F v Police HC Auckland CRI-2009-404-191 [2009] NZHC 1210 (9 September 2009)

Last Updated: 18 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-404-000191}

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 7 September 2009

Appearances: G Minchin for Appellant

N Whittington for Respondent

Judgment: 9 September 2009 at 4.00 p.m.

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 9 September 2009 at 4.00 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Crown Solicitor, Auckland

G Minchin, Auckland

F V NEW ZEALAND POLICE HC AK CRI-2009-404-000191 9 September 2009

[1] Following a defended hearing before Judge Aitken the appellant was convicted of one charge of assault on a police constable acting in the execution of his duty and a second charge of being in possession of a knife in a public place without reasonable excuse. He was ordered to pay reparation to the constable in relation to the charge of assault and on the charge of possession of a knife was convicted and ordered to come up for sentence if called upon within 12 months. He appeals against both convictions and the sentence of reparation.

Background

[2] The appellant was one of a number of protestors demonstrating outside the Langham Hotel against the visit of the then United States Secretary of State, Condoleezza Rice. The Tactical Policing Team was there to ensure her safety and order. A barrier had been set up across the road from the hotel. The police moved the protestors across the road and behind that barrier. Most of the protestors had gone voluntarily. The appellant refused to move or to allow himself to be removed. He was forcibly lifted off the ground. The appellant took issue with the police officers’ actions in physically moving him.

[3] The appellant returned to the line of policemen, put his head back, put his finger against one nostril and expressed mucous from the other nostril towards the police, hitting Constable Clayton. Despite that assault the police did not break their line. The appellant then left the scene and went to his car to get a pen and paper in order to take details of the police who had forcibly removed him. When he returned to the scene approximately 10 minutes later he was arrested for the earlier assault. When the appellant was searched at the police station a knife was found inside his jacket.

[4] The prosecution called three police officers, an Inspector, Constable Clayton and Constable Lawrence. All three described the appellant expelling mucous from his nose deliberately towards the police and hitting Constable Clayton with it. The appellant gave evidence as did two associates. The appellant admitted expelling mucous but said that he did so because he had a cold and did so directly towards the ground, not at the police officer. One of his witnesses gave evidence to confirm that earlier he had expelled mucous in that way. Neither of the appellant’s witnesses saw the incident described by the police. The Judge preferred the evidence of the police officers to that of the appellant and found the assault charge proved.

[5] In relation to the possession of knife the Judge noted the appellant did not suggest he had a reasonable excuse. His defence was that he was not aware it was in his possession. He said that he had put it in his pocket and forgotten about it. The Judge rejected that evidence. The Judge was satisfied that he knew the knife was in his possession and found that charge proved.

Appellant’s submissions

[6] In support of the appeal in relation to the assault charge Mr Minchin raised the following points:

• the District Court Judge took account of irrelevant considerations which caused her not to fully consider the evidence as to whether the act was intentional;

• the District Court Judge did not refer to critical defence evidence;

• the witnesses preferred by the Court gave contradictory evidence;

• in terms of the sentence the Judge erred in preferring the evidence of

Inspector Holmes to that of the officer assaulted;

• the Judge failed to take account of evidence of previous mistreatment of the appellant by the police;

[7] In respect of the conviction for possessing the knife Mr Minchin submitted:

• the District Court Judge unfairly failed to give proper weight to affidavit evidence provided; and

• the District Court Judge made an error of logic in coming to her conclusion the appellant had knowledge of possession of the knife.

Irrelevant considerations

[8] Mr Minchin identified passages in the decision where the Judge referred to the appellant making himself distinctive not only by his appearance but by his conduct, that his protest appeared to be directed at the police and that she formed the clear impression he was an experienced protestor. He submitted they showed the Judge was distracted by irrelevant considerations.

[9] There is nothing in this submission. The issue before the District Court was whether there was sufficient evidence for the Judge to be satisfied beyond reasonable doubt that the appellant had assaulted Constable Clayton by deliberately expelling mucous at him. The Judge reviewed the relevant evidence relating to that and made a credibility finding against the appellant, which she was entitled to do, and which, on my review of the evidence, was inevitable.

Defence evidence not considered

[10] Mr Minchin made much of the fact that the appellant was not arrested initially and that he was only arrested when he returned to the scene with his notebook and pen about 10 minutes after the incident. He submitted it was inherently improbable that the appellant would have returned to the scene in that way if he had assaulted the constable. That submission is entirely speculative. It is not

supported by evidence. The appellant did not give direct evidence to that effect. Against that, there was evidence that the Tactical Policing Unit members are taught not to break the line when facing protestors until instructed to do so by a superior officer. That is the reason the line was not broken and the appellant arrested at the time he committed the assault. Matters had calmed down by the time the appellant returned 10 minutes later and he was arrested. Further, there are a number of reasons why the appellant may have returned. As Mr Whittington submitted, he may not have appreciated that what he had done amounted to an assault at law. If he did realise it was an assault, he may have thought he had got away with it because he had not been arrested immediately and felt it was safe to return.

Contradictory prosecution evidence

[11] Mr Minchin noted that the District Court Judge preferred the police evidence to that of the appellant, particularly that of the Inspector referring to it as particularly telling. He submitted that the Inspector had been mistaken as to when the arrest occurred and the Judge should not have relied on his evidence about the assault. The contradiction in the Inspector’s evidence was not in relation to the matter in issue, which was whether the appellant had assaulted Constable Clayton in the way alleged or not. The Inspector thought that the arrest followed the assault when in fact there had been a gap of approximately 10 minutes between the assault and the arrest. The Inspector’s inaccurate recollection as to the timing of the arrest was not material. Both his and Constable Lawrence’s evidence about the incident itself was consistent and detailed. It is understandable they would remember the incident of the assault itself rather than the timing of the arrest.

Sentence appeal

[12] Mr Minchin submitted that the evidence of Constable Clayton himself could have supported a suggestion of recklessness on the part of the appellant rather than a deliberate action. The Judge was however entitled to take the view, as she did, that the offence was an intentional assault. He also submitted that the appellant had been provoked by the police actions. While provocation is properly a matter to be

considered the Judge clearly rejected the appellant’s evidence about the incident. She found that self-defence was not raised and it could not arise on the facts. It is implicit she rejected that the appellant was provoked. The reality of the situation is to be found in the appellant’s own evidence. Immediately before the assault he was walking up and down the police line berating the police officers. His evidence was:

A. ... Everyone – all the police were looking straight ahead, not even looking at me. It made me angrier, and I –

Q. So what did you do after that?

A. That was when I got vocal with them. At that point, I hadn’t got vocal. As I got – and as I got angrier, I started cussing them.

[13] In cross-examination his evidence was:

Q. ... You’ve heard the evidence from the three officers before, today, all their evidence supports the case, that you are ranting and screaming at the police, that’s true, isn’t it?

A. At one particular point I was, not – unlike what they say.

Q. You said, there was no response from the police when you were doing this, that’s correct, isn’t it?

A. Yes.

Q. And you said, “This made me angrier.” That’s true, isn’t it? A. Yes.

[14] The appellant became angry and frustrated that the police refused to respond to the abuse he directed at them. He lost control and responded to that by assaulting the police officer in the way described. The sentence of reparation of $500 was entirely appropriate. Police officers should not be subjected to assaults of this or any other nature when carrying out their duty.

The possession of the knife

[15] The appellant’s evidence was that prior to the demonstration he had been working on his campervan at a garage and used the knife in question to strip some wires. When he realised he was late for the protest he had dashed off, putting the

knife into a front pocket in the hoody he was wearing. He said he had entirely forgotten it was there, and was not consciously in possession of it.

[16] To support his case he sought to produce before the District Court an affidavit from the owner of the garage who had seen the appellant working on his campervan. The Judge apparently took the affidavit in, read it but then returned it and did not refer to it in her decision. The Judge was entirely correct in her approach. The evidence was not admissible under the Evidence Act 2006. The witness was not “unavailable” in terms of the Act. In any event the affidavit evidence was not probative of any material fact in issue. It simply confirmed the appellant had been working in the garage with the knife earlier in the day. That was not the issue. The issue was whether the appellant was in possession of the knife in a public place without a reasonable excuse. The appellant said that he usually carried a pocketknife but that as he had lost his pocketknife he picked up the knife he had been using to strip the wires. That explanation is more consistent with a defence that the appellant was in possession of the knife with a reasonable excuse. But that defence was not raised in the District Court. In any event, it is answered by the point Mr Whittington made that, while it may be reasonable for a workman to carry a knife used for the purposes of his work from his home to work, it cannot be a reasonable excuse to have picked up a knife to carry it to a public area for the purpose of attending a public protest.

[17] In the alternative Mr Minchin submitted that the Judge had made an error of logic in concluding that the appellant knew the knife was in his pockets by inferring that he had concealed it because he had not produced it when asked to empty his pockets by the police. Mr Minchin submitted that was supportive of the appellant’s explanation that he had forgotten he had it.

[18] The inference the Judge drew was open to her. She heard the evidence. She rejected the appellant’s evidence as not credible. As the Supreme Court observed in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at para [13]:

... The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial

judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) and Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 (PC).

The District Court Judge heard and saw the witnesses and did not accept the appellant’s evidence he had forgotten he had the knife. My review of the evidence, even without the benefit of seeing the witnesses, supports her finding.

[19] Further, there was no reason for the appellant to put the knife in his pocket other than his desire to carry a knife, as he usually did. That is consistent with his evidence that he normally carried a pocketknife but as he had recently broken it he just grabbed the kitchen knife. He was carrying this knife in place of the pocketknife. Also, as the Judge noted, the appellant said that he deliberately emptied his pockets of other items prior to a protest. That was the reason he had to return to the car to get the paper and pen. Despite emptying his pockets he kept the knife on him. That also supports the Judge’s finding that the appellant deliberately kept the knife with him. There can be no suggestion of a total extinction of memory as in Martin v Police (1987) 3 CRNZ 373 given the very short passage of time between him having the knife and going to the protest.

Result

[20] None of the grounds advanced by the appellant to challenge the convictions and sentence are made out. The appeals against conviction and sentence are

_dismissed.

Venning J