Bond v Police

[2024] NZHC 3226

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000033

[2024] NZHC 3226

BETWEEN

DANIEL MICHAEL BOND

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

21 October 2024

Appearances:

A Tupuola for Appellant (by VMR)

J Johnson-Aufa’i for Respondent (by VMR)

Judgment:

1 November 2024

JUDGMENT OF VENNING J

[Appeal against conviction and sentence]

This judgment was delivered by me on 1 November 2024 at 11.30 am

Registrar/Deputy Registrar

Date……………

Solicitors:           Marsden Woods Inskip Smith, Whangārei Counsel:      A Tupuola, Barrister, Kerikeri

BOND v NEW ZEALAND POLICE [2024] NZHC 3226 [1 November 2024]

Introduction

[1]Daniel Bond faced the following charges in the District Court at Whangārei:

(a)intentionally damaging a body camera, the property of Whangārei District Council;

(b)fighting in a public place;

(c)assaulting a police constable x2;

(d)resisting a police constable;

(e)failing to supply particulars; and

(f)failing to supply fingerprints.

[2]        Following a defended Judge-alone trial in the District Court at Whangārei, Judge P R Rzepecky issued a judgment on 8 April 2024 in relation to the charges.1 The Judge dismissed the charge of intentionally damaging the body camera, the property of the Whangārei District Council, under s 147 of the Criminal Procedure Act 2011 (CPA) and found Mr Bond not guilty on the charge of fighting in a public place. However, Judge Rzepecky convicted Mr Bond on the five remaining charges relating to his interaction with the Police. Subsequently, the Judge sentenced Mr Bond to six months’ supervision and 140 hours community work.2

Appeal grounds

[3]        Mr Bond appeals against the conviction and sentence. Initially, Mr Bond raised three points in support of the appeal:

1      New Zealand Police v Bond [2024] NZDC 5364.

2      New Zealand Police v Bond [2024] NZDC 8503.

(a)First, the Judge could not have found the Police witnesses credible considering the contradictions between their written and oral evidence at trial in comparison to the CCTV footage.

(b)Next, his previous lawyer failed to call an eyewitness for the defence. This witness was available and could be seen in the footage.

(c)Finally, the trial was part heard over three dates so that a miscarriage of justice has occurred.

Preliminary matters

[4]        Prior to the hearing of the appeal, Ms Tupuola filed a memorandum confirming that Mr Bond abandoned the proposed ground based on a challenge to trial counsel’s competency and the failure to call the defence witness.

[5]        Ms Tupuola did not advance any submissions based on the third ground. She was correct not to pursue it. There is no force in it. The hearing was adjourned from time to time as there was insufficient Court hearing time to complete the proceedings on the day allocated. Section 167(1) of the CPA provides that:

Any proceeding may from time to time be adjourned by a judicial officer to a time and place then appointed.

As the trial was resumed before the same trial Judge and was completed within seven months, there is no miscarriage of justice by reason of the trial being heard over three separate days.

[6]        The focus of the appeal was on the evidential sufficiency and the Judge’s assessment of the evidence, particularly his reliance on the credibility and reliability of the Police witnesses given what Ms Tupuola described as the inconsistencies in that evidence.

Background

[7]        The Judge described the general background to the incident in the following way:

[2]        On 18 June 2022 in the early hours of Saturday morning, the police were alerted to an incident outside The Fox Bar Tavern at the intersection of Water Street and Bank Street in central Whangārei. The police were responding to a report of fighting amongst patrons of the bar outside on the street. The police officers who attended very quickly identified the two men involved.

[3]        Constable Jellick took one of the men away from the scene. She described him as upset and crying with a grazed face. She took him further up Bank Street and advised him to go home. She then went back to the scene at the intersection after being called back on by Constable Goodman [sic] by radio.

[4]        The other person involved in the fight was the defendant Mr Bond. He had a male friend with him. When Constable Jellick returned she noted that he was having a reasonably heated conversation with Sergeant Curnow. The point of this exchange was that Mr Bond was asking Sergeant Curnow to identify himself through his police badge number and name. Apparently Sergeant Curnow’s number was not on his epaulets. There were a number of other members of the public standing  around,  some  verbally  egging  on Mr Bond and the other parties. The situation was tense. People had spilled out onto the road. At one stage, a car had to go onto the wrong side of the road to avoid the crowd. Sergeant Curnow advised Mr Bond and his friend to leave and go home. Sergeant Curnow attempted to withdraw back to the police car. However, Mr Bond continued to aggressively ask for Sergeant Curnow’s badge number, apparently not satisfied with the answer he received from him.

