Mitchell v Police

[2017] NZHC 1469

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2016-485-99 [2017] NZHC 1469

BETWEEN

KERRYN MITCHELL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	23 May 2017
Appearances:	Ms Mitchell appearing in person S W Woods for the Respondent
Judgment:	29 June 2017

JUDGMENT OF MALLON J

Introduction

[1]      Ms Mitchell was found guilty of common assault1 at a Judge alone trial in the District Court on 6 December 2016.2     She was convicted and discharged.3     She appeals her conviction.

The facts

[2]      Ms Mitchell was a serving prisoner.   On Friday 1 July 2016 the Court of Appeal quashed her sentence and replaced it with a lesser one making her eligible for immediate release.  The decision was released around midday.  She had read it by

1pm. Around 2.30 – 3 pm a probation officer instructed her she would have to report to the probation office later that afternoon.  Around 4 pm she was able to speak with

her lawyer and understood she would be released.

1      Summary Offences Act 1981,s 9 (maximum penalty six months imprisonment or $4,000 fine).

2      R v Mitchell [2016] NZDC 24696.

3      R v Mitchell [2016] NZDC 24703.

MITCHELL v POLICE [2017] NZHC 1469 [29 June 2017]

[3]      However Ms Mitchell was not released.  She was not provided with her usual “Steps to Freedom” fund or any means of travel (such as a bus ticket).  She was told there  was  an  ex  parte  application  being  made  to  the  court  about  her  release conditions.    She also  considered  the documentation  she was  asked to  sign  was incorrect.

[4]      Ms Mitchell  had  good  cause  to  be  concerned.    The  police  were  making arrangements to arrest her for breach of a protection order.  This related to a letter she had written to her former partner and put into the prison mail system six months earlier.   The protection order was put in place many years earlier and since then Ms Mitchell had breached it, or attempted to do so, regularly.  She received a number of  imprisonment  sentences  for  these  breaches,  including  the  sentence  she  was

serving when the Court of Appeal allowed her appeal.4

[5]      Around 6 pm Constable Snow was briefed by Sergeant Dixon to go to the prison to arrest Ms Mitchell.  He understood from his briefing that Ms Mitchell had tried to send the letter from the prison to a person who was protected by a protection order.  The police data system confirmed there was a protection order in force.  He was shown the letter or a copy of it.

[6]      Constable Snow arrived at the prison around 6.46pm.  He was taken to a side room where Ms Mitchell was.  He explained why he was there,5 advised her of her NZBORA rights, and arrested her for breaching the protection order.  She told him she wanted to talk to a lawyer.  She was transported to Manukau Police station.  At the  police  station  Ms  Mitchell  spoke  to  her  nominated  lawyer  in  private.    Ms Mitchell then advised the officer she did not wish to make a statement.  He charged her with breaching a protection order and transferred her to a custody officer at the Police station.

[7]      Ms Mitchell was searched at the police station (she says this was excessive).

She was placed in a cell on “frequent watch” (involving five checks per hour).  The

4      Mitchell v R [2016] NZCA 299, [2016] NZFLR 487; Mitchell v R [2017] NZCA 184.

5      Ms Mitchell’s  evidence  was  that  he  referred  to  the  Search  and  Surveillance  Act  2012.

Regardless of whether that was so, the arrest was made for breach of the Domestic Violence Act
1995.

cell contained a mattress, a blanket and a toilet.  Ms Mitchell got under the mattress and refused to emerge when instructed to do so.  The mattress was removed from the cell.  Ms Mitchell then put the blanket into the toilet in an attempt to flood the cell. She was then moved to another, bare, cell.

[8]      Temporary Constable Nikora was on duty that night.  One of her duties was to  ensure  the  safety  of  those  in  custody.    At  about  4.30am  she  noticed  that Ms Mitchell was curled up with her cardigan pulled over her head.   She became concerned for her wellbeing and rapped on the door to rouse her.   There was no response.  She then got a security officer to open the cell door.  She ventured inside and called out to Ms Mitchell without response.  She could not remember what name she had used when calling to Ms Mitchell.  She approached Ms Mitchell and shook her,  to  ensure  she  was  breathing.    She  observed  Ms Mitchell  felt  warm  but unresponsive, she shook her again.

