WRENCH v R [2022] NZCA 563

WRENCH v R [2022] NZCA 563 [17 November 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA261/2022[2022] NZCA 563BETWEEN DANIEL LUKE WRENCHAppellantAND THE KINGRespondentHearing: 27 October 2022Court: Brown, Mallon and Downs JJCounsel: Appellant in personM R L Davie for RespondentJudgment: 17 November 2022 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Downs J)Introduction[1] Daniel Wrench was found guilty by a jury of two charges of assault with intentto injure and one of strangulation. He was found not guilty of a third charge of assaultwith intent to injure. Each of the assault (with intent to injure) charges concerneda headbutt. Mr Wrench had the benefit of legal representation at trial. He appealsagainst conviction and now self-represents.Background[2] Mr Wrench has a manufacturing business. He lives at the property with hiswife, Elizabeth Fox. Mr Wrench employed the complainant, Kane Boyce, in hisbusiness. Mr Boyce lived at the property as well, in a small, detached unit rented fromMr Wrench.[3] Work tensions developed between Mr Wrench and Mr Boyce. It is notnecessary to elaborate. Eventually, Mr Wrench dismissed Mr Boyce. However,by agreement, Mr Boyce continued to live in the unit.[4] On 12 February 2021, Mr Boyce and his partner, Taylor Carnachan, went outdrinking. Mr Boyce became intoxicated; Ms Carnachan did not (she was driving).When Mr Boyce and Ms Carnachan returned to the unit, Mr Wrench and Ms Fox wentto see them. Mr Boyce told Mr Wrench to "get the fuck out" and an argumentdeveloped. What happened thereafter formed the basis for all of the charges. In brief,Mr Boyce said:(a) Mr Wrench headbutted him to the face. The two men then grabbed eachother.(b) Mr Wrench then squeezed his neck, choking him. Mr Boyce said hestruggled to breathe.(c) He pushed Mr Wrench away. Mr Wrench headbutted him a secondtime, again to the face.(d) He later removed a decorative wooden axe from the wall to"scare off" Mr Wrench, but did not use it to strike him. Mr Wrenchthen headbutted him a third time.[5] Ms Carnachan said she saw Mr Wrench headbutt Mr Boyce, then strangle him"for a good two minutes". Ms Carnachan did not see a second or third headbutt butdid see Mr Boyce later holding the axe.[6] Ms Fox called 111 during the incident, at 10.38 pm, but the call was terminated.Ms Carnachan also called 111 at 10.41 pm. She and Mr Boyce each spoke tothe operator. The operator then called back at 10.43 pm, and Mr Wrench spoke brieflyto him or her. All of the calls were placed in evidence with transcripts:(a) Mr Boyce said Mr Wrench had headbutted him three times but did notrefer to being choked by him.(b) Ms Carnachan described the incident as a fight and as a brawl, whichbegan after Mr Wrench "came over and started abusing [Mr Boyce]".Ms Carnachan said Mr Boyce had been "punched in the face". At trial,Ms Carnachan said she was distressed during the call, and focussed ongetting help. She said she did not appreciate the content of the callwould be important.(c) Mr Wrench said Mr Boyce and Ms Carnachan "got irate" with himbut there was "no, not actually a fight". Mr Wrench reiterated, "there'sno physical fighting".[7] Constables Isaac Watts and Matthew Hyde arrived at the property at 10.52 pm.Constable Watts noted Mr Boyce was injured and there was "blood splatter inthe scene". Constable Hyde described Mr Boyce as "very emotional" and "veryupset"; "you could see he was agitated but also almost on the verge of tears". Theofficer said Mr Boyce had "a lot of blood around his nose and mouth". Associatedphotographs show injuries to Mr Boyce's face, body, and hands.[8] Constable Hyde arrested Mr Wrench. Mr Wrench said he had been struck withan axe and wanted "them trespassed". He otherwise remained silent. Constable Hydenoted Mr Wrench had a cut and blood on his forehead. Associated photographs showboth, as well as injuries to Mr Wrench's body and hands.[9] Sergeant Zak Exler arrived at 11.15 pm. Ms Fox asked to show him an axeused by Mr Boyce, and the two approached the unit rented by Mr Boyce. Mr Boycecame out, and she and he hugged. Ms Fox asked Mr Boyce, "why did you hit himwith the axe?". Mr Boyce replied, "I didn't hit him, I just held it up hoping it wouldscare him to leave and I dropped it when he came at me". Ms Fox replied, "Oh, Icouldn't see because I was outside". The two again hugged. Mr Boyce then saidMr Wrench needed to be held accountable. An argument developed betweenMr Boyce and Ms Fox, and Sergeant Exler intervened.