[5]        The police officers, including Constable Jellick, attempted to  get  Mr Bond and other members of the public to move on. Constable Jellick was mainly focussed on trying to get Mr Bond to move on.

[6]        Constable Jellick says that Mr Bond assaulted her by grabbing her hand and bending back her fingers. She then attempted to arrest Mr Bond. The police allege that he vigorously resisted arrest. Ultimately, he was taken to the police station and processed. In the course of that processing, the police allege that he assaulted Constable Brown and consistently refused to give required identifying details sought by the police including fingerprints.

[7]        Mr Bond denies that he was engaged in fighting. He says he was attacked by another man and backed up down the road and that he only did enough to defend himself rather than engaging in a fight. Furthermore, he denies assaulting Constable Jellick and says that he was wrongfully arrested by the police, detained, and taken to the police station. The main thrust of his defence is that the assault on Constable Jellick never happened and therefore there was no good reason for arresting him. As a result, at no time were the police acting lawfully in the course of their duty. Similarly, they were not entitled to seek Mr Bond’s identification details.

[8]        It was a feature of this trial that part of the events were recorded by cameras. In the Water Street/Bank Street intersection area, there was a CCTV camera operating. Mr Barclay, the security guard from City Safe was wearing a body camera. Furthermore, there was a CCTV camera recording events at the sally port at the police station.

District Court decision

[8]    In his fully reasoned judgment delivered on 8 April 2024, Judge Rzepecky correctly directed himself as to the requirements of a criminal prosecution. In particular, he addressed the requirements to find the charges against the defendant, Mr Bond, proved, including the tripartite direction because Mr Bond had given evidence.

[9]    The Judge then dismissed the charge of wilful damage, accepting there was no evidence to support that charge. As to the charge of fighting in a public place, while there was an instance involving Mr Bond and another person, the Judge considered that Mr Bond’s actions appeared reasonable to avoid being punched by the other man. He could not be sure the Police had proved beyond reasonable doubt Mr Bond was not acting in self-defence and for that reason found him not guilty of the fighting charge.

[10]   The Judge then went on to consider the evidence relating to the first charge of assaulting a police officer. The Judge reviewed the evidence of the police officer in question, Constable Jellick; Constable Goodmon, who arrived at the scene with Constable Jellick; Sergeant Curnow, a police officer who was initially dealing with Mr Bond; Mr Barclay; and the CCTV and video evidence (including footage from a security officer’s bodycam).3 The Judge then considered Mr Bond’s evidence.

[11]   Constable Jellick said that she attempted to shepherd Mr Bond off the road. She said she raised one hand in front of her and walked him back. She said something to the effect of “move”. She had moved Mr Bond off the road with her arm out and her hand up. At that stage, Mr Bond grabbed her hand. She said he grabbed the first three fingers, index, middle and ring finger, and bent them back. He reached forward, grabbed her hand, pushed it towards herself and bent the fingers back towards her. It was a swift movement lasting only about two or three seconds; however, she suffered significant pain from having her fingers bent back. Mr Bond’s evidence was that Constable Jellick was attempting to push him back. He told her she must not touch him, but she kept pushing him and just started grabbing him. Mr Bond said he maybe touched her, trying to brush her hand away with the back of his hand but he did not

3      Collectively referred to as CCTV footage — which includes audio where recorded.

believe  he  even touched her.    He adamantly denied grabbing Constable Jellick’s fingers and bending them back.

[12]   Mr Bond also denied that he was ever told he was under arrest for assault. He said the first time he was told he was under arrest was when he was on the ground and Sergeant Curnow told him “You are under arrest”.

[13]   Ultimately, the Judge accepted the evidence established that Mr Bond had grabbed and bent Constable Jellick’s fingers back as she said and that he was not acting in self-defence when he bent the Constable’s fingers back, so the charge was proved.

