H v Police HC Palmerston North CRI-2007-454-27

[2008] NZHC 238

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2007-454-27

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 March 2008

Appearances: K E Becker for the Appellant

P Murray for the Respondent

Judgment:      4 March 2008

JUDGMENT OF CLIFFORD J

Introduction

[1]      Ms H  , the appellant, was found guilty of assaulting one Michael Swan, a former partner, by the Feilding District Court on 22 May 2007.

[2]      Following conviction, Ms H   was fined $350.00 and ordered to pay

Court costs of $130.00.

H V POLICE HC PMN CRI-2007-454-27  4 March 2008

[3]      Ms H   appeals against her conviction and sentence.  In her formal notice of appeal she stated that the grounds of her appeal were that evidence was available now in her defence that had not been available at her hearing.

District Court decision

[4]      In his written notes as regards the appellant’s conviction and sentencing, Judge Garland carefully reminded himself that the onus of proof lay on the prosecution, and that the standard of proof was that beyond reasonable doubt.  He also, very properly, recorded carefully and correctly the ingredients of a charge of assault.

[5]      On that proper legal foundation, Judge Garland then considered the evidence produced by the prosecution in support of the charge, together with the evidence Ms H   had given on her own behalf.

[6]      The  accounts  provided  by  the  complainant,  Mr  Swan,  and  Ms  H   differed fundamentally, as is to be expected, on the central elements of the factual narrative.

[7]      The Judge concluded that the evidence of Mr Swan was to be preferred.  He found Mr Swan to be a credible and believable witness in comparison with Ms H   who he found lacked credibility and did not strike him as a truthful witness. The Judge noted Ms H  ’s testimony that she was frustrated by the perceived inaction of the Police with respect to a number of complaints she had made regarding Mr Swan, and her admission to Police Constable Green that she took matters into her own hands.  The Judge accordingly found Ms Swan guilty of assault.

Submissions

[8]      At the outset of his submissions, Mr Becker acknowledged that there was not, contrary to the position that had been asserted by Ms H   in her formal notice of appeal, any evidence available to her now that was not available at the hearing.  Mr

Becker indicated that what Ms H   had had in mind was evidence of some friends of hers, as to previous incidences of violence by the complainant against her.  Those friends, however, were not present at this assault.

[9]      Having acknowledged that, Mr Becker submitted that:

a)       If certain text messages referred to by Ms H   in her evidence had been put to the complainant, then the Judge may have been persuaded to take a different view of matters.

b)Similarly  as  regards  Ms  H  ’s  credibility,  if  the  fact  that  Ms H   had called the Police prior to visiting the complainant’s premises on the morning of the assault had been led in her evidence, the Judge may have taken a different view of her credibility, and this may have influenced matters.

[10]     I did point out to Mr Becker, as regards the second submission, that on my reading of the transcript Ms H   had, in fact, referred in her evidence to having called the Police prior to visiting the complainant’s premises on the morning.

[11]     At the hearing Mr Becker was unable to point to any other matters in support of this appeal.   He was unable to advance any submission critical of the sentence imposed.

[12]     In his written submissions, Mr Becker had also referred to the weight given by the Judge to the timing of an application by the appellant for a protection order. Mr Becker did not refer to this matter at the hearing, and I have not been able to identify  the  section  of  the  Judge’s  notes  that  Mr  Becker  was  referring  to. Accordingly, I do not refer to that matter any further.  In any event, given the basis upon which the Judge made his decision, I have difficulty seeing how that submission, even if it had been made to me during the hearing in a way that I was better able to understand, could have affected the outcome of this appeal.

[13]     Mr Murray’s submissions were simply that the Judge had heard from both parties and that he had reached views on their credibility open to him in terms of the evidence presented before him.  The matters raised by Mr Becker could not properly be  considered  to  affect  in  any  way  the  conclusion  the  Judge  reached  on  the appellant’s guilt, or the sentence he imposed.

Discussion

[14]   The Judge properly informed himself on matters of law.   He carefully considered the evidence, and set out in his notes the reasons for the conclusions he reached, and the basis upon which he preferred the complainant’s evidence to that of the appellant Ms H  .

[15]     I do not think any of the issues Mr Becker referred to can affect that decision. [16]     In particular:

a)       As  regards  the  text  messages,  the  appellant  Ms  H    provided evidence in some detail, apparently reading from her mobile phone, as to the text messages which she said were relevant. The Judge in his written notes recorded (at [9]) the fact that those text messages, and in particular the ownership of the cell phone from which they had originated, was not put to the complainant.  Further, that was a matter which “must go to the weight that I can give to that evidence”.  I do not  think,  however,  that  the  Judge  necessarily  discounted  that evidence altogether.  Rather, and quite properly in the circumstances, he had to assess the significance of the text messages in light of the fact that the inference, clear from the appellant’s evidence, that the complainant was responsible for those messages had not been explicitly put to him.

b)        As regards the matter of the appellant telephoning the Police, and as I

have noted above, the appellant did refer to that matter in her evidence

(page 28 of the transcript, lines 23-24).  I do not see, therefore, how

Mr Becker’s submission on that point materially advances this appeal.

[17]     Moreover, I accept Mr Murray’s submissions. The Judge carefully considered the evidence he had heard on the basis of his correct understanding of relevant legal principles.  He reached available and reasoned decisions as to credibility, and as to the guilt of the appellant.

[18]     In these circumstances there can be no basis for interfering with the District

Court Judge’s decision.  This appeal is dismissed.

“Clifford J”

Solicitors:         Crown Solicitor for the respondent.