T v Police HC New Plymouth CRI 2005-443-21

[2006] NZHC 185

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2005-443-21

BETWEEN  T

Appellant

ANDPOLICE Respondent

Hearing:         8 February 2006

Appearances: S Hughes for appellant

J S Gurnick for respondent

Judgment:      7 March 2006

JUDGMENT OF POTTER J

Solicitors:           Govett Quilliam, Private Bag 2013, New Plymouth

Crown Solicitor, New Plymouth

T V POLICE HC NWP CRI 2005-443-21  7 March 2006

Introduction

[1]      T    appeals  against  the  conviction  for  indecent  assault entered  following a hearing before Judge P D Mahony in the  District  Court  at Hawera on 11 November 2005.   The Judge ordered the appellant to come up for sentence if called upon within 12 months and pay a donation of $1,000 to the Salvation Army.  The sentence is not appealed.

[2]      The stated grounds of appeal are:

a)        The decision of the learned District Court Judge was unreasonable and not supported by the evidence.

b)His Honour made no finding as to the location, or specific details of the assault he found proven.

c)        His Honour erred in law in his applying the elements of the offence of indecent assault to the facts he found in this case.

Charge

[3]      The appellant was charged that on 5 July 2005 he indecently assaulted M by indecently touching her on her buttocks and her breast.

District Court decision

[4]      At  the  conclusion  of  the  hearing  on  11  November  2005  Judge  Mahony delivered an oral judgment.  He found the appellant guilty of the offence as charged to the extent of touching M’s buttocks (but not her breast).

[5]      The Judge found as facts:

a)        The appellant visited M a 75 year old woman who lives alone, at her home initially on 4 May 2005 to install Sky TV and then on 3 and 21

June and on 5 July to correct faults.

b)There  was  a  discussion  about  a  relationship  beyond  the  business relating to the faults in the TV and audio system at M’s home.

c)        The appellant and M’s assailant on 5 July 2005 were one and the same person.

d)There  was  “at  least  a  technical  assault”  on  M  by  the  appellant touching her bottom.

[6]      In considering the evidence upon which he based these findings, the Judge referred to difficulties in both the prosecution and defence evidence.

[7]      The first major difficulty in the prosecution evidence was that when giving evidence, M did not identify the appellant as the person who assaulted her.   The Judge said:

[M] gave evidence with certainty and conviction in her own mind that the person in Court was not the person who came to her home and assaulted her and she was very clear about that in responding to questions put to her in examination-in-chief, in cross-examination and in re-examination and she gave quite detailed evidence about the person who had dealings with her, describing him as someone with darker complexion with Asian features and in particular Asian eyes.   She also said that the person was of a different build from Mr T   who was present in Court.

[8]      However, the Judge concluded:

I am nevertheless satisfied that they are one and the same person.   The difficulty  created  by  her  evidence  is  the  fact  that  she  spoke  with  such certainty and conviction about an identification on which she was mistaken.

[9]      The second difficulty in the prosecution evidence identified by the Judge were the inconsistencies in M’s evidence about what Mr T   said to her about having a relationship.  The Judge said:

The second difficulty in the Crown case arises from her interview with

Belinda Dewar, a police constable, when she made her initial complaint on 7

July.  She told Constable Dewar that Mr T   told her he wanted a sexual relationship with her and that he wanted sex and cuddles.  When that was put

to Constable Dewar she confirmed that those were the exact words used by

the complainant but they were not the basis of the evidence that the complainant gave in Court.   Under cross-examination she did say that her

memory on 7 July would have been better or more accurate than her memory

at  the  hearing.    Her  evidence  at  the  hearing  spoke  of  a  relationship,  a possible relationship, of loneliness and of a desire to have cuddles, but she did not say that the person who made those advances and suggestions to her said that he wanted to have sex with her.

[10]     The Judge also referred to difficulties in the defence evidence:

There are a number of discrepancies in his [the appellant’s] evidence, both in the interview [with the  Police]  and  in his  evidence  today.    He  initially conceded that he touched her on the shoulder only.  He then demonstrated to the police officer that he placed his arm around the small of her back and said that that may have happened when he was endeavouring to support her from falling backwards when she was moving up a step or steps from the kitchen to the lounge.  He also said at one stage that the touching occurred at the door.

[11]     The Judge said that he was satisfied that Mr T   was less than perfectly candid in his interview with Detective Constable Constable Davison.

[12]     Against the difficulties on both sides the Judge made the findings referred to in [5] above.  The findings in c) and d) are at the heart of this appeal.

