C v Police HC Hamilton CRI 2006-419-157

[2007] NZHC 413

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-000157

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 May 2007

Appearances: M B Meyrick for Appellant

Ms R Mann for Crown

Judgment:      2 May 2007 at 10.30 a.m.

JUDGMENT OF VENNING J

This judgment was delivered by me on 2 May 2007 at 10.30 a.m., pursuant to Rule 540(4) of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Hamilton

Berman and Burton, Ellerslie

Copy to:             M B Meyrick, Huntly

C V NEW ZEALAND POLICE HC HAM CRI 2006-419-000157  2 May 2007

Introduction

[1]      The appellant was convicted in the District Court at Huntly on 10 October

2006 of one charge of male assaults female.   He was sentenced to 40 hours community work.  He appeals his conviction.

Procedural matters

[2]      The appeal was for hearing at 2.15 p.m. on 1 May 2007.  On the morning of

1 May counsel for the appellant, Mr Meyrick filed a memorandum with the Court abandoning the appeal as he had not been able to contact the appellant.  However, at about the same time counsel for the appellant was filing that memorandum, I issued a minute to counsel noting that the basis for the conviction in the case seemed to be the statement the complainant made to the police and drawing counsel’s attention to the authority of R v Carrington [1969] NZLR 790. In light of that authority I sought submissions from counsel.

[3]      On receipt of that memorandum Mr Meyrick has sought to  withdraw the notice of abandonment of appeal.

[4]      Ms Mann referred to s 129 of the Summary Proceedings Act.  The effect of that section is to deem the appeal to be dismissed for non-prosecution on the filing of an abandonment.  However Ms Mann also properly drew the Court’s attention to the authority of Eschbank v Police (1989) 5 CRNZ 157.  In that case Tipping J discussed whether a notice of abandonment could be withdrawn.  His Honour referred to R v Medway [1976] 1 All ER 527 where at p 543 Lawson J, in giving the judgment of a five Judge Court of Criminal Appeal, stated:

In our judgment the kernel of what has been described as the 'nullity test' is that the Court is satisfied that  the abandonment  was  not  the result  of a deliberate  and  informed  decision,  in  other  words  that  the  mind  of  the applicant did not go with his act of abandonment.

[5]      In  the  present  case  the  decision  to  seek  to  abandon  the  appeal  was  a pragmatic decision by counsel given that he had not spoken to the appellant for some time.   That is quite different to Eschbank where the appellant made a deliberate decision not to go on with the appeal for reasons which seemed good at the time. Tipping J declined to treat the abandonment as a nullity.   In the present case the abandonment was not a positive action by the appellant abandoning his rights to appeal.  It cannot be said the mind of the appellant went with his counsel’s notice of abandonment.  In the circumstances I treat the abandonment as a nullity.

Background

[6]      On 1 June 2006 the police were called to a domestic incident at 6 Kowhai Court, Huntly.   Constable Mortimore spoke to the complainant and the appellant. The complainant gave the constable a statement in which she described an assault by the appellant in the following way:

Whilst we were both arguing and standing in the garage, [the appellant] picked up the cane basket with fruit in it and hit  me once on the right shoulder which got the right side of my face.

After [the appellant] hit me with the basket he pushed me, trying to get me out the door.  I hit the wall and then I walked out the door and he slammed the door after me.

[7]      The constable spoke to the appellant.  The appellant said:

She hit me first.  I wish to lay a complaint against her.

He was then cautioned and said nothing further.

[8]      Subsequently  and  before  the  matter  came  on  for  hearing  before  Judge Riddell, the complainant sought to resile from the complaint.  She wrote two letters to the police, dated 25 July 2006 and 3 August 2006 in which she denied that she had been assaulted by the appellant.

[9]      In accordance with their family violence policy the police did not withdraw the charge as they felt obliged to follow the initial complaint through to a hearing before the Court.

