Knuckley v Police
[2017] NZHC 2712
•6 November 2017
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2017-443-27 [2017] NZHC 2712
BETWEEN PHILIP FREE KNUCKEY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 31 October 2017 Counsel:
J Hannam for Appellant
J E Bourke for CrownJudgment:
6 November 2017
JUDGMENT OF WILLIAMS J
[1] Mr Knuckey faced trial on 16 charges relating to violence against his then partner, firearms and minor drugs possession.
[2] At the commencement of his trial before Judge Harrop in the New Plymouth
District Court, Mr Knuckey pleaded guilty to four of those charges:
(a) unlawful possession of a sawn-off single barrel shotgun and ammunition; and
(b) possession of cannabis; and
(c) unlawful possession of 10 rounds of nine millimetre ammunition for a
Luger pistol.
KNUCKEY v NEW ZEALAND POLICE [2017] NZHC 2712 [6 November 2017]
[3] Mr Knuckey was then discharged at the end of the prosecution case in relation to possession of a butterfly knife with intention to injure as there was no evidence to support the charge.
[4] Eleven charges then went to trial and Mr Knuckey was convicted in relation to eight of them as follows, in date order:1
• 11 May 2016 – threatening to kill the complainant (CRN 1807); and using a firearm in committing an imprisonable offence namely threatening to kill the complainant (CRN 1808).
• 3 June 2016 – threatening to kill (CRN 1811); and male assaults female
(CRN 1812).
• 11 June 2016 – assault on the complainant using a baton as a weapon
(CRN 1531).
• 27 November 2016 – assaulting the complainant using a pistol as a weapon (CRN 2986); unlawful possession of a firearm (pistol) (CRN 2987); and breach of protection order (CRN 2989).
[5] Judge Harrop sentenced Mr Knuckey to a total sentence of four years nine months’ imprisonment with respect to those charges and the four charges to which he had already pleaded guilty. No real issue is taken with sentence. The appeal is essentially a conviction appeal with a sentence appeal to allow for adjustment to final sentence if the conviction appeal is partially successful.
The judgment
[6] At the outset, the Judge acknowledged Mr Knuckey’s admission that he had threatened to kill in numerous text messages. Mr Knuckey said they were not to be taken seriously. Mr Knuckey said that was simply the way he expressed himself in
texts. Mr Knuckey acknowledged only one assault on the complainant but this was not covered in any of the charges.
[7] The Judge then dealt briefly with the question of standard and burden of proof. He reminded himself of the tripartite responsibility where, as in this case, the defendant gives evidence. He reminded himself also that each charge is a separate trial. He acknowledged further in this case the relationship between Mr Knuckey and the complainant was characterised by extensive methamphetamine use, and he recorded the position as follows:
Self-evidently [the complainant’s] admitted methamphetamine use during this period and indeed during the incidents gives rise to a real question about the reliability of her evidence. It also does the same in respect of Mr Knuckey’s accounts because she said that both of them were under the influence of methamphetamine during these incidents. However, of course, the onus is on the police to prove the charges, not on Mr Knuckey to disprove them or to prove anything. Accordingly, it will be particularly important to look for peripheral aspects of the evidence which support the credibility of the account of either [the complainant] or Mr Knuckey and any circumstantial or corroborating evidence there may be.
[8] As Mr Bourke submitted this was a judicial equivalent of a s 122 reliability warning to the jury.
[9] The Judge then turned to the incidents giving rise to the charges. These were alleged to have occurred on 11 May, 25 May, 3 June, 11 June and 27 November 2016.
[10] The Judge began with the 11 June charges. He said these had the strongest evidence. He recorded on that evening that the pair had an argument in the vehicle
Mr Knuckey was driving. Apparently Mr Knuckey was furious that the complainant had spoken to the police about another matter. The complainant got out of the car as a result of the argument and Mr Knuckey was trying to coax her back into it. He used a baton to do so. He scrapped it on the gravel on the ground and then waved it in front of her face so that she could feel the air disturbance created by the movement but it did not connect. He wielded it like a sword, she said. She said she ran and climbed over a wall to escape him. She hid in the forest.
