McGregor v The Queen
[2019] NZHC 1069
•15 May 2019
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2019-442-3
[2019] NZHC 1069
BETWEEN DAVID GILES MCGREGOR
Appellant
AND
THE QUEEN
Respondent
Hearing: 15 May 2019 Counsel:
A J Heward for Appellant
J W Cameron for Respondent
Judgment:
15 May 2019
ORAL JUDGMENT OF CHURCHMAN J
Introduction
[1] On 20 June 2018, the appellant, David McGregor, facing one charge of breaching a protection order,1 applied for the charge to be dismissed under s 147 of the Criminal Procedure Act 2011. He did so on the basis that no properly instructed jury could convict and there had been a failure to disclose relevant evidence.
Judge Zohrab at the Nelson District Court dismissed that application.2
[2] A Judge-alone trial on 4 December 2018, concluded with Judge Zohrab finding the charge proven.3
1 Domestic Violence Act 1995, ss 19(1)(d) and 49(3); maximum penalty three years’ imprisonment.
2 New Zealand Police v McGregor [2018] NZDC 13467.
3 R v McGregor [2019] NZDC 27067.
MCGREGOR v R [2019] NZHC 1069 [15 May 2019]
[3] The same day, Mr McGregor made a further s 147 application on the grounds that the offending was trivial and there had been a failure to disclose relevant evidence.
This application was dismissed.4
[4] On 18 February 2019, Mr McGregor applied for a discharge without conviction under s 106 of the Sentencing Act 2002. This application was declined, the Judge convicting and then discharging Mr McGregor.5
[5] Mr McGregor appeals his conviction and the decisions to dismiss the two s 147 applications on the following grounds:
(a)that no jury, on the evidence, could have found him guilty; and
(b)that the Judge erred in dismissing the s 147 applications.
Factual background
[6] Mr McGregor and the complainant had been domestic partners. She had a protection order against him.
[7] On the night of 8 December 2017, the complainant was sitting outside at a bar with friends when she made eye-contact with Mr McGregor. This was a random meeting and there was no intimidatory behaviour between the two of them. However, after making eye-contact, Mr McGregor went inside, ordered a drink, and came back outside, sitting at a table facing the complainant. Feeling uncomfortable, she left shortly afterwards.
[8] The complainant and her friends went to another bar and got a table. She was starting to feel more relaxed when Mr McGregor walked in and sat at a table nearby. After about a minute, she left. There was no physical or verbal interaction between them.
4 R v McGregor [2018] NZDC 26994.
5 R v McGregor [2019] NZDC 2930.
District Court decisions
First s 147 decision
[9] The Judge noted that the test for discharge on a s 147 application is whether a jury properly directed could find the charge proven.6 He said that, “in these types of hearing, context is everything,” and that, while he did not know the background circumstances leading to the granting of the protection order, the complainant had said that “she was concerned Mr McGregor’s stalking and intimidation-type behaviour would start again with him being in Nelson”.7 She had only learned a few weeks earlier that he was back in Nelson.8
[10]The Judge said:9
[6] Why this context is relevant is because psychological abuse based on the case law does not necessarily involve actual or threatened physical or sexual abuse. Psychological abuse does not necessarily have to have a physical element to it and, as the police have reminded me in terms of the decision of G v C and Judge Walsh’s list of characteristics, it can involve behaviour which chips at a person’s confidence, or is designed to put them down or humiliate them. It can involve an abuse of power which by degrees makes another person apprehensive and unsettled. It can exploit an emotional or psychological vulnerability, or it can involve indulging in behaviour designed to unsettle, antagonise, offend in any way, provoke or worry another party, or it can involve implicit or explicit threats.
[7] So here essentially what a jury would be asked to conclude is that he has got a habit or a tendency of stalking and intimidation type behaviour prior to this incident, and if that is put in its context, this is further stalking and intimidation type behaviour.
[11] Counsel for Mr McGregor has argued that he was prejudiced because security footage was no longer available which, he claimed, would show that the complainant in fact moved towards the defendant and that there was not any actual staring down of her.10
6 New Zealand Police v McGregor, above n 2, at [2].
7 At [4].
8 At [5].
9 (Citation omitted).
