Reid v Police
[2020] NZHC 1917
•31 July 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-40
[2020] NZHC 1917
BETWEEN SWAN DONOVAN REID
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 July 2020 Counsel:
L A Caris for appellant
K L Kensington for respondent
Judgment:
31 July 2020
RESERVED JUDGMENT OF DOBSON J
[1] On 5 June 2020, following a judge-alone trial in the District Court at Porirua, the appellant (Mr Reid) was convicted of assault against his former partner (the complainant).1 Judge Harrop also found that the circumstances of the assault constituted a breach of a protection order that was in force to protect the complainant, so a second charge to that effect was also made out.
[2]Mr Reid has now appealed those convictions on three grounds:
(a)first, that the trial Judge erred in failing adequately to consider and provide reasons for accepting the evidence from the complainant;
(b)secondly, that the Judge erred in his assessment of the evidence upon which he determined the issue of self-defence; and
1 Police v Reid [2020] NZDC 12534.
REID v NEW ZEALAND POLICE [2020] NZHC 1917 [31 July 2020]
(c)thirdly, that the Judge erred in his assessment of the legal test for self- defence.
The factual circumstances
[3] The Judge described Mr Reid and the complainant as having been in an “on again, off again” relationship for some five years. Over that period, there have been a large number of family harm incidents reported between them and a protection order in favour of the complainant against Mr Reid has been in place since January 2015.
[4] The interactions between them on the day in question remain somewhat unclear. The only direct evidence of what had occurred was provided by the complainant and the Judge was confronted with the familiar situation of a complainant of domestic violence substantially recanting on an initial and relatively detailed statement given to the Police at the time. The differences between the complainant’s original statement and the evidence she was giving viva voce in court led to an application by the prosecution for her to be declared hostile, which was granted by Judge Harrop for the limited purposes of inviting her to explain the reasons for the differences between the two versions.
[5] In the statement given to the Police on the date of the altercation, the complainant described Mr Reid arriving at her home, entering the house covertly using a key she was not aware he had, and waking the complainant who was asleep in the lounge. She described him as being angry, and he demanded to know whether she had called the Police about his conduct the previous evening. The complainant acknowledged that she had called the Police because Mr Reid had taken her cell phone and had not returned it as she wanted him to. She described Mr Reid as then yelling at her and pushing her with a hand to her chest, and she pushed him back. In response to that, Mr Reid pushed her even harder, causing her to lose balance and fall, hitting her forehead against a hard object. Mr Reid had then left the scene. The Police took photographs of the complainant’s head, which appear to show a mark consistent with her having hit her head.
[6] At the trial some three months later, the complainant stated that she had pushed Mr Reid first because she had been annoyed at his not returning her cell phone. Its
absence had caused her to miss an important CYFS conference in relation to her daughter who was in care. Her evidence was that she pushed him with two hands in order to get him to leave her home and that in response he had pushed her with one hand, but not to an extent that caused her to fall over or hit her head. She described attempting to attack him after that, in the course of which she fell over and hit her head. The effect of her evidence was that the bump on her head was essentially self- inflicted. The complainant explained that she had given the different version to the Police on the day of the altercation to get Mr Reid “into trouble”. She stated that she was either intoxicated or hung over from drinking the previous evening, the suggestion being that had caused or contributed to her falling over when she tried to attack Mr Reid.
[7] The Judge considered it “fairly likely” that events had occurred consistently with the complainant’s original statement to the Police, but after considering her evidence held that was not something he could be sure of. Accordingly, not being satisfied beyond reasonable doubt that events occurred in the way she had told the Police, the Judge analysed the adequacy of the evidence on the basis of the version of events given by the complainant in her evidence in court.
[8] The Judge was satisfied that Mr Reid had, during the altercation, pushed the complainant in the chest and he focused on that as the form of alleged assault that the prosecution would be required to prove beyond reasonable doubt. The Judge noted that the complainant’s evidence about the existence of the push was not challenged, nor was it put to her in cross-examination that the push was Mr Reid acting in self- defence.
[9] The Judge then analysed whether the prosecution had eliminated the prospect of self-defence, and concluded that it had:2
[23] I am sure that you were not acting in self-defence. You could easily have turned around and left when she pushed you. You had no need to push her. She is small. She is female. You are a strong guy, I can see that, and you did not need to defend yourself against her. You could easily have chosen another means. You could have put your hands up defensively if you were concerned about being further attacked, but proactively pushing her is not self- defence in my view.
2 Police v Reid, above n 1.
The outcome was that the Judge held a minor assault had been made out.
Inadequate consideration of, and reasons for accepting, the complainant’s evidence
[10] The Supreme Court in Sena v Police made the following observations about the task of a Judge when producing a determination for a judge-alone trial:3
[Judges] should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached.
[11]The Court also observed:4
… appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.
[12] Ms Caris submits that the reasoning here did not record an adequate consideration of the factual issues relevant to self-defence.
[13] The context in which the Judge made the finding that self-defence had been negatived by the prosecution is in the following paragraphs:5
[19] In essence the submissions that are made about that, given that you have not given evidence and explained how you saw the situation, are that I can properly draw the inference that you were or may have been defending yourself and if so that you were or may have been using reasonable force to do that. Ms Caris submits that [the complainant] was angry at you and was attacking you by pushing you and so your response was proportionate and understandable and in defence. But Ms Thomson [the prosecutor] submits that you knew she was angry. It was her house. She wanted you to leave and you would not and that what you did by way of pushing was not in defence and not proportionate.
[20] So the first question, whenever self-defence is considered, is that the Court has to assess what were the circumstances as the defendant reasonably believed them to be. Well, that depends on inference in this case because you
3 Sena v Police [2019] NZSC 55 at [36].
4 At [40] (footnotes omitted).
5 Police v Reid, above n 1.
have not told me how you saw the situation. As to the circumstances as you must have believed them to be I find are that you had come into her house early in the morning. You had woken her up. She did not know you were coming. You were angry with her. It was her house and she was angry with you, wanted you to leave and she has a protection order against you entitling her to ask you to leave, quite apart from the fact that she is an occupier who might otherwise have had that right. As soon as she got her phone back from you she wanted you to go and you did not. So those are the circumstances in which I have to consider whether this push was or may have been self-defence.
[21] She only pushed you when her request that you leave was not honoured and you would not leave when asked. I can infer from that that you must have known that you needed to leave when you were asked to by the protected person. That is your obligation under the protection order and you must have known that.
[14] Ms Caris criticised the absence of an explicit acknowledgement by the Judge of the “self-warning” he should have issued to himself under s 122(5) of the Evidence Act 2006. That requires a judge determining a criminal proceeding in the absence of a jury to bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.6 Here, the significant differences between the two versions of events presented by the complainant arguably rendered her evidence unreliable in the sense contemplated by s 122, triggering the need for the Judge to explicitly acknowledge that caution, and explain why parts or all of a potentially unreliable witness’s evidence was being relied upon.
[15] There certainly were material inconsistencies in the complainant’s evidence. The Judge’s reasons limited his reliance to core matters that were either not in dispute or which it was reasonably open for him to rely on as being consistent with those matters not in dispute. I am not persuaded that the Judge erred by not including an explicit acknowledgement of the “self-warning” in s 122(5).
[16] In considering the adequacy of reasons in this case, I respectfully adopt the practical observation by the Supreme Court in Sena:7
[37] In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The
6 See, for example, Hicks v Police [2019] NZHC 1647 at [70].
7 Sena v Police, above n 3.
adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.
[17] I consider the reasons expressed for the Judge’s findings to be adequate in the circumstances of this case. The only direct evidence was from the complainant, the Judge had reviewed the circumstances in which two versions of events had been relayed by her and concluded that he was obliged to assess the prosecution case against Mr Reid on the version that was more favourable to him. As demonstrated in Ms Caris’s arguments on the second ground of the appeal, the Judge’s reasons were adequate to understand how he had come to the views on the sequence of issues required to consider the proof of the charges, and to expect any more would be an unrealistic counsel of perfection.
Errors in assessing the evidence going to self-defence
[18] Ms Caris invited a reconsideration of a number of specific passages of the complainant’s evidence, which she cited as suggesting a different context in which the altercation between the complainant and Mr Reid occurred, leading to a different predicament confronting Mr Reid at the time of his admitted push to the complainant’s chest.
[19] In particular, Ms Caris challenged the Judge’s finding that Mr Reid was angry with the complainant on his arrival at the property when that was stated by the complainant in her original statement to the Police, but not repeated in her evidence in court. Further, the Judge found on the evidence that Mr Reid had no need to protect himself when the complainant’s evidence suggested that she was “really angry at him” and that her anger at having missed a communication with CYFS about her daughter (because he had her cell phone) was the trigger that escalated the confrontation between them.
[20] For the respondent, Ms Kensington accepted that the Judge’s finding that Mr Reid was angry from the outset was not justified on the complainant’s viva voce evidence. However, she submitted the reference to that detail was not material to the
Judge’s analysis as to whether the prosecution had established he was not acting in self-defence. In other respects, Ms Kensington submitted that the differences of emphasis Ms Caris sought to draw from her selected extracts from the transcript of evidence did not cast the altercation in a sufficiently different light to alter the outcome.
[21] Having reviewed all of the complainant’s evidence in light of the Supreme Court’s caution in Sena as to the advantage enjoyed by the trial Judge, I accept the respondent’s submission on this ground of appeal. Mr Reid had the opportunity to withdraw when it was plain that the complainant was angry with him, and he had no need to protect himself given his materially larger and stronger stature. These factors are sufficient for the prosecution to rely on in negating any actual need for Mr Reid to act in self-defence, or forming a basis for any reasonable belief on his part that a retaliatory push of the complainant was necessary to defend himself.
[22] I accordingly reject the second ground of appeal that the evidence was insufficient for the Crown to discharge the onus in negating the prospect of self- defence.
Error in the legal test applied for self-defence
[23] Ms Caris characterised the Judge’s reasoning as finding that because Mr Reid had alternatives to a retaliatory push against the complainant, he should be treated as not taking that course of action as a matter of self-defence. She submitted that the approach was akin to assuming that there was a duty to retreat, which would be wrong as a matter of law.
[24] I do not treat the Judge’s reasoning as reflecting anything like a duty arising as a matter of law for Mr Reid to withdraw when the confrontation with the complainant arose. As the Court of Appeal observed in Vincent v R, the alternative courses of action which may present themselves to a defendant when faced with an attack or anticipated attack are a question of fact and degree.8 The Judge was entitled to reflect on the alternatives as part of the context in which he assessed whether Mr Reid might
8 Vincent v R [2015] NZCA 201 at [28].
reasonably apprehend the need to push the complainant for the purpose of defending himself. The Judge’s analysis goes no further than is permissible in considering the defence of self-defence.
[25] Ms Caris submitted that the Judge erred in describing Mr Reid as having “proactively” pushed the complainant.9 Ms Caris interpreted the use of that word as meaning that Mr Reid’s push was some separate initiative on his part, which would distinguish it from a reaction to the complainant having pushed him first. She criticised this as an indication of the application of a wrong test for self-defence.
[26] I do not accept that the Judge used the word “proactively” in the sense contended for by Ms Caris. In context, it was used as a synonym for “positively”, intended to emphasise the distinction from the defensive option clearly available to him of simply putting his hands up. It is certainly no more than what the Supreme Court in Sena described as an imperfection of expression.10
[27]I therefore reject the third ground of appeal for the reasons discussed above.
Result
[28] Accordingly, none of the grounds of appeal challenging the conviction are made out and the appeal is dismissed.
Dobson J
Solicitors/Counsel:
Lara Caris, Wellington for appellant Crown Solicitor, Wellington for respondent
9 Police v Reid, above n 1, at [23], cited at [9] above.
10 Sena v Police, above n 3, at [37], cited at [16] above.
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