B v Police HC Auckland Cri-2007-404-38

[2007] NZHC 1786

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-038

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 June 2007

Appearances: P H H Tomlinson for Appellant

M R Harborow for Respondent

Judgment:      5 June 2007 at 10:00 am

ORAL JUDGMENT OF COURTNEY J ON APPEAL AGAINST CONVICTION

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone]
P Tomlinson, P O Box 194, Shortland Street, Auckland

Fax: [phone]

B V NZ POLICE HC AK CRI-2007-404-038  5 June 2007

[1]      On 8 November 2006 Mr B   was convicted on one charge of male assaults female and appeals against that conviction.  The main ground of appeal is the failure of the District Court Judge to give any reasons for preferring the evidence of the complainant, Ms Kelly to that of Mr B  .

[2]      The conviction arose from an incident at Ms Kelly’s home on Sunday, 4 June

2006.  Ms Kelly and Mr B   had been inside the house together when Mr B   said he was intending to leave.   There was evidence from Ms Kelly of some kind of argument.   Mr B  ’s evidence also suggested that there was some kind of disagreement though his evidence did not suggest that it was very serious.

[3]      On Ms Kelly’s evidence she followed Mr B   to the gate of the property where Mr B   punched her nine or ten times in fairly quick succession.  While she was being punched Ms Kelly was backing away and fell a number of times.   She went into the house and called the police.  She described her injuries as having a sore jaw,  bloodied  nose  and  her  whole  face  and  shoulders  being  sore.    The  police constable who attended gave evidence of noticing that Ms Kelly had some reddening to her face and a bloodied nose.

[4]      Mr B  ’s evidence was that Ms Kelly had followed him to the gate of the property and grabbed his hair.  He put his hand in front of himself to keep her away, told her not to hit him and then pushed her away, causing her to fall over.  He then got into his car but before he could drive away she threw a rock through his rear window.  He got out, took the rock and threw it back at her car.

[5]      In an oral decision the District Court Judge reviewed the evidence I have just described and then concluded at [6]:

It is simply a question of credibility.  I simply record that wherever there is a conflict  between  the  evidence  of  the  defendant  and  the  complainant,  I believe the evidence of the complainant.  I reject the defendant’s denials.  I am satisfied that he did strike the complainant a number of times.  I am not sure  how  often,  but  certainly  he  did.  It  is  abundantly  plain  that  the complainant suffered the injuries that she referred to because they are confirmed by the evidence of Constable Davis. I am satisfied beyond the slightest doubt that  the information has  been proved.  The defendant  did apply force to the person of the complainant,  and  he  will  be convicted accordingly.

Was the District Court Judge required to give reasons?

[6]      For Mr B  , Mr Tomlinson submitted that the Judge did not give any reasons for preferring Ms Kelly’s account of the events over that of Mr B  .  The giving of reasons is not an absolute requirement, although, as observed in Lewis v Wilson & Horton Limited1  it is highly desirable to do so.   Giving reasons is critical to the maintenance of public confidence in the justice system.  Without reasons appellate courts face difficulty in determining whether the decision was lawful and giving reasons imposes a discipline on the Judge which is the best protection against wrong

or arbitrary decisions and the inconsistent delivery of justice.

[7]      The leading decision on this point remains R v Awatere2  where the Court stated at p649 that:

Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion.

[8]      Where the case depends on the credibility of the complainant and the accused and there is no corroborating evidence, eye witness or documents the Judge must make an assessment  as to  whether the complainant  is sufficiently convincing to prove the charge.   Sometimes the  finding  is  based  on  impression,  demeanor or experience of how people usually behave.  It may be very difficult to articulate these

kinds of reasons for preferring one witness over another.

[9]      These days, however, it is a recognised fact that judges are no better than anyone else in determining whether a person is telling the truth by relying solely on demeanour and the impression of the witness in the witness box.   This point was made by Fogarty J in Thomas v The Police3, in which the Judge referree to a helpful article by Ipp J.  With the benefit of this knowledge, a judge would, nowadays, take particular care in reaching a view solely on impression. Ultimately, if the Judge is satisfied that a particular witness was truthful on the critical issue, then he or she is

entitled to make that finding even if the decision is one based on impression and

1 [2003] 3 NZLR 546 (CA)

2 [1982] 1 NZLR 644 (CA)

3 HC AK CRI-2006-404-000220

depending on the circumstances of the case that may be sufficient.   Ideally though the  Judge  will give reasons.  If there  is any other  evidence  that  might  assist  in determining whether the witness is more reliable than the other then that should be specifically considered.

[10]     In  this  case,  I  do  consider  that  the  Judge  gave  a  reason  for  preferring Ms Kelly over Mr B  .  That reason was that Ms Kelly had sustained injuries that were seen by the police constable who attended soon after the incident.  However, Mr Tomlinson submitted that the Judge overstated the effect of that evidence and, further, that he failed to consider another piece of evidence at all which reflected adversely on Ms Kelly’s general credibility.

