FALWASSER & ANOR v R [2018] NZCA 79

FALWASSER & ANOR v R [2018] NZCA 79 [10 April 2018]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA188/2017[2018] NZCA 79BETWEEN RHYS FALWASSERAppellantAND THE QUEENRespondentCA192/2017BETWEEN ANTHONY KEITH STOWELLAppellantAND THE QUEENRespondentHearing: 28 February 2018Court: Gilbert, Simon France and Whata JJCounsel: R M Plunket for Appellant in CA188/2017G R Tomlinson for Appellant in CA192/2017Z R Johnston for RespondentJudgment: 10 April 2018 at 11.30 amJUDGMENT OF THE COURTA The applications for extensions of time to appeal are granted.B The applications to adduce further evidence are declined.C Mr Falwasser's appeal against conviction is allowed. His conviction is setaside and the associated "three strikes" warning is cancelled.E A retrial on the charges against Mr Falwasser is ordered. Any question ofbail is to be dealt with in the District Court.F Mr Stowell's appeal against conviction is dismissed.G Order prohibiting publication of the judgment any part of the proceedings(including the result) in the news media or on the internet until finaldisposition of retrial. Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Following a trial by jury in the District Court at Tauranga, Mr Stowell andMr Falwasser were each found guilty of wounding the complainant with intent tocause him grievous bodily harm. Mr Stowell was the principal offender andMr Falwasser was found guilty as a party. They were both convicted and sentencedby Judge Mabey QC to seven years and three months' imprisonment.1[2] The appellants appeal against their convictions contending that the Judgemisdirected the jury on the reliability of the evidence given by an eye witness calledby the Crown, Isaac Broughton, who admitted in cross-examination that he was amethamphetamine addict and had consumed methamphetamine shortly prior towitnessing the assault. The appellants contend that the Judge erred by directing thejury in his summing up that they should "not be sidelined by the spectre of drugs whenit comes to criticising Mr Broughton" because there was no evidence thatmethamphetamine usage affects "a person's ability to see things or to rememberthings"[3] The appellants apply to introduce evidence from Susan Schenk, a professor ofpsychology at Victoria University of Wellington, as to the detrimental effects onmemory of long-term heavy use of methamphetamine. While Professor Schenk cangive evidence of a general nature about the cognitive deficits likely to be experienced1 R v Stowell [2017] NZDC 8309.by long-term heavy users of methamphetamine, she acknowledges that withoutneuropsychological testing, it is not possible to assess the extent to whichMr Broughton suffered from any such deficits.[4] The Crown opposes the application arguing that the proposed evidence is notsubstantially helpful and is therefore not admissible. Alternatively, the Crown arguesthat the evidence is neither fresh nor cogent and should not be admitted.[5] The notices of appeal were filed late but the delay has been explained and thereis no opposition to the applications to extend time for filing the appeals. We aresatisfied that it is appropriate to grant extensions of time accordingly.[6] The issues are:(a) Is the proposed evidence of Professor Schenk substantially helpful andtherefore admissible?(b) If so, is there a risk of a miscarriage of justice if the evidence is notadmitted?(c) Did the Judge misdirect the jury?(d) If so, has this resulted in a miscarriage of justice?[7] It is convenient to set the context before addressing these issues.We commence by summarising the Crown's case and those aspects of the evidence,defence closings and the Judge's summing up that are relevant to the appeals.Crown case[8] The Crown's case was that the appellants, who are cousins, had been drinkingwith the complainant and his brother-in-law at the latter's residential address.The appellants' discussions with the complainant were initially cordial but tensionsrose later in the evening, apparently because of their rival gang affiliations.The complainant left around midnight and started walking down the driveway.Mr Falwasser followed him and punched him in the face, knocking him to the ground.The complainant momentarily lost consciousness. When he came to, Mr Falwasserwas standing over him. When he tried to get up Mr Falwasser punched him two orthree more times in the face, rendering him unconscious a second time. Whilethe complainant was lying unconscious on the ground, Mr Falwasser kicked him andMr Stowell hit him on the head a number of times with a spade.[9] The complainant sustained various injuries during the attack which werecovered by formal admissions of fact pursuant to s 9 of the Evidence Act 2006.These were a laceration to the top of the complainant's scalp, a laceration to the backleft of his head, tenderness and swelling to his nose and sinuses, fractures to both theleft and right maxillary sinus bones and a fracture to his right eye socket.The complainant was taken to hospital where he was treated over the following threedays. He continues to suffer ongoing problems with memory loss.