ROBERTS v R [2016] NZCA 578

ROBERTS v R [2016] NZCA 578 [5 December 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA255/2016[2016] NZCA 578BETWEEN FRANK SAMUEL HUKATEREROBERTSAppellantAND THE QUEENRespondentHearing: 19 October 2016Court: Cooper, Brewer and Peters JJCounsel: P F Chambers for AppellantRMA McCoubrey and E E Meade for RespondentJudgment: 5 December 2016 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Frank Roberts was convicted by a jury in the District Court on 19 February 2016 on charges of injuring with intent to injure, intentional damage and doing a threatening act. He now appeals his convictions on the first and the last of those charges.[2] There are two grounds for the appeal. The first is that the trial Judge, Judge de Ridder, erred in a pre-trial ruling in which he declined to allow evidence of violent behaviour by the female victim to be called by the defence.1[3] The second ground of appeal is that the guilty verdicts reached by the jury are so inconsistent with the evidence that no reasonable jury could have, or would have, found Mr Roberts guilty.Background[4] Mr Roberts and the victim had been in a domestic relationship, but had been separated for about two years. The victim, shortly before the incident giving rise to the charges, told Mr Roberts that she was in a new relationship.[5] On 18 May 2014, Mr Roberts arrived, unexpectedly, at the victim's homewhere she and her new partner, Mr Godfrey Hill, were. The Crown's case was thatupon the victim telling Mr Roberts to go outside, he punched her in the face and shoulder. The victim tried to push Mr Roberts out the door but, according to the evidence called by the Crown, he grabbed her by one arm and flung her out the door in what was described as a ragdoll motion. The victim fell on the ground outside the door, dislocating her shoulder.[6] A general fracas developed involving Mr Roberts, his two sisters (who had subsequently arrived), and Mr Hill. We do not need to describe it. It is enough to say that, eventually, the victim and her new partner were barricaded inside the house and Mr Roberts and his two sisters were outside the house.[7] Mr Roberts picked up a number of ceramic pot plants and threw them through windows of the house. He and one of his sisters inflicted significant damageon the victim's vehicle. Eventually, through the intervention of another person, theincident came to an end.1 R v Roberts DC Kaikohe CRI-2014-029-480, 19 February 2016 (Ruling 3).The evidence ruled inadmissible[8] The victim, in a Family Court proceeding, had accepted that she had, some weeks before this incident, assaulted a niece who had been having an affair with Mr Roberts and who is now Mr Roberts's partner. The victim had not seen the niece for some time but on going to the supermarket one day she saw her niece sitting in a vehicle. The victim confronted her niece, grabbed her by the throat, and verbally abused and threatened her. The victim was charged with common assault and threatening to kill.[9] Mr Chambers, for Mr Roberts, endeavoured to persuade Judge de Ridder that this evidence should be put to the victim to impeach her veracity by demonstrating a propensity towards violence. Mr Roberts's defence at the trial was that it was the victim who assaulted him without warning rather than the other way around. Since, in the previous incident, the victim had attacked her niece without warning, this, Mr Chambers submitted, showed that the victim had a tendency to physically assault people without warning thereby calling into question the victim's version of events. Judge de Ridder said:[9] In my view the proposed evidence does not have any specificity whatsoever about it. The time, place, and circumstance of that assault were completely different to the conduct alleged to constitute the offence with which Mr Roberts is now charged. Accordingly, it does not constitute propensity evidence and is therefore inadmissible.[10] Mr Chambers repeats his argument on appeal. He emphasises that thevictim's assault against her niece occurred without any discussion or immediate provocation. Similarly, in the present case Mr Roberts gave evidence that the victim attacked him without provocation. Mr Chambers also submits that both incidents were related to Mr Roberts's new partner. His argument is that the victim's previousconduct does have sufficient specificity to qualify as propensity evidence and that the circumstances of the two incidents are sufficiently related that the proposed evidence has real probative value.Discussion[11] The evidence would be tendered to show that the victim has a propensity to commit unprovoked acts of violence, thereby creating a reasonable doubt as to who was the initiator of the violence. Propensity evidence is defined in s 40(1) of the