Cottman v Police

[2013] NZHC 598

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000100 [2013] NZHC 598

BETWEEN  GUY CHARLES COTTMAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 March 2013

Appearances: Appellant in Person

J A Ongley for the Respondent

Judgment:      27 March 2013

RESERVED JUDGMENT OF GODDARD J

This judgment was delivered by me on 27 March 2013 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 10357, Wellington

Copy to:       G Cottman, 8/457 Adelaide Road, Berhampore, Wellington

COTTMAN V POLICE HC WN CRI-2012-485-000100 [27 March 2013]

[1]      On 27 September 2012, after a defended hearing in the District Court at Wellington, Judge A E Gaskell found Mr Cottman guilty on charges of possession of an offensive weapon and threatening to kill.[1]   On 24 October 2012, Mr Cottman was sentenced to nine months’ supervision, subject to special conditions, and to 60 hours’ community work.

[1] Police v Cottman DC Wellington CRI-2012-085-001598, 27 September 2012.

[2]      Mr Cottman was represented by counsel in the District Court, but has pursued his appeal against conviction in this Court on his own behalf.

[3]      He  was  originally  given  notice  of  a  date  of  hearing  for  this  appeal  of

18 December 2012.  No submissions in support of the appeal were however filed and there was no appearance by Mr Cottman or on his behalf on that date.  Accordingly, the appeal was dismissed for want of prosecution.

[4]      Mr Cottman then applied to the Court of Appeal for leave to appeal from the dismissal of his appeal, stating that his non-appearance was due to his not having received notification of the hearing date.  In the event he was permitted to proceed by way of a re-hearing of his original appeal in this Court, rather than by having to seek leave to appeal to the Court of Appeal.   Mr Cottman has now pursued that course.

[5]      The Crown did not oppose the appeal being heard on its merits but argued that it is without merit.

Background

[6]      The events leading to the charges occurred in a residential flat in Newtown, suburban Wellington.  The version of events given by the complainant, and preferred by the Judge, was to the effect that she had been visiting the flat of a female friend, Ms Sinclair, and had stayed sufficient time to have a cup of tea and then a glass of

wine with Ms Sinclair.  Mr Cottman arrived at the flat.  He had never previously met

the complainant but was a friend of Ms Sinclair.  An argument between Ms Sinclair and Mr Cottman ensued leading the complainant to go into the bathroom, hoping to avoid  the  argument.    When  it  did  not  cease,  the  complainant  came  out  of  the bathroom intending to leave the flat.  She was then accosted by Mr Cottman, who she said wielded a small kitchen knife and threatened to kill her.  The complainant grabbed her bag and ran from the flat.

[7]      The complainant then made a 111 call to the Police, from behind a building across the road from Ms Sinclair’s flat, where she hid.  The Police officer despatched to the scene by Police communications, Constable Donald, made contact with the complainant, and found her to be in a distressed and fearful state.  Whilst the officer was  talking  with  the  complainant,  he  heard  a  male  voice  from  inside  the  flat identified by the complainant, calling out words to the effect “yeah, I’m going to kill her, yeah, I’ve got a knife”.

[8]      Constable  Donald  gave  evidence  that  when  he  kicked  the  door  of  the residence open he saw a female sitting on the stairwell and Mr Cottman standing beside her.  Constable Donald observed a knife sitting on the stairs.

[9]      Mr Cottman also gave evidence at the hearing, denying that any threats were issued, or that at any time he presented a knife to the complainant.

[10]    Judge Gaskell treated the conflicting versions given in evidence by the complainant and Mr Cottman as each being inherently consistent.   However, the Judge preferred the complainant’s version as being consistent with the observations of the Police officer who attended on her and at the scene.  In addition, the balance of the complainant’s evidence was reflected in the transcript of the 111 call.

[11]     Mr Cottman challenged the Judge’s adverse findings on a number of grounds. First, he complained that the Judge ought to have made further arrangements to enable the 111 call in which the complainant reported the incident, to be actually played in Court so the Judge could guage the complainants’ manner in her 111 call. He argued that it would have demonstrated that the complainant was not in a distressed state at the time she made the call; and that she was slurring her words,

consistent with being drunk (the inference being that her recollection  would be unreliable if so affected by alcohol).  The Judge dealt with this point in her judgment in the following terms:[2]

[2] At [7]–[8].

