Taiwhanga v Police

[2019] NZHC 1164

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-13

[2019] NZHC 1164

BETWEEN

REVELL DOUGLAS TAIWHANGA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 May 2019
Appearances:	L Lafferty for Appellant F Cleary for Respondent
Judgment:	14 May 2019

ORAL JUDGMENT OF GRICE J

[1]                 On 28 January 2019, Mr Taiwhanga appeared before the Napier District Court. In an oral decision on the same day,1 the Judge found Mr Taiwhanga guilty of wilfully doing an  indecent  act  in  a public place.2  Mr Taiwhanga  was  later sentenced  to  12 months of intensive supervision.3

[2]  Mr Taiwhanga appeals his conviction on the basis that the Judge erred by failing to “enunciate the burden of proving the charge and the test of proof”.4

Factual background

[3]                 On 21 August 2018 a witness was walking along the Marine Parade in Napier with her four-year-old son around lunchtime. She said she walked past a Māori man

1      Police v Taiwhanga [2018] NZDC 6890.

2      Crimes Act 1961, s 125(1), maximum penalty of two years’ imprisonment.

3      Police v Taiwhanga [2018] NZDC 5667.

4      I also deal below with the submission that the Judge failed to consider all the evidence and failed to give proper reasons. These were expanded on in argument.

TAIWHANGA v NEW ZEALAND POLICE [2019] NZHC 1164 [14 May 2019]

sitting on a bench. She said she saw his hand moving in a masturbating motion in his groin area. When she walked past him, she said he sped up this motion. Concerned by this behaviour the witness rang the police. When Constable O’Leary arrived the witness told him what she had seen and described the man. The description fitted that of Mr Taiwhanga. The witness took the officer back to the bench where the witness says she had seen the man masturbating. The witness said she did not see anything other than the man’s hand and she was unsure of which hand was being used. When asked about the incident by the police officer, Mr Taiwhanga said he had been “taking a piss” and spitting.

District Court decision

[4]                 In the District Court, the Judge noted the defence to the charge. It was that there was no certainty as to identification, as there was no adequate linkage between the man the witness saw and Mr Taiwhanga. The Judge rejected this argument on the basis that Mr Taiwhanga was apprehended and arrested shortly after the incident that the witness had described. Mr Taiwhanga also took the police directly to the bench where the witness said she had seen the man masturbating. The Judge also noted that Mr Taiwhanga matched the description that the witness had given.

[5]                 On the issue of whether or not the behaviour observed was in fact masturbation, the Judge said that although no penis or other skin was seen, the actions constituted masturbation, which must be indecent in the minds of right minded people. The Judge said “[i]t is simply a reasonable inference that he was masturbating in a public place, and that in my view is indecent”.5 The Judge convicted Mr Taiwhanga on that basis.

Law on appeal

[6]                 Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a “miscarriage of justice has occurred for any reason”.

5      Police v Taiwhanga [2018] NZDC 6890 at [8].

[7]                 A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity”. As demonstrated in the legislation, and reiterated by the Supreme Court, not every error or irregularity causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.6

[8]                 An appellate Court assessing the appeal has limitations as it does not see or hear directly from the witnesses.7 The Court should only interfere with the factual findings of the trial judge “in exceptional circumstances”.8

[9]                 Section 232(2)(b) of the Criminal Procedure Act provides that the High Court must allow an appeal where a Judge has erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. The verdict of a Judge sitting alone is to be treated as the equivalent of a jury’s verdict.9 R v Owen affirmed the principles set out in the R v Munro. To that extent, the principles set out by the Supreme Court in R v Owen apply:10

(a)    The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b)    Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.

(c)    The weight to be given to individual pieces of evidence is essentially a jury function.

(d)    Reasonable minds may disagree on facts.

(e)    Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

6      Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

7      Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]–[31].

8      Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38]; affirmed in McLean v R [2017] NZHC 3127 at [10].

9      Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].

