K v Police HC Masterton CRI 2008-435-12
[2009] NZHC 102
•11 February 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY
CRI 2008-435-12
K
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 10 February 2009 (Heard at Wellington)
Counsel: C L Elder for Appellant
F S Moraes for Respondent
Judgment: 11 February 2009
JUDGMENT OF SIMON FRANCE J
[1] Ms K was charged with assaulting her young child. The incident occurred in a main street of Masterton and was observed by a member of the public. He complained, and charges resulted. Following a defended summary hearing, Ms K was convicted and ordered to come up for sentence if required. She appeals conviction.
[2] The allegation is that Ms K slapped her two year old son with an open hand whilst he was sitting in a pram. Ms K was standing behind the pram at the time. She accepts contact occurred but says it was a case of pushing the young
boy’s head so as to turn him sideways to face her.
K V NEW ZEALAND POLICE HC MAS CRI 2008-435-12 11 February 2009
[3] Ms Elder (not trial counsel) advances three grounds of appeal:
a) there was an unresolved conflict as to where the witness and Ms K were positioned. This conflict, if resolved in favour of Ms K , significantly increases the distance between her and the member of the public who saw the incident and who then became the main prosecution witness. The Judge overlooked the dispute which had the potential to cast doubt on the witness’s testimony;
b)the Judge held that what Ms K claimed to have done to the child was not physically possible. However, it is submitted that if that was so, she was equally unable to do what the witness claimed to have seen. The Judge, therefore, erred in rejecting Ms K ’s evidence on this basis;
c) the Judge mentioned, but did not factor in, the lack of any markings on the child when observed by a police officer very shortly after. The slap described by the witness was likely to have caused a mark yet none was present. This fact was sufficient to bolster Ms K ’s testimony and generate a reasonable doubt.
[4] Concerning the first matter, I accept Ms Moraes submission that the conflict is irrelevant. First, the witness is clear he was 4-5 metres away. The fresh prospect advanced on appeal (without evidence) was that the two shops (he said Farmers, Ms K said No 1 Shoe Warehouse) are 100 metres apart. No-one put to the witness he might have been 100 metres away. The witness described seeing the expression on the young child’s face when struck. The witness explained why he was where he was and how he came to be there. There is no basis on appeal to elevate the conflict to one of significance.
[5] Concerning the issue of whether her version of events was impossible, on appeal one does not have the Judge’s benefit of seeing the physical re-enactments by each of the witnesses. The description given by the witness contains no inherent implausibility – there is no reason to think the blow could not be struck as described.
Whether the accused’s description of events involved something that could have happened I cannot say. However, the Judge focussed on it in evidence, and asked Ms K to carefully show him what happened. There is no reason for an appeal court to take a different view.
[6] Concerning the lack of markings, this is no doubt the best point in Ms K ’s favour, but it is notoriously difficult area. What should have been visible? How would a slap show on this child compared with the normal colour of the child’s skin, cheeks? Would the child’s distress cause changes that might mask a slap mark? The Judge noted the absence of any mark. He was, therefore, aware of the point, and did not see it as raising a doubt given the other evidence. The failure to expressly state that conclusion, which is inherent anyway in the verdict, is not a cause for concern.
[7] The appeal is dismissed.
Simon France J
Solicitors:
C L Elder, Barrister, PO Box 682, Masterton, email: [email protected]
F S Moraes, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]
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