Beattie v Police

[2013] NZHC 1781

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-62 [2013] NZHC 1781

BETWEEN	ROBERT DOUGLAS BEATTIE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 June 2013 and by subsequent memoranda
Appearances:	R Bowden for Appellant M B Smith for Respondent
Judgment:	16 July 2013

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 16 July 2013 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

ROBERT DOUGLAS BEATTIE v NEW ZEALAND POLICE [2013] NZHC 1781 [16 July 2013]

[1]      Mr Beattie faced two charges laid in the District Court of assaulting a female. Following a defended hearing that spanned two days, Judge McDonald delivered an oral decision on 24 August 2012 in which he found Mr Beattie guilty on both charges.1     On 24 August 2012, the Judge sentenced Mr Beattie to 150 hours community work, and nine months supervision.2

[2]      Mr Beattie appeals to this Court against conviction.  He maintains that the police permitted vital evidence to be destroyed, and that this breached his right to a fair trial under s 25(a) of the New Zealand Bill of Rights Act 1990.  He therefore asks this Court to quash the convictions on both charges.

The prosecution case

[3]      The prosecution case rested for the most part on the evidence of the two complainants, Ms M and Ms P.  On 24 November 2011, Ms M and her 16 year old daughter placed an order at a takeaway shop in the main street of Kawakawa.  They then sat at a table outside the shop waiting for their order to be filled.  Ms M said that whilst they were sitting there, she noticed Mr Beattie walking towards her along the street. She said that he looked at them “in a sleazy way”, and that she told him to keep walking.  This annoyed Mr Beattie, and he turned around and came back.  She said that when he returned, he rubbed his hand along her daughter’s shoulder and arm and said “If I want to do this to your daughter, what are you going to do about it?”  Ms M said that she then “lost the plot” and told him to “f off”.  Her daughter also responded angrily to Mr Beattie’s actions.

[4]      Ms M said that Mr Beattie then began walking backwards and forwards along the street to and from the area where Ms M and her daughter were sitting.  This prompted angry verbal outbursts from Ms M and her daughter.  At some stage he also followed her when she went into the takeaway shop.  When Mr Beattie returned to their table on one of these occasions, Ms M said that he struck her a blow on the shoulder and chest area with his forearm.  He then ran across the road.  The blow to Ms M’s shoulder and chest area formed the basis of the first charge that Mr Beattie

faced.

1      New Zealand Police v Beattie DC Kaikohe CRI-2011-027-002413, 24 August 2012.

2      New Zealand Police v Beattie DC Kaikohe CRI-2011-027-002413, 24 August 2012.

[5]      After Mr Beattie ran across the road, Ms P came over to Ms M and her daughter to check that they were all right.  Friends of Ms M’s daughter also arrived, and they called the police.  When Mr Beattie saw this occurring, he confronted the girl who was calling the police. She then backed off.  Ms M said that she kept telling Mr Beattie to leave the scene and leave them all alone.

[6]      After checking to see that Ms M and her daughter were all right, Ms P went back across the road to keep an eye on Mr Beattie. When she saw the police officers arriving, she pointed them in the direction of Mr Beattie.  She said that Mr Beattie saw this, and came over to her.  He told her that she was a “disgrace”, and should not be there.  He then pushed Ms P in the chest.  At that point the police arrested Mr Beattie and took him to the police station. The second charge arose as a result of Ms P’s description of Mr Beattie pushing her on the chest.

The defence case

[7]      Mr Beattie gave evidence in his own defence.  He accepted that he had approached Ms M and her daughter as they sat at the table outside the takeaway shop.  He denied looking at them in a sleazy way.  As he approached them, he said that Ms M told him to “keep on walking” in an aggressive way.  This caused him to stop and ask why she had said that.  Mr Beattie said that, at that point, Ms M just snapped, and stood up from her chair ready to fight.  She then came striding very quickly towards him, swearing and yelling as she walked.  Mr Beattie said that Ms M said “I said keep on fucking walking mate” and then punched him in the head. Mr Beattie said that Ms M then “stayed right there in my face and kept going at me.” He said that at this point he began arguing with her.

