R v Police HC Hamilton CRI 2009-419-3

[2009] NZHC 597

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2009-419-000003

BETWEEN  R   

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 May 2009

Appearances: R A Barnsdale for Appellant

A M Beveridge for Respondent

Judgment:      21 May 2009 at 4:30pm

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]

This judgment is delivered by me on 21 May 2009 at 4:30 am/pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

RA Barnsdale, PO Box 19303, Hamilton 2001 fax [phone]
Almao Douch, PO Box 19173, Hamilton 3244 fax [phone]

R   V NZ POLICE HC HAM CRI 2009-419-000003  21 May 2009

Introduction

[1]      On 3 December 2008, the appellant, Ms R  , was convicted in the District Court at Te Awamutu on a charge of assault.   She was sentenced to six months supervision.  Ms R   has appealed against conviction and sentence. For the appeal against conviction, the grounds were that trial counsel did not fully put her defence, and that the evidence did not prove the offence beyond reasonable doubt.  As to sentence, the appeal was on the grounds that, in the circumstances, an application for discharge without conviction should have been made, considered, and granted.

Background

[2]      The alleged assault occurred in the course of a marae committee meeting held at the Maungatoatoa Marae on 14 June 2008.

[3]      The background to the meeting, and to the alleged assault, is that there had been allegations of financial mismanagement at the marae.   Ms Johnson, who is experienced in marae management, had been asked to assist with obtaining auditors’ reports, and was to speak about these at the meeting.  Ms R   felt strongly about the allegations of financial mismanagement, because she had previously been treasurer of the committee.

[4]      A further area of some contention arises out of the fact that Ms R  ’s affiliation to the marae is that she is a 12th  generation descendant of a founding member of the marae.   Ms Johnson has links to the marae through nephews and nieces, and grew up around the marae.  The chairman of the marae, Mr Ali Johnson (Ms Johnson’s brother) is affiliated to the marae through his children.

District Court hearing

[5]      The case for the Police was that Ms Johnson had been “given the floor” (that is, the right to speak) by the chairman, and that as she walked to the front of the room to address the meeting she was first orally abused by Ms R  , then physically assaulted by her.

[6]      Evidence to that effect was given by Ms Johnson, who said that Ms Roa- Watene said to her “You’re not f-ing from here, f-off”, then came towards her, grabbed her wrist, then extended her left arm over Ms Johnson’s back.  Ms Johnson said Ms R   was pulled off her by others attending the meeting.  Another witness for the Police, Mr Hone Hughes, said that after the oral abuse, Ms Roa- Watene swung her arms at Ms Johnson and hit her a couple of times.  The chairman, Mr Johnson, said that he gave Ms Johnson the floor, but Ms R   then became disruptive and he asked her to sit down.   He said Ms R   then abused both him  and  Ms  Johnson,  then  grabbed  Ms  Johnson  by one  hand  and reached behind Ms Johnson with the other.

[7]      The defence was that Ms R  , not Ms Johnson, had the floor prior to the incident and that she did not grab Ms Johnson’s wrist, or otherwise assault her. Defence evidence was called from Ms R  , Ms Jocelyn Johnson, Mr Aperehama Newton and Ms Te Marie McGuire.

[8]      Ms R   said that she had the floor, but was told by the chairman to “sit down and shut up”, to which she responded that he should “sit down and shut up”.  She said Ms Johnson then marched to the front of the meeting while Ms Roa- Watene still had the floor, and they began to argue with each other.  However, she said, there was no physical contact between them.

[9]      Ms Jocelyn Johnson also said that Ms R   had the floor.  She agreed that there were heated words between Ms R   and Ms Johnson, but she did not see any physical contact between them. She agreed that Ms R   was told to “sit down and shut up”.

[10]     Mr Newton said that Ms R   had the floor when Ms Johnson came forward.  He did not see Ms R   grab Ms Johnson.

[11]     Ms McGuire said that Ms R   had been addressing the meeting prior to the incident. She saw Ms R   move closer to Ms Johnson, and Ms Roa- Watene and Ms Johnson “really got into confrontation, words were exchanged”.  Ms McGuire then took her eyes off the women for a moment and when she looked back they were “really close together”.   She said that “in a flash”, a whanau member intervened.

Judge’s decision

[12]     The  District  Court  Judge  referred  to  the  evidence  at  [4]  to  [16]  of  her judgment.  Her findings are noted in her discussion of the evidence.  She accepted that the meeting started at 9:00 am and that Ms Johnson was to speak at about

10:00 am.