Mr Robinson (counsel for Mr Cottman) wanted the Court to hear the 111 call but it could not be played on the equipment available in the courtroom.   I was concerned that even if I had heard it, I was not really competent to judge the state of sobriety or intoxication of a person by listening to a short telephone call, when that person had just experienced a traumatic event.

I would not have been in a position to say why she sounded the way she did, whether it was because of drink or because of shock and, even if I could have said that, it was not particularly important, because even a drunk person would be capable of seeing a knife when it was presented to her, especially when it came accompanied by a threat to kill.  So I did not see that it was prejudicial to the defence case, that I could not hear the 111 call.

[12]     The Judge’s reasons for declining to hear the 111 call were clearly sound.  In order to be admissible, evidence must be relevant.[3]    The recording, of itself, was unlikely to tend to prove or disprove that Ms Lilburn was drunk as opposed to affected by a traumatic event or distressed.  As the Supreme Court noted in relation to a 111 call in Bain v R, relevant evidence:[4]

... must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.

[3] Evidence Act 2006, s 7.

[4] Bain v R [2009] NZSC 16, [2010] 1 NZLR 1 at [50].

[13]     Further, I do not think that a non-urgent tone, even if it could be discerned, would have sufficiently displaced a finding that Ms Lilburn, whose evidence and veracity Judge Gaskell had the opportunity to assess at first hand, was lying about being threatened.

[14]     Next,  Mr Cottman  argued  that  his  defence  had  not  been  competently presented, in that he anticipated his counsel would have arranged (by subpoena or otherwise) to call evidence in support of his defence from Ms Sinclair.  It was not entirely  clear   whether   Mr Cottman  anticipated   Ms Sinclair’s   evidence  would corroborate  his  version  of  events  (that  he  had  not  presented  the  knife  at  the

complainant  or  threatened  her);  or  whether  Mr Cottman  hoped  that  Ms Sinclair

would be challenged in relation to a theory that she had put the complainant up to making a false complaint about Mr Cottman.

[15]     I am not persuaded the absence of this evidence could have caused any miscarriage of justice, given that Mr Cottman advanced this point on appeal without any reliable basis for asserting what the effect of Ms Sinclair’s evidence might have been.    In  any event,  the  Court  heard  Mr Cottman’s  argument  that  Ms  Lilburn, Ms Sinclair  and  Constable  Donald  had  somehow  conspired  to  make  a  false complaint and that they were either “hallucinating” or perjuring themselves. The

essence of his allegations in that regard was considered[5]  and rejected by Judge

Gaskell.[6]

[5] Police v Cottman, above n 1, at [16].

[6] At [29].

[16]     In a related argument, Mr Cottman submitted that his counsel should have cross-examined the Police officer who attended at the scene.   He submitted that Constable Donald lied under oath in testifying that he heard someone shout “I’ve got a knife and I’m going to kill her.”   In support of this proposition, Mr Cottman submitted that Constable Donald was standing outside a neighbouring property at least 15 metres from Ms Sinclair’s property at the time and therefore could not have heard any threat.   Although Constable Donald was not cross-examined, the Judge explicitly queried Constable Donald’s location and his ability to hear the threat.  The Judge accepted Constable Donald’s evidence on this point.  Therefore it cannot be said this created a miscarriage of justice.

[17]     Mr Cottman  further  argued  that  the  Judge  should  have  questioned  the reliability of the complainant’s evidence, because she recalled him as having been wearing a green belt at the time.  Mr Cottman claimed that, as he did not own such an item, her recollection must have been incorrect.  He invited the inference that if she were wrong on that detail, she did not deserve to be believed more generally.

[18]     There is nothing in this point.  The colour of the belt worn by the defendant was not material to the elements of the offence.  It was a matter of incidental detail

and there is no identifiable error in the Judge not questioning the reliability of the

complainant’s evidence on that detail.

[19]     Lastly, Mr Cottman argued that Judge Gaskell should not have based her decision on the credibility of the witnesses.  He said this was a case where there was very little objective evidence that could be used to establish the threats to kill, other than the position of the knife.  The Judge however heard evidence on this point from Ms Lilburn, which was corroborated by the Police officer’s evidence.  Mr Cottman’s account was in conflict with that.  It was therefore open to the Judge to prefer the evidence of the Police officer and Ms Lilburn over Mr Cottman’s evidence. That is part of the judicial process of determining facts which are disputed and where there is little other evidence of substance.

[20]     Accordingly, none of the grounds of appeal are made out and the appeal is dismissed.

Goddard J