Evidence Act 2006 (the Act) to mean evidence that tends to show a person'spropensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, or circumstances with which a person is alleged to have been involved. Propensity evidence of a victim is generally admissible under s 40(2) of the Act subject to relevance under s 7 and the general rules of exclusion under s 8.2[12] As the Crown observes, admissibility of propensity evidence rests largely on the concepts of linkage and coincidence. The use of the word "particular" in s 40(1) means that the propensity must have some specificity about it. As the Supreme Court said in Mahomed v R, the specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.3 In this case, given the proposed evidence was tendered in respect of a victim rather than an accused, the specificity must be linked in some way with Mr Roberts's account of the events that led to his convictions.[13] In our view, the proposed evidence does not meet the definition of propensity evidence in s 40(1). The first point to note is that the proposed evidence comprises only a single incident. While it is of course possible for a single action to demonstrate propensity, the fewer actions that are relied upon, the less likely it is that a conclusion that propensity has been proved would be properly reached.4[14] Secondly, the attack by the victim on her niece was provoked by the emotional distress the victim no doubt experienced upon learning Mr Roberts was having an affair with her niece. It was an incident confined to its particular context.2 Cable v R [2011] NZCA 330 at [11].3 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].4 R v Mata [2009] NZCA 254 at [46].Given that background, we are satisfied that the evidence does not disclose the general propensity contended for by Mr Chambers.[15] For those two reasons, we conclude that the evidence does not meet the s 40(1) definition of propensity evidence: it does not tend to show that the victim has a propensity to act in a particular way or have a particular state of mind. It follows that the evidence is irrelevant because it does not tend to prove or disprove anything that is of consequence to the determination of the proceedings.5 It is therefore inadmissible pursuant to s 7(2).Inconsistent verdicts[16] The second ground of appeal is that the verdicts reached by the jury are so inconsistent with the evidence put before it that no reasonable jury could have, or would have, found Mr Roberts guilty.[17] The relevant provision is s 232(2)(a) of the Criminal Procedure Act 2011, which provides that the Court must allow the appeal if it is satisfied that, havingregard to the evidence, the jury's verdict was unreasonable. The Supreme Courtstated in R v Owen that:6 a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.[18] The Supreme Court in Owen also endorsed a number of principles from theCourt of Appeal's decision in R v Munro.7 Among them are the principles that the weight to be given to individual pieces of evidence is essentially a jury function8 and that under our judicial system the body charged with finding the facts is the jury so appellate courts should not lightly interfere in this area.9 The Court also observed that the appellate court is not conducting a retrial on the written record; the appellant must articulate clearly and precisely in what respects the verdict is said to be5 Evidence Act 2006, s 7(3).6 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].7 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.8 Owen, above n 6, at [13(c)].9 At [13(e)].unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.10[19] Mr Chambers submits, in relation to the injuring with intent to injure charge, that certain aspects of the evidence given by one of the witnesses, Ms Dolly Desmond, casts reasonable doubt over whether, in injuring the victim, Mr Roberts intended to do so. Mr Chambers submits that a number of discrepancies exist between Ms Desmond's evidence and the evidence of the victim and Mr Hill. In view of these discrepancies, which we will come to, Mr Chambers submits that a reasonable jury properly considering that evidence and applying the proper test would not find the charge of injuring with intent to injure proved.[20] In respect of the threatening act charge, Mr Chambers submits that the evidence before the jury did not prove an intent by Mr Roberts, when breaking the windows, to threaten the victim. Mr Chambers highlights what he describes as"conflicting evidence as to who broke the windows of the house and vehicles".According to Mr Chambers, Mr Hill's evidence was that he saw Mr Roberts's sister and co-defendant, Ms Ruth Roberts, break the lounge and kitchen windows. Mr Chambers also refers to evidence given by Ms Desmond in which she implies that the front windows were smashed by Ms Roberts. Finally, Mr Chambers states in his written submissions that Mr Roberts admitted smashing the car windows but cannot remember smashing the windows of the house, having just awoken from a sleeper hold. Mr Chambers' submission is that the evidence, properly assessed, does not disclose the requisite intent on the part of Mr Roberts and it follows that no reasonable jury could have convicted on that charge.