Green v Police
[2020] NZHC 660
•31 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-499
[2020] NZHC 660
BETWEEN DANIEL ROBERT GREEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 March 2020 Appearances:
J W Mackey for Appellant K M Moon for Respondent
Judgment:
31 March 2020
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 31 March 2020 at 10 am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: J W Mackey, Auckland
GREEN v POLICE [2020] NZHC 660 [31 March 2020]
[1] On 15 November 2019, after a Judge-alone trial, Judge Glubb found the appellant, Mr Green, guilty of one charge of male assaults female.1 The Judge sentenced Mr Green to 60 hours’ community work and eight months’ supervision.2
[2] Mr Green appeals against conviction. I must allow the appeal if satisfied the Judge erred in his assessment of the evidence to such an extent a miscarriage of justice has occurred within the definition of s 232(4) Criminal Procedure Act 2011.
[3] An appeal against conviction following a Judge-alone trial is conducted by way of rehearing, but it is for the appellant to show an error has been made. In assessing whether there has been an error, the appellate court must take account of any advantages the trial Judge may have had. Where the challenge is to credibility findings based on contested oral evidence, as in this instance at least in part, an appellate court will exercise “customary caution” because of particular advantages the trial Judge derives from hearing the evidence.3
Background
[4] At about 5.40 pm on 28 November 2018, Mr Green and his partner, Ms Duin, were together in Mr Green’s car. They were parked outside several shops, including a barber shop. Mr Green was in the driver’s seat and Ms Duin in the front passenger seat. They had been drinking, with Ms Duin particularly intoxicated by witness accounts, and were arguing.
[5] As a result of (alleged) observations of a witness in the barber shop, the police laid a charge of male assaults female in respect of what was said to have occurred in the car when it was so parked. That charge was later withdrawn as the witness concerned did not appear at trial.
[6] Mr Green drove away, with Ms Duin still in his car, then turned around and returned to park on the opposite side of the street. The prosecution case was that, whilst so parked, Mr Green got out of his car, went to the passenger side and punched
1 Police v Green [2019] NZDC 24300.
2 Police v Green [2019] NZDC 24304.
3 Sena v Police [2019] NZSC 55 at [38].
Ms Duin through the open passenger window. Mr Balenti, a customer in the barber shop and the main prosecution witness, gave evidence supporting this scenario.
[7] After this, Ms Duin got out of the car and Mr Green drove away. Ms Duin was upset and crying. The owner of the barber shop called the police. Ms Duin declined to make a statement to the police, and she did not give evidence at trial. Mr Green returned to the vicinity shortly afterwards. He spoke to Sergeant Carter at the scene and then at the Henderson Police Station. Mr Green denied punching or striking Ms Duin at any time.
Evidence
[8] Mr Balenti, Sergeant Carter, Constable Oh, and Mr Green gave evidence at trial.
[9] Sergeant Carter gave evidence of his questions to Mr Green and Mr Green’s answers, at the scene and at the station.
[10] Constable Oh gave evidence that Ms Duin “had been crying, there were red marks on her face”; that, to the extent Ms Duin would say anything, it was that “nothing had happened”; and that he believed Ms Duin was drunk.
[11] Mr Mackey, counsel for Mr Green at trial and on appeal, is highly critical of Mr Balenti’s evidence, essentially to the effect Mr Balenti exaggerated what he saw. I address this submission below but suffice to say for the moment Mr Balenti said he saw Mr Green’s right hand go through the open passenger window and Ms Duin’s head “fling back”.
