Murray v Police

[2022] NZHC 2133

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-6

[2022] NZHC 2133

BETWEEN

DONNA JANE MURRAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 August 2022 (By way of VMR)
Appearances:	B P Stephenson for Appellant C J Flatley for Respondent
Judgment:	25 August 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 25 August 2022 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

MURRAY v NEW ZEALAND POLICE [2022] NZHC 2133 [25 August 2022]

Introduction

[1]                  On 10 January 2022, Judge A-M J Bouchier convicted1 Donna Murray of a charge of assault with a weapon2 and a charge of threatening to kill.3 She was sentenced on 17 February 2022 by Judge Large to 12 months of intensive supervision and 12 months of judicial monitoring.4 Ms Murray appeals the conviction for the assault with a weapon.

Background

[2]                  The complainant on the charge of assault with a weapon is a  nurse  at  Wakari Hospital, where the offence took place.

[3]                  On 3 May 2021, Ms Murray was in the seclusion room at the Wakari Hospital. The seclusion room can only be opened from the outside. Ms Murray had been placed there about an hour before the complainant started her shift at 7 am that  morning. Ms Murray had covered the windows in the seclusion room with paper. The complainant and some other workers entered into the seclusion room to remove the paper from the windows.

[4]                  When the workers entered the seclusion room, Ms Murray tried to push past them to get out of the room. The complainant and another nurse, who also gave evidence, took Ms Murray by the arms, and they all ended up on the ground. The complainant was holding Ms Murray’s arm on the floor. Ms Murray was face-down. The complainant’s legs were next to Ms Murray’s arm. Ms Murray had a needle in her hand that she had brought to the ward herself, although none of the staff members were aware of this. The complainant felt the needle go into her leg, saying it felt like an injection and there was not much force involved. It was only then that the complainant realised Ms Murray had the needle and she said something to the effect of “Oh, she’s got a needle, she’s poked me with it”. The needle was small enough to be concealed in Ms Murray’s hand and the nurses only saw it when it was pried out of Ms Murray’s hand.

1      Police v Murray [2022] NZDC 10516.

2      Crimes Act 1961, s 202C: maximum penalty five years’ imprisonment.

3      Section 306: maximum penalty seven years’ imprisonment.

4      Police v Murray [2022] NZDC 2814.

The District Court decision

[5]                  The District Court Judge started her judgment by acknowledging that a needle can be a weapon and then canvassing the meaning of “prima facie” which is used in s 202C(1)(b) of the Crimes Act 1961. She then considered the evidence which was given by two of the nurses who were in the room when the incident occurred, one being the complainant, and Ms Murray. The Judge said that Ms Murray was candid about the fact that she did not have a good memory of the incident. The Judge accepted the evidence of the two nurses.

[6]On the relevant charge the Judge concluded:

[43]      On an objective viewpoint, we have, I find, as a fact, that the defendant, Ms Murray, tried to exit the room in a very hurried and quick fashion when the door was opened by the staff of the seclusion room; that in her hand, she had an uncapped needle; and that she did, when both [the complainant] and [the other nurse] were holding her down on the ground and [the complainant] had her knees on either side of Ms Murray’s arm, that    Ms Murray moved her hand in a way that then stabbed [the complainant] with the needle.

[44]      Therefore, the prosecution has proven the charge to the necessary standard of beyond reasonable doubt on the findings of fact that I have just made.

[7]                  The appellant says the evidence relied on by the Judge was insufficient to prove the charge and the Judge failed to articulate why it did. In the circumstances, the appeal against conviction should be allowed.

Principles on appeal

[8]                  This Court may only allow an appeal against conviction if satisfied, in the case of a Judge-alone trial, that “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.”5 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.6

5      Criminal Procedure Act 2011, s 232(2)(b).

6      Section 232(4).

[9]                  The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.7 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.8 The onus is on the appellant to show that an error occurred.

