McGregor v Police

[2012] NZHC 955

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-000009 [2012] NZHC 955

MICHAEL ROSS MCGREGOR

V

NEW ZEALAND POLICE

Hearing:         7 May 2012

Counsel:         J Webber for Crown

A Heward for Appellant

Judgment:      8 May 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4:00pm on the 8th May 2012.

JUDGMENT OF WILLIAMS J

[1]      Michael McGregor appeals against conviction and sentence, both occurring in the District Court in Nelson on 29 February 2012 following summary trial.  He was convicted on one count of common assault and one count of male assaults female.  The penalty imposed was nine months’ supervision with alcohol, drug and anger management conditions.

[2]      There was a sharp disagreement between prosecution and defence on the facts, with the prosecution saying the appellant assaulted his girlfriend, Latoya Stretch, twice and the defence saying the couple were ‘play-fighting’.   The two accounts are possible to reconcile at a broad level.  On 24 May 2011, the appellant

and  Ms  Stretch,  were  in  the  driveway  area  between  Lone  Star  restaurant  and

MICHAEL ROSS MCGREGOR V NEW ZEALAND POLICE HC NEL CRI-2012-442-000009 [8 May 2012]

McDonalds in Nelson.   There was an altercation between the two, witnessed by schoolgirls Ashley Galway and Bianca Duxbury.  The police say this involved the appellant smacking the nominal complainant’s head against a brick wall, punching and pushing her.   The police say when this incident ended the appellant dragged Ms Stretch away.  The appellant says that account of the facts is not correct.  He says the altercation involved Ms Stretch punching him, and him pushing her back in a play-fight to which both were consenting.

[3]      The two then moved on.  The police say the appellant used force to drag the complainant through a Shell station forecourt to Hardy Street.  The appellant says he was directing the complainant away from Anzac Park where she wanted to drink (this being illegal).  At a later stage, he was guiding her across the road, as she was quite drunk and he wanted to ensure she was safe.

The decision of Judge Zohrab

[4]      His Honour began by (correctly) setting out the elements of the two crimes and the burden and standard of proof.  The Judge then summarised the evidence as follows:

For the informant:

Ms Galway           She  saw  two  people,  one  of  whom  she  identified  as  the appellant, outside Noodle Canteen on Hardy St.   She initially thought they were fighting.  She called the police.  She saw the male ‘smacking’ the woman’s head into a concrete wall, punching her three or four times in the face and dragging her; she was punching him back in the stomach and trying to get away.

When  it  was  put  to  her,  Ms  Galway could  not  dismiss  the possibility this was play-fighting, but maintained she was concerned, which was why she called the police.

Ms Duxbury          She  saw  the  two  fighting.    She  also  could  not  dismiss  the possibility it was play-fighting but, like Ms Galway, was concerned.  She recalls seeing the appellant pushing and pulling Ms Stretch.

Mr CoxHe saw a man taking a woman through a Shell station across the road.    He  followed  them.    The  woman  was  indicating  she wanted to be left alone.   The man was forcibly dragging her. The woman then fell to the ground of her own accord.  The man was then forcibly abusing her, picking her up and swearing.  He thought both of them were intoxicated. He said he resolved to intervene if he felt it necessary (he never did intervene).

Constable Graf      The appellant gave a statement to Graf saying he did not assault the victim. He said they were play-fighting, which they do all the time.   The appellant said “We were play-fighting, we shouldn’t do it in public, that’s how we sort out our problems, it’s not like we beat each other up physically and hurt each other.”  The evidence was the victim had red tearful eyes when Graf arrived and was saying “let me go” and pulling away.

Ms Stretch             She denied any punching or throwing against a wall.  She said they were play-fighting, she was laughing throughout and she did not receive any medical attention afterwards.

For the appellant:

Mr McGregor        There was no punching or throwing against the wall at all.  Any application of force was consensual; anything he did was not for the purpose of harming her, but simply for play-fighting.  There was a disagreement about whether to go to Anzac Park and he had to lift her from the middle of the road to steer her away from the park.

Mr Emmerson        He spoke with Mr McGregor shortly after the incident.  He also saw Ms Stretch.  He did not notice any injuries.

[5]      The Judge then weighed the evidence.   He emphasised the fact that  the informant’s main witnesses were sober.  He placed great weight on Mr Cox and the fact he witnessed dragging and was concerned enough to follow the appellant.  He emphasised that Ms Galway and Ms Duxbury would not have involved the police unless “it is something that, in their view, warranted the intervention of the police.” He found it implausible that any of the Crown witnesses were lying, at least about the basic facts comprising their evidence.  He noted he needed to consider that both the  appellant  and  Ms  Stretch  were  intoxicated  at  the  time.    He  concluded  the

suggestion there was play-fighting was “ludicrous” and that:1

...this is not a situation where [the Crown witnesses] have misinterpreted what was going on. Maybe this [play-fighting] is how [the appellant and Ms Stretch’s] relationship works but it is certainly not how a functioning relationship goes.

[6]      The Judge summed up:2

This was certainly no laughing matter. It may not have been the assault of the century in that there was no blood or broken bones and maybe they do it all the time but that is not a defence, this was not a consensual situation. I am quite sure that they were both intoxicated, that there was an application of force in the manner described by Ms Galway, and that both assaults are made out.

