M v Police HC Wellington CRI-2006-485-113

[2007] NZHC 1717

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-113

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 April 2007

Appearances: E Hall for Appellant

T Epati for Respondent

Judgment:      5 April 2007 at 10.00am

In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of 10.00am on the 5th day of April 2007.

JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr M   was charged with one count of assault against a police officer. In  the  District  Court  at  Wellington  on  11  April  2006  he  was  convicted  and

discharged by Judge Tuohy.  He appeals against that conviction.

M V POLICE HC WN CRI-2006-485-113  5 April 2007

Factual background

[2]      On 2 December 2005, Mr M   was arrested in relation to other matters at his home by Detective John Mackey.  There is no suggestion that the arrest was not lawful.  Mr M   was taken back to the Wellington police station, where the Detective accompanied him in a lift from the first floor to the eighth floor, where he was to be interviewed.   From the fourth to the eighth floors Mr M   and Detective Mackey were the only passengers in the lift.

[3]      Detective Mackey gave evidence that, just as the lift reached the eighth floor, he put his hand on Mr M  ’s shoulder to guide him out of the lift.  He says Mr M   then swung at him with his right elbow.   The Detective narrowly managed to avoid the blow.   He then pushed Mr M   out of the lift and subdued him.   Mr M  , on the other hand, claimed that Detective Mackey, upon reaching the eighth floor, had said to him “want a shot at the title fight, cunt?” and had, without provocation, punched him in the side of the head, pushed him out of the lift, and put him in a choker hold.

[4]      There were no other witnesses to what transpired inside the lift.   The only witnesses to give evidence were Detective Mackey, who was also the officer in charge, and Mr M  .

Decision under appeal

[5]      The Judge in his decision outlined the evidence given by Detective Mackey, and by Mr M  .  He identified the key conflicts in that evidence, noting that there were two diametrically opposed accounts of what had happened.   He also referred to two matters on which Detective Mackey had been cross-examined, namely:

a)       the fact that a bail opposition form, which the Detective would appear to have initially acknowledged preparing, but which he subsequently said  had  been  prepared  by  others  with  his  input,  had  referred  to

Mr M  ’s left forearm and elbow being used to strike out at him, rather than the right as given in his evidence; and

b)the fact that although he denied saying “want a shot at the title fight” as he and Mr M   left the lift, he acknowledged he may have used those words or similar later in the cells.

[6]      Having so considered and recorded the evidence, the Judge then assessed the credibility of both witnesses by looking at the plausibility and the logicality of the competing events.  He recorded that he found the account of Detective Mackey to be inherently plausible, as police officers often place their hands on a suspect to direct them in a particular direction, and suspects often strike back.  He found the evidence of Mr M  , on the other hand, to be inherently implausible.   While police officers might on occasion assault other persons, in this case Mr M   had had no previous contact with the detective, and nothing had happened in the lead up to the incident in the lift which would provide any sort of motive for the detective to lash out at Mr M   in an unprovoked way.  The Judge therefore came to the conclusion   that   he   believed   Detective   Mackey’s   account,   and   disbelieved Mr M  .

[7]      He   then   stated   that   he   was   satisfied   to   the   criminal   standard   that Mr M   did attempt to apply force to Detective Mackey, and  accordingly found the charge proven.

The appeal

[8]      For Mr M  , Ms Hall submitted in general terms that the District Court Judge erred because he did not give proper consideration to the onus of proof, nor to the standard of proof.  In particular, she focussed on Judge Tuohy’s judgment at [9] and [10], and the way in which he analysed the two competing accounts from the perspectives of plausibility and logicality.

[9]      In that context, Ms Hall’s submission was that the Judge should have more particularly analysed the three areas in which the Detective’s evidence had been

challenged: that is, the discrepancy between the reference in the bail opposition to the  left  elbow  and  the  reference  at  trial  to  Mr  M  ’s  right  elbow;  the Detective’s  alleged  shift  in  position  as  to  whether  or  not  he  was  personally responsible  for  the  bail  opposition  material;  and  the  Detective  initially  denying saying to Mr M   “want a shot at the title fight”, and then acknowledging he might have said that later.   Ms Hall submitted that each of those aspects of the evidence should have been analysed by the Judge, in terms of reaching a decision as to credibility and, in turn, whether the offence had been established beyond reasonable doubt.   In her submission, the Judge had not done so, but rather had proceeded by way of his plausibility and logicality analysis, in a way not subsequently related to relevant elements of the evidence.

[10]     For the Crown, Ms Epati submitted in general terms that the Judge had proceeded in a correct manner, had clearly analysed the evidence, had reached views based on credibility and plausibility which was an entirely appropriate approach to take, and had (explicitly) acknowledged the need for the charge to be proved to the criminal standard.

[11]     In submitting that there was no error in this approach, she referred me to a number of decisions.  In particular she noted comments of Venning J in H v Police HC AK CRI-003-463-47 25 February 2004 and in Karaka v Police HC AK CRI-

2005-404-245 20 March 2006.

Discussion

[12]     The core of Ms Hall’s challenge to Judge Tuohy’s decision is her submission that  the  Judge’s  credibility  and  plausibility  analysis  was,  to  use  her  phrase, undertaken objectively – by which I understand her to mean without reference to important elements of the evidence.

[13]     In my view, and in light of the careful narration of relevant elements of the evidence contained in Judge Tuohy’s decision, that submission is not sustainable.

[14]     As I have noted, Judge Tuohy was careful to record the essential facts of the charge, to note where the two accounts were obviously in conflict, and to consider and  comment  on  important  elements  of  the  cross-examination  of  the  Detective carried out by Mr M  ’s counsel.

[15]     It was only having undertaken that exercise, and in my view therefore in light of that exercise, that Judge Tuohy then looked at the plausibility and logicality of the competing events.

[16]     In my view, when Judge Tuohy says at [11]:

Having  analysed  the  competing  accounts  in  that  way,  I  come  to  the conclusion that I do not believe the defendant’s account and I do believe the Detective’s account,

he is referring not only to the conclusions he recorded based on plausibility and logicality, but also to his broader analysis of the evidence.

[17]     Faced with two competing accounts, such an analysis appears an appropriate way of coming to a conclusion.

[18]     I note two further matters:

a)       Judge Tuohy explicitly referred to the criminal standard.

b)Judge Tuohy also acknowledged that, in terms of the fundamentally competing accounts he was presented with, whilst police officers did sometimes unnecessarily push defendants in custody and that did sometimes cause reactions of the type here, and whilst officers did on occasion assault other persons, he did not find evidence of that occurrence in this instance.  This, in my view, further shows the open- minded way the Judge considered all the evidence and reached his conclusion.

[19]     On that basis, and with reference to such cases as H and Karaka, I do not find any ground to interfere with the decision reached by Judge Tuohy.

Conclusion

[20]     The appeal is dismissed.

Clifford J

Solicitors:

Luke, Cunningham & Clere, Wellington, for Respondent