L v Police HC Auckland CRI 2008-404-310

[2009] NZHC 1137

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-310

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 August 2009

Appearances: Mr King & Mr Haskett for appellant

Ms Pidgeon for respondent

Judgment:      27 August 2009 at 12.00 noon

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 27 August 2009 at 12 noon pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

L V POLICE HC AK CRI 2008-404-310  27 August 2009

[1]      On 17 September 2008, L   was convicted by District Court Judge Field on one charge of threatening to kill (s 306(a) of the Crimes Act 1961) and was sentenced to pay a fine of $750 and ordered to pay Court costs of $130.  On the same day, A L   (M L  ), R L  ’s father, was convicted of the same offence.   Both charges concerned the same alleged victim and arose out of broadly the same set of circumstances.  The charges against the two men were heard together.

[2]      R L   now appeals Judge Field’s decision to convict him on the grounds that:

(a)      There is no jurisdiction to hear together two informations against two defendants;

(b)Alternatively, it was not appropriate to hear the informations together, so that the procedure adopted resulted in a miscarriage of justice;

(c)There is evidence which was not before Judge Field in the form of an earlier statement to the police made by one of the witnesses at the hearing.  If that evidence had been before Judge Field, he could not have  been  satisfied  beyond   reasonable  doubt   that   the   alleged statement by R L   was made; and

(d)That even on the evidence before him the Judge could not reasonably have been satisfied that the statement made by R L   did amount to a threat to kill.

Factual background

[3]      On the police case the recipient of the threats to kill was Mr Jason Meadows. Mr Meadows and the two defendants were well known to each other prior to the events that are the subject of these charges.  In 2007 interests associated with M

L   and R L   pursued proceedings against Mr Meadows and his interests, alleging that he was asserting and exercising ownership rights in respect of assets owned by the L   interests.

[4]      On 30 November 2007, Mr Meadows was seated at a table at the Vulcan Café in Vulcan Lane, Auckland.  R L   and his father were walking down Vulcan Lane  toward  another  café  when  they  saw  Mr  Meadows.     They  approached Mr Meadows.  Mr Meadows’ account was that R L   said “Meadows you fat prick.  You are dead”.  That statement was followed immediately by a remark which Mr Meadows attributed to M L  , “you are going to squeal like a pig”.

[5]      Mr  Meadows  subsequently  made  a  complaint  to  the  police  about  these events, which led to the swearing of two informations.   The information sworn in respect of R L   alleged that he had threatened to kill Mr Meadows.    The second, in respect of M L  , alleged that he, together with his son, threatened to kill Jason Meadows.

[6]      A defended hearing took place at which both charges were heard together. M L   was self-represented.  R L   was represented by senior counsel. The police called witnesses in relation to both informations including Mr Meadows. Both defendants gave evidence, and R L   called additional witnesses.

[7]      The police witnesses included an eye witness, Ms Karpenko.  She said that she was sitting having lunch on her own at the Vulcan Lane café.   She heard the younger man say “you fat pig.   You are dead”, and the older man say “you will squeal like a pig”, or something like that.  She approached Mr Meadows after the two had walked off and asked him if he was okay.  Mr Meadows responded that he was  not  scared,  but  was  a  “little  bit  scared  for  my  family  and  friends”.    She responded “oh I thought it’s only in my country that scary Mafia people”.  She was challenged by counsel for R L   as to the accuracy of her recall.  She said that although her recall may not be “word and word”, she meant by that that there might be other words as well that were said.  She said that although English was not her first language, she could clearly hear and understand what was said by the two men.

[8]      It  is  in  relation  to  Ms Karpenko  that  R  L    says  that  there  is additional evidence that should be taken into account in determining this appeal. That is evidence of a statement she made to the police that, it is argued, directly contradicted  her  evidence  as  to  her  ability  to  accurately  recall  the  words  she attributed to R L  .

[9]      At the hearing R L   gave evidence.   He denied saying “you are dead”.  He said his remark to Mr Meadows was “how are you going Mr Meadows, you ginger, lying, fraudster prick”.  After he had walked past Mr Meadows he heard his father say “you squeal like a pig”.  It is of significance to the necessary narrative of events that during his cross-examination of Mr Meadows, M L   had put to Mr Meadows  that he (M L  ) had said to Mr Meadows “you squeal like a pig”, rather than “you will squeal like a pig”.

