Wewege v Police
[2020] NZHC 3117
•24 November 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-385
[2020] NZHC 3117
BETWEEN MONIQUE WEWEGE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 November 2020 Appearances:
S Kim and M S Sweetman for Appellant C Howard for Respondent
Judgment:
24 November 2020
(ORAL) [INTERIM] JUDGMENT OF LANG J
[on appeal against conviction and sentence]
Solicitors:
Kayes Fletcher Walker, Auckland Public Defence Service, Auckland
WEWEGE v NEW ZEALAND POLICE [2020] NZHC 3117 [24 November 2020]
[1] Ms Wewege faced charges in the District Court of assault with intent to injure,1 threatening to kill2 and strangulation.3 Following a Judge alone trial in the District Court at Manukau on 26 June 2020 His Honour Judge David J Harvey found the first two charges proved but not the third. 4
[2] On 11 August 2020 the Judge sentenced Ms Wewege to supervision for a period of 12 months and ordered her to perform 150 hours community work.5 Ms Wewege appeals against both conviction and sentence.
The appeal against conviction
Approach
[3] The approach to be taken by an appellate Court considering an appeal against conviction was recently confirmed by the Supreme Court in Sena v Police.6 The Supreme Court rejected the approach taken earlier by the Court of Appeal in Gotty v
R.7 The Supreme Court held that the conventional appellate approach identified in Austin Nichols & Co Inc v Stichting Lodestar applies to appeals against conviction following Judge-alone trials.8 If an appellate Court comes to a different view on the evidence the trial Judge will necessarily have erred and the appeal must be allowed. However, it remains for the appellant to show that an error has been made in the Court below. In undertaking its own assessment of the correctness of the decision the appellate Court should take into account any advantage the trial Judge may have had. The latter principle obviously has particular importance in cases where a trial Judge is being asked to determine issues of credibility and veracity.
[4] In the present case Ms Wewege contends the Judge erred in the assessment he made of the evidence to such an extent that a miscarriage of justice has occurred.9 She
1 Crimes Act 1961, s 193.
2 Crimes Act 1961, s 306.
3 Crimes Act 1961, s 189A
4 New Zealand Police v Wewege [2020] NZDC 19161.
5 New Zealand Police v Wewege [2020] NZHC 20687.
6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
7 Gotty v R [2017] NZCA 528.
8 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR at [4].
9 Criminal Procedure Act 2011, s 232(2).
contends the Judge reached factual conclusions that were not open to him on the evidence.
The hearing in the District Court
[5] The charges were laid as a result of an incident that occurred on the evening of 3 May 2019. On that date Ms Wewege was staying at an address occupied by a Mr Rodney Mitchell. Mr Mitchell had recently separated from his partner, Fallayne, and she had not yet completed the removal of items from his address. On the evening of 3 May 2019 Fallayne sent Mr Mitchell a text message indicating she wished to come to his address to uplift further items. She subsequently arrived at the address and he met her on the pathway outside.
[6] Mr Mitchell said in evidence that when Fallayne arrived at the address she greeted him in a familiar manner. He said she hugged and kissed him and also touched his crotch area. He said he then invited her into the house. It seems that Ms Wewege had seen what had happened outside the address through a window and took exception to it. Fallayne said that she came into the address and sat down on a couch. At or about that time Ms Wewege appeared and demanded that Fallayne give her cellphone charger cord back to her. This was apparently sitting onae couch behind Fallayne. Fallayne said that when she went to give the cord to Ms Wewege an attempt was made to snatch it from her hand. She resisted this and reprimanded Ms Wewege for her rudeness in the way she was attempting to snatch the cord.
[7] At that point a physical altercation occurred. Fallayne said Ms Wewege grabbed her by the hair and pulled her from the couch to the vicinity of a kitchen bench. There she endeavoured to slam her head against the bench. Fallayne said her head actually struck the bench on four or five occasions. She said that a few moments later Ms Wewege clawed at her eyes. She then placed both arms around her neck and placed significant pressure on it. She found it difficult to breathe as a result of this pressure.
[8] Fallyne said that at this point Mr Mitchell intervened and separated the two women. A short time later Fallayne left the address after first calling the police. By
the time the police arrived Fallayne was at a medical centre. The police travelled to the medical centre where they took photographs of her. These were produced at trial.
[9] Mr Mitchell said he had seen Ms Wewege acting in an aggressive manner towards Fallayne. He confirmed that the two women had gone to the area around the bench. He said he saw Ms Wewege pushing Fallayne’s head down towards the bench but did not see it actually strike the bench. He also said that he saw Ms Wewege “clawing” Fallayne. Overall, Mr Mitchell considered Ms Wewege to be the aggressor, although he acknowledged it was ultimately an altercation or fight between the two women.
The Judge’s decision
[10] The Judge considered Fallayne had embellished her evidence. On this point I consider it likely that he was referring to the evidence she had given about Ms Wewege’s attempts to slam her head on the bench. He said that it was therefore important for him to have regard to independent evidence rather than the evidence given on an uncorroborated basis by Fallayne. He preferred the evidence given by Mr Mitchell to that given by Fallayne.
[11] Overall the Judge was not satisfied that Ms Wewege had placed her hands around Fallayne’s neck and tried to strangle her. He therefore dismissed that charge. He was satisfied, however, that during the course of the altercation Ms Wewege had threatened to kill Fallayne in Afrikaans. He therefore found that charge proved beyond reasonable doubt. The Judge noted that photographic evidence showed the injuries around Fallayne’s eyes. During her evidence in chief Fallayne had confirmed that these were caused when Ms Wewege tried to, in her words, “gouge her eyes” with her thumbs. The Judge therefore considered the charge of assault with intent to injure had been proved beyond reasonable doubt.