[10]     At the hearing the complainant gave evidence.  The appellant did not.  During the course of her evidence the complainant said that she had chased the appellant and attacked him first and that he had responded by “flicking” the basket at her.   Her evidence about the incident was:

Q.       And how did he respond to you doing this?

A.        By picking up the basket and (inaudible).   He just flicked it and I was trying to chase him with the, I was at the back of him and that’s when the basket hit me.

Q.       So he picked up the basket and he threw it - ?

A.        No, he went to flick the basket but didn’t know I was at the back of him.   And as he went to – through anger – whacked the basket (inaudible).  Well it boofed up off this table and then hit me with – not physically hit me with it.

…

Q.       And how hard did the basket hit you? A. On a scale.

…

A.       3 out of 5.

…

A.        Yeah, you know, he was quite (inaudible).   Well he didn’t know I was actually trying to chase him, not like that, and the basket (inaudible).

Q.       And whereabouts on your body did the basket hit you?

A.       Just on the side of my face.  Just, it went on the side of my face.

[11]     In  cross-examination  the  witness  accepted  that  the  appellant’s  action  of making contact with her through the fruit basket was an accident.

[12]     Police Constable Mortimore was then called.  He gave evidence and read into the Court record the statement he had taken from the complainant.  He also produced the two letters from the complainant denying an assault.

[13]     The complainant’s statement was not put to her nor was there any application to have her declared hostile.

The District Court decision

[14]     In convicting the appellant the Judge accepted the statement was admissible and relied upon it in finding the charge proved.   In para [4] of the decision Judge Riddell said:

[4]       … And so the only evidence that I have to go on is the evidence of Constable Mortimore, the evidence of [the complainant], and I must decide how compelling, how believable her evidence is, her statement, given on the day of the alleged offence, and the two letters sent by her to the Court subsequently.  That is the evidence on which I make a finding today.

[5]       I have found that there was an incident on 1 June.   There was an incident and there was arguing.  The evidence from [the complainant] is that you were both arguing.   She has described in Court being hit by a cane basket which in Court she says was accidental, but in her statement to the Police was not accidental.

[6]       I am somewhat cynical about the demeanour of [the complainant] in Court and the letters which she wrote to the Court subsequently.  If there was nothing to this incident I wonder why she bothered to telephone the Police.  I have reached the view that there was an assault on that day, and I find you guilty of assault.

Decision

[15]     The appeal must be allowed.  The statement taken by Constable Mortimore from the complainant is not admissible under the provisions of ss 10 and 11 of the Evidence Act 1908.   The Court of Appeal confirmed  in R v Carrington [1969] NZLR 790 that unless a witness who is not a party has unequivocally adopted his or her previous statement the earlier statement is not evidence. Carrington has been followed and applied in R v Manapouri (CA159/94, 28 April 1995) and R v Wasley (CA237/98, 14 October 1998).

[16]     An application should have been made to  have the complainant  declared hostile.  At that stage the statement could have been put to her.  If she accepted what was in the statement then that would have become her evidence.  If, however, she did not accept what was in the statement then the only relevance of the statement would have been as to the credibility of the complainant as a witness.

[17]     The  statement,  like  the  two  letters  which  were  introduced  through  the constable, was inadmissible.  It was not evidence available to the Judge to take into account  when making her  decision.    It  is,  however,  apparent  that the statement formed the basis of the Judge’s decision that the appellant had deliberately applied force to the complainant and had thereby assaulted her.   Absent the statement, the complainant’s evidence was that the incident was accidental as the Judge herself noted.

[18]     I have reviewed the transcript of the evidence given by the complainant in the District Court. I accept the Judge’s assessment that the effect of that evidence is that the complainant described an accidental incident rather than an assault.

Result

[19]     In those circumstances, there being no admissible evidence of an intentional assault the appeal must be allowed.

[20]     Ms Mann suggested that to maintain the position of the  complainant  the Court should direct a rehearing.   Given the complainant’s apparent attitude to the matter I am not minded to do so.

[21]     The appeal is allowed.  The conviction is set aside and the sentence quashed.

Venning J