Noone v Police
[2020] NZHC 1387
•18 June 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-000016
[2020] NZHC 1387
BETWEEN KATARINA NOONE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 June 2020 Appearances:
F King and M Dempster for Appellant B T Vaili for Respondent
Judgment:
18 June 2020
(ORAL) JUDGMENT OF LANG J
[on appeal for leave to appeal out of time]
Solicitors:
Crown Solicitor, Hamilton Counsel:
F King, Hamilton
NOONE v NEW ZEALAND POLICE [2020] NZHC 1387 [18 June 2020]
[1] Ms Noone faced a charge of common assault in the District Court.1 She pleaded not guilty, but after a defended hearing on 5 September 2018 Judge K B F Saunders found the charge proved beyond reasonable doubt. She fined Ms Noone the sum of $500.
[2] Fifteen months later, on 22 February 2020, Ms Noone applied for leave to appeal against conviction out of time. The Crown opposes leave being granted.
[3] The issue of whether leave should be granted is complicated in the present case by the fact that there is now no record of either the evidence given during the hearing in the District Court or the Judge’s decision. As a result, and had the appeal been filed within time, an order would usually be made remitting the charge to the District Court for rehearing. The Crown submits this is not appropriate in the present case given the unexplained delay that has occurred and says the application for leave to appeal out of time should be dismissed.
Relevant principles
[4] In R v Knight, the Court of Appeal observed that the Court’s discretion to grant leave to appeal out of time is governed by the interests of justice in each case.2 It is for the appellant to provide the Court with sufficient information to establish that a grant of leave is in the interests of justice.3
[5] In R v Lee, the Court of Appeal affirmed the test referred to in Knight and described the following factors as being relevant:4
… the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
[6] In the present case the Court is obviously hampered in determining whether the interests of justice require leave to be granted because of the absence of any
1 Summary Offences Act 1981, s 9.
2 R v Knight [1998] 1 NZLR 583 (CA) at 587.
3 R v Davis [2007] NZCA 577 at [13].
4 R v Lee [2006] 3 NZLR 42 (CA) at [99].
transcript of evidence and reasons for the Judge’s decision. Counsel have been able to piece together, however, the relevant evidence that was given at the hearing. From the prosecution perspective, this consists of the evidence of the complainant, Mr Hodgson, and that of Constable Sittauer, a police officer who attended the scene shortly after the incident giving rise to the charge. The prosecution evidence is contained in briefs of evidence that counsel agree formed the basis of the evidence given at trial.
[7] Ms Noone’s evidence is encapsulated in a brief of evidence her trial counsel, Mr Jepson, prepared prior to the hearing in the District Court. Mr Jepson has sworn an affidavit confirming Ms Noone gave evidence along the lines contained in her brief of evidence.
[8] Notably, Ms Noone has not filed any affidavit in support of the application. She has not sought to provide any explanation for why she took no action to challenge the Judge’s decision between September 2018 and January 2020. She relies instead on an affidavit sworn by Mr Jepson. Mr Jepson says that, although he has no file note regarding his advice post trial and the possibility of an appeal, he recalls he advised Ms Noone “to put these matters behind her”. Importantly, however, there is no evidence from Ms Noone to suggest she was uncomfortable with the Judge’s decision during the 15 months that passed between the date of the hearing and the filing of the application for extension of time to appeal. It appears she took her counsel’s advice and put the matter behind her.
[9] I propose to deal with the merits of the appeal by considering the evidence such as it is and reaching my own decision as to whether the prosecution was able to prove the charge beyond reasonable doubt.
The evidence
[10] Ms Noone resides at a property adjoining the house occupied by a Mrs Belling and her partner, Mr Hodgson. Ms Noone’s brief of evidence makes it clear that the relationship between the two households was far from harmonious.
[11] Mr Hodgson’s evidence is to be found on notebook entries made by Constable Sittauer after he arrived at the scene. These record that Mr Hodgson was mowing the lawn of his address at about 4.10 pm on the day in question. He said he was not wearing any shirt because of the heat. He then said:
All of a sudden I felt a large whack on the right side on my back. This whack really hurt. I turned around and saw Katarina Noone, the elderly neighbour running away with a white bag in her hands. It looked heavy to me. It felt like rocks were inside it. She ran right around the fence into her house and shut the door. I carried on mowing and I saw she had appeared again. I was right beside her fence again mowing. This time she had a large tree branch. She took a swing at me but it broke in mid-air and missed me. If it hadn’t broken it would have hit me.
[12] Mr Hodgson then told the police Ms Noone had begun verbally abusing him and that he responded in kind and told her the police were on the way. She replied “Good. It’s all on camera”. At or about that point Mr Hodgson called the police.
