Hume v Police

[2012] NZHC 3469

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2012-483-0007 [2012] NZHC 3469

BETWEEN  WILLIAM CHARLES HUME Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 December 2012

Counsel:         S J Ross for appellant

J M Woodcock for respondent

Judgment:      18 December 2012

RESERVED JUDGMENT OF DOBSON J

[1]      On 30 April 2012, the appellant (Mr Hume) was convicted in the Wanganui District Court on one charge of threatening to injure a complainant, knowing that his conduct was likely to intimidate, contrary to s 21(1)(a) of the Summary Offences Act

1981.  Judge Matheson, who found Mr Hume guilty of that charge at the conclusion of a defended  hearing,  subsequently rejected arguments  for a discharge without conviction and fined Mr Hume $750 on the conviction.

[2]      Mr Hume has now appealed against both the conviction and sentence.

[3]      Mr Hume admitted that the telephone conversation in which the threat was allegedly conveyed did take place, but denied that it contained the words complained of.  It occurred on 27 July 2011 on which day he rang the office of the Wanganui real estate agents that had formerly employed him, and spoke to a co-owner, the complainant, Ms Palmer-Holmes.  She complained that Mr Hume said “I’m coming to get ya.  Pay me ya bastards, I’m gonna kill ya both”.  However, Mr Hume gave

evidence that the words he used were “I’ll speak to my girlfriend, thanks”.

HUME v NEW ZEALAND POLICE HC WANG CRI-2012-483-0007 [18 December 2012]

[4]      Mr Hume apparently has a heavy Scottish accent.   One of the subsidiary criticisms Mr Ross argued in respect of the Judge’s decision was that he failed to consider the prospects of the complainant mishearing what was said.   However, it could  not  seriously  be  suggested  that  Mr Hume’s  version  of  the  utterance  was misheard as the words complained of when the two versions are so fundamentally different.   The issue is therefore whether the Police proved use of the words complained of.

[5]      The Judge characterised the former employment relationship as dysfunctional and there appears to have been on-going and relatively bitter animosity between Mr Hume and the employers, the complainant and her partner, Mr Vanderhoof.

[6]      The complainant gave evidence that Mr Hume made the threat in a serious tone, and that it immediately made her frightened for her life.  Straight after the call, she went to another part of their office to speak to Mr Vanderhoof, and the Judge accepted evidence from Mr Vanderhoof of her relaying to him what had been said, and the extent to which she was frightened by what had been said.

[7]      A third witness, Mr Price, gave evidence of observing the complainant take the call, her  reaction to it, and of her  going in to speak  with her partner in  a distressed state immediately after the call.

[8]      In assessing whether the Police had proven beyond reasonable doubt that the threat complained of had been uttered, the Judge relied on the combination of the first-hand recollection of the complainant, and the observations of her at the time by her partner and Mr Price.  The Judge relied particularly on Mr Price as an objective and independent witness whom the Judge characterised as reliable.

[9]      The first ground of Mr Hume’s appeal related to the alleged error in the Judge treating  Mr Price’s  evidence  as  reliable  and  accurate.    Mr Ross  argued  that  the Judge’s perception of Mr Price’s independence from the complainant at the time of the hearing was wrong when, on the basis of advertisements by the relevant real estate agency at the time, he contended that Mr Price was indeed still an employee of

Mr Vanderhoof when the hearing occurred.[1]     Further, he applied to adduce fresh evidence   from   a   real   estate   salesperson   in   another   agency   in   Wanganui, Mr Kinchella, who has deposed that he had a conversation with Mr Price at about the time of the defended hearing, and recalls Mr Price saying that he did not know why he would be called as a witness as he wasn’t there at the time.

[1] The issue of independence was not raised at the hearing.  Mr Price stated in evidence that he worked at Countdown.   However, Mr Hume has exhibited to a more recent affidavit he has sworn in support of his appeal, real estate advertisements which he deposes appeared before and after the hearing, that list Mr Price as working for the same firm as Mr Vanderhoof.

[10]     In  addition  to  these  new  matters  which  Mr Ross  argued  should  render Mr Price’s evidence less than reliable, he criticised the Judge for having attributed more  to  Mr Price’s  evidence  than  was  justified.    Mr Price’s  evidence  as  to  the complainant’s reaction to the telephone call was in the following terms:[2]

[2] District Court transcript at 3/25-30.

... the phone rang, um, [the complainant] answered the phone, um, and I think she was only on for a few, a few seconds, I think, maybe 15 or so, 10 seconds, um, and she basically just hung up and sort of was hysterical and upset and, um, ran in to [Mr Vanderhoof’s] office ...

[11]     Mr Price  then  explained  in  his  evidence-in-chief  that,  at  the  time  this occurred, he was about four metres away from the complainant in a different office. He also expanded on the complainant’s state at the time:[3]

... she was pretty hysterical, I guess you’d say, pretty, um, really upset and, you know, real, um, yeah, just sort of not, um, not in a good state I s’pose.

[12]     Mr Price was not cross-examined at all about the quality of the opportunity he had to observe what is described in that evidence.   Mr Ross argued that the evidence did not justify the Judge’s finding to the following effect:[4]

[3] At 4/4.

[4] Police v Hume DC Wanganui CRI-2011-083-1575, 30 April 2012 at [24].

... What Mr Price observed was someone picking up a telephone and within

10 or 11 seconds being demolished into hysteria and tears.  What transpired, in   my   view,   must   have   been   significant   to   reduce   this   person   so

instantaneously as it did.  ...

[13]     That was preceded by an assessment of Mr Price as a reliable witness that included the following:[5]

[5] At [23].

... He gave evidence that in my view was balanced.  He gave his evidence as he saw it and was not afraid to give evidence that was not complementary [sic] to the complainant.

[14]     Mr Ross argued that Mr Price could not have given evidence of seeing the complainant take the phone call, and then her reaction during or after it, because they were in different offices.  He treated the Judge’s reliance on Mr Price’s evidence as necessarily accepting that Mr Price had seen the complainant from the point at which she took the telephone call, until she had gone from her office to Mr Vanderhoof’s office.

[15]     I do not accept the criticism.   Mr Price’s “observation” cited by the Judge may have been a combination of what was seen and what was heard by him.  In the context of a relatively small office, Mr Price has described the phone ringing, the complainant answering it, and his observing the complainant, after a very short telephone conversation, being highly distressed.  In the absence of cross-examination casting doubt on the quality of Mr Price’s ability to make such observations, the Judge’s reliance on the evidence is justified.

[16]     Mr Ross  made  an  allied  point  that  given  the  doubts  raised  by  the  new evidence he sought to rely on, and the possible deficiency in Mr Price not being cross-examined about his ability to observe the complainant’s end of the telephone conversation, a sufficient doubt arose to justify quashing the conviction.   With respect, that is an unrealistic stance to adopt in assessing the justification for the finding that the Police charge was proven.

[17]     Mr Ross  argued  that  once  a  reasonable  doubt  had  been  raised  as  to  the reliability of Mr Price’s evidence, then the basis for the Judge being satisfied on the charge no longer survived.

[18]     I am also not satisfied that the new evidence would create a reasonable doubt that Mr Price’s evidence could not be relied upon.  It is understandable that the Judge would focus on Mr Price, who he perceived as the witness most detached from the events, but his evidence was consistent with that of the complainant herself and her partner.

[19]     The conclusions reached by the Judge with the advantage of assessing the witnesses did not depend solely on the extent to which the Judge felt comfortable accepting  Mr Price’s  evidence.     That  fitted  consistently  into  a  view  of  the complainant’s reaction to the conversation as one that contained a serious threat. The reaction  was obviously inconsistent  with it being an  innocuous  request for Mr Hume to speak to someone else in the office.

