Nicholls v Police [2012] NZHC 2040 (21 August 2012)

Last Updated: 7 September 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-000021 [2012] NZHC 2040

BETWEEN COREY STEPHEN NICHOLLS Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 14 August 2012

Counsel: P J Mooney for Appellant

A W M Britton for Respondent

Judgment: 21 August 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 21st day of August 2012.

_{RESERVED JUDGMENT OF COLLINS J}

Introduction

[1] On 15 May 2012 Mr Nicholls was convicted in the New Plymouth District Court on one charge of committing an indecent act with an animal. This is an offence under s 144 of the Crimes Act 1961.

[2] The District Court Judge who heard the evidence and convicted Mr Nicholls imposed a sentence of 200 hours’ community work and nine months’ supervision.

[3] Mr Nicholls appeals his conviction. He submits that the conviction was against the weight of the evidence and that the District Court Judge wrongly rejected

_{his defence that the complainant’s evidence was a fabrication.}

NICHOLLS V NEW ZEALAND POLICE HC NWP CRI-2012-443-000021 [21 August 2012]

[4] The outcome of the case hinged upon whether the principal prosecution

witness’s version of events established Mr Nicholls’ guilt beyond reasonable doubt.

Principles applicable to conducting an appeal by rehearing

[5] An appeal of this nature is conducted as a rehearing pursuant to ss 115 and 121 of the Summary Proceedings Act 1957. The Court is not bound to accept the District Court Judge’s findings of fact and is entitled to exercise any power or discretion available to the District Court Judge at first instance. The Court must exercise its own judgement but, where appropriate, the Court may give weight to the expressions of opinion of the District Court.1

The evidence

[6] The principal prosecution witness was Ms Jane. She was Mr Nicholls’ partner for approximately five years. Their relationship ended in 2009. The couple’s breakup was acrimonious.

[7] After Mr Nicholls’ and Ms Jane’s relationship ended he continued to live in his house with two children he had from a previous relationship and two other persons. His dog also lived in the house.

[8] Arrangements were made for Ms Jane to remove her property from Mr Nicholls’ home. Ms Jane went to the property in late 2009 with Ms Lloyd to pick up her items.

[9] Ms Jane says she returned to Mr Nicholls’ property by herself on a second occasion to collect the balance of her property, which included a pram and a doll’s house. She believes her second visit occurred between 12 February 2010 and 1

March 2010. Ms Jane said that she sent a text to Mr Nicholls before she went to his

_home.

1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3].

[10] In her evidence Ms Jane said that she went to the front door of Mr Nicholls’ home. No one appeared to be home. She went around to the back of Mr Nicholls’ property. There was a shed at the back of the property. The roller door of the shed was closed but the side door was open. She went in. She says she did not see Mr Nicholls initially but heard grunting noises. She walked beside a car that was parked in the shed. Initially she saw Mr Nicholls with his back to her, but as she moved further into the garage she saw him side on. She said that Mr Nicholls’ pants were down and that he was standing up and kneeling over his dog which had its head between Mr Nicholls’ legs and was licking his penis. She said Mr Nicholls was also masturbating his dog. Ms Jane said that Mr Nicholls was at the back of the shed when she saw these events and that she was about a car’s length away from Mr Nicholls. In cross-examination, Ms Jane accepted Mr Nicholls was leaning on a small freezer at the time. She said that she observed Mr Nicholls for a total of one to two minutes before she was seen by Mr Nicholls. She left immediately.

[11] In his evidence Mr Nicholls denied the offending. He claimed Ms Jane’s allegations were entirely fabricated out of spite so as to ensure that he would lose the care of his children. He said he did not receive any message from Ms Jane saying that she was coming to his property and denied any wrongdoing took place.

[12] It was agreed that there was a considerable time gap between the alleged offending and the date it was reported by Ms Jane. During this interim period the following are said to have happened:

(1) First, Ms Jane said that Mr Nicholls sent her several threatening text messages including one saying something to the effect “you didn’t see nothing”.2 Ms Jane said she was unsure whether she still had that

text. She said that she text back “lol”.3 Ms Jane said that other

messages sent to her phone suggested that people would be after her. She said that on one day she received 38 messages, all of which were

2 Police v Nicholls DC New Plymouth CRI-2012-043-3416, 15 May 2012 Transcript

Lyndsey Jane, Evidence in Chief at 8 lines 9-14 and Cross-Examination at 22, lines 8-10. See also her statement to police dated 1 November 2011.

