Davey v Police
[2016] NZHC 2506
•21 October 2016
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI-2016-483-15 [2016] NZHC 2506
BETWEEN HAMISH JOHN DAVEY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing (AVL): 18 October 2016 Counsel:
S J Ross for Appellant
J M Woodcock for RespondentJudgment:
21 October 2016
JUDGMENT OF WILLIAMS J
Introduction
[1] Mr Davey was found guilty of an assault on his ex-wife following a defended hearing before Judge Cameron on 23 June 2016.1 He was sentenced to 80 hours’ community work.
[2] He appeals against the conviction and sentence.
District Court conviction decision
[3] The Judge noted the background which was that Mr Davey and the complainant, his ex-wife, had been separated for about three years, and there had been ongoing issues relating to care of children and relationship property. There was an arrangement for fortnightly contact, which had not been working well.
1 Police v Davey [2016] NZDC 12347.
DAVEY v NEW ZEALAND POLICE [2016] NZHC 2506 [21 October 2016]
[4] On 14 February 2016, Mr Davey went to the complainant’s property with the intention of taking the children for the day. She was not there, so he went to her new partner’s house. When he arrived there, she was in the driveway cleaning her car.
[5] The complainant’s account was that she was sitting on the edge of the passenger seat of the vehicle with the door open, cleaning the console. She was sitting on the edge of the passenger’s seat with her left leg out the door and her foot on the ground. Mr Davey approached from behind. The left-hand door slammed on her leg, causing her considerable pain. Then she turned around and saw Mr Davey through the glass window, saying words to the effect of “Where are the kids?” He then went towards the property, but she ran past and went inside, locking the front door, and then the back door. He then peered through a window and called out to one of the children, before leaving the property. As he was leaving, he had an unpleasant exchange with the complainant’s partner.
[6] Mr Davey’s position was that the complainant had fabricated the account. He gave evidence that he had taken two photographs of the vehicle as he left the property. Judge Cameron found that if the incident had not happened, there would have been no reason for him to take the photos, and that his doing so points to being a first step in preparing a defence.
[7] Mr Davey also produced photos of himself sitting in another vehicle to try to disprove the complainant’s account of how she was sitting in the car. The Judge, however, found that the complainant was much shorter than Mr Davey; it was a different vehicle; and his body was positioned differently to her account in at least one of the photos. For these reasons, he found that the photos did not create any reasonable doubt.
[8] Constable Ericson, who attended the scene, gave evidence that the complainant had demonstrated how she was positioned, and was satisfied that the position of the red mark on her leg corresponded with where the point of impact would have been.
[9] The Judge also rejected the suggestion that the door may have shut inadvertently as a result of Mr Davey squeezing past, because Mr Davey accepted that he walked up from behind the car, so he would not have been able to close the door from that side.
[10] The Judge noted that Mr Davey had requested that fingerprints be taken of the door, and this was declined, because the constable had observed the complainant cleaning the car.
[11] The Judge rejected that the account was fabricated. He found it to be clear, credible and corroborated by the bruise on the complainant’s leg and the constable’s evidence. He also noted that Mr Davey had admitted to being upset on the day, going to the property uninvited, confronting the complainant, and going around to the back of the property.
[12] Accordingly, the Judge found the charge was proved. There was also a charge of threatening behaviour. The Judge found this was not proved because the evidence fell short of proving that Mr Davey knew his behaviour was likely to frighten.
Appellant’s submissions
[13] Mr Davey appeals on the basis that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. In particular, Mr Ross submitted that:
(a) The complainant denied that her leg was over the left edge of the seat.
(b)When demonstrating with a court chair, she was sitting towards the front of the seat with her left leg bent and clear of the chair, which, counsel says, would have meant that her foot could not possibly have been on the ground.
(c) The constable had, in fact, contradicted the complainant’s evidence
about where she was seated in the car.
