Cox v Police
[2016] NZHC 2757
•17 November 2016
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202
CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2016-425-000028 [2016] NZHC 2757
BETWEEN GEORGE SOMERS COX
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 October 2016 Appearances:
J Eaton QC for the Appellant
R Donnelly for the RespondentJudgment:
17 November 2016
JUDGMENT OF NATION J
[1] The appellant was the boyfriend of the complainant. On 11 December 2015, they had been going out together for about a year. On the evening of 11 December
2015, they went out to dinner with the appellant’s father. Afterwards, when they were on their own, they had an argument which became physical. A little later, they were in a bedroom at the appellant’s home. There was another physical altercation.
[2] Arising out of those incidents, the appellant faced two charges of male assaults female, one of charge of possession of an offensive weapon and one charge of threatening to kill. He was convicted in a Judge-alone trial.1 He appeals against
those convictions.
1 New Zealand Police v Cox [2016] NZDC 12602 [Conviction decision].
COX v POLICE [2016] NZHC 2757 [17 November 2016]
[3] The appellant was subsequently sentenced. The penalties included three months’ community detention, 100 hours’ community work, $80 reparation and a final protection order.2 He appeals against the sentence.
Principles on appeal
[4] Appeals against conviction and sentence are brought as of right under ss 229 and 244 of the Criminal Procedure Act 2011 and must be determined in accordance with ss 232 and 250 of that Act.
[5] Given the appellant was found guilty in a Judge-alone trial, the Court must allow the appeal against conviction if, and only if:3
(a) it is found that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b) a miscarriage of justice has occurred for any reason.
Miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.4
[6] This Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that, in the event, a different sentence should be imposed.5
[7] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the
Judge’s discretion. As Toogood J said in Larkin v Ministry of Development:6
2 New Zealand Police v Cox [2016] NZDC 16362 [Sentencing decision].
3 Criminal Procedure Act 2011, ss 232(2)(b)-(c) and 232(4).
4 Section 232(4).
5 Sections 250(2)-(3).
6 Larkin v Ministry of Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
The first charge of male assaults female – incident outside the restaurant
[8] The Judge found, and there was no dispute over this, that the appellant and complainant had left a restaurant at about 8.30 pm to await a ride home. While they were waiting outside, an argument developed because the complainant was cold. She and the appellant had words and then she walked away from him. There was a text conversation and a phone call at that stage. She returned to where he was standing and she pushed him. The Judge accepted her evidence that she was angry and, after she pushed him, they argued further, at which stage he grabbed her by the
arm really hard, pulled her in close and told her to “shut up”.7 The Judge accepted
her evidence that the grip on her hand was hard and left bruises and that the appellant also dug his nails into her arm leaving marks on her arm which were evident in photographs.
[9] The Judge rejected the appellant’s explanation that he was merely trying to restrain her from hitting him. He found that she had made no attempt to actually hit him, that she pushed him out of frustration or anger, but that his actions in restraining her as he did were not warranted and were excessive force in any event. The Judge said that, if the appellant had been only trying to restrain a push, he could have done so without causing the bruises and also the nail marks which he found were evident
from photographs of her arm.8
[10] As to these findings and relevant also to the second charge of male assaults female, Mr Eaton QC for the appellant submitted the Judge had misdirected himself as to what the Crown had to prove beyond reasonable doubt.
[11] The Judge gave an oral decision. The Judge noted the defence was based
around “self defence”. He said:
7 Crimes Act 1961, s 194(b).
8 Conviction decision, above n 1, at [44].
[15] Self-defence is a three-limbed defence, and the Court is well aware of the elements in respect of that, that the police have to disprove; firstly, what the defendant believed was reasonable in the circumstances as he saw them to be; secondly, what force was used and whether that was reasonable; and then, on an objective view, whether or not the force that was actually used was, in all the circumstances, reasonable.
[12] I accept Mr Eaton’s submission that his statement as to the law was flawed.
[13] Section 48 of the Crimes Act 1961 states:
Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
[14] In R v Li, the Court of Appeal paraphrased Tipping J’s approach in Shortland v Police, and concluded:9
In summary … the jury is asked to consider first what the accused believed the circumstances to be, from his or her point of view. The second question is whether, bearing in mind that belief of the accused about what was happening, he or she was acting in self-defence (again considered from his or her point of view). The last question is whether, given that belief, the force used in self-defence was actually reasonable.
