Matches v Police HC Auckland CRI-2011-404-000221 [2011] NZHC 1885 (26 October 2011)

Last Updated: 30 January 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-000221}

BETWEEN BRENT LEONARD MATCHES Appellant

AND POLICE Respondent

Hearing: 30 August 2011

Appearances: Appellant in Person

R Savage for Respondent

Judgment: 26 October 2011

_{JUDGMENT OF WHATA J}

This judgment was delivered by Justice Whata on

26 October 2011 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

Brent L Matches, 91 Rukutai Street, Orakei, Auckland

MATCHES V POLICE HC AK CRI-2011-404-000221 26 October 2011

[1] This is an appeal against conviction for assault and for intentional damage, and against sentence of a fine of $900 plus Court costs of $132.89 and reparation of

$327.38.

[2] The appellant, Mr Matches, claims that the District Court Judge erred by failing to allow evidence that would have shown that the complainant was untruthful. In particular the appellant says that he should have been able to adduce evidence that showed:

(a) The complainant lied when he denied it was his voice on a 111 audio recording; and

(b) The complainant lied about events leading up to the alleged assault.

Background

[3] The context to this appeal, including the respective versions of the events, is usefully detailed in the District Court judgment, which I now summarise.

[4] At 7.15 am on 19 May 2010, the complainant, Mr Welch, was driving his Audi car along Kepa Road when, he said, a motor scooter pulled out Kurahaupo Street onto Kepa Road. It was his evidence that the scooter came onto a median strip so that it could merge with the traffic. The scooter was by his rear passenger door area, so he sped up so that the scooter could come in behind him. The scooter did, but later pulled out and passed him.

[5] Mr Matches was on the scooter. In the District Court, he gave evidence that he did not come out of Kurahaupo Street, but out of another street Kupe Road.

[6] Mr Matches said that it was heavy traffic when he turned onto Kepa Road. He agreed that he was on the median strip trying to merge. On his version of events, the Audi car driven by Mr Welch sped up, effectively stopping him from getting into the line of traffic. Mr Matches said that he slowed down, describing the situation

like ―a bit of a cat and mouse game that went on, ... for about 200 metres”.[1] Mr Matches said that the Audi car stopped at a pedestrian crossing, after which he overtook it.

[7] Both the scooter and Audi travelled in the same direction to a roundabout at the bottom of Orakei Road. The Judge then described the different versions of events that were described to him in evidence as to what happened at this point:

[5] ... Mr Welch’s version of events at this point in the journey was that just prior to this, he had seen Mr Matches hold his legs out away from the motor scooter and he described that as putting his feet out to the side of the scooter, and that obviously sent some kind of message to him. He said that they were both on the roundabout, in what I will describe as the inside lane, meaning the lane closest to the roundabout in the middle of the road, and he said that as we went to get off the roundabout to go along Shore Road, he moved over into a left-hand lane and that he got past the motor scooter, he described being keen to get away from it because of what had happened shortly before.

[6] Mr Matches’ view of this was really quite different. He said that Mr Welch’s vehicle followed him around what I have described as the inside lane, and that they both went onto Shore Road, with Mr Welch going first. He said about 60 to 80 metres along Shore Road that Mr Welch’s Audi overtook him and to do so that it went onto the wrong side of the road in what he clearly thought was a dangerous manoeuvre, and that when the car then came back on the correct side of the road, in front of Mr Matches’ motor scooter, it cut him off. That version of events was not put to Mr Welch, certainly not in that way.

[7] What was clear to me from Mr Matches’ evidence is that he felt that Mr Welch had behaved inappropriately on the road at both of those two incidents that I have described, and clearly, Mr Welch’s view of it was that he had not done anything wrong at all.

[8] In evidence, Mr Matches said that he stopped for a minute to collect himself after the series of events at Shore Road. He then got back on his bike and travelled to work in Newmarket.

[9] He caught up with Mr Welch (who also works in Newmarket) at the traffic lights on the corner of Ayr Street and Parnell Road. Judge Cunningham said that at this point:

[10] ... Mr Matches parked his bike and got off it in front of Mr Welch’s car. He approached the driver’s window, and Mr Welch wound the window

down, they both agree about that. He then accused Mr Welch of cutting him off twice and Mr Welch acknowledged that that was said. It is what happened next and what is said to form the substance of the assault charge that is in dispute.

[11] Mr Welch’s view of it is that Mr Matches put his hand through the open car window and grabbed his shirt. Mr Welch said that in order to get him away from him, he grabbed onto the straps on the backpack which Mr Matches was wearing, no doubt to gain some traction, and pushed him backwards so as to get Mr Matches out of his car. He described Mr Matches as being angry and aggressive.

[12] Mr Matches’ view of this aspect of the matter is that he agrees that he pointed his finger at Mr Welch through the car window, and he said that what happened was that Mr Welch then pulled his arm into the car and that he pushed Mr Welch to get away from him. He acknowledged that that involved him having some contact with Mr Matches’ chest area. So he denies that he assaulted Mr Welch, rather, he says, that Mr Welch assaulted him.

[10] In terms of the intentional damage of Mr Welch’s car, it was agreed that Mr Matches kicked the wing mirror on the left-hand side of the car and that it was damaged. Mr Welch viewed this as an unprovoked attack on his car. Mr Matches however says that by this time, the police had been called and that Mr Welch was driving the car at him deliberately and that, in anger and because Mr Welch was also trying to get away, that he kicked the mirror, in effect, because he thought that Mr Welch was trying to use the car as a weapon against him. It was not put to Mr Welch that he deliberately tried to run Mr Matches over, but it was put to him that he tried to ―nudge‖ Mr Matches, which he denied.

[11] Mr Welch disagrees and said that after the assault, the lights went green and he tried to get away from Mr Matches by reversing his car to then drive left, past the bike. He said that has he pulled over to the left-hand side of the road, that Mr Matches kicked the wing mirror on the left-hand side of the car.

Reasons for conviction

[12] The key reason for the conviction is set out at paragraphs [18] and [19] of the

District Court judgment:

[18] I find that Mr Matches did assault Mr Welch. My reasons for that include the following. What Mr Welch says happened, namely that he was grabbed by the shirt by Mr Matches, is consistent with what an eyewitness

said about the matter, that is a Ms Soheili, who was in the car directly behind Mr Welch’s car. She described Mr Matches going to the driver’s side and reaching into the car and pulling the driver toward the door. That is absolutely consistent with what Mr Welch said in the sense that his shirt was grabbed in the chest area. He described that two buttons came off it. This also has some support from what another witness, Mr Robert Francis, said, namely he told me that he was parked on a hill in Ayr Street on his way into the city, he saw someone who had walked onto the road and approached a car, that was Mr Matches, and he said that he saw that person put his hand inside the car. It was not put to Mr Francis that he was pointing, but certainly he said that he saw the person put his hand inside the car.

[19] The second reason that I find that an assault took place is that I found Mr Welch to be a credible witness. The allegation by Mr Matches that Mr Welch tried to pull him into the car defines common sense. Both Mr Welch, Mr Matches himself and other people who were called who were eyewitnesses, all described how Mr Matches was angry. It makes absolutely no sense to me that you would pull an angry man into your car.

[13] The upshot of this is captured by the following observation at paragraph [20]:

[20] Associated with that aspect of the matter is that all the witnesses agreed that it was Mr Matches who was the aggressor, and not Mr Welch.

[14] In relation to the specific issues under appeal, it will be immediately apparent that they are fundamentally about the credibility of the complainant. The plaintiff wanted to produce further evidence to show that Mr Welch, the complainant, was a liar.

[15] I will deal with each allegation in turn. Before doing so I briefly set out my jurisdiction on appeal.

Jurisdiction

[16] The appellant has a right of appeal against conviction and sentence pursuant to s 115 of the Summary Proceedings Act 1957. The appeal is a general appeal and is to be by way of re-hearing.[2] Therefore, the normal appellate principles as

prescribed in Austin Nichols & Co Inc v Stitching Lodestar[3] apply. Elias CJ,

_{delivering the judgment of the Court stated the main principle at [16]:}

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.

[17] It should be recalled, however, that it remains orthodoxy that some respect may be given to the findings of the Court at first instance on questions of credibility and reliability.[4]

The allegations

Allegation 1: the phone call

[18] The following exchanges set the context for the first allegation, namely that the complainant lied about whether it was his voice that could be heard on an audio recording.

[19] The following are extracts from the transcript of cross-examination of Mr

Welch, the complainant:

CROSS-EXAMINATION CONTINUES: MR SPEED

Q. And did [Mr Matches] accuse – did he say, ―Did you pull me into the car, you’re not even saying no are you. Can you get someone here please.‖ This is as Mr Matches was speaking to the police operator. You didn’t hear him say anything like that?

A. No.

...

Q. When he was on the cellphone, do you remember that?

A. I – you keep coming back the cellphone; he wasn’t speaking on the

cellphone when he was speaking to me.

Q. Did you say to him at one stage, ―So can you pay for my car?‖ Do you say that you never said that to him whilst he was on the cellphone talking to you?

A. Sorry I – as I said, he wasn’t speaking on the cellphone anywhere near me. He was speaking on the cellphone away from me when he was over by his bike.

[20] Then the transcript records at page 20:

Q. I’m going to play to you, Mr Welch, a recording of a telephone conversation between Mr Matches and the police operator. This is on the morning in question. There’s a voice in the background which I believe is yours. I just wanted to identify whether that’s your voice or not. If I could just, with Your Honour’s leave, play that.

RECORDED TELEPHONE CONVERSATION BETWEEN DEFENDANT AND POLICE OPERATOR PLAYED

Q. Do you hear a voice in the background saying, ―Look what you’ve

done to me mate[?]‖

A. No.

RECORDED TELEPHONE CONVERSATION BETWEEN DEFENDANT AND POLICE OPERATOR CONTINUES

Q. Is that your voice? A. No, it’s not.

[21] The plaintiff says that Mr Welch lied about the above matters and he wanted to adduce evidence about Mr Welch’s telephone number, presumably leading to evidence that ultimately showed that it was Mr Welch’s voice.

[22] My response to this can be stated succinctly. Even if there was evidence showing that it was the complainant’s voice, it does not mean that the complainant lied. He may have simply been mistaken. It is doubtful this would have caused the District Court Judge to change the assessment of credibility in any way. Significantly, the critical evidence against the appellant is the independent eyewitness testimony. Whatever the complainant said, independent witnesses observed the assault:

Robert Joseph Francis

Q. Now, after you first saw them there, can you describe what occurred after you first saw the person standing by the driver’s side?

A. I noticed that the person who was on the road was, was, um, engaged in conversation with the driver of the car and then I noticed that the

nature of that engagement appeared to be aggressive. It did not appear to be, ―Hello, how are you,‖ it was – it appeared to be an aggressive conversation.

Q. And who was the aggressive party? A. The guy on the road.

Kit Pareira

Q. And when you looked out the window what did you see?

A. I saw a chap in a green fluorescent jacket in front of a blue Audi saying, yelling and saying, ―run me over,‖ and was trying to take photographs of the chap in the Audi. The Audi was quietly trying to reverse and the chap kept trying to take the photos and getting in the way.

Q. Just to pause you there. The man that you’ve described as wearing the fluro bike jacket, how would y ou describe his demeanour during this time?

A. Quite aggressive.

Evett Sharon Shoheli

Q. And after he did that, what did he then do?

A. Well then he, um, he walked towards the driver’s, the driver of the vehicle who was still seated inside his car and, um, he was kind of sitting like this for a bit and then reached into the vehicle and pulled, pulled the driver towards the, the, the door.

Q. How would you describe the scooter rider’s demeanour throughout

this time?

A. Well if you’re pulling someone towards the door, I would assume

them to be quite angry. It was very aggressive.

...

Q. Could you see what the scooter driver did when he grabbed the driver of the Audi?

A. Um, yeah he just – all he did was he grabbed him and pulled him towards, um, so it was almost like he was – my, like, idea was that he was trying to pull him out of the vehicle.

[23] When cross-examined, Ms Shoheli confirmed her recollection of events:

Q. Now did you see the gentleman on the scooter, did you see him actually make contact or touch the man in the Audi at any point?

A. Yes I did.

Q. Where did you see him touch, make contact with him?

A. Well when he reached his hand inside, and grabbed – and I saw the gentleman being pulled through to the, um, towards the door.

Q. And when you say you’re pulling, you’re touching your top?

A. I can’t exactly say where he grabbed him.

Q. That was my question.

A. But, yeah, so I can’t say, I’m sorry.

Q. So you don’t know where the man’s hand made contact with the man

in the Audi, if indeed it did make contact with the man in the Audi?

A. I can say for certain that he made contact with him. I can’t confirm where. I did see him be pulled once. Once he got pulled towards the door, that’s when I could see that the gentleman on the scooter was holding him and because his hands – there’s like the break between, you’ve got like the headrest, and then you’ve got like a gap there, and then you’ve got the door framing, or the, the inside of the car, and I could see him pulled up against that.

[24] Given this evidence, I am satisfied that even had the appellant succeeded in calling further evidence and showed that it was Mr Welch on the audio recording, it would not provide a sufficient basis for overcoming the evidence of the independent witnesses. Therefore I am not prepared to disturb the credibility findings made by the District Court Judge on the critical issue of the assault based on this allegation.

Allegation 2: Lies and other events leading up to the assault incident

[25] The appellant claims that Mr Welch lied about the events leading up to the assault. The appellant wanted to adduce video evidence that showed that Mr Welch lied about their prior encounters with each other on their respective routes to work.

[26] Apparently, the video sought to be adduced by the appellant showed the physical layout of the road network at critical junctures and this would have illustrated that the complainant’s account was fabricated.

[27] The appellant highlighted the following passages of Mr Welch’s evidence:

Q. As you were driving along Kepa Road can you describe what you saw that morning?

A. Um, a motor scooter pulled out of Kurahaupo Street from the Give Way sign and pulled into the cross hatched area in the centre of the road and I sped up slightly and he pulled in behind me.

...

Q. Now after he passed you, how would you describe the behaviour of this scooter driver after that?

A. It was fine until we got down to the roundabout at the bottom of Kepa Road, where the Kepa Road divides off into Orakei Road. As he went round that corner there he slowed right down and he’s put his feet over the side of the scooter, was quite slow going round that corner. I thought it was pretty peculiar behaviour, I haven’t seen it before but it’s –

...

Q. Now after you went through that intersection, what road did y ou turn into after you went through that intersection?

A. Turned into – turned left into Orakei Road, round to the next roundabout which is Orakei Shore Road roundabout.

Q. And at that roundabout where did you go from there?

A. Oh there’s two lanes going round the roundabout. The motor scooter rider – we both went round the inside lane, which is the one closest to the centre, and then the motor scooter rider went over to the left- hand lane and I went round the outside of him. I stayed in the lane that I was in, which was the one closest to the centre line, and I went

– I passed the motor scooter rider on the inside. So I – there’s still –

there was two lanes going round there, so it was done without any issues round that.

[28] Mr Matches says the video evidence would have shown:

(a) There could not have been a turn from Kurahaupo Street to Kepa

Road because there is a median strip; and

(b) It would have been nonsensical for the appellant to move into the outside lane around the Orakei Shore Road roundabout.

[29] The Judge refused to admit the evidence under s 35 of the Evidence Act 2006 which deals with previous consistent statements. That section states:

35 Previous consistent statements rule

(1) A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2) A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3) A previous statement of a witness that is consistent with the witness's evidence is admissible if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) the statement provides the court with information that the witness is unable to recall.

[30] With respect to the District Court Judge, I have difficulty with the exclusion of the video evidence on that basis.

[31] First, the video is evidence as to context. It is evidence of the road layout against which the respective testimony may be evaluated. It is not significantly different from photographic evidence of an accident scene regularly adduced by the police.

[32] Second, to the extent that it contains commentary from the accused, any obvious statements that are genuinely ―previous consistent statements‖ can be excised. Of course, the parties could then make submission on the video evidence. So against a backdrop of a Judge alone trial, any prejudice of allowing the accused’s voice-over would have been minimal in any event.

[33] Third, the same evidence could have been produced by an independent traffic expert. But given the circumstances, it is readily understandable why an accused may not want to incur the cost of such traffic evidence.

[34] Fourth, the production would not do violence to the underlying purpose of the exclusionary rule. The evidence has not been adduced to buttress another statement made by the appellant or for the purposes of showing consistency per se. It is directed to assisting the Court with direct evidence as to context.

[35] For my part I would have allowed the video to be played in those circumstances.

Material omission?

[36] Having said that, this evidence does not directly relate to the critical issue of whether the assault occurred. It may go to credibility. But again the complainant may simply have been mistaken and it does not in my view materially affect his credibility overall.

[37] I repeat it is significant that the appellant was seen to grab and pull Mr Welch towards the car door. That evidence by itself was compelling against the appellant. When it is combined with the testimony of the other independent witnesses, and the other obvious acts of aggression, including the intentional damage, the case against Mr Matches was compelling with or without the additional material.

Allegation 3: Constable Colbert-Luker

[38] It was alleged in the appellant’s statement of appeal that Constable Colbert- Luker, one of the officers who attended the scene and who gave evidence, knowingly allowed evidence to be given under oath that was untruthful.

[39] I will deal with this succinctly also. The appellant submits that the constable had the opportunity to listen to Mr Welch throughout the morning of the hearing and to the relevant tapes. The appellant says he must have known that it was Mr Welch on the tapes.

[40] In my view it cannot be said that the constable misled the Court or omitted to place material before the Court that may have been material to the defence. In reality, the constable was in no better position than the appellant. Mr Welch categorically denied that it was him. It was not then for Constable Colbert-Luker to proffer evidence to prove that Mr Welch was dishonest. Perhaps more significantly, as set out by the respondent, the constable was not specifically questioned about any suggestion that he knew the complainant was giving false evidence or that the

complainant was in fact giving false evidence. Whether or not Mr Welch was giving false evidence was a matter for the Court and I am not at all satisfied that the constable did anything to mislead the Court in that respect.

[41] The appellant also points to an apparent inconsistency between the

constable’s evidence regarding the number of calls made and witness testimony.

[42] This is simply a matter for the Judge at first instance to evaluate to the extent that there was any inconsistency. I would further observe again, that the Court obviously placed greatest weight on the independent witness testimony in reaching a final view, and I have no reason to depart from that.

Sentence

[43] Context is everything. I consider that the failure to admit the video evidence was relevant to the sentence as it was important to fully understand the circumstances in which the offending occurred. Acts of violence must be punished. But if that violence is precipitated by acts that generate reasonable concerns about one’s well-being, then that might be relevant to sentencing.

[44] Ultimately, however, when I sit back and approach the facts as favourably as I can for the accused, while his actions may have been precipitated by poor driving, we live in a society that abhors violence. At the time of the assault, he was not in a position where he needed to act in self defence. He could, and perhaps should have reported the incident to the police. He did not do so and put himself into a position of conflict where an act of assault was observed. In those circumstances, while I can understand Mr Matches’ frustation, the conviction for the assault and the reparation required was not disproportionate to the offending.

_{[45] Accordingly, the appeal against conviction and sentence is dismissed.}

Whata J

---

[1] At [4].
[2] _{Summary Proceedings Act, s 119.}
[3] Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[4] Austin Nichols & Co Inc v Stitching Lodestar at [4].