IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA141/2019
 [2019] NZCA 363

	
BETWEEN	
SHANE ARRON HUNTER
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
13 June 2019	

Court:	
Brown, Whata and Moore JJ	

Counsel:	
J W Mackey for Appellant
A J Ewing for Respondent	

Judgment:	
15 August 2019 at 11.30 am	

JUDGMENT OF THE COURT
A	The appeal against conviction is dismissed.
B		The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)
[1]	Mr Hunter was found guilty on two charges of assault with intent to injure and two charges of male assaults female.  He appeals against conviction.  His two primary grounds of appeal are:
(a)	The charges were overinflated; and
(b)	The jury’s verdict was unreasonable and the jury was biased against him.
[2]	Mr Hunter also appeals against his sentence of four months’ home detention. 
The alleged facts
[3]	Mr Hunter’s daughter, Chanelle Smith, returned home having spent the night out.  She was called into Mr Hunter’s bedroom and they argued.  He is said to have punched her in the face multiple times in the bedroom.  He is then said to have punched her multiple times on her leg and told her to go upstairs to her bedroom.  This was then followed by Mr Hunter grabbing her arm and punching her while she was in the stairwell.  He is then said to have strangled her.  The Police were called.  They found Chanelle on the roof. 
The charges
[4]	Mr Hunter was charged with three charges of assault with intent to injure and two charges of male assaults female.  Charge 1 concerns the first punch in the bedroom.  Charge 2 is a representative charge relating to the multiple punches in the bedroom.  The alleged punches to the complainant’s leg comprise Charge 3.  Charge 4, another representative charge, relates to the punching in the stairwell.  Charge 5 relates to the alleged strangling. 
The trial
[5]	The Crown opened its case to the jury claiming that Mr Hunter carried out a prolonged violent attack against the complainant.  This narrative was broadly supported by Chanelle’s DVD interview statement, but she did not come up to brief at trial.  As the Crown put it to the jury in closing — “You might not think she remembers much at all.”  She did however recall a punch to the head and punches to her leg.  The Crown also referred to evidence of bruising to her leg, a sore right face, and a cut lip.  It also referred to the complainant’s statement to the police in which she referred to multiple punches and to propensity evidence of similar violent behaviour by Mr Hunter toward women.  The Crown said Mr Hunter was not to be believed, that he was a reluctant witness who had committed this type of violence previously.  It also said that Ms Hunter, Mr Hunter’s sister, deliberately tried to obstruct her niece from giving evidence and was trying to help her brother, and that she was never in the bedroom.
[6]	The defence case was simple.  Mr Hunter said it never happened.  He said the complainant was out of control and he left the house to cool off.  His sister supported his account and said she did not see any punching.  She was cross examined at length about an alleged obstruction of justice: that she attempted to stop the complainant giving evidence.  It transpired however that the complainant when recalled had no recollection of any such obstruction. 
[7]	In closing Mr Mackey emphasised that there was no medical evidence of injury and that the photo evidence was inconclusive.  He noted that the complainant’s evidence was nothing like her statement.  He compared this to the evidence of Mr Hunter and his sister that there was no punching.  He also noted that the claim of multiple punches to the face and strangling was not supported by evidence of injury; that there was only some evidence of a cut lip and the complainant could not recall how she got it. 
[8]	The Judge provided an orthodox summing up to the jury.  He explained the meaning of assault, including the “intentional application of force” or “in short a touching” and that “[t]he slightest degree of force will be sufficient”.  He explained the requirements of proof for each charge.  The Judge then gave a standard propensity direction in relation to two prior sets of convictions related to assaults on women.  The Judge referred to the exculpatory evidence of Mr Hunter and his sister and to the Crown’s criticism of it.  He told the jury that the Crown was wrong to submit that the sister tried to obstruct the complainant giving evidence.  He then provided a reasonably detailed summary of their respective cases. 
[9]	While deliberating the jury posed two questions. The first question was:
Did the constable observe injuries on Miss Smith that were consistent with being punched within the past hour? 
[10]	There is no record of the answer to this question.
[11]	The second question was:
