B v Police HC Greymouth CRI 2005-418-14

[2006] NZHC 5

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2005-418-000014

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 January 2006

Appearances: Appellant appears in person

C J Lange for Respondent

Judgment:      25 January 2006

JUDGMENT OF HON JUSTICE JOHN HANSEN

[1]      On 2 November last year Lisa Anne B    was convicted of one charge of assaulting Gary Paul Madden.   This followed a defended hearing.   Ms B   , having applied unsuccessfully for legal aid, was self-represented.  Although advised by the Court of the right to give evidence and to call evidence she did not avail herself of those particular rights.

[2]      The incident in question occurred on July 31 last year.   There was a party where clearly a great deal of alcohol was consumed.  At some stage Ms B    returned to her address where there was present a babysitter, Derek Milton Morris

Haddon-Peters.  Mr Madden, who is in a business relationship with Ms B   ,

B  V POLICE HC GRY CRI 2005-418-000014  25 January 2006

also resides at that address.  She has said today, and I have no reason to doubt, that it is only a business relationship.   It is clear that both parties were intoxicated. Arguments   ensued   which   were   described   by   Mr   Haddon-Peters   with   the complainant, Mr Madden, firstly demanding the return of a cellphone.   There was pushing and shoving, and ultimately Ms B    took a pot from the stove and hit Mr Madden with it which caused some cuts and bleeding.  He called a taxi and then the Police.  Ms B    was arrested and charged.

[3]      Mr Madden said that because of intoxication he had no recollection of events that  occurred.    Approximately two  days  before  the  defended  hearing  Constable McEwan spoke to Mr Madden when he again said that he could not recall too much of the evening.  He was in fact present in Court during the hearing.

[4]      Today  Ms  B     has  presented  the  Court  with  a  statement  of  Mr Madden’s dated 26 October 2005.  At the very best that statement would suggest that Mr Madden’s comments to the Police were disingenuous, at worse that they misled the Police as to the situation that occurred.

[5]      I think it is appropriate in the context of this appeal to read out the statement in full:

On July 31st 2005 I went to a party in Blaketown after  B    a friend and flat mate of mine asked if we would like to come.  We left the party to go to a karoaka (sic) bar and were separated.  I became agitated and headed home.  When I arrived home I charged in and began to abuse her.  She told me to quieten down or get out.   I continued to be argumentative.   She approached me telling me to leave.   I pushed her away.   She shoved me towards the door.   I grabbed at her breaking a chain on her neck.   I was scaring her and two children in the house at some stage.  I suffered a cut to my nose.  I demanded my cell phone rang for a taxi.  Then dial (sic) 111 for an ambulance.   Soon the police arrived took .   Mr Baker arrived and took the girls.  Derek left.

I stayed at the house.  Fell asleep.  The next morning a police officer arrived asked some questions to (sic) photos, got me to sign a page in a book and left.

Later  came home and said she was charged with assaulting me.  I am not the victim here.   I was a complete lunatic.    and the girls are the victims and I take full responsibility for this event and the resulting difficulties which I caused.

A day later I left to stay with a friend and asked the police to grant me a (sic)

against Lisa so I could have time by myself to think and sort myself out.

[6]      Now  since  that  date  it  appears  that  Mr  Madden  has  returned  to,  and  is continuing to, live in the house as I indicated earlier.  If Mr Madden had been called and given evidence to like effect to the letter it seems to me inevitable that the Judge would have viewed the question of self-defence quite differently from the way it is viewed based on the limited evidence before him.   I have every sympathy for the Judge who did his best to assist Ms B   , and she could have easily called Mr Madden to give evidence, or indeed proffered this statement to the Judge who I am certain, if he had received it, would have called Mr Madden to give evidence of his own volition.

[7]      However, I am conscious the Appellant was unrepresented.   It is apparent before me today that she is somewhat overawed by being in Court.  I am sure that had an even greater effect in a trial circumstance.

[8]      In those circumstances, which are quite different from the notice of appeal, and present the matter in a totally different light than that confronting the learned District  Court  Judge,  I am  satisfied  that  the  appeal  against  conviction  must  be allowed.

[9]      Mr Lange has invited the Court to order a retrial which in the normal course of events would be quite proper.  However, in circumstances where Mr Madden has returned to live in this house and given the nature of the charge and the time that has passed I am satisfied it is unnecessary and uncalled for to order a retrial.

[10]     Accordingly on this charge the appeal is allowed.  A verdict of not guilty is entered and Ms B    is discharged.

Solicitors:

Crown Solicitor, Christchurch for Respondent

CC:

Judge Walsh

Appellant