McCullough v Police
[2015] NZHC 2988
•27 November 2015
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2015-412-000025 [2015] NZHC 2988
BETWEEN ANTONY MARTIN FREDERICK
MCCULLOUGH Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 16 November 2015 Appearances:
C Savage for the Appellant
R D Smith for the RespondentJudgment:
27 November 2015
JUDGMENT OF NATION J
Introduction
[1] Mr McCullough made contact with the complainant through the online dating site Tinder. They met for the first time at the home of a friend of the complainant at approximately 11.45 pm on 6 January 2015. After socialising at a gathering at that place, they travelled to Mr McCullough’s home by taxi at about 1.30 am on 7
January 2015. There is no dispute that, shortly after arriving at that address, they engaged in consensual sexual intercourse. As a result of what happened after this, it was alleged that Mr McCullough had struck the complainant a number of times in the face with his hand and had applied force to her in a general struggle. He was charged with male assaults female. He denied the allegations.
[2] After a trial before Judge Geoghegan, Mr McCullough was found guilty.1 He
was subsequently sentenced to 120 hours’ community work.2 He has appealed against his conviction.
1 Police v McCullough [2015] NZDC 10403.
MCCULLOUGH v POLICE [2015] NZHC 2988 [27 November 2015]
The law
[3] Section 232 of the Criminal Procedure Act 2011 states:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason. (3) The first appeal court must dismiss a first appeal under this subpart in
any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected;
or
(b) has resulted in an unfair trial or a trial that was a nullity.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
Submissions on appeal
[4] Mr Savage, for Mr McCullough, suggested there had been serious unfairness to Mr McCullough through what he submitted was inadequate investigation of the complainant’s allegations, primarily that the constable arrested him for assault before questioning him about anything that had happened between him and the complainant and also because the constable had not attempted to obtain the medical notes that were prepared at the hospital after the complainant was taken there on the morning of the incident. Mr Savage suggested that disclosure of those notes may have made
it easier for Mr McCullough to establish that during the incident the complainant was
2 Police v McCullough [2015] NZDC 13910.
so affected by her alcohol consumption that the Judge ought not to have accepted that she could have been a reliable witness in respect of the crucial alleged events.
The timing of the arrest
[5] I do not consider these criticisms provide any basis for me to overturn the decision made by the Judge. The constable acknowledged at the hearing that he had arrested Mr McCullough immediately on finding him at the address the constable had gone to. The constable explained he did this because at the time he was under the impression that Mr McCullough was at the complainant’s and wanted to remove him from that address. The constable gave evidence of a brief conversation he had with Mr McCullough when taking him to the police station. At the station he began an interview with Mr McCullough. Mr McCullough exercised his right to talk to a lawyer. The constable gave evidence that, after receiving that advice, Mr McCullough wanted to know first what the allegations were. It seemed from the evidence that the interview stopped soon after that. There were no admissions.
[6] What happened between the constable and Mr McCullough made no difference to the fact that the police laid a charge, as they were entitled to do, based on the information that had been given to them by the complainant. Mr McCullough denied the complainant’s allegations. At trial, the Judge had to decide if the crucial elements of the charge had been proved beyond reasonable doubt on the evidence which was before him.
The hospital records
[7] The police did not obtain the hospital records relating to the complainant’s attendance at the hospital the morning of the alleged assault. Mr McCullough’s then counsel did not ask the police to obtain the hospital records before the hearing.
[8] The complainant’s sobriety and general credibility was a major focus of cross-examination. She had passed out briefly while in the car with the police after they spoke to her on the morning of the incident. There was cross-examination about the alcohol she had consumed.
[9] The fact that neither the police nor the defence had the hospital admission records provides no basis for suggesting that the trial proceeded in a way which was unfair.
[10] I was, however, puzzled by this submission given that the hospital records were on the Court file which was before me. Neither counsel was able to explain how that could have happened. On reading the Court file more carefully, I could see the hospital records were attached to the complainant’s victim impact statement. Mr Smith had the notes. Mr Savage had not been counsel at trial. He did not have the notes. Given the submission that had been made in relation to them, I gave Mr Savage the opportunity to read those records in case there was anything of significance he wanted to raise as a result. While he referred to a particular detail that may have emerged from those notes, he did not suggest this was of any significance. I am satisfied, having read those notes, that the fact defence counsel did not have them could not have created a risk of a miscarriage of justice.
