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S v Police HC Auckland CRI 2007-404-333 [2008] NZHC 247 (4 March 2008)

Last Updated: 10 July 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2007-404-333}

IN THE MATTER OF an appeal against conviction

BETWEEN S

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 3 March 2008

Appearances: M B Meyrick for the appellant

E R Harrison for the respondent

Judgment: 4 March 2008 at 4 p.m.

JUDGMENT OF POTTER J On appeal against conviction

In accordance with r 540(4) High Court Rules I direct the Registrar to endorse this judgment with a delivery time of 4 p.m. on 4 March 2008.

Solicitors: Berman & Burton, P.O. Box 11171, Ellerslie, Auckland

Crown Solicitor, P.O. Box 2213, Auckland

_{Copy to: M B Meyrick, P.O. Box 11278, Ellerslie, Auckland}

S V NEW ZEALAND POLICE HC AK CRI 2007-404-333 4 March 2008

Introduction

[1] Mr S , the appellant, was charged with male assaults female under s 194(b) of the Crimes Act. Following a hearing in the District Court at Manukau on

10 August 2007 he was convicted by Judge J H Lovell-Smith in a reserved undated judgment.

[2] The ground of appeal as stated by Mr Meyrick in submissions is that it was not open for the Judge to find the appellant guilty on the evidence presented at the trial.

[3] The Crown opposes the appeal on the ground that the finding made by the

Judge was well open to her on the evidence.

[4] Mr S was sentenced on 25 October 2007 to 60 hours community work. The sentence is not appealed.

Background

[5] There was an argument between the appellant Mr S and his wife at his home where they were living at the time, on 21 December 2006. Mrs S suffered injuries to her eye and bruising on her chest and legs. The Police were called.

[6] The appellant’s evidence was that his wife lost control and attacked him. He defended himself and she received her injuries when he was trying to restrain her and was defending himself. Mrs S said the appellant hit her with a closed right fist in her chest causing her to fall to the ground, that he slapped her around her shoulders and with a closed fist he punched her in, she said, her right eye. That caused her to fall to the ground screaming. She left the address and returned a short time later to pack her belongings. Another argument ensued. She slapped the appellant. He punched her numerous times to the face and stomach and kicked her in her chest.

[7] In the background to these events were Family Court proceedings relating to the custody of the young child of Mr and Mrs S .

The judgment under appeal

[8] The Judge commenced by recording that the onus of proof was on the prosecution to prove the essential elements of the offence beyond reasonable doubt. She identified the essential elements of a charge of male assaults female as being:

a) The application of force;

b) That it was intentional.

[9] She recorded that Mr S pleaded self-defence and she identified the elements of that defence:

a) What were the circumstances as Mr S believed them to be;

b) Whether in those circumstances he was acting in defence of himself;

100. Whether the force he used was reasonable in the circumstances as he believed them to be.

[10] She noted that the onus of proof was on the prosecution, so if the Crown had not disproved self-defence beyond reasonable doubt, Mr S was entitled to an acquittal.

[11] The Judge then reviewed the evidence. The witnesses included the complainant Mrs S , the Constable who attended the address, Mr S , his sister-in-law, a brother of Mr S , his sister-in-law’s brother, and Mrs S , the appellant’s mother.

[12] The Judge identified that the issue for her was one of credibility. [13] She found in relation to Mrs S , the complainant, at [14]:

I found her to be a credible and careful witness. Her honesty was in marked contrast to that of the defendant, his friend Mr S , his brother and his brother’s wife and mother. The defendant I am satisfied was less than frank. Undoubtedly the complainant was upset but he became very angry. He wanted the complainant to give him dinner. When she told him that she didn’t want her daughter to starve and grabbed the keys to the car he punched her on the chest and snatched the keys back. She did throw an empty juice bottle at him and not a wine bottle. I am quite satisfied about that. He then became very angry and they began wrestling. During the course of this he slapped her nose and then he punched her right eye which she described as a hard punch. Her sister came to assist and her told her to get out and at that point the complainant also punched him and he fought back.

[14] Regarding the witnesses called by the defence, the Judge said:

The sister in law was careful to say she didn’t see everything that went on as indeed did her husband, so did his mother and his friend. . . . At no point did he (the appellant) ever say that she jumped on his shoulders, something I would have expected him to remember, yet that was the evidence of his sister in law.

[15] The Judge concluded at [15]:

I am satisfied beyond reasonable doubt that the defendant punched the complainant in the eye, that he intended to do so. He pushed her in the chest and he caused the other bruises to her legs. Undoubtedly there was an argument but I am satisfied the defendant became so angry he lost self- control. The complainant did undoubtedly hit him back but there is no evidence before me that he suffered any injury and in the context of the injuries she suffered from his attack on her she acted undoubtedly in self- defence. I therefore find the charge proved beyond reasonable doubt.

Legal principles

[16] Mr Meyrick accepted that the Crown in its submissions correctly stated the law. The relevant submissions in relation to credibility findings are summarised in the following paragraphs.

[17] The Crown referred to Powell v Stratham Manor Nursing Home [1935] AC

243, 255 where Lord Atkin said of the function of an appellate court:

[...] recognise the essential advantage of the trial Judge in seeing the witnesses and watching their demeanour. In cases which turn on conflicting testimony of witnesses and the belief to be reposed in them an appellate court can never recapture the initial advantage of the Judge who saw and believed.

[18] The Crown then referred to R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 in which the Court of Appeal outlined the obligations of a Judge in a summary defended hearing at 237-238:

... in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge’s essential reasons for finding as he does. There should be enough to show that he considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.

[19] The Crown further submitted that the Courts have readily recognised the difficulties in articulating reasons for credibility findings. Ms Harrison referred to Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377 at 381 where Henry LJ said:

[...] there may be little to say other than that the witnesses for one side were more credible [...]

[20] At 382 he continued:

The extent of the duty [to give reasons], or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say.

Appellant’s submissions

[21] Mr Meyrick emphasised that the evidence needed to be considered against the background of the Family Court proceedings which he described as “emotive and energetically contested”. That was a matter of which the Judge was well aware, and that in those proceedings the issue was who was to get custody of the child. She also heard cross-examination by Mr Meyrick of the complainant directed to inconsistencies in affidavits filed in the Family Court proceedings.

[22] Mr Meyrick further submitted that the evidence of Mrs S fluctuated wildly. For example as to who telephoned the Police, and as to her being punched in the right eye when the photographs produced in evidence by consent, clearly showed the injuries were to her left eye. He referred to the complainant’s evidence in chief where she said the appellant hit her in the right eye and that it was “very sore, felt like my eye was pushed in”. However, in answer to cross-examination she agreed she had been punched in the left eye, although in her statement to the Police she said the punch was to her right eye. When that was put to her in cross-examination, she said:

I can’t recall which eye it was. At the time I was really confused and shooken up. ... It’s been a long time. I can’t remember exactly what happened.

[23] She accepted that she made a mistake in her statement to the Police.

[24] Mr Meyrick also referred to evidence of the complainant’s volatile temper and submitted she “had a habit of rationalising difficult incidents”. He referred to the following evidence in cross-examination:

17. And when you didn’t get your way, to use the van, you attacked the defendant.

A. I did not attack the defendant.

Q. You slapped him, you kicked him, you punched him.

A. After doing three days of 12 hour shifts, yeah. Not accepting that I

had worked hard to make a future with him.

17. Because you just lost your temper completely, which you do quite often?

A. Not quite often, I get really upset.

17. And he was faced with the situation that you were out of control and he was trying to restrain you?

A. If he was trying to restrain me he wouldn’t hit me.

[25] Mr Meyrick further submitted that the Judge’s conclusion there was a “sameness” about the witnesses for the defence could have easily been an indication of truthfulness. Had the evidence been identical, which it was not, that might have led to a conclusion that the witnesses were colluding but this was not such a case.

He submitted that the Judge was not justified in dismissing the defence evidence merely because it had a “sameness” about it.

[26] He submitted that it was not reasonable for the Judge to find the charge proved beyond reasonable doubt on the evidence adduced when the following matters are taken into account:

• The complainant is a volatile person.

• Her story in many ways was inconsistent.

• Although the complainant said the incident was witnessed by her sister Kerry- Anne, Kerry-Anne was not called as a witness.

• The defence called the best evidence available – the only evidence available.

• The differences in the evidence of the defence witnesses was no more than would be expected from viewing a dispute lasting 90 minutes.

• The complaint was made against a background of a hotly contested custody dispute.

Crown submissions

[27] The Crown submitted that the Judge made clear findings of fact which were critical to establishing the essential elements of the offence and supported a verdict of guilty. Counsel pointed to the finding of the Judge at [15] of her decision:

I am satisfied beyond reasonable doubt that the defendant punched the complainant in the eye, that he intended to do so. He pushed her in the chest and he caused the other bruises to her legs.

[28] Further, that the Judge rejected that the appellant acted in self-defence. At

[14] of her decision she said:

The defendant was not justified in assaulting the complainant. He lost his temper and he hit her.

[29] The Crown also drew attention to aspects of the evidence of the appellant which were simply not credible, including that the appellant attributed the abrasions on the complainant’s legs to possible stretch marks from having a baby, and said that the bruise to her eye could have been received from her banging her head into a light switch.

[30] In summary, the Crown submitted:

• The elements of the charge of assault were established by the evidence.

• The Judge was required to make credibility findings and made them clearly.

• The Judge accepted, and was entitled to accept, the evidence of the complainant regarding the assault.

• The Judge rejected, and was entitled to reject, the evidence of Mr S that he was acting in self-defence.

Conclusion

[31] As the Judge identified in her judgment, the issue in this case was clearly credibility. The Judge was bound to make credibility findings and she did so, rejecting Mr S ’s account and accepting on the critical aspects, the account of Mrs S .

[32] Inconsistencies in the evidence of Mrs S were identified and traversed in detail in cross-examination. Those inconsistencies and the complainant’s explanation for them as far as she was able to give it, were fully before the Judge. The Judge was able to take those inconsistencies into account, as well as inconsistencies and implausibilities in the evidence of the appellant in reaching her credibility findings. Similarly, evidence concerning the volatility of both the appellant and the complainant, particularly in relation to each other, was abundantly before the Judge.

[33] The Judge’s reference to the evidence of the defence witnesses having a

“sameness about it” was made in the context of the Judge’s observation that:

... their evidence had a common theme, that the complainant was going crazy.

[34] Clearly the “sameness” in their evidence was a matter the Judge found detracted from their credibility.

[35] In the end result, the Judge preferred the evidence of the complainant, a finding she was entitled to make having seen and heard all the witnesses give their evidence and having considered the evidence overall.

[36] The findings of the Judge were clearly available to her on the evidence.

Result

[37] For these reasons I dismiss Mr S ’s appeal against conviction.

[38] I would add it is unfortunate that counsel, in his written submissions, should suggest that the Court’s decision is “a reflection of the anti-male bias that exists in the family violence courts”. There is nothing in the judgment nor in the notes of evidence which I have perused, which would provide any support for such an observation. I reject it completely.