Awatere v Police

[2019] NZHC 194

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI 2018-485-77

[2019] NZHC 194

BETWEEN

CHRISTINA WHILIMINA AWATERE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 February 2019
Counsel:	C Thorburn and T Luders for Appellant T G Bain for Respondent
Judgment:	18 February 2019

JUDGMENT OF SIMON FRANCE J

[1]    Ms Awatere appeals her conviction for common assault, it being alleged she spat at the victim during an altercation over a disability parking space.1 Difficulties with the Court’s recording system means that part of Ms Awatere’s evidence, and the Judge’s oral reasons, were not recorded.

[2]    Counsel are agreed that the authorities make it plain the imperfect written record does not mean the appeal must be allowed.2 It remains necessary to show an irregularity or error.

1      New Zealand Police v Awatere CRI-2018-096-000527, trial commencing 08 October 2018. The charge was originally Crimes Act assault. At the Judge’s invitation, prior to delivering the decision, the charge was amended to Summary Offences Act assault.

2      Kingi v R [2016] NZCA 160.

AWATERE v NZ POLICE [2019] NZHC 194 [18 February 2019]

[3]    In the present case the prosecutor took a written note of the decision. It is accepted by the parties  that  it  is  an  accurate  albeit  incomplete  record.  As  for Ms Awatere’s evidence, she made a recorded statement to the police which was available at trial. Such of her evidence-in-chief as was recorded is consistent with what she told the police. I will proceed on the basis that under cross-examination she remained consistent in her version of events, and no significant damage was wrought through cross-examination.

Facts

[4]    Ms Awatere and her partner were parked in a manner that obstructed part of a disability parking space. It seems the positioning of their car, in an adjacent park, was the product of how other people had parked, thereby rendering unusable part of the general parking space adjacent to the disability space.

[5]    When Ms Awatere and her partner returned to their car, they encountered the complainant’s son videoing the situation. He was using his cellphone. An altercation ensued. It became heated, then quietened, and then a comment provoked anger in  Ms Awatere. She unleashed a verbal barrage at the complainant whilst approaching her so as to be very proximate.

[6]    It seems common ground that some spittle from Ms Awatere hit the complainant. The complainant and her son allege that Ms Awatere deliberately spat at the complainant. It was noted several items of spit landed in the same spot on the complainant’s dress. Ms Awatere accepted some spittle may have hit the complainant but denied spitting at her. She explained she has no teeth, and when agitated and yelling, spit can fly out.

[7]    The video taken by the son records the early stages and the yelling but does not record a spit. It does record the son saying to Ms Awatere not to spit at his mother. The video ends  due  to  a  physical  altercation  occurring  between  the  son  and  Ms Awatere’s partner. On the recording, when the son accuses Ms Awatere of spitting, Ms Awatere immediately denies it.

[8]    The Judge records these events and notes the evidence about the saliva landing on the same spot. The prosecutor’s summary of the reasoning concludes:

Having read all the evidence and accepting during verbal interaction the defendant may well have spat unintentionally also conclude during the altercation the defendant deliberately spat on the complainant on a number of occasions.

Appeal

[9]    The appeal is advanced on the basis that the District Court did not give adequate reasons for why the defendant’s evidence was not accepted. This is submitted to be particularly acute when some of her evidence, relating to unintentional spitting, was accepted.3 Further, it is submitted that there were inconsistencies that required consideration and this has not been done. The thrust of the argument is that the prosecution witnesses were confused over the sequence but appear to agree that the spitting occurred prior to the video ending. Whilst it is not necessarily the case that the video aspect would record it, it is submitted the audio is equally unsupportive of the prosecution case.

[10]   In R v Jeffries, the Court of Appeal set out the options available to the appeal court where there is insufficiency of reasons.4 These include remitting back either for fuller reasons or for rehearing, the appeal court itself determining the matter on the record, or quashing the conviction. In Clark,5 Panckhurst J, confronted with the combination of inadequate reasons on credibility plus a defective record, determined that it would not be appropriate for the High Court to itself determine the matter. If that situation applies here, I agree.

[11]   I consider it likely that the Judge’s credibility reasoning, though not on the available record made express by him, revolves around the inherent unlikelihood of spit randomly hitting the clothing in the same place. The apparent positioning in the judgment of this key fact immediately before the conclusion suggests as much.

3      Clark v Police HC Timaru CRI-2003-476-000024, 17 December 2003, Panckhurst J, and Taitani v Police HC Rotorua CRI-2005-463-000059, 7 October 2005, Winkelmann J are relied upon as emphasising the need for reasons where credibility is in issue.

4      R v Jeffries (1999) 17 CRNZ 128 (CA).

5      Clark, above n 3.

[12]   However, I accept Mr Luders’ submission that there are aspects of the prosecution case that do not immediately hold together and which at least need explanation. It is apparent that some of the complainant’s evidence was accepted, and without a proper record of the reasoning, I cannot be clear why the Court was sure the balance was untrue. Looking at the video I find it difficult to discern when it is that Ms Awatere could have deliberately spat at the complainant up to four times.

[13]   The situation is unfortunate but in the absence of a complete record I do not consider it appropriate for the appeal Court to undertake its own assessment. The appeal must be allowed. As for resolution, it is significant that the District Court suggested the charge be downgraded. Without minimising the situation for the complainants, the core charged act is one of spitting at clothing. In these circumstances, the correct response is not to remit the matter but instead to quash the conviction.

[14]The appeal is allowed, and the conviction quashed.

Simon France J