Green v Police

[2017] NZHC 1551

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000135

[2017] NZHC 1551

IN THE MATTER OF

an appeal against conviction and sentence

BETWEEN

DAVID NORMAN GREEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2017-404-000136

IN THE MATTER OF

an appeal against conviction and sentence

BETWEEN

DAVID NORMAN GREEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

19 June 2017

Counsel:

M J Hine for the Appellant

J D Cairney for the Respondent

Judgment:

6 July 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 6 July 2017 at 12.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GREEN v POLICE [2017] NZHC 1551 [6 July 2017]

Solicitors:    Families Matter Law Practice, Rotorua Meredith Connell, Auckland

Introduction

[1]    Mr Green was involved in an altercation with his partner’s son as the latter was trying to leave an Auckland market by car. Mr Green did not dispute punching his partner’s son, but claimed he did so in defence of his partner who he thought was in danger of being run over.

[2]    Following a judge alone trial in the Auckland District Court,1 he was convicted of one charge of common assault.2 He was subsequently sentenced to 80 hours’ community work for that offence.3

[3]    After a day in Court at the trial for that  charge,  Mr  Green  said  to  the police officer who had just given evidence, “you’re fuckin dead”. He was convicted of one charge of intimidation,4 following a judge alone trial at  the  Auckland  District Court.5 He was sentenced to 100 hours’ community work for that offence.6

[4]    Mr Green appeals both convictions and sentences. He says both Judges made errors of fact and law in finding the charges proved beyond reasonable doubt. He says the sentences are manifestly excessive.

[5]    The conviction and sentence for common assault is considered first, followed by the conviction and sentence for the intimidation offence.

1      Police v Green [2016] NZDC 21230.

2      Summary Offences Act 1981, s 9. Maximum sentence is six months’ imprisonment or a fine of

$4,000.

3      Police v Green [2017] NZDC 26987.

4      Summary Offences Act 1981, s 21(1)(a). Maximum sentence is three months’ imprisonment or a fine of $2,000.

5      Police v Green [2017] NZDC 7254.

6      Police v Green [2017] NZDC 12971.

Approach on appeal

[6]    Section 229 of the Criminal Procedure Act 2011 provides a right of appeal against conviction. An appeal court must allow the appeal if satisfied that, 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.7

[7]    A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that created a real risk that the outcome was affected or resulted in an unfair trial or a trial that was a nullity.8 A “real risk” is a reasonable possibility that a not guilty or more favourable verdict would have been delivered if nothing had gone wrong.9

[8]    In terms of an appeal against sentence, s 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal if it is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[9]    In any other case, the Court must dismiss the appeal.10 An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.11

Common assault: conviction

The offending

[10]   On 7 February 2016, the complainant was helping his mother, Mr Green’s partner, at her food stall at an Auckland market. An argument broke out between them

7      Criminal Procedure Act 2011, s 232.

8      Section 232(4).

9      Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

10     Criminal Procedure Act 2011, s 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

and the complainant decided to leave. The complainant’s girlfriend picked him up and they drove off together. Whilst in the car, he received a phone call from his mother asking him to go back and he returned to the market.

[11]   However, the argument with his mother continued. The complainant decided to leave for a second time. As he left, he kicked an empty pot in the direction of the trailer and threw a drink bottle behind him. There was a dispute about whether the drink bottle hit his mother at this time causing an injury to her eye. He got into the driver’s seat of the car to leave for a second time.

[12]   There was considerable dispute about what happened next. The complainant contends that his mother jumped in front of the car to prevent him from leaving. He then says that Mr Green came round to the driver’s side, opened the car door, punched him in the jaw, and pulled him from the car whilst his seatbelt was still on. He then says that Mr Green asked two of his workers to hold him. The car key broke in the ignition but his girlfriend took it out. Whilst the two workers were holding him, Mr Green continued to punch him on the side of his face, shoulders and back of his head, and kicked him on the legs. The complainant’s girlfriend got out of the car and tried to intervene, but was punched on the arm by Mr Green. The complainant then returned to the car, retrieved the key from his girlfriend, and drove off.

