WYLLIE v R [2016] NZCA 613

WYLLIE v R [2016] NZCA 613 [15 December 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA204/2016[2016] NZCA 613BETWEEN JACK WYLLIEAppellantAND THE QUEENRespondentHearing: 18 October 2016Court: Cooper, Brewer and Peters JJCounsel: N P Bourke for AppellantI R Murray for RespondentJudgment: 15 December 2016 at 3.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] Following an incident in Turangi on 4 January 2015 the appellant was charged with common assault and wounding with intent to cause grievous bodily harm. At a trial before Judge McGuire and a jury in the Rotorua District Court he was convicted of both charges. He was sentenced to a term of five years'imprisonment on 25 February 2016.11 Wyllie v R [2016] NZDC 3099.[2] The appellant now appeals against his conviction, claiming that a miscarriage of justice occurred because propensity evidence was wrongly admitted against him in respect of both charges, or at least in respect of the wounding charge, and, further,that the Judge's directions on propensity evidence exacerbated the prejudicial effecton him.[3] The appeal was filed out of time, apparently because of communication difficulties experienced by the appellant in prison. The Crown takes no issue with an extension of time to the date when the notice of appeal was filed. Accordingly, the application for an extension of time to appeal is granted.Background[4] The Crown's case at the trial was that the appellant and the complainant, K, had a mutual friend by the name of Jack Ripohau. From time to time Mr Ripohau and K went hunting together. K met the appellant through Mr Ripohau.[5] On 4 January 2015 K went to Mr Ripohau's home in Turangi, having been hunting with him on the previous day. Mr Ripohau was not present. His daughterdirected K to the appellant's home. K went to the appellant's home where theappellant and Mr Ripohau were and joined them for "a few drinks". After a period drinking together, K claimed that the appellant suddenly attacked him, punching him in the head three times. K alleged that when he then went to leave he was further attacked by the appellant, this time with a baseball bat with spikes protruding from it. He was struck in the leg, suffering three wounds. He described in evidence walking as well as he could to a nearby property where he knew the occupants. However, their door was closed to him and he continued to walk in the vicinity before being seen and picked up by a stranger who took him to the Turangi Medical Centre.[6] The police were called and came to the medical centre to speak to him. On the basis of their discussion with him they drove to the vicinity of the address where they believed the attack had taken place. There they observed the appellant and an associate. Detective Bagley had a conversation with the appellant, who hadapproached him asking "what's up?" The detective said there had been an assault, atwhich point the appellant said to him, "yeah, he assaulted me so I assaulted himback". The detective asked why, to which the appellant responded, "[h]e homeinvaded my house." At that point, the detective arrested the appellant for assault andinformed him of his rights. After the appellant was handcuffed and Detective Bagley walked him down the driveway of the house towards the road, the detective activated a recording device on his police cellphone and recorded the conversation between him and the appellant.[7] That recording was played to the jury and a transcript was made available. It formed the basis of the defence at the trial, which was that K had come to theappellant's property in a belligerent mood and approached the appellant in an aggressive manner, the appellant did no more than was necessary to repel him and to tell him to leave the property, and any injuries he sustained were at the hands of unknown persons somewhere else before he was found and taken to the medical centre.[8] The injuries that K sustained were the subject of evidence at the trial by a Dr Whiting. She treated K, who had been flown from Turangi to Waikato Hospital. It was necessary to operate on his leg. He had three wounds to the lower left leg, two on the outside and one on the inside. Dr Whiting said that they were all "quitejagged wounds" with a "wide shaped configuration". In her experience, this was consistent with injury from a sharp penetrating object. The doctor surgically treated the wounds, examining them before cleaning and closing them. She found specks of foreign material in all three wounds. The third wound she treated was the deepest. It was on the inside of the leg, and was about five to six centimetres deep. This meant that it had been inflicted by something sharp. She thought that the weapon would have had rough edges, as opposed to a simple blade, and had dragged against the skin.A previous incident[9] The Crown case also relied on evidence of a previous incident in which K claimed he had been subjected to a sudden and unprovoked attack by the appellant. Once again, Mr Ripohau had been present. K referred to this event briefly whengiving a statement to the police on 8 January 2015 about the 4 January incident. He recounted hearing Mr Ripohau say during the 4 January altercation, "not again", which K said he believed was a reference to another