Kapene v Police
[2014] NZHC 41
•3 February 2014
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2014-416-000001 [2014] NZHC 41
BETWEEN PAKU NERA JUNIOR KAPENE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 3 February 2014
Appearances: R Donnelly for Appellant
J D Lucas for Respondent
Judgment: 3 February 2014
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Napier
Rishworth, Wall & Mathieson, Gisborne
KAPENE v NZ POLICE [2014] NZHC 41 [3 February 2014]
Introduction
[1] Following a defended hearing on 2 December 2013 Mr Kapene was convicted on one charge of common assault. Judge Adeane sentenced him to 150 hours community work.1 Mr Kapene appeals against conviction and sentence.
Background
[2] On 14 August 2013 the complainant went to Mr Kapene’s address. He was her ex-partner. It appears that she was concerned at a new relationship he had formed. She apparently wanted to speak to him about that. She knew Mr Kapene would be at home because at the time he was subject to a sentence of home detention for unrelated offending. When the complainant arrived at Mr Kapene’s address an altercation between the two followed. It appears the incident was observed by a neighbour who took became involved by shouting out to Mr Kapene to leave her alone.
[3] Ultimately the police were called and the complainant gave to Police Constable Marshall a statement at the scene. The complainant had by this time driven down the road a little way from Mr Kapene’s property.
[4] In the written statement she completed the complainant described the altercation and said that Mr Kapene had hit her twice in the face with the back of his hand. The complainant’s lip was bleeding as a result. The police constable took a photograph of the complainant’s lip showing the injury to it. It could be described as a scratch or abrasion which was at the time currently bleeding.
[5] At the hearing before the District Court Judge the complainant sought to resile from her statement. She gave evidence different to that in her written statement. At most she said she was pushed. She was declared hostile. Her statement was then put to her which she largely denied and went so far as to say she was lying in that statement. Constable Marshall also gave evidence. He described the circumstances in which the statement was given and confirmed taking the
photograph of the complainant.
1 Police v Kapene DC Gisborne CRI-2013-016-001936, 2 December 2013.
[6] The District Court Judge found the charge proved. It appears he considered that the complainant, like a number of women in these circumstances, had sought to resile from her statement with the passage of time. The Judge said:
[4] Accordingly it can be seen that she had produced three versions of events.2 That makes it perhaps a little difficult to identify which of those is the preferred version so far as the resolution of defended allegations is concerned. But what it does demonstrate is that in three separate ways and different ways, she has alleged that the defendant applied force to her. Plainly in the course of giving evidence she is attempting to bring some benefit to the defendant and in those circumstances was at one point declared hostile in giving evidence.
[7] The Judge then went on to consider the submission on the defendant’s behalf that Mr Kapene was attempting to remove the complainant from his property and particularly whether the defence under s 56 of the Crimes Act 1961 applied:
56 Defence of land or building
(1) Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person.
[8] The Judge rejected that defence noting the injury to the complainant.
Appeal against conviction
[9] The appeal against conviction is advanced on two principal grounds. First, that the Judge failed to determine the factual basis for establishing guilt and second, that the evidence failed to negate the defence in s 56.
[10] Section 106(2) of the Criminal Procedure Act 2011 (CPA) requires a Judge to provide reasons for finding guilt. The Judge was required to provide reasons for finding Mr Kapene guilty in this case. The section codifies the law which was confirmed by the Court of Appeal in R v Eide.3 Mr Donnelly submitted that Judge Adeane had erred in not identifying the critical finding, namely which of the
versions the Judge relied on to find the charge proved. He submitted the Judge failed
2 The three versions were the first oral statement, where she described being punched to the face;
the written statement, which recorded backhanded blows; and her evidence in Court.
3 R v Eide (2004) 21 CRNZ 212.
to address the evidence of the complainant and identify which aspects of her evidence he accepted and which he rejected. He submitted that by failing to identify which of the three versions were accepted he implicitly rejected all three.
[11] I am not able to accept Mr Donnelly’s thoughtful and thorough submissions. I consider they proceed on a misconception. To find the charge of assault proved the Judge was required to find that it was proven beyond reasonable doubt that Mr Kapene had deliberately used force against the victim. On each of the three versions described by the Judge the elements of the offence were made out. There was no version of events before the Court which did not establish an assault. The submission that, because the Judge did not identify which of the three versions he accepted and therefore implicitly rejected all three, is in my judgment misconceived. It is apparent that the Judge accepted that the prosecution had proved the case beyond reasonable doubt and proved that the appellant Mr Kapene had assaulted the complainant.
[12] While I accept it would have been preferable if the Judge had gone on to identify which of the versions he accepted, the fact is that there was sufficient evidence before the Court to establish the assault charge beyond reasonable doubt. It was clearly open to the Judge to accept the written statement signed by the complainant, the police officer’s evidence and the independent evidence of the photograph which confirmed the result of the assault.