(d)The Judge misunderstood his argument about positioning based on the photos of him sitting in the other car.
(e) The evidence as to Mr Davey pushing the door was merely circumstantial but this was not reflected in the decision.
(f)The complainant’s evidence was that she looked up and saw Mr Davey through the window, but this would mean he had pushed past the door, which requires an assessment as to whether he had accidentally pressed the door against the complainant’s leg. There was no basis for excluding this possibility on the police evidence.
(g) The Judge did not give weight to the appellant’s request to fingerprint
the door.
Crown submissions
[14] Ms Woodcock submitted that there was no error. An appellate court will only interfere with the trial Judge’s findings of fact in exceptional circumstances, and must be mindful of the appellate court’s disadvantage in not seeing and hearing the witnesses assessed by the trial Judge. She submitted that the Judge weighed the evidence, rejected any suggestions that the door was closed by inadvertent push, and rejected the defence that the complainant had lied about the whole incident. It was, Ms Woodcock submitted, open to the trial Judge to prefer the evidence of the complainant and to find that the defendant was not credible.
Discussion
[15] In my view, the complainant was consistent in her evidence about where she was sitting: on the front edge of the seat, with her left leg outside the car and bent, left foot on the ground, and her body twisted toward the middle of the car. That position was adopted because she was cleaning the console. The complainant did not say she had her leg over the left edge of the chair. She physically demonstrated this point in Court and, in the notes of evidence, the Judge then described her physical depiction in his own words. The Judge’s description was also consistent
with the complainant’s verbal description.2 The only suggestion that she was sitting on the left-hand edge comes from the cross-examination of the constable.3 But the constable initially said,4 and repeated in cross-examination,5 that she was sitting in the way that she had shown the Court. He was then asked “So she was sitting on
which edge the left-hand edge or the right-hand edge when she showed you?” to which he replied “well she was sitting on the left-hand edge”. And then:6
Q:Today when we watched her she wasn’t sitting on the left-hand edge of the seat was she?
A: Mmm.
Q: So we’ve heard she wasn’t sitting on the left-hand edge of the seat? A: Well today she wasn’t, no.
[16] But the question of whether the complainant was seated on the left-hand edge of the seat was not put to her.7 In any event, when she gave evidence in Court, she was not in the car in question and was not reaching over to clean the console. Even if there had been a material inconsistency in the evidence (as I have said, in my view, there was not), it is quite unrealistic to hold the complainant to a court room demonstration in which the circumstances were so different, and when the inconsistency complained of was never put to the complainant herself.
[17] It is likely, in my view, that the complainant was sitting on the front-left corner of the seat, and this is how the Judge interpreted the constable’s response. This interpretation was open to him on the evidence, particularly given the consistency in the complainant’s own description and the fact that the constable said that she had demonstrated the same position to him in the car as she did in relation to the chair in Court. Armed as I am, only with a transcript of the evidence and some photos, it is difficult to see any error in the Judge’s assessment of the evidence.
2 NOE at 13-14.
3 At 32.
4 At 30-31.
5 At 32.
6 At 32.
7 It was put to her that she was sitting on the “edge” of the chair, with which she agreed (at 14), but counsel did not specify which edge and it is obvious from her response that she interpreted
this as the front edge.
[18] It is well-established that, on appeal, factual findings should not be lightly overturned, and that appellant judges must be mindful of the trial judge’s advantage in seeing and hearing the witness. This is particularly so in relation to findings of credibility.8 This case exemplifies that principle – the Judge was satisfied by the complainant’s demonstration of how she was sitting and generally found her account to be compelling and credible. In the absence of seeing the demonstration and hearing from the witnesses myself, the Judge’s analysis cannot be faulted.