[15] As referred to by the Judge, the complainant had said that when they first argued outside the restaurant they had both started calling each other names. The complainant said she had walked away from the appellant because she was upset at what he was saying and his abusive texts and phone call, that she started running back towards him because she was angry at him and pushed him when she went up to him. She also said that, after she pushed him, they had an argument on the street, that he grabbed her arm really hard and pulled her in close and told her to shut up and not to make a scene. Under cross-examination, the complainant was adamant that she had not tried to hit the appellant. She said that, after this, they got into a vehicle with the appellant’s friend who had come to collect them. She said she was
quiet and did not want to say anything.
9 R v Li CA140/00, 28 June 2000 at [22] citing Shortland v Police HC Invercargill AP74/95, 23
April 1996.
[16] The appellant produced the texts consistent with him saying that, if she did not come back, he would not see her again. The only threat made at that stage was that, if she did not come back, he would be “leaving for good”.
[17] In his evidence, the appellant had said that she turned, had run back towards him, had been fairly wound up at that point, had pushed him and then tried to slap him a couple of times. He said he had held her hands to stop her from pushing him and hitting him and he had told her to calm down and a friend would be there soon to pick them up.
[18] The Judge found, as a fact, the complainant had not been trying to hit the appellant but made no express finding as to what the appellant had believed she was doing. He made no express finding as to whether the appellant had tried to hold her hands. However, he did find that, as a result of her push, the appellant became aggressive and forcibly held her upper right arm with such force that he caused bruising and dug his nails into her.
[19] The complainant was cross-examined as to whether there had been previous incidents where she had physically attacked the appellant and had to be restrained by other people.
[20] Evidence was called for the appellant from two witnesses. They were both young friends of his. Their evidence was of marginal, if any, relevance. It suggested there had been occasions in the past, when the complainant and appellant were in a relationship, where their interaction was volatile. To the extent both of them could be said to have described an incident where the complainant had been physically aggressive with the appellant, the evidence was largely hearsay. The incidents those witnesses spoke of were not connected in time with those the appellant was charged with.
[21] That evidence would have been of no relevance to the Judge and is of no relevance to me in my assessment as to what happened in this first incident or as to what the appellant may have believed was happening or would happen. In giving his
evidence, the appellant did not suggest that he had acted as he did with the complainant because of the way he claimed she had assaulted him previously.
[22] I have carefully considered the evidence in relation to the first charge. Given self-defence was properly raised as a potential defence to this charge, had the Judge considered the issues in the way that was legally required, I am of the view that he could not have reasonably concluded that this charge had been proved beyond reasonable doubt.
[23] Although she may have been provoked by the appellant’s initial abusive comments and texts, the complainant acknowledged becoming angry and running at the appellant and pushing him. That, in itself, was an assault. Even if she was not trying to slap him, given she was angry and she acknowledged the appellant was telling her to shut up, on the evidence, the Judge ought to have found that it was reasonably possible the appellant thought she was going to assault him again in some way, that she was angry and that he needed to restrain her. There was no suggestion that he punched her. Her evidence, which the Judge accepted, was that he held her arm with just one hand.
[24] It was likely that, in doing so, he squeezed her so tightly that it caused bruising and left fingernail marks but that could also have happened with him holding her by way of restraint to prevent any further assault.
[25] The Privy Council in R v Palmer has said:10
If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.
[26] Mr Donnelly for the Police sought to support the Judge’s decision by arguing the evidence indicated there had been an interlude between the complainant’s assault and the appellant grabbing her arm. That is not consistent with the evidence as I have read it. Nor was it supported by the Judge’s decision. His finding was that “she did return to him and she did push him, but as a result of that push he became
aggressive and forcibly held her upper-right arm”.11 The Judge did not reject self- defence on the basis there was an interlude between the complainant’s push and his grabbing her arm.
[27] I reject the submission made for the Police that the fact the complainant was drawn towards the appellant when he grabbed her arm was inconsistent with him attempting to restrain her and acting in self-defence. If he grabbed her arm to restrain her in the course of an altercation, she could have been drawn towards him, not because that was his intent but simply because it was the incidental consequence of his holding her arm. I also reject the Crown’s submission that if at that time he told her to shut up, it would indicate he was acting aggressively. If he had said that, it would also have been consistent with his evidence that he was wanting her to calm down and not make a scene in front of others.
[28] In relation to the first charge of male assaults female, I thus find the Judge made errors as to what the Police had to prove and in his assessment of the evidence to such an extent that a miscarriage of justice has occurred in that it affected the outcome of the trial in relation to that charge.
[29] I thus must allow the appeal in relation to the first charge of male assaults female and quash the appellant’s conviction on that charge.
The second charge of male assaults female – the incident at the flat
The form of the charge
[30] The second charge was simply that being a male he assaulted a female, namely the complainant. No particulars of the actual assault were included with the charge. No objection was taken to the form of the charge when the matter was before the District Court. The appellant would have known the basis on which he was being charged through the summary of facts which the Police would have made available to him as part of normal disclosure and also the statement they would have obtained from the appellant.
