McNeill v Police

[2021] NZHC 2926

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000023

[2021] NZHC 2926

BETWEEN

MARK STEPHEN MCNEILL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 October 2021
Appearances:	B Stephenson for the Appellant C J Bernhardt for the Respondent
Judgment:	18 October 2021

ORAL JUDGMENT OF GENDALL J

[1]    The appellant Mark McNeill was convicted of indecent assault following a Judge Alone trial before Judge Glubb in the Dunedin District Court.1 He appeals against that conviction on the basis the Judge erred in his assessment of the evidence to the extent that a miscarriage of justice has occurred.

[2]    Turning to the background facts in this matter, on the evening of 25 July 2020 the victim, aged 19 at the time, and four of her friends met at a local address. They drank alcohol and the victim estimated she consumed about 10 standard drinks. At around 10 pm the group went to a bar in the central city. There the victim consumed about three standard drinks over a two hour period.

[3]    By midnight the group had left that bar and travelled to another bar approximately 100 metres down the road. There the victim consumed two

1      Police v McNeill [2021] NZDC 4910.

MCNEILL v NEW ZEALAND POLICE [2021] NZHC 2926 [18 October 2021]

Tequila shots. After a period of dancing she went outside the bar to the smoking area with a couple of friends. Mr McNeill then aged 55 was also outside in the smoking area. Mr McNeill approached the victim and complimented her on her outfit to which the victim replied “thank you” or words to that effect.

[4]    Without warning Mr McNeill touched her breast over the top of her clothing. He then moved his hand towards her vaginal area and started rubbing. He told the victim he wanted to have sex with her and that they should go to the bathroom. As a way of getting out of this situation the victim stated she had a boyfriend and he would not like what was happening.

[5]    The victim estimated the touching went on for about three minutes and only ended when one of her female friends came out, saw the situation and pulled her away. She went back inside the bar and then the group left.

[6]    The victim was visibly upset and after approximately 15 minutes told her friends what had happened. One friend called the police and the victim subsequently made a statement.

[7]    Following the incident Mr McNeill left the bar, took a taxi to his vehicle where he changed his jacket. He then returned in the taxi and was dropped at another bar in central Dunedin where later he was located and arrested.

[8]    Turning now to the principles to be applied on this appeal, this Court may only allow an appeal against conviction if satisfied in the case of a Judge Alone trial that the Judge erred in his or her 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. I refer to s 232(2)(b) of the Criminal Procedure Act.

[9]    A miscarriage of justice means any error, irregularity or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial. A trial includes a proceeding in which the appellant pleaded guilty.

[10]   This appeal proceeds by way of rehearing and the Court is required to form its own view of the facts and I refer to Sena v Police.2 If this Court reaches a different view on the evidence it follows the trial Judge necessarily will have erred and the appeal must be allowed. The onus is on the appellant to show that an error occurred.

[11]   In the District Court decision the Judge commenced his decision which was a lengthy and carefully reasoned one by noting the principal issue, which was whether the victim consented to the touching which occurred, and if not whether Mr McNeill honestly believed that she was consenting. Mr McNeill accepted he was involved in the incident.

[12]   Judge Glubb in the District Court found Mr McNeill deliberately touched the victim in two places as she alleged. Mr McNeill admitted to touching her but said he ran his hand up her stomach to her breast and touched her thigh with the back of his hand. The Judge found Mr McNeill’s description that the victim welcomed his attention and consented to the contact as she made a sound of “ecstasy” to be highly implausible. The Judge noted the description of the touching given by the victim in evidence was consistent with her response and reaction to the touching and with the account she gave to her friends and later to the police.

[13]   The Judge concluded Mr McNeill considered the victim to be an easy target and he took advantage of the situation that presented. He noted that Mr McNeill suggested that sometimes a woman likes to be touched in that way without being asked. The Judge concluded that the touching was indecent. He was “sure that right thinking members of the community would conclude touching of that nature in those circumstances was indecent”. He was sure that in the circumstances Mr McNeill was aware that the touching was indecent.

