Nagel v Police
[2014] NZHC 2962
•26 November 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2014-404-000223
CRI 2013-404-001168 [2014] NZHC 2962
BETWEEN NICOLAAS CHRISOFFEL GERT
PETRUS NAGEL Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 24 November 2014 Appearances:
D G Young for Appellant
L M Mills for RespondentJudgment:
26 November 2014
(RESERVED) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]
This judgment is delivered by me on 26 November 2014 at 12 noon pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
NAGEL v NEW ZEALAND POLICE [2014] NZHC 2962 [26 November 2014]
Introduction
[1] The appellant, Mr Nagel, was convicted by Judge Hinton in the District Court at North Shore on 20 October 2013 on one count of wilfully doing an indecent act in a public place contrary to s 125(1) of the Crimes Act 1961.1 On 8 July 2014, he was sentenced to nine months’ supervision and 50 hours’ community work.2 He has appealed against both conviction and sentence.
Facts
[2] On 8 March 2013, the complainant Mrs M was walking with her dog, on her way to pick up her daughter from school. As she was walking, she noticed someone around 100 metres away riding towards her on a motorcycle. Mrs M gave evidence that this person was wearing black attire with his face obscured.
[3] The motorcyclist was standing up on his motorbike. As he approached, Mrs M saw that he had one hand on his handlebars and the other on his exposed penis. He rode past her, and at his closest was two to three metres away from her. Mrs M gave evidence that the motorcyclist then continued along Fairview Avenue, before turning around and approaching her again. This time he was seated. Mrs M noted the number plate on this occasion, before the motorcyclist drove away. She hurried home, wrote down the number plate, and called the police. The plate belonged to Mr Nagel’s motorcycle. Mr Nagel was subsequently interviewed by police. He denied exposing himself to Mrs M.
District Court judgment
Conviction
[4] The contest in the District Court was between the credibility of Mrs M and Mr Nagel, both of whom gave evidence. The Judge considered Mrs M’s evidence in detail, noting her concession that she could not be “100 per cent sure” that it was in fact Mr Nagel on the motorcycle, by virtue of his obscured face. He also noted her further concession that she had lost sight of the motorcyclist briefly, after he did his
first pass.
1 Police v Nagel DC North Shore, CRI-2013-44-1168, 21 October 2013 [Conviction judgment].
2 Police v Nagel DC North Shore, CRI-2013-44-1168, 8 July 2014 [Sentencing notes].
[5] The Judge “did not understand it to be seriously pressed that there may have been a change in driver, a rider, or alternatively a different motorcycle that came down for the second occasion”.3 He accepted Mrs M’s evidence that “the motorcycle that came up the road was the same motorcycle that [she] observed coming down the road when she took the number plate”.4 It is this finding that Mr Nagel challenges on appeal.
[6] The Judge also preferred Mrs M’s evidence on whether Mr Nagel was holding his penis. He considered her to be an honest witness and her evidence to be detailed and definite.5 The Judge found Mr Nagel’s evidence that it was impossible for him to stand on his motorcycle, control it at 25 kilometres per hour and simultaneously masturbate, to be unconvincing.
Sentencing
[7] On sentence, the Judge was first called upon to deal with Mr Nagel’s application for a discharge without conviction. He considered that it was “a finely- balanced application”. It would appear that the Judge placed considerable weight on the fact that Mr Nagel continued to deny his offending post-conviction. The Judge
held:6
Of course, an assessment of the facts is of paramount importance but there are other factors which inform gravity. They include an acceptance of responsibility by an offender, they include remorse and they include, importantly, steps taken post the offending by the offender in relation to the offending, generally, and which go to ameliorate the gravity of the offending which might be gleaned from consideration merely of the facts.
[8] In assessing gravity, Judge Hinton characterised Mr Nagel’s actions as “very serious offending [that] raises serious public safety concerns” involving exposure with “serious consequences” for his victim.7 The Judge took into account the fact that Mr Nagel has no history of offending and considered him to be “previously of good character”. Overall the Judge considered the gravity of Mr Nagel’s offending as
“moderate-to-high level”.