Submissions

Appellant’s submissions

[10]              Mr Stephenson, for Ms Murray, advances the  appeal  on  the  following  three grounds:

(a)the Judge did not identify which facts proved that Ms Murray had a prima facie intention to use the needle as a weapon;

(b)the Judge failed to identify what assault Ms Murray committed while there were circumstances that showed she had a prima facie intention of using the needle as a weapon; and

(c)the Judge did not identify and take into account all of the evidence before her on whether Ms Murray “moved her hand in a way that then stabbed [the complainant] with the needle”.

[11]              Mr Stephenson also identifies a preliminary issue being that the Judge appeared to have convicted Ms Murray under s 202C(1)(b), whereas the charge was laid under s 202C(1)(a). Mr Stephenson acknowledges the Judge had the power to amend a charge under s 136 of the Criminal Procedure Act 2011, but there was no determination or declaration by the Judge that this is what was being done and why. There was, therefore, no opportunity to be heard on whether it was to be opposed. However, counsel goes on to say that this is not a key ground of appeal, as a charge under s 202C(1)(b) was still within the same offence section and would not have altered the way the defence was cast at hearing.

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

8 At [38].

[12]              Assuming the conviction was under s 202C(1)(b), Mr Stephenson submits there was insufficient evidence and reasoning to show a prima facie intention to use a needle as a weapon. Mr Stephenson submits the Judge made the following conclusions and then declared the charge proven beyond reasonable doubt:

(a)Ms Murray tried to exit the room in a quick and hurried fashion when the door was opened by the staff of the seclusion room;

(b)Ms Murray had an uncapped needle in her hand;

(c)the two nurses were holding Ms Murray to the ground, and the complainant had her knees on either side of Ms Murray’s arm; and

(d)Ms Murray moved her hand in a way that stabbed the complainant with the needle.

[13]              Mr Stephenson submits that these four factors were not enough to prove the charge beyond reasonable doubt because those conclusions were insufficient to prove a prima facie intention to use the needle as a weapon.

[14]              He further submits that there are a number of factual matters or circumstances accepted by both the nurses which count against a finding that there was a prima facie intention to use the needle as a weapon. These are:

(a)Ms Murray attempted to run past the nurses when the door was opened to the seclusion room;

(b)before Ms Murray was restrained, she did not present the needle at the nurses, threaten them, nor act threateningly in any way;

(c)both nurses only saw the needle after the complainant had been punctured;

(d)the complainant accepted in cross-examination that it was probable that Ms Murray was flailing her limbs and trying to push back against the

restraint, and that it was possible that the needle came into contact with the complainant’s knee in the course of that movement; and

(e)the complainant accepted that Ms Murray’s hand was close to the complainant’s knee at the time, and she does not recall much force being applied when being punctured.

[15]              Mr Stephenson points out that the complainant in her examination in chief stated that “I believe that [Ms Murray] twisted her hand that had the needle in it and just pushed it into my thigh, ‘cos I was kneeling on each side of that bent arm, so my knee was close to her hand.” He argues it is unclear given the use of the words “I believe” whether the complainant was recounting what she actually saw, or whether she reconstructed the events in her mind after she had been punctured. He submits the latter is more likely.

[16]              Counsel submits that these circumstances were not dealt with adequately by the trial Judge and there was not a considered basis for the conclusion reached by the Judge. He submits that the circumstances referred to above indicate that Ms Murray was intent on leaving the seclusion room, as opposed to attacking the nurses.

[17]              In any event, to convict under s 202C(1)(b), there needs to be an assault and Mr Stephenson submits that the Judge failed to explain in her reasons which of     Ms Murray’s actions constituted an assault. The only fact the Judge pointed to was that Ms Murray moved her hand in a way that stabbed the complainant with the needle. While he accepts that this is a fact that tends to prove the needle was used as a weapon under s 202C(1)(a) but, if that was the case, it is unclear why the charge was apparently amended to convict Ms Murray under s 202C(1)(b).