[9]      Ms Mitchell leaped up and went for Constable Nikora.   Constable Nikora tried to get out of the cell and shut the door behind her.  Ms Mitchell managed to get through and get a hold of her by her police vest.  They both went to the ground.  The defendant punched the constable in the head and scratched her face.  This caused a graze and some reddening.  The other officers quickly became involved and got Ms Mitchell away from her, cuffed her and put her back in the cell.   CCTV evidence from the corridor is consistent with this.

[10]     Ms Mitchell says that the police had been calling her Kelly that night – which was not a name she responded to.   She had fallen fast asleep in the cell and was roused by someone poking her around the side of her body and head.  She said she got a fright and reacted by jumping up.  She believed she was being attacked.  This belief was reinforced because she had seen or heard a prisoner being assaulted in the corridor outside her cell.  She chased the person out of the cell and they fell on the floor together.  The other officers intervened; they cuffed her and put her back into the cell. The next day she was so sore she needed a chair to walk properly.

District Court judgment

[11]     Ms Mitchell contended her arrest was unlawful.  She contended she had been arbitrarily detained in prison from 12 pm, when the Court of Appeal decision was released, until 6.45 pm when she was arrested.  The Judge considered there was no evidence Constable Snow was aware of any machinations by prison authorities to keep Ms Mitchell there earlier in the day.  If she had been arbitrarily detained, the constable was not aware of that. The arrest was not unlawful on this ground.

[12]     The Judge considered Constable Snow had reasonable grounds to suspect

Ms Mitchell had committed the offence under s 50 of the Domestic Violence Act

1995 or s 314 of the Crimes Act 1961 if it came to that.6   The Judge considered the arrest at the prison was pursuant to the Domestic Violence Act – it did not matter that the constable may have earlier mentioned the Search and Surveillance Act – and it was a lawful arrest.  She was formally charged at the police station.  It did not matter that there had been a gap between the arrest and the formal charge.

[13]     The Judge considered the failure to admit Ms Mitchell to police bail did not impact on the lawfulness of her detention. This power is discretionary. The Sergeant considered that discretion and declined to exercise it, leaving the question of bail to the Courts.

[14]     As to the circumstances of the assault, the Judge considered the officer had not used excessive force when Ms Mitchell was awoken in her cell.  The officer’s actions were understandable and arose out of a concern for Ms Mitchell’s welfare. The Judge found that Ms Mitchell assaulted the officer by intentionally applying force to her.   He considered that Ms Mitchell effectively admitted to assaulting Constable Nikora, describing that it was “all on” when she was awoken in the cell. The Judge accepted the constable’s evidence of being chased out of the cell, grabbed by her vest, taken to the floor and punched and scratched.  This was supported by the

CCTV evidence.

6      It appears this was an error – s 315 of the Crimes Act 1961 must have been the section he meant.

[15]    While Constable Nikora was acting in execution of her duty, the Judge considered it was reasonably possible Ms Mitchell did not realise she was a police officer.  The assault had happened within a matter of seconds when Ms Mitchell had just been awoken from a deep sleep.  She was likely groggy and confused.

[16]     The Judge considered it was reasonably possible that Ms Mitchell was acting in self-defence, especially when she first awoke and reacted.  While her reaction was initially reasonable, the Judge considered it went beyond that.  Once the constable had  backed  out  of  the  cell  door,  any  perceived  threat  had  dissipated.    The complainant was trying to close the door but Ms Mitchell forced her way out.  The Judge considered Ms Mitchell’s response became disproportionate at this point.

