GSB v Police
[2023] NZHC 2690
•27 September 2023
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE CHILDREN. IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-029
[2023] NZHC 2690
BETWEEN GSB
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 September 2023 Appearances:
A R Laurenson for Appellant R L Hicklin for Respondent
Judgment:
27 September 2023
JUDGMENT OF GRICE J
(Appeal against conviction)
Introduction
[1] On 6 July 2023, following a Judge-alone hearing held on 5 July 2023 before Judge Greig, the appellant, GSB,1 was convicted2 of assault on a person in a family relationship,3 and assaulting a child.4 On 6 July 2023, the appellant was sentenced to come up for sentence if called upon within the next 12 months, and protection orders were imposed in favour of the victims of the offending.
1 The appellant’s name has been anonymised to prevent identification of the children.
2 Police v [GSB] [2023] NZDC 14269.
3 Crimes Act 1961, s 194A — maximum penalty two years’ imprisonment.
4 Section 194(a) — maximum penalty two years’ imprisonment.
GSB v POLICE [2023] NZHC 2690 [27 September 2023]
[2] The two charges relate to assaults on two boys, aged 14 and 13 respectively at the time, who were effectively his stepchildren at the time.
[3] The appellant now appeals his convictions on both charges on the grounds that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred. No appeal is made against the sentence.
[4] The charge in relation to assault on a person in a family relationship relates to the older boy, who said the appellant forcefully pulled him off his younger brother while they were wrestling on the floor. The appellant does not deny that he did so but says he was acting to protect the younger boy and was therefore acting in defence of another (which is a defence to the charge pursuant to s 48 of the Crimes Act 1961).
[5] The charge in relation to assaulting a child relates to the younger boy, who alleged that the appellant assaulted him on 14 September 2022 by pushing him out of the bathroom and holding him up against a wall for approximately 20 seconds. The appellant submits there was insufficient evidence to convict the appellant, given the significant inconsistencies between the evidence of the two boys and their mother.
Submissions
Appellant's submissions
[6] In respect of the charge involving the older boy, the appellant submits there was no evidential foundation for the Judge to conclude that the reason the appellant acted in the way he did in pulling the older boy off his brother was because he was annoyed at what was happening. The appellant submits his actions were clearly those of a person acting in defence of another and using reasonable force in the circumstances as he perceived them to be, and the appellant should therefore have been found not guilty on that charge.
[7] In respect of the charge involving the younger boy, the appellant submits there was insufficient evidence for the Judge to reach the conclusion he did. The appellant says the onus of proof is on the police to prove the charge beyond reasonable doubt and given all the evidence, there must have been a reasonable doubt as to what
occurred, and that reasonable doubt should have been given to the appellant, who should therefore have been acquitted on the charge.
[8] The grounds of appeal largely relate to the sufficiency of evidence and the weight put on the relevant evidence.
Respondent's submissions
[9] The respondent opposes the appeal and submits the appeal should be dismissed. The respondent submits there was no error in the Judge’s assessment of the evidence in respect of either charge and the appellant has not identified any other reason why a miscarriage of justice has occurred.
Approach to appeal
[10] The Court must allow an appeal of a decision in a Judge-alone trial if it is satisfied that the Judge erred in their 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.5
[11] A “miscarriage of justice” is any error, irregularity, or occurrence in or in relation to or affecting the trial that (a) has created a real risk that the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity.6 A miscarriage of justice is “more than an inconsequential or immaterial mistake or irregularity”.7 The errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court must condemn the trial as unfair and quash the decision.8
[12] A “real risk” that 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”.9 The appellant does not have to establish that the verdict
5 Criminal Procedure Act 2011, s 232(2)(b)–(c).
6 Section 232(4).
7 Matenga v R [2009] NZSC 18 at [30].
8 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
9 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].
