W v Police HC Wellington CRI 2009-485-146

[2009] NZHC 2244

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-485-146

W

v

NEW ZEALAND POLICE

Hearing:         15 December 2009

Appearances: C Nicholls for Appellant

K Grau for Respondent

Judgment:      15 December 2009

ORAL JUDGMENT OF RONALD YOUNG J

(Appeal against conviction and application for leave to appeal out of time)

[1]      The police case at trial was that while two police officers were trying to interview  the  appellant  Mr W    about  an  allegation  of  domestic  violence  he pushed one of the constables to the ground.

[2]      Mr W   pleaded not guilty.   At his summary trial he was convicted of assaulting a police constable in the execution of his duty (s 10 Summary Offences Act 1987).

[3]      The conviction was entered on 9 September 2009 however the appeal was not filed until 20 October 2009, some days late.  Leave is properly given extending time

for the filing of the appeal given the modest delay.   The appellant says that the

W V NEW ZEALAND POLICE HC WN CRI 2009-485-146  15 December 2009

Judge’s findings were against the weight of evidence and that I should allow the appeal and acquit the appellant.

[4]      Essentially the appellant’s case is based on the proposition that the District Court Judge should have rejected the evidence of the police officers or at least found that the evidence of the appellant created a reasonable doubt about whether or not he had assaulted a police officer.

[5]      In his decision the Judge firstly considered whether at the time of the alleged assault the officer had been acting in the course of his duty.   Unsurprisingly he concluded, assuming the assault had occurred, that the constable was at the time acting in the course of his duty.  The constable was investigating an allegation of a crime that the appellant had assaulted his partner.

[6]      Immediately prior  to  when  the  assault  was alleged  to  have  occurred  the appellant had ordered the police constables to leave his property and they were in the process of doing so.  The Judge therefore was clearly correct to conclude, once he accepted the police officers evidence as truthful and accurate that an assault had occurred, that at the time of the assault the police officer was acting in the execution of their duty.   In summary, therefore, police were undertaking investigations of a crime were doing so clearly in the execution of their duty assuming of course that the assault itself occurred.

[7]     The second issue, therefore, for the Judge was whether the police had established, also beyond a reasonable doubt, that the constable was assaulted by the appellant.  The appellant gave evidence at trial.  His evidence was that he had been assaulted by a police officer who had punched him in the chest.  He denied he had ever assaulted a police officer.

[8]      The Judge found that both the appellant and the police agreed that the police had arrived at the appellant’s house and had begun questioning him regarding the earlier domestic incident.  Both the police and the appellant agreed that the appellant had asked the police to leave his premises.   It was from that point on that the evidence of the appellant and the police officers diverged.  The appellant described

telling the police officers to “fuck off” when he was struck in the chest by a police officer.  He says he then fell to the ground and was pepper sprayed by that officer.

[9]      The police officers evidence was that the appellant had began abusing them when they asked him about the earlier incident.   The first officer said that the accused had come close to him, pushed him, punched him in the body, knocking him to the ground.  The police officer said that the appellant had then resisted arrest and the officers had had to use pepper spray to subdue him.

[10]     The Judge in his decision acknowledged that there were some differences between the evidence of the two police officers.  He said, however, that these related to minor details and were of no real importance.  In resolving the dispute between the witnesses, the Judge said:

[18]      In cross-examination he said he had been drinking and had had a half box of Speights Beer, but there is no other description of what he might have consumed in the way of alcohol.

[19]      So as I said earlier, it is a classical situation where on the one hand I have the evidence of two constables which, although in some aspects, in my view confirms what each says, when I look at or compare their evidence.  I think if there was a constant similarity in their evidence then that would be cause for some suspicion.  So I have on the one side that evidence and on the other I have, not only the denial from Mr W  , but I have a complaint by him that he was assaulted himself.   As I have said earlier that is not my concern  in  this case,  although  of  course  I have  to  take  into  account  in looking at the explanation that Mr W   gives.  He has given evidence and he did not need to do so, and of course he does not have to prove his innocence.  If his evidence leaves me in some doubt, or indeed satisfies me that he did not assault Constable Allen, then of course the information would be dismissed.

[20]      I  am  in  the  situation  where  I  cannot  accept  the  evidence  of Mr W   as to what happened and that is principally, as I have said, because I find that he was intoxicated to a significant degree.   But just because I do not accept his evidence, does not mean I then automatically go to accepting that the police have proved the case.   I need to look then independently at the evidence from the police and I do so, and I am satisfied, having   seen   and   heard   the   witnesses,   that   Mr W     did   assault Constable Allen, when Constable Allen was acting in the execution of his duty.  I find the information proved.

[11]    The appellant says, firstly, the Judge placed too much emphasis on the appellant’s intoxication.   The appellant makes the point that intoxication may be relevant to reliability but is not typically relevant to credibility.  The appellant says

that the Judge’s rejection of the appellant’s evidence that he was assaulted by the police could not be justified by the appellant’s level of intoxication.

[12]     It was for the Judge to decide, having heard all the evidence, what influence the appellant’s intoxication had on his ability to recall what happened.  This was a situation where the concepts of reliability and credibility merged.   The Judge concluded that the appellant was simply not a reliable witness when he purported to describe the events that night because of his considerable intoxication.  The Judge made no findings directly about the allegation made by the appellant that he had been assaulted by the police officer, other than in the context of looking at the explanation the appellant gave.

[13]     The  Judge  was  entitled  to  reach  the  conclusion  that  the  appellant’s intoxication did significantly affect his reliability as a witness.  As a result the Judge was entitled to set aside the evidence of the appellant as unreliable.  As the Judge correctly  said  that  did  not  mean  the  conviction  inevitably  followed.    Before convicting the appellant the Judge knew he would have to be satisfied that the constables were telling the truth about the essential issues.   He found they were truthful witnesses.  I therefore reject this ground of appeal no error by the Judge has been shown.

[14]     The second point made by the appellant is that the attending police officers had more to loose from the prosecution than the appellant.   This argument was developed on the basis that if the appellant had been convicted he would only have faced a small fine but if the police officer had been found to have assaulted a member of the public then that would have led to an end of his career and other serious consequences.  Thus, the appellant says, the police officers had an incentive to lie.

[15]     This submission, in my view, rather misses the point that in the scenario proposed by the appellant the police officers would deliberately lie in Court thereby exposing themselves to very serious charges.  Further, this submission provided no assistance to the Judge who has to decide issues of credibility in such circumstances. Nor was the fundamental proposition put directly to the police officers.  And in any

event,  as  the  Judge  said,  the  allegation  of  an  assault  by the  appellant  was  not inextricably linked with the police officers’ evidence that he had been assaulted. There is nothing in this ground of appeal, no judicial error identified.

[16]     The other submissions by the appellant are that the appellant was a good witness who made concessions as he should have when he was not sure and that the Judge’s assessment of his lack of reliability as a witness was simply unfair.   His evidence and description of the events was, the appellant says, plausible and should have created a reasonable doubt.

[17]     Once again this was a matter for the Judge to assess.   No error has been shown in the Judge’s approach.   He considered correctly that the relevant focus should be on the appellant’s conduct on the night.   He considered that given the appellant’s intoxication his evidence was unreliable.  This conclusion was open to him as was the conclusion the police officers were reliable and honest.  Without any error by the Judge now identified this appeal cannot succeed.

[18]     For the reasons given the appeal against conviction is dismissed.

Ronald Young J

Solicitors:

C Nicholls, Barrister, PO Box 30 218, Lower Hutt, email: chrisnichols[email protected]
K Grau, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]