Walker (aka Walker-Davison) v Police

[2020] NZHC 3362

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2020-476-15

[2020] NZHC 3362

BETWEEN

SUSAN VIOLET WALKER (AKA SUSAN VIOLET WALKER-DAVISON)

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 December 2020

Appearances:

Appellant in Person

H V Bennett for Respondent

Judgment:

16 December 2020

JUDGMENT OF MANDER J

This judgment was delivered by me on 16 December 2020 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

WALKER v POLICE [2020] NZHC 3362 [16 December 2020]

[1]    The appellant, Susan Walker,1 was convicted on charges of wilful trespass, assault, and threatening behaviour following two judge-alone trials on 17 June 2020.2 She was convicted and discharged and ordered to pay $50 in reparation to each of the two victims, together with witness expenses. Ms Walker appeals her convictions on the basis the Judge erred in finding her guilty. She also appeals her sentence, alleging that a community sentence rather than reparation should have been imposed.

[2]    Ms Walker seeks to appeal out of time. She is self-represented and states the reason for seeking an extension of time is because she has mental health issues. The police are not prejudiced and do not oppose. Leave is therefore granted.

Factual background

The 12 November 2019 incident

[3]    On 12 November 2019 Ms Walker was walking past the AMPSS 101 (Addictions, Mental Health Peer Support Services) building on Church Street, Timaru, (the AMPSS building). Ms Walker had previously been trespassed from this property for abusing staff members.

[4]    Ms Walker saw the complainant, Ms Andrews, walking into an alley next to the building during her tea break, presumably to smoke. She approached Ms Andrews and became worked up.   It was alleged she began shouting and verbally abusing   Ms Andrews. She then stood in her way and refused to let her past, effectively trapping her. Ms Andrews text messaged a colleague inside the building, using the words “help”. This colleague came outside and tried to calm Ms Walker down. During this time, Mr Walker is said to have threatened Ms Andrews with words to the effect “I’m going to smash you over”, “I’m going to burn down your two houses” and “I’m going to kill you”. As a result of her conduct, Ms Walker was charged with threatening behaviour.

1      Variously known as Susan Violet Walker Davison, Violet Susan Walker-Davison and Violet Susan Walker.

2      Trespass Act 1980, ss 4(4) and 11(2)(a); Crimes Act 1961, s 196; and Summary Offences Act 1981, s 21(1)(a).

The 28 November 2019 incident

[5]    On 12 October 2019 Ms Walker was trespassed from New World supermarket on Wai-Iti Road, Timaru. Some six weeks later, on 28 November 2019, Ms Walker entered that same New World supermarket and approached a staff member at the Lotto and coffee counter. She ordered a coffee and asked to cash in some Lotto tickets. She was said to have become demanding and abusive towards the staff member serving her.

[6]    Another staff member, the complainant, Ms Hogan, was called to assist in removing Ms Walker  from the store.  Having been asked to leave multiple times,  Ms Walker became enraged. It was alleged that she twice spat at Ms Hogan, held her fist up to Ms Hogan’s face and attempted to kick her. Ms Walker had to be restrained by other members of staff until the police arrived. She was charged with wilful trespass and common assault.

Principles on appeal

[7]    Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage means an error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3 An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.4

District Court decision

[8]    Judge Maze gave two oral judgments following the completion of the two judge-alone trials on 17 June 2020.

3      Criminal Procedure Act 2011, s 232(4).

4      Section 232(5).

The trespass and assault decision

[9]    The Judge commenced her decision by outlining the circumstances that gave rise to Ms Walker being trespassed from New World.5 The Judge was satisfied on the evidence provided by Constable Rigby that a trespass notice for the supermarket had been served upon Ms Walker on 12 October 2019. It ran for two years from the date of its service.

[10]   Ms Walker  did not dispute that she was at the New World  supermarket on  28 November 2019, and the Judge was satisfied that she was present on those premises on that day. The Judge did not accept that Ms Walker thought the trespass notice had expired, particularly since she had been served with it only the previous month. Nor did the Judge think that Ms Walker was being truthful about believing that she was no longer subject to a trespass notice. In the absence of any adequate explanation for why she was there in breach of the trespass notice, the Judge considered the elements of the trespass charge were proven beyond reasonable doubt.

