C v Police HC New Plymouth CRI 2006-443-3

[2006] NZHC 230

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2006-443-3

BETWEEN  C

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 March 2006

Counsel:         JC Hannam for the Appellant

HC Walker for the Respondent

Judgment:      15 March 2006 at 2.52 p.m.

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Mr JC Hannam, P O Box 8152, New Plymouth Central for the Appellant

Auld  Brewer  Mazengarb  &  McEwen,  P  O  Box  738,  New  Plymouth  for  the

Respondent

C V  POLICE HC NWP CRI 2006-443-3  15 March 2006

Introduction

[1]      Following a defended hearing in the New Plymouth District Court before Judge RP  Wolff,  the  appellant  was  convicted  on  charges  of  intimidation  under s 21(1)(a) of the Summary Offences Act 1981 and of careless use of a motor vehicle. He was found not guilty on a charge of failing to stop after an accident.   On the charge of intimidation he was ordered to enter into a bond in the sum of $500 for a term of two years.  On the careless use charge he was disqualified from driving for a period of two months.  He appeals against his convictions.

Background

[2]      The charges followed a confrontation on 22 July 2005 between the appellant and a dog ranger employed by the New Plymouth City Council, Mr James Aitken. Mr Aitken was visiting a woman in Waitara who lived in the appellant’s neighbourhood and who had complained of being bitten by the appellant’s  dog named Spook.  This incident was the subject of a prosecution which resulted in an order for the destruction of Spook.   I am informed that order has been upheld on appeal by this Court, although Spook survives, his present whereabouts being unknown.  He is, as Mr Hannam says, a wanted dog.

[3]      As Mr Aitken left his address to return to his car – distinctively marked as a New Plymouth City Council animal control vehicle – he was accosted by the appellant who was passing by in his car.  The appellant complained of Mr Aitken’s failure to pursue a complaint concerning another dog in the neighbourhood.  There were marked differences between the accounts of the appellant and Mr Aitken as to what then occurred.  The Judge preferred the account of Mr Aitken whose evidence on this account is recorded as follows by the Judge at para [14]:

On this occasion he says that as he was returning to his car from briefing the witnesses Mr C   came along the street, saw him, reversed, slammed on his brakes, got out of the car and began to berate him – berating him in a way that involved the physical use of his body and waving his arms about, coming  sufficiently  close  to  him  as  he  shouted  that  the  spittle  from Mr C  ’s  exclamations  fell  upon  Mr  Aitken.    They  were  very  close

together; he does not recall the entire conversation, but that during the course of it Mr C   threatened him in the way he was behaving and by using words to the effect that he was going to be injured or assaulted in some way. I have deliberately chosen not to use the same words as Mr Aitken because it is important to recognise that he does not claim to be reporting verbatim.

[4]      Mr Aitken retreated to his car and left the scene.  He was followed closely by the appellant – tailgating him is the term used by the Judge.  A short distance later, when Mr Aitken turned right at an intersection, he said the appellant also turned and drove on the right hand side of his car, then cut in front of him.   According to Mr Aitken, a minor collision occurred.  The appellant carried on.  The Judge found that a collision took place but accepted that the impact was so slight the appellant may not have been aware of it.   He found therefore that although the appellant’s driving had fallen below the standard of a reasonably prudent driver, he had no legal obligation to stop.  Hence, the decision to dismiss the charge of failing to stop after an accident.

Appellant’s submissions

[5]      In support of the appeal against conviction, Mr Hannam puts forward four arguments.   The first is that the Judge failed  to  refer  to  a contradiction  in  the evidence  of  the  two  principal  prosecution  witnesses,  Mr  Aitken  and  Mr  Brian Jeffery.  Mr Jeffery is the husband of the woman who had allegedly been bitten by Spook.    He  observed  and  heard  the  confrontation  between  the  appellant  and Mr Aitken from his house which, of course, Mr Aitken had only just left.

[6]      In most respects the evidence of Mr Aitken and Mr Jeffery closely coincides. However, Mr Aitken said in evidence that immediately before the confrontation he saw the appellant’s car backing down the street towards him.  Mr Jeffery’s evidence was that the appellant did not reverse his car.   Mr Hannam submits that this inconsistency should not have been ignored by the Judge as the police case rested on the credibility of these two witnesses.

