M v Police HC Hamilton CRI 2008-419-7

[2008] NZHC 491

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2008-419-000007

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 April 2008 (Heard at Hamilton)

Appearances: J Keung for Appellant

AM Beveridge for Respondent

Judgment:      11 April 2008

ORAL JUDGMENT OF ASHER J

Solicitors:

J Keung, Barrister, PO Box 15352 Hamilton

Almao Douch, PO Box 19173 Hamilton

M V NZ POLICE HC HAM CRI 2008-419-000007  11 April 2008

[1]      This is an appeal against a judgment of the District Court at Hamilton on

20 February 2008 in which the appellant, M  , was convicted of assault of a person  with  a  stabbing  or  cutting  instrument  under  s 202C(1)(a)  of  the  Crimes Act 1961.  The appeal is distinguished by the fact that the respondent has conceded that the appeal against conviction must succeed.

[2]      The background is that the complainant, Carol Jean Moselupe, is the wife of Mr M  .  Clearly she laid some type of complaint with the police and provided a statement.  This was the basis of the prosecution in the District Court.  As so often happens, by the time of trial the complainant had repented of her complaint and was supportive of her husband.  She does not appear to have been forthcoming or indeed particularly co-operative when she gave her evidence.  Although it would have been possible for the police prosecutor to have put Mrs Moselupe’s prior statement to her, (see R v Vagaia HC AK CRI 2006-092-16228 13 March 2008, Asher J, paras [12] – [13]), and although this was clearly considered, it did not in fact take place.

[3]      In a careful judgment undoubtedly delivered in the pressure of a busy court day, the District Court Judge set out the relevant extracts from the evidence that were most helpful to the Crown case.  The Crown was endeavouring to establish that, at the least, Mr M   had thrown some paper scissors at the complainant.  The Judge referred to the following questions and answers when Mrs Moselupe was giving evidence:

Question: Can you tell the Court as much as you can remember about what happened on that day?

Answer: Um, yeah, well we had argument, that was right and, um, over the keys, and yes I did run round the front of the house and, um, yes there were, um, some paper scissors that were thrown.

The following statement was also made about the scissors:

… paper scissors that you use for art, the little like toy scissors, yeah, but that was possibly because, um, because of me running away maybe.

[4]      There was therefore a basis on the complainant’s evidence to conclude that scissors were thrown at some point, and there was a basis on her evidence for a

finding that scissors were present at the scene.   However, at no stage in the complainant’s evidence did she say that Mr M   had thrown the scissors at her or that she was threatened or hit by the scissors.  As the Crown observed, her evidence was silent as to whether the scissors were thrown in such a manner that it could be construed as an attempt to strike her with them.  The Crown has also observed that there was no evidence as to the physical proximity of Mr M   to Mrs Moselupe at the time the scissors came to sit on the ground where they were ultimately located.

Conclusion

[5]      The  evidence  adduced  did  not  provide  a  basis  for  a  conclusion  beyond reasonable doubt that Mr M   had thrown the scissors at Mrs Moselupe or that she had been threatened or touched by them.  Therefore I agree with the submissions for both the appellant and the respondent that there was insufficient evidence on which to convict Mr M  .

[6]      The  appeal  against  conviction  must  accordingly succeed.    The  appeal  is allowed.

……………………….

Asher J