Samatua (aka Solomona) v Police

[2020] NZHC 3175

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000291

[2020] NZHC 3175

BETWEEN

ROBERT SAMATUA (aka SOLOMONA)

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

1 December 2020

Appearances:

Appellant in person

HD Benson-Pope for Respondent

Judgment:

3 December 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 3 December 2020 at 10 am.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Manukau. Copy to: Appellant

SAMATUA (aka SOLOMONA) v POLICE [2020] NZHC 3175 [3 December 2020]

[1]    In July this year, Judge D J McNaughton found Robert Samatua guilty of possessing cannabis paraphernalia and assaulting a Police officer in the execution of duty.1 The Judge imposed no penalty, other than directing Mr Samatua to appear for sentence if called on within six months.2

[2]Mr Samatua appeals conviction. He is self-represented; legal aid was declined.

[3]    At the hearing of the appeal, Mr Samatua said he wished to pursue only the conviction on the assault charge.3 Mr Samatua said he accepted guilt on the paraphernalia charge.

[4]    Little   background   is   required.    Police   were   called   to   a   home   on 24 February 2019. They were told two brothers were arguing, and one had refused to leave. Mr Samatua was in a bedroom. Constable Felix Ellis said Mr Samatua told him to “fuck off” and turn the lights off. The officer then noticed cannabis paraphernalia.   He arrested Mr Samatua for possession of that.   The officer said   Mr Samatua pretended to be asleep, so he and Mr Samatua’s brother had to carry him to the Police car. Mr Samatua attempted to trip his brother, and once he was in the car, refused to bend his legs. The officer said as they drove away, Mr Samatua kicked him to the back of the head.

[5]Constable Hannah Park corroborated much of Constable Ellis’ account.

[6]    Mr Samatua gave evidence. He said he could not recall the incident as he was “sleeping comfortably in my bed”. He said he had been drinking heavily, and taken codeine (for a longstanding back injury).

[7]    Mr Samatua’s mother gave evidence too. She said she saw Mr Samatua being carried out the front door. She said he appeared asleep.

[8]    The Judge accepted Mr Samatua was asleep when Police arrived, and that he was intoxicated. However, the Judge concluded Mr Samatua intentionally kicked

1      Police v Samatua [2020] NZDC 14491.

2      Police v Samatua [2020] NZDC 14508.

3      Mr Samatua did not file written submissions.

Constable  Ellis,  having  woken  once  Police  arrived.  The  Judge  noted  while   Mr Samatua’s intent might have been influenced by alcohol, “it was still an intention and a deliberate act”.4

[9]    I asked Mr Samatua why I should allow his appeal in relation to the assault. He said he was asleep throughout the incident, and the Judge was wrong to find otherwise. Or in terms of the Criminal Procedure Act 2011, “the Judge erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”.5 Mr Samatua added that at the end of the hearing before Judge McNaughton, he approached Constable Ellis and apologised (even though he could not remember what happened).

[10]   This is a simple case. It was open to the Judge to accept the evidence of the officers and reject the core aspect of Mr Samatua’s account that he was asleep when he kicked the officer. The Judge said:6

[Mr Samatua] did exhibit behaviours after that which showed at least a limited degree of consciousness, firstly in telling Constable Ellis to fuck off and turn the light out. So he was at least conscious that someone was there and the light was on. As he was carried out of the house and down the steps, he did, I find, wrap his leg around his brother’s leg in the way that constable described it, which again indicates a conscious effort perhaps to frustrate what the police and his brother were doing getting him to the patrol car. The rigidity of his legs was another conscious effort to frustrate the police and it is no accident that when he lashed out with his foot, it connected with the back of Constable Ellis’ head, the officer that had arrested him. All of those acts show at least some limited consciousness and intention, and while that maybe a drunken intoxicated intention, it was still an intention and a deliberate act, and accordingly I am satisfied beyond reasonable doubt that this was an intentional assault. All of this background information is a mitigating circumstance but not a defence to the charge.

[11]   This reasoning discloses no error. As Mr Benson-Pope for the respondent observed, there was “ample evidence” to support the conclusion the assault was deliberate (rather than an involuntary act or absent criminal intent, whether through intoxication or otherwise).

4      Police v Samatua, above n 1, at [26].

5      Criminal Procedure Act 2011, s 232(2)(b).

6      Police v Samatua, above n 1, at [26].

[12]The appeal is dismissed.

……………………………..

Downs J