K v Police HC Auckland CRI 2005-404-245

[2006] NZHC 249

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-000245

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 March 2006

Appearances: G N Bradford for Appellant

Ms Longdill for Crown

Judgment:      20 March 2006

JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            Mr G N Bradford, Auckland

K V NEW ZEALAND POLICE HC AK CRI 2005-404-000245  20 March 2006

Introduction

[1]      On 27 June 2005 the appellant was convicted on a charge of behaving in a threatening manner and fined $400 plus Court costs $130.  He appeals against that conviction.

Background

[2]      The  conviction  followed  a  defended  hearing  in  the  District  Court  at Waitakere.  The incident upon which the charge was based occurred at the Michael Fowler Centre in Wellington on 17 June 2003, over two years before the fixture.

[3]      Evidence was given for the prosecution by the complainant, Mr Shane Jones, and by a detective who had arrested Mr K   some three weeks after the incident. Mr K   gave evidence on his own behalf.   The defendant also called evidence from his son and a Mr Munn.

The evidence

[4]      Mr  Shane  Jones  is  the  chairman  of  the  Treaty  of  Waitangi  Fisheries Commission.  On 17 June 2003 he was in Wellington.  He was a speaker at a three day youth conference on Maori development.  After speaking at the conference he was leaving the convention centre when he heard the accused Mr K   mention his name.  Mr Jones said that he turned around and the accused came up to him in a very threatening and offensive manner.  Mr Jones said that the accused said:  “I’ll effing well waste you, I’ll kill you”.  Mr Jones said the appellant also said something to the effect of “Look here you fucking white cunt, you’ve been fucking well selling us out” or words to that effect and “I’m going to fucking well get you.  I’ve told you I don’t want to see you at any of our Maori things anymore.  I’ll fucking do you right here  in  the  fucking  guts,  cunt”.    Mr  Jones  said  he  then  sort  of  moved  away. Mr Jones said that he was really worried about the “threat to do violence to my wife

and kids and the threat to kill”.   He had the impression that the appellant was someone who in his view had every intention at that point in time of making good his threat.   Mr Jones gave evidence that they were very close together when the appellant said this to him, perhaps six to eight inches or a foot at the most.

[5]      In the  course  of cross-examination of  Mr  Jones  defence  counsel  put  the statement he had made to the police at the time to him. It was put to him that there was no reference in the statement to any threat against Mr Jones’ wife and children. In fact there was a paragraph in the statement that referred to a discussion Mr Jones had with his wife. Mr Jones said in the statement that “She is concerned about these threats to her and our seven children.  I am making a formal complaint.  I fear for my family and Clark has promised to either do me serious physical injury or kill me”.

[6]      It was put to Mr Jones  that  he initiated  the contact  by going up  to  the appellant and saying “Gidday black arse”.  He denied initiating the conversation and addressing those words to the appellant.

[7]      The detective gave evidence of the arrest of the appellant.

[8]      The appellant gave evidence on his own behalf.   He denied that he had threatened Mr Jones.  He said that he had been standing in the foyer of the Michael Fowler Centre with his son.  His son was head boy of a Northland School.  He was attending the conference.   They were waiting for the head girl from the school to arrive.  The appellant gave evidence that it was the complainant Mr Jones who came up to him rather than the other way about and that all he had said was “Listen you honky, I’m not going to take any shit from you.  I don’t need any”.  The appellant’s case was that Mr Jones had a reason to be aggrieved at him because the appellant had effectively ordered him off the marae in 1995, some eight years earlier.   In cross- examination the appellant accepted that his son would have been about four or five metres away at the time he said the complainant spoke to him.

[9]      The appellant’s son also gave evidence.  He confirmed that he was present at the Michael Fowler Centre on the day in question. He said that the complainant Mr Jones came over to his father and that he heard Mr Jones say “Gidday black arse”

as he, the appellant’s son, was leaving.   He said he just thought it was one of his father’s old friends and they started talking and he left them talking to each other.

