Grey v Police [2014] NZHC 103 (10 February 2014)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

Grey v Police [2014] NZHC 103 (10 February 2014)

Last Updated: 10 March 2014

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2013-442-15 [2014] NZHC 103

BETWEEN EMILE PATRICK GREY Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 4 February 2014

Counsel: Appellant in Person

E J Riddell and A L Mills for Respondent

Judgment: 10 February 2014

_{JUDGMENT OF GODDARD J}

This judgment was delivered by me on 10 February 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Nelson

GREY v NEW ZEALAND POLICE [2014] NZHC 103 [10 February 2014]

Introduction

[1] This is an appeal against conviction and sentence. Mr Grey was tried summarily before Judge Zohrab on one charge of threatening behaviour pursuant to s 21(1)(a) of the Summary Offences Act 1981 (the Act). The maximum penalty for this offending is three months’ imprisonment or a $2000 fine.

[2] Judge Zohrab found the charge to be proved. He convicted Mr Grey and ordered him to pay the sum of $400.00 in $20.00 weekly instalments to the Male Room (a local organisation that assists men), together with two lots of witness expenses of $27.00. Mr Grey was also ordered not to associate with Mr Grant, the complainant, for a period of 12 months.

The District Court decision

[3] The threatening behaviour alleged was a threat to hit Mr Grant, followed by a feigned head butt towards him. The offending occurred during the course of a community meeting at House 44. House 44 is a community centre that provides a range of groups and activities for younger people and adults. During the meeting, Mr Grey confronted the House 44 Committee about the manner in which House 44 was being run. He alleges that the Committee has misappropriated funds associated with the organisation.

[4] The elements of a charge of threatening behaviour under s 21(1)(a) of the Act are that Mr Grey:

[5] had an intent to frighten Mr Grant;

[6] threatened to injure him, or in other words, threatened to cause him actual bodily harm that was more than trifle or transitory; and

[7] intended the threat to be taken seriously by the victim.

[8] Judge Zohrab heard evidence from Mr Grant, from Mr Taylor (a third party present at the meeting) and from Mr Grey. Mr Grey had recorded part of the

incident by means of a camera attached to his shirt pocket. The video recording was produced as an exhibit at the hearing and played to the Court.¹

[9] The evidence established that Mr Grey did threaten to hit Mr Grant with the words “touch me, and I’ll knock you out boy”. The case turned on whether Mr Grant had touched the appellant, whether the appellant had feigned a head butt and whether Mr Grant was the aggressor during the incident.

[10] Mr Grant’s evidence was that he attended the meeting to support his wife, who was a member of the Committee. Mr Grey was asked to leave because of his aggressive and intimidating behaviour. He refused to do so. Mr Grant then approached Mr Grey and asked him to leave. Mr Grey reacted by threatening him and then proceeded to attempt to head butt Mr Grant. Mr Grant said the blow did not connect, but only because he swayed back to avoid it.

[11] Mr Taylor confirmed Mr Grant’s description of the appellant’s behaviour. He said that, as Mr Grey was leaving, Mr Grant walked towards him to escort him out of the door. Mr Taylor heard the appellant say “touch me boy, and I’ll knock you out,” while he was within striking distance of Mr Grant. Mr Taylor said the appellant then simulated a head butt towards Mr Grant. He was not in a position to see whether there was any physical contact between the two men.

[12] In giving evidence in his defence, Mr Grey said that he had started to leave when Mr Grant approached him. Because of his previous history with Mr Grant, he felt he was under attack from him. He said Mr Grant gave him a “belly shove”. He responded with the threat of violence. He maintained Mr Grant was the aggressor, having approached him and nudged him in the stomach. He denied having feigned a head butt.

[13] The video is apparently inconclusive. It shows Mr Grant walking towards Mr Grey, with hands by his side and responding to Mr Grey’s threat of physical action with the words, “try, try”. The video does not establish whether or not any physical

_{contact occurred or whether there was a feigned head butt.}

¹ Mr Grey provided a USB stick containing the video recording.

[14] Judge Zohrab found that Mr Grey had said to Mr Grant, “touch me, and I will knock you out boy,” then simulated a head butt towards Mr Grant and laughed. He preferred the evidence of Mr Taylor and Mr Grant in finding there was no physical contact between Mr Grey and Mr Grant and that Mr Grey was not under physical threat. Mr Grey was found to be the aggressor who was angry and upset. The elements of the charge were therefore made out.

Appeal against conviction

[15] Mr Grey’s grounds of appeal can be summarised thus:

(a) Judge Zohrab removed Mrs Grey as his support person during the hearing and this step unfairly disadvantaged Mr Grey;

(b) the police did not provide full disclosure before the hearing and did not make the appellant aware that Mrs Grant would not be called as a prosecution witness;

(c) Judge Zohrab erred in his assessment of the video evidence; and

(d) Judge Zohrab erred in assessing Mr Grey as being out of control on the day of the meeting.

