Ras v Police

[2012] NZHC 1579

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-13 [2012] NZHC 1579

HELOUISE RAS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 July 2012

Appearances: S T Hurley for the appellant

S A Law for the respondent

Judgment:      5 July 2012

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Ms Helouise Ras, was found guilty by Judge Roberts in the District Court at New Plymouth after a summary trial on charges on injuring with intent to injure and causing a motor vehicle to be driven in a manner which, having regard to all the circumstances, was or might have been dangerous to the public. Ms Ras was sentenced to 100 hours community work on the injuring charge and

40 hours  community  work  (cumulative)  and  six  months’ disqualification  on  the causing to be driven charge.  Ms Ras now appeals against her convictions, but not

her sentences.

RAS v POLICE HC NWP CRI-2012-443-13 [5 July 2012]

Facts

[2]      The charges Ms Ras faced arose out of an incident between her and her then partner,  Mr  Joshua  Julian-Murray.    Ms Ras  and  Mr Julian-Murray were  arguing whilst Mr Julian-Murray was driving Ms Ras along Frankley Road towards and into the business district of New Plymouth.   Ms Ras was said to have interfered with Mr Julian-Murray’s driving on Frankley Road,  by pulling on the handbrake and swinging on the steering wheel causing the vehicle being driven to partially cross the centre lane into the path of oncoming traffic.  That allegation gave rise to the charge Ms Ras faced of causing a vehicle to be driven in a dangerous manner.  When the vehicle finally came to a stop in the New Plymouth business district, outside the Lone  Star  Restaurant,  the  allegation  is  that  both  Ms Ras  and  Mr Julian-Murray assaulted each other.  Mr Julian-Murray pleaded guilty to a charge of male assaults female,  and  was  eventually  sentenced  to  100  hours  community  work  and  the payment of $500 reparation to Ms Ras.

[3]      The police appear to have laid the violence charges  against Ms Ras  and Mr Julian-Murray by reference to what they consider was the excess force used by them both during that incident.  The prosecuting sergeant put it this way in opening the summary trial, referring to the incident in the vehicle after it had stopped outside

the Lone Star Restaurant:[1]

[1] Notes of evidence Q v Ras CRI-2011-043-003067, 16 March 2012 p 2 at 24-31.

... Now, physical acts occurred police allege by both parties and the acts that the defendant faces the charges for relate to her scratching and biting the complainant and squeezing his testicles.  There was violence used by both parties police allege and the complainant has appeared in Court in relation to the excess force he used and has plead guilty and he will be discussing that during his giving of evidence.  The incidents of violence that I have referred to are specific ones of what police allege was the excess force used by this defendant, Sir. ...

[4]      Implicit in the reference to “excess force” would appear to be an acceptance that – at least to a certain extent – each of Ms Ras and Mr Julian-Murray were acting in self-defence.  Otherwise that reference makes no sense.  There is no offence of

using “excess force”.

[5]      Ms Ras based her defence on a denial of having interfered with the vehicle as it was travelling along Frankley Road but an admission that she had pulled on the handbrake just prior to the vehicle stopping outside the Lone Star Restaurant.  She denied that any question of danger to other persons arose.   She admitted violence against Mr Julian-Murray, but said she had acted in self-defence.

[6]      At her trial the evidence of what had happened came from, first, Mr Julian- Murray for the prosecution and then from Ms Ras in her defence.  In addition, the statements of two police witnesses were admitted by consent, and a photograph booklet of the injuries suffered by both Ms Ras and Mr Julian-Murray were before the Court.

[7]      Ms Ras and Mr Julian-Murray were in broad agreement about the events of the evening in question.  For some reason they began arguing when a person they had gone to visit had not been at home.   When the argument ensued, Mr Julian- Murray wanted to drive Ms Ras home.   She wanted to discuss the cause of their argument  with  him.    Matters escalated from  there,  ending up  in  the altercation already described.

[8]      As regards the charge of causing a vehicle to be driven in a manner that might have been dangerous to the public, Mr Julian-Murray and Ms Ras gave quite different versions of events.  According to Mr Julian-Murray, Ms Ras had interfered with his driving of the vehicle on a number of occasions as he drove along Frankley Road, “whacking the gear out of gear, pulling on the steering wheel and pulling the

handbrake”.[2]      That had happened three or four times.  The effect had been to turn

[2] Notes of evidence, p 5 at 22.

the vehicle into oncoming traffic, crossing the centre line at a speed of about 50 kms per hour. About “65 per cent” of the vehicle had crossed the centre line.  Ms Ras had done that to get him to stop the vehicle so they could discuss their differences. Finally, when they were in the New Plymouth business district near the Lone Star Café and the New Plymouth Club, Ms Ras pulled on the hand brake again.   This caused the vehicle to stop.  Whilst Ms Ras acknowledged pulling on the hand brake just before the car stopped, she otherwise denied interfering with Mr Julian-Murray’s driving at all.

