Mcglaughlin v R

• Jurisdiction: New Zealand
• Judge: White,Simon France,Asher JJ
• Judgment Date: 13 November 2014
• Neutral Citation: [2014] NZCA 547
• Docket Number: CA150/2014
• Court: Court of Appeal
• Date: 13 November 2014

Between

Phillip Rauru Mcglaughlin

Applicant

and

The Queen

Respondent

[2014] NZCA 547

Court:

White, Simon France and Asher JJ

CA150/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction and sentence on jury trial in the District Court on one count of injuring with intent to injure and one count of injuring with intent to cause grievous bodily harm — the counts arose from two separate incidents involving assaults on women — appellant said that prosecutor in her opening address had made statements indicating witness intimidation by the appellant and had referred to evidence that was not led at trial — judge had allowed a police officer's job sheet to be admitted under s35(3) Evidence Act 2006 as a prior consistent statement of the witness who at trial denied all knowledge of the events — whether there had been prosecutorial errors — whether the Judge had erred in not advising counsel of a jury question — whether the police job sheet should not have been admitted as evidence of a prior consistent statement — whether there had been a miscarriage of justice — whether the vulnerability of the first victim should not have been considered in sentencing.

Counsel:

N M Dutch for Appellant

J E Mildenhall for Respondent

• A The appeal against conviction is dismissed.

• B The appeal against sentence is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Asher J)

Introduction

1 The appellant, Phillip Rauru McGlaughlin, was found guilty after a second jury trial at the Tauranga District Court on one count of injuring with intent to injure and one count of injuring with intent to cause grievous bodily harm. 1 These counts arose from two separate incidents. He was sentenced to a total sentence of three

years and nine months' imprisonment, being composed of cumulative sentences of one year's imprisonment on the first count and two years and nine months' imprisonment on the second. 2

2 In relation to the first incident, which arose at a bar on the evening of 26 June 2012, it was the Crown's case that the complainant, Ms A, was drunk and grieving the death of her grandchild. She took offence at some of Mr McGlaughlin's words and actions and punched him. In response Mr McGlaughlin punched Ms A in the body and head causing her to fall to the ground. While she was on the ground, he repeatedly kicked her. Bar patrons pulled him away but he managed to break free from them as the victim continued to act aggressively. He approached her again and punched her with closed fists until he was again restrained. Mr McGlaughlin admitted that he was involved in an incident with the complainant but stated that he never had any intention to injure her, and disputed the extent of her injuries, and the extent of the assault.

3 In relation to the second incident, the second victim, Ms B, had been staying at Mr McGlaughlin's house. The Crown alleged that on 11 July 2012 she was asleep in bed with Mr McGlaughlin's son, X, when Mr McGlaughlin came into the bedroom unannounced, pulled her out of bed by her hair and took her out into the hallway where he repeatedly punched and kicked her head and upper body. In the course of the assault the victim lost control of her bladder. The photographs of the second victim's face show numerous lumped bruises on the forehead above the eyes, consistent with a savage beating focussed on the head. The catalyst for the attack, it was suggested, was Mr McGlaughlin's anger at the second victim and his son some days earlier having had sex in the shower in his house. Mr McGlaughlin denied being involved in any assault, and pointed out that his actions of staying in the house and going to bed were inconsistent with any involvement.

4 Mr Dutch who appeared for Mr McGlaughlin raised a number of points in support of the appeal against conviction. He alleged that there had been misconduct in relation to several actions by the prosecutor, Ms O'Brien. In her opening to the jury she had referred to various matters, including witness intimidation but failed to

lead evidence in support of those matters. She had referred to a witness, Mark Aiono, who had made a 111 call to the police during the bar incident, but the Crown had not located him and he did not give evidence. She had then obtained an explanation from a police witness as to why Mr Aiono had not been called, despite this being irrelevant. It was also submitted that she used unnecessarily exaggerated and emotive language in both her opening and closing addresses

5 Mr Dutch submitted that the Crown should have called Ms P who was Mr McGlaughlin's partner at the time and was in the house on the night of the second incident. He objected that the photograph booklet produced by the police included photographs of boots, but that there had been no evidence led in respect of those boots.