[11]   In relation to the assault charge, Judge Maze noted that all of the allegations relied on to support the charge of assault were recorded on CCTV footage, which she had viewed. The actions included spitting, use of a raised fist, a second spitting, and an attempted kick. All those actions could be seen on the CCTV footage. Apart from the complainant herself, two other eyewitnesses had given evidence of Ms Walker’s actions that was consistent with the video record.

[12]   Ms Walker, in her evidence, accepted that she attempted to kick Ms Hogan and spat at her twice. However, she maintained that she was defending herself because she perceived Ms Hogan to be about to attack her. The Judge, after noting that the prosecution carried the burden of proving beyond reasonable doubt that Ms Walker had not been acting in defence of herself, referred to the required three-stage approach to the issue of self-defence. First, on Ms Walker’s own admission, she did apply force by spitting at Ms Hogan. Second, the Judge considered the circumstances as Ms Walker perceived them. The Judge acknowledged that Ms Walker “is not a clear thinker”, and noted her belief that she was under attack, although the Judge expressed

5      Police v Walker [2020] NZDC 18410.

reservations about whether that could have been the case during the whole period of the incident.

[13]   Finally, the Judge considered whether the force used was reasonable in the circumstances. The Judge concluded that when viewed objectively it was unacceptable for Ms Walker to have spat in Ms Hogan’s face and that constituted excessive force. Similarly, the attempt to kick Ms Hogan and the raising of her fist were unreasonable. An option readily available to Ms Walker was to have simply “turned on her heel and walk[ed] out”. On this basis, the Judge considered the charge of assault was proven beyond reasonable doubt.

The threatening behaviour decision

[14]   In relation to the 12 November incident at the AMPSS building, the Judge observed that the genesis of Ms Walker’s dispute with the complainant, Ms Andrews, appeared to be an allegation that the complainant had stolen Ms Walker’s ex-husband’s caravan.6 Ms Andrews maintained this allegation was unfounded. The Judge noted that Ms Andrews felt intimidated by Ms Walker’s threats to kill her and to burn down her properties. She felt frightened and, being effectively trapped down an alley, had no means of escape.

[15]   The Judge recounted how she had  heard  from  Ms  Andrews’  colleague,  Ms Sandrey, who went to provide assistance when Ms Andrews text messaged her. Ms Sandrey saw Ms Walker forcing Ms Andrews to retreat into a corner of the alley. Ms Walker was described as aggressive and Ms Sandrey heard her uttering threats. While attempting to insert herself between the two women, Ms Sandrey called the police.

[16]   The attending officer, Constable Keen, observed Ms Walker and Ms Andrews engaged in what he considered  to  be  a  heated  discussion.  Having  talked  with Ms Walker, he understood she was upset about being trespassed. He then arrested  Ms Walker for threatening behaviour. The notebook entries of Constable Keen that

6      Police v Walker-Davison [2020] NZDC 18407.

recorded the officer’s questions and Ms Walker’s answers, and which Ms Walker signed as true and correct, were entered as evidence.

[17]   Ms Walker gave evidence, saying she chanced upon Ms Andrews and while they initially spoke calmly things got out of hand. She admitted telling Ms Andrews she was not going back inside the AMPSS building but denied uttering any threats. Ms Walker maintained she was simply trying to talk to Ms Andrews and she knew nothing about the trespass.

[18]   Having recounted this evidence, the Judge concluded that the matter came down to a question of fact. Ms Walker had admitted that the discussion deteriorated into a heated argument. She admitted to Constable Keen she “saw red”. Ms Andrews was distressed enough to text for help. The Judge considered it was highly unlikely she would have done that if the confrontation occurred in the manner that Ms Walker described.

[19]   The Judge noted that Ms Walker had also admitted in her responses to Constable Keen that she was determined to stop Ms Andrews from continuing her job and admitted she would have “burnt her house down or broken her legs years ago”. The Judge considered that this tended to suggest that Ms Walker was well aware of the allegations that would likely be made against her by Ms Andrews.

