Hall v Police

[2012] NZHC 2328

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-000022 [2012] NZHC 2328

BETWEEN  TONY DOUGLAS HALL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 September 2012

Counsel:         P D Gray for Appellant

M J Thomas for Respondent

Judgment:      11 September 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      On  24  May  2012  Mr  Hall  was  convicted  of  common  assault  in  the

District Court at Gore.  He now appeals against his conviction.

[2]      The complainant, Mr Cleaver, worked as an employee of Mr Hall in his dairy shed.    On  19  October  2011  Mr  Cleaver  and  Mr  Hall  had  a  discussion  about Mr Cleaver’s employment which left Mr Cleaver feeling disgruntled.  The following morning Mr Hall noted a piece of machinery in the milk shed was overflowing with milk.  He believed Mr Cleaver knew about this but failed to tell him because of his disgruntlement.   Terse words were exchanged.   Mr Hall may have summarily dismissed Mr Cleaver at this point.  However, I make no finding that Mr Hall did in fact dismiss Mr Cleaver.

[3]      According to Mr Cleaver he began to leave and said “I’ll see you in Court”.

Mr Hall then said if they were going to court then he may as well make it worthwhile

HALL V NEW ZEALAND POLICE HC INV CRI-2012-425-000022 [11 September 2012]

and hit Mr Cleaver once in the head, twice in the chest and pushed him over some metal rails that separate the cow lanes in the milking shed.  An item of Mr Cleaver’s clothing, a “hoodie” was torn further during this incident.[1]

[1] The “hoodie” had previously a small tear to its top.

[4]      Mr Hall denies the assault happened and instead says Mr Cleaver made the “court” comment and then left.  Mr Cleaver called the police.  A police officer took photographs of him and his torn “hoodie”.

District Court judgment

[5]      The District Court Judge heard evidence from both Mr Cleaver and Mr Hall. The Judge was impressed by Mr Cleaver’s evidence.  In particular the District Court Judge noted Mr Cleaver made concessions about matters that were not to his advantage.    The  District  Court  Judge  thought  the  fact  that  Mr Cleaver  quickly complained  to  the  police  was  significant  in  that  it  confirmed  he  was  clearly aggrieved about what had happened.  The District Court Judge was acutely aware that he had to resolve a question of credibility.  He believed Mr Cleaver had acted in a way which was entirely consistent with him having been assaulted.  The fact the constable did not detect any injury was not thought to be determinative.

Submissions on appeal

[6]      In this Court, Mr Gray, counsel for Mr Hall submits that the District Court Judge resolved the issue of credibility in an unsatisfactory way.  He submits that it is not a question of who the Judge believed but whether there was a reasonable possibility that the complainant could have given false evidence.  Mr Gray submits that assessing credibility is not a matter of impression.[2]   He emphasises the real issue is whether there is a real possibility that Mr Cleaver fabricated his complaint.

[2] Kapa v Police (1989) 4 CRNZ 306 (HC) at 309.

[7]      Mr Gray contends that there is a reasonable possibility Mr Cleaver fabricated his evidence for the following four reasons:

(1)Mr Cleaver has a history of dishonesty.  He has 19 dishonesty related convictions.   Mr Gray says that an objective finder of fact should reasonably have concluded that Mr Cleaver was capable of giving false evidence;

(2)There  were inconsistencies  between  Mr Cleaver’s  evidence  and  a prior statement made to the police.  Those inconsistencies were said to be:

(a)      Mr Cleaver said to the police he was punched in the side of the head, on the left side near the back. However,   Mr   Cleaver   claimed   to   have   received swelling to his left cheek.

(b)Mr Cleaver told the police that Mr Hall grabbed him on the top of his “hoodie”, and in evidence he said he was grabbed in the chest area of his “hoodie”.

(c)      Mr Cleaver said to the police that the lane he was standing in was slippery so he could not run, but in evidence he did not mention this fact.

(3)       There was a lack of evidence of injury;  and

(4)Mr Cleaver had a motive to fabricate the assault as revenge for the employment dispute that he had with Mr Hall.

Analysis

[8]      Mr Hall’s appeal to this Court is conducted by a rehearing pursuant to s 119 of the Summary Proceedings Act 1957.  I can reach a different view of the facts from the District Court Judge.  Mr Hall, does however, have the onus of satisfying me that

I should differ from the District Court’s decision.  I must however come to my own finding on the merits.[3]

[3] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 143 at [3], [5] and [13].

[9]      It is also necessary for me to exercise some caution in this case because the District Court Judge’s findings were based in part on an assessment of the credibility of Mr Cleaver.  In R v Munro[4]  the Court of Appeal held that there are recognisable advantages in seeing and hearing a witness in the context of an entire trial.   This aspect of the Court of Appeal’s judgment in Munro was subsequently affirmed by the Supreme Court in Owen v R[5]  where the Supreme Court recognised the advantages that  lower  courts  have  in  assessing  the  honesty  and  reliability  of  witnesses. However,  those  advantages  are  certainly  more  pronounced  where  a  credibility finding is based upon the general manner and demeanour of a witness rather than the Judge’s assessment of objective facts or inferences proven from facts.

[4] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.

[5] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [15].

[10]     In   this   case   the   District   Court   Judge   expressly   considered   whether Mr Cleaver fabricated the complaint.[6]     The District Court Judge made credibility findings based on his assessment of objective facts such as the inconsistencies between Mr Cleaver’s two statements and the lack of injury.   The District Court Judge’s findings on credibility were also based on how Mr Cleaver reacted when these  matters  were  put  to  him  in  cross-examination  including  his  criminal

convictions.

[6] New Zealand Police v Hall DC Gore CRI-2011-017-672, 24 May 2012 at [14].

[11]     The District Court Judge carefully weighed up both accounts.  He believed Mr Cleaver and rejected Mr Hall’s explanations and concluded that the police had proven the case against Mr Hall beyond reasonable doubt.  I have read the transcript of the evidence and there is nothing that suggests the assessment of credibility was wrong.  I concur with the District Court Judge’s findings.  In particular, I agree that Mr Cleaver’s  reaction  that  morning  when  he  went  to  the  police  is  persuasive

evidence that his complaint was true.

[12]     The District Court Judge had the benefit of hearing all of the points Mr Hall now raises. They were all put to Mr Cleaver in cross-examination.

[13]     The  District  Court  Judge  had  the  advantage  over  me  in  assessing  the credibility of the witnesses.   On the basis of the evidence before me I believe the District Court Judge’s findings were very reasonable.  I can see no basis for reaching a different conclusion from that reached by the District Court Judge.

[14]     For these reasons, I am in no position to conclude that the District Court Judge’s findings on Mr Cleaver’s credibility was wrong or that the police had failed to prove the charge beyond reasonable doubt.   Accordingly, the decision of the

District Court cannot be disturbed and the appeal must be dismissed.

D B Collins J

Solicitors:

Smith Wood & Woods, Gore for Appellant
Crown Solicitor, Invercargill for Respondent