Sadler v Police HC Auckland CRI-2010-404-72 [2011] NZHC 255 (25 March 2011)

Last Updated: 20 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-404-72}

MANUEL SADLER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 21 March 2011

Appearances: M Wotherspoon for the Appellant

S Earl for the Respondent

Judgment: 25 March 2011

_{RESERVED JUDGMENT OF ELLIS J}

This judgment was delivered by me on 25 March 2011 at 10 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140

Counsel: M L Wotherspoon, PO Box 3905, Auckland 1140

SADLER V POLICE HC AK CRI-2010-404-72 25 March 2011

[1] On 4 December 2009 Mr Sadler was convicted in the District Court at Auckland on charges of unlawful possession of ammunition, assaulting a police officer in the execution of his duty and resisting a police officer in the execution of his duties. This followed a defended hearing over three days: 5 November 2009,

1 December 2009 and 4 December 2009.

[2] On 4 March 2010 he was sentenced to 60 hours community work in relation to each of the charges, the sentences to be served concurrently.

[3] Mr Sadler promptly (on 8 March 2010) filed an appeal, but only in relation to the assault and resisting convictions. The notice of appeal was received in the High Court on 16 June 2010.

[4] At the time the appeal was conveyed from the District Court to the High Court the District Court Registrar advised that the CD used to record the evidence from the defended hearing on 1 December 2009 could not be located and further, that the summing up of his Honour Judge Moore, the presiding Judge, had only been partially recorded due to technical problems. It subsequently transpired that very little of the summing up had been transcribed and there was also no electronic record of the evidence heard by his Honour on 4 December 2009.

[5] On 14 July 2010 Justice Andrews directed that Judge Moore was to prepare and file a memorandum setting out, as best he could, the evidence heard by him on

1 December 2009 and that part of his summing up that was not recorded. The hearing of Mr Sadler’s appeal, scheduled for 30 August 2010, was adjourned to allow time for the Judge’s memorandum to be received and considered by counsel.

[6] When the matter was called again on 1 October 2010 (in advance of the hearing of the adjourned appeal which had been scheduled for 4 October 2010) it was apparent that nothing had yet been received from Judge Moore because no contact had been made with him due to the rather peripatetic nature of his warrant and because he had been on leave. Contact was at that point made with Judge Moore and Priestley J directed that the Judge file a memorandum by 19 November 2010. That was done.

[7] For present purposes the relevant part of Judge Moore’s memorandum records as follows:

[5] I have now had the opportunity to read the type up of the hearing on

5 November 2009. I have not checked it against the recording. From my own records certain shortcomings in that type up are apparent:

i) The first evidence presented was that of Constable Albrey. That was placed before the Court pursuant to s 9 Evidence Act. Although my notes show that the brief was read out in open Court, it is omitted from the transcript. That brief was incorporated in my notes, thus the handwritten page number 2 in the top left corner and my handwritten notes on the brief, a copy of which is annexed.

ii) The evidence separately typed up as “Voir Dire Evidence” fits into the main transcript at the bottom of page six where there is a reference to legal discussion. That evidence and my ruling which was typed up as “Oral Judgment of Judge L H Moore” took up the period through to the luncheon adjournment. What the transcript does not record, but is clearly set out in my own notes, is that following the voir dire, by consent, the evidence on voir dire was accepted as evidence in the main trial.

[6] My handwritten notes of this hearing comprise 61 pages. The first

33 of those pages cover the proceedings on 5 November 2009. The case was then adjourned part heard until 1 December 2009 when evidence was heard from Constables Moore and Magnusson for the prosecution and from Mr Sadler, Mrs Ngarangi Sadler, Mr Luipope, and Renata Sadler for the defence. That did not complete the hearing which was adjourned until 4

December 2009 when Travis Sadler gave evidence, following which I

delivered judgment finding the charges proved.

[7] I have no notes from which I could endeavour to reconstruct my oral judgment. My practice, in summary trial cases, is to sort the relevant legal materials and exhibits into the order in which I intend to refer to them then give judgment working my way through the case with the aid of those and occasional reference to my handwritten notes. I am of that generation who learnt to make handwritten notes largely as a way of writing things into one’s mind. So often, even in a judgment which may take an hour or more to deliver, I have little or no need to refer to those notes.

[8] I could not possibly now reconstruct, in form and content, the oral judgment I delivered on 4 December, but certain aspects of this case remain clear to me:

i) Mr Sadler was a very large young man.

ii) He and his companions had consumed a great deal of alcohol. It was clear, and unsurprising, that large parts of their evidence were (subconsciously or not), exercises in reconstruction rather than actual memory.

iii) Mr Sadler was initially the best behaved of the group and compliant with police directions.

iv) The live .303 ammunition which Mr Sadler had with him in the vehicle had come from two different sources. Some rounds were CAC (Colonial Ammunition Company) and would have been manufactured in New Zealand. There were also rounds of foreign manufacture. My recollection is not entirely clear but I think the stamping around the base of them was “.303” British” indicating the probability that they were manufactured outside the Commonwealth.

v) There was absolutely no justification or excuse for having that live ammunition in a car in central Auckland in the circumstances of this case.

vi) That although the ruling on the evidence of search and seizure had been given early in the case, there was nothing in the subsequent evidence to cause me to alter that ruling or the reasons leading to it.

vii) Having initialling [sic] been better behaved than his companions, Mr Sadler, for reasons that I believe I touched on in some detail but essentially went back to his degree of intoxication, suddenly became violent and aggressive. In dealing with him, the police were acting in the execution of their duty. There was a vigorous scuffle on the ground on a paved and kerbed area, the features of which appeared to explain some of the marks left on Mr Sadler, though, unquestionably he had also been struck by police several times in an endeavour to get him under control.

viii) I was satisfied beyond reasonable doubt that each of the essential elements of each charge against Mr Sadler was proved.

ix) I have had my brief sentencing notes engrossed. Your Honour will see that I imposed a very light sentence and, in so doing, endeavoured succinctly to summarise the conclusions which would have been set out in a great deal more detail in my oral judgment of which no record can be found.

x) I trust that assists.

[9] My handwritten notes of the evidence given on 1 and 4 December,

2009 contain some words that I cannot now decipher. I have dictated them for typing as a separate document. I trust they will be of assistance. I have

asked that this memorandum be forwarded to the High Court immediately

and the type up of my record of the evidence given on 1 and 4 December

2009 be lodged with the High Court as soon as I have had the opportunity to check it.

[8] The basis for the appeal as specified in the March 2010 notice of appeal was said to be:

The learned District Court Judge erred in fact and law in finding it proved beyond reasonable doubt:

1. That the Police Constable Matthew Sheehan was acting in the execution of his duty; and/or

2. That the defendant/appellant knew that the police constable was acting in the execution of his duty.

[9] Mr Wotherspoon for Mr Sadler also now says that self-defence was (and is)

in issue.

[10] It is accepted by the Crown that the preliminary matter raised by this appeal is whether I am able to proceed on the basis of the notes of evidence that are available, in combination with Judge Moore’s memorandum and the typed up version of his personal notes. This was the approach ultimately adopted by Cartwright J in Lau v Ogle[1] and is the Crown’s preferred approach here. In the alternative, however, the Crown submits either that this Court should rehear the evidence pursuant to the proviso contained in s 119(2) of the Summary Proceedings Act 1957, or that the matter should be remitted back to the District Court for

rehearing.

[11] Mr Wotherspoon for Mr Sadler however submits that the only proper course in all the circumstances is for the conviction to be quashed and the District Court proceedings stayed.

[12] Before turning to consider which of these contentions is to be preferred, it is necessary to set out a little more about the facts of the matter. In brief, Mr Sadler was one of a number people travelling in a vehicle which was stopped by police officers in central Auckland. Several vehicles had been broken into in that area. It was quickly evident to the officer who stopped the vehicle that Mr Sadler and his friends they had been drinking. The police officers ultimately searched the car, on grounds that are not now challenged, as a result of which they found a quantity of ammunition as well as property they considered might be stolen.

[13] Mr Sadler was not initially hand-cuffed by the police although his friends were. It appears that it was only at the point when one of the police officers (Constable Sheehan) made it clear that he intended to arrest Mr Sadler in relation to the ammunition found that a confrontation between Mr Sadler and the officers occurred. It is that confrontation which resulted in the assaulting and resisting charges. The dispute that is central to Mr Sadler’s appeal relates to the manner of his

_{arrest and in particular whether:}

(a) there was an excess of force used by the police;

(b) Mr Sadler reasonably believed that there was an excess of force; and

(c) the assault by Mr Sadler’s was in self defence.

[14] Seven witnesses were heard in the District Court and evidence was produced as to the injuries suffered by Mr Sadler and the ways in which they might have been caused.

[15] Constable Sheehan was the first witness called by the prosecution and his evidence is recorded in the notes of evidence in full. In his account of what occurred Constable Sheehan referred to the fact that Mr Sadler was initially docile and compliant but that once he was informed of his imminent arrest his manner became more menacing. Constable Sheehan said that:

... at that point Manuel stood up, ah, right in front of me and he had his – I could see he was fixed looking me directly in the eye and he had his um, fists on – clenched on the dash either side of him. I then realised that I, I was going to have a problem with him and he was either going to resist arrest, ah, or assault me or a combination of the both. Ah, I distinctively, um, reacted and I pushed, ah, the defendant in his chest with my left hand. Ah, this was actual tactual decision to do this, to try and re – redirect him. As a result of this, ah, Manuel was still standing, ah, he sort of fell backwards, ah, but because he was so close to the wall, ah, where the planter box was, he somewhat bounced off it and came back towards me. And at this point, he grabbed hold of my, ah, stab resistant body armour with his left hand, grasping me on the shoulder strap of my armour on my right shoulder. We were still facing directly in front of each other. At this point he began to assault me by punching me with his right, ah, fist.

[16] Something of a fracas then ensued during which it seems Mr Sadler was hit a number of times with a police baton.

[17] The contemporaneous transcript also fully records the evidence of a defence witness, Mr Giri. His evidence followed upon that of Constable Sheehan. (It appears his evidence was interposed). The evidence of two other police witnesses, Constable Waugh and Constable Magnusson was not recorded. Nor was the evidence of Mr Sadler himself and three other defence witnesses who were called.

[18] I record at this point that I have not found Judge Moore’s own notes (now typed up) to be of any assistance in relation to this appeal. With no disrespect whatsoever intended, they are simply too abbreviated in nature and too personal in style to convey anything of use to someone other than Judge Moore himself at the time they were made.

[19] The first question that I must decide is whether I would be able to fairly determine this appeal on the basis of the evidence before me. Ms Earl for the Crown submitted that it is possible for me to do so. More particularly she says that the evidence before me is sufficient to determine the particular issue on appeal, namely whether the “police acted in excess of their lawful duties.” She said, given the competing accounts as to the respective actions of the constable and the appellant the issue that the Judge was required to determine was largely based on his assessment of the reliability and credibility of the witnesses, including (the Crown accepts) the reliability and credibility of those witnesses whose evidence was not recorded.

[20] I accept that Judge Moore has stated in his memorandum that, having heard all the evidence, he formed the view all the elements of the offences had been proved. Nonetheless, the reality is that (and without in any way intending to impugn the integrity of the learned District Court Judge) without his summing up it would in my view be wrong, and unfair, simply to accept that he did so or to accept that he did so correctly.

[21] In particular even if I were prepared to assume that Judge Moore correctly turned his mind to whether the Police officers could in fact be said to be acting in the execution of their duty I would be less prepared to make assumptions as to what Judge Moore thought (if anything) about Mr Sadler’s state of knowledge as to that fact. Was his knowledge in this respect assumed or was there evidence that rendered his knowledge a matter that had to be proved? Nor is it evident from the material before me whether and, if so, in what terms Judge Moore turned his mind to the issue of self defence.

[22] Even without these difficulties there remain problems with the Crown’s primary position. Although I accept that Austin, Nichols[2] makes it clear that credibility remains an area where an appellate Court may properly think twice before substituting its own view, it goes too far to say that credibility findings are immune to reappraisal on appeal. There has, I think been a subtle change in that respect in recent times. Where, for example, the judge at first instance has assessed credibility

solely by reference to witness demeanour and other such subjective criteria, close appellate scrutiny may well be justified. And even where the credibility assessment has been made objectively, by reference to matters such as the internal consistency and plausibility of the evidence given, it seems that the position is that: [3]

... the appellate court must undertake a “real review”, weighing conflicting

evidence and drawing their own inferences and conclusions.

[23] Again, I consider it is a matter of fundamental fairness that Mr Sadler be able, if he wishes, to challenge Judge Moore’s credibility findings. That is not possible without an accurate and complete record of what was said in evidence, and by whom.

[24] For the reasons given above I consider that the appeal cannot properly be determined on the basis of the limited material before me and the convictions should be quashed.

[25] As already indicated, this conclusion appears to give rise to three options, namely:

(a) for the High Court to rehear the evidence pursuant to the proviso contained in s 119(2) of the Summary Proceedings Act 1957;

_{(b) for the matter to be remitted to the District Court to be reheard; or}

(c) for the convictions to be quashed and the District Court proceedings stayed.

[26] As to the first option, there is little, if any, recent authority as to the circumstances in which the discretion to rehear might under s 119(2) might be exercised. The proposition that the discretion that is one that is to be exercised sparingly is traceable back to the decision in Burnett v Police[4] where Wild CJ noted the terms of s 119 (and the proviso in particular) and then stated at 831:

Until 1958 the hearing of appeals from Magistrates was governed by s. 325 of the Justices of the Peace Act 1927 which required this Court to

hear and determine the matter and make such order in relation thereto . . . as the Court thinks fit.

Under that provision the hearing of the appeal was to all intents and purposes a complete retrial: Larsen v Aubrey and earlier cases there cited but now, by virtue of s. 119 of the Summary Proceedings Act 1957, the rehearing is on the Magistrate's notes subject to the discretionary power to rehear any of the evidence.

The question that arises here is as to the circumstances in which this Court should exercise that discretion. Counsel were unable to refer to any direct authority on the point but I think that guidance is to be had from decisions on the same question arising under s. 76 of the Magistrates' Courts Act 1947. In all material respects that provision is similar to s. 119 of the Summary Proceedings Act 1957: both provide that appeals shall be by way of rehearing on the Magistrate's notes, and both give this Court a discretion in identical terms to rehear the whole or any part of the evidence.

It is well settled that the discretion under s. 76 is to be exercised sparingly: Harper v Hesketh; Tetau v McPherson. Moreover, it has been held that where the Magistrate has decided on credibility of witnesses the case does not on that account justify the exercise of the discretion: Wilson v Nisbett. [citations omitted]

[27] Notwithstanding the dicta referred to here from Wilson it appears that the decision in Harper (in which the discretion to rehear the evidence was exercised) was largely concerned with the critical nature of the lower court’s credibility finding. In that respect Gresson J concluded by saying:[5]

Credibility is a difficult and delicate question and the onus of proof has to be borne in mind. Whether the evidence of the plaintiff alone can be regarded as sufficient to discharge the onus of proof depends on whether the evidence of

the plaintiff is in value so much better than that of the defendant. In all the circumstances of the case, I prefer to determine the appeal upon a rehearing of the evidence.

[28] In Tetau[6] the discretion to rehear was also exercised, on the basis that part of the evidence in the magistrate’s court had been lost as well as the difficulty experienced by the Magistrate in evaluating the evidence due to the effluxion of time between the events giving rise to the trial and the trial itself.

[29] As far as I have been able to ascertain the only recent case in which the s 119 discretion to rehear has been exercised is Jones v Police.[7] No reasons are given for the decision that was taken other than that (as in the present case) parts of the transcript from the trial had been lost. Although at one point in his judgment Gendall J refers to his determination under s 119(2) to “rehear the whole of the evidence” it is apparent that he did not in fact do so – his Honour later refers to hearing evidence only from those witnesses who had given evidence before the District Court Judge whose evidence was directly relevant to the issues on appeal.

[30] In may well be that the proviso in s 119 is something of an artefact of legal history. Its equivalent in the District Courts Act 1947 (s 76) noted by the Chief Justice in Burnett was amended in 2003 and no longer contains an equivalent proviso. However prior to the amendment the conundrum presented by the proviso

was succinctly captured by Fisher J in State Insurance General Manager v Bern[8]

when he said at 2:

Although civil appeals to the High Court are by way of rehearing (District Courts Act 1947, s 76(1)), evidence given orally in the Court below is normally to be brought before the High Court by the production of an appropriate record (s 76(2)). There are discretions to rehear the whole of the evidence in the High Court (proviso to s 76(2)) or to order a rehearing of the case in the District Court (s 77(1)(a)).

The question is how these discretions should be exercised in the present case. In my view to rehear all the evidence de novo in this Court would have little in common with an appeal in the usual sense. It would be difficult in those circumstances to derive assistance from the District Court Judge's decision. In place of that decision there would be an independent assessment of different evidence by a different Judge. It would be a new trial under a

different name. The fact that appeals to the High Court are to be by way of rehearing is not to be equated with the opportunity for a new trial: Pratt v Wanganui Education Board [1977] 1 NZLR 476, 490.

[31] Fisher J then went on to say[9]:

In general terms - and certainly for the purposes of this case - there would appear to be two reasons for remitting a case to the District Court for rehearing in these circumstances. One is that Parliament has chosen to make a particular division of civil jurisdiction between New Zealand Courts. The general assumption is that civil cases involving less than $50,000 will be beard in the District Court and those involving more than that in the High Court. One should not depart from that assumption in the absence of positive reasons for doing so. At least in the present case, it would be just as easy for the proposed rehearing to take place in the District Court. The present matter comes before me as an interlocutory application. It is not as though the parties and witnesses are present and ready to give their evidence.

The second consideration is that the District Courts Act contemplates one general right of appeal from the District Court to the High Court and then a second right of appeal to the Court of Appeal in limited circumstances. If this Court were to now hear the case de novo this would effectively remove the general right of appeal.

For these reasons I think that where evidence must be wholly or substantially reheard due to the lack of an adequate transcript at first instance, it will usually be preferable to remit the case to the District Court for rehearing. That approach seems to find support in Parsons v Parsons Engineering Co Limited, Karamea Panelling Co Limited v Johnson Brothers Transport Limited and Cook v Cook. Larsen v Aubrey is in my view distinguishable. It is true that in Moore v MacMillan, Chilwell J was prepared to rehear the witnesses in the High Court in like circumstances and the decision is described in Butterworths: District Courts Practice para S76-9 as expressing the modern viewpoint on the subject. However, the decision does not traverse the reasons for taking that course and so far as one can tell from the judgment this aspect was not argued. I imagine that in that case there were special reasons for dealing with the appeal in that way. Every case must, of course, be dealt with in the light of its own particular circumstances. [citations omitted]

[32] In my view essentially the same reasoning can be applied by analogy in the criminal jurisdiction. And it is for those (appropriately analogised) reasons it would be inappropriate for the High Court to rehear the evidence in the present case.

_{[33] Even if I am wrong in that, however, I consider that -}

(a) the time that has now elapsed since the events in question (Mr Sadler’s arrest having been effected nearly three years ago, in June 2008); and

(b) the fact that Mr Sadler has already served his sentence –

both militate strongly against such a rehearing. And in my view the same considerations also tell against remission to the District Court for rehearing in this case.

[34] In my judgment the only fair and appropriate outcome in the present case is to allow the appeal, to quash Mr Sadler’s convictions for assaulting a police officer in the execution of his duty and for resisting the same officer, and to direct that the proceedings in the District Court are to be stayed. I therefore make orders

_accordingly.

Rebecca Ellis J

---

[1] Lau v Ogle (1998) 12 PRNZ 547.
[2] _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.}
[3] _{The Rt Hon Sian Elias GNZM: “A painful and uncongenial obligation”? Appellate correction of} error of fact in the electronic age, 26 January 2010, citing Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126 per Gleeson CJ, Gummow and Kirby JJ.
[4] _{Burnett v Police [1966] NZLR 830 (SC) at 831.}
[5] Harper v Hesketh [1954] NZLR 622, (SC) at 624.
[6] _{Tetau v McPherson [1956] NZLR 34.}
[7] _{Jones v Police HC, Palmerston North AP60/97, 12 December 1997.}
[8] State Insurance General Manager v Bern HC Hamilton AP175/88 30 July 1990.

[9] Ibid at 3-4