10     Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13]; affirming the principles set out in R v Munroe [2007] NZCA 510, [2008] 2 NZLR 87.

(f)    An appellant who invokes s 385(1)(a)11 must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

[10]              A simple disagreement with a Judge’s factual assessment is therefore insufficient, “[s]omething more is required to meet the “real risk” test”.12

Discussion

[11]              The appeal ground here is that the Judge failed to “enunciate the burden of proving the charge and the test of proof”. Although it is phrased as a failure to expressly identify the burden of proof, it is also an argument that the proof before the Judge was insufficient to support the charge. Mr Lafferty enlarged on this in his submissions. He said that while the appellant did not give evidence, he had given an explanation to police, and that should have weighed more heavily in the Judge’s assessment. In particular, he says the Judge should not have made the inferences he did in favour of the prosecution and the Judge did not explicitly reject the defendant’s explanation.

[12]              However, in my view the Judge implicitly rejected the defendant’s explanation. The defendant at the time explained he was “taking a piss”. This does not appear consistent with the observations of the witness that the defendant was seated throughout the incident. The Judge said:13

[7]        The defence is that there is no certainty as to identification, no adequate linkage, but in my view the fact that the defendant was arrested very shortly after [the witness] had seen him, that he took the police to the very park bench where [the witness] said she observed him masturbating, then insofar as time and place are concerned, in my view there is adequate linkage to put Mr Taiwhanga on the spot so to speak.

[8]        Insofar as whether or not it was an indecent act performed given that [the witness] did not see his penis or his skin, in my view his actions constitute masturbation. Masturbation in a public area must be indecent in the minds of right minded people. It may be that when members of the public see such things that they should go and take a closer look, but that is simply impractical,

11 Section 385 of the Crimes Act 1961  was replaced by s 232 of the Criminal Procedure Act. The  new section does not materially change the approach to conviction appeals: Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [56].

12     Gotty v R [2017] NZCA 528 at [15].

13     Police v Taiwhanga [2018] NZDC 6890 (emphasis added).

particularly when she was with a young child, and in my view, it is just simply unreasonable to expect a member of the public to see someone they suspect masturbating, not once, but on two or three occasions to go up and have a closer look. It simply is a reasonable inference that he was masturbating in a public place, and that in my view is indecent and he is convicted.

[13]              On the submission that the Judge failed to note the standard of proof required to make findings in a criminal matter, the Crown submits that the Judge is an experienced District Court Judge and it is inherently unlikely that he was unaware of the criminal burden. In that respect I note the remarks of Justice Priestly in Lolohea v Police where he said:14

A District Court Judge sitting in summary jurisdiction who is faced with conflicting evidence of the type we have here, does not in my judgment need to give him or herself directions on the burden of proof. The District Court Judges by training and temperament have the necessary legal knowledge and forensic skills to grapple with the criminal onus without having to remind themselves about it during the course of giving decisions.

It is unnecessary in this case for the Judge to have reminded himself of the criminal burden of proof. This ground must also fail.

[14]              Turning to the issue Mr Taiwhanga raised in relation to the evidence referred to in the Judge’s decision, in my view it is a simply a disagreement with the Judge’s factual assessment. As noted in Gotty v R, “[s]omething more is required to meet the “real risk” test.15

[15]              Mr Taiwhanga in his submissions outlined the evidence before the Judge and pointed to why he did not believe it supported the factual assessment that the Judge made. However, while Mr Taiwhanga may not agree with that assessment, the Judge had the facts before him upon which to base his decision and make the inferences that he did.

[16]Therefore, this submission must also fail.

14     Lolohea v Police HC Whangarei AP16/01, 19 June 2001 at [15].

15     Gotty v R [2017] NZCA 528 at [15].

Conclusion

[17]              I conclude that there was no error in the District Court judgment. The appeal is dismissed.

Grice J

Solicitors:

L Lafferty, Napier

Crown Solicitor’s Office, Napier