[14]   The Judge accepted the victim’s evidence that she did not consent in any way to being touched in that manner. Whilst the Judge acknowledged she did not resist or tell Mr McNeill to stop, that does not amount to consent. In reaching the conclusion that Mr McNeill did not have an honest belief in the victim’s consent the Judge noted that very soon after the events the bouncer had told him to leave. When he was spoken

2      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].

to by the police he said “is this about the girl”? The Judge inferred from his comment that Mr McNeill knew he had overstepped the bounds.

[15]   Mr McNeill maintained that he honestly believed she was consenting but the Judge found that ran contrary to the circumstances and was more consistent with   Mr McNeill’s efforts to justify his contact. The Judge concluded that Mr McNeill simply “took his chance” and as a stranger touched the victim, an intoxicated young woman. He reached that by drawing an inference from the fact that Mr McNeill had never met the victim before, there was a significant age difference, he immediately touched her, there was a sexualised comment and he acknowledged that sometimes a woman wants to be touched in that way without being asked.

[16]   The Judge was satisfied beyond reasonable doubt that the prosecution had proved the charge.

[17]   Turning now to the appellant’s submissions before me, Mr Stephenson for  Mr McNeill raises four ways in which he says the Judge erred in finding that he was sure that the victim’s account of the touching was reliable.

[18]   First, he submitted the Judge did not consider the victim’s level of intoxication. Mr Stephenson notes the victim reported her level of intoxication at the bar as a seven out of 10. It is unclear what the Judge had on his mind when he stated “even though she had consumed a large amount of alcohol” and ultimately Mr Stephenson suggests the Judge did not consider what bearing her accepted level of intoxication had on the reliability of her account. Mr Stephenson points to a number of factual circumstances which he says are relevant as to whether the victim could properly recall the events that occurred on the night in question.

[19]   Secondly, Mr Stephenson contends the Judge erred in concluding the victim’s account was consistent with what she had told the police in her statement as her statement did not form part of the evidence at trial. He maintains there was no evidence before the Judge as to what the victim had told the police. Further, he says the Judge erred in his conclusion that the description of the touching given by the victim in her evidence was consistent with what she told her friends.

[20]   Thirdly, it is submitted the Judge erred in not placing weight on the evidence of the doorman as it was inconsistent with that of the other witnesses.

[21]   Finally, Mr Stephenson maintains the Judge drew improper conclusions when rejecting Mr McNeill’s evidence. He suggests the Judge did not explain why he considered Mr McNeill’s description of the touching to be unlikely.

[22]   In combination he says these factors raise sufficient doubt over the victim’s account of evidence, such that the Court cannot draw the conclusion that Mr McNeill did not honestly believe in consent here. It must follow, in Mr Stephenson’s submission that the charge cannot be proven beyond reasonable doubt.

[23]   Turning now to the respondent’s submissions, Mr Bernhardt for the respondent, in response maintained the “errors” identified by Mr McNeill are not in fact errors. Rather they are a reasonable assessment of the evidence in each case that was open to the Judge to make. Mr Bernhardt submits the District Court Judge was in the best position to weigh the importance of the victim’s intoxication condition in his overall assessment of her reliability, in the circumstances relating to the factual matrix of this case. He noted the victim was candid about her level of inebriation and made reasonable concessions about her recollections.

[24]   Mr Bernhardt notes too that the fact she could not recall certain parts of the evening does not change the fact she firmly recalled her interaction with Mr McNeill.

[25]   The Crown position too is that the Judge was entitled to infer that the victim’s comments had not substantially deviated from the complaint she made to police on the night. Mr Bernhardt notes the words used by the Judge do not raise any error here. However, if this Court disagrees and does find an error has occurred, then Mr Bernhardt in his submissions suggested it was not one that affected the trial outcome.