First ground of appeal - unreasonable decision

[13]     For the appellant, Ms Hughes submitted that the Judge’s decision that the appellant was the person who indecently assaulted M was unreasonable because it was  not  supported  by  the  evidence;  despite  repeated  opportunities  to  do  so  in evidence in chief and in response to cross-examination and re-examination, M not only did not identify Mr T   as the person she claimed had indecently assaulted her, but positively stated that he was not the person in question, going on to describe her assailant as being an Asian man and in particular with Asian eyes and of a different build and skin colour to Mr T  .   It was submitted that M’s evidence identified a person quite different from Mr T   as the person she said offended against her.

[14]     Mr Gurnick for the Crown submitted that the finding of fact that the appellant was M’s assailant was available to the learned District Court Judge based on other evidence, for example:

a)       The appellant accepted that he was the  person  who  attended  M’s house on 4 May 2005, 3 June 2005, 21 June 2005 and 5 July 2005. He conceded that no other person from his business was asked to carry out any work at M’s house.

b)There was other evidence, such as the appellant’s business card, to confirm that it was indeed the appellant who attended M’s house on the dates specified.

c)       M gave evidence that there were no other TV trades persons who came to her house on or during those times.   She specifically distinguished the person who she claimed assaulted her, from another man who visited the house whom she referred to as “Colin”, a lawn mowing man who had been mowing her lawns for approximately two years.

[15]     The  Judge  had  dismissed  an  application  for  discharge  of  the  appellant following the failure by M to identify Mr T   as the person who assaulted her, on the basis that there was sufficient evidence on the issue of identification to go to a jury.   When Mr Hannam, counsel for the appellant at the District Court hearing, made that application, the Judge raised with both counsel that there was a pre- hearing conference certificate completed by counsel for the defendant that certified (inter alia) that identity was not in issue.   Counsel for both the appellant and the Crown accepted before me that the certificate was irrelevant.  I agree.  The appellant accepted at trial that he was the person who attended at M’s home on the relevant dates.  The difficulties with identity arose only when, surprisingly to all involved at the hearing, M failed to identify the appellant as the person who came to her home, and furthermore described a person with features distinctly different from those of the appellant.  In his judgment, the Judge did not refer to this certificate, nor did he place reliance upon it in reaching his finding on the identity of M’s assailant.

[16]     Identification  evidence  is  notoriously  unreliable.     Juries  are  routinely cautioned as to the potential for unreliability of witnesses who give evidence of visual identification.  That warning is invariably required in relation to identification evidence which incriminates the alleged offender, not which excludes him as was the case here (s 344D Crimes Act 1961).   It was open to the Judge to find that M’s evidence of identification was unreliable and set it to one side; then to consider other relevant evidence in order to determine whether he was satisfied beyond reasonable doubt that it was the appellant who was M’s assailant on 5 July 2005.

[17]     There was other evidence including that set out in [14] to support the Judge’s finding.   That finding was available to him on the evidence.   The first ground of appeal therefore fails.

Second ground of appeal – no finding as to location or specific details of assault found proven

[18]     The Judge’s finding of the assault was:

… I am satisfied from Mr T  ’s concession that he had touched her buttocks to the point where he had apologised for that and where he told the Police Officer he needed to keep his hands to himself, that there was at least a technical assault on the complainant by the defendant touching her bottom.

[19]     The Judge was not prepared to make a finding that there was a touching of M’s breast, despite her clear evidence to that effect.  Given the unreliability of the evidence of M as to identification and the other matters referred to in [9], the Judge was faced with real difficulty in determining whether she was a reliable witness as to other matters on which she gave evidence.  Consequently, without confirmation from another source of her evidence that the appellant also touched her on her breast, the Judge concluded, correctly in my view, that it would not be safe to make a finding to that effect.

[20]     The Judge was satisfied to make a finding that the appellant assaulted M by touching her bottom because there was not only her evidence to that effect but confirmation by the appellant that he did so.

[21]     The finding of touching on the buttocks was available on the evidence.  The second ground of appeal fails.

Third ground of appeal – error in law in applying the elements of the offence of indecent assault to the facts found in the case

[22]     There are four essential elements of the offence of indecent assault:

a)       That the offender assaulted, i.e. deliberately touched the complainant;

b)       That the assault, in the circumstances, was indecent;

c)       That the offender intended to touch the complainant indecently. d)       That the complainant did not consent to the touching.

[23]     The Judge made a finding that there was “at least a technical assault” by the appellant touching M’s bottom.  While he made no specific finding that the touching was deliberate, that has to be implicit in the Judge’s finding that there was a “technical assault”.

[24]     The Judge seems to have inferred that the assault was indecent and intended to be indecent, because the appellant “had apologised for that” and had said to the Police Officer that he needed to keep his hands to himself.

[25]     The Police recorded a telephone discussion between M and the appellant on 8

July 2005.  The Judge said of this:

[M] gave evidence that in the course of the conversation she told Mr T   that she did not appreciate his touching her on the breast or the buttocks and that he apologised to her.  It was a very bad connection and it was unable to be recorded for the Court but in his interview with the police Mr T   conceded that he did hear the complainant refer to touching of her bottom but not her breast and conceded that he apologised for touching up her bottom.

[26]     Counsel for Mr T   made a number of submissions about this telephone conversation, the poor recording of it and the way it was put to Mr T   in the

video interview by Detective Constable Davison.  I consider the most important of these, was the submission that the apology made by Mr T   for touching M’s bottom (upon which the Judge placed reliance in finding that the appellant had indecently assaulted M), has to he put in context.  Ms Hughes submitted that what Mr T   apologised for, was causing offence to M, if in fact he had caused offence in the course of a coincidental or accidental touching, which he acknowledged both in the video interview and in evidence at the hearing.  But he did not acknowledge nor apologise for “groping” M in the area of her buttocks, as she claimed.   It was submitted that the Judge misdirected himself in ascribing the weight he did to Mr T  ’s apology to M given in the telephone conversation.

[27]     The  Crown  submitted  that  there  was  clear  evidence  that  the  appellant conceded that he touched the complainant’s bottom; he conceded as much in the video interview on a number of occasions.   It was submitted that the Judge was entitled to rely on M’s evidence that the appellant touched her bottom, and that the Judge did not have to  rely  on  the  appellant’s  apology because the  evidence  of touching of M’s bottom was clear.

[28]     The difficulty with the evidence of the apology said to have been given by the appellant on the telephone, is that only M gave evidence of the apology.   The Judge recorded that as follows:

M gave evidence that in the course of the conversation she told Mr T   that she did not appreciate his touching her on the breast or the buttocks and that he apologised to her.

[29]   Detective Constable Davison who was present during the telephone conversation, acknowledged in cross-examination that he did not hear the telephone conversation and did not hear the apology.  He said in answer to defence counsel:

M told me that he had apologised and I believed that the conversation was on tape and that we could transcribe it, so no, I didn’t hear him say that, no.

[30]     He acknowledged that he was incorrect when he put to Mr T   in the interview:

I listened to the conversation.  I heard you apologise for what you had done, ok so I believe that is what happened …

But it wasn’t appropriate how you touched her, I’ve listened to that conversation, I heard you say it, you apologised for it and that’s great, it was big of you to apologise to her … you did apologise to her and that’s, that’s good.

[31]     It was not surprising in the circumstances, that the Detective Constable did not hear the telephone conversation because apparently Mr T   was in his van and the line was very bad.  What he put to Mr T   in interview was therefore what M said she heard the appellant say, although the Detective Constable said that it was he who had heard the apology.

[32]     The statement that the Detective Constable had heard the conversation and the apology was repeated several times during the interview.  It was unfair to put the matter of the apology to the appellant in this way when clearly the Detective Constable had not heard the telephone conversation himself.   It clothed the proposition with a legitimacy it did not have.

[33]     Nevertheless,  the  thrust  of  the  appellant’s  responses  to  the  Detective Constable  in  the  very  lengthy  interview  was  that  he  had  probably  accidentally touched M on the bottom but that he certainly did not touch her on her breast.  He agreed that he apologised, but the context of the apology which he acknowledged, is important.

[34]     At page 21 of the 56 pages of transcript of the interview he said:

I don’t need to, um, make sexual advances towards people, and I wouldn’t do that.  And I’m sorry she has taken that the wrong way.  I’m very sorry for that. That that’s the way she thinks.

At page 26 he said:

Yeah I, understand.  I understand that but I can … I, I, didn’t do anything inappropriate, I don’t think I did, but if she thinks I did and that’s why I apologised, yeah [nods head – yes].

[35]     Other references to the apology in the lengthy interview with the Police, also need to be read in context.  Likewise the reference to needing to keep his hands to himself.  Thus, there is evidence to support the submission by Ms Hughes that Mr

T   was apologising for causing offence, if he had, and that the apology he acknowledged in the interview must properly be read in that context.

[36]     The Judge appears significantly to have relied on:

… Mr T  ’s concession that he had touched her buttocks to the point where he apologised for that

as evidence which carried the inference that the touching was indecent to satisfy that essential  ingredient  of  the  offence  of  indecent  assault.    But  that  was  not  the appellant’s evidence on that point.   At the very least, there had to be substantial doubt about it.

[37]     The Judge could not rely on the evidence of M alone to prove the charge.  As he stated, it would not have been safe to  do  so.    Consequently,  there  was  not evidence to prove the essential ingredient of indecency in the charge of indecent assault to the point of conviction.

[38]     The appeal must therefore be allowed on the third ground of appeal.

Result

[39]     The appeal is allowed.  The conviction is quashed.