Matheson v Police [2014] NZHC 1192 (3 June 2014)

Last Updated: 10 June 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-419-000044 [2014] NZHC 1192

BETWEEN	DUGAL JAMES MATHESON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 April 2014
Appearances:	P Mabey QC for the Appellant T V Clark for the Respondent
Judgment:	3 June 2014

_{JUDGMENT OF GILBERT J}

This judgment is delivered by me on 3 June 2014 at 2pm pursuant to r 11.5 of the High Court Rules.

.......................................................

Registrar / Deputy Registrar

MATHESON v NEW ZEALAND POLICE [2014] NZHC 1192 [3 June 2014]

Introduction

[1] Mr Matheson was convicted in the District Court at Hamilton on 9 May 2013 on one charge of assault on a child and one charge of male assaults female.¹ The first of these convictions arose out of an incident at a swimming hole in early 2011 in which Mr Matheson pushed his former partner’s 13 year old son off his boogie board and held him under the water. The second conviction related to an incident on

20 December 2011 in which it is alleged that Mr Matheson assaulted his former partner by pulling her hair, forcing her onto the bed and punching her on the side of her face.

[2] Mr Matheson was given concurrent sentences on each of these charges of

80 hours’ community work and nine months’ supervision.

[3] Mr Matheson initially appealed against both convictions and the sentences imposed. However, he abandoned his appeal against his conviction for assault on a child and the sentence for male assaults female. If his appeal against conviction on the male assaults female charge succeeds, he reserves his right to pursue his appeal against sentence on the other charge.

Decision under appeal

[4] The Judge heard evidence from 10 witnesses over a four day period. However, there were only three eye witnesses to the alleged assault with which this appeal is concerned: the complainant, her son and Mr Matheson. For reasons he gave in his reserved judgment, the Judge accepted the evidence given by the complainant and her son and rejected Mr Matheson’s evidence. On this basis, the Judge found the charge proved beyond reasonable doubt.

[5] The Judge’s analysis was set out in seven parts. He recorded the charges and the essential elements of each charge before setting out a chronology of the relevant events. The Judge addressed the defence attack on the complainant’s credibility before summarising the evidence of each witness relevant to each charge. He then

set out his assessment of the three eye witnesses and gave his reasons for preferring the evidence of the complainant and her son over that of Mr Matheson. Finally, the Judge set out his specific factual findings and conclusions.

Grounds of appeal

[6] The sole ground of appeal set out in Mr Matheson’s notice of appeal was that the Judge erred by permitting the informant to lead evidence which contravened s 89 of the Evidence Act 2006. Mr Mabey QC, who was not counsel at the trial and who was not involved in preparing the notice of appeal, advised that this ground of appeal is not pursued. Instead, he advanced the appeal on the basis that the conviction cannot stand because the evidence of one of the witnesses led by the prosecution, Senior Constable Donaldson, supported Mr Matheson’s denial of any intentional assault. Mr Mabey submits that a reasonable doubt therefore arose on the prosecution’s own case and Mr Matheson should have been found not guilty as a result, irrespective of whether the Judge accepted Mr Matheson’s evidence. Mr Mabey argues that the Judge failed to address this inconsistency in the prosecution case and that the conviction is therefore unsafe.

[7] Ms Clark did not object to the change in the grounds of appeal. Mr Mabey advised her well in advance of the hearing that this was the argument he intended to run and she prepared her submissions accordingly. I therefore deal with the appeal on the amended basis.

Approach on appeal

[8] This appeal is brought pursuant to s 115 of the Summary Proceedings Act 1957. This Act continues to apply under the transitional provisions of the Criminal Procedure Act 2011. The appeal is by way of rehearing. The Court may confirm the conviction, set the conviction aside or amend the conviction.

[9] This appeal is against findings of fact which were based on credibility findings. However, as Mr Mabey emphasised, this does not mean that this Court is excused from forming its own opinion based on the evidence. The proper approach

to an appeal of this nature is as set out by the Supreme Court in Austin, Nichols v Stichting Lodestar.² Although the principles are quite familiar, it is worth re-stating the key passages from that judgment:

[4] ... the appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal. It is only in the appellate court considers that the appealed decision is wrong that it is justified in interfering with it.