[10] As observed, Constable Watts noted blood splatter. No forensic examinationwas conducted for DNA.[11] The Crown did not call Ms Fox as a witness. Mr Wrench did not give or callevidence.[12] Mr Couchman, Mr Wrench's lawyer, primarily defended the case on the basisthe charges had not been proved to the criminal standard. Mr Couchmancross-examined Mr Boyce and Ms Carnachan extensively. In cross-examination, andlater in closing, Mr Couchman highlighted discrepancies between:(a) The evidence of Mr Boyce and that of Ms Carnachan.(b) What Mr Boyce said to police, and what he said at trial.(c) What each witness said to the 111 operator and later said about theincident, whether to police, in evidence, or both.[13] Mr Couchman argued the discrepancies meant the jury could not be sure ofMr Wrench's guilt. Similarly, Mr Couchman argued Mr Boyce's and Ms Carnachan'sevidence was affected by collusion, and therefore unreliable. Each acknowledgedhaving spoken to the other before making a police statement. Before trial, policeemailed Mr Boyce his statement and Ms Carnachan's. Mr Boyce forwarded the emailto Ms Carnachan, and she read both statements.[14] Mr Couchman also referred to the possibility that Mr Wrench was acting inself-defence once Mr Boyce removed the ornamental axe from the wall.On Mr Boyce's narrative, this occurred before the third headbutt but after all ofMr Wrench's other violence.[15] Judge Lummis left the defence of self-defence to the jury in relation to thethird headbutt.[16] Mr Wrench was found guilty of the charges in relation to the first and secondheadbutts, and the strangulation charge. He was found not guilty of the charge inrelation to the third headbutt.Unreasonable verdicts?[17] An appellate court must allow a conviction appeal if, having regard to theevidence, the jury's verdict was unreasonable.1 Mr Wrench argues the three guiltyverdicts are so.[18] Applicable principle is governed by the Supreme Court's decision inR v Owen.2 A verdict will be unreasonable if, given all of the evidence, a jury actingreasonably should have had a reasonable doubt about the defendant's guilt.In determining whether this is so, an appellate court must give appropriate weight tothe advantages possessed by the jury in deciding the case, for example, assessment ofthe honesty and reliability of a witness's testimony. Assessment of weight afforded toindividual pieces of evidence is a jury function, and reasonable minds may disagreeon matters of fact. The body charged with fact-finding is the jury. Appellate courtsshould not lightly interfere in this area. The appeal court is not conducting a retrial onthe written record. An appellant must articulate clearly in what respect the verdict issaid to be unreasonable and why, after making proper allowance for the points above,the verdict should nevertheless be set aside.3[19] Mr Wrench contends the guilty verdicts are unreasonable because Mr Boyceand Ms Carnachan were not credible or reliable witnesses. Mr Wrench emphasisesthe discrepancies identified at trial by Mr Couchman. We give five examples:1 Criminal Procedure Act 2011, s 232(2)(a).2 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.3 At [13]–[15], confirming this Court's approach in R v Munro [2007] NZCA 510, [2008] NZLR 87at [86]–[87].(a) Mr Boyce said in his statement that Mr Wrench administered the secondheadbutt inside the unit, as he was trying to shove Mr Wrench outthe door. In evidence, Mr Boyce said this occurred either outside or inthe doorway to the unit. In re-examination, he said the same thing,adding, "I'm not too specific on where exactly it happened but [I]definitely got headbutted three times in the face".(b) Mr Boyce said in his statement that Mr Wrench administered thethird headbutt inside the unit, and Mr Wrench then dragged him outsideover the steps. In evidence, Mr Boyce said this headbutt occurredoutside, on the front step to the unit.(c) Mr Boyce said Mr Wrench headbutted him three times. Ms Carnachansaw only one.(d) Ms Carnachan did not refer to Mr Boyce being strangled or headbuttedby Mr Wrench during her conversation with the 111 operator.(e) Mr Boyce did not refer to being strangled by Mr Wrench during hisconversation with the 111 operator.