H v The Police Cri-2005-409-184

[2006] NZHC 20

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2005-409-000184

H

Appellant

v

THE POLICE

Respondent

Hearing:         2 February 2006

Counsel:         R A Peters for Appellant

J A Farish for Respondent

Judgment:      2 February 2006

ORAL JUDGMENT OF PANCKHURST J

[1]      After a defended hearing in the District Court on 23 September last Judge Bisphan held that four charges which the appellant faced were established and accordingly entered convictions.  These were two charges of threatening to kill laid under the Crimes Act, one of assault laid under the Crimes Act  (in relation to Mr CH) and one under the Summary Offences Act (in relation to Mr Wallace). The present appeal is against those convictions.

[2]      It is convenient to first outline the factual background as found by the Judge. The three men were known to one another.  They are residents of Governors Bay.

Indeed on the relevant day, 12 January 2005, they had been drinking together at the

H  V THE POLICE HC CHCH CRI-2005-409-000184  2 February 2006

Governors Bay Hotel.  Into the evening they dispersed.  Mr CH returned to his home which I note was subsequently to become the scene of the relevant events. Mr Sam Wallace likewise went to his home where he uplifted a playstation and took it to Mr CH’s address.

[3]      A  short  while  after  Mr  Wallace  arrived  there  the  appellant,  Mr  H  , likewise  called  at  Mr  CH’s  address  apparently without  invitation.    He  was described by Judge Bisphan as bursting into the property and voicing in somewhat incoherent fashion threats against his two previous drinking mates.  These included threats to kill them.  So far as I can see from a consideration of the evidence there was no rational reason for this somewhat violent arrival at the house.

[4]      In  any  event  the  Judge  also  accepted  that  the  appellant  then  attacked Mr CH,  there  followed  an  altercation  between  the  two  which  caused  the intervention of Mr Wallace.  Following this action within the house there was a time when the three men were outside the house and Mr H   was effectively restrained by the other two.  After a short time they returned to the house and endeavoured to deny Mr H   access back to the property.  Their evidence was to the effect that further threats were voiced and that Mr H   endeavoured to barge through the door in order to gain access.  As a result of the door being partially opened at some point Mr H   did gain entry to the house again.  There was some further measure of altercation involving the three men but a short time later the police arrived having been called by Mr CH or M Wallace.

[5]      Judge Bisphan, having reviewed the evidence, then found that the initial attack upon Mr CH was an assault and one in relation to which no issue of self defence arose.  It is to be noted that at this stage of the fracas Mr CH, soon after he was first attacked, apparently armed himself with a Steinlager bottle and struck an effective blow to Mr H  ’s temple.   There was clear evidence of this not only because Mr CH eventually admitted as much but because when Mr H   was spoken to by a local constable he pointed out the laceration injury to his temple and the police constable took photographs of it which were duly produced in the District Court.  It must follow in my view that Judge Bisphan was satisfied that the bottle

was used in self defence and after there had been an assault committed by the appellant.

[6]      With reference to the other complainant, Mr Wallace, the Judge was satisfied that he was assaulted either at the point of his initial intervention to assist Mr CH or equally at the time that the appellant was seeking to regain entry into the house by barging down the door.

[7]      The Judge was likewise satisfied that threats to kill spoken with the intention that they should be taken seriously occurred in relation to both of the complainants and on more than one occasion.   That is he was satisfied there were threats both when Mr H   first reached the house and at the time he was endeavouring to regain access to it after the three men had been briefly outside the house.

[8]      By contrast the Judge was not satisfied that the evidence was sufficient to warrant entry of a conviction on the fifth charge.  This was a charge of burglary.  By what he termed a narrow margin the Judge found that it could not safely be inferred that Mr H   at the time of first entry into Mr CH’s house had the requisite intention to commit a crime, albeit that the rapidity of the events which followed went a considerable distance to invite the conclusion that assault had been on the appellant’s mind when first arrived.  However, as I have already noted, the burglary charge was dismissed.

[9]      Although there is no appeal against sentence I note that the Judge sentenced Mr H   the same day that he entered convictions and imposed 150 hours of community work.

[10]     Mr Peters, who was not counsel in the District Court, has advanced various grounds of appeal in accordance with the appellant’s instructions.  These grounds are essentially factual in nature.  I did not understand there to be any complaint of legal error on the part of the District Court Judge, although one of the grounds suggests procedural error.  I turn then to the grounds of appeal.