3 Transcript Lyndsey Jane, Cross-Examination at 22, lines 10-11, 15 May 2012.

threatening. One said “I’m going to rip your house off”.4 Ms Jane said that, apart from two texts, she did not report those texts at the time.5

For his part, Mr Nicholls denied sending the texts. He said that it was Ms Jane who had sent him threatening and abusive text messages in April 2010 after he had failed to repay $150 Ms Jane acknowledged that she had lent him.6

(2) Second, it was accepted that after the alleged offending Mr Nicholls sold Ms Jane a radio controlled car for $200, and that she lent him

$150.7

[13] There is some uncertainty in the evidence about how the offending was actually reported:

(1) It is unclear to whom Ms Jane complained about the offending. She acknowledged she had made several complaints about Mr Nicholls, including two to Child, Youth and Family Services (CYFS) and two to the police. However, she said she never told CYFS about the allegation involving Mr Nicholls’ dog.8 One complaint to the police

concerned an alleged driving offence by Mr Nicholls.9

Ms Jane gave statements to the police on 3 September 2010 and

1 November 2011. The 3 September 2010 statement was generic and not particularly detailed.10

The complaints to CYFS were about Mr Nicholls’ suitability to care

_{for his children. Ms Jane said her motive for making those}

4 _{Transcript Lyndsey Jane, Cross-Examination at 22, lines 26-34, 15 May 2012.}

5 _{Transcript Lyndsey Jane, Cross-Examination at 34, lines 11-19, 15 May 2012.}

6 _{Transcript Cory Nicholls, Evidence in Chief at 60, line 30 onwards, 15 May 2012.}

7 _{Transcript Lyndsey Jane, Cross-Examination at 19 line 18, 15 May 2012.}

8 _{Transcript Lyndsey Jane, Cross-Examination at 11, line 6, 15 May 2012.}

9 _{Transcript Lyndsey Jane, Cross-Examination at 17, line 16, 15 May 2012.}

10 Transcript Detective Tippler, Cross-Examination at 46, lines 11-20, 15 May 2012.

complaints was her concern for the wellbeing of Mr Nicholls’

children.11

(2) Second, it was also unclear when the complaints were actually made.

It was accepted they were some time after the offending.12 Ms Jane said she could not remember exactly when she complained.13

She accepted in her evidence that the complaint to CYFS was made in about November 2010.14 She later clarified in her evidence that the police complaint about the offending was approximately eight months after the offending had occurred.15

[14] Ms Jane also acknowledged that she had said to friends she was “gonna get him”, meaning Mr Nicholls. She acknowledged she had made such statements after the break-up of her relationship with Mr Nicholls, including as recently as February

2012.16

The District Court decision

[15] The District Court Judge summarised the essence of the case he had to determine in the following way:17

The allegation is principally between the evidence of ... Miss Lyndsey Jane, and the defendant himself, and really comes down to, “You did, I didn’t”, in respect of the particular allegation.

[16] The District Court Judge preferred the evidence of Ms Jane. He said he formed a “clear view” on the matter; that her account was “clear”18 and even after being “significantly cross-examined as to her recall and as to her memory, in

_{particular as to matters of detail of the particular allegation”, her evidence was “more}

11 _{Transcript Lyndsey Jane, Cross-Examination at 12 and at 33, line 25 onwards, 15 May 2012.}

12 _{Transcript Lyndsey Jane, Cross-Examination at 12 and at 13, line 17, 15 May 2012.}

13 _{Transcript Lyndsey Jane, Evidence in Chief at 8, line 18, 15 May 2012.}

14 _{Transcript Lyndsey Jane, Cross-Examination at 13, lines 28-29, 15 May 2012.}

15 _{Transcript Lyndsey Jane, Cross-Examination at 37, line 17, 15 May 2012.}

16 _{Transcript Lyndsey Jane, Cross-Examination at 10, 15 May 2012.}

17 _{Police v Nicholls DC New Plymouth CRI-2011-043-3416, 15 May 2012 at [6].}

18 At [5].

consistent than less consistent” with her previous statements to CYFS or the police in September 2010 and subsequently.19 The District Court Judge observed:20

... there was a general consistency as to the overall event about which she was giving her evidence rather than an inconsistency and any difference would merely amount to a matter of detail in relation to the precise or finer details of what she has claimed to have observed.