[20] Mr Wrench also emphasises the "collusion" between Mr Boyce andMs Carnachan, given each spoke to the other before making a statement andMs Carnachan's acknowledgment that she read Mr Boyce's statement before trial.[21] We make five points.[22] First, when an appellant advances discrepancies in the prosecution's evidenceas Mr Wrench does, the question is "whether, notwithstanding the advantage the juryhad in assessing credibility, the discrepancies are such that no reasonable jury couldhave been satisfied to the required standard".44 Roberts v R [2016] NZCA 578 at [22].[23] Second, there are difficulties with this question being answered in Mr Wrench'sfavour. Mr Boyce consistently said Mr Wrench headbutted him three times, includingto the 111 operator at the time of the incident. Mr Boyce was similarly consistent thathe took the decorative axe from the wall but did not use it to strike Mr Wrench.Mr Boyce was visibly injured when police arrived and "very upset". He was adamantto Ms Fox, at the scene, that Mr Wrench needed to be held accountable. In short,Mr Boyce's evidence, conduct at the scene and appearance supported the propositionthat Mr Wrench repeatedly headbutted him.[24] Mr Boyce did not tell the 111 operator that Mr Wrench had choked or strangledhim. However, Mr Boyce did tell police this and, of course, told the jury inhis evidence. Ms Carnachan said she saw Mr Wrench strangle Mr Boyce "for a goodtwo minutes". Ms Carnachan was not shaken in relation to this aspect incross-examination. It follows Mr Boyce's testimony in relation to the strangulationcharge was directly supported by that of another witness.[25] Third, while alleged collusion could arguably explain this aspect, thatpossibility is undercut by the obvious differences between Mr Boyce's andMs Carnachan's evidence. Furthermore, Mr Boyce said his evidence was based onhis recollection of events, and Ms Carnachan denied changing hers to accord withMr Boyce's. Differences between the two accounts supported these contentions andthe allied conclusion that collusion was not a material feature of the case.[26] Fourth, the discrepancies relied on by Mr Wrench are largely matters of detail.They primarily concern where, exactly, each event occurred (inside the doorway to theunit, outside the doorway to the unit, and so on), or the precise sequence of events.Given the nature of the incident, it was open to the jury to conclude the discrepanciesdid not significantly detract from the credibility or reliability of Mr Boyce orMs Carnachan.[27] Fifth, Mr Wrench's analysis goes to the very heart of the jury's function —assessment of credibility and reliability — and invites a different outcome on thewritten record. Relatedly, all of the points Mr Wrench makes were advanced tothe jury by his lawyer, Mr Couchman, during cross-examination, in his closing addressto the jury, or both. As Mr Davie on behalf of the Crown observes, the case is thereforeindistinguishable from many before this Court in which a contention of anunreasonable verdict has been rejected:(a) R v Wood:5 "Counsel took us through the case in detail. It dependedentirely on the jury's assessment of the credibility of the complainantand the accused's witnesses. There were inconsistencies anddiscrepancies and the Judge commented on them in his summing upwhich cannot be faulted. In the end it was a matter for the jury ".(b) Abdi v R:6 "We accept there were some discrepancies in the evidencebut these matters were all before the jury. In the end, they did not availMr Abdi. We are not taken to the point where we could conclude thatno reasonable jury could convict on the evidence presented."(c) Diack v R:7 "Despite the inconsistencies highlighted by [counsel for theappellant], which are not uncommon in cases of this nature, the jurywas satisfied that [the complainant]'s evidence was reliable andcredible and we are satisfied there is no arguable basis for us tointerfere."(d) R v Kino:8 "As a subsidiary ground [counsel for the appellant] arguedthat the verdicts of guilty were unreasonable and not supported by theevidence. There were as he pointed out a number of inconsistencies in[the complainant's] evidence. However, they all came down to mattersof credibility, which were for the jury to assess. This ground cannotsucceed either. Accordingly, [the appellant]'s appeal is dismissed."(e) R v Puckey:9 "To make the point the cross-examination of [one Crownwitness] ran to 32 pages of the notes of evidence and of [another Crown5 R v Wood [1989] 2 NZLR 303 (CA) at 305.6 Abdi v R [2014] NZCA 302 at [14].7 Diack v R [2010] NZCA 137 at [27].8 R v Kino [1997] 3 NZLR 24 (CA) at 27.9 R v Puckey CA177/94, 18 July 1995 at 8–9.witness] to some 20 pages. The jury was well able to assess thecredibility of those witnesses and we cannot possibly say thatinconsistencies and contradictions in the evidence were such as torender the verdict unreasonable and unsupported by the evidence."[28] We are satisfied the jury's verdicts are not unreasonable for these reasons.In short, the case turned on the jury's assessment of the credibility and reliability ofthe evidence of Mr Boyce and Ms Carnachan. Indeed, that was the point of the trial.It was open to the jury to accept the material aspects of their evidence.A miscarriage of justice?[29] The Judge left the defence of self-defence to the jury in relation to the finalheadbutt.10 Mr Wrench contends the defence should have been left in relation to everyheadbutt. Mr Wrench, therefore, contends a miscarriage of justice has occurred,meaning an error, irregularity, or occurrence that created a real risk that the trial'soutcome was affected.11[30] Mr Wrench did not give or call evidence, make a statement to police,12or, through Mr Couchman, make an opening statement of issues to the jury.13 His caseat trial must, therefore, be discerned from Mr Couchman's cross-examination ofMr Boyce and Ms Carnachan, and from Mr Couchman's closing address.[31] Mr Couchman put this series of questions to Mr Boyce about the incident:Q. Because the way I'm saying it is that you punched him first and that'swhat started the whole thing?A. Well if I punched him, king hit him, where's the evidence on my hands?'Cos you can see there's like light little scrape marks that if I king hithim, as you would know as a lawyer, any sort of king hit produce[s]quite a decent amount of damage on the hands.Q. Does it? I didn't know that.10 Self-defence is governed by s 48(1) of the Crimes Act 1961, which reads:(1) Every one is justified in using, in the defence of himself or herself or another, such force as,in the circumstances as he or she believes them to be, it is reasonable to use.11 Criminal Procedure Act, s 232(2)(c) and (4).12 Beyond saying he had been struck with an axe and wanted "them trespassed". Mr Wrench toldthe 111 operator, "there's no physical fighting".13 Criminal Procedure Act, s 107(2).A. (inaudible 16:46:53) king hit him then I'm standing right next to him.Q. So you deny that proposition? That you hit him?A. I deny (inaudible 16:46:59).Q. When he wasn't looking, or turning, actually, and you hit him –A. What is it? Was he standing next to me or was he turning?Q. He was walking in, you were just to his right, and then as he was goingin he started to turn and then you smacked him, right in the side of thehead?A. No. Where's the (inaudible 16:47:18) side of his head then?Q. You do accept that you then proceeded to get engaged in a fight whichinvolved wrestling, grappling, ending up on the ground? You recall allthat?A. Yes.Q. And then what happened, I suggest to you, is that at some point youwere both, got to your feet, right?A. Yep.Q. Taylor, I suggest to you, was probably outside watching? As was Liz?A. (inaudible 16:47:47).Q. And then what happened is that you grabbed that ornamental axe thatwe can see on the couch?A. No.Q. And you proceeded to come towards the defendant holding that aboveyour head, didn't you?A. At the end of it, yeah. And not holding it above my head, I had it nextto me.Q. Well you held it up, I suggest to you, and you brought it down on top ofthe forehead or the head region of the defendant?A. No.Q. And he then grabbed you and headbutted you back into the studio whereyou stumbled backwards, you either fell or came close to, do you recallthat?A. No.Q. And then he backed out of the studio and that's when Liz was there andhe left? You recall that?A. No.Q. Well that, I suggest to you, is the sequence of events and against thatbackground, or backdrop, we'll have a look at your – the 111 call shallwe?A. Yeah.