[20]   The Judge was satisfied that Ms Walker had threatened to injure Ms Andrews and to damage her property, or words to that effect, that she knew her conduct was reasonably likely to frighten Ms Andrews, and that this was her intention. The charge was held to have been proven beyond reasonable doubt.

Sentencing decision — 5 August 2020

[21]   Judge Maze observed at the commencement of her sentencing remarks that the offending was at the lower end of the scale, albeit still distressing for the victims.7 She noted that Ms Walker had relevant previous convictions, but none since 2013.

7      Police v Walker-Davison [2020] NZDC 19642.

[22]   Community Corrections advised the Court that due to Ms Walker’s difficult lifestyle there were no community sentencing options they could offer. In any event, the Judge considered that it would be setting Ms Walker up to fail if community work was imposed. A sentence of community detention was the only alternative, but the Judge considered this sentence to be too high in the hierarchy of sentences to be appropriate, and would likely cause further distress to Ms Walker.

[23]   The Judge noted that Ms Walker’s financial resources were limited but that she had offered to pay $50 reparation to each of the two victims. In addition, she accepted she would have to pay witness expenses. On that basis, Ms Walker was convicted and discharged on the three charges but ordered to pay a total of $100 reparation and $250 witness expenses.

The appeal

[24]   Ms Walker, who represented herself on her appeal, raised a series of discursive points in support of her appeal that I will endeavour to address in turn.

[25]   Ms Walker maintained that due to COVID-19 she was not provided with the opportunity to have her matter heard by a Judge from outside of Timaru. This appeared to be something that was important to her, although it was not clear why. Her preference was for Dunedin. However, a charging document is required to be filed in the office of the District Court that is nearest to where the offence is alleged to have been committed, or nearest to where the person filing the charging document believes the defendant can be found.8 The offences occurred in Timaru where Ms Walker resides. The appropriate court was therefore the Timaru District Court. There was no discernible reason to transfer the matter from that venue.

[26]   Ms Walker asserted that she was not trespassing when she visited the New World supermarket on 28 November 2019, nor the AMPSS building on 12 November, earlier that month. However, I do not consider that there can be any realistic dispute regarding the trespass charge. Ms Walker admitted to being present at New World on 28 November and the District Court Judge was entitled to accept the evidence of

8      Criminal Procedure Act, s 14(1).

Constable Rigby that he had served a trespass notice on Ms Walker relating to those premises on 12 October 2019. Constable Rigby gave evidence of the circumstances in which he had served the notice on Ms Walker in the previous month, and Ms Walker must have been aware of its effect.

[27]   Ms Walker complained that some two weeks prior to the incident at New World she visited the supermarket to pick up cigarettes from her son who is an employee there. Ms Walker submitted that she was not asked to leave the property on that occasion. However, that is no answer to the charge. The fact Ms Walker managed to see her son at New World on a previous occasion makes no difference to the legal effect of the trespass notice and the occupant’s legal right to ask her to leave on the day of the incident. Insofar as the AMPSS building is concerned, whether Ms Walker was trespassing at the time is of no consequence as she was not charged with any such offence in relation to the events of 12 November 2019.

[28]   In relation to the assault charge, Ms Walker took issue with the number of angles that the CCTV shows of the incident. She maintained that if other angles had been shown, then the Court would see that Ms Hogan came towards her first and that she was defending herself. Ms Walker believes that she was going to be attacked. Ms Walker also claims that Ms Hogan pulled her shirt during the altercation, which was the reason she spat on her. In oral submissions, Ms Walker was critical that other persons who were present at the supermarket were not called as witnesses, although she did not suggest how their evidence might differ from that given by Ms Hogan and two other eyewitnesses, nor why other CCTV angles would show anything different.

[29]   The difficulties for Ms Walker in attempting to relitigate the assault charge are two-fold. First, the  evidence  was  overwhelming  that  she  assaulted  Ms Hogan. Ms Walker herself admits having spat at Ms Hogan and of attempting to kick her. The accounts given by three of the people who witnessed Ms Walker’s conduct and gave evidence confirmed she spat at Ms Hogan, raised her fist at her and attempted to kick her. The CCTV footage corroborated the eyewitnesses’ evidence. There is no reason to believe that other witnesses or other angles (if they are indeed available from the CCTV) would have resulted in any different narrative, particularly when regard is had to Ms Walker’s own admissions.

[30]   In oral argument, Ms Walker claimed that Ms Hogan grabbed her by the arm, which is a slight variation on her written submission that Ms Hogan pulled her shirt during the altercation. Ms Walker did not refer to these actions by Ms Hogan when giving evidence at the trial and it is unlikely that any further evidence would qualify as being fresh and sufficiently cogent to be admitted for the purposes of the appeal. In any event, Ms Walker’s claims of fearing being attacked cannot overcome the second difficulty she faces in seeking to justify her actions on the footing of self-defence. Even proceeding on the basis that Ms Walker was not thinking clearly at the time (as the Judge did), spitting at Ms Hogan (at least on one occasion in her face) and threatening to strike or kick her was excessive. Her actions in assaulting Ms Hogan could not be legally justified in the circumstances. As the Judge noted, Ms Walker had the option of walking from the premises if she was truly concerned about her safety at the time.

[31]   In addition to these points, Ms Walker sought to raise a number of procedural matters. She complained that the disclosure she received was different from the evidence that was ultimately adduced at the defended hearing. Ms Walker provided no details of what those discrepancies were. She was represented by counsel in respect of the 28 November incident, and it is not apparent that she was caught by surprise in respect of either incident by the content of the evidence called by the prosecution. Nor does it appear that any complaint of that type was raised in the District Court at the time.

[32]   Ms Walker  also  complained  that  two  of  the  witnesses  relating  to  the  12 November incident, Ms Andrews and Ms Sandrey, were permitted to be in the Court while the charges relating  to  the  New  World  matter  were  being  heard.  Ms Walker did not articulate how that created any unfairness, given they had no involvement in the 28 November incident. An order excluding witnesses from a hearing is for the purpose of avoiding one witness’s evidence about the same event tainting the evidence of another and removing any suggestion of one witness’s account influencing another witness. Because the two sets of charges arose out of two different incidents involving different people, it is not apparent there was any reason why    Ms Andrews and Ms Sandrey could not remain in the courtroom while the matter in

which they had no involvement was being heard. Ms Walker did not provide any details of how their presence prejudiced either her or her defence.

Conclusion

[33]   Having undertaken an overall appraisal of the two hearings, it is not apparent that the District Court Judge erred in her assessment of the evidence. The Judge provided sufficient reasons for how she arrived at her decisions to convict. On each of the charges, Judge Maze canvassed the facts and considered the evidence and the elements of each offence that were required to be proven. I am unable to discern any error in the Judge’s approach or that any miscarriage of justice arises from her finding the charges proved.

Sentence appeal

[34]   Turning to the sentence appeal. The sentence ultimately imposed accorded with a submission made on behalf of Ms Walker by her counsel who represented her at sentencing on all three charges, that she be convicted and discharged, and an order made that she pay reparation. Ms Walker is recorded by Judge Maze as offering to pay $50 reparation to each of the two victims. In submissions filed in advance of the sentencing hearing, counsel advised that the Department of Corrections was unable to provide any satisfactory community-based sentencing option. Her counsel was understandably anxious to avoid any sentence that may result in her being detained. The choices available to the Court were therefore limited. Appropriately, the sentencing Judge in the circumstances opted for the least restrictive sentence available and imposed a nominal amount of reparation in respect of each victim. The sentence is clearly not manifestly excessive.

Result

[35]   In the absence of any identified error in the District Court’s assessment of the evidence in relation to each charge  and the process followed, I am satisfied that    Ms Walker’s trial was fair and that there has been no miscarriage of justice. The sentences were appropriate in the circumstances. It follows that the appeals against both the convictions and sentence are dismissed.

Solicitors:

Crown Solicitor, Timaru