[14]   On the charge of resisting arrest, the Judge noted that whether a person is arrested by the Police or not is a matter of fact. The law requires no particular form of words. Either by words or conduct the arresting officer must make it clear to the person being arrested that they are no longer free to go wherever they please, and that the person being arrested knows that they are no longer free to leave. The Judge was satisfied that, having found there had been an assault on the police officer by Mr Bond, Constable Jellick had ample justification to arrest him. He found that Constable Jellick advised Mr Bond he was under arrest. She attempted to physically restrain him. The Judge found that Mr Bond was also told he was under arrest by Sergeant Curnow during the struggle, but he continued to resist. It must have been clear to him that he was under arrest and not free to leave. He actively resisted Police as he accepted. Accordingly, the Judge found the charge proved.

[15]   The second charge of assault on a police officer was said to have arisen when Mr Bond was taken back to the police station and was being processed in the sally port. Constable Brown was in the process of searching Mr Bond and attempted to remove the cord from the front of Mr Bond’s tracksuit pants. Mr Bond continued to resist so that the use of a cutting tool was required to remove the cord. During this exercise, Constable Brown said that Mr Bond attempted to kick him in the face. The Constable managed to move his head out of the way in time, but the kick connected with his leg. The incident is captured on the CCTV. Mr Bond did not deny that his leg kicked out at Constable Brown. He gave evidence he had previously had an incident with Police where he had been strip-searched and was suffering from PTSD.

As a result, that caused him to lash out with his foot. The Judge was satisfied from the evidence of Constable Brown and the CCTV footage from the sally port that    Mr Bond’s kick was directed at Constable Brown and clearly intentional. He found the charge proved beyond reasonable doubt.

[16]   The only issue in relation to the remaining two charges of failing to provide fingerprints (under s 32(4) of the Policing Act 2008), and failing to give his full name, date of birth and address (under s 33 of the Policing Act) was whether Mr Bond was in lawful custody of the Police at the time. Given the previous findings, the Judge was satisfied beyond reasonable doubt that Mr Bond was in lawful custody. For those reasons he found the charges proved.

Approach to the appeal

[17]   Section 229 of the CPA provides for a right of appeal against conviction. Section 232 provides:

232     First appeal court to determine appeal

(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—

……

(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)in any case, a miscarriage of justice has occurred for any reason.

(3)The first appeal court must dismiss a first appeal under this subpart in any other case.

(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[18]   In this case the appellant relies on s 232(2)(b) of the CPA. The appeal is essentially advanced on the basis that the District Court Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.

[19]   The onus is on the appellant to show that an error has been made and that a miscarriage of justice occurred. The appellant must satisfy the appeal court that it should differ from the decision under appeal.4

[20]   In Sena v New Zealand Police, the Supreme Court identified the requirements for a Judge-alone trial:5

[36]      As will be apparent, we broadly accept the second line of argument just referred to. We see s  232(2)(b) as  premised  on  the  assumption  that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. As we explain later in these reasons, this case involves such a misapprehension.

[37]      In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.

4      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].

5      Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575.

Later the Court noted the advantages the trial judge has in relation to some issues:

[40] The second consideration, in effect the other side  of the  coin to the first, is that appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.

Appellant’s submissions

[21]   Ms Tupuola confirmed that the focus of the appeal was whether the reason for the arrest was disorderly behaviour or assault on Police, and whether the Police had proved beyond reasonable doubt that an assault on Constable Jellick as alleged had occurred. She criticised the Judge’s comment that:6

Having heard Constable Jellick and Constable Goodman [sic] give evidence, I am satisfied that they are reliable, honest witnesses.

She submitted the Judge’s reasoning consisted of a conclusory credibility preference, which failed to provide for the reasoned resolution of significant evidential disputes which had resulted in a misapprehension of the evidence heard and seen.

[22]   Ms Tupuola submitted that the CCTV footage of the incident did not show the assault alleged by Constable Jellick. Further, although Constable Jellick said in evidence that she arrested Mr Bond for assaulting her, the first person the video captured audibly telling Mr Bond he was under arrest said words to the effect that he was under arrest for disorderly behaviour. At no stage was there any record from the CCTV footage audio or the body camera footage audio where it could  be heard     Mr Bond being told he was under arrest for assault. She submitted that Constable Jellick’s evidence was not consistent with CCTV footage and should have raised some doubt at least as to the offence that he was arrested on. The CCTV footage should have raised a reasonable doubt as to whether Constable Jellick’s evidence was reliable and/or credible.