[11] The Judge recalled the complainant’s evidence that Mr Knuckey walked up and down the road six or seven times with a torch looking for her. After he left, the
Judge recorded, the complainant’s evidence that she walked to a house in the vicinity of the forest and the couple who occupied it let her in. They referred to her as soaking wet and crying.
[12] Mr Knuckey acknowledged the drive and argument occurred but denied being in possession of a police baton. He said she may have confused that incident with an extendable baton that a friend had.
[13] Other evidence, the Judge indicated, corroborated the complainant’s story. Mr Knuckey’s anger about the earlier statement to the police was reflected in a text message he sent on 12 June to a third party about it. In addition, the Judge found that the description about the way the baton was being used was too detailed to be fabricated even though the pair had smoked methamphetamine on the day. It had, the Judge indicated “a ring of truth about it”.2 The further details of hiding in the forest also supported veracity. The complainant said she wished to be absorbed into the ground so not to be noticed. She covered her mouth with a scarf so that her breath could not be seen. These, the Judge considered, were details that were unlikely to be simply made up. They were too real.
[14] Further, Mr Knuckey admitted to having a baton and (the Judge said, indirectly) he also admitted to using it in a manner short of beating the complainant. Further, the police found a baton in Mr Knuckey’s car several weeks later.
[15] The Judge rejected Mr Knuckey’s denial as lacking credibility when seen in context. The Judge then rightly indicated that an assault does not require actual bodily contact. A threat to apply force is enough and he found that was proved beyond a reasonable doubt. He dismissed a charge of threatening to kill also arising from the events of 11 June, on the basis of insufficient evidence.
[16] The Judge then moved to the charges arising on 27 November 2016 to which Mr Knuckey had pleaded not guilty: unlawful possession of a pistol, assaulting the complainant using the pistol, and physically abusing her in breach of a protection order. The Judge once again rehearsed and analysed the evidence.
[17] Despite the fact that the complainant had a protection order in relation to
Mr Knuckey, she visited him at his house bus and, she said, slept on the couch at the other end of the bus until she got cold and climbed into bed with him. She found his gun under her pillow. She described it as metal and black.
[18] At some point Mr Knuckey grabbed the gun and placed it under the complainant’s chin barrel up saying he was going to kill her. And then, according to the complainant, he struck her on the side of the face with it. The complainant said she was caught in a difficult position. She was afraid to leave in case Mr Knuckey (who at that stage was very depressed) killed himself; but if she did not leave, she was afraid he would kill her.
[19] This evidence was corroborated by a text sent at midnight on the 27th saying he wanted to shoot himself, but lacked the courage despite hours of trying.
[20] Mr Knuckey denied the gun incident although he accepted he had BB pistol in his bed. But, he said, that was not the weapon the complainant described.
[21] Notwithstanding this, the Judge noted two items of circumstantial evidence that corroborated the complainant’s story. The first was that the police found
10 rounds of nine millimetre ammunition for a Luger pistol in the house bus. And the second was a series of texts in June in which Mr Knuckey advised various recipients that he was going to shoot the complainant and others. As the Judge noted “overall there is ample evidence of Mr Knuckey both having and threatening to use firearms to harm people with whom he was disaffected.”3 Thus, the Judge used the June texts as propensity evidence. He found the charges proved beyond a reasonable doubt.
[22] The Judge then moved to the events of 11 May. The charges were: threatening to kill and using a firearm when committing an imprisonable offence (threatening to kill).
[23] Once again, the allegation was an argument developed between the pair, this
time while they drove to KFC in New Plymouth. The complainant was in her pyjamas
but said she told Mr Knuckey she would get out of the car despite that. She said her memory was poor and she recalled few of the details. At that point, the complainant was then referred to her police statement of 7 June to refresh her memory about the details of the argument. She then said Mr Knuckey had a gun underneath his seat. She said it was “a cowboy looking thing”. Her evidence then was that Mr Knuckey said he was going to shoot her that night. She said she believed him. He was waving it around and pointing it at her and saying he would kill her. That said, the Judge noted the complainant also admitted that she was (in the Judge’s words) “deeply into her methamphetamine use during May”.4
[24] Mr Knuckey denied these events occurred. He said he did not pull a gun out. In fact he never had one in the car.
