T v Police HC Auckland CRI 2006-404-220

[2006] NZHC 1474

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-000220

T

Appellant

v

POLICE

Respondent

Hearing:         24 November 2006

Appearances: J W Mackey for Appellant

M Mann for Respondent

Judgment:      24 November 2006

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a conviction that the appellant caused intentional damage to a car owned by the complainant, a Ms Hills, his then girlfriend.

[2]      The incident is alleged to have happened after the couple had been at a pub and leaving the pub in the car the complainant said she was going to drop him off at his house and then going to drive to her house and that in the course of that he did not say anything to her, he just grabbed an axe and started hitting things.  The axe

she said was a small tomahawk that was in the car for self defence.

T V POLICE HC AK CRI 2006-404-000220  24 November 2006

[3]      This case is essentially a ‘she says,  he says’, case as the witness herself emphasised in her evidence.    She was cross-examined by counsel for the appellant at the trial, particularly on the basis that alleged axe damage to the dashboard was not done by a tomahawk.  She answered variously and it was put to her that it just looked like a split in the vinyl caused by the sun.  She said:

… Yeah, well, that’s what it might look like”

Then Mr Mackey pursued the point.  She said:

… Well how did the sun get it to crack in a perfect straight line.

That seems to suggest she was asserting that the blows in the dashboard which are of a straight line were caused by the tomahawk.  If they were they were blows to the vertical façade of the dashboard.  However, Mr Mann, for the Crown, quite properly pointed out it is quite difficult to swing a tomahawk in this very small car, a Mazda

323.  He thought it more likely that the blows hit the top of the dashboard and caused the vinyl to split into a vertical line down the front elevation.

[4]      It  is  not  clear  from  the  police  photographs  whether  the  vertical  blows damaged the white foam underneath the vinyl.  Mr Mann’s proferred inference that the blows were to the top of the vinyl, is an available inference.  There is no doubt, just looking at this photo of the vinyl, that it is possible to draw inferences either way.  It is also possible that the answer by the witness:

Well how did the sun get it to crack in a perfect straight line

Was made up under pressure in cross-examination.

[5]      The general evidence of the complainant  was that  after he started hitting about with the tomahawk he also kicked the door after he got out of the car.    The witness in a witness statement to the police said he smashed the window with a punch by his hands.   This other damage of the kicking and punching of the windows is a little confused.  At the trial she said that after they had left the pub they went to a friend of the accused’s, Chanelle’s house in Mt Albert.  He got out of the car then inferentially went inside the house then came outside the house and kicked the door and as the door was kicked the window fell into the door so she could not wind it up

or down.   He apologised and they both left together and the tomahawk incident happened after that.

[6]      She was cross-examined on the basis that in her statement to the police she said he had:

…  become angry,  started kicking  my  car  and  smashing  the passenger’s window by punching it with his hands.

She agreed in cross-examination that what she was saying at the trial was a bit different.

[7]      The Judge recorded these inconsistencies in paragraph [9] when recording the defence case.   She also recorded Mr Mackey’s argument that the damage to the dashboard was not consistent with full body blows to the dash with a tomahawk.

[8]      The Judge then went on to give her reasons for conviction under the heading

“Decision”:

Decision

[12]     I have had the opportunity of hearing both witnesses and I accept, other than the damage itself, that there is no independent corroboration in the sense of someone having seen that damage done,  or  Police immediately seeing it after the event.

[13]      Nevertheless I was struck by Ms Hills as a person who was certainly not embellishing.   There seemed to be a very understated method of description.   Having listened to her she struck me as a person I could rely upon.  She indicated that she had had nothing to do with Mr T   after these events and that in itself is consistent with someone who has had her vehicle subjected to this type of damage.

[14]      I have listened to Mr T   and considered the possibility that at the very least raising a reasonable doubt.  However having listened to both I am satisfied that there was damaged caused;  it was done in anger and it was done by Mr T   on the night as described by Ms Hills.

[15]      Accordingly I find the charge proved of intentional damage.  I do not intend to enter a conviction in respect of the other charge.  As I say it seems to amount to the same thing.  There are no express threats to damage and in those circumstances that charge is dismissed.

[9]      This reasoning is essentially arguing that the Court was impressed by the way

Ms Hills gave evidence and the Court felt that she was a reliable witness and the fact

that she had nothing  more to  do  with him after  these events  is consistent  with someone who has had her vehicle subjected to this type of damage.   She does not deliberately reject Mr T  ’ evidence by way of rejecting him on demeanour grounds.

[10]     What is missing from the reasoning is there is no discussion of the difference in the statement given by the complainant to the police and on her evidence given at trial.  Nor is there any consideration of the tomahawk incident and any impressions or inferences the Judge has drawn from the photographs.

[11]     I am satisfied that the reasoning is inadequate.    The real difficulty in this case is whether or not  it  is appropriate to  find that  the decision convicting  the appellant is unsafe.

[12]     The scientific evidence is now overwhelming that trial Judges have no greater ability than the rest of humanity in judging people to be telling the truth by reason of their demeanour and impression.  There are two recent articles on this subject in the recent edition of the Australian Law Journal, October 2006, “Who is Telling the Truth?   Psychology, Common Sense and the Law by Hon Justice Peter McClellan and “Problems with Fact-Finding” by Justice David Ipp.   I commend to readers particularly the article by Justice Ipp.

[13]     As Justice Ipp points out, what the trial Judge must do, as any person in a situation of assessing  the truth must  do  is to  marshal with oral testimony  such indisputable factual material as can be found and also have regard to probabilities of behaviour.  The Judge has not done this regarding the evidence argument.

[14]     Counsel before me have traversed the authorities on whether there is a need to give reasons and whether or not a decision can be set aside for want of reasons.

[15]     I think there is a distinction between the high desirability of Judges to give reasons with a view to maintaining public confidence but as from the failure to give reasons as a ground for vitiating a decision, the distinction is drawn in R v Jefferies

(1999) 17 CRNZ 128.  The relevance of reasons on appeal is for the Court to use the reasonings when considering whether or not the conviction is unsafe.

[16]     In this case the young lady complains to the police on 2 December, alleging the  incident  took  place  on  23  November.    Her  evidence  is  full  of  detail  and contextual material explaining an evening at the pub, the visit to Chanelle’s address and then the subsequent events.    It has by that detail, material which could give considerable comfort to a trial Judge that this was not being made up.  It certainly gets, on the face of it, into a prima facie case and calls for an answer.  The accused gave evidence and was cross-examined.  The cross-examination was not lengthy and did not go beyond putting the propositions.  That may not really be a criticism of the prosecuting Sergeant because there was not much more the Sergeant could put, this being a ‘she says, he says’ case.

[17]     Mr Mackey says in his argument that the statutory test for a miscarriage of justice is met if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant.

[18]     The complainant’s evidence is, in my view, on the face of it, suspect as to the damage to the window and the damage to the vinyl.  The car itself is close to being naturally a wreck in its own right.  It is a 1984.  The back left hand rear door is some sort of replacement.  It is white.  The left hand rear hubcap is gone.  The left hand rear part of the bumper bar is gone.  That is immediately below a broken tail light. There are other dents in the body of the car, particularly to the hatch.

[19]     I am left with the view that a jury might well find that the witness was telling the truth that there had been two rows that evening after the pub, but be left in doubt as to whether the appellant had damaged the door and the window while kicking the vehicle  and  then  be  left  in  doubt  as to  whether  the  tomahawk  actually  caused damage.  He may have picked it up but whether he had caused those cuts to the vinyl on the dashboard is very much in doubt in my view.     The police photographer had an opportunity to examine and/or photograph whether the white foam underneath the cuts had been cut by the blade of the tomahawk.  There is no evidence of this from the photo nor any testimony from the police in this regard.  The vinyl is very old.  It

could easily have been damaged by the sun.  It is hard to imagine the blow inflicted in the way suggested by the witness  on  the  vertical  plane  as  distinct  from the horizontal plane.  The horizontal plane looks more like sun damage than tomahawk damage and as I say there is no evidence of any blade marks on the foam underneath either side of the vinyl.

[20]     The charge was of intentional damage.   That is distinct from there being a row or argument.  In the end it is a difficult call to make but I have been increasingly unconvinced by the reasoning of the Judge and I am satisfied that the conviction is unsafe.

[21]     The appeal is allowed.  The conviction is set aside.

Fogarty J

Solicitors:

J W Mackey, New Lynn, Auckland, for Appellant

Meredith Connell, Auckland, for Respondent