M v Police HC Tauranga CRI 2009-470-20

[2009] NZHC 2139

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2009-470-20

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 September 2009 (Heard at Rotorua)

Appearances: N Dutch for the Appellant

H Booth for the Respondent

Judgment:      20 November 2009 at 10:30 a.m.

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 20 November 2009 at 10:30 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr N Dutch, Barrister, Tauranga

Ms H M Booth, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

M V NEW ZEALAND POLICE HC TAU CRI 2009-470-20 20 November 2009

[1]      On  9  December  2008  the  appellant,  Mr  M  ,  was  convicted  in  the District Court after a defended hearing on a charge of indecently assaulting a 2 ½ year old girl.  On 10 February 2009 Mr M   was sentenced to home detention for 2 months, with some special conditions, and to 175 hours community work.  Mr Mudalier appealed against the conviction.  He did not appeal against the sentence. The sentence had been served by the time the appeal came on for hearing and for that reason it was appropriate to reserve my decision to enable counsel to travel back to Tauranga at a reasonable hour.

[2]      The case in the District Court turned in large measure on a single question of fact.  This question was whether the prosecution had proved that Mr M   had kissed the child on the lips, as had been described in evidence by the child’s mother. Several grounds of appeal were recorded in the notice of appeal, and in the written submissions of Mr Dutch on behalf of Mr M  .   However, the only ground pursued at the hearing of the appeal was that the Judge, Judge Rollo, had erred in accepting the mother’s evidence as to the nature of the contact between Mr M   and the child.  Central to this contention was the submission that evidence from the mother that she had made a hand gesture towards the appellant was exaggerated.  Mr Dutch  submitted  that  the  mother’s  exaggeration  could  be  seen  by  comparing different passages of her evidence, and by comparing what she said with what was shown in a security video of the incident.

The evidence

[3]      On 1 July 2008, at about 9:15 a.m., the mother and child were outside a Subway restaurant when a car drove by.  The mother saw a man wave towards them. She said she did not know the man, but possibly smiled back out of politeness.

[4]      The driver was the appellant.  The car stopped about 50 metres away.  The mother said that she saw Mr M   get out of the car and look towards her and her daughter.   The mother said she felt uncomfortable; that something was not quite right.  She said she looked away on a number of occasions and then looked back to check and found Mr M   continuing to look at the two of them.  The mother

said she decided to go into the restaurant, where she had been planning to go with her daughter in any event.  Shortly after they entered the restaurant, when they were seated at a table, Mr M   came in and went up to them.  I will come back to the evidence as to what then occurred.

[5]      Mr M   said that he waved towards the mother because he thought he recognised her as a woman who had cared for his godfather perhaps two years earlier.  He said he stopped his car because he wanted to speak to the mother to tell her that his godfather had died, thinking that she would like to know because she had cared for him in the past.  Mr M   said that when he came into the restaurant and went up to the mother to speak to her, he realised that she was not the woman who had cared for his godfather.

[6]      The evidence as to what occurred in the restaurant from this point came from the mother, Mr M  , and a security video.  The hearing of the appeal had been delayed because of difficulties in obtaining and then showing the video.  Mr Dutch was concerned to ensure that the video was presented for the appeal hearing because of the importance he attached to it in support of his submission that the mother’s evidence was, at the least, exaggerated.

[7]      The Judge’s summary of the mother’s evidence, once they were inside the restaurant, is as follows.  The Judge called the child Dakota.

[3]       ...   The two of them were essentially seated in the middle of the restaurant near the front window and quite close to the door.  [The mother] was seated with her back furthest from the door and Dakota opposite her at a table with her back to the door.  The defendant, Mr M  , then walked into the restaurant and directly across to the table where the mother was seated and began speaking to her.  He was standing to the left hand side of Dakota who was, at the time, seated at the table opposite her mother.

[4]       What the mother says is that the defendant said to her, “You’ve got a very pretty or beautiful daughter”, or words to that effect.  The mother said she thanked him and then she said the defendant crouched down lower to be at the same level as Dakota and asked her a couple of times what was her name.   She replied, “Baby Bear”, which in fact is her nickname.   It was apparent that Mr M   did not understand and the mother explained that is her nickname, as he seemed confused.  Then, to her shock, she said Mr M   kissed her daughter, Dakota, on the lips [for] about two to three seconds, not just a light peck.   She felt uncomfortable and a little uneasy. She said she in fact felt very uncomfortable.   She was shocked that this

happened to her daughter and happened immediately in front of her.   She said she put her right arm out towards the defendant not touching him and not able to reach right across the table, but as a gesture to say to move back away from her daughter.  She said that the defendant stood up.  Her daughter used her right hand to wipe the back of her hand across her lips to dry them, or something of that indicating that sort of action that children from time to time make.  She described Mr M   as then walking back towards the door standing and speaking to her.   She was not sure if he was speaking English or what he was saying at that time.  She said something like, “My husband’s coming”, and she described Mr M   as then walking out of the restaurant and along the Street towards Cameron Road.