[25] The Judge found against Mr Knuckey. He concluded that there was ample evidence that Mr Knuckey had firearms and had in other instances threatened to use them to intimidate the complainant. She also had the distinctive recollection that
Mr Knuckey had said in the course of the argument between them that if she left him it would be a “Romeo and Juliet scenario”. Meaning the Judge concluded,
Mr Knuckey threatened the complainant with a murder/suicide scenario.
[26] The Judge found:5
Notwithstanding her methamphetamine use and her difficulty in initially recalling those details, I consider her account credible and I accept it. It is reinforced by her running away from the car in her pyjamas, something she is most unlikely to have done if not genuinely fearful for her safety. I reject Mr Knuckey’s denials. It may be that there is limited space under the driver’s seat of that particular vehicle [apparently, the onboard computer is located there], but I am satisfied he had the weapon secreted somewhere at hand and produced it to reinforce his threats. It is also of some significance, though not in itself determinative that when asked if he had threatened her, he did not deny having done so, merely saying that he could not recall doing so.
[27] Next, the Judge turned to the charges in relation to 25 May: threatening to kill and male assaults female. They arose from an incident in a side room of a workshop in Waitara. Mr Knuckey became angry and lunged at the complainant. She pushed
him away. He came back at her and she slipped on the wet floor and landed on her back. He then pinned her down with his booted foot to her head, according to the complainant’s evidence. She tried to fight him off but he pushed his foot down harder on her face, she said.
[28] In cross-examination, the complainant accepted that she was probably smoking methamphetamine on the day.
[29] Judge Harrop did not accept that these charges were proved. There was, the Judge noted, no corroborating evidence of injury nor (in contrast to other charges) collateral text messages confirming what had happened in some way.6 He concluded:7
While based on my credibility findings in favour of [the complainant] on other charges, I think it likely events occurred as she said, I am not brought to the position where I am satisfied beyond reasonable doubt of Mr Knuckey’s guilt on these charges and they are both dismissed.
[30] Further charges of threatening to kill and male assaults female arose from an incident on 3 June. The complainant said she slept in her car outside the Highway 61 gang pad that night and in the morning Mr Knuckey knocked on the car window to get her out. After some tense exchanges, she later came inside and had a coffee. An argument developed. The complainant said Mr Knuckey threw her against one of the walls in a side room and threatened to kill her because she was a “lying bitch”. He smacked her on the side of the face and punched her in the head causing her nose to bleed. She said she was very afraid and that his actions were completely unjust because she had done nothing wrong. Mr Knuckey was apparently convinced she had been sleeping with one of his associates.
[31] The Judge referred to corroborating texts. In the early hours of 3 June, there was a text along these lines from Mr Knuckey to the complainant:
I will fucken kill u. U lying fucken piece of shit cunt … y do u fucken lie all the fucken time cunt.
[32] And then at 9.59 am a text from the complainant in these terms:
You just punched me in the head and face AGAIN coz you think I sucked
Jamie’s dick. I’m leavin here in my car and you’ll never see me again.
[33] Further texts along a similar vein were sent the next day and again on the 5th. On the 6th, Mr Knuckey’s text in reply was as follows:
No u got smacked for lying.
[34] On the basis of this material, the Judge did not hesitate to find the 3 June charges proved.
Appeal standard and grounds
[35] As I have said, this is primarily a conviction appeal although there is also a sentence appeal. As to the sentence appeal, Mr Hannam made it clear that that appeal was only relevant if the conviction appeal is wholly or partially successful as this will require a sentence adjustment.
[36] The conviction appeal identifies three grounds:
(a) A miscarriage of justice occurred because the complainant’s evidence in court was based upon a wholly unreliable police statement which she used to refresh her memory. The unreliability arose from the fact that in evidence the complainant accepted that at the time she gave her police statement, she was under the influence of methamphetamine.
