H v Police HC Wellington CRI-2006-435-8 [2006] NZHC 1229 (13 October 2006)

Last Updated: 19 June 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2006-435-8}

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 10 October 2006

Appearances: J K W Blathwayt for Appellant

N Stone for Respondent

Judgment: 13 October 2006

_{RESERVED JUDGMENT OF CLIFFORD J}

[1] The appellant, H , was charged with disorderly behaviour pursuant to s4(1)(a) of the Summary Offences Act 1981. On 8 August

2006, the appellant was found guilty of that offence in the District Court at

Masterton by Justices of the Peace Mr A Wasmuth and Mr B Jervis.

[2] The appellant was convicted and discharged pursuant to s108 of the

Sentencing Act 2002, but ordered to pay $130.00 court costs.

_{[3] The appellant appeals against that conviction.}

H V POLICE HC WN CRI-2006-435-8 13 October 2006

Facts

[4] At about 11.30 pm on the evening of the 13^th of May 2006, the police were dealing with a very disorderly situation in Villa Street in Masterton. Noise complaints had been made with respect to a property on Villa Street, and there was a large group of young persons on the road. The events which gave rise to the charge against the appellant occurred whilst the police were endeavouring to move those young persons off the road and away from the property in question.

[5] The police evidence, given by Sergeant Foote, was that he first saw the appellant standing in the middle of the street yelling abuse at the police and telling others that they did not need to move. Sergeant Foote then arrested the appellant, put him in a headlock and moved him to a police van, with the appellant resisting.

[6] The appellant’s evidence was that he had done nothing wrong, that he was asked to move by the police, and that he had only responded by telling them to “fuck off” when he was pushed from behind.

[7] The decision of the Justices traverses the evidence of the appellant and the various witnesses, in particular Sergeant Foote. The Justices gave more credence to Sergeant Foote’s account of matters than they did to those of the appellant. They noted that the appellant had consumed a large quantity of alcohol on the night in question, and that he chose to stop near the site of the disturbance. They also considered the evidence of the appellant’s partner and friend, both of whom did not get involved in the confrontation.

[8] The Justices concluded, using words which were at the heart of Mr

Blathwayt’s submissions on behalf of the appellant, as follows:

On the balance of the evidence we have heard, we accept the police evidence in that you were causing a disturbance. Had you been wise on the night, you would have immediately walked past the disturbance, like your partner, and gone straight home. We find the charge proven.

Submissions

[9] For the appellant, Mr Blathwayt acknowledged that if Sergeant Foote’s evidence was to be believed, then it was accepted that in the tense situation that existed that evening yelling abuse at the police in an agitated state could amount to disorderly behaviour. However, Mr Blathwayt’s submission was that the Justices, to reach a guilty finding, had to determine whether on the evidence before them there was a reasonable possibility that what Sergeant Foote had seen was simply the appellant reacting from being pushed from behind, at a time when he was complying with the police request to move on. Unless the Justices were able to say that this evidence was not to be believed, then they would have been left in a state of reasonable doubt and should in that situation have found the appellant not guilty.

[10] Mr Blathwayt went on to submit that the words referred to above, and in particular the reference to “On the balance of the evidence we have heard”, indicated that the Justices had not approached the matter on the basis of proof beyond a reasonable doubt, but on the basis of the balance of probabilities. On the face of it therefore the Justices were wrong in that they applied the wrong standard of proof, and the conviction should be set aside.

[11] Mr Stone, for the New Zealand Police, submitted first that the Justices were entitled to find the appellant guilty of disorderly behaviour on the evidence presented to them. Mr Stone noted further that it was well established that an appellate court would only rarely interfere with the decisions reached by a lower court where the original decision was reliant on findings in relation to credibility. Even if the evidence of the appellant himself was accepted by the Justices, his conduct could still have amounted to disorderly behaviour.

[12] As to Mr Blathwayt’s submissions on the standard of proof, Mr Stone accepted that the reference to “On the balance of the evidence we have heard, we accept the Police evidence that you were causing a disturbance” could create confusion, and may not have been used by a professional judge. However that did not mean, in Mr Stone’s submission, that the Justices had applied the wrong standard of proof.

[13] Mr Stone’s submission was, put simply, that the reference to “On the balance of the evidence” was not a reference to a decision as to guilt on the balance of probabilities, but rather a reference to the fact that the Justices, in considering the evidence before them and in particular the conflict of evidence as to what had happened on the evening, had preferred and accepted the Police evidence. Having accepted that evidence, they reached a conclusion of guilty, and it could not be read into their decision that they had done so on the balance of probabilities.

Discussion and Decision

[14] Mr Blathwayt advanced his appeal on the basis that the Justices were wrong in fact and law. The grounds of appeal are essentially two sides of the same issue, as the appellant admits that if the evidence of Sergeant Foote was properly accepted, this would be sufficient to establish a charge of disorderly behaviour.

[15] The appeal focuses on the meaning, and implication to be taken from, the words used by the Justices that “On the balance of the evidence we have heard, we accept the Police evidence in that you were causing a disturbance.”

[16] I read this as meaning that, as to what they had heard in evidence and in particular the accounts given by Sergeant Foote as to the actions of the appellant, and the account given by the appellant himself and by his witnesses, they accepted the Police evidence as being the more credible account of the appellant’s actions on the night in question. It is implied in this statement that they did not accept the appellant’s evidence that he had merely responded to being pushed, and then went to walk on. This is a factual finding which is open to them to make. I do not think the Justices meant to imply they were using the balance of probabilities as their standard of proof in reaching their decision. Once they had accepted the evidence of Sergeant Foote as accurate in describing the events in question, they could be satisfied that the charge was proven beyond a reasonable doubt.

[17] I do not think there is strength in the further submission made by Mr Blathwayt that the Justices implied that failing to walk by was sufficient to establish the charge. This was merely an observation by the Justices to the appellant on what

they saw as the lack of wisdom in his initial decision to stop, which led him being in a situation where he behaved in a disorderly fashion. It may have contributed to the Justices’ assessment of the credibility of the appellant’s evidence. However, there is nothing to indicate that it “distracted” them from the real issue of whether his subsequent behaviour was disorderly.

[18] The Justices preferred the evidence of Sergeant Foote to that of the appellant. This was a decision that was reasonably open to them on the evidence before them. Although they did not specifically say so, once this factual evidence was accepted it is implicit they were satisfied that the charge had been proven beyond reasonable doubt. Certainly, I do not think the words used in paragraph 5, and on which Mr Blathwayt relied, are sufficient to result in the conviction being overturned on appeal.

_{[19] Accordingly, this appeal is dismissed.}

_{Clifford J}

Solicitors: Wollerman Cooke & McClure, Carterton, for Appellant

Crown Solicitor’s Office, Wellington, for Respondent