[10]     R L   had previously made a statement to the police.  Its content was consistent with his evidence about his own conduct, but inconsistent with his and his father’s evidence about what his father had said on the day.  In his police statement, which was handwritten by the interviewing police officer, he said that his father had said “you will squeal like a pig”.  At hearing he was cross-examined in relation to this  portion  of  the  statement,  and  explained  the  discrepancy by saying  that  the statement was in the police officer’s handwriting, he found it difficult to read, and he did not concentrate that closely on those words.

District Court Judge’s decision

[11]     The Judge gave combined reasons for convicting both R L   and M L   of the offence, but commenced his reasons by reminding himself of the need to focus on the evidence given in respect of each individual defendant.   He referred to the long running civil dispute between Mr Meadows and the defendants, and said of that:

[4]This litigation culminated earlier in 2007 when the Lyons were, as I understand it,  essentially successful against  Mr  Meadows  and in terms of the judgment of Harrison J, Mr Meadows was found, on certain key issues, to be unreliable and his evidence was rejected by the High Court.  This was in the context of a civil case but of course

on his credibility this was relevant.   I think I have indicated  to counsel at the outset that I accepted that they had every reason to believe honestly, and for all I know reasonably, that Mr Meadows had defrauded them of a considerable sum of money.  This was the background then to the approach made by Mr R L   when he saw Mr Meadows seated at a table at the Vulcan Café in Vulcan Lane on 13 November.

[12]     The Judge reviewed the evidence before him, noting that the police case against M L   was that the words “you are going to squeal like a pig” were a reference to the process by which Mr Meadows would become dead, and that this amounted to a threat to kill because it followed what his son had said.  He said that the evidence of Ms Karpenko corroborated Mr Meadows’ account.   As to her evidence under cross-examination that her recall was not “word and word”, he said:

[12]By that I understood her to mean that there may have been other words  said as  well  which she either  did  not catch  or  could  not accurately be known.

Nevertheless, he was satisfied that Ms Karpenko was clear that the words “you are dead” concluded the remarks attributed to R L  .

[13]     The Judge referred to the evidence that in his statement to the police, R L   had attributed the words “you are going to squeal like a pig” to his father. Although this evidence was not something that could be used against M L  , he said he could take it into account in assessing R L  ’s evidence.

[14]     He summarised the evidence of Mr Simon Judd, who was also a witness for R L  .   Mr Judd is a barrister and has acted for Mr L   during the civil proceedings.  The effect of Mr Judd’s evidence was that Mr Meadows was a difficult individual who had persisted in improperly contacting Mr Judd personally.  Mr Judd described meetings between R L   and Mr Meadows which he had attended. At those meetings both had on occasion lost their tempers and used bad language. The Judge said:

[16]Clearly the events on 13 November 2007 are simply more of the same.

[15]     The Judge then turned to the elements of the charge.  He said:

[22]The law is that the prosecution must prove in this case a threat to kill.  The threat must be made with the intention of influencing the mind of the person to whom it is addressed, in other words had to be taken seriously and not as a joke.  I am perfectly satisfied that having regard to the unhappy relations that the parties had had up to that point that there was clearly no joke involved and that if the words were  said  as  relayed  by  the  prosecution  witnesses,  this  would amount to a threat to kill, firstly by Mr R L   and secondly by Mr M L   who is said to have added onto the comment by R “you will” or “you are going to squeal like a pig”.  That may have been the reason for charging Mr M L   as a party with Mr R L   in the sense that he completed the threat I do not know.

[23]      However, now to formally record my findings of fact.  I am satisfied on the evidence that the words “you’re dead” were used by R whatever it was he said about Mr Meadows immediately prior to that.  There is some difference in the witnesses’ recollection whether the words fat, ginger, prick or other words equivalent were used.  I am satisfied on the evidence of Mr Meadows and more importantly the evidence of Ms Karpenko, who is an independent witness, with no axe to grind here that the words were in fact used.

[24]Similarly, on the same evidence, relying very much as I do on the evidence of Ms Karpenko, I am satisfied that the words used by Mr M L   were “you are going to” or “you will squeal like a pig” that, added onto the statement by Mr R L   in my view constitutes a threat to kill.

…

[26]      I am satisfied the words were said and it was said with the required intention, the charges in each case have been proved and convictions in each case will be entered.

[16]     The Judge proceeded immediately to sentence as previously described.   In relation to R L   the Judge noted simply that he was a first offender and that this was not an unprovoked occurrence.

