S v Police HC Rotorua CRI 2006-470-5

[2006] NZHC 399

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-470-000005

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 April 2006

Appearances: The appellant in person

S E Simmers for the respondent

Judgment:      24 April 2006

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

S E Simmers, Crown Solicitor, P O Box 13063, Tauranga

Copy to:

N S  , 880 Whakamarama Road, Tauranga

S V NZ POLICE HC ROT CRI 2006-470-000005  24 April 2006

[1]      This appeal challenges both a conviction and the ensuing sentence of Ingram DCJ.  After a defended hearing in the Tauranga District Court on 19 December 2005, the  appellant  was  convicted  of  assault.    The  charge  was  laid  under  s9  of  the Summary Offences Act 1981.   The Judge imposed a $1,000 fine and ordered the appellant to pay court costs of $130.

[2]      The appellant at all relevant stages has acted for herself.  She is Russian born but has lived in New Zealand for approximately the last 10 years and has New Zealand citizenship.  This was her first offence.

[3]      At the defended hearing, the circumstances of which I shall detail shortly, the Judge heard four witnesses.   Two of those witnesses were civilian witnesses. The other two were police witnesses who gave brief formal evidence.

[4]      The  appellant  herself  gave  evidence  and  called  in  her  defence  her  two children who were present at the relevant time.

[5]      The background to the offence needs a little explanation.  It is clear that an argument took place between the appellant and the complainant at a farm gate on or about 31st May 2005 in the morning.  The appellant had opened that gate so that she could proceed down a common driveway to the highway where her two teenage children were expecting to catch the school bus.

[6]      The complainant Ms A M Hall, had on her evidence, only been resident in her  property for  approximately two  days.    The  opening  of  the  gate  apparently allowed a cow or bull to go out on to the wrong side of the gate.   The altercation which took place between the complainant and the appellant seems to have been related to the obligation or otherwise to shut gates, whether or not the appellant should be allowed to proceed in her vehicle before the gate was shut, and matters of that sort.   The encounter had started by the complainant standing in front of the appellant’s 4WD vehicle, thus blocking the driveway.

[7]      I accept and it is clear from some of the evidence that the driveway along which the appellant was travelling that morning has some history to it.  The appellant

told me this afternoon that the property which she owns is landlocked as a result of some  possible  error  at  the  time  of  the  original  subdivision.    The  appellant  is apparently acting for herself in terms of seeking the appropriate relief under the Property Law Act 1952.

[8]      The Judge was faced with a clear conflict of evidence.  The evidence of the complainant was that during the altercation she was pushed by the appellant, fell to the ground, and grazed her left knee.  The evidence of the appellant and her children, however, was that there was no pushing and that the complainant’s fall to the ground was a staged event for which the appellant had no responsibility at all.

[9]      The Judge delivered an oral decision at the conclusion of the hearing.   He chose to rely on the evidence of Ms Hall and Mr Fraser who was an independent witness.  Although photographic evidence suggests that the complainant also had a large bruise to the inside of her right thigh, the Judge correctly so, in my view, was not prepared to hold that there had been any deliberate assault on the complainant with the appellant’s motor vehicle.

[10]     The Judge concluded that he was satisfied the prosecutor had proved the required intentional touching beyond reasonable doubt, that such touching was not accidental, and that  he is satisfied that the complainant  had  been pushed  to the ground.

[11]     Dealing with the appeal against conviction, the appellant has filed some 28 points on appeal.   Many of these regrettably, although I am sure well intentioned, have no relevance whatsoever.   By way of example and possibly one of the appellant’s  stronger  points  of  a  technical  nature,  she  alleges  that  the  Tauranga District Court Registrar is in breach of the mandatory obligation under s117(2)(c) of the Summary Proceedings Act 1957 in as much as a certified copy of the appellant’s conviction  has  not  been  forwarded to this Court.    This  and  a  number  of other procedural points were raised by the appellant.

[12]     She argued additionally that the information with which she was served was invalid because the informant, a Constable K M Robson, was not present in court.

This the appellant asserted, was a breach of s15 of the Summary Proceedings Act

1957.  She also, at a more fanciful level, endeavoured to argue that the conviction was unsafe first, because the Judge had chosen to believe the evidence of one single witness and that therefore the provisions of ss110 to 112 of the Crimes Act 1961 were breached, and that because the complainant’s evidence was perjury, more than one witness should  have  been  forthcoming.    She similarly argued  that  unsworn statements of other police officers were covered by the provisions of s366 of the Crimes Act 1961.

