S v Police HC Auckland CRI 2008-404-347

[2009] NZHC 519

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-347

S

Appellant

v

THE POLICE

Respondent

Hearing:         4 May 2009

Appearances: G Gotlieb and B T Lauaki for appellant

N F Flanagan for respondent

Judgment:      8 May 2009

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.00 pm on Friday 8 May 2009

Solicitors:

G Gotlieb, PO Box 47-369 Ponsonby Auckland

Crown Solicitor Auckland

S V THE POLICE HC AK CRI 2008-404-347  8 May 2009

[1]      On 10 October 2008 the appellant was convicted, following a defended trial in the Manukau District Court, on a charge of threatening to do grievous bodily harm to Michael Keith Padfield.

[2]      The appellant was ordered to come up for sentence within six months if called upon, but no other penalty was imposed.  Mr S   now appeals against his conviction.

Factual background

[3]      Mr S   and the complainant, Ms Zackey, were formerly husband and wife. The latter stages of their marriage were not especially amicable; nor is their post-separation relationship.  But contact has been maintained, principally in respect of the four children of the marriage.

[4]      The complainant has formed a relationship with Mr Padfield.   He and the appellant do not get along.   Although the evidence is somewhat inconsistent and contradictory, there is a large measure of agreement about the essential facts of the case.

[5]      Early  in  the  morning  of  Sunday  18  May  2008,  at  about  6.30  am, Mr S   contracted Ms Zackey by telephone.  Their eight year old son was to participate in a rugby tournament that morning.   Mr S   had some rugby equipment  that  their  son,  Iden,  would  need.    Mr S    then  indicated  to Ms Zackey that he was proposing to attend the rugby game, as he habitually did. She responded by indicating that she and Mr Padfield had decided that the latter might also attend for the first time.  Mr S   did not think that to be a good idea.  He made a threat to Ms Zackey about Mr Padfield.  Precisely what was said is not absolutely clear.   Mr S   himself accepts that he threatened to “knock [Mr Padfield’s] block off”.   For her part, Ms Zackey agrees that could have been said, but claims Mr S   also told her that he would beat Mr Padfield to a pulp.

[6]      It is relevant to mention that Mr S   is little short of 2 metres in height and weighs 175 kg.   There is evidence that Mr Padfield is of average height and weighs about 75 kg.

[7]      The alleged threat was made by Mr S   to Ms Zackey by telephone. Mr Padfield was not a participant in the discussion.   Some 36 hours later, on the evening of Monday 19 May, Ms Zackey laid a formal complaint with the police, who, having interviewed the appellant, arrested and charged him.

The District Court decision

[8]      Judge Henwood was satisfied that the appellant had made a telephone call to the complainant in which he threatened:

… to beat Michael Padfield to a pulp or to knock his block off.  It was a short two-minute phone call when the defendant made this threat.  He told the police and the Court that he stated those words in the heat of the moment and he did not intend to carry out any violence.

[9]      The Judge did not expressly make a finding as to which of the two separate threats was made;  she plainly thought that the distinction did not matter.  On appeal, counsel have agreed that either statement was capable of amounting to a threat to do grievous bodily harm.

[10]     The Judge continued:

There is no doubt that the defendant intended Michelle Zackey to take him seriously and she certainly did.  The defendant says he did not intend to act upon his threatening words and he said them in the heat of the moment.  This is irrelevant, of course.  The defendant has been violent to Michael Padfield in the past and had a confrontation with him at a Council meeting.  Michelle Zackey took him seriously and was very concerned indeed.

[11]     The Judge’s findings were contained in a reserved decision following a trial which took place on 25 September 2008.

The law

[12]     The ingredients of the offence of threatening to do grievous bodily harm were extensively discussed by the Court of Appeal in R v Adams [1999] 3 NZLR 144. The actus reus is the making of the threat, and requires that the threat be communicated to a person. But it need not be addressed or communicated to the person threatened, or be capable of being understood by that person. The prosecution must establish an intention on the part of the defendant that the threat be taken seriously (or be taken as a threat which may be carried out), not necessarily by the person whose safety is threatened, but by a person to whom it is addressed and whose conduct may be influenced by it. Intent may be determined by reference to the words used and the context in which they were spoken, and the relationship between the defendant and the person to whom the words were directed. The previous history of an accused person can be admissible as tending to show that he intended his threats to be taken seriously.

Discussion

[13]     The principal point taken by Mr Gotlieb on appeal is that the Judge ought not to  have  been  satisfied  beyond  reasonable  doubt  that  the  words  spoken  by Mr S   (whatever they were) actually caused Ms Zackey to fear for her safety or that of Mr Padfield.   He links that proposition with an argument that, on the evidence, the Judge ought to have determined that Mr S   did not intend his threats to be taken seriously.

[14]     In support of these propositions Mr Gotlieb refers to four items of evidence. First, there is Mr S  ’s own evidence that he never intended his threat to be taken  seriously,  and  that  what  he  said  was  uttered  in  the  heat  of  the  moment. Mr Gotlieb  submits  that  having  regard  to  the  history  of  this  relationship  and Mr S  ’s tendency to lose momentary control (but to quickly calm down again), the Judge ought to have found that Ms Zackey could not have taken the threat seriously.

[15]     Mr Gotlieb’s second point focuses upon a text message sent by Ms Zackey to Mr S   within an hour or so of the alleged threat.   In it she indicated to Mr S   that he was welcome to attend the rugby match, even though she and Mr Padfield  might  also  attend.     An  indication  of  that  sort  is  not  consistent, Mr Gotlieb  argues,  with  serious  concern  on  Ms  Zackey’s  part  as  to  whether Mr S   intended to make good his threat.

[16]     The third point taken by Mr Gotlieb relates to the complainant’s delay in approaching the police.   As earlier noted she did not complain until the Monday evening, some 36 hours after the threat was made.   Mr Gotlieb suggests that if Ms Zackey had  been  truly  concerned,  she  would  have  made  it  her  business  to complain a great deal earlier.

[17]     Finally,  Mr  Gotlieb  argues  that  the  Judge  was  wrong  to  refer  to  earlier violence against Mr Padfield.  All that had occurred earlier, he says, was some minor shoving which, although giving rise to an assault charge, ended in diversion.  Neither was there anything in the confrontation at the Council meeting to which the Judge referred.  There the appellant was simply exercising his right at a Council meeting to raise what he regarded as a conflict of interest on the part of Mr Padfield, who is a City Councillor.  Mr Gotlieb says that neither of those incidents can properly bolster the Crown’s case.  However, a partial answer at least to that proposition is that there is a history of confrontation between the appellant and Mr Padfield, which must have heightened Ms Zackey’s apprehension when the threat was made.

[18]     Taken in combination, Mr Gotlieb argues, these factors suggest that it was wrong for the Judge to conclude that the elements of the offence had been made out. It is obvious, he maintains, that she placed this case at the lowest end of the culpability spectrum, because she simply convicted the appellant and directed that he come up for sentence if called upon within six months.  Mr Gotlieb contends that the Judge ought not to have found Mr S   guilty at all.

[19]     I  accept  Mr  Flanagan’s  submission  that  there  was  ample  evidence  from Ms Zackey to support the conclusion that Mr S  ’s threat was intended to be taken seriously and was received in that way.  For example:

He threatened to beat Mike to a pulp and at this time he would not stop.  He has threatened to hurt me so that Mike Padfield can feel the pain that he has felt … I have no doubt in my mind that – he would and he could do it and he has done it before in my presence.

[20]     A little later, speaking of her relationship with the appellant and the making of previous threats, she said:

They’re all threatening to do bodily harm to – mainly to Mike Padfield, he has an aggressive hate for Mike as my partner, and he – he has no fear of what happens if he does that.   He has no fear he’s commented to all the children that he doesn’t – he doesn’t – he is not worried about the consequences and he has repeated that to myself on this very occasion and he has repeated it to my daughter on this very occasion.  And they are to do grievous bodily harm, they are not to - …

[21]     Later, in cross-examination she continued:

Q.   Okay.   Now what I’m saying is that was the time it was said, then following that you have a series of times where he was trying to get hold to talk to your son, but that’s the conversation the subject of this charge.  Not what you think might happen, it’s what was said? … And it was said.

Yep, that’s right… And it was seriously said with the intention.

Because you agree your ex-husband loves rugby and loved watching your son play rugby?…   That is not grounds for threatening to hurt somebody.  I’m sorry I had lived with these threats for 23 years.  I have lived with threats like this and he is capable of doing exactly what he threatens.

[22]     And a little later still, also in cross-examination, the following exchange ensued:

A.    …I am harassed by a man who will not stop to threaten and I have seen him lay into Mike Padfield.  I had to pull him off him.  I am afraid – crap Neill is that what you say?  I had to pull him off Mike Padfield so it is not about being threatened, it is not about being annoyed, it is about being fearful.  It is about living every day not knowing what he’s going to do and what he’s plotting to do and that is the truth of the matter.

Q.   Right.  Well - …  It’s not about annoyance sir.

Have  you  discussed  this  with  Mr  Padfield  before  you  went  to  the police? … Did I discuss it with Mr Padfield?

Mmm… I had to alert Mr Padfield.  We have a safety plan in our home. We double lock doors, we know that when there’s a threat we have to notify each other, okay.  We have a safety plan.  How many people live with a safety plan?

You see you said to the police ‘I didn’t see Neill at the rugby game, if he’d turned up he would probably (sic) physically assaulted Mike’… Correct, because I have seen him being in a room with Mike where he pushed the man into a back cement corner and he slammed into him until I eventually was able to pull that man off my partner.  Yes, if he’s in the same room as Mike and his temper is flaring he probably would smash Mike.  He is the father of my four children.  I don’t enjoy sitting here saying this about him and I wished to hell he would move on.  It’s really hard.  It’s not fair.

[23]     In my view there was ample evidence upon which the Judge could, if she saw fit, determine both that the appellant intended his threat to be taken seriously and that it was so taken.  The impression made by the witnesses as they gave their evidence is, of course, very much the domain of the trial Judge.  In a case like this, although an appellate Court retains the jurisdiction to differ from a trial Judge on issues of credibility  and  reliability,  nevertheless  it  will  be  slow  to  do  so  where  there  is evidence to support the trial Judge’s findings.

[24]     Ms  Zackey’s  evidence,  plainly  accepted  by  the  Judge,  recounted  her somewhat fractious relationship with the appellant, the making of previous threats, altercations between the appellant and Mr Padfield, the appellant’s somewhat explosive personality (at least in relation to Mr Padfield), and the vast disparity in size between the two of them.  All of those factors would have been relevant to the Judge’s determination that this charge had been proved beyond reasonable doubt. The factors upon which Mr Gotlieb relied would no doubt have been taken into account by Judge Henwood, but are not in my opinion of such weight, even in combination, as to suggest that the Judge’s decision to convict the appellant was not open to her.

[25]     Having seen and heard Mr S   and Ms Zackey as they gave their evidence in chief and were cross-examined, Judge Henwood had a crucial advantage over any appellate Court.  Having read the notes of evidence I am unable to conclude that her decision was wrong.

Result

[26]     For the foregoing reasons the appeal is dismissed.

C J Allan J