IN THE SUPREME COURT OF NEW ZEALAND
SC 36/2007
[2007] NZSC 66
PALMIRO MCDONALD
v
THE QUEEN
Court: Elias CJ, Blanchard and Tipping JJ
Counsel: C W J Stevenson for Applicant
F E Guy Kidd for Respondent
Judgment: 21 August 2007
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
[1] The applicant applies for leave to appeal to this court, his appeal against
conviction for wounding with intent to injure having been dismissed by the Court of
Appeal on 20 April 2007.1 The applicant was tried on two charges before Judge
Dawson and a jury at Palmerston North. He was found not guilty of assault with a
weapon but found guilty of assault with intent to injure. Both charges related to
incidents involving the same complainant, with whom the applicant was in a
relationship.
1 [2007] NZCA 142, O’Regan, Arnold and Ellen France JJ.
[2] Two grounds are advanced in support of the application for leave to appeal
further the conviction on the charge of wounding with intent to injure. First, it is
said that the trial Judge was wrong to decline an application by the defence under
s 339(1) of the Crimes Act 1961 to leave to the jury a charge of assault in addition to
the charge of wounding with intent to injure, on the basis that such charge is
included in the more serious charge. The second ground advanced is that the
complainant and her father in their evidence referred to the applicant’s earlier
conduct towards the complainant, which entailed assaults but which had not resulted
in convictions. A further point concerns hearsay evidence given by the father. It is
said that a mistrial should have been granted on the application of the defence.
Notwithstanding the firm direction given by the Judge that they must ignore such
references, the applicant contends that the prejudice in the inadmissible evidence
occasioned a miscarriage of justice.
[3] Both the points sought to be raised on further appeal were fully addressed in
the judgment of the Court of Appeal, delivered by O’Regan J. The Court applied the
principles summarised in R v Mokaraka.2 It is not suggested on the present
application that the principles there discussed about the application of s 339(1) are
wrong. It is a matter for the trial Judge whether an included charge should be left to
the jury. The mere fact that an included charge is available does not make that
course appropriate.
[4] The Crown case was that the applicant had kicked the complainant in the face
while in a bedroom in her family home. The applicant, who did not give evidence at
trial, had acknowledged in his statement, which was produced in evidence, that while
in the lounge he had punched the complainant, in retaliation for her punching or
kicking him. It was argued that the jury might have accepted the applicant’s version
of a punch and that the distinct charge of assault or male assaults female might well
have been thought by the jury to be more appropriate than the charge of wounding
with intent to injure. The suggestion by the applicant referred to an assault in the
lounge. The Crown case was that the applicant had kicked the complainant when in
2 [2002] 1 NZLR 793 (CA).
a bedroom. The jury were instructed in terms of the bedroom assault and could not
have been in any doubt that it was the incident relied upon by the Crown. Even if
the blow which caused the injury suffered by the complainant was as a result of a
punch in the bedroom rather than a kick, counsel for the respondent rightly points
out that the element of wounding with intent to injure would still have been present.
There was evidence of all such elements. The jury can have been in no doubt that it
had to find all elements proved.
[5] In those circumstances, there was no basis upon which the Judge would have
been obliged to leave the included offence to the jury. There was, as the Court of
Appeal noted, no live issue as to whether no more than the elements of the lesser
charge were proved. There is no basis upon which it could be said that the Judge
exercised the power he had under s 339(1) incorrectly. No matter of general or
public importance is raised by the application. There is no basis upon which it could
be concluded that a substantial miscarriage of justice may have occurred.
[6] The Court of Appeal also dismissed the appeal on the second ground
advanced, that references by the complainant and her father to previous assaults and
hearsay evidence given by the father as to what others present had said occurred
caused a miscarriage of justice. The hearsay evidence that younger children present
had said “Palmiro beat her up” was held by the Court of Appeal to add no additional
prejudice. The Judge directed the jury to ignore it and in any event it added little to
the case against the applicant. Indeed, as counsel for the respondent on the present
application points out, the substance of the hearsay went no further than the
admissions made by the applicant.
[7] The references to previous assaults emerged for the most part indirectly as the
complainant explained her normal practice of taking up defensive positions when the
applicant had previously “threatened”, “hit” and “manhandled” her. The
complainant’s father’s evidence was that he had commented “not again” when the
applicant acknowledged pushing the complainant.
[8] With respect to the references to previous assaults, the Court of Appeal relied
upon the decision of this Court in R v Thompson3 where it was emphasised that
whether a jury should be discharged after illegitimate prejudicial material has been
heard by the jury depends on all the circumstances of the case. An appellate court
will not lightly interfere with the exercise of that discretion. The Court of Appeal
was satisfied that any potential prejudice was overcome by the firm direction given
by the Judge in his summing-up. It was relevant that no details of the past abuse
were given and the remarks were general. They were also consistent with the
applicant’s statement to the police where similar indirect references to previous
violence were made. The Court of Appeal was satisfied, in the light of these factors
and the Judge’s “emphatic” direction, that no miscarriage of justice occurred.
[9] No point of general or public importance arises in this application of settled
principle to the circumstances of the case. In context, the remarks are unlikely to
have been significantly prejudicial and the strong direction given by the Judge leads
us to agree with the Court of Appeal that there was no risk of miscarriage of justice.
[10] Neither ground advanced having met the criteria for leave to appeal under s 13
of the Supreme Court Act 2003, the application is declined.
Solicitors:
CWJ Stevenson, Lower Hutt
Crown Law Office, Wellington