Diallo v Police
[2020] NZHC 2233
•31 August 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-488-36
[2020] NZHC 2233
BETWEEN PAPA ABDOUL SELLY DIALLO
Self-represented
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 August 2020 Appearances:
The appellant in person
R Annandale and C Taylor for New Zealand Police
Judgment:
31 August 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 31 August 2020 at 3.30 pm Registrar/Deputy Registrar
Date:
DIALLO v NEW ZEALAND POLICE [2020] NZHC 2233 [31 August 2020]
[1] Following a three-day Judge alone trial in the District Court at Kaikohe, the appellant, Papa Diallo, was convicted by Judge McDonald on one charge of assaulting a child, his son B.1 At a subsequent sentencing hearing, Judge McDonald ordered Mr Diallo to come up for sentence if called upon within 12 months.2
[2]Mr Diallo appeals against his conviction on the following grounds:
(a)Judge McDonald erred by taking into account the victim’s unlawfully obtained evidential video interview;
(b)Judge McDonald erred by failing to take into account relevant matters, including prior decisions of the Family Court; and
(c)Judge McDonald erred by finding that the justification of parental control in s 59 of the Crimes Act 1961 was not available to Mr Diallo.
[3]Mr Diallo also appeals against the sentence imposed by Judge McDonald.
District Court decision
[4] Judge McDonald commenced the Diallo reserved decision by noting the protracted nature of the prosecution,3 and noted that it had arisen in the context of an ongoing battle in the Family Court and High Court over the custody and care of B between Mr Diallo and his ex-wife, B’s mother.4
[5] Judge McDonald also noted at the outset that, to find Mr Diallo guilty the Police were required to prove “that Mr Diallo assaulted his son [B]”, meaning that there had to be an intentional application of force to B, either directly or indirectly.5 The Police also had to prove that at the time of the assault B was under 14.6
1 Police v Diallo [2019] NZDC 19824 (“Diallo reserved decision”). On a second charge of assaulting B Mr Diallo was found not guilty.
2 Police v Diallo [2019] NZDC 24228 (“Diallo Sentencing Notes”).
3 Police v Diallo [2019] NZDC 19824 at at [3]-[8].
4 At [14]-[17].
5 At [11]-[12].
6 At [12].
[6] Both B and Mr Diallo gave evidence. Based on those accounts Judge McDonald determined that one evening, not long after B came to live with Mr Diallo in 2018, there was an argument about the internet not being available.7 B went to his room and Mr Diallo told B not to leave. At this point B said that if he wasn’t allowed to leave through the door, he would go out the window, and proceeded to try and jump out the window.8 B’s evidence was that he tried to leave via the window at least twice and that Mr Diallo grabbed him by his shirt and his hair and then threw him across the room, subsequently holding him down on the bed.9 Mr Diallo however, stated that he was concerned for B’s safety, and grabbed him by the seat of his pants and pulled him back inside each time he tried to leave.10 Once B was inside Mr Diallo said he held B down on the bed and told him to calm down.11
[7]With regard to the differing accounts, Judge McDonald held:12
Mr Diallo went up to the bedroom to have an intellectual discussion with his 12 year old son about ways to deal with conflict between the two of them… [B] was not allowed to leave his room so he said he was going out the window… On both accounts Mr Diallo assaulted his son. I find, by grabbing him by the shirt and the hair not by the pants. I also find that he threw [B] on to the bed and held him down.
[8] Judge McDonald then went on to consider the availability of s 59 of the Crimes Act, which provides that a parent may use force against a child if the force is reasonable in the circumstances and for the purpose of preventing or minimising harm to the child. After setting out the section his Honour found that Mr Diallo could not rely on s 59 as a defence:13
While the grabbing of [B] on the first occasion may well have been in order to prevent harm to him. The force used to prevent harm was unreasonable in the circumstances and I have some serious doubts as to whether in fact it was, when looked at objectively. There was no need to grab him, throw him on the bed and then hold him down. The second or third time he was dragged back in by his father and thrown on the bed cannot be. Other steps could have been taken … I am of the view that on the second and third occasion it was not in order to prevent harm to [B] but was used for correction.
7 At [32].
8 At [32].
9 At [26].
10 At [29].
11 At [29].
12 At [32].
13 At [34].
[9]On this basis Judge McDonald found “the charge proved”.14
[10] The sentencing took place four days after the reserved decision was released. In his sentencing notes Judge McDonald noted the application of s 9A of the Sentencing Act 2002 as an aggravating factor given B was under the age of 14, before noting that the charges Mr Diallo had faced “were just the latest in a long series of court hearings involving [him] and [his] former wife over the care and upbringing of [B]”.15
[11] Sentencing Mr Diallo, Judge McDonald rejected both the prosecution calls for a short sentence of supervision or community work and the defence submission that a conviction and discharge was appropriate. Judge McDonald stated:16
Any assault on a child is viewed in our society now as serious. I cannot put to one side the background. In my view, a convict and discharge is too far down the sentencing ladder. You do not need to have any further input from specialists in relation to the way you parent or in relation to your life generally. You have been subject to that type of investigation for a decade in the Family Court.
In my view, a sentence of to come if called upon within 12 months is an appropriate way of dealing with you. There must be some punitive element as well so I also order you to pay $500 towards the cost of prosecution.
The appellant’s position
[12]Mr Diallo says that his Honour erred in three key respects.
[13] First, he says that Judge McDonald erred by relying on B’s evidential video interview (“EVI”) as it was obtained unlawfully. Mr Diallo explains that in June 2017 he was awarded custody of B, but that B’s mother appealed this decision. Two weeks after the appeal hearing B reported the current offending and was removed from Mr Diallo’s care. It was at this time that the EVI was conducted. Relying on comments made in the Family Court17 Mr Diallo says that B should not have been removed from his care, and that as a result, the EVI was conducted unlawfully. He also says that the context surrounding the EVI illustrates that B’s mother told him to
14 At [35].
15 Sentencing Notes at [4].
16 At [6]-[7].
17 Diallo v Brownsword FC Whangārei, FAM-2008-027-000011, Minute of Judge Pidwell at [18].
make false allegations against Mr Diallo. Because of this, Mr Diallo says Judge McDonald should have found the EVI inadmissible and should have found B’s evidence to lack credibility.
[14] Secondly, and more broadly, Mr Diallo argues that with regard to the wider litigation relating to the parenting of B that the prosecution should not have been brought and that Judge McDonald erred by not considering the previous Family Court and High Court decisions relating to the parenting of B in making his decision. In Mr Diallo’s opinion these decisions would have given context to the allegations of assault by B and would have shown that B’s evidence was unreliable. The failure to consider these earlier decisions meant that Judge McDonald did not have a full set of information before him, and that this impinged on Mr Diallo’s right to offer a defence.
[15] Thirdly, Mr Diallo says that Judge McDonald erred by finding the justification of parental control in s 59 of the Crimes Act did not apply. Specifically, His Honour erred by failing to consider Mr Diallo’s subjective purpose for applying force to his son, that being to protect him from harm.
[16] No specific submissions were made in relation to the sentence imposed other than Mr Diallo’s comment in the course of the hearing before me that no sentence was appropriate as the “effects of the prosecution and its consequences were already too great”.
Approach on appeal
[17] Section 229(1) of the Criminal Procedure Act 2011 (CPA) allows a person to appeal against their conviction to the High Court.18
[18] Section 232 of the CPA sets out that an appeal against conviction must be allowed if, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason. In any other case the appeal will be dismissed.
18 Criminal Procedure Act 2011, s 230(b).
Discussion
[19] I begin my analysis by considering whether Judge McDonald erred in considering B’s EVI. Mr Diallo dedicated a significant portion of his written submissions to addressing the alleged unlawful approach of Oranga Tamariki and the Police in obtaining the interview, and to a decision of Judge Pidwell in the Family Court expressing disapproval of Oranga Tamariki’s removal of B from Mr Diallo’s care.
[20] While, having considered the material relied upon by Mr Diallo, I understand why Mr Diallo takes issue with the conduct of Oranga Tamariki, this does not mean the EVI had been obtained unlawfully. Ultimately, in terms of the prosecution as it unfolded, the admissibility of the EVI was for Judge McDonald to determine, which his Honour did after Mr Diallo challenged the admissibility of the interview in the course of cross-examination of Andrea Kingi, the prosecution witness who had interviewed B for the EVI.
[21] After considering the issue in his reserved decision Judge McDonald concluded the interview was “conducted in an appropriate way and in accordance with best practice and the regulations”.19 To this end Judge McDonald was satisfied “there [was] nothing in the interviewing of [B] that cause[d] any concerns”.20 Given the circumstances I can see no reason to find the interview was obtained unlawfully, and in any case I agree with Mr Annandale for the Police, that even if it had been, the exclusion of the evidence would be disproportionate to any alleged impropriety.21 Accordingly, I can see no error with his Honour’s decision to rule the EVI admissible.
[22] I turn now to the second issue, the Police decision to prosecute Mr Diallo in the light of the wider litigation over the parenting of B, and the lack of consideration given by Judge McDonald to the various decisions of the Family Court and the High Court relied upon by Mr Diallo.
19 At [23].
20 At [23].
21 Evidence Act 2006, s 30.
[23] On this issue I can readily understand why Mr Diallo feels aggrieved at having been prosecuted and, having been prosecuted, found guilty, given in particular the conclusions expressed in a specific judgment issued by Judge Pidwell in the Family Court.22 Issued some eight months prior to Judge McDonald’s reserved decision on the assault charges, Judge Pidwell expressed the following forthright views about the pending prosecution:23
One charge Mr Diallo now faces allegedly occurred between 29 June 2017 and 12 August 2017. [B] alleged that on this occasion, during a weekend, he was trying to climb out a window at Mr Diallo's house and his father picked him off the windowsill and threw him across the floor:
“He picked me up off the windowsill and he threw me across the room and ah, then he closed the door, locked it again.. I was really sad, and I was crying a lot, and it was really, really scary...”
"the first time he threw me down twice. The first time he threw me he grabbed a little bit of my hair and mostly my collar .. but the second time he grabbed more of my hair and that was quite painful.”
Mr Diallo's version of the night is contained in his comments to Ms Lightfoot as follows:
"he tried to jump out the window, and I wouldn't let him (it's a 2- storey drop), and I had to restrain him, but it wasn't an argument. He had displayed anger and physical violence, and smashed his computer and screen on the ground, when I told him he could not go on his device. I told him to go to his room, and then gave him a good 5 minutes to cool down. And I went to his room and said do you want to talk about it and he said no. So I said well when you do, let me know. And then he said well if you won't let me out, I'm going to jump out of the window. And so I basically said go ahead, and he tried to actual1y. And if he was serious I don't know, but I didn't want to take the chance, so I held him by the seat of his pants, and in the end he calmed down and we talked about it"
[B]'s evidential interview was watched and analysed by Ms Lightfoot. Her qualifications and expertise were not challenged. The Court notes that she was employed by the Department of Child, Youth and Family Services (as it was then) as a senior psychologist for more than 30 years in the area of forensic evaluation of adults and children. She supervised evidential interviewers and assessed forensic interviews for validity.
She concluded that there "appeared to be nothing in [B]'s statements during the evidential interview, to indicate he might be fabricating stories" and that [it] was a "valid disclosure". This means that the evidential requirements for such interviews was met.
22 Brownsword v Diallo [2019] NZFC 639.
23 At [51]-[58].
Mr Diallo is able to use reasonable force to prevent or minimise harm to [B], and/or to prevent him from engaging or continuing to engage in offensive or disruptive behaviour. At the time of the first allegation, [B] clearly did not want to be living with his father. The Court had just embarked on a well- known, evidence-based legal and therapeutic process of neutralising the effects of Ms Brownsword's alienation of [B], which had had the desired effect of poisoning his view of his father.
His perception that his father assaulted him on this occasion must be seen within that context.
In my view, Mr Diallo was entitled to restrain [B] from climbing out the window. [B]'s version of the incident that his father then threw him across the floor is likely to be his perception of what happened, and possibly the outcome of the force used. It is definitely affected by the fact that his view of his father and perception of events involving him has been infected over many years.
There is no reason apparent to me why the police chose to lay a charge relating to this incident 10 months later, coincidentally just after Ms Brownsword had argued her (losing) appeal in the High Court.
[24] Notwithstanding the tenor and content of Judge Pidwell’s comments they cannot assist Mr Diallo in this appeal. As Mr Annandale noted the decision to prosecute Mr Diallo is ultimately not a ground for appeal, able only to be reviewed (in separate proceedings) in exceptional circumstances.24 Likewise, it is clear Judge McDonald was correct in stating that the Judge alone trial convened to hear the assault charge was “not an opportunity for [Mr Diallo] to traverse the multitude of Family Court hearings and decisions”.25
[25] The reason for that is the earlier decisions of the Family Court and High Court in relation to the ongoing parenting issues were simply not relevant to the charge before Judge McDonald. On the contrary, Judge McDonald was required to determine the charges on the basis of the evidence presented before him, and in undertaking that task was not bound to adopt the previously expressed views of the judges not actually seized of the same issue.26 It was therefore not only open but a requirement for Judge McDonald to undertake his own assessment of the credibility of the evidence he himself heard, in this case from both B and Mr Diallo, and to prefer B’s evidence
24 Osborne v WorkSafe New Zealand [2017] NZSC 175, [2018] 1 NZLR held that the prosecutorial exercise of the discretion to prosecute or not is justiciable but a court will only undertake such a review in exceptional circumstances, namely where the decision is vitiated by policies or practices that improperly fetter the prosecutor’s discretion.
25 See Police v Diallo [2019] NZDC 19824 at [14].
26 Brownsword v Diallo [2019] NZFC 639.
over that of Mr Diallo, noting that Mr Diallo did not call any other evidence when his case opened nearly three months after the prosecution case had concluded. As a result, his Honour’s conclusion that on both B’s and Mr Diallo’s accounts of the offending, Mr Diallo had assaulted B was entirely open to him on the evidence and no error is therefore apparent.27
[26] The final issue relating to Mr Diallo’s conviction appeal is the availability of the justification set out in s 59 of the Crimes Act 1961. As has been noted, before Judge McDonald, Mr Diallo essentially admitted he had assaulted B but said it was for the purposes of protecting him from harm. His Honour assessed both the reasonableness of the force used by Mr Diallo and whether it was indeed used for the purported purpose, finding that both by grabbing B and by holding him down on the bed, Mr Diallo had used force beyond what was reasonable in the circumstance, and for the purpose of correction. Mr Diallo’s subjective intent was not relevant to this assessment.28 This finding, that s 59 was not engaged, was reasonably available to his Honour, and I can see no error here.
[27] Accordingly, Mr Diallo has failed to identify any error on the part of Judge McDonald, and on this basis the appeal against conviction must fail.
Sentence appeal
[28] In the notice of appeal Mr Diallo also sought to appeal his sentence. In the absence of any identified error, I am satisfied the sentence is well within the available range and indeed confirmed clearly Judge McDonald was aware of the wider matters at issue in determining the appropriate sentence. The appeal against sentence must be dismissed.
27 See Police v Diallo [2019] NZDC 19824 at [32]. I note that following the hearing of the appeal, Mr Diallo purported to file a range of additional material, including memoranda, email communications and witness summons, in an attempt to further illustrate that Judge McDonald erred by failing to consider the entire context of the case. However, as Mr Diallo has not sought leave to adduce this material on appeal and this information was never placed before Judge McDonald, it does not take the matters raised by Mr Diallo any further, nor is it fresh or cogent so as to warrant admission, and I decline to receive it.
28 See Adams on Criminal Law – Offences and defences (Online looseleaf ed, Brookers) at [CA59.03].
Decision
[29]The appeal against conviction and sentence is dismissed.
Powell J
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