[17] In relation to the specific challenges to Ms Jane’s evidence the District Court

Judge held:

(1) her delay in making the complaint was “entirely explicable”;21 and

(2) her account of the timing of the event was not inconsistent with other evidence.22

[18] The District Court Judge made the following observations in relation to his

assessment of Ms Jane’s credibility:23

... what impressed me was with the pressure that was put on [her], in her cross-examination was her withstanding the questions and answering them in her own terms and in a way which I thought displayed some absence of politicisation on her part or a failure to prevaricate with the answers which she gave.

[19] The District Court Judge also said:24

... there were answers to questions which would be difficult to answer had she not seen what she was telling the Court about. Those questions were answered in a way which were consistent with each other and that she was lucid as to these answers, that there was no waiting or delay or thinking to herself before the answers were given and no prevarication as to, for example, what might be the right answer. The answers that she gave came out straight away and it occurred to me that this has assisted her credibility and that the likelihood that she was telling the truth as to what she had seen was the greater.

19 _{At [9].}

20 _{At [11].}

21 _{At [11].}

22 _{At [14].}

23 _{At [16].}

24 At [18].

[Ms Jane] withstood a significant personal attack on her own honesty and she answered questions honestly, bringing her character and convictions and previous acts unrelated to the present into play so that the Court might be left with the view that this was a woman whose evidence might not be able to be trusted.

However, ... I formed the view that this was a witness who was somewhat concrete in her thoughts and her concepts and that she did not seem capable of a fanciful or an embroidered account of events ...

I would not be left in any doubt that she was not fabricating the evidence ... and that she recounted to the Court what in fact she has actually seen at the relevant time.

[21] The District Court Judge concluded his assessment of the evidence by stating that in his view, the elements of the charge were plainly met. He believed that the evidence was as described by Ms Jane.

Did the District Court Judge misdirect himself?

[22] Mr Mooney, counsel for Mr Nicholls submitted that the District Court Judge misdirected himself when he simply accepted the evidence of Ms Jane without explaining why he rejected Mr Nicholls’ evidence.

[23] Mr Mooney is correct when he says the District Court Judge did not explain why he rejected Mr Nicholls’ denials that he was present in the garage and offending in the way described by Ms Jane. I question however if the District Court Judge had to explain why he rejected Mr Nicholls’ evidence on the crucial issue. Logically, by accepting Ms Jane’s account of events, the District Court Judge implicitly rejected Mr Nicholls’ version of events. It does not appear to me to be wrong for the District Court Judge to have decided that Mr Nicholls was guilty beyond reasonable

_{doubt on the basis of him accepting Ms Jane’s account of what had happened.}

25 At [21]-[23].

[24] Mr Nicholls says the following features of Ms Jane’s evidence should have caused the District Court Judge to conclude that the prosecution case had not been proven beyond reasonable doubt:

(1) Mr Nicholls says there are real questions over Ms Jane’s account of exactly how Mr Nicholls was positioned when she saw him in the garage. She says Mr Nicholls was standing, leaning over his dog.26

She also says the dog was standing on four legs.27 Mr Nicholls

submits that if Ms Jane was correct then he would either have to have been kneeling or the dog elevated.

In my assessment Ms Jane’s evidence that she saw Mr Nicholls standing, and leaning over the dog while he masturbated the dog, is not the physical impossibility which Mr Nicholls suggests. The evidence relied upon by Mr Nicholls is not nearly as persuasive as Mr Nicholls would like to believe.

(2) Mr Nicholls says that because Ms Jane could not tell if his penis was erect or flaccid28 then her evidence is highly questionable.

However, Ms Jane’s explained that the dog obscured her view and prevented her from seeing if Mr Nicholls’ penis was erect or flaccid. She rhetorically asked “how could you see past a dog that was nuzzling his crotch and licking it to see if his penis was erect or flat?”.29

(3) Mr Nicholls says there are inconsistencies with Ms Jane’s evidence about the location of the shed and her view of Mr Nicholls within the

_{shed. However, my reviewing of the evidence is that when Ms Jane}

26 _{Transcript Lyndsey Jane, Evidence in Chief at 6, lines 9-13, 15 May 2012.}

27 _{Transcript Lyndsey Jane, Evidence in Chief at 7, lines 13-15, 15 May 2012.}

28 Transcript Lyndsey Jane, Evidence in Chief at 7, lines 10-12 and Cross-Examination at 28, lines

_{1-6, 15 May 2012.}

29 Transcript Lyndsey Jane, Cross-Examination at 28, lines 7-8, 15 May 2012.

entered the garage she initially saw Mr Nicholls from behind, and that as she moved further into the garage, and when he turned to see her, her view was side on. Similarly, the slight inconsistencies over whether Ms Jane saw a freezer in the corner of the shed or against a side wall of the shed are relatively minor concerns.

