Reuben v Police

[2018] NZHC 1870

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-000075

CRI-2017-419-000079 [2018] NZHC 1870

BETWEEN

STEWART CLIFTON REUBEN

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

Further submissions filed:

20 March 2018

11 and 14 May 2018

Appearances:

Appellant, self-represented ML Dillon for Respondent

Judgment:

26 July 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 26 July 2018 at 4.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

REUBEN v NEW ZEALAND POLICE [2018] NZHC 1870 [26 July 2018]

Introduction

[1]    On 7 November 2017, Stewart Clifton Reuben, was convicted of two charges of contravening a protection order,1 and unlawfully converting a motor vehicle2 by Judge P R Connell, in the District Court at Huntly, after a judge alone trial. Mr Reuben was sentenced to three months’ imprisonment. He has served the sentence and appeals against the conviction only.

[2]    Mr Reuben also  appealed  against  a  refusal  of  Judge  RG  Marshall,  on  13 September 2017,  to  grant  him  bail  while  he  was  awaiting  trial.  Although  Mr Reuben did not formally abandon that appeal when it came on for hearing with the substantive appeal, he agreed that there was no purpose in pursuing it. That appeal is now formally dismissed.

The offending

[3]    The essential facts found by the Judge are these. On 17 December 2016, the complainant was staying at her partner’s unit in Waingaro when Mr Reuben and a friend knocked on the door. At this time, a protection order3 issued against Mr Reuben in May 2007 was still in place for the purposes of protecting the complainant, her children and her mother. The complainant said that Mr Reuben told her he wanted to take her Nissan Pulsar vehicle to use it to get “meat for my mum and my kids”. The complainant said that she reluctantly said yes to the request, fearful of what Mr Reuben would do if she did not oblige. Mr Reuben did not take the vehicle at that point and said he would come back in the afternoon to get it. Accordingly, Mr Reuben returned alone that afternoon. The complainant gave him the keys and he took the vehicle.  Mr Reuben and the complainant arranged that he would return the vehicle on the following Monday night to ensure the complainant could attend “PD” on Tuesday.

[4]    After the vehicle was not returned on the Monday, the complainant engaged in a text conversation with Mr Reuben. During a phone call with Mr Reuben, the

1      Domestic Violence Act 1945, s 49: maximum penalty of 3 years’ imprisonment.

2      Crimes Act 1961, s 226: maximum penalty of 7 years’ imprisonment.

3      Domestic Violence Act 1945, s 45.

complainant told Mr Reuben that she needed to make contact with the Police because he had not returned her car. In response, Mr Reuben sent a text message saying:

Still trying those dumb nigga threats of police dramas when you don’t get your way. You should be careful my bros have a lot more respect for me than you two…

[5]    Mr Reuben did not return the vehicle until after he was stopped by Police in Orewa. The vehicle had been reported missing by the complainant who had been advised to register it in her name so the Police could log it as missing. Mr Reuben was then arrested.

The District Court trial

[6]    The case was set down for hearing before Judge Connell on 19 September 2017. Prior to the commencement of the hearing, Mr Reuben advised the Judge that he wished to call a witness, Mr Solomon King, for the defence. The Judge offered to adjourn the hearing following an explanation by Mr Reuben of the difficulties he had faced of being in custody and being unable to summons the witness prior to the hearing. Mr Thwaite, amicus to the Court, discussed the issue with Mr Reuben but when he returned to the dock, Mr Reuben advised the Court that he wished the hearing to proceed. The Judge was satisfied that Mr Reuben knew that if the case proceeded, the evidence of his witness would not be heard.

[7]    The complainant gave evidence at trial. She confirmed that the protection order made against Mr Reuben in May 2007 had never been discharged. She explained that she had not seen Mr Reuben for close to five years and made it clear that there had been no prior arrangement, by phone or any other means, between herself and Mr Reuben prior to his turning up on 17 December 2015. The complainant explained that she had only recently swapped her own car with the Nissan Pulsar vehicle, which was why it was not registered under her name when Mr Reuben took it.

[8]    The complainant was cross-examined by Mr Thwaite on the arrangements made to hand over the car.4 The complainant described being “standoffish” and fearful that the situation would “escalate” in violence if she did not agree to his request to use the vehicle. She explained that Mr Reuben had tendencies to become aggravated towards her when he did not get what he wants and that if she did not oblige she would “get a crack”. The complainant acknowledged that Mr Reuben did not use threats against her when she handed over the keys but said his body language and the tone of his voice was the equivalent of him “standing over” her. In cross-examination, she did not agree to the proposition that Mr Reuben had called her to arrange more time to use the vehicle.

[9]    Mr Reuben also gave evidence at the hearing on 19 September 2017. He largely repeated the information given to the Police Officer after he was stopped in the vehicle. He maintained that there were phone conversations prior to his turning up on 17 December and that things between him and the complainant remained amicable. Mr Reuben also disputed that the vehicle was the property of the complainant for purposes of the charge. After Mr Reuben’s evidence was completed, there was insufficient time for Judge Connell to deliver his decision so the hearing was adjourned to 21 September 2017. On 21 September 2017, the case was called again late in the day. The notes of the hearing record the Judge saying this:

[1]        Mr Reuben we are going to be dealing with this in a quick way, it is late in the day. I considered this last night and I have come to a conclusion about your case and I am going to put my reasons for that conclusion in writing so that you can properly consider it. I am saying that because you are self- represented and I think if I sat here and rattled off my decision I do not think you would fully appreciate the reasons as to why I have come to it. So I will put my reasons in writing. If I was to start now we would not finish before six and I am not prepared to hold staff up to that extent but the decision is completed. I have dictated it. It will be typed within the next few days and I will ensure that you get it up at Spring Hill.

