H v Police HC Dunedin CRI 2008 412 23
[2008] NZHC 1249
•7 August 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI 2008 412 23
H
Appellant
v
POLICE
Respondent
Hearing: 3 July 2008
Appearances: Appellant in Person
H R Smith for Respondent
Judgment: 7 August 2008
JUDGMENT OF CHISHOLM J
[1] Following a defended hearing in the District Court at Alexandra Mr H was found guilty on charges of resisting a constable in the execution of his duty, refusing to accompany and refusing to permit a specimen of blood to be taken. He was sentenced to 100 hours community work and disqualified from holding or obtaining a driver’s licence for seven months. Mr H appeals against those convictions and his sentence. He represented himself in both the District Court and in this Court.
[2] During the appeal hearing Mr H sought to adduce further evidence, apparently in support of his attempt to join parties as “plaintiffs and defendants” in a
H V POLICE HC DUN CRI 2008 412 23 7 August 2008
private prosecution. I declined to hear those witnesses. Since the hearing Mr
H has filed supplementary submissions, which I have read.
Background
[3] The convictions arose out of events on 5 November 2007. The hearing took a day. Evidence for the prosecution was given by Constable Boyd.
[4] Constable Boyd said that when he was patrolling in the Alexandra area he noticed Mr H driving along Centennial Avenue without wearing a seat belt. He saw Mr H do a U turn and park opposite the museum building. He parked behind Mr H . Shortly before this he had been speaking with Mr H at the Alexandra police station and had smelt alcohol on his breath.
[5] The constable said that when he required Mr H to undergo a roadside alcohol breath test Mr H ignored him and continued to walk towards the public toilets. Ultimately he stood in front of Mr H and told Mr H that he was required to state his full name and address towards the breath testing device. Instead of doing so Mr H stated the word “David” in a short sharp breath with his head bowed so that his breath was directed away from the device. This also happened on a second occasion.
[6] According to the constable he then required Mr H to undergo a breath screening test without delay and told him to seal his lips around the tube and to blow in a steady breath. However, Mr H tilted his head back and blew a short breath to the left and then a short breath to the right. Mr H was then told that he had failed to undergo the test and that if he failed again he would be required to accompany the constable to the Alexandra police station. After Mr H failed to blow properly into the device properly for the second time the constable required Mr H to accompany him to the Alexandra police station.
[7] The constable said that when he attempted to give Mr H his Bill of Rights Mr H pushed past him and continued on his way to the toilet. He again stood in front of Mr H and stated that if he refused to accompany him he would
be arrested. Mr H ’s response was that he was not going anywhere with a “corrupt cop”, or something along those lines, and Mr H was then told that he was under arrest. When Mr H tried to walk away a struggle developed during which Mr H ’s head came into contact with a stone wall causing a cut on his forehead. Eventually handcuffs were placed on Mr H ’s wrists and he was taken to the police station.
[8] It was the constable’s evidence that at the police station Mr H was handed a Bill of Rights form which he appeared to read, following which he signed the form with the words “the police victim”. Mr H then spoke to a lawyer on the telephone for about 15 minutes after which he failed to complete a further evidential breath test. The print out of that test showing an incomplete test was produced as an exhibit. Mr H was then required to supply blood. After he had again been permitted to speak to his solicitor and had spoken on the telephone for about 20 minutes, he was again asked to supply blood. A doctor then treated the cut on his head, following which he was charged with the three offences.
[9] Constable Boyd was extensively cross-examined by Mr H . Frequently the Judge found it necessary to curtail the cross-examination. In broad terms Mr H accused the police officer of continually harassing him, bringing false charges, lying in the witness box and being part of a conspiracy to protect others. Eventually the Judge brought the cross-examination to a close.
[10] The defence case opened with Mr H calling three witnesses. The first witness was his solicitor. To a large extent her evidence covered previous actions by Mr H and the telephone call to her while he was at the police station. She confirmed that she had advised Mr H to take a blood test. Then the doctor who had attended at the police station to treat Mr H ’s cut on his head was called. While he was not able to confirm that Mr H had agreed to undertake a blood test at the police station, he agreed that he had been contacted directly by Mr H later in the evening and asked to come back to the police station so that blood could be taken. No blood was taken. The third witness, an ambulance officer, said that Mr H came to St John’s Ambulance at about 2am in the morning of 6 November
2007 with a request that a blood sample be taken. No blood was taken.
[11] After the evidence of those witnesses had been completed Mr H told the Judge that he wanted to call further witnesses, Senior Sergeant Cook and Sergeant Reid, who were not present. His request for an adjournment to enable them to attend was refused. Then Mr H advised the Judge that he had summonsed three other witnesses who were not present. He claimed that Constable Boyd had warned these people not to uplift the courier pack containing the material destined for them. Mr H said that they would give evidence about background matters (the conspiracy that had led to his prosecution). Again he sought an adjournment which was refused. Thereafter the request for an adjournment was repeated on a number of occasions, and refused.
[12] Finally, Mr H gave evidence himself. He said that on 5 November
2007 he went to Dunedin and on returning to Alexandra he went to the police station to ask why his complaint about malicious phone calls had not been actioned. He said that both Sergeant Reid and Constable Boyd were still at the police station when he left and that they could not have seen him leaving in his car. Thus they could not have seen whether or not he was wearing a seat belt. When he stopped in Centennial Avenue, undid his seat belt, and left his car, there was no sign of any police car. It was not until he was almost at the wall where his head injury occurred that Constable Boyd “came racing up the street” and wanted to take a breath test.
