L v Police HC Tauranga CRI-2010-470-29

[2010] NZHC 2071

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2010-470-29

BETWEEN  L

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 November 2010

Appearances: Appellant in person

J C O'Brien for the Respondent

Judgment:      4 November 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

J C O’Brien, Crown Solicitors, P O Box 13063, Tauranga Central 3141. DX HP40041
Fax: [phone]

Copy to:

Mr T L  , 308 Cambridge Road, Tauranga 3110

L V NEW ZEALAND POLICE HC TAU CRI-2010-470-29  4 November 2010

Introduction

[1]      On 15 July 2010, at the conclusion of a defended hearing in the Tauranga District Court before Judge Rollo, the appellant was convicted on one count of male assaulting  a  female  (s 194(b)  of  the  Crimes  Act  1961)  and  one  charge  of intentionally damaging a television remote (laid under the Summary Offences Act

1981).

[2]      The appellant was sentenced by the Judge to 150 hours community work. Given the somewhat fraught background to the offending the Judge declined to make any reparation order.

[3]      The person whom the appellant assaulted was Ms Joanne Brady.  Ms Brady and  the  appellant  have  a  past  history.    It  is  very  clear  from  the  appellant’s submissions that, during a period when he was effectively Ms Brady’s care-giver he devoted a lot of time and emotional energy to assisting her.   She, on previous occasions in writing, has been highly complementary about the assistance she has historically received from the appellant.   At that level the appellant is clearly still emotionally engaged.

[4]      The offending took place on 26 April 2010 in a house bus in which Ms Brady lived.  In the previous few weeks there had been a number of incidents which have caused considerable loss to the appellant which he, with some justification, regards as being life changing.

[5]      In short, Ms Brady appears to have stolen or converted the appellant’s car in February 2010.    She  did  this  in  a  situation  where  she  had  had  some  romantic attachment with another man.  I note that the appellant’s stance is that he was never romantically involved with Ms Brady and, for the purposes of this appeal, I accept that.   At around 10 am in the morning Ms Brady, whilst she was driving the appellant’s car, was involved in an accident.  The car, worth approximately $10,000, was written off.  At the time Ms Brady was intoxicated.  As a result the appellant at the moment has no insurance cover and is bereft of a motor vehicle.

[6]      The appellant has taken a number of steps relating to the February 2010 driving incident and to the prosecution, all of which are designed to vindicate him to some extent.  There have been complaints against the police who were not prepared to prosecute Ms Brady for the theft of the motor vehicle.  There have been ongoing issues between the appellant and his insurance company.  He has also complained to the New Zealand Law Society about the Tauranga practitioner, Mr J Smylie who defended him at the hearing before Judge Rollo.

[7]      I mention these matters solely to show that I am aware of the context within which the appellant is operating.  It is very clear that the Judge too was aware of this unfortunate background.

The prosecution and appeal

[8]      The central plank of the appellant’s perception is that, particularly in matters of credibility, he by any stretch of the imagination, is a better person than Ms Brady. I do not assess the appellant in saying that in an unkind or cruel way.  Rather he is making the point that, for the purposes of the hearing before the Judge, he should have been regarded as a more reliable witness than she.   There is also some significance in the fact that in the past the appellant has been a victim of assaults on him by Ms Brady, one of which led to her being prosecuted and diverted in 2009.

[9]      I am obliged to mention that the appellant, now aged 31, has a regrettably long list of convictions which include some property offences involving dishonesty and cannabis related offences.   He also has two previous convictions for assault (2007 and 1998) for which he has mitigating explanations.

[10]     As I have explained to the appellant and as he accepts, the ability of an appellate court to reverse findings of fact made by a trial court are somewhat limited. I only have the ability to interfere with Judge Rollo’s findings and resulting conclusions if it is apparent to me his findings were not open to him or were in some way misplaced or perverse.

[11]     The two limbs of the appellant’s appeal against conviction are first that the Judge did indeed get it wrong in his findings of fact.   The second limb is one of counsel’s competence directed against his trial counsel, Mr Smylie.

[12]     I  am  impressed  by  the  way  in  which  the  appellant  has  presented  his submissions today.  His written statements contained some rather flowery language, particularly his description of the prosecution case against him.   He described it (politely in his view) as libellous.  He has also, possibly unwisely, used such words as corrupt, misleading, wrongful, unwarranted, spurious, and anachronistic. Nonetheless, having listened carefully to the appellant and engaged in a productive dialogue with him, I can understand the emotional basis which has driven him.

[13]     I do not need to set out in any detail the evidence which the Judge heard.  The significant witnesses were the complainant Ms Brady and the appellant himself.  The prosecution case in a nutshell, so far as the assault was concerned, was that even though he is aware that the police were on the way, the appellant entered Ms Brady’s house bus to retrieve a painting.  During the course of the inevitable physical tussle which flowed from Ms Brady trying to evict him from the house bus Ms Brady’s head and/or hair seems to have gone into a sink filled with water.  The appellant’s foot was placed on her stomach (or possibly her chest).  The couple rolled together on the floor; a television set which was standing on a table was dumped on the floor by the appellant in some proximity to the plaintiff’s head; and the remote (which the appellant tells me was not Ms Brady’s property at all) was flung away.

[14]     The evidence of Ms Brady was fairly succinct and to the point.   I note in particular with regard to alleged damage to a tooth, Ms Brady’s brief of evidence, which she gave to the police, did not contain any mention of that.   However, her brief does give consistent evidence relating to the remote, the television and her head being pushed into the water in the sink.

