Somerville v Police
[2015] NZHC 771
•20 April 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000005 [2015] NZHC 771
CAROL TUI SOMERVILLE
v
NEW ZEALAND POLICE
Hearing: 16 April 2015 Appearances:
Appellant in person
N A Pointer for CrownJudgment:
20 April 2015
JUDGMENT OF DUNNINGHAM J
[1] The appellant, Ms Somerville, is aggrieved that she was convicted for assault when she was found to have spat at one of two boys in The Colombo mall at Christchurch. She appeals both her conviction and sentence.
[2] The grounds of appeal are not drafted with precision. However, in summary, she alleges that she did not receive full disclosure under the Criminal Procedure Act 2011 and, because there was no pre-trial exchange of information, she could not properly prepare a case against the complaint.
[3] It also transpired, during the hearing, that she challenged the factual finding of assault because:
(a) there was no injury to the complainant; and
SOMERVILLE v NEW ZEALAND POLICE [2015] NZHC 771 [20 April 2015]
(b)evidence could have been obtained from other witnesses, and from another camera in the mall which she considers would have contradicted the evidence relied on to find that she spat at one of the boys.
[4] As these further points were referenced in the details of her appeal, albeit not in the grounds of appeal, I will address them as if they have been identified as grounds of appeal.
The District Court decision
[5] The full facts of the case are recounted in the District Court decision. In summary, the teenage complainant and his friend live in the same area of Christchurch as the appellant and on the day in question they travelled on the same bus to The Colombo Mall (the Mall). For some reason, she took offence at something the boys said or did before they got to the Mall and she acknowledges that at the Mall she began to yell at the complainant. What she disputes is whether she then spat directly at the complainant resulting in spittle hitting him on the face and upper chest area.
[6] A painter working in the Mall with a colleague, gave evidence that he saw Ms Somerville summon up saliva in her mouth and expel it in a deliberate spit in the direction of the two boys. While he did not see it land, his account supported the account given by the two boys. The Judge found both the boys were “clear, articulate and unshakable” in their account of what occurred, and they were “very credible witnesses and entirely believable”.1 Furthermore, the account of the third party painter corroborated the boys’ account. The Judge concluded “a deliberate spit
to the person of another is certainly assault” and he found the charge proved.2
1 Police v Somerville DC Christchurch CRI-2014-009-008726, 11 November 2014 at [7].
2 At [8].
Jurisdiction
Conviction
[7] Ms Somerville is able to appeal her conviction as of right.3 As first appeal Court, this Court must allow the appeal if there has been any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was effected; or has resulted in unfair trial or a trial that was a nullity.4
Sentence
[8] Ms Somerville is also able to appeal the sentence imposed as of right.5 This Court will only disturb the sentence on appeal if the appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.6
Did Ms Somerville receive full disclosure?
[9] Ms Somerville’s appeal asserts there was no pre-trial exchange procedure and that she did not get full disclosure. However, it is clear that on 17 September, full disclosure was provided to her of:
(a) CCTV footage from the The Colombo mall and the bus; (b) a summary of facts;
(c) job sheets from Senior Constable Clent and Constable Kitchin;
(d)statements from the complainant, his friend, and an independent eyewitness;
(e) a photo montage document; and
3 Criminal Procedure Act 2011, s 229.
4 Section 232.
5 Section 244.
6 Section 250.
(f) an affidavit with respect to the identification process.
[10] This document was signed by Ms Somerville confirming receipt.
[11] Ms Somerville then emailed the officer in charge on 25 September 2014 advising that she had been down to the Mall and that there was another camera which would have footage that she claimed she should have been given. She also requested a statement from a Ms Scott, who was the other painter present at the time of the offending.
[12] The officer in charge replied to this email on 6 October and confirmed to Ms Somerville that the only footage obtained by police from the Mall had already been supplied to her, and that police did not intend getting footage from the other camera as the officer in charge was satisfied it had no relevant images on it. He further confirmed that no statement had been taken by police from Ms Scott.