time that the appellant had assaulted him in 2014. Detective Bagley spoke to K seeking further information about the previous event on 19 March 2015. The record the detective took of his discussion with K on that occasion included the following:At the time I was in the kitchen drinking with Jack WYLLIE and Jack RIPOHAU and possibly Jack's son.It was around 7.30pm.This was the first time that I had ever met Jack WYLLIE.We were sitting around the kitchen table when all of a sudden Jack WYLLIE threw a punch in my general direction.As he did this, I saw what was happening and I stood up to get out of the way.As I did this I tripped on the seat and fell onto the kitchen floor.While I was on the floor, I was kicked in the back.I looked up to see Jack WYLLIE standing above me.Jack WYLLIE told me that I better leave or otherwise he would beat me up.On hearing this, I got up off the kitchen floor and walked out the door and I was followed by Jack RIPOHAU.I knew Jack RIPOHAU reasonably well as we were hunting together and that was the reason that I was at the address.Once we were outside the house, Jack RIPOHAU told me that I had been hit or assaulted by Jack WYLLIE because I was being disrespectful towards women.I couldn't really understand why he was saying this because we weren't eventalking about females at the time.[10] The incident so described by K was never the subject of a prosecution. However, the Crown wished to lead evidence about it at the trial of the current charges. The Crown also wished to lead evidence about a previous conviction of the appellant for assault with a weapon in 2013. A pre-trial hearing to determine the admissibility of this evidence was held before Judge Cooper on 6 August 2015.2 The2 R v Wyllie [2015] NZDC 15591.Judge declined the Crown's application in respect of the 2013 conviction. Heconsidered it was too dissimilar, did not go to the relevant issues in this case and would be prejudicial. However, in relation to the previous assault on K, he said:[7] The other incident though, six months before the present allegations, is one which, in my view, is admissible and that is something which the defence accept. It is not so much propensity evidence, but it is really background evidence which goes to show a sense of antipathy on thedefendant's part towards the complainant. There is a commonality in thatboth incidents involve, allegedly, the defendant assaulting the complainant without warning and he appears to have an antagonistic attitude towards this particular complainant for whatever reason.[8] So that is a matter that is relevant in the background to this current allegation in that it shows, as I say, a sense of antipathy and aggression towards this particular complainant and shows a tendency to assault without warning and without any, apparently, real explanation. [11] In opening the Crown case, the prosecutor referred to the earlier incident saying:Interestingly, this isn't the first time, the victim will tell you, he's beenassaulted by Mr Wyllie. About six months prior to this incident he was in Turangi again at a different address. Mr Wyllie was there and the victim will tell you that again out of the blue Mr Wyllie assaulted him with his fist andkicks. Now there's no charges in relation to that alleged incident, but he will tell you about it. So the second incident, the one that happened on the 4th ofJanuary, was actually, according to the victim's evidence, the second timehe was attacked out of the blue by Mr Wyllie.[12] In evidence-in-chief, K gave the following evidence:Q. Now that was the events as you recall them, the afternoon, evening of the 4th of January, was that the first time that you had been assaulted by Jack Wyllie?A. No.Q. Help us explain the previous occasion?A. We were having a few, a few beers, um, and we were all pretty, pretty, pretty drunk I guess and —Q. I['ll] just stop you there, how long before the 4th of January 2015 was this previous occasion?A. Six months.Q. Where were you, what township were you in?A. We were out Korohe.Q. And for those who don't know, how far away from Turangi isKorohe?A. Fifteen minutes drive at the most.Q. Presumably you were at a house in Korohe?A. Yes.Q. You said there had been drinking?A. Yes.Q. What happened?A. Um, I was talking to Jacky Ripohau and all of a sudden I was being hit.Q. Being hit by who?A. Ah, Jack Wyllie.Q. Just explain what you mean by hit please, so we can understand?A. I was sitting here, he was sitting there next minute I was being hit, I don't know, understand the question really.Q. That's okay, that's fine, we'll take it nice and slowly. First andforemost you were sitting?A. Yes.Q. You indicated you there, him there, how far do you think he was from you?A. Metre and a half at the most.Q. By hit, I mean how did he hit you, was it a push, a punch, a slap, a kick, what was it?A. Hit, hit, hit, hit, yeah, yeah, anyway so I got, I got up and left and, um, yeah, nothing else, nothing else came of it.Q. How many times did he hit you do you think?A. Ah, three times, someone kicked me in the back.Q. Someone but you're not sure who?A. No.Q. Now on that occasion, you say about six months before the 4th of January, you got up and left and nothing came of it?A. Yes.