[12] In his evidence, Mr Green denied punching Ms Duin and gave the following account of what occurred that afternoon. Mr Green said he and Ms Duin were boarding with people he knew and, as I understand it, her behaviour was embarrassing him, including her failure to pay her share of expenses. Both had been drinking that afternoon, her rather more than him. Ms Duin wished to go into town. Reluctant to drive her as he had been drinking, he said he would take her to the motorway so she could hitchhike. En route, Ms Duin contended Mr Green had stolen her wallet. He
pulled in outside the barber shop, found her wallet in the glove box, and had a tussle with her when he took some money out of her wallet. Ms Duin started punching him so he gave her the money back. On Mr Green’s account, Ms Duin was incoherent. Mr Green resumed driving Ms Duin to the motorway. Ms Duin then accused him of taking her phone, which he had not. He assumed she had left it at home and turned around to drive back. Ms Duin then threw his phone out of her window. He parked on the opposite side of the road to the barbershop (driver’s side of the vehicle being the closest to the shop), retrieved his phone and told her to get out of the car “then and there”. Ms Duin “booted” the passenger door open with such force it jammed on the footpath. Mr Green got out of the car, “fuming” and with clenched fists, lifted the door up, slammed it shut, and got back in the driver’s seat. Ms Duin then got out and he drove away. Mr Green drove back to find her when he realised she had left her jacket in the car, at which point he spoke to the police.
[13] The prosecutor, Mr King, suggested to Mr Green he had left Ms Duin at the side of the road because he knew she was going to contact the police about the assault. Mr Green denied this. His response was that he was fed up and wanted her out of his car.
[14] Asked how he accounted for Mr Balenti’s evidence that he saw her head fling back, Mr Green said he did not know but it might have been because he had slammed the door shut with such force. Mr Green also said his car windows are tinted so he questioned how Mr Balenti could have seen what he said he saw.4 Mr Green was adamant he had got out of the car twice and he could not understand why Mr Balenti had not seen that. Mr Green also added that he is “not a small guy” (photographs of Mr Green bear this out) and, if he were to punch Ms Duin in the face, her eye would have been closed. Her face appears unmarked in the close up photographs of her face taken at the time.
4 It is unfortunate this point was not put to Mr Balenti.
District Court judgment
[15] As the Judge said, if he accepted Mr Green’s denial or if Mr Green’s evidence raised a reasonable doubt, he would find Mr Green not guilty. As it was, the Judge rejected Mr Green’s account for the following reasons.
[16] First, the Judge considered Mr Green’s evidence at trial inconsistent with his statements to the police. I address Mr Mackey’s submission on this matter below. Secondly, Mr Balenti’s and Mr Green’s accounts did not tally on uncontroversial details which, again, I refer to below.
[17] That left the Judge with the issue of whether he accepted Mr Balenti’s evidence, which he did. The Judge considered Mr Balenti had a clear and unobstructed view, that he had no motive to lie and his evidence was consistent with Ms Duin’s presentation after the incident.
Submissions
[18] I turn now to the errors Mr Mackey submits the Judge made in his assessment of the evidence, and why Mr Mackey contends the Judge was wrong to reject Mr Green’s evidence and accept Mr Balenti’s.
[19] First, Mr Mackey submits the Judge was wrong to draw an adverse conclusion from apparent differences between Mr Green’s statements to Sergeant Carter and his evidence. Mr Mackey submits this was unfair as the police did not ask Mr Green for a full account of events.
[20] There is merit in this submission. Sergeant Carter’s notes, which he read in evidence, record his specific questions and Mr Green’s answers. The focus was on whether Mr Green had punched Ms Duin, which Mr Green denied. Sergeant Carter did not ask Mr Green “what happened”, which was essentially the question Mr Green answered when he gave evidence. So, I accept Mr Mackey’s submission on this point.
[21] Mr Mackey’s second submission concerns the apparent absence of injury to Ms Duin’s face after the incident, this consistent with Mr Green’s denial.
[22] Crown counsel, Ms Moon, submits there was evidence of injury to Ms Duin’s face, in that Mr Balenti said he thought he could detect swelling in Ms Duin’s face from the photographs of her, and that it was “too soon” for bruising to have appeared. This latter evidence was inadmissible, Mr Balenti not being an expert. Ms Moon also referred to Constable Oh’s evidence of “red marks” on Ms Duin’s face. Nor is this evidence of injury. My reading of the relevant evidence is the Constable was linking the “red marks” to why it was apparent to him Ms Duin had been crying.
