Wilson v Police [2012] NZHC 1664 (12 July 2012)

Last Updated: 21 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-133 [2012] NZHC 1664

BETWEEN TIAKIRIRI TEHOU WILSON Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 9 July 2012

Appearances: Appellant in person

J Wall for the Respondent

Judgment: 12 July 2012

RESERVED JUDGMENT OF PRIESTLEY J (Appeal against conviction)

This judgment was delivered by me on Thursday 12 July 2012 at 4 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel:

J Wall, Crown Solicitors, Auckland. Email: [e-mail]

Copy to: Appellant.

WILSON V NEW ZEALAND POLICE HC AK CRI-2012-404-133 [12 July 2012]

[1] There was a defended hearing before Judge Mathers in the Auckland District Court in March 2012. The appellant, who represented himself, faced three charges. He was acquitted on a charge of consuming liquor in an Auckland street which was covered by a liquor prohibition by law. He was convicted on two charges under the Summary Offences Act 1981, the first being intentionally obstructing a police constable in the execution of his duty and the second being intentional damage.

[2] The Judge considered both these charges had been proved beyond reasonable doubt. She concluded her judgment by stating:

... it is tragic that these comparatively minor incidents end up with criminal charges and a criminal conviction. I am, however, not a social worker and must apply the law.

Background

[3] The Judge’s assessment of culpability, as evidenced by her decision not to impose any penalty, was that the appellant’s culpability lay at the low end of the spectrum for both charges. Neither the appellant nor Mr Wall disagreed.

[4] At 4.50 am on the morning following a Rugby World Cup game, two police officers observed a motor vehicle parked at the side of the road with a damaged door window. Broken glass was on the footpath and the vehicle showed signs of interference. The appellant was observed wandering somewhat aimlessly in the vicinity, talking to himself, drinking from a can, and exhibiting signs of intoxication. There is no suggestion the appellant had anything to do with the damaged motor vehicle.

[5] Optimistically the appellant asked the police officers for a ride to his home in a neighbouring suburb. The appellant was attempting to walk home, had become intoxicated and was somewhat disoriented. Unsurprisingly the police officers were not interested in providing the appellant with transport. He was warned not to interfere with the motor vehicle which the officers were examining. The appellant

did not react favourably to this restriction. Despite being told not to interfere with the motor vehicle, he touched it, not once but twice. He, on the face of it, deliberately ignored a warning after the first touch. He was arrested for obstruction and taken by another police vehicle to Auckland Central Police Station to be processed.

[6] In due course the appellant was placed in a police cell. It may well have been that he would subsequently have been released without further action. However, the appellant took strong exception to the condition of the police cell. The cell contained a mattress which was soaked in urine. The appellant considered that his protests were being ignored. He was observed on CCTV hurling a plastic cup against the cell wall and then picking up the mattress and ripping it from one end to the other, thus rendering it unusable.

Judge’s decision

[7] The Judge referred to the legal definition of “obstructing”. It is clear from the Court of Appeal decision of Minto v McKay[1] that a refusal or failure to co- operate with a police officer’s direction whilst that officer is carrying out his reasonable duty or reasonably exercising a power can amount to obstruction.[2] On that basis the Judge considered the appellant’s defiance of the officer’s direction constituted obstruction.

[8] On the charge relating to wilful damage, there was a discrepancy between the prosecution evidence and the appellant’s evidence about the extent to which the mattress was already ripped. The Judge had the benefit of observing the CCTV footage and concluded that the mattress was already ripped to the extent of one foot. She further concluded that there was no doubt that the appellant had deliberately damaged the mattress. Although the mattress being soaked in urine might be distasteful, that matter was irrelevant so far as the

_{intentional damage charge was concerned. Thus she convicted the appellant.}

[9] The appellant, who is a man of strong views and clearly harbours a sense of grievance, made a number of points. He considered that the entire prosecution (and the appeal) were wasteful of time and energy. Given the fact that the police had “roughed him up” and subsequently placed him in a urine-drenched cell, he should have received an apology rather than a conviction. The appellant did not dispute that

he had twice touched the motor vehicle in defiance of a police officer’s direction.[3]

In respect of the mattress the appellant submitted that because it was already ripped and was furthermore drenched in urine, it was totally useless and was thus not an object capable of being damaged.

[10] The appellant further submitted that his conduct that night did not justify the intervention of the criminal law. Finally he submitted (this being one of the grounds of his appeal) that because he had many family members residing overseas, it was not appropriate that he should be forced to declare “frivolous undeserved convictions” should he wish to travel.

[11] In short the appellant saw his position as being a person who had been kidnapped and forced into a subhuman cell. At a general level, although wisely he did not pursue it, the appellant considered that because he was Maori he excited police attention which would normally not be warranted.

Result

[12] On the issue of whether it was appropriate to enter a conviction, as opposed to discharging without conviction under s 106 of the Sentencing Act 2000, the matter does not appear to have been the subject of submissions to Judge Mathers. The fact that the appellant was convicted and discharged clearly suggests (and rightly so) that the Judge did not consider the appellant’s culpability to be significant. Nonetheless,

_{the required balancing exercise mandated by the Court of Appeal of weighing the}

gravity of offending, of weighing the consequences of the conviction and considering whether those consequences are out of all proportion to the gravity of the offending, do not, in my view, approach the threshold of a s 106 discharge.[4]

[13] The disproportionate consequence advanced by the appellant of inconvenience with any overseas travel has little merit given that the appellant, now aged 38, has accumulated a formidable list of convictions from 1991 onwards. It is not necessary to itemise those convictions. The volume of those convictions tails off somewhat after 1999 but nonetheless between 2000 and 2008 six convictions were entered against the appellant, those being in the wake of a period of imprisonment imposed in 1999. So these two convictions make no difference to any dimension of overseas travel.

[14] On the obstruction charge the appellant deliberately disobeyed the lawful direction of police officers examining a crime scene. He was warned twice. His actions of deliberately touching the car constitute obstruction.

[15] On the wilful damage charge, a partly ripped and urine soaked mattress is still capable of being deliberately damaged. The Judge was right to conclude, having had the benefit of watching CCTV footage, that the appellant deliberately and intentionally damaged the mattress by ripping it from end to end. The fact that a chattel may already be damaged or unusable is certainly relevant to culpability but does not provide a defence to the charge of wilful damage.

[16] The Judge’s assessment of the situation is free from error. She rightly convicted the appellant. For these reasons the appeal is dismissed.

..........................................
_{Priestley J}

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[1] _{Minto v McKay (1987) 7 CRNZ 38.}
[2] The Judge referred to a similar dictum of Lord Goddard CJ in Hinchcliffe v Sheldon [1955] 3 All ER
406 to the effect that “obstructing” meant making it more difficult for the police to carry out their duties.

[3] There was some suggestion at the hearing that the appellant’s objective to touch the motor vehicle was to ensure his fingerprints were on it, to guard against the possibility of him being alleged to be the culprit. The appellant was never charged, however, with damage to the motor vehicle and the Judge rightly saw no relevance in this issue

[4] See Blythe v R [2011] 2 NZLR 620 (CA); R v Hughes [2009] 3 NZLR 222 (CA). See also Vincent v

Police [2007] DCR 277 (HC).