Wesselingh v Police
[2022] NZHC 2161
•29 August 2022
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2022-476-000006
[2022] NZHC 2161
BETWEEN STEPHEN WESSELINGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 August 2022 (Heard at Dunedin) Appearances:
Mr Wesselingh appears in person A R McRae for Respondent
Judgment:
29 August 2022
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 29 August 2022 at 3.30 pm.
Registrar/Deputy Registrar Date:
WESSELINGH v NEW ZEALAND POLICE [2022] NZHC 2161 [29 August 2022]
Introduction
[1] Stephen Wesselingh was convicted of a charge of assault1 following a Judge-alone trial.2 He appeals.
Background and District Court decision
[2] Before the commencement of the trial Mr Wesselingh said he did not have disclosure from the police. On further inquiry it appeared Mr Wesselingh had been sent a full copy of the police case but no longer had those documents in his possession. The Judge was satisfied Mr Wesselingh had received disclosure but asked police to make another copy of the documents available for the purposes of the trial.
[3] The police case was Mr Wesselingh assaulted Mr McGregor, a Ministry of Justice bailiff. On 2 May 2021, Mr McGregor, in uniform, travelled to the address of Ascot Manufacturing Limited to execute a warrant issued by the Court to seize property for unpaid fines. Mr McGregor arrived to find a gate to the property locked. However, the company was on a corner site and Mr McGregor was able to enter via a gate on the other street which was unlocked and open. He drove his vehicle in and stopped. He telephoned a number he had for the address, intending to speak to the manager. He spoke to Mr Wesselingh.
[4] Mr Wesselingh accepted he spoke to Mr McGregor over the phone and that Mr McGregor identified himself and said why he was at the property. A short time after the call ended Mr McGregor said Mr Wesselingh approached him from one of the buildings. Mr McGregor took out his ID and told Mr Wesselingh why he was there. He says Mr Wesselingh advised he was the manager and made comment along the lines of he was not paying, the company was not paying and he did not agree with the warrant.
[5] When Mr Wesselingh turned and walked away, Mr McGregor followed him, stopping at the entrance of the building. Mr Wesselingh saw Mr McGregor was still there and approached him again, telling him to leave. Mr McGregor said he was angry
1 Summary Offences Act 1981, s 9; maximum penalty six months’ imprisonment.
2 Police v Wesselingh [2022] NZDC 9326.
and yelling. Mr Wesselingh got closer to him before, in Mr McGregor’s words, he “lurched forward at me and put two hands on my chest, pushed me back with two hands on my chest”. Mr McGregor activated his mobile duress alarm. That alarm alerted a security company who in turn alerted police.
[6] Mr McGregor approach another employee in the building and asked them who the manager was. He was advised it was Mr Wesselingh. When Mr McGregor tried to leave the property, he discovered the gates had been locked. He was effectively trapped. He waited in his car until police arrived. The first police officer at the scene, Constable Pendersen, gave evidence. He said he found both gates locked and the property surrounded by a tall fence. He spoke to Mr McGregor who was on the other side of the fence before climbing over the fence and entering one of the buildings. He saw and attempted to speak with Mr Wesselingh. When Mr Weselingh refused, the constable advised him he was under arrest. Mr Wesselingh was uncooperative and was eventually removed from the building by the constable and Mr McGregor.
[7] Mr Wesselingh was self-represented at trial. He cross-examined both witnesses and gave evidence. He accepted Mr McGregor spoke to him over the phone. He denied yelling at Mr McGregor but accepted he told Mr McGregor to leave. He said Mr McGregor blocked his path and provided two photographs he said showed this. He said that instead of pushing Mr McGregor he tried to slide past him. He said as he did so Mr McGregor stepped back, said “that’s assault”, and activated his duress alarm. Mr Wesselingh said he obtained keys so as to lock the open gate before returning to work. He disputed the constable’s evidence, saying he was busy working when they asked to speak to him and did not have time to speak to police. He claimed to have been the victim of assault by the police and Mr McGregor.
[8] The Judge accepted the evidence of Mr McGregor and Constable Pendersen where there was conflict between their evidence and Mr Wesselingh’s. The Judge found they gave internally consistent evidence in a clear and calm manner and their evidence was supported in material respects by Mr Wesselingh’s evidence. The Judge found they made responsible concessions.
[9] The Judge found Mr Wesselingh, by contrast, used highly emotive language and was reluctant to answer questions from the prosecution. When he did so it was in a facetious manner. The Judge noted it was plain from Mr Wesselingh’s evidence he was aware of Mr McGregor’s presence, what he wanted, why he was there and that Mr Wesselingh did not want him there.
[10] The Judge considered Mr Wesselingh’s cross-examination of the constable on the lack of physical evidence of an assault, for instance injury or damage to clothing. The Judge determined there did not need to be physical evidence as the slightest degree of force could be sufficient. The Judge was satisfied beyond reasonable doubt that Mr Wesselingh applied force to Mr McGregor by placing his hands on his chest. The Judge was also sure Mr Wesselingh had intentionally applied that force. Mr Wesselingh was convicted.
Principles on appeal
[11] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may allow an appeal against conviction only 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 of justice means any 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 In this section, a trial includes a proceeding in which the appellant pleaded guilty.4
Submissions
Appellant’s submissions
[12] Mr Wesselingh provided his written submission by way of email to the registrar. He said:
The grounds for my appeal include but not limited to the following, the judge started from I’m guilty and I have to prove I’m innocent when it should have been I’m innocent and the police have to prove I’m guilty, he also gave me a
3 Criminal Procedure Act 2011, s 232(4).
4 Section 232(5).
paper with something on it, he tells me to read it then says I have read and understood it, he also interferes with my questioning telling me what I should be asking, he overlooked the police witnesses not answering my questions, he threatened by case when I said I would not answer questions from the police thugs, he makes statements he says I made which was not correct then ignores my statements as to why this case was all McGregors imagination, he wouldn’t let me use any information from supplied paperwork.
[13]He indicated he intended to appear and give oral submissions.
Respondent’s submissions
[14] Ms McManus, for the Crown, submitted Mr Wesselingh’s grounds of appeal could be separated into the following issues:
(a)whether the Judge erred by presuming Mr Wesselingh was guilty;
(b)whether the Judge erred by providing Mr Wesselingh with information prior to the trial commencing;
(c)whether the Judge inappropriately interfered with Mr Wesselingh’s ability to cross-examine the prosecution witnesses;
(d)whether the Judge erred by not taking into account prosecution witnesses not answering questions from him;
(e)whether the Judge erred in his assessment of Mr Wesselingh’s evidence; and
(f)whether the Judge prevented Mr Wesselingh from leading evidence in support of his defence.
Analysis
[15] I accept Ms McManus’ helpful identification of the issues on appeal. I consider her submissions under each of the headings against Mr Wesselingh’s submissions.
Whether the Judge erred by presuming Mr Wesselingh was guilty
[16] Mr Wesselingh submitted the Judge started from the position he was guilty and said the Judge placed the onus on him to prove he was innocent. Ms McManus acknowledged the Judge did not expressly set out the fact Mr Wesselingh enjoyed the presumption of innocence but submitted there was nothing in the Judge’s decision that indicates he started from a presumption Mr Wesselingh was guilty. She submitted the Judge showed an engagement with the case and the competing factual contentions, setting out both sides’ evidence and explaining the tensions between the cases. She maintained it was only after setting out the competing cases and giving reasons that the Judge determined the prosecutor had satisfied him beyond reasonable doubt the charge was proven.
[17] I accept Ms McManus’ submissions. Nothing in the Judge’s decision indicates he lost sight of the presumption of innocence. To the contrary, when delivering his findings on the first charge the Judge referred to the requisite evidentiary threshold, namely for the prosecution to prove beyond reasonable doubt. The Judge did not err on the onus of proof.
Whether the Judge erred by providing Mr Wesselingh with information prior to the trial commencing.
[18] Mr Wesselingh submitted the Judge gave him a “paper with something on it” and told him to read it before saying he had read and understood it. The Judge commented he had given Mr Wesselingh a copy of the information provided to unrepresented defendants. Ms McManus anticipated this was a standard form provided to any defendant who is self-represented at a judge-alone trial. She submitted no miscarriage of justice can have resulted from this information being provided.
[19] I agree with Ms McManus that no miscarriage of justice can have resulted from Mr Wesselingh being provided with this information. The Judge noted in his decision Mr Wesselingh read the information, but nothing turns on that. I do not consider this can have materially affected the fairness of Mr Wesselingh’s trial.
Whether the Judge inappropriately interfered with Mr Wesselingh’s ability to cross-examine the prosecution witnesses
[20] Mr Wesselingh submitted the Judge interfered with his questioning by telling him what he should be asking. Ms McManus accepted there were times where the Judge became involved in Mr Wesselingh’s cross-examination of witnesses. She submitted the Judge was, in most cases, attempting to determine what Mr Wesselingh was asking of the witness in an attempt to ensure the witness was able to understand the questions. Likewise, the Judge prevented Mr Wesselingh from asking questions that were not relevant.
[21] Judges are charged with ensuring the proper administration of justice. This includes protecting the right to a fair trial5 and ensuring litigants do not spend time on irrelevant matters.6 Under s 100 of the Evidence Act 2006, the Judge may ask a witness any questions that, in the opinion of the Judge, justice requires.
[22] Having reviewed the notes of evidence, I do not consider the Judge interfered with Mr Wesselingh’s cross-examination inappropriately. As Ms McManus has submitted, the Judge’s interventions are characterised by attempts to assist Mr Wesselingh with adhering to formal requirements of the trial process, ensuring witnesses understood the questions asked and ensuring the Court was provided with the full narrative of the competing cases.
[23] While it appears the Judge may have become exasperated with Mr Wesselingh at points, nothing did or said went beyond a judicial officer endeavouring to assist a self-represented litigant defending themselves when unfamiliar with trial process. The Judge even permitted Mr Wesselingh to ask the constable further questions after the police prosecutor had completed their re-examination. Ultimately, the Judge’s interventions were proper and did not jeopardise Mr Wesselingh’s fair trial rights. No miscarriage of justice resulted from them.
5 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [18].
6 Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293.
Whether the Judge erred by not taking into account the prosecution witnesses not answering Mr Wesselingh’s questions
[24] Mr Wesselingh claims the Judge overlooked police witnesses not answering his questions. Ms McManus thought he may have been referring to an instance where Mr Wesselingh asked Mr McGregor where Stage Highway One is and the Judge intervened and advised the question was irrelevant and no answer was required. She submitted this ground is on a similar vein as the previous ground — a trial Judge is entitled to regulate the proceedings so long as they ensure the trial is fair.
[25] It is difficult to determine which questions Mr Wesselingh takes issue with the constable not answering. I do not think it is likely this appeal ground relates to the highway issue, although that is possible. It is possible it relates to the following exchange:
Q.That is about the only piece of your evidence that is correct Mr Pedersen.
I refused to accept the assault charge because there was no assault. Is that correct?
A.I can’t answer that.
THE COURT ADDRESSES MR WESSELINGH – RE: FOR THE COURT TO DETERMINE …
[26] It would have been inappropriate for the constable to answer that question because it was for the Judge to determine whether Mr Wesselingh had assaulted Mr McGregor. It was clear from the context that the constable was accepting Mr Wesselingh had denied the assault. In any event, it is plain the Judge considered all the relevant evidence and set out his reasons for finding the charge proven and convicting Mr Wesselingh.
Whether the Judge erred in his assessment of Mr Wesselingh’s evidence
[27] Mr Wesselingh submitted the Judge threatened his case when he said he would not answer questions from the police prosecutor in cross-examination, said he made statements he denies making and ignored his evidence as to why the case was all in Mr McGregor’s imagination.
[28] Ms McManus submitted the Judge appropriately engaged with the case and assessed the evidence of the various witnesses. She said the Judge drew appropriate adverse conclusions against Mr Wesselingh due to his reluctance to answer questions. She submitted the Judge’s assessment of Mr Wesselingh’s evidence was rational and considered.
[29] Mr Wesselingh initially refused to answer the prosecutor’s questions. He told the Judge he would answer questions depending on what they were. The Judge endeavoured to explain to him that the prosecutor, in cross-examination, was entitled to ask him leading questions. Mr Wesselingh proceeded to give answers that were appropriately described by the Judge as facetious to several questions from the prosecutor. An example is, when the Judge asked him the prosecutor’s question about whether he was happy Mr McGregor was at his business location, Mr Wesselingh responded that he was “very happy” Mr McGregor was at his business premises. Similarly, he continued in response to another question “of course I wanted him [at my business premises]”. These answers did not assist the Court and it was appropriate for the Judge to draw adverse inferences from them.
[30] The Judge did not ignore Mr Wesselingh’s evidence. As Ms McManus has submitted, the Judge gave cogent reasons why he preferred the evidence of the prosecution witnesses and discounted Mr Wesselingh’s evidence on the material disputes. Having reviewed the Judge’s decision against the notes of evidence, there is no basis to suggest the Judge credited statements to Mr Wesselingh that he did not make.
Whether the Judge prevented Mr Wesselingh from leading evidence in support of his defence
[31] Mr Wesselingh submitted the Judge would not let him use information from “supplied paperwork”. Ms McManus was not sure what Mr Wesselingh was referring to but accepted it was likely he was referring to an exchange where he attempted to refer Mr McGregor to a statement of Shaun Ballantyne (seemingly an employee at the company). Mr Wesselingh was under the impression Mr McGregor would have seen this document. The Judge intervened and prevented Mr Wesselingh referring to this
statement. As Mr Ballantyne was not a witness, this statement was hearsay and did not form part of the evidence before the Court.7
[32] However, as Ms McManus identified, the Judge did not simply stop and move on. He endeavoured to determine what Mr Wesselingh was hoping to accomplish by reference to the statement and asked a further question of the witness as a result. There can be no suggestion the Judge erred in how he dealt with this issue. No unfairness or miscarriage of justice resulted.
Overall merits
[33] It is apparent Mr Wesselingh’s concerns stem from his inexperience with the court process and the fact he was a self-represented litigant. The Judge used his best endeavours to help him and to ensure he had a fair trial where he was able to present a defence. No errors are apparent. The Judge’s reasons for convicting Mr Wesselingh were consistent with the evidence and no miscarriage of justice resulted.
Result
[34]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Dunedin CC:
Mr Wesselingh
7 Evidence Act 2006, ss 4 and 18.
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