Wilkie v Police HC Wellington CRI 2011-485-19

[2011] NZHC 648

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-485-19

STEFFAN KENT WILKIE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 June 2011

Counsel:         R J Stevens for Appellant

G Mallett for Crown

Judgment:      14 June 2011

ORALJUDGMENT OF RONALD YOUNG J (Appeal against conviction)

Introduction

[1]      On  16 July 2010  Mr Woodfield  was  having  a  night  out  with  a  friend  in Wellington.  During the night they played pool with the appellant Mr Wilkie and his sister.    After  Mr Woodfield  and  his  friend  left,  Mr Wilkie’s  sister  noticed  her cell phone was missing.   The appellant and Ms Wilkie decided that Mr Woodfield

had stolen the phone.

STEFFAN KENT WILKIE V NEW ZEALAND POLICE HC WN CRI 2011-485-19 14 June 2011

[2]      Later in the evening, apparently by coincidence, Mr Wilkie, his sister and Mr Woodfield and his friend met up again at another bar.   Mr Wilkie confronted Mr Woodfield about stealing the phone.  Mr Woodfield denied the theft.  He said that Mr Wilkie then punched him in the eye.  Mr Wilkie’s defence was that while he may have struck Mr Woodfield in the eye it was only in the course of defending himself from Mr Woodfield’s attempted punch and that he had not intended to do so.  When he struck Mr Woodfield, therefore, it was probably accidental or possibly in self defence.

[3]      The Judge found that Mr Wilkie had not accidently struck Mr Woodfield nor was he acting in self defence and that he had deliberately punched Mr Woodfield and he convicted him of assault.

Appeal grounds

[4]      The appellant now appeals his conviction and identifies four grounds:

(a)       that the District Court Judge erred in deciding that the complainant’s

evidence was reliable and credible;

(b)      he erred in deciding that the appellant’s evidence did not satisfy the

Judge that the complainant was lying;

(c)      he  erred  in  deciding  the  appellant’s  actions  after  the  incident supported a finding that the appellant was not telling the truth when giving evidence;

(d)he failed to provide adequate reasons for his decision, in particular, as to why he preferred the complainant’s evidence over that of the appellant’s.

[5]      In his decision the Judge detailed the background to the events.  He set out the  evidence  of  the  complainant  and  the  appellant,  essentially the  two  primary witnesses.   In addition he noted the appellant had spoken to the police about the incident.  He identified that there was a clear difference in the evidence given by the appellant and the complainant on the essential pleas.

[6]      The  Judge  said  to  convict  he  needed  to  be  sure  the  evidence  of  the complainant was true and that of the defendant untrue because, as he said, “where I am in a situation that I cannot decide between the evidence of the complainant and the evidence of the defendant then it would be wrong to speculate and make a decision against the interests of the defendant”.

[7]      The Judge said that he believed that Mr Woodfield was a witness of truth and that Mr Wilkie’s evidence had not satisfied him that Mr Woodfield was lying.   He stressed that in putting it in that way he did not put any burden on Mr Wilkie to prove anything.

[8]      The Judge said that if he accepted Mr Wilkie’s evidence then he should be acquitted and further, that if Mr Wilkie’s evidence got him to the point where it left him with a reasonable doubt then he should find him not guilty.  He recognised that even  if  he  rejected  Mr Wilkie’s  evidence  he  would  still  have  to  be  sure  about Mr Woodfield’s evidence.

[9]      The Judge rejected the evidence of Mr Wilkie and accepted the evidence of Mr Woodfield.    He  said  that  one  of  the  reasons  that  undermined  Mr Wilkie’s evidence was Mr Wilkie’s claim that he had left the two women he had been with to question Mr Woodfield about the missing cell phone.

[10]     The Judge said:

In other words, it is apparent that he left his sister and partner with this man who had just tried to assault him and I find that difficult to believe.

[11]     He  expressly  rejected  the  proposition  that  Mr Wilkie  was  acting  in  self defence at the time and found that the police had excluded the reasonable possibility that Mr Wilkie was acting in self defence.

This appeal

[12]     The essential judicial function in this case was to decide the facts.  There was no law of importance involved.   And so the Judge was required to focus on the credibility and, if relevant, reliability of the evidence of the two relevant witnesses, the defendant and the complainant.

[13]     There had been an attack by counsel for the defendant on the complainant’s reliability in cross examination.  It focussed on the complainant’s intoxication and on the fact that the complainant could not accurately recall some of the detail of the evening’s activities.   The Judge did not expressly deal with the complainant’s reliability.  Perhaps that was understandable in this case.  It was not suggested to the complainant in cross examination that somehow he had forgotten or could have been mistaken about what happened when the punch was thrown.   The thrust of the appellant’s  case  was  that  the  complainant  was  lying  and  that  he  had  been  the aggressor and had thrown the only punch.  And so on the crucial events it was the complainant’s credibility and not his reliability which was under attack.

[14]     As to credibility the Judge said he found the complainant to be an honest witness.   He gave no reasons for that finding.   That led to his consideration of Mr Wilkie’s evidence.   As the Judge identified the only two witnesses who gave evidence  on  the  crucial   point  were  the  two  protagonists.     There  was  no “independent” supporting evidence for either side.  The Judge adopted a somewhat unconventional approach in his assessment of the evidence.  However, he recognised that all the appellant had to do was create a reasonable doubt.  That meant before he could consider the complainant’s evidence he would have to reject as untrue what the appellant had to say on the vital point of who threw the punch.

[15]      The first thing I want to say is that I believe Mr Woodfield is a witness of the truth.

[16]      The second thing I want to say is that Mr Wilkie’s evidence has not

satisfied me that Mr Woodfield was lying.

[16]     The only basis for rejecting the appellant’s evidence was expressed by the

Judge in this way:

[18]      One of the significant things about this is Mr Wilkie’s statement in evidence that he knew Nicky and Michelle would stay there to pursue the questioning of the cellphone.  In other words, it is apparent that he left his sister and partner with this man who had just tried to assault him and I find that difficult to believe.

[17]     In a case such as this where the only two witnesses to the relevant events have quite different stories to tell about the essential issue, I consider it is part of the obligations of a Judge to say why he or she rejects a defendant’s evidence (if that is the case) as untrue.   This is the obligation to ensure that the reasons given are

“adequate to the occasion”.1

[18]     I accept and understand in making these observations that the Judge was in a summary court and extensive reasons are not required.  However, the appellant was convicted of assault, always a serious crime.  He is entitled to know when he gives evidence why the Judge considered his evidence to be untrue.

[19]     The Judge did give a reason for rejecting the appellant’s evidence, as I have identified.   To paraphrase the Judge, he considered the fact the appellant left his girlfriend and sister to sort out the missing phone was hardly consistent with his claim that the complainant had been the aggressor.  The implication was that if the complainant  was  the aggressor  the appellant  would  not  have left  his  sister and

girlfriend to sort out the missing phone with the complainant.

1      See Takarei v Police HC Wellington AP 77/02, 22 November 2002, Randerson J referring to

R v Awatere [1982] 1 NZLR 644 (CA).

[20]     However, this reason, in my view, does not stand up to scrutiny.  What the appellant in evidence in fact said was this:

A:       I think the bar manager approached us again and because of the circumstances and stuff like that I just, I left.  I decided to just walk away, defuse the situation.   I knew that, um, Nicki and Rochelle were gonna stay there and pursue, pursue the, um, cellphone so I decided to leave and walk back to the apartments.

[21]     It was not put to Mr Wilkie that this action was somehow inconsistent with this claim that the complainant was the aggressor.   Further, as counsel for the appellant has said it is not clear whether the appellant was assuming that his companions were intending to discuss the matter with the bar manager or the complainant.   And there was no evidence the complainant was in fact aggressive towards the two women.

[22]     In my view this was a very thin piece of evidence upon which to wholly reject a defendant’s evidence especially where, as here, there was no independent evidence supporting the evidence of either side.   I consider, therefore, the reasons given by the Judge for rejecting the appellant’s evidence were inadequate for the occasion.  Without adequate reasons to reject the appellant’s evidence the conviction cannot be sustained.

[23]     In those circumstances, therefore, I allow the appeal, quash the conviction and order that the matter be reheard.  Clearly it would now not be appropriate that it

be done before the Judge who previously heard the summary trial.

Ronald Young J

Solicitors:

R J Stevens, Partner, Fanselows, PO Box 25 001, Wellington, email:  [email protected]
G Mallett, Luke Cunningham & Clere, PO Box 10 357, Wellington, email:  [email protected]