C v Police HC Auckland CRI 2008-404-306

[2009] NZHC 302

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000306

BETWEEN  C

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 February 2009

Appearances: R J Earwaker for the Appellant

E Harrison for the Respondent

Judgment:      11 March 2009

RESERVED JUDGMENT OF PRIESTLEY J (Appeal against conviction and sentence)

This judgment was delivered by me on 11 March 2009 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:

R J Earwaker, Barrister, P O Box 6218, Wellesley Street, Auckland 1141

E Harrison, Meredith Connell & Co, P O Box 2213, Auckland 1140.

C V NEW ZEALAND POLICE HC AK CRI 2008-404-000306  11 March 2009

The Appeal

[1]      The appellant was charged with assaulting a female under s 194(b) of the Crimes Act 1961.  There was a defended hearing before Judge C S Blackie in the Pukekohe District Court.  At the conclusion of the hearing, on 28 August 2008, the Judge found that the charge had been proved to his satisfaction.  He did not, at that stage,  enter  a  conviction  because  the  appellant’s  counsel  indicated  a  discharge without conviction pursuant to s 106 of the Sentencing Act 2002 would be pursued.

[2]      On  5  September  2008  the  appellant  was  sentenced  by  the  Judge  in  the Manukau District Court.  The Judge declined the application for a s 106 discharge. The appellant was accordingly convicted.  A reparation sentence of $1,500, payable to his victim, was imposed.

[3]      This appeal challenges both the conviction and the Judge’s refusal to grant a s 106 discharge.

District Court Hearing

[4]      The summary of facts, which formed the basis of the police prosecution, was simplicity itself.   It recorded that the appellant and his partner, Ms Bracken, had lived in a de facto relationship for approximately seven years but were in the process of separating.  Around 11 am on 1 April 2008 an argument developed between the couple at the appellant’s home in Karaka over the appellant’s diary.  (Although not set  out  in  the  summary  of  facts  the  evidence  at  the  hearing  from  both  the complainant and the appellant made it clear the appellant had returned to his home from his work place in Avondale that morning to retrieve his diary.)   During the course of the argument, the summary of facts states, the appellant threw bits of rubbish  at  Ms  Bracken.    He  followed  her  into  the  house,  picked  up  a  large candlestick, and threw it at a pillar.  The appellant then struck the victim on the head, pushing her into the pillar.  As a result of the assault, says the summary of facts, the victim received minor bruising but did not require medical attention.   The police

arrived and spoke to the appellant who denied the assault.   The appellant had no previous convictions.

[5]      The  defended  hearing  before  the  Judge,  at  which  the  appellant  was represented by experienced counsel, traversed a large number of background and extraneous matters.  Doubtless the Judge considered the evidence he heard had some relevance.   The hearing spanned 2½ days although not all the court time of that period was occupied by the hearing.   The transcript comprises 1,592 paragraphs. The prosecution called the complainant and two police officers who arrived at the appellant’s home shortly after the complainant had made a 111 call.  A recording of that call was also played to the Court.  The appellant, for his part, gave evidence.  He also called a character witness and a forensic pathologist Dr T D Kolmeyer.

[6]      The evidence ranged widely.   The Judge heard about such matters as the couple’s relationship history; their alleged infidelities; the ownership of the appellant’s home (apparently owned by a trust to give a degree of protection from any claims which Ms Bracken might bring); surveillance of Ms Bracken by the appellant  in  other  parts  of  Auckland;  the  falsehoods  the  appellant  had  told Ms Bracken about fictitious military service in Bosnia with the SAS; a mousetrap (photographed) in a hole in the wall; a rodent’s corpse (also photographed) on the floor; affidavits filed in the Family Court under the Domestic Violence Act; and matters of that type.   There was photographic evidence of bruising on the complainant’s right cheek, taken a week after the assault, and further photographs which the complainant herself arranged to be taken on the same day as the police photographs.  The candlestick was also an exhibit.

[7]     Throughout the hearing the Judge showed admirable restraint, seldom intervened, and clearly decided to let both the complainant and the appellant range widely in their evidence.

