Bowler v Police
[2023] NZHC 1145
•12 May 2023
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2022-476-09
[2023] NZHC 1145
BETWEEN STUART FREDERICK BOWLER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 May 2023 Appearances:
Appellant in person
CA O’Connor for the Respondent
Judgment:
12 May 2023
JUDGMENT OF GRICE J (conviction appeal)
Solicitors:
Gresson Dorman & Co, Timaru
BOWLER v NEW ZEALAND POLICE [2023] NZHC 1145 [12 May 2023]
Introduction
[1] The appellant was convicted on 5 August 2022 in the Oamaru District Court1 of assaulting a police officer acting in the lawful execution of his duty, with the intent to obstruct the execution of that duty.2 The appellant was sentenced to five months’ imprisonment in relation to this charge.3
[2] Mr Bowler appeared in person in support of his appeal against conviction and sentence. As I understand it he has now served his sentence.. Pursuant to a minute of Osborne J dated 3 May 2023, Mr Bowler was given an indication that if he did not file and serve his written submissions by 4 May 2023 he could anticipate that the presiding judge would provide him with a maximum of 10 to 15 minutes to speak to his appeal grounds. The Judge noted that the respondent for the time being was not required to file and serve written submissions but the Judge requested the Crown file submissions and responses expeditiously as possible.
[3] In the event Mr Bowler did not file any written submissions in support of the appeal, but had received a copy of the respondent’s submissions filed in anticipation of responding to submissions by Mr Bowler. Mr Bowler had, however, filed a copy of the complaint he had made to the Independent Police Conduct Authority in July 2020, to which I refer below.
[4]Mr Bowler spoke to the appeal in his oral submissions.
Background to the offending
[5] On 28 October 2021, Senior Constable Peter Scott saw the appellant travelling along a road in Kurow. He activated the red and blue flashing lights and siren of his police car and followed the appellant into the carpark behind the Kurow Hotel. Both got out of their cars and the senior constable advised the appellant he had a warrant for the appellant’s arrest for failing to appear in court and that the appellant was under arrest.
1 Police v Bowler [2022] NZDC 18534 [conviction decision].
2 Crimes Act 1961, s 192(2) – maximum penalty three years’ imprisonment.
3 Police v Bowler [2022] NZDC 14959 [sentencing decision]
[6] The evidence was that there was a protracted scuffle between the two, which lasted for some 15 to 20 minutes as the senior constable attempted to arrest the appellant, with the appellant resisting. The appellant was seen to be variously flailing his arms around, shoving the senior constable in the chest and face and grabbing his arms, hitting the senior constable and scratching his face, causing scratch marks and cuts to his face, kicking him in the leg, and spitting at him.
[7] The senior constable sprayed the appellant with pepper spray at least twice and tackled him to the ground. The senior constable shoved the appellant onto a bench outside the hotel, and after a time two local men came to the senior constable’s assistance and helped him to apply handcuffs to the appellant.
[8]The appellant denied the allegations.
District Court decision
[9] In the District Court, the Judge looked at whether on the evidence the police had called each of what he considered to be the essential elements of the offence were proved.4
[10] The Judge noted the appellant accepted that any kicking, hitting or spitting would have been an assault.5 The Judge considered the complainant’s warrant card, photo ID, police identification, the uniform he would have been wearing at the time and evidence that he had been a sworn constable for some 22 years and was satisfied beyond reasonable doubt that the complainant was a sworn police constable at the relevant time.6
[11] Turning to whether the appellant intended to obstruct the senior constable in the execution of his duty, the Judge noted the appellant had acknowledged that the senior constable had told him that he had a warrant for his arrest, and found that the senior constable had lawful authority to action the arrest.7 The senior constable was
4 Conviction decision, above n 1, at [7].
5 At [8].
6 At [9]–[11].
7 At [12]–[13].
therefore entitled to execute the warrant and the Judge was satisfied he was acting in the execution of his duty at the time of the event.8
[12] Turning to whether there was an assault, the Judge noted that in addition to the senior constable’s evidence, he also had the independent evidence of two other witnesses, Mr Kerr and Ms McCosker.9 The Judge noted Mr Kerr’s evidence that he heard the senior constable say the appellant was under arrest, saw arms flailing and the handcuffs in the hands of the senior constable. The Judge considered the kicking, hitting or flailing around would have been sufficient at that point to constitute an assault at a low level.10
[13] The Judge then turned to the evidence of Ms McCosker, who said she saw the appellant strike the senior constable to the face and kick the senior constable.11 The Judge described Ms McCosker as an independent witness, having no benefit in the proceedings at all, said there was no challenge to her reliability or credibility and accepted that her evidence seemed to be truthful and honest.12
[14] By contrast, the Judge considered the appellant’s evidence denying the allegations was not credible.13 He found it was inconsistent with the events which occurred as had been described in the evidence given by the two independent witnesses.14 He rejected the appellant’s evidence that the spitting was to remove the pepper spray from his mouth, noting Ms McCosker’s clear evidence it was a deliberate spitting action.15
[15] The Judge was therefore satisfied the police had proved that the appellant did assault the senior constable by hitting, kicking and spitting at him.16