[26]   Mr Bernhardt maintains too that there were sufficient issues with the evidence of the doorman to justify the Judge putting it to one side. That evidence given by the doorman he says contained significant inconsistencies that meant his reliability was fundamentally  impugned.     And,  in  response  to  the  final  ground  of  appeal the

respondent’s position is that the Judge as fact finder was entitled to draw the inferences he did. He was effectively presented with two scenarios of the night in question.

[27]   The Judge was entitled to weigh the likelihood of one scenario versus the other and to find as he did that Mr McNeill’s version was highly implausible.

[28]   Turning now to my analysis in this matter, in essence Mr McNeill challenges the District Court Judge’s factual finding that the victim’s evidence was reliable and that he preferred her evidence over Mr McNeill’s account of events. Relevantly the authors of Adams on Criminal Law state:3

“In particular where the challenge is to credibility findings based on contested oral evidence, an Appeal Court must exercise “customary caution” reflecting the advantage the trial Judge has in evaluating the strengths and weaknesses of a case as the evidence emerges during trial, and in making an assessment of witnesses, and the disadvantage for an Appeal Court dealing with a case based on the written record of what happened at trial and counsel’s submissions”.

[29]   With this caution in mind I now address each of the grounds of appeal in turn. As to the first ground, the level of intoxication of the complainant, Mr McNeill’s position is that the Judge did not take into account that level of intoxication when assessing the victim’s reliability. Having reviewed the notes of evidence and his Honour’s decision I find that position is untenable for the following reasons.

[30]   I accept the respondent’s submission that while the victim had consumed a significant amount of alcohol here, this would necessarily affect different individuals in different ways. In this case the victim was candid about her level of inebriation and accepted her alcohol consumption impacted her full recollection of some aspects of the night. She was able to recall some parts of that night clearly but as  expected  with her level of intoxication she was uncertain about other parts.   In particular     Mr Stephenson refers to the victim’s admission that she could not recall if she had taken a couple of steps towards Mr McNeill. The Judge acknowledged this in his decision.

3      Simon France (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at CPA 232.03.

[31]   He went onto say “it was also put to her [in cross-examination] that she came up to him, perhaps even touching him to which she responded I never touched him”.

[32]   The fact the victim could not recall this element must also be viewed in the context of the evidence as a whole. Assessment of reliability is based on a range of factors and again as I see it the Judge’s fact finder adequately weighed this submission from the victim in the context of her evidence as a whole.

[33]   Judge Glubb had the benefit of seeing the victim give her evidence. He was able to compare her purported level of intoxication with the degree of certainty she expressed when recalling critical events on the night in question. The Judge referenced the victim’s intoxication a number of times in his decision stating “the complainant was significantly affected by alcohol, she had consumed a large amount of alcohol and she was a young woman affected by alcohol”.

[34]   It is clear to me the Judge was not under the erroneous impression that she was sober or even partially so. He was cognisant of the victim’s level of intoxication. I consider the District Court Judge adequately took into account the victim’s level of intoxication when assessing her reliability. It follows that I find he did not err in his assessment as to her evidence.

[35]   I turn now to the second appeal ground, the fact the complainant’s prior statements were not before the Court. In his decision the Judge made the following finding in relation to the victim’s evidence and I usefully repeat this here.

[45] I note the description given by the complainant in evidence is consistent with her response and reaction to the touching but also with what she soon told her friends and the police. It has not changed. It is also to be preferred given the context of their meeting and the defendant’s immediate comment to the stranger, a young woman affected by alcohol, that he wanted to fuck her. In context, I conclude the defendant considered the complainant to be an easy target and took advantage of the situation that presented. He felt he was able to touch her in that and did so without compunction. He confirmed that sometimes a woman likes being touched in that way without being asked. In my assessment, it is a clear indication of the approach the defendant was taking to the encounter with this young woman.

