C v Police HC Auckland CRI-2008-404-317 [2009] NZHC 135 (16 February 2009)

Last Updated: 26 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2008-404-000317}

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 16 February 2009

Appearances: Mr J R F Anderson for Appellant

Mr G Kayes for Respondent

Judgment: 16 February 2009

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

Solicitors:

Crown Solicitor, Auckland

Counsel:

_{Mr G Kayes, Auckland}

C V NEW ZEALAND POLICE HC AK CRI-2008-404-000317 16 February 2009

[1] Mr C faced a charge in the District Court of assaulting a female. The victim of the alleged assault was one Ruth Cooper, with whom he had been involved in a relationship for some period prior to the incident that gave rise to the charge.

[2] At the end of a defended hearing on 8 October 2008 Her Honour Judge Doogue found the charge proved and convicted Mr C . He now appeals to this Court against his conviction.

Factual background

[3] The factual background to the matter can be stated relatively briefly. At the time of the incident in question, Mr C resided at a residential address on Waiheke Island. On the evening of 26 January 2008 he returned to that address to find Ms Cooper in his bed. He was apparently tired and then slept for some time. When he woke up in the early evening he found Ms Cooper still there. At that point he indicated to her that he wished to go out and visit some friends. An argument then arose. Ms Cooper says that this led to Mr C slapping her. She then picked up a bottle that she accepted was at least partially full of some liquid and advanced towards him. She says that, at that point, he grabbed her by the arms and head-butted her. Mr C denied this and said that he did not head-butt Ms Cooper at any stage.

[4] Her Honour Judge Doogue accepted Ms Cooper’s evidence that the slaps and head-butt occurred. She also concluded that that conduct could not amount to self- defence in the circumstances as Mr C believed them to be. The Judge therefore found the charge proved and convicted Mr C .

Grounds of appeal

[5] Counsel for Mr C advances several grounds of appeal.

[6] First, he contends that the Judge wrongly prevented him from adducing evidence from both Ms Cooper and Mr C regarding Ms Cooper’s propensity to act in a violent manner towards Mr C .

[7] Secondly, he contends that the Judge was wrong to reject a defence based on self-defence of Mr C ’s person and/or property.

[8] Thirdly, he argued that the Judge could not reasonably have accepted Ms

Cooper’s evidence and rejected that given by Mr C .

The propensity issue

[9] This issue arises because there were several references in the evidence to earlier and later incidents involving Mr C and Ms Cooper. Counsel for Mr C contends that these showed that Mr C had been the subject of other attacks by Ms Cooper, and that this established a propensity on her part to use violence towards him. He submitted that, although the Judge allowed some of this evidence to be admitted, she effectively stopped him from leading further evidence about incidents of this type.

[10] Propensity evidence in the present context may have been of some relevance if Ms Cooper had denied that she had advanced upon Mr C carrying the partially full bottle. The evidence makes it clear, however, that she accepted quite candidly that she had picked up the bottle and that she must have done so in a threatening manner. She also accepted that the bottle was smashed after she and Mr C came into close quarters.

[11] In those circumstances I do not consider that propensity evidence would have assisted the Judge to any great degree, if at all. Earlier incidents could only have been of peripheral relevance given that they were discrete in nature, as was the incident that gave rise to the charge that Mr C faced.

[12] To the extent that the Judge may have ruled that such evidence was not relevant, she could not be said to have been in error. I therefore do not accept that

any failure by the Judge to allow propensity evidence to be adduced could have had any material effect on the outcome of the hearing in the Court below. Neither can it assist Mr C on appeal.

Rejection of self defence

[13] The Judge did not dwell on this aspect of the case to any great extent in her decision. She merely noted at [13] that Mr C ’s evidence had been that the entire altercation was one in which he reacted in self-defence because Ms Cooper was advancing towards him with a bottle and he was fearful of his safety. The Judge found that such force as Mr C did apply “was not necessary by way of self-defence”. She made this comment having expressly found that Mr C did both slap and head-butt Ms Cooper.

[14] As I advised counsel during the hearing, self-defence may have been open in the present case had Mr C restricted himself to grabbing Ms Cooper by the arms as he said he did. It is also possible that the use of slightly greater force would have been justifiable given the fact that she was coming towards him with what amounted in the circumstances to a weapon.

[15] I do not consider, however, that a headbutt in these circumstances could be viewed as a proportionate response to the threat that Mr C believed that he was facing. Any number of steps short of such an action were open to him. I accept counsel’s submission that there is no evidence as to the force of the head-butt that may have occurred. It was certainly not sufficient to produce a visible injury to Ms Cooper’s head. Nevertheless, as I have said, I do not consider that head-butting, no matter what force was used, could be viewed as a proportionate response to any danger that Mr C faced from Ms Cooper.

[16] For that reason I have no doubt that the Judge was right to peremptorily reject any suggestion that self-defence was open to Mr C as a defence to the charge.

The issue of credibility

[17] The real issue on appeal, as it was in the Court below, is that of credibility. The Judge was faced with competing versions of events. Mr C denied absolutely that he had head-butted Ms Cooper. She, on the other hand, was adamant in her evidence that the head-butting did occur. Given the fact that self-defence was not open, the issue became one of credibility between the evidence given by Ms Cooper and that given by Mr C , together with other evidence relating to surrounding events.

[18] That issue needed to be determined, however, giving due recognition to the fact that the onus of proof lay on the prosecution to establish the elements of the charge beyond reasonable doubt.

[19] In essence, the Judge preferred Ms Cooper’s version of events because it was congruent and had remained essentially unaltered throughout. She pointed out that Ms Cooper had stated in her initial statement that Mr C had head-butted her, and also that he had grabbed her with considerable force by her arms. The latter event was accepted by Mr C , as indeed it had to be, given the fact that bruising was clearly visible on at least one of Ms Cooper’s arms.

[20] The Judge reached her finding in relation to Ms Cooper’s credibility notwithstanding the fact that on 15 April 2008 Ms Cooper had visited the Victim Adviser and indicated that her initial statement was not correct. The discussion between Ms Cooper and the Victim Adviser is described in a letter that the Victim Adviser wrote to the Court on the same date. The text of that letter is as follows:

The complainant in the above case came to my office this morning and she would like the following information conveyed to the Court.

Ruth Cooper says that parts of her statement to the Police were incorrect. She denies that the defendant head-butted her or slapped her and said she told this to the Police because she was angry at the time.

Ruth says that the defendant did grab her by her upper arms and forced her out of the room.

Ruth further states that she does not wish there to be a non-association condition to the defendant’s bail.

I have advised the complainant that this information is for submission to the

Judge and that the information must be true to the best of their knowledge.

The complainant has confirmed the contents of this memorandum and it is an accurate record of the information to be presented to the Court on their behalf.

[21] The Judge acknowledged this evidence but expressed the view that it was not uncommon for victims of domestic abuse to make retractions. She said that it was not uncommon for such persons to be in a position where, with a person of authority, they seek to minimise subsequently what they have stated at a time more proximate to the events in question. The Judge concluded that the retraction, in and of itself, did not seriously undermine Ms Cooper’s credibility.

[22] The Judge was also alive to the fact that there were other aspects of Ms Cooper’s evidence that were worthy of comment. The first of these was that her evidence varied in relation to the number of slaps that she received from Mr C . She initially said in her evidence that Mr C slapped her on at least two occasions. She later said that he slapped her once.

[23] Furthermore, there is no doubt that Ms Cooper presented at trial as a person in a somewhat fragile yet aggressive state. The language that she used was also entirely inappropriate for a formal hearing in the District Court. And as counsel pointed out during his submissions, Ms Cooper on several occasions said that she could not remember what had happened on the evening of the incident in question. These matters, I am sure, are what prompted the Judge to describe her as being “immature” and giving her evidence in an “unattractive manner”.

[24] All of these matters needed to be weighed in the balance when assessing the weight to be given to Ms Cooper’s evidence.

[25] As against that, there was also a degree of inconsistency between the version of events that Mr C gave on the evening of the incident and his evidence at trial.

[26] The incident at Mr C ’s address is said to have occurred at approximately 7 pm. After Ms Cooper called the police they located Mr C at another address on Waiheke Island shortly after 9 pm. Mr C said that he had been drinking during the period between the incident involving the complainant and the time at which he was spoken to by the police.

[27] The notebook entries of the constable who interviewed Mr C show that the following exchange occurred:

A. Under caution I said to Mr C

Q. Your girlfriend says that you slapped her, is that right?

A. Mr C replied, Maybe. I don’t know. I remember grabbing her and throwing her against the wall. She threw a bottle at me.

Q. She says that you slapped her. A. I don’t think I did.

Q. How did she get the bruises on the arms? A. He replied, when I grabbed her.”

[28] At trial his evidence was different. He said that he asked the complainant to leave his address when he woke up and found that she was still there. He said that she then got really upset and picked up the bottle and threatened him. He said that she threatened to hit him with the bottle. He also said that he “actually thought” that she was going to hit him with the bottle. He said that when Ms Cooper made that threat he reacted as follows:

A. I grabbed her until she dropped it and then asked her to leave and she was going nuts. And I just pushed her out the doorway. Everybody in the – everybody else in the house told her to leave and then she actually did leave.

[29] I consider that there are several material differences between these two versions of events. The first is that when he was initially questioned by the police Mr C expressly said that he had thrown Ms Cooper against the wall. He did not repeat that statement in his evidence.

[30] Secondly, he told the police that Ms Cooper had actually thrown the bottle at him. In evidence at trial, however, he said no more than that he thought that she was going to hit him with it.

[31] Added to this is the undoubted fact that Mr C had drunk alcohol immediately after this incident and, as the Judge found, this may have affected his recollection of events.

[32] All of those matters suggest to me that there were inconsistencies in the evidence of both parties. As regards the actual incident itself, however, I consider that those contained in the evidence relating to what Mr C said are the more material.

[33] Next, I think that I have to place weight in the present case on the fact that the Judge had the opportunity to see and hear the witnesses giving evidence. Although this Court has the ability to reach its own conclusions on the evidence, it will hesitate to do so when credibility is very much in issue and where the Court at first instance has the advantage of seeing and hearing the witnesses when their evidence is in direct conflict.

[34] In a case such as this it was not possible to decide issues of credibility by, for example, measuring the consistency of the evidence at trial against contemporaneous documentation. It came down to an assessment of the evidence of the two key witnesses. As a result, I consider that the Judge at first instance had a very real advantage that this Court does not enjoy.

Conclusion

[35] Overall, I have reached the conclusion that the Judge’s finding as to credibility was one that was open to her on the evidence. She has explained the reasons why she accepted Ms Cooper’s evidence notwithstanding the issues that it presented. It would be wrong, in my view, for this Court to substitute its own view regarding the credibility of the two protagonists for that of the Judge who saw and heard both parties.

[36] It was therefore open to the Judge to be satisfied on the basis of the complainant’s evidence that the charge had been proved beyond reasonable doubt.

[37] The appeal is therefore dismissed.

Lang J