[10]     In cross-examination the appellant’s son accepted he was three or four metres away and that he walked off as soon as they started speaking.

[11]    Mr Munn gave evidence of an incident at the marae in 1995 when the complainant Mr Jones had been directed off the marae by the appellant.

The District Court decision

[12]     In his decision the Judge summarised the evidence, noted there was a direct conflict in the evidence between that of the complainant Mr Jones on the one hand and the appellant and his son on the other.   The Judge accepted the evidence of Mr Jones and concluded that the appellant did behave in a threatening manner.

Appellant’s submissions

[13]     The appellant submits that the District Court Judge was influenced in his decision to prefer the evidence of the complainant by virtue of his “prior dealings” with the appellant and his knowledge the appellant faced a number of other charges. He submitted that there was a real danger the conviction was unsafe on the basis there was a reasonable apprehension of unfairness.

[14]     Next the appellant submits that the Judge did not refer to the burden of proof and failed to give adequate reasons so that there must have remained a reasonable doubt. He submitted there was a discrepancy between what the complainant had said in his statement to the police and what he said in Court so the Judge could not have been satisfied beyond reasonable doubt.

[15]     Finally, the appellant submits that the Judge knew factors about the appellant which gave rise to the apprehension that that knowledge influenced the Judge’s decision to prefer the evidence of the complainant over that of the appellant.

Crown submissions

[16]     The Crown noted that a number of judges dealt with the appellant at call-over before the ultimate fixture before Judge Mather and submitted there was no basis for a submission that the conviction was unfair because the Judge had presided over the list Court and was aware that the appellant faced other charges.

[17]     Next, while accepting that the Judge did not expressly refer to the standard of beyond reasonable doubt Ms Longdill submitted that it was clear from the context of the Judge’s decision that he applied the correct test. Ms Longdill rejected the submission for the appellant that the Judge had failed to give sufficient reasons for his finding that he preferred the evidence of the complainant to that of the appellant.

[18]     Finally,  Ms  Longdill  submitted  that  the  third  point  was  the  first  point restated.

Decision

[19]     There is no merit in the submission advanced on behalf of the appellant that the District Court Judge was in some way biased or should have disqualified himself from hearing the case on the basis of his previous dealings with the appellant and his knowledge of the other charges the appellant faced.

[20]     The appellant first appeared before Judge Mather during the course of these proceedings in the list on 4 July 2003.   The appellant apparently said he did not recognise the jurisdiction of the Court to hear the charge.   He either pleaded not guilty or a not guilty plea was entered.   On 18 March 2004 the appellant again appeared before Judge Mather when the case was remanded for a defended hearing in June 2004.  Subsequently the appellant was arrested in relation to other charges including assault with intent, escaping custody and assaulting police x2.   On 14

March 2005 he was remanded for a fixture on 27 June when all charges were to be heard together.

[21]     On 27 June 2005 when the fixture was called the appellant elected trial by jury on the other charges.  The fixture proceeded on the one charge only.

[22]     Mr Bradford referred generally to tests for bias in Auckland Casino Limited v Casino Control Authority [1995] 1 NZLR 142 (CA) and Man O’War Station v Auckland City Council [2002] 3 NZLR 577. It cannot sensibly be suggested on the basis of either test that there was a real danger or a real likelihood of bias or that a fair minded and informed observer would conclude there was a real possibility the Judge was biased in the circumstances. The test is not the subjective viewpoint of the appellant.

[23]     District Court Judges deal with a considerable volume of cases and accused in lists.  It is not uncommon for an accused to appear before the same Judge on a number of occasions over a period of time and during the process of one or more charges.  Unless there was a particular and express reason for suggesting bias arising from such appearances – which Mr Bradford was unable to point to, there was no reason for the Judge to disqualify himself.

[24]     The fact the appellant refused to recognise the jurisdiction of the Court does not affect the position.   From time to time people who appear before the Court protest jurisdiction.  It does not affect the ability of judges to properly deal with their cases.  If a judge had to disqualify him or herself on the basis that an accused did not accept the Court’s jurisdiction or otherwise created a disturbance in Court, the criminal justice system could not operate.   The appellant cannot refer to anything tangible to support the allegation of bias.

