R v Police HC Dunedin CRI 2006-412-9
[2006] NZHC 773
•5 July 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI 2006-412-000009
R
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 6 June 2006
Appearances: Appellant appears in person
D P Robinson for Respondent
Judgment: 5 July 2006
JUDGMENT OF HON JUSTICE JOHN HANSEN
The appeal is dismissed.
REASONS
[1] On 15 February 2006, following a defended summary hearing, Judge MacLean convicted the appellant with a Summary Offences assault contrary
to s 9 of the Summary Offences Act.
R V POLICE HC DUN CRI 2006-412-000009 5 July 2006
[2] The appellant was discharged pursuant to s 106 of the Sentencing Act 2002, ordered to pay $1,000 reparation with court costs of $130 and witness expenses of
$25.
Background
[3] The appellant is aged in his late 40s and, at the relevant time, the complainant was 19. They were fellow students at Otago University who attended a common class. Because of his hearing difficulties the appellant had a standard position in the lecture hall to enable him to use necessary auditory equipment. Apparently on a number of occasions the complainant sat next to him, and they exchanged pleasantries.
[4] On 10 August they agreed to a meeting at a café. After a short time she left to meet some friends and the appellant accompanied her. It is alleged the appellant then reached out, put his arms behind the complainant’s shoulders, cupping the point of the shoulder and pulling her in towards him.
[5] The complainant alleged that this was without warning and went on for perhaps two minutes. There was also some reference to discussions between them.
[6] It appears to be common ground that eventually it ended, although there is a dispute as to when and why it ended.
[7] There was apparently some reference to breasts, but as the Judge noted the charge was not one of indecent assault.
[8] The Judge then set out the relevant law and went on to consider whether or not there was consent, or reasonable belief in such consent. He examined the appellant’s subjective state of mind and was clearly aware it was for the Crown to negative that, to show that he could not have, in fact, believed she was consenting. Judge MacLean was satisfied on the evidence that the appellant knew all along his attentions were unwanted.
[9] The notice of appeal sets out the following grounds:
a) That the Judge made findings of fact contrary to the evidence given.
The complainant testified that she smiled at the [appellant] during the time of actus rea, indicating no intimidation or use of force. The Judge interpreted her actions of smiling to mean something else.
b)The Judge failed to direct himself to the proper principles of law in that the law requires the Judge to examine the ‘mens rea’ (belief of consent) of the [appelllant].
c) The Judge failed to apply these principles to the facts. This required the Judge to look subjectively, not objectively into the believability (unlike Morgan) of what the [appellant] actually interpreted as consent, when the complainant smiled at him.
d) The Judge was erroneous in law, because common assault as a trespass, requires clear unambiguous disapproval and non- participatory action to be shown or indicated, as in Morgan. This complainant indicated approval by smiling and offering invitations to accompany her socially.
Discussion
[10] Mr R presented lengthy written submissions which he read to the Court. These did not specifically follow the grounds set out in the notice of appeal. However, they encompassed all of those matters. He also filed a lengthy written response to the Crown’s submissions.
[11] The submissions are discursive, prolix, often missing the point, and fail to recognise the factual finding confronting this appeal. They are made even more difficult to follow by failing to be chronological. For example, there are two headings under the number “3” and two under the heading “3(a)”.
[12] In these submissions he firstly argued that the prosecution and the trial Judge created an unfair trial, one which created a miscarriage of justice. By the Judge and prosecution knowingly railroading the appellant on procedural impropriety the trial became a nullity under s 385(1)(c) and (d) of the Crimes Act 1961.
[14] I have read the transcript and there is simply no foundation for the allegations of ambush, concealment or trickery levelled against the respondent. All disclosure obligations were met, and the evidence of the complainant was consistent with her original statement to the police. There is absolutely nothing in the record to support an allegation that the actions of the Judge created an unfair trial.
[15] This ground must fail.
[16] The second matter advanced by the appellant is whether or not the appellant had a reasonable and honest belief in consent. The appellant submitted that the prosecution must prove the appellant’s state of mind and that his conduct was other than that of a reasonable, ordinary and prudent individual. He said this, coupled with the fact the complainant apparently smiled and continued to walk with him, meant there were grounds for belief in consent.
[17] The Crown accepted that R v Nazif [1987] 2 NZLR 122 established that a genuine belief in consent, even where there are no reasonable grounds for it, can provide a defence.
[18] In his written submissions the appellant seems to have confused submissions relating to “no case to answer” argument with his defence. While he continued to assert that he believed there was consent on reasonable grounds, he does, with respect, miss the point. At [16] of the judgment there is a finding that the complainant was not consenting from the outset, and this was known to the appellant.
[19] The Judge was aware of the evidence the appellant now relies on. The Judge considered and rejected it. Clearly the Judge was satisfied to the requisite standard the appellant was aware from the outset that the complainant was not consenting.
[20] This ground must fail.
[21] The third ground is an allegation of a mistake in law by the learned District
Court Judge in not finding “no case to answer”.
