Reid v Police

[2014] NZHC 769

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2013-406-11 [2014] NZHC 769

KELLY JOHN LINDSEY REID Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:

14 April 2014

(Heard at Nelson)

Counsel:

R M Gould for Appellant
A L Mills for Respondent

Judgment:

14 April 2014

ORAL JUDGMENT OF RONALD YOUNG J

Introduction and Background

[1]      The appellant, Mr Kelly Reid, is a 29 year old man from Kaikoura.   On

6 December 2013 the Judge in the District Court convicted him on one count of assaulting a police officer acting in the execution of his duty and one count of resisting arrest after a defended hearing.   On these charges he was sentenced to

80 hours community work and fined $300 on a charge of using obscene language in a public place together with court costs.

[2]      Mr Reid appeals against his conviction on the two charges of assaulting a constable and resisting arrest.   On the evening of Friday, 5 October 2012 Mr Reid

attended a concert called the Big Bash, part of the Kaikoura Seafest festival.

REID v NZ POLICE [2014] NZHC 769 [14 April 2014]

[3]      There was a physical altercation near the stage, at the front of the large marquee that the concert was held in.   The police were alerted to the altercation, which the appellant appeared to be involved in.   Constable Holdaway walked up behind the appellant and placed his hand on the appellant’s right hand shoulder.

[4]      At that point it seems that accounts differed.  Constable Holdaway said the appellant spun around, looked at him, swore and swung a punch at him which he had blocked with his left arm.  Constable Burdon, who was standing some metres away corroborates that account although he could not hear what was said.   This is the incident that gave rise to the charge of assaulting a constable.

[5]      The appellant gave evidence.  He said that Constable Holdaway approached him from behind, grabbed him on the right shoulder.  He could not spin around and look at Constable Holdaway because the marquee was packed with people.   He denied that he threw a punch and he denied he then swore at the constable.  He said he was dragged backwards.  A second person then joined, restraining his other arm. At that point he realised he was being held by two officers.

[6]      As far as the resisting arrest charge was concerned, Constable Holdaway said he and Constable Burdon had taken hold of one of Mr Reid’s arms and told him he was under arrest and that he was leaving the marquee area.  It took them a couple of minutes  to  get  Mr Reid  to  the  side  of  the  tent  because  he  was  struggling  and wrestling with the police. They were unable to place handcuffs on him.

[7]      Mr Reid’s brother then intervened, impeding the officers’ efforts to control Mr Reid.    Constable Burdon  says  he  felt  tugging  from  one  of  the  appellant’s associates so eventually he opted to take the appellant to the ground to control the situation.   There was then something of a melee, the Constable said, as Mr Reid continued to struggle.  Eventually Mr Reid was escorted from the premises.

[8]      Mr Reid’s account is that after he realised he was being held at the arms by both police officers, he was handcuffed, he was told he was under arrest and he says that he compliantly walked out of the venue.  He denied he fell to the ground and

says the police have confused what happened with his brother who was also arrested at the time.

Appeal grounds

[9]      The  appellant’s  sole  ground  of  appeal  is  that  the  Judge  accepted  the prosecution evidence and rejected that of the defence without providing adequate reasons.  In particular, the appellant says, that the Judge failed to apply the criminal standard of proof when coming to his decision and only mentioned the burden of proof applying to the prosecution.

[10]     In addition, the appellant says that the Judge gave inadequate reasons for rejecting the appellant’s account of events.  The appellant gave evidence and so the submission is, that the Judge failed to address squarely that evidence and if he was to reject the appellant’s evidence, he failed to give reasons for doing so in whole or in part.

Police response

[11]     The police submit that the Judge’s failure to specifically mention the onus of proof is a minor issue.  The Judge in fact, did apply the criminal standard and indeed when dealing with the charges faced by the appellant’s brother, the Judge had particularly identified in that same judgment the onus and standard of proof.  They submit that it is not a fatal error for the Judge to fail to directly mention the standard of proof in a criminal case.

[12]     As to the central issue, the police concede that the Judge did not explicitly document the reasons for supporting his decision on credibility but the Judge explicitly weighed the evidence in relation to the charge faced by the appellant’s brother and therefore must have weighed the credibility of the respective factual accounts in the charges faced by the appellant.

Discussion

[13]     I  agree  with  police  counsel’s  submission  that  there  is  nothing  in  the

appellant’s claim regarding the recognition of the standard of proof.  It can be clearly

inferred from the judgment, especially at [17] that the Judge understood and applied the proper criminal standard in this case.

[14]     As to the adequacy of reasons, the Judge began his decision by saying that he was “satisfied on the evidence that has been heard today” that the police had discharged the onus of proof in establishing the assault.  The Judge then described what happened that evening from the police officer’s evidence.  He noted Mr Reid’s denial of the events occurred as the police officer had described.  The Judge made it clear that he accepted the police officers evidence about the assault and resisting arrest.

[15]     At the conclusion of the case Mr Reid’s  counsel acknowledged the third charge, using obscene words, had been established.  Mr Reid had said in evidence that he had spoken the objectionable words to the police officer whom he considered had been unfair to his brother and not, as alleged, by the prosecution, addressed the words to a female in charge of the venue who had trespassed him from the venue that day and the following day.

[16]     In his decision the Judge noted that Mr Reid had not challenged the police case that he had sworn at the female. The Judge said:

[9]       It is a matter which of course I am able to take into account in looking at the weight on which I place on his evidence in relation to the earlier aspects of what occurred.

[17]     The Judge then reaffirmed his original observation that he accepted the police evidence.

[18]     The obligation to give reasons for judicial decisions commensurate with the occasion is well established.1   The circumstances here required that reasons be given if there was to be an acceptance of police evidence and more importantly reasons, if that were to be the case, for rejecting the appellant’s evidence.  Where an accused gives  evidence  consistent  with  innocence  and  in  conflict  with  the  prosecution

evidence before there can be a conviction, the Judge must reject the defendant’s

1      See R v Awatere [1982] 1 NZLR 644 (CA); R v Atkinson [1984] 2 NZLR 381 (CA).

evidence as untrue, that his evidence has, by itself, not created any reasonable doubt about his guilt.

[19]     In rejecting the evidence of a defendant, I suggest it is not sufficient in such a case, as this Judge did, for him simply to recount that he prefers some evidence to other evidence. This especially important with respect to the evidence of a defendant where such evidence is vital to the defendant’s case.

[20]     I  consider  a  defendant  who  gives  evidence  is  entitled  to  know  why  his evidence has been rejected as untrue if that is the case.  In this case the only reason given by the Judge for rejecting Mr Reid’s evidence was that counsel for Mr Reid had not put to the prosecution witnesses that Mr Reid had sworn at the police officer rather than at the female present.

[21]     In this evidence-in-chief the appellant did not specifically deny that he had sworn  at  the  female  but  he  did  say  that  he  had  sworn  at  the  police.     In cross-examination it was put to him that he swore at the female.  He denied doing so. But as the Judge noted in his questioning of Mr Reid at the time, he admitted the words alleged in the obscene language charge and so effectively admitted the charge itself.

[22]     I do not consider the Judge was entitled to say that Mr Reid’s failure to cross-examine witnesses about who his words were addressed to was relevant to his credibility.

[23]     In evidence-in-chief Mr Reid did not claim he did not address the comments to the woman and as the Judge noted in his questioning of Mr Reid, it was the use of the  words,  in  the  context  (it  was  in  a  public  domain)  rather  than  who  it  was addressed to, that was relevant feature.

[24]     The other aspect of this exchange is that Mr Reid admitted he had used the obscene words.  This could have been evidence which enhanced his credibility.  I am satisfied, therefore, that the Judge should not have used this evidence to assist him in assessing Mr Reid’s credibility.   Without this evidence there is, in my view, no

evidence  identified  by the Judge on  which  he  based  his  rejection  of  Mr Reid’s

evidence, as untrue.

[25]     I am satisfied in a case such as this where before a conviction can be entered, Mr Reid’s evidence had to be specifically rejected that reasons are required for such rejection.  In this case I consider no reasons were given and that for that reason the judgment is flawed.

[26]     I allow the appeal.  I quash the conviction.  Mr Reid should be retried in the

District Court.

Ronald Young J

Solicitors:

R M Gould, Blenheim

O’Donoghue Webber, Crown Solicitors, Nelson