[18]              Furthermore, the Judge did not consider whether the force used was intentional, which is required under the definition of “assault” in the Crimes Act.9 While the Judge used the word “stab”, which might suggest that the application of force was intentional and therefore an assault, that element was not discussed in a full and considered manner.

9      Crimes Act, s 2 definition of “assault”.

[19]              The third ground of appeal is that there was insufficient evidence to prove  Ms Murray moved her hand in a way that stabbed the complainant with the needle intentionally (as opposed to incidentally while she was flailing on the ground).

[20]              Mr Stephenson submits that the Judge must have relied on the evidence of the complainant because she was the only witness to give evidence about how Ms Murray moved her hand. As noted above, Mr Stephenson submits the complainant was not sure about whether she saw Ms Murray’s hand move against her thigh and she said she felt the needle before she saw it. He submits the complainant provided a reconstruction of the events, rather than a recollection of them.

[21]              Mr Stephenson submits there was a miscarriage of justice in this case because of the identified errors.   As a result, the conviction is unsafe whether it was under    s 202C(1)(a) or s 202C(1)(b) because the Judge did not reason appropriately that all of the elements of either offence to be proven, and when all the evidence is taken into account, they do not prove all the elements for either offence. Specifically, the evidence was insufficient to prove:

(a)whether there was an intentional application of force through the use of the needle, in terms of an offence under s 202C(1)(a); or

(b)there existed circumstances that prima facie showed an intention on Ms Murray’s part to use the needle as a weapon.

Respondent’s submissions

[22]              Ms Flatley, for the respondent, submits the Judge identified the relevant facts, identified the relevant assault, and provided sufficient reasons for her conclusion.

[23]              In responding to the appellant’s first ground of appeal, Ms Flatley submits there was sufficient evidence to show a prima facie intention to use the needle as a weapon as required under s 202C(1)(b). While she agrees that the appellant was not aggressive or threatening towards the nurses before being restrained, Ms Murray conceded in cross-examination that she had intentionally removed the cap off the needle in the

seclusion room just before the nurses entered, and it was open to the Judge to conclude that an intention to use the needle existed after the appellant had been restrained.

[24]              Ms Flatley submits the fact the appellant was flailing her limbs and trying to push back against the restraint while continuing to hold an uncapped needle, demonstrates circumstances which show an objective, prima facie, intention to use the needle as a weapon as a means of escaping restraint. While not determinative of intent, she also submits that the fact the complainant received a puncture wound contributes to the overall circumstances which show intent to use the needle as a weapon, saying it could not have been accidental for a needle of that size, which was small enough to fit in the appellant’s closed fist, to puncture the victim’s skin. A deliberate application of force  must  have  been  required  to  puncture  the  complainant.  Furthermore,  Ms Murray said in evidence that the needle had “cut my palm”. Her failure to drop the needle despite it cutting her palm further supports the fact that she had an intention to keep hold of the needle in order to use it as a weapon. The fact that not much force was used is irrelevant when establishing the appellant’s intent to use the needle as a weapon.

[25]              Regarding the characterisation of the complainant’s evidence as a reconstruction of what she thought happened, Ms Flatley submits that the complainant using the word “believed” in her evidence is consistent with her remembering the events, rather than reconstructing them. She also says that it is understandable in the circumstances that the complainant did not have an awareness of Ms Murray’s intention until the incident occurred, given how quickly everything happened and how Ms Murray concealed the needle in her hand. She submits that the complainant only realising that Ms Murray had the needle after she was punctured is not essential to establishing  an  objective  view  of  the  circumstances  during  the  incident  nor  Ms Murray’s intention.

[26]              Ms Flatley submits the Judge adequately explained her reasons, especially given this was a Judge-alone trial set down for one day, and the Judge delivered her reasons orally.