10 At [8]-[9].
[12] The Judge, however, determined that the footage was not within the police’s control and, by the time the matter was set down for review, had been recorded over.
He said:11
[11] In an ideal world, obviously they would have got all of the footage and copied it and made it available, but as I say, there is a process to go through. The plea of not guilty and election of trial by jury was not entered for some three months or so after the incident. That is no fault of the defence, but that is just simply the reality of the situation. So, in my view it would be wrong to dismiss for what is characterised as a failure to disclose. The footage is no longer in existence.
[13] It was noted by the Judge that this was not the strongest case that the Judge had seen of a breach of a protection order, but that a jury, hearing all of the evidence, including the contextual background and what happened on the night in question, could nevertheless find the charge proven.12 The s 147 application was declined.13
Substantive hearing
[14] The Judge noted that offending against the Domestic Violence Act 1995 still carried a criminal burden, meaning it was up to the prosecution to prove guilt beyond a reasonable doubt.14 He determined that the issue was whether the prosecution could prove that Mr McGregor’s behaviour on 8 December 2017 amounted to psychological abuse.
[15] Reference was made to the Court of Appeal decision of G v C, in which guidance is given as to what is psychological abuse.15 The Judge said that the complainant had given evidence that the relationship between her and Mr McGregor post-relationship was “hostile” and “toxic”, which led to her taking out a protection order, and that she could not be around him as seeing him brought back four years of hell.16 When cross-examined, she maintained, “I am absolutely terrified and intimidated of the defendant”.17
11 At [10].
12 At [13].
13 At [15].
14 R v McGregor, above n 3, at [2].
15 At [4], referring to G v C [1997] 16 FRNZ 201.
16 At [7].
17 At [23].
[16] Stating that there were some differences between Mr McGregor’s and the complainant’s accounts of the evening, the Judge said:
[34] So obviously I have got to clinically and dispassionately analyse the evidence. I should not simply work on the basis well look there was a protection order in force, therefore he must have breached it because she says that he breached it. I have got to clinically and dispassionately analyse the evidence because it has also been suggested here that [A] is exaggerating the impact that the defendant has on her.
[17] In terms of the complainant’s evidence, the Judge said that she “did not look to embellish or exaggerate the initial contact”18 and “she was relatively restrained in her evidence”.19 He found her to be “a truthful, credible and reliable witness”.20
[18]As to Mr McGregor’s evidence, the Judge had the following to say:21
Also, I do not accept the evidence that he arrived at the Liquid Bar beforehand, and somehow that second meeting was a totally random one. I am content to conclude that at both bars the defendant was present there and was aware that the complainant was present, that he deliberately chose to put himself in close proximity, that he must have been aware from the existence of the protection order and also the discord and the issues in the Family Court as to the impact or effect of his mere presence on the complainant, and rather than choosing to go to the bar out the back, or stay inside, rather than moving on from the Liquid Bar that the defendant has chosen to go and sit within close proximity and I am content to conclude that given the existence of the protection order, given the discord which has gone on before that he was well aware of the impact that his presence had on the complainant and the fact that it is intimidatory and undermines her confidence and that being the case I am content to put completely to one side the defendant’s account to the officer.
[19] Accordingly, the Judge determined that the complainant’s evidence established beyond a reasonable doubt that Mr McGregor engaged in behaviour which amounted to psychological abuse of the protected person.22
Second s 147 decision
[20] In the second s 147 application, counsel for Mr McGregor argued that the evidence only disclosed very low-level offending and that the police “either through
18 At [36].
19 At [37].
20 At [42].
21 At [44].
22 At [45].
inefficiency or deliberate misconduct” had been slow to seek video footage from the two bars, thereby prejudicing Mr McGregor as this footage, he submitted, would have confirmed exactly what had happened.23
[21]The Judge said:24
I accept that many people looking at the facts might see that this is modest alleged offending, some might think, without knowing the background, that it is trivial, and that she should “harden up”, and not get upset by such alleged conduct.
[22] However, once the contextual background was taken into account, the Judge concluded that:25
… a jury properly directed could, not would, but could find that he engaged in behaviour which amounted to psychological abuse, by deliberately sitting within a short distance from her against the background of the discord in the relationship.
