White v Police

[2022] NZHC 118

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-000075

[2022] NZHC 118

CRAIG WILLIAM WHITE

v

NEW ZEALAND POLICE

Hearing:

2 February 2022

Appearances:

J P Keung for the Appellant

D L Young for the Respondent

Judgment:

9 February 2022

JUDGMENT OF WALKER J

This judgment was delivered by me on 9 February 2022 at 11 am Registrar/Deputy Registrar

WHITE v NEW ZEALAND POLICE [2022] NZHC 118 [9 February 2022]

Introduction

[1]    Mr Craig White was convicted on charges of indecent assault,1 assault with intent to injure2  and  obscene  language3  following  a  Judge-alone  trial  before Judge Connell in the Hamilton District Court.4 He was sentenced to seven months’ home detention and ordered to pay $1,000 reparation.5

[2]    He now appeals his conviction on the charge of assault with intent to injure and, on an associated basis, his sentence should his conviction appeal succeed.6 He argues that the Judge failed to give consideration to the requisite intention to injure, or mens rea element of the offending; this resulted in a miscarriage of justice and the sentence should accordingly be reconsidered.

Background

[3]    On 25 January 2020, the appellant was at a reserve on the edge of Lake Karapiro with his wife, young family and other friends. A younger member of the appellant’s group, apparently the appellant’s son, was operating a jet ski near to the lake shore at an unsafe speed. The two victims and their friends were attempting to launch a boat. The jet ski caused a wake which sent spray into their boat, soaking their belongings including cell phones. Alarmed, some of the group went to speak to the young man operating the jet ski and the rules around operating jet skis at the lake.

[4]    Initially lacking in contrition, if not bullish, the young man then appeared to tone down his attitude. The group started to walk away.

[5]    As the young woman walked away from the appellant’s group, the appellant said to the young woman, “You have a real nice looking pussy”. Challenged as to what he said, the appellant repeated the comment and told her to come closer so he could “get a better look at it”. The young woman then marched up to him apparently

1      Crimes Act 1961, s 135: carrying a maximum penalty of seven years’ imprisonment.

2      Section 193: carrying a maximum penalty of three years’ imprisonment.

3      Summary Offences Act 1981, s 4(1)(c)(ii): carrying a maximum penalty of a $1,000 fine.

4      New Zealand Police v White [2021] NZDC 6020 [Conviction judgment].

5      New Zealand Police v White [2021] NZDC 24131 [Sentencing notes].

6      Mr White initially appealed his sentence on a standalone basis that the starting point was too high. At the hearing, his sentence appeal was confined to an appeal contingent on the success of his conviction appeal.

to confront him about his comment. As she got closer, the appellant reached out with his left hand and pulled down the victim’s bikini top, exposing her breasts to him and others present.

[6]    One of the appellant’s daughters who been verbally aggressive to that point, then got hold of the female victim from behind, scratching her face and pulling her hair. The second victim, partner of the female victim, was nearby and went to pull the appellant’s daughter off of the female victim. The appellant reacted. He got up and placed the young man him in a headlock, forcing him on the ground. The appellant applied enough force around the neck that the victim could not breathe. At the same time, the appellant also used his fingers to push into the male victim’s left eye socket, gouging his eye.

[7]    While the appellant admitted to placing the male victim in a headlock, he claimed that he only did so in self-defence or defence of another, namely his daughter.

District Court decision

[8]    The Judge accepted that the appellant’s actions in placing the male victim in a headlock may have been motivated by self-defence or defence of another. However, he held that the appellant nevertheless used excessive force. He placed the male victim in a chokehold, dragged him to the ground, would not let go, and tried to gouge the victim’s eyes. That description was consistent with the evidence of independent witnesses. The Judge concluded that the headlock “caused considerable discomfort” to the male victim and was “sufficient to cause injury within the meaning of that in law”.7 As the force was excessive, he considered the assault with intent to injure charge proved “to a prima facie level at the very least”.8

[9]    The Judge assessed the various competing eyewitness accounts in considerable depth. Due to fundamental differences between the defence witnesses, he considered the defence evidence to be unreliable.9 By contrast, he assessed the two victims as reliable, upfront witnesses who made concessions which were not necessarily in their

7      Conviction judgment, above n 4, at [27].

8 At [28].

9      This conclusion was reached after the Judge identified 10 examples of fundamental inconsistency.

favour. He considered them to be truthful in their account. However, from this conclusion he did not “immediately jump to a conclusion of guilt”.10 Of the offence of assault with intent to injure he said:11

Finally in terms of assault with intent to injure, as I have said, defence [sic] might have been available in the circumstances as Mr White understood them to be as he was watching was happening between Mr Donovan Allan who was going in to protect [REDACTED], but looked as if he might have been going to attack Mr White’s daughter, Mr White would have had a defence of self- defence if he had not used such excessive force that caused eye gouging and caused [the complainant’s father] to , as he has said, struggle to breathe and “having stars in his eyes”.

What is required in law is that the prosecution evidence proves beyond reasonable doubt, that the elements of the offences are made out. I am satisfied as to that and accordingly convictions will be entered.

Approach on appeal

[10]   An appeal against  conviction  following a Judge-alone trial  is  governed by  s 232 of the Criminal Procedure Act 2011 (the Act). The appeal must be allowed if the judge has erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred,12 or if a miscarriage of justice has occurred for any other reason.13

[11]   The court puts to one side any errors that are inconsequential or immaterial to the outcome of the trial.14 Its focus is upon errors of substance.15 A real risk arises if there is a real possibility that a not guilty (or a more favourable verdict) might have been delivered if nothing had gone wrong.16 Errors which could not have affected the outcome of the trial cannot found a successful appeal against conviction on the basis of a miscarriage of justice.17

[12]   The standard principles in Austin, Nichols & Co Inc v Stichting Lodestar apply to appeals from Judge-alone trials.18 If the appellate court comes to a different view

10 At [61].

11     At [65] – [66].

12     Section 232(2)(b)

13     Section 232(2)(c).

14     Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [47].

15 At [47].

16 At [27]. See also R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

17     Wiley, above n 14, at [28]; and R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

18     See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and

on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.19 However, the appellate court does not consider the issues de novo as if there had been no hearing at first instance. It is for the appellant to show that an error has been made. The court must remain mindful in this respect of any advantages that the trial judge may have had and exercise the customary caution where the challenge is to credibility findings based on contested oral evidence.20

Submissions

The appellant

[13]   Mr Keung, for the appellant, submits that the Judge’s failure to give reasons in respect of the required element of intent shows that he failed to turn his mind to that fundamental question. That failure is said to amount to an error creating a real risk that affected the outcome of the trial or resulted in a trial that was unfair.

[14]   In this respect, he relies squarely on the Supreme Court’s judgment in Sena v New Zealand Police which found that s 232(2)(b) of the Criminal Procedure Act is premised on the assumption that the requirement for reasons has been satisfied.21

[15]   While the Judge excluded self-defence, Mr Keung submits that he still needed to turn his mind to the question of intent and provide reasons as to whether the prosecution had established an intention to injure. Referring to the Court of Appeal’s decision in McNaughton v R, Mr Keung observed that the Judge’s failure to do so was comparable to a jury rejecting self-defence to a charge of murder on the basis that excessive force had been used, and finding the defendant guilty, without having considered whether the defendant acted with murderous intent.22 Such a leap in reasoning fails to recognise the additional element of the offence.

[16]   Mr Keung therefore submits that the conviction for assault with intent to injure should be quashed and the lesser offence of common assault be substituted under s 234

Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].

19     Sena, above n 18, at [38].

20 At [38].

21     Sena, above n 18, at [36].

22     See McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467 at [72].

of the Criminal Procedure Act. He submits that if the appellant is convicted of common assault, the end sentence should be reduced from seven to five months’ home detention.23 And as the appellant has already served nearly two months home detention an alternative sentence could be considered. He refers to the mental health difficulties experienced by the appellant on home detention and suggests that a combined sentence of three to four months community detention and supervision appropriately meets the principles and purposes of sentencing. Such a sentence could also be augmented by adding a sentence of community work if a further punitive element is required.

The respondent

[17]   Ms Young, for the respondent, submits that the Judge carefully considered the appellant’s frame of mind and intention. The Judge explicitly did not jump to a conclusion of guilt simply because he rejected the appellant’s evidence and the evidence of the defence witnesses.24 He observed that the appellant’s use of such excessive force resulted in eye gouging and caused the male victim to struggle to breathe and have “stars in his eyes”.25 The Judge also referred to the need to find the elements of the defence made out beyond reasonable doubt.

[18]   Ms Young submits that this conclusion should be read in the context of preceding paragraphs including the determination made earlier:26

I have concluded the headlock of the defendant caused considerable discomfort to [the victim] and sufficient to cause injury within the meaning of that in law.

[19]   In these circumstances, Ms Young submits that it is clear the Judge turned his mind to the elements of the charge and the appellant’s state of mind at the time of the assault. On this basis, no miscarriage of justice has occurred and the appeal against conviction should be dismissed. The sentence appeal accordingly falls away.

23     See Boyd v New Zealand Police HC Auckland CRI-2010-404-501, 22 February 2011; and Brodie v New Zealand Police [2016] NZHC 120.

24     Conviction judgment, above n 4, at [61].

25 At [65].

26 At [27].

[20]   As a fall-back, Ms Young submits that, even if the appeal against conviction is allowed, it would nevertheless not follow automatically that the sentence imposed was manifestly excessive. Ms Young points to the remaining charges which all arose out of the same incident for which the appellant was simultaneously sentenced. She submits that the charge of indecent assault could have been identified as the lead charge for sentencing purposes. The sentence imposed was well within range and appropriately reflects the appellant’s culpability.

Discussion

[21]   The appellant relies principally on s 232(2)(b) of the Act. Material to s 232 (2)(b) is the definition of miscarriage of justice in s 232(4). Section 232(4) reads:

232 First appeal court to determine appeal

…

(4)In subsection (2), 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.

[22]   The need to give reasons is well-established.27 While the extent to which reasons are required will vary from case to case, Cooke J observed in R v Connell that:28

There should be enough to show that [the judge] has considered the main issues raised at the trial and to make clear in simple terms why [he or she] finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt.

[23]   The Supreme Court in Sena v New Zealand Police stated that s 232(2)(b) of the Criminal Procedure Act is premised on the very assumption that the requirement for reasons has been satisfied:29

27     In the context of Judge-alone trials, the court is expressly required to give reasons by s 106(2) of the Criminal Procedure Act 2011.

28     R v Connell [1985] 2 NZLR 233 (CA) at 237–238.

29     Sena, above n 18, at [36].

We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference  is  unlikely  to  suffice.  The  language  of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial.

[24]   However, this standard is not inflexible; some degree of latitude will be permitted to the trial judge and the adequacy of reasons must always be assessed in context:30

… 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. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.

[25]   In this case, the Judge comprehensively analysed the conflicting accounts of the incident. He resolved those conflicts in a fully reasoned way. What is missing however is an explicit evaluative assessment of inferences to be drawn as to the element of intent. This may suggest that the Judge considered intent established once the defence of self-defence was rejected.

[26]    I accept Mr Keung’s submission that this omission was an error. While the Judge determined that the appellant’s actions were sufficient to cause injury, it was necessary to expressly consider whether such injury was intended. I do not accept Ms Young’s submission that the Judge must have turned his mind to the question of intent when he concluded that “the elements of the offences are made out”.31 That is at too high a level of generality.

30 At [37].

31 At [66].

[27]   Likewise, finding that the appellant used excessive force did not directly engage with the issue because excessive force could arguably also be the result of recklessness or even negligence. In the language of the Supreme Court in Sena, the failure to explicitly address the appellant’s state of mind is an error which frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c).32

[28]   But I do not accept that is the end of the inquiry. There was strong evidence from which intent could be inferred. I do not consider that the Judge in fact erred when he found all the elements of the offence made out. On the contrary, there is no reasonable possibility that another verdict would have been reached:33

[29]   I am satisfied that the requisite intention to injure is readily to be inferred from the nature of the offending, the type of force used (and in particular the eye gouging at a time when the victim was so clearly restrained), the excess of force and all the surrounding circumstances.

[30]   It is clear from the evidence of independent witnesses that the appellant’s intentions went far beyond merely seeking to restrain the male victim whom he thought had been attacking his daughter. The victim was physically outmatched. He was pinned to the ground and in a chokehold. He presented no threat to the appellant or any member of his family at that stage. The only available inference from the appellant’s continued use of such excessive force was that he intended to injure the victim.

[31]   For these reasons, although I consider the Judge erred in failing to explicitly provide reasons as to the element of “intent”, there was no miscarriage of justice.

[32]   It is unnecessary in these circumstances to consider the appeal against sentence as that was contingent upon the appeal against conviction being allowed.

32     Sena, above n 18, at [36].

33     Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67]. Haunui is a case dealing with s 232(2)(c) of the Act rather than the sufficiency of evidence ground in s 232(2)(a).

Result

[33]The appeal against conviction and sentence is dismissed

............................................................

Walker J