was “actually unsafe” but rather that there is a real possibility the verdict would be unsafe.10 “[S]omething more” than a simple disagreement with a Judge’s factual assessment is required to meet the “real risk” test.11
[13] In an appeal from a Judge-alone trial, the appellate court must form its own independent judgment on the merits of the appeal following the approach in Austin, Nichols.12 If an appellate court comes to a different view on the evidence, the Judge necessarily will have erred and the appeal must be allowed.13 However, it is not the role of a court on appeal to consider the issues de novo. The appellant bears the onus of persuading the appellate court to reach a different conclusion, and in discharging that onus must identify the respects in which the judgment under appeal is said to be in error.14
[14] Additionally, in determining whether the judgment was wrong, the appellate court “must take into account any advantages a trial judge may have had.”15 As a result, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”, for two main reasons:16
(a)a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case, and allows a Judge the advantage of being able to form a view as to what sort of people the witnesses are;17 and
(b)a trial Judge is likely to be much better placed than an appellate Judge to determine contested questions of fact based on contested oral evidence.18
10 At [110].
11 Gotty v R [2017] NZCA 528 at [15].
12 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
13 At [38].
14 At [38].
15 At [38].
16 At [38], citing Austin, Nichols, above n 12, at [13].
17 At [39].
[15] An appeal court will only interfere with the trial Judge’s finding of fact in exceptional circumstances.19
Analysis
[16] The appellant appeals his convictions on both charges on the ground that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred. For convenience, I address the assault in relation to the younger boy first, before turning to the assault in relation to the older boy.
Assault in relation to the younger boy
[17] The single issue in dispute was whether or not the appellant had actually assaulted him. That is, did the appellant apply force to the boy?
[18] Given the inconsistencies of the evidence of the appellant, the appellant’s partner, the older boy and the younger boy, the Judge had to make factual determinations on the credibility and reliability of these witnesses. The Judge rejected the evidence of the appellant and the appellant’s partner and accepted the evidence of the older boy over that of the younger boy.
[19] The Judge rejected the evidence of the appellant, noting his ability to remember small details at trial despite having “zero recollection” of the events nine months earlier when first interviewed. In respect of the appellant’s evidence, the Judge noted:
[47] [The appellant] denied laying hands on [the younger boy] at all, attributing whatever mishap befell [the younger boy] as being due to [the younger boy] slipping as [the younger boy] was trying hard to get out of the bathroom. He agreed that he had made a move towards [the younger boy] but denied grabbing him and throwing him against the wall …
[20] The Judge then noted the appellant “agreed, however, that [the younger boy] had exited the bathroom going backwards, something that was not consistent with his earlier explanation.”20 Due to these inconsistencies, the Judge rejected the appellant’s evidence.
19 Sullivan v Police HC Auckland CRI-2008-404-142, 2 October 2008 at [30]; and Wray v Police
HC Hamilton CRI-2006-419-162, 3 May 2007.
[21] The Judge rejected the appellant’s partner’s evidence on the basis that she was trying to protect her partner. The Judge referred to strange elements of her evidence, such as odd circumstances surrounding photographs which were produced by the appellant’s partner only at trial allegedly showing injuries inflicted on her by the older boy.
[22] The Judge noted the appellant’s partner denied seeing anything that could corroborate the younger boy’s version or the older boy’s version of the assault on the younger boy.21 The Judge noted that “very strangely, as was brought out in cross-examination, she did not go and check on [the younger boy] despite having been told that his brother had just been strangling him.”22 The Judge said he was “not prepared to accept a word that [the appellant’s partner] said”,23 concluding:
[56] I do not believe a word that [the appellant’s partner] said. She was clearly trying to protect her partner and in doing so was prepared to throw her children to the wolves.
[23] Mr Laurenson for the appellant submitted that it was the appellant’s partner’s evidence in the circumstances which should have been accepted, as she was as close as the older boy. However, the Judge was in a good position to assess the evidence and in my view did not err in rejecting the evidence of either the appellant or the appellant’s partner, for the reasons he gave. Due to the internal inconsistencies of the evidence of both the appellant and the appellant’s partner, the Judge was in a position to make an evaluation that their evidence was not credible and reliable.
[24] In respect of the evidence of the older boy and the younger boy, the Judge explicitly noted there was an inconsistency in the account of both boys. Ultimately the Judge accepted the older boy’s version rather than the younger boy’s because the older boy was an objective observer from a very short distance away.
