Jamieson v Police

[2017] NZHC 956

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2016-443-25 [2017] NZHC 956

BETWEEN

LAURENCE RICHARD JAMIESON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

7 March 2017

(Heard at Wellington via AVL)

Counsel:

Appellant in person
S J Simpkin for Respondent

Judgment:

11 May 2017

JUDGMENT OF CLIFFORD J

[1]      After a hearing before Judge Sygrove in the District Court at New Plymouth, Laurence Richard Jamieson was found guilty on one charge of common assault of Lyle Field stemming from events of 27 January 2016.  Mr Jamieson was convicted and sentenced to come up if called upon within 12 months.

[2]      Mr Jamieson now appeals his conviction.

Facts

[3]      Mr Jamieson lives in a small coastal Taranaki community.  The complainant, Mr Field, owns a plot of land in that community.   Part of that land borders on Mr Jamieson’s land.   Mr Jamieson and Mr Field fell out over work Mr Field had been doing to develop his property.  Mr Jamieson had complained about Mr Field’s work several times to the local authority.  The police had earlier served a trespass notice on Mr Jamieson in respect of Mr Field’s property.  By 27 January 2016 there

was a significant degree of tension between Mr Jamieson and Mr Field.

JAMIESON v NEW ZEALAND POLICE [2017] NZHC 956 [11 May 2017]

[4]      On 27 January 2016, Mr Field and his partner, Patricia Lowe, came to their property.   As they drove through the gate, Mr Jamieson approached them, and a confrontation ensued.

[5]      The police were called to the incident.  Mr Field acknowledged that he had kicked Mr Jamieson in the chest, that they then grappled with each other on the ground and that, during that altercation, he punched Mr Jamieson several times in the kidneys and in the head.  He said he had reacted to Mr Jamieson spitting at him.  The police offered Mr Field diversion on the basis, I infer, that he had acknowledged his part in the incident.

[6]      When interviewed by the police, Mr Jamieson did not accept that he had spat at Mr Field.  Mr Jamieson was not offered diversion.  When charged, Mr Jamieson pleaded not guilty, and faced trial before Judge Sygrove accordingly.

[7]      At  Mr Jamieson’s  trial  evidence  for  the  police  was  given  by  Mr Field, Ms Lowe, a neighbour Ms Pratt, and Constable Murphy, one of the police officers who attended the scene.   The DVD record of Mr Jamieson’s interview with the police was also played.

[8]      Mr Field gave his account of events, including that Mr Jamieson had spat at him twice, in response to which he had assaulted Mr Jamieson.  Ms Lowe did not see the part of the incident in which Mr Jamieson was alleged to have spat at Mr Field. She had, however, recorded the later part of the incident on her camera.   She had made her camera available to the police on the day of the incident.

[9]      During  her  cross-examination  of  Ms Lowe,  Ms  Mooney  –  counsel  for Mr Jamieson – asked for the DVD of the film Ms Lowe recorded to be played.  The Judge ruled that DVD evidence inadmissible, on the basis that it showed events after the  point  in  time  at  which  Mr Jamieson  was  alleged  to  have  spat  at  Mr Field. Therefore, it did not contain relevant evidence.

[10]     Ms Pratt, who had been some distance from the incident, gave evidence that

at  one  point  she  had  seen  “what  I considered  Mr Jamieson  to  make a  forward

movement and spit at Mr Field”.  Her further evidence was that Mr Field’s assault on

Mr Jamieson occurred after she had seen that spitting motion.

[11]     In  his  police  interview,  Mr Jamieson  admitted  that  he  had  approached Mr Field to give him what he described as “an ear bashing”.  But, he said, he had “got the bash instead”.   Mr Jamieson said he had approached Mr Field to tell him that Mr Field was not to threaten Mr Jamieson or his home again.   At that point, Mr Field had become abusive and,  as he admitted, assaulted  Mr Jamieson quite severely.

[12]     At the end of the police case Mr Jamieson elected not to give evidence.

[13]     Judge Sygrove was satisfied, principally on the basis of Mr Field’s account as partially corroborated by Ms Pratt, that Mr Jamieson had spat at Mr Field and had therefore assaulted him. The Judge found Mr Jamieson guilty accordingly.

Appeal

[14]     Mr Jamieson bases his appeal on his belief that Mr Field lied when he said that Mr Jamieson had spat at him.  Mr Jamieson says Mr Field made up that lie to explain his admitted assault on Mr Jamieson.

[15]     Mr Jamieson points to a number of extracts from the transcript to support that assertion, identifying what he says are other lies by Mr Field.

[16]     Mr Jamieson also says the Judge was wrong not to admit the DVD evidence. Even if the recording did not cover that part of the incident in which he was alleged to have spat at Mr Field, it would nevertheless corroborate his account of things. Also, the DVD had been tampered with, a further indicator of the fact that Mr Field and Ms Lowe were lying.