Grounds of appeal and submissions

[7]      The appellant submits the appeal against conviction should be allowed on two grounds:

(a)      On the facts found, the appellant could not have been convicted of the offences charged (principally due to the operation of the defence of consent). This is for the following reasons:

(i)the  Judge  did  not  assess  the  credibility  of  Ms  Galway’s evidence in light of the rest of the evidence, which suggested a lack of injuries.   No other witness noted injuries despite allegations the victim’s face was smacked into a brick wall;

(ii)the Judge did not assess the divergence between Ms Galway and Ms Duxbury’s evidence (considering their accounts were witnessed simultaneously from the same vantage point);

(iii)the Judge did not account for the fact Mr Cox never felt the lifting of Ms Stretch was serious enough to warrant his intervention (despite him resolving to do so if need be);

(iv)     the Judge was not in a position to apportion weight to the

appellant    and    Ms    Stretch’s    evidence    based    on    their

intoxication; the evidence before the Court was equivocal on this point;

(v)the appellant’s and Ms Stretch’s evidence was reliable, largely consistent with the evidence of the schoolgirls and a properly directed fact-finder would not have discounted it;

(vi)the  Judge  wrongly  asked  himself  if  it  were  possible  that Mr Cox, Ms Duxbury and Ms Galway were lying or making up  their  evidence.    This  was  never  the  suggestion.    The question was whether they were mistaken.   The Judge never properly considered whether this could have been the case;

(vii)     the Judge was wrong to consider whether play-fighting was

“normal”;

(viii)considering the evidence in the light of the above submissions, no reasonable fact-finder could find the test for consent disproven beyond reasonable doubt by the Crown.  There was free, genuine consent on the part of the nominal complainant.

(b)In  any event,  the  actions  could  only possibly  have  disclosed  one charge.

[8]      The Crown respond that:

(a)      The Judge’s conclusion on the elements of crimes and defence of consent were reasonably open on the evidence.  The Judge was right to accept the credibility and reliability of the key Crown witnesses and these findings should be upheld.  In particular:

(i)The  views  of  the  two  independent  witnesses  (Ms  Galway, Ms Duxbury) were reliable; they were particularly concerned about the events.

(ii)The evidence of Ms Stretch (about laughing, having a play- fight) and that of Ms Galway and Ms Duxbury (smacking the victim’s head into a brick wall with force, pushing the victim along) were so inconsistent that it was appropriate to reject Ms Stretch’s as not credible.

(iii)The appellant was clearly pulling the victim along while at the Shell station.   The Judge was entitled to treat Mr Cox’s evidence as credible and proving lack of consent beyond reasonable doubt.

(iv)The evidence of Mr Cox and Constable Graf provided an evidential foundation for the appellant and Ms Stretch’s intoxication.

(b)The Crown and Judge Zohrab were right to proceed on the basis that two  charges  were  open  on  the  facts.    There  were  two  specific incidents.  The first was the assault by pushing, punching and pushing the victim’s into a wall and dragging away (driveway between Lone Star and McDonalds carpark), and the forcible dragging of Ms Stretch through the Shell forecourt and toward Hardy Street.

Analysis

Were the charges proved on the evidence?

[9]      This is a case that was determined on witness credibility.  The learned Judge did not accept as credible the narrative provided by Ms Stretch and the appellant.  He preferred the evidence of Ms Galway, Ms Duxbury, Mr Cox and Constable Graf.  I accept  that  there  was  no  evidence  of  physical  injury to  Ms  Stretch  such  as  to corroborate Ms Galway’s story of a relatively serious assault.  I accept also that the Judge did not assess the apparent inconsistencies between the evidence given by Ms Galway and Ms Duxbury as to the level of violence involved.  There are often inconsistencies  in  the experience and  recollection  of onlookers  seeing  the same

events.  Perception and memory can both be very idiosyncratic.  But on any view of this case, there was a significant measure of physical conflict going on between these two young people – certainly sufficient to make out the physical elements of the charges.

[10]     The only live question was whether Ms Stretch consented to this treatment. In that respect the learned Judge was entitled to rely on the following factors:

(a)      The general concern expressed by objective (and sober) onlookers at the level of physicality involved;

(b)The fact that the appellant admitted that this “play” fighting was the way he and his girlfriend sorted out “their problems”.  This confirmed that the couple were in actual conflict at the time and not playing at all;

(c)      The fact that when Constable Graf arrived, Ms Stretch had red tearful eyes reflecting that conflict, exacerbated no doubt, by their mutual intoxication; and

(d)The appellant and Ms Stretch had every reason to concoct the story to exculpate the appellant.

[11]     Judge Zohrab saw the witnesses and heard them give their evidence.  He was in a position to assess their credibility directly.  It would be quite inappropriate for me on appeal to interfere in those assessments.

Was there really only one offence?

[12]     Mr  McGregor’s  argument  in  substance  was  either  that  this  court  should exercise its discretion to dismiss one of the informations for abuse of process3  or, alternatively, an argument in autrefois convict4.

[13]     Neither submission has any real merit.  The facts giving rise to each charge here were different and the incidents were discrete.   The incident outside Lone Star/McDonalds and the forceful dragging by the Shell Station were separate in time and place.   They involved separate applications of force.   The Crown elected to prosecute the second assault as common assault (rather than male assaults female) presumably because it was less serious, but if anything this was in the appellant’s favour.

Conclusion

[14]     The appeal against conviction is dismissed.

[15]     There was no submission in respect of the appeal against sentence but in any event the sentence imposed – nine months’ supervision – was entirely appropriate in

my view.

Williams J

3 See Turner v District Court & Auckland City Council [1996] NZAR 325 (HC).

4 See Crimes Act 1961, s 358. See also the related section, s 10(4).