[13] The previous incident was briefly touched on by trial counsel (not Mr Bourke). In cross-examination there was the following question:Q. So if I have it right [K], your version of events is that there have been two incidents involving Mr Wyllie, both of them have involved sudden assaults on you without any forewarning, without anyprovocation on your part, and that both times, it's been Mr Wyllie,has been the perpetrator of these things, can I put it to you that that'sjust nonsense, certainly in relation to this incident in January, you were —K indicated his disagreement with that proposition.[14] The prosecutor did not refer to the previous incident in his closing address.However, the appellant's trial counsel did so briefly, claiming first that the previous incident might explain why K had made an allegation against the appellant:Well we know that he was certainly hostile [to] Mr Wyllie for allegedly hitting him previously.However, immediately following that, counsel referred to the allegation of a previous assault as being "another fairy story woven into the fabric of the Crown case".The summing-up[15] The Judge dealt with the previous incident in summing up. He said:[27] Now ladies and gentlemen, I need to talk to you briefly about the allegation of the earlier occasion of an assault on [K] by Mr Wyllie. You will recall that [K] gave evidence of a surprise attack, if you like, or a surprise assault by Mr Wyllie on an earlier occasion some six months before where he says Mr Wyllie hit him three times, and again it was at a house at Korohe.[28] Now okay, so what do we make of that? In this case, Mr Wyllie is charged with an assault and the Crown has led from [K] the evidence of that earlier occasion of an assault by the defendant in similar circumstances; so an unprovoked assault, some six months earlier. So if you accept that that is what happened on that earlier occasion, the Crown says it is more likely that Mr Wyllie did it again on this occasion. So that line of reasoning is permissible, but only if the circumstances of the earlier assault show a tendency on the part of Mr Wyllie to act in a certain way and the certain way alleged here is unprovoked assault okay?[29] So the issue here is whether the defendant, on the earlier occasion, hit the complainant without warning, or whether the defendant acted in self-defence in repelling the assault that was initiated by [K].[30] The Crown highlights on both occasions that the defendant attacked without warning. If you accept that the earlier attack occurred, and you accept that there is this similarity between the two, then that is evidence you can take into account in deciding if Mr Wyllie was the offender on this occasion. The defence of course contests that and says that the earlier occasion was a fairy story, no complaint to the police, that [K] has just made it up to bolster his story on this occasion.[31] If you reject the idea that the earlier incident is like the current one, you should put the first incident to one side. Just because the defendant may have committed an assault on a previous occasion, does not mean that he did so this time. Without that similarity of the unprovoked nature of the assault, the earlier occasion does not help you decide this case and you must concentrate on other evidence.[32] It is also important for you to remember that the evidence of the earlier assault is only one item of evidence. It may assist you, but you may still need to consider all the evidence in order to decide if this was a sudden unprovoked attack or a situation of self-defence.[33] Please do not reach conclusions about that simply out of dislike for the defendant arising from his prior misconduct. If you accept that the prior misconduct occurred, do not conclude that because he has previously been involved in an assault, he therefore must be guilty of this charge. He is entitled to be judged by you in a manner that does not involve prejudice or sympathy.The appealAdmissibility[16] Mr Bourke, for the appellant, first submitted that the evidence given by K about the previous occasion when he claimed the appellant assaulted him should not have been admitted. He argued Judge Cooper had been incorrect in not treating the evidence as propensity evidence requiring a full analysis as such in accordance with s 43 of the Evidence Act 2006. Referring to the various considerations set out in s 43(3) of the Evidence Act,3 Mr Bourke submitted that the evidence was of a single discrete incident of low probative value. The fact that the incident happened approximately six months earlier was a neutral consideration. As to similarity between the two incidents, the evidence of the first alleged assault was very general and of a relatively minor nature. If accepted, it showed that on one prior occasion the appellant had punched K. This was very different to what was alleged to have3 Namely the frequency with which the acts that are the subject of the propensity evidence have occured, the connection in time and similarity between the propensity evidence and the alleged offence, and the reliability of the propensity evidence.happened in respect of the current charges, particularly the events upon which theCrown relied for the wounding offence. Mr Bourke referred to a "wide gulf"between the prior incident and the allegation of extreme violence with a weapon thatwas the subject of the wounding charge. He also submitted it was unclear from K'sevidence about the prior incident on what part of his body he claimed he was hit orindeed what form the "hitting" took.[17] Mr Bourke also challenged the reliability of the evidence, noting that K had been vague about when the incident occurred and pointing to the differences between the statement made to Detective Bagley in March 2015 and the evidence given at the trial. As has been seen, in March 2015 K referred to the appellant as having throwna punch in K's "general direction" and being kicked in the back (inferentially byMr Wyllie, because when he looked up he saw Mr Wyllie standing above him). This is to be contrasted with the evidence given at trial that Mr Wyllie had in fact hit him three times, and someone (he was not sure who) had kicked him in the back. Thesedifferences made the evidence insufficiently reliable for K's evidence about theprevious occasion to be of probative value in the current trial.[18] On the other hand, admitting the evidence created significant prejudice. The details were so sparse that the appellant could not effectively defend the claim beyond a broad denial. Cross-examination would have given the evidence much more prominence in the trial and should not have been required because its probative value was so low.[19] Mr Murray, for the respondent, submitted that Judge Cooper correctly characterised the evidence as background evidence relating to persons participatingin the trial. He referred to this Court's decision in Perkins v R in which there was reference to evidence falling within the definition of propensity evidence that does not depend on coincidence reasoning but rather has relevance as bearing on the background or the nature of the relationships between those involved.4 Mr Murray argued the fact that the appellant had previously shown animosity toward K was clearly relevant for the jury not only in deciding whether the appellant was acting in self-defence, as he claimed in respect of the common assault charge, but also in4 Perkins v R [2011] NZCA 665 at [20].relation to whether the appellant was the person who attacked K with the weapon causing leg injuries, as K claimed, or whether the leg injuries were the result of unknown third parties at a different location. Because the evidence was demonstrably relevant and closely connected to the issues at the trial, the Judge had been correct to conclude the evidence was admissible.[20] Section 40(1)(a) of the Evidence Act defines "propensity evidence" asevidence that: tends to show a person's propensity to act in a particular way or to have aparticular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved.[21] The Supreme Court in Mahomed v R, referring to that definition, held that it was necessary:5 that the propensity have some specificity about it. That 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.[22] Prior to Mahomed, it had been common to admit evidence that is in fact propensity evidence within the definition as relevant to the narrative, or as"background evidence", "relationship evidence" or part of the res gestae.6 The evidence in the form considered by Judge Cooper was propensity evidence within the definition of the term. Although the Judge referred to it as background evidence, he regarded it as relevant because it showed a sense of antipathy on the appellant's part towards K. As has been seen, he thought there was a "commonality" becauseboth incidents involved an alleged assault that occurred without warning and an apparent antagonistic attitude whatever its source.7 In other words, the Judge concluded the evidence was relevant propensity evidence tending to show theappellant's state of mind toward K and willingness to act violently towards him.5 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].6 Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Brookers, Wellington, 2014) at [EV40.02(1)].7 Above at [10].[23] We accept that the evidence given at the trial was different from that considered for the purposes of the pre-trial ruling. However, the essential character of the evidence and its relevance remained as identified in that ruling.[24] Further, we accept, as Mr Murray submitted, that the evidence was not dependent for its relevance on coincidence reasoning and the Crown did not purport to rely on it for that purpose. We think it had sufficient probative value to be admitted on the basis that, if accepted, it told of a previous physical attack by the appellant on K, arising suddenly and unprovoked when the parties had apparently up until that point been amicably sharing a social occasion. It was evidence of hostility towards K and relevant to the issue whether, as the appellant claimed, he was acting in self-defence at the time of the alleged common assault. It also had some relevance to the allegation made by the appellant that he was not responsible for the more serious injuries sustained by K.[25] We therefore do not accept that the evidence was wrongly admitted.The Judge's directions[26] Mr Bourke advanced a separate argument based on prejudice arising out ofthe Judge's directions on propensity. The particular complaints were that:(a) The Judge began his direction by describing the earlier incident asbeing "in similar circumstances". Mr Bourke claimed that thisinappropriately gave the jury a form of "judicial imprimatur" that theprior incident was similar when this was a matter for the jury to determine.