[13]   Mr Green contends that he saw his partner (the complainant’s mother) being hit by the car on two occasions. On the second occasion he says that his partner went up onto the bonnet and then rolled off to the side. He says he reached through the vehicle window to retrieve the car keys and place the vehicle in park. He admits punching the complainant once at this time but says it was necessary to do that as the complainant was clawing at his arm to try to prevent him from getting the keys. He says the complainant then opened the door, knocking him backwards, and then the complainant began to hit and kick him in a blind rage. He says two Indian men then pulled the complainant away.

[14]   The complainant and his girlfriend subsequently left the market in their car. While driving home, the complainant approached a police officer who was in the area on an unrelated matter, and asked for his assistance to get his car which was parked at

Mr Green’s house. He told the constable what had happened and photographs showing the injuries were taken of him the same day.

District Court decision

[15]   The trial took place before Judge Burns in the Auckland District Court. Six witnesses gave evidence including the complainant and Mr Green. Mr Green’s partner did not give evidence.12 The key issue at trial was whether Mr Green had acted in defence of his partner.

[16]   The Judge reviewed the evidence given by each of the witnesses in some detail. He found the charge proved beyond reasonable doubt and entered a conviction accordingly. He set out reasons for those findings over four pages of the reserved judgment.

[17]   In essence, he rejected the evidence of Mr Green finding it was contradicted by his own witnesses, and that there was no objective basis for believing that any harm was likely to be caused to Mr Green’s partner. He was sceptical of the photographs produced by Mr Green purporting to show injuries to both himself, and his partner.

[18]   The Judge preferred the evidence of the complainant and his girlfriend, which was corroborated by the photographic evidence of the injuries they had sustained. He accepted the complainant’s account of events, namely that he had been pulled out of the car with his seatbelt still engaged. The Judge was satisfied that after pulling the complainant out of the car, Mr Green would have sought assistance from members of his staff and “it is highly improbable that his physical application of force would have stopped at that point”.

[19]   The Judge found that there  was  no  defence  in  law  established,  and  on  Mr Green’s own evidence, there was justification for a conviction.

12     After the hearing of this appeal, I received a letter from Mr Green’s partner setting out her version of events. I have disregarded the contents of that letter in determining this appeal.

Grounds of appeal

[20]   The appeal challenges the Judge’s assessment of the evidence and four factual findings that he made in the course of rejecting Mr Green’s account. Those factual findings are as follows:

(a)That Mr Green and his partner did not make any complaint to the police in respect of the conduct of the complainant, which, on their version of events, would have constituted an assault.

(b)The Judge’s acceptance of the photos of the complainant’s injuries, but the rejection of the evidence regarding injuries to Mr Green, and injuries to his partner.

(c)The Judge’s failure to resolve conflicts in the evidence regarding what had happened to the car key. This evidence is said to be important to the credibility findings made in favour of the complainant.

(d)The Judge’s finding that there was nothing untoward about the destruction of the DVD by police. The Judge accepted the constable’s evidence that he had got rid of the DVD because the defendant had decided not to make a statement and there was therefore no relevant evidence appropriate for trial.

[21]   Furthermore, it is contended that the Judge committed an error of law by failing to properly apply the legal test for defence of another under s 48 of the Crimes Act 1961.

[22]   The appeal was brought out of time, and an extension of time was therefore sought by Mr Green. The reasons for the delay include a change in counsel for the appellant, the filing of the appeal notice in the wrong court, and counsel oversight due to a preoccupation with the second charge. The police did not oppose the extension of time, and I grant it accordingly.