[23] As to the video footage, the Judge stated that he was “not really sure how … closed-circuit television footage would help”,26 but that it was:27
… not a deliberate oversight on the part of the police officer, I did not understand it to be in any way planned on her part, or planned on the police part, so in my view whilst it is not ideal, it would have been great to have some footage, I am not persuaded that it means that the defendant cannot have a fair trial.
Approach to appeal
[24] This appeal is brought under s 232(2)(b) and (c) of the Criminal Procedure Act 2011 which provides that an appeal must be allowed if the Court is satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any reason. Such an appeal proceeds by way of rehearing.
23 R v McGregor, above n 4, at [3]-[4].
24 At [10].
25 At [11].
26 At [12].
27 At [13].
[25] A “miscarriage of justice” is defined as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that:28
(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.
CCTV footage
[26]In his decision, the Judge said:29
… it also defies common sense that she and her friend would have deliberately gone and sat close by. Also, I do not accept the evidence that he arrived at the Liquid Bar beforehand, and somehow that second meeting was a totally random one. I am content to conclude that at both bars the defendant was present there and was aware that the complainant was present, that he deliberately chose to put himself in close proximity …
[27] Counsel for Mr McGregor, Mr Heward, states that these comments are contested inferences or assumptions of fact made by the Judge in the absence of independent evidence. These facts would have been beyond doubt, Mr Heward submits, had the police secured the CCTV footage from both bars. It is argued that this is a matter where the police have not complied with their obligations as to the conservation of information to be disclosed to the defence.
[28] As I indicated to Mr Cameron during the course of argument, essentially the proposition was that by failing to obtain and preserve this evidence, effectively Mr McGregor’s right to a fair trial guaranteed under the Bill of Rights Act 1990 (BORA) was compromised to such an extent that this Court should allow the appeal on that ground alone.
[29] During the electronically recorded interview on 12 December 2017, Mr McGregor is asked if he threatened or intimidated the complainant. He replied, “Absolutely not” and stated that “both the videos prove that”.
28 Criminal Procedure Act 2011, s 232(4).
29 R v McGregor, above n 3, at [44].
[30] The following day, his then counsel emailed the officer-in-charge asking the police to secure the CCTV footage, explaining that both establishments had been approached and both would only release the footage to the police. He also advised urgency before the footage was lost, it being common knowledge that most CCTV recording systems operate on a loop whereby the digital data recorded is written over after several weeks.
[31] Mr Heward submits to me that the Judge erred in finding that the police cannot be held responsible for failing to secure the CCTV footage. He argues, as I have mentioned, that this is a breach of Mr McGregor’s right as guaranteed under s 24(d) of BORA to have adequate time and facilities to prepare a defence. It is submitted that it is not for the police to decide what is pertinent to the matter and to then only disclose what they wish; their obligation, he submits, is to disclose everything that they have access to in relation to the incident.
[32] Mr Heward goes so far as to say that this demonstrates bad faith by the police in its approach to gathering evidence. However, as I had clarified to counsel during the course of argument this morning, the case does not itself rest on an allegation of bad faith but breach of the obligations under BORA. While police resources may be stretched, it is in the interest of justice, Mr Heward submits, that this should not negatively impact on defendants and the Court’s credibility should not be compromised by vital evidence not being available for its consideration.
[33] Mr Cameron, for the Crown, submits that the Judge, having heard the evidence, saw the failure to secure the CCTV footage as “an inefficiency”.30 It is argued that there was no bad faith or failure to disclose information that was never in the possession or control of the police. It is further submitted that, in any regard, this would not amount to a miscarriage of justice because there is no appreciable risk that it would have altered the result in Mr McGregor’s favour. There was no allegation of physical violence, gestures or words to be captured by CCTV. Identity and mutual presence at the two bars was accepted. As the Judge put it, “I’m not sure it is really going to assist”.31
30 R v McGregor, above n 4, at [12].
31 At [12].
[34] It is my view that the Judge did not err in finding that the CCTV footage would have been of little assistance, given that it was accepted that both parties were present at the two bars. It was also accepted that it was the mere presence of the defendant that was said to be a breach of the protection order rather than any overt act of intimidation on his part. While the footage may possibly have shown that Mr McGregor arrived at the second bar before the complainant, the fact remains that this footage was not in the possession of the police. They were therefore not able to disclose it as evidence.
[35] In many respects this case turns on the findings of credibility that were made by the Judge. It is a case where the complainant gave evidence as to the events which occurred; Mr McGregor elected not to do so, as is his right. There was of course the evidence of the videoed interview, so the Judge did have at least some indication of the viewpoint of the defendant. As Mr Heward has acknowledged the Judge was obliged to make findings of credibility. He had to do so on the basis of the evidence before him. One of the matters he was entitled to take into account was the fact that on some of the important aspects of her evidence, the complainant was not cross- examined. Ultimately, it is for the Judge to assess the sufficiency of the evidence and in particular for the Judge to make findings of credibility as between the different witnesses who gave evidence before him. The Judge, in this case, was obliged to make his decision based on the evidence that was presented. He was entitled, as one of those findings, to find that the complainant was a credible witness, and in respect of those aspects of her evidence which had been challenged by Mr Heward, to accept her version of events.
[36] On an appeal of this nature, it is not for this Court to interfere with a Judge’s assessment of the facts in circumstances where this Court has not had the advantage available to the Judge of listening to, and hearing the witnesses, and seeing them subject to cross-examination.
[37] As I have mentioned, it is my view that the failure of the police to disclose, as evidence, a video footage that was not in their possession and which, in fact, has long since ceased to exist, was not a sufficient matter for this charge to be dismissed.
Toxicity of the relationship
[38] A further separate issue which Mr Heward spent some time in addressing the Court on this morning, was the question of the Judge’s finding about the toxicity of the relationship. This is a matter that was of some significance in convincing the Judge that merely by his presence, Mr McGregor effectively breached the protection order.
[39] At the trial, the complainant gave evidence that her relationship with Mr McGregor was “hostile and toxic”.
[40] On appeal, Mr Heward had initially sought to adduce evidence by way of an affidavit and a timeline supplied by the appellant. During the course of the appeal, he conceded that no application to tender fresh evidence had formally been made, and he also conceded that it was not an appropriate case where the requirements in relation to such fresh evidence, could be met. They were appropriate concessions, and the Court puts that further evidence to one side.
[41] The Court is then obliged to consider whether there was evidence which supported the Judge’s finding that the relationship between the parties was one which could fairly be described as toxic so as to justify the inference that the Court has drawn.
[42] The complainant gave evidence that the post-separation relationship between her and the defendant was what she described as hostile and toxic. That was not the only evidence as to the toxicity of the relationship. As the Judge went on to note, the parties were not able to communicate, a protection order was issued, and supervised contact arrangements were required. All of these factors were consistent with the complainant’s oral evidence that the relationship was one of toxicity. The Judge specifically found the complainant to be a credible witness.
[43] I have come to the conclusion that the Judge took into account all of the available evidence and was entitled to conclude that the relationship was toxic.
Hearsay evidence
[44] During evidence-in-chief, the complainant gave evidence that Mr McGregor was aware of the negative effect his presence had on her because Judge Russell had brought it up during Family Court proceedings. When questioned about this by the Court, the complainant stated: “Judge Russell said to David: Are you aware of the impact that your behaviour has caused and the effect it has had on [A] over the last four years?”
[45] The trial Judge sought clarification as to whether both parties were present when Judge Russell said this, and the complainant confirmed they were both present.
[46] Mr Heward submits that this was hearsay evidence which he submits was not corroborated. He submitted that the lack of detail about the context, or the alleged statement given, made it impossible to judge where it impacted on the proceedings being heard in the criminal court. He also submitted that the Crown presented no evidence from the Family Court to establish that the comment was said at all. It was submitted that, taken in isolation, without the surrounding context, the true meaning of the comment cannot be verified in relation to the criminal proceedings, thus leaving a reasonable doubt. He also submitted that the defendant, when the Judge, through counsel, had put this question to him, indicated he had no recollection of the observations attributed to Judge Russell.
