Horscroft v Police
[2021] NZHC 2934
•1 November 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-31
[2021] NZHC 2934
BETWEEN BRANDON MAXWELL HORSCROFT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 October 2021 Appearances:
N P Bourke for Appellant
L A Blencowe for Respondent
Judgment:
1 November 2021
REASONS JUDGMENT OF ISAC J
[Appeal against conviction]
[1] Mr Horscroft was convicted following a judge-alone trial in the District Court of two charges of assault on a person with whom he was in a family relationship.1
[2] He appeals his convictions. In a results judgment of 20 October 2021, I upheld the appeal.2 My reasons follow.
The trial
[3] Mr Horscroft, who prefers to be known as Mr Winter, originally faced trial on four charges. The two assault charges were said to have arisen in early March 2020. The other two charges — threatening to kill and breach of a protection order — involved the same complainant and were alleged to have arisen sometime later, in November 2020.
1 Crimes Act 1961, s 194A — maximum penalty two years’ imprisonment.
2 Horscroft v New Zealand Police [2021] NZHC 2816.
HORSCROFT v NEW ZEALAND POLICE [2021] NZHC 2934 [1 November 2021]
[4] The evidence in relation to the first set of charges was that on 4 March 2020 Mr Winter and his then partner, the complainant, separated. It appears that the decision to end the relationship was Mr Winter’s. Previously they had been living together with their infant son and a Mr Korey Dew, who was serving a sentence of home detention in the same home. It seems after the separation the complainant moved out of the house.
[5] The complainant alleged that the very next day, 5 March 2020, while she was visiting Mr Winter’s home he assaulted her during a heated argument by headbutting her. The second charge of assault was alleged to have arisen the following day, 6 March, when, during another heated argument at his home, it was alleged Mr Winter had punched her.
[6] The remaining charges of threatening to kill and breach of a protection order were alleged to have arisen eight months later, on 10 November 2020, involving the same complainant.
[7] The prosecution case involved one witness; the complainant. She had given brief video interviews at a police station on 7 March and 10 November 2020. The videos were played as the complainant’s evidence-in-chief, and she was then cross- examined.
[8] The defence called three witnesses. The first was Mr Winter, who admitted there had been heated arguments but denied assaulting the complainant. He also denied the November incident. The second was Mr Winter’s flatmate, Mr Dew. Mr Dew was present at the time of the alleged March assaults and while he did not observe all of the argument, he could certainly hear it. He said nothing he heard was consistent with the complainant’s claim that she had been assaulted. Finally, Mr Winter called his current partner, Ms Lumsden. She gave evidence relating to the November 2020 charges which was again inconsistent with the account given by the complainant.
[9]I will return to outline the evidence in greater detail later in this judgment.
Decision under appeal
[10] The District Court Judge began by expressing some frustration with the quality of the Police evidence.3 He described the Police evidence as “shoddy”, and observed that it ought to have been much more complete:4
It consisted of a very poorly conducted interview with [the complainant] which was hard to hear and for which I was entirely reliant on the transcript, which really just consisted of the [complainant] rambling about her version of events. There was very little to clarify it. To be honest at the end of it I was left confused as to the order of events, although reading back over the notes of the interview it did become a bit clearer. At one point during the interview [the complainant] indicated a mark on her head. There was no comment from the officer either then or in court today as to whether there was a mark.
[11] Turning to the account given by the appellant, the Judge noted that it was broadly in keeping with the complainant’s account except in its denial of the specific allegations of assault:5
So, I have an allegation by [the complainant] that during an argument she was headbutted by Mr Horscroft and some hours later she was punched in the face by him. He denies those allegations. He agrees with the background to it, that there had been arguing, that he was getting pretty angry and worked up, he made no bones about that. He was asking her to leave his house, he was upset because his son was not with her. Mr Horscroft’s account is consistent with [the complainant’s] in almost all details apart from the delivery of the blows.
[12] It will be evident from this passage, which is the only part of the oral judgment dealing with the appellant’s evidence, that the Judge did not make an express finding that the appellant’s account was not credible or reliable. Given that, it is also unsurprising that the Judge did not provide any reasons that might support such a finding.
