Pollock v Police

[2013] NZHC 375

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-029-000815 [2013] NZHC 375

LESLIE GRAHAM POLLOCK

v

NEW ZEALAND POLICE

Hearing:         27 February 2013

Appearances: Appellant in Person

C A Anderson for the Respondent

Judgment:      1 March 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 1 March 2013 at 11.00 am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Counsel: C A Anderson, Whangarei:  [email protected]

Copy to:  L G Pollock, P O Box 118, Awanui

POLLOCK V POLICE HC WHA CRI 2012-029-000815 [1 March 2013]

Introduction

[1]      Mr Pollock appeals against his conviction on a charge of wilful damage following a defended hearing before Judge de Ridder.  He also appeals against the sentence imposed being a fine of $200 and an order to pay reparation of $50.

[2]      Mr Pollock did not file any points on appeal or submissions in support of his appeal and he did not appear at the callover on 4 December 2012.   Mr Pollock advised the court on 1 February 2013 that he wished to withdraw his appeals.  He was sent a notice of abandonment form but he did not complete this.

[3]      Despite this background, Mr Pollock appeared at the hearing and made oral submissions in support of his conviction appeal.  He did not make any submissions in relation to his appeal against the sentence imposed.

The evidence

[4]      The wilful damage charge arose out of a complaint by Shane Rawhiti that Mr Pollock intentionally damaged the wing mirror on the driver’s side of his motor vehicle.   Mr Rawhiti is a farmer and some of his animals are on a 10 acre block accessed from Maimaru Lane in Awanui, Northland.  Mr Pollock lives in Awanui on a property also accessed from Maimaru Lane.   Mr Rawhiti and Mr Pollock have been  in  dispute  with  each  other  for  some  time  regarding  rights  of  access from Maimaru Lane to their respective properties.

[5]      On  Sunday,  3  July  2011,  Mr  Rawhiti  was  driving  his  vehicle  along Maimaru Lane with his cousin in the front passenger seat, intending to check the cattle on the farm block.  Mr Rawhiti’s evidence was that shortly before he reached the property, he saw Mr Pollock walking down the lane towards him.  He said that he moved over to the left hand side of the lane to allow room for Mr Pollock to pass. He said that Mr Pollock was walking “very erratically” towards him “with his arms waving up and down” and “screaming abuse”.  Mr Rawhiti said that Mr Pollock “put up his hand like a fend on a rugby field” and knocked his mirror off its bracket. Mr Rawhiti said that he opened his door to get out at which point Mr Pollock ran back to his house “like the Bolt guy”.

[6]      The  prosecution  also  called  the  constable  in  charge  of  the  case  but  not

Mr Rawhiti’s cousin who had witnessed the incident.

[7]      Mr Pollock elected to give evidence.  He confirmed that there had been issues over ownership of the lane for some time.  He said that two days before the incident occurred, he gave verbal notice of his intention to erect gates blocking the lane unless restrained by an injunction granted within one month.  He said that on the day of the incident he was walking down the lane with his dog on a lead.   He was holding the lead in his right hand when Mr Rawhiti drove in a “big arc” towards him. He said that he thought Mr Rawhiti would go past him but as he came closer he realised that he was going to pin him against the fence.  He said there were cows and two bulls in the paddock on the other side of the fence and he could not jump over the fence with the dog.  He said that Mr Rawhiti “pinned” him to the fence with his vehicle and that he was “pushed against the fence harder and harder”.  He said that Mr Rawhiti’s wing mirror “hooked in between [his] arm and the lead of the dog”. He claimed that Mr Rawhiti continued to drive forward slowly until  finally the mirror broke off its mounting as a result of the strain on the leash.  He confirmed that as soon as the mirror broke off, he ran off although he disputed the accuracy of the Usain Bolt comparison saying that he was a “1952 model and huffing and puffing”.

The judgment under appeal

[8]      Judge de Ridder  gave  an  oral  judgment  following the conclusion  of  the hearing.   The judge commenced by reminding himself that the informant had the onus of proving that Mr Pollock intentionally, not accidentally, damaged the wing mirror.   The judge also reminded himself that although Mr Pollock had chosen to give evidence, the onus of proving the charge beyond reasonable doubt remained with the prosecution. The judge said at [17] of his judgment:

As I have said, there is no onus or expectation on Mr Pollock to give or call evidence but where there is defence evidence then essentially there are three possibilities that arise from it.   Firstly, if I consider that his evidence is a complete answer to the prosecution case, then, of course the prosecution will not have proved its case and he must be acquitted.  The second possibility is it might leave me in the position where I am just unsure of exactly what did happen.  If that is the case then, of course, I could not be satisfied beyond reasonable doubt that  the prosecution  have  proved this case.   The  third possibility is that I might reject his evidence or parts of it.  If that is the view

I reach then, of course, it is not permissible for me to simply go straight to a conclusion that he is guilty of the charge.   I have to consider all of the prosecution evidence and such evidence of Mr Pollock and his witnesses that I do accept and consider on the basis of all that evidence as to whether or not I am satisfied that the prosecution have proved its case.

