M v Police HC Ak CRI 2009-404-340

[2010] NZHC 84

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-340

M

Appellant

v

POLICE

Respondent

Hearing:         8 February 2010

Appearances: B Donald for appellant

E Wilson for respondent

Judgment:      12 February 2010

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.30pm on Friday 12 February 2010

Solicitors/counsel:

Brenda Donald PO Box 26-603, Epsom, [email protected]

Crown Solicitor Auckland

M V POLICE HC AK CRI 2009-404-340  12 February 2010

[1]      Mr M   appeals against his conviction on a charge of assault, following a defended hearing in the Waitakere District Court on 1 October 2009.

Factual background

[2]      At some point on Monday 19 January 2009, the appellant’s dog slipped its collar.  It then made its way to the driveway of a property occupied by Mr Hillman, the  complainant.    A  fight  ensued  between  the  appellant’s  dog  and  that  of  Mr Hillman, who turned the garden hose on the dogs in order to separate them.

[3]      The appellant arrived and assisted in separating the dogs.  He became angry because, on his account, Mr Hillman continued to spray both the appellant’s dog and the appellant himself.  In evidence, Mr Hillman conceded that he had continued to spray the appellant’s dog after both dogs were separated, and accepted that he could possibly have sprayed the appellant as well, but not deliberately.

[4]      At that point, Mr Hillman said in evidence, the appellant seized him by the arms and threw him against the fence, saying “I’ve had a gutsful of you, you’ve been on my case” or “keep off my case”.  Mr Hillman also claimed in evidence that the appellant “… was right in my face with a clenched fist”.  He added that the appellant had said at one point “I’ll be back to get ya”.

[5]      The  appellant  gave  evidence  in  which  he  denied  throwing  or  pushing Mr Hillman  against  the  fence.     He  said  that  at  no  stage  during  the  whole confrontation did he touch Mr Hillman.

The District Court findings

[6]      Judge Fitzgerald found the charge proved on the basis of the appellant’s own evidence.  The Judge said:

[12]Obviously there is a factual dispute between what Mr Hillman says and what Mr M   in particular says, and so to some extent, as I

indicated earlier, matters turn on resolution of factual differences. However, of crucial importance in the context of this case is what the definition of an assault consists of.

[13]     The definition of an assault is that it means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly or threatening by any act or gesture to apply such force to the person of another if the person making the threat has or causes the other to believe on reasonable grounds that he has present the ability to effect his purpose, and ‘to assault’ has a corresponding meaning.

[14]I find that even on Mr M  ’s version of events he has assaulted Mr Hillman.   He said as much today when acknowledging that by verbally  abusing  him  and  raising  his  fist  threateningly,  he  had reduced Mr Hillman to the point where he nearly ‘crapped himself’. Plainly the verbal abuse, at least, even if he did not lay a finger on him was sufficient for Mr Hillman to believe that Mr M   had a present ability [to] assault him or else he took his comments as threats which Mr M   had the ability to carry out.  Having said that I think it highly unlikely that in the confined space in which he described the events taking place there was absolutely no contact at all.   But as I have said the charge is proved even on the basis of Mr M  ’s evidence. That is the finding.

[7]      Having reached that conclusion, the Judge simply convicted the appellant and ordered him to pay Court costs of $130.

Discussion

[8]      It will be observed that, because the Judge considered that the appellant must be  convicted  on  his  own  evidence,  there  were  no  findings  about  Mr Hillman’s evidence.  Nowhere in the decision does His Honour expressly (or even impliedly) accept  Mr  Hillman’s  evidence,  or  express  a  preference  for  it  over  that  of  the appellant.

[9]      The  two  gave  competing  accounts.     The  Judge,  who  had  the  crucial advantage of seeing and hearing the witnesses, chose not to resolve the evidential conflict.  He simply worked from what he understood to have been the appellant’s own evidence.   This Court must do the same.   The outcome of the appeal must depend upon the strength of the challenge to the Judge’s findings in respect of Mr M  ’s evidence, appearing at [14] of his decision.

