Hibbs v Police
[2014] NZHC 910
•6 May 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-008 [2014] NZHC 910
CHRISTOPHER HIBBS
v
NEW ZEALAND POLICE
Hearing: 1 May 2014 Appearances:
R W Maze for Appellant
K J Basire for RespondentJudgment:
6 May 2014
JUDGMENT OF DUNNINGHAM J
[1] Christopher Hibbs appeals against the conviction His Honour, Judge Neave entered against him on 20 December 2013, for wilful damage contrary to s 11(1)(a) of the Summary Offences Act 1981.
Background
[2] The incident giving rise to the charge occurred in the context of a family dispute, the complexities of which are not all material to this appeal. It is sufficient to say that when Mr Hibbs’s mother resumed a relationship with a Mr Tony Johnston, the defendant moved out of her house. He had to have somewhere to store various items of equipment he owned and they were stored in the garage of his sister Jessica Prisk and her adoptive father, Mr Prisk.
[3] Mr Johnston considered that some of the items stored in Mr Prisk’s garage
belonged to him and had wrongfully been removed by Mr Hibbs. On the morning of
HIBBS v NEW ZEALAND POLICE [2014] NZHC 910 [6 May 2014]
12 May 2013, Mr Johnston came over and, with the acquiescence of Ms Prisk, picked up and took away those items which he said belonged to him.
[4] Mr Hibbs got wind of this and came over to the Prisks’ home that afternoon accompanied by a friend, Nicholas Gilmore. When he saw that a significant number of the items he had stored in the garage were gone, Ms Prisk, the complainant says that he became very angry. He telephoned the police about the incident and that is recorded on a 111 call. He also (although he denies it) used Ms Prisk’s portable landline telephone to contact Mr Johnston. When he was in the back courtyard of Mr Frisk’s property, the allegation is that as he concluded his call to Mr Johnston, he had a fit of temper and threw the telephone onto the ground where it broke.
[5] There were other allegations that he threatened his sister, Ms Prisk, with an air gun and said he was going to “blow your house up”, but the Judge dismissed those charges, determining there was insufficient evidence to convict on them.
[6] Mr Hibbs denied all three charges, including breaking the telephone.
District Court decision
[7] The Judge recited the background as set out above. On the pertinent charge of the landline telephone being intentionally broken by Mr Hibbs, the Judge accepted the evidence of Ms Prisk, the complainant, who said she saw the defendant deliberately throw the telephone down. He also relied on the evidence of Mr Prisk, Jessica’s 72 year old father. Although Mr Prisk did not see the event, he recalled Mr Hibbs rushing through the house out the back door into the back courtyard and heard a noise which he took to be the telephone breaking, and then, when Mr Hibbs left, Mr Hibbs said “I’ll pay for the phone”. As the Judge said “he was clear in terms of supporting Jessica in relation to the phone”.
[8] The Judge also relied on the evidence of a neighbour, Mr Forbes. He said that he could hear loud voices coming from the complainant’s address. He could see the woman from the flat standing at the back door and a male in the backyard and he said the male appeared agitated and angry. He heard something sounding like an object smashing on the concrete, and he heard a woman say almost simultaneously
“don’t break my phone”. Although Mr Hibbs and his friend Mr Gilmore denied that he broke the telephone, the Judge was satisfied from the evidence of the complainant supported by Mr Prisk and Mr Forbes, and supported by the telephone call made by Ms Prisk to the police effectively straight after this event, that the defendant did break the telephone and that he did so intentionally.
Approach to appeal
[9] As the offence occurred in May 2013, the appeal is to be heard under the appeal provisions of the Summary Proceedings Act 1957. No issue was taken as to the approach to the appeal. It is to proceed by way of the hearing, in accordance with the principles for general appeals set out in the Supreme Court’s decision in
Austin, Nichols & Co Inc v Stichting Lodestar.1
[10] However, as was said in Timoti v Police:2
In forming its own opinion on the evidence this Court may recognise the advantage that a District Court Judge had in seeing and hearing the witnesses when an issue of credibility arises and may hesitate to conclude that the Judge’s findings of fact or fact and degree were wrong.
Grounds of appeal
[11] The grounds of appeal are that the learned District Court Judge erred in fact and law by:
(a) wrongfully excluding veracity evidence, namely evidence from the complainant’s sister, Kerry-Anne King, that showed that the complainant had either perjured herself or given demonstrably false evidence in an affidavit she swore in support of an application for a protection order against the defendant; and
(b)convicting when the evidence admitted was insufficient to prove the charge of wilful damage because it did not negative the reasonable
possibility of lack of intention.