[13] Mr Lucas drew the Court’s attention to the decision of Richmond & Ngaronoa v Police.4 Mr Donnelly also relied on that, noting that despite the fact the complainant had resiled from her evidence the Judge had actually gone on to find that he had preferred the complainant’s evidence-in-chief over the evidence later given during the course of the trial.
[14] Mr Donnelly submitted that that was different to the present case. I accept that there is a distinction between that case and the present but nevertheless am left
with the position that there was no version of events before the Court which would
4 Richmond & Ngaronoa v Police [2013] NZHC 356.
have supported the submission that no assault took place or that it was not proved beyond reasonable doubt.
[15] In any event I note that s 232(2) of the CPA applies:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
...
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[16] In this case, given the evidence on the record before the Court, if it could be said the Judge erred by failing to expressly identify which of the three versions he preferred, it has not led to a miscarriage of justice as required by that section. I am satisfied on the review of the record before the Court that Mr Kapene assaulted the complainant. On that basis the conviction is supported.
[17] I turn to the second ground of appeal, namely that the appellant Mr Kapene was entitled to rely on s 56 of the Crimes Act. Mr Donnelly drew the Court’s attention to the version of events given by the complainant at trial, when she said she had been pushed by Mr Kapene and that in the course of that pushing somehow she
ended up with a cut to the lip. He referred to the obiter comments of Priestley J in the case of Ruwhiu v NZ Police whether Parliament would have envisaged the defence being removed merely because of the infliction of a minor bruise.5
However, I consider the injury to the complainant’s lip in this case to be rather more than the minor bruise contemplated by the Judge in that case. Further, in Taueki v R the Supreme Court has recently discussed the application of s 56, noting that it is a limited right and importantly that:6
[i]t sets a limit on the nature and extent of force that can be used, which is reasonable force for the purpose of preventing a trespass or removing a trespasser, but striking or doing bodily harm to that person is not authorised.
...
[18] In its discussion the Court cited with approval the previous decision of the House of Lords in R v Jones which expressed caution to the use of force by ordinary citizens in applying remedies of self-help.7
[19] Accepting for present purposes that Mr Kapene was entitled to use some reasonable force to remove the complainant from his property he was not entitled to strike her or to do bodily harm to her. I note that while bodily harm is not defined in the Crimes Act, as this Court directs juries regularly and as the House of Lords in
DPP v Smith said “bodily harm” should be given its natural and ordinary meaning.8
It appears to be less serious than an injury in terms of the Crimes Act because an injury is defined as “actual bodily harm”. Further, actual bodily harm has been defined as hurt or injury calculated to interfere with the health or comfort of the victim. It need not be of a permanent character, nor need it amount to maiming, disfigurement, or disablement but it must be more than merely transitory and trifling.
[20] In the present case the complainant’s lip was cut. The photograph confirms the extent of the scratch or abrasion. The only evidence as to the appellant Mr Kapene’s view of it, appears to be from the complainant where she said that he told her she should come inside and clean her lip up. The lip was still bleeding when the
constable arrived. It was rather more than the minor scratch submitted on behalf of
5 Ruwhiu v NZ Police HC Auckland CRI-2008-404-0259, 22 December 2008.
6 Taueki v R [2013] NZSC 146 at [38].
7 R v Jones [2006] UKHL 16.
8 DPP v Smith [1961] All ER 161 (HL) at 171.
the appellant. I accept the Crown submission that it could, on one view of it, be regarded as a wound.
[21] In the circumstances s 56 was not available to Mr Kapene and the Judge properly rejected it. It follows that the appeal against conviction must be dismissed.
Appeal against sentence
[22] That leaves the appeal against sentence. Mr Donnelly submitted the Court should take the most favourable view of the events, given the Judge failed to identify which of the events led to the conviction and submitted that 150 hours community work was in the circumstances excessive. He submitted that a conviction and discharge was appropriate.
[23] I am unable to accept that submission. This was, on any view of it, an incident of domestic violence. I accept the Crown submission that without more, a sentence of 50 to 75 hours community work would have been available to the Court as a sentence. In the present case, the appellant’s past record counts against him and would support an uplift to that sentence. While the appellant has a number of convictions that are not relevant he also has convictions that are relevant and that show a propensity on his part to violence. He has convictions in the past for assault, including male assaults female, threatening to kill and wounding with intent to cause grievous bodily harm, added to which he was at the time of this offending subject to a sentence of home detention.
[24] In the circumstances an uplift was justified. It may be another Court would not have uplifted the sentence to 150 hours community work. The sentence can be described as at the top end of the range but it is not a sentence which this Court considers to be manifestly excessive so that it justifies interfering with it on appeal.
[25] The appeal against sentence is also dismissed.
Venning J
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