BRUNSELL v R [2018] NZCA 156

BRUNSELL v R [2018] NZCA 156 [18 May 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA584/2017[2018] NZCA 156BETWEEN TIMOTHY BRUNSELLAppellantAND THE QUEENRespondentHearing: 18 April 2018Court: Kós P, French and Miller JJCounsel: AJD Bamford and T C Lyall for AppellantK S Grau for RespondentJudgment: 18 May 2018 at 11.30 amJUDGMENT 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 Miller J)[1] Mr Brunsell appeals his conviction for the manslaughter of Bruce Mortimer atNelson on 4 July 2015.1 He was found guilty as a party. The principal,Ronayne Dempsey, was convicted of murder.1 R v Dempsey [2016] NZHC 3056.[2] Mr Brunsell contends that the trial judge, Clifford J, mishandled the evidenceof a Crown witness, Eric Grainger, who was asked leading questions by the Crownand ought to have been the subject of a reliability warning. He also complains that theJudge failed to direct the jury on defence of another and withdrawal.[3] The appeal was filed well out of time, but the delay has been explained and weconsider it is in the interests of justice to deal with the appeal on the merits. We grantthe necessary extension.The facts[4] Messrs Mortimer, Dempsey and Brunsell lived at a Franklyn Village, aresidential complex in a former nurses' home at Nelson Hospital. Mr Brunsell, aged17, and Mr Dempsey aged 27, were friends, with Mr Dempsey being the dominantperson in the relationship. The evidence indicates that he was inclined to bullyMr Brunsell.[5] On the evening of 2 July, Mr Brunsell and Mr Dempsey were socialising withfriends in a room on Level 2 of the complex. Mr Dempsey began talking aboutassaulting Mr Mortimer to steal $200 which he believed Mr Mortimer had in hispossession. Mr Brunsell later denied hearing this talk. Mr Dempsey also spokesharply to Mr Brunsell for losing a set of keys.[6] Mr Brunsell claimed that he declined to accompany Mr Dempsey toMr Mortimer's room, and it is common ground that he did return to his own room onanother floor. However, he made his way back to Level 2. The Crown case was thathe went there to help Mr Dempsey rob Mr Mortimer. Mr Brunsell's account ininterview was that he went there to return a phone to Mr Dempsey and followed himdown the corridor to Mr Mortimer's room, where Mr Dempsey knocked and a fightbegan when Mr Mortimer opened the door.[7] Mr Brunsell denied getting involved in the fight in the room, but Mr Mortimerlater gave a statement saying that the taller of the two men who assaulted him(Mr Brunsell) "kept punching [him]" there.[8] The fight moved to the corridor outside Mr Mortimer's room, where a seriesof witnesses, mostly neighbouring occupants drawn to the scene by the commotion,observed parts of what happened next. Mr Brunsell was interviewed twice bythe police. He admitted that he broke a headlock that Mr Mortimer had onMr Dempsey, whose face was turning blue, but maintained that he was trying to breakthe fight up. He also admitted that Mr Dempsey had landed several punches on MrMortimer while Mr Brunsell had him restrained, but emphasised that he left the sceneafter noticing that Mr Mortimer was bleeding, and that he felt Mr Dempsey had takenthings too far at that point.[9] It is common ground that Mr Brunsell left and Mr Dempsey continued to attackMr Mortimer. He stopped only when another man intervened, standing over MrMortimer to protect him.[10] Mr Mortimer declined to go to hospital. He was admitted the next daysuffering the effects of head injuries from which he later died.The trial[11] Messrs Dempsey and Brunsell were both charged with murder. The Crowncase, as ultimately put to the jury, was that Mr Brunsell was a party to that crimebecause he intentionally encouraged or assisted Mr Dempsey to inflict the fatalinjuries, knowing that Mr Dempsey intended to cause the type of bodily injury thatcould well kill Mr Mortimer, or alternatively knowing Mr Dempsey intended to causeMr Mortimer grievous bodily harm for the purpose of robbery. The Crown contendedthat both men had attacked Mr Mortimer on the floor in the corridor outside his room.[12] The Crown called a number of eyewitnesses who described Mr Dempseyattacking Mr Mortimer, claiming that he was owed money. Some witnesses recalledvariously that Mr Brunsell was standing there, not participating, or trying to break itup. Others described the assault continuing after Mr Brunsell left the scene.Mr Brunsell did not give evidence but his police statements were before the jury.[13] Mr Grainger was one of the witnesses who observed the assault, from adistance of some 45 metres and through two security doors, one of which had arelatively small window in it. He had also consumed alcohol and drugs. He deposedthat he had seen Mr Dempsey kick Mr Mortimer twice in the face, causing his head tostrike the wall and bounce off it, and Mr Brunsell kick his upper torso or head areaonce. Mr Grainger also said that both men were punching Mr Mortimer. Mr Brunsellthen left, and Mr Dempsey continued the assault.