[13] Turning to Mr Dew’s evidence, the Judge concluded that it was consistent with the complainant’s account and did little to advance the defence theory.6 That was because Mr Dew did not see the argument, and he did not hear sounds consistent with a blow being struck. The Judge considered Mr Dew’s account was consistent with the complainant’s because her evidence indicated that both the headbutt and the punch
3 Police v Horscroft [2021] NZDC 4863 at [2].
4 At [2].
5 At [5].
6 At [8]–[9].
were not forceable blows at all, and therefore unlikely to have made any audible sound. The Judge concluded:7
So, I do not think that Mr Dew helps very much because I think [the complainant’s] version of events is consistent with Mr Dew’s.
[14] Turning to the evidence of Ms Lumsden and events in November 2020, the Judge noted that there was a direct clash between Ms Lumsden’s account and the complainant’s. The complainant alleged that Mr Winter had leant out of a car window and by both words and gesture threatened to kill her during an encounter outside premises they had both visited. By contrast, Ms Lumsden’s evidence, consistent with that of Mr Winter, was that the windows in the car did not work and could not be wound down. It was therefore impossible for Mr Winter to have acted as the complainant alleged, and he did not do so. The Judge found he could not discount Ms Lumsden’s evidence and accordingly dismissed the two charges relating to events on 10 November 2020:8
So whilst I can put Mr Dew’s evidence really to one side I cannot put Ms Lumsden’s to one side. She is either lying or she is telling the truth. It was put to her that she was lying, she said that she was not. She said she has never been in a courtroom before. It is a fairly daunting experience giving evidence. She was consistent with Mr Horscroft’s evidence in saying that the windows on the car did not work and the significance of that is that if the windows could not be wound down Mr Horscroft could not have done what he is alleged to have done. I cannot discount Ms Lumsden’s evidence and for that reason I am left with a reasonable doubt as to the charges on 10 November and they are dismissed.
[15] The Judge then turned to consider the complainant’s evidence. He noted a challenge to her reliability based on, it appears, a suggestion of mental fragility and behavioural abnormality.9 He rejected the defence theory that the complaint had been manufactured by the complainant either to seek attention or as a device to prevent Mr Winter having access to his son.10
7 At [9].
8 At [11].
9 At [12]. This included a suggestion that the complainant had deliberately walked down a road towards a tanker truck which had to swerve to avoid hitting her, a proposition that she accepted in cross-examination.
10 At [13].
[16] The Judge considered the complainant’s evidence was credible, and convicted Mr Winter on the basis of it. This was his reasoning:11
Importantly, [the complainant] denied that she had made up the allegations as a form of attention seeking and that is the thrust of Mr Horscroft’s case. Well, I suppose it is twofold, that this is attention seeking behaviour by someone who has some mental instabilities and that these allegations were made to promote [the complainant’s] case in the Family Court, by which I take it he means a deliberate ploy to keep him away from his child. If that is the case then [the complainant] certainly could have made more of her allegations.
What gives some credibility to her allegations is that she did not really go for the jugular with regards to the punch, she said: “Well it was pulled, I do not think he was really trying to hurt me.” At one point she even suggested in her interview that it might have been an accident. She talked about him just waving his arms around, he was so angry. But when I questioned her on that at the end of her evidence she said: “Well no, it was deliberate.” So she is being fair, she is being honest and that is what this comes down to, is she being honest, is she reliable.
Likewise with the headbutt. It is, to my mind, a strange allegation to make up and then say “but he did not really mean to hurt me, it was a fairly light tap.” “I have got a bit of a lump here” she said to the female police officer who was interviewing her. That is the point on which I could have done with hearing some evidence one way or the other.
So, her allegations have an air of credibility about them. I do not find that the suggestion that they were made to seek attention or to improve her chances in the Family Court cut much ice. What would have been consistent with that sort of behaviour would be to play them up, to exaggerate the effect, to exaggerate the intention behind the acts but she did not, she played them down.
So, I accept [the complaint’s] evidence. I accept that Mr Horscroft did punch her and did headbutt her. I have to say, I also accept her evidence that he did not really intend to do her any harm and that they were in the middle of a mutually fairly explosive argument at the time. Those will be relevant when it comes to the next stage but I do find they are proved and on those two charges, Mr Horscroft, I convict you.