[36]   First Mr Stephenson for Mr McNeill notes that the victim’s statement was not in evidence before the Court. Further in her evidence-in-chief he says the victim did

not elaborate on what she had told the police. There was no proper evidential basis to conclude therefore that her oral evidence was consistent with what she had told the police earlier.

[37]   I accept the victim’s statement to police was not before the Court. I have reviewed the transcript of Constable Norrie’s evidence. He provides detail on the surrounding circumstances and Mr McNeill’s arrest, but not on the specific content of the victim’s allegations. In the absence of cross-examination to the contrary, it appears Judge Glubb drew an inference that the victim’s evidence was consistent with her statement to police.

[38]   No evidence was before the District Court that the victim’s evidence was inconsistent with her statement to police. It might have been desirable here for the Judge to articulate that he was drawing an inference or not to make that inference at all. However I do not consider this gives rise to a material error that was sufficient to have affected Mr McNeill’s trial.

[39]   Secondly Mr Stehenson submits there was insufficient evidence by which the Judge could properly conclude that what the victim told her friends was consistent with the description given in her evidence. I do not consider there is any merit in this point. The victim told her friend, Mr De Koning, that she had been assaulted and "grabbed". This is generally consistent with the evidence she gave before the District Court Judge.

[40]   I turn now to the third appeal ground, the fact  it is argued the Judge gave    no weight to the doorman’s evidence and effectively placed it on one side. The doorman gave evidence that contained a number of inconsistencies, namely that first Mr McNeill and the victim were kissing. Neither Mr McNeill nor the victim however gave evidence of this occurring.

[41]   Secondly, the doorman said that Mr McNeill had slapped the victim’s butt as the group walked out. The victim maintained however that there was no contact and Mr McNeill suggested that at most there had been an accidental touch when he reached to touch her shoulder.

[42]   Thirdly, the doorman said it was one and a half to two hours before the male friend returned and made a complaint to the manager. The other evidence before the District Court which was given suggests it was around 45 minutes before he returned.

[43]   Mr Stephenson before me submitted the doorman was an inherently reliable witness as he was independent, and the only witness who had not been consuming alcohol on the night. In relation to the kissing, he says it was open to the Judge to put that evidence to one side and to go on to consider what weight he placed on the doorman's overall perception of what he saw as being a consensual encounter between them. That submission in my view however is problematic.

[44]   First, the fact the doorman states he saw the couple kissing gives rise to the possibility that he may have been mistaken in identifying the parties. This is particularly so in light of the fact the victim and Mr McNeill deny there was any kissing. If the doorman was mistaken in identifying the parties, it follows he would be mistaken in his perception that the encounter was consensual.

[45]   Given the inconsistencies with the evidence, I consider it was open to the Judge, as the factfinder, to set that evidence aside.

[46]   And lastly I turn now to the fourth ground of appeal relating to the inferences and conclusions reached by Judge Glubb here. On this Mr Stephenson submits the Judge reached inferences and drew conclusions that were outside the scope of the evidence. In essence he seeks to challenge the Judge's conclusion that Mr McNeill's description of the events was "highly implausible". It is suggested Judge Glubb erred in failing to go on to explain why he considered Mr McNeill's description of the touching as unlikely.

[47]   The Judge however clearly articulated the burden and standard of proof in his lengthy decision here. As the factfinder he was required to weigh the competing scenarios and to determine, based on the credibility and reliability of each witness and their evidence, whether the charge was proved beyond reasonable doubt.

[48]   Considering all matters in the round here, I see no error in Judge Glubb’s determination based on all the available evidence that he had the benefit of hearing. I accept too his finding that Mr McNeill’s description of the events in these circumstances is implausible.

[49]   For all these reasons I find the appellant has been unable to convincingly make out any of his grounds of appeal. No error has occurred on the part of Judge Glubb here. I conclude that clearly no miscarriage of justice has occurred.

[50]This appeal is dismissed.

Gendall J

Solicitors:

Public Defence Service, Dunedin RPB Law, Dunedin