[14] Mr Grainger was induced by counsel for Mr Dempsey to accept that he mayhave been wrong about Mr Mortimer's head bouncing off the wall, but he made thatconcession after counsel explained that a pathologist would give evidence thatMr Mortimer did not suffer an injury to the back of his head. Counsel was mistaken.The pathologist's evidence was that Mr Dempsey suffered a fracture at the back of hisskull, causing bruising and bleeding which killed him. As we go on to explain shortly,this error was rectified in re-examination.[15] In the meantime, however, Mr Grainger was cross-examined by Mr Bamford(counsel for Mr Brunsell) and he resiled from his evidence about Mr Brunsell'sinvolvement. In particular, he admitted that he may have been completely wrong whenhe said that he saw Mr Brunsell standing over Mr Mortimer.[16] In re-examination, Crown counsel corrected the misunderstanding about thepathologist's evidence, having first sought the Judge's permission to do so inchambers, and then led the following evidence about Mr Brunsell's involvement:Q. Now bearing that in mind, what was your memory of what happenedto the head of that person when you saw Mr Dempsey kicked them?A. Bouncing off the wall, is what I think I seen.Q. And how many times?A. Ah, twice.Q. And it was put to you, who else did you see kick that man?A. [Mr Brunsell].Q. It was put to you — and where did you see that kick connect?A. I thought it was the upper body, head area.Q. All right. And what else did you see happen to that man? What otherphysical contact?A. Ah, him being punched.Q. Who punched him?A. Ah, [Mr Brunsell] and [Mr Dempsey].[17] Another witness, Mr Tipa, also gave evidence that he had seen Mr Brunsellkick Mr Mortimer, but he had been grossly intoxicated and he had also made astatement in which he identified Mr Dempsey as the only assailant.[18] In closing, Crown counsel pointed to evidence suggesting that Mr Brunsell hadbeen party to a plan to rob and had gone through with it, actively participating in theattack, despite initially, and to his credit, trying to dissuade Mr Dempsey.Mr Mortimer had said that the larger of the two men — Mr Brunsell — had punchedhim. Mr Brunsell's claim that he followed Mr Dempsey because he had nothing elseto do was implausible, and he had admitted being involved by "ripping arms apart".In the corridor Mr Brunsell was initially a bystander but Mr Grainger had said that hethen kicked and punched Mr Mortimer. Mr Dempsey was seen to kick Mr Mortimer'shead during this assault, and again after Mr Brunsell walked away. Mr Grainger'sconcessions in cross-examination were attributed to the misunderstanding about thepathologist's evidence, and Crown counsel said that Mr Grainger "came back stronglyin re-examination", repeating that he had seen Mr Brunsell kick Mr Mortimer. As MrBrunsell left he pulled his hoodie over his head to attempt to disguise himself to CCTVcameras in the corridors. The cameras did not show everything that had happened butthey did point, counsel suggested, to co-ordinated action by Mr Dempsey and MrBrunsell.[19] The defence closing focused on Mr Brunsell's degree of involvement and stateof mind. Counsel drew attention to Mr Brunsell's immaturity and lack of socialawareness, for which there was evidence, and also emphasised evidence that he hadbeen intimidated by Mr Dempsey that evening and wanted to go to bed but came backto the second floor to return Mr Dempsey's phone. At that time Mr Dempsey wasalready trying to get into Mr Mortimer's room. Mr Brunsell "didn't have thewherewithal to say no" when Mr Dempsey led him to the door. There was no reliableevidence of punching in the room; Mr Mortimer may have been confused, and MrBrunsell's hands were unmarked. Mr Brunsell had pulled Mr Mortimer's arm backbut that was because he was concerned that Mr Dempsey was turning blue.Eyewitnesses described him as a shocked bystander in the corridor. His involvementamounted to trying to break it up.[20] Mr Bamford spent some time on Mr Grainger's evidence, pointing to hislimited visibility through security doors and distance from the scene, his admissionsin cross-examination, and a police interview in which he spoke of only one personstanding over Mr Mortimer.[21] The defence did not raise self-defence or defence of another, or withdrawal asa party.