[19] As to the other points: Mr Davey says that the reason he took the first photo was to record the number plate, so he could avoid the complainant if he saw the car in town.9 And he said he took the second one because “this house is in my opinion a bit like a converted barn so I actually had a bit of a chuckle to myself.”10 The Judge’s assessment was that these explanations were unconvincing and he inferred that the photos were taken because the appellant knew he had assaulted the complainant and would need evidence. I agree.
[20] Mr Davey’s argument about positioning is that if someone was sitting in a comfortable position in the passenger seat (as demonstrated by him in one of the photos) then the person’s foot could not possibly be near the ground, let alone on it. The door, he suggested, would hit the leg at a point lower than the bruise on the complainant’s leg pointed to by her as proof of the assault. And if the person was leaning in, the foot would be higher, so the door would hit at an even lower point on
the leg.11 On this basis, the appellant argued, the complainant’s evidence was not
credible.
[21] In my view, the Judge was correct to reject this argument. Neither of his photos looks to me like the leg is in the position described by the complainant. And in any event, the complainant rejected the proposition that she was sitting comfortably in the seat. The Judge was entitled to prefer her evidence in that respect.
8 Jeffries v R [2013] NZCA 188 at [91]-[95]; Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13];
Rae v International Insurance Brokers [1998] 3 NZLR 190.
9 At 37.
10 At 38.
[22] Then the appellant complained that the evidence of him actually pushing the door was circumstantial, but this does not assist him. The Judge is perfectly entitled to rely on circumstantial evidence. And the argument that he might have accidentally knocked the door on the way past, rather than purposefully pushing it to hurt the complainant, is inconsistent with the appellant’s own evidence. He said in evidence the complainant was standing on the ground with her head in the car. He said he walked up to her and said “oh hi”; she then stood upright, asked what he was
doing, and ran into the house.12 If he had accidentally knocked the door, and the
complainant was not standing outside the car he would have said so in his evidence- in-chief. The Judge was entitled to take into account Mr Davey’s evidence as well as the police evidence when rejecting this argument as ex post facto and self-serving.
[23] I finally comment on the complainant’s leg bruise. Mr Ross argued that the bruise alleged by the complainant to have been caused by the assault had nothing to do with it, and her reliance on it suggested she must have been lying. The constable took a photo of the leg when he arrived around 15 minutes after the incident. There was insufficient time for dark bruising to form, Mr Ross submitted, since that takes one to two days.
[24] After the hearing, I was provided with a colour photo of the bruising and, in the absence of medical evidence, was able to consider the evidence for myself.
[25] In the photo, the discolouration appears darker than the surrounding skin but only very marginally so. It is difficult to know how accurate the representation of colours is in the photo. Much will depend on the technology used and the nature and quality of colour cartridges in the printer. I am not prepared to draw from the photo that the bruise depicted is likely to have been more than 15 minutes old.
[26] In evidence, the complainant said the bruise was red, and I am not satisfied that the photo is necessarily inconsistent with that. In any event, the foregoing discussion demonstrates that there are multiple other reasons to prefer the evidence of the complainant over that of the appellant.
[27] The conviction appeal is dismissed accordingly.
Sentence appeal
[28] Counsel made brief oral submissions in respect of the sentencing appeal. The appellant argues that the sentence was manifestly excessive. In addition, and more particularly, the appellant has, since the sentence was handed down, broken his leg and cannot perform the community work to which he was sentenced.
[29] Mr Ross indicated that the appellant could pay a fine and make emotional harm reparations as a substitute. Mr Ross indicated that reparations can be paid immediately.
[30] The Crown accepts that a sentence of community work is no longer appropriate given the appellant’s injury. The Crown submitted that emotional harm reparations of $1,000, together with an equivalent fine, would be an appropriate substitute sentence.
[31] I allow the sentence appeal accordingly, quash the sentence, and substitute a fine of $700 and order the appellant to pay emotional harm reparations of $1,000 within seven days.
Williams J
Solicitors:
Stephen Ross & Raukawa Simon, Solicitors, Whanganui
Armstrong Barton, Whanganui
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