[31] The acts described by the complainant said to prove this charge related to the altercation back at his flat where they had gone after leaving the restaurant. The complainant said the appellant had kicked her in the stomach and in the throat when he was lying on his bed and she was walking towards him and had hit her in the face causing her nose to bleed.
[32] Mr Eaton argued the charge should be treated as a nullity because it did not comply with ss 16 and 17 of the Criminal Proceedings Act. Those sections state the charging document must contain one charge only, must relate to a single offence and must contain sufficient particulars.
[33] In his submissions, Mr Eaton stated the charge had been advanced by reference to “four identifiable alleged assaults”. He included the ripping of the dress as one of those assaults.
[34] I would not allow the appeal or quash the conviction on this charge on the basis of this argument.
[35] In Mason v R, the Supreme Court considered the particular characteristics of the alleged offending required division of a charge, but stated:12
… the outcome of this case should not be taken to be a signal to prosecutors that separate accounts should routinely be included in an indictment where, for example, a series of blows has been struck in a fight.
[36] Even if I had determined the charges should have been divided into essentially three or four different alleged assaults, I would not have allowed the appeal for that reason. If the evidence had justified conviction for an assault relating to one of the alleged particulars, I would not have been satisfied that the error in relation to the form of the charge had resulted in a miscarriage of justice in the way that is necessary for an appeal to be allowed in terms of s 232(2) and (4).
[37] That conclusion would also be reached having regard to s 379 of the Criminal
Procedure Act:
379 Proceedings not to be questioned for want of form
No charging document, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding may be dismissed, set aside, or held invalid by any court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.
The argued errors
[38] The appellant’s defence in relation to this charge and its particulars was largely that he was acting in self-defence. I have already set out how the Judge’s analysis of what the Police had to prove in that regard was flawed.
[39] Mr Eaton, for the appellant, also argued that the Judge erred in his assessment of the evidence in failing to determine who was the aggressor and why, in failing to assess the circumstances as the appellant believed them to be, and in stating that when she was struck on the face she was trying to restrain the appellant after he had kicked her twice in the body.
[40] To assess whether there were such errors and whether any of them resulted in a miscarriage of justice, I must carefully consider the evidence adduced by both the Police and the defendant to see whether a different result could have been reached approaching the case as the Judge should have.
The Judge’s decision
[41] In his decision, the Judge referred to evidence the complainant gave as to what happened when she and the appellant had gone back to his address after leaving the restaurant. He summarised the evidence given by the appellant.
[42] The Judge said he accepted the complainant’s evidence that when they were both in the appellant’s room, the appellant told her that he would be going out with friends and would not be back that night, and an argument then developed. The Judge accepted the complainant’s evidence that the appellant took her phone and said he was sending a text to her father to pick her up. The Judge said, while this was happening, the appellant came from behind and grabbed her by the dress, ripping it. The Judge found this made the complainant upset and angry, causing the
appellant to back away and get onto the bed where he continued texting or using the phone. The Judge found that, as the complainant approached the appellant to obtain the phone, he lashed out with his foot, connecting with her stomach so as to propel her backwards. When she continued to approach, he then kicked her in the throat. The Judge accepted the complainant’s evidence that, while she was on the lower half of his body when he was lying on the bed, the appellant had struck her in the nose with sufficient force to cause it to bleed. He said this could not have been in self- defence.
[43] He concluded that the complainant was an honest and credible witness. He said that he found her version of events was more credible and more believable than the appellant’s evidence on this charge. He rejected the appellant’s evidence that the kicking to the throat had never happened.
[44] I accept that the Judge presiding over the trial, seeing and hearing the witnesses give evidence, was in a better position than I can be in assessing the credibility of relevant witnesses. This was not necessarily because of any observations he might have made as to the demeanour of the witnesses while they were giving evidence, although that may have been of assistance. It is also because of the advantage he had in considering the evidence as it was given, particularly the witnesses’ responses under cross-examination, the manner in which questions were put and the importance of the evidence obtained as a response in the context in which it was given.
[45] The Judge did not explain why he preferred the evidence of the complainant. The likely reasons can however be discerned from the court transcript. The complainant’s evidence is coherent and consistent with actions that were admitted by the appellant (for example, the holding of her arm outside the restaurant, the struggle for the phone at the flat, her suffering a bleeding nose). On her account, she acknowledged ways in which she had been physically involved in the altercations and ways in which her actions may have contributed to the appellant becoming angry and agitated.