[47] The Crown, in response to the criticisms by Mr Heward of the Judge’s treatment of this passage of evidence submits that this exchange was brief, avoided going into any details of the proceedings, and was led solely for the purpose of establishing Mr McGregor’s mens rea. It is noted that no objection as to admissibility was made during the trial. The Crown’s position is that the statement was offered to prove it was made in the presence of Mr McGregor and that he was aware of the effect he has on the complainant. It was not offered to prove the truth of its contents and, therefore, was not a hearsay statement. Neither was it viewed in isolation, as claimed, but rather within the overall context of the various family court orders and the complainant’s evidence.
[48] In my view, this was not hearsay evidence. As the Crown submitted, the statement was offered to prove that it was made in Mr McGregor’s presence during the Family Court proceedings, and he would therefore have been aware of the effect he had on the complainant. It formed part of the overall context that the Judge considered in arriving at his conclusion that Mr McGregor’s presence that evening was such as to constitute psychological abuse. Again, it was a situation where, although the defendant, through counsel, indicated he had no recollection of it, there was evidence from the complainant, evidence that the Judge had to evaluate and was entitled to assess as being credible as he indeed did.
[49] I would also note that in the event I am wrong in determining the statement was not hearsay, that no miscarriage has resulted from it being taken into account by the Judge. It was merely one factor among many which led the Judge to the conclusion that this was indeed a situation where the mere presence of the defendant intimidated the complainant.
Psychological abuse
[50] Mr Heward submits that the evidence does not support an inference that Mr McGregor was attempting to intimidate the complainant. There was no interaction between the parties, be it physical or verbal, she could not see his facial expression as he was smoking, and neither of them had any idea of the other’s movements. It is submitted that the law on the matter is contained in the protection order which has only standard conditions. He notes that Mr McGregor was not trespassed from the two bars and was not precluded by the standard conditions from being in either of the bars. The only standard condition of relevance is that which refers to behaviour that amounts to psychological abuse. Where it is alleged that the only abuse by Mr McGregor is his mere presence, Mr Heward submits that such a claim was not sufficiently supported by the evidence. He argues that the Judge effectively entered a special condition into the protection order, with Mr McGregor on notice to remove himself from the vicinity of any chance visual encounter that he may have with the complainant, regardless of the situation.
[51] In response to that, the Crown submits that the law is not confined to the express contents of the protection order itself. Violence, as defined in s 3(2) of the Domestic Violence Act, includes psychological abuse. Although there is no exhaustive list of what constitutes psychological abuse, the Judge cited Judge Walsh’s list of characteristics from G v C:32
·Behaviour which chips at a person's confidence or is designed to “put person down” or humiliate that person.
·Abuse of power, which by degrees makes another person apprehensive and unsettled.
·Exploiting an emotional or psychological vulnerability of another party.
·Indulging in behaviour designed to unsettle, antagonise, offend, annoy, provoke or worry another party.
·Implicit or explicit threats.
[52] The Crown submits that this case law exists irrespective of any special condition attached to the actual protection order and it is not useful to speculate as to what meaning may be attached to the absence of any special condition.
[53] Just as I have found in relation to other aspects of this decision, the Judge’s determination ultimately rests very much on his findings of fact, and his observations of the witness, particularly the complainant and his categorisation of her as a credible witness.
[54] It is my view that, in taking into account the overall context of the case, the Judge was entitled to view Mr McGregor’s behaviour as psychologically abusive. The complainant gave evidence as to her relationship and that was one that she described as toxic. She had a protection order and the Judge accepted that on her evidence the defendant was aware the effect his presence had on her.
32 R v McGregor, above n 3, at [4].
[55] The Crown conceded that the initial encounter at the first bar was by chance and that although the defendant sat close to the complainant, she left shortly afterwards. However, in relation to the second incident, the Judge was entitled to conclude that did not occur by chance, that it was deliberate, and that, known to the defendant, his presence and close proximity to the complainant, would have had an intimidatory effect on her.
[56] I am not in a position to disagree with the Judge’s findings of fact in relation to those conclusions.
Result
[57] For the reasons that I have set out, I am satisfied that the Judge made no error in finding it established beyond a reasonable doubt that Mr McGregor engaged in behaviour which amounted to psychological abuse of a protected person.
[58] I am also satisfied the Judge made no error in dismissing both s 147 applications.
[59]Accordingly, the appeal is dismissed.
Churchman J
Solicitors:
City Legal, Nelson for Appellant Crown Solicitor, Nelson for Respondent
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