Ellis v Police [2012] NZHC 362 (7 March 2012)

Last Updated: 28 March 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-454-000044 [2012] NZHC 362

BETWEEN AARON PATRICK JOHN ELLIS Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 March 2012

Counsel: No appearance for Appellant

M R L Davie for Respondent

Judgment: 7 March 2012

_{ORAL JUDGMENT OF GENDALL J}

[1] This is an appeal against a decision of Judge J R Callender made in the District Court at Levin on 14 October 2011, when he convicted the appellant of a charge under s 21(1)(a) of the Summary Offences Act 1981 that with intent to intimidate a female complainant, he threatened to injure a member of her family. The appellant filed his notice of appeal on 25 October 2011 and this matter was set down for hearing today. The appellant has failed to attend and has made no communication with the Court as to the reasons for his non-appearance. The Court is entitled to dismiss the appeal for non-prosecution under s 133 of the Summary Proceedings Act 1957 and I would be inclined to do so, but in any event it is an appeal without merit and I propose to dismiss it on the merits.

[2] Mr Ellis in his notice of appeal contends that Judge Callender erred in fact and in law, denying him the right to call witnesses and to present evidence in his defence. And he further submitted that the complainant’s evidence should not have been accepted or relied upon by Judge Callender because of what the appellant says

_{was some flaw in her character through use of drugs.}

ELLIS V NEW ZEALAND POLICE HC PMN CRI-2011-454-000044 [7 March 2012]

[3] For completeness I add that the appellant although convicted was discharged without any penalty.

Background

[4] The appellant was alleged to have confronted a female complainant, threatening that he would injure her partner. The prosecution case was that he did this to intimidate the woman because of a longstanding dispute between himself and his former partner, over their children. The complainant was not the mother of the children but a step-niece of the appellant and it seems she did not wish to be involved in any dispute or argument in the street in Levin and endeavoured to walk away and not engage with the appellant.

[5] The prosecution case was that the appellant kept following her and he said to her “watch out or I will kill him”, referring to the partner of the young woman. Further, the prosecution case was that the appellant said he would get some associates of his onto the woman’s family and something big was going to happen. The complainant’s evidence in the District Court was that the appellant was acting in a deranged manner.

[6] The appellant himself gave evidence to deny making any threat, but accepted that he was upset and disgruntled because he did not know where his children were. He said that he did not intend to frighten or intimidate the woman or to make any threat to harm a member of her family.

[7] Judge Callender correctly said that the “crunch issue” was who was to be believed as between the complainant and the appellant. He had to assess credibility and the Judge said:[1]

... So I have to determine whose evidence has the ring of truth to it, whose evidence is believable and acceptable, whose evidence is the most trustworthy and reliable.

[8] The Judge then gave and analysed the reasons why he concluded that he accepted and preferred the evidence of the complainant female, and that he did not accept the appellant’s version. The Judge said that he thought the appellant:[2]

... was overwrought and upset about his children having been hidden from him. He focused on [the complainant] who was, of course, a member of his former family and may well have had some idea as to just where the children were. He followed her. He repeated the question as to their whereabouts.

I think he overstepped the boundaries and he did make the threatening comment to [her]. I am satisfied beyond reasonable doubt that that was with the intention of intimidating her, although not, ..., to quite the serious degree that the witness has suggested.

Discussion

[9] The appellant represented himself at the defended hearing, but the District Court had gone to the trouble to appoint Mr A N Isac, as Amicus Curiae, to assist the Court.

[10] The thrust of the appellant’s argument on appeal, or at least as contained in his notice of appeal, is that he was denied the right to call witnesses and to submit evidence because Judge Callender had declined to grant to him and adjournment. In dealing with that application for an adjournment the Judge said that the appellant

claimed:[3]

it would be unfair for the prosecution to proceed today because he is of the view that other matters before other Courts need to be properly disposed of sequentially before these two matters should be heard. His argument really is that he needs the evidence from the other matters to bring to this Court to help him defend the present informations. ...

[11] After dealing with the argument of the appellant Judge Callender concluded there was no rule that required cases to be heard sequentially, and whilst there may be a link between some of the personalities involved, nothing had been presented by or on behalf of the appellant to show that anything would be gained from adjourning the present summary proceedings to enable the hearings of or other cases to be

_{disposed of first. Judge Callender said the appellant had had a long time to prepare}

for those cases and if there was evidence to assist him in the instant case then it should have been prepared for presentation considerably earlier.

Discussion

[12] The history shows that the informations were originally laid on 29 June 2010 and related to events of 29 January 2010. The appellant had multiple appearances thereafter. A defended hearing was allocated on 24 August 2010 for the case to proceed on that defended basis on 2 December 2010. The appellant was then represented by Mr Becker as counsel. Mr Becker advised the Court that the appellant was not ready to proceed then on 2 December 2010. To quote from a notation on the information counsel said that he “would be embarrassed if forced on”. There was a later appearance on 23 December 2010 and again on 21 March

2011 when Mr Becker sought, and was granted leave to withdraw as counsel. Thereafter a defended hearing was scheduled for 14 April 2011, but this too was abandoned because other charges were apparently progressing before the Wellington District Court. The appellant appeared again on 20 April 2011, was informed of his right to legal representation and the availability of legal aid. When he appeared again on 31 August 2011 the fixture date for 14 October 2011 was fixed and Mr Isac was then appointed as Amicus.

[13] So in summary a period of almost 16 months elapsed from the time of the filing of the informations to the date of the defended hearing and Judge Callender was entirely correct in refusing an application to grant the adjournment. His was a discretionary decision which he was well entitled to make and nothing has been shown to advance that there were witnesses that could aid the appellant in terms of the factual matters of what occurred in the street on 29 January 2010 because the case came squarely down to the evidence of two persons, namely the appellant and the complainant. Nothing has been shown to support any claim that a miscarriage of justice occurred and the appellant has not pointed to anything, either in his submission to Judge Callender or in his written notice of appeal to this Court, which would have in fact been relevant evidence to assist him in his defence.

[14] The second point relates to the question of credibility. That is, as Judge Callender observed, a matter for the fact-finder. Simply because a witness may admit unlawful or unacceptable behaviour, or matters which reflect upon his or her character does not mean that, as the appellant says, the evidence “should not have been relied upon”. Sometimes those matters may affect credibility assessment of a witness and whether the case has been proved beyond reasonable doubt. But it is not the case that evidence of a witness, prosecution or defence, is to be rejected solely because of possible character flaws on their behalf. There are many cases where a witness’s evidence is accepted despite, for example, them being prison inmates. But the issue was squarely in the forefront of Judge Callender’s mind and he concluded that he accepted the complainant’s evidence and found the charge established beyond reasonable doubt. And as a fact-finder who saw and heard each witness give evidence he was entitled to reach that conclusion. The appeal simply challenges a credibility finding, which the Judge was entitled to make.

[15] The appeal is entirely without merit and really was hopeless and is dismissed on the merits.

Solicitors:

Crown Solicitor, Palmerston North for Respondent

J W Gendall J

---

[1] New Zealand Police v Ellis DC Levin CRI-2010-031-1188, 14 October 2011 at [12].
[2] _{At [16] – [17].}
[3] New Zealand Police v Ellis DC Levin CRI-2010-031-1188, 14 October 2011 (Ruling) at [3].