[46] The complainant described what later happened with the appellant’s brandishing of the belt and going to the locked cupboard where guns were kept and making threats. Her account included detail which again was consistent with her description of what was happening generally. Her allegations and evidence as to those aspects of the events appear to have been given because they were part of all that had happened. They were not otherwise needed to explain how she said she had been assaulted at his flat.
[47] In contrast, the appellant’s evidence as to what happened at the flat did not adequately explain what he might have said or been doing with the phone that could have caused her to be so determined to get it. He said she had become aggressive and tried to take his phone off him after he had not been talking to her and was just trying to ignore her. Although he said she thought he was texting some of his friends about having a drink and did not want him to go there, he gave no explanation as to what he might have said or done which could have caused her to be thinking that. In his evidence in chief, he was asked to say what happened while he was lying on his back on the bed and she was attempting to get the phone off him. He said he was trying to ignore her and just calm her down. He said nothing at that point about using his feet to try and stop her coming towards him.
[48] Under cross-examination, he denied completely being in any way aggressive towards the complainant or saying or doing anything that might have caused her to become upset. He denied completely any brandishing of the belt or going to the locked cupboard, behaving in an agitated way or making threats associated with such actions. The Judge’s understandable rejection of those denials in the face of the complainant’s evidence would necessarily have impacted on his general credibility.
[49] Mr Eaton, for the appellant, did not seek to challenge the Judge’s conclusions as to the general credibility of the complainant as a witness. Rather, he carefully analysed what the complainant had said. He argued that, on that analysis, if the Judge had considered what the Police had to prove, he could not reasonably have concluded that the required elements of this charge had been proved beyond reasonable doubt.
[50] I now analyse the complainant’s evidence against that background, having
regard to the submissions that were made to me.
The complainant’s evidence
[51] The complainant said that, when the appellant’s friend returned them to the appellant’s address, she got out of the car, went inside and went straight to the bathroom. The appellant stayed in the car. She said she was in the bathroom, the appellant came in, stared at her and then slammed the door and walked to his room. The complainant then went to his room. The appellant told her that he was going out with his friends and would not be coming home that night. She said that “obviously that started an argument”. But that he then took her phone and said he was going to text her father to pick her up because they were arguing.
[52] The complainant responded by trying to get her phone off him. They were wrestling over it and then he came up behind her and ripped her dress in half. She said that made her feel “really upset”. Under cross-examination, she accepted that the wrestle over the phone had resulted in a rip to her dress of around about 30 cm. The complainant said the appellant told her he was going to sue her, ring the Police and sue her family. Her evidence was that she wanted his phone because “he was gonna ring the Police on me”. She agreed the door was behind her at that point but she had not tried to leave the room because the appellant said he was ringing the Police. She said she walked towards him and he kicked her in the stomach, sending her backwards. She repeated it was “his phone”. Under cross examination, she said “I didn’t take his phone until he said he was gonna ring the cops”.
[53] She was adamant he had not just put his foot out and held it there when he kicked her in the stomach. She was adamant he had also kicked her in the throat but agreed she had then managed to swing around and sit on top of him. When it was suggested that what she was saying about being kicked in the stomach and in the throat was unbelievable, given that she approached him again, she answered:
Can you imagine the adrenalin I had? Do you, can you imagine everything that just went on and how frightened, upset, angry we both were. I wasn’t just gonna lie on the floor, I had to get up. I had to do something.
[54] She said that, after the kick had sent her backwards, she walked towards him again and he kicked her in the throat, sending her backwards again. She said “he was lying on his back on the bed and he raised his foot to kick me in the throat”. She said it took her breath away. It was put to her that she was angry. Her answer was “I was afraid. I was, I just had adrenalin, I was scared, I was everything”. It was put to her that she was wound up and had approached him again in that manner and he had taken steps to restrain her or to defend himself. Her initial response to that was “so do you think that’s appropriate?”
[55] She said she then managed to get on top of the appellant and he started hitting her in the face. She said he was lying on his back. She was sitting on his lower half when he started hitting her in the face with his hands and fists. She said he did this with both a closed and open hand “just to hit her”. She was asked whether any of these strikes hit her. She answered “yes one connected with my nose”.
[56] She said that, as a result, her nose started bleeding and swelling. After that she said the appellant told her that she was bleeding so she stood up and backed away into the corner of the room. He sat on the end of his bed, ripped his top off himself, threw it on the ground, started crying and saying “why would you do that” pointing to the top. She said he then started laughing and saying he was going to ruin her life.
[57] Although the Judge preferred the complainant’s evidence to that of the appellant, the appellant did say in evidence, consistent with the evidence of the complainant, that at his house the complainant had become increasingly angry and that there was a struggle involving a phone. Under cross-examination, he said she had come towards him from the end of his bed and he used his feet to hold her away.