[8]      He said that after a short time, however, he walked away down the street. As he did so, he passed two of Ms M’s daughter’s friends.  He heard Ms M tell one of the friends to call him a weirdo. This caused him to return and go back to Ms M and the girls.  A further argument ensued at that point.  Mr Beattie said that during this confrontation, Ms M’s daughter also punched him in the head.  He denied striking Ms M with his forearm at any stage during the confrontation, and also denied that he had touched Ms M’s daughter.

[9]      He accepted that he had walked backwards and forwards to and from the group of women on a number of occasions.   He said that he did this because he wanted to find out whether or not Ms M was telling the truth to Ms P and the other girls about what had really happened.

[10]     Mr Beattie said that he then noticed Ms P on the phone to the police, and that he asked her why she was doing that.   He said Ms P began following him as he walked away down the street.  He said that at one point they had “a few words together” in which he called her a disgrace.  He denied pushing her or assaulting her in any way prior to the arrival of the police.

The Judge’s decision

[11]     The Judge found both charges proved because he found Ms M and Ms P to be credible and reliable witnesses.   He accepted Ms M’s evidence that the incident began because Mr  Beattie had touched her  daughter’s shoulder  and  arm  whilst making an inappropriate comment.   This caused Ms M to react angrily.   He also accepted her evidence, supported as it was by Mr Beattie’s own evidence, that Mr Beattie left the scene only to return on several occasions.

[12]     The Judge was particularly impressed with Ms P’s evidence, and was unable

to follow Mr Beattie’s reasoning as to why he thought Ms P was a disgrace.

[13]     The Judge’s critical findings were as follows:3

[15]     I accept the evidence of Ms M supported by propensity evidence in relation to Ms P, that on the final time he walked past he did stick out his forearm and hit Ms M on the shoulder area.  At one point she described it as a clip, on another point as a king hit.  It was hardly a king hit.

[16]      I accept Ms P’s evidence that she was pushed in the chest.  I do not accept Mr Beattie’s assertion that he did not do that.  He was aware that she had gone down to discuss what had occurred at the [takeaway shop] with the woman there.  Here she was, as he is making his way home, directing the police towards him.  He accepts he spoke to her and called her a disgrace.  It is but a small step, in my view, a step he took to then push her to reinforce his point that she was a disgrace, in his eyes.

3      New Zealand Police v Beattie, above n 1.

The appeal

[14]     Although the notice of appeal contained several grounds, counsel for Mr Beattie ultimately pursued only one of these.   This arises out of the fact that the police had installed a closed-circuit television system to enable them to maintain surveillance over events occurring in the main street of Kawakawa.

[15]     Mr Beattie’s evidence was that on the journey back to the police station, one of the arresting officers, Constable Gorrie, told him that he (the constable) would see what the surveillance footage of the incident showed.  The constable also said that security cameras “don’t lie”.  Constable Gorrie accepted that he may well have said something along these lines to Mr Beattie during the journey back to the police station.

[16]     Constable  Gorrie’s  evidence  in  chief  about  the  security  footage  was  as follows:

Q.     We’ve heard some talk about the CCTV footage and whether that’s available or not, can you just tell us what your involvement or what efforts you made to obtain any CCTV footage of the incident was?

A.     Um, when we went back to the station, I just quickly, we were dealing with quite a few people, I quickly looked on the monitor which is at the  station just  to  confirm if  the  defendant  was  the  person  we’re talking about in the area, um, I quickly looked, saw that he was by the [takeaway shop], um, I saw him walking back and forth a couple of times, um, and then that was it.  I didn’t see anyone being assaulted or anything like that, but it was only a very quick look.

