Thompson v Police
[2019] NZHC 3241
•10 December 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000156
[2019] NZHC 3241
BETWEEN GRANT LESLIE THOMPSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 December 2019 Appearances:
Appellant Appears in Person
J H Whitcombe for Respondent
Judgment:
10 December 2019
JUDGMENT OF GENDALL J
This judgment was delivered by me on 10 December 2019 at 11:00 a.m. pursuant to Rule
11.5 of the High Court Rules Registrar/Deputy Registrar Date: 10 December 2019
THOMPSON v NEW ZEALAND POLICE [2019] NZHC 3241 [10 December 2019]
Introduction
[1] Mr Thompson, the appellant, was found guilty at a judge-alone trial of resisting police and assaulting a police officer.1 He was subsequently sentenced to 65 hours’ community work.2 The appellant appeals both his conviction and sentence. It appears the appeal may have been filed one day out of time. No objection to granting of leave is taken by the respondent. No prejudice is occasioned by this short delay. Leave to appeal out of time is granted accordingly.
Facts
[2] The appellant and his associate Ms Kelly were at The Warehouse retail shop on 14 July 2018. Constables Johnston and Smart were called to The Warehouse because of a complaint of shoplifting. They had with them a Mr Dixon at the time, who was a young person interested in joining the police.
[3] When the constables arrived at The Warehouse, they were directed to the appellant and Ms Kelly. The appellant denied shoplifting any items. He then purchased a can of drink and, according to the prosecution, produced three cosmetic items from his pockets and placed them on the counter, making a comment along the lines of “I suppose you want these back”. He then left The Warehouse and was followed out by Constable Johnston and Mr Dixon.
[4] Constable Johnston arrested the appellant for shoplifting, handcuffed him, and took him towards the police car. According to the Constable, the appellant did not co- operate, but tried to pull away from him as they got closer to the police car. He was forced up against the police car as the Constable tried to restrain him, then attempted to knee the Constable in the groin twice while trying to pull away from him.
[5] The appellant was placed into the back of the police car with the help of Constable Smart. Constable Johnston leaned across the appellant to plug in the seatbelt, with Constable Smart assisting from the other side. The appellant is alleged to have spat at Constable Johnston in the face. He was then heard to “hoick” more
1 Police v Thompson [2019] NZDC 20743.
2 Police v Thompson [2019] NZDC 20735.
spittle into his mouth, at which point Constable Johnston punched him in the side of the mouth, afraid he would spit at him again.
District Court decision
[6] The appellant represented himself at trial. After satisfying himself that the appellant understood his rights to legal representation and legal aid, Judge Spear considered an issue that had arisen regarding Mr Dixon who was a witness called by the appellant in his defence. The appellant had requested Mr Dixon’s details prior to trial with the intent of calling him as a witness, but the police, it seems, had been reluctant to give him that information. It appeared the police had disclosed Mr Dixon’s name to the appellant, but not his contact details, and had then taken a police statement from Mr Dixon which was disclosed to the defence. Mr Dixon, as I have noted, was then required to attend court as a witness for the defence. Judge Spear considered that approach was incorrect. Mr Dixon should instead have been made available for the appellant to conduct his own interview prior to trial. Nevertheless, he found that had no bearing on the case.
[7] Judge Spear went on to consider the evidence of the two constables, the appellant, Mr Dixon and Ms Kelly. He found the accounts of the constables and Mr Dixon to be corroborative of each other, particularly concerning the appellant being punched after he “hoicked” spittle into his mouth in the police car. The appellant, however, complained that he was punched while he was resisting the efforts of the Constable to get him into the car. Meanwhile, Ms Kelly stated the appellant was bleeding from the mouth when he came out of The Warehouse.
[8] Judge Spear found the appellant to have resisted police based on the appellant’s own evidence. He noted there was a “very clear conflict” between the evidence of the appellant and Ms Kelly in regard to when the appellant was punched in the face and did not accept the appellant’s denials in respect of the assault charge. The Judge was satisfied on the evidence of the constables that the appellant had assaulted a police officer, and accordingly convicted him of both charges.
Principles on appeal
[9] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3 In this section, a trial includes a proceeding in which the appellant pleaded guilty.4
[10] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5
Submissions
Appellant’s submissions
[11] The appellant is again self-represented on appeal. In his written and his oral submissions before me, he makes the following complaints:
(a)Mr Dixon’s statement to police was simply a “mirrored” version of the constables’ evidence;
(b)Constable Johnston acted in an unprofessional manner by writing the appellant’s middle name as “Lee” instead of “Leslie” in his notebook;
(c)he was “unlawfully arrested” for shoplifting (which he denies) and he was punched in the mouth as a result;
3 Section 232(4).
4 Section 232(5).
5 Criminal Procedure Act, ss 250(2) and 250(3).
(d)the Judge was incorrect in his finding that the appellant spat at Constable Johnston (which he also denies); and
(e)there is a security camera outside The Warehouse, but neither the prosecution nor The Warehouse would provide him with footage of the incident to conduct his defence.