[13] According to Mr H he co-operated and spoke his name into the device. He said he had nothing to hide because he had not been drinking. When the result was negative for a second time the constable got “really angry”. In all he was asked by the constable to do the breath test five times and on each occasion he co-operated. But the constable would not accept the results, all of which were negative.
[14] Then the policeman unexpectedly grabbed him, swung him around, held his right arm up his back, put on a link of the handcuff, then whipped his left hand up his back and put on the other link of the handcuff. Following that Constable Boyd grabbed his head and deliberately pushed his head into the stone wall. He could not have resisted arrest even if he had tried. The policeman “lost his cool” and when Mr H asked why he was being arrested Constable Boyd said “For giving me five negative breath tests”. He was then dragged over to the police car, thrown into it,
abused, and taken to the police station. On arrival at the police station he was abused again.
[15] Mr H said that the testing was all a “jack up”. He had only had one small glass of wine during the day and had nothing to hide. He agreed to have blood tests done. Later he said that he had “asked 86 times” to have the blood alcohol test done. He said that Constable Boyd admitted that he had lost his temper and smashed his head into the wall because he had given five negative breath tests, and even though Senior Sergeant Cook believed the arrest should not have taken place, Sergeant Reid and Constable Boyd refused to drop the charges. This was because there was a conspiracy between the police and those responsible for the malicious phone calls, who the police were protecting.
District Court Judge’s Decision
[16] After summarising the evidence for the prosecution and defence the Judge recorded:
“I have seen and heard Mr H give evidence throughout much of the day. It is now approximately 5.20 pm. I have formed a very unfavourable view of Mr H . He has clearly got a number of unresolved grievances against the police. He endeavoured to air those grievances throughout the day. He seemed to me to be most unreliable in the evidence he gave. The views that Mr H holds, that he is a victim in these matters, is reinforced by the way in which he signed the advice pursuant to the New Zealand Bill of Rights Act. I also note that he refused to sign the blood specimen form and that the breath-testing device has shown an incomplete result because no sample was sufficient for analysis.”
He rejected Mr H ’s evidence and accepted the evidence of Constable Boyd as
“completely reliable”.
[17] The Judge accepted that there had been full compliance with the statutory requirements and found the three charges proved. He rejected Mr H ’s allegation of an assault by Constable Boyd. Although the Judge accepted that later in the evening Mr H endeavoured to have a blood sample taken, he considered that the offence was constituted when the officer lawfully required Mr H to supply a sample of blood, that point having been reached when the breath and blood screening procedures were being conducted.
Conviction Appeal
[18] This prosecution came down to a direct contest between the conflicting evidence of Constable Boyd and the evidence of Mr H . There were no eye witnesses to the relevant processes. After seeing and hearing the witnesses the Judge accepted the evidence of the constable and rejected Mr H ’s evidence.
[19] The approach of an appellate Court in this type of situation is well settled. In
Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR
190 (CA) Thomas J said at 198:
“The principle that an appellate Court will only interfere with a trial Judge’s findings of fact in exceptional circumstances is so well established it does not require the citation of authority. For present purposes Viscount Haldane LC’s dictum will suffice. In Nocton v Lord Ashburton [1914] AC 932 at p 957, the learned Law Lord said:
“. . . it is only in exceptional circumstances that judges of appeal, who have not seen the witness in the box, ought to differ from the finding of fact of the judge who tried the case as to the state of mind of the witness.”
See further, and by way of example, the decision of the Privy Council in Clark Boyce v Mouat [1993] 3 NZLR 641 per Lord Jauncey at p 647, preferring the conclusions drawn from the evidence of the trial Judge rather than the conclusions drawn by the majority in this Court. More recently, the Board, in Rangatira Ltd v Commissioner of Inland Revenue [1997]
1 NZLR 129 at pp 138 – 139, reiterated that an appellate Court should not reverse the decision of a trial Judge on a question of fact unless that decision is shown to be wrong. Notwithstanding that it may have been a decision which could have gone either way at first instance, it cannot be reversed if it was one which the trial Judge was “entitled to reach”.”
Although I have heard Mr H present his appeal in person I did not have the advantage of the District Court Judge who heard him cross-examined and, equally importantly, heard the evidence of Constable Boyd as well as his cross-examination.
[20] In this case the District Court Judge made clear findings of fact. Having read the transcript of the evidence I am satisfied that those findings of fact were open to him. It is impossible for me to say that the conclusions reached by the Judge were wrong. No error of law is apparent on the face of his decision. The Judge was also entitled to decline Mr H ’s request for an adjournment because the witnesses that Mr H was attempting to call could only give evidence about collateral issues. They were not present on the roadside or at the police station when the
disputed processes were being undertaken. The Judge was perfectly entitled to adopt the approach that their evidence was not admissible.
[21] While I accept that Mr H genuinely feels that he is being persecuted, I am afraid that there is no basis on which the appeal against conviction can be allowed.
Sentence Appeal
[22] The sentence imposed by the Judge was well within the discretion available to him. No grounds for interfering with that sentence have been provided. That component of the appeal must also fail.
Outcome
[23] The appeals against conviction and sentence are dismissed.
Solicitors: Crown Solicitor, Dunedin
Copy to: The Appellant
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