Lowe v Police

[2022] NZHC 2672

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-485-37

[2022] NZHC 2672

UNDER

Criminal Procedure Act 2011

BETWEEN

LOWE

Appellant

AND

NEW ZEALAND POLICE

Police

Hearing:	5 October 2022
Appearances:	C H Shade and M S Alexander for Appellant L R van der Lem for Police
Judgment:	14 October 2022

JUDGMENT OF McQUEEN J

[1]        On 7 December 2021 Ms Lowe was convicted following a judge-alone trial on one charge of assaulting a child.1 She was subsequently sentenced to supervision on the charge.2

[2]Ms Lowe now appeals her conviction and sentence and seeks:3

1      Police v [Lowe] [2021] NZDC 24136. The maximum penalty for assaulting a child under s 194(a) of the Crimes Act 1961 is two years’ imprisonment. The names of the appellant and the child have been anonymised to protect the child’s identity.

2      Police v [Lowe] [2022] NZDC 20030.

3      Ms Lowe filed an affidavit in support of her appeal dated 13 September 2022. The Police objected to the affidavit as being largely inadmissible other than paragraphs [15]–[18] which related to the opportunity to apply to be discharged without conviction. At the hearing, the appellant indicated that she would rely only on those paragraphs. An affidavit from trial counsel, Mr Dawson, dated 4 October 2022, was filed by the Police. Mr Dawson was not required to be available for cross examination.

LOWE v NEW ZEALAND POLICE [2022] NZHC 2672 [14 October 2022]

(a)for her conviction to be set aside and to be acquitted of the charge;

(b)in the alternative, for her conviction to be set aside and to be retried on the charge; or

(c)if her conviction is not set aside, to be given the opportunity to make an application for a discharge without conviction.

Background

[3]        This is a matter where there is dispute in relation to some key facts as to what occurred on Thursday 11 February 2021 when Ms Lowe and her daughter Sophie were walking home from school. I set out the evidence below, as taken from the notes of evidence from the hearing in the District Court, first setting out the Police case (which relies on the evidence of a Ms Sprozen and a Police Constable) and then Ms Lowe’s evidence.

Ms Sprozen’s/Police version of event

[4]        On Thursday 11 February 2021 at approximately 3.15 pm, a Ms Sprozen saw a small girl (later identified as Sophie) walking quite fast up Devon Street. Ms Sprozen gave evidence that the girl looked quite upset and was crying. Shortly after, she saw a woman (later identified as Ms Lowe) wearing a red singlet, carrying a red tote bag on her right shoulder and something, perhaps another bag, on her left-hand side, walking about 100 metres behind the child at an average speed. Ms Sprozen was about 50 metres from the child at the time.

[5]        Ms Sprozen stated that the woman was talking to herself and she threw an alcohol can into a neighbour’s garden. Ms Sprozen gave evidence that the girl turned around and said something about not being able to watch something when they get home to which the woman replied: “I’ll punch your eyes out”. Ms Sprozen gave evidence that the young girl was running uphill and ‘kind of’ crying. Ms Sprozen described Ms Lowe’s demeanour as aggressive.

[6]        Ms Sprozen was concerned and followed the woman and the child up the hill. She estimated she was 50 metres behind them. At the top of Devon Street, she saw

the woman had a hammer in her left hand and was swinging it in a vertical motion up and down towards her head. The little girl was running ahead and looking back behind her, still crying. Ms Sprozen stated that there was a metre or two between the woman and the child. The woman put the hammer back in her bag and Ms Sprozen ran down the hill to get her partner to call the Police. She later returned to the address she had been told the woman and child lived in. She reported to Police that there had been yelling and screaming inside the property and a loud bang but that it had just gone quiet.

[7]        Constable Peck was dispatched to the incident with another constable. Upon arrival there was no noise coming from inside the address. Constable Peck knocked on the door. A female, fitting the description given by Ms Sprozen answered the door. She was later identified as Ms Lowe.

[8]        Constable Peck reported that his first impression was that Ms Lowe was very intoxicated. He observed that she had incoherent and slurred speech, seemed uncoordinated, and was having trouble holding her balance. He stated that her eyes were bloodshot and glazed over and she smelled of alcohol.

