Rhodes v Police

[2013] NZHC 105

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-319 [2013] NZHC 105

BETWEEN  JAH ALBERT RHODES Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 February 2013

Counsel:         AF Kemp for Appellant

KV Mills for Respondent

Judgment:      7 February 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 7 February 2013 at 4.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Public Defence Service, P O Box 90243, Auckland 1142 for Appellant

(Email:  [email protected] )

Meredith Connell, P O Box 2213, Auckland 1140 for Respondent

(Email:  [email protected] )

JAH ALBERT RHODES V NEW ZEALAND POLICE HC AK CRI-2012-404-319 [7 February 2013]

Introduction

[1]      After a hearing before Judge Simpson in the Auckland District Court on

14 December  2012,  Mr  Rhodes  was  convicted  of  assault.    He  was  discharged without penalty.  He appeals against conviction.

Background facts

[2]      The alleged assault took place on Good Friday, 6 April 2012.  Mr Rhodes and his partner, Melanie Rushton, were on their way home from a wake, following the funeral of Mr Rhodes’ cousin.  Ms Rushton was the designated driver, although it is clear that she as well as Mr Rhodes had consumed alcohol at the wake.

[3]      Three witnesses gave evidence about the incident.  Mr Olo Dennison said that at around 7.00 p.m. he was driving with his wife and child passengers in the car, along Mt Smart Road from Royal Oak towards Penrose.  His attention was drawn to the sound of a horn beeping repeatedly.  The noise was coming from a stationary car on the opposite side of the road.  He stopped his car and could see a man trying to pull the female driver of the vehicle (who was sounding the horn) out of the car.  He did a U-turn and drove back and approached the car.  By then, he said, two or three others were also at the scene.  They were attempting to calm down the man.  By this time the woman had got out of the car and was sitting on the kerb.   She was obviously “quite shaken up” and was crying.  The man was trying to approach her and saying things like “sorry” and “I love you”.

[4]      Mr  Rhodes  gave  evidence  in  his  own  defence.    He  said  that  he  and Ms Rushton  got  into  an  argument  as  they were  driving  home.    Both  had  been drinking.  He said they had stopped for a third time when the incident occurred.  He thought that because of their level of intoxication, they should walk the rest of the way.  He got out of the car and went to the driver’s door to help Ms Rushton out.  He said he just put his arm around her to encourage her to get out.  She stumbled and fell and he helped her up.  Mr Rhodes emphatically denied pulling Ms Rushton from the car.

[5]      Ms Rushton also gave evidence for the defence.   She said she had been drinking at the wake but did not realise how intoxicated she was until she was driving and began arguing with Mr Rhodes.   After she stopped Mr Rhodes came round to the driver’s side of the car.  She beeped the horn once to stop the argument. Mr Rhodes opened the door but did not pull her out of the car.  She said she went to get out of the car and ended up tripping and falling.  Ms Rushton was adamant that Mr Rhodes did not pull her out.   She said he did not even touch her.   She denied repeatedly beeping the horn.

Judge’s decision

[6]      Judge  Simpson  accepted  the  evidence  of  the  independent  witness,  Mr Dennison.  Whereas Mr Rhodes and Ms Rushton had made a point of explaining to the Court that they were drunk, Mr Dennison was sober and in a position to observe exactly what went on.  He saw Mr Rhodes holding on to Ms Rushton and attempting to “yank her out of the car”.  The Judge said he was sufficiently concerned to stop and return to the scene, as had others, attracted by the continuous beeping of the horn.    She  noted  that  one  of  those  had  been  sufficiently  concerned  to  prevent Mr Rhodes from approaching Ms Rushton.

[7]      She concluded that Mr Dennison’s observations of what was happening was accurate.   She said the assault, “meaning the unwanted touching”, was completed when Mr Rhodes put his arms around the shoulders or the neck of Ms Rushton and attempted to remove her from the car.

Appeal

[8]      Ms Kemp’s attack on the Judge’s decision focussed on the issue of consent. She submitted that the Judge had failed to turn her mind to the possibility that Ms Rushton had  consented to  what  had  occurred  or that  Mr  Rhodes  may have genuinely  believed   she   was   consenting.     Ms   Kemp   argued   that,   even   on Mr Dennison’s version of what occurred, a finding that the element of consent had not been negated was reasonably open to the Judge having regard, in particular, to the context in which the incident occurred.   She placed particular reliance on the

relationship between Mr Rhodes and Ms Rushton (they had been partners for three years).  She submitted that, in the circumstances, the negation of consent “had to be more express”.

Discussion

[9]      While the statutory definition of assault in s 2(1) of the Crimes Act 1961 (the Act) and the offence itself in s 196 of the Act make no reference to consent, the requirement  at  common  law  that  consent  or  belief  in  consent  will  negate  the unlawful use of force is preserved by s 20 of the Act.  A genuine belief in consent, even if there were no reasonable grounds for it, provides a defence, and if there is evidence making consent or belief in consent a live issue, the prosecution has the

burden of proving its absence.[1]

[10]     Although Judge Simpson made no specific finding on the issue of consent, it is clear from her decision that she was alive to the need for the prosecution to negate consent if it arose as an issue.  She said:

[1] R v Kimber [1983] 1 WLR 1118, [1983] 3 All ER 316 (CA); Beckford v R [1988] AC 130 (PC) at

144.

[25]      Assault is defined in the Crimes Act of applying force or pressure to the person of another.  The pressure may be very slight but it is an ingredient of the charge that the pressure was not consented to.  Thus, somebody who assists another is not usually guilty of an assault because that pressure or force applied to the person of another is intended to be of assistance and is not an unwanted touching.  The pressure or force applied to the person of another may be very slight but it is the mere act of applying that pressure, taking hold of a person when they do not want to be taken hold of, even an unwanted kiss may be an assault.

[11]     On Mr Rhodes’ version of events, the issue of consent would have required consideration.  But, as Ms Mills submitted, the account of the incident accepted by the Court, that of Mr Dennison, is inconsistent with a narrative of consent or a genuine  belief  in  consent.    His  evidence  was  of  the  horn  of  the  car  beeping repeatedly.  It was clear to him that the female occupant did not want to get out of the car.  She was resisting the attempts by Mr Rhodes to pull her out.  Mr Dennison’s

evidence was that Mr Rhodes was “aggressively” trying to pull her out of the car.

He described his actions as “a yank”.   He rejected the suggestion that Mr Rhodes was assisting the woman who was having trouble removing herself from the vehicle.

[12]     I agree with Ms Mills that consent or belief in consent could only arise on the narrative of Mr Rhodes which was rejected by the Judge where it conflicted with the evidence of Mr Dennison.  It could not arise on the facts as she found them.

Result

[13]     The appeal is dismissed.