[22] The appellant seeks to apply ss 347 and 385 of the Crimes Act, even though the matter is dictated by the Summary Proceedings Act 1957.
[23] The Judge summarised the effect of the “no case” test enunciated in R v
Flyger [2001] 2 NZLR 721 (although not mentioning the case) which states at [16]:
[16] … Judges can and ought to distinguish between adequacy of evidence on the hypothesis of its acceptance, at one stage of a trial, and proof of a charge on the basis of actual acceptance, at a later stage. District Court Judges who, in their summary jurisdiction, may have to apply the tests consecutively if a defendant elects to call no evidence following a ruling that there is a case to answer, are astute to recognise that distinction.
[24] The Court of Appeal endorsed the approach of Tompkins J in R v Adams HC AK T240/91 8 October 1992 at [25], and cited the following passage from Adams at [18]:
Where, as here, the Crown case is dependent, in whole or in part, on inferences, the credible evidence must establish facts capable of supporting the inference. The Court should not decide on such an application or submission whether the relevant inference should be drawn.
[25] The Crown submission, in my view, is correct. The appellant ignores the ability of Judge MacLean to draw inferences from the evidence, and the need for the subjective belief to be assessed by inference in the circumstances of the case.
[26] It is clear that there was an inference available to the learned District Court Judge that there was no subjective belief in consent, meaning that the “no case” submission must fail.
[27] This ground also fails.
[28] In relation to the next ground, that the verdict was not supported by the evidence, the Crown submits the case came down to the credibility of the witnesses and the inferences to be drawn from the evidence.
[29] The Crown submits that the appellant ignored evidence of the complainant’s reaction, which provided the basis for the inference ultimately drawn by the Judge. Furthermore, the Crown submits the Judge saw the appellant give evidence, and plainly rejected his claim of a belief in consent, whether reasonably held or not.
[30] Abbott & Thompson District Courts Practice (Criminal) (LexisNexis, Wellington) note:
SUP119.6 Credibility of witness
The findings of a District Court Judge as to the credibility of a witness will not normally be overturned by a High Court Judge on appeal. This is because the appeal is usually heard on the notes of evidence taken in the lower Court and the District Court Judge will have had the advantage of seeing and hearing the witnesses. The discretion to rehear the evidence entirely or in part will rarely be exercised on issues of credibility: Wilson v Nisbett [1953] NZLR 884; Harper v Hesketh [1954] NZLR 622; Tetau v McPherson [1956] NZLR 34.
[31] The Judge’s credibility findings went against the appellant. It was clearly open to the Judge to make such a finding.
[32] I have no doubt that the experienced District Court Judge, while not specifically mentioning it in his judgment, would follow the tripartite direction where an accused gives evidence.
[33] This Judge determined to find the charge proved beyond reasonable doubt, and on the facts that was a finding open to the Judge.
[34] Furthermore, the appellant raises issues of motive. While motive may explain conduct, it is not something that needs to be proved and nor is it an element of the offence.
[35] This ground also fails.
[36] The next ground advanced in the written submissions is that the appellant disagrees with the Judge’s decision to convict. He seeks an acquittal:
… on the grounds a guilty charge can not be supported by the evidence, under s 385(1)(a) Crimes Act 1961, given by the witness/complainant that
there was even a crime so no case to answer, (unless it was one manufactured by the prosecution and the judge). …
He goes on to state that the charge of common assault should be dismissed.
[37] Like some other of the appellant’s grounds, this is somewhat difficult to understand. In any event, the matter is governed by the Summary Proceedings Act. Effectively this is another challenge to the factual findings. It must fail.
[38] The next two submissions are also said to be 3 and 3a) which appear to be addressing the elements of the offence. The appellant submits that the three elements said to be at issue are:
a) An intention to commit an assault;
b) In a manner that was unlawful; and
c) Without consent or belief in consent.
[39] The Crown submits, correctly in my view, that b) and c) must be read together. It is the absence of consent, or belief in consent, that makes the action of assault unlawful.
[40] The appellant goes on to submit there must be an intention to commit a crime in intentionally applying force. It appears to derive from paragraph 17.2.2 Simester
& Brookbanks Principles of Common Law (2ed, 2002) where the authors note, in reliance on R v Kimber [1983] 3 All ER 316:
However, the reason why such conduct amounts to an assault is not simply because it involves an element of force, but also because the physical conduct is unlawful. Unlawfulness will turn on whether the physical conduct was consented to, and whether the accused intended to act in a manner that is unlawful. … For there to be an assault the prosecution must establish that the defendant’s intention in applying force was such that the force was unlawful.
[41] The Crown submits, correctly, the intention to do that which is unlawful is satisfied if consent is excluded. Kimber has been cited with approval in New Zealand in Nazif on the issue of honest belief in consent.