[12] The appellant does not provide any submissions regarding his appeal against sentence. Before me orally the appellant indicated he had no issue now with his sentence and said that he had already completed it.
Respondent’s submissions
[13] Mr Whitcombe, for the respondent, submits that no miscarriage of justice has occurred. The findings of the Judge were open to him on the evidence of the two constables, and were supported by the evidence of Mr Dixon. The evidence of Ms Kelly was at odds with all the other witnesses and was rightfully put to one side. The evidence of the appellant demonstrated that he had resisted Constable Johnston, and Mr Whitcombe submits the Judge was entitled to prefer the evidence of the constables and Mr Dixon over the appellant’s in relation to the assault charge.
[14] Although the police should have provided Mr Dixon’s contact details to the appellant, Mr Whitcombe contends that any prejudice that may have arisen was ameliorated by Mr Dixon giving evidence at trial and being available for questioning.
[15] With regard to the sentence appeal, Mr Whitcombe refers to Clarke v Police, where the appeal Court upheld a sentence of 80 hours’ community work for spitting in the face of a police officer.6 Given the appellant’s previous record and the extent of the assault, being an attempt to knee the officer and spitting on him, Mr Whitcombe submits the sentence imposed of 65 hours’ community work could be considered lenient.
6 Clarke v Police [2015] NZHC 259.
Analysis
[16] I find no substance in the appellant’s first two grounds of appeal. There is no evidence that Mr Dixon’s statement to the police was false, and in any event, Mr Dixon was further questioned in his examination by the appellant in Court. Constable Johnston allegedly miswriting the appellant’s middle name similarly has no bearing on the appellant’s guilt or otherwise.
[17] The appellant submits he was unlawfully arrested for shoplifting, a charge which appears to have been dismissed or withdrawn. Judge Spear said to the appellant during his cross-examination of Constable Johnston that the dismissal of that charge “may have well been a very fortunate outcome for you” given it appeared to him the elements of the offence had been made out. On the material before the Court, it is difficult to reach any other view on this aspect here than that reached by the Judge. The appellant’s arrest could therefore not be described as unlawful, despite the charge in question being dismissed or withdrawn.7
[18] As for Constable Johnston punching the appellant, the Constable stated in court that he was protecting himself and his partner from the appellant’s saliva as it could have contained diseases. This could well justify a defence under s 48 Crimes Act 1961. Judge Spear did not deal with this aspect in his judgment, nor did he need to, given his factual finding that the punch occurred after the appellant assaulted the Constable. By that point the appellant had already committed the offences with which he was charged. I can find no issue with the Judge’s factual conclusion about the order in which those events occurred.
[19] The appellant’s fourth ground of appeal challenges the Judge’s factual finding that he spat at the Constable. The appellant advances no explanation as to why the Judge’s conclusion was unreasonable based on the evidence. I consider the Judge had ample evidence upon which to make the finding he did. This was the evidence of the two constables and Mr Dixon. Furthermore, the appellant does not challenge the finding that he attempted to knee the Constable, which also constitutes an assault. I
7 Crimes Act 1961, s 315.
do not consider the appellant has shown that there is a real risk here that the Judge’s assessment of the evidence has caused a miscarriage of justice.8
[20] As to the final ground of appeal, the appellant contends that The Warehouse’s security cameras would have recorded the incident outside the store, but he says he was not given access to this footage by either the prosecution or The Warehouse. Mr Whitcombe for the Crown before me has confirmed that no such CCTV footage was either provided to the Crown or was actually available. In his evidence at trial, Constable Johnston stated that he recalled talking to The Warehouse “about possible CCTV footage from the carpark, which they said they did not have”.
[21] The appellant made no submissions regarding his appeal against sentence and indeed before me he indicated he had no issue now with the sentence. And, in any event, I can find no basis for that sentence appeal to be allowed. As evidenced by the case referred to by Mr Whitcombe, the sentence of 65 hours’ community service here was certainly not manifestly excessive.9
Conclusion
[22] There is no basis in this case to conclude that Judge Spear erred in his factual findings or that Mr Thompson’s trial was unfair or that some other error occurred here such that a miscarriage of justice resulted.
[23] For all these reasons Mr Thompson’s appeals against both conviction and sentence are dismissed.
...................................................
Gendall J
8 The test for appealing a factual finding is a high one: Gotty v R [2017] NZCA 528 at [14]; Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56]; and R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].
9 Clarke v Police, above n 6; see also Tanu v Police HC Auckland CRI-2009-404-155, 14 February 2011.
Solicitors:
Raymond Donnelly & Co Copy to Appellant