Wesselingh v Police
[2024] NZCA 190
•29 May 2024 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA503/2022 [2024] NZCA 190 |
| BETWEEN | STEPHEN WESSELINGH |
| AND | NEW ZEALAND POLICE |
| Hearing: | 13 May 2024 |
Court: | Mallon, Lang and Moore JJ |
Counsel: | Applicant in person |
Judgment: | 29 May 2024 at 3 pm |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
Stephen Wesselingh was convicted following a judge-alone trial in the District Court of a summary offence assault.[1] Mr Wesselingh was fined $750 and ordered to pay court costs of $130.[2] His appeal against conviction was dismissed by the High Court.[3] He now seeks leave to bring a second appeal to this Court.
Background
[1]New Zealand Police v Wesselingh [2022] NZDC 9326 [District Court decision]. Mr Wesselingh was charged under s 9 of the Summary Offences Act 1981.
[2]At [33].
[3]Wesselingh v New Zealand Police [2022] NZHC 2161 [High Court decision].
The charge of assault arose out of events on 20 May 2021. Clynt McGregor, a Ministry of Justice bailiff, attended Mr Wesselingh’s business address to execute a warrant. The warrant was to seize property for an unpaid speeding ticket.[4] As a result of the events that then transpired, Mr Wesselingh was charged with assault. He elected to act for himself and the matter proceeded to trial in the District Court before Judge Turner. The prosecution called evidence from Mr McGregor and a police officer. Mr Wesselingh gave evidence in his defence.
[4]The fine was $110 for exceeding the speed limit in a 50 km/h zone as well as an $102 enforcement fee.
Mr McGregor’s evidence was as follows:
(a)He entered the property in his vehicle through an unlocked gate, telephoned a number for the business to speak to the manager, walked to one of the sheds and was approached by a person who identified himself as the manager (there is no dispute that this was Mr Wesselingh). Mr McGregor then told Mr Wesselingh that he had a warrant and showed it to him and Mr Wesselingh responded that he was not paying.
(b)Mr Wesselingh turned and walked away, disappearing into a building. Mr McGregor followed him to the entrance of the building. Mr Wesselingh turned around and approached him, repeatedly telling him to leave and that he had no right to be there. Mr Wesselingh may also have told him that it was a dangerous building. Mr McGregor told Mr Wesselingh he was not going to leave and that he had a warrant. Mr Wesselingh came right up to him, angrily yelling at him to leave. Mr Wesselingh then “lurched forward” and “put two hands on [his] chest” pushing him back one step. Mr McGregor then took another step back and activated his duress alarm.
(c)Mr McGregor briefly talked with a nearby employee and walked to the gates. They were locked and so he went to his vehicle and waited for the police to arrive.
The attending police officer was Constable Pedersen. His evidence was as follows:
(a)The gates were closed when Constable Pedersen arrived. He spoke to Mr McGregor through the closed gate to make sure he was safe. He then climbed over the gate, spoke to Mr McGregor again and then went to a shed where he saw two men were working. He identified himself and asked Mr Wesselingh to come out to talk. Mr Wesselingh refused to do so.
(b)Constable Pederson walked into the shed and endeavoured to discuss the complaint of an alleged assault. Mr Wesselingh said he was busy and refused to discuss the allegations despite being warned that he could be arrested. Constable Pedersen proceeded to advise Mr Wesselingh that he was under arrest. Mr Wesselingh struggled and the officer pushed him up against a work bench. With the help of Mr McGregor, because Mr Wesselingh was making no effort to support himself, they “dragged” Mr Wesselingh out of the building and placed him on the ground until other police officer units arrived. He was advised of his rights.
(c)Mr Wesselingh was transported back to the police station. He spoke to a lawyer. A decision was made to offer Mr Wesselingh to deal with the matter by way of a warning for a Summary Offences assault if Mr Wesselingh accepted that an assault had occurred. However, Mr Wesselingh refused to accept this.
Mr Wesselingh’s evidence was as follows:
(a)Mr McGregor telephoned him and told him that he was a bailiff and had come to collect a fine. The business had not received anything about a fine. The first he knew about it was when Mr McGregor arrived, demanding money and threatening to steal property.
(b)Mr Wesselingh was working in the shed and went out to speak to Mr McGregor when he saw him. He was not yelling and did not push Mr McGregor. Mr McGregor was blocking his exit from the building, and he had tried to slide past him. As he did so, Mr McGregor said “right that’s assault” and activated his duress alarm.
(c)The duress alarm was a large object on Mr McGregor’s chest which meant that Mr Wesselingh would not have been able to push hard on Mr McGregor’s chest with both hands. Mr McGregor did not stumble backwards. He stepped back to allow Mr Wesselingh to get past.
(d)Mr Wesselingh walked out of the building to warn his “lone female employee that there was a troublemaker on the property”. Mr Wesselingh repeatedly asked Mr McGregor to leave the property but he would not do so. He gave Mr McGregor ample time, probably 10 minutes, to leave but Mr McGregor chose not to do so. Mr Wesselingh locked the gate so that Mr McGregor would not “steal” anything.
