McAsey v Police

[2020] NZHC 2408

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-274

[2020] NZHC 2408

BETWEEN

LORRAINE GAIL MCASEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 September 2020
Appearances:	S D Withers & V I Tava for Appellant C R Purdon for Respondent
Judgment:	16 September 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 16 September 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

MCASEY v POLICE [2020] NZHC 2408 [16 September 2020]

Introduction

[1]    Ms Lorraine McAsey (the appellant) appeals a decision of District Court Judge B A Gibson finding her guilty and convicting her of assaulting her neighbour Mrs Toni Kennedy1 (Mrs Kennedy) on 17 April 2019.2 The charge against the appellant was laid under s 9 of the Summary Offences Act 1981. In delivering his decision of 24 June 2020, Judge Gibson said that he had no doubt that the appellant had struck Mrs Kennedy on her elbow with a torch as Mrs Kennedy had described in her evidence, and he was accordingly satisfied beyond reasonable doubt that the appellant was guilty of the assault.

[2]    The assault was alleged to have occurred at around 8.45 pm on the night of 17 April 2019 on a driveway shared by the appellant and her next door neighbours, Mrs Toni Kennedy and her husband Michael. The incident was recorded by a CCTV camera located on the appellant’s residence. In his decision the Judge referring to the CCTV said that “the film is of assistance in showing what happened.” 3

[3]    The appellant appeals on the ground that the Judge erred in his assessment of the CCTV evidence and of the oral evidence. The appellant says that the CCTV images show Mrs Kennedy using her right arm to strike the top of the appellant’s left arm causing the appellant’s arm and the torch she was holding in her left hand to move in a downwards direction so as to hit Mrs Kennedy on her left arm. The appellant contends that she did not intentionally apply force to Mrs Kennedy, and says that any physical contact she made with her was involuntary.

Approach on appeal against conviction

[4]    The appellant brings her appeal against conviction pursuant to s 229 of the Criminal Procedure Act 2011. The first appeal court must allow an appeal in the case of a Judge-alone trial if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage

1      At the time of the alleged assault and trial in the District Court, Mrs Kennedy was known as Ms Toni Harris.

2      Police v McAsey [2020] NZDC 12058

3      At [5]

of justice has occurred for any reason.4 A miscarriage of justice is defined as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or that has resulted in an unfair trial, or the trial was a nullity.5

[5]    The Supreme Court in Sena v New Zealand Police6 has confirmed that the approach adopted in Austin, Nichols & Co Inc v Stichting Lodestar7 in respect of civil appeals conducted by  way of  re-hearing  is  applicable  to  criminal  appeals  under s 232(2)(b). The Supreme Court said:8

If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But to the extent that [counsel] was suggesting that the role of an appellate court is to consider the issues de novo as if there had been no hearing at first instance, then we do not agree. Since it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “customary’ caution”.

The Judge’s decision

[6]    In his decision the Judge accepted the accounts of the incident given by Mr and Mrs Kennedy. Referring to the CCTV recording, he said:

[3] … It can be seen in the camera footage that [the appellant] raised the torch, which seemed to be a reasonably large torch, very close to [Mrs Kennedy’s] face, approximately one foot from her face. [Mrs Kennedy’s] evidence [was] that the torch was shone on her face and that can be seen on the CCTV. [Mrs Kennedy] said in evidence, and I accept, that she asked the defendant to move the torch and what the defendant then did, according to [Mrs Kennedy], was swing it and hit her on her left elbow.