[5] The appeal court may or may not find the reasoning of the tribunal persuasive in its own terms. The tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude the findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand. But the extent of the consideration an appeal court exercise a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court as the responsibility of arriving at its own assessment of the merits of the case.

...

[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[10] I approach this appeal with these principles firmly in mind.

The evidence

[11] I now summarise the key evidence given by the three eye witnesses and

Senior Constable Donaldson, who spoke to them shortly after the incident.

The complainant

[12] The complainant said that she and Mr Matheson had a major argument after he came home from work on 20 December 2011. She became very upset and went and lay on the bed and cried. She said that Mr Matheson picked up the dog blankets that were outside in the yard and threw them into the bedroom through the ranchslider door. She “lost it with him” because they had not been shaken out and there was dog hair everywhere. She then picked up the dog blankets and threw them back out. The complainant said that Mr Matheson then grabbed her by her hair with both hands and dragged her by her hair across the room to the far side of the bed. He then forced her head down towards the floor with her body draped over the corner of the bed. He then pulled her down onto the floor and held her down. The complainant said she held onto his hands and tried to break away from him by screaming, kicking and scratching.

[13] The complainant said that Mr Matheson did not release his grip on her hair until her son came to the ranchslider door and started kicking it and yelling out to Mr Matheson to let her go. She said that she yelled out to her son to call 111 and Mr Matheson let her go at that point. She said that she got up and grabbed a piece of driftwood that was on a side table and hit Mr Matheson across his back. She then pushed it into Mr Matheson’s back and told him to “fuck off and leave me alone”. She said that he then turned around and hit her hard on her right cheek with a closed fist and again grabbed her by her hair and pulled her back down onto the floor.

[14] The complainant said that Senior Constable Donaldson arrived approximately

20 minutes later and spoke to her briefly in the caravan parked outside the house. She said that she told him that Mr Matheson was a police officer before they went into the house to speak to him. She said that after they went into the house, Mr Matheson claimed that she had smashed the door leading from the kitchen to the front porch and that she had bent his finger and scratched his hands. The complainant said she told the Constable that this was not true and that the door was broken on an earlier occasion and had nothing to do with the incident.

[15] The complainant said that after this discussion she went outside with Senior Constable Donaldson and explained that Mr Matheson had hit her and grabbed her by the hair and dragged her across the bedroom. However, she told him that they lived in cramped conditions and they were both stressed in the lead up to Christmas. She said that the Constable asked her about Mr Matheson’s finger because Mr Matheson had said that she had bent it. She said that she did not recall doing that. She said that the Constable then explained that if he wrote anything down, Mr Matheson would be stood down from his employment. She said that she responded by saying that she did not want this and hoped that they would be able to resolve their problems. She said that the Constable asked her what she wanted out of it to which she replied that she did not want Mr Matheson to do it again or to upset her son again. The complainant said that the Constable advised her that if there were any issues she could get back in touch with him. The Constable then spoke separately to Mr Matheson before departing.

[16] It was suggested to the complainant in cross-examination that Mr Matheson had shaken his forefinger at her as if he was admonishing a child. She said she did not recall him doing that. It was then suggested that she had grabbed his ring finger, the fourth finger. She said she did not recall doing that either. She was told that Mr Matheson’s evidence would be that she twisted his finger and that they “ended up” moving around to the side of the bed. The complainant denied that this is what happened. She also denied that Mr Matheson grabbed her by the hair with his left hand as a result of her grabbing and twisting the finger on his right hand.

[17] It was put to the complainant that Mr Matheson “was asking you to let his finger go and it’s during the struggle when he was trying to get his finger out of your grip that he accidentally hit you in the face”. She denied this and was adamant that Mr Matheson hit her in the face deliberately.

[18] It was then put to the complainant that before the incident took place she attempted to take the car keys that were on a cabinet in the bedroom with the intention of leaving. She denied this and said that she always leaves her keys in the ignition. She also denied the suggestion that she had been drinking and that Mr Matheson took the keys to stop her from driving.

[19] The complainant denied saying anything to Senior Constable Donaldson about car keys. She also denied telling him that she did not believe that Mr Matheson had hit her and that she did not know how her cheek was injured and assumed it must have been accidental. She said that she did not say any of these things because they were not true.

