Herangi v Police [2012] NZHC 1665 (10 July 2012)

Last Updated: 18 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000176 [2012] NZHC 1665

BETWEEN JERMAINE MITA HERANGI Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 10 July 2012

Appearances: R Treloar for the Appellant

B Hamlin for the Respondent

Judgment: 10 July 2012

ORAL JUDGMENT OF PRIESTLEY J (Appeal against conviction and sentence)

Counsel:

R Treloar, Public Defender, Northern. Email: [e-mail]

B Hamlin, Crown Solicitors, Auckland. Email: [e-mail]

HERANGI V NEW ZEALAND POLICE HC AK CRI-2012-404-000176 [10 July 2012]

Introduction

[1] The appellant faced a charge of intentional damage laid under s 269(2)(a) of the Crimes Act 1961. At the conclusion of a defended hearing on 27 February 2012, before Judge McAuslan in the Pukekohe District Court, the appellant was convicted.

[2] He was subsequently sentenced to four months community detention. Additionally he was ordered to perform 200 hours community work. A reparation order of $3,000 was made.

[3] The appellant challenges his conviction by this appeal. There is no appeal against the sentence. Given the sentence imposed was to perform community work it is suspended pending the appeal’s outcome.

[4] The damage in question was serious. At some stage in late September 2010 graffiti was scratched on the inside of the prism glass of the Awhitu Peninsula lighthouse. This lighthouse, so I am informed at the bar, is no longer an operational lighthouse. Up until the 1980s, however, it performed the important function of marking the South Head of the Manukau harbour. The lighthouse forms an important part of New Zealand’s maritime history. It has many supporters in the area and is conscientiously and lovingly maintained. The damage to the prism glass caused obvious distress and was in any event wanton.

[5] The scratching in question was consistent with the insignia or markings of a gang (SCG) with which the appellant was associated. The precise markings were “Puke SCG” which probably translates as Pukekohe South Crip Gang.

The hearing

[6] The evidence against the appellant was totally circumstantial. There was no doubt that from time to time, he and other people were performing community work around the lighthouse under the supervision of the Department for Corrections. The cogent evidence from which the prosecution invited the Judge to draw the

conclusion that the appellant was the perpetrator of the graffiti, such conclusion of course having to pass the threshold of proof beyond reasonable doubt, was as follows:

(a) The presence of the appellant on the site on 23 September 2010.

(b) The discovery of his fingerprints on or near the entrance to the prism chamber.

(c) Evidence that community work gangs were always supervised with the exception of the cook.

(d) An admission by the appellant that he was from time to time the cook although, as Ms Treloar points out, there is no evidence at all to establish he was acting as cook on 23 September.

(e) The appearance in the visitor’s book on 23 September 2010 of a

similar gang mark or tag.

(f) The fact that the appellant, who chose to give evidence at his trial, gave evidence which was somewhat inconsistent with an earlier interview he had given to a police officer. (In the police interview the appellant denied being in and around the prism chamber. At trial (NOE 20:16) he admitted that he did “hop” into the prism. The answer was given in evidence-in-chief as opposed to cross- examination.

[7] The Judge’s conclusion, she being satisfied that guilt had been established beyond reasonable doubt, was as follows:

[15] It is apparent from the cross-examination that much has been made by the defence of the lack of anybody observing the defendant actually causing the damage in question to the prism of the lighthouse, and other damage to it, and that of course if so. However, when the various matters relied on by the prosecution are put together, and that is this that on 23

September the defendant was one of this party of people who were there. He also, according to his statement to the police at the time, was the cook and therefore the only one of that party who would have spent a substantial

amount of time on his own and not under such close supervision by the supervisor of the community work party. When you add that to the clear evidence of the fingerprints from the inside of the prism, that there is absolutely no reason why anyone would go inside that area at all, certainly not for looking at spectacular views and dangling legs off ledges for the purposes of having a cigarette, no reason whatsoever to be in there, no legitimate reason for the defendant to be there, and yet he was by his own admission.