1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
2 Timoti v Police HC Auckland CRI-2009-404-000320, 17 December 2009 at [19].
Veracity evidence
[12] In the course of the hearing, the appellant’s lawyer sought to cross-examine the complainant, Ms Prisk, on a statement she had made in an affidavit sworn in support of a protection order against her brother, Mr Hibbs, after the events of
12 May 2013. In paragraph 20 of that affidavit she asserts that “my sister, Ms Kerry-Anne Hibbs [sic King?] told me Chris showed up at her house at 10 pm at night. After arriving Chris proceeded to swear and yell at my sister, and the people she is living with who have young children. My sister’s partner asked Chris to leave, which he did”. Mr Maze asserted that Ms King would have given evidence that this statement in Ms Prisk’s affidavit was untrue.
[13] When Mr Maze began to question Ms Prisk on the truth of the statement in her affidavit, there was intervention from the Judge, which Mr Maze submitted amounted to an exclusion of Ms King’s veracity evidence. Specifically, after Mr Maze put the assertions at paragraph 20 of Ms Prisk’s affidavit to Ms Prisk, and which she confirmed were true, the following exchange takes place:
Mr Maze
And you understand the importance of telling the truth in this, don’t you? Ms Prisk
Yes that’s right. Mr Maze
KerryAnne is coming to give evidence today, Jessie. The Court
Oh no, she’s not at the moment. Not unless you can satisfy me this is going
to assist me in terms of section 37. At the moment it doesn’t.
Mr Maze
KerryAnne’s going to say that that never happened and that she loves you but this did not happen.
The Court
You haven’t asked her a question yet.
Mr Maze
That’s right, isn’t it? That never happened?
Ms Prisk Yes it did. Mr Maze
And so will KerryAnne be lying will she when she says that –
The Court
She can’t answer that question.
Ms Prisk
She did tell me.
[14] Following that exchange, the affidavit was produced as an exhibit and the witness excused.
[15] Mr Maze submitted that Ms King’s evidence ought to have been admitted because it was substantially helpful in assessing Ms Prisk’s veracity because it showed a tendency for her to lie on oath about the defendant. As her credibility was important to establishing the charge, when her version of events was flatly denied by the defendant, Ms King’s evidence should have been admitted but was not.
Discussion on veracity
[16] The admissibility of veracity evidence is governed by ss 37 to 39 of the
Evidence Act 2006. Section 37 is the relevant section for present purposes.
[17] Section 37 states:
37 Veracity rules
(1) A party may not offer evidence in a civil or criminal proceeding about a person's veracity unless the evidence is substantially helpful in assessing that person's veracity.
(2) In a criminal proceeding, evidence about a defendant's veracity must also comply with section 38 or, as the case requires, section 39.
(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other
matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c) any previous inconsistent statements made by the person: (d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful. (4) A party who calls a witness—
(a) may not offer evidence to challenge that witness's veracity unless the Judge determines the witness to be hostile; but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness.
(5) For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.
Veracity evidence must also, of course, meet the tests in ss 7 and 8 of the Evidence
Act which require:
(a) the evidence to be relevant; and
(b)for the probative value of the evidence to be outweighed by the risk that it would have a unfairly prejudicial effect on the proceeding, including by needlessly prolonging the proceeding.
Discussion
[18] Before the legal test for the admission of veracity evidence is considered, I consider that Mr Maze’s argument falls at the first hurdle raised by Ms Basire, which is that the Judge did not make a ruling excluding the veracity evidence. All he did was articulate a preliminary view which was that he was unpersuaded that Ms King’s evidence would be helpful in terms of s 37 of the Evidence Act 2006. The view expressed by the Judge was clearly tentative, and he invited Mr Maze to satisfy him that his view was wrong.
[19] While I accept Mr Maze’s submission that the tone in which such comments are made can suggest such an exercise will be futile, I do not think he can complain that the Judge excluded Ms King’s evidence as inadmissible, when he did not take up the opportunity to explain why the evidence met the test in s 37.
[20] However, even if the Judge had expressly excluded the evidence, I would not have considered that decision to be in error. The basic veracity rule is set out in s
37(1) and it requires such evidence to be substantially helpful in assessing the veracity of the person in question. It is well established that this is a higher threshold than mere relevance, and such evidence is not admissible simply because it has a tendency to prove or disprove the person’s veracity.3
[21] In the present case, Mr Maze argued that the evidence of Ms King met the test because it showed a tendency for the complainant to lie on oath about the defendant, and its probative value was high because it was a lie, given on oath, and which was related to the incident which gave rise to the charges Mr Hibbs faced. Mr Maze submitted that the evidence, if accepted as credible, would suggest both a bias against Mr Hibbs and a tendency by the complainant to lie about him on oath.
[22] I do not agree. The assertion that Ms Prisk had lied in her affidavit about her recollection of what she was told by her sister Ms King, was put to her in cross-examination. She denied she lied. It was therefore inevitable that, if Ms King’s evidence had been admitted, the Court would have been forced to embark on a tangential inquiry into the truth or otherwise of the statement made in the affidavit which was not directly relevant to the issues in dispute in the proceeding. This was not an allegation of lying which could be resolved by reference to independently verifiable facts. It required a resolution of whether Ms Prisk or Ms King was the more credible and may have prompted calling Ms King’s partner as a witness as well.