[25]The Judge acknowledged the differences in the two boys’ descriptions. He said:
[27] [The older boy’s] description of the event was different to [the younger boy’s] description. He saw [the younger boy] being pushed out of the bathroom, although it is clear that he could only see [the appellant’s]
21 At [54].
22 At [54].
hands, not his body, but he said that he could see [the appellant] had hold of [the younger boy] by the collar as he was pushing him out …
[26]The Judge then noted:
[31] There was a clear inconsistency between the boys as to the assault on [the younger boy]. [The older boy], for example, did not see [the younger boy] being held up off the ground against the wall. He was clear that [the younger boy] had banged his head on the wall as he was pushed out of the bathroom.
[27]Later, again, the Judge stated:
[59] I do need to address the conflict between [the older boy’s] evidence and [the younger boy’s] evidence. I had the advantage of seeing them give evidence as well as of seeing [the appellant] give evidence. [The younger boy] and [the older boy] impressed me as straightforward and honest young men. It was clear to me that they had not put their heads together to invent a story and an example is in relation to the assault involving [the younger boy] or the incident involving [the younger boy], were [sic] there were some reasonably significant differences.
[28] The Judge noted that “[b]oth boys made concessions that teenagers might ordinarily find uncomfortable in making”, had been able to add detail to their narratives, and in addition, that “[p]erhaps the biggest concession that [the older boy] made was his opening statement to the police” that the appellant had thought they had been fighting, which “clearly sets up the defence of self-defence or defence of another by [the appellant].”24
[29] The Judge noted although both boys wanted to go and live with their father, they would not make up allegations to achieve that. They had a close relationship with their father and could rely on their father to do what was necessary for them. For that reason, the Judge accepted the boys’ evidence.25
[30] The Judge was satisfied that the discrepancy in the evidence of the two boys was due to “the rapid events, the hard blow that [the younger boy] received coupled with the shock that this must have caused him.”26
24 At [60] and [63].
25 At [65].
[31] I am satisfied that the Judge correctly analysed the boys’ evidence, including the inconsistencies between them, and made no error in preferring the evidence of the older boy. The Judge’s finding for the reason for the discrepancy is supported by the younger boy’s description of the effect of the alleged assault on him:
I was really nervous scared and like a it was kinda like a shock and I didn’t even know what to do um I kinda like panic yeah almost like had a panic attack
… I was really shaky …
[32] The older boy gave consistent evidence of force being applied by the appellant to the younger boy. His evidence throughout was that he saw the appellant grabbing the younger boy by his collar and pushing the younger boy out of the bathroom so that the younger boy hit his shoulder against the door frame and his head against the wall. In cross-examination he confirmed he could see the appellant’s hand and conceded that he could not completely see the appellant push the younger boy. The Judge made no error in preferring the evidence of the older boy.
[33] The Judge considered the boys’ evidence could properly be regarded as propensity evidence, as demonstrating a propensity to behave in an aggressive and violent way in a family environment and that he had behaved aggressively towards the boys in the past. However, the Judge appropriately reminded himself that “it does not follow from that that he must have committed these assaults.”27
[34] The Judge had the advantage of seeing the witnesses first-hand and making evaluations of their evidence in person. A finding that the appellant had actually assaulted the younger boy was available on the evidence of the older boy. The Judge did not err in finding this charge was made out.
Assault in relation to the older boy
[35] In respect of this charge, the sole issue was whether the appellant’s use of force was reasonable in the circumstances as he perceived them to be.
[36] Again the Judge had to make a determination on the credibility and reliability of the witnesses, and much of the reasoning in respect of the charge above applies to this charge as well.
[37]In particular, in respect of the appellant’s evidence, the Judge noted:
[43] In [his police evidential interview], [the appellant] denied assaulting [the younger boy] and was unable to recall the incident where he was alleged to have assaulted [the older boy]. He said that he had zero recollection of that.
