M v Police HC Auckland CRI 2008-404-325

[2009] NZHC 1819

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000325

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 June 2009

Appearances: Peter Eastwood for Appellant

Sarah Pidgeon for Respondent

Judgment:      22 June 2009

JUDGMENT OF HARRISON J

SOLICITORS

Peter Eastwood (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

M V POLICE HC AK CRI 2008-404-000325  22 June 2009

Introduction

[1]      Mr M  appeals against his conviction following his summary trial in the District Court on 25 September 2008 on one charge of assaulting a police officer.     His  counsel,  Mr Peter  Eastwood,  raises  two  grounds:  namely,  (1) Mr M  lacked the necessary mens rea; and (2) Judge Paul erred in setting aside a witness summons.

[2]      Unfortunately the notes of the only witness who gave evidence in the District Court and of the Judge’s oral decision are unavailable.  By consent I have re-heard that evidence from the police officer today (s 119 Summary Proceedings Act 1957). Mr M  did not give evidence in his own defence in the District Court.

Decision

(1)      Assault

[3]      In support of Mr M ’s first ground of appeal, Mr Eastwood responsibly accepts that Mr M  committed the act of spitting which is the subject of the charge of assault.  His submission, however, is that the evidence does not establish that Mr M  acted with the requisite degree of intent.

[4]      Constable Scott Middlemiss was manning the public counter at the Auckland Central Police Station early on Sunday, 13 April 2008.   Mr M  came to the counter to lay a complaint of criminality.  He alleged that he had been evicted by the owner or manager of a public bar earlier that morning.   He also alleged that a security officer or officers had refused to allow him to complete a drink for which he had paid before he was forcibly removed from the bar.   Thus he wished to lay a complaint of theft.

[5]      Constable Middlemiss noted that Mr M  was in an intoxicated state – he smelled of alcohol and was slurring his words; his eyes were bloodshot; and his behaviour was generally irrational and angry.   In these circumstances the officer

advised Mr M  to return the next day if he still wished to pursue a complaint. He commented, though, it was more likely that it was a matter which Mr M  should take up with the bar owner.

[6]      Mr M  responded to this advice by spitting at Constable Middlemiss. Part of Mr M ’s saliva landed on the counter in front of the officer; the balance landed on the left forearm of his uniform.  Mr Eastwood responsibly does not dispute that this fact, if proven, constitutes the act of assault.

[7]      Mr Eastwood taxed Constable Middlemiss carefully on the nature and extent of Mr M ’s spitting.  His proposition was that Mr M ’s saliva was directed generally and not specifically at the officer.  Mr Eastwood also suggested that it was more a broad expression of disgust with authority than anything personal to the officer.

[8]      I have  no  hesitation  in  accepting  Constable  Middlemiss’  denial  of  these propositions.  He and Mr M  were a metre or less apart when the latter spat. The officer was clear that Mr M  was “directly in front of me, looking at me and talking aggressively to me”.   He attributed the appearance of saliva on the counter to the random nature of Mr M ’s spitting exercise rather than as any indication that it was generally directed.  The officer regarded it as good fortune that the saliva only struck his forearm and not his face or upper body.

[9]      I had the opportunity to observe Constable Middlemiss carefully under cross- examination.  He was a convincing witness.  His memory of events was clear and concise.   Moreover, it was uncontradicted.   I have no difficulty in drawing the inference that Mr M  spat at the officer deliberately or intentionally and is thus guilty of the offence of assault.

(2)      Witness Summons

[10]     Mr Eastwood’s second or alternative ground of appeal was that Judge Paul erred  in  setting  aside  a  witness  summons  which  Mr M   had  issued  to  a Mr Alexander McLean who was the personal security to the then Prime Minister, the

Rt Hon Helen Clark.   It was  common ground that the two had never met  and Mr McLean was not present at or had no knowledge of the circumstances of this offence.

[11]     I accept Ms Pidgeon’s submission that Judge Paul had jurisdiction to set aside the summons.  The District Court has an inherent power to regulate its own procedure, to ensure fairness in investigative and trial procedures, and to prevent abuses of its processes: Attorney-General v Otahuhu District Court [2001] 3 NZLR

740, 746 (CA).  I endorse decisions in the District Court that within this power is an inherent authority to make an order setting aside a witness summons in appropriate circumstances: R v Keesing (No 8) [1999] DCR 376; Nottingham v Gummer [1999] DCR 56.  Apart from Judge Paul’s jurisdiction, there is no challenge to the grounds of his decision to set aside.

[12]     Accordingly, Mr M ’s appeal is dismissed.

Rhys Harrison J