[25]     Mr Bradford next referred to s 28C District Courts Act 1947.  Section 28C(a) provides that a trial judge is not to conduct the trial of any person in respect of an indictable offence if the judge had previously conducted the preliminary hearing and committed the accused for trial.  In such a case the judge would have formed a view as to the merits of the case.  In the case of s 28C(b) the judge will actually have taken part in the hearing at a preliminary stage and taken evidence.  Presiding at list call- overs is of a quite different nature.

[26]     It is not in issue that the Judge had other charges before him.  He referred to them once he had dealt with the charge before him.  In fact the police were ready to proceed with all charges on 27 June 2005.   All of the witnesses were present at Court.   They were there because the appellant’s former counsel had agreed they could all be dealt with at the same time.  Once the charge was dealt with the Judge was required to remand the appellant to another date.  There is nothing in the first point of appeal.

[27]     The third point is merely the first restated.

[28]     I turn to the second point, that the Judge did  not  expressly refer  to  the standard of proof.

[29]     Ms Longdill acknowledged the Judge did not expressly refer to the standard of proof beyond reasonable doubt.  But a judge is not required to expressly refer to the  standard:     Trainor  v  NZ  Police  (High   Court,  Timaru,  17  May  1990, Williamson J):

There is not, and never has been, any requirement in law for a Judge or Justices to state in so many words in their decision the onus and burden of proof.  In the multiplicity of cases which a District Court Judge or Justices have to deal with, the application of the onus and standard of proof is a frequent exercise.  It is important that on appeal it can be ascertained from the overall approach of the Judge or Justices that they have correctly applied the onus and standard of proof. It does not need to be expressly stated.

(p 9)

Reference can also be made to Morrison v NZ Police (High Court, Rotorua, AP73-

99,  Salmon  J);     McCormack  v  Police  (High  Court,  Christchurch,  AP111-00, J Hansen J).

[30]     In the present case there was a direct conflict of evidence on the essential element in issue – whether the appellant said the words and threatened the complainant or not?  The Judge accepted that for the charge to be proved he had to be satisfied that the defendant had said what the complainant alleged he had said. The Judge noted the position in the following passage of his decision:

There is accordingly a direct conflict in the evidence between that of Mr Jones on one hand and that of Mr K   and his son on the other.  If the defendant Mr K   said what Mr Jones alleges he said then that is undoubtedly behaviour which is threatening and establishes the charge.  That is so whether or not the threats extended to Mr Jones’ wife and/or children.

[31]     The Judge did subsequently refer to preferring as more credible the evidence of Mr Jones but went on to record that in his view the evidence established that the appellant did on the day in question behave in a threatening manner.  This was not a case where elements of the evidence of both witnesses could be correct.  Either the complainant’s evidence was the true version of events or the accused’s was.

[32]     When the decision is read as a whole, I accept that the Judge found the appellant used the words Mr Jones attributed to him.  In the circumstances the charge was proved beyond reasonable doubt.  The words and the fact they were said when the parties were so close to each other would clearly be threatening.

[33]   Nor is there anything in Mr Bradford’s submission that there was an inconsistency in the complainant, Mr Jones’ evidence.   It was submitted to the District Court Judge that Mr Jones was wrong when he referred to a threat being made to his wife and children.  It was put to Mr Jones that he had not said that “The thing that really worried me was the threat to do violence to my wife and kids and the threat to kill” to the police when he made his statement on 23 June 2003. However in the statement made on 23 June 2003 he did say that “I have discussed the matter with my wife.  She is concerned about these threats to her and our seven children.   I am making a formal complaint.   I fear  for  my family and  Clark’s promised to either do me serious physical injury or kill me.”  As the Judge correctly observed that was a minor discrepancy.  Despite that minor discrepancy the Judge preferred Mr Jones’ evidence.

