Traber v Police HC Wellington CRI 2011-435-3

[2011] NZHC 1253

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-435-3

WILLIAM DAMON TRABER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 September 2011

Counsel:         J K W Blathwayt for Appellant

A A McCubbin-Howell for Respondent

Judgment:      20 September 2011

JUDGMENT OF SIMON FRANCE J

[1]      This is an appeal against a conviction for robbery.[1]

Background facts

[1] New Zealand Police v Traber DC Masterton CRI 2010-035-001388, 6 April 2011.

[2]      Mr Traber assaulted the complainant outside a bottle store and tavern.  At the end of the assault he took the alcohol the complainant had just purchased.  The trial issue, repeated on appeal, is whether it has been proved that the assault was to facilitate the theft, in which case it would be robbery.   Alternatively, was it as Mr Traber would have it, namely that he assaulted the complainant because the latter had insulted Mr Traber’s girlfriend?  On this scenario, the alcohol was taken as an

afterthought.   Mr Traber does not know why he took it other than to annoy the

WILLIAM DAMON TRABER V NEW ZEALAND POLICE HC WN CRI 2011-435-3 20 September 2011

complainant.  If this is a reasonable possibility on the evidence, the proper verdicts are assault, and theft but not robbery.

Why a conviction was entered

[3]      The complainant said that he was getting on his push bike to ride off.  He had hung the alcohol, in its plastic bag, on the handlebars.  Mr Traber approached and tried to take it.  The complainant told him to bugger off, at which point Mr Traber initiated the assault.

[4]      Mr Traber, by contrast, says he was speaking to the complainant outside the store.  They knew each other.  Whilst this was happening, his girlfriend went off. At that point Mr Traber says the complainant asked him why he was going out with “that slut”.  Mr Traber saw red and assaulted the complainant.

[5]      The Judge accepted the credibility of the complainant.   The matters that influenced this were:

(a)      the demeanour of the complainant, outside the bottle store and as observed by a third party, was that he did not want anything to do with Mr Traber. This was consistent with him having said “bugger off”;

(b)both  men  are  alcoholics  so  it  would  be  consistent  with  this  that alcohol was the focal point;

(c)      the complainant said in evidence he would not use the term “slut” because it was not in his character.  The Judge saw it as a significant observation.

Appeal

[6]      The thrust of the appeal is that the District Court erred in accepting the evidence of the complainant.

[7]      First, the complainant said he was on, or getting on his bike, and the alcohol was on the handlebars.   However, the bike was to one side of the shop.  The barman in charge of the bottle store saw an assault.  He said it could not have occurred at the bike because he was unable to observe, from inside the store, the spot where the bike was resting.  Mr Blathwayt submits this undermines the complainant’s evidence and was not adverted to by the Judge.  It is noted the appellant’s version was that they were away from the bike, in the area of the middle of the shop window.   This is where the barman says he saw the assault.

[8]      Second, related to this, the barman says the complainant still had the alcohol. This is consistent with the appellant’s evidence and contrary to what the complainant says about putting it on the handle bars.

[9]      The respondent’s position is that the appellant overstates the evidence of the independent witness.   The witness accepted he did not keep his eyes on them the whole time.  Essentially, an assault which began at the bike and moved back in front of the store (a short distance) could be accommodated within the description given by this witness.

Decision

[10]     This is, in many ways, a situation of competing versions with little to assist a

Court to resolve the conflict.

[11]     Taking first the independent evidence.  In his initial description the barman said he saw the complainant go out the sliding door and start to turn right.   This would be in the direction of the bike.  He then saw the two men speak:

He was in a conversation with the other gentleman for a small time ... it might not have even been a conversation, it might just have been a – I didn’t actually know whether it was just a “see ya later” sort of thing.

[12]     At that point Mr Traber lunged toward the complainant, and started throwing punches and kicks. The complainant put his hands up and retreated.

[13]     This independent version is as consistent, or more so, with the appellant’s evidence than with the complainant’s.  It does not have the incident occurring at the bike, nor does it have the men re-emerging into view as a continuation of an assault commenced from out of sight:

The blond Caucasian [the complainant] wasn’t anywhere near the bike we see in photograph 1?

No he couldn’t have been, because I wouldn’t have been able to see him.

...

You could see them if he was sitting on his bike?

I couldn’t see, yeah, I can’t see the bike from inside the bottle store.  So if he was sitting on the bike, I wouldn’t have been able to see it.

[14]     In cross-examination the witness was asked about where the alcohol was. The witness twice said he did not know.  The proposition that the witness had seen the complainant still carrying the bag at the time of the assault seems to have come from the witness’s police statement which is summarised in the evidence in this way:

Do you remember telling Constable Day that when the blond male left the bottle store with a black plastic bag containing a six-pack ... that’s when he was approached by the male that came into the store with the female? ...

If it’s written down there, I must have told him. Yes. Do you accept that that’s what ...

If that’s what’s written down there, what I’ve said, yes.

Well now that you have had your memory refreshed about what I’m referring to, do you accept that that was the situation, when the other male came out, he was still holding onto the bag of bourbon?

If that’s what’s written down there, yes.

[15]     Mr Blathwayt  relies  on  this  as  establishing  the  complainant  still  had  the alcohol and therefore it was not on the bike.  However, I do not see it as going that far.  The original statement is a general observation about leaving the store with the bag (to be expected).  It is not focussed on the time of the assault, and the witness plainly has no current memory of it.  And finally, his answer is affirmation not of counsel’s proposition but of the original statement.

[16]     As for the issue of whether the inconsistency between the complainant and the independent witness can be explained by the assault occurring out of sight, I am similarly reluctant to place much value on the evidence that the witness might not have seen everything.

