Nicol v Police

[2021] NZHC 305

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-000093

[2021] NZHC 305

BETWEEN

ETHAN JAMES NICOL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

24 February 2021

Appearances:

R M Gould for Appellant

D T E Moore and J L Garden for Respondent

Judgment:

26 February 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 26 February 2021 at 3:30 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

NICOL v NEW ZEALAND POLICE [2021] NZHC 305 [26 February 2021]

Introduction

[1]    The appellant, Mr Nicol, was convicted of charges of threatening to kill1 (but acquitted on a charge of assault) by Judge Thompson in the Porirua District Court on 4 September 2020.2 He was sentenced to 12 months intensive supervision.3 Mr Nicol appeals his conviction on the basis, first, that the Judge applied the wrong test in finding the charge proved and, secondly, that his lawyer did not take or follow instructions, which resulted  in  a  miscarriage  of  justice.  Before  me,  however,  Ms Gould, counsel for Mr Nicol, confirmed that she relies here primarily on Mr Nicol’s first ground of appeal noted above.

Facts

[2]    Mr Nicol, with his mother, was at an address in Titahi Bay, occupied by his grandparents, while their home was renovated. In the late evening of 24 July 2019 Mr Nicol, his grandparents, mother and his two uncles were all at  this address.     Mr Nicol behaved nosily, disturbing his grandfather resulting in an altercation. The prosecution charged Mr Nicol with assaulting his grandfather but conflicting evidence from Mr Nicol’s mother and grandfather meant the Judge felt unable to prove that charge beyond reasonable doubt.

[3]    Several hours later Mr Nicol and his uncle, Mr Pua Urech, were involved in a confrontation. Mr Nicol put his hand near his pocket, gestured to indicate there was a weapon in the pocket, and told Mr Urech “just stay out of it and don’t get involved, otherwise I’m going to pull out something and shoot you”.

Evidence

[4]    At trial during his evidence in chief Mr Urech stated: “I thought [Mr Nicol] was going to shoot us”, and that he was “shocked and freaked out” and was “very scared”.  During cross  examination Mr Urech  stated he had doubts over whether  Mr Nicol would  follow through with his threat and also that he had never seen     Mr Nicol with a gun. But later in his re-examination, Mr Urech confirmed:

1      Crimes Act 1961, s 306.

2      Police v Nicol [2020] NZDC 27373.

3      Police v Nicol [2020] NZHC 26437.

I was just scared for my safety and of him [Mr Nicol] saying what he was going to do and freaking out on his behaviour.

And in answer to a question from the prosecutor:

So, would it be fair for me to say that you were quite scared when Ethan made the threats?

He said:

Yes.

And in answer to the question:

…can you just tell us again what the threat was?

He answered:

That he was going to shoot us.

Principles on appeal

[5]    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.”4 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.5

[6]    The appeal proceeds by way of rehearing and this Court is required to form its own view of the facts.6 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.7 The onus is on the appellant to show that an error occurred.

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

5      Section 232(4).

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

7 At [38].

District Court decision

[7]    In his decision in the District Court, Judge Thompson outlined the evidence he had heard. He noted that Mr Nicol did not give evidence, and properly confirmed this was his absolute right. Mr Nicol also did not make a statement upon his arrest. This meant there was no evidence before the Judge provided by or for Mr Nicol.

[8]    Given he had no reason to doubt Mr Urech’s evidence, and no contradictory evidence was provided, Judge Thompson said he was satisfied the threats were made. While it seems Mr Urech may not have seriously feared that the threats would be carried out, the Judge said that the fact they were made with intent to “cause concern” on Mr Urech’s part, satisfied him that the charge of threatening to kill was proved beyond reasonable doubt.

