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De La Harpe v Police [2018] NZHC 1080 (17 May 2018)

Last Updated: 30 May 2018

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] The appellant, Mr de la Harpe, was charged with common assault, and wilful damage to a vehicle. His Honour Judge Saunders found him guilty on both charges. The Judge imposed fines totalling $650, with $250 reparation and court costs. Mr de la Harpe appeals against these convictions.

Background facts

[2] On 7 June 2017, Mr de la Harpe was at the Equestrian Hotel in Hornby,

DE LA HARPE v NEW ZEALAND POLICE [2018] NZHC 1080 [17 May 2018]

Christchurch, with three work colleagues, Mr Barlow-Simpson, Mr Light and Ms James. Ms Sellars was the bar manager. The group drank alcohol until about 9:30 pm when they decided to go home. The complainant, Mr Highsted, had been drinking at the bar with a Mr Brookes. Mr Highsted decided to drive home as he had drunk less.

[3] Mr Highsted left the bar and got into Mr Brookes’s car. Ms James knocked on the passenger window. Mr Highsted let her in as he thought she wanted a ride, but she began attacking him. Mr Highsted tried to ward off her blows.

[4] Mr Brookes came out of the hotel and saw the altercation. He said that one of Ms James’s male friends went to the driver’s door and appeared to be trying to get at Mr Highsted from that side. Mr Brookes went up and tapped the man with his cane to try and have him desist.

[5] At some point, Mr Highsted was pulled, or got out, of the vehicle and was struck again. He and Mr Brookes returned to the bar. There were further altercations, and members of Mr de la Harpe’s group struck Mr Brookes’s vehicle and took items from it.

District Court decision

[6] Mr Highsted, Mr Brookes, Ms Sellars and the attending police officer, Constable Collins, gave evidence for the prosecution. Mr de la Harpe gave evidence in his own defence.

[7] The Judge had to address contradictory evidence. Witnesses were clear that Ms James and one of her companions did most of the “attacking”. However, Ms Sellars thought that Mr de la Harpe was that man, while Mr Highsted and Mr Brookes thought it was Mr Barlow-Simpson.

[8] The Judge brought to account that most of the witnesses were under the influence of alcohol, which affects memory. He considered that Ms Sellars was best placed to give a coherent version of the incident. She was quite clear about the “other” attacker and her description fitted Mr de la Harpe rather than Mr Barlow-Simpson.
[9] The Judge accepted Ms Sellars evidence, finding that she was clear about her description of the attacker, which matched the appellant. He found that Mr Light, referred to as “Sam”, a friend of Ms James, was not involved in the physical attack in the bar. Rather the Judge held that it was Mr de la Harpe and “Jono” Barlow-Simpson, the two closest to where Ms James was trying to assault Mr Highsted.

[10] He recorded Mr de la Harpe’s evidence. He denied any physical altercation with Mr Highsted. He said he was trying to put Ms James into a bear hug to prevent what was going on. He denied any kicking or punching of the vehicle. The Judge recognised the lighting was not “at its best” in the car park but:

... the four appeared to be involved in taking some vengeance on the vehicle that [Mr Highsted] was seen as being the driver of but which in reality belonged to Mr Brookes.

[11] The Judge then said:

[14] Having considered the evidence, I find that the reliable version of events is that of Ms Sellars. I accept that she saw and identified the defendant intentionally applying force to Mr Highsted in the bar area. I am prepared to accept that it was [Mr Barlow-Simpson] that was the person who was administering blows, both outside and again in the bar when they returned in for the first time.

[15] I also accept that all four of them were involved in the attack on the vehicle and while it is not precise as to who actually caused which of the particular dents, I am satisfied that all four were involved in the intentional damage and that the defendant should be held accountable in respect of some of the damage that occurred.

[12] He therefore found Mr de la Harpe guilty on each charge, as the elements of each charge were proved beyond reasonable doubt.

Principles on appeal

[13] Section 232 Criminal Procedure Act 2011 provides that the Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any other reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation
to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.¹

[14] Section 232 makes clear that not every error or irregularity constitutes a miscarriage of justice. Instead there must be a “real risk” that the outcome was so affected. In R v Sungsuwan, the Supreme Court defines a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”²

[15] In Condon v R, the Supreme Court held that a mere departure from good practice does not render a trial unfair.³ Instead the errors or irregularities must depart from good practice in a manner “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.⁴

[16] The appeal proceeds by way of rehearing, and on appeal this Court must examine the Judge’s reasoning carefully and come to its own decision on the facts.⁵ However, it is only in exceptional circumstances that a court on appeal will interfere with findings of fact.⁶

Submissions

For the appellant

[17] Mr Bailey, for Mr de la Harpe, submits that the Judge made the following errors:

(a) He made assumptions and preferred the evidence of witnesses based on their apparent levels of intoxication;

¹ Section 232(4).

² R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 (SC) at [110] per Tipping J.

³ Condon v R [2006] NZSC 62 at [78].

4. Randall v R [2002] UKPC 19; [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the Supreme Court in Condon v R, above n 3, at [78].

⁵ R v Slavich [2009] NZCA 188.

⁶ Rae v Police HC Hamilton CRI-2006-419-162 at [38].

(b) He failed to consider whether Mr de la Harpe’s evidence was honest and reliable;

(c) He failed to consider all the evidence; and

(d) There was no evidence that the appellant damaged the vehicle yet the Judge found that he did.

[18] Mr Bailey addressed the evidence of each witness. Mr Highsted knew only Ms James and Mr Light and could not identify the person who attacked him when he got out of the vehicle. He said the male who attacked him was more aggressive, of Maori descent with facial hair and the biggest of the three males. He did not know if the other unknown male attacked him.

[19] Mr Brookes knew Ms James and Mr Light only. He said Mr Barlow-Simpson got involved in the altercation at the driver’s door when Mr Highsted was being attacked in the car by Ms James. He noted that the other unknown male was clean shaven. He said one of the unknown males, either Mr de la Harpe or Mr Barlow-Simpson, kicked Mr Highsted on the ground. He said that the two instigators were Mr Barlow-Simpson and Ms James who attacked Mr Highsted. He did not see Mr de la Harpe assault Mr Highsted at any stage, but saw a joint assault instigated by Ms James and carried on by another male. Mr Light threw furniture about but did not assault Mr Highsted. He saw Mr Barlow-Simpson kick and damage the front guard of the vehicle.

[20] Ms Sellars knew only Ms James and Mr Light. She identified one of the unknown males as having dark hair and a beard, being Mr Barlow-Simpson, and the other with a mole on his cheek with blondish hair, clearly Mr de la Harpe. She said Mr de la Harpe kicked, punched and threw things at Mr Brookes’ car and that he was “trying to have a go at [Mr Brookes]” when the latter was trying to stop her from getting to Mr Highsted before they went back inside. She said all four of the group kicked and punched Mr Highsted inside the bar. She described Mr de la Harpe as more aggressive and more vocal from Mr Barlow-Simpson.
[21] Constable Collins spoke to Mr de la Harpe and conducted a “notebook interview”. He told him he had been in the bar, and he walked out and saw a male standing with one of the girls who worked there being Ms James, bleeding from the head. He said he had “3 crate bottle of beer, a rum and a pre-mix Woodstock”. He said he stood between Mr Barlow-Simpson, his co-worker, and the guy with the “chicane” and he was hit in the gut with it. He described going back into the bar and Ms Sellars yelling for them to get out. He saw Ms James attack Mr Highsted and throw a few punches, including to the face and he grabbed her to try to stop her. He saw Mr Barlow-Simpson punching Mr Highsted while he was lying on the ground.

[22] Mr de la Harpe said that his three friends had participated in damaging Mr Brookes’ vehicle, but he did not. He said that he did not do anything and his hands would show that. When giving evidence, he said that the photograph in the exhibit book is not of his hand and he said he did not damage Mr Brookes’ vehicle.

[23] Mr Bailey submits that the Judge made assumptions and preferred the evidence of witnesses based on their apparent levels of intoxication, but there was no evidence of the amount of alcohol Ms Sellars had consumed. As she worked in the bar there was alcohol to be drunk. Mr Bailey said the Judge made an unwarranted assumption.

[24] He says there is no suggestion Mr de la Harpe would have been affected by intoxication so as to impair his memory. That of course is not a submission as to the truth of Mr de la Harpe’s evidence.

[25] Ms Sellars did not indicate Mr de la Harpe was intoxicated. He thought he was okay to drive but that was a self-assessment which did not and should not influence the Judge’s findings of fact.

[26] Mr Bailey then submits that the Judge failed to approach the evidence as he was obliged to do, because he:

... appears to have approached the evidence on the basis he felt obliged to accept – as accurate, beyond reasonable doubt – one of the witnesses version of events over the others. This is apparent from his remarks that “[h]aving

considered the evidence, I find that the reliable version of events is that of Ms Sellars”.

[27] Mr Bailey submits the Judge failed to properly consider the statement Mr de la Harpe gave to the Constable and his sworn evidence. The Judge did not explicitly reject it and did not say why Mr de la Harpe’s evidence was not honest or accurate. Mr Bailey argues says Mr de la Harpe was best placed to accurately tell the Court whether he assaulted Mr Highsted or damaged the vehicle. This, of course, is not a sound proposition because that is the position of all those who give evidence on their own behalf and does not mean it is true. The question is whether he was honest and reliable, and that involves his evidence being put in the context of all the evidence.

[28] Mr Bailey submits the Judge referred to the onus of proof, but that was effectively lip-service and he did not critique the evidence. All he did was contrast Ms Sellars’ evidence with Mr de la Harpe’s and made a determination based on a preference. He says that the Judge should have undertaken an assessment of the type indicated by the Court of Appeal in E (CA799/2012) v R:⁷

• [44] In making the wider assessment we agree with Lord Bingham that the following factors are relevant both in relation to the credibility and reliability of the evidence of a witness:

(a) The consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred.

(b) The internal consistency of the evidence of the witness.

(c) Consistency with what the witness has said or deposed on other occasions.

(d) The credit of the witness in relation to matters not germane to the litigation.

[45] To this list, we would add:

(e) The inherent plausibility of the evidence of the witness (does it make sense?) and,

(f) Where appropriate, consistency with any contemporaneous documentary evidence.

⁷ E (CA799/2012) v R [2013] NZCA 678.

[29] Mr Bailey then referred to R v Connell, where the Court of Appeal said:⁸

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.

[30] Counsel cites Fogarty J in Thomas v Police, to submit that the Judge’s reasoning was inadequate in this case.⁹ The reasons of the trial Judge in Thomas for preferring the complainant’s evidence over that of the appellant were considerably more detailed than in this case. However, in Thomas, Fogarty J still found that the reasoning was inadequate.

[31] Mr Bailey submits that the Judge failed to consider all the evidence, although this overlaps with the submission that he failed to properly consider the appellant’s evidence. To find Mr de la Harpe guilty, he submits that the Judge had “to a large extent” effectively find the evidence of other prosecution witnesses was not reliable and that is why the Judge made his decision based on a “preference”.

[32] He says Ms Sellars’ evidence was contradicted by Mr Highsted as to the more aggressive of the males that he identified, and Mr Brookes gave evidence more consistent with Mr Barlow-Simpson being the aggressive male and said the two instigators were Mr Barlow-Simpson and Ms James. Mr Barlow-Simpson suffered clear injuries to his right hand, but Mr de la Harpe did not suffer any injuries. In his notebook statement to the Constable, Mr de la Harpe referred to Mr Barlow-Simpson punching Mr Highsted on the ground at the hotel, consistent with his acting aggressively with Mr Highsted and Mr Brookes in their evidence.

[33] Ms James and Mr Barlow-Simpson were workmates of Mr de la Harpe, but he made a statement against both their interests. Mr Bailey submits that is significant, but the Judge simply ignored this.

[34] He says that the evidence of Mr Highsted and Ms Brookes was inconsistent with Ms Sellars, the notebook statement was consistent with the evidence of Mr Highsted and Mr Brookes on important aspects and he had no injuries. Given

⁸ R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 at [238].

⁹ Thomas v Police HC Auckland CRI-2006-404-000220; 24 November 2006 at [8]–[18].

those factors and the criminal standard of proof, the Judge should not have found the charges proved beyond reasonable doubt.

[35] Mr Bailey submits that the Judge assumed, without reason (thus evidence), that Ms Sellars was not intoxicated. He says that Mr Highsted cannot have been very intoxicated as he felt comfortable to drive. Ms Sellars did not describe Mr de la Harpe as having too much to drink. Both Mr Highsted’s and Mr de la Harpe’s accounts were thus he submits unlikely to have been affected by intoxication, making it inappropriate for the Judge to prefer Ms Sellars’ evidence on that basis.

[36] He also submits that as the Judge was unsure who caused the dents in the vehicle, he should not have found Mr de la Harpe guilty of wilful damage. The charge requires proof beyond reasonable doubt that Mr de la Harpe caused damage to the vehicle. He submits Mr de la Harpe cannot be found guilty as a secondary party because the trial was run on the basis he was a principal, therefore, the appeal against conviction must be allowed on this charge.

Respondent’s submissions

[37] Ms Bicknell Young, for the respondent, submits that the Judge made no errors of law or fact and no miscarriage of justice has occurred.

[38] She submits that the two instigators, being Mr de la Harpe and Ms James, attacked Mr Highsted in the bar. Mr Brookes said it was the man with the beard doing the kicking inside the bar. Ms Sellars said that the two older males, who would include Mr de la Harpe, did get in a couple of kicks.

[39] Ms Bicknell Young says that the photo exhibited showed a long sleeved high visibility polar fleece and Mr Barlow-Simpson was wearing a short sleeved high visibility shirt, and Mr de la Harpe was wearing a long sleeved high visibility polar fleece. An injured hand was visible.

[40] Ms Bicknell Young submits that the Judge was entitled to find Ms Sellars’ evidence was the most reliable. Her being sober or intoxicated was not raised by the defence, and as bar manager she could be expected to be sober. Ms Sellars gave clear
descriptions of Mr de la Harpe and Mr Barlow-Simpson and has a degree of independence. The Judge was entitled to prefer her evidence to that of Mr Highsted, who admitted his head went “pretty fuzzy” during the attacks, and that of Mr Brookes, who was affected by alcohol. Ms Bicknell Young noted that Ms Sellars has a level of independence.

[41] The question for the Court is not one of preference for the evidence of a witness but based on all the evidence, whether the charge is proved beyond reasonable doubt.

[42] Ms Bicknell Young observes that the Judge did not expressly say he rejected Mr de la Harpe’s evidence, whether by virtue of his intoxication or otherwise, but this is implicit in the decision, as the Judge referred to his evidence.

[43] She submits that Mr de la Harpe’s statement incriminating his colleagues and exculpating himself is of no moment. He admitted he does not see Ms James very often.

[44] Thus, the Judge did not, as submitted reject Mr de la Harpe’s evidence for his intoxication, but could bring his drinking to account when considering his recall. It is clear that he did reject the appellant’s evidence because had what he said left the Court in a state of doubt then the charge would have to have been dismissed. If his evidence, in conjunction with all other evidence, left a reasonable possibility that what he said was true, the Court was bound to dismiss the charge. Ms Bicknell Young submits this case is unlike Thomas v Police. The trial judge preferred the complainant’s evidence and did not comment on independent factual evidence which was possibly inconsistent with the complainant’s testimony. Fogarty J found this explanation inadequate and said:¹⁰

[13] As Justice Ipp points out, what the trial Judge must do, as any person in a situation of assessing the truth must do is to marshal with oral testimony such indisputable factual material as can be found and also have regard to probabilities of behaviour.

¹⁰ Thomas v Police, above n 9, at [13].

[45] Regarding the wilful damage charge, Ms Bicknell Young submits that there was an evidential basis for the Judge to find that Mr de la Harpe did cause some damage to the car.

Analysis

Assault charge

[46] Mr Bailey’s submissions focus on the fact that the Judge preferred Ms Sellars’ evidence to that of the other witnesses. In order to exculpate Mr de la Harpe, he relies on Mr Highsted’s and Mr Brookes’ evidence that Mr Barlow-Simpson attacked Mr Highsted. However, their evidence does not contradict Ms Sellars’ to the extent claimed. The Judge accepted their evidence that Mr Barlow-Simpson struck Mr Highsted outside and inside the bar. He also accepted that Ms Sellars saw Mr de la Harpe intentionally applying force to Mr Highsted inside the bar. There is no logical inconsistency in that.

[47] Giving evidence, Mr Highsted acknowledged that he “wasn’t sort of really taking too much notice of what they looked like”.¹¹ While saying that one of the men who attacked him outside appeared to be of Maori decent and had facial hair, he was not certain about who attacked him inside. He said that one of them (Mr de la Harpe and Mr Barlow-Simpson) was a little more aggressive but would not say that the less aggressive one did not attack him at any stage. His account of the attack does not rule out Mr de la Harpe attacking him. Mr Bailey’s submission that the Judge failed to consider all the evidence falls short.

[48] Furthermore, the Judge was entitled to assume that Ms Sellars was not intoxicated given that she was the bar manager and the fact of intoxication was not contested by the defence at trial. While the other witnesses may not have been so intoxicated that their evidence is completely reliable, it was reasonably open to the Judge to find that Ms Sellars’ sobriety supported her reliability.

¹¹ Notes of Evidence, page 5 line 2.

[49] While the Judge did not explicitly reject Mr de la Harpe’s evidence, I find he did so implicitly. Mr Bailey focuses on Mr de la Harpe’s intoxication as the justification for the Judge rejecting his version of events. However, the Judge was entitled to find that he was not truthful about what happened. When a defendant who has given evidence is found guilty, the Court usually rejects his or her version of events in the reasoning. The Judge referred to Mr de la Harpe’s account of events, but clearly rejected it. If it left him unsure, he would have dismissed the charges.

[50] The Judge did not discuss Mr de la Harpe’s statement to Constable Collins. Mr Bailey argues the indictment of his associates in that is unusual and should have been taken into account as relevant to credibility. Mr Bailey also submits that Mr de la Harpe did not try to attribute responsibility to Mr Highsted and Mr Brookes and that goes to credibility.

[51] I do not consider that Mr de la Harpe’s statement to the Constable does much to support his credibility or reliability. He does not see Ms James, Mr Barlow-Simpson and Mr Light very frequently, so it is entirely possible that he would tell the police that they were involved in order to protect himself. Furthermore, he did state that Mr Brookes hit him in the gut with a cane.

[52] Overall, there was sufficient evidence for the Judge to find, beyond reasonable doubt, that Mr de la Harpe assaulted Mr Highsted. He did not err in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. He could have reasoned in more detail, but none of the grounds raised on appeal impinges the conclusion reached on the available evidence.

Wilful damage charge

[53] Mr Bailey relies on the fact the Judge stated he was not sure who caused the dents in the vehicle but considered Mr de la Harpe should be held accountable in respect of some of the damage that occurred. Mr Bailey submitted there is no proof beyond reasonable doubt that he caused damage, and if so what damage.

[54] He submitted that Mr de la Harpe did not have injuries to his hand consistent with having punched or struck the vehicle. This is on the basis that Mr de la Harpe
denied the fact that his are the injured hands in the photo 1. While it is not clear in that photo who the hands belong to, the clothes worn are consistent with Mr de la Harpe’s long sleeved top (seen in photo 13) rather than Mr Barlow-Simpson’s short sleeved top (seen in photo 2). This provides support to Mr de la Harpe having punched the vehicle hard enough to cause damage.

[55] Mr Brookes said Mr de la Harpe put the dent in the front guard and under cross-examination said he definitely saw that, although that person had a beard (a description of Mr Barlow-Simpson rather than Mr de la Harpe). Ms Sellars said that Mr de la Harpe (the person with the mole) was beating up the car, kicking the car and throwing things at it. In cross-examination she said all four were basically “beating up [Mr Brookes’s] car”. Mr de la Harpe denied damage to the vehicle.

[56] Ms Bicknell Young says that the Judge had different versions of what happened, but there was a common thread which the Judge detailed at paragraphs [3] to [7], and the Judge observed that some people were under the influence of alcohol and the Court could bring that to account. Mr Brookes had been inconsistent when he identified Mr de la Harpe as the person kicking Mr Highsted, and he preferred Ms Sellars evidence.

[57] The Judge clearly rejected the appellant’s evidence that he was not involved in the attack on the vehicle and he referred to the evidence of Mr Brookes and Ms Sellars that all four appeared to be involved in taking it out on the vehicle. Ms Sellars was referred to as a reliable witness. All four were involved in the attack on the car but it was not clear who did cause specific dents.

[58] This evidence is sufficient to show, beyond reasonable doubt, that Mr de la Harpe was involved in damaging the vehicle. The Judge saw and heard the witnesses. If Mr de la Harpe’s evidence by itself or with all other evidence did not leave him unsure then he was entitled to find the charge proved beyond reasonable doubt. The Judge did not err in finding him guilty of wilful damage.

Disposition

[59] The Judge did not err in his assessment of the evidence before him in respect of either charge. There is no risk that a miscarriage of justice occurred. The appeal is dismissed.

Addendum

[60] Mr Bailey was assiduous in his submissions and identified the need for the Court to explain its reasoning in sufficient detail. The defendant and any reader of the judgment need to be sure that all the evidence was brought to account and appropriate findings as to credibility and reliability were made. This will prevent the Judge leaving the impression of a “preference” as opposed to finding a charge proved beyond reasonable doubt.







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Nicholas Davidson J

Solicitors:

Raymond Donnelly, Christchurch A J Bailey, Barrister, Christchurch