v v Police HC Auckland CRI -2010-404-48

[2010] NZHC 722

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI -2010-404-000048

BETWEEN  V

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 May 2010

Counsel:         Z Mohamed for the appellant

J M Jelas for the respondent

Judgment:      17 May 2010

JUDGMENT OF POTTER J

Solicitors:           Crown Solicitor, P O Box 2213, Auckland 1140

Copy to:            Z Mohamed, P O Box 39-119, Howick, Auckland 2145

V V NEW ZEALAND POLICE HC AK CRI -2010-404-000048  17 May 2010

Introduction

[1]      The appellant V   was convicted following a hearing in the District Court at Manukau before Judge J G Adams on 25 January 2010 of one charge of male assaults female.  He was sentenced to supervision for nine months on condition that he undertake and complete an anger management programme as directed.

[2]      Mr V   appeals against conviction, essentially on the ground that there is insufficient evidence upon which the Judge could find the charge proved.

[3]      The Crown submits that it was open to the Judge to accept the evidence that was admitted at trial and in any event the appellant’s own evidence admits the charge against him.

Background facts

[4]      The appellant and the complainant had been in a relationship for about six months at the time of the incident on 2 August 2009.  In the evening of that day the appellant went to the complainant’s flat and during the course of the evening they entertained a few friends who departed at approximately 10.30 p.m.

[5]      The complainant went to her bedroom and was lying on her bed with the light on.  Approximately half an hour later the appellant entered the room.  An argument began.

[6]      The complainant said the appellant then leant over the bed and began to punch her with a closed fist.   He punched her in the stomach approximately four times.  He then verbally abused her and punched her around the face and the head.

[7]      The complainant tried to scream to alert her flat mate who was home at the time but the appellant put his fingers in her mouth.  He continued to slap her.  She

then began to vomit and he removed his fingers from her mouth.  She vomited on the floor beside the bed.

[8]      She then fled from the bedroom and locked herself in the bathroom.   The appellant began to speak with her flat mate  and also  yelled  at her through  the bathroom door.  Eventually he left.

[9]      When he left the complainant rang the Police.  A statement was taken from her that same night commencing at 11.50 p.m. which was approximately within an hour of the offending.  Photographs were also taken which were in evidence at the hearing.   The Court record does not reveal exactly when those photographs were taken but a copy of a photograph attached to the affidavit of the appellant has endorsed upon it that it was taken by Constable L Hogan “on 3/8/9”.   The photographs like all three statements were admitted by consent.

Procedural background

[10]     In a signed letter dated 7 August 2009 the complainant apologised for her actions, took responsibility for provoking a fight and said she never intended for charges to be brought against the appellant.  However, the letter did not recant the details of her complaint.

[11]     On 10 August 2009 the complainant returned to Fiji and did not leave a forwarding address or any contact details.

[12]     In a further signed statement, which is undated, she repeated the contents of her letter of 7 August 2009 and added that there were serious inaccuracies in her statement to the Police.   She requested that the charges against the appellant be withdrawn.

[13]     Prior to the hearing in  the District  Court at  Manukau the Police  filed a hearsay notice under s 22 of the Evidence Act seeking that the statement of the complainant dated 3 August 2009 given to Constable Lisa Hogan be admitted.

[14]     On 13 January 2010 counsel for the appellant also applied to admit hearsay evidence, being the two subsequent statements made by the complainant.

[15]     By consent of the Police prosecutor and counsel for the appellant at trial, Mr James Maddox, all three statements by the complainant were admitted at the hearing. Photographs taken of the complainant were also admitted by consent.

[16]     The appellant gave evidence at the hearing.

Fresh evidence on appeal

[17]     The appellant applied to have admitted on appeal fresh evidence, being a photocopy of one of the photographs included in the Police disclosure documents which was not opposed by the Crown and I duly admitted the evidence.   Mr Mohamed explained that the purpose of filing the affidavit with the copy photograph annexed was to provide evidence that the photographs were taken by Constable L Hogan “on 3/8/9”.

Findings of Judge Adams

[18]     The “Notes of Judge J G Adams on Sentencing” dated 25 January 2010 cover the findings of the Judge, the conviction of the appellant and the sentencing that followed.  Judge Adams reviewed what he described as the crucial evidence, at page

4.  He records that the complainant initially said that the appellant leaned over the bed and started to punch her with a closed fist and punched her in the stomach four times.   He recorded that in her letter to the Police five days later she said she regretted the event and “... also hold responsibility for what had happened”.

[19]     At [5] he records that in the statement sent by the complainant from Fiji in which she said she feels “... extremely guilty and sorry for what my actions have caused for Roveenesh V  ”, she states “... I acted out of anger and due to that, there were serious inaccuracies in my statement to the Police”.  “Injuries that I had

received were not a result of him slapping me”.  The Judge states that she does not say how the injuries were incurred.

[20]     The Judge said at [6]:

The photographs depict an Indian woman who has clearly visible bruising to her left cheek which extends in a line up towards her nose, on her right cheek in a patch a short distance from the side of her nose, a smaller bruise diagonally away from her right eye in a line about the end of her right eyebrow.  There are smaller marks above her lips and under her nose.  There is also a small bruise on the right eyelid which is clearly distant from any natural darkness which the complainant says she has around her eyes.  There is a bruise on her upper left arm and there are four bruises on her upper chest to the right of centre.

[21]     At [7] the Judge summarises the appellant’s evidence:

He says that the incident occurred in two parts.   Firstly, they were in the bedroom and she kicked him hard in the stomach, he fell back and he got up and the incident ceased.   The second incident was the one in which he explains his version of how she came to be bruised.   He says that he approached her to talk to her, she grabbed his shirt and pushed him back and he put his hand up to reach to her which struck her in the face.  She became uncontrollable, he tried to settle her down, thought that she was behaving hysterically and thought that the correct thing to do was to slap her, so he did so.  He says that she was trying to bang herself against the wall and he held her by the arms to prevent her from doing so.  He said that the marks on. What he described as, her neck were love bites.

[22]     At [9] the Judge found that the complainant and the appellant did have a physical altercation on 2 August 2009.   He said he found the evidence of the complainant as to the reasons for the incident and as to who was at fault to be “pretty unreliable”.  But he found the complainant was reliable in stating that the physical incident occurred between them which gave rise to her injuries.  He said he did not find the complainant’s statements that the injuries she received were not as the result of the appellant slapping her, to be credible in the circumstances.  He said on the face of  the  two  typewritten  documents  the  complainant  was  clearly  attempting  to prejudice the outcome of the proceedings “... in a way which is common in domestic violence disputes”.

[23]     He said at [10] that the evidence in the photographs was the most compelling aspect of the Police case and clearly raised the question as to how the appellant could reasonably explain those injuries.

[24]     At [11] he found that those injuries were caused by the appellant.  He stated:

... I do not accept that the range, totality and severity of these injuries could have been caused by the self-defence combined with attempts to stop her from hurting herself, that he gives evidence about.  The strikes to her face are clearly severe.   There is no reasonable basis upon which he could not have simply walked away from the situation.

[25]     The Judge found that the extent of injuries to the complainant’s face were simply inconsistent with the version advanced by the appellant.

[26]     He found the charge of male assaults female duly proved.

Appellant’s submissions

[27]     Mr Mohamed for the appellant submitted that the findings of the Judge at [9] are speculative and baseless.  He submitted that while the Judge was entitled to reject the appellant’s evidence there was no satisfactory evidence before him to prove the prosecution case.  He was critical of the prosecution for not calling evidence from Constable Hogan who took the statement from the complainant on the night of the event and also the photographs.  Mr Mohamed further submitted that “the evidence clearly suggests lack of intention”.

Crown submissions

[28]     For the Crown, Ms Jelas noted that all the evidence before the Judge at the hearing on 25 January 2010 was admitted by consent apart from the evidence of the appellant which was given at the hearing.

[29]     The Crown submitted that there was sufficient evidence on the appellant’s own evidence upon which the trial Judge could properly conclude that the charge of male assaults female was proved.  Counsel referred to the evidence of the appellant that in the second incident which he said occurred in the course of the evening he removed the complainant’s hand from him and “ended up hitting her in the face with his hand”.  He said he hit her with an open hand to calm her down because she was “very hysterical and uncontrollable”.

[30]     He said later in his evidence that he did not think he had slapped her “... that hard, that would leave bruises on her face”.

[31]     Ms Jelas referred to the definition of assault in s 2 of the Crimes Act which requires intention to apply force.   Here, she said, this was by way of a slap administered by the appellant to the complainant.   She submitted that at [11] the Judge viewed the incident from various aspects generously, she suggested, taking into account self-defence combined  with attempts to stop the  complainant from hurting herself, about which the appellant had given evidence.   Nevertheless the Judge found the assault duly proved which, the Crown submitted, was clearly available to him on the evidence.

Discussion

[32]     The Judge clearly rejected the appellant’s evidence as to the nature of the assault and the way the injuries to the complainant were caused.  He found at [11] that the extent of the injuries to her face was simply inconsistent with the appellant’s version of events.

[33]     Having rejected the appellant’s evidence about how the injuries were caused, it was open to the Judge to convict the appellant on the basis of the statement made by the  complainant immediately after the  events occurred  and the photographic evidence that was part of the prosecution case.  It was open to the Judge to prefer the account given by the complainant to the Police immediately after the events occurred and to reject the two subsequent attempts by the complainant to resile from her initial statement  to  the  Police.     Neither  of  the  subsequent  statements  provided  an explanation as to how the injuries she clearly received, were incurred or in what respects “there were serious inaccuracies in my statement to the Police”.

[34]     Further, I agree with the submission for the Crown, that on the appellant’s own evidence the offence charged of male assaults female was established.   The appellant’s evidence was the intentional application of force.  As I discussed with Mr Mohamed in the course of oral submissions, the reasons advanced by the appellant for applying the force, namely the hysterical state of the complainant, may well have

been a mitigating factor on sentencing, but does not detract from the fact that here there was clear evidence to prove the offence charged including the intention to apply force.

[35]     In R v Owen1  the Supreme Court endorsed the principles in the Court of Appeal judgment in R v Munro2 in relation to appeals under s 385(1) of the Crimes Act 1961 and stated the correct approach to be:3

... a verdict would be unreasonable if,  having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.

[36]     In Munro the Court of Appeal cautioned that an appellate court is performing a review function not one of substituting its own view of the evidence, and the Court noted that the weight to be given to individual pieces of evidence is essentially a jury function.  In this case, that function was performed by the Judge.  There is nothing before me on appeal to indicate that his decision was unreasonable having regard to all the evidence available to him.

Result

[37]     The appeal is dismissed.

1      R v Owen [2008] 2 NZLR 37.

2      R v Munro [2008] 1 NZLR 87 (CA.

3 At [17].