Rooney v The Queen
[2011] NZCA 52
•7 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA512/2010 [2011] NZCA 52 |
| BETWEEN BRENTON DAVID ROONEY |
| AND THE QUEEN |
| CA532/2010 |
| AND BETWEEN DUNCAN ROY HOLLEBON |
| AND THE QUEEN |
| Hearing: 9 February 2011 |
| Court: Ellen France, Potter and Miller JJ |
| Counsel: J A Farrow for Appellant Rooney |
| Judgment: 7 March 2011 at 3 pm |
JUDGMENT OF THE COURT
The appeal against conviction by both appellants is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
Para No.
Introduction [1]
Factual background [4]
Unreasonable verdicts [8]
Constable Rooney [10]
Constable Hollebon [12]
The evidence at trial [14]
The arrest [17]
The blows to the complainant [25]
Discussion – Constable Rooney [38]
Discussion – Constable Hollebon [47]
Conclusion on reasonableness of the verdicts [52]
The absence of a s 122 direction [53]
The lunchtime discussion [66]
Admissibility of report of disciplinary panel member [68]
Disposition [72]
Introduction
Constables Rooney and Hollebon were each convicted of a single charge of assault (injuring with intent to injure for Constable Rooney, assault with intent to injure for Constable Hollebon) in the context of the use of excessive force during the arrest of Daniel Wiel. Both appellants appeal their convictions on the grounds:
(a) The verdicts are unreasonable; and
(b)The Judge failed to give a s 122 Evidence Act 2006 direction about the possible unreliability of the evidence of the two principal police witnesses, Constables Dunn and MacDonald.
In addition, Constable Rooney says a miscarriage of justice arises because Constable Dunn was seen talking to Constable MacDonald during a luncheon adjournment in the course of the trial while Constable Dunn was still under oath and under cross-examination.[1]
[1]A further ground of appeal relating to the absence of a lies direction in terms of s 124 of the Evidence Act was abandoned by both appellants.
The challenge to the reasonableness of the verdicts requires a more detailed analysis of the evidence at trial. However, before we turn to the grounds of appeal, we set out an outline of the background.
Factual background
Mr Wiel was seen in the early hours of 15 February 2009 riding a motorcycle through central Dunedin without lights and without a helmet. He was arrested following a police chase.
The first officers to reach Mr Wiel were Constables Dunn and MacDonald. Their evidence was that they were having difficulty getting handcuffs on Mr Wiel when Constable Hollebon joined the group and kicked Mr Wiel. He then walked away, before returning and kicking Mr Wiel again. Constable Rooney arrived before the last kick. As Constable Rooney reached the scene, Constables Dunn and MacDonald said he delivered a forceful kick to Mr Wiel’s head. Constables Rooney and Hollebon were the senior officers on the scene.
Mr Wiel suffered grazes and bruising to the right eye and right side of his face, light bruising to the left side of his chest and abdomen and abrasions to his right elbow during the incident.
Constable Rooney’s defence was that, as he approached the group, he slipped and his foot may have made light accidental contact with Mr Wiel’s head. Constable Hollebon admitted kneeling on Mr Wiel and placing his foot on Mr Wiel’s shoulder but denied kicking him.
Unreasonable verdicts
This part of the appeal is brought under s 385(1)(a) of the Crimes Act 1961. The question under that section is whether the verdict is unreasonable. The Supreme Court in Owen v R said that the only “necessary elaboration” on the statutory language is that:[2]
... a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.
[2] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
The argument supporting the submission that the verdicts are unreasonable is slightly different for each of the appellants.
Constable Rooney
Constable Rooney says the verdict is unreasonable because the evidence of Constables Dunn and MacDonald was that he had delivered a “solid”, goalkick-style kick to Mr Wiel’s head. The unchallenged medical evidence was that such a kick would have resulted in injuries much more serious than those suffered by Mr Wiel. Alternatively, if the jury rationalised the expert medical evidence from Professor Rex Ferris on the basis the kick must have been less forceful than described, then it was not open to the jury to infer that Constable Rooney had the requisite intent (to injure). In particular, intent to injure could not be inferred from the force of the kick.