[42] I accept the Crown’s submission that the position in New Zealand is set out in Adams on Criminal Law (3ed) at paragraph CA196.08:
CA196.08 Consent
At common law the Courts have defined assault and battery as requiring the threat or application of “unlawful” force, so that when the issue arises the prosecution must prove that there was no consent negating the unlawfulness of the force, and that the accused did not believe that there was such consent: R v Kimber [1983] 1 WLR 1118; [1983] 3 All ER 316 (CA); Beckford v R [1988] AC 130; [1987] 3 WLR 611; [1987] 3 All ER 425 (PC), at p 144; p 431. In New Zealand, neither the statutory definition of assault in s 2(1), nor the provision for the offence in s 196, makes any reference to consent. Nevertheless, subject to certain exceptions, consent is a common law justification, excuse, or defence to assault which is preserved by s 20. Moreover, a genuine belief in consent, even if there were no reasonable grounds for it, also provides a defence, and if there is evidence making consent or belief in consent a live issue the prosecution has the burden of proving its absence: R v Nazif [1987] 2 NZLR 122 (CA), at p 128; Police v Bannin [1991] 2 NZLR 237, also reported as B v Police; (1991) 7 CRNZ 55, at pp 244-245; p 63. In some instances statute expressly removes consent as a defence: see ss 133, 134, 140, and 141; and in some instances the common law excludes it. …
[43] At 196.05, dealing with the issue of force, the learned authors of the same text state:
CA196.05 Force
… The better view is that it means no more than that the accused’s conduct must be intentional and without actual and valid consent, or other justification: T v T [1988] Fam 52, at pp 64-67; Todd, The Law of Torts in New Zealand, Sydney, Law Book Company, 1991, p 90; R v Brown [1992] 2
All ER 552 (CA); R v Brown [1994] 1 AC 212; [1993] 2 All ER 75 (HL), at p 226; p 90. Also, the law excuses “physical contact which is generally acceptable in the ordinary conduct of everyday life”: Collins v Wilcock [1984] 3 All ER 374; [1984] 1 WLR 1172, at p 378; p 1178; Mepstead v DPP [1996] Crim LR 111. …
[44] In this case there was evidence available to the Judge to allow him to be satisfied, by inference as well as directly, that there was no consent, and no belief in consent.
[45] This ground must also fail.
[46] Next, the appellant argues that there was no “unambiguous knowledge for there to be an unlawful act”. Again, it is unclear exactly what is meant, but he
submits that for the appellant to be guilty he would have had to have known he did not have the complainant’s consent, but continued on regardless of her objections.
[47] The Crown accepts this, and accepts it must be assessed subjectively. Mr Robinson submitted that the oblique intent in R v Wentworth [1993] 2 NZLR 450 does not assist, and issues of knowledge or recklessness do not arise in the circumstances of this case. The mens rea for assault, he submitted, is the intention to apply force, which has occurred here. The act is unlawful in the absence of consent in the context of this case.
[48] This is no more than an reiteration of the earlier grounds and complaints of the appellant. The Judge has found, quite specifically, that in this case there was an application of force without consent. He has also found that the appellant knew from the beginning that his attentions were unwanted, and that he knew the complainant was not consenting. That is a finding available to the Judge. He obviously preferred the credibility of the complainant and it is not a factual finding that can be disturbed on appeal.
[49] The next complaint in the written submissions is that the learned Judge was wrong in law in not rejecting the case as the complainant had not made a complaint at the first reasonable opportunity.
[50] As the Crown points out, this appears to be an argument that the complaint is inadmissible as it was not made at the first opportunity.
[51] There is simply no requirement that a complaint be made at the first reasonable opportunity. By reference to Nazif it appears that the appellant is confused between the making of a complaint and “recent complaint” evidence.
[52] Nazif, relied on by the appellant, deals with recent complaint evidence, being tendered only for the purpose of showing consistency between the complainant’s conduct at the time of the alleged offence and her testimony at trial. It only arises in the context of sexual offending and has no application in the present case.
[53] This ground must fail.
[54] Finally, there is an allegation of counsel misconduct. The appellant makes a number of specific complaints in the way his counsel conducted the case.
[55] However, there is no affidavit from the appellant, as is normally required in such circumstances. Nor is there any waiver to enable the Crown to obtain an affidavit from the trial counsel.
[56] The test for counsel incompetence has now been set out by the Supreme
Court in R v Sungsuwan [2006] 1 NZLR 730:
[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[57] In this case, a full reading of the transcript, even in the absence of an affidavit from the appellant, a waiver and an affidavit from defence counsel, discloses no proper basis to criticise counsel. Defence counsel obtained critical concessions from the complainant as to her smiling, and that she did not resist the attentions of the appellant, clearly laying a foundation for the subjective belief in consent.
[58] Notwithstanding the appellant’s counsel establishing this, the Judge, considering all of the evidence, was satisfied that there was no subjective belief in consent. He was entitled to do so.
[59] This ground must also fail.
[60] Indeed, it is disappointing that such allegations should be made against trial counsel without following well established procedure.
[61] It follows that all of the grounds developed in the written submissions, which effectively encompass and add to those contained in the notice of appeal, fail. The appeal is dismissed.
Solicitors:
Wilkinson Adams, Dunedin for Respondent
CC:
Judge MacLean
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