[8]      The Judge described further evidence from the mother as to how shocked she was about what had occurred.  The mother made a complaint to the Police the next day.

[9]      The Judge’s summary of the mother’s evidence in cross-examination was as follows:

[7]       In  cross-examination,  Mr  Dutch  put  to  the  mother  that  she  had waved to the man in the car when he waved to her.  She thought that he had waved.  She only smiled back, but that he definitely smiled at her.  She did not think that he recognised her, that it was just a friendly wave.  She said that the defendant did not say anything to her about her working with his godfather, nothing of that sort.   She denied that the defendant kissed her daughter on the forehead and not the lips, or that he put his nose on her nose saying that that was not possible.  She said that after the kiss she did not say anything critical because she did not want to scare her daughter.  She did not say go away or what are you doing, as I have described.

[10]     The  transcripts  of  the  evidence  from  the  mother  relating  to  her  gesture towards Mr M   are as follows:

Evidence in chief

Q.        And when he kissed Dakota how did you feel about that?

A.        I was shocked.  I sort of – yeah that’s the best word to describe it, I

was a shocked.

Q.        What did you do after that?

A.       I put my hand across the table, um, and he stood up, um. Q.         Why did you put your hand across the table?

A.I did sort of push him away almost, like I didn’t touch him but I didn’t wanna like stand up and make a big fuss.  I didn’t wanna scare Dakota and make her scared of everybody you know.

THE COURT:

Q.       Were you sort of indicating that he should stop?

A.       It’s not right you can’t, yeah – no don’t do that sort of …

Q.       So you’re extending your arm with your hands out like this saying

(inaudible 16.30.23)? A.  No away, sort of away. Q. Away?

A.       Yeah.

Cross-examination

Q.       And you stayed seated at the table till he left the restaurant? A.     Yes I did.

Q.       You didn’t push him away or anything like that?

A.I put my hand towards him in between him and Dakota as a gesture to get away from her.

Q.       You’re sitting on one side of the table? A. Yes.

Q.       And Dakota was on the other side of the table? A. Yes.

Q.And your didn’t [sic] reach right across the table between Dakota and Mr M   did it?

A.       No but it was a gesture.

Q.       You only put your hand on the table didn’t you?

A.       No it was in the air like making a motion for him to move back. Q. Are you sure about that?

A.       Yes.

[11]     The Judge said, at [4], that the mother “put her right arm out towards the defendant”, although the evidence, in fact, does not record which arm she put out.

[12]     The  summary  of  Mr  M  ’s  evidence  as  to  what  occurred  in  the restaurant is as follows:

[10]      … He said that he went into the restaurant and up to and spoke to the mother.  It was whilst doing so that he said that he recognised that he had the wrong  woman  and  that  was  not  the  woman  who  had  worked  for  his godfather.  He then made the comment about Dakota being a lovely daughter and said that the mother said yes she is a lovely daughter and one of four, to that effect.  He then said that the child was giggling and making sounds as if wanting to be kissed.   He then bent down, he said, and kissed her on the forehead about between the eyebrows, that is low on her forehead close to the top of the bridge of her nose.  He said that when he did that, she in fact kissed the end of his nose.  He then stood up.  There was some further brief discussion and he then left.  He denied that he kissed Dakota on the lips, as the mother had complained.   In cross-examination, Mr M   was consistent in that account saying that at no time did he kiss the child on the lips.  Mr Dutch acknowledges that this is a factual issue for me to determine as the hearing Judge.

[13]     The location of the video, what it shows, and my impressions from it, are set out in this and the following paragraphs.  The video camera was in one corner of the shop looking towards the main entry on the right hand side, the table at which the mother and daughter were sitting in the middle of the picture and at the far end of the room furthest from the camera, and the counter for ordering food on the left hand side.

[14]     The daughter was sitting largely with her back to the video camera, although the camera was slightly to her left side so that part of her left side could be seen.  The mother was sitting facing her daughter so that the camera is angling in to her from the right hand side of her face.  The quality of the picture of the mother, the child and Mr M  , when he appeared, is not particularly good.

[15]     The incident itself lasted approximately 1 ½ minutes.  The video started with the mother and her daughter already in the restaurant.  Mr M   came in the door and walked almost immediately across to the table at which the mother and child were sitting.  There did not appear to be anyone else in the restaurant.

[16]     The impression I had was that the logical route to take if one was going to talk to the mother would be to come in the door, turn right and approach the table on the right hand side of the table looking at it from where the camera was.  That would have put Mr M   on one side of the table with the mother on his right and the daughter on his left.  He could then have talked directly to the mother.  However, he came in and took what seemed to be a slightly circuitous route around a hip-high

barrier separating the main foyer from the table where the mother and child were seated.  He went round this barrier and then immediately behind the child.  From the video it looked as if he was standing close behind the child.

[17]     The route taken by Mr M  , purportedly to talk to the mother, and the fact that he then stood close behind the child, had a marked impression on me as I watched the video and being an impression adverse to the appellant.   I told both counsel that that was my reaction to give them an opportunity to respond.  There was no particular submission from Mr Dutch on this other than that it was not a factor taken into account by the Judge.  It also occurred to me shortly after the hearing had concluded, and therefore after counsel had left, that it was a strange position from which an adult might have bent over to give a very young child an innocent kiss on the forehead.

