A v Police HC Christchurch Cri-2007-409-247

[2008] NZHC 935

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-000247

A

Appellant

v

POLICE

Respondent

Hearing:         19 June 2008

Appearances: A Bailey for Appellant

D M Orchard for Respondent

Judgment:      19 June 2008

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction.   The appellant was convicted in the District Court on 23 November 2007 of four charges: one of burglary, two of intentional damage, and one of theft of a cellphone.

[2]      All of the charges arose out of a series of incidents involving the appellant and a former girlfriend.  The appeal is in respect of the two charges of intentional damage only.

[3]      The first intentional damage charge related to an allegation the appellant struck the complainant’s motor vehicle with a tennis racquet.  The second related to

A V POLICE HC CHCH CRI-2007-409-000247  19 June 2008

an allegation the appellant damaged the french doors at the complainant’s home after she refused to let him in.

[4]      In his closely reasoned decision, the Judge found the evidence given by the appellant was “seriously unreliable”, and that where there was a conflict of evidence between the appellant and the complainant he preferred the evidence of the complainant.   That finding is not challenged.   In particular, I note this means the finding the appellant did strike the vehicle with the tennis racquet is not challenged.

[5]      The grounds of the appeal are that the Judge did not properly direct himself with respect to the elements of the charges, and that the convictions were not supported by the evidence.

[6]      In relation to the tennis racquet incident, the complaint is essentially that the Judge failed to have any regard to the evidence of an insurance assessor called by the defence, a Mr Thomas.  Mr Thomas, who did not know the appellant, had examined the complainant’s vehicle and was of the view the damage he observed could not have been caused by it being hit by a tennis racquet.

[7]      The complainant gave evidence there had been no damage to that area of the car before the incident.  She also stated the sound of the tennis racquet hitting her car made a noise which she found stressful.  She said when the appellant tried to open the door immediately after he had hit it with the tennis racquet, the door made a terrible noise.  There was also evidence she did inspect the door, and found damage to the area he had struck with the tennis racquet which had not been there before.

[8]      In finding the charge of intentional damage was proved beyond reasonable doubt, the Judge did not mention Mr Thomas’ evidence, nor did he give any reasons why he obviously discounted it.

[9]      The Crown submits, however, that the Judge was correct to not place any weight on Mr Thomas’ evidence, and points to the following:

i)Mr Thomas did not have any engineering qualifications or any mechanical qualifications;

ii)       he did not carry out any forensic tests on the vehicle;

iii)there  was  no  evidence  of  any  specific  qualifications  as  to vehicle crashes/vehicle damage, et cetera;

iv)the  basis  for  his  opinion  the  damage  could  not  have  been caused by a tennis racquet was two-fold: firstly, there were no crescent-shaped marks and secondly, the tennis racquet was made of graphite.   However, he accepted someone using a tennis racquet may not have used the full face of the tennis racquet, while the evidence from the complainant was that the tennis racquet in question was “a metal framed, aluminium- framed racquet with a handle”.

[10]     In my judgment Mr Thomas, as an experienced insurance assessor, could validly be regarded as possessing expertise about investigating the causes of damage to motor vehicles.   That said, I do, however, accept the balance of the Crown’s submissions about the weight that could properly be attached to Mr Thomas’ evidence.  His evidence was significantly undermined in cross-examination when it appeared that what had primarily influenced him in his conclusion was the absence of a crescent-shaped mark.   When asked what had caused the damage which the complainant had identified as being caused by the tennis racquet, he said he did not know what had caused that damage.

[11]     All in all, I consider there was sufficient evidence justifying the Judge in not placing weight on Mr Thomas’ testimony.

[12]     Turning to the french doors charge, the complaint here is that the Judge failed to have regard to mens rea issues, in particular the principles established in the Smith v Police (1988) 3 CRNZ 262 decision.  Again, the Judge did not expressly avert to mens rea in connection with this intentional damage charge.  However I am satisfied

there was undoubtedly evidence from which he could infer the necessary intent. There was evidence from the complainant that the appellant was knocking on the door and that she spoke through the door, saying she was not going to open it and he should go.  He responded angrily by grabbing the door and obviously attempting to force it so he could enter the house.

[13]     There was also evidence from a neighbour that the door looked as though it had been wrenched open or pulled open with force.   I agree with the Crown’s submission that in the circumstances the only proper inference that could be drawn from the appellant forcefully pulling at the door is that he intended to break it in order to enter the house.

[14]     It  follows  from  the  above  that  I  am  satisfied  there  are  no  grounds  for interfering with the District Court decision.  The appeal is therefore dismissed.

Solicitors:

A Bailey, Christchurch

Crown Solicitor, Christchurch