[21] In response, the Crown submits that Mr Chambers has not clearly articulated what it is that makes the verdicts unreasonable, and instead is effectively asking the Court to conduct a retrial on the written record, attribute weight to individual pieces of evidence, and to substitute its own views of the evidence for that of the jury. The Crown further submits that this case involved the assessment of credibility, reliability, and accuracy of the witnesses and therefore appropriate weight should be10 At [13(f)].given to the advantages that the jury had in seeing the witnesses give their evidence.11Discussion[22] We agree with the Crown that the case required the jury to assess the credibility, reliability and accuracy of the witnesses. That is because the case involved conflicting testimonies. As the Judge said in summing up, it was for the jury to consider what actions Mr Roberts took, his attitude towards the victim, their respective positions, and the overall situation. The question is whether, notwithstanding the advantage the jury had in assessing credibility, the discrepancies identified by Mr Chambers are such that no reasonable jury could have been satisfied to the required standard that Mr Roberts was guilty on the relevant charges.[23] We start with the injuring with intent to injure charge. The victim's evidencewas that she first found Mr Chambers standing in the hallway of her house. The front door was closed behind him. She tried to usher Mr Roberts out of the house and opened the front door in the process. He punched her a number of times and eventually threw her forcefully out of the door. Mr Hill largely confirmed thevictim's account. He said that Mr Roberts punched the victim at least three times.He also gave evidence that Mr Roberts grabbed the victim by her arm and threw her out of the house in a ragdoll motion.[24] Mr Chambers relies on the evidence of Ms Desmond to challenge the reliability of these accounts. He submits that, according to Ms Desmond, Mr Roberts did not hit the victim. He points to the following exchange in cross-examination:Q. Well I [don't] see in your evidence or hear from you evidence that you saw [Mr Roberts] actually hit [the victim]. She was grabbing hold of her — he was grabbing hold of her collar, he was throwinghis arms around but he didn't actually hit her.A. Are you asking me, did he hit her or what?Q. Yes, I'm just saying from your evidence you gave you said that[Mr Roberts] was grabbing hold of her collar with both hands and he11 Citing Owen, above n 6, at [13(b)].was flinging his around but I didn't hear any evidence that you sawhim hit her.A. No. No well, he, he was just swinging his arms at her and pulling her so.[25] Earlier, in evidence-in-chief, Ms Desmond said:Q. And what was Frank doing?A. He just, I don't know he just — it was like he was holding onto herand like he was trying to, I don't know he was — like he was trying to strangle her or something, just going like this and she's going(inaudible 15:20:59). The next minute it was like he was trying tohit her out, hit her out of the way or something or I don't know, justlooked, just scary.Q. What do you mean by, "He was trying to hit her out of the way," canyou describe that?A. 'Cos just, just swinging and swinging and —Q. You're indicating to your head area, is that where he was swinging?A. Well 'cos he's quite a tall fulla and she's quite tall but it was like,yeah he was just swinging at her and strangling and then —[26] In our view, this matter is not material to the verdict. The Crown's case wasthat Mr Roberts intentionally threw the victim out of the door. The defence case was that while Mr Roberts and the victim were in the hallway, he accidentally tripped over the doorway, which caused them to fall out of the door. While the physical altercation leading up to the incident provides relevant context, the charge does not depend on the jury accepting beyond reasonable doubt that Mr Roberts punched the victim.