[18]     It is very difficult to tell what Mr M   did in the short period he was behind the child.  He did bend forward twice.  One of those occasions was obviously the occasion on which he admitted kissing the child.  The first occasion on which Mr M   bent forward may have been to talk to the mother, possibly when he told her what a beautiful or lovely daughter she had.

[19]     After  Mr  M    had  bent  over  the  second  time  he  stood  up,  moved reasonably slowly to his left, and then stood with his back to a rail which separated the food counter from the body of the restaurant.   There may have been some exchange; I could not tell.   Mr M   then walked towards the door relatively slowly, at one point turned towards the mother and child, and then left.

[20]     It was not possible to see any particular movement from the mother during the period that the man was there – that is to say, any particular movement relevant to the issue about whether she moved her arm or hand.  The quality of the film is too poor to be able to discern any expression on the mother’s face.

Discussion

[21]     As indicated in the introduction to this judgment, the central issue of fact in the District Court was the nature of Mr M  ’s contact with the child.  It appears to have been accepted by Mr Dutch on behalf of Mr M   in the District Court that, if Mr M   had kissed the child in the manner described by the mother, what was admittedly an assault would have been an indecent assault.   This was certainly accepted by Mr Dutch on the appeal.  The Judge focused very clearly on this issue which was, as he said, an issue of credibility.

[22]     The Judge’s conclusions on this were as follows:

[16]      I have … had the opportunity to closely observe the mother give her evidence.  She has been seated perhaps two and a half to three metres away from me only.   I consider the evidence, which she gave, to have been not unnaturally somewhat stressful for her, but otherwise to have been a truthful and accurate account of what she observed.   This has obviously been a matter, which has aggrieved her significantly.  I did not get the sense that she exaggerated her evidence, in any respect, or that she had any other motive. She obviously felt shocked and sickened by what she saw as a blatant abuse of her daughter by the defendant kissing her in such a way in front of her.  I got the impression she was flattered and accepting of the compliment of her daughter’s beauty, something which had obviously been commented on previously, perhaps not only with Dakota but with others of her daughters, but she felt uncomfortable by the circumstances at an earlier stage.  It would seem, perhaps with some good cause, she did not demure in the evidence, which she gave.   She denied the suggestions put by Mr Dutch in cross- examination that all that the defendant did was kiss the child between the eye brows on the front of the forehead.  She said that was not possible.  She must of only been less than a metre away in observing what was happening.  Her reaction, in putting her hand out in the way in which she described and I acknowledge the defendant denied that that happened, was indicative of the concern, which she felt the actions of the defendant.  All of those matters go to constitute a coherent and logical account of someone in very close proximity who has observed a series of events very closely.

…

[18]      I am satisfied that there was no incident of encouragement from the young child, that this was an unprovoked kiss on the lips of the young child, by a complete stranger.   In that circumstance, there has been a deliberate assault.  The action of the defendant, in kissing a young child in such a way, is patently indecent.   Applying the common standards that exist in our community and support for that concept is the earlier case of Inglis v Police, which I have referred to.  I am also satisfied that the defendant must have known that kissing a stranger’s daughter in such circumstances, particularly after commenting on her beauty, would also be knowingly indecent to him, yet he has continued to do so.  I am therefore satisfied that the account I have

received from the complainant mother is a truthful and accurate account in which I can rely and that it proves the charge beyond reasonable doubt.  In saying that, I reject the evidence and the explanation given by the defendant that he only kissed her on the forehead and the child kissed him back on the nose.

[23]     Mr M   had a difficult task in seeking to persuade an appellate Court that a credibility finding against him of this nature, fully supported with the Judge’s reasoning that I have set out, should be set aside on appeal.  And I am not persuaded that there was any error.

[24]     Mr Dutch implicitly recognised the difficult task he faced by adopting a somewhat oblique argument relating to the mother’s credibility.  The essence of the submission was outlined earlier.  This was that there was exaggeration by the mother relating to her hand gesture, and it is reasonable to infer from this that there was exaggeration by her in relation to the contact between Mr M   and her daughter. I am not persuaded that there was any exaggeration by the mother in relation to her hand movement.  The transcripts of the evidence do not disclose this.  The video, for the reasons I have outlined, does not assist one way or the other on the narrow question as to whether there was a gesture from the mother.

[25]     In any event, even if there had been some uncertainty relating to the mother’s evidence about her hand gesture, I do not consider that that would have had a great deal of bearing on the issue as to the nature of the kiss.  The Judge’s assessment of this was clear and his conclusions fully reasoned and justified.  What is more, my independent  assessment  from  watching  the  video  as  to  the  way  in  which  Mr M   behaved when he went up to the table, as I have already described, reinforces a conclusion adverse to him on questions of credibility.

Result

[26]     I am not persuaded that there was any error by the Judge.   The appeal is dismissed.

Peter Woodhouse J