[7]      I  am  unable  to  accept  the  submission.    The  evidence  in  relation  to  the movement of the appellant’s car immediately before the confrontation was in no way material to any of the charges before the Court.  The Judge carefully considered the

issue of credibility.   He acknowledged that there was no love lost between the appellant and Mr Jeffery, who had been a witness to the alleged attack on his wife, and there had been previous confrontations between the two.  But the Judge said he was very impressed with Mr Jeffery as a witness and accepted his evidence.  In the circumstances, I see no reason why it should have been necessary for the Judge to attempt to reconcile the minor difference between the accounts given by Mr Aitken and Mr Jeffery.

[8]      It is convenient next to consider a further ground of appeal which also relates to the charge of intimidation.  Mr Hannam submits that the Judge erred in finding the appellant guilty of this charge, having regard to contradictory evidence given by Mr Aitken as to the effect on him of the conduct of the appellant.  Mr Aitken said in his evidence-in-chief that in the course of the confrontation the appellant was punching the air around him and yelling abusively at him.  He said:

It was very intimidating.  I was quite certain Mr C   intended to strike me.

However, Mr Hannam points to a passage in cross-examination in which Mr Aitken said that the appellant did not physically frighten him.   He submits that having regard  to  this  answer  and  evidence  of  the  excitable  nature  of  the  appellant, particularly  when  it  came  to  issues  concerning  Spook,  there  was  insufficient evidence to support a conviction for intimidation.

[9]      Section 21(1) of the Summary Offences Act 1981, which creates the offence of intimidation, relevantly provides as follows:

Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated –

(a)  Threatens to injure that person or any member of his or her family, or to damage any of that person’s property.

The section focuses on the state of mind and the actions of the perpetrator.  There must be evidence of an intent to frighten or intimidate another person or knowledge that the conduct in question is likely to cause that other person reasonably to be frightened or intimidated.

[10]     There was, in my view, an abundance of evidence to support a finding that the necessary mental element was proved.  The Judge specifically directed himself to it in his finding at para [21] of the judgment that:

[The appellant] was using offensive language; he was threatening and … he knew at that point that his conduct was likely to intimidate Mr Aitken.

The fact that Mr Aitken conceded, contrary to his earlier evidence, that he did not feel physically threatened does not in any way undermine the Judge’s finding that the appellant’s behaviour was intended to frighten or to intimidate him.

[11]     The third ground of appeal relates to the charge of careless use of a motor vehicle.    Mr  Hannam  submits  that  the  Judge  erred  in  failing  to  amend  the information to coincide with his findings of fact.  The information alleged that the appellant operated his vehicle carelessly on Hutchins and Richmond Streets.  It was at the intersection of those two roads that the driving episode concluded with the minor collision.  Before driving into Hutchins Street and making the right turn into Richmond Street, the appellant had followed Mr Aitken along two other roads.  The submission  is  that  the  Judge  should  have  amended  the  information  to  include careless driving on those roads.

[12]     It is true that the Judge found that the appellant drove carelessly by following Mr Aitken too closely for much of the journey.   He said he was satisfied that the appellant’s driving on King Street, where the confrontation occurred, and around the corner towards the intersection where the collision took place, amounted to careless driving.  But he went on to make a specific finding that in turning right on the right hand side of Mr Aitken at the intersection the appellant’s driving also fell below the standard of a reasonably prudent driver.   That is a finding that the appellant was guilty as charged and cannot be impeached by his failure to amend the information to include the earlier careless driving.

[13]     The final ground of appeal arises from a reference by the Judge to evidence that the appellant had complained in the course of the confrontation that Mr Aitken had lied in the course of the Holmes television programme.  Mr Hannam says there was no evidence  given at the hearing of any appearance on  the  Holmes  show,

although there was a reference to a Mrs Homes in the evidence of the appellant.  He submits that the Judge’s error raises the possibility that he misheard the evidence.

[14]     It appears that the Judge’s remark may have arisen as a result of knowledge from extraneous sources of extensive publicity given to Spook’s plight. There is, however, nothing to  indicate  that  it  had  any impact  whatsoever  on  the  Judge’s critical findings made in the course of a commendably comprehensive and closely reasoned decision.

Conclusion

[15]     I am satisfied that on the evidence before him the Judge was fully entitled to enter convictions on the two charges in question.   The appeal is accordingly dismissed.