[8]      The Judge was faced with a classic conflict of evidence.  I have no intention of incorporating the couple’s respective stories into this judgment in any detail. Suffice to say the complainant’s evidence was the appellant had come home agitated about his diary; reached the view that the complainant had hidden it for her own

purposes; ransacked the house; threw a rubbish bag at her; hurled a candlestick at a pillar; then retrieved the candlestick and whilst holding it hit her.  She also alleged (and there were protestations by her to this effect during the 111 call) that before the police arrived the appellant went to some lengths to clean up the trail of destruction he had wrought.  The appellant for his part denied that he had struck the appellant either with his fist or with the candlestick and suggested that she herself had wielded the candlestick throwing it into a swimming pool in an endeavour to obliterate her fingerprints which would have been on it.  It was the appellant’s contention that the complainant had indeed removed or hidden the diary (which has never been discovered) for her own partisan purposes in the context of a relationship property dispute.

[9]      Dr Kolmyer’s evidence was to the effect that the complainant could not have been struck by the candlestick.   Its weight would have caused much more serious injuries than those which were observed.  His evidence was he could not exclude a light or glancing blow to the complainant’s face by the side of the appellant’s hand but that even so, a considered or aimed punch, given the appellant’s size, would have caused much greater injury than that which the complainant sustained.

[10]     Dr Kolmeyer, as an expert, sat in Court throughout hearing the evidence.  He did not of course examine the complainant on 1 April 2008 or at any other stage.  He was working off what he had seen and heard of the parties and the photograph evidence.

The Judge’s Decision

[11]     The Judge fairly covered the evidence given by the witnesses.  He referred to the transcript and recording the 111 call as indicating that at that stage “things had reached a fairly high pitch between the two of you”.  The Judge referred to the fact that the previous day the complainant had received a letter from the appellant’s family law counsel indicating that the Karaka home was owned by a trust and that the  complainant  and  her  children  would  have  to  leave  the  house.    The  Judge described the confrontation in the house as “highly charged” and found too that the appellant himself was “highly charged” and had become obsessed with his diary.  He

accepted the importance of the diary to the appellant was that it contained records relevant perhaps to previous infidelity of the complainant.

[12]     The Judge then said:

[12]     Arising out of this highly charged situation is the incident which I have so far described from the evidence that she has given, and I accept that in all likelihood there is exaggeration from both parties.  The reason for that is it is very difficult to recall precisely what happened in a situation such as this because it all moved so quickly and when it is a question of who touched what and who did this and who did that looking back, it is very difficult to have actual accurate recall.

[13]     The  Judge  accepted  Dr  Kolmeyer  as  being  “highly  experienced  and reputable” and detailed his evidence as to why the complainant’s injuries would not have been caused by the candlestick.  The Judge said:

[14]      … It is true that had the blow been a severe one, then it was likely to have caused more serious damage to the complainant’s cheek, at least the pathologist expected that to have been a minor fracture to the cheek bone, which he demonstrated to the Court was comparatively thin.  Nevertheless, the pathologist could not rule out the injuries which were quite obvious.  He accepted that the complainant had a bruise to her face, a blow from a fist or a hand or something similar.

[14]     The  Judge  then  referred  to  an  allusion  (whether  by  counsel  or  by  the appellant is not clear), there being a similar allusion to this Court by Mr Earwaker, that the bruise on the complainant’s face might have been self-induced or manufactured.  The Judge commented that this was not followed up and stated that it was quite clear from the police evidence that the injury the police officers noticed on the complainant was visible to them.

[15]     The Judge concluded thus:

[16]     Out of all the evidence I have heard, a considerable portion was no doubt being exaggerated and coloured by both of you and the complainant embellishing what had occurred in retrospect.  But there is a thread which goes through all the evidence.   First of all we have the highly charged situation.  Secondly, we have you returning in an anxious state.  It was not simply an exchange of words.  We have the description of the bag and the bottle and we have you accepting that you threw a bag.  We do not know that it actually physically struck her or not but there were injuries or at least bruises and redness perhaps would be a better way of putting it observed by the constables to the complainant’s back and then, of course, we have a positive fact that she had an injury to her cheek.

