R v Police HC Napier CRI 2007-441-34

[2007] NZHC 1337

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007-441-000034

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 November 2007

Appearances: Appellant in Person

Mrs J E Rielly for Crown

Judgment:      28 November 2007

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Napier

Copy to:            M A R 

R V NEW ZEALAND POLICE HC NAP CRI 2007-441-000034  28 November 2007

[1]      On 31 January 2007 the complainant Mr Nixon was driving a logging truck on Aropaoanui Road to the Napier Port.  The road is a narrow shingle road.  In parts it goes down to three to four metres in width – to a lane and a half.  Drivers have to be extremely careful on such a road and drivers of logging trucks in particular.

[2]      Mr Nixon passed a car driven by Mr R   going in the opposite direction. Mr R   says that he had to take evasive action as a result of Mr Nixon’s driving. Mr R   considered that Mr Nixon’s driving had endangered him and his family. Mr R   followed Mr Nixon, passed his logging truck and stopped in front of it. Mr Nixon also stopped his logging truck and there then followed an altercation between  the  two.    As  a  consequence  Mr  R    was  charged  with  assault. Following a hearing before Judge Mahony in the District Court at Napier on 4

September 2007 the Judge found the charge proved, convicted Mr Ramsey and fined him $900 plus Court costs $130.  Mr R   appeals the conviction.

[3]      Mr Nixon gave evidence for the prosecution.  Mr R   and his wife gave evidence in support of his defence.  Mr Nixon described the incident.  He said Mr R   got out of his car, came up to the window of Mr Nixon’s driver’s door in the logging truck and said Mr R   shouted abuse at him and that Mr R   then gave him a punch fair in the face just below his right eye.  Mr Nixon had glasses on. He said the punch sent them flying across the cab and broke the lens out of the frame.  Mr Nixon produced a photograph taken on the day that showed a very small scratch under his right eye, which he said was caused by the glasses hitting his face as a result of the punch.  Mr R   gave evidence that he jumped up on the side of the truck and held on to the window and proceeded to tell Mr Nixon off.  He denied punching Mr Nixon.  He said that the incident came to an end with Mr R   sort of  carrying  on  ranting  and  raving  and  Mr  Nixon  saying  “alright,  okay”.    Mr R  ’s evidence was supported by his wife.  She said that Mr R   hopped out of their car and went over and had a chat with the driver.  There was then a bit of yelling.  She accepted Mr R   was at the door, yelling at the truck driver and he looked like he had both hands up on the window which was nearly closed.  She said she didn’t see him put his arm inside the window or see him punch Mr Nixon.

[4]      In finding the charge proved Judge Mahony held:

[9]       I am nevertheless satisfied, because I believe the evidence of Mr Nixon, that a punch was delivered through the partly closed window.  What he said is consistent with everything else which led up to that part of the incident.   I am satisfied that the defendant was in a state of anger and agitation as I have earlier described.  There is the physical evidence to which I have referred.

[5]      The Judge found the charge proved beyond reasonable doubt.

[6]      In  support  of  the  appeal  Mr  R   has  spent  some  time  outlining  the background to the incident.   He and his wife and family live on a lifestyle block down the road in question.  There are up to 40 logging trucks on the road each day.  I accept what Mr R   says that they are a matter of considerable stress to him and his wife.   I am also prepared to accept for present purposes that on the day in question Mr R   considered that Mr Nixon’s driving had endangered his family.

[7]      The issue, however, as I have discussed with Mr R   is not Mr Nixon’s driving but whether when Mr R   caught up with Mr Nixon and there was the incident between them at the driver’s door, Mr R   did assault Mr Nixon by punching him even lightly on the face.  That had to be the focus of the inquiry before the District Court Judge and it has to be the focus of this Court on appeal.

[8]      Mr R   submitted that he did not punch Mr Nixon and the Judge was wrong to find that he had.  He referred to the photographs taken of Mr Nixon on the day and noted that apart from the scratch under the eye Mr Nixon also had a scratch on his right arm below the shoulder, between the shoulder and the elbow.   He suggested that scratch might have been caused by the same incident that caused the scratch on Mr Nixon’s eye.  I have to say that that is entirely speculative and there was no evidence before the hearing about that.  The matter was not put to Mr Nixon. He also submitted that there was no apparent bruising on Mr Nixon’s face as there would have been if there had been a punch.   Again that is not a matter that was directly explored at the hearing.  The significance of the photograph of Mr Nixon’s face is that it does show the scratch albeit a relatively minor scratch under his right eye consistent with his evidence that his glasses were pushed into his face before they were thrown across the cab by the punch.

[9]      Mr  R   also  emphasised  that  he  could  not  have  punched  Mr  Nixon through the cab window as he was holding on with both hands and if he had taken one hand off he would have fallen away from the cab door.  In relation to that I note that matter was before the Court.   There are passages of evidence on the issue. Mr R  ’s counsel put it to Mr Nixon that:

You have to hold on to the window with both hands wouldn’t you to be talking to you through the window?

Mr Nixon did not directly accept that in his answers.  And then later Mr R   said in giving evidence:

I didn’t punch him.  If I had’ve let go I would’ve fallen off the truck.

When he was asked if he could hold himself up there with one hand he said “I don’t”

and then the transcript was interrupted.

[10]     This point was a matter of fact that was before the District Court Judge.

[11]     Mr R   also drew the Court’s attention to the evidence of his wife, particularly that she had not seen him punch Mr Nixon.   But as Mrs Rielly noted there was a passage of evidence during the cross-examination of Mrs R   where she accepted that she probably had not watched Mr R   the whole time.  I also note that in discussion with the Court Mr R   had acknowledged his child was upset.  That must have been a distracting factor for Mrs R   at the time.

[12]     This case was a classic one of a conflict between the evidence of Mr Nixon and the evidence of Mr R  , supported by his wife.   It was a matter for the District Court Judge to make a factual finding on.

[13]     The finding that the Judge made, that he preferred Mr Nixon’s evidence, supported as it was by the physical evidence, (the scratch under the eye), was a finding open to the Judge on the evidence before him.   To the extent there was a conflict between the versions of the evidence given by Mr Nixon and Mr R  , supported by Mrs R  , the Judge was entitled to prefer the evidence of Mr Nixon having heard and seen the witnesses.   The Judge was supported in coming to his

decision by the physical evidence of  the  photograph  taken  of  Mr  Nixon  which disclosed a scratch below his eye consistent with his account of being punched and the punch causing his glasses to be pushed into his face before being dislodged and thrown across the cab.  It was also consistent with Mr R  ’s angry state at the time.

[14]     An appeal such as this is a rehearing but it is not a retrial on matters of fact. A Court on appeal will not reverse or overturn a factual finding unless there are very clear and good grounds to do so.  There are no such grounds in this case.

Result

[15]     The appeal must be dismissed.

[16]     In the course of submissions Mr R   also addressed the Court on the issue of the sentence and the possible impact a conviction would have on him.  He is a helicopter pilot.  I do note that Mr R   has a number of previous convictions.  I accept  none  are  for  assault  and  I also  accept  they are  a  number  of  years  ago. Nevertheless, in the absence of any concrete evidence of the impact on him of this

conviction I am not able to alter the sentence.  The sentence stands.

Venning J