McLean v R
[2017] NZHC 3127
•14 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-400 [2017] NZHC 3127
BETWEEN PAUL MCLEAN
Appellant
AND
THE QUEEN Respondent
Hearing: 12 December 2017 Counsel:
R Samuel for Appellant
Z Johnston for RespondentJudgment:
14 December 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 14 December 2017 at 12 noon pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Robert Samuel (Auckland) for Appellant
Crown Law (Wellington) for Respondent
MCLEAN v THE QUEEN [2017] NZHC 3127 [14 December 2017]
Introduction
[1] The appellant was convicted of one charge of wilful damage1 of outdoor furniture and a ranch slider door at a Judge-alone trial before Judge Andrée Wiltens.2
He was later sentenced to 12 months’ supervision and 60 hours’ community service.3
He now appeals his conviction on the basis the evidence does not support the factual findings and inferences made by Judge Andrée Wiltens. In summary, he submits there is insufficient evidence that the outdoor furniture was damaged and insufficient evidence that it was he who broke the ranch slider door.
The law
[2] Pursuant to s 232(2) of the Criminal Procedure Act 2011, the appeal must be allowed if the Court is satisfied that:
(a) The Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b) A miscarriage of justice has occurred for any reason.
[3] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:4
(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.
[4] The Supreme Court in Sungsuwan v R defined a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.5 While the Supreme Court in Condon v R held that not
every departure from good practice renders a trial unfair.6 The departure must instead
1 Summary Offences Act 1981, s 11(1)(a).
2 Police v McLean [2017] NZDC 25351.
3 Police v McLean [2017] NZDC 25354.
4 Criminal Procedure Act 2011, s 232(4).
5 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
6 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
be “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.7
[5] An appeal against conviction proceeds by way of rehearing.8 I must carefully consider all the matters that were before Judge Andrée Wiltens but, ultimately, I must reach my own decision. If I conclude Judge Andrée Wiltens was wrong, my decision must prevail.
[6] I must also be mindful of the limitations involved in not seeing or hearing directly from the witnesses.9 I should only interfere with the factual findings of the trial Judge in exceptional circumstances.10
Evidence
The Crown
[7] The Crown’s case was that the appellant was at his parents’ house in a state of agitation and intoxication. He picked up outdoor furniture, threw it on the ground, damaging it, and then broke the ranch slider.
[8] Two neighbours witnessed the incident. The first witness, Mr Cotton, said he saw an agitated male pick up a set of outdoor furniture and throw it on the ground. The male then picked up an object and banged it on both the deck and the house (on the front door, the window next to the front door and the area around there). Mr Cotton also said he heard glass break. He saw the Police arrest the male (the appellant).
[9] The second witness, Ms Udy, said she saw a male wandering around outside the property yelling and screaming. She heard glass smashing and saw the Police arrest the male.
[10] Two Constables gave evidence at trial, and a further two Constables’ evidence was read.
7 At [78]; citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
9 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]-[31].
10 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38].
[11] Constables Eklund and Lavea gave evidence that upon their arrival, the appellant was outside with his parents and was being held back by his father. His mother was sitting on the ground. The appellant was visibly agitated and intoxicated. He had cuts to his arm and face. Constable Lavea noticed a broken window to the ranch slider.
[12] Constables Linnell and Baldock entered the property and saw a mop with blood on the handle, a broken chair in the dining room and blood on the floor. Constable Linnell also saw broken glass next to the ranch slider.
The appellant
[13] The appellant did not give an explanation to the Police, nor did he give or call evidence.
[14] Mr Samuel’s cross-examination focused on the fact that neither Mr Cotton nor
Ms Udy saw the glass window to the ranch slider break. The appellant was not near the ranch slider when Mr Cotton saw him hitting an object against the property.
[15] There was also a focus on an inconsistency in Mr Cotton’s evidence. Constable Linnell’s written statement in his notebook recorded that Mr Cotton did not hear the glass break. But Mr Cotton deposed at trial that he had heard glass break.
The District Court decision
[16] Judge Andrée Wiltens first dealt with the evidence of Mr Cotton:11
[2] Mr Cotton heard the noise, observed one male outside the house in question, saw that male pick up some outdoor furniture, throw it down on to the grass and pick up something from that damaged furniture, bang it on the desk and also parts of the house near the window, and he heard glass breaking. The fact that a constable may have recorded that Mr Cotton did not hear smashing glass kind of flies in the face of what Mr Cotton said, and it certainly flies in the face of the evidence because there is broken glass. That minor inconsistency does not get us anywhere it seems to me.