(b)The trial Judge reached findings not available on the evidence, which materially affected the decision of the Court causing a miscarriage of justice.
(c) There is now fresh evidence which undermines the complainant’s veracity. That evidence should be admitted on appeal as it is cogent and demonstrates that a miscarriage of justice has occurred.
[37] This appeal essentially attacks the factual findings made by a Judge sitting alone in accordance with the appeal ground set out in s 232(2)(b) of the Criminal Procedure Act 2011. The appellant must therefore demonstrate that the Judge’s
assessment of the evidence was attended by such error that there is “a real risk” the outcome of the trial was affected.
[38] As this Court has noted in Roest v R factual findings that form the basis of a verdict reached by a Judge sitting alone are to be treated on appeal as the equivalent of a jury verdict.8 So where an appeal amounts to a challenge to those findings, the principles in R v Owen will apply accordingly.9 It is well to repeat those.
(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c) The weight to be given to individual pieces of evidence is essentially a jury function.
(d) Reasonable minds may disagree on matters of fact.
(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
(f) An appellant who invokes s 385(1)(a)[10] must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.
[39] It is not for this Court to set aside a verdict on the basis that I disagree with the
Judge’s factual assessment. A higher standard is required to meet the “real risk” test.
[40] As to the proposed new evidence in relation to ground (c), I will address that when turning to that ground.
8 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].
9 R v Owen [2007] NZSC 102; [2008] 2 NZLR 37 at [13] affirming the principles set out in R v
Munroe [2007] NZCA 510; [2008] 2 NZLR 87.
10 Section 385 of the Crimes Act 1961 was replaced by s 232 of the Criminal Procedure Act 2011.
The new section does not materially change the approach to conviction appeals: Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [56].
Unreliable evidence
[41] This argument focused primarily on the charges of 11 May 2015 arising from the events in the vehicle. This combination of charges was the most serious charge faced by Mr Knuckey. The complainant said that Mr Knuckey had obtained the gun used to threaten to kill her from under the driver’s seat. Initially however, she had no recollection of the gun at all and did not mention it in her evidence-in-chief. The complainant repeatedly conceded in answers to the Court that her memory was poor and in particular that her recollection of details was very “sporadic”. In order to refresh her memory, her relevant police statement was given to her. It referred to the gun. The complainant then recalled it, and described what happened incorporating that detail.
[42] And then in cross-examination she made an important concession:
And you’ll also understand that I was under the influence of methamphetamine when those statements were made yea.
[43] This, Mr Hannam submitted, undermined entirely the reliability of the statement upon which the complainant in turn relied in order to recollect the gun.
[44] In my view, the complainant’s reference to using methamphetamine in relation to these statements does not render them fatally unreliable. It is, I accept, possible that the complainant was really saying she was in the grip of methamphetamine at the very time she made the statement, though when her evidence is seen in its wider context this seems unlikely. The complainant says on a number of occasions that May was a period of heavy use. She does not appear to have been suggesting that she was completely out of control on methamphetamine at the time of the relevant statement. And contemporaneous police notes do not record the sort of odd behaviour that one would associate with a methamphetamine high. One would have expected they would. But even if methamphetamine use had some influence on her perceptions at the time (and I simply accept that is a possibility), there is other evidence to suggest that her recollection in that respect at the time of the police statement was reliable nonetheless.
[45] Mr Knuckey admitted having a pistol and indeed was charged with unlawful possession of firearms – in this case a sawn-off shotgun. Further, there was no pistol
actually found, but 10 rounds of Luger ammunition were. That suggests very powerfully that Mr Knuckey did have a hand gun capable of firing bullets and got rid of it. The complainant did say the gun looked like some kind of “cowboy looking thing”. This may have been a misdescription – a Luger certainly does not look like a Colt 45, even to the uninitiated. But the other possibility is that in fact Mr Knuckey had more than one pistol.