Analysis

[23]   The first four grounds of appeal challenge the Judge’s findings of fact and his credibility assessments. The appeal proceeds by way of rehearing and the principles in Austin, Nicols & Co Inc v Stichting Lodestar apply.13 The appellant is therefore entitled to the independent opinion of this Court even where it involves an assessment of fact and degree, and entails a value judgment.

[24]   However, as the Court of Appeal recently said in Green v Green, the appellant still bears the onus of persuading this Court to reach a different assessment.14 In considering each of the errors alleged, I take into account any particular advantages enjoyed by the trial court where assessments of credibility and reliability are concerned.

[25]   The first ground of appeal challenges the Judge’s observation that if Mr Green had been assaulted by the complainant, as he says happened:15

… It is likely that he [Mr Green] would have been aggrieved as a result and taken some steps. He did not do so. He went about his normal business.

[26]   Mr Hine, for Mr Green, submits that the finding is unfair and unreasonable. He says the evidence establishes that Mr Green arrived home very shortly after the incident with the intention of paying his staff and returning to the market. He therefore did not have a reasonable opportunity to make a complaint. And, if he had made a complaint to the police when they arrived shortly afterwards to talk to them, his account would have been discounted as retaliatory.

[27]   I accept that the fact that Mr Green and his partner did not immediately make a complaint to the police does not mean that they were not telling the truth about what happened. There may be several reasons why people do not make a complaint to police about an alleged assault by a family member. However, as explained further below, this was not a consideration which ultimately had any bearing on the Judge’s

13     Austin, Nicols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

14     Green v Green [2016] NZCA 486, [2017] NZLR 321 at [26]–[34].

15     Police v Green [2016] NZDC 21230, above n 1, at [50](d).

decision, as there was ample evidence to support the Judge’s credibility findings without relying on this factor.

[28]   The second ground of appeal challenges the Judge’s findings in relation to  Mr Green’s photographic evidence. The Judge accepted the photographic evidence of the injuries to the complainant, but expressed scepticism about the photographs produced by Mr Green. Those photographs show purported injuries to Mr Green’s wrist and knee, and to his partner’s eye.

[29]   I consider there was sufficient evidence to justify the Judge’s scepticism about the reliability of the photographs produced by the defence in this case. Mr Green gave evidence that the photographs were taken on Monday, 8 February 2016 at 3.00 pm, which is after the arrest and subsequent release of Mr Green. When cross-examined about who had taken the photographs, and when, Mr Green said he had taken them on his phone, and accepted that the phone would probably record the date when those photographs were taken. However, when asked to produce the phone he said he did not have it, and when pressed further, he said it was a business phone, not a personal phone, and he did not have it with him in Court. The phone was not produced, and there was no evidence confirming the date and time the photographs were taken.

[30]   In addition, the constable gave evidence that he had not observed any injuries on either Mr Green or his partner when he came to interview them. Mr Green says that the constable did not see any injuries because Mr Green was interviewed in a video booth where only his upper torso was visible. That does not adequately explain why the constable did not see any injuries when he initially came to see Mr Green at his home. Nor does it explain why no injuries were observed on Mr Green’s partner, when the alleged injuries were to her face, and accordingly visible. Further, Mr Green’s partner did not give evidence at trial, and accordingly there was no evidence to substantiate that her son caused her any injury to her face.

[31]   The third ground of challenge concerns the evidence regarding the broken car key. Mr Hine submits that the Judge failed to resolve a conflict in the evidence about the key which was important to assessments of credibility.

[32]   The complainant’s evidence was that the car key broke in the ignition  as    Mr Green was trying to grab it. He said part of the key was still in the ignition, but then his girlfriend took it out. They were able to drive away using the broken key. The complainant’s girlfriend confirmed that the key was broken whilst Mr Green was trying to pull it out of the ignition. Mr Green did not deny breaking the key, but queried how the complainant could drive away if the key was broken.

