S v Police HC Timaru Cri-2007-476-5

[2007] NZHC 253

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2007-476-000005

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 March 2007

Counsel:         Appellant In Person

A R McGougan for Respondent

Judgment:      3 April 2007

JUDGMENT OF PANCKHURST J

An appeal against conviction

[1]      The appellant was convicted in the District Court at Timaru upon a charge of assault laid pursuant to s9 of the Summary Proceedings Act 1981.   This appeal against that conviction is framed with reference to three issues being non-disclosure of relevant information by the police, the improper amendment of an information (which is said to have prejudiced the appellant) and a breach of s25(e) and (f) of the New Zealand Bill of Rights Act 1990, in that Mr S   maintains that he was prevented from presenting a defence because his right to cross-examine prosecution

witnesses was improperly curtailed.

S V NZ POLICE HC TIM CRI-2007-476-000005  3 April 2007

[2]      In order to appreciate these grounds of appeal it is best to first describe the nature of the prosecution case and detail the course of the hearing itself.

Prosecution case

[3]      At  the  outset  Mr  S    faced  both  a  charge  of  assault  and  one  of threatening to injure the complainant knowing his conduct was likely to intimidate, this being a further charge against the Summary Offences Act.  The complainant was Mr Raymond Hart.  Mr S   represented himself both in the District Court and in this Court.

[4]      There was, as Judge Doherty put it, bad blood between Mr S   and Mr Hart.  Mr Hart had been in a domestic relationship with a woman until late 2005. Following  their  separation  he  believed  that  Mr  S    and  his  former  partner entered into an intimate relationship.

[5]      The incident giving rise to the charges occurred in the waiting area outside the Timaru Family Court.  Mr Hart was seeking a contact order in relation to a child of his former relationship.   He said that Mr S   entered the waiting room, approached him, uttered some threatening words and physically assaulted him by raising a clenched fist to about shoulder height and making as if to punch him in the face.   However, there was no punch.   The charge, therefore, was based on the extended definition of an assault.

[6]      In defending himself Mr S   asked numerous questions of Mr Hart concerning the relationship background.   He wished to not only draw out that background, but also explore post separation incidents which had occurred between Mr Hart and his ex partner and cover what occurred in the Family Court in the aftermath of the waiting room incident.  While Judge Doherty allowed Mr S   considerable leeway, on several occasions he stopped cross-examination on the grounds that it was irrelevant, or collateral, and of no assistance to his determination of the charges.

[7]      At the conclusion of the prosecution case Mr S   elected not to give or call evidence.  Judge Doherty gave an immediate oral decision.  He found the assault charge established, but dismissed the associated intimidation charge upon the basis that he was not satisfied that the evidence proved that Mr Hart was intimidated.

[8]      In sentencing the appellant the Judge said this:

[2]     I have clearly got the impression throughout this hearing that there is bad blood between you and Mr Hart, the complainant, for reasons, some of which I heard, but there is no evidence that I would be satisfied with which would lead me to the belief that you had intentionally come there to do anything like this.   It was a matter of happen stance and you got carried away with yourself. The independent evidence confirmed that to me.

[3]     You have not been before the Courts for 10 years or more.  This was bad conduct in a public place, in a place adjacent to a Courtroom, and it should not have happened.

He convicted Mr S   and fined him $500 together with court costs.

The Judge’s reasons for finding the assault proved

[9]      In his oral decision Judge Doherty reviewed Mr Hart’s evidence, as I have done.   He then referred to the evidence of two solicitors who were awaiting the hearing of the same case in which Mr Hart was involved.

[10]     With reference to the evidence of these two witnesses the Judge said this:

[8]     There were independent witnesses – two local solicitors were also in the waiting room and observed some or all of the exchange.

[9]     Mrs Rotherham was there for a case which involved the family of Mr Hart.   Mr List was another lawyer who was in the same position.   He represented Mr Hart’s child.

[10]   Mrs Rotherham’s evidence corroborated that of Mr Hart, namely that Mr Saunders was standing over him, she was about 4½ metres away, had a clear view, and that Mr S   raised his fist.  She demonstrated it as being the right hand, the same hand as Mr Hart had demonstrated.

