M v Police HC Auckland CRI 2008-404-70
[2008] NZHC 1954
•9 December 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-404-70
M
Applicant
v
NEW ZEALAND POLICE
Respondent
Hearing: 9 December 2008
Appearances: J Kovacevich for applicant
M R Harborow for respondent
Judgment: 9 December 2008
JUDGMENT OF WINKELMANN J
J Kovacevich, Auckland [email protected]
Meredith Connell, Auckland
M V NEW ZEALAND POLICE HC AK CRI 2008-404-70 9 December 2008
[1] This application for leave to appeal is made out of time. The applicant has given an explanation for the delay, that he is a student and had exams within the time frame that he was required to lodge his application for leave. He had to consider his position, and having considered his position he instructed his counsel to appeal. Given those circumstances the respondent does not oppose an extension of time for filing the application for leave to appeal so as to permit the application to be determined on its merits. I so order.
[2] Section 144 of the Summary Proceedings Act 1957 governs this application. The right of appeal under s 144 is limited to a question of law arising in any general appeal. Section 144(2) provides:
The [High Court] may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[3] The applicant seeks leave to appeal my judgment dismissing his appeal against his conviction in the District Court on two counts of indecent assault. The two principal grounds on which the appeal to this court was brought were:
1.That there must have been a reasonable doubt the offences ever took place, because of contradictions in the Crown evidence.
2.That the defence evidence either raised a reasonable doubt or sufficiently made out a defence to the charges.
[4] I considered both arguments. I was satisfied that the District Court Judge had not erred in fact or law in his decision and that the appeal must fail.
[5] In relation to this application for leave to appeal the written submissions filed in essence advance the same matters raised on the substantive appeal, with only one additional matter. That is an alleged error by me at paragraph [16] of the judgment which I will return to shortly. Today in oral submissions before me Mr Kovacevich narrowed the grounds considerably. He said that the two grounds on which leave is
sought are first, that there is a factual error at paragraph [16] of my judgment. The second ground advanced is that the conduct which has been held to amount to an indecent assault was in fact an unintentional application of force and was not of an indecent nature so that the defence of unintentional touching should have been allowed.
[6] As to the second ground, that is simply a rearguing of the earlier appeal point dealt with at paragraphs [19] to [20] of my judgment. In my judgment I said:
The Judge accepted the complainant’s evidence that Mr M had put his hand on her leg and stroked it up and down two or three times. Mr M ’s account of accidentally touching the complainant’s inner thigh while changing gears did not square with such an incident. The evidence did not therefore raise as a reasonable possibility that the touching occurred as the result of inadvertent touching. Moreover, the Judge was entitled to, as he did, reject Mr M ’s account of events.
[7] This ground of appeal does not raise a question of law.
[8] Turning to the second ground of appeal; that I made an error at paragraph [16] of my judgment. At paragraph [16] of my judgment I commented in relation to the District Court Judge’s finding that the applicant was not a credible witness and that he had manufactured his evidence. I said:
There were ample grounds for the Judge reach this view. For example, during his police interview the defendant did not mention that a friend had witnessed the incident at the community centre. At the hearing, however, he gave evidence that he had been talking to Mr Flintoff when the complainant “grabbed” him and dragged him outside. Mr Flintoff was called as a defence witness to support Mr M ’s account that he had not touched the complainant inappropriately.
[9] Mr Kovacevich submits that this is an error because in the police interview of the applicant at page 18, lines 14-16, when asked what happened after the complainant, on the applicant’s account, dragged him outside:
I don’t know. I think he walked back inside and she went and talked to someone else and I carried on talking to who I was talking to.
Mr Kovacevich submits that there is therefore reference in the police interview to the applicant having been in a conversation before he was approached by the complainant and this supports Mr M ’s account of events.
[10] However, I do not consider that there is any error in the description of the evidence in my paragraph [16]. The statement that during his police interview the applicant had not mentioned that a friend had witnessed the incident at the community centre is an accurate description of his evidence. In his police interview he did not say that he was talking to someone when, on his account, the complainant approached him and dragged him outside. He said he was “standing inside minding my own business”. Moreover, as Mr Harborow submits, this was not a ground relied upon by Judge Burns for his credibility finding. The matter is raised in my judgment as a further example of the basis upon which the Judge could have made adverse credibility findings against the applicant.
[11] In any case, none of the matters advanced on behalf of Mr M as grounds for leave to appeal, raise questions of law. I am also satisfied that the issues raised are not of general or public importance and there is no other reason advanced as to why leave should be granted in these circumstances. As to the last point, I take into account that the appeal would seem to have little chance of success. The conviction made in the District Court was based upon the District Court Judge’s credibility findings. He made those findings after having heard and seen the evidence of both the complainant and the applicant. On appeal I considered those findings against the wider evidential backdrop and satisfied myself that there was no apparent error or insufficient basis for those credibility findings.
[12] For those reasons, leave to appeal is declined.
Winkelmann J
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