Pearce v Police [2012] NZHC 2633 (10 October 2012)

Last Updated: 17 October 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-44 [2012] NZHC 2633

BETWEEN MARC RAYMOND PEARCE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 9 October 2012

Counsel: R Bowden for Appellant

M Jarman-Taylor for Respondent

Judgment: 10 October 2012

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 10 October 2012 at 2.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Whangarei

Counsel:

_{R Bowden, Whangarei}

PEARCE V NEW ZEALAND POLICE HC WHA CRI 2012-488-44 [10 October 2012]

The appeal

[1] Following a defended hearing in the District Court at Whangarei before

Judge McDonald, Mr Pearce was acquitted of assaulting the female complainant, on

21 August 2011, but convicted of breaching, on 21 January 2012, a protection order in favour of the same complainant, by behaviour amounting to psychological abuse.1

[2] Mr Pearce appeals against his conviction on the protection order charge. He does so on the grounds that the decisions to acquit and convict respectively were inconsistent and render the conviction unsafe.

The facts in outline

(a) The alleged assault

[3] The charge of male assaults female arose out of an incident that occurred on

21 August 2011. At the time, Mr Pearce and the complainant were in a relationship that was in the throes of ending.

[4] The complainant had given Mr Pearce permission to hunt pigs on her property. On 21 August 2012, after returning from a visit to Auckland, she saw Mr Pearce’s car in her driveway and indications that someone had gone into her house uninvited and made coffee and poached some eggs.

[5] At the time, Mr Pearce was at a barbeque at the home of Mr Johnson. After some telephone discussions with the complainant, Mr Pearce returned to the complainant’s home in an annoyed state. Mr Johnson accompanied him.

[6] At some point, the complainant was burning rubbish in an incinerator to the rear of the house. Mr Pearce walked around the house to that location. Some words

_{were exchanged, following which the complainant alleged that Mr Pearce slapped}

1 Police v Pearce DC Whangarei CRI 2012-88-273, 10 February 2012 (Judge McDonald).

her with an open hand aiming for the side of her face but, in fact, missed and hit her nose and mouth, causing her bottom lip to split and for blood to flow from it.

[7] Mr Pearce’s evidence, supported by Mr Johnson, was that he thought the complainant was intoxicated and walked away after saying “it’s over”. He denied hitting her.

[8] Photographic evidence taken by a police officer following the complainant’s later attendance at a police station suggests that there had been a cut to the lower lip from which blood had flowed and congealed.

(b) The alleged breach of the protection order

[9] As a result of an amendment made prior to the hearing, Mr Pearce was charged with breaching the protection order by engaging in behaviour including intimidation which amounted to psychological abuse.2

[10] On 2 September 2011, the complainant obtained a temporary protection order against Mr Pearce. This was served on Mr Pearce. He acknowledged that he was aware of its contents.

[11] The complainant and Mr Pearce lived relatively close together in a rural area. On 21 January 2012, the complainant, a friend and her friend’s young daughter were walking from the complainant’s house to her parents’ house about one kilometre up the road. This occurred at about 8.20pm, which in January equated to twilight time.

[12] During their walk they were surprised to see Mr Pearce walking in the opposite direction. Mr Pearce stopped a short distance up the road and went up a driveway. The complainant and her friend waited for a short time before continuing their journey.

[13] The complainant alleged that as she and her friend approached the driveway, Mr Pearce moved quickly along the driveway with something she regarded as

2 Domestic Violence Act 1995, s 19(1)(d).

resembling a firearm in his hands and made a movement across his throat in a threatening way, as if he were going to cut someone’s throat.

[14] The complainant’s friend did not support her evidence on the existence of a gun but thought there was something in Mr Pearce’s hand at the time. She gave evidence corroborating the complainant’s so far as the cutting motion was concerned.

[15] Mr Pearce’s explanation was that as he was moving out of the driveway he was carrying his beanie and made a gesture, as his arm moved across his body that he intended to go around the corner and down the road.

[16] When the complainant and her friend saw Mr Pearce’s gesture and thought

Mr Pearce was following them, they ran away to escape from him.

The District Court Judge’s decision

[17] Although the two charges were heard together, the District Court Judge reached different conclusions. It is necessary to understand why he did so.

[18] On the assault charge, after referring to the evidence given by the complainant and Mr Pearce, Judge McDonald said:

[13] Had I been left at that point in the evidence, I would have been driven by what I had heard to find it proved beyond reasonable doubt that he did assault her. However, that was not the end of the evidence.

[19] What tipped the balance was Mr Johnson’s evidence that he saw no injury to the complainant nor any blood on her lip or chin. Judge McDonald, while plainly having rejected Mr Pearce’s evidence,3 could not be satisfied to the criminal standard of proof that the assault occurred, notwithstanding the absence of any other explanation for the injury suffered by the complainant that is evident from the

_{photographic evidence. For that reason, while making it clear that he did not}

3 Police v Pearce DC Whangarei CRI 2012-88-273, 10 February 2012 at para [13], set out at para

[18] above.

disbelieve the complainant,4 the Judge was left in doubt about whether the assault had been proved and dismissed the information.

