Penrose v Police [2013] NZHC 2757 (22 October 2013)

Last Updated: 7 November 2013

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2013-416-10 [2013] NZHC 2757

BETWEEN DESMOND PENROSE Appellant

AND POLICE Respondent

Hearing: 18 October 2013

At Wellington (via AVL)

Counsel: Appellant in Person

K Laurenson for Respondent

Judgment: 22 October 2013

JUDGMENT OF THE HON JUSTICE KÓS (Appeals against conviction and sentence)

[1] Desmond Penrose appeals his summary conviction on charges of male assaults female¹ and speaking threateningly.² He appeals on the notified ground that the convictions were contrary to preponderance of the evidence. He appeals also the sentence imposed of 150 hours community work.

Appeal against conviction

Evidence

[2] It all happened on a Saturday morning, on 6 April 2013. The complainant is the appellant’s girlfriend. The appellant picked her up from work the night before. They drove home together. Two friends, Mr and Mrs O’Donnell, came over for dinner and stayed the night. The O’Donnells’ young children were there too, but

_{went to bed early.}

¹ _{Crimes Act 1961, s 194(b).}

² _{Summary Offences Act 1981, s 21(1)(a).}

PENROSE v POLICE [2013] NZHC 2757 [22 October 2013]

[3] The appellant and complainant had been having some relationship difficulties. The complainant acknowledges that she became drunk over the course of the evening, difficult and provocative.

[4] In the early hours of Saturday morning, when everyone had gone to bed, the complainant confronted the appellant about something she had found on his laptop. She asked him to leave. He said he would do so in the morning once he had packed up his camera equipment and luggage.

[5] Come dawn that morning the bickering continued. The O’Donnells were still present. The appellant went outside and smashed some bottles of spirits on the patio, saying the complainant had a drinking problem. There was an argument about the complainant supposedly hiding the appellant’s cigarettes.

[6] At this point he took the complainant by the throat and said “Watch yourself, you don’t want to mess with me, I could snap your neck”. The appellant does not deny making that statement. But he says they were terms of endearment: he was suddenly taken by the beautiful slenderness of her neck.

[7] The complainant for her part saw no endearments. In evidence she said she

was “pretty well” frightened by these actions.

[8] The appellant admits that he stopped the complainant walking towards him by applying force to the area beneath her chin. He admits that he held her for 20 seconds and that he closed his hand around her throat. He says that he did not squeeze it. But he admits that her face became red. He did not concede that he forced her onto her toes or that her eyes were bulging.

[9] But the O’Donnells, who gave evidence, say that is exactly what happened. Mrs O’Donnell gave evidence that the appellant had the complainant by the neck for

20 to 30 seconds. She was “on her tippy toes”, looked “terrified”, her eyes were getting bulgy and her face was red. Mrs O’Donnell rang the police.

[10] Mr O’Donnell’s evidence was that the appellant had gone up to the complainant and grabbed her by the throat, holding her for “maybe at least 30 seconds probably”. He held her there while Mr O’Donnell tried to intervene, asking where his “smokes” were. He let the complainant go when she managed to say she would get them. Mr O’Donnell’s evidence was that the complainant looked “pretty terrified” and that the appellant was holding her tightly. Mr O’Donnell tried to intervene, but he said he was also concerned for his own safety and for that of his children. They were there, and “bawling their eyes out”. His evidence was that his children still talk about the event, so upset were they by it.

Decision below

[11] On the primary charge of male assaults female, Judge Down was satisfied that the appellant had conceded each necessary element. The complainant was a woman, he had applied force to her, and the application of that force was deliberate. The Judge reached the same conclusion putting the appellant’s evidence to one side altogether. The evidence of the O’Donnells and the complainant was conclusive.

[12] The Judge rejected the appellant’s argument of self-defence. He was not convinced that the complainant had walked into his hand and was simply being restrained. There was no realistic suggestion that the appellant feared being attacked if he did not restrain her. Nor that it was necessary to restrain her for 20 seconds or more.

[13] On the secondary charge of speaking threateningly, the Judge found that the appellant had admitted making the threatening statement. Further, the appellant appreciated there was a real and substantial risk that the complainant would be frightened by those threats.

[14] The Judge held that the appellant’s contention that he intended the words as

terms of endearment was incapable of belief.

Submissions

[15] The express basis for the appeal against conviction was that it was “against the preponderance of evidence”. Despite that limited basis for appeal, Mr Penrose in his written submissions ranged well beyond that ground. He advances numerous process complaints.

[16] The first is that he lacks a full and complete transcript of the hearing. He says there are some observations by the Judge, that are not recorded. In particular a statement that the evidence of the O’Donnells was “incapable of belief”.

[17] Secondly he says he had not had a fair opportunity to prepare a defence. Because of a bail breach (an address issue, which he says was the fault of former counsel), he was in custody for the five days before the hearing. His counsel had withdrawn because of his personal and professional association with the complainant. He did not have a copy of the prosecution file until about 4.30 pm on the evening prior to the hearing. Two documents presented in Court had not been supplied to him. The Judge should, he says, have granted him an adjournment to prepare properly.

[18] Thirdly, he says the Judge was biased against him. In particular the Judge was said to have caused the prosecution to call the complainant when the complainant had withdrawn her complaint “and statement”, and the prosecution would not otherwise have called her.

[19] Mr Penrose did not say much in his written submissions about his sole notified ground of appeal: that the convictions were contrary to the preponderance of the evidence. But in oral submission he says that the evidence of the complainant and the O’Donnells should have been disregarded. The former should not have given evidence; the latter should have been disbelieved.

[20] For the Crown, Ms Laurenson laboured under the disadvantage of not having been the prosecutor in the District Court. She understood, however, that the Court had checked the transcription of the trial recording was complete. The Judge had offered the appellant the opportunity to adjourn on the morning of the trial, more

than once, but the appellant had wanted to proceed. The Judge did not compel the prosecution to call the complainant, but made it clear that it was a matter for it. He had simply sought to assist the appellant, given that the O’Donnells were giving evidence for the prosecution anyway, so that he could cross-examine (rather than lead)³ the complainant. There was nothing to suggest the Judge found the evidence of the O’Donnells incapable of belief. But in any case the evidence of the complainant herself was more than adequate.

[21] As to the substantive ground, she submitted that there was clearly sufficient evidence for the Judge to find the charges proven beyond reasonable doubt. The Judge having heard the evidence was entitled to conclude the appellant’s evidence was “incapable of belief” and to accept the evidence of the three police witnesses: the complainant and Mr and Mrs O’Donnell.

Discussion – approach on appeal

[22] This is a general appeal to be heard by way of rehearing.⁴ The onus lies on the appellant to satisfy the Court that the grounds of appeal have been made out and that this Court should differ from the original District Court decision.

[23] While the appellate Court must come to its own view on the merits, the appellate Court is undertaking a review function rather than substituting its own view of the evidence.⁵ Appropriate weight is to be given to the advantages of the Judge in assessing the honesty and reliability of witnesses, and the weight given to individual pieces of evidence. These principles apply alike to jury verdicts and to summary Judge-alone decisions.⁶

Discussion – process issues

[24] Having considered the record, I find there is nothing in the process issues advanced by the appellant.

³ _{Leading being a more difficult exercise for a lay litigant.}

⁴ _{Summary Proceedings Act 1957, ss 115 and 119.}

⁵ _{Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].}

⁶ CAC v New Zealand Police [2012] NZHC 3023; Richmond v Police [2013] NZHC 356.

[25] First, Williams J directed on 21 August that a full transcription of the notes of evidence, together with exchanges between Bench and Bar, be provided. As a result there are two sets of the notes of evidence. One 67 pages, the other 75. The difference I apprehend is that the shorter one is confined to strict evidence. The longer one, in accordance with Williams J's direction, includes interspersed exchanges of discussion between Bench and Bar (including the appellant). In the shorter they are rendered "The Court addresses Mr Penrose/Ms Stewart/witness". In the longer they are set out in full. There are also "notes of legal discussion", 31 pages in length. They are largely pre-trial discussion (25 pages), a record of a pre- judgment "summation" given by the appellant (2 pages) and some post-judgment submissions by prosecutor and appellant (5 pages).

[26] Second, I have made enquiries of the Registry. I am satisfied that those responsible for transcription had been instructed in accordance with Williams J’s direction. That is why the longer transcription was produced. I am also satisfied that the Registry has since checked, in light of the appellant’s complaints, that all that was recorded has been transcribed. I am told that it has.

[27] There is a misapprehension among criminal appellants about the status of the record of the evidence, and submissions. What are transcribed are the Judge’s notes of evidence. Originally this simply comprised notes taken by the Judge himself⁷ in his notebook. If needed on appeal, the Judge’s notes would be typed up. Then in the first decade of the twentieth century, trials came to be typed up by the Judge’s associate, sitting beside the Judge, as the evidence was delivered. Later, carbon copies came to be provided for counsel. The first Judge’s associate to type evidence as it was delivered was Hubert Ostler in 1903. He later became a Supreme Court Judge himself. The idea then caught on among the other (male) associates.⁸

_{Associate-typed simultaneous transcription continued for the next 104 years. It was}

⁷ _{At that time, all were male.}

⁸ The first female associate was Edwards J’s daughter, before the Great War. She did not type

evidence (or anything much at all); Edwards J used to type up his own notes if required on appeal. He resigned in 1921 after persistent complaints about his ill-tempered conduct from the Auckland, and subsequently Wellington, professions. He refused to return his departmental typewriter: Cooke Portrait of a Profession (Reed, Wellington, 1969) at 55–58, 78; Dugdale, Lawful Occasions (Auckland District Law Society, 1979) at 26-36. Female associates became more common during World War Two, when so many of the male associates, often part-time law students, were serving overseas.

an imperfect process. Swift-speaking counsel (and witnesses) would be barked at (often by the associate) to “slow down”. Every 10-15 minutes there would be a pause as new sheets of paper (and carbon) would be loaded. But it gave the associate’s fingers a break. As it happens I was looking at one such transcription, dating back to 1976, on the day I heard the present appeal. It is far from complete. It is replete with abbreviation and numerous non-essential words are simply omitted. In the early 1990s associates moved onto word processors, and the days of carbon copies, and blackened fingertips, ended. But abbreviation, exceptions and pauses (so the associate’s fingers could rest) continued. Verbatim the notes were not. There was no record of the exchanges between Bench and Bar. Any record of these was to be found only in the Judge’s notebook, if at all. Since the advent of “For The Record” full trial recording, in about 2007, much more accurate and complete transcriptions of evidence are available, at the price of a slight time lag. In this case,

and unusually,⁹ it included transcription of exchanges between Bench and Bar,

Williams J having ordered this to be done. The extent of transcription required is a matter within the discretion of the Court, subject to Part 6 of the Criminal Procedure Rules 2012.¹⁰

[28] But the legal principles laid down in 1909 in R v Elliott¹¹ and more recently in R v Symes¹² and R v Hooker¹³ continue to apply. Inadequacy in the record is not itself a ground for finding a conviction unsafe. The appellant must still point to misdirection or irregularity at trial rendering the conviction unsafe. “Where however

there is reason to suspect there is something wrong in connection with the hearing of a case, the absence or insufficiency of a proper shorthand note may be material.”¹⁴ I add that it is insufficient for the appellant to simply assert from the Bar the existence of material error not recorded, where, as here, there is a very full and prima facie accurate record available. What is needed is affidavit evidence specifying what is

_{omitted, so that its significance may be considered and, if need be, answered.}¹⁵

⁹ _{Although cf Meyrick v Police HC Hamilton CIV 2005-419-58, 31 July 2007 at [115].}

¹⁰ See e.g. Misiuk v Superintendant of a Penal Institution HC Auckland 2010-404-6625, 8 October

_2010.

¹¹ _{R v Elliott (1909) 2 Cr App R 171 (CA).}

¹² _{R v Symes CA214/95, 8 November 1995.}

¹³ _{R v Hooker [1998] 3 NZLR 562 (CA).}

¹⁴ _{R v Elliott (1909) 2 Cr App R 171 at 172.}

¹⁵ See Horticulture New Zealand v Manawatu-Wanganui Regional Council [2013] NZHC 2429 at

[71].

[29] In this case the alleged omissions were set out in writing for the first time in the appellant’s submissions, filed late, only the afternoon before the hearing of this appeal. That will not do.

[30] Further, I am not satisfied that a foundation has been laid to conclude that there is any material omission in the record available. As to the three “legal discussions” said to have been redacted, they appear fully set out in the 31 page "notes of legal discussion" referred to at [25] above. All that might therefore be missing is the supposed observation by the Judge that the O’Donnells’ evidence was “incapable of belief”. But I do not accept that the Judge could have reached any such conclusion. First, the evidence they gave was substantially consistent with evidence given by the complainant - and by the appellant himself. Secondly, their evidence was not significantly shifted in cross-examination, such that it might be said that their evidence, thus tested, was incapable of belief. Thirdly, there appears no suggestion on the record that the Judge was dissatisfied with their veracity. Fourthly, his oral judgment, which it is not suggested has been transcribed incompletely, refers to the evidence given by the O’Donnells without any critical reflection.

[31] I put the complaints as to transcription to one side, therefore.

[32] The next complaint was as to the Judge’s failure to grant an adjournment because of disclosure breaches by the police, and the appellant’s lack of representation.

[33] The trial was preceded by a lengthy discussion between Bench, Bar (the prosecutor) and the appellant. That comprises the first 25 pages of the "notes of legal discussion". From it one gleans the following.

[34] First, the Judge did not pressure the prosecution into calling the complainant. To the contrary he made it quite clear that it was entirely a matter for the prosecution which witnesses it called. That said, he indicated a preference that she be called. The prosecutor then changed her mind and called the complainant, leaving the appellant the opportunity to cross-examine a witness expected to be favourable to

him. I agree with Ms Laurenson that the context shows the Judge indicated his preference to enable that to occur. In the end the complainant was not hostile to the prosecution, and her evidence seems to have been fair and truthful. As a result it did not help the appellant in the way perhaps expected.

[35] Secondly, the lack of legal representation of the appellant was noted, and the subject of some discussion. According to the prosecutor, shortly after his last bail variation (30 April 2013) the appellant’s solicitors advised the Crown Solicitor’s office they were no longer acting for him. It seems he had parted company with his solicitors because of perceived conflicts of interest in relation to the complainant. Later there was more dissatisfaction when a wrongly-transcribed bail address turned out to mean the appellant had been bailed to a non-existent bail address on 30 April

2013. As a result he was arrested for breach of bail and held in custody prior to trial. It appears therefore that the appellant and his solicitors parted company at the beginning of May, two to three weeks before trial. The appellant told the Judge:

As they were the largest solicitors in Gisborne, I did not really have a great deal of faith in going to another solicitor, which is why I stand before you representing myself.

[36] Thirdly, the appellant made a number of complaints about the failure by the police to give him full disclosure of documents. Where the prosecution has failed to comply with disclosure requirements the Judge may, but is not necessarily required to, adjourn the hearing. Critical will be the degree of prejudice to the defendant.¹⁶ I will return to this topic shortly.

[37] Fourthly, there was a lengthy exchange in which the prospect of adjournment of the fixture was raised. Principally by the Judge, it has to be said. A key issue for the appellant was whether he would get bail in that event, and available bail addresses were discussed. At page 10 of the notes, the Judge asked the appellant whether he wanted to go through with the hearing or wanted more time to prepare. At page 13 the appellant, ascertaining the Judge would consider a bail application, said he would prefer to postpone the hearing. That was repeated at page 15. At page

19 difficulties the appellant faced in finding a suitable bail address (bail conditions

precluded contact with the complainant) led the appellant to abandon his adjournment application. The appellant said:

But let’s save the issue and let’s move the matter forward and I would ask that we move forward and actually deal with the hearing today. I don’t want this to drag on any longer than necessary.

Disclosure was rectified at the hearing. At page 23, the Court again enquired as to whether the appellant was now happy to proceed on with trial. The appellant replied, at page 24:

I would be happy to proceed because I’d like to see the end of this matter. It has been carrying on for far too long. It’s a rather silly matter as you will hear ...

Then again, also on page 24, the Court again asked, “now, having received all of this disclosure, do you wish to proceed today or do you want more time?” To which the appellant replied:

No I would like to proceed today because I would like to see the end of it.

[38] The appellant may not approbate and reprobate on appeal. Having elected to proceed, both without counsel and with late disclosure, he cannot now reverse tack. I am satisfied that in doing so, despite repeated invitation by the Judge not to proceed that day, he made an informed choice to proceed and that there has been no breach of his rights under s 24 of the New Zealand Bill of Rights Act 1990.¹⁷

[39] Finally, there is the allegation of bias. This was relatively diffusely advanced. Its core was the complaint, already addressed, that the Judge made the prosecution call the complainant. He did not. Further, that the Judge changed his stance on the O’Donnells’ evidence. I am satisfied he did not.

[40] I am satisfied from the record that the Judge dealt with the trial in a patient and reasonable manner and that this late-advanced appeal ground cannot be sustained.

[41] In this case I am amply satisfied that the evidence before the Court was sufficient to constitute all the necessary elements of each offence.

[42] Although the complainant had not wished the case to proceed, she was called to give evidence. She gave evidence that she was assaulted and the subject of a threatening statement, which frightened her.

[43] Independent evidence from Mr and Mrs O’Donnell supported those conclusions, as I have already set out. Having read the Judge’s notes of evidence, I find their evidence both credible and conclusive against the appellant.

[44] If all that were not enough, then the appellant himself admitted that he applied his hand to the complainant’s throat, holding her for “20 seconds in total” and that her face was red (although he suggested that was the result of her drinking the night before).

[45] On the secondary charge, the threatening statement was admitted.

[46] The issue was then whether the appellant appreciated there was a real and substantial risk that the complainant would be frightened by those threats. The statement was made while he was holding the complainant by the throat. The O’Donnells and the complainant described her apparent (and actual) terror.

[47] The Judge held that the appellant’s evidence that he intended the words as terms of endearment was incapable of belief. I agree. The appellant’s explanation is ludicrous.

[48] The appellant has not demonstrated any reversible (or indeed any) error by the Judge in assessing the evidence. I dismiss the appeal against conviction.

Decision below

[49] The Judge remanded the appellant overnight to receive legal advice in advance of sentencing. On 22 May 2013 he was sentenced to 150 hours community work on the male assaults female charge, and 50 hours on the threatens with intent to frighten charge. The two terms were concurrent. The Judge also made a protection order in favour of the complainant.

[50] The Judge said that these offences were at the bottom of the scale of seriousness. No injury was caused to the complainant and the whole event took place in a short period of time. Obviously, though, the experience was frightening for the complainant.

Discussion

[51] All domestic violence is serious. It is not to be tolerated, or euphemised.

[52] In Ballantyne v Police the offender pushed a female neighbour in the chest then punched her in the head.¹⁸ He punched her husband two or three times in the head. The man suffered bruising and a painful jaw for 10 days. Harrison J described the sentence of 220 hours community work imposed as “merciful” and upheld it. His Honour noted that had the offender not been 56 years old, with previous good character and a “relatively good previous record” – a sentence of imprisonment would have been appropriate.

[53] The appellant has seven previous convictions from the United Kingdom. Four for disorderly behaviour on four separate occasions (2009), one for assault, one for battery (both 2009), and another for disorderly behaviour in 1999. The disorderly behaviour charges are also listed as encompassing “use [of] threatening words”. They are all relevant offences, and in my opinion warranted a substantial

_{uplift to the sentence starting point.}

¹⁸ Ballantyne v Police HC Hamilton CRI-2010-419-20, 22 April 2010.

[54] While the offending here was less serious than in Ballantyne, in that it did not involve injury or a sustained attack, the appellant’s record is not good. This type of offending is in keeping with his poor character. Without the previous convictions, the sentence would have been stern, but within the range of penalties available. With the previous convictions taken into account, a sentence of 150 hours community work cannot be seen as at all excessive. Indeed, it is if anything on the light side.

[55] It is not the function of this Court on appeal to tinker with sentences, unless they are contrary to both principle and conscience. This sentence was not. I dismiss the appeal against sentence.

Result

[56] Appeals against conviction and sentence dismissed.

Stephen Kós J

Solicitors:

Crown Solicitor, Gisborne