Thompson v Police HC Auckland CRI-2011-404-000092 [2011] NZHC 1901 (9 November 2011)

Last Updated: 31 January 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-000092}

BETWEEN KIM ROKIA THOMPSON Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 November 2011

Appearances: C R Thornton for Appellant

Y E Clarisse for Respondent

Judgment: 9 November 2011 at 3:00 PM

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 9 November 2011 at 3:00 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

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

Solicitors: Public Defence Service, P O Box 90243, Victoria Street W, Auckland 1142

Fax: [phone] – C Thornton

Meredith Connell, P O Box 2213, Auckland 1140

_{Fax: [phone] – K Bannister}

THOMPSON V NZ POLICE HC AK CRI-2011-404-000092 9 November 2011

[1] Ms Thompson was found guilty on one charge of assault following a defended hearing in the District Court at Auckland and sentenced to 60 hours community work.[1] She appeals her conviction on the ground that the Judge failed to accurately record Ms Thompson’s evidence and that trial counsel failed to cross- examine on a significant point.

[2] Ms Thompson’s general right of appeal under s 119(1) of the Summary Proceedings Act 1957 is an appeal by way of rehearing. The approach explained by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar[2] applies. It is for Ms Thompson to persuade me that the Judge reached the wrong decision. If so, then I am required to undertake a fresh assessment of the merits of the case.

[3] The charge arose from an altercation between Ms Thompson and the complainant, Ms Pagani, in November 2009. Ms Thompson was pushing a supermarket trolley on the road near Ms Pagani’s home. The supermarket trolley contained a bag with catfood in it and bits of paper on which catfood was spread. Ms Thompson was feeding the local cats when Ms Pagani confronted her and began removing the contents of the trolley.

[4] Ms Pagani alleged that Ms Thompson hit her on the ear and that the blow was hard enough for her hat to fall off. Ms Thompson maintained that she had done no more than reach over and take Ms Pagani’s hat off and throw it away in order to distract her from removing the catfood from the trolley.

[5] Ms Thornton, for Ms Thompson, submitted that the Judge made errors in recording the essential facts of the evidence so that the decision was ultimately made on an incorrect understanding of the evidence. The Judge recorded Ms Thompson’s evidence as being that:

[5] ... She accepted there was a confrontation between the two over the trolley. What she said she did was that she threw her arm at the defendant to be able to distract her and knock her hat off and the fact it happened. She denied actually hitting the complainant on the side of the head as Ms Pagani

alleged ... She could not recall in her evidence-in-chief saying that she knew it was probably an assault but her evidence was that if she did, what she was thinking of or must have been thinking of was throwing her arms and knocked the hat off. She admitted picking the hat up from the ground and throwing it towards the complainant’s house.

[6] However, this does not correctly reflect Ms Thompson’s evidence which

was:[3]

I went to grab her hat which was a woollen hat, and I picked it up by the tip, like that. I was conscious that if I grabbed it really hard I could have pulled her hair with the hat, woollen cap, so I was careful just to grab the material, pulled that off, and I threw the hat towards her place. The idea was to distract her so she’d stop throwing stuff around and I wouldn’t be hurt and she’d go and find her hat.

In cross-examination Ms Thompson said:[4]

No, um, I never ever hit her. I never raised my arm to hit her. The only time I raised my arm was to lift her hat off her head to distract her and I did that successfully without hurting her in any way. I didn’t even manage to lift any hair off head when I pulled the cap off ... I didn’t hit her and as I said earlier, I took the hat off head and I threw it across to her place and that’s where it ended up, which was quite a distance to go, it could only end up at her place if it had been thrown there.

[7] Ms Clarisse, for the Crown, acknowledged that the Judge had not accurately recorded Ms Thompson’s evidence in his judgment and that had events occurred in the way Ms Thompson had described, the assault would not have been proven, since it would not have constituted an intentional application of force or an attempt to do so. She submitted, however, that there was sufficient evidence on which to find the assault proven, notwithstanding that error. In particular, she maintained that the Judge was entitled to place weight on the evidence of one of the attending police officers, Constable Stanton, that Ms Thompson had admitted to the assault and the account given by the complainant. This evidence, she submitted, corroborated the complainant’s evidence and the Judge was entitled to prefer it over that of Ms Thompson.

[8] Although two police officers attended the incident and both gave evidence, the Judge referred only to the evidence of only Constable Stanton:

[6] The police attended shortly thereafter and the defendant was interviewed by Constable Stanton. When the defendant spoke to the Constable she, according to the Constable’s evidence, said that “She had whacked her in the side of the head”, meaning the complainant. Then towards the end of the conversation between the two she said that she knew it was probably an assault. Unsurprisingly the Constable recorded that record of the conversation in his notebook and was able to give evidence as to what was said by reference to the contents of the notebook.

[9] Constable Stanton had spoken to Ms Thompson and recorded that discussion in his notebook. That discussion had been recorded as:

Q: What’s happened today?

A: I came to feed my cats here today. She came across to my trolley and started saying things so I whacked her in the side of the head and took her hat off.

Q: Why did you do that?

A: Because I wanted to distract her, I know it’s probably assault.

[10] Ms Thompson did not sign the notebook and said in evidence, in relation to the notebook entry:

I can’t recall that occurring but I would say that if he was talking about me pulling my hat off her, I would have probably come close to saying something like that that it’s probably assault and is more a question than a statement, that’s as close as I would get but saying that “I know it’s probably assault” I would not have inferred that term anything including a slap, it didn’t occur.

[11] Ms Thompson also spoke to the other officer, Constable McLachlan, whose notebook entry she did sign. Significantly, that entry differed from the reported conversation with Constable Stanton. Constable McLachlan gave the following evidence about his conversation with Ms Thompson:

Q: Why did you rip Roberta’s hat off?

A: She answered “To distract her from throwing my stuff out of the trolley”.

Q: I said “Who does the trolley belong to?”

A: She replied “Foodtown”

Q: Why are you using their trolley?

A: I think that their policy is that locals can use them.

Q: Why was Roberta trying to take your stuff out of the trolley?

A: She answered “She’s a nut you’ll have to ask her I think she’s mentally ill”.

Q: I then asked the defendant if there was anything else to add and she replied.

A: I didn’t rip Roberta’s hat off I pulled it off.

[12] The differences between the two statements, the fact that Ms Thompson’s evidence was consistent with what was recorded in Constable McLachlan’s notebook and the fact that Ms Thompson had signed Constable McLachlan’s notebook but not Constable Stanton’s notebook were matters that ought to have been considered in assessing Ms Thompson’s evidence. It was an error to have treated Constable Stanton’s evidence as an admission by Ms Thompson of the assault without attempting to reconcile the other relevant aspects of the evidence.

[13] Ms Thornton also submitted that trial counsel failed to adequately explore the history between Ms Thompson and Ms Pagani with a view to establishing a motive to make a false statement. However a review of the notes of evidence of cross- examination do establish an unhappy history between the two. It is unlikely that a more extensive exploration of this issue would have been helpful and I see no error on counsel’s part in that regard.

[14] It is apparent from the Judge’s decision that he was strongly influenced in his conclusion by Constable Stanton’s evidence and by a erroneous recollection of Ms Thompson’s evidence. In the circumstances it was hardly srprising that he preferred Ms Pagani’s account to that of Ms Thompson. But it is far from clear that, had he considered the issues surrounding Constable Stanton’s evidence and correctly recalled Ms Thompson’s evidence the outcome would have been the same.

[15] The appeal is allowed. The conviction is quashed and the matter remitted to the District Court for a fresh hearing.

P Courtney J

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[1] NZ Police v Thompson CRI-2009-004-024780 DC Auckland, 11 March 2011.
[2] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141
[3] Notes of evidence p15 lines 4-9.
[4] Notes of evidence p17 lines 5-15