[58] In considering what had happened during these altercations, the Judge could reasonably have taken into account what happened afterwards. In that regard, it was relevant that the complainant stood up and backed away because the appellant said she was bleeding. She also said he went to a cupboard in his bedroom which she knew he kept his guns in. He could not get in because the cupboard was padlocked. She said he tried to open the cupboard and he told her that he was going to kill her.
She said this left her feeling scared but then he stopped. She said she still had his phone at that point. She said he walked up to her, picked up his belt off the ground, held it at the end and told her to give him his phone or he would hit her. She said, after this she covered her head and braced herself. It is significant that she had his phone at that stage. On her evidence, she must have been able to get it off him at some stage when they were struggling on his bed. He then dropped the belt and walked out of the room.
[59] The complainant said she stayed the night with him. She agreed she had not texted anyone about what had just happened. The complainant left the house the next morning but she said he had got up first and left before her, indicating in an unpleasant way that he did not want to see her again. She said that was the end of their relationship and they had not had any involvement with each other since.
The ripping of the dress
[60] Although the Judge referred to the appellant ripping the complainant’s dress as part of what happened back at the flat, I do not consider he dealt with this as constituting an assault. Nor could he have. Assault means the act of intentionally applying or attempting to apply force to the person of another. Whatever happened to the dress, on the evidence, could have occurred accidentally as part of the struggle for a phone. It did not involve the application or attempted application of force to the complainant’s body.
The blow that caused the bleeding nose
[61] On the evidence, I would also not have been sure that the complainant’s bleeding nose was caused by a deliberate punch with a closed fist or open hand to the complainant’s face.
[62] The complainant said that, after she had been kicked in the throat, she approached him again and managed to get on top of him. At that point, as already referred to, she was upset and angry. As she saw it, she “had to do something”. She must have been forceful in what she was doing. She managed to take the appellant’s phone off him.
[63] When asked under cross-examination whether the blows were with a closed
fist using both hands, she said “Yes. It was more like a, it was like a scramble if that
– just hitting, punching anything”. When it was put to her that she had not been hit with either a closed fist or an open hand, her answer was not that she had seen how he had hit her. Her response was “No, incorrect. A nose just doesn’t start bleeding for no reason. I was hit in the nose. My nose had swollen, swelling”. When she initially described this in her evidence in chief she said that, when she was sitting on him, he started hitting her in the face with “his hands, his fists”. She said it was “both. It was just anything … just to hit me”. When asked if any of these hits struck her, she said “Yes. One connected with my nose.”
[64] On reading all her evidence, I consider that her evidence as to how she was hit results not from observing what the appellant was trying to do but from reasoning back from the fact she did suffer a bleeding nose.
[65] On all that evidence, the blow to the nose could have been suffered when the appellant was flailing about with his hands, trying to prevent the complainant from getting his cell phone.
[66] Consistent with the appellant not having wanted to deliberately hit her in the face, after her nose started to bleed, the scuffle for the cell phone stopped because the appellant told the complainant she was bleeding.
[67] She agreed that during this incident she grabbed his shirt collar. She was shown a photograph of what was put to her as a scratch mark and a bruise on the appellant. It was suggested these were a result of the incident that night. She said she did realise she had scratched him but she did not recall bruising his arm.
[68] In considering whether there could have been an assault through a blow to the complainant’s face, I also accept the Judge made an error which would have created a real risk that the outcome of the trial was affected. The Judge stated that the complainant had received a bleeding nose from a blow to the face when she was trying to restrain him, the appellant having kicked her twice about the body. On her evidence, she suffered the bleeding nose when, in an agitated state, she was trying to
get the appellant’s phone off him. There was no evidence she was trying to restrain the appellant.
The kicks
[69] Mr Eaton persuasively presented a scenario as to how the kicks to the stomach and throat could have occurred in a way consistent with such contact occurring accidentally or by way of self-defence. On a careful reading of all the evidence, I do not accept the Judge necessarily had to come to such a conclusion, considering the potential defence of self-defence as he was required to.
[70] The way in which both the complainant and the appellant acted and spoke with each other on the night of 11 December 2015 bore the hallmarks of immaturity. The complainant was clearly upset with the appellant after they left the restaurant. She did not like the way he had spoken to her or the message conveyed in the texts he had sent her. She was still upset with him when they went back to his flat. On the evidence, the Judge could quite reasonably have concluded that he made statements to her about calling the Police and suing her family. I would describe such statements as juvenile, taunting and of a bullying nature. Had the complainant been more mature, she might well have ignored them or appreciated how silly they were. She would have been well advised to have withdrawn from any confrontation at that stage. Instead, she became determined to get the phone he was holding, even after her dress had been ripped and again after she had been kicked in the stomach and the throat.
