Armishaw v Police HC Christchurch CRI-2010-409-000211

[2011] NZHC 1833

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000211

LYNDON MARK ARMISHAW

v

POLICE

Hearing:         16 November 2011

Appearances: Appellant in person

M Zintl for Respondent

Judgment:      22 November 2011

RESERVED JUDGMENT OF HON JUSTICE FRENCH

Introduction

[1]      Mr Armishaw  was  charged  with  threatening  to  kill  and  two  charges  of possessing a knife in a public place.

[2]      He defended all the charges.  The threatening to kill charge and one of the possession of a knife charges were tried in February 2010.  The second possession of a knife charge was the subject of a separate hearing held in July 2010 before a different Judge.

[3]      All charges were found proved.  Mr Armishaw was subsequently sentenced to

150 concurrent hours of community work and two months’ community detention.

ARMISHAW V POLICE HC CHCH CRI-2010-409-000211 22 November 2011

[4]      Mr Armishaw now appeals his conviction for threatening to kill.1

Factual background

[5]      The  charge  of  threatening  to  kill  arose  out  of  an  altercation  between Mr Armishaw and a bouncer, after the bouncer had denied Mr Armishaw entry to a bar.

[6]      According to the bouncer’s evidence, Mr Armishaw became aggressive and threatened to kill him saying (amongst other things) “I am going to shoot you nigger, I am going to waste you”.

[7]      The   bouncer   further   testified   that   approximately   three   hours   later, Mr Armishaw returned to the bar wearing a disguise.   By that time, the bar had closed.  Mr Armishaw parked his car in a way which made it look as though he was going to ram the club.  He was seen to get out of his car, try to open the club’s door and peer in through the windows. The bouncer phoned the police.

[8]      When arrested, Mr Armishaw denied ever telling the bouncer he was going to shoot him.

[9]      Mr Armishaw  did  not  testify  at  the  hearing.    He  did,  however,  call  his daughter’s then boyfriend to give evidence.   The boyfriend, a Mr Thompson, was with Mr Armishaw at the time of his first visit to the bar.  Mr Thompson testified that he did not hear Mr Armishaw threaten the bouncer.

The decision of the District Court Judge

[10]     In his decision, the Judge identified the elements of the offence of threatening to kill, and then went on to say:

[15]      I have no doubt whatever that what [the bouncer] said to me had been said by Mr Armishaw.   Mr Armishaw was drunk.   He did not give evidence but of course he is not required to give evidence and Mr Thompson was not able to say that he heard the whole of the argument, paid attention to

1      He does not appeal his conviction on the other two charges.  Mr Armishaw also confirmed that he did not wish to appeal the sentence.

it  and  could  say  that  the  evidence  of  [the  bouncer]  was  incorrect  or untruthful.     I  conclude  that  nothing  that  Mr Thompson  has  said  was materially inconsistent with what [the bouncer] said.

[16]      The situation with regards to the threat to kill, that Mr Armishaw was agreed [sic] that he was not being allowed into the bar.  The thing has escalated from there.  argument took place.  Mr Armishaw made the threats, that he intended to make the threats and that [the bouncer] took them seriously, particularly when a couple of hours later Mr Armishaw returned and what the photographs clearly show him to have done.

Grounds of appeal

[11]     On appeal, Mr Armishaw advanced a number of grounds of appeal.  These can be conveniently summarised as follows:

(i)       The prosecution adduced inadmissible hearsay evidence.

(ii)      The Judge erred in his analysis of Mr Thompson’s testimony.

(iii)The police did not deal with the matter in an even-handed and fair manner.

(iv)     The police behaved improperly during the hearing. (v)           He was not drunk, as stated by the Judge.

[12]     I now turn to consider each of the grounds of appeal.

Inadmissible hearsay

[13]     In the course of giving his examination in chief about what happened after the bar had closed, the bouncer stated:2

[A staff member] left and went to her car and then approximately three minutes later she telephoned me and said that there was a man outside who was threatening to kill me.  I asked her what was, what did he look like.  I asked her what did he look like and she creepy –

[14]     The transcript shows that the prosecuting sergeant interrupted the bouncer, essentially to say that the Court did not need to know what the staff member had told him, but only what he heard Mr Armishaw say or what he himself saw.

[15]     Mr Armishaw, however, argues that by then it was too late.  The Judge had heard the damaging evidence, and it would have tainted his thinking.

[16]     The female staff member was not called to give evidence.   However, it is arguable that the statements attributed to her are not hearsay, because they were not offered  in  evidence to  prove the truth  of their  contents,  but  rather the fact  the statements were made.  They formed part of the bouncer’s narrative as to why he was prompted to check the surveillance cameras.

[17]     In any event, even if the evidence was hearsay, and so inadmissible, I am satisfied that it has not prejudiced Mr Armishaw in any way.   It is clear from the Judge’s decision that the evidence did not have any bearing whatsoever on the outcome, and was not taken into account or relied upon by the Judge.

Analysis of Mr Thompson’s evidence

[18]     The Judge found that although Mr Thompson may not have heard any threats to kill, he did not hear all of the conversation and therefore was not in a position to dispute the bouncer’s evidence.

[19]     Mr Armishaw  submits  that,  in  coming  to  this  conclusion,  the  Judge  has focused on just one passage in the transcript where Mr Thompson became confused, and has overlooked the general tenor of the rest of his evidence.

