J v Police HC Hamilton CRI-2010-419-40

[2010] NZHC 961

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-40

BETWEEN  J

Appellant

ANDPOLICE Respondent

Hearing:         16 June 2010

Appearances: Appellant in Person

R B Annandale for Respondent

Judgment:      17 June 2010

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

17 June 2010 at 2.00 p.m, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3244

Copy to:

D C J  , PO Box 149, Ngaruawahia

J V POLICE HC HAM CRI-2010-419-40  17 June 2010

[1]      The appellant was convicted in the District Court on a charge that being a male he assaulted a female on 16 November 2009 at Ngaruawahia.   He appeals against his conviction.

[2]      As set out in the judgment of Judge Riddell, there had been a history of disputes between the appellant and the complainant, who were neighbours.   The complainant had made a number of telephone calls to the appellant concerned that his  cattle were  either  not  being  fed  or  watered  or  might  be  escaping  from  the paddock onto the main road.   There had been heated discussions about the matter and on the day of the assault the complainant, having observed the appellant, stopped her car and went on to his property to speak to him about the issue of the cattle. What the Judge described as an angry altercation ensued.  At some point during that altercation the Judge found that the appellant had assaulted the complainant, the assault leaving her with a wound around her left eye with associated bleeding.  An ambulance had been called and she had been treated at the scene.

[3]      The notice of appeal set forth five grounds of appeal.  The first was that the Judge had not placed any importance on the breach of property rights that had occurred, the appellant alleging that the complainant had trespassed on his land.  He asserted that the complainant had been a trespasser under the Trespass Act 1980.

[4]      The second ground of appeal was based on the suggestion that he had been discriminated on the basis of gender and had been prevented by the Judge from introducing this line of defence in questioning a prosecution witness, Constable Mark Schinkel.

[5]      The third ground of appeal alleged that the Judge had placed no weight on the fact that he was defending himself on his own property and had not used excessive force.  The appellant referred to s 48 of the Crimes Act 1961, relying on self defence and claiming that he had used such force in the circumstances as he believed them to be, that it was reasonable to use.

[6]      Next, he contended that the complainant had perjured herself in Court.  This was based on an alleged discrepancy between the statement that she made to the

police and evidence that she had given on oath as well as a contention that her evidence that she had been able to see his cattle on the road was inconsistent with photographs that clearly showed that she could not see the road from her house.

[7]      The fifth ground of appeal set out in the notice was that further evidence had come to light since the trial of intimidation of other neighbours by members of the complainant’s family.   This issue is completely irrelevant to any question that properly arises in relation to the appellant’s conviction, it was not covered by the appellant in his oral argument to the Court and I do not propose to discuss it further.

[8]     In his oral submissions the appellant added a further ground of appeal complaining in effect that the Judge had reversed the onus of proof when she stated that the appellant had provided no other witness to support his version of events.

First ground of appeal

[9]      The appellant argues that the Judge had not placed proper weight on the breach  of  property  rights  that  he  alleges  had  occurred  when  the  complainant allegedly trespassed on his property.   He complained that by returning to his land after he had verbally told her to leave the complainant had breached s 3(1) of the Trespass Act 1980.

[10]     The question that the Judge had to decide was whether or not the complainant had been assaulted by the appellant.  The question of whether or not the complainant was a trespasser in terms of the Trespass Act was not relevant to that issue.

[11]     In her judgment the Judge did refer to s 56 of the Crimes Act and noted that under its terms a person is justified in using reasonable force to prevent someone trespassing.  However, she observed that there was no suggestion that the appellant had used force in order to remove the complainant from the land and noted that the defence was not available.  Mr Annandale points out in any event that the subsection does  not  authorise  the  person  in  possession  to  strike  or  do  bodily harm  to  the trespasser.

[12]     However, it is not a valid criticism of the judgment to say that the Judge had not given weight to the alleged breach of the Trespass Act.   Whether or not the complainant was a trespasser could not justify or excuse the commission of an assault on her.

[13]     This ground of appeal must fail.