[9]        He noted that Ms Lowe kept repeating that an incident that had taken place between her daughter and another student at the school. He asked Ms Lowe if she had been drinking and she stated she had consumed a couple of beers. Constable Peck decided to detain Ms Lowe for an offensive weapons search. She was asked to point out where the hammer was. Ms Lowe attempted to help Police find it but was unsuccessful. Constable Peck then arrested Ms Lowe for assaulting a child. She was transported to Wellington District Custody Unit and placed in a cell.

[10]      It was decided that Police would give her time to sober up before interviewing her on the charges. At about 8 pm Constable Peck went to speak with her. While at the door of the cell he stated he could smell alcohol again. Ms Lowe had vomited in her cell.

Ms Lowe’s version of events

[11]      Ms Lowe stated she had picked up several grocery items, including beer, from a local dairy before going to Sophie’s school. She and Sophie were walking home at around 3.15 pm. She said she was trying to talk to Sophie who was having a “meltdown” and was frustrated that she could not stay and play in the playground after school. Ms Lowe did not want her to be around a particular boy after school who she stated had assaulted Sophie on prior occasions. She discussed issues Sophie allegedly had at school with bullies.

[12]      Ms Lowe stated that she had a hammer in her bag for blackberry picking—to pull the vines towards her. She was wearing headphones. She opened a beer because she was thirsty and had a dry mouth. She took a few sips and then tossed the beer into a pile of rubbish at an abandoned house because she felt she could not keep up with Sophie while holding a full can.

[13]      She stated she did not tell Sophie she would “punch her eyes out” rather she told Sophie “I don’t feel that you are safe there ‘cos he’ll try and smash your eyes out”. She described the boy as being obsessed with the Incredible Hulk and that he had punched Sophie in the eye before, leaving marks. She said that she was probably “barking” at Sophie as the hill was difficult to climb and she was so out of breath.

[14]      As Ms Lowe lifted her bags to try and fit between a car and a fence, she says her headphones became tangled in her bag and caught around the claw of the hammer. As a result, the headphones came out of her ears. Ms Lowe said she subsequently took the hammer out of the bag and was moving the hammer around to try and untangle the cord of the headphones.

[15]      Ms Lowe explained that she had a variety of health issues which caused her to limp, be disorientated on occasions, have migraines, headaches and vision problems which caused nausea and other issues. She is on an invalid’s benefit. She sometimes wears special glasses to help deal with issues relating to lights. She stated she vomited in the cells because of the temperature and the lighting—she did not have her glasses.

Ms Lowe also said that the reason Constable Peck may have thought her speech was incoherent was because her mouth was so dry due to sinus infections.

District Court decision

[16]      The Judge heard the evidence and then delivered an oral judgment. He first set out the elements of the offence.4 He then noted that much of the evidence was not in dispute but there was conflict about what Ms Lowe said to Sophie and Ms Lowe’s actions with the hammer.5 Given this conflict, he noted that it was necessary for him to assess the credibility and reliability of the evidence.6

[17]The Judge outlined the two versions of events as discussed above.

[18]      He stated that having listened to Ms Lowe’s evidence, he found it to be unconvincing and rejected it as worthy of belief.7

[19]      He considered that Ms Lowe’s evidence was inconsistent in that she said Sophie was having a meltdown as she wanted to stay at school for two hours and play, but also said that the meltdown happened at home.8

[20]      The Judge observed that the statement Ms Lowe said she made to Sophie about her not being safe at school and that “he’ll smash your eyes out” was not put to     Ms Sprozen for her to comment on. However, he said that looking at Ms Sprozen’s evidence, she was a credible witness because she had nothing to gain from being evasive or overstating anything, whereas Ms Lowe’s evidence was overstated and not credible.9 The Judge said that he found the explanation about the headphones and the hammer not credible in the way Ms Lowe described because, given the weight of the hammer, the logical inference would be that it was at the bottom of the bag and therefore unable to get caught up with the headphones in the way she described.10