[33]   Neither counsel at trial questioned any of the witnesses further about which parts of the key had been broken, and how it was possible to drive away if the key was broken in the ignition. It is theoretically possible to be able to operate a car even after the key has broken, for instance, if the plastic handle breaks off rather than the part of the key that triggers the ignition. In any event, I do not consider the mystery of the broken key would have resulted in a different credibility assessment, when the weight of all the evidence adduced at trial is considered.

[34]   The fourth error of fact relates to the Judge’s acceptance of the constable’s evidence that the DVD had been destroyed because Mr Green did not want to make a statement. Mr Hine submits that this could have been important for the defence because that DVD may have substantiated Mr Green’s claim that he suffered injuries. Further, he says that the constable’s notebook should have been disclosed prior to trial, and the proper course would have been to adjourn the case to ensure fairness was preserved.

[35]   Mr Hine did not seek to press home these errors as ones which vitiated the Judge’s decision. I am satisfied that they did not do so. The constable’s evidence was that Mr Green was asked if he wanted to make a statement on DVD. Although he initially agreed to do that, he subsequently changed his mind, and no statement was recorded. There was therefore no consent to record a statement, and there can be no criticism of the police for failing to keep the DVD in those circumstances. It also appears from reviewing the Judge’s notes that the constable’s notebook was in fact disclosed prior to trial. No prejudice from late disclosure was identified at the time, nor was an adjournment sought. These grounds of appeal cannot therefore succeed.

[36]   Finally, Mr Green also challenged the Judge’s decision on a question of law. He said the Judge erred in applying the legal test for defence of another as set out in s 48 of the Crimes Act 1961. In particular, he says the Judge erred by failing to assess the circumstances from the defendant’s subjective perspective.

[37]Consideration of the s 48 defence involves answering three questions:16

(a)What were the circumstances as the defendant believed them to be?

(b)Did the defendant use force for the purpose of defending himself or herself or another?

(c)Was the force used reasonable in those circumstances?

[38]   The first question involves a subjective enquiry. The other two questions are to be assessed objectively. The Crown bears the onus of disproving the defence beyond all reasonable doubt.

[39]   To answer these three questions, the Judge first had to resolve the conflicts in the evidence and assess the credibility of each witness’ account. The Judge clearly preferred the account given by the complainant over that given by Mr Green. I consider he was right to do so.

[40]   The complainant’s evidence was given openly and directly. It was corroborated by his girlfriend’s evidence and the photographs taken by police. In contrast, Mr Green’s evidence was contradicted by that of his own witnesses in relation to crucial facts, such as whether the car was moving, and the position of his partner in front of the car. Contrary to Mr Green’s claim that the complainant had hit him, those defence witnesses did not  see any punching  or hitting  at  all.  Finally, Mr Green’s evidence about the two workers who intervened was confused, and again, at odds with that of witnesses called on his behalf.

16     R v Auckram [2007] NZCA 570 at [24].

[41]   Accordingly, there was an evidential foundation for the Judge to conclude that Mr Green did not genuinely hold a subjective belief that his partner was about to be run over. But, assuming Mr Green did hold that belief, the defence would still be disproved on the other two, objectively assessed, questions. The evidence shows that Mr Green was not acting in defence of his partner, and even if he was, the force used was not reasonable. Mr Green’s actions went well beyond grabbing the car keys to disable the car. By all accounts, the car had stopped by the time he was there, and his partner was no longer in danger. There was no need to punch the complainant in the jaw, and certainly no need to continue the assault once he was dragged from the car.

[42]   In my view, the prosecution disproved the s 48 defence, and the conviction was properly entered.

Common assault: sentence

[43]   In sentencing Mr Green, the Judge observed that the assault was at the upper end of assaults falling within s 9 of the Summary Offences Act 1981. He referred to Mr Green’s prior convictions for assault, noting that the last such offence was in 1990. He stressed that Mr Green needed to be given an indication that this kind of conduct and behaviour was inappropriate, and sentenced him to 80 hours’ community work.

