Taylor v New Zealand Police HC WN CRI-2007-485-14

[2007] NZHC 704

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-14

BETWEEN  T

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 July 2007

Appearances: M Bott and A Rossiter for Appellant

G B Gimblett for Respondent

Judgment:      24 July 2007

Reasons:        26 July 2007

In accordance with r 540(4) I direct the Registrar to endorse these Reasons for
Judgment with the delivery time of 3.00pm on the 26th day of July 2007.

REASONS FOR JUDGMENT OF GENDALL J

[1]      This is an appeal against the appellant’s conviction of assaulting a female, entered  in  the  District  Court  at  Wellington  on  6  March  2007  after  a  defended hearing.  The appellant was fined $500 and ordered to pay witness expenses of $50 and Court costs of $130 and initially appealed against that sentence, but the appeal against sentence was abandoned when the matter was heard.

[2]      The police case was that the appellant  assaulted a woman, Ms W-E, on

4 November 2005 in office premises in Wellington after he had visited and become involved in an argument and angry altercation.  The complainant’s evidence was that

the appellant came into the office and although initially polite, began to yell and

T V NEW ZEALAND POLICE HC WN CRI-2007-485-14  24 July 2007

berate her so that she decided to leave the room or “head for the door” to distance herself.  Her evidence was that the appellant followed her closely and as she reached the doorway he dropped his shoulder  and pushed her into the doorframe.   Her evidence was that the appellant maintained an angry demeanour and was told by other persons to leave.  One of these was Ms L, who gave evidence that the appellant arrived at the office, and berated the complainant describing her as a “fat bitch” and a “fucking fat bitch”.  She said he was using a “menacing, intimidating, angry” tone. She described the complainant as endeavouring to walk away with the appellant “right next to her, right behind her” and that she was “trying to get away it seemed”. She did not describe seeing the act of assault.

[3]      In cross-examination it was put to Ms L that on a previous occasion she had said that “the guy has come out of the office and Nicky came out as well”.  Defence counsel endeavoured to elicit from Ms L evidence that the appellant left the room first – no doubt, because if that had been the case it may have cast doubt upon the evidence of the complainant that she was pushed from behind into the doorframe. So counsel’s question was::

“…it was quite possible that Mr T   walked out of the office first?”

Ms L first said:

“It’s possible yes.”

[4]      But then, when counsel asked whether that “probably would have happened”

the witness said:

“What – I don’t know.  They were close together at the time.  She seemed to be trying to get away from him so they were very close.  I’m not sure who passed through the doorway first.”

[5]      The appellant did not give evidence and it seems when interviewed by the police simply denied that any assault as alleged had occurred.

[6]      In her oral judgment Judge Kelly recorded the onus and standard of proof and that there was no expectation or requirement that the appellant should give evidence. She set out the issues to be determined, namely whether force had intentionally been

applied to the complainant’s body.   She reviewed at length the evidence and then repeated the necessity of the prosecution having to prove the charge beyond reasonable doubt.  The Judge stated the obvious point that it was necessary for her to assess the credibility and reliability of the complainant’s evidence and, essentially, this had to be accepted before a conviction could be entered.

[7]      Judge Kelly then set out the number of factors which she said influenced her in the assessment of the complainant’s credibility and reliability.   She noted that although there was some inconsistencies between the evidence of the complainant and Ms L, they were “unimportant to the crucial issue of what happened in the doorway”.   She observed that there had been corroboration of the complainant’s evidence as to the angry, aggressive approach of the appellant and she concluded:

“For the reasons given, I found the evidence of Ms [W-E] to be credible, that is, honest and sincere.  I am also satisfied that her evidence is reliable.  In particular, I am satisfied that she was not mistaken in her evidence that Mr T   dropped his shoulder and used his shoulder to shove her shoulder, resulting in the left hand side of her body going into the doorframe.”

[8]      She then proceeded to draw the inference which she said could safely be drawn from the evidence she found to be credible and reliable, namely that the application  of  force  was  intentional.    Accordingly,  she  found  the  charge  to  be proven.

