P Appellant v The Police Respondent

[2006] NZHC 623

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI.2006-416-006

P

Appellant

v

THE POLICE

Respondent

Hearing:         1 June 2006

Counsel:        No appearance for the Appellant

Clayton Walker for Respondent

Judgment:      1 June 2006

[ORAL] JUDGMENT OF WILLIAMS J.

Solicitors:

Crown Solicitor, Gisborne, for respondent

Copy for:

Benjamin    P  , 23 Belfast Crescent, Gisborne

Lavinia Poutu, Criminal Registry, Gisborne High Court

Judge Rota, c/- Gisborne District Court

P V POLICE HC GIS CRI.2006-416-006  1 June 2006

[1]      In an oral judgment delivered on 13 February 2006 in the District Court at Gisborne, Judge Rota convicted the appellant, Mr P  , on one charge of resisting a constable in the execution of his duty and one charge of behaving in a disorderly manner, both on 31 October 2005.   The conviction for behaving in a disorderly manner occurred after the Judge had heard the evidence and reduced the original charge to behaving in a disorderly manner when Mr P   had previously charged with behaving in an offensive manner.

[2]      On 23 February 2006 the Court advised Mr    P   at the address he gave in his Notice of Appeal that his appeal would be included in the callover in this Court on 30 May 2006 at 9:00am.  The matter was called on that occasion but there was no appearance by or on behalf of the appellant.  The appeal was then allocated a fixture for 1 June 2006 at 2:15pm and the Court wrote to Mr    P   at the same address on

30 May 2006 advising him of the fixture date.

[3]      This note is being dictated at 2:35pm on 1 June 2006.  Mr    P   has not appeared and Mr Walker, for the Police, asks that the appeal be dismissed for want of prosecution.

[4]      It is a little difficult to tell from the documents filed by Mr    P   in relation to the appeal just what are the precise grounds on which he intended to  appeal against both his conviction and sentence.

[5]      To the District Court he wrote and claimed that he conditionally accepted some of what Constable Murphy (the constable whose arrest he resisted) had said in evidence but Mr    P   also filed the document claiming that this Court had no status to deal with him and that he had brought the incident which gave rise to the charges to the attention of the Whanau Hapu of the Tangata Whenua Council of    Hapu Oneone o Aotearoa on 15 February 2006.   He says he was admonished and dealt with by that body.

[6]      However, when the notes of evidence taken at the defended hearing before

Judge Rota are analysed, it is clear that Mr    P  , who acted for himself in the

District Court, was defending the matter on the conventional basis that his version of events which had exculpated him was different from the evidence adduced by the Police through Constable Murphy and accordingly he should have been acquitted.

[7]      In brief, the evidence showed that Mr    P   was involved in an altercation with Housing Corporation, probably his landlord, concerning some vehicles parked on Mr    P  ’s property.   It seems Housing Corporation were trying to remove those vehicles and Mr    P   was endeavouring to avoid that.  Constable Murphy was nearby.  Mr    P   hailed him and persuaded him to come to the premises in order, so Mr    P   said,  to  represent  his side  of the  dispute.   In fact,  when Constable Murphy arrived, understandably enough, he went first to speak to those who were there on behalf of the Housing Corporation in order to ascertain why they doing  what  they were doing.  Mr     P   remonstrated with Constable  Murphy concerning that.  He was some distance from the others.   His remonstrations were apparently in a loud voice and included obscene language.

[8]      As a result, Constable Murphy went to Mr    P   to ask him to desist or to tone down his comments.  According to the constable, Mr    P   failed to do so and as a result the constable arrested him for offensive behaviour.   He then endeavoured to  place Mr     P   in the Police car  but  encountered  quite  firm resistance from Mr    P   in relation to that matter, to the extent that Mr    P   was ultimately handcuffed.

[9]      Mr     P  ’s  version of events was that  he was remonstrating  with the constable in a moderate tone, asking him to fulfil his role of assisting the appellant, and that it was the constable who was violent in relation to the arrest and Mr    P  ’s removal to the Police car.

[10]     In view of the fact that Mr    P   was acting for himself, Judge Rota, in his judgment,  initially  carefully  set  out  the  elements  of the  offences  and  reminded himself of the onus and standard of proof.   He then, in a lengthy passage, very carefully analysed the evidence given on behalf of the opposing parties in terms of their versions of the facts, and particularly in relation to the issue of credibility.

[11]     He made it clear in his judgment to Mr    P   that simply because the prosecution was being brought by the Police and the only witness for the Prosecution was a Police officer, that gained him no especial credibility in the eyes of the Court. He also made it clear to Mr    P   that even though he was acting for himself and apparently may have been dressed informally, that, too, did not weigh with the Judge in relation to the issues of credibility.

[12]    The Judge’s analysis of the situation was very careful and precise but, ultimately, he came to the point of view that he preferred the evidence of Constable Murphy to that given by the appellant.

[13]     He then turned to the facts and carefully analysed those before reaching his conclusions, first, that the charge of offensive behaviour should be reduced to disorderly behaviour but the reduced charge was found proved, and secondly, that the charge of resisting a constable in the execution of his duty had also been proved. He convicted the appellant and sentenced him to 50 hours community work.

[14]     In the Notice of Appeal,  Mr     P  ,  amongst  other  matters, raised  the question that  there  were,  he said,  two  witnesses  who  could  have  supported  his version of events.   By inference from the District Court evidence, it seems likely those witnesses would have been his daughter and a bystander who, he said, intervened to remonstrate both with the Housing Corporation representatives and the Police.

[15]     Because  this  matter  is  being  determined  in  Mr      P  ’s  absence,  it  is pertinent to observe that there is no application for any additional evidence to be called on the appeal and clearly, too, if those are the witnesses to whom Mr    P   is referring, they would have been available to have been called in his defence in the District Court. It is likely, therefore, in conventional terms, that they would not have been permitted to give evidence in this Court and the appeal would not have been allowed and the case remitted to the District Court for that to occur.  The law is that all available witnesses must be called at the initial hearing.  Appeals are not allowed just because such witnesses were not called for the defence.

[16]     Courts on appeal deal - other than in exceptional cases – with the typescript of the evidence given in the District Court and, as is well known, courts seeing and hearing witnesses are very much better able to assess their credibility than judging that issue solely on the typed transcript.

[17]     The transcript, however, has been carefully analysed;  what are thought to be the facts are distilled and the grounds on which the appeal might have been advanced have been covered in this note.  The note is somewhat fuller than might ordinarily be the case, having regard to the background to this matter and Mr    P  ’s non- appearance.

[18]     In the end, however, it is clear that Mr    P   has been advised of today’s fixture.   He has chosen not to appear.   There would appear to be no sustainable grounds on which the appeal might have been maintained.  Accordingly the appeal is dismissed and Mr    P   will now need to begin his community work sentence.

……………………………..

WILLIAMS J.

1 June 2006