3 Conviction judgment, above n 1, at [9].
4 At [11].
5 At [12].
6 Sentencing notes, above n 2, at [3].
7 At [6].
[9] Moving to the consequences for Mr Nagel of conviction, the Judge noted Mr Young’s submission that Mr Nagel would have travel difficulties post-conviction. He also discussed the ramifications of conviction for Mr Nagel’s employment prospects. Given Mr Nagel’s age and employment background, the Judge accepted he might have difficulty re-establishing himself in his particular area of employment. However, the Judge did not consider those difficulties outweighed the gravity of Mr Nagel’s offending. Accordingly, the Judge declined to discharge Mr Nagel without conviction.
[10] Turning to the question of sentence, the Judge noted the pre-sentence report’s recommendation of community work. He also considered a clinical psychologist’s report prepared on Mr Nagel’s behalf. As noted above, he sentenced Mr Nagel to nine months’ supervision and 50 hours’ community work.
Appeal against conviction
[11] Mr Young, for Mr Nagel, raised three grounds of the appeal against conviction:
(a) The evidence supported a verdict of not guilty; (b) The Judge misunderstood the defence case; and
(c) The Judge did not warn himself about visual identification evidence.
Approach on appeal
[12] An appeal against conviction is by way of rehearing. Section 121(2) of the Summary Proceedings Act 1957 allows the High Court to confirm the conviction, set it aside, or amend it. In her judgment for the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar Elias CJ said:8
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[13] As Harrison J held in O’Neill v Police,9 in coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless review the evidential basis for factual findings carefully.
[14] It is appropriate to consider Mr Nagel’s third ground of appeal first.
Did the Judge err in not explicitly reminding himself of the need to be cautious when considering identification evidence?
[15] Referring to s 46A of the Evidence Act 2006, Mr Young submitted for Mr Nagel that the Judge had failed to warn himself of the need for caution before convicting Mr Nagel in reliance on the correctness of Mrs M’s identification, and the possibility that she might be mistaken, and that that failure has resulted in a serious miscarriage of justice.
[16] Mr Mills submitted for the respondent that a Judge is not required to specifically refer to this section, provided it is plain that the Judge has taken its provisions into account when considering the evidence. He relied on the judgment of Kós J in Peneha v Police, where his Honour said:10
[An equivalent provision to s 46A] reflects a need for caution before an accused is convicted of an offence, based wholly or substantially on visual evidence. It applies in summary cases held before a District Court Judge alone. As to the requirements of that section Morris J in Waaka v Police said:
[The Judge] is not required to specifically refer to the section nor indeed quote its provisions provided it is plain he has taken the provisions into account when considering the evidence before him, provided it is clear from his judgment he has done so.
9 O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [5]
10 Peneha v Police [2012] NZHC 2554 at [29].
In Luke v Police Venning J approved that approach:
Where the Judge does not refer to the section or expressly recite the relevant provisions of the section then the Court on appeal will need to be careful to ensure that the Judge has, despite that omission, properly considered the provisions of the section and applied them to the case before him or her. If on appeal the Court can be satisfied that that indeed is the case then there will be no basis to interfere with the lower Court's decision.
(references omitted)
[17] Condensing these principles, the authors of Adams on Criminal Law
commented:11
While a Judge need not explicitly warn himself or herself in a Judge-alone trial, or refer to the relevant provisions, it must be clear from a Judge’s decision that:
(a) the risk of mistaken identity was identified; and
(b) the Judge proceeded with caution, and took the possibility of mistake into consideration.
[18] Mr Mills submitted that the Judge had appreciated the importance of the identification evidence and had been alive to the prospect of mistaken identity but considered in any case that the complainant’s evidence was reliable. He referred to the Judge having specifically referred to Mrs M “not being 100 per cent sure that it was the same rider” but noted that there had only been a space of a few seconds between the first and second sightings of the motorbike.
[19] It is correct that the Judge did not explicitly refer to s 46A. However, he noted Mrs M’s concessions, and he set out the evidence relied on before accepting her evidence as to whether it was Mr Nagel she saw on the motorcycle. I am not persuaded that the Judge failed to exercise the requisite care as to the identification. I therefore reject this ground of appeal.
Was the verdict supported by the evidence?
[20] Mr Young submitted that the evidence does not establish beyond reasonable doubt that it was Mr Nagel who passed by Mrs M on the first occasion, when the
11 Adams on Criminal Law (online ed, Brookers) at [EA46A.01].
offence was committed. He submitted that the following matters should have led the Judge to conclude that Mr Nagel had not been proved beyond reasonable doubt to be the motorcyclist who had ridden past Mrs M, standing on his motorbike and masturbating:
(a) Mrs M lost sight of the offending motorcyclist. She took the number plate of the motorcyclist she saw travelling in the opposite direction, but did not have the offending motorcyclist in view throughout.
