Langford v Police
[2015] NZHC 2115
•2 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-101 [2015] NZHC 2115
BETWEEN SHARON LANGFORD
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 10 August 2015 Appearances:
Ms Langford (Appellant) in person
E Rutherford for RespondentJudgment:
2 September 2015
JUDGMENT OF ANDREWS J
This judgment was delivered by me on 2 September 2015 at 4.15pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
Copy to:Ms Sharon Langford, Appellant
LANGFORD v NEW ZEALAND POLICE [2015] NZHC 2115 [2 September 2015]
Introduction
[1] On 9 December 2014 the appellant, Ms Langford, was convicted after a hearing in the Pukekohe District Court before Judge G T Winter, on two charges of making a statement to the police that an offence had been committed, contrary to the fact and without belief in the truth of the statement.1 On 24 February 2015, Judge Winter sentenced Ms Langford to supervision for nine months and 40 hours community work.2
[2] Ms Langford has appealed against conviction and sentence. The appeal hearing focussed on the appeal against conviction. Ms Langford advised that she has completed the community work with the Salvation Army, and is continuing to do voluntary work with the same organisation.
Background
[3] Ms Langford lives on a farm near Tuakau. The charges arose out of confrontations between Ms Langford and the manager of a neighbouring farm, Mr Hunkin. The property is owned by a Mr Lee. The background to the confrontations lies in a long-running dispute between Ms Langford and Mr Hunkin concerning the boundary between the two neighbouring properties.
[4] The confrontations in this case related to an electric fence which Mr Hunkin has erected on the boundary. Ms Langford believes that Mr Hunkin should not have been erecting the fence as proceedings in the Disputes Tribunal relating to the fence were continuing, and she says that she was not given the required notice under the Fencing Act 1978.
The two confrontations – a brief summary
[5] The evidence relating to the two confrontations will be set out in more detail later in this judgment. The first confrontation was on 1 July 2014. Mr Hunkin was
working on the fence and Ms Langford challenged his right to do so. At some point
1 Police v Langford DC Pukekohe CRI-2014-057-1040, 9 December 2014 (“District Court decision”)
2 Police v Langford [2015] NZDC 2811 (“District Court sentencing decision”).
a high tensile wire was let go and it sprung up and hit Ms Langford in her left eye. Shortly thereafter, Mr Hunkin rang the police at Tuakau in relation to the incident.
[6] Ms Langford went to a medical centre in Manukau, where it was recorded on an ACC form dated the same day that she had “contusion” on her left eyeball. The form recorded the “accident” as “assaulted by neighbour with fencing wire on the face, hit the LT eye”. At some stage, Ms Langford also rang the police (Northern Communications) regarding the incident.
[7] The second confrontation leading to a charge was on 4 July 2014. Mr Hunkin was once again working on the fence, installing insulators on outriggers on the fence. He was wearing a “Go-Pro” camera attached to his safety helmet. After that incident two police officers visited Ms Langford at her house, and she went to the Pukekohe Police Station and made a formal statement.
The charges against Ms Langford
[8] Ms Langford was charged under s 24(a) of the Summary Offences Act 1981, that she:
(a) Contrary to the fact and without belief in the truth of the statement made a verbal statement to Constable Jason Lafaele, a police employee, alleging that an offence of assault had been committed; and
(b)Contrary to the fact and without belief in the truth of the statement made a written statement to Constable Erin Fisher, a police employee, and a verbal statement to Sergeant Tod Kirker, a police employee, alleging that an offence of assault had been committed.
District Court decision
[9] The Jude gave an oral decision. His Honour identified the fundamental question for determination as being whether the complaints were fanciful and without reasonable belief in the truth of the statement. In relation to the first incident, the Judge first found that Ms Langford had told Constable Lafaele that
Mr Hunkin had used wire to stab her in her eye, and that she told Constable Lafaele that Mr Hunkin had used a closed fist to punch her in the face, as a result of which she was knocked to the ground.3
[10] The Judge then found that Mr Hunkin had not used wire to stab Ms Langford in the eye, and he had not used a closed fist to punch her in the face.4 The Judge concluded beyond reasonable doubt that Ms Langford had made a false complaint.5
[11] In relation to the incident on 4 July, the Judge held that Ms Langford’s claim
that “she was somehow assaulted by Mr Hunkin has no basis in reality whatsoever.”6
[12] Before sentencing, the Judge called for a psychological assessment of Ms Langford. He adopted the psychologist’s recommendation of a sentence of supervision, to enable treatment to be given aimed at developing insight and strategies to manage Ms Langford’s distress at her situation regarding the boundaries of her property.7 Accordingly, the Judge sentenced Ms Langford to nine months’ supervision, with the conditions set out in the psychologist’s report, and 40 hours of community work.8
Approach on appeal
[13] Pursuant to s 232(2)(b) and (c) of the Criminal Procedure Act 2011, the High Court can only allow an appeal from a Judge-alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”. In s 232(4) of the Act, a miscarriage of justice is defined as any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an
unfair trial or a trial that was a nullity.
3 District Court decision at [10]-[11].
4 At [13].
5 At [16]-[17].
6 At [22].
7 District Court sentencing decision at [8].
8 At [10].
[14] A “real risk” that the outcome was affected exists where “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.9 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is unsafe”, but that there is a real possibility that the verdict would be unsafe.10
[15] The present trial raised issues as to credibility. It is well established that an appellate court should be hesitant to overturn the findings of credibility by a Judge who has had the advantage of hearing the witnesses in court. Despite this, findings of credibility should not be treated as being immune on appeal and the appellate court is still required to undertake a “real review” by way of weighing conflicting evidence and drawing independent inferences and conclusions from the evidence.11
Elements of a charge under s 24(a) of the Summary Offences Act.
[16] The elements of the offence created by s 24(a) of the Summary Offences Act are:
(a) making a statement alleging that an offence has been committed; (b) that is contrary to fact;
(c) without a belief in the truth of the statement.
[17] In McLeavey v Police, Doogue J held that s 24(a) requires that a person has alleged facts which make up an offence. The statement of facts must be untrue and must have been made without a belief that those facts were true.12
[18] In my view, in order to convict a defendant on a charge under s 24(a), the
Judge must identify the following:
9 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
10 R v Sungsuwan, at [110].
11 See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5];
and Ting Ming Hardware Co Ltdf v Yu (2010) 19 PRNZ 683 (HC) at [9].
12 McLeavey v Police HC Wellington AP107/01, 6 June 2001.
(a) the statement that was made, either in terms of the words used or the facts alleged;
(b)the ways in which the statement was false; that is, specific facts that were alleged and were untrue; and
(c) that the defendant did not believe that the facts were true.
[19] A charge under s 24(a) does not, in my view, require the court to determine whether the offence indicated by the alleged facts has in fact been committed. The focus must be on the statement made by the defendant, and on whether the defendant believed that statement to be true.
[20] I turn to address each of the confrontations in accordance with the process set out above.
The first confrontation
Evidence
[21] Ms Langford was charged, in relation to the first confrontation, that contrary to the fact and without belief in the truth of the statement, she made a verbal statement to Constable Jason Lafaele alleging that an offence of assault had been committed.
[22] In his evidence in the District Court as to this incident, Mr Hunkin said that Ms Langford had placed herself up against a fence post around which he was stretching a wire, and grabbed the wire to stop him from doing it. Mr Hunkin then let the wire go and walked away. He said Ms Langford had the wire in her hand. He then rang the police, because he “could see all sorts of accusations and things were going to happen”. He said that when Ms Langford left he rang the police again, and said that she had gone, and there was no need to send anybody out.
[23] Constable Lafaele, who was based at the Tuakau Police Station, gave evidence that on 2 July 2014 he was tasked to deal with a “threats and intimidation”
matter. He said he had four years’ personal knowledge of the ongoing dispute between Ms Langford and her neighbours. He rang Ms Langford on 2 July.
[24] Constable Lafaele said in evidence:
Langford advised me that she wanted police to follow up a complaint she made on the 1st of the 7th 2014 against her neighbour Robert Hunkin. Langford also stated to me that she approached her neighbour Robert Hunkin while he was doing some work on the fence line between the Lee property and her property. While observing at the fence line, Langford alleged that Hunkin used a number eight wire to stab her in the eye. While asking Langford about the details relating to that assault, she stated to me that it left her vision dark and blurry, and that she lost her vision for a few seconds. Langford added to her account that Hunkin used a closed right fist to punch her in the face. Langford stated that she was knocked down to the ground as a result of the punch.
[25] Constable Lafaele said that he strongly advised Ms Langford to make a statement about the alleged matter, and that Ms Langford said she only wanted the police to follow up the incident in relation to Mr Hunkin trespassing on her property, not the assault complaint. Constable Lafaele also said that Ms Langford was alleging that the police were siding with Mr Hunkin. No written statement was taken.
[26] In her evidence, Ms Langford said that when she saw Mr Hunkin working on the fence, she went up to the fence and said “No, you can’t do that, we’ll discuss it in Court”. She said that Mr Hunkin, who at the time was trying to wind the wire around the post, said “No” and let the wire go. She said the wire sprung and hit her in the eye.
[27] Ms Langford said that when she was struck by the wire she got up, and, as she had difficulty seeing, went and sat down. She then went back to her house and was driven to the medical centre at Manukau. She produced a signed certificate, dated 1 July 2014, from the medical centre (an ACC form, which is stated on the form to be intended for “referral Health Providers and Employers”, which records:
Date of accident: 01/07/2014 Time of accident: 02:00 PM Assaulted by neighbour with fencing wire on face, hit the LT eye SE13 (Contusion, eye ball) Left
(SE13.00) Probable
[28] Ms Langford denied that she had made her evidence up, and said she had not lied to Constable Lafaele. She rejected a proposition put to her that the ACC form from the medical centre was not a bona fide document.
[29] Ms Langford said in evidence, in relation to the confrontation that she had said to Mr Hunkin that he could not put a high tension wire above the fence, as it should be discussed in court, and that he had let a wire go and it sprung up and got in her eye. She then went to stand up and was “glary in the eye”, so went and sat down as she could not see out of that eye. Ms Langford was asked if anybody had struck her, or if she had suffered any blow. She replied, no, that her eye was hurting because of the wire.
[30] In cross-examination, Mr Hunkin’s evidence was put to her and Ms Langford responded that Mr Hunkin was holding the wire and it sprung up. As to what she said to Constable Lafaele, Ms Langford denied that she told the Constable that Mr Hunkin had used a number eight wire to stab her in the eye. She said in cross- examination that the wire had sprung up into her eye. She also denied that she had told Constable Lafaele that Mr Hunkin had used a closed fist to punch her in the face. She added that the constable had asked her if it was a punch, to which she responded that she had gone to sit down, and the constable had taken this “into his context”.
Judge’s assessment
[31] The Judge said in relation to this charge:13
[12] To prove these charges the police must satisfy me that such complaints are fanciful and without reasonable belief in the truth of the statements that are made to a constable. I heard from the defendant …..
[13] I am satisfied about two things. Firstly, that Mr Hunkin did not use the number eight wire to stab her in the eye; and secondly, that he did not use a closed right fist to punch her in the face.
13 District Court decision, above n 1 at [12]–[13].
[32] The Judge was fortified in that conclusion by the fact that, notwithstanding the medical certificate recording the “assault by a neighbour with fencing wire”, there were no injuries to Ms Langford’s face visible in the “Go-Pro” footage taken three days later, or seen by police officers.
[33] The Judge concluded:14
[16] Accordingly, the issue for me is whether in her determination to pursue her cause over the boundary dispute the defendant has taken it upon herself to exaggerate and create a charge to get Mr Hunkin and thereby Mr Lee into trouble. I am not only sure, I am absolutely satisfied beyond reasonable doubt that this is the position.
[17] I find that she made this complaint out of a vexatious desire to cause
trouble for her neighbour and for Mr Hunkin. …
Analysis
[34] The Judge clearly identified two allegations made by Ms Langford: that Mr Hunkin stabbed her in the eye with a wire, and that Mr Hunkin struck her with a closed fist. On a review of the evidence, it is apparent that the identification of these allegations was from conclusions drawn by Constable Lafaele, on the basis of Ms Langford’s statement that she was hit in the face when the wire sprang up and (as a result) she sat down. It is at least reasonably possible that this was the sole statement made by Ms Langford, and that the constable incorrectly interpreted it as being two allegations, a stab and a punch, rather than as a single event.
[35] The Judge then concluded that, regardless of Ms Langford’s belief as to how she had been struck by the wire. She had not been punched, and knew as much. He therefore concluded that there was no punch (the statement was false), and that Ms Langford knew there was no punch (she did not believe the statement was true).
[36] Both of these conclusions depend on Ms Langford having in fact alleged a punch, and appear to be based simply on his acceptance of Constable Lafaele’s evidence. On the evidence, I am not able to reach the same conclusion. Ms Langford’s evidence that she only said she was struck by the wire after it sprung
is supported by the medical certificate which records her statement as to an injury
14 At [16]–[17].
caused by an assault with wire. There is no reason not to accept the medical certificate as authentic. On the evidence, it is impossible to be sure beyond reasonable doubt that Ms Langford made a statement that she had been punched with a closed fist.
[37] Then, as to whether Ms Langford believed that she had been struck by wire, her evidence is supported both by the medical certificate recording what she said at her medical centre, and by Mr Hunkin’s evidence that he had been working with the wire, then let it go and walked away. Again, I could not conclude beyond reasonable doubt that Ms Langford both made an untrue statement that she had been struck by the wire when Mr Hunkin let it go, and that she did not believe that statement to be true.
The second confrontation
Evidence
[38] Mr Hunkin said in evidence that on 4 July 2014, Ms Langford came running up to where he was working at the fence line and pushed her body up against his hand as he was trying to twist a wire in place, using a tool with a flat blade. He said that, as a result, the side of Ms Langford’s leg came into contact his body. He said that Ms Langford said “Rape, rape, rape, that’s rape” and she was walked back a bit. He said he stopped what he was doing until Ms Langford walked away.
[39] Mr Hunkin said that a very short time after that, Ms Langford came running in again and stood face-on to him and pushed against the back of his hand while he was trying to place the wire on a post. He said that Ms Langford had her camera out and was taking photos. He eventually took his hand away from the wires. He said Ms Langford followed him along the fence for another five or ten minutes. Mr Hunkin called the police about the incident.
[40] Ms Langford said in evidence that she had gone to the fence to tell Mr Hunkin he should not be doing the work until the Disputes Tribunal hearing was resolved. She said she was coming to the fence, taking photos, and was then
standing at the fence line with her legs right up against the fence. She said Mr Hunkin took an outrigger and came towards her. She said he could have gone to the right or to the left of her legs, but did not. She said Mr Hunkin poked the outrigger ends between her legs on her thigh, at which point she said “You’re dirty”. She said she did not say “rape”. Ms Langford said she felt something touch her thigh, which could have been the outrigger, or Mr Hunkin’s tool.
[41] Ms Langford then made a complaint to the police (Northern
Communications) that Mr Hunkin had touched the inside of her leg.
[42] Sergeant Kirker of the Tuakau Police Station went to Ms Langford’s home after receiving a communication from Police at North Communications. Constable Smith was with him. Constable Smith said they were there to talk about a complaint that Mr Hunkin had touched Ms Langford inappropriately on the leg. Ms Langford then said that she did not want to talk to police officers from Tuakau, and would make a complaint at the Pukekohe Police Station.
[43] Both Sergeant Kirker and Constable Smith said in the District Court that Ms Langford said to them that she was a respectable woman, and that what Mr Hunkin had done was disgusting. Sergeant Kirker said he would contact the Pukekohe Police Station so that a female officer could speak with her. Sergeant Kirker contacted the Pukekohe Police Station to advise that Ms Langford was likely to come in and make a complaint of sexual assault against Mr Hunkin.
[44] Constable Fisher interviewed Ms Langford at the Pukekohe Police Station. She said in her evidence that before Ms Langford came, she was told by the station head that Ms Langford was complaining about a sexual assault. Constable Fisher took a statement from Ms Langford. In that statement Ms Langford said that Mr Hunkin’s hand had touched the inside of her right thigh, but did not move any higher. Constable Fisher agreed that Ms Langford did not make a complaint of sexual assault. She made a complaint of assault.
[45] In her evidence in the District Court, Ms Langford said that what she told
Constable Fisher was exactly what had happened.
Judge’s assessment
[46] The Judge concluded that Ms Langford’s claim that she was assaulted by Mr Hunkin had no basis whatsoever in reality.15 His Honour found that Ms Langford had downplayed the events. He found that the Go-Pro footage showed that Ms Langford had wrapped herself around a fence post.16 The Judge then found that Ms Langford had made what was clearly a complaint of a very serious allegation of sexual assault, which was not truthful, and there was absolutely no possibility of Ms Langford reasonably believing in the truth of her statements.17
[47] The Judge concluded:18
It will be obvious for these reasons that I am satisfied beyond reasonable doubt that there was absolutely no basis in fact for the allegation that was made. There was absolutely no possibility of reasonable belief in the truth of those statements made first to Sergeant Kirker and then to Constable Erin Fisher alleging that an offence of assault had been committed.
Analysis
[48] The Judge concluded that Ms Langford had made a very serious allegation of sexual assault. However, this is not consistent with what Ms Langford is recorded as having said to the Police, which was that Mr Hunkin had touched her leg. She never said to the Police that this had a sexual element.
[49] As Constable Fisher said in her evidence, while she was understood that she was to interview Ms Langford in relation to a sexual assault, because of what she was told by her station head; Ms Langford did not make any such allegation. Equally, it is apparent from the evidence of Sergeant Kirker and Constable Smith that a “sexual assault” was their interpretation, not what Ms Langford actually said.
[50] Accordingly, the Judge could not, in my view, have concluded beyond reasonable doubt that Ms Langford had made a statement to the Police that she had
been sexually assaulted.
15 At [22].
16 At [25].
17 At [30].
18 At [31].
[51] Further, both Ms Langford and Mr Hunkin gave similar evidence: both said that Ms Langford’s thigh was in contact with the back Mr Hunkin’s hand. On the evidence, it could not be concluded beyond reasonable doubt that the statement that Mr Hunkin had touched Ms Langford’s thigh was untrue, nor could it be concluded beyond reasonable doubt that Ms Langford believed it to be untrue.
Result
[52] Ms Langford’s appeal against conviction is allowed, and her conviction on
both charges is quashed. I record that the appeal against sentence was not pursued, as Ms Langford has completed the community work ordered.
Andrews J
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