Lack of independent witnesses
[11] Mr Savage suggested that the Officer in Charge “failed to interview any independent witnesses”. It was suggested in cross-examination to the constable that he ought to have interviewed other people who had been at the gathering that preceded the complainant and Mr McCullough going to his address and having consensual sexual intercourse.
[12] There was agreement as to how the complainant and Mr McCullough had made contact through Tinder. There was agreement that within a short time of meeting, they had gone to Mr McCullough’s address and that consensual sexual intercourse had taken place. The trial Judge had to decide whether the police had proved beyond reasonable doubt that Mr McCullough had struck her above her eye and on the right side of her face after she resisted his further sexual advances towards her and whether he had applied physical force to her in the general struggle she described in making those further advances. There were no independent witnesses to what may or may not have occurred at that crucial point of the encounter. I thus do not consider that any omission by the police to obtain evidence
about what may or may not have happened at the gathering could have created a risk of a miscarriage of justice.
The criminal standard of proof
[13] The focus of Mr Savage’s submission was that the Judge misdirected himself as to the appropriate standard of proof, reaching his decision as if it required proof on the balance of probabilities rather than proof beyond reasonable doubt. He submitted that the Judge had found the charge proven simply through preferring the evidence of the complainant to that of Mr McCullough.
[14] I cannot accept the submissions in this regard.
[15] The Judge specifically referred to the correct standard of proof and what was required before he could find Mr McCullough guilty of the charge that had been brought. He said:3
That then is the evidence. As is so typical of situations such as these, the evidence often comes down to one persons’ [sic] word against another. I am not required to accept either one version or the other. If I am not satisfied beyond reasonable doubt as to what occurred then I must dismiss this charge. Accordingly and bearing in mind this is typical of cases of this kind, one has to consider the nature of the evidence which is not only the evidence from the parties, but other evidence that is available.
[16] The Judge reminded himself correctly of what was required after saying that he preferred the evidence of the complainant to that of Mr McCullough:4
None of these things are conclusive in themselves, but in having heard the evidence of the parties, I prefer the evidence of the complainant to that of the defendant and when taken together with the other matters which I have referred to, they satisfy me beyond reasonable doubt of the assault alleged. Given that this is a straight conflict between Ms [W] and Mr McCullough as to whether an assault occurred or not and given that I have accepted the evidence of Ms [W], I am also satisfied that what occurred was an assault, rather than any unintentional contact. The charge is accordingly proved.
[17] It is clear from that statement that the Judge appreciated he could not determine whether the charge had been proved simply by deciding whether he
preferred the evidence of the complainant to that of the defendant. Although he
3 Police v McCullough, above n 1, at [17].
made a decision about that, it is clear he appreciated he had to still be satisfied that the crucial elements of the charge had been proved beyond reasonable doubt.
[18] Essentially, it is submitted for Mr McCullough that the evidence was not sufficient for the Judge to conclude that the charge had been proved beyond reasonable doubt. I have carefully read the evidence and the Judge’s decision in light of that submission.
[19] The Judge noted the agreement which existed as to the background to what happened after the initial consensual sexual intercourse. He referred in detail to the evidence which the complainant gave. The Judge said that the evidence she gave was detailed and had been given by her in what he considered to be “a careful and considered manner”.5 He noted that she had made a concession in that she could not explain how bruising had occurred to her right thigh given her description of events. The Judge considered the complainant’s detailed account of what happened that night was not damaged by cross-examination to the point of rendering it unreliable.
He accepted it as being both genuine and reliable.
[20] On my reading of the transcript of the complainant’s evidence, I likewise consider it has the hallmarks of honesty and reliability. The detail of the evidence she gives fits with the general description of what she was alleging, the feelings which she described having at the time and the emotion which she exhibited soon after leaving the address. She referred to her hyperventilating at one point because she was panicking. She referred to Mr McCullough punching the pillow after he had got out of the bed. While that detail was consistent with him being angry or frustrated in the same way as he must have been if he struck her on the side of the face, it was not detail which was essential or inherent in the allegation she was making about being hit on the side of the face.