Second ground of appeal

[14]     This ground of appeal has its origin in a question that the appellant wished to ask Constable Schinkel.   As recorded  at  page 36 of the notes of evidence, the appellant commenced a question in the following words:

Constable if the situation was reversed and I’d gone on to Ms Butler’s property, what would the outcome be? Given the same circumstances –

at which point the Judge is recorded as having addressed the appellant.  What she said is not recorded.  However, it can be assumed that the Judge must have pointed out that the question was not relevant to the issue of whether or not there had been an assault by the appellant on the complainant.   The question of the gender of the defendant is inherent in the offence with which the appellant was charged.  Section

194(b) of the Crimes Act 1961 makes it an offence for a person being a male to assault another person who is a female.  There is nothing in the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993 that can affect the right of the prosecution to bring a charge under that section, nor prevent a Court convicting a defendant against whom the relevant facts are proved.

[15]     The appellant was essentially attempting to raise in his defence an issue which again was not relevant and I reject this ground of appeal.

Third ground of appeal

[16]     The appellant asserts as his third ground of appeal that the Judge seemed to place no weight on the fact that he was defending himself on his own property.  The Judge specifically noted, at [7], that the appellant wished to rely on self-defence, and

she referred to the appellant’s evidence that at the relevant time the complainant had moved towards him with her hands clenched to her side and that he believed that she was going to assault him.   She also recorded evidence given by the appellant, as follows:

… Mr J   then said that he put a hand out directly in front of him because he was concerned for his own safety.   He said he shut his eyes because  he  knew an  impact  was  imminent.    He  said  he  felt  no  impact between his hand and the person of Mrs Butler.  The last thing he saw was Mrs Butler crossing the grass and then he opened his eyes and saw her lying on her back on the ground.   It was his view that she had tripped while wearing jandals, that the ground was still damp from dew and that she had fallen accidentally.

[17]     The Judge also referred, at [10], to the appellant’s evidence that his hand had not connected with the complainant, his explanation being that she must have tripped and fallen and perhaps her jewellery or her sunglasses had been responsible for causing the cut as she fell.

[18]     The Judge summarised the complainant’s evidence at [8] of the decision as follows:

Mrs Butler says that she had returned to speak to Mr J   because of a perceived insult when he said to her, “Why don’t you get a real job?”  She approached him.  Her evidence is that her hands were outstretched in front of her  at  chest  height  in a placatory manner,  trying to  resolve  the  dispute between them.  She said her sunglasses were on her head and Mr J   put his hand out and knocked her backwards onto the ground.   She said she thought she was rendered unconscious for a short time.  There was no doubt in Mrs Butler’s mind that she had been assaulted by Mr J  .  After that, she left immediately.  She said she was very upset.

[19]     At [13] the Judge noted a number concerns that she had in relation to the appellant’s evidence.   They included the fact that the appellant had later given an explanation to the police that conceded that his fingernail may have made contact with the complainant and the fact that if her injuries had the cause ascribed to them by the appellant he would hardly have gone to the police later that day, as he did, to report that some sort of incident had occurred.  She noted also her view that there was no reasonable explanation as to how the complainant could have fallen backwards, hitting her head on the ground thereby causing injuries in the vicinity of

her left eye.  She rejected the suggestion that the injury could have been caused by her ring and found it unlikely that it had been caused by her sunglasses.

[20]     Having viewed the photographs of the complainant’s condition following the incident, I agree with the observations of the Judge.   She plainly had reasons for rejecting the appellant’s contentions which she articulated.  I consider her reasoning was correct.  There was nothing in the evidence about any action of the complainant which would have justified as self-defence an assault of the nature that the appellant must have carried out.

[21]     I accept, as the appellant submitted, that having referred to s 48 of the Crimes Act at [7] of the judgment and noting that the appellant wished to rely on self defence, the Judge did not mention that section again.   However, reading the judgment as a whole she plainly rejected the defence.

[22]     I reject this ground of appeal.

