M v Police HC Auckland CRI 2008-404-70
[2008] NZHC 1302
•18 August 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-404-70
BETWEEN M
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 10 June 2008
Counsel: J Kovacevich for Appellant
MR Harborow for Respondent
Judgment: 18 August 2008 at 12.00
JUDGMENT OF WINKELMANN J
This judgment was delivered by me on 18 August 2008 at 12.00 noon pursuant to Rule540(4)
of the High Court Rules.
Registrar/ Deputy Registrar
J Kovacevich, Auckland [email protected]
Meredith Connell, Auckland
M V NEW ZEALAND POLICE HC AK CRI 2008-404-70 18 August 2008
[1] Mr M appeals against his conviction on two counts of indecent assault. When this appeal was called before me the reasons for the decision of Judge DA Burns convicting Mr M were not on the file, but both counsel wished to proceed with argument. I indicated that I was prepared to hear argument and would decide at a later time whether the appeal could be resolved without access to the Judge’s written reasons. Having heard argument, I concluded that it could not be so determined and called for a transcription of the Judge’s reasons. Although provided a copy of those reasons, neither counsel wished to be heard further in relation to them. I now therefore give my decision.
[2] The complainant was a resident at a detox unit at the Auckland City Mission. Mr M was a voluntary helper at that unit. In December 2006 the complainant was one of a group of residents who were to attend a Narcotics Anonymous meeting in Grey Lynn, and Mr M was the driver of the vehicle transporting the group. There were about eight other passengers in the vehicle. The complainant was seated in the front bench seat next to the driver, Mr M . Her account is that before they had driven anywhere, she felt Mr M put his left hand on her upper right-hand thigh and stroke her in the thigh area. She moved toward Mr Banks, who was also sitting in the front seat.
[3] Once the group arrived at the Grey Lynn Community Centre and before the meeting had commenced, the complainant saw a gang member who she wished to avoid. She left the building. She came across Mr M talking to someone else outside, went up to him and told him that she did not want to be there, that she did not want to see the gang member. The complainant’s evidence was that at some point the defendant pulled her around with his hand, moving his hand down her back area to her buttocks and then touching her in between her legs from the back. She moved away from him. The complainant said that she later returned with the group to the detox centre in the van. Mr M drove the van. She sat in the back.
[4] This narrative of events is taken from the complainant’s evidence at the hearing. She had previously made a written statement to the police in which, when
describing the second incident, she said that Mr M had squeezed her buttocks.
[5] At the hearing the police called another witness, Mr John Banks, a passenger in the van. He gave an account of seeing both incidents. There are some inconsistencies between his account and the account given by the complainant. At the conclusion of the prosecution case, counsel for Mr M made an application that there was no prima facie case. The Judge dismissed that application, finding that there was. Accordingly, Mr M elected to give evidence and to call one witness, a Mr James Flintoff.
[6] As counsel for the respondent identified, an unusual feature of this appeal is that the arguments advanced on appeal closely mirror those advanced at the initial hearing. It is apparent that the submissions presented in the District Court have simply been copied into submissions for this Court, with only some minor corrections and amendments having been made.
[7] The first ground of appeal was that there must have been a reasonable doubt that the offences ever took place. Counsel for Mr M submitted that contradictions in the evidence made conviction unsafe. The contradictions he relied on were:
a) The complainant gave evidence that the first alleged offence occurred in the van prior to the journey’s commencement but Mr Banks stated that the alleged offence took place while the journey was underway.
b)The complainant gave evidence that the second alleged offence occurred at the Grey Lynn Community Hall prior to the commencement of the Narcotics Anonymous meeting, whereas Mr Banks stated that the alleged offending took place after the meeting.
c) The complainant gave evidence that the second offence occurred outside the Grey Lynn Community Hall by the playground or crèche,
whereas Mr Banks stated that the alleged offence took place at the entrance to the Grey Lynn Community Hall.
d)If the second alleged offence did take place outside the Grey Lynn Community Hall by the playground or crèche, which is north-facing, it would have been impossible for Mr Banks to have seen the alleged offending because the entrance to the Grey Lynn Community Hall is west-facing.
e) The complainant gave evidence that following the second alleged offence, she got into the back of the van for the trip back to the detox centre, whereas Mr Banks gave evidence that she travelled back in the front seat.
f) In an earlier written statement to the police, Mr Banks had said that the first alleged offence occurred on the journey back from the meeting rather than the journey there.
g) When the complainant initially made a complaint to the police, she described inappropriate touching of her buttocks and no mention of inappropriate touching of her crotch. The account she gave at the hearing involved an allegation that Mr M had reached between her legs from behind.
h)The complainant was not able to identify the day the offending occurred. She said it was either 16 or 14 December.