[27]              Regarding the second appeal ground, Ms Flatley submits the Judge appropriately identified what assault Ms Murray committed and the circumstances of that assault. Ms Flatley submits the Judge was clear when saying “Ms Murray moved her hand” that this was an intentional act, and that if the Judge wanted to indicate otherwise, she would have said “her hands were moving around”. Similarly, the use of the word “stabbed” indicates a finding of an intentional application of force.     Ms Flatley submits this reasoning, albeit brief, was sufficient in the context of the trial.

[28]              For the third ground of appeal, Ms Flatley submits it was open to the Judge to find Ms Murray moved her hand in a way that stabbed the complainant. Ms Flatley accepts that the complainant acknowledged that she could have been punctured in the course of Ms Murray attempting to resist restraint. However, she submits that if this was the case, this would still meet the definition of “assault” under the Crimes Act because moving her hands in that way would be an intentional application of intended force. She further submits that s 202C(1)(b) does not require the person charged to have used the weapon in the assault.

Analysis

[29]              A key part of the appellant’s arguments is that the District Court Judge did not adequately explain her decision because she failed to identify the relevant facts on which she reached her conclusions as to whether the elements of the offence, whether under s 202C(1)(a) or s 202C(1)(b), were proved to the requisite standard.

[30]              The Supreme Court in Sena v Police identified the following requirements of a Judge’s reasoning:10

[The reasons] should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusionary credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this is on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential

10     Sena v Police, above n 7, at [36].

dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute.

[31]              However, the Supreme Court also recognised judgments, particularly oral judgments delivered in a busy court, may not be as precisely drafted as desired, saying:11

… we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved.

I bear those observations in mind as I consider the judgment and whether the Judge was right to conclude the charge proven.

[32]              I start with which subsection of s 202C of the Crimes Act 1961 Ms Murray was convicted under. That section relevantly provides:

202C Assault with weapon

(1)Every one is liable to imprisonment for a term not exceeding 5 years who,—

(a)in assaulting any person, uses any thing as a weapon; or

(b)while assaulting any person, has any thing with him or her in circumstances that prima facie show an intention to use it as a weapon.

[33]Section 2 of that Act defines “assault” as meaning:

… the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose …

[34]              Under the charging documents, Ms Murray was charged under s 202C(1)(a). However,  Mr  Stephenson  submits  the  trial  Judge  convicted  Ms Murray  under   s 202C(1)(b). This is because the trial Judge canvassed some case law and legal

11 At [37].

commentary about s 202C generally at the beginning of her judgment, and included comments about the  meaning  of  the  term  “prima  facie”  which  only  appears  in s 202C(1)(b). However, the position is unclear.  The Judge’s factual findings, as set in [6] above, included the finding that Ms Murray “moved her hand in a way that then stabbed [the complainant] with the needle”. That suggests she was still assessing the charge under s 202C(1)(a).

[35]              In my view, if the Judge had intended to amend the charge, this needed to be clearly articulated during the hearing so that counsel could ensure their cross-examination explored the elements of that charge and so they could ensure their submissions were similarly focused on those elements. It is unsatisfactory that the judgment suggests that the Judge is considering s 202C(1)(b) when there has been no other indication that she intends to amend the charge.

[36]              However, more importantly, I accept Mr Stevenson’s submission that the Judge does not clearly identify the elements of the charge she is considering nor what evidence supports the charge. If the charge was assault with a weapon, I consider the finding “that Ms Murray moved her hand in a way that then stabbed [the complainant] with the needle” is equivocal as to the intentional application of force. It equally encompasses an inadvertent or accidental application of force. If the Judge was intending to convict under s 202C(1)(b), then she failed to articulate with any clarity what the circumstances were that showed “an intention to use [the needle] as a weapon”.

[37]              As the Judge has not identified the critical issues in the case, and then explained how and why those issues are resolved in favour of conviction based on the evidence before her, I consider I must form my own view of the facts and determine the appeal accordingly. However, in doing this, I must take into account any advantage that the trial Judge may have had including in evaluating the strength and weaknesses of the case as it emerged during trial and in making assessments of the witnesses.