[13]     At [5] the Judge found that, before Ms Johnson was to speak, Ms Roa- Watene had the floor.  She then found, at [6] and [7] that the chairman told Ms Roa- Watene to sit down and shut up and that that request was not accepted by Ms Roa- Watene, who told the chairman to sit down and shut up.  At [8] the Judge accepted that the chairman then asked Ms Johnson to speak (gave her the floor) and Ms Johnson moved to the front of the room to speak.

[14]     At [9], the Judge noted that Ms R   had admitted that she had said to Ms Johnson that “this is not your f-ing marae”, or words to that effect and that she had also admitted in her statement to the Police that she had been loud and abusive to Ms Johnson.

[15]     With respect to the assault, the Judge first set out the definition of an assault, noting at [11] that “very little needs to be done at law for an assault to occur”.  The Judge then noted the evidence given by and for Ms R  :  she noted at [11] that Ms R   had said in her statement to the Police that she had attempted to “get to” Ms Johnson but had been held back by a cousin, then at [12] she noted that

Ms  Jocelyn  Johnson  had  not  seen  whether  or  not  there  was  any  intentional application of force, that Mr Newton had not seen an assault, and that Ms McGuire had not seen what had happened, at all.

[16]     As  against  that,  the  Judge  noted  the  evidence  of  Ms  Johnson  and  the chairman that Ms R   grabbed Ms Johnson by the wrist and grabbed at her clothing around her back area.   The Judge also set out Mr Hughes’ evidence of seeing Ms R   hit Ms Johnson.

[17]     At [14]-[15], the Judge referred to issues of credibility and reliability, in relation to the evidence before her.  At [16] the Judge noted that in deciding what happened, some regard had to be had to what happened after the event.  She noted that everything had happened very quickly and whanau had become involved.  She said that the only reason they became involved was because of Ms R  ’s actions.   At [17], the Judge again noted Ms R  ’s statement that she had attempted to “get to” Ms Johnson, but was held back.     Taking into account all factors, the Judge said at [17] that she was sure that there was an assault as Ms Johnson had alleged.  She therefore found the charge proved.

Appeal

[18]     Mr   Barnsdale   did   not   vigorously   pursue   the   ground   of   inadequate representation.   He acknowledged that counsel for Ms R   at the hearing “did a reasonable job”.

[19]     It is clear from reading the transcript of evidence that that acknowledgement was  appropriate.    It  is  evident  that counsel  for  Ms  R    challenged  the evidence given for the prosecution, and called appropriate evidence on behalf of Ms R  .   There can be no challenge on the basis of Ms R  ’s representation, or the manner in which her defence was presented.

[20]     Mr Barnsdale focused his arguments on appeal against conviction on the Judge’s conclusion that she was sure there was an assault by Ms R  .  He acknowledged that there was evidence of an assault – if the prosecution witnesses

were believed.   However, in the light of the presumption of innocence, and the evidence of the defence witnesses which contradicted the prosecution evidence, he submitted  that  the  Judge  was  required  to  make  clear,  decisive  findings  as  to credibility and reliability.  He submitted that the Judge had not done that.

[21]     Mr Barnsdale submitted that it was not clear how the Judge had reached the verdict of guilty and that the Judge must have been left in some doubt as to whether Ms R   had assaulted Ms Johnson.  In the circumstances, he submitted, the Judge was obliged to give the benefit of any doubt to Ms R  .

[22]     For the Police, Ms Beveridge submitted that, unless there was no evidence before her on which the judge could have based her decision, then the appeal should be dismissed.   In the present case, she submitted, although there was conflicting evidence, there was clear evidence of an assault.

[23]     Ms Beveridge also submitted that the Judge was keenly aware of the conflict of evidence, and was not required to resolve every conflict, but rather to make an assessment as to the reliability and credibility of witnesses, taking into account events before and after the alleged assault.  She submitted that the Judge had done that and was entitled, on the basis of the evidence she accepted, to draw the inference that Ms R   had assaulted Ms Johnson.   That was, she submitted, a reasonable inference and not speculation.

[24]     Further, Ms Beveridge submitted that the Judge was not required to say whether she accepted or rejected every part of the evidence but was entitled, having set out the evidence, simply to reach a conclusion.  Finally, Ms Beveridge submitted that there was no confusion or uncertainty in the Judge’s mind that there was an assault.  The use of “sure” at [17] of her judgment demonstrated that the Judge had correctly  understood  and  applied  the  onus  and  standard  of  proof  as  set  out  in

R v Wanhalla1.

Discussion

[25]     I accept Ms Beveridge’s submissions.  It is clear from the judgment that the Judge carefully considered the evidence before her, was aware of the conflict of evidence and the onus and standard of proof, and found the charge proved to the required standard.  In doing so, the Judge explicitly and implicitly made findings as to witnesses’ reliability.

