Stitt v Police

[2020] NZHC 676

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-382

[2020] NZHC 676

BETWEEN

DION NIKOLAS STITT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 February 2020
Appearances:	I M Brookie and C G Farquhar for Appellant H J Musgrave for Respondent
Judgment:	2 April 2020

JUDGMENT OF PETERS

This judgment was delivered by Justice Peters on 2 April 2020 at 8.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Meredith Connell, Crown Solicitor, Auckland Counsel: I M Brookie, Auckland

C G Farquhar, Auckland

STITT v POLICE [2020] NZHC 676 [2 April 2020]

[1]    Following a Judge-alone trial before Judge Sainsbury, the appellant, Mr Dion Stitt, was convicted of one charge of assault and two of male assaults female.1 The Judge sentenced Mr Stitt to one year’s intensive supervision and 60 hours’ community work.2

[2]    Mr Stitt appeals against conviction on the basis a miscarriage of justice has occurred, that is, there was an error, irregularity or occurrence in or in relation to his trial that has created a real risk the outcome of the trial was affected.3

[3]    An appeal against conviction following a Judge-alone trial is conducted by way of rehearing, but it is for the appellant to show an error has been made. In assessing whether there has been an error, the appellate court must take account of any advantages the trial Judge may have had. Where the challenge is to credibility findings based on contested oral evidence, as in this instance at least in part, an appellate court will exercise “customary caution” because the trial Judge derives particular advantages from hearing the evidence.4

[4]Mr Stitt relies on two principal grounds of appeal.

[5]    First, he contends a miscarriage arose because of trial counsel error. Mr Stitt contends Ms Ou, defence counsel at trial, erred in two respects, including by failing to call his father, Mr David Stitt, to give evidence.

[6]    Secondly, Mr Stitt contends the Judge’s reasons for finding the offending proved were inadequate.

Background

[7]    Mr Stitt and the complainant, Ms Timms, were in a relationship in September 2018, when the assaults took place or are said to have taken place.   Mr Stitt was     20 years old and Ms Timms 17, and they were living with Mr Stitt’s parents.

1      New Zealand Police v Stitt [2019] NZDC 17481.

2      New Zealand Police v Stitt [2019] NZDC 16594.

3      Criminal Procedure Act 2011, s 232.

4      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].

[8]    Ms Timms called the Police after the incident on 7 September 2018. Constables Tuigamala and Kiwara attended, Mr Stitt was charged and pleaded not guilty, and Ms Ou was assigned to represent him.

[9]    Ms Timms and Constable Tuigamala gave evidence for the prosecution, and Mr Stitt in his defence, with the Judge giving his verdicts at the conclusion of the evidence.

5 September 2018

[10]   The Police originally charged Mr Stitt with assault with intent to injure in respect of what occurred on 5 September 2018. This charge derived from a statement by Ms Timms that Mr Stitt had bitten her on the arm. However, at trial, Ms Timms did not give evidence of such a bite, and the Judge of his own volition reduced the charge to common assault. The Judge found the charge proved, accepting Ms Timms’ evidence that Mr Stitt had pushed her.

[11]   Ms Timms’ evidence in chief as to events that day was that the pair were arguing in Mr Stitt’s bedroom regarding a Facebook message Ms Timms had seen on Mr Stitt’s cellphone, that Mr Stitt had pushed her with both hands, on her chest, after which she collected her belongings and tried to leave, but Mr Stitt would not let her.

[12]   In cross-examination, Ms Timms agreed that she had kicked Mr Stitt repeatedly on the legs “pretty hard” and pushed him to get him out of the way, when he would not let her leave. Ms Timms also stated that Mr Stitt “grabbed” her with open arms and that her back “cracked”, agreeing with Ms Ou that it was like a “bear hug”. That reference to a bear hug rather confused matters because it, rather than the push, became the focus of the cross-examination of Mr Stitt in respect of the 5 September incident.