First ground of appeal: that the Judge erred in hearing charges together

[17]     I address the first two arguments (referred to at paragraphs 2(a) & (b) under this head.   Although in the written submissions filed for R L   it was submitted that the District Court simply did not have jurisdiction to hear multiple charges without consent, during oral argument Mr King did not press that argument. He focused primarily on the argument that in the particular circumstances of this case,  the  District  Court  Judge  should  not  have  heard  the  informations  together

without first addressing himself to the potential prejudice to R L   arising from that procedure.   Mr King argued that had he done so the potential prejudice would have been plain, and that as the trial unfolded there was actual prejudice to his client.  This was so for two reasons.  First, even if the Judge was satisfied that the words “you are dead” were used, the joint trial closed off the possibility of a defence line that it was not R L  , but rather his father who had said “you are dead”. Secondly, and more significantly, the hearing of the charges together caused an inherently unfair focus to develop upon what R L   remembered his father having said.   The Judge expressly referred to this issue in the course of rejecting R L  ’s account of what occurred.

Discussion

[18]     The case law is not consistent as to whether the District Court has jurisdiction to hear multiple summary charges together without consent.  Cases in support of the proposition that there is no jurisdiction are Reilly v Police [1967] NZLR 842, Transport Ministry v Maud [1975] 1 NZLR 97, Collector of Customs v Woolley [1980] 1 NZLR 417, Hodges v Police (1987) 2 CRNZ 652 and Thomson v Attorney- General [1996] 1 NZLR 21 (CA).

[19]     The above decisions are based on the premise that s 16(1) of the Summary Proceedings Act necessarily implies a limitation on the jurisdiction to hear multiple charges.  Section 16(1) provides:

Information to be for one offence only

(1)Except where it is otherwise provided by any Act, every information shall be for one offence only:

Provided that an information may charge in the alternative several different matters, acts, or omissions if these are stated in the alternative in the enactment under which the charge is brought.

[20]     In obiter comments in Collector of Customs v Woolley (repeating his findings in Maud), Cooke P explained this interpretation of s 16 as follows at 420:

In general a Court of summary jurisdiction may hear only one charge at a time.  In  part  that  principle  is  embodied  in  s  16(1)  of  the  Summary

Proceedings  Act,  which  lays  down  that,  except  where  it  is  otherwise provided by any Act, every information shall be for one offence only. A proviso to the subsection allows an information to charge in the alternative several  different  matters,  acts,  or  omissions  if  these  are  stated  in  the alternative in the enactment under which the charge is brought. The statutory requirement that in general every information shall be for one offence only goes  back  in  the  United  Kingdom  to  the  second  of  Jervis's  Acts,  the Summary Jurisdiction Act 1848, s 10.

Other provisions of the  New  Zealand  Act  of  1957  harmonise  with  that restriction. For instance the power to amend an information during the hearing, conferred by s 43, contemplates the substitution of a charge (and re- pleading) but does not refer to the addition of an alternative charge. An alternative charge could only be added by amendment, I think, in a case within the exception or the proviso in s 16(1). Section 3(1), in applying certain provisions of the Crimes Act 1961 to summary proceedings, does not import from the Crimes Act s 337 (attempt proved when crime charged), s

338 (crime proved when attempt charged), s 339 (part of charge proved) or s

340 (joinder of counts). Section 3(2) does apply ss 337 and 338 to the summary trial of indictable offences, but not ss 339 and 340. Section 132

gives the High Court (formerly the Supreme Court) on appeal power to

amend a conviction by substituting one offence for another in certain circumstances, and see also s 201, but those sections give the District Court no similar powers without authority from the High Court.

The statutory limit on the contents of an information could easily be evaded if it were permissible to hear more than one information against the same defendant at the same time. It has long been recognised that this can only be done with the defendant's consent, and even then care has to be taken to exclude reasonable suspicion that evidence properly relating to one charge only has influenced the decision on the other charge.

[21]     There are also cases supporting the proposition that there is jurisdiction to hear two or more informations together.   These cases are Police v N [1999] DCR

927, Gilroy v Police HC AK A166/01 30 May 2003, Chambers J and McKay v

Auckland District Court [2008] 1 NZLR 133.

[22]     The decisions in this group all post date a decision of the House of Lords in Clayton v Chief Constable of Norfolk [1983] 2 A.C. 473. So too do two of the New Zealand cases in the former group (Hodges and Thompson) but there is no evidence that Clayton was referred to the Court in either of those cases.

