Easton v Police
[2018] NZHC 1553
•27 June 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTOIN REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CRI-2018-485-30
[2018] NZHC 1553
BETWEEN BENJAMIN MORLAND EASTON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 June 2018 Counsel:
Appellant in Person
A R Winsley for Respondent
Judgment:
27 June 2018
JUDGMENT OF THOMAS J
[1] The appellant, Mr Easton, was found guilty of common assault following a Judge-alone trial held in the District Court. He was convicted and sentenced to 80 hours’ community work.1 Mr Easton appeals his conviction and sentence on the basis that a miscarriage of justice occurred because, first, the Judge declined to hear evidence from two witnesses Mr Easton wished to call and, secondly, the victim’s allegations were false.
Background
[2] The incident took place at Waitahi Cove beach around 7.50 pm on 11 January 2018. Mr Easton’s conviction was on the basis of the following factual findings by the Judge. The victim was at the beach with his five children. He heard someone call out and say “fuck off”. He could not see anyone. A person, whom the victim later
1 Police v Easton [2018] NZDC 8014.
EASTON v NEW ZEALAND POLICE [2018] NZHC 1553 [27 June 2018]
identified as Mr Easton, came out from a truck, approached the victim and pushed him with his finger. The victim began recording on his cell phone, holding it about 30 centimetres away from his face. Mr Easton continued pushing the victim until he dropped the cell phone. Mr Easton then punched the victim, which resulted in swelling and a red mark under the victim’s right eye. The victim described trying to get away but Mr Easton kept coming. The victim tried to grab Mr Easton’s arm and wrestled him to the ground.
[3] Two witnesses were running in the area and heard the sound of children screaming. One arrived to see two men on the ground, the victim sitting on Mr Easton. That witness told them to stop and got between the two men. Mr Easton then went to his truck and poured water over a bite mark which had been inflicted upon him by one of the children. The other witness, who arrived slightly later, consoled the children. Neither witness saw the incident itself. Two police officers attended the scene shortly after.
District Court decision
[4] There were five prosecution witnesses – the victim, the two runners and two police officers. The cell phone video was admitted as evidence. Mr Easton’s defence essentially consisted of accusing the victim of punching Mr Easton and allegations the victim had doctored the video.
[5] Mr Easton had applied for and had issued summonses for two additional witnesses. The first was a Wellington City Council representative who Mr Easton proposed would give evidence as to:
(a)revocation of the “golden mile” and the death of a pedestrian struck and killed by a bus on Willis Street;
(b)an incident between a Council park ranger and Mr Easton at Waitaha Cove, and disciplinary procedures for the park rangers; and
(c)Council information about Mr Easton’s failure to pay fines because of “unrefuted allegations of corruption”.
[6] The Judge said the proposed evidence from the Council representative was irrelevant to the matter before him, which was to determine the allegation of assault. He described Mr Easton as a protestor who protests at Waitaha Cove and is convinced that the Government and the police are corrupt. He considered Mr Easton was determined to use the proceedings as a platform to air those concerns, which the Judge would not allow.
[7] The second summons was for a person who assisted Mr Easton in taking stills from the cell phone footage. The stills were accepted into evidence and accepted by the police. The Judge concluded it was therefore unnecessary to hear evidence from the person who helped to take the stills.
[8] The Judge outlined the competing versions of events. He rejected Mr Easton’s version which alleged the victim approached the truck and hit Mr Easton and Mr Easton therefore feared for his safety. The Judge found Mr Easton felt entitled to tell people where they could or could not go on the beach and to confront people in the way in which he did. It was in that context that the Judge considered self-defence.
[9] The Judge acknowledged Mr Easton was concerned about being photographed, not wanting his images transmitted on social media. However, in his assessment, self-defence was not open to Mr Easton because the cell phone footage showed the altercation happening on the shingle beach away from the truck, Mr Easton had ample opportunity to remain at the truck instead of confronting the victim, and Mr Easton had pushed and jabbed the victim, trying to get the cell phone off him. The Judge noted the victim was clearly concerned for his safety because the video recorded the victim calling out, “Don’t hit me. Don’t touch me.”. There was therefore an evidential basis from which to conclude it was Mr Easton who was the aggressor. Mr Easton also acknowledged in evidence that he jabbed at the victim.
[10] Furthermore, the Judge decided Mr Easton’s aggressive force went beyond what was reasonable and proper in the circumstances.
[11] The Judge summarised the position by saying Mr Easton chose to confront the victim who was walking on the beach with his children. He then acted in a way
designed to take the cell phone off the victim and he did so by pushing and jabbing with his hand and finger to the point where the cell phone was knocked out of the victim’s hand. At one point the victim was hit in the face.
[12] The Judge convicted Mr Easton of assault and sentenced him to 80 hours’ community work.
Submissions
[13] Mr Easton’s submission on appeal was essentially that the hearing was unfair. He referred to his long involvement in the criminal justice system and said that was relevant to the way in which he perceived matters, both on the day in question and at the hearing itself.
[14] Mr Easton submitted the Judge erred in not allowing evidence from the two witnesses. Mr Easton said he ought to have been able to bring relevant expertise before the Court from the witness who helped to produce the stills. He described the Judge having to tilt his head to view the footage and said his witness could have assisted the Judge in understanding what the footage showed. Mr Easton suggested the Judge misread what he was trying to say about what the witness could bring to the proceedings. He said the video frames, considered properly, would show that the victim was lying from beginning to end.
[15] Mr Easton suggested he was deprived of the opportunity to demonstrate the surrounding circumstances of the assault by evidence from the proposed Council witness. Mr Easton said it was important background information to know that his prior protest on Manners Street, Wellington had been recorded and uploaded onto Facebook, where it had apparently received an extraordinarily high number of views. That, he said, was behind his concern about being filmed by the victim that day. Mr Easton said he was simply trying to stop the victim from filming him and he had no intention of assaulting him. This was also relevant to the rationality of Mr Easton’s belief in the need for self-defence.
[16] Mr Easton said the Judge dismissed the evidence before reading it, which he maintained was contrary to the veracity and propensity rules. He intimated the Judge
determined the charge without hearing Mr Easton on what he considers were relevant legal arguments.
[17] According to Mr Easton, the Judge’s decision “curdles the realm of judicial management against the veracity in circumstantial value delivering or otherwise in non-delivery” of rights under the New Zealand Bill of Rights Act 1990. He complained that, if the Judge’s decision is confirmed, it will demonstrate that access to justice is dependent on financial well-being. Mr Easton said he had insufficient time to prepare his appeal and a writ of certiorari was required.
[18] Mr Easton maintained the Judge did not give him a proper opportunity to put his case. He suggested, given a previous hearing involving this Judge, that there might have been some pre-determination. He said the Judge got things wrong. For example, his assessment that Mr Easton was convinced the victim had hit him. He rejected the evidence of the two runners, saying one of them did not separate him from the victim. He criticised the way in which the police had dealt with the matter, noting they did not interview the victim’s children.
[19] The basis of Mr Easton’s objection was his belief the victim was lying. He said the police evidence refuted any possibility that the victim was telling the truth. The Judge did not consider veracity or propensity in his decision, and the victim’s claims were demonstrably false, Mr Easton said.
[20] In respect of the sentence, Mr Easton complained the Judge did not give him a proper opportunity to put his submissions. He referred to a case of which he says he is aware where a person was convicted and discharged because of his or her significant contributions to the community. Mr Easton said he himself made a significant contribution to the community.
[21] Mr Winsley, for the respondent, acknowledged Mr Easton’s difficulty with accessing the legislation and case law referred to in the respondent’s submissions. He agreed that in future a person in the position of Mr Easton should be provided with extracts of legislation and copies of the relevant cases.
[22] Mr Winsley submitted the Judge was correct to decline to hear from either witness. The evidence they could bring had no probative value to the issue in dispute and would needlessly prolong the hearing. Further, the Judge found the victim to be truthful and reliable. There was therefore sufficient credible evidence on which to find the charge proven to the requisite standard.
Law
[23] The Criminal Procedure Act 2011 requires an appellate court to allow an appeal where a miscarriage of justice has occurred due to a judge’s error in assessing the evidence or for any other reason.2 A miscarriage of justice is an error, irregularity or occurrence which has either created a real risk that the outcome of the trial was affected or has resulted in a trial which was either unfair or a nullity.3 Not every error or irregularity results in a miscarriage of justice.4 A real risk the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.5
[24] On appeal, a court will pay appropriate deference to findings made by a judge who had the opportunity to assess the credibility of witnesses in person but must nevertheless review the evidential basis for factual findings with care.6
Analysis
[25] I am satisfied the Judge made no error. The witnesses Mr Easton sought to summons had no bearing on the issue at hand – that is, whether or not Mr Easton had intentionally applied force to the victim. Evidence regarding the making of the stills could not have any bearing on that issue. The evidence of the Council representative could be similarly assessed, with one very narrow point of difference.
[26] Whether Mr Easton believed he was at an imminent threat of harm, and the reasonableness of his response, is to be assessed in the relevant circumstances. If
2 Criminal Procedure Act 2011, s 232(2)(b) and (c).
3 Section 232(4).
4 Matenga v R [2009] NZSC 18 at [30].
5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
6 O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [5].
Mr Easton feared violence from Council representatives and had previously feared for his safety, that might be relevant to his state of mind on the day in question. However, there was no suggestion the victim was a Council representative and no suggestion Mr Easton perceived him to be so. Any such evidence would therefore be irrelevant.
[27] The other matters Mr Easton wished to raise with the Council representative – the death of a pedestrian and corruption at the Council – were of no relevance to the trial. The victim said he did not know of Mr Easton and therefore could not have been affected by the Facebook posting of the Manners Street incident. The other issues Mr Easton wanted to explore at trial were irrelevant and would have needlessly prolonged the proceeding.
[28] In any event, Mr Easton’s defence, that the victim was instead the aggressor and Mr Easton feared for his safety, was simply not supported by the evidence. As the Judge said, even if self-defence had been available on the facts, Mr Easton’s actions went well beyond what would have been reasonable in the circumstances. Those findings lay to rest any concerns that the evidence of the Council representative could have had a bearing on whether Mr Easton genuinely feared for his safety.
[29] There is no merit to Mr Easton’s challenge to the decision to decline to hear evidence from the two witnesses.
[30] Similarly, there is no merit in the second ground of appeal. The Judge clearly preferred the evidence of the victim to that of Mr Easton and no arguments reasonably supporting a challenge to that preference have been identified. The victim had swelling and a mark supporting the claim that Mr Easton hit him, and the victim’s evidence was supported by cell phone footage. In contrast, Mr Easton’s claim that the victim punched him was not only unsupported by the evidence but also contradicted by it. Given the Judge’s clear preference for the victim’s version of events and the evidence which supported that, and the appropriate deference paid to a trial judge’s assessment of witnesses, there is no material error on which to found an appeal.
[31] I note Mr Easton’s concern that he had had a prior involvement with the Judge. It is not unusual for a District Court Judge to hear a case involving a person with whom
she or he has dealt previously in a different context. There is nothing to support any suggestion of predetermination or that the Judge should have recused himself.
[32] As to the issue of whether the appeal process poses risks to Mr Easton’s rights under both the New Zealand Bill of Rights Act 1990 and the Universal Declaration of Human Rights, Mr Easton has had the opportunity to be heard. He has brought wide-ranging challenges to the decision. Mr Easton has been subject to a process which observes rights to minimum standards of criminal procedure and has been able to exercise his rights to natural justice through the appellate process. There is nothing of substance in this aspect of Mr Easton’s appeal.
[33] As far as the appeal against sentence is concerned, I have taken into account the seriousness of the assault which was an unprovoked attack on a stranger in a recreational setting in the presence of children. It caused an injury and emotional harm to the victim, as reflected in his victim impact statement. There can be no deduction for remorse, a guilty plea or, given Mr Easton’s criminal history, prior good character. The sentence, being a relatively low amount of community work, cannot be considered manifestly excessive, in these circumstances.
Result
[34]For these reasons, the appeal is dismissed.
Thomas J
Solicitors:
Crown Solicitor’s Office, Wellington