[17]     I have to be satisfied on a charge of this nature, not as to all the background features which I have elaborated this afternoon but as to whether there was actually an assault by a male against a female …. I am certainly satisfied that there was an injury to the complainant.  No other explanation has been put forward as to how that injury might have occurred other than her evidence when she was struck by you.   It may not have been with a candlestick but it was certainly by something.   I find it proved as a fact beyond reasonable doubt that your fist came in contact with her face and that it was a deliberate action on your part and therefore at law there has been an assault.

[16]     The Judge then confirmed that he found the charge proved beyond reasonable doubt and that the appellant, during the altercation, deliberately struck the complainant causing injury.

Discussion

[17]     Mr Earwaker’s prime submission was that the conviction was unsafe.   The Judge’s findings as to how the injury occurred was flawed because such a finding was  inconsistent  with  the  complainant’s  own  evidence.    Given  the  conflict  of evidence with which the Judge was confronted there ought to have been a credibility finding.  To refer to both parties as exaggerating, particularly the complainant, was not a safe approach.

[18]     The Judge additionally had failed to deal with other inconsistencies.  These included a Family Court affidavit filed prior to the hearing by the complainant that she had never seen the appellant’s diary, even though her evidence at the hearing was to the effect that she had read the diary in the house early the previous morning. The complainant’s evidence at the hearing had included the comment the appellant had pointed a toy gun at her and stated he wished it was real so he could finish her off.  There was no such evidence given in Domestic Violence Act affidavit in the Family Court.  There was also inconsistent evidence from the complainant that she had thrown the broken candlestick into the swimming pool (to put it beyond the appellant’s reach).  The cross-examination on this point was to the effect that she had washed the candlestick in the swimming pool to remove her own fingerprints.  There was thus the inconsistency of how the candlestick, which was found by the police

when they arrived in the garage, had moved to that position from the bottom of the swimming pool.

[19]     Counsel cited the Court of Appeal judgment of R v Munro [2007] NZCA 510 to the effect (at [84]) that credibility assessments were difficult but it was not easy for an appellant to show a verdict was unreasonable in cases involving credibility. The Court went on to say that verdicts based on credibility assessments may be unreasonable in certain circumstances, referring to the dicta of Kirby J in the High Court of Australia judgment CSR v Della Maddalena (2006) 224 ALR 1, at [19] – [22] to the effect that appellate intervention might be needed in circumstances where “incontrovertible facts or uncontested testimony” demonstrated findings to be erroneous or where such findings were “glaringly improbable” and “contrary to compelling inferences”.

[20]     Finally, submitted Mr Earwaker, the Judge had failed to deal adequately with the clear conflict between the complainant’s evidence relating to the nature of the assault against her and the evidence of Dr Kolmeyer to the effect that had the appellant punched the complainant in the way she stated there would have been a much more serious injury.   Referring to [17] of the Judge’s decision (supra [15]) counsel submitted it was not for the appellant to explain why the complainant had the injuries which were observed.   It was unsafe to convict the appellant simply because he was unable to offer an explanation for the observed bruise.  The appellant when  giving  evidence on  this  point  stated  he  did  not  notice  any marks  on  the appellant’s face and was unable to say what might have caused them.

Result on Conviction Appeal

[21]     I agree with Mr Earwaker to the extent that there ought to have been a credibility finding.  I have some sympathy with the Judge who, as a result of the way the trial was run, had to sift his way through a vast mass of extraneous evidence. The   Judge   commented   that   both   the   complainant   and   the   appellant   had “exaggerated”.   But, with great respect, such a comment does not provide a clear pointer.  Does an exaggeration mean that central truths have been embellished?  Or does it mean that falsehoods have been introduced?

[22]     Here the conflict confronting the Judge, as I have commented (supra [8]), was a core conflict and central to the charge which the prosecution had to prove beyond reasonable doubt.  Did the appellant strike the complainant?  The appellant’s evidence was that he did not.