Does forcing Chanelle upstairs against her will using physical force in the absence of sufficient proof of punching constitute an assault on her per charge 4?
[12]	The Judge replied:
Yes.  Refer to definition of assault.  A touching is sufficient.  Evidence comes out @ trial you need to consider.
Did the prosecutor over-charge?
[13]	The first ground of appeal relates to the conduct of the prosecution.  Mr Mackey submits the prosecutor overinflated the charges and then the case for the Crown.  He noted that the caption summary for the charges referred to 12 charges, including multiple punches to the head.  He said this then drove opposition to police bail and an over-exaggerated Crown opening.  He said by the end of trial, only a few punches at most were proven, and the evidence of the injuries was sparse.  He also said the defence came to trial to defend overinflated high-end injury charges that, in the end, dramatically changed in a way that put the defendant at a disadvantage.  Specifically, he submitted that the Crown’s closing address referred to a reduced number of punches.  He submitted that though technically charges of assault with intent to injure were available, those charges should have been reduced to lesser charges of assault. 
[14]	We do not agree with Mr Mackey’s criticisms of the prosecution.  It is not disputed that the charges laid broadly mirror the allegations made by Chanelle in her interview statement.  While the evidence of physical injury was sparse and contestable, there was a clearly sufficient basis for the charges being laid.  The case for the Crown then naturally evolved in line with the evidence given at trial.  The prosecutor cannot be criticised for closing on a basis that reflected the evidence.  This ground of appeal is dismissed.
Verdict unreasonableness and jury bias
[15]	Mr Mackey submits that the Judge’s positive answer to the second question was wrong.  For ease of reference we repeat the question and answer here: 
Does forcing Chanelle upstairs against her will using physical force in the absence of sufficient proof of punching constitute an assault on her per charge 4?
Yes.  Refer to definition of assault.  A touching is sufficient.  Evidence comes out @ trial you need to consider.
[16]	He also submits that the question raises an issue of unreasonableness or jury bias against the defendant for the following reasons:
(a)	The words, “in the absence of sufficient proof of punching” are a concern because the evidence here is the same as for charges 1–3, which raises a question as to why the complainant’s evidence is good enough for those charges but not good enough for this charge.
(b)	The fact that the jury asked this question and convicted Mr Hunter shows a bias against the appellant and a refusal to let charge 4 go.
(c)	The jury acquitted the appellant on charge 5 so what is the difference between this charge and charges 1–3?
(d)	The only difference between charge 5 and charges 1–3 is that the appellant’s sister, Karen Hunt, gave evidence in support of the appellant which should not have altered anything.
(e)	The appeal against charge 4 should be allowed because of a misdirection by the Judge in his answer to the jury’s question — he should have covered all the evidence about why she was made to go upstairs and in fact he should have answered “no”.
[17]	We do not agree.  First, if anything, the question reveals the care with which the jury approached the evidence, including the exculpatory evidence of Ms Hunter.  Second, the definition of assault given by the Judge was correct.  He said in his summing up and repeated in the question trail that assault means: 
… the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose and “to assault” has a corresponding meaning. 
[18]	Third, implicit in the question is that the jury had formed the view that the complainant was forced against her will.  The key ingredient of non-consensual touching was plainly proven to the jury’s satisfaction.  Finally, the acquittal on the strangling charge also reveals the care with which the jury went about its task. 
[19]	This ground of appeal is also dismissed. 
Sentence 
[20]	We can deal with the sentence appeal briefly.  Mr Hunter was sentenced to four months’ home detention from a starting point sentence of nine months’ imprisonment.  Mr Mackey submitted that this was manifestly excessive, given that Mr Hunter spent two months and three weeks in pre-trial custody.  We disagree.  The four months’ home detention broadly corresponds to an eight month sentence of imprisonment.  A reduction of one month of home detention adequately corresponds to the time spent in pre-trial custody. 
[21]	The appeal against sentence is dismissed. 

Outcome
[22]	The appeal against conviction is dismissed. 
[23]	The appeal against sentence is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent