Police v Fitzgerald [2016] NZDC 7493 (2 May 2016)

Last Updated: 11 November 2016

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT DUNEDIN

CRI-2015-012-002579 [2016] NZDC 7493

NEW ZEALAND POLICE

Prosecutor

v

ANTON AARON FITZGERALD

_Defendant(s)

Hearing:	2 May 2016
Appearances:	T R Hambleton for the Prosecutor J A Westgate for the Defendant
Judgment:	2 May 2016

_{ORAL JUDGMENT OF JUDGE K J PHILLIPS}

[1] Anton Fitzgerald is charged that on 13 September 2015, he being a male assaulted a female. He is represented by Mr Westgate. Mr Hambleton is representing the police prosecution office. There is a s 9 Evidence Act 2006 agreement and it is admitted in evidence that Mr Fitzgerald’s identity is accepted. The time, date and place are not in issue. That is, the matter occurring at 8.00 am, on Sunday, 13 September 2015, at the complainant’s sister’s flat in [address deleted] Dunedin. It is not at issue the complainant is a female. Looking at Mr Fitzgerald, although it does not seem to be accepted, I will take judicial notice of the fact he is a male.

[2] The issue, as I understand it when I look at the evidence, is as to whether an assault, which is accepted, had the added aggravating element of strangulation. This

_{is really a disputed facts hearing rather than a defence to the charge of male assaults}

POLICE v FITZGERALD [2016] NZDC 7493 [2 May 2016]

female because the defendant in his evidence accepted he had struck a blow to the complainant, Julia Driehuis, when he was angry, striking her somewhere around the shoulder blade. Before I go further, I accept in relation to disputed facts, the fact disputed here is whether, during the course of an argument in a bedroom at this flat, the defendant took hold of Ms Driehuis by putting his hands around her neck and holding the neck for up to 15 seconds. That is the fact that is disputed. Therefore, it has to be proven by the prosecution beyond reasonable doubt. I acknowledge immediately it is not for the defendant to prove that he did not do this. It is for the prosecution to prove that he did.

[3] Ms Driehuis has given evidence and been cross-examined. I note immediately that this occurred when both these people were students attending school. It appears the defendant was living at the Otago Boys’ Hostel and the complainant, Ms Driehuis, had seized an opportunity to stay overnight at her elder sister’s flat at [address deleted]. The defendant had stayed overnight there as well. On the Sunday morning when they awoke, they apparently went out for breakfast together. That is not in dispute. It does not appear to be in dispute that while sitting on the couch in the lounge of this flat at [address deleted], Ms Driehuis saw various things on the defendant’s phone which made her upset. It appears the two of them had been in a relationship for about a year-and-a-half in an “on-and-off again” basis. It had been made clear, Ms Driehuis said, to Mr Fitzgerald he was not to be in contact or communication with other young ladies whilst he was in a relationship with her. She queried him about what she had seen on the phone. He became angry, she said, and there was an argument which ended, I think, when she went to where they had been sleeping overnight, where there was a pull-out-type of bed. She was sitting on the bed. Her evidence is that he was standing up. He got quite angry as the argument developed. She says all of a sudden he is on top of her on the bed with his hands around her neck or throat area to the extent of where she could not breathe. She said maybe for 10 to 15 seconds. She was trying to grab her phone to ring the police. She said he had stopped her doing that by grabbing the phone and throwing it behind this couch/divan bed. She said she had tried to knee him to get him to stop the strangulation. The assault ended. She was crying. They were on the bed and it appears he was on the bed on top of her with his hands around her throat for this 10 to 15 seconds. What then happened was, she said, that he left to go to the gym.

Another girl who lived in the house was there and the complainant, Ms Driehuis, said she talked to her after he had left. At that time, she was asked by this other woman as to whether Mr Fitzgerald had been strangling her. At that time Ms Driehuis said she denied that because she wanted to protect Mr Fitzgerald. She says a couple of days later she told this girl the truth. She said that any conversation was limited between them. During the course of the argument, there had been something said by her about his father and he had said to her, “You shouldn't have said what you did.” She said he then said, “I love you. I didn’t mean to do it.”

[4] Under cross-examination from Mr Westgate, Ms Driehuis remained constant, saying she was upset rather than angry. She absolutely rejected, when it was put to her that she hit him at any time. She accepted she knew he did not get along with his father. She said she was sobbing and she was upset. When it was put to her that he, the defendant, was just sitting on the bed, then lying down on the bed and giving her a cuddle, she rejected that. She again repeated she was sitting on the bed then he was strangling her, lying on top of her. She described it as she “being upset” and he “getting angry”. Mr Westgate put the defendant’s case to her. That was rejected. She said under cross-examination she had kneed him once when he was strangling her to get him to let her go. When it was put to her that afterwards she had driven him back to the hostel, she denied doing that. She accepted she had lied to the other flatmate about what had actually happened but the following weekend she had said what and how it had all actually occurred. She accepted at the time the relationship was “kind of off”, that she had told him it was over and she had done that because she was scared of him.

[5] I have to say Ms Driehuis’ evidence was given impressively for a young

17-year-old/18-year-old. She told it as it was, in my view. Her evidence was clear. Although challenged under cross-examination, she was totally consistent.

[6] Shalissa Healey was called to give evidence. She was a student, 19 years of age, a flatmate of Ms Driehuis’ sister and was, when the argument started, asleep in her room, which is situated opposite the bedroom occupied by these two, the defendant and the complainant. There is a joint wall between the two rooms. Ms Healey’s evidence was that when she woke up she could hear there was arguing.

She described it as being loud. She could not hear exact words but it went on for what she described as “a wee while”. She said the defendant, Anton’s, voice was standing out. She heard him say, “I love you. You are not to go anywhere.” Her evidence was, however, in the important part of the prosecution case, that she heard choking and gagging. She was asked by me to describe the sound. She described it as gagging and that it was choking. She accepted she saw Julia and the defendant as they left. She said they did not really say anything and it was later on in the day when she asked Julia Driehuis, “Was Anton choking you?” She said Ms Driehuis told her he was not. A few days later she said that it had happened and there had been a choking.

[7] She was cross-examined (rather relentlessly by Mr Westgate) in pursuit of his client’s case, that there was no question of any form of choking. She accepted she did not hear Ms Driehuis call for help but that in her view the woman was clearly upset, she was crying and she was sobbing. She said the defendant’s voice was the louder. Mr Westgate put it to her that what she actually heard was not choking or gagging but sobbing. Ms Healey was adamant that was not the case at all. She put it on the basis that she knew what she heard. What I do not think she knew though was how long it went on for. She described it as 10 minutes of an argument lasting 15 minutes. I think she had no perception as to how much time had passed. I put that part of her evidence to one side. She accepted the defendant and Ms Driehuis had left the house together. She said she did not see any mark but neither did she look for one. It was the next week Ms Driehuis she said “yes, what she had heard was the defendant choking her”. Ms Healey said she heard the defendant saying, “I love you. You're not allowed to leave.” It was put to her she had heard something else and she disputed that.

[8] I have the evidence of Ms Healey confirming and corroborating to a certain degree what I have been told by Ms Driehuis in relation to the choking.

[9] Mr Fitzgerald gave evidence. He had, in my view of his evidence, a somewhat insular (if I can put it that way) narrow view of what happened that particular morning in that room. He described the relationship as “on and off”. They had had a couple of arguments but he put it as “all going good” until the morning of

13 September, when Ms Driehuis was going through his phone, seeing the names of the girls on the phone (which were just his friends) and then that he was being accused of cheating. Although Ms Driehuis was never questioned on the issue, he said that Ms Driehuis had thrown his phone at him and then gone into the room. He said that she was sobbing in the room; that he went in and sat beside her and that he had rolled on top of her to “cuddle her” and then all of a sudden, as he put it, “She kneed me in the nuts.” He then said to her (and I made a particular note of his evidence on this) “Please don’t do that or I'll lose my cool.” It seems a very odd turn of phrase as to what was occurring at the time. He says (he accepted) he had punched her in the back in the shoulder blade area. Then she got angry. There was an argument with her saying he was like his father. It went on for 10 minutes. He was told to leave, which he did. She drove him back to the hostel. He said he broke the relationship up as he did not want anything more to do with her. She became very upset and abused him about it. Again she was not cross-examined on that at all. He made it very clear in his evidence that he had not strangled her.

[10] Under cross-examination, he accepted he got angry with her. He denied he had ever grabbed her around the throat and denied he had ever grabbed her phone. (Again she was not cross-examined on what he was going to say, that at no stage did he take her phone off her as the complainant, Ms Driehuis had said). He then said she was lying on the bed facing away from him. She rolled over. He accepted that it might have been accidental that she hit him in the groin area with her arm and that it was not a knee at that stage. She had already done that earlier. Then she had, once she got in that position facing him, she rolled back and away, which enabled him in his “angry state” (as he put it to Mr Westgate) to strike her in the back.

[11] I found his evidence implausible and inconsistent with itself in certain areas. I found his evidence as to exactly what he had said when she, as he put it, had “kneed him in the nuts”, “Please don’t do that or I'll lose my cool,” implausible. The evidence of Ms Healey is much more to the point that she could hear him over her and that “obviously” he was the angry one. I accept at once that he does not have to prove anything at all but in the end, his is the type of evidence I would not rely on.

[12] I look at the police evidence. There are inconsistencies with that as well: Ms Driehuis’ evidence in relation to him going to the gym rather than the evidence of Ms Healey that they left together and the evidence of the defendant that she had driven him back to the hostel. I am not here to consider how he got back to the hostel. I am here to consider overall as to whether the police have established beyond reasonable doubt there was a choking. If it was the evidence of Ms Driehuis against the evidence of the defendant, I think in the end I would have had to say I would have been left with a doubt as to the proof of that aggravating circumstance but I have the evidence of Ms Healey corroborating what she says as an independent party and what she says she heard. Her evidence overall was of a kind where she put it quite bluntly, “I know what I heard.” I take it from that it was a choking sound coming from Ms Driehuis much like she had described in her evidence.

[13] I find as proven that Mr Fitzgerald and Ms Driehuis had been in a relationship. On the particular morning, 13 September, they were in a bedroom in a flat at [address deleted]. There had been an argument over activities shown in the defendant’s phone as to him making contact with other females. Ms Driehuis was upset about that. I find as a fact in the room she was sitting on the divan/bed that they had used that night. He was standing up and he was angry. He was arguing with her. I find as a fact he pushed her down and got on top of her. When she attempted to use the phone, he took the phone off her and put it either on the ground or threw it over the back of the couch. It was not available to Ms Driehuis to make a call. He put his hands around her neck and applied pressure. The amount of pressure I would find is light. The amount of time I would find as a few seconds only. It appears she then, as he put it, in colloquial terms, “kneed him in the nuts” and it ended. He then got off. As I have found, I reject entirely that he got on the bed to give her a cuddle and “all was good” but then when she accidentally struck him in the groin, as he put it, when she rolled back over, he struck her a blow in the back. I find as a fact that what had occurred was that after he had stopped or taken his hands from her throat, she had turned away from him and it was at that time he struck her where she indicated in her back around the ribcage area.

[14] On the basis of that, as I have already said, the charge is established. I find the aggravating circumstances of a very short-lived strangulation established. He will be convicted accordingly.

[15] Mr Fitzgerald, I would have thought if you were trying to protect your ability to travel internationally in pursuit of a professional football career you would have been looking at a disputed facts hearing rather than having denied the obvious here since you were first charged with this matter and having had it run on since 30

October of last year. Mr Westgate, after my finding of the case, indicated to me he wished to make application for you to be discharged without conviction. That application of course is your right. It removes my ability to have the restorative justice process put in place. I have noted the file and have taken out the conviction I entered upon my finding, the case being found established, together with the aggravating factor of a short strangulation, a few seconds, and one blow in the complainant’s ribcage area. Mr Westgate’s application submissions will be filed and served by 13 May. The prosecution response to be filed and served by 23 May.

[16] You are remanded with your bail to continue to 17 June at 2.15 pm when that application will be heard. I call for a pre-sentence report without appendices, indicating on the charging document I would be considering a supervision with stopping violence type of sentence. I direct my decision this morning be typed back.

K J Phillips

District Court Judge