Y v Police HC Hamilton CRI 2006-419-114

[2006] NZHC 1453

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-114

Y

Appellant

v

THE POLICE

Respondent

Hearing:         1 November 2006

Appearances: Appellant in person

J Mackie for respondent

Judgment:      21 November 2006

JUDGMENT OF ALLAN J

Solicitors:

Crown Solicitor Hamilton

Party

P R Y  , 100 Crosby Road, Hamilton

Y V POLICE HC HAM CRI 2006-419-114  21 November 2006

[1]      On 7 August 2006, Mr Y   was convicted in the Hamilton District Court of assaulting a Court security officer acting in the execution of his duty, contrary to s 30 of the Courts Security Act 1999.  On 5 September 2006, he was sentenced to 80 hours community work.  He now appeals against both conviction and sentence.

Background

[2]      Mr Y   was formerly a director of Baywater Finance Ltd, a company which accepted deposits from the public and for that purpose from time to time issued prospectuses.   Investigators formed the view that the company had taken deposits in the absence of a current registered prospectus.  In consequence, charges were laid against Mr Y  .  Depositions in respect of those charges took place in November 2005.  A Community Magistrate, Mrs P S Ferguson, presided.  Mr Y   was self-represented.

[3]      For some considerable time prior to the depositions hearing, Mr Y   had endeavoured to obtain certain documents from the prosecution, including internal reports  from  departmental  officers  who  were  responsible  for  laying the  charges against him.   He had been unsuccessful in that regard, and took the opportunity during the depositions hearing to cross-examine certain Crown witnesses about the existence  of  those  documents,  and  the  Crown’s  reasons  for  not  making  full disclosure to him.

[4]      As the depositions hearing proceeded, Mr Y   became intensely frustrated at what he saw as bureaucratic obstruction.  That frustration appears to have spilled over during the course of the depositions hearing to such an extent that he threatened to walk out of the hearing on a number of occasions.  There was evidence also that he declined to keep to his place in the courtroom, and that he paced about the courtroom from time to time.   Further, there were occasions, according to the evidence, when Mr Y   shouted down the Community Magistrate.

[5]      Ultimately,  she  concluded  it  was  necessary  that  Mr  Y    be  held  in contempt.  Her primary reason for that ruling was Mr Y  ’s repeated indications that he proposed to walk out of the hearing in protest at what he contended was an unlawful and/or unfair hearing.

[6]      Accordingly, Mr Y   was taken into custody by Court security officers. As they endeavoured to escort him to the cells a scuffle broke out in the courtroom. As a result, Mr Y   was charged with assaulting a security officer acting in the execution of his duty.

[7]      That charge was heard by Judge A N McLean in the Hamilton District Court over three full days, on 12 May, 28 June and 25 July 2006.  On 7 August 2006, the Judge delivered a very long reserved judgment (running to some 153 paragraphs), in which he found the charge proved.

Statutory framework

[8]      It is not in dispute that a Community Magistrate is a judicial officer, and that

Mrs Ferguson had the powers conferred by s 206 of the Summary Proceedings Act

1957.  That section reads:

Contempt of Court

If any person—

(a)        Wilfully insults a District Court Judge or Justice or Community Magistrate or any witness or any officer of the Court during his sitting or attendance in Court, or in going to or returning from the Court; or

(b)    Wilfully interrupts the proceedings of a Court or otherwise misbehaves in Court; or

(c)     Wilfully and without lawful excuse disobeys any order or direction of the Court in the course of the hearing of any proceedings,—

any constable or officer of the Court, with or without the assistance of any other person, may, by order of the District Court Judge or Justice or Community Magistrate, take the offender into custody and detain him until the rising of the Court, and the District Court Judge or Justice or Community Magistrate may, if he thinks fit, by warrant under his hand, order that the offender be committed to prison for any period not exceeding 3 months, or order the offender to pay a fine not exceeding $1,000 for each offence.

[9]      Section 28 of the Courts Security Act 1999 relevantly provides:

28      When powers applicable in courtroom where proceedings being heard

(1)      A court security officer may exercise any of the powers in sections

12(1), 13(1), 15(1), 15(5), 16, 17(2), 19, 20(1), 20(2), 20(3), or 21 in a courtroom  where  proceedings  are  being  heard  in  either  of  the  sets  of

circumstances described in subsection (2).