[9]      After summarising the evidence he had heard, the judge made his factual findings.  He said that having analysed the evidence he considered that Mr Pollock’s account of what had happened was simply not plausible.  The judge gave a number of reasons for reaching this view:

(a)      Mr Rawhiti’s vehicle could not pass from Mr Pollock’s left side to his

right without causing any damage;

(b)      The dog lead held in Mr Pollock’s right hand could not have been

hooked by the mirror if he was pinned against the fence;

(c)      The mirror on Mr Rawhiti’s four wheel drive vehicle could not have hooked  the  dog  lead   held  in  Mr  Pollock’s  right  hand   given Mr Pollock’s comparatively short stature and the height of the mirror.

(d)If  Mr  Rawhiti  had  driven  his  vehicle  at  the  sort  of  angle  that Mr Pollock  claimed,  and  as  close  as  he  claimed,  he  would  have expected Mr Pollock to have sustained significant injury.

(e)      If the lead had caught on the mirror as claimed by Mr Pollock, it is likely that it would have slipped off the mirror as Mr Rawhiti edged forward rather than breaking it off its mount.

(f)      If the lead had caught on the mirror as claimed by Mr Pollock and had not  slipped  off,  it  is  likely  that  the  mirror  would  have  swung backwards  as  it  is  designed  to  do  rather  than  breaking  off  its mounting.

(g)If there was sufficient strain on the dog lead to cause the mirror to break off its mount, the judge would have expected “significant problems for the dog”.

[10]     Having rejected Mr Pollock’s evidence, the judge considered whether the remaining evidence satisfied him beyond reasonable doubt that the charge had been proved.  He found that it was. The judge concluded:

[25] Having found Mr Pollock’s version of how the wing mirror came to be damaged implausible I put his explanation to one side and consider the rest of  the  evidence.    On  that  evidence  and  in  particular  the  evidence  of Mr Rawhiti on which I am satisfied I can rely I am satisfied that, firstly, the wing mirror on Mr Rawhiti’s vehicle was damaged.   Secondly, the only inference  that can  be  drawn  about that  and  about how Mr  Pollock had damaged it is that he clearly intended to damage it applying the force that he did.

[26] That  being the  case the  prosecution  have  proved  the  two  essential elements beyond reasonable doubt and I find the charge proved.

Grounds of appeal

[11]     Mr Pollock listed the following grounds for his appeal in his notice of appeal: (a)     Judge wrong in law.

(b)      Judge wrong in fact.

(c)       Improper conduct by original counsel. (d)       Improper conduct by prosecutor.

(e)       Improper conduct by judge. (f) Moral turpitude by registrar.

(g)      Moral turpitude by arresting officer.

(h)      Moral turpitude by Northern Police Communications.

[12]     Mr Pollock refined the basis of his appeal in his oral submissions. He argued that the judge was wrong in reaching his findings of fact.  He contends that the judge ought to have accepted his evidence and rejected Mr Rawhiti’s evidence as being implausible.

Approach on appeal

[13]     The correct approach to an appeal such as this was confirmed by the Supreme Court in Austin Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141. Elias CJ said:

[13] The appeal court must be persuaded that the decision is wrong but in reaching  that  view  no  “deference”  is  required  beyond  the  “customary” caution  appropriate  when  seeing  the  witnesses  provides  an  advantage because credibility is important.

[16] 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 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.

Discussion

[14]     Credibility was a key issue in this case.  Judge de Ridder had the advantage of seeing the witnesses give their evidence but he did not reach his decision based on demeanour or the manner in which Mr Rawhiti and Mr Pollock gave their evidence. The  judge  gave  his  reasons  for  preferring  Mr  Rawhiti’s  evidence  and  rejecting Mr Pollock’s account as implausible.   I must examine the judge’s reasoning and reach my own assessment having regard to all of the evidence.

[15]     I have reviewed the notes of evidence and  I am satisfied that the judge accurately summarised the relevant sections in his judgment.  I reject Mr Pollock’s submission to the contrary.

[16]     I also agree with the judge’s assessment that Mr Pollock’s explanation was implausible.  I  can  find  no  error  in  the  judge’s  reasoning  and  concur  with  it. Mr Pollock may well have convinced himself that this is what happened but I am satisfied that he is mistaken.

[17]     The  judge  was  entitled  to  accept  Mr  Rawhiti’s  evidence  as  proving  the essential elements of the charge to the requisite standard.  The judge made no error in dealing with this matter.  I am not persuaded that the judge was wrong.  In my view,  Mr  Pollock  was  rightly  convicted  of  the  offence.    The  appeal  against conviction must be dismissed.

[18]     As noted, Mr Pollock did not advance any submissions in support of his appeal against sentence.   The sentence imposed was plainly within an acceptable range for offending of this type.  There is no basis for the appeal against sentence and it must also be dismissed.

Result

[19]     The appeal against conviction is dismissed. [20]         The appeal against sentence is also dismissed.

M A Gilbert J