[3] The police arrived and Mr Cotton saw you being arrested. It is fairly obvious that you were the person arrested. Nobody else was at this place and there is only one person there. The obvious inference that is available here is
11 Police v McLean, above n 2.
that the person outside doing all the yelling and screaming and picking up furniture and throwing it down was you.
[17] The Judge then addressed Ms Udy’s evidence briefly:
[4] Shelly Udy gave much the same evidence. Again she cannot identify you. She does not know who you are but heard the noise, paid attention, was concerned enough about the noise to ring the police, the same as Mr Cotton was; and again she saw only one person there going backwards and forwards shouting and screaming and then being arrested by the police.
[18] Ultimately, the Judge concluded that the charge was established beyond reasonable doubt:
[6] What I am asked to do is see whether or not the prosecution have established the charge, which is intentional damage to outdoor furniture and a ranch slider window. There is no suggestion here that anybody else could have been responsible for it. The only inference available is that it was you. You were the one that was agitated. You were the one yelling and screaming. You were the one who did this.
[7] Clearly it is intentional. I do not need to explain why it is intentional because to do this sort of behaviour can only be intentional. It cannot be accidental.
Analysis
[19] The appellant submits that Mr Cotton’s evidence was inconsistent and should not have been relied on. He submits further that Mr Cotton’s evidence does not support the finding that the appellant damaged the ranch slider. As such, a miscarriage of justice has resulted.
[20] On the other hand, the Crown submits the Judge did not err. There was clear evidence that the appellant damaged the ranch slider.
[21] I agree with the Crown. Mr Cotton saw the appellant acting in a way consistent with him breaking the ranch slider door. He is corroborated by Ms Udy. When the Police arrived, the appellant was bleeding from cuts to the arm and face, which is consistent with breaking glass. He was still agitated and pacing – just as the witnesses described. Neither Mr Cotton nor Ms Udy saw anyone other than the appellant outside the house. There is no evidence of a scuffle which could have resulted in inadvertent damage. The inferences from the evidence are that the appellant was angry with his
parents, who were inside the house, acted as the witnesses described, and the parents came outside after the ranch slider was broken. Mr Cotton heard the appellant shouting “let me in”.
[22] I accept there were minor inconsistencies in Mr Cotton’s evidence. As Judge Andrée Wiltens noted, “[t]he fact that a constable may have recorded that Mr Cotton did not hear smashing glass kind of flies in the face of what Mr Cotton said, and it certainly flies in the face of the evidence because there is broken glass”.12
[23] It is true that Mr Cotton gave evidence that the appellant was by the front door. This was on a different side of the property to the ranch slider. But the Judge was entitled to take the view that Mr Cotton damaged the ranch slider. Mr Cotton gave evidence that he saw the appellant moving from one side of the property to the other. It was, therefore, an available inference which was entirely consistent with the appellant’s demeanour. The appellant gave no other explanation as to how the damage could have occurred. As the Judge commented at the appellant’s sentencing:13
[1] … If you were to say it did not happen or it was not you, you really needed to give evidence even though there is no onus on you to give evidence. There has to be some explanation other than the fact that it was you but you did not accept that.
[24] There is also sufficient evidence that the appellant damaged the outdoor garden furniture, although the prosecution called no evidence of actual damage. Instead, the prosecution put before the Court photographs of the furniture in the state in which it was found by the Police, and relied on the inferences which could be drawn from the photographs and from the evidence of Mr Cotton. The Judge said this:14
[1] … Photograph 1 shows what I would describe as an outdoor metal swing. It is clearly in a state of disrepair. Photograph 3 demonstrates that even more so because it is partly dismantled, partly pulled apart; I do not know how it has come to be in pieces, but it clearly is. I do not know if that same metal bar is also shown in photos 1 and 2 and has been moved to become part of photograph 3 or whether that is a different piece of metal, but in any event it is no longer a functioning swing. It has been damaged.