[13]     As  I  have  endeavoured,  with  some  patience  I  hope,  to  explain  to  the appellant, a number of the points she has raised really have no legal validity whatsoever.  The appellant, however, chooses to continue to act for herself.  She has pointedly observed to me that if I dismiss this appeal she will take the matter to the Court of Appeal.  Whether she chooses to seek leave or not is entirely a matter for her.

[14]     I do, however, urge the appellant to seek legal advice.   Had she chosen to seek legal advice shortly after she received the information under  the Summary Proceedings Act 1957 the outcome of this case might have been somewhat different. The appellant, however, has persisted in acting for herself.  She initially challenged the suitability of the interpreter who was provided by this Court, at her request, because  the  interpreter  was  the  same  person  who  fulfilled  that  function  in  the defended 19 December 2005 hearing.  I have found the interpreter of some assistance although I note that the appellant, when it suits her, will speak in Russian or English interchangeably.

[15]     As I explained to the appellant the central issue for this court on appeal is whether the various credibility findings made by the Judge are safe findings and/or whether there is some discernible error.  I have read with care the transcript of the defended hearing.  I have also read the Judge’s decision.  Although I can understand that from her subjective viewpoint the appellant might be concerned the Judge chose to prefer the prosecution witnesses rather than her own evidence, that is precisely what the Judge did on the evidence before him.  Such a finding was clearly open to him.

[16]     The attack mounted by the appellant on the conviction however ranges even more widely than that.   In essence she says that the entire conviction stems from improper conduct on the part of the police.   She tells me from the bar that the prosecutor on 19 December 2005, a Sergeant B Woon, sometime in 2004, came to the appellant’s property and, in some exchange over problems relating to the gate to which I have referred, threatened that the appellant might well be in prison for five years.   It is the appellant’s clear belief that the police have orchestrated this prosecution and that the complainant’s evidence is a total fabrication.   I note in passing that these serious allegations were not put to the complainant when she was being  cross-examined  by  the  appellant  on  19  December.  Certainly  there  is  no evidence that I can see which would come anywhere close to justifying the serious charge of improper conduct which the appellant is now making against the police.

[17]      The appellant in addition to the points I have already raised states that the summons was served on her invalidly.  She says she received inadequate legal advice at the status hearing.  She says that throughout the hearing nobody really understood her and because of language difficulties some of the points she was trying to make to the Judge were imperfectly understood by him.   None of these matters, which the appellant chose to present at various stages in a scatter-gun way, strike me as invalidating the hearing.  It was her inability to attack Sergeant Woon which seemed to concern the appellant most.  But the sergeant was not a witness.

[18]     For all these reasons and on the face of both the transcript of the proceedings and the Judge’s decision itself I can see no error in the conviction.   The appeal against conviction is therefore dismissed.

[19]     The appellant is on stronger grounds, however, so far as her appeal against sentence is concerned.  Having in paragraph [7] of his decision held the charge to be proved, the Judge in the next paragraph and on the face of the record without more said:

Ms S   you may not take the law into your own hands.  You will be convicted and fined $1,000 and ordered to pay court costs of $130.

[20]     The appellant tells me again this afternoon that her recollection was there was some discussion between herself and the Judge as to an appropriate penalty.   The nature of that discussion, however, would assume some importance in my eyes if it indeed occurred.  It would seem that the appellant was the bread winner for the entire family.   Her husband, who was a qualified doctor in the Russian Republic, is unemployed in New Zealand.  The appellant tells me she is currently employed as a care-giver for the elderly in a rest home.

[21]     Ms Simmers responsibly volunteered to me that given the range of penalties involved, with a maximum fine of $4,000 and a six month term of imprisonment, and  given the  nature of the  assault  and  its  circumstances,  a  $1,000  fine  seems somewhat on the high side.

[22]     I have concerns about the quantum of the fine.  Ms Simmers endeavoured to obtain instructions as to whether there was any submissions on sentence.   I do not want to be critical of the Judge if in fact there was some dialogue between him and the appellant on sentencing.  If there was such a dialogue, however, its nature is not apparent from the documents forwarded by the Tauranga District Court.  Because the police officers concerned are on leave, Ms Simmers has not been able to obtain instructions and was not able to ascertain the position before coming to court today.

[23]     I  regard  the  fine  as  being  manifestly  excessive  in  the  circumstances. Although the appellant has not made any extensive submissions on the issue of the fine I consider it appropriate on appeal to interfere with it.

[24]     Accordingly the fine of $1,000 is quashed.  I substitute in its place a fine of

$350.  The order to pay $130 court costs stands. [25]           That is the decision of this court.

…………………….

Priestley J