4      Police v [Lowe], above n 1, at [2]–[4].

5      At [8]–[9] and [16].

6 At [10].

7 At [34].

8 At [35].

9 At [36].

10 At [37].

[21]      Given his rejection of Ms Lowe’s evidence, the Judge put her evidence to one side. He then considered the prosecution evidence and asked himself on the basis of that evidence if he was satisfied the charge was proved.11

[22]      The Judge accepted Ms Sprozen’s evidence as credible, honest, sincere and reliable.12 He noted:13

…Her statement to police and her evidence to me was not challenged in the way [Ms Lowe] suggested it was and therefore I really must accept Ms Sprozen’s version because of her independence. She was detailed in her evidence, she did not overdress her evidence, she made concessions where appropriate, there did not appear to be any embellishing of her evidence, she was quite clear about her evidence, and seemed to be quite frank and sure.

[23]      On Ms Sprozen’s evidence, he was satisfied that Ms Lowe did use the words “I’ll punch your eyes out” and that while those words alone may not constitute an assault, in the context where Ms Lowe was in possession of a hammer, as described by Ms Sprozen, he was satisfied there was an assault by Ms Lowe on Sophie.14

Approach to appeal

[24]      Appeals against conviction are brought under s 232 of the Criminal Procedure Act 2011 (the Act). This Court must allow the appeal if satisfied that the 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.15 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.16

[25]      The Supreme Court in Sena v Police have confirmed that the approach adopted in Austin, Nichols & Co Inc v Stichting Lodestar in respect of civil appeals is

11 At [38].

12 At [40].

13 At [39].

14 At [41].

15     Criminal Procedure Act 2011, s 232(2)(b) and (c).

16     Section 232(4).

applicable to conviction appeals.17 The appeal is to proceed by way of rehearing.18 The appellant is entitled to judgment in accordance with the opinion of the appellate court.19 If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. However, in assessing whether there has been an error, the appellant court must take into account any advantages a trial judge may have had.20 Where the appellant is challenging credibility findings based on contested oral evidence, an appellate court will exercise “customary caution”.21 This is partly because what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record.22

Appellant’s submissions

[26]      The appellant submits that there has been a miscarriage of justice in that the Judge made significant errors in his assessment of the evidence and those errors created a real risk that the outcome of the trial was affected.

[27]      First, the appellant submits that some of the Judge’s conclusions were plainly inaccurate:

(a)The Judge was wrong to find that Ms Sprozen’s evidence established that the hammer was swung prior to the words said to amount to a threat being used.23 Ms Sprozen’s evidence is clear that she saw Ms Lowe swinging the hammer only after she had followed Ms Lowe and Sophie for a period of time, and after she heard Ms Lowe yell at Sophie.

(b)The Judge was wrong to conclude that Ms Lowe’s evidence that the meltdown occurred at home was inconsistent with her evidence that the meltdown had occurred during the walk home after Sophie had said she

17     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

18     Sena v Police, above n 17, at [32].

19     Austin, Nichols & Co Inc v Stichting Lodestar, above n 17, at [16].

20     Sena v Police, above n 17, at [38].

21 At [38].

22 At [40].

23     Police v [Lowe], above n 1, at [22].

wanted to stay at school and play. This is incorrect. Ms Lowe gave consistent evidence that Sophie was having a meltdown during the walk and that this continued at home. This was supported by Ms Sprozen’s evidence.

[28]      The appellant also submits that various comments made and conclusions drawn by the Judge are not logical:

(a)It was illogical for the Judge to consider that the hammer’s weight meant that it would necessarily be at the bottom of the bag and unable to get tangled with the headphones as described by Ms Lowe.

(b)The Judge erred in finding the words Ms Sprozen stated were used by Ms Lowe (“I’ll punch your eyes out”) “caused a reaction”, with Sophie “running uphill and kind of crying”.24 It is not clear from Ms Sprozen’s evidence whether the “running uphill and kind of crying” was a reaction to what Ms Lowe said to her or just the state that the girl was in during her walk up the hill.

(c)The Judge was not “obliged” to accept Ms Sprozen’s evidence because he found her to be a more credible witness, as he considered he was. Ms Lowe submits that, given the distance between Ms Sprozen and Ms Lowe (at least 50 metres) and the negligible difference between the statements each says was expressed, it was open for the Judge to find that Ms Sprozen had heard one thing and Ms Lowe had said another.

[29]      The appellant submits that the evidence given at trial should have given the Judge reasonable doubt as to whether Ms Lowe carried out the alleged assault:

(a)Ms Lowe reiterated under cross-examination that the statement “punch/smash your eyes out” was not made to Sophie. She gave detailed evidence that Sophie had previously been punched in the face by a boy at school which had caused Sophie a lot of distress.

24 At [20].

(b)There was a reasonable explanation for Ms Sprozen’s description of Ms Lowe’s demeanour as aggressive. Ms Lowe gave evidence that she was struggling to walk up the hill, had a sore leg from her health conditions, felt overheated and was carrying multiple bags while trying to keep up with a distressed child. She admitted that she might have been “barking at [Sophie]” because she  was  out  of  breath.  Both  Ms Sprozen and Ms Lowe attested to Ms Lowe being at least 50 metres away from Sophie, in which case Ms Lowe would have had to yell to be heard by Sophie.

(c)Ms Lowe gave detailed evidence as to why she had the hammer (for blackberry picking) and that she removed it from the bag to untangle it from her headphones. Ms Sprozen’s evidence was not inconsistent with Ms Lowe’s account of events, and did not necessarily support that she was using the hammer as a tool or weapon in an intentional way.

[30]      The appellant submits that while the Judge did not set out his views on the relationship between Ms Lowe  allegedly  being  drunk  and  her  credibility,  that  Ms Lowe’s details on her health conditions and the impact they have on her balance, coherence, and ability to keep calm and stable should have factored into his decision making.

[31]      Given the above, Ms Lowe says that the Court should have reasonable doubt that the elements of the offence are made out, should therefore find the charge not proved and acquit Ms Lowe, or direct a retrial.

Police submissions

[32]      The Police submit the Court is poorly positioned to interrogate the factual findings made by the trial Judge. He had the obvious advantage of being able to receive the evidence and to assess the credibility and reliability of each witness as they gave evidence. It is submitted the Court ought to exercise “customary caution” before departing from the clear credibility findings.

[33]      The Police accept that the Judge’s note of the chronology, with the production of the hammer occurring before the “punch your eyes out” threat, was made was incorrect. It is submitted that nothing turns on whether the hammer was swung before or after the threat was made.   The Judge found, on Ms Sprozen’s evidence, that    Ms Lowe threatened Sophie while in possession of a hammer. That essential fact is unaffected by the slight difference in the sequence.

Discussion

[34]      To find Ms Lowe guilty of assaulting Sophie, the Judge had to be satisfied beyond reasonable doubt that Ms Lowe, by any act or gesture, threatened to apply force to Sophie and that she had, or caused Sophie to believe on reasonable grounds that she had, the present ability to carry out that threat.25

[35]      I consider that the Judge made  three  errors  in  reaching  his  finding  that Ms Lowe was guilty of assaulting Sophie.

[36]      First, I consider it is within the realm of possibility that Ms Sprozen misheard the statement by Ms Lowe and that Ms Lowe actually said “I don’t feel that you are safe there cos he’ll try and smash your eyes out”. Ms Lowe reports that she was out of breath when she spoke and Ms Sprozen confirms she was some distance (at least

50 metres) away from  Ms Lowe  when  she  heard  the  alleged  statement.  What Ms Lowe claims to have said and what Ms Sprozen reports to have heard are quite similar in nature and it is possible that Ms Sprozen misheard this statement.

[37]      The Police refer to the affidavit of Mr Dawson, Ms Lowe’s lawyer at trial, and his evidence that he was surprised by Ms Lowe’s evidence, given that she had confirmed to him that the words heard by Ms Sprozen were what she said, that is, “I’ll

25     The definition of assault is found in s 2 of the Crimes Act 1961.

punch your eyes out”.26 He says that Ms Lowe told him that she was “quoting what the bullies at school would say to her daughter”.27 Accordingly, it is unsurprising that Mr Dawson did not put what Ms Lowe said during evidence to Ms Sprozen, given Mr Dawson’s expectation of what Ms Lowe’s evidence would be.

[38]      In referring to this evidence, it is implicit that the Police consider it to be inconsistent with Ms Lowe’s evidence at trial and calls her credibility into question. I can see no other reason why the Police would refer to this evidence as the appeal is not brought in respect of counsel competency.

[39]      However, I do not consider that this evidence demonstrates inconsistency.  Ms Lowe does not argue that she did not say anything to Sophie about “punch/smash your eyes out”. Rather, she says that the words were not directed to Sophie in the sense that they constituted a threat to Sophie. Her consistent evidence was that this was what a boy at Sophie’s school might do to  Sophie. This is also consistent with what     Ms Lowe told Mr Dawson. Accordingly, I consider there is reasonable doubt that the words used amounted to a threat to Sophie.

[40]      Second, I consider the Judge’s conclusion that the entanglement of the headphones and hammer as described by Ms Lowe was not credible as “the logical inference would be that it was at the bottom of the bag” to be flawed. It is not at all certain the hammer would fall to the bottom of the bag. As Ms Lowe submits, exactly where a heavy object rests in a bag depends entirely on what other things are in the bag and how they have been moved around by the user. From my reading of the notes of evidence, it seemed to be in the bag with “a pile of groceries”. Ms Lowe’s evidence is that her headphones were “tangled round every single thing in the bag”, that she managed to “free it up” by putting her bag down, but that “it was still caught around the claw of the hammer”. Ms Lowe went on to explain that she had the hammer up in front of herself, “trying to just take the wire out from around it”.

26 This affidavit was adduced for the purpose of addressing the discharge without conviction issue. Evidently, however, the affidavit has addressed far more than this. Ms Lowe waived her legal privilege in regard to this information.

27   The evidence of Mr Dawson placed before the Court on appeal is fresh evidence and accordingly I must consider whether it should be admitted in the interests of justice. For evidence to be admitted on appeal, it must be fresh, credible and cogent. Counsel did not address me on this. I am satisfied that this evidence can be described as fresh (given at the time this information was constrained by legal privilege that Ms Lowe has since waived), credible and cogent.

[41]     The Police says that nothing turns on the Judge’s interpretation of this evidence. It is submitted that the Judge’s finding was simply that Ms Lowe had threatened to punch Sophie while in possession of a hammer.

[42]      I cannot accept this submission. The Judge concluded that it was Ms Lowe’s possession of the hammer “as described by Ms Sprozen” that was crucial to his finding of an assault.28 He sets out what he considered to be Ms Sprozen’s description of the possession of the hammer as follows:29

… she saw you swinging a hammer, she said it was in a forward motion in your left hand, and from Ms Sprozen’s observation you appeared to be swinging it up and down towards the child. …

[43]      Also relevant, then, is the Judge’s chronological error, where he states the hammer was swung prior to the words being used.30

[44]      The inference from the Judge’s interpretation of events was that Ms Lowe was deliberately taking out the hammer from the bottom on the bag to use to threaten Sophie. I do not consider this to be made out on the evidence. Ms Sprozen’s evidence was that she did not see what happened when Ms Lowe took the hammer out of the bag. Rather, her evidence related to what she could see, namely Ms Lowe holding the hammer in her left hand and swinging it up and down towards her head, then returning the hammer to her bag. While Ms Sprozen did not see Ms Lowe untangling her headphones, she expressed uncertainty about what Ms Lowe did with the hammer, saying “she put it back in her bag I think”. It was also Ms Sprozen’s evidence that the hammer was held in Ms Lowe’s left hand, but Ms Lowe gave evidence she is right- handed. That the hammer was not held in Ms Lowe’s dominant hand provides additional support for her version of events, namely that she was using her dominant hand to untangle the headphones while holding the hammer in the other, rather than holding the hammer as a weapon. As noted above, Ms Lowe’s evidence was that the headphones were tangled around everything in the bag with the hammer being the last item still entangled.