Constable Rooney also says the jury had to reject Constables Dunn and MacDonald’s account because Mr Wiel claimed to have been kicked by the second officer on the scene. The evidence showed Constable MacDonald was the second officer to arrive while Constable Rooney was the fourth on the scene.
Constable Hollebon
Constable Hollebon says that the evidence of Constables Dunn and MacDonald had to be rejected because the complainant had no visible injuries in the places where they described Constable Hollebon kicking him. In particular, Constables Dunn and MacDonald described kicks on Mr Wiel’s right side, but there were no injuries to the right side of Mr Wiel’s body. The Constables’ evidence was inconsistent with the medical evidence from Professor Ferris, which was that kicks such as those described would have resulted in injury.
Constable Hollebon also says that Mr Wiel alleged he was assaulted on his left side, but he did not describe an assault corresponding with that described by Constables Dunn and MacDonald. Therefore, it was not open to the jury to conclude he had been kicked. Finally, Constable Hollebon emphasises the inconsistency in the accounts from Constables Dunn and MacDonald as to where these blows landed even though they were both on the same side of Mr Wiel.
The evidence at trial
It is undisputed that on 15 February 2010 the complainant, Mr Wiel, was seen driving a motorbike without lights or a helmet and was pursued by the police. Mr Wiel drove the wrong way down a street in the centre of Dunedin before turning left (east) onto another street. He then decamped and ran north back up the street he had ridden down.
Mr Wiel was pursued on foot by Constables Dunn and MacDonald. A police car had overtaken Mr Wiel and stopped ahead.
There are different accounts of what happened next and in particular over the extent to which Mr Wiel was resisting arrest. Both Constables Dunn and MacDonald agree that Constable Dunn was first on the scene, followed by Constable MacDonald.
The arrest
Mr Wiel’s evidence was that he stopped running and lay down on the ground in front of the entrance to a sporting goods store with his arms in front of him. He said that the first police officer got on top of him to handcuff him.
Constable Dunn stated that Mr Wiel went down to both knees and put his hands up. Constable Dunn then pushed Mr Wiel to the ground. Mr Wiel went down and had his arms underneath him.
Constable MacDonald said that Mr Wiel was on one knee and had put one arm in the air but he agreed that Mr Wiel had stopped running at the time Constable Dunn pushed him to the ground.
In a video interview[3] Constable Hollebon, who by then had stopped his police car and was approaching from the north end of the street, stated that Mr Wiel was still running and was tackled to the ground.
[3] 9 March 2009.
At the time of his arrest, the evidence was that Mr Wiel was on his stomach with his arms underneath his chest.[4] He was positioned roughly north-south with his head facing towards the north end of the street. The right side of his face was on the ground, with his face towards the road.
[4] Mr Wiel referred to his hands being in front of him as he used them to lie down.
Constables Dunn and MacDonald were positioned on Mr Wiel’s left side. Constable MacDonald was by his torso and Constable Dunn by his leg. Constable Dunn had his left knee on Mr Wiel’s back and his right knee on his legs. Constable MacDonald tried to control Mr Wiel’s upper body by pulling his left arm to try and get it from under him.
Both Constables were applying pressure to Mr Wiel at this time. Constable Dunn admitted to punching Mr Wiel with his left fist two or three times in the ribs on his left hand side to persuade him to release his arms.
Constable Hollebon arrived from the north end of the street. At this point it is unclear whether either or both of Mr Wiel’s arms were free but it is not disputed that Constables Dunn and MacDonald had some difficulty in getting Mr Wiel to put his arms behind his back.
The blows to the complainant
Mr Wiel’s account was that after the handcuffs were put on, he felt blows to his face and the side of his torso. His evidence was that he could not see much but that the second officer on the scene walked to him from the roadside (his left side) and kicked him in the face. He said he closed his eyes after the blow to his face and that he received “probably” two or three kicks to his head. Mr Wiel also said he felt blows to his left side around the kidney area and elbow. Mr Wiel described the first blow to his face as having “a bit of force” to it. He saw the foot coming straight at his face but did not see his assailant draw back before kicking. Mr Wiel also said the blows to his kidney were hard.
