T v Police HC Rotorua CRI-2005-470-37

[2005] NZHC 234

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2005-470-37

BETWEEN  C    T  

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 November 2005

Appearances: Michael Talbot for Appellant

Sarah Simmers for Respondent

Judgment:      16 November 2005

JUDGMENT OF HARRISON J

SOLICITORS

McCaw Lewis Chapman (Hamilton) for Appellant

Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

T  V POLICE HC ROT CRI-2005-470-37 16 November 2005

[1]      On  30  August  2005,  following  a  summary  trial  in  the  District  Court  at Tauranga, Judge Christopher Harding found Mr C  T   guilty of one charge of assaulting a female, Ms H  R .  The Judge subsequently entered a conviction and ordered Mr T   to pay emotional harm reparation of $350 and Court costs of $130.

[2]      Mr  T    has  appealed  against  his  conviction  and  sentence.     He  is represented today by Mr Michael Talbot.   At trial Mr Philip Morgan QC was his counsel.

[3]      The material background circumstances are not in dispute.   At the relevant time  Mr T    and  Ms R      were  living  as  partners  in  the  RSA  village  at Mt Maunganui.   Mr T   was then aged 69 years; Ms R     was aged 64.   In May  2005  Mr T    underwent  a  prostate  operation  at  Waikato  Hospital  in Hamilton.   He remained there  for several days.   On release he was  advised to exercise physical care and caution.   He was suffering from an abdominal incision about 11 cm long running from his midriff to his groin.

[4]      On 11 June Mr T   went to stay with his daughters and grandchildren in Hamilton.   He made a reasonable physical recovery, even though his movements remained restricted.  On 18 June he drove himself back to Mt Maunganui.

[5]      Mr T    went  directly  to  his  unit.    Ms R      was  absent.    She  was engaged in a swimming meeting.  She has apparently enjoyed considerable success in that sport; in her early years she represented New Zealand.

[6]      Late in the day Mr T   went to the RSA which was nearby.  He remained there for about 1¼ hours.  He consumed between two and three glasses of wine.  He went  home  between  6  and  6.30 p.m.    Ms R      had  returned  by  that  time. Subsequently  the  two  had  an  argument.    The  details  are  unimportant.    Both Ms R      and  Mr T    gave  evidence  about  subsequent  events.    The  Judge summarised Ms R    ’ evidence as follows:

[9]      Ms R    ’ evidence is to the effect that he appeared agitated and annoyed, that they ended up having a discussion, which from her perspective

was not argumentative, but from her description from Mr T  ’s position was about the missing tallboy; that when putting a meat pack that he had won in a raffle into the fridge, Mr T   had spilled sauce on the floor increasing his anger, and that she decided to leave, returning to check up on her  bag  and  pick  it  up,  when  she  was  pushed  by  him  forwards  into  a bookcase, hitting her back.

[10]     It was her evidence that when she got up she turned and asked why that happened, and she was pushed again against a wall, ending up falling from that onto a bed in an adjacent but connected room.  It was her evidence that she then got up and said ‘Colin stop’, but he then continued to punch her to the face with a closed fist, she avoiding that to a large or complete extent, because from her perspective he was somewhat affected by alcohol, and she was easily able to avoid it. She then left.

[7]      Later  in  the  course  of  his  decision  Judge  Harding  made  these  express findings:

[16]      This is essentially a question of credibility.   I have considered the evidence of the witnesses, and made a decision about the parts of their evidence, which I accept and do not accept.  As part of that process I have had to try and assess and evaluate the witnesses and consider the reasonableness, appearance and probability of their evidence, and the extent to which it is supported or not by other evidence.

[17]      I accept that at the relevant time Mr T   was still recovering from his operation.  I do not however accept that his state was such that it was  not  possible  for  him  to  have  behaved  in  a  manner  described  by Ms R    .  He was well enough to have driven himself from Hamilton, to have gone to the RSA for an hour or so, and got back, and the sort of force described by Ms R     was not in my view substantial, even if it was deliberate.

[18]      Where there is a conflict in the evidence of Mr T   and that of Ms R    , I generally prefer the evidence of Ms R    .  Her evidence was given clearly, although arguably with a degree of exaggeration, and she was entirely unswayed in cross-examination.  Mr T  , although denying the assault as was alleged, acknowledged a degree of annoyance, and the description of events provided by Ms R     rang rather truer than that overall of Mr T   although I accept in a broad sense the background matters which he described, and other witnesses described for him.

[8]      In advance of today’s hearing both counsel have submitted comprehensive and constructive written synopses of submissions.  Mr Talbot has supplemented his synopsis with oral argument.  He has realistically acknowledged the obstacles in the way of a successful appeal against a decision based expressly upon a credibility finding.  The principle is well settled that an appellate Court will only interfere with a trial Judge’s findings of fact in exceptional circumstances (Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA)).

[9]      Today Mr Talbot has focused on two arguments.  First, he submits that the Judge made a credibility finding adverse to Mr T   in circumstances where his account of relevant events was not challenged in cross-examination.   Mr Talbot is correct.    Mr Morgan  led  Mr T  ’s  evidence.    The  police  prosecutor  cross- examined him.  He did not, as he should have done, test the veracity of Mr T  ’s account by putting to him for comment Ms R    ’ version.  This is a fundamental rule of fairness.   It also serves the purpose of enabling the trial Judge to make a comparative evaluation of the evidence of both complainant and defendant when taxed with the other’s story.  Indeed, as Mr Talbot pointed out, Judge Harding placed apparent  weight  on  the  fact  that  Ms R      “was  entirely  unswayed  in  cross- examination”.  Mr T   was not afforded that opportunity.

[10]     In principle Mr Talbot is correct.  The Judge should have given appropriate weight to the prosecution’s failure to challenge Mr T   with Ms R    ’ account. However, this failure was ameliorated to a significant extent.  In evidence-in-chief Mr Morgan   himself   asked   Mr T     to   comment   on   Ms R    ’   account. Mr T   said ‘I know nothing about that” in answer to the allegation that he pushed her so that her head or body banged into the book case.   He emphatically denied pushing Ms R     into the bedroom and on to the bed.  He said that she did not fall there.   His response was similar to the suggestion that he swung a fist or blow in Ms R    ’ direction.  Significantly, though, he did admit “brushing her arm away” at one stage; in other words, there was, as Ms R     said, an altercation.

[11]     Mr Talbot’s argument has caused me to pause.  However, on reflection I am satisfied that the Judge had a proper basis for his credibility finding.  I repeat that the prosecution should have taxed Mr T   in cross-examination with Ms R    ’ account.  But on my assessment it was unlikely to have influenced or affected the Judge’s conclusion given his absolute acceptance of Ms R    ’ credibility.

[12]     Second, Mr Talbot submits that the Judge should have entertained serious reservations about Ms R    ’ credibility given this conclusory observation:

[20]      I do not find the inconsistency in Ms R    ’ evidence as to whether she was hit to tell compellingly against my conclusions.   When giving evidence before me she initially explained that she had not been punched. When cross-examined about that, explained that Mr T   had swung a fist

at her which she had avoided, or largely avoided, and it was clear that she did not regard that as a hit or a punch.

[13]     I have examined the evidence myself.  I am satisfied that there was room for confusion or ambiguity about what Ms R     said to Mr Tremein.  I do not regard the issue as material.

[14]     Accordingly,  despite  Mr Talbot’s  careful  and  concise  arguments,  I  am satisfied that this case does not approach the threshold of appellate intervention into a trial Judge’s findings of credibility.  Accordingly, I am satisfied that the Judge had a proper evidential foundation for finding Mr T   guilty of assaulting Ms R    .

[15]     However, within the ambit of an appeal against sentence, Mr Talbot submits that Judge Harding should have discharged Mr T   without conviction.   The Judge’s sentencing notes are brief.  Of most significance is an omission to refer to or consider a submission that Mr T   be discharged.  Plainly the facts of this case would  justify  such   a   submission.      It   would   be   remarkable   if   counsel   of Mr Morgan QC’s experience and ability had not made it.  Mr Talbot has spoken to Mr Morgan  who  has  authorised  him  to  confirm  that  he  did  indeed  make  that submission.

[16]     Accordingly, in view of what can only have been inadvertence by Judge Harding  in  omitting  to  discuss  Mr Morgan’s  application,  I  have  jurisdiction  to consider the issue afresh.   The only relevant statutory guideline is a prohibition against discharging Mr Talbot without conviction unless I am satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence” (s 107 Sentencing Act 2002).

[17]     As I have noted, Mr T   is 69 years of age.  He has enjoyed an exemplary career.  He has no previous criminal convictions.  Among other things, Mr T   has served the country; he was a member of the New Zealand Army.  He saw service in the First Battalion New Zealand Regiment in Singapore and Malaysia from 1957 to 1959.

[18]     Additionally Mr T   has sworn an affidavit in this Court.  The evidence it contains was unavailable to Judge Harding.  He refers particularly to his intention to travel to Malaysia on a 50th reunion commemorative tour in 2007.  It will be his first overseas journey, except for one to Australia, since he left Malaysia in 1959.   He says he has made inquiries about whether or not his assault conviction would prevent him from travelling.  He has been told that it will likely prohibit him from entry into

Malaysia.

[19]     This is a significant factor.  As I have said, evidence of it was unavailable to Judge Harding.   I must undertake a balancing exercise.   I acknowledge that the offence was serious.   Courts treat any assault by a male on a female seriously. However, I accept Mr Talbot’s submission that within that spectrum the assault was at the lower end of the spectrum; it did not cause Ms R     permanent harm.  She was able to escape.  There was no evidence of any injury.  Ms R     did not need or seek medical attention.  Furthermore, the Judge made a reparation order, which must of  course  stand,  that  Mr T    pays  Ms R      $350.    I  regard  that  as  an appropriate step in atonement for his crime.

[20]     After weighing up the factors, I am satisfied that the  consequences of a conviction for Mr T   are out of all proportion to the gravity of this particular offence.     It  would  be  unfortunate,  even  cruel,  to  deprive  Mr T    of  the opportunity to travel overseas, probably for the last time, on account of a conviction for assault.  In this respect I accept Mr Talbot’s submission that, while these things cannot be forecast with certainty, a real risk exists that the Malaysian immigration authorities will refuse Mr T   entry to their country if he proceeds on his planned tour, which is to be paid for by his children, in 2007.

[21]   Accordingly, on this ground alone I allow Mr T  ’s appeal against conviction and sentence to this extent.   He is discharged without conviction. However, the orders to pay reparation and costs remain.   I wish to express my appreciation  for  the  quality of  the  submissions  advance  both  by Mr Talbot  and

Ms Simmers today.

Rhys Harrison J