Cole v Police

[2013] NZHC 68

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000351 [2013] NZHC 68

BETWEEN  STEPHEN JOHN COLE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 February 2013

Appearances: No appearance by Appellant

B Hamlin for Respondent

Judgment:      5 February 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            Appellant

COLE V NEW ZEALAND POLICE HC AK CRI-2012-404-000351 [5 February 2013]

[1]      The  appellant  Mr  Cole  was  convicted  on  6  September  2012  by  Judge

McNaughton in the Pukekohe District Court on the following three charges: (a)      trespass;

(b)      possession of an offensive weapon;  and

(c)       assault.

[2]      Mr Cole filed a notice of appeal on 2 November 2012 (although the notice was dated 4 October 2012).  I record that the police take no issue in relation to the timing of the filing of the appeal.  If leave is required I grant leave for the appeal to be lodged out of time.

[3]      Mr Cole did not appear to support his appeal before this Court today.  I note from the history of appearances in this Court that on occasion Mr Cole has not appeared  to  support  the  appeal  at  call-overs.    However,  I also  note that  on  23

November 2012, when this appeal was allocated a fixture for 10.00 am today, Mr Cole was present.  I had the appeal called at 10 o’clock and the Registrar checked for Mr  Cole  about  the  premises  of  the  Court.    Mr  Cole  was  not  present.   At  the conclusion of other matters I again had the matter called at just after 11 o’clock. Again Mr Cole was not on the premises.   The Registrar also checked his phone. There was no message from Mr Cole to explain his non-attendance.

[4]      In the circumstances the appeal could be dismissed for want of prosecution. However, I choose to deal with it on its merits as well.  In his typed notes in support of the appeal, which I note is restricted to his convictions in relation to common assault and possession of a weapon, Mr Cole takes issue with the police investigation and the failure of the police to locate the thistle grubber which he referred to in his evidence.  He has also explained the reasons why he was at the property on the day and refers to the injuries he sustained as a result of the incident.  Mr Cole set out in some detail the reasons why he was at the property and his relationship with the complainant’s partner.

[5]      Mr Cole also notes that he asked his lawyer to request a full record of the 111 call.  He says the tape should have had at the beginning:

HE’S ATTACKING  ME  HE’S ATTACKING  ME!  (while  I  was  calmly saying  no  [Im]  not  no  [Im]  not  He  then  yelled  HE  HAS  BEEN TRESPASSED OFF THE PROPERTY BEFORE!

Mr Cole is concerned that did not appear on the copy of the transcript that was provided to him.  Mr Cole also advances an explanation for a piece of wood found in the back of his car and the crushed cans found there as well.

[6]      In  preparing  for  hearing  the  appeal  I  have  reviewed  Mr  Cole’s  written

material, the notes of evidence and Judge McNaughton’s decision.

[7]      Essentially  this  case  turned  on  the  conflict  between  the  complainant’s evidence and Mr Cole’s evidence as to the incident that occurred on 11 May 2012. The Judge was faced with a direct conflict of evidence and preferred the evidence of the complainant to that of Mr Cole.

[8]      Judge McNaughton came to that conclusion for the reasons he set out in some detail in his considered decision.   He notes that he found the complainant to be a careful, calm and fairly dispassionate witness who made reasonable concessions in cross-examination.  He struck the Judge as a plausible and sensible witness.

[9]      Against that the Judge noted that the thistle grubber that Mr Cole referred to in his evidence was never found by the police or mentioned by him at the time when he was initially interviewed.  The Judge had a number of other questions about Mr Cole’s account.  He set those out in his judgment.  He considered it implausible on Mr Cole’s account that, having made himself visible at the fence, seeing the complainant get out of a ute as he said he did, take a thistle grubber off the back of the  ute  and  stride  purposefully towards  him,  some  50  or  60  metres  across  the paddock, that Mr Cole would simply stand there and wait for him to arrive.

[10]     The Judge also considered it did not make sense, as Mr Cole had suggested, that he ran from the fence to grab a hoe to defend himself, but for some reason the complainant, who Mr Cole had said was the aggressor, did not follow him but rather

went around the outside of the house to meet him in the front by the driveway.  If that was the case the Judge then posed the question why the complainant would suddenly drop the thistle grubber as Mr Cole said he did.  It made no sense.

[11]     Finally, the Judge was troubled by Mr Cole’s presence in the doorway.  By that time the complainant was on the phone to the police.  Mr Cole was able to listen to the call and describe by, in evidence, the detail of the call.   Surely by then he should have realised he was a trespasser and should have left but he did not do so.

[12]     For those reasons and, after seeing and hearing the witnesses, the Judge was inevitably driven to the conclusion it was Mr Cole who was the aggressor rather than the complainant.    He rejected Mr Cole’s  account  as  inherently implausible and inconsistent and not supported by any of the other evidence or material before the Court. On that basis the Judge entered the convictions.

[13]     This is one of those cases which the Supreme Court referred to in Austin, Nichols & Co Inc v Stichting Lodestar[1] where this Court on appeal should consider the advantage the District Court Judge has had of seeing and hearing the witnesses and assessing the credibility of the parties.

[1] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

[14]     Having  reviewed  the  notes  of  evidence  and  the  Judge’s  decision  I  am

satisfied that the findings the Judge made were open to him.

Result

[15]     The appeal is dismissed.

Venning J