(b)The motorcyclists seen going in both directions were dressed similarly (in standard motorcyclist’s attire) with a helmet (which obscured the face), and dark protective clothing.
(c) The sighting of the offending motorcyclist was fleeting, as was the sighting of the motorcyclist travelling in the opposite direction. Mrs M said in evidence that she could not be 100 percent sure that the two motorcyclists were the same person.
[21] Mr Young submitted that in the circumstances, the Judge could not exclude the reasonable possibility that Mrs M had made a genuine, honest mistake, and that the person who offended was not the same person who later rode past Mrs M travelling in the opposite direction. Thus, he submitted, the Judge could not have been satisfied beyond reasonable doubt that it was Mr Nagel who had offended.
[22] Mr Mills supported the Judge’s reasoning. He submitted that the Judge had carefully scrutinised Mrs M’s evidence. In particular, he noted the Judge’s observation that Mrs M said that it was only “a couple of seconds” after seeing the offending that she saw the second rider.
[23] It is common ground that the second rider was Mr Nagel. However, having reviewed the evidence, I have come to the conclusion that it is not established beyond reasonable doubt that Mr Nagel was also the offending motorcyclist. The matters put forward by Mr Young must leave a reasonable possibility that Mrs M was mistaken in her evidence that the two people she saw were one and the same.
[24] Of particular relevance are, first, that Mrs M’s sighting of the rider on both occasions was fleeting, and on both occasions, Mrs M was focussed on different things: on the first occasion, on what the motorcyclist was doing, and on the second, on the number plate. Secondly, Mrs M lost sight of the motorcycle after seeing the offending. Although she said in her evidence in chief that “the [offending] motorcyclist turned around, sat down on his motorcycle and drove back past me, very slowly”, she answered “yes” to the question “was it at any point did this bike leave your view”: “he was out of my view”. Thirdly, Mrs M said that the person she saw was wearing clothing of a generic nature (a helmet and “motorcycle gear, long sleeve, long pants, gloves”). She did not point to any distinctive characteristic of the clothing that would clearly have identified Mr Nagel.
[25] In her evidence in chief, Mrs M said that “there may have been some red on the bike”. Mr Nagel’s motorcycle has a red seat. However, when she gave that evidence, Mrs M was giving evidence about the motorcycle that came back towards her. She was not asked, and did not give evidence, that the motorcycle ridden by the offender had a red seat.
[26] As I cannot exclude the possibility that Mrs M was mistaken in identifying Mr Nagel as the offending motorcyclist, I conclude that there is a reasonable doubt as to whether he was that person. In the circumstances, I accept Mr Young’s submission that a verdict of not guilty should have been entered.
Did the Judge misunderstand the defence case?
[27] In the light of that conclusion, it is not necessary for me to consider the remaining grounds of Mr Nagel’s appeal. However, I refer briefly to Mr Young’s submission that the Judge misunderstood the nature of the defence and did not properly consider the defence of mistaken identity. He referred to the Judge’s observation that he “did not understand it to be seriously pressed that there may have been a change in driver, a rider, or alternatively a different motorcycle that came down for the second occasion”. He submitted that the issue of mistaken identity was central to the defence case, and had been fully canvassed in cross-examination.
[28] Mr Mills submitted that regardless of the Judge’s comment, Mr Nagel’s identity was essential to the Crown establishing its case beyond reasonable doubt. Further, it was considered extensively (as discussed above) in the Judge’s decision. As a result, he submitted, no error occurred.
[29] While I accept that the defence did press its case that it was not Mr Nagel who was the offending motorcyclist, I am not persuaded that the Judge’s statement, in itself, could have resulted in any error. As noted above, I am satisfied that the evidence did not support a verdict of guilty.
Appeal against sentence
[30] In the light of my finding that Mr Nagel should not have been convicted, it is not necessary to consider his alternative submission, that he should have been discharged without conviction.
Result
[31] Mr Nagel’s conviction and sentence on the charge of wilfully doing an
indecent act in a public place are quashed.
Andrews J
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