[9]      As to the altercation between them, by Mr Julian-Murray’s account after the car stopped by the Lone Star there was “just, ah, me hitting her, her hitting me, biting,  scratching  and  pushing  and  all  sorts”.[3]     Mr Julian-Murray  could  not remember  which  of  them  had  started  the  physical  violence.    Implicit  in  that admission is the possibility that he had.  Mr Julian-Murray remembered pushing and punching Ms Ras in the arm, then getting kicked in the side of the head a couple of times.  Ms Ras then grabbed him (by the testicles he alleged) and, in response, he squeezed her on the breast.  She then let go of him and bit his back.  He let go of her

[3] At p 9, 25-26.

breast and then flicked his head back and head butted her on the forehead.   That made her release her grip.  He then punched her two or three times on the shoulders. After he head butted her he thought he got a scratch and then he opened the door and tried to push her out.  At that point Ms Ras’ phone had fallen out of the car.  She got out, found the phone and got back in again and tried to lock the doors. Notwithstanding, Mr Julian-Murray had got back into the vehicle.  She then got out and, as she went to run away, he tripped her over.  She fell to the ground.  He got back in the car and drove off.   Mr Julian-Murray acknowledged biting Ms Ras’ finger at one point when it was in his mouth.

[10]     In cross-examination Mr Julian-Murray agreed that he and Ms Ras had been arguing to the point where they both started to get heated and were losing control. But he generally denied the version of events Ms Ras’ lawyer put to him, including that Ms Ras had only reacted violently in self-defence and her version of interference with his driving.  Mr Julian-Murray admitted to being a lot bigger than Ms Ras and probably stronger.

[11]     The  photographs  showed  scratching  to  Mr Julian-Murray’s  neck,  marks consistent with a bite on his chest, scratches on his back and another similar bite like mark.  Mr Julian-Murray’s evidence was all those marks had been caused during the incident in the car.   He denied Ms Ras’ version that the scratches and bites to his back had occurred during sexual intimacy the day before.

[12]     Ms Ras’ version of events was that after the car had stopped by the Lone Star,

Mr Julian-Murray had pulled up his clenched fist and said to her “Don’t fuck with

me”.  He had then parked the car.  He had wanted her to get out of the car but she had wanted to talk about their argument.  He had opened the door and tried to push her out: she had been hanging on to the top of the door frame to brace herself.  Her recollection, although a little confused, was that he had then thrown her cellphone out of the car.  She had got out, retrieved it and (as he had alleged) had got back into the car and tried to lock it.  He had then got back in, which was when the violence started.  He had tried to take her phone from her, she had hidden it behind her back in the top of her pants.  He grabbed her left arm and starting holding it, squeezing it very tightly.  He had then squeezed her right breast and twisted it very hard.  She had bitten him in response.  She was angry and was begging him to stop.  After she bit Mr Julian-Murray he had got back into his own seat.  She then got out of the car and ran towards the Lone Star Restaurant.  He followed her, pushed her over and tackled her.  That was when a car that looked like a police car had driven by and he had left the scene.  She did not recall biting Mr Julian-Murray on the back, only on the chest.

[13]     In cross-examination Ms Ras denied kicking Mr Julian-Murray or biting him on the back or scratching him on the back.  She also denied grabbing and squeezing his testicles.  He squeezed her breast to get hold of her phone, not because she was squeezing his testicles.   Ms Ras admitted biting and scratching Mr Julian-Murray. She said she did that to defend herself.   Under questioning by the Judge, Ms Ras produced a diagram showing how the scratches to Mr Julian-Murray’s back had occurred during sex.

The Judge’s decision

[14]     The Judge essentially decided the case on his assessment of the credibility of Ms Ras and Mr Julian-Murray.  He found Mr Julian-Murray to be a truthful witness in the main.  He said that he did not find Ms Ras to be an honest witness.  To the Judge her evidence lacked the ring of truth and appeared to be an answer to the

prosecution. He set out his reasons in rejecting her evidence in the follow manner:[4]

[4] Police v Ras DC New Plymouth CRI-2011-043-3067, 16 March 2012 at [12] – [13].

Thus the issue must be did it happen as the complainant contends?  I found the complainant to be a truthful witness in the main.   The accounts synchronise.    Both  acknowledged  an  argument  developing.    Thereafter

intentions diverge.  The complainant would have me believe that it was his intention to return Ms Ras to her home address, Ms Ras on the other hand contending that it was her wish that they stopped, as they were driving, and discussed the issues that were developing.  I did not find this complainant’s evidence to be wanting.  His recital is largely complemented by his injuries.

I did not find the defendant to be an honest witness.  Her evidence lacks the ring of truth and appears to be but a convenient answer to a prosecution.  My reasons for rejecting her evidence are these:

[15]     The Judge then recorded his views as regards elements of Ms Ras’ evidence. In particular, he considered that she had at least two opportunities to leave the altercation, but did not.  The Judge was not persuaded by her evidence relating to the cellphone, nor the scratch marks on Mr Julian-Murray.  He concluded:[5]

[5] At [14]

This  defendant  acknowledges  scratching.    I  reject  her  claim  of  sexual activity and conclude without a shadow of a doubt that those scratches were deliberately put on the body of this complainant at the time he contends they were.  I find in recording that I am satisfied beyond any shadow of a doubt that his was an honest recital given particularly the consistent injuries, consistent with his claims. That charge is thus made out.

[16]     On the question of self-defence he then reasoned as follows:[6]

[6] At [15].

As to the issue of self-defence.  I am satisfied that this defendant was not acting in self-defence, finding as I do these scratch marks followed from the encounter that night, scratches to the back, a bite to the back, that would have had the defendant positioned to the rear of the complainant, again giving her the opportunity, had she truly sought it, to leave.  That charge is proved.

Grounds of appeal

[17]     As regards the charge of injuring with intent, Ms Ras says the Judge did not deal properly with her defence of self-defence.   The Judge had not articulated the three-step approach to the question of self-defence recognised by the Court of Appeal.[7]  That is, and as put by Ms Ras, the Judge had not asked himself the three questions:

[7] R v Auckram [2007] NZCA 570; R v Bridges [2003] 1 NZLR 636 (CA).

(a)      Did the accused use force for the purpose of defending herself?

(b)      What were the circumstances the accused believed them to be? (c)     Was the force used reasonable in the circumstances?

[18]     By failing to address the matter in that way, the Judge had made an error of law.  When this Court reconsidered the matter, the defence of self-defence could not properly be ruled out. The appeal should therefore be allowed.

[19]     On the driving charge, the ground of appeal was that the prosecution had failed to prove that the vehicle being driven carried the registration number referred to in the information.  That was an essential element of the charge.  In addition, and in effect, the submission was that Ms Ras’ evidence should be preferred to that of Mr Julian-Murray as to what had, in fact, occurred in the car.  By that account, she had only pulled on the handbrake once, and that had not been dangerous.

[20]     The Crown acknowledged that the Judge had not asked himself the three questions that the Court of Appeal says should be asked where a Judge sitting alone considers the defence of self-defence.  However, the Judge had in effect done that in the passages referred to above, and more particularly at [14] and [15].  Therefore, his verdict on the charge of assault with intent to injure should not be interfered with.

[21]     As  for  the  driving  charge,  proof  of  the  registration  number  was  not  an essential  ingredient  of that  charge.   There was  simply no  reason  to  disturb  the Judge’s credibility finding as to what had happened.

Analysis

[22]     Before me for Ms Ras, Ms Hurley acknowledged that the focus of this appeal was on the conviction on the charge of injuring with intent to injure.  She readily accepted that the ground of appeal relating to the causing a motor vehicle to be driven charge, namely the prosecution had not proved the registration number of the car, could not be persuasive.  I agree with that concession.  There is in my view no ground upon which Ms Ras may challenge her conviction on that charge and  I dismiss that part of her appeal accordingly.

[23]     The focus of Ms Ras’ appeal on the injuring with intent to injure was, as I have already noted, the way in which the Judge dealt with the positive defence of self-defence.

[24]     By my analysis  here  the  prosecution  accepted,  in  the  way in  which  the charges were explained to the Judge, that the violence between Mr Julian-Murray and Ms Ras had involved elements of self-defence.  That is, the prosecution accepted they had both the used force for the purpose of defending themselves against the other.  For the police the question was whether or not the force that had been used in the circumstances was reasonable.  In those circumstances, I find it surprising that the Judge reached the view as a matter of fact, as he would appear to have done, that Ms Ras had not been acting in self-defence.  I do not consider the Judge’s credibility findings an answer to that concern.  Even by Mr Julian-Murray’s own account, he could have been the person who started the violence by reference to which the charge  was  laid.    Whilst  Ms Ras  did  admit  scratching  and  biting,  self-defence justifies intentional violence.

[25]     More significantly, and because the Judge did not explicitly put to himself the three questions set out by the Court of Appeal in R v Auckram, I am not satisfied that the issue of self-defence was properly dealt with.[8]    By my assessment, because the Judge did not explicitly ask himself the first two questions he would appear to have overlooked the basis upon which the police laid the charges in the first place.  In his sentencing notes (see [14] as cited above) the Judge also concluded that the violence

[8]R v Auckram [2007] NZCA 570. As therein set out at [24], those questions are: (a) What were the circumstances as the accused believed them to be?

(b)   Did the accused use force for the purpose of defending himself?

(c)     Was the force used reasonable in the circumstances as he believed them to be?

charge had been made out before he even considered the question of self-defence. Moreover, and given the basis upon which the police would appear to have laid the charges, the question of whether or not the force used by Ms Ras was reasonable in the circumstances was an essential question for the Judge to consider.  As Ms Laws for the police properly acknowledged, there is nothing in the judgment that reflects a

consideration of that issue at all.

[26]     For this reason, Ms Ras’ appeal against her conviction on injuring with intent to injure is quashed and I remit that matter to the District Court.  In any retrial, the prosecution should make clear to the Court the basis upon which the charge has been laid to enable the Court to focus on the real issues raised by Ms Ras’ reliance on self- defence.  If I have correctly understood matters, the key issue would be that of the reasonableness of the force Ms Ras has admitted using.

“Clifford J”

Solicitors:

Susan Hurley, New Plymouth for the appellant ([email protected]) Crown Solicitor, New Plymouth for the respondent