Submissions

For the appellant

[7]    Mr Withers for the appellant submits that the Judge erred in finding that the copy of the CCTV recording played at the appellant’s trial assisted the prosecution

4      Criminal Procedure Act 2011, s 232(2)(b).

5      Section 232(4).

6      Sena v New Zealand Police [2019] NZSC 55 at [32].

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

8      Sena v New Zealand Police, above n 6, at [38].

case.9 Counsel submits that the CCTV recording contradicts the evidence of the prosecution witnesses in a material way, as it shows that the first and only strike is made by the complainant, Mrs Kennedy herself. Mr Withers submits that the CCTV does not show the appellant using the torch in her left hand to strike Mrs Kennedy. He submits that the  CCTV  shows  that  immediately  prior  to  the  alleged  assault,  Mrs Kennedy raised her right arm above the appellant’s and then struck the appellant’s left arm with a downwards motion. Counsel submits that Mrs Kennedy’s hand can be seen on the CCTV “in relief against the backdrop of [Mrs Kennedy’s] face which is illuminated by the torch held by the appellant.” Mr Withers submits that there are reasonable grounds to suggest that Mrs Kennedy’s act of doing that caused the torch being held by the appellant in her left hand to strike Mrs Kennedy’s own left arm.

[8]    Furthermore, says Mr Withers, the CCTV shows the torch beam being held on Mrs Kennedy’s face for a full two seconds before she strikes down on the appellant’s arm causing the torch to hit her own left arm. He submits that this is quite contrary to the Judge’s finding that the appellant had raised the torch up to strike Mrs Kennedy as was described by the prosecution witness Ms Caldwell.

[9]    Mr Withers says that the CCTV images show that immediately following Mrs Kennedy’s downward striking of the appellant’s left arm, a struggle between the two women over possession of the torch ensued, before Mr Kennedy intervened and dragged the appellant onto the ground.

[10]   Mr Withers submits that the prosecution witnesses10 interpreted the CCTV recording in a manner favourable to their shared account that it was the appellant who had struck Mrs Kennedy. He says however that there was nothing in the CCTV recording that provided any reason for the Judge to prefer the oral evidence given by the prosecution witnesses, over what was visible from the CCTV. Counsel submits that as the CCTV recording does not support the prosecution witnesses’ claims that it was the appellant who swung the torch down on Mrs Kennedy’s left arm, the Judge

9      A copy of the CCTV recording produced as exhibit 1 in the District Court, was produced and available for the purposes of the appeal.

10     Mr and Mrs Kennedy and their neighbour Ms Amanda Caldwell.

ought to have preferred the CCTV evidence over their oral evidence, and concluded that there was reasonable doubt as to the accuracy of their accounts of what occurred.

[11]   Mr Withers submits that the Judge’s erroneous assessment of the evidence has led to a miscarriage of justice.

The respondent

[12]   Mr Purdon for the respondent submits that the CCTV recording corroborates the account given by the three prosecution witnesses. He submits that the CCTV shows the appellant raising the torch to shine it into Mrs Kennedy’s face before the light is subsequently redirected down towards the ground, indicating that the hand holding the torch has swung in a downward motion. He says that the CCTV does not show Mrs Kennedy striking the appellant’s arm.

[13]   Mr Purdon submits that the CCTV images are “grainy” and difficult to decipher except as showing that the torch light was first shone in Mrs Kennedy’s face, and then redirected towards the ground. He says that in the absence of oral testimony it is not possible from the CCTV images to tell how or why that redirection of the torch beam happened. He submits that Mr and Mrs Kennedy and another neighbour who was an independent witness gave evidence that it was the appellant who shone her torch into Mrs Kennedy’s face and then struck downwards with the torch hitting  Mrs Kennedy on her arm. He says that their version of the events is consistent with what can be observed with sufficient clarity from the CCTV images.

[14]   Mr Purdon says that the Judge made no error in his finding and submits that the appeal should be dismissed.

Discussion

[15]   The CCTV recording was played several times during the hearing of the appeal, including being played in slow motion and at normal speed. The CCTV recording produced as an exhibit is not the actual recording made by the CCTV device, but rather a recording made by a police constable who filmed the original CCTV recording being replayed the day following the alleged assault. The CCTV images

show the appellant and the Kennedys standing together on the shared driveway at a distance of around 20 metres from the camera. The area where they are standing is illuminated by electric lighting shining from the vicinity of appellant’s house down the driveway towards where they are standing.

