S v Police HC Hamilton CRI 2006-419-96

[2006] NZHC 1375

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-96

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 October 2006

Appearances: Appellant in person

C D Bean for Respondent

Judgment:      7 November 2006

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 7 November 2006 at 4pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Hamilton

S V POLICE HC HAM CRI 2006-419-96  7 November 2006

[1]      On 5 July 2006, after a summary hearing in the District Court, S   was convicted of possessing on 27 February 2006, in the early evening, an offensive weapon, a garden object similar to a spear, in circumstances showing on the face of it intent to use it in an offence involving the fear of violence. He was ordered to enter into a $500 bond to keep the peace.

[2]      On  28  July,  whether  or  not  he  entered  into  the  bond,  Mr  S   appealed his conviction and sentence. No weapon was ever found and, he contends on this appeal in person, the evidence of any weapon and that he possessed it, and with the intent called for, is inconsistent or incredible.

[3]      The case against him depended, as Mr S   says, on the evidence of his neighbour, Paul Reece and his son Mark, aged 13; and Mr S  ’s first point on this appeal is that what each says is irreconcilable and no basis for the Judge to conclude that within a very short space of time, a matter of seconds, twice that evening, he thrust a spear-like object towards Mr Reece, through the fence at their common boundary.

[4]      The falsity of Mr Reece’s complaint, Mr S   contends, is explained by the dispute in which they have been embroiled about the height of the bamboo on his  side  of  the  common  boundary.  This  dispute,  obliquely  touched  on  in  the evidence, appears to have begun when Mr and Mrs Reece had their house lifted and obtained a view of the sea across the S   property. Mr S  , it seems, to restore privacy, then allowed the bamboo until then clipped to grow naturally, taking away Mr and Mrs Reece’s view. This incident on 27 February appears not to have been the first.

[5]      Moreover, Mr S   says, Mr Reece admitted when cross-examined that he had been charged with and admitted to wilfully damaging the bamboo that evening. That admission, Mr S   says, confirms his own statement, when confronted by the police with Mr Reece’s complaint, that it was not he who committed any offence, it was Mr Reece. The Judge, however, did not take that into account.

[6]      Finally, Mr S   contends, the evidence of Mr Reece’s son, Mark, has to be open to question. Mark gave evidence of seeing the object twice more, each time from the roof of his home, once later that evening, then three days later. That evidence, Mr S   says, is incredible.

Evidence and outcome

[7]      On 27 February, in the vicinity of 8:00 pm, Mr Reece said in evidence, he was moving concrete blocks on a terrace just below the common boundary, when he first sensed, then saw, the spear-like object he describes passing within a metre of his right shoulder, angled down over shade cloth above his head.  Looking through the shade cloth and bamboo foliage, he said, he saw Mr S   withdrawing, and called out to him several times, ‘Bernie you’re mad’.

[8]      Mark Reece confirmed that he too saw what his father described. The object came twice through the centre of the shade cloth, he said, close to his father’s right shoulder. Three days after, when he and his father were working on their roof, he said, he saw the object again. It was propped against Mr S  ’s garden shed. He conceded, when cross-examined, that this is not what he had told the police when interviewed.  He had then said he had seen it two hours after the incident, as it seems towards 10 pm though he thought surely earlier, and Mr S   taking it away. His evidence became that he had seen it twice.

[9]      Constable  Morrison,  the  officer  in  charge  of  the  case,  said  that  on  28

February, the day following the incident, he took Mr Reece’s and Mark’s complaint at the Whitianga Police Station. He also saw Mr S   that afternoon and he recounted what Mr S   had told him. It is very different from Mr Reece’s complaint.

[10]     Mr S   told Constable Morrison that, near to 8 pm the night before, he became aware, when working on his own property, of someone in his boundary hedge. He suspected it was Mr Reece and asked his wife to ring the Whitianga police.  At that hour she needed to make a 111 call and he was aware the police were unlikely to respond in less than 45 minutes.  So he first went to his second property

to get a better view and saw Mr Reece on a pile of palings, hunched down. Then he went to the home of an off-duty police sergeant close by. She arranged a more rapid response. An officer, Constable Johns, arrived ten minutes later. At 8.35 pm Mr S   made his own complaint; presumably as a result of which Mr Reece was charged with and admitted to wilful damage.

[11]     Mr S   elected to give evidence, denied the offence and confirmed his statement to Constable Morrison. Mrs S   confirmed his evidence. He had asked her, she said, to call the police and she had done so. Right throughout, she said, he had been in her sight and he had acted as he said.  She had not seen him near the fence.

Decision under appeal

[12]     In her decision, given orally, the Judge began by stating the charge and describing in greater detail how Mr Reece had described the object he saw:

a knife-like silver object on the end of a long black pole … inserted into the hollow end of the … pole. … not lashed to it.