8 At [14].
9 At [15].
10 At [16].
11 At [19].
12 At [21].
13 At [20].
14 At [20].
15 At [23].
16 At [22].
Approach to appeal
[16] The Court must allow an appeal against a decision of a judge in a judge-alone trial if the Court is satisfied that the judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason.17 The Court must dismiss the appeal in any other case.
[17] A miscarriage of justice is any error, irregularity, or occurrence in relation to or affecting the trial that has created a real risk the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.18 A miscarriage of justice is “more than an inconsequential or immaterial mistake or irregularity”.19 Rather, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate court must condemn the trial as unfair and quash the decision.20
[18] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.21 The appellant does not have to establish that the verdict was “actually unsafe” but rather that there is a real possibility the verdict would be unsafe.22 To establish a “real risk” that the outcome was affected, “something more” than a simple disagreement with a judge’s factual assessment is required.23
[19] In considering a conviction appeal from a judge-alone trial, the appellate court must form its own independent judgment on the merits of the appeal.24 If an appellate court “comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.”25 However, the appellant bears the onus of persuading the court to reach a different conclusion and in discharging that onus must
17 Criminal Procedure Act 2011, s 232(2)(b)–(c).
18 Section 232(4).
19 Matenga v R [2009] NZSC 18 at [30].
20 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
21 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].
22 At [110].
23 Gotty v R [2017] NZCA 528 at [15].
24 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
25 At [38].
identify the respects in which the judgment under appeal is said to be in error.26 Additionally, in determining whether the judgment was wrong, the appellate court must take into account any advantages a trial judge may have had.27 Where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise customary caution, as the trial judge has the advantage of being able to form a view of the witnesses, and is better placed than an appellate judge to determine questions of fact based on contested oral evidence.28
[20] An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.29 The Court must dismiss the appeal in any other case.30 An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.31 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.32
Discussion
[21] As noted, Mr Bowler filed with the court a copy of a complaint he had made to the Independent Police Conduct Authority in July 2020 concerning his being trespassed or being treated as a trespasser by the police. The location is not important to this appeal. He indicated in his oral submissions that his appeal was based on the fact that the Judge accepted the evidence of the senior constable and he should not have. Even when invited by me to comment on the evidence of the other witnesses, Mr Bowler did not comment or criticise the evidence of Ms McCosker or the other lay witness.
[22] Mr Bowler said it was a requirement for New Zealand police officers to wear a body camera. The senior constable said in his evidence he was not wearing a body
26 At [38].
27 At [38]
28 At [38] (citing Austin, Nichols, above n 24, at [13]), [39] and [40].
29 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
30 Criminal Procedure Act, s 250(3).
31 Tutakangahau, above n 29, at [36].
32 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 29, at [36].
camera and never wore one. The evidence was that there was no footage taken by any body camera. Mr Bowler said this supported his case.
[23] Mr Bowler also indicated he had reason to believe that the senior constable was not a police officer, as some years earlier the senior constable had told him he had been “fired” from the police. Therefore Mr Bowler said he did not believe the complainant could have been a police officer at the time of the alleged arrest. He also pointed out the lack of a reference to a badge number or a badge. However, it appears that Mr Bowler subsequently acknowledged that the senior constable was a police officer. The officer had the accoutrements of the position, including the police car and the fact that he was in a police uniform.
[24] Mr Bowler also indicated he had filed a complaint under the Independent Police Conduct Authority Act 1988, which he read out and a copy of which was before me dated 15 July 2020. This related to an incident when he was “in the area and looking at the mountain”. He explained later in the day when he was at the hotel (presumably the hotel at which the altercation with Senior Constable Scott occurred on 5 August 2022-although that detail is not relevant to the appeal) for “ski club reasons”. This apparently led to an allegation that Mr Bowler was trespassing, which is related to the subsequent events which are the subject of the conviction. Mr Bowler also indicated his car had been taken due to the alleged trespass, when he was not trespassing and he could prove he was not on the list of trespassers which was in place.
[25] Mr Bowler indicated that he had initiated various steps, including a request under the Official Information Act 1982 for relevant information and had filed proceedings, including a civil claim relating to the trespass allegations.
[26] However, none of these matters go to the merits of the appeal, nor could Mr Bowler point to any error by the Judge, other than wrongfully accepting the evidence of Senior Constable Scott.