[17]     At the hearing, it was not clear whether the Judge had himself viewed the two film  clips  Ms Lowe  had  recorded.    I  also  considered  there  was  some  merit  in Mr Jamieson’s  submission  that,  although  it  did  not  show  the  alleged  spitting incident,  the  film  might  nevertheless  have  corroborative  relevance  for  either  of

Mr Jamieson’s or Mr Field’s accounts of the incident.   I therefore ordered that a DVD copy of what Ms Lowe recorded be provided to me, together with a transcript. It transpired that the two film clips that Ms Lowe recorded had been transferred onto two separate DVDs.   I have now viewed both DVDs, with the assistance of the written transcript.  The first DVD begins with Mr Field kicking Mr Jamieson in the chest, Mr Jamieson stumbling backwards, and Mr Field continuing his assault by punching Mr Jamieson.  The second DVD begins when they are both on the ground. Mr Field is again punching and manhandling Mr Jamieson and, more generally, they tussle  with  each  other  before  breaking  apart.    Mr Jamieson  then  walks  away. Contrary to what Mr Jamieson said to me, there is no evidence of the DVDs having been “doctored” in anyway, or of the sound having been muted.

[18]     I refer to those recordings and their significance later in this judgment.

Analysis and outcome

[19]     This is a paradigm case of an appeal against a decision of the fact finder, here Judge Sygrove.  Mr Jamieson says Judge Sygrove was wrong to reach the conclusion that he had spat at Mr Field.   Moreover, he says  Ms Lowe’s film was  relevant evidence and could have affected the outcome.  The Criminal Procedure Act 2011, s 232 directs the Court to allow an appeal where the trial Judge has erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice is an error that creates a real risk that the outcome was affected, or that results in an unfair trial.

[20]     For this appeal to succeed, therefore, Mr Jamieson must establish either:

(a)      that no reasonable fact finder could have come to the same decision as the Judge based on the evidence before him; or

(b)that  the  DVDs  do  contain  relevant  evidence,  that  the  Judge  was therefore wrong to exclude that evidence and that, if that evidence had been before the Judge as a reasonable fact finder, he could not have reached the decision he did.

[21]     If  Mr Jamieson  establishes  either  or  both  of  those  propositions,  then  a miscarriage  of  justice  will  have  occurred  and  Mr Jamieson’s  appeal  should  be allowed and his conviction quashed.

[22]     In my view, the Judge’s finding that he was sure Mr Jamieson had assaulted Mr Field by spitting at him is one that was available to him on the basis of the evidence before him.  Mr Field was cross-examined as to whether he had made up the “spit” allegations.   He denied that.   His partner accepted she had  not seen Mr Jamieson spit at him.   The neighbour, Ms Pratt, accepted she had not actually seen  Mr Jamieson  spit  at  Mr Field,  but  under  cross-examination  maintained  her evidence that she had seen Mr Jamieson make a motion with his head that looked like he was spitting at Mr Field.  The Judge was entitled to accept Mr Field’s account over  that  of  Mr Jamieson.    Ms Pratt’s  evidence  provided  some,  albeit  limited, corroboration.

[23]     The question therefore becomes whether the content of the film records made by Ms Lowe was, in fact, relevant, and should therefore have been admitted, and whether the failure to admit it was an error that made the Judge’s finding unsafe.

[24]     In my view, the film Ms Lowe made of the incident is, generally speaking, relevant.  It is a contemporaneous record.  Mr Field did not dispute, as he could not, what that film showed; as the saying goes, a picture is worth a thousand words.  The film records a reasonably serious assault by Mr Field on Mr Jamieson.  Having said that, the DVDs would not directly have helped the Judge on the issue he had to decide.   What the Judge needed to do was assess the credibility of Ms Lowe’s explanation as to why her film started after the initial confrontation during which Mr Field said Mr Jamieson had spat at him.   The Judge also had to  assess the credibility of Mr Field as he made that assertion and, in making that assessment, give what the Judge considered appropriate weight to Ms Pratt’s evidence.  Watching the film would not have helped that.

[25]     Mr Jamieson argued that, in his evidence, Mr Field had said Mr Jamieson had come onto his land, when Mr Jamieson said the DVD would show he had not.  He also  submitted  that  Mr Field  denied  kicking  Mr Jamieson  when  he  was  on  the

ground, and that the film would show that that was a lie as well.  Thus, the DVD was relevant to the Judge’s assessment of Mr Field’s credibility, and in the absence of having seen the film, that assessment was flawed.

[26]     Mr Field did not categorically deny he may have kicked Mr Jamieson on a second occasion.  He said he could not recall, but said that it was a possibility. As to where the incident began, Mr Field’s evidence was clear that his boundary was some distance in front of the gate and, looking at the picture of the property that was in evidence, that would appear to be the case.   In my view, therefore, accepting the relevance of the contemporaneous record does not call the Judge’s decision into question.

[27]     Mr Jamieson’s appeal is, therefore, dismissed.

Clifford J

Solicitors:

Crown Solicitor, New Plymouth for Respondent

Copy to:  Mr Jamieson