Holdgate v Police

[2024] NZHC 184

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000084

[2024] NZHC 184

ANDREW NICHOLAS HOLDGATE

v

NEW ZEALAND POLICE

Hearing:	28 November 2023
Appearances:	S Wimsett for the Appellant P Patanasiri for the Crown
Judgment:	15 February 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 15 February 2024 at 1.15 pm Registrar/Deputy Registrar

Solicitors/counsel:

Gordon Pilditch, Crown Solicitor, Rotorua S Wimsett, Auckland

HOLDGATE v NEW ZEALAND POLICE [2024] NZHC 184 [15 February 2024]

[1]    Following a defended hearing in the District Court, Judge E P Paul found Andrew Holdgate guilty on charges of injuring with intent to injure and threatening to kill.1 On 8 August 2023, Judge Paul sentenced Mr Holdgate to five months’ community detention. Mr Holdgate appeals against both conviction and sentence.2

[2]    The charges came about following an altercation between the then 72-year-old Mr Holdgate and the complainant, his 76-year-old neighbour, on 11 May 2022. There is a history of animosity between the pair arising out of disputed water and electricity easements. Suffice it to say that the relationship was not neighbourly.

Background

[3]    On 11 May 2022, the complainant went onto the property of Mr Holdgate, broke into a locked pump shed and connected what was required to pump water to his own property. Mr Holdgate was not at home at the time. He later discovered the entry to his pump house and water being pumped next door. He disconnected the power cord and water pipe from his pump and destroyed both. He reported this incident to the Police a short time later.

[4]    Sometime between 4 and 5 pm, the complainant went to Mr Holdgate’s property in his van, apparently to retrieve his electrical cord and pipe. There was a heated exchange.

[5]    Here the version of events narrated by the complainant and Mr Holdgate diverge. The complainant gave evidence that Mr Holdgate grabbed him by the shirt and punched him, threatened to kill him, grabbed at his keys, ripping the tags and subsequently struck him with a steel waratah.

[6]    Mr Holdgate’s version of events was that the complainant never got out of the van; they had words; he told him to leave, and the complainant reversed his van into Mr Holdgate’s tractor before driving out of the property. The Judge, faced with these

1      Police v Holdgate [2023] NZDC 11426.

2      I am informed by counsel that the sentence has not yet been served for various reasons.

conflicting versions and no other witnesses to the event, had to assess whether the prosecution had proved the charges beyond reasonable doubt.

Approach on appeal

[7]    This is a first appeal against a conviction entered by the District Court. This Court must allow an appeal against conviction if satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred,3 or a miscarriage of justice has occurred for any reason.4

[8]    A miscarriage of justice means an error, irregularity, or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.5

[9]    An appeal is by way of re-hearing with the appeal court to form its own view of the facts and determine the appeal accordingly, but it is for the appellant to show that an error has been made.

[10]   Generally, an appellate court will exercise customary caution in respect of credibility findings based on contested oral evidence. This reflects the advantage of seeing and hearing the witnesses and the disadvantage for an appeal court dealing with a case based on the written record of what happened at trial.6

The Judge’s decision

[11]   The Judge delivered an oral decision after hearing the evidence, reserving the right to expand on or clarify reasons for judgment in his written record of that decision.

[12]   He began his oral judgment by referring to the onus resting squarely on the Police and the requisite high criminal standard of beyond reasonable doubt.

3      Criminal Proceedings Act 2011, s 232(2)(b)

4      Criminal Proceedings Act 2011, s 232(2)(c).

5      Section 232(4).

6      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]-[40].

[13]   He then set out the elements of the offence of the charge of injuring with intent to injure. First, that he must be sure that Mr Holdgate struck the complainant’s arm with the waratah. Secondly, he must be sure that when he struck the complainant’s arm, he caused injury to his arm. Thirdly, that he must be sure that Mr Holdgate intended to injure the complainant when he struck his arm with the waratah.

[14]   For the charge of threatening to kill, the Judge noted that he must be sure that Mr Holdgate said the words “you won’t leave here alive” and/or the words “I’ll fuckin kill you”. Secondly, he must be sure that by saying those words Mr Holdgate intended to kill the complainant and finally, that Mr Holdgate intended the complainant to take those threats seriously.

[15]   The Judge turned to the undisputed factual issues. The complainant arrived at Mr Holdgate’s property in his van; the men had words and that following whatever occurred, the complainant reversed his van striking Mr Holdgate’s digger and causing damage to his vehicle. He noted that there were clearly injuries to the complainant but that the source or cause of those injuries were disputed.