[32] Mr Couchman later repeated much the same questions:Q. You I suggest then smacked the, or punched the defendant in the side ofthe head, around about the temple area, with your fist, but you denythat?A. Yes.Q. You say yesterday that one of the reasons you were able to say or denyit, is because you had no mark on your knuckle, knuckles?A. It didn't happen.Q. What happened, I suggest, is that you then, or the defendant rathergrabbed hold of you by the chest area with both hands and swirled youaround into the unit, where you ended up against that wall, that internalwall where we can see some shoes at the base of it, correct?A. No.Q. And then from there, you two proceeded to get involved in whatessentially could be called a fight?A. No.Q. And by a fight, I mean there were punches being thrown, do you agree?A. No.Q. Did you hear your partner talk to the 111 operator, when you were –A. Sequence of events you're saying but she (inaudible 12:22:20).Q. Are you aware or do you know whether she described or told theoperator about punches being thrown?A. She did.Q. Yes, yelling and punches, that's all that was mentioned, do you recallthat?A. (inaudible 12:22:35)Q. But in any event, there was wrestling, you two ended up on the groundinside the unit?A. No.Q. More wrestling, punching, grappling, do you accept that?A. No.Q. Basically it's just a continuation of a fight?A. No.Q. Do you recall the women, both women being present, yelling out foryou guys to stop, to break it up?A. No.Q. You don't recall the defendant saying to his partner: "Ring the police,"?A. No.Q. What you do recall is you saying to your partner: "Ring the police,"?A. Yes.Q. At some point you and the defendant were both on your feet, inside theapartment?A. Yes.Q. And you at some stage grabbed an axe, the ornamental axe that we'vebeen shown in the photo?A. Yeah.Q. And that you held that axe above your head, looking and facing thedefendant?A. Yes.Q. And then you brought that axe down on top of the defendant's head,causing an injury?A. No.Q. And when you saw blood on him, you knew that blood was not fromyou, you knew it was from the injury you probably inflicted?A. No.[33] Mr Couchman put these questions to Ms Carnachan about the incident:Q. And I'm suggesting to you that there was an altercation on the porch onthe outside area of the ranch slider door, between Kane and thedefendant, you say no? This is –A. At the start?Q. – at the beginning?A. No.Q. And I'm saying that you might not have been able to see it from whereyou were positioned but did you see a punch being thrown by Kanetowards the defendant?A. By Kane towards the defendant?Q. Yes.A. No.Q. Did you see the defendant and Kane enter from the outside area throughthe ranch slider whereby Kane is up against that wall that we can see inthe photographs, that inside internal wall?A. No. Me and Kane entered the property by ourselves. And then Lizzyand Dan entered.Q. And I'm suggesting to you that there was an altercation between thedefendant and Kane and that resulted in both men coming inside theranch slider with Kane being against that wall, the defendant having hisback to the ranch slider and they were facing each other?A. No.Q. And then I'm suggesting to you that what happened from that momentonwards was a fight between these two men involving lots of yellingand lots of punching?A. No.Q. And then at some point they fell to the ground, that was inside the flat?A. No.Q. Do you accept that at some point they fell to the ground inside the flat?A. Not them two. Kane's standing. And Daniel fell outside. Not inside.Q. And at some point Kane was inside the property facing the ranch sliderand he had this axe in his hand?A. Yes.Q. And I'm suggesting to you that the defendant was slightly into theproperty with the ranch slider [more] or less immediately behind him,were they in that position at some point?A. No.Q. You know the position when you say the Kane put the axe down?A. Yes.Q. You're saying he put that down without having struck anybody with itbefore?A. Yes.Q. When he had that, before he put it down, was he facing the ranch slider?A. Yes.Q. And he would've been facing the defendant?A. Yes.Q. Did you see him or where were you positioned at that moment? In thebedroom or in the lounge?A. In the bedroom.Q. So that was – the axe incident, if I can call it that, was towards the endof the altercation, wasn't it? That was one of the last things to happen?A. Yes.Q. And you saw Kane lift up that axe and strike the defendant?A. No.Q. On the head?A. No.