Police v Nichol [2017] NZDC 24230 (20 October 2017)

Last Updated: 23 May 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-004-010693

[2017] NZDC 24230

NEW ZEALAND POLICE

Prosecutor v

KEVIN JAMES NICHOL Defendant

Hearing:	20 October 2017
Appearances:	S Cossey for the Prosecutor S Kilian for the Defendant
Judgment:	20 October 2017

ORAL JUDGMENT OF JUDGE A-M J BOUCHIER

[1] The defendant Kevin James Nichol is charged with five charges and those charges are the following. First of all, that he indecently assaulted [complainant 1] and then three charges of indecent assault on [complainant 2] and one charge of indecently exposing his penis to [complainant 2].

[2] The prosecution must prove these charges to the necessary standard of beyond reasonable doubt. What must be proven in respect of the charges of indecent assault are the following matters: first of all, that there was an assault and here the allegations are an assault by touching which of course fulfils the definition of an assault pursuant to the definition section of the Crimes Act 1961; secondly, that there was no consent

NEW ZEALAND POLICE v KEVIN JAMES NICHOL [2017] NZDC 24230 [20 October 2017]

to this action; thirdly, that the defendant did not have any belief in consent; fourthly, that the action would be regarded by right-minded members of the community as indecent; and, fifthly, that the defendant appreciated the circumstances which made the action indecent.

[3] In respect of the indecent exposure, what the prosecution must prove to the necessary standard of beyond reasonable doubt is that there was an exposing or showing of the defendant’s penis to [complainant 2] and that this was indecent, that is it would be regarded by right-minded persons in the community as being indecent.

[4] There is also the issue of cross-propensity evidence and propensity evidence can be accepted, if accepted, show a propensity for a person to act in a certain way or think in a certain way. Looking at the factors in general terms here without going into the detail of each of the matters, the matters do have some similarities in my view and, firstly, that they are in a prison setting, that is [prison name deleted] in [the unit – unit name deleted], a unit in which there are supposed to be no dangers of any sort; secondly, that the two persons involved were inmates who were younger than the defendant quite clearly, he being born in 1950; thirdly, that there would appear to have, if this is accepted, been a grooming of those younger members of the prison community by offering them treats such as coffee or food; fourthly, the issue of timing, that seems to have been pretty close in time, if again if accepted; and, fifthly, the similarity, if accepted, would be the touching of private parts of younger prisoners. So this evidence could, if accepted, show a propensity to act in that way of touching younger men, in this case in the prison setting, in their private areas.

[5] The Court could of course ignore it if the Court did not consider that it showed that the defendant had a propensity to act in this particular way. It is of course only one item of evidence and the Court must look at all of the evidence to decide whether the prosecution has proven the charges to the necessary standard of beyond reasonable doubt.

[6] Another factor that the Court might consider is to whether there may have been possible collusion between two witnesses. That is certainly not being suggested here at all. And, lastly, the Court should warn itself of the possible prejudice of accepting

such evidence and I certainly do warn myself. It is one factor, one factor only, to take into account in respect of the whole of the evidence.

[7] I look now at that evidence. First of all, I heard from [complainant 1]. He said that he had recently been in [the prison], he was in [the unit] which was a segregation unit, that persons who went in there wished to be kept safe. There was no tolerance of violence in this unit. He said he met the defendant in the unit, he would see him every day. It is hard not to interact with everybody in such as lines for meals or just walking past.

[8] On the day in question, and in his particular charge, the allegation arises from [date deleted], he said that he, that is [complainant 1], was asking the defendant Mr Nichol for some coffee and he went to his cell. He said that he had his hands full, that is he had a coffee cup and a spoon. The defendant had a jar of coffee and while [complainant 1] had the coffee cup and the spoon in his hand the defendant’s other hand grabbed his genitals. He had no line of sight of that hand and it took him a few seconds to realise what was going on. He said he got a shock. He jumped backwards. He had shorts on and no underwear. He had only just come in to the prison and he only had one pair of underwear and they were in the wash and it happened outside the defendant’s cell which is [location within unit deleted]. He said he might have swore, as he put it.

[9] He then went back to his cell and he said his cellmate knew that something was wrong. He told the cellmate who made the staff aware. He cannot remember now exactly what day it was but he did make mention of it.

[10] He was questioned as to his knowledge of whether there were cameras in passageways. He said yes there were a number of them and he was in the passageway outside the cell. He said that he came with a coffee cup and spoon, the defendant came out with his coffee jar. He could not go into his cell because that was the rule and nothing like this had happened before. He said he was leaning against the entrance to the defendant’s cell and the defendant’s free hand touched his genital. He said the cameras do not always get what is going on and he said he did not think anyone else saw.

[11] It was put to [complainant 1] that did he ever stand over the defendant for food. He said no, he has never stood over anyone. He was in [the unit] to avoid being stood over.

[12] I then heard from [complainant 2]. He too was in [the prison] in [the unit]. He called it the CSI Unit, clear support and something else he said, he could not remember the name, but there was no violence to be in the unit, no harm when in it, and it is for segregated prisoners. It is for normal people, not gang members, ordinary people.

[13] He said when he was first in the unit the defendant was directly above him. He said he is a humble person, he talks to anyone, and the times he was there was when, first of all, he was on remand from the beginning of last year, [months deleted].

[14] It first started off, he said, when the defendant said to him, “If you need someone to talk to come and see me,” it started with coffee. [Complainant 2] said he thought the defendant was just being generous because coffee was hard to get and he had no money and he liked coffee. He was new to everything and did not know many people in the unit. He thought the defendant was a unit elder and he must be used to all this and the defendant offered him coffee.

[15] It started off as a friendly conversation and they exchanged names. He said the defendant was very touchy, touching him on his shoulder, but he did not do anything that first time. [Complainant 2] said he spoke about where he was from and the defendant started telling him about the army and asking him if he had a girlfriend.

[16] On the first occasion something occurred [complainant 2] said that the defendant touched his thigh indicating the top part of his thigh, “He just stroked my leg.” After that [complainant 2] said he went to his cell and started crying. He said he thought it was strange that an older gentleman did that. He had never experienced that before. He was wearing prison issue t-shirt and shorts.

[17] On another occasion he said that he went to see the defendant for another coffee. He was going commando, meaning, as I understand it, that he did not have any underwear on. He said he was a bit uncomfortable and the defendant was talking

to him about the army and if men had no girlfriends then they turned to each other. Then, [complainant 2] said, the defendant put his hand on [complainant 2]’s leg and raised his shorts up and reached up his shorts and grabbed his private parts. [Complainant 2] said he then stepped back and immediately left the cell and isolated himself in his cell crying, called out for his mum. He did not know who to turn to. He spoke to chaplain who said, “Tell the staff in the morning,” but he did not.

[18] He then said that things got worse from there. The next occasion was a bit weird because [complainant 2] said, “The defendant showed me his penis and it was erect.” He said, “I was walking to see my mate who was in the cell with the defendant. The defendant gave me a coffee and said, ‘I like you a lot.’” [Complainant 2] said he walked away. He said that there is a door with two flaps down and photographs were produced as exhibit 1 showing the cells where the two flaps are and he said this was where it was shown and the defendant said to him, “It’s all yours if you want it[Complainant 2] said he said to the defendant, “Fuck you, you paedophile.”

[19] Going to the next time which was Wednesday, a long-lock day, nine to three, and before that [complainant 2] said he had just had a shower and he was just in a towel naked. The defendant, he said, came to the cell and he said, “He rubbed his cock against mine. He had a boner,” meaning, I take it, that he had an erection. [complainant 2] said he wanted to punch the defendant, he was really angry and hurt, and he tried [method of self harm deleted] and he was taken to [a different unit]. He said that at that time that this occurred he was crying. The defendant hugged him and touched his penis again, he felt his hand, and again he said he called the defendant, “A fucking paedophile,” and he was pulled off the defendant by his mate. After that, the defendant was removed from that unit.

[20] It was put to [complainant 2] that when he had said he told the chaplain and he told the psychiatric nurse that there was nothing in the records. The police, he said, did not come for two to three months to talk to him. It was put to him why did he go and get more coffee if he was uncomfortable. He said he was in the doorway and the defendant was inside his cell and the time when both flaps were down and he showed [complainant 2] his erect penis, [complainant 2] said he was sitting at his table right

by the hatch. Again, photographs were shown indicating the hatches and one in particular showed an arm of one of the prison officers going through that flap.

[21] It was put to him that he self-harmed for attention seeking and that he enjoyed this attention that he got as a result of it. He did not agree that he made things up to get attention and then self-harmed. He made it clear in that questioning that he did not like the questioning that was put to him and said to counsel, “Are you trying to say that I’m a liar,” and he said, “I am not a liar.”

[22] I then heard from [the Prison Officer] who read her brief of evidence and what she had to say was that on [date deleted] 2017 she made a statement to the police at the Auckland Central Police Station. She is employed as a Corrections officer by Corrections and she has worked at [the prison] firstly 1999 to 2006 and then 2012 to present. At the time of the report she was working at [the unit], that is the zero- tolerance unit, and any prisoners are removed from it if it is found they have used violence. She is aware where some of the cameras are located. There are no cameras inside cells. There are some in hallways and day-rooms. The two prisoners who reported these incidents are [complainant 1] and [complainant 2].

[23] On [date deleted] she was rostered for duty 7.30 am to 6.00 pm in that unit and became aware of an incident and approximately 12.05 she was conducting the lunch-lock for the unit. She arrived at [first cell number deleted]. [Complainant 1] was there very upset, said he needed to talk to her, who said that he was touched by prisoner Kevin James Nichol inappropriately in the groin area outside [second cell number deleted] when he was asking to borrow a spoon of coffee. He said, “Prisoner Nichol was holding a jar of coffee in one hand and with the other hand he touched me in the groin area. I told him to, ‘Nah, fuck off.’” She said [complainant 1] was very upset, stressed and teary eyed when describing the ordeal to the prison staff. Prisoner Nichol was removed from the unit. [Complainant 1] asked her to stay near him. He appeared to be feeling vulnerable and she stationed herself outside his cell and recorded the incident and recorded the perpetrator as being Kevin Nichol and the victim being [complainant 1].

[24] On [date deleted – the next day] she was on duty at the same unit and was made aware of a second incident and was approached by [complainant 2] who said that he wanted to talk to her stating that he had been touched in the private area of his body. She took notes and recorded them and he said, “I have been self-harming because the old white guy kept touching my private parts. I did not come forward to tell about what the old white guy from [second cell number deleted]. It took place in [cell number deleted – the defendant’s cell]. I know I’m not allowed in any other cell but mine. I went into his cell to get coffee, sometimes noodles or biscuits. It happened not yesterday but the day before and every day before that. I didn’t mention it before because I don’t like talking about it. I kind of just live with it because I’m used to this sort of thing happening at me. I stood at the door long enough to be given coffee or noodles. When he put the coffee in the cup he would touch me. When I was in [third cell number deleted], the Wednesday lock-up when the food flap was down, he had his pants down and had an erection and said, ‘This is yours if you want it.’ He did not put his penis out of the food flap, he just stood back a bit and said, ‘If you touch it I will give you anything you want.’” After having this discussion with the prisoner he stated that he has been touched in the private parts of his body and this is why he has been cutting himself. Again she recorded the report and it was an incident report.

[25] I then heard from [the Detective Constable] who was assigned to investigate this matter. In October 2016 he visited the witnesses [complainant 1 and complainant 2], took statements from both, spoke to the defendant, gave him rights pursuant to the New Zealand Bill of Rights Act. He requested to speak to a lawyer and then stated he did not wish to make a statement. He spoke to the prison regarding CCTV footage and understood that there was none. He said he took photos. He obtained [complainant 2’s] medical record, page 39 of which was produced, which noted, “On [date deleted] prisoner interviewed inside office with verbal consent. Prisoner showed writer some old wounds on [location on body deleted]. These appear to be clean and healing well. Prisoner stated he did them over a week ago with [tool/utensil deleted] stating he was sexually assaulted in his unit and was triggered so did this.” It was put to [the Detective Constable] that there had been an email from the prison which said something like a prison officer had looked at the CCTV footage but did not see anything. [The Detective Constable] said that might well have been another incident. A further page of [complainant 2’s] medical records was put to him which indicated

that something was noted there about he likes screwing the system and essentially it was put to [complainant 2] that he was lying about the incidents.

[26] So of course this is a situation where the defence have called no evidence. That is their right. It is not incumbent at all, as is so well-known, upon a defendant to call evidence or give evidence nor to attempt to assert their innocence. It is every person’s right to have the prosecution prove the case to the standard which I have already mentioned.

[27] In terms of findings of veracity here, I accept that it has been put to both of the witnesses that these events did not occur. This Court being the Court of first instance and seeing and hearing the witnesses must make an assessment of their veracity. That is something which the Court must do on a regular basis and give reasons for that.

[28] I look first at [complainant 1]. It would be wrong and quite improper, in my view, for anyone to suggest to this Court that because these people were in prison that they were inherently unreliable, untrustworthy and then not giving evidence which is true. The Court must assess them, each of them, on their own merits as they have given evidence today.

[29] Each of them of course could not deny that they were in prison, I have no knowledge of what they are in prison for, but [complainant 1] appeared, as far as I am concerned, to be a witness of the truth. He gave his evidence in a fair measured way. It was clearly something that still distressed him from the way he gave his evidence and he certainly also reported the allegation on another day to the staff and [the Prison Officer] took a version of events from him. She noted what his demeanour was on the day when she was told about this incident and that demeanour, as she has reported in her statement, is the sort of demeanour which could well be occurring in a person who has been assaulted in the way that [complainant 1] has asserted.

[30] Overall, I accept [complainant 1’s] credibility in this matter and I am satisfied from the evidence that he has given, the fact that it is corroborated, the similarities in the cross-propensity between the evidence which [complainant 2] has given as well, which I have already identified, and, therefore, for those reasons I accept what he has

to say. So I accept, first of all, that the defendant touched him on the upper part of his leg.

[31] Looking at the factors then further that the prosecution must prove, I look at whether there was any consent to that. Well quite clearly in the circumstances there was no consent to that and that is evidenced by the behaviour which occurred after [complainant 1] says the touching took place. He was upset, he went back to his cell, told his cellmate and then subsequently had a discussion with [the Prison Officer] and was upset.

[32] In the circumstances of being in the prison setting, an older man with a younger man, I am of the view that the defendant could not possibly have believed in consent and no reasonable person in those circumstances could have believed in consent.

[33] Touching another person, a male upon male, in the setting that it was in the area that occurred, that is the upper thigh, I am of the clear view is an action which would be regarded by right-minded persons in the community as indecent and, also, further, that the defendant appreciated the circumstances there which made that action of touching [complainant 1] on his upper thigh indecent.

[34] That being the case, I am satisfied that the prosecution have proven that charge to the necessary standard of beyond reasonable doubt.

[35] I then look at the charges in respect of [complainant 2]. First of all, indecent assault and the first charge, what [complainant 2] has said that the defendant touched him on the thigh on the top part, stroked his leg. In terms of what the prosecution must prove again, the Court needs to consider the veracity of [complainant 2].

[36] Now [complainant 2] again is also an inmate of the prison and I make the same comments that simply because a person is a prison inmate that does not mean that the Court should automatically consider that they are not truthful. Looking at the way [complainant 2] gave his evidence, he may possibly be described as having a comprehension which is somewhat different from the norm. Again, that is not something which means that he may not be telling the truth. He was clearly upset and

annoyed at defence counsel’s questioning of him suggesting to him that he was not telling the truth, not that I suggest in any way, shape or form that the questions that were asked of him were anything but proper questions by defence counsel. However, as I say, [complainant 2] certainly was unhappy about the way he was questioned.

[37] Is he a witness of the truth? Well, again the Court is assisted by the cross-propensity evidence being this in a prison setting, younger prisoners, being perhaps groomed by an older one by offering treats and coffee, the timing factor being close in time, although the date range for [complainant 2’s] alleged offending is wider than that of of course [complainant 1’s] which was one specific day, but there is what was said to [the Prison Officer] which she has recorded at the time in [month deleted] of 2016.

[38] The touching of the private parts, now again the issues are not of course exactly the same but in the first allegation by [complainant 2] that is somewhat similar to what [complainant 1] has said, so there is a degree of similarity there and, also, in the next allegation of reaching under shorts and grabbing private parts, again there is a degree of similarity there to what [complainant 1] has said.

[39] So I am of the view when assessing [complainant 2’s] credibility or veracity overall, that I am satisfied that he is telling the truth here and I am satisfied due to my assessment of his giving evidence which was straight forward, he was able to tell the Court in a clear fashion what he said occurred and he was unshaken when it was put to him in cross-examination that he self-harmed for attention and that he made allegations for attention seeking. He denied this roundly and I accept what he says. He may have wanted to screw the prison system but that is another matter.

[40] So looking then at the second charge and, as I have mentioned, there was a reaching up under his shorts, he having no underwear on at that stage, and a grabbing of the private parts, that action constitutes an assault by touching. I am satisfied that there was no consent to that action and that the defendant did not believe in any consent, and that the action which I have described would be regarded by right-minded persons as being indecent and that the defendant appreciated in the circumstances that

it was indecent. Accordingly, that charge is proven to the standard of beyond reasonable doubt.

[41] The next charge is an indecent exposure under the Summary Offences Act 1981. The description there of the occurrence is that there were these two flaps and that the defendant could be seen with an erection and that he showed it to the witness and said to him words to the effect, “It’s all yours if you want it.” To show somebody their penis in that circumstance, in my view, would be regarded by right thinking members of society as being indecent and I am satisfied, with my acceptance of [complainant 2’s] veracity, that what he says to me about this matter did occur and, accordingly, I am satisfied that that charge is proven to the standard of beyond reasonable doubt.

[42] The last charge is where [complainant 2] says that he had had a shower, it was on Wednesday just before long lock-up, and that he was naked underneath his towel and that the defendant, he said, rubbed his erect penis against his. Again, in looking at the factors that the Court needs to find proven to the standard, clearly that would constitute an assault by touching; secondly, that there was no consent to that action, I am satisfied; thirdly, the defendant did not believe in any consent; and, fourthly, that that action would be regarded by right-minded persons in the community as being indecent and that the defendant appreciated that in the circumstances. So, accordingly, having been satisfied that the act occurred and the further factors that the prosecution must prove have been proved to the necessary standard of beyond reasonable doubt, the defendant will be convicted of that charge also.

A-M J Bouchier District Court Judge