[13] The police arrived at Mr Hodgson’s address at approximately 4.30 pm. Constable Sittauer noticed that Mr Hodgson was not wearing a shirt. Mr Hodgson told him what had happened, and the constable made notebook entries of this conversation. During this period the constable was able to observe a large red mark on the right-hand side of Mr Hodgson’s back. Mr Hodgson told the constable this was an injury left when he was struck by an object whilst mowing his lawn. The constable took several photographs of the mark on his cellphone and these were produced in evidence at the hearing.
[14] Constable Sittauer then went to Ms Noone’s address. He said she was extremely animated and angry, and told the police Mr Hodgson had damaged her fence. She was acting in an aggressive manner and at one stage waved a crutch at them. Constable Sittauer asked her at that point if she was threatening him with the crutch. The officers were also required to tell Ms Noone to calm down on several occasions. Ms Noone denied assaulting Mr Hodgson.
[15] Constable Sittauer then took Ms Noone to the police station. He initially told her that he proposed to release her with a pre-charge warning. She said she did not want this to happen and that she wanted the matter to go to the court. He therefore arrested her and charged her with common assault. He then released her on bail.
[16] Ms Noone’s evidence is to quite different effect. She says she was inside her address when she heard a loud cracking sound outside. She looked out her window and saw that Mr Hodgson had fallen over her fence and damaged it. She then went out of the property to confront him and found him urinating in the bushes outside her address. She then said:
11. I walked up to Hodgson. I ignored the fact that he had his penis in his hand and tapped him on his shoulder and said “why did you break my fence?” He acted startled and surprised. He must have been near finishing relieving himself and he put his penis away, he grabbed the temporary fence that I had erected with his left hand and raised his right hand as if he was going to hit me. The fence is really only temporary and where it was attached to the tree pulled off and pulled back a bit and he lost his balance slightly and I just walked away. I went back into my house.
[17] Ms Noone said she then called Housing New Zealand to let it know what had happened to the fence. A short time later the police turned up. She said she was spoken to by a constable and arrested and charged with assault.
The Judge’s decision
[18] The Judge was obviously faced with conflicting evidence by Mr Hodgson on one hand and Ms Noone on the other. She was therefore required to make a determination as to the credibility of each. If she accepted the evidence given by Mr Hodgson as to how the mark on his back had been caused, the charge would be proved beyond reasonable doubt. This would only occur if Mr Hodgson’s evidence satisfied the Judge as to guilt beyond reasonable doubt. If, however, Ms Noone’s evidence left the Judge in a state of reasonable doubt she was bound to acquit.
[19] Mr Jepson says in his affidavit that the Judge was “swayed” by Mr Hodgson’s version of events because it was supported by the photograph of the mark on his back and there was no other obvious explanation as to how that could have been caused.
Decision
[20] On Ms Noone’s behalf Mr King submits several pieces of evidence suggest that Mr Hodgson either embellished his evidence or was otherwise an unreliable witness. He points out that Ms Noone was 72 years old at the time of the incident. Clearly, she must have had problems with mobility because she was in possession of
a crutch when the police arrived. In those circumstances Mr King submits Mr Hodgson’s evidence that he saw Ms Noone running away is improbable to say the least. He also submits that other aspects of Mr Hodgson’s evidence are unreliable.
[21] On the other hand, several factors support the prosecution case that Ms Noone struck Mr Hodgson on the back and thereby caused the injury that the constable saw and photographed. First, Ms Noone was obviously angry at Mr Hodgson when the police spoke to her on the day in question. Secondly, something caused Mr Hodgson to call the police as a result of what happened to him whilst he was mowing the lawn. It is difficult to see why he would have taken that step on the basis of the events as described by Ms Noone. Thirdly, the mark on Mr Hodgson’s back was clearly visible to the constable and he took photographs of it. This provided supporting evidence for the fact that he had been recently injured. Given those factors I do not consider it surprising that the Judge accepted Mr Hodgson’s version of events rather than Ms Noone’s bare denial. I am satisfied the Judge was correct to find the charge proved beyond reasonable doubt.
[22] This means there is no merit to the proposed appeal. Furthermore, and as I have already recorded, Ms Noone has failed to give an adequate explanation for the lengthy delay that has occurred in filing the appeal. In addition, any re-hearing in the District Court would be difficult to run at this point because of the fact that the memories of the witnesses would have dimmed since the events giving rise to the charge. Finally, the conviction resulted in Ms Noone receiving a modest fine rather than any loss of her liberty. All these factors mean it is not in the interests of justice for Ms Noone to be granted leave to appeal out of time.
Result
[23]The application for leave to appeal out of time is dismissed.
Lang J
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