Mostert v Police

[2012] NZHC 139

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-488-48 [2012] NZHC 139

UNDER  s 194 Crimes Act 1961

IN THE MATTER OF     an appeal against conviction in the District

Court at Kaitaia

BETWEEN  SIMON RONALD MOSTERT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 November 2011

Appearances: T Tetitaha for Appellant

E P Henderson for Crown

Judgment:      14 February 2012 at 10:30 AM

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 14 February 2012 at 10:30 am

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Marsden Woods Inskip & Smith, Crown Solicitor, PO Box 146, Whangarei email: [email protected]

Tumanako Law, P O Box 697, Kerikeri 0470 email: [email protected]

MOSTERT V POLICE HC WHA CRI-2010-488-48 14 February 2012

[1]      The  appellant  appeals  against  conviction  on  a  charge  of  male  assaults female.1    The appellant was convicted following a hearing before a District Court Judge at Kaitaia on 11 November 2009.

[2]      On appeal against conviction, the High Court  may confirm, set aside or amend the conviction.2   On 23 December 2011 I allowed the appeal and set aside the appellant’s conviction, with my reasons to follow, which they now do.

[3]      In his notice of appeal, the appellant advanced three grounds of appeal.  Two concerned alleged counsel error in the conduct of the case at trial and the other concerned an inference which the Judge purported to draw as to a matter of fact and which was adverse to the appellant.

[4]      I consider the Judge erred in drawing the inference he did and was satisfied that the conviction should be set aside for that reason.  Given that, it is unnecessary for me to address in this judgment the grounds which were advanced relating to possible counsel error.

[5]      The background to the dispute appears from the Judge’s notes and may be

summarised as follows.

[6]      The appellant and his (former) wife (“the complainant”) had friends to their house one evening in June 2009.   The appellant and the complainant consumed almost all of a one litre bottle of rum during the course of the evening.

[7]      After the friends left, the appellant and the complainant had an argument. The appellant went to bed.   The complainant took a large kitchen knife and approached the appellant while he was in bed, holding the knife out towards him. The Judge said in his notes that the complainant held the knife about 15 cm from the appellant.  The appellant punched the complainant in the face.  The complainant’s evidence was that she “blacked out” with the force of the punch, that when she came

to she was on the bed, that she believed the appellant had forced her onto the bed in

1 Crimes Act 1961, s 194(b).

2 Summary Proceedings Act 1957, s 121(2).

some way and that the appellant then choked her, around the neck, with his hands. The complainant’s evidence was that the choking continued for about half an hour.

[8]      The appellant acknowledged that he had punched the complainant in the face.

The appellant’s evidence was to the effect that:

[4]       ... after he had punched [the complainant]... she got back into bed herself and complained about a bleeding nose; at which point he uplifted the knife, took it back to the kitchen, made himself a coffee or hot drink and never went back to bed that night or that morning and denies choking [the complainant] at all.

[9]      The Judge was satisfied that there was a reasonable possibility the appellant was acting in self defence when he punched the complainant and said that the charge could not be proved on that basis of that conduct.

[10]     The Judge also found that there was no evidence as to how the complainant had got onto the bed after she had been punched.  Accordingly, the Judge was not satisfied that the appellant must have assaulted the complainant by putting her on the bed.

[11]   That left the allegation that the appellant had attempted to choke the complainant.  The complainant and the appellant both gave evidence on this matter. There was, for instance, no medical evidence called.   Accordingly, it was the complainant’s words against the appellant’s.

[12]     The Judge accepted the complainant’s evidence that the appellant had sought to choke her and the reasons the Judge gave were as follows.

[13]     First, the Judge considered that the complainant was an honest witness.  The Judge noted that at no point had the complainant sought to deny her use of the knife. The Judge considered that the complainant had been honest and frank in giving evidence about the matter.   I observe here that the appellant seems to have been equally frank about acknowledging he punched the complainant.

[14]     Secondly, the Judge said that his assessment of the complainant as a witness was not shaken by the cross-examination that had been conducted.   One of the

matters addressed in the cross-examination was the complainant’s allegation she had been choked for about half an hour.  The Judge said that the complainant’s assertion in this respect could not be accepted but also stated that he considered witnesses “notoriously inaccurate when giving estimates of timing in Court cases and when they are asked to recall how long events may have occurred for”.  In my view, clear questions arise as to the reliability of a witness who exaggerates to such an extent.

[15]     The Judge’s third reason was expressed as follows:

[16]     Finally, I am entitled to draw an inference that the defendant is likely to  have  acted  in  that  way  when  he  was  confronted  with  a  large  knife presented  at  him  by  his  wife  in  a  situation  where  clearly  relationships between the two had deteriorated to a very low point.

[16]     The Judge concluded as follows:

[17]      All in all, I am quite satisfied that [the complainant] in that regard is  not  lying,  nor  is  she  mistaken,  and  I am satisfied  that  there  was  an application  of  force  by  way of  choking  by the  defendant  on  [the complainant] ...

[17]     It was not open to the Judge to draw the inference referred to in [15] above. Inferences are drawn from proved facts.  They are not drawn from a judge’s view as to how an accused is “likely” to have acted in particular circumstances.  I add that this was not a case where the prosecution called any propensity evidence that was adverse to the appellant, so no issue could arise on that score.

[18]     The inference the Judge purported to draw against the appellant must be disregarded.   When it is, I am not satisfied that the Judge would have found the charge proved.

Result

[19]     The appeal is allowed and the conviction set aside accordingly.

..................................................................

PETERS J