Prejudice resulting from the removal of Mrs Grey as the appellant’s support person

[16] Mr Grey suffers from a traumatic brain injury sustained many years ago, which he says can cause him to become confused and his wife’s presence and assistance helps him to remain focused. The transcript of evidence at the hearing discloses that, at a certain stage of Mr Grant’s evidence, he referred to Mrs Grey having been present during the alleged incident and saying something to him immediately after it. Having become aware that Mrs Grey, who was in Court acting as Mr Grey’s support person, had been present during the incident, the Judge naturally became concerned that she may be called as a witness of material fact. The relevant passage is as follows:

THE COURT

Q. Did you say anything to him when he did this? A. No, no I didn’t.

Q. And did he say anything after having –

A. No, but his wife did.

11.40

Q. And his wife was where? Where was she?

A. I didn’t realise it was his wife at the time, she was sitting –

Q. All right just pause there. A. – just –

Q. Okay, just hold on.

THE COURT:

Mr Grey, was your wife present?

MR GREY:

Yes, she was present.

THE COURT:

Okay, well she’s sitting here in support, she’s potentially a witness by the sounds of things, isn’t she?

MR GREY:

Oh, okay.

THE COURT:

She may well dispute it.

MR GREY:

Yep.

THE COURT:

All right, and it may be that you might want to refute it, I don’t know what’s

about to be said. So the safest thing, Sergeant –

SERGEANT STRINGER:

I don’t think we need to go down that track.

THE COURT:

Don’t – we don’t no?

SERGEANT STRINGER:

The actual incident itself has happened, what the –

THE COURT:

Okay, but I’m not sure what the wife is going to – what he says the wife was going to say, for example, and if he says, for example, “Well, my husband shouldn’t have done that, he was wrong,” or something like that, I don’t know whether that’s going to be said.

SERGEANT STRINGER: No, I don’t know either. THE COURT:

She might then deny ever saying that and it might amount to her confirming

his account and what happened, I’m not sure. I’m just – I just don’t want it to, all right, and there also might be a – well, anyway, so I think the safest thing for you to do is wait outside at this stage, all right, until we finish this part of the evidence.

MR GREY:

Okay, Your Honour.

THE COURT:

And then we can get her back in as a support person for you, Mr Grey. I just

– I might be being over cautious but by the time it comes out –

MR GREY:

Yep, I understand.

THE COURT:

– it’s too late to remedy.

[17] Mrs Grey was not, however, brought back into the hearing at the close of the prosecution case and remained outside the courtroom until the conclusion of the case. Thus, Mr Grey submits he was deprived of her assistance and he was disadvantaged by the Judge’s assumption that Mrs Grey may be a witness for the defence.

[18] From the transcript of evidence, it is obvious that Mr Grey acceded to the Judge’s precautionary approach, which was, and intended to be, in Mr Grey’s best interests, and that it was made clear to Mr Grey that his wife could come back into the hearing once the prosecution case was finished. She was only asked to wait outside the courtroom until Mr Grant’s evidence was finished. It was open to Mr Grey to have brought her back in himself.

[19] In any event, a reading of the transcript and of Mr Grey’s cross-examination of the witnesses does not indicate that he was disadvantaged or that his case was prejudiced as a result of Mrs Grey’s exclusion.

[20] This ground of appeal cannot succeed.

Prejudice resulting from receiving prosecution witness statements after the hearing and the prosecution not calling Mary Grant

[21] Mr Grey submitted that the police had not provided full disclosure prior to the hearing. The statements of the three witnesses interviewed by police and who were potential prosecution witnesses, namely Mr and Mrs Grant and Mr Taylor, were disclosed to Mr Grey on 25 July 2013 (more than two months before the hearing).²

The police, however, elected not to call Mrs Grant as a witness at the hearing. Further copies of the statements of the other two prosecution witnesses were sent to the appellant’s home address on 1 October 2013, the day before the hearing. Mr Grey contends he did not receive those two statements until after he arrived home following the hearing.

[22] In relation to the two statements sent on 25 July 2013 and again provided on

1 October 2013, Mr Grey was not prejudiced.

[23] However, the fact that the police were not intending to call Mrs Grant as a prosecution witness should have been advised to Mr Grey before the hearing. He submits that this prejudiced his case because her statement indicated that some of her evidence was favourable to his case. Having read the statement, it is clear the excerpt he relies on in this regard is the following:

[Mr Grey] was becoming more aggressive and threatening. [Mr Grant] stepped forward and stood directly in front of [Mr Grey]. There were another two men standing behind [Mr Grant] to back [Mr Grant] up. I didn’t see any gesture or head butt from [Mr Grey]. They were face to face for about 20 seconds. [Emphasis added]

[24] Ms Riddell for the Crown acknowledged that the police should have made Mr Grant aware ahead of the hearing that Mrs Grant would not be called as a witness but submitted that he had failed to show that this prejudiced his defence. She said that simply because Mrs Grant did not see the head butt did not mean it did not occur and, in fact, her statement suggested that some of what occurred was obscured by

_{other people. Her evidence was, at best, neutral.}

2. Attached to the Crown’s submissions was a Disclosure Index confirming that Mr Grey received those statements on 25 July 2013.