[10] The Crown's case was that Mr Stowell wounded the complainant withthe spade intending to cause him grievous bodily harm. The Crown claims thatMr Falwasser was a party to Mr Stowell's offending because he knowingly assisted orencouraged him in three ways. First, the Crown claimed that by assaulting thecomplainant at the same time, Mr Falwasser prevented him from resisting or escaping.Second, Mr Falwasser encouraged Mr Stowell simply by his presence. Third,Mr Falwassser assisted Mr Stowell by confronting Mr Broughton when he tried tointervene.The evidence at trial[11] Both appellants agreed to be interviewed by the police and video recordings oftheir interviews were played to the jury as part of the Crown case.[12] Mr Stowell admitted on numerous occasions during his interview that whilethe complainant was lying on the ground, he kicked him repeatedly, including on hishead, and he hit him on the head with the spade. He also said that the spade handlesnapped when he did so.[13] In his interview, Mr Falwasser admitted punching the complainant but hedenied seeing Mr Stowell hit the complainant with the spade. Mr Falwasser was notasked whether he kicked the complainant and there was no mention of this.Mr Falwasser said that he stopped when he was distracted by the arrival of anothermale (Mr Broughton) and that he only found out about Mr Stowell's use of the spadewhen the police told him about it.[14] Mr Broughton's evidence at trial was that he arrived at the address at the timethe attack was taking place. He described seeing both appellants attackingthe complainant while he was lying on the ground. He said that Mr Falwasser waskicking the complainant and at the same time Mr Stowell was hitting him withthe spade. He estimated that the complainant was hit with the spade four or five times.Mr Broughton said that it was dark at the time but the neighbouring house hadChristmas lights on around the whole house.[15] Four points emerged during Mr Broughton's cross-examination. First, hereadily acknowledged that he must have been mistaken about the Christmas lights.He said that he recalled that the lights were left up for a while after Christmas but heaccepted that he was mistaken in thinking they were still up at the time the incidentoccurred on 17 February 2016. Second, Mr Broughton said that he did not seethe spade handle break. Third, he confirmed that he was not spoken to by the policeabout the incident until 5 August 2016, nearly six months after the incident. Fourth, heconfirmed that he was addicted to methamphetamine and had consumedmethamphetamine that evening. Because of its central importance to the appeal, weset out in full the relevant part of his evidence about this:Q. So he invited you round to have a couple of drinks, didn't he?A. Oh, just to catch. I didn't have any drink.Q. What about take drugs?A. Yeah.Q. And what, methamphetamine?A. Yeah.Q. You'd had some that night, hadn't you?A. Yeah.Q. And it was closer probably to around about 12.30 am?A. Ah, yeah.Q. So you would've been high?A. Ah, kinda like I'm addicted to it so I'm sort of immune to it. So ittakes a lot for me to get high so I'm just like smoking a joint.Q. Well —A. — just mellow not high, high, high off your head.Q. So not high, as in going mental?A. No.Q. Just kind of —A. Yeah.[16] Both appellants gave evidence at the trial. Mr Stowell said that he sawMr Falwasser punch the complainant. He said that he was concerned that "thingslooked like they were getting out of hand" so he picked up the spade and swung itdown at the complainant but he did not hit him and did not intend to do so.He estimated that the spade struck the ground approximately 40 centimetres awayfrom where the complainant was lying and the handle broke when the spade hit theground. Mr Stowell said that he did not kick the complainant. He said that he lied tothe police during his video interview about striking the complainant on the head withthe spade and kicking him while he was lying on the ground. He said that he liedbecause he was trying to protect Mr Falwasser.[17] Mr Falwasser admitted in his evidence at trial that he punched the complainantthree times, including while he was lying on the ground. Mr Falwasser said that hedid not see Mr Stowell at any stage during the attack and did not see him use the spade.Defence closings[18] Ms Plunket closed first for Mr Falwasser. She cautioned the jury about thereliability of Mr Broughton's evidence. She referred to Mr Broughton'sacknowledged use of methamphetamine, his error about the Christmas lights, the factthat it was dark at the time and that he was not spoken to by the police until nearly sixmonths after the event. Ms Plunket suggested that Mr Broughton's view of theincident may have been obscured by the presence of a car and a van in the drivewayand emphasised that Mr Broughton claimed to have observed four or five strikes tothe complainant's head with the spade and yet there were only two lacerations. Shealso noted that Mr Broughton did not see the handle of the spade break. Ms Plunketsubmitted that the Crown could not negate the reasonable possibility of "a swing anda miss".[19] Mr Tomlinson, for Mr Stowell, invited the jury to put Mr Broughton'sevidence to one side for similar reasons:Isaac Broughton, well he does not describe the spade man, not even asked topick him from a photo and his actions and his claim differ from the others.The spade never broke yet there it is, it's broken and he leaves with[the complainant]. So what gives? Using meth, not spoken to for six months,claims there's four to five downward strikes all hitting the head yet we haveonly two lacerations and non existing Christmas lights. Nah, nah, nah,unreliable witness, put him to one side as well.Judge's summing up[20] In his summing up to the jury, the Judge summarised the submissions made bydefence counsel about the factors potentially undermining the reliability ofMr Broughton's evidence. The Judge then gave the following direction regardingMr Broughton's use of methamphetamine:Mr Tomlinson talked to you about the use of methamphetamine affectingMr Broughton. I need to make a comment on that also. We do not know ifmethamphetamine affects a person's ability to see things or to rememberthings. We have not heard any evidence about that. So the spectre of drugshas been raised. Mr Broughton was using P, methamphetamine, andsubsequently before he gave his statement and that is true but to the extent thatit has been raised to challenge what he saw and can remember. I onlycomment that I do not know if methamphetamine affects what you see or whatyou remember. There has been no evidence of that. So do not be sidelined bythe spectre of drugs when it comes to criticising Mr Broughton. There hasbeen no evidence of the effect of that drug on a person's recall memory orability to see.Is the proposed evidence of Professor Schenk substantially helpful and thereforeadmissible?[21] Professor Schenk states that episodic memory is disrupted by repeated andchronic methamphetamine abuse, similar to the disruption caused by normal aging.She refers to a study published in 2000 as being particularly relevant because itreported the cognitive profile of a group of subjects who were currently using andaddicted to methamphetamine.2 The majority of these subjects smokedmethamphetamine daily, most using the drug between one and five times a day.2 Sara L Simon and others, "Cognitive Impairment in Individuals Currently UsingMethamphetamine" (2000) 9 AM J Addict, 222 at 222–231.The subject group had been using methamphetamine for an average of 135 monthswith heavy use for an average of 74 months. Professor Schenk states that thesemethamphetamine addicts would be expected to have comparable use patterns toMr Broughton. However, this assumption is solely based on Mr Broughton'sadmission that he is addicted to methamphetamine. The study showed that these long-term high users performed significantly worse than non-users on a range of cognitivetasks, indicating a generalised impairment. Professor Schenk concludes that theeffects of:compulsive high dose methamphetamine use and the resulting deficits in brainand behaviour suggest that the ability to accurately recall the specific eventsthat occurred 6 months prior might have been compromised or confused withother events.[22] Professor Schenk acknowledges that "[w]ithout neuropsychological testing itis not possible to know the extent to which [Mr Broughton] suffered from any of thesedeficits".[23] An expert's opinion is only admissible if the fact-finder is likely to obtainsubstantial help from the opinion in understanding other evidence in the proceedingor in ascertaining any fact that is of consequence to the determination of theproceeding.3 Questions as to the reliability of a witness's memory are ordinarilytreated as coming within the common knowledge of juries.4 Nevertheless, we acceptthat the particular effects of methamphetamine use on a witness's ability to recallepisodic events is likely to fall outside the common knowledge of juries and we do notexclude the possibility that expert opinion evidence about this could be substantiallyhelpful in some cases. However, for the reasons that follow, we are not persuaded thatthis is such a case.[24] The jury was aware of the factors that could have limited Mr Broughton'sability to identify accurately what occurred during the incident — it was dark, therewas a car and a van in the driveway and he accepted that he was affected by hisconsumption of methamphetamine which he described as being "like smoking a joint".The jury was also aware of the factors that may have limited his ability to recall3 Evidence Act 2006, s 25(1).4 M (CA68/2015) v R [2017] NZCA 333 at [27]; and Chetty v R [2017] NZCA 586 at [32].accurately the precise details of these events when he came to give evidence aboutthem nearly 12 months later — he was not spoken to by the police until six monthsafter the incident; and he had continued to consume methamphetamine in the interim.Mr Broughton's recall was tested in cross-examination, including by reference to otherevidence, and shown to be inaccurate in some respects — he claimed to have seen fouror five blows to the head with the spade and yet it was an agreed fact that there wereonly two lacerations on the complainant's head; he did not see the spade handle breakbut photographic evidence showed that it did; and he was wrong about the Christmaslights. The jury was well placed to assess the reliability of his evidence taking all ofthese factors into account.