Constable Dunn’s evidence was that Constable Hollebon arrived, walked towards Constables Dunn and MacDonald and kicked Mr Wiel a couple of times in the ribs from the right side. He described this as “a hard soccer kick”. Then, Constable Dunn said, Constable Rooney walked in from the left and kicked Mr Wiel in the head. He used various descriptions for the force of the blow including that it was like “kicking a soccer ball for goal”, “very hard”, and a “walking kick”. Constable Dunn said Constable Rooney did not plant his foot but just walked and kicked. He described Constable Hollebon then coming back and kicking Mr Wiel again in the right shoulder area, “a good hard wallop”.
Constable MacDonald described Constable Hollebon arriving and walking swiftly and applying a boot into the back of the offender. He said he “stepped back and did it again” hitting the lower shoulder (blade) area, kicks he would expect Mr Wiel to have felt. Then Constable MacDonald said that Constable Rooney arrived and kicked Mr Weil in the face. He said that Mr Weil’s head moved in conjunction with the force. His description of the kick to the head was a “solid” kick.
Neither Constable Hollebon nor Constable Rooney gave evidence at the trial. However, Constable Rooney’s statement to the police[5] was in evidence and contained this passage:
As I approached the group the male [Mr Wiel] turned his head away from me so I could only see his left ear and cheek area. On entering the struggle I believe I possibly made light contact with the left side or back of the male’s head. This was only a glancing blow with my left foot. It was not a kick but more a light contact as I regained my footing.[6]
[5] 9 March 2009.
[6]Constable Rooney made a similar comment in his job sheet which was also in evidence. In the job sheet he referred to losing his footing and sliding into the group where he came into contact with someone but was not sure if it was Mr Wiel or another officer.
In his video interview (also in evidence), Constable Hollebon said that Constables Dunn and MacDonald were struggling to restrain Mr Wiel because he was resisting, so Constable Hollebon placed his right knee behind Mr Wiel’s left ear to enable handcuffs to be applied. Constable Hollebon said he then placed his right foot on Mr Wiel’s right shoulder as Mr Wiel was still thrashing around. Constable Hollebon was positioned on Mr Wiel’s right side and denied any kicks occurred.
In terms of Mr Wiel’s injuries, the jury heard from Dr Howard, who had attended Mr Wiel at the Dunedin Hospital Emergency Department on 15 February 2009. Dr Howard described a 2 cm laceration to Mr Wiel’s right eyelid, bleeding and bruising to the right eye and a large graze on his right cheek.
Finally, counsel for Constable Rooney, Mr Farrow, called Professor Ferris. Professor Ferris is a retired forensic pathologist and he gave evidence about Mr Wiel’s injuries. The thrust of the evidence from Professor Ferris relied on by Constable Rooney is that if Mr Wiel had been kicked in the way described then the injuries he incurred would have been more serious.
In terms of the right eye injury, Professor Ferris said this in his report:
The amount of force used to cause these peri-orbital injuries [around the right eye] is unlikely to have been as a result of a “solid kick” with a hard-toed boot since there is no fracture in the area of the orbital plate or to the side of the nose. The bones in these areas are very thin and can be relatively easily broken by a blow from a fist. This might suggest that the type of moderate glancing foot impact described by Constable Rooney is more likely than the full soccer kick described by Constable Baron.[7]
[7]Constable Dunn had talked to Constable Baron about the incident, and she had recorded Constable Dunn’s description of the nature of the kick in these terms.
The evidence from Professor Ferris was that if a person was kicking a soccer ball for goal and struck someone in this area of the face, it would cause fracturing. Whatever the impact of the assault was, Professor Ferris said that it had not been hard enough to fracture what are in fact the thinnest bones in the body.
As to the abrasions to the right cheek, Professor Ferris said they were entirely consistent with a blunt force impact with a rough hard surface and entirely consistent with Mr Wiel’s face hitting the ground either in a fall onto the ground or from his face contacting a hard paved surface when he was being held face down during his arrest. Professor Ferris continued:
It is not possible to exclude these facial injuries having been caused by an impact with the toe of a boot or a shoe, however in my opinion, this is much ... less likely than a direct impact with the ground.
