H v Police HC New Plymouth CRI 2008-443-18

[2008] NZHC 1384

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2008-443-000018

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 August 2008

Counsel:         Mr H   in Person

T Walls for the Respondent

Judgment:      4 September 2008 at 4.00 p.m.

JUDGMENT OF SIMON FRANCE J

This judgment was delivered by Justice Simon France on 4 September 2008 at 4.00 p.m. pursuant to r540(4) of the High Court Rules 1985.

H V NEW ZEALAND POLICE HC NWP CRI 2008-443-000018  4 September

2008

Introduction

[1]      Mr H   was convicted, following a summary trial,  of two  charges  of assault.   A third charge of “threatening” was dismissed because of an error in the information charging Mr H  .

[2]      Mr H   was represented at trial, but appears on his own behalf before this Court.     As  a  consequence,  there  are  deficiencies  in  process  on  the  appeal. Complaints are made that lack a proper evidential foundation.   However, having considered all the different issues, I consider I am in a position to issue judgment without requiring those matters to be corrected, or further information to be obtained. In my view this is one of those occasions where a combination of factors means the convictions should be quashed.

General background

[3]      The  assault  charges  stem  from  incidents  occurring  at  the  house  that Mr H   shared with his de facto partner.  It was her house.  Tensions had arisen because his partner had allowed a cousin and her husband to stay in the house until they got settled in the district.

[4]      On the day in question it is alleged that Mr H   tried to confront his partner about the issue early in the morning before he went to work.  She would not engage so he held her on the bed by the shoulders.   He later left for work.   The gripping of his partner by the shoulders is the first assault allegation.

[5]      During the day things did not improve.   He summonsed family members, including his mother who had previously – at least as he saw it – acted as a mediator. When he returned from work to the house two further assaults are alleged.  It is said that when his partner refused to talk to Mr H  ’s mother on the phone, Mr H   pushed or banged the phone to her ear.  This is the second assault allegation.

[6]      Later that afternoon, Mr H   having left and returned with his brother and mother, it is said that they pushed into the house when unwelcome.  In response, the partner fled to the bedroom where she was pursued by the brothers.  She was pushed or bustled by Mr H   into the corner of the room, and then harangued by the brothers.   This pushing is the third assault allegation.   It is also alleged that the victim’s sister, who was at the house and had attempted to prevent the brothers’ entry, came to her sister’s aid.  She says she was manhandled out of the bedroom by Mr H  .   This manhandling led to charges of assaulting the sister, and also the threatening charge which was dismissed.

The appeal

Issue one – information bad for duplicity

[7]      A point not taken by Mr H  , but raised by the Court, was that Mr H   faced a single charge of assault against his former partner.  However, it is clear that three quite distinct assaults, in one case separated by several hours, are alleged – holding down by the shoulders, hitting the ear, and pushing into the corner.

[8]      Section 17 of the Summary Proceedings Act 1957 is clear that an information may only charge one count.  Mr H   fairly admitted that he understood that there were 3 allegations.   Further the Judge has addressed, and found proved, all of the three assaults.  Nevertheless it is clear that charge is bad in form.  I do not need to consider the consequences of this if it were the only point of concern, because other matters also arise.

Issue two – predetermination

[9]      It  is  necessary to  give  some  context  to  what  I am  told  occurred.    It  is important to note here that I have the disadvantage that Crown counsel on the appeal was not counsel at trial, and nor did Mr H  ’s counsel appear at the appeal.  I am very aware, therefore, that recollections and perceptions of events differ and caution is needed.

[10]     Mr H    was  concerned  about  an  event  he  says  occurred  during  the prosecution case.  It is said that the police prosecutor and his counsel went into the Judge’s chambers.   Mr H   thought it  occurred  after  the  second  complainant testified.  After discussion with him I am less sure and consider it might have been after all the prosecution evidence.

[11]     Mr H   says that, when he returned his counsel told him that the Judge was worried about the time, had formed a view as to the seriousness or lack of it of the incidents, and had indicated a possible sentence if there was a plea.  I observe that, consistent with the alleged concern about time, it is evident in the transcript that defence counsel is subsequently anxious to truncate the evidence of two defence witnesses.

