H v Police HC Auckland CRI 2005-404-328

[2006] NZHC 874

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-328

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 July 2006

Counsel:         B Smith for Appellant

E McGill for Respondent

Judgment:      27 July 2006

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Auckland
Counsel:

R Mansfield, Auckland

H V NEW ZEALAND POLICE HC AK CRI 2005-404-328  27 July 2006

[1]      Following a defended hearing in the District Court at Auckland on 30 August

2005,  Mr  H    was convicted  on  two  charges.    The  first  was  that,  on  14

February 2005, he assaulted the complainant, who was his former partner.   The second charge was that, on 27 February 2005, he threatened to kill her.

[2]      The background was described by the District Court Judge as a troubled relationship since the end of 2004, in the context of a relationship that had subsisted since 1995.  At the end of 2004 the complainant obtained a protection order against Mr H   under the Domestic Violence Act.

[3]      There are three points taken on appeal.  The first concerns the conviction on the assault charge.  Mr Smith submits that an evidential foundation of a defence of consent  was  raised  by  the  complainant’s  own  evidence.    That  issue  was  not addressed expressly in the District Court Judge’s decision.   He submits that the Judge was in error in failing to address that question.

[4]      The second point concerns the threatening to kill charge.  It is submitted that there was no evidence of an intent on the part of Mr H   that the threat be taken seriously.

[5]      The third point goes generally to standard of proof.  The Judge did not refer at any point in his short oral judgment to the need to prove the case beyond reasonable doubt.  Rather, particularly, in the context of the assault charge, he found that the events as described by the complainant “are the more likely to have occurred”.   As a result, he found that charge proved.   The submission is that the Judge may well have applied the wrong test.

[6]      Ms McGill, for the Crown, submits that the conclusions reached by the Judge were open to him on the evidence.  Further, when the judgment is read as a whole it is apparent that the Judge acted on the complainant’s evidence.  That evidence, ms McGill submits, was sufficient to establish the charges beyond reasonable doubt, even if the Judge may have expressed himself somewhat loosely.

[7]      I deal with each charge in turn.

[8]      The evidential foundation for the consent issue on the assault charge arises out of evidence from the complainant that the type of activity that gave rise to the charge in this case had occurred in the past between herself and Mr H  .

[9]      The  events  occurred  while  they  were  in  the  bedroom.    Certainly,  Mr H   appears to have held the complainant’s arms and pushed her onto the bed. Nevertheless the complainant, in a rather confused portion of her evidence, said that she was not sure what he was doing “so he probably was playing but in my thoughts I didn’t like it”.

[10]     On a charge of assault, the Crown must exclude the reasonable possibility of consent to the intentional touching that actually took place.  In B v Police (1991) 7

CRNZ 55, at 63, Fisher J said:

The true position is that the onus falls on the prosecution only where there is sufficient evidence to make the presence or absence of consent a live issue in the case.  If, from the accused’s own evidence or the circumstances of the touching or from any other source consent or belief in consent became a possible inference, there was also an onus upon the Crown to positively exclude that offence.

[11]     The Judge did not refer to this issue in his judgment.  I have no doubt that the point was not raised by counsel who then acted for Mr H  .  Nevertheless, the Judge was obliged to consider the point in the context of whether the Crown had excluded the reasonable possibility of consent.

[12]     That became the more important when the Judge preferred the evidence of the complainant to that of Mr H  .  It meant that the Judge had to be satisfied beyond  reasonable  doubt  that  consent  had  been  excluded  in  order  to  convict Mr H  .  The complainant’s evidence itself raised the possibility of consent.

[13]     Having regard to the evidential foundation for consent and the way in which the Judge expressed himself on standard of proof, I regard the conviction as unsafe. I propose to allow the appeal so far as the assault charge is concerned.

[14]     In relation to the threatening to kill charge it has been established, since at least R v Meek [1981] 1 NZLR 499 (CA), that an intent that the threat be taken seriously is an element of the offence. At 503, McMullin J, delivering the judgment of the Court of Appeal made it clear:

It is inherent in the making of a threat that the words should be intended to be taken seriously, not necessarily by the person whose life or safety is threatened, but by the person or persons to whom it is addressed and whose conduct may be influenced by it. …

[15]     Again,  I proceed  on  the  basis  that  the  complainant’s  evidence  has  been preferred to that of Mr H  .   On her evidence, she did not take the threat seriously.

[16]     The threat was made during the course of an argument that occurred on the evening of 27 February 2005 when the complainant called at the property to collect possessions and chattels.  The Judge recorded that, while the threat was made two or three times, the complainant said she did not take them seriously.

[17]     There  appears  little  doubt  that  Mr H    intended  to  frighten  the complainant.  However, that is not the same as intending that the threat to kill her be taken seriously.

[18]     The Judge did not consider this specific issue in his decision.  Coupled with the way in which the Judge expressed the standard of proof and the possibility that it may have been misapplied, I take the view that this conviction also is unsafe.   It follows that the appeal will be allowed in respect this charge also.

[19]     For the reasons given, the appeals against conviction on the charges of assault and threatening to kill are allowed.  The convictions entered in the District Court and the consequent sentences imposed are set aside.   I make an order remitting the informations  to  the  District  Court  for  re-hearing.    It  will  be  for  the  Police  to

determine whether to proceed to a further trial.

P R Heath J