[27] Mr Chambers' second point in relation to the injuring with intent to injure charge was that, according to Ms Desmond, Mr Hill was behind her and nowhere near the hallway when the incident occurred. In relation to the position of Mr Hill, Ms Desmond said:Q. How was [Mr Roberts] behaving?A. Just looks so evil you know. Just, not, just never seen that before.Q. Did [the victim] get [Mr Roberts] outside or not?A. (inaudible 15:22:10) but I remember [Mr Hill] coming. [Mr Hill] was there too.Q. You're indicating towards the back of you, was [Mr Hill] behind you?A. Yeah [Mr Hill's] come, [Mr Hill's] come as soon as — 'cos there —'cos when there was yelling and scuffling and he's come out, to havea look. And then I've just, just, just yelling, just like to stop or and he's just, he's just. Next minute, they're all outside. Just all gone —Q. So just before you go on Mrs Desmond, you've mentioned that[Mr Hill] was behind you. Do you know what [Mr Hill] did at that point?A. Oh well he was trying to — just came up to try and help [the victim].Q. And do you know whether he did that?A. Yeah, yeah well all I could see is that everybody's just, just scufflingand Q. Did you see [Mr Hill] walk past you?A. Yeah yeah, no he went past me 'cos I was standing there, just yelling out and just asking what's going on, what's happening?Q. And what happened when [Mr Hill] went past you?A. Well he would've — no I'm too — I don't know how he's come —oh, oh.[28] And later in cross-examination:Q. now by that stage was Mr Hill behind you, Godfrey Hill? I knowin your evidence you did say that he came in and — from behind you, but was he there at the time when you saw [Mr Roberts] and [the victim] scuffling and [Mr Roberts] flinging his arms?A. I just, I just remember [the victim] and [Mr Roberts] trying to go towards the, go towards the front door but then I remember — yeahno, yeah, I don't know how long before [Mr Hill] came behind me but all I know is that when I came around there, [the victim] and [Mr Hill] and they were trying to go out but then — yeah I just [29] Mr Hill's evidence was that he heard a "ruckus" and came to the far end ofthe hallway with Ms Desmond from where he was able to observe the incident.[30] We are not persuaded that Ms Desmond's evidence impugns Mr Hill'sreliability as a witness. Her evidence places Mr Hill in close proximity to her at thetime the incident occurred. We do not accept Mr Chambers' submission thatMs Desmond's evidence "places [Mr Hill] nowhere near [the] hallway and behind [Ms Desmond] so that he could not have seen what was happening".[31] Next, Mr Chambers submits that Ms Desmond's evidence was that the frontdoor was open, which conflicts with the victim's evidence and the evidence of Mr Hill. Ms Desmond said:Q. Mrs Desmond if I'm correct your evidence today is that [the victim] made her way into the hallway when [Mr Roberts] first arrived and you followed her and when you started to hear a scuffle is that correct or was it arguing with — from between [the victim] and [Mr Roberts]?A. Sorry, sorry what was, what was the question?Q. You followed [the victim] into the hallway shortly after she'd gonethere after you heard arguing between her and [Mr Roberts] is that correct?A. Yes, yes, ah, yeah, I followed her, yes.Q. So it's fair to say they're a reasonable distance inside the hallway? They weren't, they weren't right down by the front door were they?A. No, no.Q. And if I'm correct in recollecting your evidence, you confirm thatyou didn't see the front door closed. It was open.A. Yes.[32] The victim's evidence was slightly different. Her evidence was that when she first saw Mr Roberts in the house he was in the hallway with the door shut behind him. The victim said that she later opened the door in an attempt to usher Mr Roberts out of the house:Q. When it — you said before it was closed when you first saw [Mr Roberts].A. Yes.Q. When was it opened, or who opened it?A. When — myself 'cos I was push, [sic] when I was telling him to goback out and then he wouldn't go outside. I opened the door, left thedoor open so he would go back out, but he wouldn't go back out and that's when he got me and he threw me out the door.[33] Mr Hill's evidence was to similar effect:Q. How was she opening [the door] if she was being ragdolled?A. Oh, with one hand I suppose.Q. How was she opening [it] if she was being punched? I'm — your evidence was that at that time when you saw them —A. Yeah.Q. She was —A. Nah, this is still early stages of all this happening. She's opened the door and she's trying to hush him out of the door because the kids are there, but he's just you know punching her and she's trying to make sure it doesn't —[34] We accept that there is a difference between Ms Desmond's evidence and theevidence of the victim and Mr Hill in this regard. But it is not sufficiently material to the case to call the verdict on this charge into question. It was open to the jury to accept the evidence of the victim and Mr Hill over Ms Desmond on this point. AsOwen and Munro confirm, the weight to be given to individual pieces of evidence is a jury function. Juries frequently hear evidence that does not match with other evidence. Their job is to decide what they are sure of. It is only if, objectively, their decision cannot be sustained on the evidence that an appellate Court will intervene. That is not the situation here.