[13]   In his evidence, Mr Stitt said he had a limited recollection of events that day but agreed they may have been arguing about a Facebook message. Although the prosecutor put it to Mr Stitt that he had given Ms Timms “this bear hug that cracked her back”, something Mr Stitt did not remember, the prosecutor did  not put  it  to  Mr Stitt that he had pushed Ms Timms. As I have said, ultimately that was the assault the Judge found proved.

6 September 2018

[14]   The second charge, of male assaults female, arose from events at about 9.30 pm on 6 September 2018. Ms Timms’ evidence was that Mr Stitt had put her cellphone in his pocket and she was trying to retrieve it, and that Mr Stitt “tackled me to the ground and I hit my head on the concrete and when I got up I hit it on the door and I felt dazed”. Ms Timms then said Mr Stitt had picked her up with his right arm (which would seem to be different from tackling her to the ground), and dropped her so that she was on the ground, following which Mr Stitt’s father, David Stitt, had intervened and calmed things down. This was the assault the Judge found proved, that is, Mr Stitt had lifted up Ms Timms and dropped her down, to get her away from him.

[15]   Mr Stitt point blank denied this had ever occurred. His evidence was he did not have Ms Timms’ cellphone, whatever she may have thought, she was grabbing his clothes, he was bracing himself in a doorframe and pulled away from her, and she fell over. Mr Stitt said he was screaming at her to stop, as he had been sick and vomiting (Ms Timms agreed he had) and essentially he was not well enough to be having a fight with Ms Timms.

7 September 2018

[16]   The third charge, also male assaults female, arose from events on the morning of 7 September 2018. Ms Timms’ evidence was she told Mr Stitt she was going home, they were in David Stitt’s computer room talking, that Mr Stitt grabbed her arms and started pulling her around the room, that Mr Stitt got angry when she spat at him, and he had kicked her in the legs and punched her in the face.

[17]   Mr Stitt’s evidence was that he spent most of the night of 6 September 2018 on the couch in the living room as he was unwell; that he then went to the bedroom; Ms Timms was kicking and pushing him (Ms Timms had accepted this was so); that he was still getting up and vomiting; they argued; Ms Timms was throwing punches and kicks and followed him downstairs into the computer room; and she ran at him, and fell over when he moved out of the way. Mr Stitt denied punching Ms Timms in the face.

[18]   As to this third charge, the Judge said he accepted there was some kicking. although Mr Stitt had been provoked.

[19]    The Judge considered Ms Timms’ evidence corroborated by the following matters:

(a)Photographs of her taken by Constable Tuigamala on 7 September 2018.

(b)Mr Stitt’s acknowledgment in evidence that sometimes he would not let Ms Timms leave their bedroom when they were arguing. The Judge considered this consistency corroborative of Ms Timms’ account of the incident on 5 September 2018.

(c)Ms Timms’ telephone call to the Police.

[20]   The Judge considered there was a lack of corroboration of Mr Stitt’s evidence, including an absence of evidence of  bruising  to  him,  despite  his  evidence  that Ms Timms was the aggressor.

[21]   The Judge also said the “dynamic at play” had a bearing on his overall assessment. This dynamic was that Ms Timms was a guest in Mr Stitt’s parents’ house; was in a position where “it may be difficult to make too much of a situation she is in”, whereas Mr Stitt was not; if Mrs Timms’ behaviour was as erratic as Mr Stitt described, the Judge would have expected to hear more about it from those who were there (presumably Mr Stitt’s parents); and, absent that, Ms Timms’ need to stay there, with no way of getting out, was supportive of her credibility.

[22]   For these reasons, the Judge accepted Ms Timms’ account and did not accept Mr Stitt’s evidence as raising a reasonable doubt.

Discussion

[23]   Counsel for Mr Stitt, Ms Farquhar, submits several of the Judge’s reasons for preferring Ms Timms’ account were insufficient. This submission reflects statements by the Supreme Court in Sena v Police.5

[24]   The first point concerns Constable Tuigamala’s photographs of Ms Timms. The photographs showed a bruise to Ms Timms’ arm and leg. However, presumably through oversight, the photographs were never put to Ms Timms and so there was no evidence from her to link the bruises to the allegations. Rather, the prosecutor had the photographs produced in evidence through the Constable, and after Ms Timms had given evidence. The Constable’s evidence was that Ms Timms had told him the bruises were from Mr Stitt biting her arm and kicking her leg. Ms Ou objected to this evidence from the Constable, on the basis it needed to come from Ms Timms. The Judge dismissed that objection and the photographs came into evidence.

[25]   Ms Farquhar submitted the Judge’s treatment of the photographs was problematic. First, the Judge said the photos showed a bruise to Ms Timms’ arm consistent with her being manhandled by being lifted up off the ground or falling, and a bruise to her leg consistent with kicking. This was despite evidence that the injury to the arm derived from a bite. The Judge said he would put that evidence to one side, that is, Ms Timms’ statement the injury was from a bite, because he had not heard evidence of that from Ms Timms. As Ms Farquhar submitted, the Judge did not hear any evidence whatsoever from Ms Timms regarding the photographs. The only evidence was from the Constable, and there was no basis for the Judge accepting part of the Constable’s evidence but not the other. Overall, Ms Farquhar submitted no weight could be put on the photographs, absent evidence on oath from Ms Timms as to what the photographs showed and how they were relevant.

[26]   There is another point about the photographs, which is that they do not add a great deal to resolving the issues in this case. That is because there was no dispute Ms Timms ended up on the ground on 6 September 2018, or that she may have been

5      Sena v Police, above n 4, at [36] and [47]. Applied in Johnson v Police [2019] NZHC 2966 at [26]-[28]; and Webster v Police [2019] NZHC 1335 at [12]-[15].

kicked at some point. The issue was how she came to fall on 6 September, and indeed who had done what to whom on each occasion.

[27]   Secondly, Ms Farquhar submitted the Judge ought not to have treated Mr Stitt’s acknowledgment that he did not always let Ms Timms leave the room, as described at [19](b), as corroborative of Ms Timms’ evidence. She submitted mere consistency between two accounts does not render one account more credible than the other.

[28]   I accept these submissions from Ms Farquhar in the context of this case, and mention two other points for the sake of completeness.

[29]   The first is that the Judge relied on Ms Timms’ telephoning the Police as corroborating her account. No real complaint is made about that but, for myself, I have reservations about the probative value of the point. I cannot see anything to distinguish it from Mr Stitt’s immediate complaint to Constable Tuigamala, on the Constable’s arrival, that Ms Timms had been pushing, bullying and antagonising him when he was unwell. These statements were equally consistent with his evidence to the Court. The second point is that there was no evidence Ms Timms needed to stay at Mr Stitt’s parent’s house. In fact, her evidence was she went home three times a week. It is also apparent from the evidence that Ms Timms said she was leaving on several occasions, but ultimately did not do so. The gist of the evidence was she chose to stay.

[30]   Crown counsel, Ms Musgrave, submitted, correctly, that an appellate court is to exercise caution when considering a challenge to a conviction based on credibility findings; that the Judge had not placed undue weight on the photographs; and it was open to the Judge to reason that Mr Stitt might assault Ms Timms if he wished to stop her leaving a room. I accept the first of these submissions of course, but equally, and as noted, a Judge is required to give sufficient reasons for accepting the evidence of one witness and rejecting that of another. I am not persuaded the Judge did so in this case. As to the other submissions, I think the Judge did place considerable weight on the photographs, and the last submission would be to authorise an exercise in speculation.

[31]   Excluding these reasons from consideration, one is left with the absence of evidence of injury to Mr Stitt. This is an insufficient basis for rejecting Mr Stitt’s evidence and accepting Ms Timms’. It follows that I propose to allow the appeal, being satisfied there has been an error, irregularity or occurrence in or in relation to the trial that has created a real risk the outcome of the trial was affected.6 I set aside the convictions and order a retrial.

[32]   It also follows that it is unnecessary to address the ground of appeal alleging counsel error. In fairness to Ms Ou, I record that, having heard the evidence and submissions on appeal, my preliminary view was that she did not err as submitted by Ms Farquhar.

Result

[33]The appeal is allowed, the convictions set aside, and a retrial ordered.

Peters J

6      Criminal Procedure Act, s 232.