(2)    The circumstances are—

(a)       The  presiding  judicial  officer  directs  the  court  security officer, in specific or general language, to exercise any such power in relation to a person;

…

[10]     Section 30 of that Act, under which Mr Y   was charged, reads:

30     Offence to obstruct court security officer

(1)       A person commits an offence who resists or assaults or wilfully obstructs, or incites or encourages any person to resist, assault, or obstruct,—

(a)A court security officer who is exercising any of the powers or duties in sections 12 to 23 or 26 or 28; or

(b)A person who is helping a court security officer to exercise any such power or duty.

(2)      A person who commits an offence against this section is liable on summary conviction by a court presided over by a District Court Judge or 2 or more justices to a fine not exceeding $300 or to imprisonment for a term not exceeding 3 months.

[11]     It was common ground that the Community Magistrate had jurisdiction to hold Mr Y   in contempt, and to direct that he be placed in custody.  Nor does Mr Y   dispute the powers of a security officer to act in pursuance of a direction that he be taken into custody.

The appellant’s argument

[12]     Mr Y  ’s primary argument was that the Judge’s decision to convict him could not be supported in the light of the available evidence.  As a supplementary argument, not essential to his main point, Mr Y   submitted that the Community

Magistrate had no proper basis for committing him for contempt, that her decision to do so was invalid, and that as the security officer could not therefore be said to be acting pursuant to s 28,  Mr Y   was therefore entitled to resist what amounted to an assault on him.

Discussion

[13]     The police case was founded upon the allegation that, although Mr Y   at first appeared to comply with the direction that he be placed in the cells and walked towards the Court door for that purpose, he suddenly and without warning turned and assaulted a security guard, Mr Jim Haldane, by shoulder-charging him. There was additional evidence at trial to the effect that Mr Y   had used his right knee to assault Mr Haldane in the courtroom and that later, while in the cells, he assaulted Mr Haldane by pushing into him with his chest.

[14]     Virtually everyone in the courtroom at the time of the alleged assault gave evidence.   Witnesses included Mr  Haldane, the Community Magistrate,  and Mr Y  . Not all of the witnesses saw everything that occurred between Mr Y   and Mr Haldane but that is to be expected in the context of an incident which developed unexpectedly and lasted only a matter of seconds.

[15]     The learned Judge accepted Mr Haldane’s evidence and where it was in conflict with that of Mr Haldane, he rejected the appellant’s evidence.   His conclusions are summarised at paragraphs [136]-[140] of the judgment, which read:

[136]  It is clear from the evidence that the major thrust of the prosecution witnesses to the effect that the defendant assaulted Mr Haldane both in the courtroom and subsequently in the cells has been established beyond reasonable doubt.

[137]   Not surprisingly with so many witnesses, nobody saw everything. The incident clearly erupted quite suddenly into physical violence and it is clear that it was the defendant who initiated the first violent physical contact on Mr Haldane.

[138]  I am satisfied this happened a few seconds into the period when the defendant was beginning to move towards the cell door as directed by Mr Haldane.

[139]  It is not surprising that for example Mr Iuli only saw what he said he saw, that the Community Magistrate only saw what she saw and similarly with other witnesses.

[140]  The critical witness is Mr Haldane and I am satisfied that essentially he was attacked in the way he described in the courtroom and that there was then considerable physical resistance from the defendant requiring force by the three security guards to get him into the cell area.

[16]     Mr Y   was critical of the Judge for relying too heavily upon the viva voce evidence given before him by witnesses, rather than the transcript of the hearing before the Community Magistrate. That transcript was prepared from audio tapes recording the course of the hearing before the Community Magistrate, she having directed that the proceedings be recorded from about lunch time on the day in question (the contempt committal occurring just prior to 5:00 pm) by reason of her growing concern at Mr Y  ’s behaviour in her Court.