[38]To convict the appellant under s 202C(1)(a), I must be satisfied:

(a)the appellant assaulted the complainant, that is, she intentionally applied force to the complainant; and

(b)while assaulting the complainant the defendant used something as a weapon.

[39]              Here, there was no dispute that Ms Murray had in her hand a needle which she had uncapped prior to staff entering the room. There was also no dispute that a needle can be a weapon, that is, an article capable of being used to inflict bodily harm. The question here is whether it was deliberately used as a weapon, or whether it was possible that the needle made contact with the complainant inadvertently. Negligence or recklessness is insufficient to support a finding that there was “use of any thing as a weapon”. There must be an act of conscious volition on the part of the user.12

[40]              The appellant’s evidence is that she intentionally uncapped the needle while she was in the isolation room. She then rushed at the nurses as they opened the door. Her explanation for having the needle in her hand is that she used needles for self-harm. When asked about whether she purposefully stabbed the complainant with the needle, she denied that, saying the complainant was her favourite nurse and she would not have deliberately hurt her. However, she also repeatedly said she could remember little of that morning, although when she was being restrained, she said she was trying to cap the needle.

[41]              The complainant said she was holding onto one of the appellant’s arms as she knelt beside her on the floor and, while she was holding her there, the appellant “twisted her hand around and pushed it into my inner thigh as I was kneeling beside her”. That was when she realised the appellant had a needle and she said “she’s poked me with it”.

[42]              While in cross-examination, the complainant acknowledged that it was possible the movement from the appellant in resisting restraint might have caused the needle to come into contact with her knee. I reject the suggestion that this action was unintentional. I do this for the following reasons:

12     Soper v R HC Invercargill Ap25, 9 May 1991 at 3.

(a)Ms Murray acknowledged uncapping the needle prior to the nurses coming into the room. While she said she did this because she was upset and wanted “to choose peace” (i.e. self-harm), she also said “all I wanted was out of the room” which suggests she intended using it to resist restraint.

(b)The fact she concealed it in her hand suggests she did not want staff to know she had it, so they could not disarm her.

(c)She says she pricked herself with the needle while holding it in her hand. For her to have then pricked the needle in the complainant’s leg, she must have deliberately altered the position of the needle in her hand.

(d)While the appellant was not aggressive or threatening towards the nurses before being restrained, this was unsurprising. The evidence makes it clear she tried to rush out the door as soon as it was opened. There was no opportunity for her to threaten staff with the needle before she was brought to the ground.

(e)While the complainant at one point said she “believed” the appellant twisted her hand and pushed the needle into the complainant’s leg, she was clear in her first explanation of what happened that Ms Murray “twisted her hand around and pushed it into my inner thigh”. The use of the words “I believe” in her subsequent explanation appears to reflect the careful way in which the complainant gave evidence, rather than uncertainty. For example, when asked when the appellant was face up or face down, she says “face down I believe”, and when asked how much force was used she says “I don’t believe it penetrated deeply” explaining that because she was holding the appellant’s arm, she could only use minimal force. It does not detract from this being a reliable account of what she says happened.

(f)I also take into account the Judge’s assessment that the two nurses were credible witnesses.

[43]              I am satisfied, beyond reasonable doubt, that Ms Murray intentionally moved her hand, despite being restrained, and got the needle into a position where she could, even if momentarily, push it into the complainant’s leg. Accordingly, albeit on a fresh examination of the available evidence, I am satisfied the Judge was correct to find the charge of assault with a weapon was proved beyond reasonable doubt.

[44]              Because I have found the charge proven under s 202C(1)(a), I do not need to go onto consider whether the elements of the charge under s 202C(1)(b) were met.

Result

[45]The appeal against conviction is dismissed.

Solicitors:

Public Defence Service, Dunedin RPB Law, Dunedin