The appeal
[12] The sole ground of appeal is that Fallayne was such an unsatisfactory witness that the Judge could not reasonably have been left sure she was telling the truth. Mr Kim points out on Ms Wewege’s behalf that the Judge expressly said that Fallayne had
embellished her evidence and that independent supporting evidence was necessary before weight could be given to it. Given the shortcomings in Fallayne’s evidence, Mr Kim submits the Judge could not reasonably have concluded that either charge had been proved beyond reasonable doubt.
Decision
The charge of assault with intent to injure
[13] I bear in mind the principle that in a case such as this the trier of fact, in this case Judge Harvey, had a distinct advantage because he was able to see and hear the witnesses and judge for himself the manner in which they gave their evidence. This Court must be cautious before adopting a different view regarding issues of credibility for that reason.
[14] It is also clear that, although the Judge found Fallayne had embellished her evidence, he did not find her to be an untruthful witness. Rather, he looked for supporting evidence before giving weight to what she had said on important points.
[15] The prosecution did not specify which assault constituted the charge of assault with intent to injure. If Fallayne’s version of events was correct there were in fact several assaults. The first was the incident where Ms Wewege allegedly pulled her hair and in doing so pulled her over from the couch to the area around the kitchen bench. The second was the incident in which Ms Wewege allegedly drove Fallayne’s head into contact with the kitchen bench. The third was the alleged gouging of Fallayne’s eyes.
[16] The Judge did not reach any firm finding of fact regarding the incident involving Ms Wewege driving Fallayne’s head into the kitchen bench. However, in deciding the charge on the alternative basis relating to the gouging of the eyes I am satisfied he must have concluded he was unable to be satisfied beyond reasonable doubt regarding the incident involving the kitchen bench. Mr Mitchell did not see Fallayne’s head strike the bench. As a result there was no independent evidence that the striking had occurred. It is therefore not surprising the Judge did not find the charge proved on this basis.
[17] There was, however, supporting evidence for the alternative assault occasioned by the gouging of the eyes. First, there was Fallayne’s evidence that this had occurred. Secondly, Mr Mitchell observed a “clawing”, although he did not specify the area of the body to which this was directed. Thirdly, the photographs produced at the hearing depict abrasions in the areas around both Fallayne’s eyes. Fallayne said she sustained these when Ms Wewege gouged her eyes. She also said that her vision was blurry as a result of the incident. Counsel for Ms Wewege did not challenge Fallayne’s evidence about the injuries depicted in these photographs and it is too late for any challenge to be made to those assertions now.
[18] Taking those factors into account, I am satisfied there was material available on which the Judge was entitled to find the charge of assault with intent to injure proved. Furthermore, I do not consider he was in error to do so. The appeal against conviction on that charge is accordingly dismissed.
The charge of threatening to kill
[19]The position is different so far as the charge of threatening to kill is concerned.
The Judge found this charge proved for the following reasons:10
[9] Fallayne has given evidence that there was a threat to kill and it was made in Afrikaans and although some of the incident was overheard by Antionette Appelgryn, Fallayne herself has said that at one stage during the dispute she referred to Monique as a white kaffir, which is a serious insult to a South African, one which I will not attempt to break down. It was confirmed by the witness that it was serious and it was also clear that between the two of them there were words exchanged and I am satisfied that the argument between them, the words and the violence were heated and that during the course of that, even although it may not have been heard by Ms Appelgryn, there was a threat that was made by Monique to kill Fallayne and that was made in Afrikaans. I am satisfied that that charge has been made out.
[20] It is obvious from this paragraph that the Judge was satisfied that Ms Wewege made a threat to kill Fallayne notwithstanding the fact that this was not heard by either Mr Mitchell or by Ms Appelgryn, who heard at least some of the altercation after Ms Wewege called her by cellphone and then left the cellphone line open whilst the altercation took place. There is, however, a second element that the prosecution must prove in relation to a charge of threatening to kill. This is that the person making the
10 New Zealand Police v Wewege, above n 1.
threat intends the recipient of the threat (or some other person) to take the threat seriously.11 The Judge did not deal with this aspect of the charge and it may not have been drawn to his attention.
[21] On the evidence adduced during the trial, however, I do not see how this aspect of the charge could be made out. The altercation amounted primarily to a tussle involving pushing, pulling, shoving and eye-gouging. Ms Wewege did not use any instrument to strike Fallayne and there is nothing about the background to the events to suggest Fallayne might have appreciated that Ms Wewege intended any threat to kill to be taken seriously. Nor do I think the Court can realistically infer that Ms Wewege intended the threat to kill to be taken seriously.
[22] I am therefore satisfied the second aspect to the charge cannot be proved beyond reasonable doubt. The appeal against conviction in relation to the charge of threatening to kill is accordingly allowed and that conviction is quashed.
Appeal against sentence
[23] The sentence imposed by the Judge obviously needs to be reviewed in light of the successful appeal against conviction on the charge of threatening to kill.
[24] Mr Kim advises me that Ms Wewege wishes to pursue an application for discharge without conviction in light of the outcome of the conviction appeal and her unsuccessful efforts since she was convicted to find employment. I direct that any evidence in support of an application for discharge under s 106 of the Sentencing Act 2002 is to be filed and served no later than 15 December 2020.
[25] Submissions on Ms Wewege’s behalf in relation to the appeal against sentence are to be filed and served no later than 20 January 2021. Submissions by the Crown are to be filed and served no later than 28 January 2021.
11 R v Meek [1981] 1 NZLR 499 (CA) at 503.
[26] I will resume hearing the appeal on Thursday 4 February 2021 at 2.15 pm (one hour allocated).
Lang J
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