Police v Herbert [2016] NZDC 17623 (6 September 2016)

Last Updated: 17 February 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT WELLINGTON

CRI-2016-085-000008 [2016] NZDC 17623

NEW ZEALAND POLICE

Prosecutor

v

SID HERBERT

_Defendant(s)

Hearing:	6 September 2016
Appearances:	C Hunt for the Prosecutor C Ross for the Defendant
Judgment:	6 September 2016

_{ORAL JUDGMENT OF JUDGE D R W BARRY}

[1] Sid Herbert is charged with two offences arising out of an alleged incident in the early hours of the morning of New Year’s Day, 1 January 2016. The first being a charge of male assaults female; the second of injuring with intent to injure. The complainant is his erstwhile intimate partner, Madison Ness.

[2] I have heard evidence from Ms Ness, from Constable David McCarthy, who was called to the scene and the officer in charge, Constable Anthony Tse who arrested the defendant. Photographs, along with a brief of evidence handed up as an agreed statement of evidence has been adduced from Constable Curtis. As well as that I have, as an agreed statement of evidence, the Wellington Emergency

_{Department discharge summary.}

NEW ZEALAND POLICE v SID HERBERT [2016] NZDC 17623 [6 September 2016]

[3] Ms Ness said that she had known the defendant for six or seven months but at the start of January 2016 had been in a relationship with him for about three or four months. Between Christmas and New Year that year he had gone away, taking the key to her flat on [address deleted]. She said that on New Year’s Eve and into the hours of New Year’s Day she had been drinking at her flat with the defendant present, along with her daughter and her daughter’s partner. She said that she had drunk about half a bottle of Scrumpy and two beers and assessed her drunkenness on an escalating scale as eight out of 10 but said the defendant was more drunk than she was.

[4] She said that her daughter and her partner left to catch the last available bus home, leaving her alone in the flat with the defendant. She said that they argued about some inconsequential matter and she said that that argument turned to violence. When between the kitchen and the toilet she said that she found herself sitting on the floor when he started kicking her in the head and the face. She said that he had shoes on at the time but later put jandals on.

[5] She said that the force that was applied was intense, that her earrings were ripped out of her ears and in her words she blanked out at one stage. She said that from there she had moved to her bed, that he fetched a knife from the adjacent kitchen in a small bed sitting room type flat, that he sat on the bed, he said words to the effect that he wanted to kill her and then he cut her ear, her right ear, with the knife which she described as being somewhere around 20 to 30 centimetres long.

[6] She said that she then just wanted to get out, that she fled down the stairs and asked someone outside to call the police. She referred to photos taken the next day, showing her with bruising to the upper arms, to patterned bruising over the right forehead, further bruising on the upper aspect of the forehead, to the chin and a cut behind the right ear which has been glued up and she described those injuries as having been the result of being kicked in the head and face by the defendant and the cut as the result of him cutting her with the knife.

[7] Under cross-examination she accepted she was drunk. She denied that she had exhibited any animosity to her daughter and her partner, causing them to leave,

replying that they had simply gone to catch the bus. She denied that she had been nasty to the defendant and that he had left the flat because of her demeanour and she denied that he had never ever presented a knife at her. It was put to her that he had left as soon as she had become nasty and it was put to her that having been found outside injured, that injury could have been caused by anyone outside the flat. She rejected that proposition and reiterated she had been injured by the defendant.

[8] There were further photographs produced by Constable McCarthy who had attended the scene that he said he had taken in the police car afterwards, showing the complainant’s face with blood in a line down the forehead from the direction above the hairline, as well as blood around other parts of the face and superficial injuries to the right hand, around the cheekbone and eye.

[9] Constable McCarthy said they were called out about 20 past midnight. They located Ms Ness sitting outside the address with facial injuries and blood on her face. What she told the police officer is relevant because the defence, as it has been put, is that this was an invention and the defendant had done nothing to her.

[10] She told the police officer that the defendant had been drinking, along with her daughter and herself, that once the daughter left he became abusive, then physically violent, in the words reported by the police officer, stabbing her in the head with a kitchen knife, along with punching her multiple times. He also said that she was knocked out due to being hit in the head and was left dizzy as a result.

[11] Constable Curtis and he conducted a scene examination. He said that although numerous knives were located at the address, in the drawers, they appeared to have been clean. The complainant could not be sure which knife was used, so no knife was seized.

[12] In cross-examination it was put to him there was no stabbing injury. He said that there was so much blood around her face that they thought that there may have been a cut to the top of the head that she was referring to. He reiterated no knife was seized. He referred to photographs of the scene showing what appear to be bloodstains on a pillow and accepted the proposition that the flat appeared to be

reasonably tidy, without signs of a struggle. He agreed that no male shoes were seen at the address.

[13] Constable Curtis’ formal written statement had it that she spoke to a person who had told her that he saw a female on the stairs which give access from [location deleted], that she had blood on her face and she had asked him to ring the police, that she located the complainant there. They then went to the apartment. The defendant was not present, there was blood on a pillow and drips of blood in the lounge area and property pointed out by the complainant said to have belonged to the defendant.

[14] Constable Tse had taken a written statement from the complainant the next day. He located the defendant about 10 past six and arrested him and took him to Wellington Central. The Wellington Hospital Emergency discharge summary contains inadmissible material, including the allegations made by the complainant and I filter out anything but the references to the injuries that were treated. That refers to patterned bruising over the right forehead, eyebrow, bruising behind the left ear and a cut behind the right ear and also bruising of the left hand with treatment including gluing the ear and cleaning the other injuries and prescribing analgesia.

[15] It falls to the prosecution in bringing these charges to prove them and prove them beyond reasonable doubt. That means I need to be left sure that each element of each charge has been proven. In terms of the male assaults female, there is no issue that the defendant is male and the complainant female. I need to be sure that there was the deliberate infliction of force to the body of the complainant at the hands of the defendant, in terms of that charge being based around the asserted assault between the kitchen and the toilet when she was on the ground.

[16] In respect of the charge of injuring with intent to injure, I need to be sure that the defendant injured the complainant, that is inflicted bodily harm on her that was not necessarily serious or permanent but more than trifling or transitory and secondly, that at the time he carried an intention to injure her.

[17] I found the complainant’s evidence to be internally consistent, to be consistent with the presentation of injury recorded by both the clinician and in the

photographs and by the initial police observations. Her evidence was marked by appropriate concessions. She was open and frank that she was drunk. She was also adamant, under cross-examination, that matters had transpired as she said they had. She rejected out of hand the proposition that she could have been assaulted outside on the street after she had left the flat and she rejected the proposition that she had become anti-social and nasty to both the daughter and her partner.

[18] Further, the evidence of the statement that she gave verbally at the scene when first asked by Constable McCarthy what happened, is again consistent with the evidence that she has given in Court, both of the drinking, the arguing when the daughter left, the infliction of physical violence and the use of a knife to her head, as well as the assertion that she had been knocked out and rendered dizzy.

[19] She had been taken to task for the use of word being “stabbed” but in my view she was an unsophisticated person, the distinction between being sliced with a knife and stabbed by a knife is a fine turn of phrase and I am satisfied she was talking about having her ear cut, the injury that needed gluing up inherently consistent with that. The fact that a knife could not be isolated means nothing other than it was possibly cleaned or wiped against some surface and the lack of seizure of shoes, again does not undermine the veracity that I give to her account. The possibility of an attack outside the flat by another person is no more than a tenuous possibility and proposition that was roundly rejected and I accept that rejection as accurate. In other words I accept the complainant’s evidence that the defendant did these things to her.

[20] The incident took place in two distinct stanzas with the first involving the violence inflicted by kicking around the head while she was on the ground in the hall and rendering, to the point that she was rendered probably briefly unconscious or blacked out, is clearly an assault and I accept it was the defendant who undertook that assault. There is no suggestion or room for the possibility that it was other than deliberate and I find the charge of male assaults female proved.

[21] The second charge of injuring with intent to injure: clearly the complainant was injured, that the cut behind the right ear is what she referred to as being stabbed

with the knife and the only available inference is that the defendant, in the terms described by the complainant, as going and getting a knife, uttering words to the effect that he wanted to kill her and then applying that knife to cut her behind the ear intended injury and I find that charge proven as well.

D R W Barry

District Court Judge