Grounds of Appeal

[9]    Ms Gould, for Mr Nicol, as I have noted, relies on two key grounds for appeal. These are, first, that Judge Thompson applied the wrong test in finding the threatening to kill charge proven under s 306 of the Crimes Act and, secondly, due to miscommunication between Mr Nicol and his counsel, Mr Nicol did not understand that his failure to give evidence would result in only one version of events being put before the Court. I now turn to consider each of these grounds for appeal individually.

Did the Judge apply the incorrect test?

Submissions

[10]In his judgment Judge Thompson concluded:

…Even though Mr Urech did not seriously fear that [the threat would be] put into effect, it nevertheless was made and was made with the intent, there is no doubt from the context, of causing concern on the part of the person to whom the threat was made.”8

8      Police v Nicol, above n 2, at [13].

[11]   Ms Gould submits the relevant test is whether the alleged offender intended the other person take the threat seriously and not whether the offender made the threat intending to “cause concern”. She contends there was no real evidence before the District Court to indicate that Mr Nicol had that requisite intent and, therefore, the conviction in question cannot stand.

[12]   Ms Gould argues further that this distinction is important as cases of mere ranting, or hot air warrant a lesser sentence via a charge of intimidation under s 21 Summary Offences Act 1981. It is only the more serious threats that warrant this more serious charge of threatening to kill or do grievous bodily harm under s 306 of the Crimes Act, which itself carries a maximum sentence of seven years’ imprisonment.

[13]   On all this, Ms Gould cites R v Meek where McMullin J noted “the words should be intended to be taken seriously…by the person or persons to whom it is addressed and whose conduct may be influenced by it.9 In R v Adams the Court of Appeal noted the mental element would be fulfilled if “the maker intended it to be taken as a threat which may be carried out”.10

[14]   Mr Moore, for the Crown, in response confirmed that he accepts that R v Meek and R v Adams correctly confirm that addressing the mens rea element of the offence requires that there must be an intention the threat will be taken seriously. The High Court has previously reformulated the test as requiring an intention “to influence the mind of the person to whom it was addressed”11 and Adams accepted this expression to be equivalent to the appropriate test.12 Mr Moore went on to suggest that, read in context, the words used by Judge Thompson here to describe Mr Nicol’s intent that they were to “caus[e] concern” were simply a description that Mr Nicol intended the threat to be taken seriously by Mr Urech. The evidence, he says, supported no other credible interpretation as it was not a joke. The threatening comments were made in the context of the physical confrontation that evening. Therefore, the Judge,

9      R v Meek [1981] 1 NZLR 499 (CA) at 503. R v Meeks was cited with approval in R v Hardwick HC Auckland CRI 2005-404-328, 27 July 2006 at [14]; Reihana v Police HC Auckland CRI 2009- 404-205, 21 September 2009, at [4]; R v Adams [1999] 3 NZLR 144 (CA) at [8].

10     R v Adams, above n 9, at [7].

11     Police v Goldie [1993] 2 NZLR 329 (HC).

12     R v Adams, above n 9.

Mr Moore says, did not apply the wrong threshold of intention test and the conviction here should be upheld.

Analysis

[15]   I accept that the Judge here did not articulate the exact requirements with regard to the mental element of this offence when he said the threatening comment was made “with the intent of causing concern”. The correct articulation of the test is that the threat was made with the intent to intimidate or be taken seriously.13 However, it is also true here that the Supreme Court in Sena v Police on this aspect accepted:14

…that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given.

[16]   The Judge did note that Mr Urech may not have seriously feared that the threat would be followed through but, instead, correctly he focussed on Mr Nicol’s intention rather than how Mr Urech interpreted the threat.15 I have read the notes of evidence in this matter and I accept Mr Moore’s contention here that, in light of all the evidence, the Judge’s use of the term “cause concern” is a description that Mr Nicol intended to intimidate and for the threat to be taken seriously. It was not a joke, nor was it a mechanism to achieve some other goal as in Reihana.16

[17]   In Reihana v Police, Duffy J noted intent may be more readily identifiable where:

the threats are accompanied by other circumstances which give credence to their credibility”.17

When taken in the context of the earlier confrontation between Mr Nicol and his grandfather, and given all the surrounding events culminating from what the Judge described as “plainly [bad] relationships at  the  time”  and  considering  also  that Mr Nicol clearly indicated to Mr Urech that he was concealing a gun and would use

13     R v Meek, above n 9, at 503; R v Hardwick, above n 9, at [14]; Reihana v Police, above n 9, at [4];

R v Adams, above n 9.