[20]     The Judge was also influenced by Mr Hume’s conduct at around the time that the critical conversation occurred.  There was evidence that he contacted the media to invite them to attend at the complainant’s business premises, and then turned up there with his children holding placards about his claims that he had not been paid commissions on transactions he had been involved in.  He cast that in terms that the agency had “stolen $30,000” from him.

[21]     Particularly  with  the  advantage  of  hearing  evidence  from  Mr Hume,  the Judge was entitled to see that context as more consistent with the conversation containing a threat than with it being confined to an innocuous request for Mr Hume to speak to somebody else.

[22]     The Judge’s analysis was also criticised for giving insufficient weight to the motive that Mr Hume attributed to the complainant, namely falsely accusing him of threatening her.   The tension in the relationship between former employee and employer focused on  Mr Hume’s claim that the former employers had failed to account to him for the amount of $30,000 for commissions he claimed to have earned whilst with their agency.  Against that background, he argued that the Judge ought to have tested the credibility of the complainant because she had the adverse motive of getting Mr Hume excluded from the real estate business on account of the conviction that would follow from the complaint she pursued.

[23]     The Judge acknowledged this concern but did not treat it as a factor requiring him to disbelieve the complainant when, on the totality of the evidence, he was satisfied that her version was made out.

[24]     The matter of the weight to be given to this alleged motive was very much a matter for the Judge, having seen and assessed all of the witnesses.   I am not persuaded that the criticism of him is warranted when it was entirely open to him on the reasoning he set out to have acknowledged the prospect of an adverse motive, but satisfied himself that it did not require him to disbelieve the complainant.

[25]     I am not satisfied that the proposed fresh evidence, although fresh in the sense required to qualify for admission on appeal, would have the compelling impact that is argued for it.

[26]     I am further not satisfied that, with or without that evidence, Mr Hume can make out that the conviction was in any sense unsafe.

Appeal against sentence

[27]     Judge  Matheson  dealt  at  some  length  in  the  notes  of  his  sentencing  on

14 June 2012 with the application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.   The Judge correctly engaged in a three-step process of identifying the gravity of the offence, identifying the direct and indirect consequences of a conviction, and determining whether those consequences would

be out of all proportion to the gravity of the offending.  He observed:[6]

[6] Police v Hume DC Wanganui, CRI-2011-083-1575, 14 June 2012 at [21].

Where a conviction is an absolute bar, a discharge may be appropriate. However, the Courts have been reluctant to grant a discharge on this ground where the consequences are unclear.

[28]     That is precisely the situation here because, as Mr Ross acknowledges, whilst Mr Hume is fearful that the conviction may result in his being banned from working as a real estate agent, that depends on a discretionary decision that may or may not be made adverse to him and that consequence is by no means certain.

[29]     On  the  basis  of  the  facts  as  found  by  the  Judge,  this  was  not  trifling offending.   However much an accused person may have thought he or she was

provoked into a threatening exchange, making a threat to kill is a serious matter.  In

all usual circumstances, a conviction would be necessary to reflect the seriousness of it.

[30]     To  make  out  that  the  adverse  consequences  are  disproportionate  would require, at the very least, the Court to be satisfied that loss of a valued vocation would be entirely and permanently lost. That is not the case here.

[31]     Additionally, the Judge was troubled when considering the prospect of a discharge that Mr Hume had done nothing to acknowledge the offending and showed nothing in the nature of remorse.  That is a relevant consideration in all sentencings, and has its place in assessing the appropriateness of a discharge without conviction.

[32]     I  concur  with  the  approach  adopted  by  the  Judge  on  all  aspects  of  his reasoning for rejecting a discharge without conviction.  I am satisfied that the fine imposed of $750, together with Court costs of $132.89, was not excessive and the appeal against sentence must also be dismissed.

Dobson J

Solicitors:

Crown Solicitor, Wanganui