Submissions

[9]      On behalf of the appellant counsel has submitted that it was not open to Judge Kelly to find the charge proved beyond reasonable doubt because, counsel said, there were inconsistencies between the two prosecution witnesses’ evidence; that there was therefore a breach of the presumption of innocence protected under s25(c) of the New Zealand Bill of Rights Act 1990;   and that the Judge failed to provide adequate reasons as to why she preferred the evidence of the complainant.

[10]     The thrust of counsel’s first submission was that the prosecution witnesses’ evidence as to the order in which the complainant and appellant proceeded through the doorway was different and inconsistent.  So, he argued, the Judge erred in saying that such inconsistencies were “unimportant to the crucial issue of what happened in

the doorway”.  Counsel referred to other alleged inconsistencies in relation to where the appellant and complainant were in the office at various times prior to the assault. Essentially, counsel submitted that the circumstances gave rise to reasonable doubt and the failure by the Judge to acquit violated the presumption of innocence.

[11]     Counsel lastly contended that the Judge erred in failing to give reasons why she accepted the evidence of the complainant, and did not give reasons as to why she did not accept the evidence of Ms L.

Discussion

[12]     When  the  transcript  of  evidence  is  read  in  its  entirety,  and  placed  into context, there was no material inconsistency in the evidence of the complainant and Ms L, as to the order in which the complainant and the appellant went through the doorway.  The complainant was certain as to how the events occurred and Ms L did not say the appellant went through the doorway in front of the complainant.   The exchange in cross-examination produced the true thrust of her evidence, namely that she did not know who was first because they were close together at the time and she was not sure who passed through the doorway first.  If anything could be drawn as an inference from her evidence, it was that the complainant was in fact in front because Ms L said;  “she seemed to be trying to get away from him….”.  Because she did not say that she saw the shoving of the appellant’s shoulder into the complainant – the inference might be that he was obscured behind the complainant. Efforts by counsel to elevate Ms L’s evidence to a level of being “inconsistent”, whilst valiant, cannot be supported by the transcript.

[13]     The Judge was quite entitled to refer to any inconsistencies that may have existed unimportant to the crucial issue of the intentional application of force to the complainant.  But even if there were material inconsistencies, which there were not, the fact finder is still entitled to accept the evidence that he/she or, it (if a jury), regards  as credible and reliable.   The Judge did so, expressing her  conclusions clearly and cogently.  The appellant’s challenge is to a factual finding which has no merit.

[14]     Likewise, the challenge to the Judge’s decision on the basis that she failed to give adequate reasons for her findings, fails.  Of course, it is well established that Judges must do their best to provide reasons for their decisions which are adequate to the occasion;  R v Awatere [1982] 1 NZLR 644 (CA), so that a party knows why decisions have been reached and so that the reasons can stand up to appellate scrutiny; see T    v  Police  HC  WN  CIV-2004-0485-000022  3  May  2004

Ronald Young J.  A Judge should ordinarily give reasons for rejecting the evidence of a witness which evidence is material to the outcome.   But the extent of the treatment required of the reasons given will depend upon the circumstances of the case but be “adequate to the occasion”.

[15]     The Judge did not reject the evidence of Ms L.  There was no other evidence that contradicted the complainant in any material way.

[16]     Although counsel submitted in this case that a defendant who gives evidence is entitled to know why his evidence was not accepted, that is irrelevant to this appeal because the appellant did not give evidence.   What counsel was actually submitting is that the Judge had to give reasons why she rejected the evidence of Ms L, but Ms L’s evidence, on the crucial aspect was not in conflict with that of the complainant.  In any event the Judge gave reasons as to why she found the charge to be proven and why she believed the evidence of the complainant.  She said she found the complainant to be credible, honest, sincere and reliable and not mistaken in her evidence.  She did not say that she rejected the evidence of Ms L but simply, if and where inconsistent, it was immaterial to the crucial issue.   Those reasons  were adequate and indeed could hardly have been improved upon.  The challenge to the Judge’s decision based upon the claimed failure to give reasons is without merit.

[17]     This was a carefully reasoned decision, logically and thoroughly presented in a way which, many oral judgments at the conclusion of first instance hearings could well do to follow.   It was not a decision, or reasoning process, deserving of any criticism.

[18]     The appeal is dismissed.

………………………………….

J W Gendall J

Solicitors:

M Bott, Wellington for Appellant

Crown Solicitor, Wellington for Respondent