[17] Subsequently, Mr Winter was sentenced to four and a half months’ home detention on the two charges on which he had been found guilty, and the additional charge of breach of a protection order to which he had pleaded guilty.
11 At [13]–[17].
Approach on appeal
[18] An appeal against conviction entered following a judge-alone trial will only be successful if the appeal court finds that the trial court erred in its assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that “a miscarriage of justice has occurred for any reason”.12 A miscarriage of justice means any error, irregularity, or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected, or which resulted in an unfair trial.13
[19] In Sena v New Zealand Police the Supreme Court examined the role of s 232(2)(b) and the general function of an appellate court.14 The Court held that if an appeal court comes to a different view from that of the trial judge on the evidence, it follows that the lower court has erred and the appeal must to be allowed.15 This approach does not mean the role of the appellate court is to consider the issues de novo as if there had been no hearing at first instance. It remains for the appellant to show that an error has been made, and in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had.16
Grounds of appeal
[20]For the appellant, Mr Bourke advanced four arguments:
(a)First, the Judge erred by failing to articulate and then follow the tripartite direction. That error was material because the evidence did not support a finding beyond reasonable doubt that Mr Winter’s account was untrue.
(b)Second, the Judge was wrong to conclude Mr Dew’s account was consistent with the complainant’s evidence. On the contrary, Mr Bourke said Mr Dew’s evidence was directly at odds with what the complainant had alleged.
12 Criminal Procedure Act 2011, s 232(2)(b) and (c).
13 Section 232(4).
14 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
15 At [38].
16 At [38].
(c)Third, the Judge’s assessment of the credibility of the complainant’s account was wrong.
(d)Finally, on one view of the complainant’s account, it was at least arguable that the punch was not, in fact, deliberate, but rather accidental. This is reinforced by a statement in the evidential video where the complainant said, “its just like he was trying to scare me, but he accidentally connected, yeah”.
[21] Without expressly conceding the point, Ms Blencowe for the respondent appeared to accept that the absence of reasons for rejecting the appellant’s account created some difficulty for the respondent on appeal, and could constitute an error of approach. When asked if there were aspects of the evidence, particularly of the appellant, that established an independent basis to suggest the District Court was correct to reject his evidence, she responsibly acknowledged that there was nothing in Mr Winter’s cross-examination that might provide a proper basis to find his evidence untrue, and no other evidence — apart from the complainant’s — which contradicted it.
Discussion
No reasons to support rejection of the appellant’s evidence?
[22] In Sena,17 the Supreme Court held that a failure by a trial judge to provide an assessment of the evidence and why it resulted in a conviction may well result in a miscarriage of justice:
As will be apparent, we broadly accept the second line of argument just referred to. We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment
17 At [36]–[37].
frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. As we explain later in these reasons, this case involves such a misapprehension.
In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.
[23] Taking a contextual approach, I consider there was an error in approach by the Judge. While the broad acceptance of the complainant’s account was certainly supported by appropriate reasoning, the difficulty arose from the failure to first consider the effect of the defence evidence on the burden and standard of proof.
[24] The Judge began his analysis not with the appellant’s account, but with the complainant’s. The Judge’s rejection of the appellant’s evidence was therefore by implication only: having considered the complainant’s account, and found it to be credible, he convicted the appellant. No reasons were articulated to support the view that the prosecution had established, beyond reasonable doubt, that the defendant’s account was untrue.
[25] This approach is not consistent with the tripartite direction. The Court was required to begin with the appellant’s account and determine whether the prosecution had proven to the requisite standard that it was untrue. Had the Judge approached the evidence in this way, he would have been confronted with the need to articulate the basis on which he could reject the appellant’s evidence.
[26] The importance of this approach is that having considered the evidence afresh, albeit without the benefit of observing the witnesses, I am unable to find a clear basis to conclude that the appellant’s account was untrue, even if I am left with some doubts about it. Apart from the bald clash with the complainant’s account, there is nothing
else in the evidence itself to suggest it is fabricated. He was unshaken in cross- examination. It follows the error of approach materially affected the result.
