Hanify v Police

[2013] NZHC 3462

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CRI-2013-435-000006 [2013] NZHC 3462

BETWEEN  CLAIRE MICHELLE HANIFY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   17 December 2013 (at Wellington) Counsel:     J K W Blathwayt for Appellant

S A H Bishop for Respondent

Judgment:                18 December 2013

JUDGMENT OF COLLINS J

Introduction

[1]      The question I have to consider is:

Was Ms Hanify wrongly convicted in the District Court of assault with a weapon?1

Context

[2]      This question arises in the context of an appeal by Ms Hanify from a decision of Judge Walsh delivered in the Masterton District Court on 4 September 2013. Judge Walsh convicted Ms Hanify after a defended hearing and subsequently sentenced her to community detention for a period of three months and 150 hours of

community work.

1      Crimes Act 1961, s 202C.

HANIFY v NEW ZEALAND POLICE [2013] NZHC 3462 [18 December 2013]

Background

[3]      On 14 June 2013 Ms Hanify went to the Featherston Police Station and asked for the address of Mr Bevan Richards.  She told the police she wanted to deliver a box  to  Mr  Richards.    That  evening  Ms  Hanify  went  to  Mr  Richards’ house. Mr Richards and two other people, Mr Evans and Ms Williams were in the house.

[4]      Ms Hanify spoke to Mr Richards on the back deck of the property.  A verbal altercation took place.  Ms Hanify punched and broke a small window panel next to the back door.

[5]      Ms Hanify and Mr Richards recommenced their altercation at the front of the house,  between  two  cars  parked  within  the  property.    Judge  Walsh  found  that Ms Hanify shot Mr Richards twice with a Glock replica air pistol at the front of the house. The pellets struck Mr Richards in the neck and arm.

[6]      The police were called.  Ms Hanify was located a short time later by police who described her as being in an intoxicated state.  She told the police that she was angry with Mr Richards because he owed her $6,000.  The following day Ms Hanify made a statement to the police.  She acknowledged she had “fuelled up” on alcohol before going to Mr Richards’ address and that she broke the window panel next to the back door but she denied she shot Mr Richards.

District Court decision

[7]      Judge  Walsh  had  the  benefit  of  hearing  and  seeing  the  evidence  of Mr Richards, Mr Evans, Ms Williams, Ms Hanify, her boyfriend Mr Chevis and three police officers.  One of the police officers produced a transcript of a telephone call which Mr Evans made to emergency services during the incident.

[8]      Ms Hanify’s evidence was that she did not shoot Mr Richards and that he either shot himself or had someone else shoot him in order to deflect police attention away from him.

[9]      In his very thorough judgment Judge Walsh accurately characterised his task as one which required him to assess the credibility of witnesses and make findings of fact.

[10]     Judge  Walsh  was  assisted  in  his  responsibilities  by  the  transcript  of Mr Evans’ call to emergency services.  The transcript is slightly over nine pages long and includes a record of background comments from Mr Richards and Ms Hanify. For present purposes it is helpful to refer to the following parts of the transcript:

[Mr Evans]:      Uh, we got some crazy bitch just turned up here, smashed our window.

...

[Mr Evans]:     She’s got an air pistol as well and she’s gonna shoot him.

...

[Mr Evans]:     She’s just shot it again.  Oh fuck man you better hurry up.

...

[Mr Evans]:      Uh we’ve got the air pistol now.   [Mr Richards] got it off her.  You might wanna hurry up ‘cause he might give her a hiding aye.  Uh, he’s back inside.  We’ve shut the door, but she’s out there.

...

[Mr Evans]:     Yeah he got the pistol off her. Comms:     Was she shooting it at him?

...

[Mr Evans]:     Yeah.

...

[Mr Richards]: Nah, nah she was shooting at me.

...

[Mr Richards]: I’ll keep the [bitch’s] air gun though.

...

[11]     Judge Walsh reasoned that Mr Evans’ call to the emergency services was a reliable contemporaneous account of events and that although Mr Evans personally did not see Ms Hanify with the air pistol he did hear shots being fired.

[12]     Judge Walsh found that Mr Evans and Ms Williams were credible witnesses and  that  their  testimony,  in  conjunction  with  the  transcript  of  the  call  to  the emergency services satisfied him beyond reasonable doubt that Ms Hanify had shot Mr Richards with the air pistol.

[13]     Judge   Walsh   reasoned   that   it   would   have   been   impossible   in   the circumstances for Mr Richards to have arranged for someone else to have shot him. Similarly,  Judge Walsh  reasoned that  Ms  Hanify’s  suggestion  Mr Richards shot himself was implausible.

Grounds of appeal

[14]     Ms Hanify’s grounds of appeal are based on her contention Judge Walsh’s findings of fact were not supported by the evidence, that he failed to give reasons for rejecting Ms Hanify’s version of events, and that he misdirected himself on the relevance of Ms Hanify’s evidence.

[15]     Ms Hanify’s specific grounds of appeal are that Judge Walsh:

(1)failed   to   take   into   consideration   matters   that   impacted   on Mr Richards’ credibility and which supported Ms Hanify’s version of events;

(2)placed too much weight on the transcript of the emergency services call;

(3)       did not give reasons for rejecting Ms Hanify’s evidence;  and

(4)       did not give himself a “tripartite direction” concerning the effect of

Ms Hanify giving evidence.

[16]     I will now analyse these three grounds of appeal.

Did  Judge  Walsh  fail  to  take  into  consideration  matters  that  impacted  on

Mr Richards’ credibility and which supported Ms Hanify’s evidence?

