Seiuli v Police

[2018] NZHC 369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-001

[2018] NZHC 369

BETWEEN

TONY SEIULI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 February 2018
Appearances:	R Roy for the Appellant I Ko for the Respondent
Judgment:	9 March 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on 9 March 2018 at 3.00 pm Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:

R Roy, Public Defence Service, Manukau I Ko, Kayes Fletcher Walker, Manukau

SEIULI v NEW ZEALAND POLICE [2018] NZHC 369 [9 March 2018]

Introduction

[1]    On 12 December 2017 Mr Seiuli was convicted of doing an indecent act in a public place.1 He was sentenced to six months’ supervision. He now appeals his conviction.

Background and District Court decision

[2]    Before the District Court, the complainant alleged that while driving in the left lane of two lanes on Flatbush Road, Ormiston with her four year old daughter, Mr Seiuli, with whom she was unacquainted, drove his vehicle alongside her tooting, waving and otherwise trying to gain attention and that when he pulled up next door to her at the intersection of Ormiston Road and Te Irangi Drive this continued. At that point she looked across at the defendant who she said took his hands off the steering wheel, lent back in his seat and started masturbating his semi-erect penis while looking at her and smiling.

[3]    The defendant’s case was that he had not attempted to gain the complainant’s attention and that although he did have his penis outside his trousers and was handling it, this was on account of itchiness resulting from a fungal infection (thrush) and that, in any event, he believed that neither the complainant nor anyone else was in a position to see it because, among other things, the centre armrest in his vehicle (which in the upright position forms the back of a third front seat) was in the down position and because of his car’s relatively high “waistline”. His defence was therefore twofold: that he had not wilfully committed an indecent act and that, in any event, he had established, for the purposes of the defence identified in s 125(2) of the Crimes Act 1961 (the Act), reasonable grounds for believing he would not be observed.

[4]    In a reserved decision, Judge Lovell-Smith reviewed at length the respective contentions and identified the credibility of the parties as the critical issue. She found the complainant a reliable and careful witness and, by contrast, that she was “not impressed” by the defendant’s evidence and did not accept what he said.2 She

1      Crimes Act 1961, s 125.

2      His evidence included a stated belief that he did not think anyone would see him although he did acknowledge it was “not impossible” if such person was “high enough” as for example seated in a truck or bus.

considered it established beyond reasonable doubt that the defendant was stroking his penis outside his trousers, that the complainant had a clear and unobstructed view of this and that the defendant was at relevant times smiling and waving and signalling at her in an attempt deliberately to gain her attention. On that basis, she held that the defendant had not proved that he had reasonable grounds for believing that he would not be observed. She also dismissed the defendant’s claim that he had thrush as “unsubstantiated”. She sentenced him to six months’ supervision with a condition to undertake any counselling necessary to address the causes of his offending.

Grounds of Appeal

[5]    Mr Seiuli appeals his conviction on the basis that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred. Mr Seiuli asserts the following errors:

(a)Her Honour erred in applying a subjective test to whether Mr Seiuli had reasonable grounds for believing he would not be observed.

(b)She erroneously declined an application for a view of the vehicles under s 82 of the Evidence Act 2006 when she was in no position to judge the probative value of the view.

(c)She did not correctly assess a number of factors that point cumulatively toward an objective and credible basis for Mr Seiuli believing he would not be observed.

(d)She erred in her assessment  of  the  medical  evidence  relating  to  Mr Seiuli’s alleged thrush condition.

Appellant’s submissions

[6]    Mr Seiuli’s appeal focuses principally on application of the s 125(2) defence. Although there was no challenge to the Judge’s key credibility findings, Mr Roy submitted that whether the defendant had reasonable grounds for believing he would not be observed was to be determined on an objective assessment of the circumstances

at the time. Although in his written submission he suggested that it was irrelevant whether by gestures and facial expression Mr Seiuli demonstrated a belief he was being observed, he did not maintain that position in oral argument. Rather, Mr Roy submitted that:

(a)although such evidence was relevant to the assessment of belief and reasonableness of belief, it was not decisive;

(b)it was logically possible for a person to be trying to draw attention to themselves but nevertheless believe that their otherwise indecent conduct was incapable of being observed; and

(c)the District Court Judge failed to assess other relevant evidence in terms of the respective heights of the cars and seating positions; the “waistline” of the defendant’s vehicle, the height of the complainant, the distance between the vehicles and the fact that Mr Seiuli said the third seat/armrest had been folded down.

[7]    He submitted also that the Judge was wrong in rejecting Mr Seiuli’s evidence about having thrush which he says was uncontroverted and did not require corroboration.

[8]    Finally, he says that the Judge erred in declining a view of the respective vehicles because in so doing she deprived herself of a readily available means of making an objective assessment of the s 125(2) defence. This was not, however, an argument at the forefront of his oral submissions.

Respondent’s submissions

[9]    The Police submit that against the Judge’s unchallenged credibility findings in relation to Mr Seiuli’s facial expressions and attention seeking behaviour, the finding of fact that the complainant’s vehicle (a Toyota “people mover”) was “substantially higher” than the defendant’s five door Honda hatchback, and the clear line of sight which the Judge accepted the complainant had of the defendant’s semi-tumescent

penis, the appellant’s submissions in respect of the so-called “objective” evidence were an invitation to consider the case “in the abstract”.

[10]   Mr Ko, therefore submitted that the Judge was correct in concluding that the  s 125(2) defence had not been proven.3

[11]   In respect of the defendant’s claim to have thrush, he said the Judge was entitled to place little weight on the unsubstantiated claim and that such must be seen in the context of her general rejection of his evidence as “unimpressive”.

[12]   He further submitted that the Judge was entitled to decline a view of the vehicles on the grounds that there was no relevant probative value. He says that as the Judge herself recorded, she had a number of photographs of the respective vehicles on the basis of which an assessment of the key issues could be made.

[13]   Accordingly, Mr Ko submitted there was no error in the Judge’s decision giving rise to a real risk that the outcome of the trial was affected.

Appeal against conviction

Approach on appeal

[14]   Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge alone trial.

[15]   Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”:

232     First appeal court to determine appeal

3      At the hearing both the appellant and the Police accepted that proof in terms of s 125(2) required that the defendant establish the defence on a balance of probabilities basis. See Robertson v Police [1957] NZLR 1193 and 1194; and R v Hansen (2005) 22 CRNZ 83. The appellant’s written submissions, had, contrary to the wording of s 125(2), asserted that no such proof was necessary.

(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a)in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or

(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)in any case, a miscarriage of justice has occurred for any reason.

(3)The first appeal court must dismiss a first appeal under this subpart in any other case.

(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[16]   As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.4   The error or irregularity must lead to either  of the consequences listed in    s 232(4)(a) or (b). The Court of Appeal has recently confirmed that s 232 does not change the approach to appeals against conviction. The tests that applied prior to the enactment of the Criminal Procedure Act continue to apply.5

[17]   A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”6 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe”, only that there is a real possibility the verdict would be unsafe.7

4      “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].

5      Wiley v R [2016] NZCA 28.

6      R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.

7 At [110].

[18]   An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.8 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.9 Courts have held that an unfair trial can also exist when a defect in the trial causes an unacceptable appearance of unfairness without actual prejudice to the defendant.10

[19]   Unfairness does not necessarily give rise to a nullity,11 there has to be some fundamental procedural error. Examples of such a fundamental error include: a conviction where a court lacks jurisdiction,12 or where the charge fails to disclose a criminal offence.13

Discussion

The s 125(2) defence

[20]Section 125(2) is in the following terms:

(2)It is a defence to a charge under this section if the person charged  proves that he or she had reasonable grounds for believing that he or she would not be observed.

[21]   What must be “proved”14 is firstly that the accused believed he would not be observed, and secondly that there were reasonable grounds for that belief. The defence is in that sense similar to that considered in Rex v Perry and Pledger which concerned s 208(2) of the former Crimes Act 1908.15 That section provided that it was a defence

8      Condon v R [2006] NZSC 62 at [78].

9      Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the Supreme Court in Condon v R, [2006] NZSC 62 at [38].

10 See James v R [2011] NZCA 219 [2012] 1 NZLR 353 at [29], where the failure to address the juror’s capacity meant that there was a risk of a miscarriage of justice even though the verdict would have stood if the juror had been discharged.

11     Jago v The District Court of New South Wales (1989) 168 CLR 23 (HCA) at 57 per Deane J, cited by the Supreme Court in Condon v R [2006] NZSC 62 at [77].

12     R v O (No 2) [1999] 1 NZLR 326 (CA).

13     R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338.

14 Both appellant and respondent accept that the standard of proof engaged is the balance of probabilities as established in Robertson v Police [1957] 1 NZLR 1193 at 1194 and R v Hansen (2005) 22 CRNZ 83.

15     Rex v Perry and Pledger [1920] NZLR 21.

to a charge of indecent assault on a girl under 16 if the defendant had “reasonable cause to believe that she was over that age”. The Court held that “both the belief of the accused as to the age of the girl in such cases and reasonable cause for such belief must be established by some legal evidence”.

[22]   In assessing whether a stated belief is adequately proven the Court can only look to all the surrounding circumstances. It cannot otherwise divine what was in the defendant’s mind at the time. It must then consider whether the reasonableness of that belief has been adequately demonstrated, having regard to, for example, the location in which the allegedly indecent act occurred, potential lines of sight by members of the public and related considerations.