[27] This conclusion is unsurprising. It largely reflects the burden and standard of proof in a case where the complainant’s account was uncorroborated by any independent evidence, and was undermined by the accounts of three defence witnesses. Put another way, the appellant’s denial of the offending was supported by the evidence of two witnesses, neither of whom the Judge found to be untruthful or mistaken.
[28] While the absence of a specific reference to the tripartite direction will not of itself constitute an error sufficient to result in a miscarriage,18 that is dependent on an engagement with the evidence, and the articulation of reasons for putting the defendant’s evidence to one side. And as the Supreme Court indicated in Sena, that will generally require reasons that identify the critical issues in the case, and generally provide a considered basis for the conclusion reached.
[29] More problematic still is the fact that Mr Winter’s account was in material respects corroborated by the evidence of two further defence witnesses, neither of whom the Judge found to be unreliable or lacking in credibility. In those circumstances, and on the basis of the evidence before the Court, I cannot be sure the defendant is guilty.
Did Mr Dew’s evidence contradict the complainant’s account?
[30] The second ground of appeal was that the Judge was wrong to conclude Mr Dew’s account was consistent with the complainant’s evidence. It was submitted that Mr Dew’s evidence was in fact directly at odds with what the complainant had alleged in relation to the circumstances in which she said Mr Winter punched her.
[31] In her evidential video interview, the complainant said that Mr Winter had “threatened to punch” the complainant before doing so. As the respondent submitted, it is unclear from the evidence whether the alleged threat was by words or conduct.
18 Tekira v Police [2014] NZHC 700 at [23].
That could explain why Mr Dew did not hear it. But a further difficulty existed. That is because according to the complainant’s evidence, after the alleged punch she accepted she told the defendant to “stop”. The following exchange occurred:
Q.Now Mr Dew of course he didn’t see any of this, he’s not going to give evidence to say he saw any of this, he was just using his ears. His evidence is going to be that he didn’t hear anything consistent with someone getting hit, ‘cos you say you got hit during that exchange don’t you?
A. Yeah.
Q. And did you react to being hit, did you say anything to being hit?
A. I ran out the door.
Q.Did you scream out, yell out, say: “Don’t hit me,” words like that that we would expect?
A. I was telling him to stop.
Q. Right so Mr Dew’s evidence is going to be inconsistent with you telling him to stop, or not to hit you?
A. Yeah.
Q.Okay, but you’re saying that you did use words to that effect don’t you?
A. Yes.
[32] During cross-examination Mr Dew said at one point he was in the lounge adjacent to the kitchen where Mr Winter and the complainant were arguing. There was no door between the two rooms. He said that he “pretty much” saw the entire confrontation, and prior to going into the lounge he “… heard pretty much everything going on word for word”. Mr Dew’s evidence was that he did not hear or see anything that caused him to think that someone had been physically harmed or threatened. In fact, Mr Dew’s evidence was that if he had heard anything like that he would have intervened immediately to stop it.
[33] Mr Bourke submitted that Mr Dew’s account materially undermined a key aspect of the complainant’s narrative, and the Judge was wrong to consider his evidence was consistent with it.
[34] I accept the defence submission. Mr Dew’s evidence was not — as the Judge appeared to consider — directed only to the absence of sounds consistent with a blow being struck. Rather, its significance related to the nature and content of the verbal exchange that he overheard, and whether it was consistent with the complainant’s evidence.
[35] While there is some obscurity in certain aspects of the complainant’s account, there was certainly an acceptance that she had told the defendant to “stop it” after she had been struck, and possibly told him to “stop hitting me”. Mr Dew’s account significantly undermined the credibility of those important aspects of the complainant’s version of events. Given the Judge did not reject Mr Dew’s evidence as a fabrication, it ought to have left him with a reasonable doubt about the prosecution case, certainly when combined with the evidence of Mr Winter and Ms Lumsden.
Did the evidence establish, beyond reasonable doubt, that the punch was deliberate?
[36] Mr Bourke also argued that the evidence did not establish beyond reasonable doubt that Mr Winter had deliberately punched the complainant on 6 March 2020.
[37] The evidence of the complainant on this issue was, as the Judge appeared to acknowledge, confusing.
