M v Police HC Wellington CRI-2009-485-21 [2009] NZHC 1869 (26 June 2009)

Last Updated: 18 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2009-485-21}

M

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 23 June 2009

Appearances: The appellant in person

M Snape for the respondent

Judgment: 26 June 2009

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] On 5 November 2008 Mr M , the appellant, was found guilty by Judge Broadmore, after a summary trial in the District Court at Wellington, of intentionally damaging a motor vehicle. The Judge ordered Mr M to appear for sentence if called on within six months, and to pay compensation to the owner of the vehicle of

_$1,500.00.

M V POLICE HC WN CRI-2009-485-21 26 June 2009

[2] Mr M now appeals his conviction. He says that the Judge erred in law in the way he approached the question of the onus of proof, was or appeared biased, and made a wrong decision on the credibility of the prosecution witnesses.

Background

[3] On 10 July 2008 at about 10.00pm, the appellant and his ex-partner, Ms Graham, went to the address of the complainant, Ms Cootes, and banged loudly on her door. The appellant and Ms Graham were demanding the return of their cat. It would appear that the complainant had earlier taken the cat to the Cats Protection League, and – according to the appellant – had trespassed on his property to do so. The complainant did not open the door, and told the appellant and Ms Graham to go away.

[4] According to the complainant, the appellant then walked down the road, picked up a piece of wood and began trying to smash the headlights of a vehicle parked there. The vehicle was the property of the second complainant, Ms Bovroski. When the headlights failed to break, he picked up a brick and began to smash the tail lights of the vehicle. He then walked to the front of the vehicle and smashed the front headlights.

[5] This evidence was disputed by Ms Graham, who claimed that the appellant was always in her sight and that she did not see him cause any damage.

[6] The appellant was located a short time later by Police on Karori Road and was arrested for causing intentional damage.

District Court decision

[7] In a brief judgment, Judge Broadmore concluded that he was satisfied beyond reasonable doubt that the account given by the complainant was true. He explained that he had come to that conclusion because:

a) The evidence of the complainant was clear, and she was in a position to see what had been going on. She had also given a running commentary to the Police during a 111 call. The Judge inferred that during that call she had contemporaneously reported to the Police that the appellant was damaging the car. He so inferred because it was on the basis of that information that the Police considered they were in a position to arrest Mr M for the offence of causing intentional damage.

b) The photographs the complainant took showed damage consistent with the accounts she gave.

c) The photographs also showed a place from which a brick could have been taken to cause that damage.

Discussion

Leave to appeal out of time

[8] Pursuant to s 116 of the Summary Proceedings Act 1957, an appellant must file a notice of appeal within 28 days after he or she has been sentenced or otherwise dealt with. The appellant was sentenced on 5 November 2008. His notice of appeal was not filed until 25 February 2009, outside the time prescribed by s 116. The respondent did not, however, raise this issue. In the circumstances of this appeal, I grant leave to the appellant to appeal out of time.

Wrong approach to onus of proof

[9] The appellant says the Judge erred in law in the way he approached the question of the onus of proof in two ways.

[10] First, the appellant claims that the Judge put undue weight on the appellant’s lack of explanation for his actions. When stopped by Police on Karori Road, the appellant was informed of his right to remain silent and decided to refrain from making a statement. The appellant now says that the Judge drew an inference of

guilt on the basis of his failure to offer any explanation or statement regarding the incident.

[11] In the course of his oral judgment, the Judge stated, at [4]: “The defendant has not given evidence as, of course, is his right and he also gave no explanation to the police, as is his right”. In light of that clear and correct statement of the position, I am satisfied that the Judge did not put undue weight on the fact that the appellant exercised his right to silence.

[12] Second, the appellant says that the Judge proceeded on the erroneous basis that the appellant was required to propound an alternative theory as to how the damage occurred.

[13] After recording, as summarised above, the reasons why he was satisfied beyond reasonable doubt that the account given by the complainant was true, the Judge went on to comment as follows:

[7] It was not suggested to Ms Cootes in cross-examination that she might have been responsible for the damage and no other theory was propounded in cross-examination or in evidence from Ms Graham.

[8] I am aware that, simply, the exclusion of other possibilities does not amount to proof beyond reasonable doubt but having regard to the oral evidence of Ms Cootes and the photographs she took, the commentary it is clear that she gave to police communications. I am satisfied the incident occurred as she described.

[14] In my judgment, those remarks do not support the appellant’s contention. Rather I consider that at [7] the Judge was principally summarising aspects of the evidence he had heard. His remarks at [8] clearly show that he did not approach the matter on the basis that there was some onus on the appellant to provide an alternative explanation for the damage. I do not think therefore that it can be concluded that the Judge erred as complained by the appellant.

Bias

[15] The appellant submits that the Judge showed bias by playing down the significance of the argument over the cat when the complainant was giving evidence, and allowing her not to answer questions on the subject, but then finding the

appellant and Ms Graham – in the appellant’s words - “at fault for being emotive about it”. The appellant would appear to be referring, in particular, to the Judge’s reference to his having noticed that “Ms Graham flared up when the subject of the cat was raised” (at [9]).

[16] Mr Jeffries began his cross-examination by putting to the complainant that she had taken the appellant’s cat away without authority. The complainant had answered:

I don’t understand that. I’m not on trial here regarding the cat. I am here to give witness evidence about the vehicle.

[17] There was then an exchange between Mr Jeffries and the Court in which Mr Jeffries explained why he was asking questions about the cat. He said it was relevant to the inquiry the appellant and Ms Graham were making on 10 July, and also was relevant to a question of honesty. Mr Jeffries then put it to the complainant again that she had stolen the cat. She answered:

Have you got proof and witnesses to say that I have?

[18] There was a further exchange with the Court in which the Court noted that it was accepted the dispute was about the cat but that, beyond that, the Court was unsure of the relevance of the line of questioning. The matter was concluded by the Court stating:

Well, if the witness declines to answer any questions about the cat, I’m not going to make her, Mr Jeffries.

[19] Mr Jeffries replied:

Right.

[20] The evidence that the Judge would appear to be referring to in his comment that Ms Graham “flared up”, occurred in cross-examination:

Q. You were angry at these people, aren’t you?

1. I was annoyed at them. They went onto Chris’s property and stole my children’s cat. Are they allowed to do that?

Q. Well we’re not dealing with that. A. Well, we are.

Q. We’re dealing with this property.

1. Because that’s why I was angry. What happens if they go and take my children off my property? Is that all right? Thank you.

[21] Whilst the Judge might have allowed Mr Jeffries further time to pursue the complainant’s actions as regards the cat, given that those actions would appear to be part of the context for the events in question, I do not think he was in any way at fault for not doing so. This was a summary trial, before a Judge alone. The Judge was well aware that the context for the incident was the complainant’s actions as regards the appellant’s cat. The complainant had accepted she and her friend had taken the appellant’s cat to the Cat Protection League. As the Judge said in the second paragraph of his judgment, that was a dispute which had “obviously caused passions to be aroused on both sides”. Being well aware of that context, and the subject of the trial being the charge of intentional damage against the appellant, there was little point in pursuing the matter further.

[22] When it came to an assessment of Ms Graham’s evidence, the Judge was in my view entitled to consider the effect of that background dispute. Ms Graham accepted that she and the appellant had gone to the complainant’s house at night, and had banged loudly on the door. In assessing the events overall, and the two competing explanations provided, the Judge did so on the basis that feelings were running high on both sides. There was little doubt that the complainant was influenced by the appellant and Ms Graham banging on the door, and shouting at her. There was little doubt that Ms Graham felt strongly, as indicated by her conduct and her concern about the cat. This was, in my view, what the Judge was acknowledging when he referred to Ms Graham “flaring up”. In my view, to reach such a finding is not to display bias.

Credibility

[23] The appellant says that the complainant and the Police officer lacked credibility, and that the Judge should not have preferred the prosecution witnesses’ evidence in the face of the “categorical denial by the defence witness that the event took place at all”. As regards the complainant, the appellant says that her credibility was affected by her obstructive manner and her refusal to answer questions put to her

by defence counsel. As to the Police officer, the appellant says that the officer first claimed to have returned to the scene to take photographs of the damaged car, but later admitted that it was in fact the complainant who had taken the photos.

[24] It is generally difficult to successfully appeal against a trial Judge’s conclusion regarding a witness’s credibility: see R v Munro [2007] NZCA 510; [2008] 2 NZLR 87 at [76]. This is because the Judge had the opportunity to hear and see those witnesses giving evidence, which the Court on appeal does not.

[25] It is true that the complainant refused to answer some questions put to her by the defence counsel, in particular two questions suggesting that the complainant had “stolen” the appellant’s cat. In my judgment, that factor does not make the Judge’s general acceptance of the complainant’s evidence unreasonable. As already noted, the Judge was well aware, and recorded early in his judgment, that feelings were running high on both sides. He explained his reasons for accepting the complainant’s evidence as regards the charge of intentional damage of the motor vehicle. Moreover, he did not accept the complainant’s assertion that the appellant had intentionally damaged spouting attached to her house. His decision on the complainant’s credibility was clearly one open to him.

[26] As for the Police officer’s credibility, the appellant is referring to the fact that in a written brief prepared for the purposes of the trial and made available to the defence, the Police officer’s evidence was recorded as being that he had taken the photographs. The Police officer explained in his evidence-in-chief that that was not in fact true, that the person responsible for preparing the brief had misunderstood the position, and that the complainant had taken the photographs and emailed them to the Police. There is nothing in those matters that can affect the Judge’s decision.

Conclusion

[27] For the reasons set out above, this appeal is therefore dismissed.

“Clifford J”

Solicitors: Christopher M , 71 Cecil Road, Wadestown, Wellington

The Crown Solicitor, Wellington for the respondent ([e-mail])