[10]   Judge Fitzgerald found that the appellant had, in his own evidence, acknowledged both verbally abusing Mr Hillman and raising his fist threateningly. It is however, common ground between counsel that Mr M   did not accept that he had raised or shaken his fist at Mr Hillman.  In his evidence in chief he was asked by his  counsel  whether  he  (the  appellant)  was  right  in  Mr Hillman’s  face,  and whether he had a clenched fist.  In answer the appellant accepted that he was “right in his face” but made no comment about raising his fist.  By implication the absence of an acknowledgement in respect of a raised fist must be taken to be a denial of it. The appellant was not cross-examined about the raised fist.   There was therefore (contrary to the Judge’s finding) no such acknowledgement by Mr M  .  There was evidence by Mr Hillman to that effect but the Judge nowhere indicates that he accepts that evidence or expresses any other view as to the strength of Mr Hillman’s evidence.

[11]     The Judge relied also on the appellant’s verbal abuse of Mr Hillman.   The appellant accepts that he abused Mr Hillman in strong language, to the point at which the latter nearly “crapped himself” and slid down the fence.   The Judge regarded that evidence from the appellant as sufficient to establish that Mr Hillman had believed that the appellant had a present ability to assault him, or alternatively that Mr Hillman took the comments as threats which the appellant had the ability to carry out.

[12]     In order to constitute an assault, a threat must be to apply force to the person of another, in circumstances where the person making the threat has, or causes the other to believe on reasonable grounds that he has, the present ability to effect his purpose.

[13]     Mr M   accepts that he said to Mr Hillman:  “I have had a gutsful of you, keep off my case”, or words to that effect.   Such language might perhaps be considered to amount to a threat, but it cannot be construed as revealing an intention to apply force.  The words “I’ll be back to get ya” were alleged by Mr Hillman to have been used by the appellant, although the appellant himself does not agree. Even if those words were used however, they do not establish a present intention on

the appellant’s part to apply force to Mr Hillman:  Police v Greaves [1964] NZLR

295 at 298.

[14]     Mr M   accepted that he abused Mr Hillman from close range, and that the abuse was sufficiently forceful to intimidate Mr Hillman.   But verbal abuse cannot  amount  to  an  assault  unless  it  constitutes  a  threat  to  apply force.    The language which the appellant admitted using could not, in my view, be construed as amounting to a present threat to apply force.

[15]     The Judge considered it “… highly unlikely that in the confined space in which he described the events taking place there was absolutely no contact at all”. But that is not a finding that the appellant relevantly applied force to Mr Hillman or threatened to do so, and does not provide a basis upon which the conviction can be upheld.

[16]     In summary:

a)       The Judge based his findings entirely upon his assessment of what he understood the appellant’s evidence to be;

b)The outcome of the appeal must turn on the Judge’s assessment of that evidence.  It would not be appropriate for an appellate Court to reach its own conclusions on the basis of Mr Hillman’s evidence without the benefit of credibility findings by the trial Judge;

c)        Contrary  to  the  Judge’s  findings,  there  was  no  evidence  that

Mr M   had accepted raising his fist to Mr Hillman;

d)With  one  possible  exception,  the  language  which  Mr  M   admitted having used in his altercation with Mr Hillman could not amount to a threat to use force for the purposes of the definition of the term “assault”;

e)        The exception is the appellant’s indication that he would be back “ …

to get ya”.  That statement might well be construed as a threat, but it

was not a threat which the appellant had any present intention of carrying out;

f)        Although the Judge considered it to have been highly unlikely that there was absolutely no contact at all between the parties, that is not a finding upon which a conviction for assault could be based.

[17]     Against  that  background  there  is,  in  my  opinion,  determinative  force  in Ms Donald’s submission that, although the Judge carefully and correctly directed himself as to the law, he wrongly concluded that the appellant’s own  evidence established his guilt on the offence charged.

Result

[18]     For  the  foregoing  reasons  the  appeal  is  allowed  and  the  conviction  is quashed.

C J Allan J