[38] In her evidential video interview, given the day after the alleged offence, she said:
… and he was just right in my face, um, threatening to punch me. Then he’d walk off, then he’d come back, I’d try to explain to him what, you know, what’s going on, and then, um, ah, he grabbed, grabbed my cigarettes off me, he took half of them, and then I asked for them back, he was telling me to fuck off even though I needed a cigarette ‘cos I was shaky.
And, and he, he was, yeah, in my face again, standing over me, and then he just – and it wasn’t like a hard punch or anything, it was just a, a connect, sort of, but it did hurt.
[39]The police officer came back to this incident later in the interview:
Officer Okay, and where, where did he punch you? Complainant The side of the head.
Officer On that side?
Complainant But that, that wasn’t – it was just a connect, it wasn’t, um, a proper hit.
Officer What, what do you mean by that?
Complainant Um, he – oh, it’s just like a swipe by sort of hit, like he didn’t want to do it, but he did. He was trying to stop himself so it didn’t really hurt as much as what it has before.
Officer And so did he do it with a closed or open fist? Complainant Closed.
Officer Closed, and do you remember what hand he, what … Complainant His right hand.
OfficerHis right hand. And is there anything else that you can describe about that punch?
Complainant Um, it’s just, just like he was trying to scare me, but he accidentally connected, yeah. It was, it was like he was … It’s hard to explain.
Officer That’s okay.
Complainant Yeah, he was just getting wound up, that’s – he was just throwing his hands around and trying to scare me more.
[40] The Judge was clearly troubled by this evidence, and whether it established a deliberate blow. During questions from the Bench the following exchange occurred with the complainant:
Q[The complainant], in your interview when talking about the punch you then wondered if it had been deliberate or not, but when you were first describing it to the police officer you were clear that it was?
A Yeah.
Q Looking at it now, do you feel it was deliberate or was it an accident because he was waving his hands around?
AIt was a closed fist, but it was like he was fighting himself to pull it back, so it wasn’t a full connect, it was like he was trying to stop himself because he knew –
QSo I think you’re saying it was deliberate, but he was effectively pulling his punch so as not to –
A Yeah.
Q – hurt you too badly. Is that what you’re saying? A Yes.
Q Don’t let me put words into your mouth. A No, that’s exactly what I’m saying.
[41] Overall, had this been the only ground of appeal I would not have found it sufficient to establish that there had been a miscarriage of justice. It seems that the complainant’s account was — ultimately — that she was struck and that it was a deliberate blow.
Credibility of the complainant’s account?
[42] Finally, Mr Bourke argued that the Judge erred in his acceptance of the complainant’s evidence as credible because if anything she minimised rather than exaggerated the degree of force said to have been used in the assaults. Mr Bourke said it is mere speculation to conclude that an account is more likely to be truthful because if does not overstate the degree of force used.
[43] Mr Bourke also pointed to the evidence of Ms Lumsden, and what he said was a failure by the Judge to consider the impact of her evidence not only in relation to the reliability and credibility of the prosecution evidence relating to the November 2020 charges, but also in relation to the events in March.
[44] Given the conclusions I have already reached it is unnecessary to consider this ground further. That said, there may be some merit in the appellant’s submission that the effect of accepting Ms Lumsden’s evidence (or at least the conclusion it created a reasonable doubt about the events in November), might also logically have some bearing on the consideration of the prosecution evidence relating to the March offences.
Result and resentencing
[45] For the foregoing reasons I quashed Mr Winter’s conviction and resentenced him on the charge of breach of a protection order to one month’s home detention. In doing so I noted that the Judge provided a discrete uplift of one month’s imprisonment
in relation to this charge, but also an uplift for Mr Winter’s previous criminal history, which is clearly a personal aggravating factor.
[46] Overall, I was satisfied that a sentence of imprisonment of two months on the charge of breaching a protection order was an appropriate starting point, considering previous sentences imposed on the appellant for similar offending. However, given the need to impose the least restrictive sentencing outcome in the circumstances, in light of the appellant’s admission to home detention, and the commencement of that sentence on 7 October, I considered it is appropriate that he continued to serve that sentence for one month only.
[47] Nothing in this judgment should be taken as an indication that the complainant’s account was untruthful. The outcome is simply a reflection of the burden and standard of proof, given the record of evidence available to the Court.
Isac J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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