S v Police HC Whangarei CRI 2007-088-4

[2007] NZHC 1844

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-088-0004

BETWEEN  S

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 June 2007

Appearances: C A S  , appellant in person

A L Hyndman for the respondent

Judgment:      14 June 2007

RESERVED JUDGMENT OF PRIESTLEY J (Appeal against conviction)

This judgment was delivered by me on 14 June 2007 at 4.00p.m., pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: …………………………

Solicitors:
A L Hyndman, Crown Solicitor, P O Box 146, Whangarei
Copy to:

C A S  , 591 Bickerstaffe Road, Maungaturoto

S V NZ POLICE HC WHA CRI 2007-088-0004  14 June 2007

Background

[1]      At the conclusion of a defended hearing the appellant was convicted by Judge J P Clapham in the Whangarei District Court on 15 December 2006 of intentionally damaging a window.  The charge was laid under s 11(1)(a) of the Summary Offences Act 1981.

[2]      The appellant was fined $300.  He was ordered to pay court costs of $130 and a $50 reparation sentence to be paid to the complainant, the window’s owner.

[3]      The appellant represented himself in the District Court.  He also represented himself on the appeal.   At the time of the offending he was aged 40.   Until the conclusion of the District Court hearing he had no previous convictions.   He is a potter.

[4]      It is apparent from the District Court transcript and also from comments which he made during the appeal hearing that the appellant is outraged at the result. He regards himself as being innocent.  Such was his outrage that the appellant was asked by the Judge five times to make submissions on penalty.  He refused to do so and was ordered to leave the court room because of his interruptions and contemptuous behaviour.

[5]      The appellant struck me as being an intelligent man.  He is well spoken.  His intelligence, however, does not well equip him to deal with courtroom situations. Furthermore he had a certain arrogance which blinds him to the fact that he lacks the forensic objectivity to defend himself.

[6]      At trial the appellant faced two charges.   In addition to the wilful damage charge he was charged with having assaulted the complainant with a spade.   The alleged offending arose out of a fracas which developed on rural land near Maungaturoto in June 2006.  Clearly there was a history between the appellant and the complainant.

[7]      For reasons which are not apparent but which seem to be related to time constraints, the Judge allowed all witnesses to read from prepared briefs.  They were then cross-examined. The Judge faced credibility issues.

[8]      The complainant’s evidence was that he and the appellant shared the same driveway.  There was a dispute over the complainant’s use of that driveway which the appellant had just repaired.  The complainant’s evidence was that the appellant became aggressive and advanced towards him with a spade.  The complainant had resort to a stick.

[9]      There is no need to relate the details of the ensuing fracas.  At the conclusion of the evidence the Judge, so far as the assault with a weapon charge was concerned, found that if there had indeed been a blow with the spade to the complainant causing a discernible injury, that blow was related to posturing, was accidental, and unintentional.  Accordingly the more serious charge was dismissed.

[10]     On the wilful damage charge the conflicting evidence was first that of the complainant.   He stated in his brief the appellant put the spade through the door window of a shed smashing it.  The small shed adjoined a dilapidated house-bus in which the complainant lived.

[11]     When the appellant gave evidence he was asked whether he had put the spade through the window.  He replied “no”.  The appellant was then asked by the Judge whether he was asking the Court to infer the complainant had broken the window himself.     The  appellant  declined  to  speculate  and  commented  that  he  had experienced window breaking in the wind or that the complainant could have been in conflict with someone else.  Questions and answers between the appellant and the Judge on the topic seemed to have petered out at that point.

[12]     It is clear from the transcript that the appellant mistakenly and ill-advisedly spent much time cross-examining the complainant on past discord and the complainant’s reputation.   There was no focused cross-examination on the complainant’s assertion that the appellant had deliberately broken the window.

[13]     Having acquitted the appellant on the more serious assault charge the Judge dealt with the wilful damage charge this way:

[12]      In respect of the window within the door itself.   In my view, that flows from the pursuit of Mr Booker by Mr S   pursuant to him pursuing his invitations to pursue the original exchange and in my view, the damage to  the  window  was  intentional  and  it  was  directed  at  him pursuing  his perceived cause of upset, and that charge is proved to the requisite standard which is beyond reasonable doubt.

[14]     The appellant’s written submissions are limited to a letter which he wrote to the court received on 23 May 2007.  The appellant observed there were 24 errors in the transcript and that the Judge had wrongly found that the appellant had climbed on to the roof of the complainant’s bus (in that regard the appellant is correct, the evidence before the Judge was it was the complainant who had climbed on to the roof).  The appellant also complained that the Judge had hurried through the process because he wanted to attend an office party and did not appear to be listening.

[15]     In oral submissions at the appeal hearing the appellant asserted that, although there is no evidence before the Judge on this aspect, he was convinced the window had not been broken on the day of the fracas.   He accepted that there were photographs of the broken window but suggested that the window must have been broken at a later stage.

[16]     Had the appellant not been so intemperate with the Judge, it might well have been  the  Judge  would  have  been  minded  to  discharge  the  appellant  without conviction  given  the  context  of  the   offending   and   the   appellant’s   hitherto unblemished record.  However, the appellant deliberately refused to give the Judge any assistance in that regard.  There is no appeal against sentence.  In his exchanges with me it became clear that the appellant was unhappy with the prospect of an appeal against sentence out of time which might have resulted in a more lenient sentence.  It is clearly the conviction itself which irks him.

[17]     At its core the appellant’s case is the conviction was wrongly entered.  For the respondent Ms Hyndman submitted that the Judge’s finding was open to him on the facts before him and that he was entitled to reject the appellant’s monosyllabic denial in favour of the conflicting evidence from the complainant.

[18]     The appellant only has himself to blame for the unsatisfactory manner in which he conducted his defence.   The Judge was dealing with a confused factual matrix.    The  confusion  was  not  assisted  by  the  discursive  and  undisciplined questions which the appellant asked.

[19]     That said, although Ms Hyndman is right when she submits that the Judge’s finding was open to him, I have difficulty in discerning the route whereby the Judge reached the result.   The Judge’s conclusion is to be found in the lengthy second sentence of para [12] (supra) of his decision.  That sentence, containing as it does five  forms  of  the  verb  “pursue”,  asserts  that  the  damage  to  the  window  was intentional and that the charge has been proved beyond reasonable doubt.  However, with the greatest of respect to an experienced District Court Judge, a little more is required.   The precise evidence on which the Judge relied should have been stipulated, and the demonstrable conflict between the complainant’s evidence and the appellant’s should have been resolved with brief reasons.

[20]     I thus intend to allow the appeal and to direct a retrial.  If the police decide a retrial is, in the circumstances warranted, the appellant would be well advised to engage a lawyer to represent him.   If he has evidence suggesting that the window was not broken at the relevant time, such evidence has to be called.  The appellant’s success on this appeal is totally unrelated to his forensic abilities.

Result

[21]     The appeal is allowed.

[22]     The conviction entered against the appellant in the Whangarei District Court on 15 December 2006 is quashed.

[23]     A retrial is ordered.

...........................................… Priestley J