[16] When that is put together with the clear untruths told to the officer- in-charge when asked about it, I do not accept and did not find convincing his evidence that he just had not been listening properly to the question or that he had a poor recall, clearly it was much closer in time to the events in question than today when he stands by his denials. I do not find his evidence convincing at all and I find that given the clear evidence of the fingerprint that he was there. He had no business to be inside the prism, with the damage that must have been caused at the same time. I am satisfied beyond reasonable doubt that this charge is proved.

Discussion

[8] Ms Treloar’s competent and focused argument essentially revolves around one point. Her submission was that it was wrong of the Judge to draw the inference from the evidence before her that it was the appellant who caused the damage to the prism glass. Ms Treloar referred to relevant case law, particularly a case involving fingerprint evidence alone, being R v Hughes.[1] The immediate distinction with Hughes, however, the facts of which I do not need to relate in detail but which

involved the finding of the accused’s fingerprint on a home-bake kit, was that, unlike the case before me, the only evidence available to the prosecution was the fingerprint evidence. Here there is other evidence which I have already briefly outlined.

[9] In Ms Treloar’s submission, the evidence before the Judge was equally open to the inference that although the appellant’s fingerprint was found near the prism glass and although he was there, the damage could well have been carried out by other members of the community work party of which the appellant formed a part.

[10] Although the fingerprint evidence and the appellant’s own concession justified a conclusion that he had wrongly entered the prism chamber, it was a leap too far to conclude that he had additionally damaged the prism glass. On this basis,

_{focusing entirely properly on the strength of inferences to be drawn from the}

circumstantial evidence before the Judge, counsel submitted the conviction was unsafe.

[11] Mr Hamlin, for the respondent, submitted in general terms the inference could properly be drawn. It was a conclusion open to the fact finder who had had the benefit of hearing all the evidence.

[12] I consider that the evidence available to the Judge came very close to either side of the borderline of proof beyond reasonable doubt. When one looks at the Judge’s reasoning process, however, there is nothing there which points to any error. The Judge has not improperly put into the scales the fact that the appellant told an untruth to an interviewing police officer. The approach which she has taken was entirely consistent with ss 124(1) and (4) of the Evidence Act 2006. The “lie” told by the appellant can form part of the circumstantial evidence. More importantly in my view would be that this unfortunate reflection on the appellant’s veracity might well determine what weight the Judge gave to the evidence which the appellant proffered at trial.

[13] Nor, in terms of the traditional tripartite direction which trial judges must give to juries when an accused gives evidence, can there be any suggestion that the Judge has done anything other than to discard the evidence of the appellant. What she has quite properly done is to look at the totality of the other evidence before her.

[14] When one reviews [15] and [16] of her judgment it is clear the Judge has ranged across the appellant’s presence at the lighthouse; she has given full weight to the absence of any evidence of observation of the defendant causing any damage; she has commented that the cook was the only member of the community work party not under close supervision; she has given considerable and proper weight to the discovery of the appellant’s finger prints inside the prism. Finally she has concluded that the damage to the prism was caused at the same time the appellant was there.

[15] Although, as with juries, it is always possible for judges sitting alone as fact finders to reach different conclusions, I consider that the finding of the judge – that guilt was proved beyond reasonable doubt – was open to her. There is no discernible

error. What in essence Ms Treloar’s helpful submissions were designed to do was to ask me to revisit de novo the evidence at the District Court hearing and to come to a different conclusion. On an appeal against conviction that is not really the task of an appellate court.

[16] One must be alert, of course, to the fact that the appellant has some gang association. Gang mores and codes come into play. Purely speculatively, it might be that the appellant well knows he did not cause the damage and knows who did. That would be an unfortunate position for the appellant to find himself in. However, he has run his defence before the District Court in the way he did.

Result

[17] The conclusion of the Judge, as I have said, was open to her and for appeal purposes is unassailable. For these reasons therefore the appeal is dismissed.

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Priestley J

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[1] R v Hughes [1998] 1 NZLR 409.