[16]   The Judge referred to the fact that Mr Holdgate gave evidence in his own defence and explained the events as he saw them. After reminding himself that the giving of evidence did not change the onus or standard he stated:7

[11]              Returning to Mr Holdgate’s explanation, if I accept what he says to me on oath today, then the proper verdict must be not guilty because on his account, he did not strike the complainant nor did he threaten to kill him. If what he has told me leaves me unsure, then again the proper verdict is not guilty because I will have been left with a reasonable doubt. If what Mr Holdgate said seems a reasonable possibility, the police will not have discharged its task and I must find him not guilty.

[12]              Even if I reach a point where I disbelieve Mr Holdgate’s evidence, that he did not strike the complainant and did not threaten to kill him, then I am not permitted to leap from that assessment to guilt. Rather, I must assess all the evidence that I accept is reliable and credible. Does that evidence satisfy me of the defendant’s guilt to the required standard?

[17]   The Judge then turned to the evidence which the defence said corroborated Mr Holdgate’s explanation that not only did he not do the acts concerned but he was

7      Above n 1.

incapable of doing so because of a serious rotator cuff injury. Regarding the evidence from an orthopaedic surgeon by way of a letter before the events in question and a second opinion from an orthopaedic surgeon approximately seven months after the events, the Judge stated:

[14] My assessment of the medical evidence is it does not exclude the fact that this man had no movement at the time to his arm. At most, my assessment is that medical evidence suggests limited movement, but the medical evidence does not confine my findings, particularly when Mr Holdgate himself gave evidence that he continued to use that arm albeit it caused him pain, for example, when getting up into trucks and we know from the evidence, he has earthmoving equipment which would include trucks. That is my assessment of the strength of the medical evidence in this case.

[18]   The core findings of the Judge are set out in the judgment after relaying the competing versions of what occurred. The Judge noted that, to an extent, he had to assess the complainant and Mr Holdgate’s credibility or truthfulness which will determine the outcome of the charges. He said:

[34]      Clearly someone has lied here. The two versions I have heard, one is not consistent with the other. In terms of any bias or prejudice exhibited, both men gave their evidence of how events unfolded that afternoon, perhaps Mr Holdgate a little dismissive of [the complainant’s] account and the causes of the injuries but nothing particular turns on that.

[35]      When looking at the reasonableness, coherence and probability of the events being described or occurring in the manner described, I am really assisted by the photographs of the injuries. I am also assisted by the constable’s independent evidence.

[19]The Judge concluded:

[41]      As I say, both versions of what occurred that afternoon simply cannot be true and the Court, in assessing credibility of a witness’s account, looks to any independent evidence which would support that account and the independent evidence supports [the complainant’s] account. It does not support Mr Holdgate’s.

[42]      Accordingly, on the injuring charge, firstly, I am sure Mr Holdgate did strike [the complainant] on the arm with the waratah and I have already referred to the evidence which supports that: [the complainant]’s complaint, the photographs and the officer’s own observations a relatively short time after the alleged attack on [the complainant].

[43]      Secondly, I am sure that when Mr Holdgate struck [the complainant] he caused those injuries. There is no other plausible explanation for how those injuries came to be.

[44]      Thirdly, I am sure Mr Holdgate intended to injure [the complainant] when he struck him on the arm. When one takes a waratah to another person and strikes them with it multiple times, I can infer they intend to cause bodily harm. That is something that is more than minor or momentary. That injury need not be permanent or long-lasting, but here it is clear there was injury to [the complainant]’s arms and the subsequent bruising a matter of days later simply confirms that.

[20]In sum, the following factors were key to the decision on that charge:

(a)Injuries on the complainant were observed by the constable giving evidence shortly after the events.

(b)The photographs corroborated the injuries which the complainant says he sustained and the way he said he sustained them.

(c)It was unlikely in the extreme that the injuries could be caused in any other way.

(d)On the critical issues, the complainant remained consistent (albeit Mr Holdgate also was consistent in his denials) despite some inaccuracies exposed under cross-examination.

(e)The independent evidence supported the complainant’s account and not Mr Holdgate’s account.

[21]   On the threatening to kill charge, the Judge considered the complainant’s account of the events could be relied on given that they were reliable on the significant matter of the attack. He considered the words were explicit and uttered in circumstances where Mr Holdgate had attacked the complainant and then moved on to arm himself with the waratah. The complainant’s reaction in reversing into the digger were consistent with fear experienced by someone who took the threat seriously. The Judge noted that waratahs were found on the property and clearly accessible to Mr Holdgate.

[22]   I pause to interpolate that the Judge’s finding on this second charge clearly flowed from his finding that the complainant’s evidence was more credible. If the

appellant’s argument criticising that conclusion succeeds, the second conviction is more vulnerable to being quashed. The reverse is not necessarily the case. That is, a finding that the Judge erred in respect of the second conviction does not necessarily make the first conviction vulnerable.

