T v Police HC Whangarei CRI 2008-488-24

[2010] NZHC 7

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2008-488-24

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 February 2010

Appearances: G P Denholm for Appellant

D A Coleman for Appellant

Judgment:      3 February 2010

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Whangarei

Foy & Halse, Epsom, Auckland

T V POLICE HC WHA CRI 2008-488-24  3 February 2010

[1]      On  3  February  2009  T    was  convicted  in  the  District  Court, Kaitaia, of assault with a weapon on 22 July 2008. He was acquitted of threatening to kill. On 18 February he was sentenced to 100 hours community work. Mr T   appeals both his conviction and sentence.

[2]      In convicting him in the face of his denial and the consistent evidence from his wife and daughter, Mr T   contends the Judge convicted him in the face of evidence that must have led him to a reasonable doubt. The evidence independent of the complainant’s evidence, Mr T   contends also, either does not suffice to support, or is positively inconsistent with, the Judge’s conclusion. In short, he contends that his conviction is unsupported by the evidence.

[3]      As to the sentence imposed, he contends, it was excessive. He ought to have been convicted and discharged, but having heard the argument on the appeal, I have concluded that everything hinges on the conviction entered and this decision has that exclusive focus.

Appeal principles

[4]      This is an appeal under s 115 of the Summary Proceedings Act 1957. It is under s 119 by way of rehearing. Section 121 gives this Court a wide power to resolve the appeal in such fashion as it considers just.

[5]      On a general appeal, Elias CJ said, speaking for the Court in Austin, Nicholls

& Co Inc v Stichting Lodestar [2007] NZSC 103 at [16], an appellant is ‘entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and involves a value judgment’. Earlier, the Chief Justice said at [5], though the appeal court does not owe deference to the court appealed from, the latter may enjoy a particular advantage, most notably 'the opportunity to assess the credibility of witnesses where such assessment is important'. For then, the Chief Justice said:

In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis

for rejecting the reasoning of the tribunal appealed from and that its decision should stand.

[6]      Ultimately,  the  Chief  Justice  said  in  [4],  there  is  an  onus  lying  on  the appellant to satisfy the appeal court that it should differ from the decision under appeal. It is only if the appeal court considers the decision appealed is wrong that it is justified in interfering with it.   It is against that background that I turn to the decision under appeal.

Decision under appeal

[7]      The Judge began by identifying the elements of the offence and where the onus of proof lay. It was incumbent on the prosecution, he said, to prove beyond all reasonable doubt an assault and the use of a weapon. As to that, he continued to say, there was a conflict in the evidence and he described to what extent that was so.

[8]      On 22 July 2009, he said, the complainant, Mr Knight, went to a property at Kumi Road, Awanui, belonging to an estate of which his wife was a beneficiary. He went to take photographs of an aspect of the property, giving rise it seems to a dispute with the adjoining land owner, the Mengha Trust of which Mr T   was trustee. As he was leaving the trust property, close to a disused pigsty, he said, and just as he was about to enter a right-of-way shared with the trust, he was confronted by Mr T  .

[9]      Mr T  , Mr Knight said, first insulted him, then picked up a batten and hit him with it three times, to the back of the left shoulder, to the left knee area and the back left calf. Mr T  , Mr Knight said, then told him to leave. Mr Knight did so after first confirming with Mr T   that he was free to use the right-of-way. The Judge noted in that context a point to which I will return, that Mr Knight saw Mrs T   and one of their children present as he was leaving.

[10]     Immediately after this incident, the Judge said, Mr Knight telephoned his wife, went to the police and made a complaint and was photographed and then went to a general practitioner and sought medical advice. Prosecution exhibits to which

the Judge then referred were the photographs taken and a brief letter from a general practitioner, who was also called as a witness.

[11]     The photographs were produced, as the Judge said, to confirm marks to the left shoulder and knee area and left calf. (I should add, though, that only the calf was exposed; the other photographs showed marks to clothing worn by Mr Knight.) The general practitioner, Dr Lomb, the Judge said, noted early bruising to the left knee but a good range of movement. He noted that Mr Knight reported some pain to the left calf area but found nothing visible. He noted no skin changes or swelling to the left shoulder and said that Mr Knight retained a good range of movement.

[12]     Under cross-examination, the Judge said, Mr Knight stated that he first saw the defendant’s wife and child after he had been assaulted; and against that the Judge turned to the evidence for Mr T  , and that of Mrs T   and their daughter Alyssa, who said that they had seen Mr Knight on trust property earlier, not on estate property, and had seen him fall off a gate. It was as a result, Mr T   said, as they did also, that he went to the point where the encounter happened and accused Mr Knight of trespassing and warned him off.

[13]     The Judge then said that in the distinct conflict of evidence that resulted he had to be satisfied that Mr T   had assaulted Mr Knight in the way that Mr Knight alleged beyond reasonable doubt. He concluded that Mr Knight was to be preferred because Mr T  , Mrs T   and their daughter had each said that when they left their home and walked towards where Mr Knight was Mr T   was 40 metres ahead. Relying on that, and Mr Knight's evidence as he understood it to be, that Mrs T   and Alyssa were not present when he was assaulted, the Judge said this:

[15]      … The inference I draw is that it is clear that there was sufficient time for Mr T   to approach and assault Mr Knight in the way in which Mr Knight says he did before Mrs T   and her daughter got to the point where they say they took shelter and from where they could see both Mr T   and Mr Knight.

[16]      That evidence was also consistent with what Mr Knight said. That is that at the time that he was assaulted he did not see Mrs T   or her daughter but he did see them after the assault. The direct and clear inference

from that is simply because Mr T   and Mr Knight were not within sight of Mrs T   and her daughter at the time the assault took place.

[17]     The confrontation was obviously still going on by the time both Mr T   and Mr Knight approached the gate and then Mr Knight left through that gateway down the road and of course that also is consistent with what Mr Knight says occurred on that morning.

[14]     The Judge then moved to find that there was a distinct historic context. There was an ongoing dispute between Mr Knight and Mr T  . Mr T   was clearly annoyed by what he took to be Mr Knight's trespass that day and therefore acted as the Judge found he did. He assaulted Mr Knight.

[15]   The Judge also found the medical evidence and photographic evidence consistent. He set to one side the conflicts in the evidence about whether it was raining that day, about whether Mr Knight went back some three hours later as the Titfords say he did and he denied; and most critically as to whether he may have fallen off a fence before the incident, explaining the marks on his leg and clothing. In concluding his decision he said this at [20]:

… The overall factual scenario is such that the assault could have been carried out even though Mrs T   and her daughter did not see it. I am quite satisfied that they were truthful witnesses and they gave evidence as to what they saw. The important point of course is that they did not see what happened which forms the basis for this charge.

Knight evidence

[16]     Mr T  's central point is that this conclusion is inconsistent with Mr Knight's own evidence. He contends that Mr Knight did not say that Mrs T   and Alyssa were absent when the assault took place. He said the contrary. The Judge does not identify in his decision precisely where Mr Knight, when cross-examined, said that they were absent, it has not been identified on this appeal, and I cannot myself see that he distinctly said that in that phase of his evidence.

[17]     Rather, and this is the passage of Mr Knight's evidence on which Mr T   relies, he said this in evidence in chief:

Q:       What did  the  defendant initially say before  hitting you  with the batten? What was he saying to you when he first picked it up?

A:       That I had caused a lot of trouble and that I had got council who –

apparently I had got Dennis Wright on to him.

Q:       Who else was present when this happened?

A:His son, who was standing approximately two, three metres away, and his wife was out on the roadside.

Q:       How far away was that, where his wife was? A:    15, 20 metres.

Q:       And what part if anything did they have to do with it, involvement? A:      None whatsoever.

[18]     On the evidence of Mr Knight, spontaneously given in examination in chief, Mr T   contends, both Mrs T   and a child of theirs, whether a daughter or son, is immaterial, were present when the assault took place. The Judge could not conclude that they were absent. He had positively to reject their evidence. He could not have done so having accepted their evidence as to whether earlier Mr Knight had fallen off a gate. There the Judge discounted Mr Knight's evidence as mistaken.

Conclusions

[19]      That  submission  is  fairly  made.  The  Judge  was  faced,  on  Mr  Knight’s evidence,  with  a  more  complete  conflict  than  he supposed.  If he accepted  Mrs T   and the daughter as truthful witnesses, as he did, whatever he might have thought of the evidence of Mr T  , that must, I consider, have led him, unless there was independent evidence supporting Mr Knight, to a reasonable doubt.

[20]     The independent evidence, the photographs and the medical examination, were consistent with Mr Knight’s account as long as the Judge accepted Mr Knight, independently of those strands of evidence, as a truthful witness whose evidence was sufficiently compelling to withstand challenge, not just from Mr T  , but also from Mrs T   and the daughter.

[21]     However, if he ought to have had at least a reasonable doubt arising from the conflict as it truly was, the photographs and the medical evidence could not go the

distance of supporting the charge independently beyond reasonable doubt. On the appellant’s argument, those exhibits might not stand scrutiny.

[22]     The result is that, although, as I find, the Judge correctly identified in large part the evidence in conflict, on the critical point on which he founded his judgment, he unfortunately departed from of the prosecution's principal witness, Mr Knight. The  evidence  as  a  whole  cannot,  therefore,  I  consider,  support  the  conviction entered. It will be set aside on this appeal.

[23]     That being so, the conviction entered and the sentence imposed must be quashed. I have no call to consider the question whether the sentence was manifestly

excessive.

P.J. Keane J