[71] On the evidence, it was open to the Judge to find the appellant had gone to the gun cupboard, shaken it and made the threat that he did. It was also open to the Judge to find the appellant had brandished his belt in the way the complainant had described. All of that evidence indicated the appellant had become irrational and aggressive in response to what was happening. The way in which the complainant described the appellant crying and ripping his shirt was also consistent with this.
[72] The complainant’s evidence was that, after the appellant had ripped her dress and had told her he was going to sue her and her family and ring the Police, she walked towards him and he kicked her in the stomach just above the belly-button,
hard enough to send her backwards. She said that after this she went back towards him on the bed, he raised his foot and kicked her to the throat hard enough to take her breath away. It was after this, she said, she managed to get on top of him “to get his phone” and she said he started hitting her in the face.
[73] On a careful consideration of the evidence without error, the Judge could still have concluded that the kicks were acts of aggression and it was not reasonably possible the appellant thought the complainant was going to attack him. Such a conclusion was not however inevitable on the evidence as recorded.
[74] The complainant had been aware that during the altercation she had scratched the appellant. With the way the complainant described the state she was in and what she was trying to do, it was unlikely that she was simply walking towards the appellant when he kicked her. The appellant produced photographs which suggested he had suffered some bruising in whatever had occurred. Had the Judge not made the error he did as to the elements of self-defence, he may have concluded it was reasonably possible that the appellant had believed that, when the complainant was attempting to get his phone off him, she was also attacking him physically and that he then thrust his foot at her, on two occasions, while lying on his back so as to keep her away from him. On that basis, he could also have considered that the force used was reasonable. Had he reached such a conclusion, the second charge of assault would not have been proved beyond reasonable doubt.
[75] Applying ss 232(2)(b)-(c) and 232(4), I must allow the appeal if I am satisfied an error occurred in the trial that has created a real risk that the outcome of the trial was affected. That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.13
[76] The Judge made an error as to what legally the Police had to prove in relation to this charge with regard to self-defence. He made the error I have already referred to in holding that the appellant was trying to restrain the complainant when she
suffered the bleeding nose. I consider he also made an error in not identifying the
13 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
way and extent to which the complainant had become agitated and determined to try and get the appellant’s cell phone off him at the time she was struck with his foot and when she suffered the bleeding nose.
[77] Having carefully considered the evidence, I cannot say that, had these errors not been made, the appellant would inevitably have been guilty of an assault.
[78] Accordingly, I must allow the appeal in relation to the second charge of assault and quash that conviction.
The third charge – threatening to kill
[79] The appellant was also convicted of threatening to kill the complainant.14
The complainant’s evidence was that, after her nose was bleeding, the appellant had been upset but was also acting irrationally. She said he ripped his own shirt, started laughing, told her he was going to ruin her life but was also upset “because he thought I was gonna tell people”. She said he then went to the padlocked cupboard in which he kept his guns, was ripping at the handle to get in there but could not because it was padlocked. While doing that, he said he was going to kill her.
[80] The Judge accepted the complainant’s evidence as to what was said. He found the appellant had been unable to get into the gun cabinet and, out of frustration, had said that he was going to kill the complainant. The appellant in his evidence denied that any of this had happened.
[81] The Supreme Court of Canada, in R v McRae, said:15
Threats are tools of intimidation and violence. As such, in any circumstance where threats are spoken with the intent that they be taken seriously, even to third parties, the elements of the offence will be made out.
[82] The complainant’s evidence was that she was scared by what he said. She also said that, soon after saying this, he stopped and said “you should just kill
yourself, you’re not worth it” but it was “like a nightmare”.
14 Crimes Act 1961, s 306(1).
15 R v McRae 2013 SCC 68, [2013] 3 SCR 931 at [24].
[83] Having accepted the complainant’s evidence as to what the appellant did and said, the evidence was sufficient for the Judge to find this charge had been proved. I do not consider there was any error in the conclusion he reached in this regard.
The fourth charge – possession of offensive weapon
[84] The appellant was also found guilty of being in possession of an offensive weapon, namely a belt, in circumstances that prima facie showed an intention to use it to commit an offence involving the threat of violence.16
[85] The appellant said he had removed the belt from his jeans when he had taken them off at some point. The complainant said that, after the appellant had been to the cupboard and made his threat about killing her, she still had his phone. She said that he then picked up his belt off the ground, held it in the air and told her to give him his phone or he would hit her. She said he was holding the belt above his shoulder. She said that in response she turned her back to him, covered her head and just braced herself, that she thought he was going to hit her. She did not give him the phone but said that he then dropped the belt and walked out of the room.