[22] In summing-up, the Judge accurately identified the factual premises of thedefence for the jury: Mr Brunsell did not know what Mr Dempsey intended and didnot mean to inflict any harm but intervened only to prevent the two men inflictingserious harm on one another. There is no criticism of the Judge's directions about theoffence or party liability. He instructed the jury that if they were not sure thatMr Brunsell intentionally assisted or encouraged Mr Dempsey to inflictMr Mortimer's injuries they must find him not guilty of both murder andmanslaughter:[50] First: If your answer to Question 1 is no, that is you are not sure thatMr Brunsell intentionally (i.e. meaning to do so) assisted or encouragedMr Dempsey to inflict the injuries, you must find Mr Brunsell not guilty ofboth murder and manslaughter. Mr Brunsell was involved. He accepts that.But he says he tried to stop both of Mr Dempsey and Mr Mortimer fromseriously hurting each other. If that is what he was doing, he would not beintentionally assisting Mr Dempsey to injure Mr Mortimer.[23] The Judge outlined the pathways by which Mr Brunsell might be found guiltyof manslaughter if Mr Dempsey was guilty of murder:[52] Now if you have found Mr Dempsey guilty of murder, then you go onand consider question 2 in the question trail. And that again focuses on whatMr Brunsell knew when he intentionally assisted and encouraged, if that iswhat you find he has done. Charge 1: are you sure that Mr Brunsell knewthat Mr Dempsey intended to cause Mr Mortimer bodily injury and that MrDempsey knew (i.e. actually appreciated) that bodily injury was likely tocause Mr Mortimer's death. So Mr Brunsell knew what Mr Dempsey intendedto do and knew that Mr Dempsey knew bodily injury was likely to result incausing Mr Mortimer's death.[53] Alternatively, are you sure that Mr Brunsell knew that Mr Dempseyintended to cause Mr Mortimer really serious bodily injury for the purpose offacilitating the theft by Mr Dempsey of Mr Mortimer's property, that is for thepurpose of robbery.[24] The Judge gave a reliability warning for Mr Tipa, noting that he was extremelyintoxicated, and told the jury that they might think other witnesses were also affectedby alcohol and cannabis. He was not asked to give a reliability warning for MrGrainger, but he did remind the jury of what Mr Bamford had said about that.[25] During deliberations the jury asked to view CCTV footage of Mr Graingerpeering through the security doors.2 In due course they found Mr Dempsey guilty ofmurder and Mr Brunsell not guilty of murder but guilty of manslaughter.[26] At sentencing Clifford J recorded that the jury must have been unpersuadedthat Mr Brunsell knew what sort of violence Mr Dempsey intended to inflict onMr Mortimer. Consistent with the verdicts, the Judge found that Mr Brunsell assistedMr Dempsey in an assault, without himself intending serious harm to Mr Mortimer orknowing what Mr Dempsey intended.3[27] We turn to the grounds of appeal, taking them in the order that Mr Bamfordadvanced them.The evidence of Mr Grainger[28] Mr Bamford submitted that Mr Grainger ought to have been the subject of areliability warning, and further that Mr Brunsell was prejudiced by the use of leading2 We do not have a record of the jury asking for this footage, but both counsel accepted that this hadhappened in submissions.3 R v Dempsey, above n 1, at [63].questions in re-examination of Mr Grainger. He contended that the jury must haverelied on Mr Grainger's evidence for the conclusion that Mr Brunsell intentionally lentassistance. The jury ought to have discounted Mr Mortimer's statement, and otherwitnesses to what happened in the corridor described Mr Brunsell as a bystander.Indeed, the Judge made it clear when sentencing that he regarded Mr Grainger as anunreliable witness, saying that:[64] I record that I have considerable reservations about the reliability ofMr Grainger's evidence as regards your involvement: in particularMr Grainger's evidence that he had seen you kicking Mr Mortimer to theupper body. I record that Mr Grainger was observing events from some 45metres away through not one, but two, security doors, the second of which(closest to the far end of the corridor) had a relatively small window in it.Moreover, Mr Grainger, in his police interview at the time, said he had onlyseen one person standing over Mr Mortimer, and that was Mr Dempsey.[29] In support of this argument, Mr Bamford contended that the CCTV footagewas unclear about what happened, and when. The jury's request to view it duringdeliberations indicated that they were focused on Mr Grainger's evidence. They oughtto have been warned about his reliability and reminded of the concessions he made incross-examination. Counsel cited R v E for the proposition that the leading questionsasked in re-examination might in themselves justify allowing the appeal.4[30] A warning under s 122 of the Evidence Act 2006 is discretionary, thoughthe judge must consider whether to give one if the defence requests.5 This Court hassaid that trial judges ought to isolate potentially unreliable evidence and warn the juryabout it if they think the jury might otherwise attach too much weight to it.6 In thiscase, it is evident that Clifford J did not think that a specific warning was necessary.Nor did experienced counsel ask for one. Reliability was squarely before the jury. Atsentencing the Judge said that his reservations about Mr Grainger were based on theadmissions made under Mr Bamford's cross-examination. The jury had heard thoseadmissions and the record indicates that they had also taken a view, observing forthemselves the limited field of view available to Mr Grainger. For these reasons, weare not persuaded that absent a warning the jury was at risk of attaching too muchweight to Mr Grainger's evidence.4 R v E (CA308/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [67]–[68].5 Evidence Act 2006, s 122(3).6 Taylor v R [2010] NZCA 69 at [63].