[17]     In giving his evidence-in-chief the witness stated:

Did you maintain sight or vision of these two the whole time you were on duty, or ...?

No not the whole time, no.

[18]     However, in the respondent’s cross-examination this differed:

Now you were asked in relation to the blond Caucasian going anywhere near his bike or a push bike, could the blond Caucasian have gone to his bike without you seeing him do that?

Absolutely.  There was a period when I didn’t have either gentleman in my sight.

[19]     There  was  no  elaboration  as  to  when  it  was  that  the  witness  was  not watching.  His primary evidence is of an unbroken narrative, and I do not consider the Crown case is particularly bolstered by an undefined period of non-observation. On his  original  narrative the witness  describes  the men meeting in  the door,  a conversation and then an assault.  This acknowledgement of not watching the whole time is not linked by the witness to a point in time between the complainant leaving the store and him seeing the fight.  The onus is on the prosecution and one cannot just  slot  the complainant’s  version  into  an  unarticulated  window of  opportunity which might have been then, but equally could have been some other time.

[20]     Overall  the  independent  witness’s  testimony,  in  my  view,  is  at  least  as consistent with the appellant’s story.   The appellant describes a conversation, an insult and a flare up. That is pretty much what this witness is also describing.

[21]     By  contrast,  the  complainant  says  he  was  at  his  bike,  the  alcohol  was suspended from the handlebars and that is where it happened.   The complainant cannot remember past that.  For this version to be correct, one has to then assume that, despite his lack of memory of it, the fight carried on, moved away from and

around the bike, and continued in front of the store in a form consistent with what the independent witness is describing.  Finally, there is also evidence that something then happened on the other side of the store, equally out of the sight of the shop assistant.  The appellant says the fight continued there, and there is blood staining and other evidence consistent with this.  The point about this is that the witness’s acknowledgement of not watching everything could equally apply to this point in time.

[22]     Accordingly,  I  consider  the  independent  evidence  leaves  the  prosecution some way short of discharging its burden.  The Court determined, in effect but not expressly, that these deficits were overcome by a conclusion that the complainant was to be believed.  There was no express finding about the appellant’s evidence. Inferentially, however, it must have been disbelieved beyond reasonable doubt only because the complainant was believed.

[23]     This  process  is  of  course  possible.    But  it  must  be  recalled  that  the prosecution has the onus.  It is not just a matter of preferring evidence, but rather of being satisfied  that  the  complainant’s  evidence  is  sufficiently compelling that  it overcomes the other weaknesses in the evidence, and in a context where no specific problems with the appellant’s evidence were identified.

[24]     The respondent properly reminds the Court of the authorities on the role of an appellate Court and the advantages of the Court who heard the witnesses, as set out in Munro.[2]

[2] R v Munro [2007] NZCA 510.

[25]     However, I am troubled by the reasons given here.  The proposition that the complainant would not insult a woman because it is not his character to do so, is simply as assertion.  There is no other support for it, and indeed he admits he did comment  on  the  woman,  calling  her  “feisty”.    So  the  narrative  the  appellant advanced is at least engaged to the extent that the complainant accepts he did make remarks about her.   The matter goes further than this because the complainant’s narrative  cannot  really  accommodate  an  opportunity  for  him  to  say  this.    His

evidence was he went to the bike, started to get on, the appellant came up, tried to

grab the alcohol and reacted to being told to bugger off.   The admission by the complainant that he commented upon the woman suggests an earlier conversation, which is of course what the appellant says, and what the independent witness observed.  It is not, however, part of the complainant’s narrative.

[26]     As for the other matters, the fact that the complainant was not aggressive in the assault, and wanted no part of it, does not say anything about what caused the assault.  Nor does the point about them both being alcoholics take one very far.  The appellant had just bought alcohol so did not immediately need it, and it would be somewhat odd to conduct the assault part of a robbery right in front of a shop window.

Conclusion

[27]     On review, I am not satisfied the prosecution case was proved to the requisite standard. The appellant’s explanation is credible in itself, and the observations of the independent witness are at least as consistent with it as they are with the complainant’s evidence.   The removal of a reasonable doubt comes only if one accepts the complainant’s contrary evidence which is uncorroborated.  The Court did so because the complainant said he would not insult the woman, but the Court had no independent evidence to say that was so, and we know that the complainant at least thought it appropriate to comment on her.   There are, in my view, too many deficiencies in the prosecution case to be overcome by a broad credibility finding.

[28]     Recognising it is an appeal and the trial Court advantages, I still do not consider there is a body of evidence that allows this Court to be sure about the resolution of the conflict in stories.   Accordingly, the appeal is allowed and the conviction for robbery quashed.

[29]     In its place I substitute convictions for:

Assault – Crimes Act 1961, s 196; and

Theft – Crimes Act 1961, ss 219 and 223(d).

[30]     The new  maximum  penalty is  one  year.   The  sentencing Judge said  the injuries involved a moderate level of seriousness.  The starting point for robbery was

12 to 15 months.   I consider in the revised circumstances, and bearing in mind assault simpliciter is quite a generous charge, for the assault I take a starting point of nine months’ imprisonment.   I include the theft culpability in this.   The case was conducted on a basis that is the equivalent to this outcome, so some credit for a “guilty plea” is due.   I reduce the starting point by two months to reflect this and impose the following sentences:

On the charge of assault – seven months’ imprisonment;

On the charge of theft – one month imprisonment, concurrent.

[31]   The standard and special release conditions originally imposed remain unchanged.

Simon France J

Solicitors:

J K W Blathwayt, WCM Legal, Carterton, email:  [email protected]

A A McCubbin-Howell, Luke Cunningham & Clere, Wellington, email:  [email protected]