[12]     Mr H   on appeal submitted that the Judge’s suggestion of a plea and indication   of   a   possible   sentence   at   that   stage   of   the   case   amounted   to pre-determination of the credibility issue.   I do not consider it does even if things happened  as  claimed,  so  have  not  thought  it  necessary  to  call  for  a  report  or counsel’s recollections.   One can see in this episode, if it happened that way, the recognition coming to the Judge that the assaults he was dealing with, in the comparative scheme of such things as come before the Courts, were at the minor end of the scale.  He probably thought it might be useful to indicate that assessment, in case it was uncertainty as to perceptions of seriousness that was driving the need for a  disputed  hearing,  for  the  calling  of  family  members,  and  for  the  consequent findings of credibility that might be damaging to some of the witnesses.

[13]     I consider that there would be differences of opinion as to the wisdom of a Judge doing this in the middle of a short defended fixture when having heard only one half of a stark conflict in evidence.   I myself do not favour it but Mr H   maintained his not guilty plea, witnesses were called and a reasoned judgment given. I do not see any evidence of pre-determination in the judgment and so reject this aspect of the appeal.

[14]     I do comment, however, that considerable care should be taken before seeing counsel without the accused.  Court of Appeal authority has regularly been critical of

it; my own view is it should not be done at least once a hearing has started.  It is the accused on trial; he or she should be present unless they consent to not being so. Further, such consent should only be sought for good reasons.  One of the obvious dangers is reflected in this appeal; it gives the wrong impression and creates feelings of being excluded, and of being disadvantaged.  In my experience it is often counsel who seek such meetings but this should be resisted.   It can be convenient, but is nevertheless not the correct approach.

Issue three – credibility findings

[15]     Mr H   submitted it was not clear why his side of events was rejected.  In one sense this is not so, because the Judge expressly says that where there is a conflict he prefers the evidence of the sisters over Mr H  .   I am of the view, however, that more was needed.

[16]     To take one example, the versions of events given by Mr H  ’s brother on the one hand, and the sister of the main complainant (and herself a complainant) on the other, were quite different and were incompatible.

[17]     Mr H  ’s brother said he went into the bedroom to confront his brother’s partner.   He was talking to  her  in  the  corner,  and  whatever  happened  between Mr H   and the sister occurred behind him at the bedroom door.  Concerning this the Judge held:

“Mr H    called  evidence  from  his  brother  who  I  am  satisfied,  that although in the room, did not observe what it was she complained of.”

[18]     The “she” being referred to is the main complainant.  Whilst it is of course open to the Judge to reject or accept evidence, there are difficulties here.  The sister’s version is that the brothers were together and that she pushed past them, got in front of them and clung to her sister.  Mr H  ’s brother expressly rejected this, saying the sister never got into the room at all – hence, whatever happened between her and his brother occurred behind him.  To accept that the brother could not see appears to accept his evidence, but if that is so, the sister’s evidence cannot also be correct.

[19]     The Court’s key factual finding was that the sisters impressed the Judge in the manner of their evidence, whilst Mr H   did not.  He was agitated, aggressive and combative in his manner, and the Judge had no difficulty rejecting his evidence where it conflicted with that of the complainants who were moderate and balanced in their evidence.

[20]     Opinions  vary  as  to  the  value  of  witness  box  demeanour  in  assessing credibility, but it is certainly a factor the Judge is entitled to have regard to.  I am less sure, however, it can provide the basis in this case for wholesale rejection of one side to the exclusion of the other.   I presume  the  Judge  means  by the  reference  to agitation, for example, that it makes it more probable Mr H   was agitated on the day.  That would be an entirely reasonable assessment to draw, but it does not of course mean he used violence.

[21]     Concerning the phone assault, Mr H   says he intended to place the phone to his partner’s ear, and if it hit the ear, it was accidental.  The Judge on this said:

“I might, had it stood alone, been moved to the point where I found that the phone incident was not a deliberate application of force.  Nonetheless when I look  at  things  overall  and  take  these  matters  into  account,  the  video interview had to be terminated because of Mr H  ’s distress.   He was clearly distressed on this occasion and I am satisfied the two women gave unembellished evidence in relation to his manner, his behaviour and his performance.”