6 Mr Dutch's criticisms were not directed solely at the prosecutor. He submitted that the Judge should not have:

• (a) answered a jury question seeking to know why Ms P did not give evidence by telling them they were not allowed to know, without first speaking to counsel (and the guilty verdicts delivered a short time later indicated that the jury inferred this was because of intimidation); and

• (b) allowed the police officer who spoke to X to give evidence of their conversation at the time, and that the officer's job sheet of their conversation should not have been put to X.

7 Other points relating to the use of screens and proof of injury to Ms A that had been set out in the written submissions were not pursued in oral submissions.

8 Mr Dutch submitted that, when taken together, the prosecutorial misconduct, the failure of the Judge to refer the jury question to counsel and the admission of the job sheet into evidence resulted in a miscarriage of justice.

9 In relation to the sentence appeal, Mr Dutch submitted that the sentence was manifestly excessive and wrong in principle. He submitted that the Judge was wrong to take the first complainant's vulnerability into account and that the starting point adopted by the Judge for the injuring with intent to injure count was too high. Further, he submitted that there was no basis for the 12 month cumulative sentence to the second count.

10 We first deal with the appeal against conviction and assess each of the discrete grounds advanced by Mr Dutch and then turn to consider the appeal against sentence.

Prosecutorial error

11 Prosecutors have a duty to act fairly with professional detachment, and avoid unduly emotive language. They must not inflame bias and prejudice against an accused person. 3 As this Court in R v Roulston put it, prosecutors: 4

… must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack on the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person.

12 While prosecutors must act with professional detachment, prosecutors are “entitled, indeed expected, to be firm, even forceful” in prosecuting the case. 5 However, this forcefulness must not cross the line into an emotive appeal or involve making unsubstantiated claims. 6

13 In order to determine whether the prosecutor fulfilled her prosecutorial duties or went too far, it is necessary to go through a number of the prosecutor's statements in opening and closing, which have been the subject of criticism by Mr Dutch.

Statement in opening about reliance on fear

14 The prosecutor in the first paragraph of her opening, having set out that there had been two attacks against two women who were vulnerable, stated:

Both women knew him and, although there were other people around each time the women [were attacked] in each case, the Crown alleges that Mr McGlaughlin relied on these attacks [sic] not coming to Court because of the fear that each of the women had for him and other people around.

15 This statement contained the allegation that Mr McGlaughlin relied on the fear the victims had of him to ensure that he could attack them without complaints being made. This statement, which, even if correct, was not particularly relevant to the key matters at issue and was prejudicial, was not supported by the evidence. While it was clear or could be inferred that the second victim feared Mr McGlaughlin, it was not clear that the first victim (who had initiated the physical confrontation) had such a fear. Indeed she continued her association with Mr McGlaughlin immediately following the attack and was and still is supportive of him. More importantly there was no evidence that Mr McGlaughlin carried out the attacks relying on this fear. Such a proposition was not put to any witness.

16 After setting out the Crown case in opening, a prosecutor may in due course find that witnesses do not come up to brief and matters which it can be expected will be proved are not proved. This is a trial reality and is not prosecutorial error. However, a prosecutor should never make a statement to the jury that he or she does not believe on good grounds will be proven during the trial. 7 This is particularly so when it comes to highly prejudicial remarks about a defendant.

17 The opening reads as if the prosecutor at the very outset of her opening was seeking to generally blacken Mr McGlaughlin in the eyes of the jury. This is not permissible, and was an abuse of the privilege the prosecutor had to address the jury.

Second victim “frantically” looking

18 The prosecutor in her opening said of the second victim that before the

assault she was “… looking frantically for somewhere else to stay…. [H]aving witnessed this assault in the bar, she felt her time at Mr McGlaughlin's was limited”

19 It is true that the second victim, having witnessed the first assault, had...