Fourth ground of appeal

[23]     In  this  ground  of  appeal  the  appellant  contends  that  the  complainant committed perjury in giving evidence at the trial.  In the notice of appeal two points were made.   First, the appellant contended that in her statement to the police the complainant had said that she was very angry and that as she walked back to him she had her hands up in an open gesture.  By contrast, she had stated in Court under oath that she approached him in a “conciliatory manner”.  The second circumstance said to give rise to perjury was that the complainant had given evidence that she had seen the appellant’s cattle on the road, where they had nearly been hit by a car, whereas the photographs put to her at the trial clearly showed that she could not see the road from her house.

[24]     In his oral submissions the appellant added a third allegation of perjury with reference to evidence that the complainant had given about having been knocked out in the assault.  He argued that that evidence was inconsistent with the fact that she

alleged that he had hit her with an open palm and that she had been able to run off to her car.

[25]     Mr Annandale submits for the Crown that it is “not correct” for the appellant to raise allegations of perjury on an appeal;  if the appellant has a complaint about alleged perjury then that should be made to the police and not to the Court.  Be that as it may, I am taking the appellant’s contentions under this ground of appeal as bases upon which he effectively seeks to argue that the Judge should not have found the complainant to be a credible witness and should have preferred his evidence to hers.

[26]     As  to  the  first  of  the  points  made,  the  complainant  said  in  her  original statement to the police:

I turned around, I was very angry at what he had said.  I walked back to him. I had my hands in an open gesture.

[27]     In evidence she said:

And as I was walking back towards the car he got very abusive towards me and I spun around and I walked back towards him and I was basically had my hands like this, saying to him, you know, just stop it.  It’s just stupid and that’s when he, um, yeah, hit me.

[28]     Later, after she had confirmed that she had advanced towards the appellant, frustrated and very angry, there was the following exchange in cross-examination:

Q.        Is it normal for you to be very angry and frustrated and have your hands up in a conciliatory –

A.        I was frustrated with you Don.  I’d had enough, you were abusive … And yes I threw my arms up.  More in frustration and oh my goodness can you really not understand this at all.  How hard can it be.  But, no I definitely did not have my fists by my side.

[29]     Mr Annandale submitted that the witness at no stage had said that she had been acting in a “conciliatory manner” as the appellant contended.  However, in that respect the Judge referred at [8], in a passage that I have already quoted, to her having her hands outstretched in front of her at chest height in a “placatory manner”. Having  regard  to  the complainant’s  evidence referred  to  above  in  [27]  (“I was basically  had  my  hands  like  this”)  I  infer  that  the  complainant  must  have

demonstrated in the witness box the manner in which she had been holding out her hands.

[30]     In both her statement and her evidence she described her hands as being apart and she also confirmed in her evidence that she was nevertheless very angry.  I do not accept that this is necessarily inconsistent as the appellant argued.  Nor would an angry frame of mind necessarily have meant that her fists were clenched at her side, which was what the appellant had contended as an important part of the context for his self-defence argument.

[31]     The second issue raised under this head in the notice of appeal was directed at  evidence  that  the  complainant  gave  about  having  seen  the  appellant’s  cows grazing by the roadside.   He cross-examined her about that on the basis of photographs that he put to her which were designed to demonstrate that she could not see the road from her house.  She responded by adhering to her account as well as stating that the photographs did not properly represent the view that she had.  For example, there was this exchange, recorded   at pages 9 and 10 of the notes of evidence:

Q.        Would you agree Ms Butler, that that photo there, photo 9, is taken from the level of your view?  It looks –

A.        Well no it’s not taken from the level of my view at all.  It’s still – if you also look at that photo yourself, that’s not taken from the second storey of my home.

Q.        This photo is taken from the same level as the second storey of your house, would you agree?

A.        No I don’t.

Q.       Does it look to you like it’s taken lower or higher? A.       It’s taken lower.

Q.        Taken lower.   Turning back to photo 8, the photo taken from the road, looking at your house, you can’t see your house, can you?

A.        Well no because you’re not taking it from where your cows actually graze.  Your cows don’t graze on the other side of the road.

