Cordeaux v Police HC Auckland CRI-2011-404-000189

[2011] NZHC 1240

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000189

BETWEEN  NEVILLE CORDEAUX Appellant

ANDPOLICE Respondent

Hearing:         30 August 2011

Appearances: A F Kemp for Appellant

E J Walker for Respondent

Judgment:      2 September 2011

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

2 September 2011 at 11.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Public Defence Service, Level 10, Affco House, 12-26 Swanson Street, Auckland

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

CORDEAUX V POLICE HC AK CRI-2011-404-000189 2 September 2011

[1]      Mr Cordeaux was convicted of wilfully doing an indecent act in a public place under s 125(1) of the Crimes Act 1961.

[2]      He was seen by Mr Gaskin with his pants completely open, his belt open and both hands down his pants.  Mr Gaskin also saw him wriggling from the waist down. Mr Cordeaux however appeals against conviction on the grounds that:

(a)       The conviction was unsupported by the evidence;

(b)      The District Court Judge reversed the onus of proof;

(c)      The District Court Judge had regard to irrelevant matters and did not consider relevant matters when assessing the reliability of Mr Gaskin.

[3]      The first two grounds are linked:

(a)      There  was  no  direct  evidence  of  masturbation  –  it  was  based  on inferences drawn from observations by Mr Gaskin;

(b)The Judge inferred that the conduct amounted to masturbation, and that “it would be difficult to know what else he was doing, if not masturbating”.[1]

[1] Police v Cordeaux DC auckland CRI-2010-004-021416, 4 May 2011, at [7].

[4]      The appellant says that by simply accepting Mr Gaskin’s indirect evidence and then not being satisfied about “what else” he might be doing, the District Court Judge erred by reversing the onus or shifting the burden to the appellant to provide

an alternative explanation.

[5]      Dealing first with the lack of direct evidence.   I accept that there was no direct evidence that Mr Cordeaux was masturbating.   However, the District Court Judge was plainly satisfied with the evidence from Mr Gaskin that Mr Cordeaux had his hands down his pants and was wriggling about.  He was also satisfied that this reasonably led to an inference that Mr Cordeaux was masturbating.  I see no evident illogicality in this assessment.  Mr Gaskin’s evidence was reasonably clear.  While he  was  strongly  challenged,  the  Judge  accepted  the  core  details  described  by Mr Gaskin.

[6]     I do not accept the appellant’s argument that the District Court Judge simplistically accepted Mr Gaskin’s inference from the facts.   I am satisfied the District Court judge was persuaded by the evidence that the inference was an available and a proper one. This point fails.

[7]      In relation to the allegation of reversing the onus, I consider the Judge to be saying no more than based on the clear evidence of Mr Gaskin, he was satisfied that the indecent act occurred.  He then concludes that there is no evidence or evidential foundation to reach a contrary conclusion.   On my reading of the evidence, I see nothing unreasonable in that conclusion, that is that there was no reason to suggest that there is an alternative explanation.

[8]      The  appellant  points  to  Mr Gaskin’s  answer  in  cross-examination  that “anything’s possible”.  Literally that might be true.  But I do not consider that this provides the appellant with a foothold for saying there was evidence of an alternative explanation.  I also consider that it is the type of answer that is usually given in a nuanced way to suggest that the deponent gives that possibility little weight.   I cannot, of course, say that it was nuanced one way or the other.   But I prefer to assume that the District Court Judge would have taken into account any such nuance associated with that answer.  I therefore am not prepared to find that the statement alone set up the evidential foundation to require the respondent to establish that there was no alternative explanation.   In addition, even if I approach it afresh, I do not consider  it  provides  an  evidentiary  basis  for  triggering  a  requirement  on  the

respondent to prove absence of an alternative.  Mr Gaskin is merely speculating that there may be a possible alternative explanation.

Irrelevant matters

[9]      At the core of this argument the appellant says that the District Court Judge wrongly:

(a)      Factored  in  the  complainant’s  commitment  to  give  evidence  as relevant to reliability – the Judge said:

[8]       … I am quite sure that Mr Gascoign would not have gone to the trouble of making this complaint to the police and being interviewed on I suspect more than one occasion, being troubled to go through a photograph montage procedure and of coming along to Court unless Mr Gascoign was entirely satisfied objectively that he was right in what he saw.  I have to say that I am bound to accept Mr Gascoign’s evidence.  [The reference to Mr Gascoign should be a reference to Mr Gaskin.]

(b)Failed to take into account the complainant’s failings – Mr Gaskin erroneously identified persons who were not involved on two occasions from photograph identification boards.

[10]     This latter complaint is exacerbated by the finding at [6] that “Mr [Gaskin]

has a remarkable eye for detail”.

[11]     The appellant is probably right that Mr Gaskin’s commitment is not probative

of reliability.  It is simply probative of a commitment to give evidence.

[12]     Equally,   there   is   some   inconsistency   between   Mr Gaskin’s   flawed identification evidence and a finding that Mr Gaskin has a “remarkable” eye for detail. Clearly he did not in terms of the identification evidence.

[13]     But  I  am  satisfied  that  the  District  Court  Judge  relied  on  Mr Gaskin’s evidence about the core conduct under charge.   That conduct does not require a finely grained recollection.  Mr Cordeaux either had his hands down his pants and was wriggling about or he was not. The colour of his pants, or his car or the shape of

his face have little to do with it.  It transpires Mr Gaskin could recollect some of the detail including a “well  expired  registration  sticker”.   The recollection  of these matters of detail, together with the recollection of the core conduct, was plainly the influencing factor for the Judge.

[14]     On  that  basis,  to  the  extent  that  the  Judge  erroneously  gave  weight  to Mr Gaskin’s  commitment  and  remarkable  eye  for  detail,  I  do  not  view  this  as material.  The Judge based his view on reliability on Mr Gaskin’s testimony about the key matters in issue.  I also consider that when the Judge said he was “bound to accept Mr Gaskin’s evidence” he meant that having found him to be reliable he had little alternative but to accept it.  I see no flaw in this.

[15]     For the reasons set out above, I therefore dismiss the appeal.

Whata J