Walker v Police
[2022] NZHC 3169
•30 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000313
[2022] NZHC 3169
BETWEEN O’SIRIS VINCENT WALKER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 November 2022 Appearances:
Marie Taylor-Cyphers for the Appellant Harrison Smith for the Respondent
Judgment:
30 November 2022
JUDGMENT OF MOORE J
[Appeal against conviction]
This judgment was delivered by me on 30 November 2022 at 11:00 am.
Registrar / Deputy Registrar Date:
WALKER v NEW ZEALAND POLICE [2022] NZHC 3169 [30 November 2022]
Introduction
[1] Mr Walker was convicted of common assault1 at the North Shore District Court following a Judge-alone trial.2 He appeals this conviction on the ground that there was a failure to undertake any credibility assessment of his evidence as to his intention at the time of the alleged assault.
[2] He asks that his conviction for assault be quashed and that either a conviction for wilful damage be substituted under s 234(2) of the Criminal Procedure Act 2011 (“the CPA”) or, alternatively, that the charge be remitted back to the District Court for re-hearing.
The offending and the evidence
[3] On 29 December 2019, Mr Walker was at a retail store in Rosedale. The complainant, Ms Li-Chun Liu, was serving him. While processing his purchase of a mobile phone through the Laybuy app, she asked for Mr Walker’s identification (“ID”). By that time Mr Walker had been in the shop for a considerable time. He was getting frustrated by the delay. There was a problem with Mr Walker’s finance application. Ms Liu called her manager in an attempt to sort the problem out. While she was on the phone, Mr Walker lost his composure. He picked up the phone and threw it. Then he threw the box which had contained the phone. At least one of the items thrown struck Ms Liu on her head.
[4] At the trial, Mr Walker admitted to throwing the phone and box out of anger, frustrated as he was at the situation and the length of time the process of purchasing the phone had occupied. He said that he did not throw the items at Ms Liu but, instead, at the wall. He claimed he did not intend to hit Liu with either object.
District Court decision
[5] At the conclusion of the hearing, which appears to have occupied less than two hours, the Judge delivered a correspondingly brief five paragraph oral judgment.
1 Summary Offences Act 1981, s 9: maximum penalty: 6 months’ imprisonment or a fine not exceeding $4,000.
2 Police v Walker [2022] NZDC 17323.
[6] After recounting the facts, the Judge reviewed the essential elements which constitute common assault. She said:
“[3] The charge is a Summary Offences Act 1981 charge and the definition of assault in the Summary Offences Act is the act of intentionally applying or trying to apply force to someone else, either directly or indirectly, or threatening by any act or gesture to apply such force to somebody else. As long as in making the threat you have made the complainant, Ms Liu, believe on reasonable grounds that you were capable of carrying out the threat, that amounts to an assault under the Summary Offences Act. In this case, the repeated act of throwing objects at the complainant, being Ms Liu, even if they did not connect satisfy the definition of assault in the Summary Offences Act.
[4] I have viewed the CCTV footage, I have viewed the photos. I am sure that you threw both objects at Ms Liu, the complainant. It does not matter that they did not connect. Ms Liu says the box hit her head and she was scared.
[5] Having reviewed the CCTV footage and having heard Ms Liu, I am sure she was hit on the head by the box. ”
[7]She thus convicted Mr Walker.
Submissions
[8] Ms Taylor-Cyphers, for Mr Walker, submits that the ingredients of the offence were not made out beyond reasonable doubt. Her argument is essentially that Mr Walker did not intend to apply force nor threaten to apply force to Ms Liu. The Judge’s finding was based on oral evidence without the Judge making any credibility findings against Mr Walker.
[9] Ms Taylor-Cyphers submits that Ms Liu’s evidence grew more “detailed and more adamant” each time she was spoken to by the Police. She did not accept logical and obvious concessions in her evidence, such as that her recollection when first spoken to was would be clearer than at the time of giving evidence. Mr Walker’s evidence, however, was consistent throughout. Ms Taylor-Cyphers therefore submits that Ms Liu’s evidence should have been given less weight. She submits that if Ms Liu’s credibility had been properly assessed, it could not be proved that Mr Walker intended to throw the phone at her.
[10] In conclusion, she suggests that a conviction for wilful damage would be appropriate.3 In her oral submissions she accepted this was not a case where, if I was to allow the appeal, the conviction should be quashed, and an acquittal entered. She properly accepted that if the appeal was allowed, the appropriate course would be to quash the conviction and remit the matter back to the District Court for re-hearing in the event the prosecution elected to proceed again.
[11] Mr Smith, for the Crown, submits that there has been no miscarriage of justice. Although the Judge did not expressly identify the central issue as being whether Mr Walker intentionally threw the objects at Ms Liu, it can be inferred she necessarily must have. He also submits that Mr Walker’s evidence was not rejected for being less credible than Ms Liu’s, but rather that the trial Judge inferred Mr Walker’s intention from the circumstantial evidence.
Principles on appeal
[12] This appeal is brought under s 232(2)(b) of the CPA. I must allow the appeal if I am satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.4
[13] The appeal is to be heard by way of a re-hearing according to the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar.5 It is for the appellant to show that an error has been made. In assessing whether there has been an error, the appellate Court must take into account any advantages a trial Judge may have had. This is especially relevant where there is a challenge to credibility findings based on contested
3 Summary Offences Act 1981, s 11.
4 Criminal Procedure Act 2011, s 232(4).
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141;
Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
oral evidence. If an appellate Court comes to a different view on the evidence, the trial Judge necessarily will have erred and the appeal must be allowed.6
Discussion
[14] Ms Taylor-Cyphers is correct that the Judge did not specifically state that she found Ms Liu’s evidence was more credible than Mr Walker’s. That, however, does not mean she failed to assess Mr Walker’s credibility. While an explicit finding of that sort would have been desirable, I am satisfied on all the material before me that it is necessarily implicit in the Judge’s finding when she said:
“Having reviewed the CCTV footage and having heard Ms Liu, I am sure that she was hit on the head by the box.”
[15]As observed by the Supreme Court in Sena v R:7
“[37] In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved.”
[16] The question I must deal with is whether the Judge erred in finding that Mr Walker intended to throw the phone and box at Ms Liu. If so, it naturally and logically follows he did intend to apply force or attempt to apply force to her.
[17] This intention requires something more than recklessness.8 A finding of intent in these circumstances must necessarily be inferred from the surrounding circumstances. Ms Liu cannot know Mr Walker’s intentions at the time. She can only describe what she remembered happening. I therefore put more weight on the surrounding circumstances and Mr Walker’s evidence.
[18] At the time of the offending, Mr Walker was frustrated and annoyed. He explained why. He had installed the Laybuy app. This included his ID. Once
6 At [38].
7 Sena v R, above n 5.
8 R v Young CA86/92, 9 July 1992.
accepted, the app may be used for any purchase without the need to provide ID. He went to the store to buy the phone, but because he didn’t have a phone with the app installed on it, he asked to use the store’s computer. Ms Liu refused to let him do that. Instead, she told him that he needed to purchase a cheap phone onto which to download the app. He bought the phone, downloaded the app and then, using the app, bought the phone he had originally intended to purchase. Ms Liu then asked him for his ID. He explained that there was no need for ID because it was embedded in the app. Ms Liu said she would need to consult her manager. It was at this point Mr Walker lost his patience and his temper.
[19] The notes of evidence record Mr Walker’s insistence that he was not angry at Ms Liu:
“Q: [inaudible] the cause of your anger and she’s [inaudible], is that right [Ms Liu] was the cause of your anger?
A: No the situation was the cause of my anger, the whole process of me bussing to the Albany store, taking all that time, having to go through an hour of processing everything, finally get approved and then she goes and calls the manager, so I became angry and threw the phone, I never threw the phone at her, my intention was never to hurt her, I’ve never hurt a woman in my life and I never would.”
[20] The evidence is unclear which item, the phone or the box, was thrown first. However, both were thrown in the direction of Ms Liu. Ms Taylor-Cyphers, who was trial counsel, advised that the CCTV footage was “grainy”. Unfortunately, it has not been located and was not available on the appeal for me to view. However, it was common ground at the appeal that one of the objects thrown by Mr Walker hit Ms Liu on the head. There was some challenge in cross-examination as to where Ms Liu was looking at that time and whether she actually saw Mr Walker throw the object.
[21] Relatedly, Ms Taylor-Cyphers suggests that there was no direct or indirect application of force. On that point she appears to rely on the summary of facts which records that Mr Walker threw the phone at a counter and it ricocheted up and hit Ms Liu.
[22] I do not accept that in finding the charge proved, a miscarriage of justice occurred. My reasons follow.
[23] First, this was a single-issue trial. The sole question for determination was Mr Walker’s intention at the time he threw the objects; was it at the wall or at Ms Liu? The Judge correctly framed the issue in those terms when she referred, more than once, to Mr Walker throwing the items “at” Ms Liu. If he threw one or both of the items at Ms Liu, the intention required to prove assault was made out.
[24] Secondly, while it would have been the preferable course to have given reasons, it was unnecessary on the particular facts of this case for the Judge to make explicit credibility findings against Mr Walker. In finding that a combination of reviewing the CCTV footage and hearing from Ms Liu led the Judge to be sure both objects were thrown by Mr Walker at Ms Liu, the Judge necessarily disbelieved Mr Walker. As already noted, if the Judge found Mr Walker had thrown either or both of the objects at Ms Liu the required intention for assault was made out. It was either a direct or indirect application of force to her or was a threat to apply force such that Ms Liu reasonably believed Mr Walker was capable of giving immediate effect to that threat. The Judge correctly stated that proposition and then applied it to the facts.
[25] Thirdly, although not expressly dealt with by the Judge, I regard it as relevant to this analysis that two objects were thrown within seconds of each other; one hit Ms Liu and the other either hit her or narrowly missed. Coincidence reasoning operates against Mr Walker’s claim he was aiming elsewhere and supports the conclusion that the objects were intentionally thrown at Ms Liu.
[26] Fourthly, it cannot be overlooked that the Judge saw and heard the evidence, including Ms Liu and Mr Walker. The criticism Ms Taylor-Cyphers makes of Ms Liu’s evolving accounts and her intransigence under cross-examination were all fully explored and developed in the course of this short trial. The Judge could not have been under any illusion that Ms Liu’s credibility was not in issue and why. Despite this she plainly preferred Ms Liu’s account over Mr Walker’s.
[27] It is this combination of factors which leads me to conclude that justice did not miscarry. On the evidence, the Judge was correct to conclude the charge was made out and in particular the element of intention.
Result
[28]The appeal is dismissed.
Moore J
Barristers/Solicitors:
Ms Taylor-Cyphers, Auckland Crown Solicitor, Auckland
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