[13]     The  Judge  next  recounted  what  Mr  Reece  said  he  was  doing  at  8  pm, essentially as I have given it, and then, drawing on Mr S  ’s evidence, described the fence at the common boundary:

A fence … constructed above a wooden retaining wall … of some green mesh material, best described as plastic mesh windbreak. … similar to shade cloth or weed mat.  It is described as closely woven green plastic, and Mr S   says that it is very high quality … .  Even though it is woven, it is impossible to part the strands … It has, he says, been in place for about eight years, and   … apart from the hole, … identified in one of the photographs, there were no other holes … .   He attests to its durability, quality and strength.

[14]     Next, the Judge described what Mr Reece first sensed, then saw:

… he first of all heard a rustle in the bamboo behind the mesh fence … , and then he looked, and as he looked, he saw the implement … come through the mesh and it missed his shoulder by some inches.  It was his view that the implement was wielded by Mr S   on the other side of the mesh and the bamboo.

[15]     In this the Judge omitted to recall that she had confirmed with Mr Reece that he had seen the object come over the shade cloth, or mesh, not through it. She merged his evidence with Mark’s, the essence of which she gave next as to what he saw from the kitchen. The Judge was impressed by how ‘very clear’ Mark was.  As to Mark’s evidence that he saw the object twice more later, the Judge said this:

… (He) also says that he saw the same implement again some days later, although there is an apparent inconsistency put to him by Mr Anderson. That statement he gave appears to indicate observing the object later the same evening, at a time when it would have been dark.

[16]     The Judge then confirmed that no object of the kind described by Mr Reece and  Mark  had  been  discovered  and  recorded  that  Mr  S    denied  ever having owned or used anything like it. She recounted that Mr S   denied that he could have been where Mr Reece said he was, close to the  windbreak, because the bamboo was impassable.

[17]     The Judge noted that there was a history of ill-feeling and that she had been told that there were other criminal proceedings involving the two; and in this she appears to have been referring to Mr Reece’s concession that he had cut back the bamboo. That is as much as she said about the charge Mr Reece had admitted to, presumably because that had not been more prominent in the evidence.

[18]     What she had to be satisfied about the Judge said, and beyond reasonable doubt, was ‘that Mr S   poked the implement through the mesh and narrowly missed Mr Reece.’ And as to that there was, the Judge said, direct evidence from Mr Reece and Mark which she accepted:

… there were eye-witnesses to the implement coming through the mesh. There were two of them.  And I accept the evidence of Mr Paul Reece and his son, Mark, of what they saw.  Mr Reece says that he knows it was Mr S   who wielded the implement because he could see the colour of the shirt worn by the person wielding the implement, and he knows that Mr S   has a shirt of that colour.  He did not, as I recall his evidence, identify Mr S   directly, saying that he saw his face.

[19]     Though Mr S   denied the offence the Judge also found that his evidence was partly consistent with Mr Reece and Mark. To the extent that it was not she rejected it:

Mr S  ’s evidence was very clear about the strength of the mesh fence, and he accepted that the only way a hole could have been put in it, was if somebody made one.  He suggested that the corrugated iron which is visible in one of the photographs would have prevented the insertion of any implement.   Close examination … indicates that it would have been very easy to angle an implement to avoid hitting the corrugated iron.  It was his evidence that  the  bamboo  was  so  thick,  that no  one could  possibly get through it.  I do not find that evidence to be credible.

[20]     Ultimately the Judge concluded this:

I said that the prosecution had to establish its case beyond reasonable doubt. It is open to the Court to draw inferences from the evidence given.   The inference I draw from the evidence I have heard is that Mr S   did poke the implement alleged through the fence and because I have come to that conclusion, I find the information proven and Mr S   is convicted of the charge.

Issue on appeal

[21]     The general right of appeal is by way of rehearing, but the onus rests on Mr S   to show the decision under appeal is wrong. This Court must be astute to see that any inference taken fairly establishes the essential elements of the offence, but will be slow to differ from the Judge’s findings of credibility or inferences unless they are insupportable. That said, the duty on appeal under ss 119 and 121 of the Summary Proceedings Act is not to be shirked.

[22]     In her decision the Judge did not identify the three elements of the offence against s 202A(4)(b) with which Mr S   is charged, as to which she needed to be satisfied beyond reasonable doubt, or make related specific findings; and while it was desirable that she do so, no error resulted. Her conclusion, which is succinctly synthetic, is clear.

[23]     The  Judge  had  first  to  be  satisfied  as  to  the  existence  of  an  ‘offensive weapon’ as defined in s 202A(2), ‘any article capable of being used for causing bodily injury’. Clearly the item Mr Reece and Mark described, a knife or spike on a long shaft, if it existed, fell within that definition; and she believed their evidence. Secondly, the Judge needed to be satisfied that Mr S   possessed that item; and to conclude that he did she relied again on Mr Reece’s evidence that he had seen Mr S   withdrawing. Again, all else being equal, that was enough. Thirdly,

the Judge had to be satisfied that this was in ‘circumstances that prima facie show an intention to use it to commit an offence involving … the fear of violence’. If the Judge accepted, as she did, that Mr S   deployed the item as Mr Reece and Mark described, she was entitled to infer this.

[24]     But, as Mr S   says, no such item was ever found when Constable Morrison, as he invited him to do, searched his property on 28 February in the afternoon, the day after the offence complained of, or ever; and that throws into relief whether the Judge could safely, as she did, rely on the evidence of Mr Reece and his son to find the offence proved.

Inconsistency issues

[25]     The Judge, in concluding that the evidence of Mr Reece and his son was consistent as to when the item was twice thrust through the fence, Mr S   argues, failed to recognise that they differed as to where on the terrace Mr Reece was standing. The points they identified lay five metres apart. But that is not correct. The Judge had elicited from Mr Reece that when he saw the object he was standing a metre from the shade cloth at the point Mark identified; the hole in the cloth through which he saw the object twice emerge.

[26]     There does remain the discrepancy between Mr Reece and Mark which the Judge failed to note, as to where the object emerged; Mr Reece said above the shade cloth, Mark that it passed through the centre. And that is surprising, given that the Judge had Mr Reece confirm that the object passed over the cloth not through it. The question, however, is what effect that discrepancy would or should have made. The Judge might well have found it immaterial. Mr Reece, at close quarters, having only sensed the object the first time, might have mistaken what precisely he then saw. Mark, from a better vantage point, might have seemed more accurate and definitive.

[27]     Mr S  ’s final related point is that the object could not possibly, as the Judge found, have passed through the mesh where Mark said it did, because there the cloth abutted corrugated iron. But as he conceded in evidence, the hole was at the top of the iron, and both Mr Reece and Mark said that the object was angled down.

The Judge was also unpersuaded by Mr S  ’s evidence that the bamboo was so thick as to be impenetrable. That is not a point he has taken on appeal. Had he done so, it would have been unavailing.

Unanswered questions

[28]     Had that been all the relevant evidence actually or potentially, I would see no basis to question further the Judge’s conclusion that Mr S   committed the offence. There are, however, two aspects of the evidence that were neither fully developed, nor answered, and cause me disquiet.

[29]     The first is that the basis for Mr S  ’s denial of the offence, as I have set it out, never assumed the prominence that it required. It was and is in essence this. At 8 pm, when Mr Reece complained that Mr S   committed the offence of which he was convicted  and  against  which  his  appeal  now  lies, Mr S   contends, Mr Reece was not moving blocks on his own property. He was wilfully damaging Mr S  ’s bamboo.

[30]     Mr  S  ’s  counsel  questioned  Mr  Reece  closely  as  to  his  own account but only as he was concluding did he put, and briefly, the essence of Mr S  ’s defence. Mr Reece admitted to wilfully damaging the bamboo but appeared to say that this was later and as a ‘tit for tat’ response. Mr S  ’s counsel did not then press Mr Reece with Mr S  ’s account. Nor did he take it up with the officer in charge of the case. The effect was to leave unanswered on the evidence as a whole a question touching how comprehensive or accurate Mr Reece’s evidence was.

[31]     Secondly, while the Judge was right to say that Mark’s evidence confirmed Mr Reece’s evidence and, if accepted, was definitive, there was a whole element of Mark’s evidence, especially when contrasted with the statement he had made when interviewed, which at least puts in question how comprehensive or accurate his evidence was also.

[32]     In his evidence in chief, it will be recalled, he said that he had seen the object again, three days later, when working with Mr Reece on the roof; it was then leaning against Mr S  ’s garden shed. Then, when cross-examined on his statement when he and his father complained on 28 February, he agreed that he had first said instead that he had climbed the roof perhaps two hours after the incident, and he had seen the item against the shed and Mr S   carrying it away.

[33]     Beginning first with what he says he saw in the later evening on 27 February, these questions arise. Why at that hour of night did he go up on the roof? What was he able to see? If he saw what he said he saw, why did he not tell Mr Reece or the officer? How likely is it that three days later he would have seen the object against the shed, if two days before the constable had not found it? Why did he not tell Mr Reece? Why did Mr Reece not take it up with the police?

[34]     There is another aspect of Mark’s statement when interviewed, not before the Judge in evidence but which I have seen, in which he describes seeing Mr S   on the evening of the incident, seemingly at the time of the offence he and his father complain of, but from a point closer to the hedge. Yet that did not form part of his evidence. Nor was it put to him. Again that is complicating.

Conclusions

[35]     These unanswered questions, in retrospect and on the record, raise questions fairly or unfairly about Mr Reece’s and Mark’s credibility. Conversely, they tend to buttress Mr S  ’s evidence, and that of his wife, especially Mr Reece’s concession of his own offence. On the evidence as a whole there has to be a reasonable doubt. The conviction seems to me to be unsafe and the appeal will be allowed.

[36]     I do not see any purpose in remitting the case for rehearing. The incident happened on 27 February. The bond the Judge ordered was to deter, not punish, Mr S  . Should there be any further offending, that can be answered as and when  it  happens.  The  conviction  will  be  set  aside,  as  will  be  the  order  of  Mr

S   to enter into a bond and pay witnesses expenses.

P.J. Keane  J