Mitchell v Police [2012] NZHC 699 (16 April 2012)

Last Updated: 26 April 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000079 [2012] NZHC 699

YANENA-DIANNE MITCHELL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 16 April 2012

Appearances: Appellant (Self-represented) in Person

Ms J M O'Sullivan for the Crown

Judgment: 16 April 2012

_{(ORAL) JUDGMENT OF DUFFY J}

Solicitors: Almao Douch P O Box 19173 (DX GP20023) Hamilton 3244 for the

Respondent

Copy To: Y D Mitchell (Self-represented Appellant) P O Box 19 Whangaparaoa

_{North Shore 0943}

MITCHELL v POLICE HC HAM CRI-2011-419-000079 [16 April 2012]

[1] The appellant, Ms Mitchell, filed a notice of appeal against her conviction and sentence in the District Court on a single charge of assault. She was convicted and sentenced to pay reparation of $750 at a rate of $10 per week and, further, to serve 60 hours’ community work. Ms Mitchell’s written submissions have been directed towards an appeal against conviction, and I have clarified with her today that the scope of her appeal is confined to an appeal against conviction. I do not propose, therefore, to deal with the appeal against sentence.

Facts

[2] The facts as presented by the prosecution at the defended hearing in the

District Court were as follows.

[3] On 22 April 2011, Ms Mitchell received a text message from the victim, Ms Hillier, requesting the use of a car to travel to work the following day. The car belongs to Janice Pearl, who is Ms Mitchell’s mother. There exists an arrangement between Ms Pearl (who lives on Waiheke Island) and Ms Hillier whereby Ms Hillier is permitted use of the car.

[4] On 23 April 2011 at 7.00 am, Ms Mitchell drove to Ms Hillier’s house in the car in question and banged loudly on the front door, yelling obscenities as she did so. Ms Mitchell’s boyfriend remained in the car in the front passenger seat. Ms Hillier got into the car, and Ms Mitchell drove back to her own address.

[5] During this journey, Ms Hillier was concerned at the speed at which Ms Mitchell was driving. Ms Hillier tapped Ms Mitchell on the shoulder a number of times and requested that she slow down. Ms Mitchell, in fact, sped up. All parties alighted from the car at Ms Mitchell’s home address, where a number of other people were gathered on the driveway. Ms Hillier told Ms Mitchell never again to come to her home and swear at her in the manner in which Ms Mitchell had. Ms Hillier then pushed her way past the people on the driveway and made her way back into the car.

[6] At this stage, Ms Mitchell grabbed Ms Hillier by the hair, pulled her backwards, spun her around, and forced her head downwards. Ms Hillier attempted

to grab Ms Mitchell’s shirt to prevent a fall, and Ms Mitchell bit Ms Hillier’s right wrist. While Ms Hillier was on the ground, Ms Mitchell pushed Ms Hillier’s face into the dirt. Ms Hillier then got up, got into the car, and drove away.

[7] At 8.30 am, Constable Pitchford attended Ms Hillier at her address. He interviewed Ms Hillier and her husband (Mr Hillier), and took photographs of the injuries sustained by Ms Hillier. A photographic book of these injuries was produced at the defended hearing. Ms Hillier suffered harm to the muscles and ligaments at the back of her neck, as well as grazes on her face and knees. Ms Hillier visited the hospital for these injuries, and was required to have her neck in traction for two weeks following the assault.

District Court judgment

[8] The District Court Judge who heard the prosecution evidence was satisfied beyond reasonable doubt of the reliability and credibility of the witnesses and, accordingly, he found all the elements of the offence with which Ms Mitchell had been charged proven. The Judge noted, at [13], that Ms Mitchell, as is her right, chose not to call evidence, though nothing could be assumed from this to her detriment.

[9] At the appeal hearing today, I questioned Ms Mitchell as to whether or not she had chosen not to call evidence and she confirmed that was the approach taken in the District Court. I did this because her submissions referred to an affidavit that she had filed in the District Court.

[10] Regarding the affidavit, I note the following. Section 83 of the Evidence Act

2006 provides for the manner in which evidence is to be given. In a criminal proceeding, the ordinary way for evidence to be given is orally. Evidence can be given by way of affidavit, if both the prosecution and the defendant consent to the giving of evidence in this form.

[11] There is nothing in the District Court judgment or in the notes of evidence that refers to consent being given by both the prosecution and the defendant to

Ms Mitchell’s affidavit being received in evidence. Indeed, the judgment and the notes of evidence are silent regarding an affidavit. The notes of evidence simply record that Ms Mitchell elected not to call evidence and she has confirmed this to me today. I find, therefore, that the affidavit did not form part of the evidence before the District Court Judge. There has been no application to produce fresh evidence on appeal. Accordingly, I put the affidavit to the side. It is not open to me, therefore, to consider anything that was in the affidavit.

[12] The effect of Ms Mitchell’s decision not to call evidence was that there was no evidence to contradict that of the prosecution witnesses. Whilst the prosecution carries the burden of proof in a criminal proceeding to the standard of beyond reasonable doubt, if the prosecution evidence makes out a prima facie case and there is no evidence to contradict the prosecution evidence, the likely result will be that the judge hearing the matter will find himself or herself persuaded beyond reasonable doubt. There can be times when the prosecution evidence, although establishing a prima facie case, in some way falls short of meeting the standard of beyond reasonable doubt. But whether or not, in this case, the evidence passed that threshold was essentially a matter for the District Court Judge, who had the benefit of seeing and hearing the evidence to assess this issue properly.

[13] At [14] of his judgment, the Judge referred to Ms Mitchell’s submission that Ms Hillier had not merely tapped Ms Mitchell in the car, but had, in fact, hit her. This might have provided a foundation for a defence of self-defence. However, the Judge found, at [18] of the judgment, that he did not accept this version of events. Given that he had not heard oral evidence from Ms Mitchell, it was very much open to the Judge to reach this conclusion. Further, the Judge’s view that Ms Hillier did no more than tap Ms Mitchell on the shoulder did not, in his view, meet the definition of assault (see [19]). Given the events outlined in the prosecution facts, in which the tap on the shoulder was said to have been made in the context of Ms Hillier attempting to get the attention of Ms Mitchell and asking her to slow down whilst driving the car, I consider it was open to the Judge to find that a tap on the shoulder in those circumstances did not amount to assault.

[14] At [16], the Judge noted that Ms Mitchell had not in any way challenged the facts of the actual assault. From my reading of the notes of evidence, I agree with the Judge’s view. As I have already said, in the absence of any challenge to the facts as outlined by the prosecution, the likely result was always going to be that the offence would be proved. Nor did the Judge find that Ms Mitchell’s actions could constitute self-defence, given the lapse of time between the exchange in the car and the later assault at Ms Mitchell’s address (see [20]). The Judge concluded, therefore, that the prosecution had discharged its onus in relation to self-defence; that is, it had proved beyond reasonable doubt that self-defence could not be relied upon.

[15] At [21], the Judge dismissed the jurisdictional challenge raised by the appellant based on Māori Sovereignty/Settlers’ Law arguments.

[16] The Supreme Court in Wallace v R [2011] NZSC 10 recently declined leave to an appellant to advance an argument based upon lack of jurisdiction on the basis that the grounds were plainly unsound legally. In Phillips v R [2011] NZCA 225, the Court of Appeal observed at [10]:

The New Zealand Parliament has a sovereign power to legislate for criminal offending such as that disclosed in the present appeals. None of the legislation cited by the appellants provides a separate justice system for Māori offenders. While some legislation New Zealand expressly recognises the customary rights of Māori, the legislation at issue in these appeals does not do so.

The Court of Appeal in Phillips v R was determining an appeal against conviction for offences under the Misuse of Drugs Act 1975. I consider that the assault charge, which was laid against Ms Mitchell under s 196 of the Crimes Act 1961, falls within the same category of legislation as the Misuse of Drugs Act. It follows that the findings of the Court of Appeal are binding on me and determine that the arguments based upon Māori Sovereignty/Settlers’ Law must fail.

[17] The Judge in the District Court was satisfied beyond reasonable doubt that the assault of Ms Hillier had occurred and, therefore, he found Ms Mitchell guilty.

[18] In an appeal, Ms Mitchell has the onus of satisfying the appellate court that it should differ from the original decision. I accept that it is for the appellate court to come to its own view on the merits.

[19] I have carefully considered the written material that Ms Mitchell has filed in support of the appeal. I can see that she has gone to some considerable effort to provide the Court with a clear outline of the basis of her appeal.

[20] I am satisfied that this is a situation where I cannot, in terms of legal principle and logic, reach any different conclusion from that reached by the District Court Judge. Accordingly, the appeal must fail. It is, therefore, dismissed.

Duffy J