Mathieson v Police

[2015] NZHC 1056

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2014-442-000021 [2015] NZHC 1056

BETWEEN

BRYAN JAMES MATHIESON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	19 May 2015
Counsel:	S J Zindel for Appellant J M Webber for Respondent
Judgment:	19 May 2015

JUDGMENT OF COLLINS J

Summary of judgment

[1]      I am granting Mr Mathieson’s application for leave to pursue his appeal out

of time.

[2]      Mr Mathieson’s appeal against conviction is, however, dismissed.   I am dismissing Mr Mathieson’s appeal because none of the three grounds of appeal have been established.  In particular, contrary to Mr Mathieson’s submissions:

(1)       The District Court Judge properly considered whether there was a

reasonable doubt as to Mr Mathieson’s guilt.

(2)The  District  Court  Judge  properly  assessed  the  credibility  of  the complainant and Mr Mathieson.

(3)       There  was  no  error  because  of  the  “composite”  nature  of  the

allegations in the charge.

MATHIESON v NEW ZEALAND POLICE [2015] NZHC 1056 [19 May 2015]

Background

[3]      Mr Mathieson was found guilty by Judge Zohrab in the Nelson District Court on 7 October 2014 of one charge of male assaults female.1     Mr Mathieson was sentenced to a period of supervision for a period of nine months with two conditions imposed.2

[4]      The  charge  of  male  assaults  female  arose  from  two  incidents  involving Mr Mathieson  and  his  daughter  on  16  July  2014.    The  first  incident  involved Mr Mathieson allegedly throwing a hot water bottle at his daughter, which struck her on her thigh.   The second incident involved Mr Mathieson allegedly placing his hands around his daughter’s throat.

Leave to appeal

[5]      The appellant filed an appeal against his conviction on 24 October 2014.

That appeal was abandoned by Mr Mathieson’s then lawyer on 1 December 2014.

[6]      Mr  Mathieson’s  former  lawyer  has  explained  in  an  affidavit  that  he abandoned the appeal without Mr Mathieson’s express instructions because he had concerns  about  the  merits  of  the  appeal  and  because  he  was  unable  to  locate Mr Mathieson to take instructions.

[7]      In view of the fact Mr Mathieson did not provide express instructions to abandon his appeal, and because he has advanced grounds of appeal which ought to be considered, I am allowing Mr Mathieson leave to pursue his appeal.

Reasonable doubt

[8]      Mr Mathieson alleges Judge Zohrab did not properly consider and apply the test of proof beyond reasonable doubt.

1      Crimes Act 1961, s 194(b). Maximum penalty two years’ imprisonment.

2      (1) that he complete an anger management course and (2) that he be assessed by an alcohol and drug clinician.

[9]      It is apparent, however, Judge Zohrab commenced his judgment by saying the charge:3

… carries with it the criminal burden and the standard, meaning that it is up to the prosecution to prove Mr Math[i]eson’s guilt to that high standard of proof beyond reasonable doubt.  What that basically means is I need to be sure of his guilt.

[10]     Because Mr Mathieson gave evidence Judge Zohrab was required to consider the effect of his evidence, pursuant to a “tripartite direction”.   Judge Zohrab gave himself the standard tripartite direction in paragraph [5] of his judgment.

[11]     Judge Zohrab found Mr Mathieson’s evidence to be incredible and unreliable. Judge  Zohrab  placed  Mr  Mathieson’s  “denials  to  one  side”4    and  considered Mr Mathieson’s  version  of  events.    Judge  Zohrab  then  turned  to  consider  the evidence against Mr Mathieson.   He concluded the complainant’s evidence was truthful, credible and reliable.   Judge Zohrab therefore found the charges proven beyond reasonable doubt.

Assessment of credibility

[12]     Judge Zohrab explained why he favoured the evidence of Mr Mathieson’s daughter and why he found her to be “a fairly reasonable sort of witness”.5    Judge Zohrab noted Mr Mathieson’s daughter did not attempt to exaggerate the events, she described the brevity of the attack and the lack of pressure involved in the second incident.  She also made concessions where appropriate, such as that her father had never been violent towards her in the past.6

[13]     Judge Zohrab was satisfied that if Mr Mathieson’s daughter had wanted to “fit him up” as alleged by Mr Mathieson, she could easily have embellished her story.   The Judge seemed to be very satisfied that Mr Mathieson’s daughter was telling the truth.  She was consistent with her narrative of events and firmly denied

Mr Mathieson’s account when the essence of his evidence was put to her.

3      Police v Matheson DC Nelson CRI-2014-042-1488, 7 October 2014 at [1].

[14]     Judge Zohrab reasoned:7

The impression that I got from her [the complainant’s] evidence is that she still has very strong feelings for her father, that she did want the best for him, but she was telling the truth.

[15]     Judge  Zohrab  discussed  Mr  Mathieson’s  evidence.     He  accepted  that Mr Mathieson had travelled from Australia to New Zealand to provide his daughter with financial assistance and that she would have been “pretty hard-hearted” to have made up the allegations.8    Judge Zohrab did not accept the explanations offered by Mr  Mathieson  when  he  tried  to  explain  why  his  daughter  had  made  up  the allegations.  Judge Zohrab described Mr Mathieson’s suggestion that the hot water bottle had been thrown to close the door as “completely fantastical”.9   Judge Zohrab said Mr Mathieson had “taken refuge in fantasy” to try and explain his loss of control.10

[16]     Judge Zohrab’s overall conclusion as to credibility was as follows:11

I am content to conclude that matters happened in the manner described by your daughter, that she is truthful, credible, reliable witness who wants the best for you but certainly would not achieve that by lying.  I find that you have thrown the hot water bottle at her and struck her; not a great strike.  I find that you placed your hands around her throat, albeit limited pressure, not sufficient to upset her.

[17]     In my assessment, Judge Zohrab undertook a very thorough assessment of the evidence  knowing  that  he  needed  to  assess  the  credibility  of  Mr  Mathieson’s daughter and Mr Mathieson.

[18]     Judge Zohrab has provided a coherent and well reasoned explanation as to why he believed  Mr Mathieson’s  daughter and  did  not  believe Mr Mathieson’s explanation of events.

[19]     The second ground of appeal fails.

7      Police v Matheson, above n 3, at [43].

8 At [46].

Composite charges

[20]     In Mason v R, the Supreme Court explained that where an assault involves two or more components, then separate charges should be brought where a trial is conducted before a Judge and jury.12   This is because in jury trials all 12 members of the jury must be unanimous as to how the assault occurred and in the absence of reasons from the jury it is impossible to know how the jury can be unanimous about the elements of a composite charge.

[21]     Different considerations apply, however, where the trial is before a Judge alone who must provide reasons for any conviction.  Judge Zohrab explained in his judgment that either of the acts could constitute an assault and he was clear that he found both acts proven, along with the requisite intention.

[22]     In addition, Mr Mathieson relies on s 17(1) of the Criminal Procedure Act

2011,  which  requires  a  charge  to  “relate  to  a  single  offence”.    That  provision however, does not assist Mr Mathieson’s case because he was charged with a single offence, albeit one that comprised two assaults.

[23]     There is no deficiency because of the composite nature of the charge.

Conclusion

[24]     The appeal against conviction is dismissed.

D B Collins J

Solicitors:

Zindels, Nelson for Appellant

Crown Solicitor, Nelson for Respondent

12     Mason v R [2010] NZSC 129, [2011] 1 NZLR 296.