[17]     The Judge delivered his judgment orally.  As he had found an assault was proven, but the prosecution had not proved Ms Mitchell knew the officer was acting in the execution of her duty, he amended the charge to one of assault under s 9 of the Summary Offences Act 1981.  Counsel for Ms Mitchell raised the issue of whether the amended charge needed to be put to Ms Mitchell for an election as was his understanding of the position prior to the Criminal Procedure Act 2011.  The Judge responded that there was no right of election.  Counsel then advised the Judge that the plea remained not guilty.  The Judge recorded this and found the charge proven in the amended form.

Appeal

[18]     Ms Mitchell’s appeal raised the same matters as those which were considered and rejected by the District Court.  Having reviewed her submissions I am unable to say the Judge’s conclusions were not open to him or that any miscarriage of justice arose.

[19]     The troubling aspect of this case concerns why Ms Mitchell was only charged in relation to the letter six or seven months after she had put it into the prison mail system, and why that coincided with what would otherwise have been her release from prison.  The Judge was, however, alert to this troubling aspect of the case.  As he noted, the complaint concerning the letter had presumably been made by the Department of Corrections.  He considered it “curious, to say the least” as to why the

Department would wait so long to make the complaint, and for it to be raised on the day Ms Mitchell was to be released following a Court of Appeal decision.7

[20]     The Judge was also correct in saying:

[71]      … it would be pure conjecture and assumption on my part to ascribe any reasons for Corrections’ actions that day in relation to that complaint and may well be a matter for another forum, but what is relevant is the context.

[21]     The issue before him was whether the charge was proven on the evidence. Relevant to that was Ms Mitchell’s mindset when she was in the cell and awoken by the constable.  It was reasonably possible her perception of what was happening at that time was clouded by how she was feeling about again being locked up, having learned earlier in the day that she was to be released.  The Judge correctly considered the charge on the basis of the circumstances as Ms Mitchell understood them to be. As he said, it may have been that Ms Mitchell “was blindly trying to get out of her

cell”.8   However the Judge found it was after this that she “set upon” the constable.

At that point her response became disproportionate.

[22]     Ms Mitchell’s principal concern on appeal is that the Judge substituted a charge of assault and proceeded to convict her on that charge.   She submits the determination of the charge should have proceeded afresh.  She would then have had the opportunity to pursue disclosure before entering her plea and the hearing on the charge.

[23]     Ms Mitchell is unhappy with the disclosure that did take place.  She considers further CCTV footage from the night, not confined to that giving rise to the charge, would have assisted her case.  She accepts there was an assault (an application of force).   She says the CTV footage will show just how disturbing the noises and happenings in the other cells were.  She says this is relevant to demonstrating that her response was not disproportionate.

[24]     The problem with this submission is that, if a Judge exercises his or her power to substitute a charge, the procedure does not recommence.   The charge is

7      Mitchell above n 2 at [71].

8 At [78].

able to be substituted because it is included in the charge that has been brought.9

There is no prejudice in this because the included charge has been proved in prosecuting the charge that is brought.  There was no prejudice in this case because Ms Mitchell raised self defence as a defence to the charge that was brought.  She was represented by counsel.  Self defence was raised by her counsel in opening.  Counsel had the opportunity to seek further disclosure if that was necessary (and to submit prejudice had arisen for any deficiencies in that).  Counsel also had the opportunity to, and did, test the prosecution’s evidence and present evidence about self-defence at the hearing.  Ms Mitchell had some measure of success as a result of those efforts, as reflected by the substitution of the lesser charge and the Judge’s decision to enter a conviction and discharge.

[25]     For these reasons her conviction appeal cannot succeed.  I floated whether a discharge without conviction might have been sought.  Ms Mitchell pointed out that her personal circumstances were such that it could not be said there were consequences of the conviction that would outweigh the gravity of the offending. That explains why this was not sought.  Accordingly the Judge was right to enter a conviction and discharge in all the circumstances.

Result

[26]     The appeal against conviction is dismissed.

Mallon J

9      Criminal Procedure Act 2011, s 143.