[86] The appellant denied any such action with the belt.
[87] Given the reasonable acceptance of the complainant’s evidence as to what the appellant did with the belt, there was sufficient evidence to justify his being found guilty of this charge.
Conclusion as to appeal against convictions
[88] It follows from the above discussion that the appeal in relation to the two charges of an assault by a male against a female must be allowed. On those charges, pursuant to s 233, I must and I do set aside the convictions. Pursuant to s 233(3), I
must also either direct a judgment of acquittal be entered or that a new trial be held.
16 Crimes Act 1961, S 202A(4)(b).
[89] I am satisfied that on the evidence presented in relation to the first charge (CRN 15025003047) the appellant should have been acquitted. For that reason, I direct that a judgment of acquittal be entered on that charge.
[90] On the second charge (CRN 15025003048), I cannot say that on the evidence he would necessarily have been entitled to an acquittal but for the errors that were made. I have regard to the seriousness of that offence as alleged, the cost of a new trial, the ordeal for both the complainant and appellant in having to participate in a further trial of that charge and the deterrent and punitive effect of the penalties that will have to be imposed in respect of the charges on which the defendant remains convicted. I do not consider it would be in the interests of justice for there to be a new trial of the appellant on that second charge of male assaults female. For that reason, I direct that on that second charge a judgment of acquittal also be entered.
[91] The appeals against conviction on the threatening to kill and possession of an offensive weapon charges are dismissed.
Appeal against sentence
[92] At the end of his decision in which he found the appellant guilty of all four charges, the Judge entered convictions on 14 June 2016. The appellent was sentenced on 11 August 2016 for those four offences and also on a further charge under the Summary Offences Act 1981 that he had assaulted the complainant in late March 2015. On all charges, he was sentenced to three months’ community detention, 100 hours’ community work and required to pay reparation of $80. During the period of community detention, he was subject to a curfew between 7.30 pm and 6.30 am daily but from 9.00 pm Wednesday to 6.30 am Thursday. The Judge also made a final protection order. As a condition of the protection order, the appellant was required to complete the stopping violence programme.
[93] In relation to the earlier charge under the Summary Offences Act, he was not charged with that offence until 29 February 2016. It seems likely the charge was laid to assist the Police in attempting to prove the other charges. An unsuccessful attempt
was made to have the charge relating to that offence heard at the same time as the charges relating to the 11 December 2015 events.17
[94] The facts as to the earlier charge were that the appellant had been at an address with a number of friends. The appellant decided to go to town with them. The complainant followed him and asked him not to go to town. The appellant turned around and pushed her, as a result of which she fell backwards onto the bed.
[95] In written submissions, Mr Eaton contended the sentence was manifestly excessive. In oral submissions, Mr Eaton said that, if the two convictions for male assaults female were quashed, the offending in relation to the other two charges was not so serious as to warrant a conviction. He suggested that the appellant had probably only faced charges because of the allegations of actual assaults. He noted the complainant had not been hit through either the use of the belt or the threat that had been made. He suggested that a threat to kill in circumstances such as occurred here was routinely met with a fine. He suggested that, even if the convictions for all offences had been upheld, the appropriate penalty could involve the imposition of a fine or community work.
[96] In their submissions, the Crown acknowledged the original sentence following conviction on all four charges was stern. They nevertheless submitted it was within the appropriate range. They referred to the Court of Appeal’s statements that there is no tariff for charges of male assaults female and that the circumstances of such offending and of offenders can vary greatly.18 The Crown referred to the earliest incident of an assault as involving domestic violence but at a “very low level”.
[97] On appeal, the appellant’s conviction on two of the charges has been quashed. For that reason alone, it is necessary to carefully review the appropriateness of the
sentence imposed.
17 New Zealand Police v Cox DC Invercargill CRI-2016-025-000379, 30 May 2016.
18 Moa v R [2015] NZCA 429 at [9].
[98] An important feature of the offending and the offender was that it has involved two people aged only 18. As mentioned, their immaturity and what, at times, would appear to be the destructive nature of their relationship and the way they interacted with each other, were significant factors in the appellant’s offending. One of the few positive consequences of this offending is that the relationship is finished and, on the complainant’s evidence, they have since had nothing further to do with each other.
[99] The appellant had never previously been involved with the Police. References provided to the Court at the time of his original sentencing showed that he was regarded as “decent young man”. He had obviously exhibited self-discipline and commitment in his employment as an apprentice mechanic. He was able to interact socially with others in a positive way, as demonstrated through his involvement with rugby and cricket teams. He has continued to have the support of apparently responsible people within the community.