He described the boys as being “full of shit” …
[38]When the appellant gave evidence in court, the Judge noted that, by contrast:
[45] In his evidence, he was able to recall the incident with [the older boy]. He said that he had had to work hard to recall it. He denied that his version of events had been put together after he had read the disclosure evidence and denied that he had overreacted to the boys playfighting because he was stressed by the fighting …
[39] The Judge remarked: “Despite having zero recollection of the incident when asked about [it] by the police nine months ago, he could now remember small details”.28 The Judge also noted that the appellant had been highly aggressive in his police interview but much more polite and reserved in court.
[40] I am satisfied that the Judge made no error in rejecting the appellant’s evidence, in view of the inability to recollect details at the police interview yet when he gave evidence he could recall even minor details. Mr Laurenson submits on appeal that this is explained as at the police interview the appellant did know what the police were talking about, and it was later on reflection that he could do so. While that was an explanation advanced for the appellant, the Judge made no error in reaching the conclusion which he did as to the appellant’s credibility in the circumstances.
[41] As Mr Laurenson pointed out in his submissions, the issue was what the appellant’s understanding was. However, it was open on the evidence for the Judge to conclude that the appellant knew the boys were playfighting. This was also supported by the evidence of the boys. The Judge had found the boys to be straightforward and honest witnesses, and the older boy had described how they would
wrestle every Tuesday and Thursday night and the appellant knew that they wrestled. Importantly, as the Judge noted, the older boy had stated that after the assault, the appellant did not see if the younger boy was okay.
[42]Moreover, the Judge noted:29
… [the older boy] emphatically denied making all of this up so that he could go and live with his father, although he did agree that this was something that he very much wanted to do by that time.
[43] Again, the Judge considered the boys’ evidence could properly be regarded as propensity evidence, as demonstrating a propensity to behave in an aggressive and violent way in a family environment and that he had behaved aggressively towards the boys in the past, but reminded himself that it did not follow from that that he must have committed the assault.30
[44] I agree, as the appellant submits, that the conclusion the Judge made that the appellant had assaulted the older boy out of annoyance does not appear to be supported by the evidence. However, that was not the question to be determined at first instance and is not the question on appeal. The question, for the appellant’s defence of defence of another, is whether the appellant believed the younger boy to be in danger at the time. Given the evidence, particularly the appellant’s lack of concern for the younger boy subsequently to the assault, the conclusion drawn by the Judge, therefore, that the appellant did not actually believe the younger boy was in danger, was one that the Judge was reasonably entitled to draw based on the evidence.
[45] As the Crown notes, even if the appellant did believe the younger boy to be in danger, the use of force in such circumstances was clearly excessive. The appellant accepted that he had lifted the older boy from a prone position on the ground and thrown him back one to two metres. All that was necessary was for the older boy’s arm or hands to be removed from the younger boy’s neck. Lifting and throwing the older boy was clearly excessive, even if the appellant did believe the younger boy to be in danger, which is far from clear.
29 At [34].
[46] Again it must be noted that the Judge had the advantage of evaluating the evidence and drawing conclusions based on it at trial first-hand. I do not consider the Judge made any error in his evaluation of the credibility of the witnesses or the evidence in this case. I am satisfied the Judge was entitled to draw the conclusions he did based on the evidence, in finding this charge to be proven.
Conclusion
[47] For these reasons, I am satisfied the Judge made no error in finding that the appellant was guilty of the two charges.
[48] In respect of the assault on the younger boy, I do not consider the Judge made any error in rejecting the evidence of the appellant and the appellant’s partner, and in accepting the evidence of the two boys, preferring that of the older boy over that of the younger boy, in finding that the appellant had actually assaulted the younger boy.
[49] In respect of the assault on the older boy, I am satisfied the Judge made no error in rejecting the appellant’s evidence and accepting the evidence of the two boys, in finding that the force used by the appellant was excessive, even in the circumstances as he claimed to have perceived them to be.
[50] I do not consider there is any real risk that the outcome of the trial was affected, or any miscarriage of justice.
Result
[51]The appellant’s appeal against his convictions is dismissed.
Grice J
Solicitor:
C & M Legal, New Plymouth
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