28     Police v [Lowe], above n 1, at [41].

29 At [22].

30 At [22].

[45]      Finally, I consider the Judge was wrong to reject Ms Lowe’s evidence due to “inconsistency” within her evidence as to the timing of Sophie’s meltdown. The Judge wrongly characterised Ms Lowe’s evidence as saying that Sophie’s meltdown “happened at home” and that this was inconsistent with her story that Sophie was upset as she was not able to “stay at school for two hours and play”.31 Throughout her evidence Ms Lowe describes Sophie as having a meltdown or a tantrum or being upset on the way home. Indeed, this is consistent with Ms Sprozen’s evidence that she saw a “small girl walking up Devon Street. She was quite upset and she was crying …” It seems quite clear then that it was Sophie being upset which drew Ms Sprozen’s attention to Ms Lowe and Sophie in the first place. This supports Ms Lowe’s account that Sophie was upset while she was on the way home because she was not allowed to stay and play at school.32

[46]      The Police submit that Ms Lowe’s evidence was that once at home Sophie behaved differently and was “frustrated and having a meltdown and throwing stuff around once inside the house and was angry and upset… because she wanted to stay at school”. I do not accept this submission. I do not consider the behaviour described by Ms Lowe to have occurred at home as being contradictory or inconsistent to what is set out above. Rather, Ms Lowe is describing a prolonged and ongoing meltdown, and a continuation or escalation of the behaviour seen on the walk home. As a common-sense statement, children are capable of being upset about something for quite a long period of time.

[47]      The Police submit that if there is some fault with the Judge’s reasoning here, nothing turns on the issue. The primary trial issue was Ms Sprozen’s credibility and the reliability of her evidence. The issue of how Sophie was behaving at the time does not obviously impact Ms Sprozen’s evidence, and is, the Police submit, at most an example of imperfect expression in the course of an oral judgment.

31 Police v [Lowe], above n 2, at [35].

32   Given  Ms Sprozen’s evidence  that Sophie was upset when  she  first saw  the  child,  I  accept   Ms Lowe’s submission that it is not clear whether Sophie “running uphill and kind of crying” was a reaction to what Ms Lowe said to her or just the state she was in during her walk up the hill.

[48]      I disagree. This perceived inconsistency in Ms Lowe’s evidence was part of the Judge’s reasoning for finding Ms Lowe’s testimony not credible and his preference for Ms Sprozen’s account.

[49]      I consider that when all these statements and assumptions of the Judge are taken together, flaws in logic and questionable assumptions are evident. The grounds on which the Judge chose to dismiss Ms Lowe’s evidence, which does present a believable version of what could have happened, were faulty. I find that this goes beyond simply picking who seems more credible—rather I consider that Ms Lowe’s evidence and its credibility were not assessed fairly. This is particularly so given I do not consider Ms Sprozen’s evidence is necessarily inconsistent with Ms Lowe’s version of events.

Conclusion

[50]      After a careful assessment of the evidence before the Judge, I consider there is reasonable doubt about whether the elements of the charge have been met, namely, that what Ms Lowe said could be constituted as a threat to Sophie (or that the hammer was being used in a way that threatened Sophie), or that Ms Lowe had, or Sophie believed she had, the present ability to carry out the threat. While caution should undoubtedly be taken in matters of credibility assessment, the way that credibility was assessed in this case was sufficiently flawed that I consider a miscarriage of justice has occurred.

[51]      The question then becomes the appropriate disposition under s 233 of the Act. The Supreme Court has recently confirmed the approach adopted by the Privy Council in Reid v R33 is the correct approach and that flexibility is afforded to this assessment, directing the court to focus on a factual inquiry as to where the interests of justice lie.34 Given the limited evidence to sustain a conviction on the charge and that the offending is not significantly serious (reflected in a sentence of supervision imposed), I consider an acquittal is in the interests of justice here.

33     Reid v R [1980] AC 343 (PC).

34     H (SC 49/2021) v R [2022] NZSC 42 at [38].

Result

[52]      For these reasons, the appeal is allowed. Ms Lowe is acquitted of the charge and her sentence of supervision is set aside.

McQueen J

Solicitors:

Te Aro Law Ltd, Wellington for Appellant