[23]     Largely based  on  the  reasons  set  out  in  Clayton,  in  McKay,  Priestley  J concluded that the District Court did have jurisdiction to hear together multiple summary charges, even in the absence of a defendant’s consent.   He was of the opinion that s 16 of the Summary Proceedings Act was intended to prevent duplicity

in an information and that there was nothing in the section to suggest that the Court did not have jurisdiction to hear two informations together.  For the reasons carefully examined  in  McKay,  that  I  do  not  intend  to  recite,  I  have  reached  the  same conclusion.

[24]     In Clayton the Court said that even where two or more defendants were charged on separate informations, but where the facts were connected, those informations could be heard together.  At page 492 the Court said:

Absence of consent, either express where the defendant is present or represented and objects or necessarily brought about by his absence or the absence of representation, should no longer in practice be regarded as a complete and automatic bar to hearing more than one information at the same time or informations  against  more  than one  defendant  charged  on separate informations at the same time when in the justices’ view the facts are sufficiently closely connected to justify this course and there is no risk of injustice to the defendants by its adoption.  Accordingly the justices should always ask themselves whether it would be fair and just to the defendant or defendants to allow a joint trial.   Only if the answer is clearly in the affirmative should they order joint trial in the absence of consent by or on behalf of the defendant.

Was there consent in this case?

[25]     At paragraph 2 of his reasons the District Court Judge says:

These charges are being heard inevitably together by consent.

[26]     It is important to observe that R L   was represented by senior and experienced counsel in the Court below.   Nevertheless, R L   has filed an affidavit in which he says that he did not consent to the hearing together of these charges, nor did he instruct his counsel to so consent.  Anticipating that the police may  wish  to  challenge  this  assertion,  he  has  waived  lawyer  client  privilege  in relation to communications with his lawyer.  At the hearing of this appeal counsel for the respondent took a pragmatic approach to the issue.  She said she was content for this appeal to proceed upon the basis that Mr L   did not consent, did not instruct his counsel to consent to the matters being heard together and that there was no consent.  Given that factual concession, I propose to consider this appeal point on

the basis of the assumption that there was no consent, but that the District Court

Judge, perhaps understandably in the circumstances, assumed consent.

[27]     It seems clear from the record that prior to the commencement of the trial, there was no discussion as to the fairness and the practicalities of hearing the two charges together.  It is also clear that little thought was given to the procedure to be followed.  During the course of the hearing there was confusion as to who had rights to cross-examine whom.   The District Court Judge conducted the hearing on the basis that neither R L   nor M L   had rights to cross-examine each other, although the Judge did allow M L   to ask a few questions of his son. He, however, allowed M L   to cross-examine other witnesses called by his son.

[28]     In considering this appeal point I am conscious that I am proceeding on the basis of the respondent’s concession that R L   did not consent to the informations being heard together, but that is the basis on which the appeal must be considered.  In the absence of consent the Judge was required to consider whether it would be fair and just to proceed to hear the informations together.  He did not do so. That is not the end of the matter, however.  I bear in mind that if the procedure was nevertheless fair and just, then the appeal cannot succeed as there will have been no miscarriage of justice.  This was a Judge alone hearing.  The District Court Judge expressly directed himself in the course of giving his reasons, that he must take care to ensure that he did not focus on the evidence given in respect of each individual defendant.  It was submitted to me for R L   that there can be no confidence that the Judge in fact carried this intention into effect, since he gave joint reasons for entering  the  two  convictions.     Nevertheless,  the  District  Court  Judge  is  an experienced District Court Judge and absent indications that he ignored his own directions to himself, I am satisfied that the Judge did follow that direction.

[29]     The alternative submission for R L   I think has more force.  That is that the hearing together of the two informations created prejudice for R L   that no amount of judicial direction could correct.   R L   was not only a defendant in the proceedings, he was also a witness to the events that occurred involving his father.   He made a police statement which gave an account which

supported the prosecution case against his father.   The only significant difference between his statement to the police, and his evidence, centred on what his father had said to Mr Meadows.  A significant focus of the cross-examination of R L   was on that inconsistency.  In fact, that portion of the cross-examination comprises almost a half of the cross-examination of R L  .  M L   was also cross- examined to some effect in relation to his son’s statement to the police.

[30]     In  light  of  this  I attach  significance  to  the  following  passages  from  the

District Court Judge’s reasoning:

[13]I  heard  other  evidence  from  prosecution  witnesses,  in  particular there was evidence of Constable Osborne who interviewed Mr R L  .   He took a written statement from him.   It was essentially a question and answer interview.   The record of the interview seemingly was read by Mr R L  , I say seemingly because there was a statement recorded at the bottom of the last page, “I read this statement it is true and correct to the best of my knowledge”.    In  that  statement  Mr  R  L    acknowledges saying  the  words  “how  you’re  going  you  ginger  little  fraudster prick”.  He also attributes the words “you are going to squeal like a pig” to Mr M L   in the course of that statement.