[26]     At [14], the Judge discussed the need to assess credibility, reliability, and believability, noting that questioning reliability “does not necessarily involve questions of dishonesty”.  Then, at [15], the Judge made explicit findings as to the credibility of witnesses; she described Mr Hughes as a “credible and honest witness” and noted that, while Mr Newton was “a very honest witness”, he was perhaps unreliable.  Regarding the evidence given by Ms R   and Ms Johnson, the Judge was less explicit, but clearly found Ms Johnson’s evidence more credible.  At [15], she noted that Ms R   was upset and aggressive, whereas Ms Johnson had no reason to be either.  Implicit in that statement is an assessment of the relative reliability of each.   The Judge’s finding as to credibility is also implicit in her discussion at [16]-[17].

[27]     An appeal under s 115 of the Summary Proceedings Act 1957 (as this was) is by way of rehearing: s 119(1).  The governing principles for general appeals have been  recently considered  by the  Supreme  Court  in  Austin  Nichols  & Co  Ltd  v Stichting Lodestar.2   Giving the judgment of the Court, Elias CJ stated at [4]-[5] that:

[4]       The appeal is usually conducted on the basis of the record of the court or tribunal appealed from unless, exceptionally, the terms in which the statute providing the right of appeal is expressed indicate that a de novo hearing of the evidence is envisaged. (An example of a right of appeal with that effect was that under the legislation considered by the Court of Appeal in Shotover Gorge Jet Boats Ltd v Jamieson.) In either case, the appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal. It is only if the appellate court considers that the appealed decision is wrong that it is justified in interfering with it.

[5]       The appeal court may or may not find the reasoning of the tribunal persuasive  in  its  own  terms.  The  tribunal  may  have  had  a  particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong.

At [13], the Chief Justice further discussed the approach to findings of credibility on appeal:

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.  Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Rangatira Ltd v Commissioner of Inland Revenue.

[28]     In Rae v International Insurance Brokers (Nelson Marlborough) Ltd3, Thomas J discussed the role of a trial Judge in assessing the credibility of witnesses:

The advantages possessed by the trial Judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial Judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, where necessary, their credibility – although in deference to the  witness's  feelings  the  Judge  may  not  always  express  an  adverse conclusion in that regard. As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal.

[29]     The trial Judge is best placed to assess the relative credibility of witnesses. He or she may or may not make explicit his or her findings as to credibility.   As Thomas  J  noted,  there  are  reasons  why a  judge  may  not  directly state  adverse findings of credibility.

[30]     In the present case, it is clear that there was sufficient evidence before her on the basis of which the Judge could be satisfied, beyond reasonable doubt (that is, “sure”) that Ms R   had assaulted Ms Johnson.

[31]     Accordingly, the appeal against conviction is dismissed.

Appeal against sentence

[32]     As noted earlier, the appeal against sentence was on the grounds that counsel for Ms R   should have made an application to the Judge for an order that Ms R   be discharged without conviction, pursuant to s 106 of the Sentencing Act 2002.

[33]     Counsel at the hearing, Ms Davies, filed an affidavit in relation to the appeal. Much of the affidavit deals with her conduct of the defence, and it is not necessary to refer to it further.  However, with respect to sentencing, she states:

9.  Diversion was discussed with Ms Roa and the Police.  However it was not an option as Ms Roa had previously received Diversion for an Assault charge.

10.  A Discharge without Conviction was not discussed with Ms Roa.  The reason for this was because of Ms Roa’s previous assault charge.

[34]     Both counsel at the appeal hearing agreed that having received diversion for an assault charge in the past did not preclude an application for a discharge without conviction in the present case.  Mr Barnsdale put forward various matters that could have been put before the Judge in support of an application for discharge without conviction, namely that Ms R   is a university student studying law, has been  involved  in  marae  politics,  and  has  had  problems  at  her  marae  since  the incident in June 2008.  Further, she has an offer of a job at NZQA as an adviser on marae matters.  He said that it would be submitted that in those circumstances, the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[35]     While Mr Barnsdale acknowledged that he could not argue that a sentence of six months supervision was, in and of itself, manifestly excessive (if no application for discharge without conviction could be made) the sentence of supervision could be seen as manifestly excessive in circumstances when an application for discharge without conviction could have been made.

[36]     I accept that submission.

[37]     Accordingly, the appeal against sentence is allowed and the matter is referred back to the District Court Judge, to enable an application to be made to the Judge for

discharge without conviction.

Andrews J