[15]     The appellant too gave evidence at the trial.  He gave his version of events. Having read the transcript it is clear he gave his evidence fairly fully.  He admitted to being upset and to a number of phases of the dispute on the evening in question.  He

pointed out that his shirt was ripped to shreds and that he too was assaulted during the course of the tussle.

[16]     The Judge, to a very large extent, was faced with the classic conflict of evidence between the two proponents.  In the operative part of his judgment ([20]- [21]) the Judge made the following important findings:

•He  accepted  Ms  Brady’s  evidence  that  she  was  trying  to  exclude  the appellant from the house bus.

•    In some areas he regarded the appellant’s evidence as being unreliable.

•He found that the appellant during the struggle did indeed push Ms Brady back into the area where the sink was and did push her head into the water in the sink (there is no positive finding from the Judge which supports the complainant’s evidence that her head was pushed under the water.

•He found the act of pushing her head into the sink a deliberate act on the part of the appellant rather than an accident.

•He  rejected  the  appellant’s  account  that  he  placed  the  television  on  the ground because he was concerned about the complainant’s well being.

• He found that the appellant at some stage had placed his foot on the complainant’s chest to hold her down.

•He  accepted  the  evidence  of  the  complainant  that  the  remote  had  been smashed against the television set.

•He rejected the appellant’s account (repeated today before me fairly extensively), that the prosecution and Ms Brady’s complaint to the police was to some extent a deliberate ploy or strategy to extract revenge for the mishap involving the appellant’s car.

[17]     The Judge on that basis, and in the light of his findings, was satisfied both offences had been proved beyond reasonable doubt.   He convicted the appellant accordingly.

Decision

[18]     I perfectly understand the appellant’s perception that he has been hard done by in this particular situation.  I also have some sympathy with his stance, that given the history of his dealings with Ms Brady and in particular Ms Brady’s conduct around the accident she had whilst driving his motor vehicle when intoxicated, that the appellant has had many misfortunes heaped upon him which can  properly be laid at the door of Ms Brady.

[19]     Those matters, however, cannot be regarded as some form of justification or defence to the events which took place in the house bus on 26 April 2010.   In fairness to the appellant he did not run the case that way although I have little doubt that at a subconscious level they influence his perception of his plight.

[20]     Having given careful thought to Judge Rollo’s judgment; having listened carefully also to the appellant’s submissions; and having perused the notes of evidence I am satisfied that the Judge has not misdirected himself.  I can see no basis for interfering with his findings.  That assault took place and the Judge’s findings in that regard were correct.

[21]     Turning to the second limb, of counsel competence, it is very clear that Mr Smylie cross-examined the complainant effectively.   He also led the evidence in such a way so the appellant could bring his story out.

[22]    Mr Smylie has been obliged to file two affidavits in this appeal at the respondent’s request.  One of the difficulties  in the way of a full frontal attack on Ms  Brady’s  credibility  and  reliability  was  the  risk  that  this  might  expose  the appellant to cross-examination, when he gave evidence, about his previous convictions involving dishonesty.  I accept that this was a factor which Mr Smylie had to weigh.   I also agree with Mr Smylie’s judgment that many of the matters

which the appellant wished to place before the Court by way of background were clearly inadmissible given the fairly narrow compass of the two charges the appellant faced.  To some extent it is a credit to Mr Smylie and also perhaps to the humane approach of the Judge that so much of the background information was placed before the Court at the July hearing.  I do not consider that a different result would have flowed had the case been run a different way nor is the result attributable to any shortcomings of counsel.

[23]     It thus follows, so far as the appeals against conviction are concerned, they must fail.  They are accordingly dismissed.

[24]     So far as the appeal against sentence is concerned, in terms of which the appellant  is  challenging  the  150  hours  of  community  work,  the  appellant  is concerned  about  his  health.    He  is  on  opiates  at  the  moment  for  kidney  pain. Although there is some evidence that he has been gainfully employed on a part time basis as a gardener it is unclear to me whether that work is still available to him. Without a car the appellant is somewhat constrained in what he can do.  He tells me that surgery for removal of another kidney stone is imminent.

[25]     It seems to me that the appellant has skills, both as a caregiver and possibly in the electronic/computer area.  It would be my hope that so far as community work is concerned he can be productively engaged so that his clear talents in caring for other people can give him some useful outlet.

[26]     The appellant’s submission to me was that he would much prefer a sentence of home detention.   However, given the hierarchy of penalties set out in the Sentencing Act it would not be proper, particularly on a sentence appeal, to impose a more restrictive sentence than community work.

[27]     Given the previous criminal history of the appellant, and I note he has been sentenced to community work/service on a number of occasions over the past 12 years, I do not think by any stretch of the imagination Judge Rollo’s sentence can be regarded as manifestly excessive.   For these reasons, therefore, the appeal against sentence is similarly dismissed.

Concluding comment

[28]     It would be my hope that the appellant, who I assess is still very much aggrieved by what has happened to him, can accept that so far as this episode in his life is concerned he is very much at the end of the road.  Keeping alive complaints against the police, Mr Smylie, and indeed against Ms Brady, are going to make it difficult for him to move on.   I would be upset were the appellant to turn into a querulous litigant.   I am impressed by his intelligence, by his clear concern for others, and, given that he has no legal skills, the restrained way he has advanced his appeal today.   I hope that he has the good sense in the future to build on those positive qualities of his character which are clear to me.

.......................................… Priestley J