(4) Ms Jane acknowledged that she had made comments that she was “out to get [Mr Nicholls]”.30 This was obviously an important factor that has to be borne in mind when assessing whether or not the prosecution’s case was proven beyond reasonable doubt.

(5) Mr Nicholls says that the significant delay in reporting the case is a further factor that undermines the weight that should be placed on Ms Janes’s evidence.

I agree that the delay in reporting these matters does raise issues. The District Court Judge thought the delay was readily explained. The District Court Judge’s reasons for downplaying the significance of the delay in reporting the complaint are a little difficult to follow. Accordingly, in my assessment, the delay in reporting the complaint by Ms Jane is a factor that needs to be carefully weighed in the balance when assessing the strength of the prosecution case.

(6) Mr Nicholls says that there is an inherent inconsistency between Ms Jane’s allegations that he sent her a threatening text and her acknowledgement that some time after the incident she lent him money and purchased a toy car from Mr Nicholls.

In my assessment, this matter does not raise significant issues. Couples frequently vacillate in their attitudes to each other after

_{breaking up, even in cases where the breakup is acrimonious.}

30 Transcript Lyndsey Jane, Cross-Examination at 9, line 35, 15 May 2012.

(7) Mr Nicholls says that Ms Jane gave inconsistent explanations for going to the property. He points out that Ms Jane said that she went to the property to collect the last of her gear,31 that she went to pick up a play house, “or parts of it”32 and later added a pram to the list of

_{items she had to get.}33

In my assessment, this aspect of Ms Jane’s evidence does not raise any serious grounds of concern. Her accounts of her reasons for going to Mr Nicholls’ place are not inconsistent.

(8) Finally, Mr Nicholls says that it is implausible for Ms Jane to have text Mr Nicholls to say she was coming around and for him to commit the offence she says she saw, knowing that Ms Jane was about to arrive.

However, as I understand the evidence, Mr Nicholls says he did not receive any text from Ms Jane.

[25] In my assessment, the features of Ms Jane’s evidence that require very careful scrutiny are the reasons for her delay in reporting her complaint, and her acknowledgement that she was “out to get [Mr Nicholls]”. All other aspects of her evidence that have been microscopically dissected by Mr Nicholls appear to me to be of little significance.

Analysis

[26] In balancing the two reservations that I have is the strong and clear conclusion from the District Court Judge that he found Ms Jane’s evidence

_{convincing. He had no hesitation in accepting her account of events.}

31 _{Transcript Lyndsey Jane, Evidence in Chief at 2, line 14, 15 May 2012.}

32 _{Transcript Lyndsey Jane, Evidence in Chief at 4, lines 27-31, 15 May 2012.}

33 Transcript Lyndsey Jane, Cross-Examination at 19, lines 1-4, 15 May 2012.

[27] This was a case in which the District Court Judge clearly knew that he needed to assess the credibility of Ms Jane and Mr Nicholls. His mind was clearly focused on this question.

[28] This Court is also very mindful of the District Court Judge’s assessment of the way in which Ms Jane withstood cross-examination. It would, undoubtedly, have been very difficult for her to have maintained her composure during cross- examination if she had not been telling the truth.

[29] Ultimately, the District Court Judge had before him two explanations. He elected to accept the explanation of Ms Jane. He was entitled to do so.

[30] In this Court, Mr Nicholls faces the difficulty of persuading this Court that the decision reached by the District Court Judge was not supported by the evidence. Mr Nicholls has not been able to satisfy the Court that the conclusions of the District Court Judge were contrary to the weight of the evidence. Indeed, there was more than sufficient evidence before the District Court Judge to enable him to have reached the conclusion which he reached.

[31] As this case hinged upon credibility findings which have not been undermined by any other evidence, I uphold the findings of the District Court Judge and dismiss the appeal. The District Court Judge’s finding that Ms Jane was telling the truth and had given an accurate account of what she saw is dispositive of the case. In accepting Ms Jane’s account, the District Court Judge was entitled to conclude that the prosecution case had been proven beyond reasonable doubt.

Conclusion

[32] Mr Nicholls’ appeal against conviction is dismissed.

[33] The penalty imposed by the District Court remains in place.

_{D B Collins J}

Solicitors:

Mooney & Webb, New Plymouth for Appellant

Crown Solicitor, New Plymouth for Respondent