C v Police HC Christchurch Cri-2009-409-210

[2010] NZHC 516

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000210

C

Appellant

v

POLICE

Respondent

Hearing:         22 April 2010

Appearances: J Bell for Appellant

K Bell for Respondent

Judgment:      22 April 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction and sentence.

[2]      Following a defended hearing, the appellant was convicted in the District Court of one charge of assaulting a police officer acting in the execution of her duty. She was fined $400.

[3]      At the hearing, evidence was given by two police officers and the appellant.

[4]        The two police officers testified that they had been called to an incident in the central city area involving the appellant and an allegation of theft.   She was

arrested and placed in the patrol car.  Both police officers described the appellant as

C V POLICE HC CHCH CRI-2009-409-000210  22 April 2010

extremely intoxicated.  One of the police officers drove the police vehicle, and the other sat in the back seat alongside the appellant.

[5]      The officer who was in the back seat was a female officer, Constable Erber. She testified that during the course of the journey the appellant put her feet up on the back of the console, and then moved further in towards the console.  Constable Erber said she became concerned the appellant was going to push the driver, and she therefore asked the appellant to put her legs down.   According to the constable’s evidence, this request was made gently, then somewhat more firmly as the appellant failed to comply.

[6]      Constable Erber testified that the appellant then went to move towards her, so she pushed the appellant back towards the door.  There was something of a struggle, at which point the constable put the appellant into a wrist lock.   Constable Erber testified that the appellant slowly scratched her arm with her fingernails and then tried to bite her.  Despite the constable requesting the appellant not to bite her, the appellant continued to do so.

[7]     There was then a discussion between the two police officers, and as a consequence the red and blue flashing lights were activated and they proceeded to the police station.

[8]      Constable Erber further testified that on arrival at the station, the appellant refused to get out of the vehicle and eventually they had to push her out of the car, where she fell onto the ground.   She refused to get up and eventually, with the assistance  of  two  other  police  officers,  the  police dragged  the  appellant  onto  a mattress and  transported her to a cell, where  she was  put into a  gown for her protection.

[9]      For her part, the appellant claimed that what happened was that she had a panic attack in the patrol car and was simply attempting unsuccessfully to communicate this to Constable Erber.  The appellant stated she never tried to hurt the police officer and denied trying to bite her.  She simply could not breathe and was

hyperventilating.  The appellant further stated in evidence that she believes that at some point she blacked out, only regaining consciousness in the police station.

[10]     The presiding District Court Judge did not, however, accept the appellant’s evidence.   He said he preferred the evidence of the police officers.   He found the charge proved beyond reasonable doubt.

[11]     The notice of appeal sets out four grounds:

i)The  trial  ought  not  to  have  continued  in  the  appellant’s absence.

ii)There is evidence to support the defence that the appellant’s actions  on  the  night  in  question  are  consistent  with  her suffering a panic attack.

iii)The Judge ought not to have immediately have convicted the appellant upon finding the charge proved.

iv)      The sentence was manifestly excessive.

[12]     The evidence mentioned in the second ground of appeal is a reference to medical evidence from the appellant’s Australian doctor.   The appellant contends that at the hearing she wanted to call evidence from her doctor which would have confirmed the existence of an anxiety disorder, and also confirmed how such attacks manifest themselves.   The appellant further claims that she understood the lawyer representing her at the District Court hearing was arranging for that evidence to be called. However, she only discovered too late that he had failed to do this.

[13]     The notice of appeal was filed in December last year.

[14]     Then, in February 2010 the appellant’s counsel (who was the same lawyer who had represented her in the District Court) filed a memorandum saying it had become evident he should not represent her at the appeal. Presumably this was because of the allegation of counsel incompetence.

[15]     The memorandum states “The appellant instructs she has not yet been able to obtain the further evidence she seeks to put before the Court in support of her appeal.”

[16]     The appeal was then adjourned to enable fresh counsel to be instructed and the further evidence to be obtained.  The hearing was adjourned to 11 March, and a minute issued stating that the appellant would need to arrange replacement counsel as soon as possible.

[17]     When the matter was called on 11 March, Mr Bell appeared.  He had only just been appointed, and accordingly sought an adjournment.  That was granted, and the matter was adjourned to today, with a note on the file “Must proceed on that date”.

[18]     Yesterday, however, Mr Bell filed submissions seeking another adjournment on the grounds that he has not yet been able to make contact with the Australian doctor, despite having made some enquiries of her by email and fax.  The written submissions state that the appellant instructs the Australian doctor would be able to provide the medical evidence in question.   It transpires that Mr Bell only initiated enquiries of the doctor over the weekend, and as he understands it, the appellant herself  has  not  made  any  attempt  whatsoever  to  contact  the  Australian  doctor, despite the contents of Mr Allan’s memorandum of February 2010.

[19]     In the circumstances, I was not prepared to grant an adjournment.

[20]      Since December 2009 the appellant has known of the need to obtain the evidence from the Australian doctor.  She has advised her then counsel in February that she had yet to do this, but even as at today’s date has still not done so.  In my view, she has had ample time to obtain this evidence.

[21]     There is the further point that even if it were to be obtained, the intended evidence does not necessarily mean the appeal has merit.   As is pointed out in submissions from the police, even if there was medical evidence about panic attacks,

it would not address the attempts to bite the police officer, the level of intoxication and the police evidence that the appellant was not struggling to breathe at any point.

[22]     I am satisfied the Judge was fully entitled to make the findings of fact that he did, and that this intended evidence would not undermine or detract from those findings to any significant extent.

[23]     As regards the other grounds of appeal, Mr Bell advised he did not wish to pursue those matters.  That is a wise concession, because, in my view, having read the transcript and the other material that was before the Court, those other grounds are entirely devoid of any merit.

[24]     That being so, I am satisfied there are no grounds to overturn the District Court decision.   The conviction and sentence are accordingly confirmed and the appeal is dismissed.

Solicitors:

J Bell, Christchurch

Crown Solicitor, Christchurch