14     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [37].
15 Reihana v Police, above n 9, at [6].

16 Reihana v Police, above n 9.

17 At [21].

it, I am satisfied the evidence before the Judge was sufficient to support his view that the intention was to intimidate and for the threat be taken seriously. Judge Thompson’s use of the expression “made with the intent of causing concern” must be read as an articulation that the Judge believed Mr Nicol did intend the threat to be taken seriously.

[18]   On all of this, Ms Gould suggested in response that the evidence should not be seen as sufficient to support a conviction at the higher standard of intent required for this offence. I disagree. There was ample evidence, as I see it, before Judge Thompson to support the conviction to the standard, and while the Judge might have articulated the test differently, in practice I accept that he adopted the correct test.

[19]   Lastly, before me, Ms Gould made one further oral submission relating to the serious nature of this threatening to kill offence under s 306 of the Crimes Act. On this, she argued that the consequences for Mr Nicol of a conviction for this serious offence would be significant for his future employment, travel and related prospects. Whilst she accepted, and I do note, that the relevance of these matters is questionable on a conviction appeal of this type, in any event, I simply record for completeness that Mr Nicol, although a relatively young man aged 26 at the time of these events, already has a criminal and traffic conviction history exceeding some three pages, including convictions in March 2019 for two instances of family violence and resisting police, resulting in an imprisonment sentence. This issue raised by Ms Gould as to consequences of a conviction for Mr Nicol I leave entirely on one side here.

Failure to adequately explain the consequences of exercising right to silence

[20]   Before me, Ms Gould did not press the second ground of appeal. Her written submissions, however, address this and for completeness I will turn to consider this ground, albeit briefly.

[21]   On this aspect, Ms Gould has suggested that Mr Nicol did not understand that his decision not to give evidence would leave the Judge at his trial with only one version of events, which the Judge would likely feel compelled to accept unless properly in doubt. Mr Nicol, it is claimed, faced emotional distress at the hearing. Ms Gould says he felt unable to provide evidence to challenge his uncle’s evidence, but instead he relied on his lawyer to question in cross-examination the evidence that was

given. Ms Gould says, first, that Mr Nicol has extreme regret over his decision to exercise his right to silence and, secondly, that it is hard for a lay person to appreciate the significance of such decisions.

[22]   On these matters I do not consider any miscarriage of justice has occurred on this ground. Mr Nicol was at the trial, he heard the evidence from the prosecution, and could have then made a decision to provide evidence. Mr Nicol knew the police had not taken a statement from him upon his arrest. He had access to a lawyer throughout the trial and the notes of evidence show Mr Nicol was allowed access to his counsel when he was unsure what was occurring.18 While subsequently he may regret his decision not to provide evidence, there is no suggestion that Mr Nichol was in a state of such emotional distress that he was quite unable to provide evidence or make decisions. I consider it is likely Mr Nicol may have made a deliberate decision not to give evidence. This ground also is not made out here, nor does it warrant disturbing the conviction.

Conclusion

[23]    For all the reasons I have outlined above, I am satisfied no error or miscarriage of justice has occurred here. The appeal is dismissed.

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

Gendall J

Solicitors:

Rennie Gould, Barristers, Porirua

Luke Cunningham & Clere, Wellington

18     At one point in the trial, it seems Mr Nichol interrupted the Court and stated “I haven’t been informed of any of this”. The Judge allowed an adjournment for Mr Nicol to speak to his counsel.