Boyd v Police [2012] NZHC 713 (18 April 2012)

Last Updated: 16 May 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-233 [2012] NZHC 713

BETWEEN PHILLIP BOYD Appellant

AND THE POLICE Respondent

Hearing: 26 March 2012

Appearances: P T Eastwood for appellant

F Cuncannon for the respondent

Judgment: 18 April 2012

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 9.30 am on Wednesday 18 April 2012

Solicitors:

P T Eastwood, Auckland [e-mail]

_{Crown Solicitor Auckland,. [e-mail]}

BOYD V POLICE HC AK CRI 2011-404-233 [18 April 2012]

[1] On the morning of 29 October 2009, the appellant became embroiled in a fight with his 21 year old son, James, during which he is said to have taken James to the ground in a headlock and held him there for some seconds. He was also said to have pushed his wife. The appellant was charged with assaulting both.

[2] At the conclusion of a Judge alone trial held on 3 May 2010, Judge Wilson QC found the charge in respect of James to have been proved, but he dismissed the charge of assault against the appellant’s wife.

[3] On 11 November 2010, the appellant was sentenced to six months imprisonment. For procedural reasons, which it is unnecessary to traverse here, his subsequent appeals against conviction and sentence became separated. On

22 February 2012, Woodhouse J dismissed the appeal against sentence.

[4] Mr Boyd has served his sentence, but now pursues his appeal against conviction.

[5] Mr Eastwood argues that:

(a) The trial Judge wrongly refused to take into account the contents of a videotaped statement made by Mr Boyd to the police on the day following the incident;

(b) In the alternative, if he did take the statement into account, then he did so following a private viewing of the videotape in his chambers in circumstances constituting a breach of natural justice;

(c) The Judge ought not to have rejected the appellant’s defence of self- defence.

Offending background

[6] Although living in the same house with their children, the appellant and his wife were effectively estranged. Evidence was given before Judge Wilson of frequent arguments. Mrs Boyd preferred to be called Ms Patterson, and her children each said that the appellant often yelled abuse at his wife, whom he suspected of having a relationship with another man.

[7] On the morning of 29 October, a further argument developed. James joined his mother. What happened next is partially in dispute. The appellant says that James took a swing at him and that, although the blow did not land, the appellant placed James in a headlock and took him to the ground where he was held for some seconds. He says he was acting in self-defence. James, on the other hand, says that the appellant pushed him first, and in response he (James) made an ineffectual attempt to land a blow, following which he was, as the appellant accepts, placed in a headlock and pulled to the ground. James says that his ability to breathe was impeded for some seconds. His account is supported by his mother and his sister, Jasmine. The latter called the police while the altercation was proceeding. Mr Boyd rapidly left the room, packed a bag and left the house.

The videotaped statement

[8] On leaving the house, Mr Boyd went to see his lawyer, Mr Cox. Having taken legal advice, he arranged to go to the North Shore Policing Centre on the morning of 30 October 2009. There he met Constable Charlotte Donaldson. He had with him a written statement prepared with the assistance of Mr Cox. Constable Donaldson took a videotaped statement from Mr Boyd. The interview lasted about

20 minutes in all. The first part of it comprised a reading by Mr Boyd of the pre- prepared written statement.

[9] Subsequently, Constable Donaldson prepared a synopsis of the interview. The Court is told that it is routine for the police to prepare a brief synopsis before a decision is taken to have the whole interview transcribed. The synopsis was available at trial. It reads as follows:

TIME DESCRIPTION

06m 35s Interview Commenced

30/10./2009 9.02 am

BOYD/Phillip

DOB 05/12/1963

Add: 189B Lake Road Belmont

OCC: Law Student, AUT

COX/John

Blomkamp Cox Lawyers

Mr Boyd’s lawyer

08m 02s Bill of Rights given and understood

08m 28s Tell me everything that happened in an argument between you and your wife.

08m 29s BOYD reads written statement

12m 27s ‘James moved towards me in a more threatening manner. I moved to defend myself and found myself on the floor with James being restrained.

12m 43s ‘Juanita moved to interject on James’s behalf. I let go of James and removed myself from the house and went to seek legal advice from John COX.’

15m 12s Summarise Statement

15m 51s Challenged BOYD about pushing his wife. BOYD denies anything happened.

20m 10s Interview suspended

20m 59s Interview recommenced

22m 06s Q: Describe what actually happened.

A: ‘I subdued him and restrained him.’

26m 47s Interview ended 9.22 am.

The trial process

[10] There is some suggestion in the written synopsis of submissions of counsel for the appellant that Judge Wilson may have viewed the DVD in his chambers during the morning adjournment, but the argument was not seriously pursued at the hearing of the appeal. The appellant and Mr Cox each filed affidavits about the course of the trial. Mr Cox attended the trial as an observer and in his capacity as counsel advising Mr Boyd in respect of matters relevant to the trial. Each said that counsel for the prosecution sought to produce the DVD as an exhibit and to have it played during the course of Constable Donaldson’s evidence. Technical difficulties were encountered. Only a minute or so of the DVD was actually played. The sound track was not audible.

[11] The Judge then questioned the relevance of the material on the DVD. It is clear he had a copy of the transcript at the point at which the admissibility of the DVD evidence was in question. Mr Cox says that a copy of the transcript was handed up to the Judge. But there is no transcript. Rather, there is the synopsis form which I have reproduced above. It is clear that the Judge had a copy of the synopsis because his trial notes, provided to this Court, contain the reference “See synopsis” at the point in the trial where the admissibility of the DVD was being discussed.

[12] Moreover, the synopsis form is referred to in the notes of evidence themselves. Those notes record the following exchange during the course of Constable Donaldson’s evidence:

THE COURT ADDRESSES COUNSEL –RELEVANCE OF DVD

THE COURT: Is it a matter of consent that the quotes that are referred to in the synopsis form formed part of what Mr Boyd said to the officer on the day?

MS OU: ...Yes.

THE COURT; Those parts read as follows:

‘Challenged Boyd about pushing his wife. Boyd denies anything happened.’

THE COURT: It is agreed under s 9 of the Evidence Act 2006 that during the course of the interview with the officer, the defendant Phillip Boyd said:

‘James moved towards me in a more threatening manner. I moved to defend myself, and found myself on the floor with James being restrained.

Juanita moved to interject on James’ behalf. I let go of James and removed myself from the house, and went to seek legal advice from John Cox.

Q: Describe what actually happened?

A: I subdued him and restrained him.’

[13] In the result, the Judge obtained the consent of counsel to treat certain passages in the synopsis form as agreed matters of fact for the purposes of s 9 of the Evidence Act 2006. Therefore, the gist of Mr Boyd’s self-defence argument was placed before the Court pursuant to s 9, but the DVD statement in its entirety was not played and was not before the Court.

[14] This occurred over the initial objection of Mr Mather, trial counsel for the appellant. Mr Boyd wanted the DVD to form part of the evidence. In his affidavit of 23 March 2012 (three days before the hearing of the appeal), admitted without objection from the respondent, he said:

6. Essentially my recollection is that the Judge refused to play the DVD. He said that it would not help the Prosecution case. In my view he did not address whether it would help my case.

7. In the notes of evidence there has been inserted a summary or synopsis of the DVD but not the transcript.

8. I will say that I was very unhappy that the DVD was not played.

[15] It seems that Mr Boyd’s unhappiness stems from the fact that, in his prepared statement, he referred to several important factual matters which supported his self- defence argument. Mr Mather submits that, by reason of the Judge’s refusal to accept the DVD in evidence, Mr Boyd was compelled to give evidence and to submit to cross-examination. Had the DVD been played, then it may be that he would not have needed to give evidence at all.

[16] Mr Cox says:

4. It is my version of events that Constable Donaldson asked to play the DVD interview. The Judge was quite emphatic that the DVD would not assist her case. Only one or two minutes of the interview was played. My recollection is that it was possibly inaudible and when Constable Donaldson went to turn up the volume the Judge stopped and indicated he did not wish to hear the DVD. He said it would not assist the case.

5. I was surprised at the Judge’s view because this was a contemporaneous record taken the day following the alleged assault. I recall that the interview was not 10 minutes but in excess of half an hour in duration, and Mr Boyd traversed in some detail what transpired that day.

[17] Mr Eastwood submits that the videotaped statement ought to have been played in open Court, and that the Judge’s refusal to accept its contents in evidence amounts to a breach of Mr Boyd’s right to a fair trial. Such an argument faces certain obvious obstacles, the first of which is a question as to the admissibility of the statement. If the contents of the DVD interview were inadmissible, then the Judge was correct to decline to permit it to be played. I turn therefore to consider the admissibility of the statement.

Was the DVD interview admissible?

[18] The starting point is the principle that there is comparatively little scope for a defendant to tender an out-of-court exculpatory statement.1 That fundamental principle is reflected in ss 21 and 35 of the Evidence Act 2006, which respectively provide:

21 Defendant who does not give evidence in criminal proceeding may not offer own statement

(1) If a defendant in a criminal proceeding does not give evidence, the defendant may not offer his or her own hearsay statement in evidence in the proceeding.

(2) To avoid any doubt, this section does not limit the previous consistent statement rule.

35 Previous consistent statements rule

(1) A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2) A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3) A previous statement of a witness that is consistent with the witness's evidence is admissible if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) the statement provides the court with information that the witness is unable to recall.

[19] Here of course, it is the prosecution which was proposing to introduce evidence of the appellant’s previous statement, and not the appellant himself, so s 21(1) is not engaged. But s 35(1) precludes the introduction of Mr Boyd’s statement unless subsections 35(2) or (3) apply. There is no suggestion that the

_{requirements of either subsection are met.}

1 R v King (2009) 24 CRNZ 527 (CA) at [15].

[20] More generally, a statement which contains an admission is always admissible as a declaration against interest, and is evidence of the facts admitted. Beyond that, a statement made by an accused is never evidence of the facts in the statement.

[21] The situation which arose here was the subject of direct comment by the

English Court of Appeal in R v Pearce:2

...there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to its being made part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible.

[22] A warning against the introduction of inadmissible statements by accused persons appears in R v Sturgeon:3

[25] It sometimes appears that there is a misapprehension that interviews are some class of evidential material which has automatic admissibility. Clearly that is not the legal position. Any out of Court statement, whether oral, written or on video, will be prima facie inadmissible. The rules permit evidence to be given about spontaneous utterances and other matters coming within res gestae in particularised situations. Immediate reactions can be of probative value. But otherwise only statements against interest are admissible as an exception to the hearsay rule although they must be viewed within their total context.

[23] The Judge was plainly right to decline to receive the videotaped statement, comprising as it did a carefully prepared exculpatory account of the incident by the appellant. The statement was inadmissible. Mr Boyd complains that because the statement was ruled out, he was compelled to give evidence on oath. But an accused person has no right to require the Court to accept a hearsay out-of-court exculpatory statement in substitution for evidence given under oath at the trial. While the appellant was perfectly entitled to elect not to give evidence at all, he was not entitled to insist that his hearsay statement be admitted, whether as part of the prosecution case or his own. Mr Eastwood submits that the course followed by the Judge rendered the trial unfair. But the exclusion of inadmissible evidence cannot

amount to a breach of s 25 of the New Zealand Bill of Rights Act 1990.4 This ground of appeal must fail.

Self-defence

[24] The Judge’s principal factual findings appear at [8] and [9] of his oral decision.

[8] James Boyd, who is 21 now, came downstairs and abused his father. He told him to ‘fuck off’. So he was angry, his motivation at that stage was the protection of his mother and his father responded by pushing him.

[9] Mr Boyd Snr denies this. I do not accept his evidence. The pushing was a prelude to what followed. It is not so much the pushing, though, that is the intentional application of force that is a concern here. What it was, was his response to his son taking an ineffectual swing at him, was to use his military trained abilities to grab him in a headlock and remove him to the ground. I reject his evidence that this was simply a restraining move. It was not self-defence either, because there was no current threat of any significance. It was not proportionate to any problem that he was facing and he constrained his son in this way for a short period of time. What stopped him carrying on with it was his wife intervening and his daughter ringing the police.

[25] Mr Eastwood submits that the Judge paid insufficient attention to the defence of self-defence, and that, in particular, he failed to take into account the circumstances as Mr Boyd believed them to be.5 In developing this aspect of his argument, Mr Eastwood referred to the following matters:

(a) In their initial statements to the police, neither James, Jasmine nor Ms Patterson disclosed the fact that James had thrown a punch at his father before being restrained;

(b) Only James accepted in cross-examination that he had taken a swing at his father. Jasmine and Ms Paterson maintained their denial;

(c) Although much younger than the appellant, James was roughly the same size and a strong young man;

(d) Although James alleged that he had suffered a graze to the forehead, there was no independent evidence of that and certainly nothing from any police witness by way of corroboration.

[26] Against that background, Mr Eastwood invited me to conclude that the prosecution witnesses were unreliable (by reason of their inconsistency), and that therefore the District Court Judge ought to have rejected the prosecution case in its entirety. However, inconsistencies on matters of detail are to be expected in a case where the events concerned took place some months prior to the trial, and where the incident escalated rapidly. As Ms Cuncannon submits, minor inconsistencies are often a sign that witnesses are conscientiously trying to do their best.

[27] The assessment of the witnesses was quintessentially a matter for the trial Judge. He had the advantage of seeing them in the witness box and was, one expects, able to gauge a good deal from their body language and demeanour. Besides, the account given by the prosecution witnesses was not materially different from that of Mr Boyd himself. The real dispute between him on the one hand, and the rest of his family on the other, is about the nature and extent of his response to James’ initial ineffectual attempt to strike his father. It is common ground that the attempt was unsuccessful. James swung at thin air and did not touch his father. Yet the appellant’s response was to take his son in a stranglehold and to force him to the floor where he remained for what appears to have been 10-15 seconds. Mr Boyd was extremely angry at the time, and had been for some period. He seems to have been engaged in a lengthy row with his wife in the minutes preceding the relevant incident.

[28] In my view, the Judge’s conclusion that the appellant’s reaction was disproportionate to James’ ineffectual attempt to strike his father was inevitable. The appellant could, and should, have distanced himself from James. All of the evidence suggests that it would have been easy for him to do so, and that indeed, everyone else in the house would have been pleased to see him leave the room.

[29] I agree with Judge Wilson’s assessment that: “It was not self-defence either, because there was no current threat of any significance. It was not proportionate to

any problem that he was facing ...” The learned Judge was entitled to conclude that Mr Boyd was not acting in self-defence, and even if he was, the degree of force he used was disproportionate to that proffered by James. This ground of appeal must also fail.

Result

[30] For the foregoing reasons the appeal is dismissed.

C J Allan J