A v R HC Blenheim CRI 2006 406 003

[2006] NZHC 1044

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2006 406 003

BETWEEN  A

Appellant

AND  THE QUEEN Respondent

Hearing:         15 September 2006

Counsel:        Appellant in Person

N Dore for the Respondent

Judgment:      15 September 2006

ORAL JUDGMENT OF WILD J

[1]      By a notice of appeal filed on 5 July 2006 Ms A   appeals against her convictions in the Blenheim District Court earlier that same day, 5 July, and against the sentence imposed on her by Judge Zohrab.

[2] Ms A faced two charges. The first was a charge of intentionally damaging a mattress, the property of the Police. That is an offence under s11(1)(a) of the Summary Offences Act 1981. The second charge was that, while in lawful custody, she refused to allow a constable to take fingerprints. That is an offence under s57(2) of the Police Act 1958. Both offences, the Police alleged, were committed at the Blenheim Police Station on 15 January 2006.

[3]      In an oral decision Judge Zohrab found both charges proved and convicted Ms A  .   He ordered her to come up for sentence if called on in the next 12 months.  That sentence was designed to give her an incentive to stay out of trouble

with the law.

A V R HC BLE CRI 2006 406 003  15 September 2006

[4]      In her notice of appeal to this Court Ms A   states her grounds in this way:

I would like to appeal this two convictions.  The Judge mistook all the points and convicted me without thought and make uninappropriate comment and called me a liar and told me if I don’t like his judgment to go back to my own country.  He made comments about my religion.  I don’t think that was a fair hearing.  I believe Judge Zohrab is not fit judge of people.

[5]      From those grounds I distil that Ms A   alleges first, that she did not get a fair hearing before the Judge, and second, that the Judge was biased against her.  She represented herself before the Judge.   The Police called two witnesses.   First, a Constable Mills, and second, a Sergeant Sampson.  Both policemen were questioned by the Judge, really on behalf of Ms A  , and with her active input.  The Judge’s procedure was to ascertain from Ms A   what her defence was, what she said had happened at the police station that day, and to put it to the two policemen who gave evidence.  That is what the Judge did.

[6]      The nub of the  police  officers’  evidence  was  that  Ms  A    had  been arrested at her home earlier that day on what was described as an unrelated matter, and taken to the police station.  Once there she was not cooperative, to say the least, in  being  processed.    The  policemen  said  that  she  used  foul,  abusive,  insulting language towards them and spat  at the police sergeant.   She refused to allow a photograph to be taken and refused to allow her fingerprints to be taken.  The Police said that they put her then in an observation cell with a mattress to rest on.  They said that they observed her over the camera monitor to tear a piece of vinyl off the mattress and place it over the perspex observation window so people could not see her in the cell.  They then put her in a different cell without a mattress.

[7]      Ms A   then gave evidence in her own defence and was questioned by the Police prosecuting sergeant, Sergeant Single.   In his decision Judge Zohrab summarised Ms A  ’s evidence in these terms:

[16]     It  was  denied  by  Ms  A    that  there  was  any  request  for fingerprints or photographs at any point when she was taken to the police station, though she accepts the following day there was a request made for fingerprints, but that was delayed because they were awaiting the arrival of a female officer.  In the event, as far as the Police are concerned, she ended up being placed in another cell because of the way she had been performing and

damaging the earlier cell.  Ms A  ’s evidence was that after being placed in a cell with no mattress she was left there for a long time.  She talked about being around midnight, she could not be sure how long she had been in that cell for, at some stage a dirty mattress, she talked about it having some formative on it, which I took to be along the lines of vomit or food on it. Her evidence was that she had to use toilet paper to clean it and as far as placing anything over the camera in any of the cells she denies that, but because people were coming and going looking through the window of the cell and laughing at her she knew she was being watched by the camera. She may have flicked water onto the perspex at some stage, but that’s as far as things went as far as she is concerned, and she stayed in that cell with a dirty mattress through until the following day when she was taken to Court.

[17]      Ms A  ’s evidence was that she strongly denied that there was any abuse.   She expressed surprise at the allegation that she had used the word “arsehole” and she suggested to me that she did not know what that meant,  and  inquired  with  me  what  was  meant  by  that  in  terms  of  the allegation that she called the police officer pigs.  She suggested to me that she did not know what a pig was and wanted to know how that was spelt.

[8]      After the close of evidence the Judge called for submissions and Ms A   is recorded as addressing the Judge in these terms:

I say this case is just a made up story.  These police officer they acting for Somali man.  That case is well known in that Somali community because he actually tell  many peoples  about  that  he want  me to  be a  prisoner,  get convicted, and because his tribe and my tribe are different.

The Judge asked her:

So these officers have lied to help the Somali man get what he wants, is that right?

Ms A   said “Yes”.

[9]      I am satisfied, having read the transcript of the hearing before Judge Zohrab that he gave her a fair hearing.  In particular, he went to some lengths to ascertain what her case was and to ensure that it was put to the two policemen who gave evidence.  He then ensured that she had a fair opportunity to put her side of the story, and he then gave her, as I have just said, an opportunity to make submissions to him. I do not consider the allegation that there was not a fair hearing is made out.

[10]     As to the allegation of bias, the basis for that seems to be that the Judge called Ms A   a liar.  In his decision the Judge certainly preferred the evidence of

the two police officers.  In fact, he was forthright in rejecting Ms A  ’s evidence as untruthful.

[11]     Finding that a witness has not told the truth does not make a Judge biased. Constantly,  Judges have  to  decide  which witness or  witnesses  they  believe  and which they do not.   I am satisfied that the allegation that the Judge was biased against Ms A   is also not made out.

[12]     I said at the outset that there was also an appeal against sentence.  There is no reference to that in Ms A  ’s grounds of appeal and she has not mentioned it to me today.   The transcript  of the hearing records the Judge spending some time discussing the question of sentence with Ms A  .   For example he asked her about community work.  She told him she would not do that.  There could hardly be a less punitive or less intrusive sentence than the one the Judge imposed, that is ordering that she come up for sentence in the next 12 months if called upon.   The appeal against sentence is also dismissed.

[13]     In relevant terms, that disposes of the appeal that Ms A   has brought, and I dismiss it.

[14]     In  support  of  her  appeal  this  morning,  Ms  A    gave  me  a  lengthy explanation about the events which she says led up to the Police coming to her home and arresting her on 15 January 2006.   It is no task of mine in dealing with this morning’s appeal to go into those events.   I have no ability to do that.   I am not hearing evidence this morning:  not from Ms A  ; not from the Somali man she has told me about; not from her sister (whom she says is a deaf mute, and who would obviously have difficulty in giving evidence); and not from the Police.  I am in no position to determine the truth or otherwise of the events Ms A   has told me about this morning.  She must understand that. I am sitting as a Court of appeal from the convictions imposed and sentence entered.  Really, all she has told me about this morning is irrelevant to this appeal.  The only relevant point Ms A   made is to maintain, as she did to the Judge, that there was no refusal on her part of fingerprints. I might say that she added in her submissions this morning “even if that’s true you can’t just go to someone’s house and just arrest them”.

Solicitors:

Crown Solicitor, Blenheim for the Respondent