[13] On 6 October, initial disclosure was again provided to the defendant. On
15 October, the officer in charge emailed a copy of his job sheet to the appellant. On
6 November, the officer in charge emailed the appellant copies of formal written statements for the two constables, the operations manager for Red Bus, and the Mall manager, although in the end, neither the Mall manager nor the Red Bus operations manager were called as witnesses.
[14] The respondent’s obligations to provide disclosure are clearly specified in ss 12 and 13 of the Criminal Disclosure Act 2008. Section 14 also imposes an ongoing obligation on the prosecutor to disclose any further information requested unless:
(a) the information is not relevant; or
(b) the information may be withheld under s 15, 16, 17 or 18; or
(c) the request appears to be frivolous or vexatious.
[15] The police clearly complied with these requirements and there is no relevant document that they held that was not disclosed to Ms Somerville through the pre- trial process. This aspect of the appeal must therefore fail.
Were the police required to obtain further evidence?
[16] Both in earlier stages of the prosecution, and at the hearing, Ms Somerville argued that the police should have obtained statements from:
(a) Ms Scott, the other painter;
(b)a chef from the Pot Sticker Dumpling Bar, another food outlet at the mall; and
(c) two builders who were said to have been on the scene before the painters.
[17] She also said that the police should have obtained the CCTV footage from the other camera in the Mall.
[18] It is clear the appellant was provided with full disclosure on
17 September 2014, well within the timeframes specified in s 12 of the Criminal Disclosure Act 2008. Her further request for disclosure of additional CCTV footage from the Mall and a statement from Ms Scott, was responded to and declined on the basis that the CCTV footage would have no relevant images, and that a statement was not taken from Ms Scott. This was confirmed by the constable’s enquiries of the Mall manager who explained that the food court, where the incident took place, is not covered by a camera.
[19] More importantly, s 15 of the Criminal Disclosure Act states:
15Prosecutor not required to record information or to obtain information for sole purpose of disclosure
(1) Nothing in this Act requires a prosecutor to disclose information if, at the time a disclosure obligation would, but for this section, arise or at the time a request for disclosure is made, as the case may be,—
(a) the prosecutor is not in possession or control of that information; or
(b) the prosecutor does not hold the information in recorded form.
(2) Nothing in this section limits section 13(5).
[20] It is clear, and Ms Somerville accepted, that the prosecution did not obtain the CCTV footage from the other camera, nor did it obtain statements from Ms Scott, the chef, or the two builders. They were also not required to obtain that information for the purpose of disclosure. There has therefore been no breach by the respondent of its obligations under the Criminal Disclosure Act and so there has been no error leading to a miscarriage of justice such as would warrant setting aside the conviction.
Did the Judge err in his factual findings?
[21] Ms Somerville argued that the Judge was wrong to make a factual finding that there had been an assault, both because it was acknowledged there was no injury, and because, had this other evidence been obtained, she said it would corroborate her version of events which was that there was yelling but no spitting.
[22] Ms Somerville’s arguments that the Judge could not reasonably have found that an assault occurred must fail. The fact no injury resulted is irrelevant. There is no requirement to prove an injury as an element of the charge of assault.7
[23] Furthermore, it is clear there was ample evidence on which the Judge was entitled to find that the act of spitting occurred as described by the complainant. He found both the complainant and his friend to be credible witnesses and their account was supported by an independent third party. There is no basis for asserting that the Judge’s factual finding on that issue was in error to such an extent that a miscarriage
of justice has occurred.
7 Summary Offences Act 1981, s 9.
Should the appeal against sentence succeed?
[24] Ms Somerville did not state any grounds of appeal nor did she advance any submissions against sentence. I can only assume that she appeals the sentence on the basis that she believes her conviction should be set aside and therefore, so should the sentence.
[25] In my view the sentence of 50 hours’ community work and $100 reparation to the complainant is well within the parameters of what could be imposed in the case, and there is no basis on which I could find there was an error in the sentence imposed.
Outcome
[26] Accordingly, the appeal against conviction and sentence is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
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