Discussion

[23]Mr Wimsett for the appellant levels three main criticisms against the judgment:

(a)Lack of reasoning and/or explanation behind rejecting the appellant’s evidence of what occurred.

(b)Failure to adequately consider the unchallenged medical evidence that the appellant was incapable of carrying out the offending due to a rotator cuff injury.

(c)Lack of expert medical evidence regarding the injury of the complainant.

[24]   Turning first to the charge of intent to injure, I reject the submission that the Judge did not adequately explain why he preferred the complainant’s evidence. On the contrary, he was alive to the need to tackle credibility explicitly. He explained why he accepted that the complainant was telling the truth. He specifically recorded that he needed to look at the reasonableness, coherence and probability of the events having occurred in the manner the complainant laid out. He recorded that he was assisted by the photographs of the complainant’s injuries and the constable’s independent evidence of having observed both the original scratches and how they developed a few days later.

[25]   The criticism that the constable was not equipped to give medical evidence is misplaced. The evidence was not medical evidence but evidence of his observations. It is a matter of common sense that injuries consistent with the complainant’s description of what happened independently corroborated his version of events.

[26]   The Judge was entitled to conclude that it is extremely unlikely that the injuries were caused any other way, either before the incident or because of reversing the van into the digger. The evidence of locating waratahs on the property, although not referred to specifically in the analysis of this charge was a further independent piece of evidence.

[27]   The Judge also explicitly addressed the appellant’s explanation that he was not capable of carrying out an assault in the manner alleged.

[28]   The appellant gave evidence that he had seriously injured his right shoulder well before the incident and had not been treated at the time of the incident. This he said meant that he was not capable of lifting a steel waratah and pushing it forward in a stabbing motion. Nor was he capable of making a punching motion with his right arm or raising his right arm to collar or shirt height.

[29]   The appellant produced a letter and Assessment Report and Treatment Plan from an orthopaedic surgeon. That material confirmed that as of 31 October 2020, Mr Holdgate had a rotator cuff arthroplasty with “significant wasting of the supraspinatus and infraspinatus muscles, no active forward flexion, abduction beyond 20-30 percent of the movement although passively the movement is quite good but painful.” The surgeon referred to a recent MRI scan and an obvious clinical and radiological picture which a reverse shoulder replacement would address.

[30]   The Judge addressed this evidence. There is a syntax error prefacing his explanation for reaching the view that the evidence does not confine his findings. I read his conclusion as intending to say that the medical evidence does not exclude some limited movement. Or, to put it another way, that the medical evidence does not state that there is no movement. The nub of Mr Wimsett’s challenge to this assessment is two-fold: first that the Judge misinterpreted Mr Holdgate’s evidence about the continued use of his arm which was then used as part of his reasoning rejecting the medical evidence. Relatedly, that the cross-examiner did not put to Mr Holdgate that he had sufficient use of his arm to be able to lift the waratah in the manner alleged.

[31]   The Judge was entitled to consider that the evidence of the orthopaedic surgeon only went so far as suggesting some physical limitation, not that he was incapable of acting in the way alleged. This is not to reverse the burden of proof as Mr Wimsett submitted. I note that the more detailed of the two letters was dated some 19 months before the incident in question (not four months as Mr Wimsett’s written submissions recorded). The currency of the physical limitations was not expressly explored through experts although Mr Holdgate gave direct evidence of those limitations.

[32]   The second letter from a medical person was dated about four months after the incident. It is a short, unsigned clinician’s letter written by and addressed to the same medical person. It refers to a visit date and diagnosis of right shoulder rotator cuff arthropathy. It records that Mr Holdgate is unable to lift to the front or to the side more than 20-30 degrees actively. It is not clear on its face whether this was a self-reported limitation or followed an assessment by the medical professional.

[33]   This second letter was not explicitly referred to by the Judge but, as it went no further than the first medical opinion, I do not consider that amounted to a failure to address whether the appellant’s version was credible.

[34]   In expressing the conclusion that the medical evidence did not “confine” his findings the Judge added “particularly when Mr Holdgate himself gave evidence that he continued to use that arm albeit it caused him pain, for example, when getting up into trucks”8 I accept that this sentence is ambiguous. The reference to example could be understood to be an example of what causes pain or an example of use of the arm. In other words, it might be understood as suggesting that Mr Holdgate said he could use his arm to get up into a truck. If the latter, this is incorrect because the notes of evidence record him saying in response to the question, “still driving?”:

Yeah, yeah well we have to drive around. Yeah, it hasn’t stopped me from, you know driving. I find climbing into trucks is the hard one. I can’t pull with it. (Emphasis added).