Q.     Did  at  some  stage  later,  or  tell  us  perhaps  who’s  responsible  for looking after the CCTV footage or administering the system, do you know?

A.     Looking after it, um, it’s a town camera, um, it’s in the police station, um, no the only thing I could say is that if we want to download things like that we can download it, it’s not always easy though, sometimes the monitor goes down.  Um, the system is unreliable.

Q.     Did you make efforts at a later stage to download from the hard drive the footage that you had cursorily looked at?

A.     I did, um, but the monitor only runs for probably about a month and I was two days out of that date of the incident so you couldn’t download it.

Q.     Has there ever, to your knowledge, been a hard copy or a disk made of the footage?

A.     No because I would have done that disk if it was.

[17]     When Mr Beattie cross-examined Constable Gorrie, the following exchange occurred:

Q.     And did you say to me, okay then, we’ll see what the surveillance footage is, security cameras don’t [lie], did you say that to me?

A.     I probably said to you, we’ll see what the witnesses or the victims have to say in the matter and also that yes there is security footage in town.

Q.     Okay, so you saw no assault apart from what [Ms M] said, you saw none of the rubbing whatsoever on when you watched CCTV for about 30 minutes?

THE COURT:

She said that that rubbing took place inside the [takeaway shop]?

CROSS-EXAMINATION CONTINUES: MR BEATTIE

Q.     Oh gosh, no, no, you saw none of that?

A.     From what little I viewed and I’ve said this to you before, is that I saw you coming back and forth to the [takeaway shop] to the door, back and forth, back and forth, back and forth, probably three times that all I saw, but you are talking about a very small bit of a thing that I never

– an instant that I never saw.

Q.     But no assault, no rubbing out on the street or anything like that?

A.     Yep, what I saw on that security footage was a very small amount and the answer is no.

Q.     Because when I was at the police station, you were on the CCTV, with about 25 to 30 minutes watching, and you came in and sat in with me and all you said to me was I kept going back, is that her?

A.     I wasn’t on the CCTV footage watching it for 20 minutes, I probably did come and say that, yes, you were there, I saw you in town.

Q.     But no assault, no rubbing or anything like that? A. No but I didn’t see any of that no.

Q.     And so you still charged me see, you still charged me with assault even though you watched the CCTV?

THE COURT:

He did charge you with assault based on the two ladies who came to the police station and said you did it.

MR BEATTIE:

After watching the CCTV there was no assault or rubbing or anything of the kind I was still charged, because that’s primary evidence against all these women’s statements is that CCTV, that’s number one, that’s the number one evidence the second thing – evidence is Boyd, he’s the second that we’ve seen that CCTV and I’ve asked plenty of times I send them plenty of letters for that disclosure of the CCTV copy and I haven’t got it.

CROSS-EXAMINATION CONTINUES: MR BEATTIE

Q.     You did not see me assault that woman, you saw me not rubbing her daughter or anything, what you saw is exactly what I said, you saw her come straight up to me and punch me with her right fist.  Did you see that?

A.      No.

Q.      Yes, prove it on CCTV man, you give me my disclosure.

[18]     The Judge did not consider that Constable Gorrie’s evidence took matters any

further for either party. He dealt with it as follows:4

[12]      Constable Gorrie did not really assist one way or another.  He saw some closed circuit television which was quickly deleted because that is the way  the  system worked  from one  or  two  security cameras,  which  only showed what is now accepted by all, Mr Beattie going backwards and forwards past these people.

[19]     Mr Beattie does not agree with the Judge’s assessment of the significance of the lost film footage.  He believes it would have demonstrated that he did not assault either Ms M or Ms P in the manner they described in evidence.  He contends that the unavailability of the evidence therefore rendered his trial unfair, because he was unable to use it to prove his innocence.