[44]   I am satisfied that the Judge did not err in any of the ways alleged by Mr Green. By way of (brief) response to each of the grounds alleged:

(a)The Judge made findings of fact which favoured the complainant’s version of events. In those circumstances, there was no need to apply a discount for the actions of the complainant pursuant to s 9(2)(c) of the Sentencing Act 2002.

(b)The Judge did not expressly refer to the willingness of the appellant to attend a restorative justice meeting, but there is no evidence that he had expressed such a wish, or that this was before the Court at the time of sentencing.

(c)The sentencing notes make it clear that Mr Green’s medical condition was before the Court. The Judge said:17

I am told by Mr Clearwater that he may have had a health issue. I do not know about that in terms of provision of evidence but no doubt he can provide medical evidence to Corrections and they can take that into account in terms of how he serves the community sentence.

[45]   In any respect, even if the Judge had erred in assessing the individual components of a sentence, it is the end sentence which is relevant on appeal.18 I am satisfied that the end sentence was well within range, and may even be considered lenient in all the circumstances of the case. The appeal against this sentence is dismissed.

Intimidation charge: conviction

The offending

[46]   On 19 September 2016, at the end of proceedings for the common assault charge, the complainant asked the constable to walk him to his car. The constable and the complainant were walking down the street when the constable saw Mr Green. He decided to take action to ensure that he did not pass too close to Mr Green.

[47]   Mr Green was getting into the passenger side of a van. Mr Green’s partner was getting into the driver’s seat. The constable heard Mr Green’s partner say “hope you are happy you have ruined my family”. At that point in time, Mr Green got out of the van swearing. The constable may well have said “pardon?” at this stage.

[48]   It was at this point in time that Mr Green is alleged to have said “you’re fuckin dead” twice to the constable. The constable then asked Mr Green if he was threatening him, to which Mr Green said “no”. The constable then spoke to Mr Green’s counsel and suggested it was in Mr Green’s best interests to leave.

17     Police v Green [2017] NZDC 26987, above n 3, at [4].

18     Tutakangahau v R, above n 11, at [36].

District Court decision

[49]   Mr Green was charged with  intimidation  under  s  21(1)(a)  of  the  Summary Offences Act 1981. The charge was defended and the trial took place before Judge McDonald in the Auckland District Court on 5 April 2017. The Judge found the charge proved, and entered conviction.

[50]   The Judge commenced his decision by restating that the onus and burden of proof remained on the police and did not alter simply because Mr Green had given evidence and called his partner to give evidence also. The Judge then stated the various elements of the offence of intimidation and reviewed the evidence that he had heard.

[51]The key findings which resulted in a conviction are set out at paragraphs [9] to

[11] of the oral judgment:

I find it proved beyond reasonable doubt, accepting the constable’s evidence, that as he was passing the van Mr Green deliberately got out and swore twice at the constable saying, “you’re fuckin dead.” Although Ms Yeap did not hear that, she says she did hear the constable (as the constable said to me) say to Mr Green, “Are you threatening me?” to which Mr Green replied, “No.” All Ms Yeap has not heard is the threat.

I find it proved beyond reasonable doubt, rejecting as I do the evidence given by Mr Green that he did not say it, that a threat was made, that when that threat was made Mr Green intended it to be taken seriously. Also I find it proved beyond reasonable doubt that he knew that in saying that it was reasonably likely to intimidate the constable viewed objectively. I also find that words said in that tone, angry, would also be reasonably likely to intimidate.

However it is the defendant’s mens rea that I must look at. I infer from all that I have heard and what I accept, which is the constable’s description as to how this occurred, that Mr Green knew that his conduct was likely to intimidate the constable.

Analysis

[52]              Mr Green challenges the Judge’s decision as being wrong in fact and in law. Each of the grounds of appeal is considered below.

[53]              First, Mr Green says that the Judge erred in preferring the constable’s evidence as to whether a threat had in fact been made. He points out that this evidence was

contradicted by the evidence of Mr Green’s partner who said that the use of the word “fuck” was not something Mr Green would say in her presence.

