Stitt v Police
[2024] NZHC 1188
•14 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-586
[2024] NZHC 1188
BETWEEN DION STITT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 May 2024 Appearances:
Appellant in person
R Thompson for the Respondent
Judgment:
14 May 2024
JUDGMENT OF GORDON J
This judgment was delivered by me on 14 May 2024 at 12 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Meredith Connell, Auckland Copy to: Mr Stitt
STITT v NEW ZEALAND POLICE [2024] NZHC 1188 [14 May 2024]
[1] The appellant, Dion Stitt, appeals his convictions on four charges: driving while driver licence suspended; aggravated assault and resisting Police (both in relation to a Police Officer, Constable Whitefield) and wounding with intent to injure (a Police officer, Constable Bentley). The guilty verdicts were delivered by Judge Bonnar KC on 22 September 2023 and followed a Judge-alone trial, which took place in June 2022 and continued on July 2023.1 All charges arise from events on 24 April 2020.
[2] On 1 December Judge Bonnar KC sentenced Mr Stitt to seven months home detention on all of the charges.2
[3]The respondent opposes the appeal.
Grounds of appeal
[4] Mr Stitt represented himself. He filed written submissions and appeared on his own behalf at the hearing of the appeal. The appeal grounds are broadly:
(a)the evidence given by Detective Constable Hayden Swann (regarding service of the notice of suspension from driving) was unreliable and inaccurate and his trial counsel failed to adequately cross-examine Detective Constable Swann;
(b)the trial judge made irrational determinations in relation to Constable Whitefield’s version of events;
(c)there is a lack of evidence that Mr Stitt caused Constable Bentley’s injuries; and
(d)trial counsel failed to adequately cross-examine Constables Whitefield and Bentley on their evidence.
1 New Zealand Police v Dion Stitt [2023] NZDC 20373 [Substantive decision].
2 New Zealand Police v Dion Stitt [2023] NZDC 26926.
[5] In relation to appeal grounds (a) and (d) above, in the notice of appeal Mr Stitt refers to an alleged failure to cross-examine “properly and extensively also essentially preventing my oppunity [sic] to a fair defence as he refused to follow my defence instructions”. This appeal was previously set down for hearing on 13 February 2024. On that occasion Mr Stitt was advised by the Court of the process an appellant is required to follow where there is an allegation of trial counsel incompetence. That advice is recorded in a written minute issued on 13 February 2024. The appeal was adjourned to give Mr Stitt the opportunity to file an affidavit.
[6] On 22 March 2024 the Court issued a further minute containing timetable orders if the issue of trial counsel incompetence was to be pursued. Mr Stitt has not filed any evidence. Accordingly, there is no basis for the Court to make a determination on the allegation of refusal to follow instructions. The Court is, however, able to assess the adequacy of the cross-examination from the written record and the Court is, therefore, able to consider that aspect of the alleged trial counsel incompetence. I explained all of this to Mr Stitt at the hearing.
Summary of background
[7] The introduction in Judge Bonnar’s decision provides a summary of the background of the alleged events that gave rise to the charges:3
[1] At around 9pm on 24 April 2020 Senior Constable John Whitefield and Constable Nancy Bentley were in a marked police car, parked on Maioro Street, New Windsor, undertaking speed detection duties. The defendant, Dion Stitt, drove into Maioro Street from New Windsor Road. The speed radar in the officers’ car indicted that he was travelling at 71km per hour. Maioro Street was governed by a 50km per hour speed limit. Approximately halfway between the intersection and where the officers were parked, Mr Stitt abruptly turned right into a residential driveway. He then reversed his vehicle out of the driveway and drove back up Maioro Street in the opposite direction from the police car.
[2] The constables completed a U-tum and followed Mr Stitt’s vehicle. Mr Stitt turned left into New Windsor Road and then turned right, across the road, into the carpark bays of a block of shops near the intersection of Maioro Street and New Windsor Road. The constables parked their car next to Mr Stitt’s vehicle, effectively preventing him from reversing out of the carpark bay.
3 Substantive decision, above n 1.
[3] What happened between the constables and Mr Stitt at that location is the issue in this case. What is clear is that both constables suffered relatively significant injuries. Constable Whitefield suffered a serious ankle injury which, subsequently, required surgical intervention. He was still on light duties by reason of that injury at the time of the June 2022 hearing of this matter. Constable Bentley suffered an open head wound and an associated concussion, resulting in on-going neurological symptoms. She also suffered spinal and leg injuries. The back injury involved a prolapsed spinal disc resulting in some degree of permanent nerve damage.
[4] Mr Stitt faces charges of wounding Constable Bentley with intent to injure her, assaulting Constable Whitefield with intent to obstruct him in the execution of his duty, resisting Constable Whitefield and driving whilst suspended.
[5] Mr Stitt denies that he wounded Constable Bentley and says, additionally, that if his actions did cause her injuries, it was accidental, and he had no intent to injure her. In relation to the aggravated assault of Constable Whitefield and the resisting, he says that Constable Whitefield was not acting in the execution of his duty at the relevant time and that he was acting in self- defence. On the driving whilst suspended charge, Mr Stitt denies being aware that he was a suspended driver at the time.
[8] The Judge then gave himself the usual warnings in a Judge-alone trial.4 Next the Judge noted that the following matters were not in dispute:5
(a)the date, time and place at which the alleged offences occurred;
(b)the identification of Mr Stitt as the alleged offender;
(c)that Constables Whitefield and Bentley were both Police constables, wearing full uniform and driving a marked Police car;
(d)that Mr Stitt was driving his vehicle on Maioro Street and New Windsor Road;
(e)that he had, on 14 April 2020, been suspended from driving for a period of three months;
4 Substantive decision, above n 1, at [6]–[13]. Burden and standard of proof; sympathy and prejudice; separate trials on separate charges; defendant giving evidence; and self-defence.
5 At [14].
[9] The Judge also recorded that the following two matters were not in dispute. However, Mr Stitt does take issue with them as discussed later in this judgment:
(a)that Constable Bentley suffered a wound to her head and the other injuries previously described; and
(b)that Constable Whitefield suffered the injuries previously described.
Principles on appeal
[10] Appeals against conviction following a Judge-alone trial must only be allowed if the Judge has erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred6 or if a miscarriage of justice has occurred for any other reason.7
[11] A “miscarriage of justice” means any error, irregularity or occurrence in or in relation to or affecting the trial that:8
(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.
[12] A miscarriage is more than an inconsequential or immaterial mistake or irregularity.9
[13] An appeal is to be by way of rehearing and it is for the appellant to show that an error has been made. If an appellate court comes to a different view on the evidence the trial Judge will have erred and the appeal must be allowed.10
[14] Where the challenge is to a credibility finding based on contested oral evidence, an appellate court will exercise “customary caution” because the trial Judge
6 Criminal Procedure Act 2011, s 232(2)(b).
7 Section 232(2)(c).
8 Section 232(4).
9 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30] and [31].
10 Principles in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
will have had the benefit of evaluating the strength of a case as the evidence emerges in the course of the trial; and the written record available to the Court on appeal may not capture the details that would have been apparent to the trial Judge.11
Driving while suspended: Constable Swann’s evidence
[15] The only issue on this charge was the mental element, namely whether Mr Stitt was aware that he was a suspended driver when he drove on 24 April 2020.
[16] The relevant evidence came from Detective Constable Swann regarding an incident 10 days earlier on 14 April 2020. Detective Constable Swann’s evidence was that he performed a vehicle stop of Mr Stitt’s vehicle. On checking the vehicle’s number plate on the Police device, it showed that Mr Stitt was required to be served with a demerit point suspension notice with regards to his licence.
[17] Detective Constable Swann also gave evidence of his usual practice to get the driver of a vehicle he has pulled over to confirm their details and he would also check the photo that he had on the Police database on his phone against the person standing in front of him to confirm their identity. The officer’s evidence was that he did not recall whether he specifically did that on this particular occasion.
[18] Once Detective Constable Swann had confirmed Mr Stitt’s identity he served him with a notice of licence suspension and explained to him the conditions and the consequences of the suspension notice. During his evidence Detective Constable Swann was referred to a carbon copy of the licence suspension notice and he confirmed that it was a copy of the notice he served on Mr Stitt. The carbon copy was produced as an exhibit. Detective Constable Swann was also referred to a photograph of Mr Stitt sitting in his car holding the original suspension notice (as opposed to the carbon copy).
[19] Detective Constable Swann gave evidence that he explained to Mr Stitt that his licence was suspended for a period of three months; that he was not allowed to drive any motor vehicle for that period; and if he was caught driving, his vehicle would be
11 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]–[40].
impounded for 28 days and he would be summonsed to court for driving while suspended.
[20] Detective Constable Swann was not able to recall what Mr Stitt’s response was to that advice but he had recorded in his notebook that Mr Stitt understood what he had told him. He said that his general practice was to confirm that people understand what he is telling them.
[21] Under cross-examination defence counsel asked whether Detective Constable Swann had an independent memory of the incident. He said he did but it was “vague”. He was asked about Mr Stitt’s demeanour and responded that he did not recall there being anything notable about his demeanour.
[22] It was put to Detective Constable Swann that his notebook did not reflect that he used the Police database to check the photograph. Detective Constable Swann acknowledged that his notebook did not say that. He was asked how long he spent with Mr Stitt in total. The answer was: “around five minutes, maybe 10 minutes”.
[23] Trial counsel further asked Detective Constable Swann whether he had an independent memory of how Mr Stitt demonstrated he understood the Detective Constable’s explanation of the ramifications of a suspension notice. Detective Constable Swann said he did not. That then concluded the cross-examination on memory.
[24] Trial counsel then put to Detective Constable Swann that it was “contradictory to suspend someone from driving and then allow them to drive”. The response was that it was a matter of being fair to Mr Stitt rather than making him get out and walk and have his car stuck in that location. It was then put to the Detective Constable that allowing Mr Stitt to drive home may have been open to a misunderstanding about what it meant when he gave Mr Stitt a document but then allowed him to continue driving. The officer said that was something he had done previously, namely serve a person with a suspension notice and he would always say that “you can drive home but you are not to drive from there”. Detective Constable Swann was pressed on that and was asked if giving the document and then allowing Mr Stitt to carry on driving was
contradictory. Detective Constable Swann said he guessed “you could view it as contradictory” but he said he was “very clear that you can drive home to get your car home and your belongings and then that’s the end of it, you’re not to drive anymore”.
[25] Judge Bonnar accepted Detective Constable Swann’s evidence. In contrast, he found Mr Stitt’s evidence relating to what he was told and the circumstances of 14 April 2020 was “unsatisfactory and, at times, contradictory”. The Judge summarised Mr Stitt’s evidence saying:
[92] ... He initially said that he was never told, at any stage prior to 24 April, that he had been issued with a suspension notice. He said that he thought he had been dealt with on 14 April by way of a speeding ticket. At other times, he referred to it as a ticket for driving contrary to a learner's licence. His evidence is plainly inconsistent with Exhibit 2, the photograph taken by Detective Constable Swann of Mr Stitt seated in his vehicle holding the notice of suspension.
[26] The Judge also found that if Mr Stitt had simply been issued with a ticket, it did not make sense that he would have also been told by Detective Constable Swann to drop his friend off and drive directly home without any stops. The Judge referred to Mr Stitt’s evidence under cross-examination:
[93] Mr Stitt went on in evidence to say that once he was issued with the “ticket” he was told to drop his friend off and drive directly home without any stops. However, he was not aware of any suspension. If, indeed, he had simply been issued with a ticket, it does not make sense that he would have also been told by Detective Constable Swann to drop his friend off and drive directly home without any stops. Under cross-examination, Mr Stitt stated:
Well I don't remember even receiving that notice. Even though that's presented in front of me now, when I recall it, I thought I was given a ticket that night, and I was told to drop my mate off home and then drive back home, not to drive any more.
[Emphasis added]
[27] The Judge further found that Mr Stitt’s later actions on 24 April 2020, in making a U-turn and driving away from a marked Police car, to be consistent with his seeking to avoid being pulled over by the Police. The Judge found that such actions were consistent with Mr Stitt knowing that he was driving while suspended.12
12 Substantive decision, above n 1, at [95].
[28] Mr Stitt submits that Detective Constable Swann’s evidence is unreliable because of his claim to have a lack of memory on what Mr Stitt says are critical key events. He notes that: Detective Constable Swann did not recall if he was driving or if he was a passenger when Mr Stitt’s vehicle was stopped; the Detective Constable referred on occasion to his general practice as opposed to whether he specifically asked Mr Stitt to confirm his identity; the Detective Constable could not recall exactly what Mr Stitt had said but again referred to his general practice to confirm that people understand what he is telling them; he did not have an independent memory of how Mr Stitt demonstrated he understood the Detective Constable’s advice; and it was contradictory to allow Mr Stitt to drive home.
[29] I consider the trial Judge was entitled to prefer Detective Constable Swann’s evidence over that of Mr Stitt. First, Judge Bonnar had the benefit of hearing their version of events in person at trial. Second, Detective Constable Swann’s oral evidence was supported by evidence of the notice itself; a photograph of Mr Stitt holding the notice; and the record in Detective Constable Swann’s notebook confirming that Mr Stitt understood what he had been told.
[30] I consider the fact that Detective Constable Swann acknowledged that he did not have much of an independent memory of the incident, does not detract in any significant way from the reliability of his evidence. This was an incident that took place more than two years prior to his giving evidence and the reason Police officers do take “proof of service” photographs and record details in their notebooks is precisely because they cannot be expected to retain a detailed memory of all of the incidents they attend.
[31]Mr Stitt has not demonstrated any error by the Judge.
[32] Mr Stitt also says that trial counsel failed to adequately cross-examine Detective Constable Swann on inaccuracies and his lack of memory. I do not consider there is any substance in that criticism. Trial counsel’s cross-examination was not extensive but other than getting the witness to confirm that his recollection of the incident was “vague”, which he did, there was little else that could be challenged in cross-examination. The Detective Constable had followed the procedure by taking a
photograph and making notes of relevant points in his notebook. There would have been no point in any further cross-examination about failure to remember events accurately when the objective evidence existed to support Detective Constable Swann’s account.
Constable Whitefield’s evidence
[33] The Judge set out the prosecution case on the remaining three charges as follows:
[15] The prosecution case is that, after pulling up next to Mr Stitt's vehicle, the officers ascertained that Mr Stitt was the registered owner of the car and was a suspended driver. Constable Whitefield exited the police car to speak to Mr Stitt, who had already stepped out of his car and was on the footpath outside the shops. Constable Whitefield advised Mr Stitt that he was under arrest for driving whilst suspended, advised him of his rights and asked if he understood. Mr Stitt replied “yeah, what's going to happen now?” Constable Whitefield advised Mr Stitt that, if he wished to move to the back of the police vehicle and sit down, Constable Whitefield would ask him some questions and he would leave with paperwork. The constable advised Mr Stitt that the alternative would be that he would need to be taken to a police station or a custody unit as he was under arrest.
[16] Constable Whitefield asked Mr Stitt for his car keys and Mr Stitt handed them over. At that point he was compliant.
[17] Mr Stitt then said to the Constable that he knew his rights and that he was going to video the interactions from that point on. He took his cellphone out and started to attempt to video record his interactions with the constable. Constable Whitefield told him that he did not have the right to video what was going on, as he was under arrest, and reached out to grab Mr Stitt’s wrist. Mr Stitt moved the arm holding the phone upwards. Constable Whitefield then attempted to take Mr Stitt into custody. Mr Stitt resisted the constable’s efforts to restrain him and pushed away from his car. As a result of that, Mr Stitt and Constable Whitefield fell to the ground. The constable’s glasses were broken in the course of going to or hitting the ground. Constable Whitefield was on his back. Mr Stitt was positioned over Constable Whitefield with his righthand closed in a fist. He appeared to be about to punch Constable Whitefield. Constable Bentley intervened and pulled Mr Stitt off Constable Whitefield. Mr Stitt then began grappling with Constable Bentley. He lifted her off her feet and threw her backwards. Constable Bentley landed on her back on the ground and her head hit the footpath or kerb.
[18] Constable Whitefield regained his feet and attempted to reengage with Mr Stitt. The constable moved towards Mr Stitt and attempted to grab hold of him, however, Mr Stitt escaped the constable’s grasp. Mr Stitt then ran away from Constable Whitefield, heading back towards Maioro Street before looping around the police vehicle and walking up New Windsor Road. After walking away from the scene, Mr Stitt subsequently returned and Constable
Whitefield arrested him and placed him in handcuffs at the rear of Mr Stitt’s vehicle as other police patrol cars arrived.
[34] Mr Stitt submits that the two Police officers were the aggressors, not him. He submits that Judge Bonnar made “irrational determinations” regarding Constable Whitefield’s evidence as to what occurred on 24 April 2020. He further submits there is “extensive corroborating evidence” that Constable Whitefield was the aggressor, not him. He also takes issue with what he says was Judge Bonnar “mixing and matching statements” and criticises the Judge for making the finding that his version of events was not credible and favouring the evidence of the Police officers.
[35] In making his credibility findings the Judge said that there were two opposed narratives of events reflected, first in the evidence of Constables Whitefield and Bentley, second in the evidence of Mr Stitt. He said both narratives cannot be correct and that his decision depended to a large degree on his assessment of the reliability and credibility of the two constables on the one hand and Mr Stitt’s reliability and credibility on the other. He made general credibility findings as follows:13
(a)Constable Whitefield: the Judge generally found Constable Whitefield to be a reliable and credible witness in relation to the essential factual issues which needed to be determined, concerning his interactions with Mr Stitt on the night,. The Judge’s “high-level assessment” was that the constable was attempting to give truthful evidence in relation to the events of the evening. The Judge found that the constable gave evidence “in a careful manner” and repeatedly acknowledged when he was unsure about or could not remember specific matters. He did not appear to embellish his evidence or exaggerate. He made appropriate concessions under cross-examination. He was, however, consistent in his evidence and under cross-examination in relation to the central features of his narrative.
(b)Constable Bentley: the Judge also generally found Constable Bentley to be a reliable and credible witness. She also readily acknowledged
13 Substantive decision, above n 1, at [43]–[67].
when she had not seen something, and she did not appear to be exaggerating or embellishing her evidence. Throughout her evidence- in-chief and under cross-examination she remained clear, unequivocal and consistent in her account of observing Mr Stitt positioned over Constable Whitefield and shaping up to punch him. She was also consistent and unequivocal in her account of her own interactions with Mr Stitt. The Judge further noted that the injuries she suffered were entirely consistent with her narrative of what occurred.
(c)Mr Stitt: the Judge said, on the contrary, he did not find Mr Stitt to be a reliable and credible witness when it came to his narrative on the central and critical factual events. First, his evidence that he was not aware that he had been suspended from driving on 14 April 2020 was simply not credible. Second, his narrative of his interactions with Constables Whitefield and Bentley “simply did not have the ring of truth about it”. His suggestion that Constable Whitefield aggressively snatched at his keys when he was in the process of voluntarily handing them over was not credible. His suggestion that Constable Whitefield was aggressive was also inconsistent with Mr Stitt’s own evidence as to the interactions between them at the commencement of the incident. Similarly, the Judge found that Mr Stitt’s evidence that Constable Whitefield “dived” at him and attempted to tackle him around the waist immediately following the suggested snatching at the car keys was simply not credible. The Judge said such an action would simply put the officer in an immediately vulnerable position. The Judge found, similarly, Mr Stitt’s narrative as to Constable Whitefield being on the ground and from that position repeatedly attempting to pull Mr Stitt to the ground, simply did not have the ring of truth about it. The Judge considered it highly unlikely that Constable Whitefield, having gone to the ground, would then seek to pull Mr Stitt down to the ground, effectively on top of him.
