Douglas v Police

[2013] NZHC 174

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-30 [2013] NZHC 174

PAUL DOUGLAS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 February 2013

Appearances: Appellant in Person

R Smith for the Respondent

Judgment:      12 February 2013

RESERVED JUDGMENT OF FOGARTY J

Introduction

[1]      Mr  Douglas  appeals  against  a  decision  of  the  District  Court  (Judge  S  J Coyle), who convicted him of a charge of injuring in circumstances that if death had been caused he would have been guilty of manslaughter, s 190 of the Crimes Act

1961.  He was granted leave to appeal.  He has served his prison sentence for the conviction.

[2]      The trial issue was whether or not Mr Douglas had pushed Mr Carey, the complainant, while he stood at the top of the stairs.  Mr Carey was Mr Douglas’s landlord.   Mr Douglas was one of a number of tenants in Mr Carey’s premises. Mr Carey was the property manager of the boarding house.  He prefers to call it a

hotel.

DOUGLAS V NEW ZEALAND POLICE HC DUN CRI-2012-412-30 [12 February 2013]

[3]      Earlier in the evening, Mr Douglas had had an argument with one of the guests.  Mr Douglas had been accusing that guest of using the shower as a toilet and being sick in the sink.    That guest was Peter O’Connor.   Mr Douglas decided to leave.  He packed his belongings into a backpack.  Mr Carey was trying to persuade him not to go.  Mr Carey said that Mr Douglas was pacing up and down.  They had a bit of an argument.  Mr Douglas went into his room and came out with a knapsack and gave him the keys.  Mr Carey remonstrated, saying:

“...you  can’t  just  walk  out,  you  have  to  give  me  a  week’s  notice  like everyone else does.”  And he stood at the – he stood at the top of the stairs and I said, “Paul, go back to  your room and we’ll  talk about it in the morning...”

And that Mr Douglas:

...just shoved me down the stairs and actually I fell down the bottom of the stairs.

[4]      Mr Douglas elected to remain silent when he was arrested for this incident some three weeks later.  In his evidence at trial, he said Mr Carey had been standing at the top of the stairs with his arm out, trying to stop him from leaving.  He said that he walked through his arm and, when he was three-quarters of the way down the stairs, Mr Carey came sliding down on his right-hand side with both arms at his side at a great rate.  He was cross-examined by the police sergeant in these terms:

Q.      Well I put it you Mr Douglas that two people couldn’t go down that

stairwell side by side? A.   That’s your opinion.

Q.      That there’s simply not enough room, particularly when you look at

image number 2?

A.      Have you measured the width of it?

Q.      I am putting to you there wasn’t enough room, what’s your answer?

A.      There was enough room.

Q.     And that if Mr Carey was falling down or sliding down as you say, it would have taken your legs out from under you?

A.     Not at all.  I would have been about the middle of the steps and he slid past on my right-hand side.

Q.      It just doesn’t make any sense Mr Douglas. There wouldn’t have been

– there’s not enough room?

A.      That’s your opinion.  Have you measured it, the width?

Q.     So according to your version, you brushed past his arm and then went down the stairs?

A.      That’s right, I walked through his arm at walking pace.

[5]      Faced with conflicting stories between the complainant and the defendant, the trial Judge analysed the evidence.  The relevant parts of his reasoning, pertinent to this appeal, are paragraphs [11] to [14].

[11]      There is clearly a factual dispute between Mr Douglas’ version of events and Mr Carey’s.  In all respects I prefer and accept the evidence of Mr Carey.  He was cross-examined at length as to his version of events and he remained consistent in what he said.   He described the tumbling action in detail as he went down the stairs.  He was able to describe how the grazes came to be on his hand due to the roughcast concrete down the stairwell.  He was clear in his recollection and his account of events.

[12]      Mr  Douglas’ explanation  simply  defies  logic.    In  response  to  a question from me, he indicated as he pushed past Mr Carey at the top of the stairs with his backpack on he did not feel his backpack brush Mr Carey.  It is a very narrow stairwell and if Mr Carey was standing in the position that both he and Mr Douglas accept he was standing, it would have been impossible for Mr Douglas to push past him without the backpack collecting Mr Carey.

[13]      When I look at the narrowness of the stairs, Mr Douglas’ explanation that Mr Carey then slid past him again is simply illogical.   It is not wide enough for Mr Carey to come sliding past Mr Douglas at speed and not collect Mr Douglas.

[14]      In  all  respects  Mr  Carey’s  evidence  is  more  consistent  with  the injuries and with the physicality of the stairwell when I look at the photographs.    I  find  as  being  proven  beyond  reasonable  doubt  that  on

6 September 2011, Mr Douglas pushed Mr Carey in his abdomen area and that as a consequence he tumbled down the stairs, falling on the landing, and

in the process broke two bones in his neck and sustained the grazing to

which I have referred.   That quite clearly could have been more serious, particularly in relation to the neck fractures, and if death had been caused Mr Douglas would have been guilty of manslaughter.

The argument on appeal

[6]      Mr Douglas sought to adduce new evidence, being measurements he had made of the width of the stairs, based on Dunedin City Council plans of the hotel.

Mr Douglas qualified himself by producing his University of Otago examination results, which led to him graduating with a Bachelor of Surveying.  No dispute was taken for the purposes of the appeal as to his measurements.  Essentially, he used two methods to try to calculate, from the photographic evidence and the plans, the width of the stairs.   He calculated a potential range and width of the stairs from 920 millimetres to 1220 millimetres.  For practical purposes, I accept that the stairs were about one metre in width.  I also accept the inevitable conclusion that on this width two people 50 centimetres wide at the shoulders can pass each other.   More pertinently, there is room for a falling body to pass a person standing on the stairs, as the legs of that person are potentially occupying a space far smaller than 50 centimetres wide.  Mr Douglas submitted that he believed that the Judge made an error when he found Mr Douglas’s explanation that Mr Carey then slid past him was simply illogical. The Judge found:

It is not wide enough for Mr Carey to come sliding past Mr Douglas at speed and not collect Mr Douglas.

[7]      Mr Douglas submitted that the Judge had been highly influenced by the contentions put in cross-examination by the prosecutor that the stairs were simply too narrow, and that the Judge had relied on the photographs for an impression as to width, not realising that photographs can distort distance.

[8]      Mr  Douglas  also  submitted  that  Judge  Coyle  was  wrong  to  find  that

Mr Carey’s evidence was consistent. The Judge found:

[Mr Carey] was cross-examined at length as to his version of events and he remained consistent in what he said.

[9]      The argument of Mr Smith for the Crown fell into two parts.  First, he argued that the Judge had the advantage of a first instance Judge, and his analysis as to justifying preferring the property manager’s evidence to the tenant’s was justified without having to rely on the staircase being very narrow.   Second, as to the narrowness of the stairs, he submitted there was no opportunity for the Crown to have anticipated that this point would be an issue at the trial.  Third, he submitted that the Judge was faced with a choice as to the evidence of Mr Carey or the evidence of Mr Douglas, and that it was not open for the Judge to consider the third

possibility, that Mr Carey had been unsteadied on his feet by Mr Douglas pushing past him with the backpack on his back.

The law

[10]     Section 119 of the Summary Proceedings Act 1957 is as follows:

119     Procedure on appeal

(1)      All general appeals shall be by way of rehearing.

(2)       Where any question of fact is involved in any appeal, the evidence taken in the [District Court] bearing on the question shall, unless the [High Court] otherwise directs, be brought before the [High Court] as follows:

(a)       As to any evidence given orally, by the production of a copy of any note made by the [District Court Judge] or Justice or Justices or such other materials as the [High Court] may deem expedient:

(b)       As to any evidence taken by affidavit and as to any exhibits, by the production of the affidavits and of such of the exhibits as may have been forwarded by the Registrar of the Court appealed from and by the production by the parties to the appeal of such exhibits as are in their custody:

(c)       As to any evidence taken under section 31 of this Act (which relates to taking the evidence of a defence witness at a distance) or under section 32 of this Act (which relates to taking the evidence of a person about to leave the country), or  any  statement  admitted  under  section  33  of  this  Act (which relates to the admissibility of a statement made by a person who is seriously ill), by the production of a copy of that evidence or statement:

Provided that the [High Court] may in its discretion rehear the whole or any part of the evidence, and shall rehear the evidence of any witness if the Court has reason to believe that any note of the evidence  of  that  witness  made  by  the  [District  Court  Judge]  or Justice or Justices is or may be incomplete in any material particular.

(3)       The [High Court] shall have the same jurisdiction and authority as the [District Court], including powers as to amendment, and shall have full discretionary power to hear and receive further evidence, if that further evidence could not in the circumstances have reasonably been adduced at the hearing, and for that purpose shall have the same jurisdiction and authority to make any order under section 31 or section 32 of this Act as the Court from whose decision the appeal is made, or a [District Court Judge], had.

Analysis

[11]     Setting  aside  the  primary  contentions  or  theories  of  the  case  of  the prosecution and the defence, there is a third explanation for the fall of Mr Carey which is discussed by the Judge at [12]; that Mr Carey was knocked off his feet by Mr Douglas’s pack, when pushing past him.   Mr Smith submitted that this Court could not consider this explanation because Mr Douglas had denied it.  As Judge Coyle recorded, Mr Douglas did not “feel” that.   This third possibility is a third possible explanation.

[12]     In Mr Carey’s evidence-in-chief, Mr Carey gave evidence of the argument he was having with Mr Douglas and went on:

...and next minute he just shoved me down the stairs and actually I fell down the bottom of the stairs.[1]

[1] Notes of evidence, p4, lines 14 and 15.

He repeated that:

He just pushed and I just went straight down backwards and tumbled right down and ended up...[2]

[2] Notes of evidence, p5, lines 17 and 18.

And similarly a third time:

...and he just went boom, pushed me down the stairs and I landed at the bottom of the stairs here, well just round here, he came down, I lost my phone, I presume that he picked it up, I can’t be sure that he picked it up –

[13]     In cross-examination, he describes something else:

Q.      ...I’m putting it to you Mr Carey that Mr Douglas walked past you but

he walked through your outstretched arm to get past?

A.      No, I didn’t have my arms outstretched.

Q.      There was no contact with your body or your torso?

A.      No, I never touched him whatsoever and he never touched me until I

went down the stairs.

Q.     He, he didn’t make contact though with your torso, he didn’t make contact with your body as you’ve said?

A.     He made – the only contact he made with me was when we were standing at the top of the stairs and he pushed me as I went down. That’s the only contact I had with him.

Q.     That’s as he brushed past your arm, isn’t it?

A.     Oh, he might have touched me as he brushed past me but I – I mean I

don’t call that as contact, I mean  he just walked past me.

Q.     So he walked past you? A. Yes.

Q.     To, to your side?

A.      He was coming this way and I was going that way, as he was coming down the passage, before we got to the door to go out into the ...[3]

[3] Notes of evidence, p12, lines 17 to 32.

[14]     From this point on, Mr Carey’s evidence goes back to his earlier version of

the event.

Q.     And he continued to walk down the stairs?

A.      He didn’t go down the stairs.   We were standing at the top of the stairs.

Q.      No after he walked past you on the stairs, did he continue to walk down the stairs?

A.      We’re not – no he didn’t, he did –  when he passed me, we stopped at the top of the stairs.  He didn’t go down the stairs until after he had pushed me down the stairs.

Q.     I’m putting it to you that he walked through your arm and then walked

down the stairs?

A.      No he didn’t walk through my arms at all.  He – we stood at the top of the stairs, as I said before, and I tried to ask him to go back to his room so we could talk about it rationally in the morning, but he just went and pushed me down the stairs.   I landed at the bottom of the stairs...

Q.      So was he in front of you going down the stairs when you came down the stairs?

A.     I wasn’t going down the stairs.

(Emphasis added.)

[15]     Examining this transcript, it is clear that on two occasions, he clearly said twice that he was not touched until he went down the stairs.   These passages are underlined above.

[16]     Second,  when  he  returned  to  his  original  version  of  the  event,  he  has Mr Douglas going past him and then both of them stopping at the top of the stairs. The passage is underlined.  If that was right, then Mr Douglas would be closer to the stairs than the complainant, particularly if the stairs are as narrow as the Judge found them to be.  On that basis, he could not have been pushed down the stairs, he would have had to have been pulled down the stairs.

[17]     For  these  reasons,  I  consider  the  passages  that  I  have  just  set  out  are inconsistent with the description of the events otherwise appearing in his evidence- in-chief.  Therefore, the Judge was not correct to find that Mr Carey’s evidence of the events was consistent.

[18]     If the new evidence is admitted, there is plainly room for Mr Carey to fall past Mr Douglas standing on the stairs.  It was argued by the Crown on appeal that this was not possible on the evidence of Mr Douglas, because Mr Douglas had said that he was standing about the middle of the stairs when Mr Carey fell past him.  It was also argued by the Crown that Mr Douglas’s description of Mr Carey as falling past with his arms at his side was improbable.

[19]     I do not think that these are sufficient criticisms to remove the possibility of the third explanation.  The third explanation is that Mr Douglas is intent on leaving and pushes past Mr Carey’s outstretched arm, trying to stop him from leaving.  Mr Douglas keeps going down the stairs (probably in a hurry because he had been wanting to go and he was agitated).

[20]     As Mr Douglas goes past Mr Carey, his pack on his back catches Mr Carey on his side and renders him unsteady so that he falls.   Mr Carey admitted he had been drinking in his evidence-in-chief.

[21]     Mr Douglas went to see the police that evening.   In his evidence-in-chief, Mr Carey  said  that  after  he  had  fallen,  another  tenant,  Peter  (the  man  that Mr Douglas had been having an argument with) came to Mr Carey’s room, to which he had repaired to ring the police, and wanted to take him to the hospital.

And on the way to the hospital we stopped at the police station and the man at the police station said – asked us, we told him what happened and he said, “Mr Douglas has already been in, get to the hospital immediately.”

[22]     Mr Douglas said to this Court on appeal that what had happened is that during his row with Peter, he believed he had been assaulted by Peter.   He had packed his bag to go, and gone to the police station and made a complaint about Peter.  After making the complaint, he had realised that he had in his pocket the key to his room and had gone back to the boarding house/hotel to give it back, and then got into a discussion with Mr Carey.

[23]     Constable Wilson’s evidence was that:

On  the  evening  of  6 December  2011,  the  victim  had  come  into  the watchhouse to make a report of being assaulted that evening by a tenant at his residential address.   He was advised to go to the Dunedin Hospital to have them checked out prior to making a complaint.  Later that evening the defendant  in  this  matter  also  came  into  the  public  counter  to  make  a complaint of assault.

The defendant [Mr Paul Douglas] advised me that he had been assaulted by a tenant at the place where he lived.

I advised the defendant that due to being busy we would not be able to action his complaints straight away as the incident appeared minor a prosecution may not result.

At  this  the  defendant  became  agitated  and  annoyed  and  left  the  police station.

Later  that  evening  once  officers  became  available  the  defendant  was contacted again in order to obtain more details in relation to his alleged complaint, however he told the police he did not want anything to do with them and he hung up the phone on the attending officer.

(Emphasis added)

[24]     The fact that Mr Douglas had been to the police station that night contributes, in my view, to the real prospect that there might have been a third explanation for the fall, distinct from the two different explanations the complainant and the defendant gave in evidence.

[25]     As the Court of Appeal point out in R v Baker,[4]  the ultimate question the Court has to consider on an appeal is whether or not there is a risk of miscarriage of justice, s 385  of the Crimes Act.

[4] R v Baker [1976] 1 NZLR 419 (CA) at 420.

[26]     Given that the trial Judge relied on the narrowness of the stairs as rendering the  defence  case  illogical,  I find  it  inescapable  that  his  judgment  to  prefer  the complainant’s evidence over the defendant’s evidence depended in part on that finding.   I am satisfied on the material before the Court in this trial and a close scrutiny of the transcript during oral argument that there was insufficient evidence before the Judge to make a finding that the stairwell was so narrow as to render the defence case illogical.  There was no evidence before the Judge as to the width of the stairs beyond the photographs.  One photograph shows the stairs being very narrow. The other photograph shows the stairs appearing much wider.

[27]     Further, I do not think that the accused could have reasonably anticipated the risk of a finding that the stairs in the boarding house were too narrow for two people to  pass.    The  further  evidence  in  this  appeal  could  not  in  the  circumstances reasonably have been addressed at the hearing.

[28]     Second, as explained, I do not find the complainant’s evidence consistent. The third explanation  of the complainant’s  balance being lost  by reason  of the defendant pushing past him to get down the stairs is possible on the evidence and consistent with parts of the complainant’s evidence.

[29]     For these reasons, I consider the conviction to be unsafe.  The conviction is set aside.  The case is to be remitted to the District Court for rehearing, should the police wish to pursue the matter.

Solicitors:

Mr P Douglas, PO Box 553, Dunedin 9054 – [email protected]

Wilkinson Adams Lawyers – [email protected]