[23]     It is clear from the Judge’s findings that, in that narrow area, he disbelieved the appellant.   It would have been preferable for the Judge to have said so.   To describe the appellant’s evidence as exaggerated was not, with respect, a satisfactory substitute.  There was no difficulty on the evidence before him of making such an adverse credibility finding.  After all, at a previous stage in his relationship with the complainant, the appellant had told her outrageously false stories about a fictitious career he had with the SAS in Bosnia.  He was thus not averse to telling lies in the course of his dealings with the complainant.

[24]     In  my judgment  the  failure  of  the  Judge  to  make  an  adverse  credibility finding does not render his finding unsafe.   I have read the entire transcript and considered the evidence.  Unlike Judge Blackie I do not have the benefit of having seen and heard the witnesses.  But I consider the findings of the Judge which were essentially that the appellant struck the complainant’s face with his hand (not the candlestick) during the course of a protracted altercation in the home on 1 April 2008 were open to the Judge, and fairly so on the evidence.   The verdict was not unreasonable.  It is not erroneous because it runs counter to incontrovertible facts or uncontested testimony.   Nor is the finding “glaringly improbable” or “contrary to compelling inferences”.  Although the Judge did not couch his findings in credibility terms his findings nonetheless demonstrate clearly what evidence he accepted and what evidence he rejected.

[25]     In short, there was ample evidence available to the Judge swirling around in the mass of central and peripheral testimony he had heard, to justify the findings he reached (supra [15]) on which to reach the conclusion that the prosecution had proved the s 194(b) charge beyond reasonable doubt.

[26]     The appeal against conviction is thus dismissed.

Appeal Against Sentence.

[27]     At the sentencing on 5 September 2008 the Judge had before him an affidavit from the appellant and also an affidavit from Mr D J Ryken, an Auckland solicitor with expertise in the immigration field.

[28]     Section 106 of the Sentencing Act 2002 confers a discretion on courts to discharge an offender  without conviction unless the relevant legislation requires imposition of a minimum sentence.  The discretion must be exercised in accordance with s 107 which provides:

107      Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[29]    It was the appellant’s contention that the conviction would indeed bring consequences   out   of   all   proportion   to   the   gravity   of   the   offence.      The disproportionate hardship he raised was the possibility of travel restrictions relating to his position of a shareholder in a company which supplies automated systems for use at airports, meat works, and manufacturing plants.

[30]     Particularly  the  appellant’s  company  was  involved  in  installing  airport baggage handling systems at various international airports in Australia, Egypt, and Canada.   The appellant’s responsibilities require him to travel to those overseas airports to negotiate with the relevant airport authorities, attend sales meetings, and make presentations.  The appellant stated if he was not able to travel it would make his job extremely difficult and would prevent him from taking part in “sensitive negotiations” at the outset of a project.

[31]     Mr Ryken’s evidence focused specifically on these difficulties.  He had been told the appellant needed to travel regularly to Australia, Chile, Egypt, Canada, Uruguay, Argentina, Brazil, Netherlands, Switzerland, and Italy.   Mr Ryken’s evidence was that, if travelling to Australia, the appellant would need to declare the conviction but it would not prohibit him from entering because he had not been

sentenced to 12 months imprisonment or more.   There was a possibility of inconvenience with an entry interview.  If the appellant perceived this to be a risk or problem he would be able to obtain an entry free visa to Australia.

[32]     So far as the countries in Europe, South America, and Egypt were concerned entry would not be difficult.

[33]     The only difficulty perceived by Mr Ryken was with Canada.  Mr Ryken had spoken to immigration attorneys in British Columbia.  Canada’s current immigration policy was that visa-free entry for visitors only extended to visitors with no criminal conviction.  If the appellant wanted to travel to Canada he would thus need to apply to the Canadian High Commission for a temporary resident’s permit.  This problem would not occur five years beyond the date of conviction.

[34]     Mr Ryken’s opinion was that there was a significant risk an application for a temporary permit would be declined, although that risk would diminish with the effluxion of time.