[25] It was clearly not acceptable for the police to fail to inform Mr Grey that Mrs Grant would not be called as a witness. While it is possible to infer from her statement that her view was obscured, on the other hand, she said she was able to see that Mr Grant was directly in front of the appellant and that they were face to face for about 20 seconds. She may therefore have been in a position to see a head butt, had one occurred. The fact that she did not see any gesture or head butt from the appellant could have been a significant feature of Mr Grey’s case. Had he known that Mrs Grant was not giving evidence, he may have sought to call her himself or taken advice about the matter.

[26] That said, I am not persuaded that this prejudiced Mr Grey’s case sufficiently to render the conviction unsafe. That is because, even if the head butt did not occur, there was sufficient evidence on which the Judge could find that the elements of the charge were established. In particular, the video which the Judge viewed satisfied him that the appellant was indeed extremely “wound up”. All three witness statements state that the appellant was acting aggressively. And it is not in dispute that the appellant said “touch me, and I’ll knock you out boy”. On the basis of that evidence, it was open to Judge Zohrab to conclude that the appellant had an intention to frighten Mr Grant and that he intended that threat to be taken seriously.

Prejudice resulting from amendment to charge wording

[27] The wording of the charge was amended by Judge Zohrab on 22 August 2013 to read “with intent to frighten Edward Arthur Grant threatened to injure that person”. It is not clear from Mr Grey’s submissions why this prejudiced his case and no substance to this point on appeal.

Video evidence

[28] Mr Grey submitted that the video evidence contradicts Judge Zohrab’s findings in two respects. First, the video shows that he was turning towards the door when he laughed; and second, it shows that:

(a) he was not the aggressor as he “did not use any obscene language or

threatening remarks”;

(b) his actions were directed towards the House 44 Management

Committee;

(c) he moved to the door of his own accord. He was not escorted by Mr

Grant;

(d) he did not approach, beckon or point to Mr Grant;

(e) Mr Grant approached the appellant and verbally abused him; and

(f) Mr Grant was the aggressor.

[29] However, as Judge Zohrab found, the video establishes that Mr Grey did make a threatening remark. The words “touch me, and I’ll knock you out” are clearly audible. It therefore matters not that his actions were directed to the Committee. It was his direct conduct to Mr Grant that is relevant. The video shows that he did move to the door of his own accord, but that he turned and continued to speak aggressively to the meeting at large, albeit without beckoning or pointing to Mr Grant in particular. The video shows Mr Grant approaching and speaking to him in a firm manner and to within inches of him. In that sense, Mr Grant was not a passive actor in the incident as it unfolded.

[30] It cannot be said, however, that Judge Zohrab erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. It was Judge Zohrab who had the benefit of being able to view the video and assess it alongside the viva voce evidence from Mr Grant, Mr Taylor and the appellant.³

Based on his impression of these witnesses, it was open to the Judge to prefer the evidence of Mr Grant and Mr Taylor and to find that Mr Grey had not acted in self defence and the elements of the charge were made out. I am not willing to overturn those findings on appeal.

Appeal against sentence

[31] Mr Grey appeals against his sentence on the basis that his contributions to the community were not specifically referred to by Judge Zohrab during sentencing. For the Crown, Ms Riddell submitted that the sentence imposed was incredibly lenient having regard to the appellant’s lengthy history of offending and the maximum penalties available to the Court.

[32] Judge Zohrab’s sentencing notes indicate that he took a deliberately lenient approach to the sentencing, primarily to recognise the efforts of Mr Grey to turn his life around. That is clear from the following statement:

As I say you have got a colourful history but it is a long, long time ago, and you have done some good work since then obviously to make sure that you did not carry on like you had previously.

[33] It is not clear from Judge Zohrab’s sentencing notes whether His Honour took into account the appellant’s commendable contribution to the community. But it cannot be said any such oversight resulted in a manifestly excessive sentence. The issue of whether or not a sentence is manifestly excessive is to be examined in terms

of the sentence actually passed, rather than the process by which it is reached.⁴ I

accept Mr Riddell’s submission that the sentence imposed in this case was lenient.

Conclusion

[34] The appeals against conviction and sentence are both dismissed.

Goddard J