[34] In closing to the jury, Mr Couchman raised self-defence only in relation to thethird headbutt:I suggest to you that he wouldn't have put it down and you can have a realdoubt about whether he put that axe down. I suggest to you that you mightwell think that he didn't put it down but he kept it in his hand, and that we alsoknow from Taylor that she describes the same incident, doesn't she?"The defendant is outside" she says in her police statement, again, the Crownwill be relying on her statement that she gave at the time at the police station,not what she said subsequently, and she describes again, we've got thissituation where the decorative axe is hanging on the wall, and that her partnerKane grabs it. He is told apparently to put it down, and he puts it down andthen is attacked. Members of the jury if you have a doubt about whether heput that thing down then what you've got in that matter is a person at the endof a fight, the end stages of a fight, when they'd been tussling, grappling,rolling around, punching according to Taylor's evidence. You've got thisfighting going on and then you have a man with an axe and then if a personhas an axe in that situation and they are in your immediate vicinity, the lawprovides that you can act with self-defence, and you can do what we callpre-emptive, you can act pre-emptively. If you apprehend that somebody hasthe means to hit you with something, and that you've been fighting, and youthink that they could well hit you, the circumstances look like that's what'sgoing to happen, you don't have to wait until you get hit to act, you can get infirst.[35] Mr Couchman went on to say:But the law says that the force that you use has got to be commensurate, it'sgot to be proportional to the threat. The law doesn't say that if somebodypushes you that you can then crack somebody with an axe in self-defence, it'sgot to be reasonable. The force you use has got to be reasonable andproportional to the threat that you perceive or to the assault that you incurred.So, all I'm simply saying is that if you find that there was a striking of the axeon the defendant as by the injury that wasn't necessarily caused by a headbutt,then you can find that that in that situation self-defence is very much a liveissue, but even if it's not, the injury is not connected to an axe I suggest to you,you've got to think of it from a pre-emptive point of view. If somebody is inclose proximity to you, you've been fighting, they've got an axe, they're as Isay within striking distance, you don't have to wait members of the jury to behit with it before you pre-emptively strike back, the law says, providing thatis proportional, and a headbutt if delivered in that situation is proportional tobeing struck on the head or thinking potentially that you will be struck.[36] So, Mr Wrench's case was that:(a) He did not administer the first or second headbutts alleged byMr Boyce. Simply put, these did not happen. Rather, Mr Boyceinitiated the violence by punching him with a "king hit". (Mr Boycedenied this. So too Ms Carnahcan.)(b) After the contested king hit, Mr Wrench and Mr Boyce were grapplingon the ground, fighting, or both.(c) He did not strangle or choke Mr Boyce. (Mr Boyce and Ms Carnachansaid otherwise.)(d) Toward the end of the incident, Mr Boyce got the decorative axe fromthe wall and struck Mr Wrench to the head with it. (Mr Boyce andMs Carnachan said Mr Boyce had the axe but did not use it to strikeMr Wrench.)(e) He headbutted Mr Boyce (once), but in response to being hit on thehead with the decorative axe.[37] Self-defence is left to a jury only when there is a credible or plausible narrativein the evidence to support the defence.14 Because Mr Wrench did not testify or makea police statement, that narrative had to arise from the evidence of Mr Boyce orMs Carnachan for the defence to be left to the jury. Their evidence did not support acredible narrative of self-defence other than from when Mr Boyce took the decorativeaxe from the wall, for, on the defence case as put in cross-examination, Mr Wrenchheadbutted Mr Boyce only after Mr Boyce had the axe, and on the evidence, thisoccurred immediately before the third headbutt.[38] Explained another way, Mr Wrench's case was that the first and secondheadbutts did not happen. The defence of self-defence arises only in response to, orin anticipation of, the application of force by another person to the defendant.Mr Wrench could not defend himself against force which, on his case, was neitherapplied nor threatened by another person.