Underwood v Police

[2014] NZHC 145

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-485-84 [2014] NZHC 145

BETWEEN  MATTHEW UNDERWOOD Appellant

ANDPOLICE Respondent

Hearing:                   11 February 2014

Counsel:                  D A Ewen for Appellant

M J Ferrier for Respondent

Judgment:                13 February 2014

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against conviction)

Introduction

[1]      The appellant Matthew Underwood was convicted of disorderly behaviour after  trial  before  two  Justices  of  the  Peace.    He  represented  himself.    Without success.

[2]      He now appeals against his conviction.   He says the Justices applied the wrong standard  of  proof.   And  he  says  that  the  evidence  against  him  was  led improperly.  His counsel Mr Ewen, was in the Justices’ Court that day on another matter.    After  taking  very  brief  instructions  he  raised  these  concerns  with  the Justices.  He sought an immediate rehearing.  It was declined.

Background

[3]      On 12 May 2013 Mr Underwood was crossing Victoria Street in Central

Wellington.  He was by his own admission intoxicated.  He had been making merry at, and after, a rugby match at the Wellington Stadium.

UNDERWOOD v POLICE [2014] NZHC 145 [13 February 2014]

[4]      The evidence of Sergeant Clifford was that Mr Underwood jumped out in front of a police car travelling down Victoria Street when it was only one metre away from him, with his hands outstretched, causing the driving constable to swerve and put on his brakes.

[5]      Mr Underwood then gave evidence on his own account.   He said he was drunk, trying to cross the street, and accidentally stumbled.  He says he put his hands out and recoiled when he realised there was a car in his path.  He was not aware that car was a police car, or had stopped, until he was arrested by an officer tackling him from behind.

Decision appealed

[6]      After setting out the competing evidence the Justices said:

It is our view that, given [the appellant’s] intoxicated state at the time, it is more likely that the Senior Sergeant’s account of the incident is more accurate. Accordingly, we find the matter proven beyond reasonable doubt.

They complimented Mr Underwood on his case presentation, and fined him $100.

Analysis

Leading questions

[7]      Most unusually, Sergeant Clifford’s evidence for the prosecution was almost entirely elicited by leading questions from the prosecuting sergeant.   The Justices made no comment about that.   They did not stop it.   Mr Underwood represented himself.  He did not know that this was wrong, and should have been stopped.  That course of evidence breached s 89 of the Evidence Act 2006.  The matters elicited were not undisputed.  Nor was there consent from all parties.  The error had a real risk of affecting the outcome of the trial.  It was the method by which the entirety of the prosecution’s evidence was led.

[8]      On that ground alone I would have quashed the conviction.

Standard of proof

[9]      To sustain a conviction under s 4(1)(a) the behaviour had to be deliberate “not accidental or involuntary”.1   Mr Underwood’s evidence was that the manoeuvre he made was entirely accidental.  Sergeant Clifford’s evidence was that it appeared deliberate.  He was the only prosecution witness.

[10]     These two accounts cannot be reconciled.   It becomes a question of which account is accepted, and which is rejected.  If the Justices were not sure that Sergeant Clifford’s account was correct, they would have been bound to acquit.  The Justices merely found it more likely that the appellant’s actions were deliberate than accidental.  That is not sufficient to found a criminal conviction based on a standard of proof beyond reasonable doubt.

[11]     This is the second occasion on which I have reached such a conclusion after a summary trial before Justices: see Manhaas v Police.2    That decision restated the need, in the face of a conflict of evidence, for a Court to make a definite finding of fact reaching the standard of proof applicable: the absence of reasonable doubt.  That one  account  was  “more  likely”  (this  case),  or  to  be  preferred  “on  balance” (Manhaas), will not do.

Result

[12]     Appeal allowed.  Conviction quashed.

[13]     In my discretion under ss 121 and 131 of the Summary Proceedings Act 1957

I decline to order rehearing of the charge.  The charge is a minor one.  The outcome at a properly conducted retrial is uncertain.   Such a retrial could not occur for a lengthy period.  The process despite having miscarried has doubtless been a salutary

one. There is no public interest in a further hearing now being conducted.

1      R v Ceremalus [2012] 2 NZLR 46 (CA).

2      Manhaas v Police [2012] NZHC 2068.

[14]     I commend Mr Ewen for his intervention in this matter, and Mr Ferrier for his entirely fair submissions in defence of the decision below.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington for Respondent