(b) The Judge's directions at [29],8 describing the issues as being whether the defendant on the earlier occasion hit the complainant without warning or whether the defendant acted in self-defence in repelling the assault that was initiated by K, misrepresented the defence case, which was that the prior incident had simply not occurred.8 Set out above at [15].(c) At [32] the Judge reminded the jury that the earlier assault was only one item of evidence, acknowledging that it might assist the jury (after considering all the evidence) in deciding whether this was asudden unprovoked attack or a situation of "self-defence". Again, this misstated the defence case, which was that the wounding charge was simply based on events that did not occur.(d) The Judge had apparently summed up on the basis that the evidence about the previous incident was admissible only in relation to the common assault charge, when it had been admitted for both charges. In the circumstances, the direction at [32] may have confused the jurygiven the Judge's repeated references to self-defence, which was applicable only to the common assault charged.(e) In opening to the jury the prosecutor had suggested that the appellant had assaulted K by kicking him. That evidence was not in fact given and the Judge should have directed the jury that what the prosecutor had said in opening was not evidence and could not be used against Mr Wyllie.[27] We do not consider that individually or collectively these criticisms give riseto a concern about the fairness of the trial. As to the Judge's reference to the earlier occasion having arisen in "similar circumstances", we do not consider it is accurate to regard that as a direction that the prior incident was in fact similar. The Judge was simply referring to the fact that the evidence about the previous assault was that it was unprovoked. That is made clear by the fact that immediately after the referenceto "in similar circumstances" he said "so an unprovoked assault". As a descriptionof the evidence, that was accurate. We do not consider the jury would have taken itas the Judge's agreement that the prior incident was in fact similar to the matters before the Court.[28] Mr Bourke's criticism that the Judge's statement at [29] conflated the defenceto the common assault charge at trial (self-defence) with the prior incident is correct. However, as Mr Bourke acknowledged, the Judge quickly proceeded to instructionsthat made it plain that it was for the jury to decide whether the earlier attack had occurred and, if so, whether the incidents were similar. He also, at that point, reminded the jury that the defence was that the earlier occasion was a "fairy story"and that K had simply made it up to bolster his story on the present charges.[29] Nor do we accept that the jury would have been confused by the Judge'sobservation that the jury had to consider all the evidence in order to decide if this was a sudden provoked attack or a situation of self-defence. Mr Bourke made the point that the defence to the wounding charge was that it did not occur. However, the Judge had made that plain in summarising the defence case. Specifically, in relation to that count in taking the jury through the question trail, the Judge said:[11] And going then to count 2, this is the wounding with intent to causegrievous bodily harm. You ask yourself, "Are you sure that on 4 January2015 at Turangi, Jack Wyllie intentionally wounded [K]?" Now you woundsomebody when you break the skin, okay? We all know what a wound is; it is a breaking of the skin all right. Are you sure that he intentionally wounded him? And as you all know, self-defence is not put forward inrespect of count 2. The defence is "it did not happen, it was not me.Someone else may have done it somewhere else, but it was not me, Jack Wyllie."[30] Mr Bourke's next criticism, that the Judge's direction may have confused thejury by his repeated references to self-defence "only applicable to the common assault" might have confused the jury. We do not accept that is so, for reasonsalready addressed. We note that in another part of the summing-up the Judge said:[19] Mr Hine says that this is an occasion where someone uninvited turns up who is aggressive and who had an altercation with Mr Wyllie, with Mr Wyllie defending himself and he wandered off and came by his injuries elsewhere.[31] As to the criticism that the Judge did not direct the jury that they shoulddisregard the prosecutor's statement in opening that Mr Wyllie had assaulted the complainant by kicking him, we note that the Judge gave the traditional instruction that counsel submissions are not evidence, and that they were to reach their verdicts solely on the evidence put before them in the court. We see no reason to doubt that they would have followed that instruction and, in considering the earlier incident, formed their views on the basis of the evidence given by the appellant.Result[32] The application for an extension of time to appeal is granted but the appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent