W v Police HC Napier CRI 2008-441-17

[2008] NZHC 1520

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2008-441-000017

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 September 2008

Counsel:         J H W   in Person

D Kerr for the respondent

Judgment:      26 September 2008

(ORAL) JUDGMENT OF POTTER J

on appeal

Solicitors:           Elvidge & Partners, P.O. Box 609, Napier 4140

Copy to:            J H W  , 468 Hastings Street, Napier 4140

W V NEW ZEALAND POLICE HC NAP CRI 2008-441-000017  26 September 2008

Introduction

[1]      Following  a  defended  hearing  the  appellant  was  convicted  by  Judge Mackintosh in the District Court at Napier on 5 May 2008 on charges of resisting arrest, refusing to accompany an enforcement officer and refusing to permit a blood specimen to be taken.

[2]      The notice of appeal filed by Mr W   in person, refers only to an appeal against refusing to accompany and refusing a blood specimen.  However, it is quite clear from the judgment of Judge Mackintosh dated 5 May 2008 and from her sentencing notes dated 10 June 2008, that Mr W   was convicted of the three charges and sentenced in respect of the three charges.   I will therefore treat the appeal as being an appeal against conviction in relation to the three charges, notwithstanding that the charge of resisting arrest is not mentioned on Mr W  ’s notice of appeal.

[3]      There is a furthe matter in respect of that charge I should mention for the sake of completeness.   Judge Mackintosh on 10 June 2008 stated that Mr W   appeared for sentence on that day in relation to charges of refusing to accompany, refusing blood and arresting arrest.  She sentenced him in relation to all those matters to a sentence of community detention and supervision, the community detention to be for a period of four months on conditions set out in her judgment and an attached appendix.     The entry on the rear of the Information beside the stamp of Judge Mackintosh records “C &  D”, which  I assume is  shorthand  for  “convicted  and discharged”.   It is clear from the sentencing notes and from the judgment that the Judge dealt with all three charges together, and did not convict and discharge Mr W   on the resisting arrest charge.

Charges

[4]      The prosecution must prove on the resisting arrest charge that the appellant intended to resist arrest.  The authority is Peterson v Police HC Invercargill AP35/99

25 February 2000, Chisholm J.

[5]      On  the  charge  of  refusing  to  accompany  an  enforcement  officer  the prosecution must prove, firstly that the appellant consciously appreciated he was being required to accompany the officer and secondly that he intentionally declined to do so.  The authority is Bascik v MOT HC CHCH AP159/90, 10 October 1990, Tipping J.

[6]      On  the  charge  of  refusing  to  permit  a  blood  specimen  to  be  taken,  the prosecution must prove that the appellant consciously appreciated what he was being required to do and that he failed to do so.  The authority is C v Police HC Dunedin AP111/94 7 December 1994, Tipping J.

District Court judgment

[7]      Judge Mackintosh outlined the prosecution case and the defence case.  She identified at [14] that the issue was whether or not the appellant had a conscious appreciation of being required to accompany Constable Andrews to the Police Station, and intentionally declined to do so.   The Judge went on to consider the evidence,  and having identified the items  of  evidence on  which  she  relied,  she rejected Mr W  ’s contention that he may not have consciously appreciated he was required to accompany the officer.  She said his evidence was not credible for a number of reasons which she specified (refer [10] below).   She found all charges proved to the required standard.

Submissions

[8]      On this appeal, Mr W   submitted that the evidence did not support his being of rational and sound mind and that therefore the prosecution case was not

proved on the evidence.  In his oral submissions today, he observed that the finding of conscious appreciation by the Judge was based on Police evidence, and to the extent the Judge relied on his evidence as corroboration, he suggested his evidence was “reflective”.  He submitted that Constable Andrews was not a credible witness and  his  evidence  must  have  raised  some  reasonable  doubt.    He  queried  why Constable Quate, who also came to the scene when Constable Andrews was endeavouring to arrest him, did not give evidence.  He also asserted that he did not receive proper medical attention for the injuries he suffered during the altercation with Police.

[9]      The Crown identified the narrow issue upon which the appeal rests – whether the evidence was sufficient to support the Judge’s finding that the appellant had the necessary intent and the necessary conscious appreciation to prove the charges.  Mr Kerr submitted that neither the evidence about injuries, nor about whether the state in which Mr W   was on the night of 16 December 2007, was caused by alcohol, medication or a combination of those factors, was relevant.   He submitted the evidence clearly established the essential ingredients of the charges which the Crown was required to prove, and that therefore the appeal should be dismissed.

