Edmonds v Police

[2013] NZHC 1423

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-441-000006 [2013] NZHC 1423

BETWEEN  AARON ELVIS EDMONDS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   5 June 2013

Counsel:                  LPF Lafferty for Appellant

JD Lucas for Respondent

Judgment:                14 June 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 14 June 2013 at 2.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Elvidge & Partners, Napier

EDMONDS v POLICE [2013] NZHC 1423 [14 June 2013]

Introduction

[1]      After  a  defended  hearing  before  Judge  Simpson  in  the  Hastings  District Court, Mr Edmonds was found guilty of a charge of assaulting a female, [ T  ], and driving while disqualified (third or subsequent offence).  He was sentenced to six months imprisonment for the assault and disqualified from driving for one year, commencing on 15 November 2013, on the other charge.

[2]      Mr Edmonds appeals against his conviction for driving while disqualified on the grounds that there was insufficient evidence to support a conviction.  He does not appeal his conviction on the assault charge.

The facts

[3]      At the time of the events giving rise to the charges, Mr Edmonds lived with his partner, Marie Munro, and Ms T  at a house in Eaton Road, Hastings.  On

19 May 2012, an argument erupted because Mr Edmonds found that someone had eaten bacon which belonged to him.  In the first instance, he argued with Ms Munro. Ms T  was in her bedroom at this stage and left the house shortly afterwards. She returned half an hour later, having decided to move out.

[4]      As Ms T  was packing her bags in her bedroom, Mr Edmonds came in, dragged her out of the bedroom and punched her twice in the head.  She then left the house and went to some nearby flats where her partner and his mother lived.  She said that while she was standing at the house of a friend who lived nearby, she saw Mr Edmonds drive his car out of the driveway of his house and down Eaton Road. In cross-examination she estimated that she was about two metres away when the car passed her.  She said Mr Edmonds was alone when she saw him driving the car.

[5]      Mr Edmonds did not give evidence but called a friend of his, Tapea Kemp, to give evidence on his behalf.   Mr Kemp said he knew Mr Edmonds as they were doing a course together.   He said that on 19 May he received a text from Mr Edmonds asking him to come to his house and pick him up.  He had picked him up on previous occasions to take him to the course.  He arranged for his partner to take him  to  Mr  Edmonds’ house.    She  dropped  him  off.    He  said  he  then  drove

Mr Edmonds in his (Mr Edmonds’) car back to his (Mr Kemp’s) house where they had coffee and a cigarette.  He agreed that what he did on this occasion was unusual; on previous occasions he had picked up Mr Edmonds in his own car.

Judge’s decision

[6]      Judge Simpson accepted Ms T’ evidence that she saw Mr Edmonds drive his car down his driveway and onto the roadway.  She also found Ms T a truthful witness in relation to the assault where her evidence was at odds with the evidence of Ms Munro.  The Judge decided that it was likely that the evidence of Ms T and Mr Kemp, as it concerned Mr Edmonds’ driving, related to separate events on the same day.  Ms T’ observations took place in the late morning or early afternoon, no later, the Judge found, than 1.30 p.m., whereas Mr Kemp said he thought he went to Mr Edmonds’ house later in the afternoon, somewhere between 3.00 and 4.00 p.m.  By this time, the events being described by Ms T were well and truly over; she made a statement to the police at 3.45 p.m. that day.

[7]      Judge  Simpson  referred  to  evidence  that  the  day  after  the  incidents, Ms T went to the police and retracted the statement.  She told the police she had made the first statement in order to protect children who were in the household from further violence.  In cross-examination she explained that she did so because she was being harassed by Mr Edmonds and Ms Munro and was jealous and angry because Ms Munro had her children with her, whereas Ms T did not.

[8]      After  carefully  reviewing  the  competing  versions  of  events,  the  Judge concluded:

[12]      I   have   reached   the   conclusion,   having   listened   carefully   to everything that Ms T said, that she was telling the truth while she was being cross examined and examined in chief in Court.  I have also reached the conclusion that she was a person who had little knowledge of the workings of the Court system and little knowledge of the potentially serious consequences that might have happened had she made a false allegation to the police and then attempted to withdraw it.  Having regard to all of these matters I [am] satisfied that the assault on Ms T took place as she has described and that charge is proved.  Similarly, I am satisfied that the driving while disqualified took place, as described by Ms T.   Both of those charges are proved.

The appeal

[9]      Mr Lafferty referred to numerous aspects of Ms T’ evidence which he submitted demonstrated that she was an unreliable witness and that her identification of Mr Edmonds as the driver of the car should not have been accepted.   These included inconsistencies in her evidence.  For example, in evidence-in-chief she said there was no-one else in the car but in cross-examination said, “They came down their driveway ...”.  He said there was vagueness about timing and that the Judge was not justified in finding that the incidents Ms T witnessed took place around lunchtime.  While accepting that there appeared to have been no physical barrier to Ms T’ identifying Mr Edmonds, Mr Lafferty pointed out that she was never asked to describe or identify Mr Edmonds in any detail.   Finally – and this is intended to capture the flavour rather than comprise a comprehensive recitation of Mr Lafferty’s submissions – he submitted that the Judge should have been more cautious about accepting Ms T’ evidence, having regard to her contradictory statements to the police.

Decision

[10]     I am satisfied that there was ample evidence to support the Judge’s finding. The key issue was whether Ms T’ evidence could be relied on.  Her evidence was lengthy, the transcript occupying 43 pages.  She was cross-examined at length. The Judge was well placed to make an assessment of her credibility.  There were no material inconsistencies in her evidence.  As Mr Lucas pointed out, her use of the word “they” was obviously a slip of the tongue.  It was corrected later in the same passage of her evidence when she said, “... he came through the flats driveway”.

[11]     The Judge gave full consideration to the inconsistent statements made by Ms T to the police.  She accepted Ms T’ explanation for retracting her first statement.  She was plainly entitled to take this view.

[12]     The evidence of identification was persuasive.  Ms T had a good view. She knew the appellant well.  Her evidence and the evidence of Mr Kemp could be reconciled on the basis suggested by the Judge.

[13]     The Judge’s verdict was solidly grounded on factual findings which were

made after a careful examination of the evidence.  No error has been shown.

Result

[14]     The appeal is dismissed.