[27] Mr Bowler is unhappy about his interactions with the senior constable. He asked that the court make a declaration that Mr Bowler had been “unlawfully trespassed”. I understand that this is referred to the incident the subject of the
complaint to the Independent Police Conduct Authority. I explained to Mr Bowler that such a declaration was outside the jurisdiction of this court on appeal.
[28]I now turn to deal with the appeal.
[29] In Waaka v Police, concerning the similar offence of assaulting a constable in the execution of their duty, the Court of Appeal held that mens rea must go to all the ingredients of the offence.33 The prosecution must prove that the defendant knew the person assaulted was a police officer and knew they were acting in the execution of their duty, or that the defendant wilfully shut their eyes to these possibilities or was indifferent as to whether or not they were the truth.34
[30] As the Court there noted, a defendant’s knowledge of these factors may be assumed unless there is a foundation in the evidence for a contrary view.35 It is no defence that the defendant might have entertained an incorrect understanding of the extent of a constable’s powers.36
[31] In this case I am satisfied the Judge noted the correct legal principles regarding the onus and standard of proof required in a criminal prosecution. The Judge referred throughout to the burden of proof being on the prosecution throughout and the appellant had nothing to prove.37
[32] The Judge correctly identified the elements of the offence and assessed the evidence in relation to each of the required elements.
[33] The Judge accepted the evidence of the complainant, which was corroborated in large part by the two independent witnesses. The Judge was entitled to do so and he did not make any mistake which would ground an appeal against conviction in rejecting the evidence of the appellant. The evidence supports the findings made by the Judge as to the elements of the charge being made out in all respects.
33 Waaka v Police [1987] 1 NZLR 754 (CA) at 759.
34 At 759.
35 At 759.
36 At 759.
37 See for example at [2] and [7] of the conviction decision, above n 1.
[34] In considering whether the appellant intended to obstruct the senior constable in the execution of his duty, the Judge ought to have made the finding explicitly that the appellant had the requisite intention to obstruct the senior constable. However, that the Judge was satisfied the appellant had the requisite intention can be inferred by reference to considering the element of intention, followed by the subsequent analysis which indicates the Judge was clearly satisfied. The Judge’s failure to state explicitly he was satisfied the appellant had the requisite intention was not an omission which gives rise to a real risk the outcome of the trial was affected.
[35] As the Judge pointed out, that the appellant might have had an incorrect understanding of the senior constable’s authority to arrest him is no answer to the fact that the senior constable was in fact a police officer acting in the execution of his duty and the appellant intended to obstruct the senior constable in the execution of his duty. The appellant appears to have challenged that the complainant was a police officer due to a mistaken belief that all police constables in New Zealand wear body cameras, and, in relation to a matter pursued in the District Court hearing, because the senior constable is Australian. This is inconsistent with comments in the appellant’s evidence-in-chief and cross-examination acknowledging the senior constable was a police officer at the time.
[36] Though the appellant might have held a mistaken belief that he was lawfully justified to resist his arrest by means of physically assaulting the complainant on the basis his arrest was “arbitrary”, this is what the Court of Appeal identified in Waaka as an incorrect understanding of the complainant’s powers, which cannot constitute a defence. The senior constable was acting pursuant to a warrant and was not acting outside his authority. The conviction appeal must be dismissed.
[37] The notice of general appeal filed by Mr Bowler does not specifically indicate whether it is an appeal against the conviction decision or the sentence or both. The reference to the charge details the assault charge on which he was convicted and sentenced. Both the defended hearing and the decision as well as the sentencing took place on 5 August 2022. The sentencing referred to two matters, one of which was a review application filed by the Department of Corrections in Blenheim in respect of a sentence of supervision. Corrections had also applied for a cancellation of the
community work. That application was an oral application not opposed by Mr Bowler’s counsel, Ms Middlemass, who appeared for Mr Bowler both in the defended hearing and in the sentencing.
[38] Mr Bowler’s submissions were directed at the conviction, not at the sentence. Despite the invitation to make any further submissions at the appeal hearing, Mr Bowler did not refer to the sentence. The Crown made no comment on the sentence. The sentence was of five months’ imprisonment. That sentence appears within range, given the starting point taken for the assault was four months’ imprisonment, with no credits available in terms of a guilty plea. In relation to the review of the related sentence of assaulting another person the Judge indicated that as community work had not been done and supervision was not undertaken, a sentence of one month was appropriate for that, cumulative on the earlier sentence. There is nothing before me to indicate that the sentence imposed was within range. Accordingly, the sentence appeal is dismissed.
Conclusion
[39] I am satisfied the Judge made no error in his assessment of the evidence. There is no real risk the outcome of the trial was affected and I am satisfied no miscarriage of justice occurred. No error is made in relation to the sentence and it appears appropriate.
Result
[40]The appeal against both conviction and sentence is dismissed.
Grice J
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