[39] Mr Wrench's contention of the defence being available earlier imagines adifferent trial, in which an alternative sequence was put to and accepted by Mr Boyceor Ms Carnachan. The Judge, however, was required to address self-defence in thecontext of the evidence as actually given.[40] Mr Wrench also contends the question trail wrongly presupposed the existenceof three headbutts. We see nothing in this point. The Judge emphasised whensumming up that the "sole responsibility to decide all questions of fact" lay withthe jury. The question trail made it clear that the Crown had to prove that eachheadbutt occurred, and the Judge made the same point throughout the summing up.The Judge also reminded the jury that Mr Wrench's case was that the first and secondheadbutts did not occur, and as discussed, that the defence of self-defence wasadvanced in relation to the third. We also add the obvious point that the question trailhad to refer to three headbutts, as each headbutt was the subject of a charge.14 Simon France (ed) Adams on Criminal Law – Offences and Defences (online ed, ThomsonReuters) at [CA48.17].[41] This leaves a related contention. Mr Wrench contends the Judge unfairly cutacross his case when summing up in relation to the final headbutt. We italicisethe sentence of concern to Mr Wrench:[35] Then we finally have a final count of assault with intent to injure andthis is the final occasion of the final headbutt. I think everybody agrees thatthe final headbutt is the headbutt that took place outside, although whetherthat was on the porch or on the gravel you might be less certain about but itdoes seem that it was out of the house. That is the first thing that you need tobe sure about, again, is that Mr Wrench intentionally headbutted Mr Boyce thethird time outside of that house. If no, if you are not sure about that, thenagain it is not guilty. If you are sure then you move on to the second question.[36] Now it is very similar to the first two charges that we have been lookingat but here the narrative is a little bit different because at this point, I can seeyou looking at me going: "What's different?" it is to do with the wooden axe,that decorative axe has come into play around this time. Now there is someconfusion on the evidence as to when exactly that has come into play and thatis going to be a matter that you are going to have to work through and workout what you are sure has happened. The defence accepts or seems to acceptthat the final headbutt did occur, there has not really been any suggestion thatthat was made up or did not occur. But the suggestion is it was in response tothe threat of the axe, so that is something you are going to have tograpple with. When did the axe come into play, what was going on with theaxe, what did Mr Boyce do with the axe, how long did he hold the axe, howclose was he to Mr Wrench at that time, those are all things that you might beneeding to consider at this point. Because the axe is in play, it is accepted thatthe issue of self-defence comes into play for this last charge, so you will see Ihave written a little bit there about self-defence and the questions here are alittle bit different to what we have for questions 1 and 2.[42] Mr Wrench says it was not accepted at trial the third headbutt was administeredoutside the unit; it is possible it occurred inside the unit. Mr Wrench contends thisunfairly undermined his case.[43] We see nothing in this point either. First, Mr Couchman's cross-examinationof Mr Boyce — as to which see [31] above — implied that Mr Wrench acknowledgedheadbutting Mr Boyce outside the unit.15 Second, Mr Boyce's evidence was that thisoccurred outside the unit, and to the extent this differed from his police statement,the Judge's observation did not undermine the challenge to his credibility andreliability.16 Third, whether the headbutt occurred inside or outside the unit did not15 Mr Couchman's later cross-examination, as to which see [32] above, is equivocal as to where thethird headbutt occurred.16 Mr Boyce told police that Mr Wrench administered the third headbutt inside the unit, andMr Wrench then dragged him outside over the steps.affect the availability of the defence of self-defence. Fourth, Mr Couchman did notraise any concern with the Judge about this aspect of the summing up, and Mr Wrenchmakes no complaint about Mr Couchman's competence. Fifth, and perhaps mostimportantly, Mr Wrench was found not guilty of this charge.Result[44] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent