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Dickens v Police HC Auckland CRI-2011-404-000165 [2011] NZHC 1898 (8 November 2011)

Last Updated: 31 January 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-000165}

ALFRED JAMES DICKENS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 10 October 2011

Counsel: M Wilkinson-Smith for Appellant

K Wendt for Respondent

Judgment: 8 November 2011 at 11:30 AM

_{RESERVED JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Tuesday, 8 November 2011 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Mr C Wilkinson-Smith, City Chambers, PO Box 1544, Auckland 1140. Crown Solicitor, Meredith Connell, Auckland.

DICKENS V POLICE HC AK CRI-2011-404-000165 8 November 2011

Introduction

[1] The appellant was convicted of male assault female and indecent assault of a female member (Mrs B) of the bowling club of which he was member and the assault of a male member (Mr G) of another bowling club following their participation in a bowling tournament in Tauranga on 6 June 2010. He was sentenced to 100 hours community work. He originally appealed against both conviction and sentence but has abandoned his sentence appeal. He now appeals against his conviction.

Facts

[2] Following an evening drinking at the club where the tournament was held, the appellant, who was intoxicated, was taken by Mrs B, who had not been drinking, in his own car back to accommodation she had arranged for them both. Mr G, who had been drinking but was not as intoxicated as the appellant, was also staying there. He had rented the house for the weekend for himself and other members of his team.

[3] At the accommodation, the appellant objected to staying there. During the course of discussions with Mrs B, he pushed her at least three times using his hands on the side of her body and on her chest. Mr G witnessed this assault and tried to intervene. The appellant then punched him twice. The first punch was hard enough to cause Mr G to blackout momentarily. The second punch landed just below his jaw. Later, after Mr G had retired to his room, the appellant, after telling Mrs B that she was very special to her, squeezed her breast with his hand, kissed her lips and used his tongue to lick her face. Mrs B was so distressed by this that she spent the night in Mr G’s room in a distraught state.

[4] When spoken to by the police, the appellant had no recollection of the events. He told the police that although he could not remember what happened because of his extreme intoxication he did not believe that he would have assaulted Mrs B in the manner alleged by her.

District Court decision

[5] In a careful decision, Judge Taumaunu outlined the issues as follows:

[4] First of all whether the alleged indecent assault occurred as alleged by [Mrs B], secondly, if so, has the prosecution proved beyond reasonable doubt that Mr Dickens was capable of forming the necessary intent given his level of intoxication, thirdly, if so, has the prosecution proved beyond reasonable doubt that Mr Dickens acted without an honest if mistaken belief that [Mrs B] consented to the physical contact and fourthly, if so, was the assault indecent and finally, if so, has the prosecution proved beyond reasonable doubt that Mr Dickens intended to commit an assault in its nature or because of the circumstance was indecent.

[5] The issues that arise in respect of the male assaults female charge are simply whether the alleged male assaults female incident occurred as alleged by [Mrs B] and secondly, if so, whether the prosecution has excluded any reasonable possibility that Mr Dickens was acting in self defence.

[6] The issues that arise in respect of the common assault charge against [Mr G] are first whether the alleged assault occurred as alleged by [Mr G] and secondly, if so, has the prosecution excluded any reasonable possibility that Mr Dickens was acting in self defence.

[6] After setting out the issues in the above manner, Judge Taumaunu then considered the material elements of each offence. He then considered the issues of creditability, credibility, honesty and character of Mrs B. He noted the defence submission that Mrs B was not creditable, but was wholly unreliable and a witness whose evidence would be unsafe for the Court to rely on. The defence had called a witness who gave evidence in relation to discussions she had had with Mrs B about her past. The Judge found that Mrs B had exaggerated and lied about her past when she discussed matters with the defence witness. He also noted that Mrs B’s evidence in one particular instance was not entirely satisfactory but thought that these matters were not determinative.

[7] As to the creditability of Mrs B, the Judge stated:

[27] All of these matters combined do not necessarily lead the Court to an inevitable conclusion that [Mrs B’s] evidence in this case is wholly unreliable or not creditable even though these matters do cast some degree of suspicion on the honesty and reliability of the witness [Mrs B]. I remind myself that evidence of lying or dishonesty on a previous occasion does not necessarily mean that [Mrs B’s] evidence on this occasion is automatically dishonest or untruthful. I do not consider that the matters referred to are sufficient to disregard [Mrs B’s] evidence completely and to find that her

evidence is unsafe to rely upon. In my opinion the Court is required in this case to apply care when considering [Mrs B’s] evidence before accepting any of the allegations made by her.

[8] The Judge then went on to consider other factors, such as the amount of alcohol drunk by the appellant, and the careful, detailed and precise evidence by Mrs B who had not been drinking. He noted the corroboration of the complainant’s evidence from the evidence given by Mr G who had no motive to be untruthful. Mr G had not met the appellant prior to the evening in question and was considered by the Judge to be an independent witness. The Judge also noted the lack of any motive on the part of Mrs B to lie about what had happened to her. There were some inconsistencies in the evidence but the Judge thought that these were relatively minor. He found that Mrs B’s allegations were internally consistent and had persuasive force. Prior to the evening in question the appellant was her bowls coach. She trusted him and regarded him as a father figure to the extent that she called him “Papa Alf”.

[9] Mrs B’s actions immediately after the alleged indecent assault were also thought by the Judge to be consistent with the actions one might expect of a person who had just been assaulted in the manner alleged and, more particularly, of a person whose trust had been breached.

[10] The Judge concluded:

[43] In my opinion after carefully considering a number of factors affecting her credibility, I consider that [Mrs B] has given honest and reliable evidence in this case. I find her evidence compelling because she was sober, she had no apparent motive to lie, her actions were entirely consistent with the allegation she made against Mr Dickens and her evidence was to a large extent corroborated by [Mr G] who I find to be an independent witness with no apparent motive to lie also. As I have mentioned I reject any suggestion that [Mr G] and [Mrs B] were involved in some sort of romantic liaison.

[11] The Judge made factual findings set out in paragraphs [2] and [3] above and then turned to consider the defences that had been raised. He first of all considered mens rea and the effect of intoxication and then the issues relating to self defence. The defence submitted that both the male assault female and common assault were committed in the context where the appellant believed he was being held against his

will and that he simply wanted to leave the premises. He felt threatened for his own safety and that is why he acted as he did.

[12] However, the Judge did not accept that there was a reasonable possibility that the appellant believed he was being held against his will and needed to resort to force to escape. Rather, the Judge found he was drunk and angry and that Mrs B was not going to comply with his wish to take him somewhere else and that it was in that context that he pushed her and punched Mr G.

[13] The Judge then turned to the issues surrounding the indecent assault charge in considering, amongst other matters, whether there was an indecent intention on the part of the appellant, which required consideration of time, place and circumstances. The Judge concluded at paragraph [56]:

[56] It seems to me to be a situation where Mr Dickens intentionally engineered a situation whereby he eventually ended up alone with [Mrs B] in the lounge with a view towards having some type of romantic or sexual contact with her. I am satisfied there is no other available inference to be drawn from the evidence and I find that Mr Dickens had an indecent intention when he touched [Mrs B’s] breast and kissed her on the lips and licked her face.

[14] Having made that factual finding, the Judge then considered the question of consent and lack of honest or mistaken belief of consent. Having considered all matters, he was satisfied that the indecent assault did occur, that the prosecution had proved beyond reasonable doubt that the appellant was capable of forming the necessary intent given his level of intoxication and that the appellant had acted without an honest if mistaken belief that Mrs B consented to the physical contact. He was also satisfied that the assault was indecent and that the appellant intended to commit the assault that was in its nature and because of the circumstances indecent.

Grounds of appeal

[15] The appellant appeals against the convictions of the following grounds:

(a) The complainant in respect of the indecent assault charge was insufficiently creditable for a conviction to be safely entered.

(b) The conviction on the charge of indecent assault was against the weight of the evidence.

(c) The Judge misdirected himself on the issue of consent and imported elements of “reasonable belief” as well as reversing the onus on the issue of consent.

(d) The factual findings of the Judge relating to self defence in respect of the male assault female and common assault charges depended on the credibility of Mrs B and was against the weight of the evidence.

Discussion

Creditableness of female complainant

[16] Counsel for the appellant submits that the nature of the previous lies told by Mrs B and her denial at trial of telling lies raise a concern that she may have a motive to tell lies to gain attention or to make herself feel important. Counsel submits that she embellished her evidence at trial and suggests her reaction to what she alleges was a drunken and clumsy approach from an elderly man, is extreme and exaggerated.

[17] Section 122(5) of the Evidence Act 2006 requires a Judge in non-jury trials to bear in mind the need for caution before convicting a defendant in reliance of evidence of a kind that may be unreliable. Judge Taumaunu clearly articulated the need for caution with regard to Mrs B’s evidence.

[18] He then carefully considered the nature of the previous lies and her evidence at trial before determining that she was creditable. It would rare indeed for a Judge to consider that the evidence of a witness was insufficiently creditable for it to be ruled inadmissible. The creditability of a witness is, of course, different from his or her credibility. A witness’ credibility is considered after his or her evidence has been admitted in evidence as sufficiently creditable to be received. Creditableness can be reviewed on appeal whereas findings of credibility are difficult to challenge.

[19] Having reviewed the evidence and the reasoning of Judge Taumaunu as to the creditableness of Mrs B, I am of view on appeal that he was entitled to find that she was sufficiently creditable to admit her evidence. The previous lies were unrelated to the offending in the present case. The phrase she initially used in her evidence that the appellant “jumped on me”1 which she later acknowledged was not literally true may well have been used by her in a broader sense. Her reaction to the assault could also be seen as proportionate to the breach of trust with regard to her and the appellant’s assault of a relative stranger who had offered them accommodation.

Conviction on indecent assault

[20] Even if Mrs B could be regarded as sufficiently creditable for her evidence to be admitted, counsel for the appellant submits that her evidence does not establish intentional indecency on the part of the appellant. In the present case, the appellant relies on the following factors to submit that the verdict was against the weight of the evidence:

(a) Both Mrs B and the appellant are mature adults. (b) The level of intoxication of the appellant.

(c) The fact that the alleged touching was over clothing. (d) The fact that the alleged incident was very brief.

(e) The fact that the appellant must have desisted of his own accord as

Mr G did not witness any touching or kissing. (f) The appellant’s previous good character.

[21] It is my view, however, that these factors, either singularly or in combination, do not give cause for concern on appeal that the verdict is against the weight of the evidence. Offenders and victims are often mature adults. The level of the

appellant’s intoxication was carefully considered by the Judge. Counsel for the appellant accepts that a drunken intent is still an intent. Touching over clothing can be indecent and the brevity of an assault does not of itself relate to the issue of intent. It may, if the defence is one of accidental touching but that defence was not raised in the present case as the appellant has no memory of the incident.

[22] An offender can desist offending of his own accord for any number of reasons while evidence of the appellant’s good character was before the Judge and carefully considered by him.

[23] It is my view that the finding of intent on the part of the appellant was open to the Judge, notwithstanding previous good character.

[24] Mrs B gave evidence that at the time of the alleged assault the appellant had said to her that she was very special to him, that he knew she wanted it and that he could have anybody he wanted. He then said he could have 20/30 women and asked why did she have to be the most difficult one.2 The words used by the appellant are capable of being interpreted as demonstrating that the appellant, although intoxicated, had an indecent intent and knew that Mrs B did not consent to the

assault.

Issue of consent

[25] The third ground of appeal is a development of the second. Counsel for the appellant cites paragraph [59] of the judgment in the District Court and submits that the Judge concentrated his findings on a lack of encouragement by Mrs B and whether there were grounds for a possible belief in consent, thereby importing a reasonableness test which does not exist. Counsel also submits that the Judge appeared to require the appellant to point to some evidence of encouragement before he would entertain the possibility of an honest belief and consent and that this reversed the onus of proof on this crucial issue.

[26] Honest belief as to consent is a defence and Judge Taumaunu correctly articulated the principles at paragraph [12]:

[12] Consent is a defence to assault indecent or otherwise. So too is an honestly held belief that the complainant was consenting. The belief does not have to be objectively reasonable. Where there is an evidential foundation for either defence the Crown, or in this case the police, must negative it beyond reasonable doubt.

[27] In the absence of any recollection by the appellant, the Judge, in my view, had to look at the surrounding circumstances to ascertain whether there was any basis for an honest belief in consent because the appellant did not provide any evidential foundation for such a belief through his own testimony. The evidence, in fact, pointed in the other direction. The words spoken by the appellant included a query as to why the complainant had to be the most difficult of the 20/30 women he could have had. It is my view that the Judge not only correctly articulated the principles but also correctly applied them. He did not impose a reasonableness test nor did he reverse the onus of proof on the issue of consent.

Self defence findings

[28] Here counsel for the appellant refers again to issues of Mrs B’s creditability and submits that the Judge’s finding that the appellant was not confined or restrained and was always free to leave was inconsistent with evidence that he was too intoxicated to drive, that he did not have his car keys or any means of leaving the address and did not know where he was or how to get back to the club rooms. Counsel submits it was hardly reasonable to say he could just leave.

[29] It is my view, however, that the Judge was well able to conclude that, notwithstanding the appellant’s intoxication, the force used in the circumstances as he believed them to be was unreasonable, excessive and not for the purpose of defending himself. It is clear that the appellant was the aggressor. The appellant appears to have been well aware that what he had done was unreasonable in that Mrs B says he become apologetic immediately after the assault on her and Mr G.3

[30] The appellant said that he felt a little bit apprehensive,4 that he was not sure what was going on,5 that it was a little bit unusual,6 that he did not like it anyhow,7 and that he just wanted to get out of there.8 However, that evidence is clearly insufficient from which to infer that the appellant believed he was in imminent

danger. The Judge’s finding that the appellant was drunk and angry and because Mrs B was not going to comply with his wish to take him somewhere else, he pushed her, and punched Mr G, was open to him. The Judge did not err in finding that the police had disproved self defence.

Result

[31] In all the circumstances, I have not been persuaded that the Judge erred in any way in his judgment. It was comprehensive, well reasoned and met all the requirements articulated by the Court of Appeal in R v Connell.9 It is in fact a model

_{of its kind. Accordingly, the appeal against conviction is dismissed.}

_{Woolford J}

4 _{Notes of Evidence, (2}nd_{) pg 5, line 14.}

5 _{Notes of Evidence, (2}nd_{) pg 5, line 16-17.}

6 _{Notes of Evidence, (2}nd_{) pg 5, line 20.}

7 _{Notes of Evidence, (2}nd_{) pg 6, line 34.}

8 _{Notes of Evidence, (2}nd_{) pg 6, line 23.}

9 R v Connell [1985] 2 NZLR 233.