Poata v Police HC Rotorua CRI 2010-470-23
[2010] NZHC 1686
•5 July 2010
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2010-470-23
MORRIS PERCY TE WATA POATA
Appellant
v
THE NEW ZEALAND POLICE
Respondent
Counsel: N Dutch for the Appellant
H Derrick for the Crown
Judgment: 5 July 2010
RESERVED JUDGMENT OF JOSEPH WILLIAMS J
In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4pm on the 5 July 2010.
Solicitors:
N Dutch, Barrister, PO Box 14124, TaurangaCrown Solicitors, Tauranga
POATA V THE NEW ZEALAND POLICE HC ROT CRI-2010-470-23 5 July 2010
[1] Mr Poata was convicted on 4 May 2010 in the District Court on a charge of male assaults female. Mr Poata represented himself at the hearing but now appeals and is represented by counsel. The appeal is against both conviction and sentence.
[2] The police allegation is that on 1 February 2010 Mr Poata and Ms Kino were parked on the side of the road on State Highway 29 close to the Oropi-Barkes Corner roundabout in Tauranga. They were beside a white Subaru motor vehicle. Mr Poata was seen punching Ms Kino in the abdomen. He was later arrested 100 metres or so down the road.
[3] A crucial issue on this appeal is the admissibility of identification evidence. The identification evidence was provided by Ms Brown and Ms Bennett who were passing by in a motor vehicle when the alleged incident occurred.
[4] Setting aside the evidence of the identification witnesses Ms Bennett and
Ms Brown, the notes of evidence demonstrate that:
a) the white Subaru belongs either to Mr Poata or Ms Kino and it is on the side of the road because it has run out of petrol;
b)Ms Kino was by the car in an upset state. She accepts that she had had an argument with Mr Poata;
c) Ms Kino is Mr Poata’s partner;
d)the couple had had an altercation at the side of the road and one can infer from this that he had stormed off;
e) the couple deny that any striking took place.
[5] Ms Brown was a passenger in a car driving by. Ms Bennett was the driver. Both were certain that they saw the man at the scene punch the woman. They drove past, stopped and called the police. The police directed them to return to get a licence plate number for the car which they did. Apparently on the second pass they saw the same man again.
[6] In evidence, Ms Brown said that although she thought it was Mr Poata who she saw, she could not be positive without seeing the tattoo on his stomach (apparently he had no shirt on at the time). Needless to say Mr Poata did not expose his stomach to the witness in court and she did not make a final positive identification.
[7] Ms Bennett on the other hand said she was very sure it was Mr Poata and made a dock identification.
[8] Section 45 of the Evidence Act contains the regime for identification evidence. It provides (inter alia) that identification evidence will be admissible only if a formal procedure is followed unless there was a good reason for not following such a procedure. There was of course no formal procedure in this case.
[9] In subsection 4(d) a “good reason” exists if those involved in the investigation could not reasonably have anticipated that identification would be an issue at trial. I am satisfied that identification could not have been anticipated at the time of the investigation as a relevant issue in this case.
[10] The surrounding investigation demonstrates that the issue then was not whether Mr Poata was there but whether he hit Ms Kino. There was no doubt that the white Subaru on the side of the road was their white Subaru, and there was no doubt that they had had an altercation on the side of the road. There was nothing in the circumstances of the arrest to suggest that it was reasonably possible that there could have been a different couple in the immediate vicinity having a similar roadside altercation at the same time. This was a state highway on the fringes of Tauranga with no parking on either side of the road. As Constable Price, the arresting officer, said in evidence, “There was no-one on the road at all. Just the traffic and the witnesses that I was speaking to.” [notes of evidence, p10].
[11] It could not reasonably have been contemplated by the officers at the scene that this was going to be a “who done it”. The learned District Court Judge was correct to admit the evidence of Ms Bennett and Ms Brown.
my view. It is true that Ms Kino denies being struck but there are two independent witnesses who saw the altercation and were adamant about what happened. They were sufficiently affected by what they had seen to stop and call the police. Ms Kino on the other hand had reasons to lie. The learned Judge saw her give evidence and assessed her demeanour. It was entirely open to him to reject her evidence and prefer that of Ms Bennett and Ms Brown as to whether the blow was struck.
[13] In addition, Ms Kino was crying and clearly upset at the scene and Mr Poata is located and arrested a short distance away when the police arrive.
[14] Mr Poata was interviewed by Constable Price en route to the station. He indicates to Constable Price that he saw Ms Bennett and Ms Brown at the scene. He refers to them as “Those witnesses”. I agree with the learned trial judge that there was no room for a reasonable doubt about Mr Poata’s guilt.
[15] The appeal against conviction must be dismissed accordingly.
[16] The appellant also argues that his sentence of six months’ imprisonment is manifestly excessive. Mr Dutch argued that this was a single count of male assaults female in which there is no element of intent to injure, no actual injury in the evidence, and the single blow was struck to the body, not the head. Mr Dutch argued that such assaults would not ordinarily attract a custodial sentence at all.
[17] Having said that, it was accepted that prison was an inevitable outcome in this case because of Mr Poata’s extensive history of violence particularly male assaults female. He had three convictions for that offence in 2007 and much earlier convictions for the same offence in 1993, 1997 and 1998. However, Mr Dutch submitted that even with this history, the male assaults female count should not have produced an end point higher than two months with a final penalty for the overall offending being three to three and a half months.
[18] Judge Harding began at nine months although this clearly took into account both the offending and the offender’s history. He then reduced the sentence by three
very severe bouts of gout; sufficient to immobilise him for considerable periods.
[19] As the Court of Appeal said in R v Reihana[1], there is no tariff for this offence because the circumstances of its commission and of offenders can vary so greatly.
[1] CA143/03, 3 July 2003
[20] I have considered Martin v Police[2] involving only pushing and pulling which resulted in minor bruising to the arms of the victim. This episode, although minor in itself, was the latest in a lengthy history of domestic and other violence. An end point of eight months was reached. Clearly past history was a significant factor.
[2] HC Rotorua CRI-2007-470-24, 11 July 2007
[21] In Grayson v Police[3] Grayson delivered a single slap to the victim’s face and then broke windows in her home. Heath J considered that an appropriate starting point ought to have been eight months’ imprisonment with an end point of five months.
[3] HC HM 2006-419-31, 6 April 2006
[22] In Yeo v Police[4]a 19 year old grabbed his girlfriend around the throat and held her head in his lap while driving. After stopping he pulled her hair, ripped her shirt and punched her once in the face. Although there was no history of violent offending in that case, a starting point of nine months’ imprisonment was adopted with an end point of six months.
[4] HC AK CRI-2006-404-283, 14 September 2006
[23] Given these cases, I am not prepared to say that six months’ imprisonment is manifestly excessive in the present appeal. The nine month starting point does seem stiff but that is greatly mitigated by the three months discount on account of Mr Poata’s health issues. There may well have been other ways of arriving at the final result. I would not myself have given a discount for health issues. Others may have thought it more appropriate to start at considerably less than six months and uplift to six months for Mr Poata’s previous record. But the important thing is that an end point of six months is unimpeachable in light of the cases to which I have referred.
“Joseph Williams J”
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