[54]              I am satisfied that this ground of appeal must fail. The Judge was clearly entitled to prefer the evidence of the  constable  as to what was said by Mr Green.  Mr Green’s partner gave evidence that while she did not hear the initial threat made, she did hear the constable say to Mr Green, “are you threatening me?”, and Mr Green reply, “no”. I agree with the Judge that this evidence appears to corroborate the constable’s evidence, even if she did not hear the initial threat.

[55]              Second, Mr Green says even if it can be established that the words “you’re fuckin dead” were said to the constable, those words are not capable of constituting a threat. Mr Green submits that they are capable of multiple meanings, including “you’re dead to me”. This ground of appeal has no prospect of success. The words spoken, the context in which they were said, and the angry tone used, confirms that the words were a threat within the meaning of s 21(1).

[56]              Third, Mr Green submits that there was nothing in the incident that could reasonably be likely to cause the constable to be frightened or intimidated. He submits that these are things that are said every day to constables, and it is clear that the constable was not in fact intimidated by what was said. On that basis, it is said that the Judge erred in finding that the relevant mens rea of the offence was proved.

[57]              The charge was laid under the alternative of the mens rea elements prescribed by the section, that is, “knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated”. It is Mr Green’s state of mind at the time the words are said that are relevant to the charge. Actual intimidation, or fear in the complainant, does not have to be established.19

[58]              The Court has to be satisfied beyond reasonable doubt that the defendant had knowledge his conduct was likely to cause the person to reasonably be frightened or intimidated. For the defendant to think this result “likely”, he or she must consider there is a real or substantial risk of that result, not merely a remote possibility. That

19     Gillespie-Gray v Police HC Auckland, CRI-2006-404-123, 22 September 2006 at [9]–[10].

is, the defendant must anticipate a feeling of fright or intimidation which would be a reasonable response to the conduct in question.20 A court can infer such knowledge from the defendant’s conduct.21

[59]              Here again I am satisfied that the Judge was right to infer from the words used, the fact that they were directed towards the constable, and the manner in which they were said, that Mr Green knew that his conduct was likely to cause the constable to be reasonably frightened or intimidated. That was the entire purpose of making the threat. The fact that the constable was not unduly frightened or intimidated does not affect that analysis.

[60]              I am satisfied that the Judge did not err in either fact or law and the appeal against conviction must be dismissed.

Appeal from sentence

[61]Mr Green was sentenced to 100 hours’ community work for this offence.

[62]              As Mr Hine submits, the aggravating features of the offending included the fact that he was on bail at the time and in the middle of a trial on the common assault charge, and the person to whom the threat was directed was a constable acting in the course of his duty. There were no mitigating circumstances of the offending.

[63]              However, the sentence had to be proportionate in light of the sentence imposed for the common assault. I consider the 100 hours’ community work was manifestly excessive when compared to the 80 hours’ community work imposed for the common assault.

[64]              Mr Hine has provided me with a number of cases that show that sentences for this type of offending vary. Having regard to those cases, and the aggravating features of Mr Green’s offending, I consider a sentence of 40 hours’ community work is appropriate in all the circumstances.

20     Simon France (ed) Adams on Criminal Law—Offences and Defences (online looseleaf ed, Thomson Reuters) at [SO21.02].

21     Gillespie-Gray v Police, above n 19, at [10].

[65]              I accordingly quash the sentence imposed for the conviction of intimidation under s 21(1)(a) and substitute a sentence of 40 hours’ community work.

Result

[66]              Leave to appeal the conviction for the common assault out of time is granted. The appeals from both convictions are dismissed.

[67]The appeal from sentence for common assault is dismissed.

[68]              The appeal from sentence for intimidation is allowed. The sentence of 100 hours’ community work is quashed and substituted with a sentence of 40 hours’ community work.

Edwards J