GIS CRI-2011-416-000018 3 February 2012

Introduction

[1] After trial in the Wairoa District Court before Judge Adeane, Mr O’Connor was found guilty of injuring Neil Gardner with intent to injure him. He was sentenced to imprisonment for one year six months. He appeals his conviction. He says the conviction was a miscarriage of justice arising from counsel error. An alternative ground initially put forward, that there was an error of law, is not pursued and a further argument introduced at the hearing, that one aspect of Judge Adeane’s decision was not supported by the evidence, was withdrawn.

The evidence

[2] The Crown case was that the assault took place at Mr Gardner’s home in Wairoa on 5 June 2010 after Mr O’Connor had gone there unannounced and uninvited to speak to another occupant of the house, Ms Patricia Harrison, whom Mr O’Connor suspected of being implicated in a burglary of his house. There was a history of bad blood between the two men and, when Mr Gardner recognised Mr O’Connor’s truck outside his house but there was no knock on the door, he went outside armed with a shovel handle. The two men encountered one another at the back of the house in the dark. There was an altercation and Mr Gardner was injured. But how and why the injury occurred was the subject of sharp disagreement between the protagonists at trial.

[3] The competing accounts were summarised in the decision of Judge Adeane as follows:1

[2] I have heard two versions of the same events. The first from the complainant who says that he was at home after dark on the date in question. He became aware of the presence outside his property of a motor vehicle which he associates with the accused. Apprehensive, because of background matters and when nobody knocked at the door of his house, he went out the back door. He picked up a broken off shovel handle which was there and went looking to see what was going on. Very shortly, at the back of his house in complete darkness, he says he was confronted by the defendant who

he twice directed to leave the property. These directions were ignored and on the evidence of the complainant he was then kicked, something in the nature of a martial arts kick to the ribs. He grabbed his assailant who he knew as the defendant and dragged him down. The two of them wrestled to the ground. They were effectively head to toe. Then, according to the complainant the defendant deliberately and repeatedly kicked him about the face, causing injuries depicted.

...

[5] But the defendant’s evidence is rather different. In a nutshell he had suffered a burglary and lost a valuable document. He suspected that a third party, Ms Harrison who was to be found at the complainant’s home, would be there. He further took a calculated risk that the complainant’s home, would be there. He further took a calculated risk that the complainant, who he did not want to see, would not be there but would be out at the pub. He went to the place to confront Ms Harrison about his lost document. He parked a little way along the road and went to the back of the house. There, on his evidence, events vaguely resembling those described by the complainant, but sequentially importantly different, unfolded. He was, out of the blue, struck by the complainant with the shovel handle. He took steps backwards but he fell to the ground after being struck on the arms. Then he looked up to see a silhouette over him. He apparently realised that he had miscalculated and the complainant was in fact at home. The complainant struck more blows at him.

[6] The defendant says that he took certain defensive steps but certainly did not want to hurt the complainant. He says that he explained that he was there not to fight but to talk to the lady in question. But he says, unappeased by any of this the complainant then charged at him. The two tangled and both ended up on the ground together. The complainant struck him further blows and then to his alarm and disgust grabbed him by the testicles. He warned the complainant to let go but the complainant responded by grabbing his testicles even harder. At that point, in self defence, he then struck out using his footwear, which he acknowledges were steel capped boots, to repeatedly kick the complainant in the face. This at last had the desired result. He was able to get up and run away. He explains to me that throughout this he had put the complainant in an arm hold which he released after kicking the complainant repeatedly in the face and immediately before getting up and leaving the property.

The Judge’s findings

[4] As appears from the Judge’s account of the evidence of the two protagonists, Mr O’Connor’s position was that he acted in self-defence. Judge Adeane rejected that contention. After (it is conceded) correctly directing himself to the issues raised by self-defence, he found that the evidence failed to provide a credible narrative

which might support a finding that Mr O’Connor acted in self-defence. He said:2

[11] I have concluded, quite confidently, that matters were not as he suggests and that they have been reconstructed in that way to answer the obvious known facts and the obvious inferences drawn from them. He went to a private home for a confrontation. He went there hoping to avoid the complainant and to take advantage of the presence of a woman on her own. There was a physical confrontation, as indeed anybody might have expected on entering a property in these circumstances. I reject his claim that it was only in response to violence shown to him, by the complainant, that he used violence in reply. In other words I do not accept there is any credible narrative supporting a justification of self defence.

[12] But I do turn to one very detailed aspect of the defendant’s evidence

– “I kicked him twice in the face and then let go of the arm hold.” It is perfectly clear that in the course of this unjustified display of violence, in

which I am satisfied the defendant struck the first blow, that he also

physically secured the complainant to limit his ability to resist and then repeatedly kicked him in the face while wearing steel capped shoes. From this an inference comfortably arises that the injuries that were caused were deliberately caused.

[13] That being so and even though the injuries are, as I say, toward the bottom end of the scale of consequences of the kind, both ingredients of the charge are proved. Self defence is disproved beyond reasonable doubt.

The appeal

[5] The complaint of counsel error focuses on the evidence of a Crown witness, Constable John Yuile. His brief of evidence was handed up and he was not required to present for cross-examination. Mr O’Connor says that the decision to allow Constable Yuile’s evidence to be given in this way was a serious error, which led to a miscarriage of justice by depriving him of the ability to elicit evidence favourable to the defence in cross-examination.

[6] Mr O’Connor swore an affidavit in support of the appeal. He deposes that he never saw his assigned lawyer, Mr Jason Owers, until he attended Court for the hearing. He says that he wrote a letter which Mr Owers used to prepare a brief of his evidence but that the brief was never discussed or edited. Mr O’Connor contends that he never gave Mr Owers instructions to accept Constable Yuile’s evidence and explains that he wanted Constable Yuile present in order to give the defence an opportunity to elicit the following evidence which would have been favourable:

There were significant grass stains on the jacket he was wearing, consistent with his being on his back on the grass and moving backwards to avoid an

_{attack from Mr Gardner.}

Mr Gardner was intoxicated at the scene.

There was no front door at Mr Gardner’s address. Mr O’Connor was wearing glasses.

Mr O’Connor was cooperative with the police, calm and drew a diagram of

_{the weapon Mr Gardner allegedly used.}

[7] After Mr O’Connor waived privilege, Mr Owers swore an affidavit in response. He was cross-examined. He disputed critical aspects of Mr O’Connor’s evidence. I find his evidence to be cogent and compelling and supported in crucial respects by contemporary documents. I have no hesitation in accepting his account of what happened.

[8] He spoke to Mr O’Connor on several occasions at least before the hearing. He spent an hour with him at the Gisborne Police Station on 31 August 2010. This and other attendances are confirmed by time records produced by Mr Owers. The brief of evidence was prepared based on telephone calls between Mr O’Connor and Mr Owers while Mr O’Connor was in custody.

[9] The decision to agree to Constable Yuile’s evidence being handed up was made after consultation with Mr O’Connor. Mr Owers was asked, in a fax transmission from Constable Yuile, whether he would agree to the evidence of all witnesses being handed up except the complainant’s. He telephoned Mr O’Connor to discuss the proposal. Mr O’Connor agreed that the evidence of two of the witnesses could be handed up. He wanted the evidence of a third witness, a police sergeant who had taken a statement from him, to be given in person as he disputed the contents of the notebook entry. Mr Owers was instructed by Mr O’Connor that Constable Yuile’s brief could be handed up if he was prepared to amend it to include

a reference to the appellant wearing prescription glasses and to his jacket having dirt marks from being on the ground. Mr Owers contacted Constable Yuile who agreed to amend his brief of evidence accordingly. He faxed it through a copy of the amended brief. On that basis Mr Owers – in accordance with the instructions given by Mr O’Connor – agreed to his brief of evidence being admitted by consent.

[10] Mr Owers’ account of his dealings with Constable Yuile and Mr O’Connor is confirmed in every material particular by careful handwritten notes he made at the time. In relation to the other issues raised by Mr O’Connor, Mr Owers says he was never instructed that Mr Gardner was intoxicated, although he had been told that he customarily or routinely abused alcohol. He was never instructed there was no front door at Mr Gardner’s address. His instructions were that Mr Gardner went down the side of the house rather than going to the front door in order to avoid seeing Mr Gardner.

Discussion

[11] The critical issue is whether there has been an error by counsel so radical as to constitute a miscarriage of justice, the miscarriage arising because of the risk of a wrong verdict: see R v Sungsuwan3. However, as the majority went on to say:4

... while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. ...

[12] I am satisfied that there was no error on Mr Owers’ part. On the contrary, my view is that he conducted Mr O’Connor’s defence in exemplary fashion. All the indications are that he prepared thoroughly for the hearing. As I have said, he kept careful notes of his dealings with Mr O’Connor and Constable Yuile. He did exactly what he was instructed to do. My reading of the notes of evidence establishes that Mr Owers’ cross-examination of the complainant was focused and incisive. He

_{addressed the issues raised with him by Mr O’Connor that would assist the defence.}

3 _{R v Sungsuwan [2006] 1 NZLR 730 at [69].}

4 At [70].

They included the fact that Mr Gardner had been drinking and that Mr O’Connor was wearing glasses. He also elicited in cross-examination that Mr O’Connor fell to the ground and was lying on his back on the lawn while the struggle continued. Mr O’Connor’s evidence-in-chief covered all of the material matters he had raised with Mr Owers, including the fact that Mr Gardner was a heavy drinker.

[13] Mr O’Connor had every opportunity to complain at the time if he had believed that Mr Owers failed adequately to cover a factual issue important to the defence. He said nothing during the hearing and had no complaints afterwards. This is a classic case of the client being wise after the event and finding what I can only describe as spurious grounds on which to criticise his counsel’s conduct of the case. Ultimately, the outcome depended entirely on whose version of the altercation the Judge believed. Judge Adeane plainly did not find Mr O’Connor to be a credible witness. He explained in some detail why that was the case. Even if the further matters raised by Mr O’Connor had been introduced at the hearing, there is nothing to indicate that, individually or collectively, they would have had any bearing on the Judge’s key findings.

[14] For these reasons, I am left in no doubt that Mr O’Connor was rightly

convicted. The appeal must, accordingly, be dismissed.