[8] A second ground, which I will come to shortly, was that the defence witness either raised a reasonable doubt, or sufficiently made out a defence to the charges.
[9] In his judgment, the District Court Judge addressed the inconsistencies identified by counsel. But the Judge found the complainant’s evidence credible, noting that she was extensively cross-examined and the defendant’s version of
events was put to her, but that she maintained the version of events that she had given. He said:
She was not shaken in any material respect by the events and I found that the evidence that she gave to be clear and consistent.
[10] The Judge referred to what counsel for the defendant had characterised as an inconsistency between the initial account given by the complainant to the police and her evidence at the hearing. In her statement to the police she said that Mr M had touched and squeezed her buttocks, but the evidence she gave at the hearing was that he had reached into her crotch area from behind. The Judge was satisfied that the apparent difference was likely explained by use of different words, rather than a different account of what had happened.
[11] The Judge accepted that there were some inconsistencies in Mr Bank’s account, (particularly between his initial statement to the police and the evidence that he gave at hearing) and Mr Banks’ and the complainant’s accounts. However, he said:
In my view his recollection was somewhat impeded, and some of it was influenced by the discussions that had taken place after the event and some of it from what he had seen and just because his evidence was inconsistent does not mean to say that I should not believe the complainant.
[12] In assessing the defendant’s evidence the Judge took into account the fact that aspects of his original statement to the police were consistent with the complainant’s account. For example, he admitted touching the complainant’s thigh in the van, but said it occurred when he was changing gears. He also admitted that there was close physical contact with the complainant at the community centre, but said it was the complainant who grabbed him.
[13] The Judge also referred to the fact that in his initial statement to the police, the defendant said that when the complainant approached him at the community centre about her concerns regarding the presence of another attendee he said to her “they need to recover as well”. The Judge observed that this remark was consistent with the complainant’s account that the incident occurred at the beginning of the meeting rather than, as the defendant claimed, at the end of the meeting.
[14] The Judge found that the defendant had contacted the complainant by telephone after the events and said:
I find that the defendant did phone her that evening to invite her to go to another meeting the following day. In my view he was attracted to the complainant and was following up to see whether it was possible something further could develop between them. I think he received a message from her in that phone call which was contrary to that and that is probably why he phoned the next day to indicate that he was not available to take anybody else to the meeting after reflecting on the situation.
[15] The Judge did not consider the defendant to be a credible witness. He said:
In my view he has definitely gone through and manufactured his evidence to try and provide him with a defence to that given by the complainant.
[16] 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.
[17] I am satisfied that the Judge addressed the inconsistencies identified by counsel for the appellant. The inconsistencies between the complainant and Mr Bank’s evidence caused him to effectively put to one side the account given by Mr Banks. He accepted the evidence of the complainant. He also disbelieved the account given by the appellant identifying a proper evidential basis for those credibility findings. This ground of appeal, that it would be unsafe to convict on the basis of contradictory or unreliable evidence, must therefore fail.
[18] As a second ground of appeal, it was argued that the defence evidence raised a reasonable doubt in relation to the first offence, and disclosed a defence, namely inadvertent touching. Counsel for the appellant submits that at best Mr M unintentionally touched the complainant with his hand or arm in the course of changing into second gear. This was inadvertent and not of an indecent nature.
[19] In relation to the second offence, the “independent” defence witness, Mr Arthur Flintoff, said that it was the complainant who approached Mr M
after the meeting and ushered him away from Mr Flintoff and onto a deck. Mr Flintoff saw no inappropriate touching, although the complainant and Mr M were only a short distance away.
[20] 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.
[21] In relation to Mr Flintoff’s evidence, Mr Flintoff said he did not have Mr M in his line of sight at all times so his evidence was not significantly helpful to Mr M . The Judge was also entitled to take into account when assessing Mr Flintoff’s evidence, that Mr M had made no mention of the presence of Mr Flintoff when he gave his initial police statement. There was then good grounds for the Judge to find that the defence evidence did not raise a reasonable doubt that this incident did not take place as the complainant described it.
[22] Accordingly this ground of appeal must also fail. [23] The appeal is dismissed.
Winkelmann J
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