6      New Zealand Police v Bond, above n 1, at [44].

[23]   Next, Ms Tupuola noted that Sergeant Curnow conceded he did not see the alleged assault on Constable Jellick. Also, while he gave evidence that he heard Constable Jellick yell out words to the effect of “Ouch, you just assaulted me”, Constable Jellick did  not recall saying those words, or words along those lines.     Ms Tupuola noted there was no evidence from the audio and the footage consistent with, or corroborating, Sergeant Curnow’s evidence. She submitted his evidence was of limited reliability or assistance to the prosecution case.

[24]   In relation to Constable Goodmon, Ms Tupuola submitted that her evidence that she saw Constable Jellick’s fingers being bent back by Mr Bond and that she heard Constable Jellick say to Mr Bond he was under arrest for assault on Police, sat at odds with the CCTV footage where Constable Goodmon can be heard saying that Mr Bond was under arrest for disorderly behaviour. Ms Tupuola submitted the evidence was inconsistent with the CCTV footage and should have left the Court unsure. She submitted the Judge’s attempt to reconcile the evidence on the basis of the arrest according to the Police evidence as opposed to what was heard, or not heard, from the CCTV created a real risk that the outcome of the trial was affected.

[25]   As to Mr Barclay’s evidence, Ms Tupuola submitted it consisted of major inconsistencies. Under cross-examination he conceded his evidence-in-chief about the way Mr Bond had approached Constable Jellick was not correct. He also confirmed he did not see the alleged assault on Constable Jellick. Mr Barclay actually obscured the camera for a shorter period of time than that which Constable Goodmon alleged, namely the time when the Police alleged Mr Bond grabbed Constable Jellick’s fingers for a few seconds.

[26]   Ms Tupuola submitted that, if the original arrest was unwarranted, then the convictions on the charges that followed could not stand.

[27]   As to the assault on Constable Brown in the sally port, Ms Tupuola submitted that given Mr Bond’s evidence that he denied intentionally kicking Constable Brown, the Judge should have been left with a reasonable doubt whether the requisite mental element was present.

[28]   In summary, Ms Tupuola submitted Mr Bond’s evidence was consistent and in line with the CCTV footage produced by the Police, namely that he was walking backwards, and it was Constable Jellick who was approaching him. He also said it was Sergeant Curnow that told him he was under arrest and that was the first he heard about that. She submitted that the Judge should have been left with at least a reasonable possibility that Mr Bond’s evidence might be true given it was consistent with the footage.

Analysis

[29]   I agree with the submission that the CCTV footage, particularly the body camera footage of Mr Barclay’s colleague, a City Safe worker, is important evidence. That footage in particular shows Mr Bond’s confrontation with the Police that evening. It confirms that Mr Bond was acting in an obnoxious and belligerent way towards the police officers. It also shows he was affected by alcohol and continued to refuse to leave the scene before he made whatever point he seemed to consider he was entitled to make despite the efforts of his companions to have him leave and to settle him down. However, acting obnoxiously and belligerently is not an offence.

[30]   More relevantly and importantly, the CCTV footage shows the lead-up to the assault described by Constable Jellick in her evidence. Constable Jellick can be seen to approach Mr Bond with her hand in front of her. She attempts to have Mr Bond back away and leave the scene. Mr Bond is seen to react to that and expressly says “do not touch me, do not touch me”.

[31]   The assault that Constable Jellick describes is, however, not directly visible on the CCTV footage as what occurred immediately following the initial interaction between Constable Jellick and Mr Bond is obscured by Mr Barclay. However, the CCTV footage does confirm that very shortly, almost immediately in fact, after Constable Jellick initially approached Mr Bond with her arm in front of her and her hand up at his chest, there is a scuffle with the police officers taking Mr Bond to the ground and arresting him. Up until that moment, the police officers including Constable Jellick had been exercising a considerable  degree of  restraint,  despite  Mr Bond’s boorish behaviour. There was no reason for that approach to have suddenly

changed unless, as Constable Jellick said, she had been assaulted and her fingers hurt by Mr Bond.