[46] The long and short of this is that the surrounding evidence suggests that the detail in the police statement was in fact more reliable than the initial viva voce evidence given by the complainant in court, not less reliable than it. I reject that ground accordingly.
Conclusions not available on the evidence
[47] Effectively, three points were raised. First, Mr Hannam argued that it was not open to the Judge to find that Mr Knuckey possessed and wielded pistols. Although the complainant described the weapons she saw as a “cowboy looking thing” and a black “police-type” gun, the appellant argued these descriptions were vague and no firearms anything like these had been found. The only actual evidence of any gun was a BB gun Mr Knuckey admitted he owned, and it was shown to the complainant during the trial.
[48] I do not accept this argument. There was more than sufficient evidence for the Judge to infer from independent sources that the complainant’s evidence was reliable and able to be believed. Mr Knuckey was found in possession of pistol ammunition. The texts referred to him threatening to shoot himself and putting a bullet in the complainant’s head. This cannot have been a reference to his shotgun. They do not fire bullets. It is much more likely to be a reference to a pistol.
[49] Overall the circumstantial evidence was very much in support of the complainant’s evidence. Each item did not need to be enough on its own to establish proof beyond a reasonable doubt provided that in combination the complainant’s evidence and the collateral evidence got to that point. I am satisfied there was sufficient evidence for the Judge to come to that conclusion.
[50] Then under this heading Mr Hannam suggests it was most unusual for the complainant, if she was genuinely afraid of Mr Knuckey, to go into the house bus, have a pistol pointed to her chin and then calmly go into the dwelling on the property and have coffee with Mr Knuckey’s cousin. It was far too unusual to be treated as reliable evidence of the truth. It was irrational not simply to flee. Perhaps,
Mr Hannam suggested, this reflected drug consumption or, alternatively, there was no assault in the house bus at all. Either way, a reasonable doubt was created.
[51] Once again, I do not accept this. There is ample expert evidence routinely called in courts these days to establish why traumatised intimate partners return to their abusers time and again to be retraumatised. They do not run away. They stay.
[52] The test of truth and reliability is not necessarily rationality in all cases. If it was, the criminal courts would not be quite so busy.
[53] The final argument under this heading related to Judge Harrop’s reliance on text messages to support a number of the charges. Mr Hannam submitted the texts were only evidence of anger and frustration in the relationship. They could not be linked to any particular date and were too generic in nature.
[54] I do not agree with this argument on the facts. A number of the texts were roughly contemporaneous with incidents that were the subject of particular charges. But even if that were not so, as generic indicators of Mr Knuckey’s attitude, aggression and anger directed toward the complainant, they were still supportive of the prosecution case.
New evidence
[55] Mr Hannam produced the affidavit of a Mr Tett. In it, Mr Tett deposed that he had a close familial type of relationship with the complainant and despite that close relationship, she did not tell him about any of the complaints she made to the police, or the incidents that formed the basis of such complaints. This, Mr Hannam submitted, called into question the complainant’s veracity and credibility.
[56] The test of adducing fresh evidence on appeal is well known. The evidence should generally speaking be fresh and not reasonably available at the time of trial – although where evidence is particularly material, that requirement may well be relaxed.11 And it must be cogent.
[57] This evidence does not meet any of the tests. Mr Tett could have been called to give this evidence at the time of trial. But even if he was, it was most unlikely to be treated as decisively cogent. It amounted to no more than “we were close and she would have told me”. This is not necessarily logical at all. There could have been many reasons why the complainant did not do that. She may not have been as close to Mr Tett as he had apprehended. She may have been too embarrassed to speak. She may have wanted to keep it to herself.
[58] Mr Tett’s evidence is not admissible accordingly, and would not have made any difference.
Disposition
[59] The appeal against conviction must be dismissed accordingly. The appeal against sentence is also dismissed as a result.
Williams J
Solicitors:
Julian Cameron Hannam, Barristers & Solicitors, New Plymouth
Crown Solicitor, New Plymouth
11 R v Bain [2004] 1 NZLR 638 (CA) at [22].