[34]     Nor do I accept the submission that the Judge did not give sufficient reasons for finding against the evidence of the appellant.  As Mr Bradford had to concede, in R v Awatere [1982] 1 NZLR 644 the Court of Appeal held that there is no general obligation for a judge to give reasons for his or her decisions but it must always be good judicial practice to give reasons. The failure to follow that practice might, depending on the circumstances jeopardise the decision on appeal. In R v Atkinson

[1984] 2 NZLR 381, a decision referred to by Mr Bradford, the Court confirmed R v Awatere but held that in that case and in the context of the admissibility of an accused’s statement there was more at issue than a simple conflict between the appellant and the police officer.  To rule the statement as admissible, not only did the Judge need to make a finding as to credibility but he was required to determine whether, on the basis of that finding, the Crown had proved beyond reasonable doubt the statement was voluntary and further, whether or not the statement ought to have been excluded on grounds of unfairness.

[35]     In the present case, as the Judge correctly noted, if the defendant had said what the complainant had alleged he said then that was undoubtedly threatening behaviour and established the charge.  The Judge clearly accepted the evidence of the complainant.   He made a particular finding in favour of the complainant’s evidence and gave the basis for it at para [18] of his judgment:

I have observed the witnesses giving evidence.   I have noted the minor discrepancies between the Mr Jones said in his statement to the Police and what he has said today.  I have taken into account what Mr K   and his son said in the evidence.   Having done so I accept and prefer as more credible the evidence of Mr Jones.  There was an altercation.  I am satisfied that Mr K   precipitated that altercation and that he threatened Mr Jones and his wife and children in the manner alleged.  Mr K  ’s son, even if accurate in what he said as to the first comment, which I reject, was not in a position to hear what was subsequently said either by Mr K   or Mr Jones.  In my view the evidence establishes that Mr K   did on the day in question behave in a threatening manner.  He is accordingly convicted.

[36]     Mr  Bradford  submitted  the  Judge  should  have  perhaps  referred  to  the demeanour of the witnesses.  But that is what he was referring to when he said that he had observed the witnesses.  He was also aware of the minor discrepancy referred to.

[37]     In rejecting the evidence of the appellant and accepting the evidence of the complainant the Judge found the charge was established.  As was noted by Somers J in R v MacPherson [1982] 1 NZLR 650:

… In the simple case of two witnesses giving divergent evidence of the same matter a statement (if it be the case) that one is preferred will be sufficient in a civil case.  In a criminal case the acceptance of prosecution evidence needs to be accompanied by the rejection of the evidence for the defence.   For acceptance of the one does not discount the possibility of the truth of the

other.  But the enunciation of the fact is itself a reason as to why a finding is reached.

Summary

[38]     I reject the submission that the Judge was biased or should have disqualified himself from hearing the case.

[39]     I accept the submission for the Crown that by holding that:

•   the appellant precipitated the altercation;  and

•   the appellant used words to threaten Mr Jones in the manner alleged,

the Judge rejected the evidence of the appellant in accordance with the test suggested by Somers J.   I conclude the Judge found the charge proved beyond reasonable doubt.

Amendment

[40]     Ms Longdill sought leave pursuant to s 119 (3) of the Summary Proceedings Act to amend the information  by deleting the  words  “behaved  in  a threatening manner” and replacing them with “addressed words to Shane Jones intending to threaten Shane Jones” to better reflect the wording of s 4 (1)(b).   Mr Bradford opposed the amendment and submitted that s 43 (3)(d) Summary Proceedings Act would require further evidence so that the case should be referred back to the District Court in any event.

[41]     I do not accept that s 43 (3) applies.    The  amendment  sought  does  not substitute one offence for another.  It is a rewording of the particulars.  I allow the amendment to reflect the wording of s 4 (1)(b).  There can be no prejudice to the appellant.   There can be no suggestion that he did not intend to threaten the complainant, given the words used and the proximity of the parties at the time they were said.

Result

[42]     The appeal is dismissed.

Venning J