[25] Mr Cotton’s evidence was:
12 Police v McLean, above n 2, at [2].
13 Police v McLean, above n 3.
14 Police v McLean, above n 2.
Q. Now aside from this guy who was shouting did you see him do anything else?
A. Ah, yes; at one point I saw him pick up a set of outdoor furniture from a small deck and throw it on the ground.
Q. Okay and did you see him do anything else at that time?
A. Yeah at one point he appeared to pick up something, I’m unclear whether it was a piece of the furniture or something off the ground
next to, in the area and start banging on the deck and on the furniture, on parts of the house.
[26] Mr Cotton was shown the photographs referred to by the Judge which show a metal garden swing in obvious disrepair. Mr Cotton recognised the furniture in the photographs, saying:
A. Yes that’s the, um, furniture set that was sitting on the deck outside of the house.
[27] He did not recognise items shown in photograph 3 which have the appearance of being, in part, components of the swing depicted in photographs 1 and 2.
[28] Inexplicably, the prosecutor did not ask Mr Cotton to confirm that the furniture shown in the photographs was the furniture he had seen being picked up and thrown on the ground. Nevertheless, the inference is that he was referring to that being the furniture because of the reference to the deck.
[29] The prosecution was, however, assisted by Mr Samuel who, in cross- examination, had the following exchange with Mr Cotton:
Q. Constable Linnell recorded that you saw a male grab some outdoor furniture and throw it on the front lawn?
A. Correct.
Q. In your formal written statement you make a reference to “smashed it on the ground”?
A. Well it was on a small, on a wooden deck and he picked it up or dragged it and threw it onto the ground, yes.
Q. “It looked like he swung part of a swing set into a window, into a window or door which smashed”, but you couldn’t be 100% sure if it was in his hand or not?
A. Um, if that’s what my statement says, yes.
[30] Mr Samuel submits that even if it is proved that the appellant picked up the swing set and threw it on the ground, there is insufficient evidence that this resulted in
damage. There is no direct evidence of damage. In Mr Samuel’s submission, photographs 1 and 2 are insufficient to prove damage because there is nothing to say that the swing set could not be simply reassembled.
[31] There has never been a comprehensive and precise rule as to what constitutes damage. It is a matter of fact and degree.15 In Samuels v Stubbs, Walters J observed:16
It seems to me that it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes “damage”. One must be guided in a great degree by the circumstances of each case, the nature of the article, and the mode in which it is effected and treated … It is my view, however, that the word … is sufficiently wide in its meaning to embrace injury, mischief or harm done to property, and that in order to constitute “damage” it is unnecessary to establish such definite or actual damage as renders the property useless or prevents it from serving its normal function.
[32] The Court of Appeal affirmed that temporary change to an object can constitute damage in R v Archer:17
[5] … A temporary change, even slight, in an object may constitute damage if it affects the value or usefulness of that object. Whether that amounts to damage will depend on the circumstances. Of most assistance to
Ms Scott’s argument was the decision in “A” (a juvenile) v R [1978] Crim LR
689 where it was held that spitting on a raincoat which was likely to be cleaned easily with a damp cloth did not amount to damage whereas the same act on a
delicate garment, such as a wedding dress, might well have resulted in
damage.
[33] Judge Harvey comprehensively reviewed the term in R v Garrett.18 He also focused on the value or usefulness of the object in formulating a definition of damage:
[100] In my view, the approach in Samuels v Stubbs assists in formulating a proper definition of damage … Damage may be described as an action by one person in respect of the property of another which (a) detrimentally affects the utility, appearance or function of the property or (b) causes the property to perform or behave in a way unanticipated by the lawful owner or user and in both circumstances which requires intervention to restore the property to its original utility, appearance or functional state.
[34] Here, there is sufficient evidence that damage has been caused to the swing set. The photographs show the seat of the swing set on the ground. The poles next to the
15 R v Archer [2009] NZCA 543 at [5].
16 Samuels v Stubbs (1972) 4 SASR 200 (SC) at 203.
17 R v Archer, above n 15.
18 R v Garrett [2001] DCR 955 (DC) at [85]-[101].
seat show that the seat has been forcibly detached from the main component. Although the swing set may be capable of repair, its value or usefulness has been, at least temporarily, detrimentally affected.
Decision
[35] I am satisfied that Judge Andrée Wiltens did not err in his assessment of the evidence so that a miscarriage of justice has resulted. This was a factually simple case and, even if I am wrong about there being sufficient evidence of damage to the garden furniture, there is clear evidence as to the breaking of the ranch slider and that alone would be sufficient to make out the charge.
[36] The appeal is dismissed.
Brewer J
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