[2]        What I [am] saying to you is that on both of these charges I found you guilty. That is after my consideration of the evidence and the view that I held of it. What I am going to do is set a date for sentence and I will make sure that within about five or six days you will end up with the reasons for the decision so you can comment on them on sentence. I am going to ask for a probation officer's report as well and that will be ready for the day on sentencing. 19 October in the Hamilton District Court. Your choice if you

4      Without objection from Mr Reuben, the Judge directed that Mr Thwaite would undertake the cross-examination so that the complainant was not questioned by Mr Reuben.

want to exercise it is to have that dealt with by Audio Visual Link or come personally to the Hamilton District Court.

[10]   There was then a discussion between Mr Reuben and the Judge about whether Mr Reuben consented to his sentencing being conducted on 19 October 2017 by AVL link from prison, where he was being held, or in person at the District Court in Hamilton. During the exchange, Mr Reuben addressed the Court in Te Reo Māori. In the end, Mr Reuben was remanded to appear for sentence on 19 October 2017.

The decision of the District Court

[11]   On 7 November 2017, Judge Connell delivered the written reasons for his decision to enter convictions on 21 September 2017.5 The Judge, having the benefit of watching and hearing the evidence, was of the view that the complainant gave evidence in a cogent and forthright manner. On the other hand, having considered  Mr Reuben’s evidence, the Judge found that there was no veracity or cogency in his explanation of events, although he recorded that Mr Reuben maintained his courtesy and politeness towards the Court throughout. The Judge found the threatening text message sent by Mr Reuben to be a matter of significance in determining the credibility and veracity of the complainant. Judge Connell found the text to be a logical response to the threat by the complainant to call the Police, and found that it belies Mr Reuben’s evidence that relations were amicable between him and the complainant at the time.

[12]   Judge Connell concluded that the behaviour of Mr Reuben at the time of taking the vehicle and at the time of texting the complainant amounted to psychological abuse towards the complainant, and determined that this was so beyond reasonable doubt. The Judge held that there was no agreement freely made by the complainant to let Mr Reuben have the vehicle and that she did so under fear of a threat or physical violence. The Judge found the vehicle to be in the complainant’s possession and control, sufficient to call it “her property”, for purposes of the charge. Judge Connell concluded that, dishonestly and without claim of right, Mr Reuben took the vehicle from the complainant and used it for his own purpose.

5      New Zealand Police v Reuben [2017] NZDC 25049.

Approach on appeal

[13]   The appellant’s appeal against conviction must be allowed if the Court is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment to such an extent that a miscarriage of justice occurred: that is, there was an error, irregularity, or occurrence affecting the trial that has either created a real risk that the outcome of the trial was affected or resulted in an unfair trial.6

Submissions in support of the appeal

[14]   Representing himself, Mr Reuben filed a number of documents in this Court and made assertions about his rights and raised a number of grounds of appeal, including:

(a)the complainant was an unreliable witness;

(b)the complainant was not the registered owner of the vehicle at the time the appellant took it; and

(c)various arguments that the District Court Judge erred in his assessment and throughout the course of the trial.

[15]   Mr Reuben’s oral argument, however, focussed on the principal point that the Judge was satisfied with the complainant’s evidence when there were inconsistencies between what the complainant said to the Police and what she said in the trial.      Mr Reuben focussed this submission on the fact the complainant said in her evidence in chief that she agreed to him taking her vehicle and therefore there could not have been intimidation.

Discussion

[16]   In order to establish a miscarriage of justice, ordinarily two things must be shown. First, something must have gone wrong with the trial. Second, that the irregularity could have led to a miscarriage of justice.7 The appellant does not have to

6      Criminal Procedure Act 2011, s 232(2)(c).

7      Tuia v R [1994] 3 NZLR 553, 555 (CA).

establish a miscarriage in the sense that the verdict actually is unsafe; the presence of a real risk that this is so will suffice.8

[17]   The ultimate question of whether there is a real risk justice has miscarried requires consideration of whether the Judge erred in his assessment, and whether there is a real risk it affected the outcome.

[18]   Mr Reuben submits that there were inconsistencies in the complainant’s evidence. The Judge, however, was entitled to accept what the complainant was saying as true. Judge Connell accepted that the complainant handed Mr Reuben the keys but he said he was satisfied beyond reasonable doubt that this was not done “freely”, because the complainant felt threatened by what Mr Reuben would do if she did not oblige. The Judge was entitled to reach that view on the evidence. He was also entitled to accept that the vehicle was her property, notwithstanding that it was not registered in her name at the time Mr Reuben took it.

[19]   The essence of the case was a contest between the evidence of the complainant and that given by Mr Reuben. Judge Connell had the benefit of watching and hearing the witnesses give evidence at trial. He concluded that Mr Reuben’s evidence did not leave him in a state of reasonable doubt that the prosecution had proved its case. Having considered carefully the evidence given by Mr Reuben, I am satisfied that it was open to Judge Connell to reject it as not being credible, for the reasons he gave.

[20]   The hearing procedure adopted by the Judge was fair to Mr Reuben in that he had the benefit of assistance from counsel appointed by the Court whose services the Judge described as “exemplary”.

Decision

[21]There was no error by the Judge. I dismiss the appeal accordingly.

.......................................................

Toogood J

8      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].