[14]I record that that is not evidence that can be used against Mr M L  , a statement of R is evidence  in respect  only of  his involvement and has not been adopted, indeed, has been refuted by Mr M L  .  It can however affect issues of Mr R L  ’s credibility when I contrast that remark with the other evidence that I have heard from Mr Meadows and from Ms Karpenko about Mr Meadows’ going to be “squealing like a pig” – in other words reference to a future event and not, as Mr M L   would have it, with reference to Mr Meadows’ habit of squealing to authorities like a  pig  in  the  course  of  the  evidence  given  in  various  Court proceedings.

[31]     It is a conclusion which seems to me to be unavoidable that the issue of what M L   said to Mr Meadows assumed a prominence in the hearing of the information against R L  , and subsequently in the course of the Judge’s reasoning process, that it would not have if the information been heard separately.

[32]     I also regard as invidious that in the course of defending himself, R L   became embroiled in defending his father.   Again, that situation would not have arisen if the informations had been heard separately.  In the context of a joint hearing, with uncertainty as to the cross-admissibility of evidence, and with the

particular issue being so vigorously pursued in cross-examination, R L   would no doubt have felt that repeating the account he gave in his police statement would harm his father’s defence.

[33]     It is significant then that the Judge’s key finding on credibility in relation to R  L   is  based  upon  R  L  ’s  attempt  to  defend  his  father.    An attempt I consider that he would likely not have made, and that he would not have been called upon to make, had it not been for the two informations being heard together.   The risk of that type of prejudice should have been apparent at the commencement of the hearing.

[34]     Finally, it is not clear why the particular approach as to who had rights of cross-examination was followed.  If the informations were to be heard together then it would seem sensible that the procedure of a joint trial should be followed.  Instead some hybrid situation seems to have been settled upon.  That issue and the issue of admissibility of evidence between counts should have been discussed with counsel at the outset. It is not clear what impact the procedure adopted in relation to cross- examination had on the trial, but is perhaps symptomatic of the fact that the implications of hearing the informations together was not thought through.

[35]     For the above reasons I find that this ground of appeal is made out.

Third ground of appeal: Ms Karpenko’s evidence

[36]     Given  the  finding  on  the  first  ground  I  do  not  intend  to  consider  this additional ground as it in no way determines the outcome of the appeal.

Fourth ground of appeal: elements of offence of threat to kill not made out

[37]     The offence of threatening to kill is created by s 306 of the Crimes Act 1961 which provides in material part:

Every one is liable to imprisonment for a term not exceeding 7 years who - (a)      Threatens to kill or do grievous bodily harm to any person.

[38]     The  actus  reus  of  the  offence  is  the  making  of  the  threat,  which  is  the expression of an intent to kill or to do grievous bodily harm to a person:  R v Adams [1999] 3 NZLR 144.

[39]     The mens rea required is an intention that the threat be taken seriously (or be taken as a threat which may be carried out).  An actual intent to carry it out is not necessary.  (Adams, 147).

[40]     The Judge was satisfied that the words “you’re dead” were said, and in light of the unhappy relations to that point, that they were clearly not a joke, and that if said, did amount to a threat to kill.  What the Judge failed to address in his reasoning process was the inherent ambiguity in the words; “you’re dead” could as well mean you will be dead, as “you are finished”.  In the context of on-going disputes between the parties, the latter was as likely a construction of the words as the former.  As the Judge himself remarked, based on the evidence of the witness Mr Simon Judd, the events on that particular day were “simply more of the same”.

[41]     Even if it is accepted that R L   did say the words, I consider that, given the context of previous relations between the parties (including the exchange of verbal abuse and on-going litigation between the parties), and given the inherent ambiguity in what  R  L    said, the  Judge  could  not  be  satisfied  beyond reasonable doubt either that the words were a threat to kill or that R L   intended Mr Meadows to understand that it was a threat that might be carried out.

[42]     Given my findings in relation to the first, second and  fourth grounds of appeal, the appeal is allowed.  I have decided not to exercise my powers under s 131 to remit the matter for rehearing.  Instead, the conviction and sentence are quashed and I make no further order.

Winkelmann J