R v M HC Wanganui Cri-2007-483-31

[2007] NZHC 1368

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2007-483-000031

BETWEEN  THE QUEEN Applicant

ANDM

Respondent

Counsel:         H C Mallalieu for the Applicant

L C Rowe for the Respondent

Date:              4 December 2007

ORAL JUDGMENT OF WILD J

[1]      By application filed on 16 November the Crown Solicitor seeks consent, pursuant to s345(3) of the Crimes Act 1961, to file an indictment.   The proposed indictment would charge M   with assaulting Wiremu Pikari at Raetihi on 2 August with intent to injure him.

[2]      The  depositions  hearing  took  place  in  the  Taihape  District  Court  on  18

September.   Mr M   faced a charge, under s189(1) of the Crimes Act, of injuring Mr Pikari with intent to cause him grievous bodily harm.

[3]      Mr Pikari gave evidence that he had gone to the home of a work mate in Duncan Street, Raetihi after work on 2 August.   He said that Mr M   had arrived.   He had known Mr M   since “he was young”.   Mr M   was known as “fat boy”.  Mr Pikari said that he got into an argument with Mr M   who then assaulted him, punching him around the head.  He could not remember the number of punches because he was drunk, but he said he received two black eyes.

He said the punching was inside the house but that Mr M   had given him

R V M HC WANG CRI-2007-483-000031  4 December 2007

further punches and slaps outside on the street, while he was leaning up against a car. Mr Pikari confirmed during his evidence that photographs shown to him were of the black eyes Mr M   gave him.  Mr Pikari also described trying to fend off or block Mr M  ’s punches by holding his arms over his head.

[4]      In the course of his evidence Mr Pikari was permitted to refresh his memory from a statement he had made to the Police the following day, 3 August.  Having done that he said that he had been kicked in the face by Mr M   while he was lying outside on the ground.  Under cross-examination Mr Pikari accepted that his reading skills were not very good and that he had been unable to read the statement before he signed it on 3 August.  He accepted that, although he remembered being punched, he could not remember whether or not he had been kicked.

[5]      There were hand up depositions from three further witnesses.  A Mr Leslie

Christiansen stated that he had been at 32 Duncan St, Raetihi from about 6 pm on 2

August.  He identified Mr M   (“fat boy”) as arriving about 9 or 10 pm.

[6]      Dr Corbett from Raetihi stated that he had examined Mr Pikari at about 9.30 on the following morning, 3 August.  He said Mr Pikari had claimed he had been assaulted causing swollen and bruised eyes, a bruised left jaw, upper lip and a tender elbow.  The doctor stated that because Mr Pikari’s left eye was partially closed and he was unable fully to open his jaw he recommended that it be x-rayed.  The doctor stated that the injuries were consistent with Mr Pikari being hit about the head more than once.

[7]      The third witness was Constable Cranswick, who arrested Mr M   on 3

August.  The Constable produced photographs showing the injuries sustained by Mr

Pikari.

[8]      The Justices’ decision is short enough to include in full:

[1]       The information could be amended to Section 196 of the Crimes

Act. That could well happen.

[2]       We believe that there is really insufficient evidence because simply the Crown witness really could not remember or could not read what he had said and then did not know what he had written down because he could not

read the evidence.   The statement that the witness had made to the Police does not stack up because he signed something and he did not really know whether that was right or not.  We have spent a lot of effort on this and the evidence has been really discredited by cross-examination.  I do not believe there is sufficient evidence to put Duncan M   on trial.

[3]       There is no case to answer.   The defendant will be discharged in respect of this information.

[9]      Section 345(3) principles are thoroughly well established.  The Justices’ role was  to  evaluate  the  evidence  and  decide  whether  it  was  sufficient  to  put  Mr M    on  trial  for  an  indictable  offence.    There  is  no  effective  difference between the approach required by s345(3), and that in considering a discharge under s347 Crimes Act.  In other words, the principal purpose of a preliminary hearing is protection for a citizen against an accusation insufficiently supported by evidence to justify that person being brought to trial.

[10]     My emphasis, when referring a moment ago to an indictable offence, is to reinforce the point that committal is appropriate if the evidence is sufficient to put the accused on trial for an offence, whether more serious or less serious than that then charged.

[11]     As with s347, it is not for the judicial officer(s) conducting a preliminary hearing to decide whether a conviction is or is not the likely outcome at trial.  Rather, the task is to evaluate whether the evidence is sufficient to put the accused on trial. The  most  oft  quoted  guidance  to  Justices  in  evaluating  the  sufficiency  of  the evidence is that of Fisher J in Downey v District Court HC AK M271/95 29 June

1995:

In evaluating the evidence the Justices can refuse to commit for trial if (i) the prosecution has failed  to adduce  any evidence to  support  some  element essential to the Crown case (this being self-evident from s168(1) itself); (ii) if the ‘creditableness’ of critical witnesses is such that no jury could reasonably believe their evidence (for recent discussion of the distinction between creditability and credibility see Attorney-General v District Court at Christchurch (Court of Appeal, Wellington, CA203/94, 31 October 1994)) or, (iii) if on an overall view of the evidence the likelihood of a guilty verdict is so slight that a trial would be unjustified, this being said to arise only in an

‘extreme case’ (W v Attorney-General [1993] 1 NZLR 1, 8 (CA)).

[12]     Before ruling on this application I remind myself that the threshold is high. As was said in the leading case of Daemar v Gilliand [1981] 1 NZLR 61 at 64:

…   A discharge at that (referring to the preliminary hearing) stage would certainly not lightly be reopened …

[13]     I am in no doubt that the Crown Solicitor meets that high threshold here.  As Mr Mallalieu submits, the Justices appear to have focused on Mr Pikari’s evidence, and in particular the concessions he made when cross-examined about the written statement taken from him by the Police the following day.

[14]     The Justices appear to have overlooked that, notwithstanding Mr Pikari’s concessions, there is evidence establishing:

•    The accused was at the address in Raetihi at which Mr Pikari said he was assaulted.

•    The  accused  was  the  person  who  assaulted  Mr  Pikari,  at  least  by punching him in the head.

•    The extent of Mr Pikari’s injuries:   two black eyes and a swollen, and possibly broken or fractured, jaw.

[15]     The Justices ought to have committed Mr M   for trial.  Accordingly, pursuant to s345(3), I give the Crown Solicitor at Wanganui consent to file an indictment against the accused.

[16]     When framing that indictment, the Crown Solicitor should pitch the charge at a level that reflects that, while the Crown may well be able to prove punching, and forceful punching at that, to the head, it is unlikely that it will be able to prove kicking to the head beyond reasonable doubt.

Solicitors:

Crown Solicitor, Wanganui for the Applicant

Armstrong Barton, Wanganuii for the Respondent