Relevant principles

[20]     The leading authority in this area is the decision of the Court of Appeal in R v

Harmer.5      The  appellant  in  that  case  alleged  that  a  miscarriage  of  justice had occurred in part because the police had carried out an inadequate scene investigation.

4      New Zealand Police v Beattie, above n 1.

5      R v Harmer CA324/02, 26 June 2003.

This had both contaminated the scene and caused material evidence to be destroyed.6

In dealing with this issue, the Court of Appeal said:

[87]      It is not of course the position that a criminal trial cannot proceed or must be regarded as unfair to the defence or in breach of the right guaranteed under s24(d) merely because certain material or testimony which might possibly have contradicted the Crown case is unobtainable or is no longer available or has been contaminated.  But what if the reason for the absence or contamination of evidence is the failure by the police to carry out an adequate investigation or a failure to preserve items which have come into their possession or which they could have secured?  Some guidance is to be found in the jurisprudence of the North American jurisdictions although the constitutional guarantees, while largely concerned with the same values, are not identical to the guarantees found in our Bill of Rights.

[21]     After considering authorities from the United States and Canada, the Court said:

[91]   In our view, there are two relevant considerations, namely whether the evidence has been lost because of acts or omissions by the police involving bad faith, and whether it is probable that the lost evidence would have been of real assistance to the defence in the circumstances of the particular case. The emphasis, we consider, should be upon the need for a showing by the accused or convicted person that it is more probable than not that the lost evidence would have been of real benefit to the defence because it would have created or contributed to creating a reasonable doubt. That is after all the fundamental question. The characterisation of the conduct of the police in this regard will not be determinative save that, if it appears that they were motivated by a desire to avoid having the evidence before the court or otherwise acted in bad faith, it may readily be inferred that the evidence would  have  been  helpful  to  the  defence.  But,  in  the  absence  of  such deliberate conduct or other bad faith by the police – which is the position in this case – the concern should be with the effect on the defence of the absence of the evidentiary material rather than with whether the police have been negligent. The particular significance of the missing evidence to the defence will necessarily have to be considered in light of all the available evidence. When, as here, the issue arises on an appeal from a conviction, the ultimate question will be whether the unavailability of the evidence to the defence appears to have given rise to a miscarriage of justice.

[22]     Counsel for Mr Beattie has helpfully referred me to several authorities in which the principles identified in Harmer have subsequently been applied by both

this Court and the Court of Appeal.7

6      Ibid, at 80.

7      See for example R v BJ HC Auckland CRI-2009-092-9763, 9 November 2011; R v Dawson CA430/03, 17 June 2004; R v Peacock CA451/05, 4 September 2006; R v M (CA77/07) [2007] NZCA 217; R v Bain HC Christchurch CRI-1994-012-217294, 2 March 2009.

This case

[23]     Counsel for Mr Beattie urges me to find that the police acted in bad faith in the present case because of Constable Gorrie’s delay in attempting to download the footage from the closed circuit television system. At the very least, counsel contends that his actions were grossly careless or negligent, and that this would also be sufficient to satisfy the test articulated in Harmer.

[24]     I agree that it is unfortunate that Constable Gorrie failed to download the film footage within the one month period in which it was available.   The fact that he failed to do so has obviously persuaded Mr Beattie that the constable acted deliberately so as to ensure that the footage would not be available to the defence. The evidence given at trial does not, however, go so far as to suggest the Constable Gorrie acted in bad faith.  Before that could be shown, the Court would need to be satisfied that the constable knew in  November 2011  that the footage would  be deleted within one month after it was recorded, and that he deliberately refrained from attempting to download it until after he knew it had been destroyed.  The evidence does not go that far.  The constable was never asked about either of these issues.  Nor was he asked the reasons for the delay in attempting to download the footage.