[21] I note also the way in which the complainant, when asked what happened next, referred to what she could “remember” but also on occasions answered questions in a way which indicated to the Judge that she could not be absolutely certain about something. After she had said that Mr McCullough was using his right
knee between her legs trying to put them apart, she was asked what knee he was
using. She said “it was his right knee I believe”.
[22] The Judge had the advantage of seeing and hearing the complainant give evidence; that advantage is not just about the demeanour of the witness. More significantly, he had the advantage of hearing how questions were put, what was said in response and how it was said. In that sense, he was in a better position than me to form a view as to the complainant’s credibility. What she said is crucial to that assessment but, to the extent that is revealed by the transcript, the record supports the conclusion which the Judge came to.
[23] The Judge considered that the complainant’s action and complaint soon after what happened were consistent with her allegations being true. Essentially, the case for Mr McCullough was that she had made up these allegations because Mr McCullough had indicated that he was not interested in continuing a relationship with her. The complainant’s evidence was that, after Mr McCullough had punched a pillow, he rolled onto his side and threw the blankets over his head. She got her clothes and changed in the bathroom and then left. She gave evidence that she texted a friend from Mr McCullough’s address, that they arranged to meet nearby and that upon meeting she complained she had been assaulted. The police were called and she was taken to hospital. The Judge was entitled to consider and weigh in the balance his view that it is unlikely she would have been able to “put together a fabricated story of the kind that she is alleged to have fabricated in the time
available”.6
[24] Although the Judge did not have evidence from the hospital, he did consider photographs. Some had been taken at the police station on 12 January 2015, some six days after the incident. There were two photographs produced to the Court which were taken at the hospital. The photographs taken at the hospital are of the complainant’s face. They show her in a distressed state with redness on the right side of her face and a smaller area of discolouration consistent with bruising. That discolouration and apparent bruising is also apparent in photographs which were taken later at the police station. Photographs taken at the police station also showed
some evidence of bruising above the complainant’s right eye where she said she had been hit. I note, in relation to that, the complainant said that she had not been aware of bruising there on the night but that she had noticed it when it showed up more two days later. Photographs taken at the police station showed some bruising around the neck which the complainant believed had come from when Mr McCullough had his arm around her neck and “tightened it”. Photographs taken at the police station also indicated a bruise to the upper thigh. The complainant said she believed this bruising had probably occurred from when his knees were trying to push her legs apart. The Judge considered the bruising evident in the photographs was consistent with the sort of tussle she had described.
[25] The Judge considered that the photographs of the complainant were “more corroborative than not of the matters which she alleges”. Mr Savage said that the reference to the photographs being “more corroborative than not” was another instance of the Judge adopting a “more probable than not” standard of proof as being sufficient. I do not consider the Judge’s remarks have that significance. It is only the elements of the charge which have to be proved beyond reasonable doubt. The Judge was fully justified in concluding that the photographs were of some weight in determining whether or not the complainant’s allegations as to the assault were true.
[26] In weighing all the evidence, the Judge did attach some significance to evidence that, before Mr McCullough knew what the allegations were, he had acknowledged to the constable that he had engaged in rough sex but said he had not strangled her or anything like that. Given there was no acceptance from the complainant that there had been consensual “rough sex”, the Judge was justified in thinking that Mr McCullough’s statements in this regard tended to provide support for the complainant’s account of the events which was crucial to proving the charge beyond reasonable doubt. The Judge was entitled to use the evidence in this way.
Conclusion
[27] On all the evidence which was before him, the Judge could quite reasonably and properly conclude that Mr McCullough had intentionally assaulted the complainant. I am satisfied that he applied the correct standard of proof. I have not
been persuaded that the Judge made an error in his assessment of the evidence. I am satisfied that no miscarriage of justice has occurred.
[28] In accordance with s 232(3) of the Criminal Procedure Act 2011, I must dismiss this appeal.
Solicitors: PDS, Dunedin
RPB Law, Dunedin
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