(d)In relation to Constable Bentley, the Judge found that Mr Stitt’s evidence that there was no interaction at all between him and Constable
Bentley was entirely inconsistent with Constable Bentley’s evidence and the injuries she suffered. As the Judge noted, Mr Stitt was eventually reduced to alleging that Constable Bentley was simply lying about her injuries, going so far as to assert that the photograph of her head wound did not show any injury when in fact the photograph showed blood to her head, her hair and on her Police uniform.
(e)The Judge noted at times that Mr Stitt was evasive and argumentative under cross-examination. The Judge considered his repeated assertions that there was no physical interaction at all with Constable Bentley and that she had perjured herself by saying that he assaulted her and caused her injuries, seriously undermined his credibility. Accordingly, in relation to much of Mr Stitt’s evidence going to the critical factual matters, the Judge did not find his evidence credible or reliable and rejected it.
[36] I have set out in [14] above the approach on appeal where there are challenges to credibility findings. In this case Judge Bonnar was entitled to make the credibility findings he did about each of the witnesses. He had the benefit of observing each witness give evidence and be cross-examined. There is no reason for this Court to take issue with his findings, which I accept are based on the evidence as recorded in the notes of evidence.
[37] As to the “extensive corroborating evidence” that Mr Stitt refers to, Mr Stitt produced two video images. The Judge did not find them useful, saying:
[36] It is clear that both videoclips show events occurring after the critical periods of time which are at issue in the present case. Any useful visual recording contained on Exhibit A commences at a point at which, on either parties’ version of the facts, Constable Whitefield is back on his feet and is attempting to reach for Mr Stitt. The second clip record events after Mr Stitt returned to the scene and was in the process of being arrested by Constable Whitefield.
[38] Then as regards the written (hearsay) statement of a witness for Mr Stitt, the Judge noted that statements in relation to the male officer ripping the driver out of the car, slamming him against the back door of the car, and then slamming him onto the
bonnet around the right front wheel were not consistent with the evidence of either Constable Whitefield or Mr Stitt.14 The Judge further found:
[39] ... Her statement that the male officer said “shall I pepper spray him?” is inconsistent with the words I heard on the second, shorter, videoclip. [The witness] does not appear to have observed any of the interactions between Constable Whitefield and Mr Stitt during the period when, on both parties’ narratives, Constable Whitefield was on the ground. She does not appear to have observed any interactions with Constable Bentley at all.
[39] For those reasons the Judge placed limited weight on the hearsay statement of that witness.
[40] It was open to the Judge to make the findings he did. The evidence established the charges of aggravated assault, resisting Police and driving while suspended. Mr Stitt has not demonstrated any error by the Judge.
Cause of injuries to the Police officers
Constable Whitefield’s injuries
[41] In relation to Constable Whitefield’s injuries, Mr Stitt expresses the opinion that there are no injuries to his foot and the photograph looks more “like a condition of gout not swelling”. Putting to one side the subjective view of Mr Stitt regarding another cause of Constable Whitefield’s foot injury, there is no requirement in either of the charges involving Constable Whitefield, for the prosecution to prove that an injury was caused.
Constable Bentley’s injuries
[42] Mr Stitt submits there is a lack of evidence to establish that he caused Constable Bentley’s injuries. He says that “A red coloured liquid, namely ‘blood’ pictured on someone’s head and clothes shows not proof of an injury”. He says the evidence of medical certificates from Constable Bentley’s medical records are “inconclusive and vague”.