[35]   The primary reason why the Judge did not consider that the medical evidence undermined the complainant’s credibility was his conclusion that it only referred to

8 Above n 1, at [14].

some limitation in movement, not that there was no movement. This view was open to him. I agree with it.

[36]   More importantly, the Judge had the clear advantage of hearing the evidence in this case first hand. There is no requirement to engage in a “lengthy exposition” of reasoning.9 The crux is whether there was explicit consideration of the defence explanation and whether reasons given were adequate to the occasion. I am satisfied that they were.

[37]   Despite Mr Wimsett’s forceful argument, I do not consider that it is open to me to disturb the Judge’s findings in relation to credibility in relation to this charge. For that reason, the appeal in respect of the first charge cannot succeed.

[38]   Turning to the charge of threat to kill, the credibility finding also informs the challenge to this conviction. The Judge considered that the context, particularly the physical assault, informed him on the question of whether the threats were intended to be taken seriously.

[39]   Mr Wimsett submitted that the Judge ought to have explicitly addressed the possibility that the remarks were made in the heat of the moment. He referred to the case of Wederell v Police in which Fogarty J said:10

The Courts have accepted that Parliament never intended to criminalise remarks made in the heat of the moment which are not of a sufficient degree of seriousness to amount to a crime. It is important before entering a conviction under s 306 to apply the mens rea test carefully.

[40]   It is correct to say that the Judge, having accepted the complainant’s account on the significant matter of the attack, considered he could equally rely on the complainant’s account that the offending words were said. The explicit nature of the threat was also evidence of intent in a context in which Mr Holdgate had attacked the complainant and then moved on to arm himself with the waratah.

9      R v Connell [1985] 2 NZLR 233 (CA) at [237].

10     Wederell v Police HC Christchurch CRI-2010-409-33, 4 March 2010 at [14].

[41]   I find no error let alone any significant error in the Judge’s conclusion on this charge.

Appeal against sentence

[42]   The appeal against sentence may only be allowed if this Court is satisfied there has been an error in the sentence and that a different sentence should be imposed.11

[43]   A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.12 It is the end sentence which is important from the appellant court’s perspective and not the method by which it is reached. In short, whether a sentence is manifestly excessive is to be assessed in terms of the sentence given.

[44]The approach to sentence on 8 August 2023 was:

(a)A starting point of 12 months’ imprisonment.

(b)A discount for one month for the appellant’s health and personal circumstances.

(c)No discount for remorse.

(d)An end sentence of five months’ community detention.

[45]   The Judge noted in sentencing Mr Holdgate that community work was not a “starter” for him. That appears to reflect counsel’s submission about Mr Holdgate’s health and physical limitations. The Judge said:13

[7]  A good behaviour bond would be, in my view, an insufficient response to mark the seriousness of your offending, where in your anger you took up a waratah and struck this man causing him injury. [A][g]ood behaviour bond simply will not cut it. I am of the firm view that your offending must be marked by some type of deterrent sentence, particularly given your lack of remorse.

11     Criminal Procedure Act 2011, s 250(2).

12     Tutakangahau v R [2014] NZHC 556 at [10] as referred to in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

13     New Zealand Police v Holdgate [2023] NZDC 17802 at [7].

[46]   The Judge also listed five mitigating factors (including that community work or an electronic sentence would be appreciably harder and that the injuries were minor). The challenge is focused on the restrictive nature of the sentence imposed rather than the starting point. The community detention sentence imposed a curfew from 8 pm to 6 am.

[47]   The appellant argues that the sentencing Judge failed to recognise the full context of the confrontation; that the complainant was on the appellant’s property uninvited; both parties contributed to the verbal altercation; both parties were angry about the earlier events, and both had a long-standing mutual dislike for each other. He goes so far as to suggest an element of provocation, while acknowledging that it is not a defence and that the appellant was defending his property and his rights.

[48]   I disagree that the Judge overlooked these considerations. He expressly refers to the submission at sentencing that the behaviour was a spontaneous reaction arising out of a neighbour dispute rather than premeditated and that if the complainant had not taken the appellant’s water, it would not have happened.

[49]   I find no error in the end sentence. It was not manifestly excessive. Nor is the appellant able to show an error of principle in the starting point or relevant considerations. On the contrary, I agree that it is the least restrictive sentence in all the circumstances.  The  change  in  position  reflecting  a  later  realisation  as  to  Mr Holdgate’s preference to carry out community work does not justify adjusting the sentence.

Result

[50]I dismiss both the conviction and sentence appeal.

............................................................

Walker J