[23] Such an inquiry would, contrary to s 8, “needlessly prolong the proceeding”.
3 R v Smith [2007] NZCA 400 at [16].
[24] I also do not consider it was as directly connected to the issues at the hearing as Mr Maze suggests. The alleged lie occurred after the events in question and when Ms Prisk may have been inclined to see Mr Hibbs in a less favourable light. Furthermore, it concerns her recollection of what her sister, Ms King said to her, rather than a direct accusation about Mr Hibbs actions or behaviour. It is more likely that she could be mistaken in her recollection of a conversation than in her recollection of an event.
[25] In all these circumstances the proposed evidence fails the “substantially helpful” test by some margin.
[26] Equally importantly, the truth or otherwise of Ms Prisk’s allegation about the intentional damage to her telephone was readily resolved by reference to the contemporaneous evidence. The consistency of Ms Prisk’s version of events with Mr Prisk’s recollection of them, her reporting of them to the police in her 111 call made shortly afterwards, and the independent neighbour’s recollection of events is sufficient to support a finding on the charge beyond reasonable doubt. No practical assistance would be drawn from evidence if accepted that she lied on another occasion following these events.
[27] Accordingly, the District Court Judge did not err by wrongfully excluding Ms King’s veracity evidence. No decision excluding the evidence was made. Mr Maze decided not to proceed with calling Ms King in light of the Judge’s tentatively expressed views. In any event, the evidence would not have satisfied the test of being substantially helpful as required under s 37(1), and would have needlessly prolonged the proceedings in contravention of s 8(1) of the Evidence Act.
Evidence insufficient to prove intention
[28] The appellant’s submissions on the second ground of appeal were that “this was not a charge of recklessly damaging the telephone and thus required proof of intent”.
[29] The only direct evidence of the actions leading to the damage of the telephone was from the complainant and she said:
(a) she believed that the appellant was on the telephone to Tony Johnston; (b) the appellant was “swearing and abusing Tony”;
(c) the last words she heard was “fuck you” and smash down goes my
landline phone;
(d) Chris “chucked” the phone;
(e) when asked how the appellant threw the phone she said “just wham straight to the ground” and he shouted “fuck you” into the telephone immediately before throwing the telephone; and
(f) she is clear that the appellant was yelling at his stepfather
Mr Johnston.
[30] The neighbour Mr Forbes says he saw a person in the complainant’s backyard. He described hearing the male shouting, following by a breaking noise, followed by a female saying something to the effect of “don’t break my phone”.
[31] Mr Prisk describes hearing the telephone break, but was not present when it is said to have happened. He says Mr Hibbs told him he would pay for the damage to the telephone.
[32] In the appellant’s submission, that evidence was inadequate to prove intention beyond reasonable doubt. In summary, he says there were three possible inferences to be drawn:
(a) first the defendant intentionally damaged the telephone; or
(b)he was angry and he threw it onto the ground without thinking of the consequences; and
(c) he was reckless in that he knew there was a risk he would cause damage to the telephone when he threw it, but he did not mean to
cause the damage and that was consistent with the purported offer to pay for the telephone.
[33] The appellant’s submissions overlook the precise wording of s 11(1) and (2)
of the Summary Offences Act 1981 which provides:
11 Wilful damage
(1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who intentionally-
(a) Damages any property; or
(b) Sets on fire any tree or other vegetation.
(2) For the purposes of subsection (1) of this section, a person does an act intentionally if he does it intentionally or recklessly, and without lawful justification or excuse or claim of right.
[34] In other words, a charge under s 11(1)(a) encompasses an act done either intentionally or recklessly.
[35] The evidence is clear that the telephone was cast to the ground deliberately and not as a consequence of inadvertent fumble or accident. I am satisfied that Mr Hibbs had a heated telephone call with Mr Johnston who had taken property he considered to be his and he took out his anger on the telephone by deliberately throwing it to the ground. This was either done intentionally or recklessly.
[36] In the context of s 11 it has been held that “recklessly” has its common meaning of subjective recklessness, so the defendant must actually foresee the risk of such a result and the risk was an unreasonable one to take.4
[37] It is a logical inference that when a reasonably lightweight piece of electronic equipment is flung onto a hard surface with force by a grown man, that he would have been aware of the risk of it being damaged and was reckless as to whether it did or not. The consequences are so obvious that it is not reasonable to suggest that he was unaware of that possibility when he threw the phone to the ground in anger, and,
at the very least, he acted recklessly.
4 Smith v Police (1998) 3 CRNZ 262.
[38] The appeal against conviction is dismissed.
Solicitors:
R W Maze, Barrister, Christchurch
Raymond Donnelly and Co., Christchurch
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