The complainant’s son

[20] The complainant’s son’s evidence was as follows. He said that he was in his bedroom when he heard thumping noises coming from the master bedroom. He got up to investigate and went to the ranchslider to see what was happening. His mother appeared to be on her knees on the floor with her upper body on the bed. Mr Matheson was behind her, almost lying on top of her. He saw Mr Matheson holding his mother’s hair and then his arm swing. He said that he saw this out of the corner of his eye as he turned. He said that Mr Matheson’s arm “wasn’t out ... it was just in close”. He said that Mr Matheson got her in her left cheek with what he said looked like a closed fist.

[21] The complainant’s son said that he did not see his mother holding or twisting Mr Matheson’s finger, nor did he see his mother hit Mr Matheson with the driftwood or kick him. He accepted that he did not see everything because he did not get there until after the altercation had started and he left to call the police before it was over. His recollection was that Mr Matheson told him to call the police and that his mother confirmed that he should do so.

Senior Constable Donaldson

[22] The complainant’s son’s telephone call to the police was logged at 6.46 pm. Senior Constable Donaldson was directed to go to the address and he arrived at about 7.30 pm. As he approached the house, he met the complainant’s son and spoke to him briefly. He said that he did not appear to be particularly upset or agitated. He then spoke to the complainant who was in a caravan parked outside the house. He said that she also appeared to be calm. After a brief discussion, they went into

the house to talk to Mr Matheson. He said that he had not previously met

Mr Matheson and that he did not know that he was a police officer at that time.

[23] Senior Constable Donaldson said that the complainant and Mr Matheson were both talking about a set of keys that the complainant wanted that Mr Matheson had in his hands but would not give to her. However, the Constable said that he could not recall exactly what was said or who said what during this initial part of the discussion because they were talking over the top of each other and he did not take any notes at the time.

[24] The Constable recalled Mr Matheson was fairly calm but appeared uncomfortable. Mr Matheson told him that the complainant had tried to get a set of keys from him and had twisted his fingers back in an attempt to get them out of his hand. He also told him that he had to hold the complainant down. In response to the complainant’s statement that he had pulled her hair, Mr Matheson said that the keys may have “got stuck in her hair while they were grappling over [them]”.

[25] Senior Constable Donaldson said that after the initial discussion when Mr Matheson and the complainant were talking over the top of each other, the complainant “wasn’t saying a lot”. He said that he then went out into the front yard and spoke with her alone. He said that this was when she told him that Mr Matheson was a police officer and asked whether this was going to affect his job. He told her that this was not his call. He said that the complainant did not want to make a complaint and admitted that she had tried to get the keys out of Mr Matheson’s hand and had bent his fingers back in an attempt to do so. The Constable said that he did not have “a lot to go on” after talking to the complainant.

[26] The Constable accepted a number of propositions that were put to him in cross-examination. He agreed that the complainant told him that she had a tender cheek but was unsure how it had happened. He also agreed that she told him that it may have happened accidentally while they were struggling in the bedroom. He further agreed that she told him that she did not believe that Mr Matheson had hit her intentionally.

[27] Senior Constable Donaldson said that he then spoke separately to Mr Matheson who told him that the incident had “escalated from nothing. Just simply a set of keys that they were arguing over and it had escalated to grappling over the keys and things had gotten out of hand”.

[28] The Constable said that neither of them wished to make a complaint at the time. He said that he told them that he would create a file and make a record of the incident. After leaving the address, he called his supervisor who directed him to complete a family violence report on his return to the police station and place this on his desk.

[29] Senior Constable Donaldson’s family violence report, which he completed

that evening, reads:

Argument between [the complainant] and her partner Dugal Matheson at their home address of [ ]. Also present was [the complainant’s son], 14 years of age. Argument may have become physical after [the complainant] grabbed hold of Dugal’s fingers and was twisting them. [The complainant] states that she was unsure if she had physically grabbed Dugal but indicated that she possibly had started the physical struggle if she had. Dugal was positive that she had. [The complainant] states that Dugal pulled her hair. Dugal states that he was merely trying to protect himself and restrain her after she would not stop twisting his fingers. Both parties did not want to proceed with any complaint. It was [the complainant’s son] that had called the police. No physical injuries were noted although [the complainant] said she had a tender cheek but neither said that it was anything intentional possibly part of the struggle as Dugal tried to stop [the complainant].

Mr Matheson

[30] Mr Matheson could not recall how the argument developed and did not remember throwing the dog blankets into the bedroom. He said that he went into the bedroom while the complainant was lying on the bed. He said he was concerned that she had been drinking and he “had the impression” that “she wanted to go somewhere in the car”. He did not want her to drive so he grabbed her car keys which were on top of a dresser. He said that had the keys in his left hand and he waved the index finger of his right hand at her “like a teacher admonishing a child”. He said that this is the first time he had ever done that. He said “much to my shock

she grabbed my third or ring finger on my, on my right hand. So I was waving my index finger at her and she grabbed one finger on my right hand, the ring finger”. He said that she “started severely twisting it and it was extremely painful and I was quite surprised how, um, yeah how painful and controlling that was”. He said that he could not leave and that “I was her captive”.

[31] Mr Matheson said that the complainant kicked him with her right leg and then grabbed the driftwood with her right hand while she was still holding the finger on his right hand with her left hand. He said she then struck him with the driftwood on his side. He said that he then grabbed her hair with his left hand while she was still pulling and twisting the finger on his right hand. He could not remember what happened to the keys which had been in his left hand. He said that he pushed her down on the bed and tried to immobilise her but she was “still twisting the hell out of my finger”. He said that he was “pushing and pulling trying to get her to release it”. He said that as he did this he “did catch her on her left cheek bone I know that”. He said that he only intended to release his hand and did not intend to strike her.

[32] Mr Matheson said that his finger swelled up and he had to have the ring he was wearing cut off a couple of days later. He recalled that this was a “mood” ring. He said that he could not bend his finger for a while but he did not seek medical treatment for it.

[33] In cross-examination, Mr Matheson was asked about a statement he had made to the police on 9 August 2012 at an interview he attended with his lawyer. In the course of that interview, Mr Matheson accepted that it was possible that he threw the dog blankets into the bedroom and that the complainant was angry about this. However, he said that he did not specifically recall this. He also denied grabbing her by her hair. He stated:

I recall being in the bedroom and still arguing and yelling at each other. I recall that for the first time ever that during any argument I have had with [the complainant] that I waved my right index finger at her (like a teacher admonishing a child) where upon and much to my surprise [the complainant] grabbed the third finger of my right hand with her left hand and twisted and wrenched it. I recall trying to pull my hand away but she had a very strong and painful grip. She was yelling at me and kicking me with her right foot and even grabbed with her right hand a polished piece of driftwood and struck me with it. [The complainant] was totally out of control. I was trying to block

her blows with my left hand and trying to release my right hand. At that point I grabbed her by the hair and held her on the bed to prevent further attacks on me. I was still pushing and pulling my right hand trying to get my finger released. At some point I recall hearing [the complainant’s son] screaming at me to let go of his mother. He then left again, as I later found out and quite rightly to call the police. I also recall pushing and pulling my right hand back and forth, when I accidentally struck the complainant a light blow on her left cheekbone, while I was trying to release my right hand. I can’t recall how soon after that contact that she released my finger, but when she did I immediately went outside and waited for the police to arrive. I should point out that I was stone cold sober and unlike [the complainant] I had not consumed any alcohol. The main injury I suffered was a semi dislocated third finger on my right hand, which I was unable to bend through its full range of motion for several months after.

[34] Mr Matheson did not say anything during the course of this interview about taking the car keys or the complainant trying to get them off him. When asked at the interview whether he had hurt his finger at any time prior to the incident, he said no. When asked whether he wore rings on his fingers, he said no. Asked whether he had hurt his finger on a ladder in November 2011, he said no. He was asked why he told Constable Donaldson that the complainant had smashed the door during the course of the argument that evening. His answer was “I don’t recall”.

[35] However, during the course of cross-examination at the trial, Mr Matheson acknowledged that three weeks before the incident, in late November 2011, his mood ring got hooked on the top edge of a ladder as he stepped off it. He said that he could not wear the ring for a day or two but after that he was wearing the ring again.

Submissions

[36] Mr Mabey submits that the Judge failed to give adequate weight to the family violence report prepared by Senior Constable Donaldson. He submits that this was a contemporaneous note prepared at the direction of the Constable’s superior while the matters were fresh in his mind. Mr Mabey argues that the report is consistent with Mr Matheson’s defence. While he accepts that it contains no reference to car keys, he submits that this does not justify ignoring its contents. He relies on the statement in the report that the complainant “was unsure if she had physically grabbed Dugal but indicated that she possibly had started the physical struggle, if she had. Dugal was positive that she had”. Mr Mabey also relies on the statement in the report referring to the complainant’s tender cheek that “neither said that it was anything

intentional and possibly part of the struggle as Dugal tried to stop [the complainant]”. Mr Mabey submits that the Judge’s focus on the issue of the car keys diverted him from the statement that Mr Matheson’s fingers were being twisted.

[37] Mr Mabey also submits that the Judge placed undue emphasis on the fact that Mr Matheson did not mention anything about car keys in his August 2012 interview. He submits that what Matheson said during this interview was consistent with his defence that the assault was initiated by the complainant twisting his fingers and that the blow to her cheek was accidental.

[38] Mr Mabey challenges the Judge’s conclusion that:³

Dugal conducted a carefully orchestrated defence case. In my view, he latched onto keys as a valid reason or justification for him getting into physical contact with [the complainant]. I do not accept it as holding any truth.

[39] Mr Mabey submits that this conclusion cannot be justified on the evidence. He argues that it was based on a disproportionate focus on the keys issue and ignored Senior Constable Donald’s evidence supported by the family violence report which was a contemporaneous record.

[40] Mr Mabey argues that this error in the Judge’s reasoning is compounded by his inexpert analysis of the likelihood of Mr Matheson’s account being correct. This criticism is directed at the following passage of the judgment:⁴

It seems to me to be an implausible situation, inherently so. Wagging one right finger ordinarily causes the other fingers to bend in and the hand to become like a fist so one is wagging one finger only. It is not possible to simply reach in and grab the ring finger in between the other fingers, and even if that were the case, [the complainant] is petite, she is significantly weaker than Dugal. Dugal could have freed his finger in the blink of an eyelid.

[41] Mr Mabey submits that this analysis was not based on any evidence and is far beyond the scope of judicial notice. He contends that these remarks by the Judge

_{reflect his “determination” to find against Mr Matheson “on an unjustified basis”.}

³ Fn 1 at [30].

[42] Mr Mabey also attacks the Judge’s conclusion that Mr Matheson fabricated

his defence. The Judge stated:⁵

It seems to me also that Dugal has chosen the right ring finger for a specific reason, that is because a short period, possibly a matter of weeks before the incident he had fallen off a ladder. He had been as clumsy as in fact [the complainant] had told me he was in terms of home maintenance, fallen off the ladder and hurt his right finger. He could not remember that in the police interview but he chose as part of his defence to establish the possibility of self defence, that [the complainant] should grab that particular finger and to not release it and to cause it significant damage and pain, which he does not complain about, as justification for the violence that followed. I do not accept it. It is not the way this incident occurred in my view.

Discussion

[43] The Judge’s conclusion was based on credibility findings which he was required to make in this case. The Judge had the advantage of seeing the witnesses give their evidence. The key witnesses were examined extensively and their evidence was thoroughly tested in cross-examination. I would therefore hesitate before disturbing the Judge’s factual findings.

[44] In any event, having carefully reviewed all of the evidence, I am not persuaded that the Judge was wrong in finding the charge proved beyond reasonable doubt. I agree with the Judge that Mr Matheson’s account of what occurred was implausible. I consider that the Judge was entitled to reject Mr Matheson’s evidence and accept that of the complainant and her son. I do not accept that Senior Constable Donaldson’s evidence undermined the prosecution case such that the conviction is not safe in the light of it.

[45] As noted, Mr Matheson abandoned his appeal against conviction for assaulting the complainant’s son. In so doing, he must be taken to have accepted that the Judge made no appealable error in accepting the evidence given by the complainant and her son as to what happened in that incident and rejecting his contrary evidence. Mr Mabey nevertheless argues that the Judge should have rejected the complainant’s evidence and her son’s evidence in relation to the second incident in the light of Senior Constable Donaldson’s evidence. I consider that in

making this submission, Mr Mabey seeks to place more weight on the Constable’s evidence than it is capable of bearing. Carefully examined, the Constable’s evidence and his family violence report provide little independent support for Mr Matheson’s account and largely reflect what Mr Matheson told him.