[31] Nor are we persuaded that the leading questions asked by Crown counselcaused a miscarriage. The questions ought not to have been asked without the Judge'spermission,7 and having asked them, counsel ought to have been much morecircumspect than he was about relying on the answers in his closing address. But thepoint of the prohibition is that leading questions may give the jury a false impressionof the witness's knowledge, accuracy and veracity. That is unlikely here, given theview Mr Grainger had and the far-reaching concessions he made in cross-examination.Nor did he say these things for the first time in re-examination. He was simplyrepeating what he had said in chief. We think it likely that once given a correct accountof the pathologist's evidence he would have given the same evidence if asked in a non-leading way.[32] Ultimately, we are not persuaded that the jury must have relied too much onMr Grainger's evidence. Their verdict may have been based on Mr Mortimer'sstatement and Mr Brunsell's admission about breaking Mr Mortimer's hold and soallowing Mr Dempsey to gain the upper hand. This, coupled with the circumstantialevidence, permitted an inference that Mr Brunsell intentionally assisted Mr Dempseyin an assault.Defence of another[33] As noted, counsel did not invoke defence of another at trial. On appeal, hecontended that there was a foundation for it and the Judge accordingly ought to haveleft it to the jury.[34] We can deal with this point shortly, because we are satisfied that no miscarriagecan have resulted from the way in which the Judge handled Mr Brunsell's claim thathe was trying to break up the fight. The Judge directed the jury, as noted at [22] above,that if Mr Brunsell was not deliberately helping Mr Dempsey to inflict injuries, butrather was trying to stop the men from seriously hurting one another, then he was notguilty of both murder and manslaughter. The Crown bore the onus of proving that heintended to do more than that.7 Evidence Act, s 89(1)(c).[35] That being so, a direction on defence of another would add nothing of benefitto Mr Brunsell. Rather, it would complicate the jury's task. It would require thatthe jury exclude the reasonable possibility that Mr Brunsell was acting in defence ofanother in the circumstances as he understood them to be. If he was acting in defence,the jury would then need to go on to consider whether the force was reasonable. Bydirecting as he did, the Judge effectively instructed the jury to acquit if they answeredthe first of these questions in Mr Brunsell's favour.Withdrawal[36] Mr Bamford argued that the Judge ought also to have directed the jury onwithdrawal. We do not accept that such a direction was required, for several reasons.First, it would have been contrary to the defence case, because it supposes thatMr Brunsell was party to the offending in the first place. As noted, counsel did notask for a withdrawal direction. Second, the manslaughter verdict did not depend onMr Brunsell assisting when the final blow was struck — the offence was committedwhen he assisted in a continuous attack that led to Mr Mortimer's death — and it wasnot suggested that Mr Brunsell was responsible for what happened after he left thescene. The Crown's case focused rather on what happened when he was present.Third, what happened while Mr Brunsell was present could not amount to withdrawal.More would be required to undo the effect of participation.8 By way of explanation,Mr Brunsell admitted that the effect of breaking Mr Mortimer's hold was to allow MrDempsey to gain the upper hand, but he did not claim to have done anything furtherto stop the attack; rather, on his own account, he simply left. Other witnesses recallhim saying "stop", but that would not suffice either in circumstances where MrDempsey had gained the upper hand and plainly had no intention of stopping.Result[37] The application for an extension of time to appeal is granted.8 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [134]: the defendant must both clearlydemonstrate, by words or conduct, that they are withdrawing from the offending; and they musttake reasonable and sufficient steps to undo the effects of their previous participation in theoffending.[38] The appeal is dismissed.Solicitors:Bamford Law, Nelson for AppellantCrown Law Office, Wellington for Respondent