[20] The Judge took a different view on the protection order charge. On this charge, of course, the evidence was virtually identical on each side up to the critical point where Mr Pearce made a gesture towards the complainant and her friend. Judge McDonald recorded Mr Pearce’s position with regard to the complainant’s evidence:

[21] Mr Pearce generally accepts that narrative except in this regard. He says he walked up the driveway to give him some height to see whether [the complainant] was going to follow and come around the corner and up the road. He did not explain what he would have done if that had happened. When they had not, he assumed they had gone into their own driveway, so he continued down onto the road and around the corner again. He saw them in the area of their entrance-way driveway, that he made a movement across his chest with an open hand, indicating to them that he wanted to go around the corner and down the road, and that was his purpose. There was nothing threatening in that, what he had in his hand was his beanie. He continued to walk down the road and they continued to walk along their driveway which runs parallel to each other with the having the height advantage. That he in no way made a movement across his throat that could be interpreted as a throat cutting gesture. He said he was walking down the road as he would sometimes do to go and see a mate who lived in Pigshead Road, some kilometres from his property, for the purpose of seeing whether that mate had some work for him.

[21] On this occasion, the Judge was faced with supporting evidence from the complainant’s friend, as opposed to confirming evidence of Mr Pearce’s on the assault charge. After considering the evidence given by the friend, Judge McDonald said:

[24] I find it proved beyond reasonable doubt that Mr Pearce did come down the driveway in a way which would have led [the complainant] to be concerned, dressed as he was. That he did make a gesture across his throat indicating a cutting motion, that that caused both women to flee. That is behaviour which intimidated [the complainant], it did have a psychological impact upon her as she described it to me.

4 Ibid, at para [17].

[22] Mr Bowden, for Mr Pearce, submitted that the Judge erred in finding in favour of the complainant as to credibility having not accepted her evidence on the assault charge. He submitted that, so far as the protection order charge was concerned, the dim lighting on a narrow country road, flanked by tall trees, militated against acceptance of the complainant’s and her friend’s evidence as reliable. He also pointed out that the friend’s evidence was that the gesture was made some 50 metres from the complainant and herself, while the Judge, he submitted incorrectly,

put the distance as 20 to 30 metres.5

[23] In those circumstances, Mr Bowden submitted that I could reconsider the decision on credibility and find that the Judge had erred. In doing so he relied on Austin, Nichols & Co v Stichting Lodestar6 and Fuatavai v Police.7 In the latter case, Ellis J said:

[21] Although I accept that Austin, Nichols makes it clear that credibility remains an area where an appellate Court may properly think twice before substituting its own view for that of the Court below, 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. Indeed, it seems to me that such scrutiny may in fact be required in a case such as the present where the credibility assessment appears to constitute the sole basis for the wholesale rejection of one side to the exclusion of the other. (footnotes omitted)

[24] Ms Jarman-Taylor, for the Police, submitted that the findings of guilty and not guilty were not inconsistent. She referred to the test for considering inconsistent verdicts on appeal, recently restated by the Court of Appeal in R v Shipton.8 In short, Ms Jarman-Taylor submitted that there was a rational reason for the Judge’s decision to acquit on the assault charge while convicting on the protection order charge and

_{that the appeal ought to be dismissed.}

5 _{Ibid, at paras [20].}

6 _{Austin, Nichols & Co v Stichting Lodestar [2008] 2 NZLR 141 (SC).}

7 _{Fuatavai v Police [2012] NZHC 2349.}

8 R v Shipton [2007] 2 NZLR 218 (CA).

[25] In R v Shipton, the Court of Appeal considered the circumstances in which an appeal may be successful when an allegation of inconsistent verdicts is made. While the judgment refers to a jury verdict, the same principles apply (subject to the availability of a reasoned decision in a Judge-alone trial) to a decision of a Judge who is acting as a fact-finder.

[26] Delivering the judgment of the Court of Appeal in Shipton, Hammond J said:

[75] The general principle has long been that a conviction is unsafe if no reasonable jury, properly instructed, could have arrived at the conclusion which was in fact reached (R v Wharton [1955] Crim LR 120 per Devlin J). The burden is on the accused to demonstrate that the only explanation for the inconsistency must be that the jury was confused or adopted the wrong approach, thus making the verdict unsafe. Only this can warrant the intervention of an appellate Court, and generally there ought to be a curial reluctance to interfere with a jury verdict (R v H [2000] 2 NZLR 581 at p

589 per Keith J).