Extent of injuries

[11]     I look first at the issue relating to the extent of Ms Kelly’s injuries.   The Judge accepted that the injuries had been sustained because there was confirmation of  that  fact  from  Constable  Davis.     However,  Mr  Tomlinson  submitted  that Constable Davis’ evidence of the injuries (bloodied nose and reddening to the face) was inconsistent with Ms Kelly’s claim to have been punched a total of nine or ten times.    Mr  Tomlinson  submitted  that  it  was  not  credible  that  the  very  limited apparent injuries could have resulted from the extent of the alleged violence.  For the Crown, Mr Harborow accepted that this was so.

[12]     It is apparent that the Judge relied on the fact that Constable Davis had given evidence that he had seen reddening to Ms Kelly’s face and blood around her nose as either a or the reason for accepting that Ms Kelly had suffered injuries.  I accept the inherent improbability of the injuries that the Constable described as being the only injuries that would have resulted from nine or ten punches.  It appears that the Judge was also doubtful of that fact because he specifically expressed uncertainty about the number of punches and this is somewhat inconsistent with his earlier, stated acceptance  of  Ms  Kelly’s  evidence.    The  Judge’s  uncertainty  about  how  often Ms Kelly was struck does suggest that he did not accept her version in its totality.

[13]     However, there was clearly some physical evidence of an injury consistent with being hit in the face.  The circumstances of the incident as described by both the

complainant and Mr B   had some common elements and I consider that, given that evidence, coupled with the physical injury, the Judge was entitled to find that the injury was the result of an assault.  In the circumstances of the case, the only person who could have been responsible for that was Mr B  .

[14]     Mr Tomlinson submitted that the evidence did not entitle the Judge to go so far as to  conclude how the  injury had occurred, however I think that  would be denying the reality of what  both parties  agreed  was  an  incident  between  them. Whether there were fewer punches than Ms Kelly claimed does not detract from that fact.  One punch would have sufficed for the charge to have been proven.  I therefore do not accept that the Judge erred in dealing with the evidence of the injuries.

Evidence not addressed

[15]     On the second aspect of the appeal, Mr Tomlinson, submitted that there was an important aspect of evidence that the Judge failed to address and which would have assisted in determining which of Ms Kelly or Mr B   was the more reliable witness.  This evidence related to the assertion by Mr B   that Ms Kelly had thrown a rock through the  window of his car.   This  allegation  was  specifically  put  to Ms Kelly  in  cross-examination  and  she  denied  it.    Mr  B    called  a  witness, Mr Bourne, who was gave evidence confirming that Mr B  ’s car window had been broken but he did not see the incident that caused it.

[16]     Although Mr Bourne did not give evidence of precisely how the car window had been broken it certainly appeared from cross-examination by the Crown that the prosecution  accepted  that  Mr  B  ’s  assertion  of  that  part  of  the  incident  was probably right.

[17]     Mr Tomlinson submitted that evidence relating to this part of the incident should not have been ignored by the Judge and that it was a point that affected Ms Kelly’s credibility generally; if she was not telling the truth on this point then it was certainly open to find that she was not telling the truth on the allegation of assault.

[18]     Mr Harborow submitted that this issue was not material because whether or not Ms Kelly threw the rock does not touch on the elements of the offence.   In

assessing the credibility of a witness it is quite legitimate to take into account matters that do not directly relate to the charge but do bear on the credibility of the witness. This incident is, in my view, one such issue.

[19]     At [6] the Judge recorded that wherever there was a conflict between the two witnesses he preferred the evidence of Ms Kelly.  The rock-throwing allegation had been referred to at [5] so this finding must have been intended to apply to that as well as to the evidence about the alleged assault.  However, I accept Mr Tomlinson’s submission that it was not adequately dealt with because there was evidence that the car window had  been damaged  and  the  most  likely person to  have caused  that damage was Ms Kelly.  However, the fact that Ms Kelly may have lied about that would not, in itself, have precluded the Judge from preferring her evidence on the other issue.  It was a point that the Judge should have dealt with it and I do consider it an error not to have dealt with it.  But in the end it was quite open to the Judge to find that  the  evidence  relating  to  the  injury outweighed  any  adverse  credibility finding which might have resulted from the rock-throwing incident.

Conclusion

[20]     My conclusion therefore is that the Judge did not err in treating the injury as evidence from which he could conclude that Ms Kelly had been assaulted and that once he had reached that point he was entitled to prefer her evidence over that of Mr B  .

[21]     Although he should  have dealt  with the rock throwing  incident  I do  not consider that this error made any material difference to the outcome because the Judge was still entitled to view the physical injuries as the most compelling evidence on which to determine credibility.

[22]     The appeal is therefore dismissed.

P Courtney J