Q.        No, this photo is taken from the road where you said that the calf was?

A.        No, further down Mr J  , the car was parked further down the road.

Q.        Further down the road?

A.       Yes more towards the house. Q.   More towards 61?

A.        Correct.

[32]     The Judge did not directly resolve this issue.  It was in fact a tangential one, and she was entitled to deal with the matter in the way she did at [12]:

… Much was made of whether Mrs Butler could see the calves from her house, whether they were on the road or not, but I am not required to make a finding about that.  The only matter upon which I must deliberate and come to a decision is whether there was an assault as defined by the Crimes Act, by Mr J   against Mrs Butler.

[33]     At most the questions raised by the appellant about what she could see on the roadside went to the complainant’s credibility, but on that issue the Judge had, and expressed, a reasoned basis for preferring the complaint’s evidence to that of the appellant on the relevant facts in issue in the case.

[34]     The final issue that the appellant raised under his “perjury” ground concerned the  evidence  given  by  the  complainant  about  having  been  knocked  out.    The appellant asserted that it was impossible to knock someone with an open palm to the forehead and if she had been knocked out she would not have been able to run off to her car after she got up.   The appellant endeavoured to support the first of these contentions on the basis of what “experts will say”, but there is no relevant expert evidence.

[35]     The complainant’s evidence was that she had been knocked straight to the ground and that she was “pretty sure” she was actually “knocked out cold”.  Asked why she thought she had been knocked out she said:

Because I remember when I — I believe when I came too, um, Don J   was actually quite a way away from me, um, I woke up I was very dazed, I, I staggered — it took me a little while to pick myself up off the floor but the one thing I do recall is that, um, Don J   never — he was quite a way away.  He was, I don’t know, probably a good between six and eight metres away from me when I was getting myself up off the ground.

[36]     Later, she gave evidence that she had picked herself up and “staggered” and “tried  to  run”  back  to  her  car.     Essentially,  the  appellant  argues  that  the complainant’s evidence was implausible and therefore she must have been lying. However, as I have said previously, the Judge expressed a reasoned preference for believing the appellant’s evidence and I have not been persuaded that I should take a different view.

[37]     It follows that this ground of appeal also fails.

Final ground of appeal

[38]     In his oral submissions the appellant raised a further issue which focused on the fact that in the judgment, the Judge said at [13](d):

Mr J   provided no other witnesses to support his story, yet he asked the police in cross-examination why they did not take statements from the neighbours.  If he thought that other evidence should have been gathered to support his claim, then I would have expected him to bring those witnesses to Court today.

[39]     The appellant contended on the basis of these observations that the Judge had effectively  required  him  to  prove  his  own  innocence.    He  noted  that  he  had questioned Constable Schinkel in cross-examination about producing evidence from any of the neighbours or from the medical people who attended the complainant, that the scratch on her forehead had been caused by an open palm or if there were any witnesses to the alleged assault.  The notes of evidence show that he did ask whether the constable had gone “to any of the neighbours to look for evidence of assault”, but his questions fell short of raising directly the issue of whether her injury could have been caused by an open palm.  He did inquire whether the constable had obtained an injury report from the ambulance drivers.

[40]     Constable Schinekl responded that he had not spoken to neighbours because on arrival he had seen the victim and she told him who was responsible.  He had not obtained a report from the ambulance drivers because of the photographs of the wound that had been taken at the time.

[41]     I do not accept that in the relevant part of her judgment the Judge was requiring the appellant to prove his innocence.  Paragraph [13] of the judgment was where she set out the concerns that she had about the evidence she had received from the appellant about what had occurred.   She essentially gave a list of reasons for rejecting  his  evidence,  one  of  which  was  that  no  one  had  been  called  to  give evidence which corroborated his.   She noted the questions that he had asked Constable Schinkel in cross-examination and then said that if he thought other evidence should have been gathered to support his claim she would have expected him to call it.

[42]     It was plain from her other observations that she had difficulty accepting the appellant’s evidence on its own terms.  In the criticised paragraph she was merely pointing out that it had not been supported by evidence from any other witness while responding to the questions he had asked of Constable Schinkel.  This is a long way short of requiring the appellant to establish his innocence.

[43]     I reject this ground of appeal also.

Result

[44]     The appeal is dismissed.