[22]     Four things emerge from this.   First, the incident should have stood alone, and been the subject of a separate charge.  Second the use of Mr H  ’s “distress” at the video interview is questionable.  An officer testified that the video interview, which occurred at some time in the evening, was stopped because the defendant had become angry.  The officer then seems to explain this in terms of Mr H   being annoyed at the tape breaking down, and upset when given his Bill of Rights warning that he didn’t know, in the sense of could not decide, if he wanted to speak to a lawyer.  The portion of the video, if there was one, up to that point was not played.  I do  not  consider  this  matter  logically  supports  a  conclusion  that  Mr H   intentionally hit his partner’s ear earlier in the day.

[23]     Third, the complainant had testified that her ear was visibly red and that she showed this to the police.  However, the officer said that when she observed the ear, it was not red.  This aspect of the evidence is not considered.

[24]     Finally, nowhere in the judgment is there a reference to the burden of proof. Of course the Judge is aware of the standard, but it is always useful to remind oneself of it.  When one looks at the opening sentence of the cited paragraph, the point is, I consider, made.  Given those apparent doubts, it would be preferable for an acknowledgement that the cited matters have taken the Court from a doubt to the necessary  level  of  being  sure.    “Moved  to  the  point  of  accepting  it  was  not deliberate” is an unhappy way to express the criminal burden, since a doubt about it being deliberate requires acquittal.

[25]     Given the factors I have identified, I do not consider these matters could remove the doubt the Judge otherwise seemingly had about the mental element of the assault.

Issue four – the evidence of Mr H  ’s mother

[26]     Mr H   says the Judge misunderstood his mother’s evidence.  The Judge found that she was not present in the relevant rooms and so was not a witness to what occurred.

[27]     I pointed out to Mr H   that it is arguable that is what his mother says. Mrs H   describes seeing the sister trying to prevent the brothers from getting up the hall to the bedroom.  She described the sister as trying to push Mr H   and telling him to get out.  She saw nothing else.

[28]     As the Judge notes, this evidence can be viewed as addressing events prior to what occurred in the bedroom.  However, the sister’s version was one of unimpeded access for her into the bedroom where the brothers already were.  It is not easy to reconcile that evidence with that of Mrs H  , and this conflict does not seem to have been recognised by the Judge.

[29]     The reality is that the evidence of Mrs H   is not particularly clear as to the timing.  But that in itself possibly reflects something.  Mr H   says that after his lawyer saw the Judge he indicated to Mr H   that the mother would not be called.   Mr H  , however, insisted that she was.   However, when called, her evidence was characterised by what, even on just the face of the transcript, seem hurried and very leading questions by Mr H  ’s counsel.   These questions are themselves prefaced by:

“Now I want to keep this very brief.”

[30]     That observation by counsel is consistent with Mr H  ’s complaint that time was an issue, and there was pressure to finish.  An objective reading of her brief testimony  leaves  me  with  a  clear  view  that  Mrs H    never  really  had  an opportunity to tell her story.

[31]     I appreciate that on an appeal there are problems with these observations. There is no evidence from trial counsel, nor any brief or anything that would clarify whether Mrs H   had more to say.   Nevertheless, I am of the view that her testimony does reflect a general concern I have about the hearing.  It appears to me to have been impractical to have expected the case to take an afternoon.  Whether it was appreciated that the defence would call these witnesses I do not know, but the reality is that there were to be 7 witnesses called and cross-examined in relation to a matter keenly contested and which involved some confusing events.

Conclusion

[32]     The impracticality of the time allocation means the Court was placed in a difficult situation.  Ultimately, however, the trial outcome is 2 criminal convictions. Circumstances have come together to leave me sufficiently concerned about the correctness of the convictions.  I accordingly quash them.  Given the nature of the alleged assaults, and the defects in the charging, I do not consider it appropriate to

order a trial.

Simon France J

Solicitors:

Auld Brewer Mazengarb & McEwen, PO Box 738, New Plymouth, email: [email protected]