[46] The first problem with Senior Constable Donaldson’s evidence is that when he initially spoke to Mr Matheson and the complainant, they were talking over the top of each other making it difficult for him to determine who said what. This difficulty was compounded by the fact that he did not take notes at the time. The Constable also said that after this initial phase of the discussion, the complainant said little. The Judge was entitled to conclude that the suggestion in the family violence report that the complainant had “grabbed hold of Dugal’s fingers and was twisting them” came from Mr Matheson. This is supported by the fact that the Constable recorded that the complainant said “that she was unsure if she had physically grabbed Dugal”.

[47] The Constable recorded in his report that Mr Matheson was “merely trying to protect himself and restrain her after she would not stop twisting his fingers”. However, he clearly attributes this statement to Mr Matheson. The Constable noted in his report that the complainant told him that she had a tender cheek. However, he did not record being told by the complainant that this was accidental. The report simply states “neither said that it was anything intentional”. The Constable speculated that this was “possibly part of the struggle as Dugal tried to stop [the complainant]”.

[48] While Senior Constable Donaldson gave evidence that the complainant told him when he spoke to her alone in the front yard that she had tried to get the car keys off Mr Matheson and had twisted his finger, there are at least two possible explanations for this. The first is that the complainant was concerned about the effect that the incident could have on Mr Matheson’s employment and that is why she did not dispute what Mr Matheson had said. Another possibility is that Constable Donaldson was mistaken in believing, at the time he gave evidence

15 months later, that the complainant had told him this at the time. Certainly, if she

had made these statements to him, one would expect them to have been recorded in his report.

[49] I consider that the Judge was justified in rejecting in Mr Matheson’s evidence. Mr Matheson’s evidence was that the physical altercation started when he went into the bedroom and grabbed the car keys because he was concerned that the complainant had been drinking and was about to drive somewhere. His evidence was that she then tried to get the keys off him, presumably because she wanted to drive. I consider that it is significant that, if this was truly how the altercation started, Mr Matheson said no such thing to Constable Donaldson, nor did he mention it during the course of his police interview in August 2012.

[50] Having had the benefit of seeing both witnesses, the Judge noted that the complainant was petite and that Mr Matheson was clearly stronger than her. Mr Matheson accepted this. I agree with the Judge that it is inherently unlikely that the complainant was able to take hold of Mr Matheson’s ring finger on his right hand at the same time as he was waving the index finger of that hand at her. Equally implausible is Mr Matheson’s claim that the complainant was able to maintain such a firm grip on this finger with her left hand that he was unable to free it.

[51] The Judge was also entitled to take into account that Mr Matheson denied during the course of his police interview that at no time did he wear a ring and had not damaged his finger on a ladder in November 2011. Sometime after that interview, as part of the disclosure process, Mr Matheson was provided with an email the complainant had sent to him referring to this ladder incident. Confronted with this email, Mr Matheson had to acknowledge that he did wear a ring and had caught it on a ladder in November 2011. It is surprising that Mr Matheson did not remember this when he was interviewed by the police because it occurred only three weeks prior to the altercation with the complainant and it caused his finger to swell to such an extent that the ring had to be cut off.

[52] In assessing the credibility and reliability of Mr Matheson’s evidence, the

Judge was also entitled to take into account that Mr Matheson told Senior

Constable Donaldson that the complainant had broken the door during the incident. That was not the case.

Conclusion

[53] I am not persuaded that the Judge was wrong to find that the charge was proved beyond reasonable doubt. I agree with the Judge that Mr Matheson’s evidence was inconsistent, unreliable and implausible. In my view, the Judge was entitled to reject Mr Matheson’s evidence and find the charge proved on the basis of the other evidence, particularly the evidence of the complainant and her son.

Result

[54] The appeal against conviction on the charge of assault on a child was abandoned and is accordingly dismissed.

[55] The appeal against conviction on the charge of male assaults female is dismissed.

[56] The appeal against sentence on the charge of male assaults female was abandoned and is accordingly dismissed.

[57] Because the appeal against sentence on the charge of assault on a child was contingent on the appeal against conviction on the other charge succeeding, that

_{appeal must also be dismissed.}

M A Gilbert J