B v Police HC Hamilton CRI-2009-419-58 [2009] NZHC 2267 (9 December 2009)

Last Updated: 12 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI-2009-419-000058}

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 9 December 2009

Counsel: Appellant in person

P Cornege for the respondent

Judgment: 9 December 2009

_{(ORAL) JUDGMENT OF STEVENS J}

Solicitors/Counsel:

Crown Solicitor, PO Box 19173, Hamilton 3244

Copy to:

E B , 5 McDonald Mine Road, R D 1, Huntly 3771

B V NEW ZEALAND POLICE HC HAM CRI-2009-419-000058 9 December 2009

[1] This is an appeal against conviction and sentence by Eugenio B (the appellant) on one charge under s 4(1)(c)(i) of the Summary Offences Act 1981. The appellant was convicted, in the District Court at Huntly when appearing on summons before Judge P I Treston. The charge was that within a public place, namely, McDonald Mine Road, the appellant used insulting words being reckless whether any person was alarmed or insulted by those words. The Judge’s reasons are contained in a decision dated 8 July 2009.

[2] The appellant submitted that the Judge was wrong to accept the evidence of the complainant over that of the appellant. He also made certain allegations regarding the possibility that the complaint might have been lodged because of his racial background.

Factual background

[3] The appellant lives at 5 McDonald Mine Road, Huntly West. Mr Donovan is the appellant’s neighbour, living at number 3, and has been there for three and a half years. Mr Donovan runs a small water treatment company from that address. Mr Donovan has known the appellant since he moved in and from time to time there has been trouble between the two neighbours. There have been discussions about neighbourly issues arising, but these have not been successful in resolving such issues.

[4] At the hearing, Mr Donovan adduced evidence from his diary referring to the fact that from time to time the appellant used insulting words towards him and his fiancée and sometimes his brother.

[5] On 20 September 2008, the appellant is said to have used the words, “mother fucking slut, bastards, homosexual brothers fucking each other in the arse” to Mr Donovan. These are the words that led to the formal charge in the information already referred to.

[6] The Judge heard the evidence adduced in support of the charge and then found:

[4] The area concerned is clearly a public place and the volume with which the alleged insulting language was being given by the defendant, clearly as a matter of common sense and from the photograph that the defendant adduced in cross-examination, that was available to be heard by the public even on the street in McDonald Mine Road. I am satisfied that the allegation occurred in a public place and the defendant, who has declined to give evidence although he was given his right to do so, has not really, in my view, made any inroads into the evidence of the prosecution witness. The words were not specifically denied when he was interviewed subsequently by Sergeant Banfield on 21 October 2008. The defendant simply said that the complainant was lying and that the lyrics to a song, which the complainant said was sung, mainly the words “homosexual, brother fucking each other up the arse”, were wrong. He said he did not actually sing it. It was not directed at them necessarily, but it was a bit of retaliation and I find that significant. The defendant said to the officer, “Not really directed at them.”

[5] The prosecution in this case must prove the essential ingredients of the charge beyond reasonable doubt. The burden of proof is on the prosecution from the beginning to the end of the summary trial. The defendant is not obliged to give evidence. In this case he has not done so but I draw no adverse inference against him for failing to give evidence. That is his right. The standard of proof of the prosecution must attain as proof beyond reasonable doubt. That means that the Court must be sure that the essential ingredients of the charge have been proved. I have already dealt with some of them. The date and place does not appear to be in dispute at all. The identity of the defendant is not in dispute. It was made clearly, and there is no reason to doubt that. After all the parties are next door neighbours.

[6] I have already said that the allegations occurred within hearing of a public place, namely, McDonald Mine Road. I am satisfied beyond reasonable doubt, I am sure, that the defendant did address the words as set out in the information and that he was reckless as to whether or not any person was alarmed or insulted by those words. Clearly, on the evidence of the complainant he was insulted on that day. It caused him disease. It had caused him disease on other occasions. I do not use those other occasions necessarily to back up the allegation on this day. They are simply part of the fabric, part of a background of the whole matter and clearly this is what could be called a representative charge, but in any event, I am satisfied beyond reasonable doubt, that is I am sure, that this defendant indeed within hearing of a public place used insulting words, being reckless whether any person was alarmed or insulted by the words, and clearly the words used are insulting. A matter of common sense would dictate that. They can be nothing other than insulting. Bearing that in mind, I find the information proved.

[7] As a result of these findings, the Judge convicted and fined the appellant

$250, court costs of $130 and witness’ expenses of $65.

Approach on appeal

[8] A defendant has a general right of appeal against conviction or sentence pursuant to s 115 of the Summary Proceedings Act 1957. A general appeal is by way of rehearing: see s 119. The High Court’s general powers on rehearing are outlined in s 121.

[9] The Supreme Court in Austin Nichols & Co Ltd v Stichting Lodestar [2008]

2 NZLR 141 considered the principles applicable to general appeals. Giving the judgment of the Court, Elias CJ stated at [16] that:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[10] According to the Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, an appellate court should not reverse a factual finding unless compelling grounds can be shown for doing so. However, this approach needs to be read in the light of the Supreme Court decision in Austin Nichols. There, care was taken to limit the deference advocated in Rae to instances where findings of fact were credibility-dependent. The Court stated at [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.

[11] Accordingly, in a general appeal, the appellant has the onus of satisfying the appellate court that it should differ from the original decision. But the appellate court must come to its own view on the merits: see Austin Nichols at [3]-[5]. I

therefore approach the appeal against conviction on the basis that, after considering the record and the submissions made on behalf of the parties, I should make an assessment of the matters of fact and degree in the case under appeal. I should consider the reasoning of the District Court Judge in his decision in order to determine whether the appellant has established that the decision is wrong.

Applicable law

[12] The appellant was charged under s 4(1)(c)(i) of the Summary Offences Act, which provides:

4 Offensive behaviour or language

(1) Every person is liable to a fine not exceeding [$1,000] who,—

...

(c) In or within hearing of a public place,—

(i) Uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words;

Submissions for the appellant

[13] The appellant appeared for himself. He submitted that there was insufficient evidence upon which to convict. Such submissions were largely a repeat of the written outline of the appellant’s concerns contained in his notice of appeal.

[14] In that document, the appellant had also raised the question of whether the accusation was made by Mr Donovan because he was of a different ethnic group, mentioning specifically a comment “why don’t you go back to Italy”. In court today, the appellant very fairly accepted that, although such statements had been made, it would be an exaggeration to say that the accusation was racially motivated. This was a very fair concession and may well be the start of an attempt to repair the relationship between the two neighbours.

[15] The appellant also quite properly did not pursue any suggestion that the decision of the Judge was based on his racial origins, nor on any discriminatory basis.

Submissions for the respondent

[16] Counsel for the respondent filed helpful written submissions. Mr Cornege correctly characterised the appeal as being on the basis that there was insufficient evidence upon which the Judge could have made factual findings that the appellant used the language alleged in the information.

[17] Counsel submitted that the decision was clearly open to the Judge and that there was no basis for suggesting that either the accusation or the decision was based on discrimination.

Discussion

[18] The appellant’s main contention related to there being insufficient evidence upon which to support a conviction. A secondary aspect of this was that the Judge was wrong to accept the evidence of the complainant, Mr Donovan, without independent evidence to support it. I am satisfied that there was clear and compelling evidence available to the Judge in the court below.

[19] The Judge clearly appreciated the contention by the appellant that when Mr Donovan gave his evidence he was lying. But the appellant did not really make any significant inroads into his challenge to the evidence of Mr Donovan when he was carrying out his cross-examination of him in the court below.

[20] The observations of Gendall J in Reid v Police HC PMN CRI-2004-454-81

23 September 2004 are apposite in this case. At [10] the Judge said:

[10] Appellate Courts can only interfere with factual findings of the lower Court if the trial Judge was clearly wrong or there was no evidence upon which he or she could reasonably make factual findings. Frequently this Court is required to hear appeals which are really based on questions of fact.

This Court cannot substitute its judgment on matters of fact or credibility for that of the trial Judge unless there was no evidence at all to justify his findings. Assessment of what is reasonable force is a matter for the finder of fact, whether it be a Judge or a jury. That assessment cannot be the subject of "second guessing" by an appellate Court unless it is clearly wrong. It has not been shown that that was the case or that the prosecution had failed to exclude as a reasonable possibility that the self-defence was available to the appellant.

[21] The Judge was best placed to make an assessment of Mr Donovan’s veracity and reliability and the evidence as a whole. Although I am required to make my own assessment of the facts and the evidence, I do not consider that this is a case where the appellant has been able to show that the Judge was incorrect in his assessment of the evidence. I am satisfied that there was clearly sufficient evidence on which the conviction could reasonably be supported.

[22] As the issue of racial discrimination was very properly not advanced in this court, I do not need to consider it.

[23] Moreover, the appellant did not pursue any specific challenge to the fine. I have considered the fine that was imposed and it seems reasonable in all the circumstances.

[24] Accordingly, the appeal must be dismissed.

_{[25] The respondent made no application for costs and no order is made.}

Stevens J