[35]     It is patently clear, of course, from this evidence that although there would be inconvenience to the appellant so far as travel to Canada is concerned there is no proven hardship to either him or the company.  There is no evidence that possible difficulties entering Canada would place the appellant’s employment in jeopardy or be ruinous to the substantial operations of the company.   Indeed, other than Mr Ryken’s opinion of the risk, there was no evidence that entry to Canada would be denied in these circumstances.

[36]     The Judge on sentencing dealt with the s 106 application in this way.  First he rehearsed the evidence he had heard at trial.   He referred to the charge of male assaulting female being “almost endemic in South Auckland” and made reference to a specialised family violence court.  He rightly pointed out that the central issue had been the degree of violence which was inflicted.  He accepted that the appellant was a responsible and successful businessman without previous convictions and that in all likelihood he would not find himself in trouble again.   He pointed out, and correctly:

[11]     Very often people like yourself, a responsible businessman, rugby players, I might say, All Blacks, and other prominent members of the community, appear before the court on this very charge.  They cannot expect to be dealt with in any way that is different from the vast majority of people who are of little note in the community.  We cannot separate off those who might be somewhat more privileged than others when it comes to this type of conduct.   Male assaults female is a charge which carries equal penalties across the board.

[37]     The  Judge  correctly  addressed  the  s 107  threshold.    He  referred  to  the affidavits I have mentioned.  He referred to the absence of mitigating factors which are often relevant to s 106 discharges such as prompt apologies, participation in restorative justice programmes, early guilty pleas, and matters of that type.   The Judge concluded:

[18]      So I cannot take into account any of those factors.   It might have been different, mind you, had you accepted responsibility for your actions. In the first instance, apology and expressions of remorse had been expressed and a prompt guilty plea entered to the charge.

[19]      Section 106 combined with s 107 is a discretionary remedy that you have with the Court.  I do not consider this, a conviction being entered to you, to be out of all proportion, inconvenient, yes, out of all proportion with the gravity of the offending, no.   It may be that you will have to take additional steps to satisfy the authorities before they will grant you a visa to get you into Canada but in respect of all other countries it seems that you will have little or no difficulty at all.

[38]    The Judge then entered a conviction and imposed the $1,500 reparation sentence.

[39]     Mr Earwaker’s written submission suggested that the Judge had brought into play irrelevant considerations by reference to the absence of a guilty plea.   In that regard he referred to Summers v Police (HC WHA 2008-488-0036, 28 August 2008, Rodney Hansen J).

[40]     It would of course be wrong to exercise the s 106 discretion on the basis that a person had insisted on the presumption of innocence and gone to trial.  But that is not what the Judge has done here.  It was rightly pointed out by Miller J in Delaney v Police (HC WN 2005-485-22, 22 April 2005) and by me in Vincent v NZ Police (HC TIM 2006-476-004 31 August 2006) that proper matters in the exercise of the s 106 discretion  include  overall  culpability,  guilty  pleas,  expressions  of  remorse,  the

unlikelihood of re-offending and matters of that type.  All the Judge has done here is to comment, correctly, that there was no guilty plea, no expression of remorse, and no restorative justice programme.  Thus many potent factors in the exercise of the s 106 discretion were absent.

[41]   Mr Earwaker further submitted the Judge had  applied  the test disproportionately by referring to the s 107 test (at [13]) of his sentencing notes as “an extremely high levelled test”.  The Judge was there commenting on the statutory words “out of all proportion”.

[42]     The Judge was required to exercise a discretion.  He correctly considered the s 107 criteria.  He considered the matters on which the appellant was relying.  As is apparent from my earlier comments (supra [35])  I do not consider the possible inconvenience to which the appellant might be subjected on those occasions he wants to travel to Canada come anywhere near the s 107 threshold.

[43]     In short, I am satisfied the Judge has correctly exercised his discretion.  The appeal against sentence must thus be dismissed.

Result

[44]     The appeals against conviction and sentence are, for the reasons I have given, dismissed.

..........................................… Priestley J