[25] In these circumstances, we do not consider that it would have beensubstantially helpful to the jury to hear evidence from Professor Schenk thatMr Broughton's "ability to accurately recall the specific events that occurred 6 monthsprior might have been compromised". The jury must have understood this.[26] The evidential foundation required for Professor Schenk's opinion to besubstantially helpful is also lacking. Mr Broughton simply acknowledged that he"had some that night" and he is "addicted to it". This evidence is plainly insufficientto enable any accurate assessment of how Mr Broughton would compare withthe study group who, on average, had been using the drug for more than 11 years, withheavy use for over six years. Importantly, Professor Schenk accepts that she wouldnot be able to assist the jury on the extent to which Mr Broughton's memory wasaffected by his methamphetamine consumption. She acknowledges that "[w]ithoutneuropsychological testing it is not possible to know the extent to which[Mr Broughton] suffered from any of these [cognitive] deficits".[27] We conclude that Professor Schenk's evidence is not admissible because it isnot substantially helpful. The application to introduce this evidence must accordinglybe declined.Did the Judge misdirect the jury?[28] We have set out the relevant passage from the Judge's summing upat [20] above. The Judge effectively instructed the jury to ignore the potential effectsof methamphetamine use on Mr Broughton's memory because there was no evidenceat the trial that use of the drug affects "a person's recall memory or ability to see".We accept the appellants' submission that this was an error. While the Judge wascorrect that there was no evidence about the general effects of methamphetamine useon memory, the question as to whether Mr Broughton's consumption ofmethamphetamine may have affected the reliability of his evidence was a matter thatought to have been left to the jury. It would have been within the common knowledgeof the jury that a person's perception can be affected if they are under the influence ofdrugs and memory can also be affected by prolonged drug abuse. Mr Broughtonhimself acknowledged that he was affected to some extent by his consumption ofmethamphetamine on the night, likening the effect to having smoked a joint. The juryshould not have been instructed to disregard this factor when assessing the reliabilityof Mr Broughton's evidence and the weight that should be given to it. Ms Johnston,for the Crown, responsibly accepted this.Did the misdirection result in a miscarriage of justice?[29] Mr Broughton was a key witness. The Crown placed particular reliance on hisevidence as establishing that Mr Falwasser was a party to Mr Stowell's offending.The witness said he saw Mr Falwasser assaulting the complainant at the same timeMr Stowell was attacking him with the spade. Both Mr Falwasser and Mr Stowelldenied this in their interviews and in their evidence at the trial. Mr Broughton'sevidence was accordingly of central importance to the case against Mr Falwasser.We are unable to conclude that Mr Falwasser's conviction as a party to Mr Stowell'soffending was inevitable. There is in our judgment a real risk that the outcome of thetrial was affected by the misdirection concerning the reliability of Mr Broughton'sevidence. Accordingly, we are satisfied that there has been a miscarriage of justiceand Mr Falwasser's appeal against conviction must be allowed.[30] Mr Stowell is in a different position. Mr Broughton's evidence was of limitedassistance on the critical questions the jury had to determine when considering thecharge against Mr Stowell — did Mr Stowell strike the complainant on his head withthe spade and, if so, did he intend to cause him grievous bodily harm? WhileMr Stowell claimed at trial that he did not intend to hit the complainant with the spadeand missed his head by approximately 40 centimetres, this evidence was irreconcilablewith the two large lacerations to the back of the complainant's head and Mr Stowell'sadmissions when interviewed by the police that he deliberately struck the complainanton the head with the spade. The jury clearly rejected the evidence Mr Stowell gave attrial, preferring the account he gave to the police on the night. We consider thatthe Judge's misdirection concerning Mr Broughton's evidence would have had nomaterial effect on the outcome of Mr Stowell's trial.Result[31] The applications for extensions of time to appeal are granted.[32] The applications to adduce further evidence are declined.[33] Mr Falwasser's appeal against conviction is allowed. His conviction is setaside and the associated "three strikes" warning is cancelled.[34] A retrial on the charges against Mr Falwasser is ordered. Any question of bailis to be dealt with in the District Court.[35] Mr Stowell's appeal against conviction is dismissed.[36] Order prohibiting publication of the judgment any part of the proceedings(including the result) in the news media or on the internet until final disposition ofretrial. Publication in law report or law digest permitted.Solicitors:Crown Law Office, Wellington for RespondentGowing & Co Lawyers Ltd, Whakatane for Appellant in CA192/2017