[23]   In the present case, Her Honour’s rejection of the defence was premised on the fact that she accepted the complainant had a clear line of sight of the defendant’s penis, and she accepted the complainant’s evidence about the defendant smiling while she observed his actions. She also accepted that the defendant had, for a continuous period, endeavoured to draw attention to himself with gesticulations and by sounding the horn of his car.

[24]   Although Her Honour also made a finding that the complainant’s vehicle was substantially higher than the defendant’s, Mr Roy is correct that the judgment does not otherwise include findings about what he calls “objective factors” (distance of the two vehicles, height of complainant, waistline of defendant’s car, etcetera) that could potentially establish a reasonable belief within the terms of s 125(2).

[25]   He is also critical of the “substantially higher” finding referring to the following exchange during cross-examination of the complainant:

Q.       Your car has a high roof doesn’t it?

A.       Correct.

Q.       But the seats where you sit are the same as in a normal car aren’t they?

A.       You mean in terms of height?

Q.       Yes?

A.       I would guess so.

Q.So you’re not sitting anywhere near as high as a bus or a lorry or are you?

A.       No, no.

[26]   I do not accept that criticism given the equivocal response of the complainant “I would guess so”, and counsel’s comparison with a “bus or lorry”. The complainant’s seated position could be substantially higher than that in the defendant’s hatchback without reaching the height of the two comparatives suggested and the photographic evidence clearly demonstrated that the vehicles were respectively a high sided and substantial “people mover” (having the overall proportions of a van) and a moderately sized Japanese hatchback.

[27]   Turning then to Mr Roy’s substantive criticisms, I do not consider that there was a material risk of injustice in the way her Honour’s analysis proceeded.

[28]   I accept that as a matter of logic it may be possible for a person simultaneously to seek to draw attention to themselves but nevertheless believe on reasonable grounds that what would otherwise be an indecent act would not be observed. A person masturbating while standing behind a chest-high wall separating a private property from a public place while simultaneously gesturing with his or her other hand to members of the public may be an example. But what is significant about this example is that, ex hypothesi, the Court will not have before it, as the District Court did in this case, credible evidence by a member of the public that they observed the act in question. Such observation will simply not be possible

[29]   When evidence of observation is coupled with evidence that the defendant was seeking to draw attention to himself, some level of sexual excitement on his part and evidence that the defendant was looking and smiling at the person whose attention he was seeking, after taking his hands off the wheel, leaning back and starting to stroke his penis, I agree with counsel for the respondent that there is an “abstract” quality to any defence under s 125(2). The surrounding circumstances overwhelmingly do not support a genuine and reasonable belief in the absence of potential observation and the Judge was entitled to reject the defendant’s evidence to the contrary. Her Honour was in that sense correct that the critical issue in the case was one of credibility because

having accepted the complainant’s evidence on these key issues and having rejected that of the defendant the defence became implausible.

[30]   Although the District Court Judge does not address the “objective factors” on which the appellant relies (apart from her finding as to the respective heights of the vehicles), it is implicit in her decision that such factors did not (and in most practical examples could not) establish the defence on a balance of probabilities basis when the surrounding circumstances were as she otherwise found. Accordingly, I do not consider the defendant has established a real possibility that the verdict was unsafe as a result of failure specifically to consider and discount each of the factors relied on. Although it may have been preferable for the Judge to have stated her conclusion in terms which expressly acknowledged that, even taking those factors into account, the surrounding circumstances precluded satisfaction of the burden, I do not therefore consider any miscarriage of justice arises from her failure to do so.

The medical evidence

[31]   The Judge found the defendant’s claim to be suffering from thrush, unsubstantiated. There was no requirement for substantiation as such but, having regard to the adverse credibility findings otherwise made against the defendant, the Judge was, in my view, entitled to reject his evidence in this respect. More significantly, however, the possibility of some benign explanation for why the defendant was handling his visible penis while seated in his car in a public place is belied by his state of sexual arousal, his attention seeking behaviour and his smiling at the complainant when she observed him doing so. There is, in my view, no miscarriage of justice in the District Court Judge having concluded, on a basis beyond reasonable doubt, that the defendant was engaged in an indecent act, as opposed to innocently attending to the consequences of a fungal infection.

The Judge’s decision to decline to take a view

[32]   I do not consider there to have been any realistic prospect of a miscarriage of justice on this account. The Judge had photographic evidence of the two vehicles, sufficient, as I have observed, adequately to draw a reliable conclusion about which was the “higher” vehicle. Whether a view is undertaken by a Judge is a matter of

discretion based on an assessment of the interests of justice.16 The defendant does not establish any of the accepted grounds of appellate review of exercise of that discretion.17

Result

[33]The appeal is dismissed.

Muir J

16     Evidence Act 2006, s 82(1).

17     May v May [1982] 1 NZFLR 165 (CA).