[32]   It follows that I do not accept Ms Tupuola’s submission that Constable Jellick’s evidence was, at the very least, inconsistent with the CCTV footage produced. Constable Jellick’s narrative of the incident was consistent with the CCTV footage insofar as it captured her initial interaction with Mr Bond and then the sudden subsequent scuffle, even though the actual assault she gave evidence of was not visible as the parties were at the time, obscured. It was open to the Judge as the fact-finder in this case to draw an inference from the surrounding circumstances and the parties’ actions leading up to and immediately following the incident, that Mr Bond had assaulted Constable Jellick in the way she described, and the immediate and almost spontaneous reaction of her and her colleagues was in direct response to that assault on her.

[33]   I accept that the Judge properly considered the evidence of the constables,  Mr Barclay and Mr Bond, and considered the points that Ms Tupuola (who was not trial counsel) now makes on behalf of Mr Bond as to the inconsistencies, such as they were. The Judge gave proper and sufficient reasons for rejecting Mr Bond’s evidence and for preferring to accept the oral evidence of the key prosecution witnesses on the important points at issue. Despite Ms Tupuola’s criticism of the Judge’s comment as to accepting the credibility and reliability of the police officers, that was not a conclusory statement without any reasons. It was a statement made following his discussion and consideration of the appropriate evidence. The Judge was, in the circumstances, entitled to find that Constable Jellick’s evidence was given honestly and reliably and was supported by a number of other witnesses and the CCTV footage.

[34]   Further, the discrepancies such as they  were,  are  relatively  insignificant. Mr Barclay accepted in cross-examination he was mistaken about Mr Bond lunging at Constable Jellick. It was never part of the Police prosecution case that Mr Bond had lunged at Constable Jellick. Mr Barclay maintained that he saw Mr Bond push Constable Jellick’s hand away after the initial interaction with their hands, which is consistent  with  Mr  Bond  grabbing  Constable  Jellick’s  fingers  as  she described.

Importantly, Constable Jellick described the incident as only taking a matter of two to three seconds.

[35]   The Judge also considered that the CCTV footage audio did not pick up on Constable Jellick telling Mr Bond he was under arrest for assaulting Police. I agree with the Judge’s assessment that:7

… could be explained by the loud background noise and/or the fact that the camera and its recorder would have been obscured by bodies between the security guard and Constable Jellick who would have had her back to the camera.

[36]   Relevantly, both Mr Barclay and Constable Goodmon gave oral evidence they heard Constable Jellick tell the appellant he was under arrest, although Mr Barclay could not confirm that he heard why Mr Bond was under arrest. In evidence-in-chief, Constable Goodmon said she heard Constable Jellick tell the appellant he was under arrest for assaulting the Police, but under cross-examination, she accepted that she could be heard saying that Mr Bond was arrested for disorderly behaviour. However, that was after the incident, and she recorded in her notebook that Mr Bond was arrested for assault. She was clear that she witnessed Mr Bond’s assault on Constable Jellick. I also accept the Police submission that while the Judge did not explicitly address whether he preferred the evidence of Sergeant Curnow or Constable Jellick in relation to what Sergeant Curnow said he heard, there is nothing in that as the Judge found that Constable Jellick did inform Mr Bond he was under arrest.

[37]   The Judge’s reasoning in relation to the assault on Constable Brown cannot be challenged.

[38]   Overall, I accept the Judge properly directly himself and, having done so, then responsibly engaged with the evidence. Having reviewed that evidence, including the CCTV footage, this Court is satisfied that the Judge was correct to find the assault on Constable Jellick made out as she described it and further, that Mr Bond was properly arrested for that assault. There can be no sensible challenge to the clear evidence of

7 At [39].

the subsequent assault on Constable Brown at the sally port. It follows the convictions for the remaining charges were also sound.

Result

[39]   For the above reasons the appeal against the convictions must be dismissed. Ms Tupuola did not advance any further submissions in relation to sentence. The sentence of supervision and 140 hours’ community work was well open to the Judge.

[40]The appeal against convictions and sentence are dismissed.

Venning J