(e)When the first police officer arrived, Mr Wesselingh was very busy. They were pouring washing soda — a steaming hot liquid — into trays on the bench. The officer was demanding that he come out but he could clearly see that they were busy. He was grabbed by his overalls, lying on the floor in handcuffs, dragged a short distance and then his wrists were twisted to make him walk. Another officer arrived and helped to break his right wrist and grind the handcuffs into his lower spine.[5]
[5]Mr Wesselingh also stated at the hearing before us that he was pushed against a hot steaming tray when arrested, although this did not emerge in the evidence at trial.
Judge Turner found the charge proven.[6] In doing so he noted that the slightest degree of force was sufficient. He accepted the evidence of Mr McGregor that this had occurred by Mr Wesselingh placing his hands on Mr McGregor’s chest causing him to stumble back one step sufficient to constitute and assault.[7] In accepting Mr McGregor’s evidence the Judge:
(a)considered that Mr McGregor had given consistent evidence;[8]
(b)contrasted Mr McGregor’s calm manner in giving evidence with Mr Wesselingh who used highly emotive language (for example, stating that the bailiff was there to “steal stuff” and was a “troublemaker”) and answered in a smart or facetious manner that he was “happy to see” Mr McGregor;[9]
(c)considered that Mr Wesselingh’s attitude to the presence of Mr McGregor was demonstrated by what he did immediately after the alleged assault in locking the gate and saying that he did so because he was busy and did not have time to watch to see what Mr McGregor would “steal”;[10]
(d)referred to Mr Wesselingh’s evidence that Mr McGregor had stumbled back and said “that’s assault” and activated his alarm and regarded this as supporting the evidence of Mr McGregor;[11] and
(e)rejected the notion that Mr McGregor would make up the assault.[12]
[6]District Court decision, above n 1, at [15]–[25].
[7]At [21].
[8]At [15].
[9]At [17].
[10]At [20].
[11]At [22].
[12]At [23].
Mr Wesselingh appealed to the High Court on a number of grounds. In dismissing the appeal, Doogue J:
(a)did not accept that Judge Turner had presumed Mr Wesselingh was guilty — in fact, he had referred to the requisite evidentiary threshold in his reasons;[13]
(b)considered that no miscarriage of justice could arise from Judge Turner providing Mr Wesselingh with a document, which, it appeared, was the standard information that was provided to unrepresented defendants prior to trial;[14]
(c)viewed the Judge’s interventions in cross-examination as characterised by attempts to assist Mr Wesselingh in adhering to formal requirements of the trial process and were proper and did not jeopardise Mr Wesselingh’s fair trial rights;[15] and
(d)considered it plain the Judge considered all relevant evidence and set out cogent reasons why he preferred the evidence of the prosecution witnesses.[16]
Appeal
[13]High Court decision, above n 3, at [17].
[14]At [19].
[15]At [22]–[23].
[16]At [30].
Leave will not be granted unless an appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[17] The test is a high one.[18] It is unlikely to be met where an application raises issues involving a “factual assessment that is specific to the circumstances of the case” or the application of “well-established principles to a particular fact situation”.[19]
[17]Criminal Procedure Act 2011, s 237(2).
[18]See generally McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
[19]McAllister v R, above n 18, at [36], quoting R v Thompson [2005] NZSC 58, [2005] 3 NZLR 588 at [6]; and Balfour v R [2013] NZSC 149 at [2].
The key issue at trial was the credibility and reliability of Mr McGregor’s evidence as against that of Mr Wesselingh. Judge Turner, as the trial judge, was well‑placed to assess this. The Judge explained why he reached the conclusion that he did. Like the High Court, we consider it is plain that the Judge took into account all of the evidence at trial in reaching his conclusion. The conclusion he reached was well open to him.
Mr Wesselingh’s primary submission to this Court was that it was not possible for him to have placed his two hands on Mr McGregor’s chest because of the duress alarm on Mr McGregor’s chest. We are unpersuaded that this device could have prevented Mr Wesselingh from placing both his hands on Mr McGregor’s chest. Nor, having reviewed the notes of evidence and the judgments of the District Court and High Court on the matter, are we persuaded that a miscarriage of justice may have occurred.
Mr Wesselingh also complains that the Ministry of Justice and court staff did not provide him with any information before or after the incident, and that he was obstructed by the Court and police from calling witnesses. He submits that the District Court Judge improperly interfered with his defence and gave him a document that he had no knowledge of and then said that he had read and understood it. In his submissions to this Court, Mr Wesselingh raised concerns about the manner in which he was arrested and the number of police who attended the property informing us of several serious injuries he suffered as a result.
These matters do not give rise to the possibility of miscarriage of justice. The trial of the charge involved a narrow issue — whether Mr Wesselingh intentionally applied at least a small degree of force to Mr McGregor’s chest. Whether Mr Wesselingh knew about the unpaid fine before Mr McGregor’s attendance, the manner in which he was arrested or the number of police who responded to the duress alarm are peripheral matters that do not bear on that narrow issue. The form Mr Wesselingh was given to read and the Judge’s interventions at trial arose because Mr Wesselingh elected to represent himself — Mr Wesselingh confirmed to us that this was his wish.
The whole incident was unfortunate but there is no basis to grant leave for a second appeal. The criteria for a grant of leave to bring a second appeal is not met.
Result
The application for leave to appeal is declined.
Solicitors:
Crown Solicitor, Timaru for Respondent
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