[25]     For  that  reason  it  would  be  inappropriate  for  me  to  conclude  that  the constable acted in bad faith by deliberately ensuring that the footage was destroyed. Questions remain, however, as to why the constable did not take steps earlier to view the footage, or to ensure that it was downloaded and preserved.  He was the person who first suggested that the footage might be of assistance.  In doing so he obviously appreciated that it might confirm whether or not Mr Beattie had assaulted the two complainants in the manner they alleged.  Mr Beattie had denied from the outset that he had assaulted either of the complainants, so the issue at trial was always going to be one of credibility.   In those circumstances the footage may have provided important assistance to either the prosecution or the defence.

[26]     Moreover, the constable’s examination of the footage on 24 November 2011

was, by his own admission, cursory.   From what he saw, however, there was no

physical contact between Mr Beattie and the two complainants. One might therefore reasonably have expected him to ensure that the footage of the day’s events was downloaded and stored until such time as he could view it and determine whether it provided any assistance to either the prosecution or the defence. The reason why the constable did not take this step has never been explained.

[27]    The explanation might be very straightforward.  By way of example, the constable may not have been aware in November 2011 that he needed to act quickly because the footage would be deleted automatically after a month.   He may only have learned of that fact after he tried unsuccessfully to download it.  Alternatively, the constable may have been away on leave or otherwise absent from the station during the period following the incident on 24 November 2011. Another explanation may be that other matters having a greater priority than this investigation occupied his time during the month following the incident.  All of these possible explanations are  matters of  speculation, however,  because the  constable was  never  asked  to explain why he did not take more timely steps to preserve the footage.

[28]     The fact that Mr Beattie did not put these matters to the constable at the hearing before Judge Macdonald should not determine the outcome of the appeal, because he did not have the benefit of counsel on the first day of the hearing.  He was therefore required to cross-examine Constable Gorrie himself.  Although Mr Beattie clearly recognised the potential significance of the lost film footage, he would not have been alive to the intricacies of the argument now advanced on his behalf.  As a result, his cross-examination of Constable Gorrie was not as focussed as it would have been if conducted by competent counsel who appreciated the nature of the test identified in Harmer.

[29]     The issue of bad faith is not the only issue Mr Beattie is required to establish in terms of Harmer.  In addition, he must also show that it is more probable than not that the footage would have been of real benefit to the defence because it would have created, or contributed to creating, a reasonable doubt.  This is a difficult hurdle for Mr Beattie to overcome, because it is now impossible for him to show that the film footage would probably have shown that he did not assault either complainant.  I consider, however, that he can point to some evidence that assists him in this context.

He is entitled to rely upon the fact that the constable did not see any physical contact between Mr Beattie and the two complainants when he viewed the footage, albeit briefly, at the police station on 24 November 2011.

[30]     Ordinarily, these factors would be sufficient to persuade me to remit the charges to the District Court for rehearing on the point of whether or not the police acted in bad faith in allowing the film footage to be destroyed.  In the circumstances of the present case, however, I do not consider that to be warranted.   First, the charges have already occupied two full hearing days in the District Court as well as a hearing in this Court.  Secondly, the conduct giving rise to the charges, whilst unsavoury, nevertheless falls towards the lower end in terms of seriousness for offending of its type.  At sentencing, the Judge aptly characterised Mr Beattie’s conduct on 24 November 2011 as a reasonably low level assault that was “not a good

look” for the town of Kawakawa.8

[31]     I  have  therefore  concluded  that  any  further  devotion  of  scarce  judicial resources to this matter would be a disproportionate response to the overall significance of the case. As a result, I have concluded that matters should be brought to an end at this point.

Result

[32]     The appeal against conviction is allowed.  The convictions are set aside and the sentences imposed on Mr Beattie are quashed.

[33]     Finally, I record my appreciation to counsel for the research they undertook at my request and the helpful submissions they filed after the hearing on 14 June 2013.

Lang J

Solicitors:

Crown Solicitor, Whangarei
Counsel:

R Bowden, Whangarei

8      New Zealand Police v Beattie, above n 2 at [1].