[16]   While the images of the three people are not sharply focussed, they are nevertheless sufficiently clear to enable the following to be observed. In order to undertake this review of the CCTV it was necessary to view the images of the crucial aspects of the incident on a frame by frame basis. The CCTV recording shows:

(a)Three people are seen standing together in a group. The appellant is nearest  to  and  facing  away  from  the  camera,   facing   towards Mrs Kennedy who is standing immediately in front of her and slightly to her left.

(b)Mr Kennedy is also standing in front of the appellant, beside and to the left of Mrs Kennedy. Initially the beam from the torch held in the appellant’s left hand is directed at the ground around Mrs Kennedy’s feet. Although both Mrs and Mr Kennedy are standing in close proximity to the appellant it is clear that Mrs Kennedy is somewhat closer and in the appellant’s face.

(c)While in that position Mrs Kennedy raises her right arm and hand up to above her own shoulder height into a position around the appellant’s face height. While Mrs Kennedy is in that position, Mr Kennedy appears to use his right arm and right hand to move Mrs Kennedy away from that position and the appellant.

(d)After stepping back approximately a metre, Mrs Kennedy still facing the appellant then gestures towards her with her arms spread wide at shoulder height, before stepping forward to once again stand directly in front of the appellant but in closer proximity to the appellant than    Mr Kennedy who remained standing to Mrs Kennedy’s left.

(e)As Mrs Kennedy steps forward towards the appellant, she once again raises her right hand in a motion that brings it in proximity to the appellant’s face. At that point the appellant brings her left hand up to shine the torch beam into Mrs Kennedy’s face from what must only have been a short distance as evident from the narrowly focussed light of the torch beam on Mrs Kennedy’s face.

(f)The position of the torch beam in Mrs Kennedy’s face is maintained for approximately two seconds before Mrs Kennedy’s right arm and the torch beam both move rapidly. The direction of the torch beam moves from Mrs Kennedy’s face towards her left to briefly illuminate Mr Kennedy and thence downward to the ground.

(g)At the same time as the torch beam moves, Mrs Kennedy’s right arm moves across her body and downwards. This movement of Mrs Kennedy’s arm is consistent with her using a swatting motion to get the torch beam out of her face. In doing so it is quite possible that the torch still held by the appellant would have struck Mrs Kennedy on her left arm.

(h)There then ensues a brief struggle between Mrs Kennedy and the appellant while Mr Kennedy stands back. It appears that the torch is dropped and Mr Kennedy then appears to intervene to separate the two women and appears to take hold of the appellant and pull her down the driveway a short distance where the two of them move off the driveway into a gap in the hedge.

(i)Some few seconds later, when the appellant reappears onto the driveway, she is on the ground and Mr Kennedy is standing beside her and he appears to be dragging her back out onto the driveway. He is holding the torch at this time, and while the appellant is still on the ground, Mr Kennedy passes the torch to Mrs Kennedy. When the appellant gets back up off the ground, Mrs Kennedy can be seen

handing her back the torch, before the appellant walks back up the driveway towards her house.

[17]   What appears from a close viewing of the CCTV is materially inconsistent with Mrs Kennedy’s account which was:11

…[the appellant] was standing there facing me with the torch in my face. She starts to walk towards me with the light directly in my face until she’s about this far away from me with the torch.

Police prosecutor: Just pause. “This far,” won’t translate if it has to be typed up, so are you talking about a foot away from your face?

Yes, by that time she’d stopped, her torch was in my face, in my eyes, I couldn’t see. I was asking her, “Could you please get that torch out of my face?” She then swung up her arm and whacked the torch onto my left shoulder. I mean left elbow, sorry. I reacted ‘cos I couldn’t see.

[18]   Mr Kennedy’s account of the incident was not specific as to what occurred. He said:12

Then the neighbour got her torch, was shining that directly into Toni’s face. It was quite threatening. I might have said something like, “Put your torch down, don’t shine that like that.” I don’t remember exactly. Then [the appellant] for some reason struck Toni on her forearm with the torch. I said, “Don’t do that,” or something. At the same stage [the appellant] was walking, the neighbour was walking towards me, I was retreating, not wanting confrontation, physical confrontation. I think – well yes, what happened then was [the appellant] may have tripped, probably on my feet, I would think, fell over. At the same time she had my sweatshirt grabbed in her hand. As she fell down onto a pile of, small heap of hedge trimmings et cetera.