Evidence

[10]     The evidence the Judge relied on and her reasons for reaching the conclusion that there was a conscious appreciation and an intention not to co-operate, are set out at [15] of her judgment:

•   The appellant’s driving was impaired at the time he drove and he knew that.

•   He knew he was not blowing into the device (that being the device presented to Mr W   by Constable Andrews in the street after Constable Andrews had stopped Mr W   in his motor vehicle).

•   On Mr W  ’s own evidence, when he was at the Police Station shortly after arrest, he said he wanted to go home and that he was argumentative.   (In his written submissions, Mr W   pointed out that the evidence was not that he

said he wanted to go home when he arrived at the Police Station, but that he said it at the scene of the events in the street.  That is correct, but I do not consider the matter to be of significance to the determinations made by the Judge).

•    On Mr W  ’s own admission, at the Police Station he was not in a mood to co-operate, so he did not.

•    At the Police Station he was able to give names of lawyers, numerous efforts were made to contact lawyers, and he was able to write on forms.

•   Mr W   was stopped at 11.50 p.m. on 15 December and it was as soon as

12.05 am when he was required to accompany and did not, and that within half an hour he was at the Police Station communicating and participating and knowing he was in fact not co-operating.

[11]     In his submissions Mr Kerr referred to that evidence.   He submitted the evidence showed Mr W   could converse, could reason and could understand, this being apparent from the dialogue with Constable Andrews: for example the appellant said to the Constable that he could not be compelled to go to the Police Station because he had not blown into a bag.  The evidence of the Constable was that the appellant was flinging his arms around, which evidenced his unwillingness to comply with the requirement of the Constable.  The appellant asked for a lawyer as soon as he got to the Police Station, named four lawyers and then contended he could not be required to give a blood specimen because he had not seen a lawyer.  Mr Kerr submitted  that  evidenced  both  comprehension  and  the  appellant’s  reasoning processes being engaged.  Further, that he answered “No” to the requirement that he take a blood test.  Mr Kerr submitted the reasons why he might have declined to give a blood test were irrelevant, but that there was clear evidence he declined to do so.

[12]     Finally,  Mr  Kerr  submitted  on  the  authority  of  C  v  Police,  that  any diminished capacity that might have been caused by the medication Mr W   said he had taken that day, did not negative his ability to consciously appreciate the requirements of the Constable, which he declined to meet.

Discussion

[13]     In her judgment the Judge reviewed, as I have said, both the prosecution and the defence cases, Mr W  ’s case being that he was not impeded by alcohol on the evening in question but had taken medication for severe tooth ache for which he attended a clinic on 13 December 2007 and received antibiotics.  The medication and pills he took, made him disorientated and groggy.

[14]     The Judge made a credibility finding.   She did not accept the appellant’s evidence that he did not consciously appreciate what was happening.  She preferred the evidence of Constable Andrews.   So while Mr W   is correct in that the decision of the Judge was based on Police evidence, that was because the Judge who heard the evidence made a credibility finding in favour of Constable Andrews.  She did not accept the defence case that the appellant lacked conscious appreciation, on the basis of the evidence she heard.

[15]     As I explained to Mr W  , for good reason a Court on appeal will be very slow to interfere with credibility findings made by the trial Judge who has the advantage of hearing the evidence and seeing the witnesses as they give their evidence.

[16]     I  have   perused   the   notes   of   evidence   and   considered   carefully   the submissions of Mr W   and counsel.  There is nothing that persuades me the findings made by the Judge were not open to her.  The case for the prosecution was duly proved and the appeal must be dismissed.

Sentence

[17]     I turn to consider how the sentence of community detention imposed by the Judge on 10 June 2008 should now be managed.  In imposing community detention and supervision the Judge referred at [10] of her sentencing notes to an attached appendix.  At [11] she imposed special conditions and obligations and said that Mr W   was to reside at 26A Latham Street which was to be the address to which his curfew applied.  Mr W   advises that he now resides at 468 Hastings Street.

That address will need to be the subject of check and a revised appendix.  To enable that to occur I make the following directions:

a)        I order a revised appendix report.

b)I defer the commencement of the sentence of community detention and supervision until that report has been made available and has been considered by a District Court Judge, preferably Judge Mackintosh. For that purpose I remit the matter back to the District Court.

c)       I direct that unless the District Court Judge directs otherwise, if the revised appendix report finds that 468 Hastings Street is a suitable address for the purposes of the sentence of community detention, the matter may be dealt with by the District Court Judge on the papers with the sentence to commence at a date to be specified by the Judge after consideration of the revised appendix report.   For the sake of clarity, if the Judge requires an appearance then it will be for the Judge to set the matter down in the District Court.