[11]     The  first  ground  is  that  leading questions  were  asked  of  the  first  police witness being Mr Christopher CH who might be termed the principal complainant.  Mr Peters has taken me through seven examples of questions which, at least in the appellant’s view, were leading in nature.  I do not propose to go through each question in turn.  To my mind none of the questions were leading in nature, or at least leading in a sense which was objectionable.  They were questions directed to essentially non-contentious issues (for example, at one point, where a witness lived), or were questions of clarification, or were not truly leading questions at all.  Even if there was an element of leading this witness it would be very difficult to say that any such procedural irregularity influenced the factual conclusions which were reached by the Judge.  The fact is that the various matters of complaint are not central to the case at all, but rather relate to either non-contentious or less crucial relevant matters. Accordingly there is nothing in this ground of appeal.

[12]     The second ground is that Mr CH’s evidence was implausible in that he said he was lifted up by the appellant “by one arm”.  Although the witness himself was not challenged as to this aspect the appellant cross-examined the police officer who was in charge of the case concerning this point.  The basis of the challenge was that it was unrealistic to suggest that Mr H   could possibly have lifted Mr CH by one arm when Mr CH was said to weigh about 14 stone.   The constable was unconvinced that this was necessarily so, pointing out that Mr H  , who was aged 40 years, is a somewhat athletic individual.   The problem which I have with this argument is that it does not seem to me to be based squarely on the evidence given by Mr CH.  The suggestion that he was lifted was in relation to the initial assault.  What he said in relation to that was that soon after Mr H   burst into his home he was grabbed around the throat.  Having described that aspect in a somewhat confused manner, the Judge (at p 4 line 36) intervened and sought to clarify the point.  He asked this question:

Q.   Sorry, you said before he grabbed you around the throat, and what else

A.   He grabbed me around the throat and lifted me up slightly.

[13]     It seems to me therefore that the effect of the evidence was not a suggestion that Mr CH, apparently a hefty man, was lifted substantially when held by one arm  but  rather  that  he  was  lifted  slightly  when  held  by  the  throat.    The  two

propositions are of course quite different.  In any event the point is not one which was of central importance to the case.   Indeed the Judge dealt with it in his oral decision by simply saying “Mr CH was either lifted up or stood up”.  Both on account of the evidence and on account of the way in which the Judge approached the matter, I cannot see that there is anything in this ground of appeal either.

[14]     The third ground of appeal was that the police case was deficient on account of  the  absence  of  any  medical  or  other  forensic  evidence  supportive  of  the allegations made by Messrs CH and Wallace.  This is so, but of course it was competent for the Judge to find, as he did, that the assaults had nonetheless occurred. It is also to be noted that neither witness claimed that he had suffered significant injury in the course of the altercation.  It was hardly therefore a case which cried out for  medical  or  forensic  evidence  in  order  to  support  the  allegations.     I  am unpersuaded by this ground of appeal.

[15]     Although Mr Peters did not advance oral submissions in relation to a further ground set out in the notice of appeal I shall briefly mention it.  This was that there were differences, perhaps conflicts, between the evidence of Mr CH on the one hand and Mr Wallace on the other, which should have left the Judge in doubt as to the reliability of their accounts.  The most striking difference was in relation to the use of the bottle on Mr H  .   Mr CH did not initially disclose this to the police but subsequently did so by making a telephone call to the constable who was in charge of the case.  Indeed, having done that he then expressed the view that it may be preferable that the charges not proceed to hearing.   That was a view not shared by Mr Wallace, nor apparently by the police, given that the case did proceed, with the result I have already indicated.

[16]     However the decisive consideration for present purposes is that the Judge did not ignore the issue of differences, or conflict, in the respective accounts of Messrs CH and Wallace.   He expressly referred to them but nonetheless  expressed himself satisfied that the two had given essentially accurate accounts of the incident. Judge Bisphan also proferred the view that it was not uncommon for different people caught up in an event of this kind to see only parts of what happened in the agony of the moment.

[17]     I am far from satisfied that this is a case where there were marked conflicts between  the  complainants  such  that  their  credibility  was  significantly  impaired, much less such as to require the intervention of this court on appeal.  To the contrary the case is a classic one where a Judge at first instance having seen and heard the protagonists was far better placed than I am to reach conclusions about the matter. He did so, giving adequate reasons for those conclusions, and there is no basis for intervention.

[18]     Accordingly the appeal is dismissed.

Solicitors:

Thompson & Morgan, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent