Ceramalus v Police HC Auckland CRI-2010-404-000320 [2011] NZHC 519 (25 May 2011)

Last Updated: 19 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-404-000320}

NOBILANGELO CERAMALUS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 23 March 2011

Appearances: Appellant in person

S C Duncan for Respondent

Judgment: 25 May 2011 at 4:00 PM

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 25 May 2011 at 4:00 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

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

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – S Duncan

_{Copy to: N Ceramalus – email:} [e-mail]

CERAMALUS V NZ POLICE HC AK CRI-2010-404-000320 25 May 2011

[1] Mr Ceramalus appealed unsuccessfully from his conviction in the District Court at Auckland on one charge of assault, which followed a defended hearing before Judge G Davis on 26 July 2010.[1] He now seeks leave to appeal that decision.

[2] The right to apply for leave to appeal to the Court of Appeal following the determination of a general appeal to the High Court arises under s 144 which relevantly provides that:

(i) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under s 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(ii) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[3] The circumstances in which leave to appeal might be granted are clear; a question of law must arise which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal. Applications for leave under s 44 are to be approached in accordance with the well established purpose of the provision, summarised by the Court of Appeal in Nottingham v T:[2]

It is well settled that s 144 is not intended to provide a second tier of appeal from decisions of the District Court. The stringent requirements of s 144 must be satisfied and neither the determination of what comprises a question of law nor the question of whether that point of law raises a question of general or public importance is to be diluted.

[4] Mr Ceramalus’ conviction arose from an incident that occurred on his property on Waiheke Island in May 2010. The complainant, P, was a 14-year-old boy who was walking with a friend and his dogs in bush near Mr Ceramalus’ property. The boys went on to Mr Ceramalus’ property to retrieve one of the dogs. Mr Ceramalus was upset at finding the boys on his property and shouted at them to leave. P turned to leave and while his back was turned felt himself being struck on the back of the head. The Crown case was that Mr Ceramalus had struck P with a branch.

[5] In his unsuccessful appeal Mr Ceramalus argued that the decision in the District Court was against the weight of the evidence. In particular, he asserted that there was no basis for the Judge’s favourable credibility assessment of P and his friend and that the nature of the injury was inconsistent with the account P gave. His second ground of appeal was that the trial was conducted unfairly.

[6] The application for leave to appeal focused on evidence given by P about an injury to his neck which he claimed was sustained in the assault. Mr Ceramalus complained that evidence showing a pre-existing neck injury was not taken into account in either the District Court or this Court.

[7] In his notice of application Mr Ceramalus identified the two questions of law as being:

(a) Whether it is fair, reasonable and reliable to convict someone on the word of only one witness, especially when it was demonstrably unreliable and when a vital allegation was ignored completely;

(b) Whether ss 25(a) and 27(1) of the Bill of Rights Act 1990 have been complied with.

[8] During argument, Mr Ceramalus accepted that his first question suggested a need for corroboration, contrary to s 121 Evidence Act 2006. Nevertheless, Mr Ceramalus persevered with this concept, maintaining that the witness on whose evidence the Judge relied must have “internal corroboration of logical rules”. This

submission was based on Mr Ceramalus’ interpretation of s 6(a) Evidence Act 2006

which provides that:

The purpose of this Act is to help the just determination of proceedings by –

(a) Providing for facts to be established by the application of logical rules.

[9] Mr Ceramalus’ interpretation was that the words “logical rules” required a judge to apply “the rules of logic”. In the context of this case Mr Ceramalus submitted that if such rules were applied to what the witness had said he could not be credible.

[10] I do not accept Mr Ceramalus’ interpretation of s 6(a). Mr Ceramalus’ approach was to treat the words “logical rules” as bringing in the body of teaching relating to logic. This approach misunderstands the purpose of the Evidence Act. Section 6(a) simply means what it says; the purpose of the Act is to provide for facts to be established by the use of rules which are logical.

[11] I turn, then, to the evidence that Mr Ceramalus maintains was overlooked by both the District Court Judge and myself, which was given as part of P’s evidence- in-chief:

Q: And as a result of being hit on the head, what medical treatment if any did you –

A: I went to the chiropractor to get my neck done because my neck was out.

Q: And prior to being hit on the head, was neck alright? A: No.

[12] Mr Ceramalus submitted that the effect of this evidence was that P’s pre- existing condition was being attributed to his actions. Mr Ceramalus placed a good deal of weight on the inconsistencies he considered existed in the evidence about P’s injuries. I considered this point at [9] – [15] of my decision on the appeal. It is true that I did not specifically refer to the evidence set out above. However, I did consider the specific evidence of the chiropractor’s finding of mild swelling on the top of P’s head and the chiropractor’s view that the injuries about which he was consulted were consistent with P’s description of the assault.

[13] Judges do not and are not expected to deal with every point of evidence when considering an issue. The fact that I did not refer specifically to that piece of evidence does not give rise to any question of law. In any event, there is no inherent inconsistency in the passage relied on by Mr Ceramalus; the way the evidence is phrased simply shows that P had a pre-existing neck complaint. It does not, however, detract from the evidence that he sustained an injury to his neck as a result of the assault.

[14] Mr Ceramalus sought to advance the same argument by reference to his right to a fair trial under s 25 Bill of Rights Act 1990, the right to natural justice under s

27 Bill of Rights Act 1990 and his right not to have his reputation subject to arbitrary attack under Article 17 International Covenant of Civil and Political Rights. However, it is apparent from what I have said that no question of law arises from the way in which the evidence was determined. Mr Ceramalus is essentially trying to impugn a finding of fact that was open to the trial judge and upheld on appeal.

[15] In the circumstances I can find no question of law that would justify granting leave for a further appeal. The application is dismissed.

P Courtney J

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[1] _{Ceramalus v NZ Police HC Auckland CRI-2010-404-000320, 14 December 2010.}
[2] CA 216/00 26 March 2001.