[35] Finally, Mr Chambers submits that Ms Desmond gave evidence that Mr Roberts may have tripped and fallen leading to him accidentally propelling the victim out of the door. He relies on the following exchange in cross-examination:Q. Now your evidence today did remark on just how quickly eventstranspired. They were pushing, they were pulling each other, he was flailing his arms around but when he got closer to the door, he hadboth hands on her shirt. Now given that you've remembered that he appeared to have fallen as well, isn't it possible that both of them inthat fast moving period of time with all the toing and froing andpushing and pulling, it's quite possible that [Mr Roberts has] tripped and while holding on to [the victim], both of them have gone out the front door and landed on the concrete? Is that possible?A. Yes, it's possible.[36] However, in re-examination Ms Desmond resiled from what she said in cross-examination:Q. What Mr Chambers was suggesting to you is that really, [Mr Roberts] tripped over and it was an accident that [the victim] fell on the ground.A. No.Q. Is that right or wrong?A. That's wrong.Q. Why?A. Because, nah.Q. Is it the case is what you said in your statement, he threw her out?A. Yeah, he did, he did. He threw her out.Q. And so you're saying it's not a possibility that it was accidental?A. Nah, that wasn't accidental.[37] Ms Desmond's position in re-examination is consistent with her statement to police in which she said, "[Mr Roberts] then chucked her down the stairs" and then, "[Mr Roberts] lost his step after throwing her out and he must've fallen too." It isalso consistent with her evidence-in-chief:Q. And so how did he — what were the physical aspects of him pullingher to the ground? How did he do that is what I'm trying tounderstand?A. Just, just both his hands around her clothes and that and just, justthrew her and just outside the door, and then they're both out of [sic]the concrete.[38] When Ms Desmond's evidence is viewed in totality it is clear that sheconsidered Mr Roberts to have deliberately thrown the victim out of the house. Even if Ms Desmond's evidence could not be viewed in this way, resolving what happenedwas still for the jury.[39] We are satisfied the matters raised by Mr Chambers are insufficient to call thejury's verdict on this charge into question.[40] We turn now to the threatening act charge. We first observe that, contrary to Mr Chambers' submission, Mr Hill gave clear evidence that it was Mr Roberts who broke the kitchen window:A. I could hear footsteps on the deck so I've ran to the lounge andthen [Mr Roberts is] sorta just standing out this window here.Q. What photograph's that sorry?A. 55.Q. Is that the kitchen?A. Yeah the kitchen window.Q. What's he doing?A. Oh he's holding, he's holding something in his hand, I couldn't quitesee what it was, I think it was a — might've been a scooter, steel scooter, he's held, and he's just smashed a window with it?Q. Which window?A. The kitchen window.[41] Further, Mr Roberts did in fact admit to smashing the bathroom windows of the house:Q. What in particular did you pick up and what did you smash?A. Oh just the pots, other, the garden pots.Q. And what did you smash them against?A. I smashed them against [the victim's] truck.Q. And anywhere else?A. Yeah, like, the windows in the house. So, yeah the bathroom.[42] These exchanges undermine, to a certain extent, the "confusion" thatMr Chambers identifies in the evidence. In any event, the defence case run at trial was that Mr Roberts did break the windows but he did so shortly after being unconscious and because he was angry that Mr Hill had restrained him with a sleeper hold.[43] We do not accept Mr Chambers' submission that there was "no evidence of the requisite intent on the part of the appellant in the evidence". As set out by theJudge in summing up, the question of intent involves the process of drawing an inference, which can be drawn from facts the jury find to be established, or from evidence that they accept as reliable. The charge required the prosecution to provethat Mr Roberts had "intent to intimidate".12 Given the series of events that led to Mr Roberts breaking the windows, it was clearly open to the jury to find beyond reasonable doubt that Mr Roberts possessed that intent.[44] To conclude, none of the matters raised on appeal give us any reason todisturb the jury's verdicts. This ground of appeal must fail.Result[45] The appeal is dismissed.Solicitors:Henley-Smith Law, Auckland, for AppellantCrown Solicitor, Auckland, for Respondent12 Crimes Act 1961, s 308.