[76] A prima facie inconsistency is never enough to set aside a verdict. Once a prima facie inconsistency is established, the Court must inquire whether there is any rational or logical explanation for the inconsistent verdict. Sir John Smith has stated the requisite approach admirably in a case note to R v JK [1999] Crim LR 740 at p 741:

“[T]he jury system is workable only if we assume that, in the absence of any evidence to the contrary, the inscrutable jury has behaved rationally. So where verdicts are alleged to be inconsistent, the court must consider whether there is a rational way in which the jury could have arrived at the two verdicts and, if there is, to assume that this was the path which the jury followed . . . The jury is not, of course, necessarily saying by its differing verdicts, that some allegations are untrue, only that they are not sure that they are true.”

[77] Time after time in appeals to this Court it is argued, as counsel argued here, that because the jury must have “disbelieved” a witness to acquit on one count, it was inconsistent to rely on her to convict on another count. The argument is utterly fallacious; there may be all sorts of valid reasons why the jury may be convinced by a witness on one count but not on another. To put this another way, there is no reason why credibility must be static. As was said in R v G [1998] Crim LR 483, “A person’s credibility is not a seamless robe, any more than is their reliability”. It is not necessarily illogical for a jury to be convinced as to the credibility of some aspects of one person’s story, but not as to others, a fortiori where it is convinced, but not beyond a reasonable doubt.

(Emphasis added)

[27] I do not disagree with Ellis J’s description of the circumstances in which an appellate Judge may reconsider credibility findings on appeal. The modern approach to credibility findings is not to rely on such things as demeanour or body language but, rather, to focus on the plausibility of the respective versions of events by measuring evidence given by a witness against other evidence accepted by the Judge, whether oral or documentary. Also relevant is the internal consistency, or inconsistency, of a particular witness’s evidence.

[28] In my view, Judge McDonald correctly approached the case on that basis. It was not perverse for him to dismiss the assault charge. Once the Judge had (implicitly) made it clear that he did not accept the evidence given by Mr Pearce,9 it was necessary for him to compare the evidence given by Mr Johnson and the complainant. He was left in doubt as to who to believe and therefore dismissed the charge.

[29] On one view, Mr Pearce might consider himself fortunate to have been acquitted because the absence of any other explanation for the blood on the complainant’s lip and chin lent a degree of respectability to her evidence. Having said that, in determining whether a criminal charge has been proved beyond reasonable doubt, it is not enough for a Judge to find that an event is very likely to have happened; the Judge must be satisfied beyond reasonable doubt that it did.10

The high standard of proof is the explanation for the acquittal.

[30] The Judge was required to look afresh at the protection order charge. He did so. His conclusion on whether the event occurred as described by the complainant is consistent with his earlier implicit rejection of Mr Pearce’s evidence and his observation that he did not disbelieve the complainant. It is also consistent with the existence of supporting evidence from the complainant’s friend about the gesture that

_{Mr Pearce made. Although the difference in the distances observed by the friend and}

9 Police v Pearce DC Whangarei CRI 2012-88-273, 10 February 2012 at para [13], set out at para

_{[18] above.}

10 R v Wanhalla [2007] 2 NZLR 573 (CA) at [48] and [49] (Williams Young P, Chambers and

Robertson JJ).

the finding made by the Judge might give cause to pause, in the context of the likely light at that time of year, it is not enough to persuade me that the Judge erred in reaching his conclusion.

[31] On that basis, having regard to the test enunciated in R v Shipton,11 I cannot say that there is any inconsistency between the verdicts that would justify interference with the District Court Judge’s decision to convict.

[32] I conclude with some comments on an issue raised by Mr Bowden. During the course of his submissions, he referred me to a judgment of Judge Duncan Harvey in another case in which Mr Pearce was alleged to have breached the same protection order less than one month later.12 The Judge, after reminding himself about the burden and standard of proof and the “real history” between the complainant and Mr Pearce, was not prepared to say that the charge had been proved beyond reasonable doubt, in the absence of independent evidence.13

[33] I make two comments, even though this point was not pressed by Mr Bowden. First, while the decision was put to me to support Mr Bowden’s submission that the complainant had not been accepted as a credible witness in that case, the real position was that the Judge was left in a state of equipoise, meaning that the charge had not been proved beyond reasonable doubt. Second, more importantly, the fact that a witness might not be accepted in one situation does not establish that he or she has a tendency not to tell the truth. Shipton sets out the

reasons why such an approach is impermissible.14

Result

_{[34] The appeal is dismissed.}

_{Delivered at 2.00pm on 10 October 2012.}

P R Heath J

11. R v Shipton [2007] 2 NZLR 218 (CA) at paras [75]–[77], set out at para [26] above; particularly the highlighted portion of para [77].

12 _{Police v Pearce DC Whangarei CRI 2012-088-590, 24 May 2012 (Judge Duncan Harvey).}

13 _{Ibid, at para [10].}

14 R v Shipton [2007] 2 NZLR 218 (CA) at paras [77], set out at para [26] above.