[20]     The passage in question reads as follows:3

Q.       Now you told His Honour before that the argument went on for probably more than 10 minutes?

A.       Yeah definitely.

Q.       So there was obviously a lot more being said than simply calling each other bitches?

A.       They went back and forth using that word a lot. Q. That went on -

A.       Yeah.

Q.       And Mr Armishaw was getting quite angry at this point? A.         Yep, yep.

Q.       Have you known him to be an angry person? A.    He doesn’t back down no.

Q.       Apart from being called or calling each other bitches what else did

Mr Armishaw say to [the bouncer] do you remember anything?

A.       Not really.   To be honest I didn't want to part of the situation so yeah.

Q.       So you weren't (inaudible)? A.     No.

Q.       So you wouldn't have heard in a great deal of detail what was being said between the two of them?

A.       Not really.  It wasn’t none of my business so yeah.

Q.       [The bouncer] gave evidence that [the bouncer] [sic] said that he would shoot him do you remember -

A.       No I don’t no.

[21]     I accept that there are other passages in the transcript where Mr Thompson, particularly in examination in chief and re-examination, has suggested he was close enough to hear the conversation and did not hear any threats to kill.

[22]     However,  it  was  open  to  the  Judge  to  place  more  weight  on  what Mr Thompson  said  under  cross-examination.    In  my  view,  there  was  sufficient evidence on which the Judge could have reached the conclusion he did.  The Judge of course has had the advantage of seeing and hearing the witnesses, in particular Mr Thompson.  I do not therefore consider there is any basis for interfering with the Judge’s finding.

The police did not deal with the matter in an even-handed and fair manner

[23]     Mr Thompson testified that he rang the police to complain that the bouncer had assaulted Mr Armishaw.   The response of the police was for Mr Armishaw to come back the next day and file a complaint.

[24]     Mr Armishaw submits that this reaction contrasts sharply with the way the police   responded   when   the   bouncer   telephoned   them   to   complain   about Mr Armishaw.  Mr Armishaw describes this as demonstrating two sets of rules.  He also contends that if the police had responded appropriately to his complaint on the night then he would never have returned to the bar for a second visit and so would never have been facing criminal charges.

[25]     This complaint of discrimination however overlooks the fact that according to Mr Thompson’s own evidence, when he phoned the police he told them that Mr Armishaw was intoxicated.  It was for that reason that the police suggested Mr Armishaw come to the police station in the morning to make a statement.

[26]     In any event, I do not consider that the failure of the police to action his complaint on the night can be grounds for an appeal.  It could not possibly amount to an abuse of process, and Mr Armishaw really only has himself to blame for the action he took.

Alleged improper police behaviour during the hearing

[27]     Mr Armishaw  told  me  that  before  the  bouncer  gave  his  evidence,  he (Mr Armishaw) overheard the police witnesses saying to the bouncer “just say what we discussed and we will be right”.  At that stage one of the officers in question had already given their evidence.  Police officers were also overheard to be talking and laughing saying that Mr Armishaw was going to be losing this one.

[28]     Mr Armishaw  says  he  told  his  lawyer  at  the  time  about  what  he  had overheard, but the matter was not taken any further.  In Mr Armishaw’s submission, the hearing should have been stopped straight away and the bouncer’s evidence should not have been allowed.

[29]     The police officer who had already given their evidence at the time of this conversation was the officer in charge.

[30]     Counsel for the police, Mr Zintl, submitted that while it was probably unwise of the officers to be discussing the case in the public waiting area in this fashion, there was nothing improper in what was said.   There was no suggestion of the witness being coached or informed about what had been transpiring in the courtroom from which he had been excluded by Court order.

[31]     I  accept  those  submissions  and  consider  that  even  if  I  were  to  accept Mr Armishaw’s  account  of  what  he  heard,  it  would  not  constitute  grounds  for quashing the conviction.

Finding of intoxication

[32]     The Judge found that Mr Armishaw was drunk.  Mr Armishaw says he was not intoxicated, because when he was stopped by police he was given a roadside breath test which he passed.

[33]     The breath test in question, however, was conducted several hours after the altercation outside the club.

[34]     In any event, there was no evidence of the breath test results.  Mr Armishaw’s lawyer  never  put  to  the  prosecution’s  witnesses  that  Mr Armishaw  was  not intoxicated.     Further,   Mr Armishaw’s   own  witness,   Mr Thompson,   said   that Mr Armishaw was intoxicated.

[35]     In those circumstances, the Judge was fully entitled to make the finding he did about Mr Armishaw’s being drunk.

Outcome

[36]     As will be readily apparent, I am satisfied that none of the grounds of appeal have merit.

[37]     The appeal is accordingly dismissed and the conviction confirmed.

[38]     The filing of the appeal has resulted in the suspension of the sentences.

[39]     Under s 137 of the Summary Proceedings Act 1957, I direct that the first curfew of the community detention sentence is to commence on Friday 2 December

2011 at 9 p.m.

[40]     I also direct that Mr Armishaw is to report to the Annex Road Community Work  Centre  on  Tuesday 29  November 2011  at  10  a.m.  for resumption  of the community work sentence.

Solicitors:

Crown Solicitor’s Office, Christchurch

Copy to: Appellant