[23] All of that said, whilst the photographs of Ms Duin’s face are consistent with Mr Green’s denial, they are not determinative of whether she had been punched. There was no evidence injury from a punch would be evident virtually immediately.
[24] Thirdly, Mr Mackey was critical of Mr Balenti’s evidence. He submitted Mr Balenti asserted he saw more than he actually did and was partisan.
[25] To test this submission, I have reviewed the transcript of Mr Balenti’s evidence, but bearing in mind the advantages the trial judge has from hearing and observing a witness give his or her evidence.
[26]The gist of Mr Balenti’s evidence was as follows:
... the [passenger] window was down and I saw his right hand go into the window and I also saw the female’s head fling back as if she had been struck.
[27] Shortly after that, the prosecutor showed Mr Balenti the photographs of Ms Duin and asked Mr Balenti who it was in the photographs. Mr Balenti said “… that would be the victim in this case”. When Mr Balenti was asked what he meant by “the victim” he said “I mean from what I saw, she was assaulted …”.
[28] Mr Balenti having given evidence of what he observed, both the prosecutor and Mr Mackey asked Mr Balenti questions in which it was implicit that Mr Balenti had actually seen Mr Green’s fist connect with Ms Duin’s face. That they did so does not alter the evidence Mr Balenti actually gave. Likewise, the Judge, seeking to clarify a question put to Mr Balenti, asked Mr Balenti whether he was assuming Mr Green had assaulted Ms Duin, or was sure. Mr Balenti said he was “sure”.
[29] Coming back to the Judge’s decision, however, the Judge’s description of Mr Balenti’s evidence was consistent with his evidence:5
[7] [Mr Balenti] said not long after that, the car returned but by now it was on the opposite side of the road and it stopped. He said he saw the male get out of the driver’s door, he said he saw him walk around the car with his fists balled at his sides and he described him as being angry and aggressive. He said he had noted that the passenger’s window was down at the time the vehicle was parked outside the barber’s shop earlier and he said when the man got to that window, he said he saw his right fist go into the window and at the same time saw the woman’s head jerk back and to the side. He said from what I saw she was assaulted.
[30] The Judge then went on to say said that Mr Balenti had denied Mr Green had got out of his car and picked up his phone. This is not strictly correct. Mr Mackey put it to Mr Balenti he could not dispute that Ms Duin had thrown Mr Green’s phone out of the window. In response Mr Balenti said he “could not directly dispute that” but at no point did Mr Green bend over as if he were picking something up.
[31] Next Mr Balenti was asked if he had observed Mr Green slam the (passenger) door shut. Mr Balenti answered that he had seen Mr Green shut the door and Ms Duin then get out. Pressed if he had seen Mr Green slam the door, Mr Balenti said he could not see that from the barbershop, as it was on the other side of the vehicle, that is the one furthest from the shop. This answer raised the obvious point of how it could be that Mr Balenti had observed anything much of what had occurred on the passenger side of the vehicle.
[32] The Judge construed Mr Balenti’s evidence as an outright denial that Mr Green had retrieved his phone and slammed the door shut. For myself, I do not think that is the construction to put on the evidence. The most that can be said is that Mr Balenti did not observe this, and he quite fairly accepted it was difficult for him to see exactly what was occurring on the passenger side of the vehicle. Nor, for the reasons given above, am I persuaded there is much in the difference between the answers Mr Green gave to Sergeant Carter and Mr Green’s evidence. For these reasons, I am satisfied there has been a miscarriage of justice in the sense required and I allow this appeal against conviction accordingly.
5 Police v Green, above n 1.
Result
[33]I allow this appeal. The conviction for male assaults female is quashed.
Peters J
0