[17]     The learned District Court Judge permitted Mr Y   to play to witnesses certain portions of the audio tape but neither the tape nor the transcript were formally produced as exhibits at the hearing.  Mr Y   submitted that the audio tape and the transcript spoke for themselves and that the Judge ought not to have accorded as much weight as he plainly did to the viva voce evidence of the witnesses.  I have no difficulty in rejecting that submission.   The Judge was bound to make his determination on the basis of the sworn evidence given before him.  The audio tape and the transcript could only have been, at best, an unreliable guide to what went on and could have provided no guidance at all as to where the truth lay in respect of the allegation faced by Mr Y  .  Moreover, neither the tape nor the transcript were formally introduced into evidence.

[18]     More generally, Mr Y   faces formidable difficulties on appeal by reason of the inherent reluctance of an appellate Court to overturn the factual findings of a trial Judge who has seen and heard the witnesses.  Only in the clearest case will an appellate Court be justified in departing from those findings. That long-established approach is usefully summarised in two relatively recent decisions of the Court of Appeal.  In Hutton v Palmer [1990] 2 NZLR 260, Somers J, delivering the judgment of the Court, said at 268:

The principles are not in doubt.  An appeal such as the present is by way of rehearing and the Court has an obligation to come to its own conclusion. Running across that principle is another, namely, that an appellate Court is under the disadvantage that it has not seen or heard the witnesses.  In a case which depends on an opinion as to conflicting testimony an appellate Court will not interfere unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage;   it ought not to reverse the conclusions at which he has arrived merely from its own comparison and criticisms of the witnesses and its own view of the probabilities of the case; SS Hontestroom v SS Sagaporack [1927] AC 37, 47. Thus an appellate Court will interfere where the evidence accepted by the trial Judge is inconsistent with facts incontrovertibly established by other evidence or is patently improbable; Edwards (Inspector of Taxes) v Bairstow [1956] AC

14, 39;  Brunskill v Sovereign Marine & General Insurance Co Ltd (1985)

62 ALR 53.

[19]     More recently still, Thomas J took the opportunity in Rae v International Insurance Brokers Ltd [1998] 3 NZLR 190 at 198-199 to explain in some detail the practical considerations which underpin the limited role of an appellate Court in the area of fact-finding. He said:

The principle that an appellate Court will only interfere with a trial Judge’s findings of fact in exceptional circumstances is so well established it does not require the citation of authority.  For present purposes Viscount Haldane LC’s dictum will suffice.  In Nocton v Lord Ashburton [1914] AC 932 at p

957, the learned Law Lord said:

… it is only in exceptional circumstances that judges of appeal, who have not seen the witness in the box, ought to differ from the finding of fact of the judge who tried the case as to the state of mind of the witness.

See further, and by way of example, the decision of the Privy Council in Clark Boyce v Mouat [1993] 3 NZLR 641 per Lord Jauncey at p 647, preferring the conclusions drawn from the evidence of the trial Judge rather than the conclusions drawn by the majority in this Court. More recently, the Board, in Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR

129 at pp 138-139, reiterated that an appellate Court should not reverse the decision of a trial Judge on a question of fact unless that decision is shown to

be wrong.  Notwithstanding that it may have been a decision which could

have gone either way at first instance, it cannot be reversed if it was one which the trial Judge was “entitled to reach”.

Yet, notwithstanding how frequently the principle is reiterated, counsel for unsuccessful parties just as often seem bent on bringing appeals to this Court challenging the findings of fact of the Judge at first instance.

Counsel’s optimism, even if guarded, is difficult to comprehend.  It may not be fully appreciated that the deference of an appellate Court to the findings of fact of the Court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate Court to intervene.   The advantages possessed by the trial Judge in determining

questions of fact are manifest.  Of paramount importance, of course, is the fact the trial Judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence.  He or she can form an impression of the reliability of witnesses and, where necessary, their credibility – although in deference to the witness’s feelings the Judge may not always express an adverse conclusion in that regard.  As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal.  The Judge forms a perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue.  The Judge perceives first hand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.

An appellate Court has none of these advantages and must acknowledge that the Court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate Court to assert the capacity to be able to “second-guess” a trial Judge’s findings of facts when it does not share  those  advantages.  Exceptional  caution  in  departing from the  trial Judge’s findings of fact are therefore regarded as imperative.

[20]     Applying that conservative approach to a review of factual findings made by the trial Judge, I am quite unable to accept Mr Y  ’s argument that the Judge ought not to have relied upon Mr Haldane’s evidence.   His evidence, if accepted, plainly laid a sufficient foundation for a guilty verdict.  Mr Y  ’s own evidence differed sharply from that of Mr Haldane – he claims that the scuffle occurred when Mr Haldane placed him, without warning, in a headlock at a time when Mr Y   was still at counsel’s table addressing the Community Magistrate and holding papers in both hands.   That account of the incident was rejected by the learned District Court Judge.  That was a finding that he was perfectly entitled to make.  Nothing has been placed before this Court to suggest that it would be proper to interfere.

[21]     It is necessary to say only very little about Mr Y  ’s alternative argument to the effect that the Community Magistrate had no justification for directing that he be placed in the cells and that accordingly Mr Haldane had no right to act upon her direction.  Mr Y   says that Mr Haldane was therefore not acting in the execution of his duty and that he was therefore wrongly convicted.

[22]     In my view, it is not open to Mr Y   to challenge the grounds upon which the Community Magistrate directed that he be placed in custody.  He did not dispute that the direction was given, and that is sufficient.   Whether the response of the

Community Magistrate to Mr Y  ’s behaviour was objectively justified is not germane to the question of whether Mr Haldane was acting in the execution of his duty.

[23]     But quite apart from that, it is clear that there was ample evidence which justified the Community Magistrate in directing that Mr Y   be placed in the cells. While cross-examining Mrs Ferguson, Mr Y   elicited from her the following explanation of her reasons for committing him:

Mr Y  , throughout the day you threatened a number of times to leave the courtroom and that was why after the luncheon break I asked that the rest of the proceedings be taped.  I also did something I have never done in the ten years I have been in the Court.  I asked that the security staff come in, so yes, a number of times you threatened to walk out.  You packed, you stood, you packed your books and threatened to walk and I think the words I heard on the tape this particular time was “right, that’s it, I’ve had enough” and that’s when you were standing and packing your things.

[24]     There was also evidence from Mr Littlejohn, the Registrar in the courtroom on the day in question, who said that Mr Y   was pacing backwards and forwards behind counsel’s desks and that Mr Y  ’s voice was getting louder and that he was yelling over the Community Magistrate while she was talking.  Mr Haldane said that Mr Y   banged his hands down on the table on a number of occasions in apparent frustration.   None of that behaviour is consistent with Mr Y  ’s obligations in the courtroom on that day.  The Community Magistrate was clearly justified in directing that Mr Y   be placed in custody.

[25]     I am satisfied that there is no basis for interfering with the decision of the learned  District  Court  Judge  to  convict  the  appellant  and  the  appeal  against conviction is accordingly dismissed.

Appeal against sentence

[26]     Mr Y   was sentenced to 80 hours community work. This is in many respects an unfortunate case.   Mr  Y   is  a  hard-working,  decent  member  of society who has over a period of years made a significant contribution to the welfare of the community.  He has, for example, played a significant role in church activities.

He has only one minor driving conviction and was entitled to be treated as a first- time offender.  Mr Y   is right to submit that a sentence of community work is, in one sense, of little utility because it will simply require him to undertake work of a type which he has voluntarily done in the past.

[27]     In my view, however, the penalty imposed in the District Court accurately reflects the need to ensure that behaviour such as that of Mr Y   is marked by an appropriate and visible sanction, even where an otherwise upright member of the community is involved.  Court hearings are formal events.  Rights and obligations of citizens are resolved there.  Courtesy and proper deference (by all participants) are vital to the proper despatch of Court business.  Only in that way can the confidence of the community in the proceedings of our Courts be maintained.  Whether or not Mr Y   felt himself to be at a disadvantage and whether or not he had justification for believing that the Crown had not made proper disclosure to him, there was simply no excuse for the discourtesy which characterised his behaviour on the day in question.  He ought to have known better.

[28]     The sentence of community work imposed upon him marked in appropriate fashion the Court’s disapproval of Mr Y  ’s behaviour, the need to deter him and others from similar behaviour in the future, and the need to ensure that the Court is seen to support security officers acting in the execution of their duty.

[29]     The appeal against sentence is also dismissed.

C J Allan J