[100] His parents provided a responsible and thoughtful letter to the Court. In it they said they felt they had let the appellant down “to a certain degree as we haven’t helped him understand what to do when a relationship goes wrong”. They said that the appellant had accepted the fact that his actions were not acceptable and that he was regretful and wanted to offer his apologies to the complainant and the Court and make reparation in an appropriate manner. They asked for the Court to avoid imposing a penalty that would carry with it life-long consequences for mistakes and errors of judgment made while he was growing up and maturing.
[101] The fact the appellant has the understanding and informed support of his parents, and people in the community including his employer, should significantly assist in avoiding any repetition of this offending. The probation officer’s report to the Court also indicated that, despite the appellant’s denial of the offending, he was assessed as being a low risk of harm to others.
[102] On the other hand, that report of 11 July 2016 stated that he continued to deny his offending, despite having been found guilty. The report writer had considered whether a rehabilitative sentence of supervision should be imposed but,
because of his continued denial, had concluded that any rehabilitative activity would be lost on him. In this regard, I do however give the appellant credit for the guilty plea he entered as to the Summary Offences Act assault.
[103] The evidence indicates that, to the appellant, it was acceptable to respond to a situation in his relationship which he did not like by using or threatening to use physical force of different degrees. That was apparent in the way he pushed the complainant onto the bed when she did not want him to go off with his friends, the way he threatened the complainant with a belt and the threat he made at the time he became frustrated at trying to get into the gun cupboard. I note however that both the verbal threat and the threat through the waving of the belt were brief. What happened did not deter the complainant from staying the night with him.
[104] On 11 December 2015, the appellant’s actions showed that he was using the threat of force and control to overcome what was a stressful situation for the complainant.
[105] It is of concern to me that one of the two young men who gave evidence for the appellant of alleged previous out-of-control emotional outbursts between the complainant and the appellant said “they had their fights I suppose like everyone”.
[106] The appellant has been convicted of threats that amount to domestic violence. As this case demonstrates, such behaviour in a relationship puts both the victim and the perpetrator at serious risk.
[107] The Judge was right to say he had to hold the appellant accountable for his actions and denounce his conduct. He was also right to say he needed to look at the least restrictive outcome.
[108] There is a significant punitive element in the appellant, as a young man, having convictions for separate offences. His involvement with the Police and the whole criminal process should have been a salutary experience for him. For the appellant, there was also a punitive element in the making of a protection order. Until such an order is discharged, the appellant would not be able to possess a
firearm and so would not be able to participate in recreational hunting or shooting in the way he was used to and enjoyed.
[109] The appellant needs to realise how resorting to violence, or the threat of violence, is not an acceptable or appropriate way to deal with stressful situations in a relationship. Given the nature of the complainant’s relationship with the appellant, the fact they are of a similar age, live in the same general area and could have continuing social contact, I am satisfied the making of a protection order is necessary for the protection of the complainant and she does not object to the making of such an order.
[110] The making of a protection order with the requirement for attendance at a non-violence programme also was an appropriate way of addressing the interests of the victim.
[111] It is relevant that the appellant will be able to apply for the discharge of such a protection order. If he is able to do so, having completed a non-violence programme will also assist him in providing independent evidence to any authority or agency that might be concerned at his previous convictions that he has addressed the causes of that offending and is no longer at risk of offending in the way he once was. The making of a protection order and the associated potential for discharge thus enables him to lessen the detriment he will suffer by having convictions for the offending.
[112] Given the quashing of his convictions on two charges, I do not consider the offending required the imposition of a sentence of community detention. Insofar as he was sentenced to community detention for those offences on which he remains convicted, I consider the sentence was manifestly excessive.
[113] Accordingly, the appeals against sentence are allowed. On the Summary Offences Act charge of assault (CRN 16025000534), the appellant is convicted and discharged. On the charge of threatening to kill (CRN 15025003051) the appeal against sentence is allowed. The appellant remains convicted and is fined $300. He is ordered to pay reparation of $80. A final protection order is also made. It is a
condition of that order that the appellant will attend a stopping violence programme. The Registrar of the District Court at Invercargill will arrange for the appellant to be referred to an appropriate service provider and for follow up.
[114] I agree with the District Court Judge that, if the appellant has completed the stopping violence programme and there has been no ongoing contact between the appellant and the complainant, it should assist in a significant way in obtaining a discharge of that protection order.
[115] On the charge of possession of an offensive weapon (CRN 15025003050), the appellant is convicted and fined $200.
[116] There continues to be a final suppression of the name of the victim in respect of all charges.
Solicitors:
J Eaton QC, Bridgeside Chambers, Christchurch
Preston Russell Law, Invercargill.
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