[19]   Ms Amanda Caldwell is a neighbour whose property adjoins the shared driveway where the alleged assault occurred. Hearing some commotion coming from the driveway on the evening of 17 April 2019 she went to see what was happening. She described what she observed:13

It was getting dark, quite dark, and there was a bit of a commotion going on with [the appellant] the neighbour and the other two neighbours. And while standing there listening to what was going on, I saw [the appellant] had a torch and she was shining it at them and they were sort of moving back as she was sort of seeing what was happening. And then I saw her raise the torch up and bring it down, which ended up striking Toni and she screamed out, “Ow, that’s

11     Notes of evidence page 3 line 20.

12     Notes of evidence, page 23, line 26.

13     Notes of evidence page 33 line 21, and page 35 line 16.

my arm.” Then there was a scuffle and [the appellant] advanced towards Mike and then they fell to the ground and then I didn’t see what happened after that because they went behind the bush. And then she was lying on the ground and saying, “Call me an ambulance,” and Toni was saying she’d hurt her arm.

...

There was an altercation and there was a lot of words used and then I saw the torch in [the appellant’s] hand go up in the air and then strike down, obviously with being the light in the torch you could see what was happening. That struck Toni on the arm. Then there was a bit of a scuffle and then she lurched for Mike and then they went over behind that bush there.

[20]   Having reviewed the CCTV recording of the incident in detail, this Court is able to determine what happened by means of the direct evidence of the CCTV images. In these circumstances, the Judge’s advantage of seeing and hearing the witnesses and the findings he made in which he accepted Mrs Kennedy’s account given are not such as require the appeal court to defer to the Judge’s assessments and conclusions.

[21]   The CCTV recording is of assistance in showing what happened, but what it shows is not consistent with the evidence given by Mrs Kennedy, Mr Kennedy, and Mrs Caldwell. The CCTV shows that the appellant did not swing her arm up and “whack” the torch onto Mrs Kennedy’s left elbow. The events as shown on the CCTV are quite inconsistent with Mr Kennedy’s account and evidence. Similarly, the account given by Ms Caldwell of seeing the appellant’s hand go up in the air and then strike down on Mrs Kennedy’s arm, is not what actually happened.

[22]   Assault is defined in s 2(1) of the Summary Proceedings Act 1981 as meaning the act of intentionally applying or attempting to apply force to the person of another directly or indirectly. Here it was alleged that the appellant assaulted Mrs Kennedy by deliberately and intentionally striking her left arm with a torch she was holding.

[23]   From the CCTV recording it appears that Mrs Kennedy used her right arm and hand against the appellant’s left arm or hand in which she was holding the torch, in order to get the torch beam out of her face. In brushing or swatting the appellant’s torch holding hand out of her face, Mrs Kennedy’s action is likely to have caused the appellant’s arm and the torch she was holding to strike Mrs Kennedy’s own left arm.

[24]   As a close examination of the CCTV images makes this at least a reasonable possibility, I find the prosecution has not proven beyond reasonable doubt that the appellant assaulted Mrs Kennedy.

[25]   I am satisfied that the Judge erred in his assessment of the evidence and particularly his assessment of the CCTV recording of the incident. Rather than confirming the oral evidence of Mrs Kennedy, her husband, and Mrs Caldwell, the CCTV recording shows that what actually happened was materially different than the accounts that they gave in their evidence. I accordingly find that the Judge’s error has resulted in a miscarriage of justice and the appellant’s assault conviction should be quashed.

Result

[26]The appeal is allowed. The conviction entered against the appellant is quashed.

[27]   I find the appellant not guilty of assaulting Mrs Toni Kennedy on 17 April 2019.

Paul Davison J