[11]   She had the clear impression that Mr S   was going to punch the complainant.  That impression was borne out by her observation to Mr List that perhaps the police could be called.

[12]   Her observation of the punch or the confrontation with the punch was relatively short, about three seconds.   She did not hear any words spoken

between the two, but did observe that words were spoken by each of them, including Mr Hart back to Mr S  .

[13]   Mr List was not originally looking at the confrontation.  He heard a commotion and as a result of that turned his head and looked back over his shoulder for some three or four seconds.  He observed Mr S   leaning towards Mr Hart.   He confirmed the positions that Mr Hart was sitting, Mr S   standing.  He described the positions of the two as Mr S   being “in the face” of Mr Hart, and expanded that by saying he was standing over him in a threatening manner.

[14]   Both witnesses were in close proximity and in a position to clearly see.  Both had the impression that there was going to be violence.  Mr List in particular said that Mr Hart remained sitting still and his observation was that he looked frightened.

[11]     The Judge accepted the evidence of all three witnesses and, in light of their evidence, concluded that the charge of assault was proved.   However, he then proceeded to dismiss the intimidation charge.

An amendment to one information

[12]     This   ground   of   appeal   is   misconceived.      The   information   alleging intimidation was amended, by substitution of the correct  offence section  for  an incorrect reference which had originally appeared in the charge.  However, since this information was dismissed on the merits, nothing turns on the amendment.  I need say nothing more about it.

Non-disclosure of two police files

[13]     Prior to the defended hearing on 25 January 2007 Mr S   sought access to two police files.   This was declined, the decliniture being conveyed to him by letter dated 10 days prior to the fixture.   At the hearing itself Mr S   did not dispute the non-disclosure.  He did so, however, in the notice of appeal to this Court.

[14]     Ms McGougan has reviewed the files in preparing for the present appeal. Both concerned incidents between Mr Hart and his former partner, but neither contained any reference to Mr S  .   For example, one of the files concerned cross-allegations of dangerous driving made by Mr Hart and his former partner relating to an occasion when they had encountered one another on the roadway.  The

police had determined that it was not possible to ascertain the true version of events and both parties were warned, but a prosecution did not result.

[15]     Disclosure of information held by the police is not an unfettered right.  The touchstone of the duty to disclose is relevance: Police v Keogh [2000] 1 NZLR 736 (HC). I do not consider that the files were discoverable. At most, they contained background information pertaining to the relationship breakdown between Mr Hart and his partner.

[16]     Mr S   was accorded considerable leeway by the Judge in relation to that background.  Certainly, there can be no question but that the Judge appreciated there was “bad blood” between the defendant and the complainant, and hence that Mr Hart had a motive to misrepresent what actually occurred in the waiting room.  However, the Judge also had the comfort of evidence from two independent witnesses whose evidence he accepted.

[17]     The non-disclosure ground of appeal fails.

An unfair hearing?

[18]     Mr Hart’s final ground of appeal was that he was not afforded a fair hearing because the Judge improperly curtailed his cross-examination of the complainant.

[19]     I do not accept this argument.  A reading of the notes of evidence indicates the opposite – that Mr S   was given considerable leeway in relation to his cross-examination  of  the  complainant.    Although  the  Judge  did  intervene  on  a number  of  occasions  and  stopped  further  questioning,  he  only  did  so  when Mr S   had already had a fair crack at the whip.

[20]     This was a simple case.   It concerned whether there had been a deliberate threatening action constituting an assault in the waiting room area.  Once the Judge had a picture of the background to the allegation, the involvement of the two protagonists with the same woman, there was no need for that relationship background to be explored in any great detail.

[21]     I am in no doubt that Mr S   received a fair hearing.  He was extended every opportunity to present his defence.  He failed and was convicted, not because the hearing was unfair, but because the evidence was overwhelming.

[22]     The appeal is dismissed.

Solicitors:

Appellant – Mr Charles S S  , 140 Pareora River Road, Springbrook, Timaru 8621. Gresson Dorman & Co, Timaru for Respondent