Professor Ferris put his conclusions in relation to the injuries to the face of Mr Wiel as follows:
[these injuries] were probably the result of a combination of an impact with the ground, and the impact with the toe of a shoe or boot.
When asked about Mr Wiel’s evidence that his face was pressed to the ground when kicked in the face, Professor Ferris said he could not say how the injury occurred, but “clearly” the amount of force involved has been “much less than it would appear to be being described by both Mr Wiel and the evidence of some of the police officers”.
In terms of Constable Hollebon’s alleged assault, Professor Ferris said that from two to three hard soccer type kicks, he would expect some reddening of the skin and bruising almost certainly with 12 hours of the injury, that is, some visible injury. He said the same would apply to kicks to the upper rib area. He was asked about Constable MacDonald’s evidence that hard forceful kicks were delivered to the lower shoulder blade of sufficient force to move Mr Wiel’s body. Professor Ferris said that you can move a body just by pushing it so that was not a measure of the amount of force involved. There was no bruising or injury associated with the impact so whatever caused the movement of the body would obviously have been something that was not capable of causing a bruise and that was probably a push rather than a kick. In answer to the question, “So can it be taken that the absence of injury indicates there was not a kick?” Professor Ferris said:
Yes, I mean what you can say about the absence of the injury is that there was not sufficient force applied to cause injury, that’s all that it means, it just simply means that if there was a blow or a push or any form of impact, it was not sufficient to cause injury.
Discussion – Constable Rooney
With one qualification relating to intent which we discuss below, Constable Rooney does not argue that the verdicts are unreasonable because of an insufficiency of evidence to prove the elements of the offence. Rather, he says that because of particular aspects of the evidence, the jury was not entitled to accept the evidence of the eyewitnesses, Constables Dunn and MacDonald.
However, on its face, the evidence of Professor Ferris does not preclude acceptance of the evidence of Constables Dunn and MacDonald that Constable Rooney kicked Mr Wiel. Indeed, Professor Ferris accepted that the cut and bruising around the right eye was as a result of “at least one blunt force impact and ... entirely consistent with having been caused by an impact with the toe of a boot or shoe” although he considered the injuries better fitted with Constable Rooney’s account.
At its highest, in terms of the present discussion, if the jury accepted the evidence of Professor Ferris, that would lead to the conclusion that the degree of force used was considerably less than that which appears to have been described. That in itself does not make the verdicts unreasonable. It simply means that the two Constables may have over-stated what they saw or been mistaken about the force of the blow or that the officers had a different measure of force in mind.
As Professor Ferris accepted, the descriptions of force are subjective. He said that what he would consider a “hard” kick would produce a much more significant injury. His idea of what that entails may have differed from that of Constables Dunn and MacDonald. Crown counsel also clarified with Professor Ferris that there is a middle ground, that is, something between a moderate glance and a full blown soccer kick. Professor Ferris said that a moderate impact is an impact sufficient to cause the injury seen on Mr Wiel, but insufficient to fracture the bones.
Further, although Professor Ferris said that the absence of fractures is the best measure of the force used, he agreed in cross-examination from Crown counsel that there is no measure of force. He also accepted that injury could be affected by movement so, for example, if the head was loose and moved with the force of a kick, the injury may be less significant. These factors were all part of the overall evidence the jury had to consider. The issues raised by the evidence from Professor Ferris were emphasised by the defence and in summing up. On the question of force, for example, Mr Farrow referred to various aspects of the medical evidence and contrasted that with the Constables’ account of the type of kick they described. It is trite but true, as the jury were told, that this was not trial by expert but rather that their task required consideration of all of the evidence.
In any event, this is opinion evidence and so, not surprisingly, Professor Ferris did not purport to put matters in absolute terms.
The position in this case is quite different from that in cases such as R v Clapham and R v Hill relied on by Mr Farrow.[8] In Clapham, for example, there was no direct evidence to support an integral part of the counts. Here, on the best case for both appellants, the position is rather that the jury has accepted parts of the evidence of one or more of the witnesses and rejected other parts. This is orthodox reasoning.[9]
[8] R vClapham [2008] NZCA 273 and R v Hill [2009] NZCA 42.
[9] R v A (CA301/05) [2007] 2 NZLR 218 at [77].
As to intent, even if the jury considered the Constables over-stated the degree of force, it was open to the jury to infer the requisite intent was present given a kick with a boot to the head of a defenceless man held down on the ground. The Judge made the elements of the offence clear in the summing up and there is no challenge to his directions.
Finally, as to Mr Wiel’s account of which assailant did the kicking, nothing turns on this. These events took place in the early hours of the morning, matters were somewhat heated. Various people approached Mr Wiel, who did not always have full vision, and these events took place over a short space of time. It was open to the jury to conclude that Mr Wiel must have been mistaken about the order in which the police officers had arrived.
Discussion – Constable Hollebon
Like Constable Rooney, Constable Hollebon’s challenge is generally not to the sufficiency of the evidence of the elements of the offence but rather, that it was not reasonable to conclude he assaulted Mr Wiel with the requisite intent absent visible injury. But what Professor Ferris said was that if there was a blow or any form of impact, then it was not sufficient to cause injury. It does not inexorably follow from that proposition that there could not have been a blow. As with Constable Rooney, the issues raised by the medical evidence were canvassed extensively in the course of the trial. For example, Judge Kellar, who was the trial judge, put the position taken by counsel for Constable Hollebon in summing up in this way:
[43] The defence submits that Mr Wiel himself referred only to receiving blows to his left side. He says nothing about being kicked on the right side of his body... .
[44] The defence submits that the absence of visible injuries to the right side of Mr Wiel’s body is fatal to the Crown’s case. Professor Ferris opined that what you can say about the absence of injury is that there was not sufficient force applied to cause the injury. ... The defence submits that on the basis of Professor Ferris’ evidence, kicks delivered with the force the Crown contends would have produced visible injuries. The defence is that you should not accept Constable Dunn and Constable MacDonald’s evidence because for one, they cannot agree where the kicks landed.
[45] A key aspect of the defence you might think is that despite the Crown case that hard kicks were delivered, there were no injuries to the right side of Mr Wiel’s back. ...
In any event, there was evidence of other possible explanations. First, Professor Ferris accepted that bruising rates differ although he said not very much. Secondly, he accepted that if there was evidence that the mark on Mr Wiel’s right elbow was caused by a kick there was nothing inconsistent in the injury with that scenario. Finally, Professor Ferris accepted in cross-examination that marks appearing on the photograph of Mr Wiel’s left hand side might be consistent with bruising.
Mrs Stevens emphasises also the evidence from Dr Ferris that some of the bruising was consistent with the punches Constable Dunn admitted to Mr Wiel’s ribs. That was a matter before the jury but did not require the jury to reject the Constables’ accounts.
As to the differences between the description of the two Constables and that of Mr Wiel, one might expect the Constables to be more accurate given their training, although both were relatively junior. However, as was said in the context of Constable Rooney, this was a very fast moving situation. There was some confusion, a police dog unit was at the scene and there were some concerns about keeping the dog at bay. Mr Wiel said he closed his eyes after some of the initial activity. He may well have been mistaken about which side of his body was hit. There is some support for that in the evidence. Mr Wiel initially said a photograph of the elbow on which a small injury appeared was his left elbow. Mr Wiel reluctantly accepted when asked by the trial Judge that this must be his right elbow.
We add that these arguments were considered by Judge Kellar in the context of an application for a discharge under s 347 of the Crimes Act by Constable Hollebon. The Judge, in rejecting the application, correctly observed that it was not necessary for the Crown to prove that the intended harm actually occurred.[10] Further, from the evidence, it was open to the jury to conclude that the blows were not so trifling that they were sufficient to comprise an assault. Even if less forceful than described, these were at least walking kicks with a boot to a defenceless man on the ground.
Conclusion on reasonableness of the verdicts
[10]The Judge in summing up said that the Crown had to prove that when he delivered the kicks, if the jury decided that was proven, Constable Hollebon intended to cause bodily injury but not that the intended harm actually occurred.
For these reasons, we consider the verdicts were not unreasonable. And, as we have indicated, the matters raised on appeal were before the jury having been canvassed in evidence, addresses and in the Judge’s summing up.
The absence of a s 122 direction
Section 122(1) of the Evidence Act provides that where a Judge in a criminal jury trial considers any admissible evidence may nevertheless be unreliable, the Judge may give a warning to the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to the evidence.
Section 122(2) then lists a number of types of evidence for which the Judge must consider whether to give a warning. The types of evidence include evidence given by a witness “who may have motive to give false evidence” prejudicial to a defendant.[11]
[11] S 122(2)(c).
A party may request the Judge to give a warning under s 122(1) (unreliability) but the Judge need not comply with that request: [12]
(a)if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b)if the Judge is of the opinion that there is any other good reason not to comply with the request.
No particular form of words is necessary in giving the warning.[13]
[12] S 122(3).
[13] S 122(4).
Counsel for Constable Hollebon asked Judge Kellar to give a s 122 warning in relation to the evidence of Constables Dunn and MacDonald. The Judge refused. We understand no formal reasons were provided though Judge Kellar said he would do so later if necessary. From the record of the discussion between counsel and the Judge, it appears the Judge considered there was no need for a formal warning. He took the view that it was sufficient to highlight the relevant issues and emphasise that it was for the jury to undertake the assessment of reliability needed to resolve those issues.
The appellants say a warning was required because:
(a)The evidence of Constables Dunn and MacDonald was not supported by Mr Wiel;
(b)The officers accepted they were concerned about the implications for themselves arising from the injuries suffered by Mr Wiel;
(c)Mr Wiel said he was kicked by the second officer on the scene, on the evidence that was Constable MacDonald;
(d)The officers had an opportunity to confer;
(e)The evidence of Constables Dunn and MacDonald was not supported by contemporaneous notebook entries or official paperwork (and neither reported the matter immediately to their supervising officer); and
(f)Constable Dunn withheld information about possible causes of Mr Wiel’s injuries from medical staff.
The approach to be taken to s 122 is discussed by this Court in Taylor v R.[14] The Court cites R v Harawira as a helpful reminder of first principles relevant to reliability warnings as follows:[15]
... In the end the fundamental question must be whether the summing up met the justice of the particular case. Difficulties will tend to arise where the potential unreliability of the witness is not obvious for the jury to see. ... Clearly where a warning is proper it need not be conveyed in the language of “danger”, “warning” and “caution”. What is essential in such a case is to bring home to the jury the need for care in relying on that evidence.
[14] Taylor v R [2010] NZCA 69.
[15] R v Harawira [1989] 2 NZLR 714 (CA) at 726.
In the present case, the matters relied on by the appellants to support the submission a warning was needed were all squarely before the jury. The relevant witnesses were cross-examined about these matters, counsel addressed them in closing, and Judge Kellar canvassed the Crown and defence cases in summing up. In addition, in summing up, the Judge made it clear that the jury was responsible for deciding the facts and that it was for the jury to decide which witnesses and what evidence they regarded as being credible and reliable.
The reliability issues were firmly to the forefront in this case.
Mr Farrow was critical of the Judge’s failure to explain Constable MacDonald’s possible motive for lying. That was, however, dealt with in the evidence and would have been apparent to the jury. For example, Mr Farrow put it to the Constable that he had kicked Mr Wiel in the head. Further, Constable MacDonald accepted that when he heard Mr Wiel accuse the police of kicking him in the head he knew he was “in a spot of bother” but denied that was because he had kicked Mr Wiel in the head.
Mrs Stevens for Constable Hollebon placed particular emphasis on one aspect of the contemporaneous documentation referred to above,[16] namely, that Constable MacDonald had recorded in his notebook that Constable Hollebon had applied pain compliance by kneeling on the head/neck region. However, in his evidence he said his notes were incorrect and it had not occurred. Again, we consider there was no need for a warning or any further direction on this aspect. The Judge dealt comprehensively with this matter referring to it on two occasions in his summing up.
[16] At [57](e).
The first direction was in the following terms:
[33] In re-examination Constable MacDonald gave an explanation for making the false notebook entry, that he looked up to Constables Hollebon and Rooney and that he thought that by writing a correct notebook entry and I quote, “We would end up where we are today”. That is at page 143, lines 10 to 16. As with all of the other evidence, I have emphasised this point previously and underscore it, it is for you to decide whether you accept that evidence and what weight you attach to it.
Subsequently, the Judge said this:
[46] Mrs Stevens submits that Constable MacDonald is lying when he said that the statement in his notebook about Mr Hollebon kneeling on Mr Wiel’s neck or head was untrue. She submits that the notebook entry had to be true because at the time he wrote it he had no source of information other than what he observed and it was what Constable Dunn and Mr Hollebon said happened. The defence submit that Constable MacDonald is lying about Mr Hollebon not kneeling on Mr Wiel’s head and lying about his notebook entry being false.
[47] Constable MacDonald said in re-examination that he looked up to Constables Hollebon and Rooney. He said he did not want to let them down and thought that by writing a correct notebook entry, and I quote, “We would be here today”. That is at page 143, lines 10 to 16.
[48] As with all of the other evidence, it is for you to decide whether to accept this evidence and what weight you attach to it. When you consider this evidence you might also consider what Mr Wiel said. He did not accept that before the handcuffs were applied, pressure was put on the back of his head and the top of his neck. That is at page 24, line 17. Nor did Mr Wiel accept that at the point when he was handcuffed some pressure was put on his right shoulder like a foot being placed on it. That is at page 25, lines 8 to 10. Constable Dunn, however, accepted that Mr Hollebon knelt down and put his right knee on the back of Mr Wiel’s head/neck region in a move of pain compliance. You will find that at page 53, lines 14 to 16.
[49] Mrs Stevens further submits that evidence Constable MacDonald is lying comes from his evidence that Mr Wiel was lying still on the ground when evidence from other witnesses suggests Mr Wiel was struggling and also that Constable MacDonald says he did not see Constable Dunn punch Mr Wiel to the side. The defence also casts doubt on the [C]onstables’ account from the fact they did not report the incident to their superior officers before conferring with one another.
Against this background, it is plain the credibility and reliability of Constables Dunn and MacDonald was squarely in issue. The jury was well aware of that and of the importance of this issue. There was no need for any more specific warning from the Judge.
The lunchtime discussion
In written submissions, Mr Farrow for Constable Rooney said there was a real risk Constable MacDonald’s evidence after the lunchtime adjournment was influenced by discussions with Constable Dunn over lunch on 1 June 2010.
After Mr Farrow’s written submissions were filed, the Crown filed an affidavit from acting Senior Sergeant Baron. The officer says she accompanied the two Constables during the lunch adjournment and there was no discussion of the trial. On the basis of this evidence, Mr Farrow did not pursue this ground.
Admissibility of report of disciplinary panel member
Finally, we need to deal with an application by the appellants that we consider the findings in a report written by Mr Toogood QC, a disciplinary panel member. The report was written following a disciplinary hearing into allegations against Constables Hollebon and Rooney. For present purposes, we need only note Mr Toogood’s conclusion that the allegations of misconduct were not made out.
Mr Farrow, who argued this point, accepted that the report was not fresh evidence but submitted that nonetheless the Court was able to consider it on the basis that it indicated the verdict reached by the jury was unreasonable. The Crown said the report was not admissible because it was not fresh evidence.
Once it is accepted, as it must be, that this is not fresh evidence that is the end of the matter. There is no other basis for us to admit it on appeal. In any event, we do not see how the report could assist us in dealing with the appeal. That is because Mr Toogood had further evidence and access to other material not before the jury. In addition he had held meetings with various people. In other words, he was not looking at the case on the same basis.
Accordingly, we decline to receive the report.
Disposition
For the reasons set out above, both conviction appeals are dismissed.
Solicitors:
Webb Farry, Dunedin for Appellant Rooney
Crown Law Office, Wellington for Respondent
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