14 At [39].
[43] The charge in relation to Constable Bentley was one of wounding with intent to injure. In order to find the charge proven, the Judge must have been satisfied beyond reasonable doubt that Constable Bentley was wounded; that Mr Stitt caused the wound; and in doing so, he intended to injure her. In finding this charge proven the Judge relied on the following:
(a)Constable Bentley’s “clear, unequivocal and consistent evidence that, when she intervened and attempted to pull Mr Stitt off Constable Whitefield, he lifted her off her feet and threw her forcefully backwards onto the concrete path and kerb”;15
(b)his rejection of Mr Stitt’s evidence that there was no physical interaction between him and Constable Bentley;16
(c)his rejection of the suggestion advanced in cross-examination of both Constables (but not supported by Mr Stitt’s own narrative) that any injury suffered by Constable Bentley was accidental and that she was simply unintentionally knocked over in the course of Mr Stitt’s altercation with Constable Whitefield;17 and
(d)“the only logical and reasonable inference available on the facts” was that “by lifting Constable Bentley up and forcefully throwing her to the ground, Mr Stitt intended to cause her some actual bodily harm, that is, any hurt or discomfort more than minor or momentary (and of course harm was actually caused)”.18
[44] While the Judge did not specifically find there had been a “wounding” injury, he stated, as set out in (d) above that harm was actually caused. I also note that Constable Bentley gave evidence that she had suffered a concussion, she had neck pain and stiffness in her lower back which went into a prolapsed disc that ended up permanently damaging the nerve in her left knee. She was also referred to two
15 At [68].
16 At [69].
17 At [70].
18 At [71].
photographs which she confirmed were photographs of the back of her head and the back of her jacket with blood coming from her head. That latter injury provides evidence of a wound.
[45] There was more than sufficient evidence for the Judge to be satisfied beyond reasonable doubt that the charge of wounding with intent to injure Constable Bentley was proven. Mr Stitt has not demonstrated any error by the Judge.
Alleged failure of defence counsel to cross-examine Constables Whitefield and Bentley
[46] Mr Stitt submits that trial counsel could have “incredibly pushed this to the court on the evidence of Constable Whitfield [sic] and Constable Bentley” and trial counsel “had ruin[ed] my defence in terms of questioning police on the indifferences of their events”.
[47] The cross-examination of Constable Whitefield runs to 14 pages in the notes of evidence. The central thesis of the defence case, namely that Constable Whitefield had been the aggressor, was properly put to Constable Whitefield. The following propositions were put:
(a)Mr Stitt had told him that he was not a suspended driver;
(b)Mr Stitt had his keys in his hands and that Constable Whitefield had tried to snatch them out of his hands;
(c)Mr Stitt had never tried to video anything;
(d)Constable Whitefield attempted a type of physical restraint like a tackle;
(e)the incident did not involve Constable Whitefield falling to the ground but rather he grappled or struggled with Mr Stitt and eventually grabbed his t-shirt and began to strangle him;
(f)the grabbing of Mr Stitt’s t-shirt restricted his breathing and caused him to start hyperventilating and struggling for breath;
(g)Constable Bentley was beside, almost shoulder to shoulder with Constable Whitefield and Mr Stitt;
(h)during that struggle Constable Bentley was shoved, causing her to fall backwards; and
(i)when Constable Whitefield was dealing with Mr Stitt, Mr Stitt was simply responding physically to the Constable’s physical interaction with him.
[48] It is apparent from the above summary that Mr Stitt’s version of events was fully put to Constable Whitefield. Trial counsel also cross-examined him on less central issues such as failing to note something in his notebook. He was also cross- examined on the contents of the video clip that was shown.
[49] In terms of the cross-examination of Constable Bentley, that occupies just over six pages of the notes of evidence. In particular, the following was put to her:
(a)Mr Stitt initially said that he was not suspended;
(b)whether she remembered Constable Whitefield trying to grab the car keys off Mr Stitt;
(c)Mr Stitt was not kneeling over Constable Whitefield on his chest with his fist clenched – they were on their feet the whole time at that point;
(d)she grabbed Mr Stitt’s clothing and pulled his sweatshirt off;
(e)whether she recalled Constable Whitefield grabbing Mr Stitt around the neck and tightening the clothing around his neck;
(f)at no time did Mr Stitt ever grab her around the forearms and lift her in the way she had described;
(g)in the hospital discharge summary it said she got pushed to the ground (ie not thrown); and
(h)whether she recalled Constable Whitefield saying “shall we pepper spray him”.
[50] As is the case with Constable Whitefield, the cross-examination by trial counsel adequately put the central aspects of the defence case to Constable Bentley.
Conclusion
[51] None of the grounds relied on by Mr Stitt in support of his appeal against his convictions are made out.
Result
[52]The appeal is dismissed.
Gordon J
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