[17]     Ms  Hanify  submits  that  there  are  three  aspects  of  the  evidence  that

undermined Mr Richards’ credibility and support her version of events.

[18]     The first point Ms Hanify makes in relation to this aspect of her appeal is that Mr Richards could not recall Ms Hanify sitting on a chair on the back deck of the property after she had broken the side window.  Both Mr Evans and Ms Williams said they saw Ms Hanify sitting in a chair on the back deck.

[19]     This submission is not persuasive.  All Mr Richards said was that he could not recall Ms Hanify sitting in the chair.  In any event, Judge Walsh took this factor into account when reaching his decision.2

[20]     The second point Ms Hanify makes in relation to this aspect of her appeal is that Mr Richards denied having anything, including an air gun in his hand as he came out of the house onto the back deck, whereas Mr Evans said Mr Richards was holding a hammer, as if it were a pistol when he was on the back deck.

[21]     This point does not assist Ms Hanify because Mr Evans’ evidence was that Mr Richards picked the hammer up from the deck where there were a number of tools.3     Thus, Mr Evans’ evidence was entirely consistent with Mr Richards’ testimony that he did not have anything in his hand when he went from the house onto the deck.

[22]     The  third  point  Ms  Hanify  makes  in  this  part  of  her  appeal  is  that Mr Richards  said  he  chased  Ms  Hanify  around  the  side  of  the  house  whereas Mr Evans and Ms Williams said Mr Richards ran through the house and confronted

Ms Hanify again at the front of the property.

2      New Zealand Police v Hanify DC Masterton CRI-2013-085-643, 4 September 2013 at [9]-[10]

and [21].

3      Notes of Evidence, 3 September 2013 at [34], lines 15-20.

[23]     This  point  is  also  not  persuasive.    Judge Walsh  noted  the  inconsistency between this aspect of Mr Richards’ evidence and the evidence of Mr Evans and Ms Williams.  Judge Walsh correctly noted that this was of no consequence because “irrespective of how [Mr Richards] came to confront [Ms Hanify] the evidence established there was a further physical confrontation”.4

[24]   While there were some inconsistencies between the evidence given by prosecution witnesses, in my assessment those inconsistencies were understandable given the difficulties people have in accurately recalling every detail of events that occur in stressful situations.  None of the inconsistencies were significant or provide grounds for interfering with Judge Walsh’s conclusions.

[25]     For this reason I conclude Judge Walsh did not fail to give consideration to matters that impacted on Mr Richards’ credibility or which supported Ms Hanify’s version of events.

Did Judge Walsh place too much reliance on the transcript of the emergency services call?

[26]     Ms Hanify criticised Judge Walsh’s reliance on the transcript of the 111 call made by Mr Evans.   She does so because the transcript records what was said by Mr Evans and Ms Williams based on what Mr Richards was telling them.   It is accepted that neither Mr Evans or Ms Williams actually saw Ms Hanify with an air gun.

[27]     However,  like  Judge Walsh,  I believe  the  transcript  of  the  111  call  was contemporaneous   and   reliable.      In   particular,   the   transcript   clearly   records Mr Richards’ spontaneous statement that Ms Hanify had just  shot him.   This is powerful evidence which was entirely consistent with the evidence of Mr Evans and Ms Williams who witnessed the tussle between Mr Richards and Ms Hanify.

[28]     Thus, I do not believe that Judge Walsh placed too much reliance on the transcript of the emergency services call.

4      New Zealand Police v Hanify, above n 2, at [13].

Did Judge Walsh fail to give reasons for rejecting Ms Hanify’s evidence?

[29]     Ms  Hanify  submits  Judge  Walsh  did  not  give  reasons  for  rejecting  her evidence.

[30]     Judge Walsh recorded that “... If I accept the claim of [Ms Hanify] I would have to reject the evidence of [Mr Richards], Ms Evans and Ms Williams.”5   Judge Walsh then went on to state that after reviewing the evidence of Mr Evans and Ms Williams he had no reason to doubt their honesty and reliability.6

[31]     Thus, Judge Walsh said that after considering the evidence he accepted the accounts given by Mr Evans and Ms Williams and rejected Ms Hanify’s explanations of how Mr Richards came to be shot.

[32]     It is clear from my reading of Judge Walsh’s judgment that he did explain that he rejected the evidence of Ms Hanify because he preferred the evidence of the key prosecution witnesses and because he believed her explanation of how Mr Richards came to be shot was not credible.

Did Judge Walsh fail to direct himself on the significance of  Ms Hanify giving evidence?

[33]    Ms Hanify submits Judge Walsh misdirected himself on how he should approach the issue of her evidence.  Ms Hanify says there was no specific tripartite direction given by Judge Walsh to himself.

[34]     In my assessment, Judge Walsh at least implicitly directed himself on the correct way to treat Ms Hanify’s evidence.   He assessed all of the evidence and rejected Ms Hanify’s explanation.  Ultimately, however, Judge Walsh concluded that

the police had proven the case against Ms Hanify beyond reasonable doubt.7

5      New Zealand Police v Hanify, above n 2, at [46].

6 At [48].

7 At [53].

Conclusion

[35]     None of the grounds of appeal have been established.  I am therefore driven to the conclusion that Ms Hanify was correctly convicted in the District Court of assault with a weapon.

[36]     The appeal is therefore dismissed.

D B Collins J

Solicitors:

WCM Legal, Carterton for Appellant

Crown Solicitor, Wellington for Respondent