Puna v Police [2015] NZHC 1499 (30 June 2015)

Last Updated: 21 December 2015

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000019 [2015] NZHC 1499

BETWEEN	TUHUNGIA PUNA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 June 2015
Appearances:	E Forster for Appellant M Mitchell for Respondent
Judgment:	30 June 2015

JUDGMENT OF ANDREWS J [Appeal against conviction]

This judgment is delivered by me on 30 June 2015 at 5 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

PUNA v NEW ZEALAND POLICE [2015] NZHC 1499 [30 June 2015]

Introduction

[1] On 16 February 2015, following a defended hearing before Judge Ongley in the Hastings District Court, Mr Puna was convicted in an oral judgment on one charge of injuring with intent to injure.¹ He was subsequently sentenced to community detention for six months. Mr Puna has appealed against his conviction. Mr Puna has been serving, and continues to serve, the sentence of community detention.

Facts

[2] On the afternoon and evening of 2 December 2014, the victim was drinking with Mr Puna’s partner. Later in the afternoon they went to Mr Puna’s house (a few houses away in the same street) where Mr Puna, his partner, the victim, and her partner were drinking together. The victim and her partner had brought their two children to the house, with the intention that they would sleep there overnight. During the evening, the victim had an argument with her partner and he left.

[3] At some stage, relationships between Mr Puna and the victim soured. She said that he was making fun of her by singing a particular song. She decided that she wanted to take her children and go home. The Judge found that it was probable that by this time the victim was very drunk. As she tried to leave, Mr Puna told her to leave the children, and come for them in the morning. The victim became agitated as Mr Puna was blocking he way and preventing her from taking the children. The victim then hit Mr Puna on the side of his head, describing a swinging movement with a loose fist against the side of his head.

[4] Mr Puna then punched the victim in the face, and she fell down. The victim said in evidence that she blacked out briefly. Mr Puna’s partner subsequently assisted her to return to her own home. The victim was later taken to hospital. She suffered two serious black eyes, and was told at the hospital that she had a broken

_nose.

¹ Police v Puna [2015] NZDC 2582 (“District Court judgment”).

[5] Mr Puna was charged with injuring with intent to injure under s 189(2) of the

Crimes Act:

Injuring with intent

...

(2) Every one is liable to imprisonment for a term not exceeding five

years who, with intent to injure any one, ... injures any other person.

District Court judgment

[6] The Judge noted that the issue at trial was self defence. Mr Puna had acknowledged punching the victim “in circumstances that were broadly consistent with self-defence”.² However, the Judge noted that the background was that the victim was very drunk, they were out in the open, she was with her children, and she had not launched an assault that was likely to continue.³ The Judge found that Mr Puna’s answers in evidence did not describe self defence; he said he struck the victim once because she had struck him, and that he was not thinking at the time.⁴

[7] Mr Puna had said in answer to a question in cross-examination that he could have walked away, that hitting the victim was purely a reaction. The Judge found that “it is quite clear from the evidence that it was retaliation”. That Judge held that the evidence excluded self defence beyond reasonable doubt. Further, he found that if there were any question of self defence, it was excluded by the fact that the punch

was more force than was reasonable in the circumstances.⁵

[8] Having found that self defence had been excluded, the Judge found the charge of injuring with intent to injure proved beyond reasonable doubt.

Appeal issues

[9] Mr Forster submitted for Mr Puna that the Judge was wrong to find the charge of injuring with intent to injure proved. In particular, he submitted that after

² _{District Court judgment at [4].}

³ At [4]. On the appellant’s evidence, the incident between him and the victim occurred outside the house, with the children present. The victim’s evidence was that it happened inside the house, in the doorway of the lounge, and the children were still asleep.

⁴ _{District Court judgment at [5].}

⁵ At [6].

concluding that self defence had been excluded, the Judge was required to address the elements of the offence of injuring with intent to injure. He submitted that the Judge had failed to consider whether the Crown had established the element of intent; that is, whether Mr Puna intended to injure the victim. He submitted that the requisite intent was not obvious on the facts of the case.

[10] In the absence of any enquiry, or finding, as to intent, it was not open to the Judge to find Mr Puna guilty of injuring with intent to injure. He submitted that the following matters raised a reasonable doubt as to whether Mr Puna intended to injure the victim:

(a) The victim struck Mr Puna first.

(b) Mr Puna did not use the full extent of the force he could have used (Mr Puna said in evidence that, on a scale of 1 to 10, his punch to the victim was a “6’).

(c) There was a single punch – there was no ongoing course of violence. (d) The victim was very drunk, and this may have been why she fell over.

[11] On the basis that there was a reasonable doubt as to Mr Puna’s guilt on the charge of injuring with intent to injure, Mr Forster submitted that a miscarriage of justice had occurred as a result of his conviction, such that the conviction should be set aside. However, he submitted, it would have been open to the Judge to convict Mr Puna on the less serious included charge of male assaults female.

[12] For the Crown, Ms Mitchell submitted that the primary (if not sole) issue at trial was whether Mr Puna’s actions were justified on the grounds of self defence. That was the basis on which the trial was run. Given the primacy of the self defence issue, the Judge did not need to explicitly address the issue of men rea in his decision. She submitted that the Judge, quite defensibly, may have been assumed (based on the way the defence was run) that that element was not in contention.

[13] Ms Mitchell further submitted that direct evidence is rarely found as to the requisite intention. More commonly, the intention is inferred from the act that causes injury and the surrounding circumstances. In the present case, she submitted that the intention to injure could be inferred from the following:

(a) The nature of Mr Puna’s punch to the victim’s face. Ms Mitchell submitted that such a punch, delivered to a vulnerable part of the body, inevitably carries a strong risk of causing injury, and the fact that Mr Puna punched the victim in that manner must create a strong presumption that he intended to injure her.

(b) The fact that it would have been obvious to the Judge that Mr Puna is a powerfully-built man. She submitted that a punch assessed at “6 out of 10” was clearly one that Mr Puna would have appreciated was capable of injuring the victim.

(c) The victim, being intoxicated, was vulnerable. Ms Mitchell submitted that while the intoxication may explain the victim’s fall, it could not explain the injuries to her face.

[14] Ms Mitchell submitted that these matters, taken together with Mr Puna’s statements that he hit the victim so that she would not continue to hit him, were sufficient to allow the Judge to infer that Mr intended to injure the victim, and to find the charge proved beyond reasonable doubt.

Discussion

[15] An appeal against conviction is by way of re-hearing. Pursuant to s 232 of the Criminal Procedure Act 2011, the appeal must be allowed if (as relevant in this case) the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. A “miscarriage of justice” is “any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.”

[16] Pursuant to ss 233 and 234 of the Criminal Procedure Act, the High Court on appeal may confirm the conviction, set it aside, or substitute a conviction for a different offence. The power to substitute a conviction for a different offence may be exercised under s 234 if (as relevant in this case) this Court is satisfied that:

(a) Mr Puna could have been found guilty of a different offence; and

(b) the Judge must have been satisfied of facts that prove Mr Puna guilty of a different offence.

[17] If the High Court substitutes a charge then, pursuant to s 234(5) of the Criminal Procedure Act, it may either impose a sentence for the substitute charge, or remit the proceeding back to the District Court for sentencing.

[18] As noted earlier, it is accepted for the Crown that the Judge did not expressly address the elements of the offence of injuring with intent to injure, and did not expressly find that Mr Puna had the requisite intent. Yet his finding that the charge of injuring with intent to injure was proved beyond reasonable doubt necessarily implies that he found that Mr Puna had the requisite intent.

[19] I observe that it is clear from the evidence, and the Judge’s decision, that the defence case was run firmly on the basis of self defence. There is no indication of it being put that in the event that self defence was excluded, the Crown had not proved the elements of the charge of injuring with intent to injure. However, the fact that this issue was not raised at trial is not fatal to the appeal. But it may explain the absence of any reference to the elements of the offence in the Judge’s decision.

[20] The appeal can only be allowed if a miscarriage of justice has occurred. In the present case, that could only be if the Judge was wrong to conclude that Mr Puna intended to injure the victim; that is, if the evidence before the Judge did not support a finding that when he punched the victim, Mr Puna intended to injure her. The issue is one as to the sufficiency of the evidence.

[21] It is useful to bear in mind the principles set out in Owen v R,⁶ and Munro v R,⁷ as to an appellate court’s review of a lower court’s findings on the evidence, in particular, the advantage the Judge had in seeing and hearing the witnesses.

[22] I have considered the matters referred to by Ms Mitchell and Mr Forster. I accept that the matters referred to by Ms Mitchell (including Mr Puna’s statement that he hit the victim so that she would stop hitting him) could reasonably and logically lead to an inference that Mr Puna intended to injure the victim. However, against that is the fact that the injury to the victim was the result of a single punch, delivered immediately after the victim had hit him (albeit with considerably less force that he hit her). I cannot exclude the reasonable possibility that Mr Puna did not form any specific intention, other than to hit the victim.

[23] In the circumstances, I cannot conclude that the requisite element of intent has been proved beyond reasonable doubt. I am satisfied that a miscarriage of justice has resulted from, his conviction, and it must be set aside.

[24] I come, then, to the question of whether a conviction on a lesser charge should be substituted and, if so, what charge. Ms Mitchell submitted that the appropriate charge should reflect the fact of actual injury, for example, a charge of injuring by an unlawful act, under s 190 of the Crimes Act. Mr Forster submitted that the appropriate charge would be male assaults female under s 194, and that the injuries caused could be taken into account as an aggravating factor. He submitted that a charge under s 194 would normally be laid where there has been a single “king hit”, which has caused more serious injury than occurred here.

[25] I have concluded that the appropriate charge is one of male assaults female. I am satisfied that Mr Puna could have been found guilty of that offence and that the Judge was satisfied that the elements of that offence were proved beyond reasonable

_doubt.

⁶ _{Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13].}

⁷ Munro v R [2007] NZCA 501, [2008] 2 NZLR 87 at [54]–[90].

[26] Mr Forster submitted that if I were to allow the appeal against conviction and substitute a conviction for male assaults female, I should remit the proceeding back to the District Court for re-sentencing. I decline to do so.

[27] As Mr Forster acknowledged, the circumstances of the offending, the injuries caused to the victim, and Mr Puna’s history of previous convictions were such that I have no hesitation in concluding that the sentence imposed on him in the District Court was well within the available range for sentence on a charge of male assaults female. Pursuant to s 234(5) of the Criminal Procedure Act, the sentence imposed in the District Court is imposed on the charge of male assaults female, commencing from the start date of the District Court sentence.

Result

[28] Accordingly:

(a) The appeal against conviction is allowed and Mr Puna’s conviction on

a charge of injuring with intent to injure is set aside.

(b) A conviction on a charge of male assaults female is substituted.

(c) The sentence imposed on Mr Puna in the District Court is imposed as the sentence on the charge of male assaults female.

Andrews J