Emmerson v Police [2015] NZHC 361 (5 March 2015)

Last Updated: 21 April 2015

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-430 [2015] NZHC 361

BETWEEN	PERRY EMMERSON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	2 March 2015
Counsel:	B L Sellars and C S Fredric for Appellant R K Thomson for Respondent
Judgment:	5 March 2015

_{JUDGMENT OF KEANE J}

This judgment was delivered by me on 5 March 2015 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Belinda Sellars (Auckland) for Appellant

_{Meredith Connell (Auckland) for Respondent}

EMMERSON v POLICE [2015] NZHC 361 [5 March 2015]

[1] On 1 June 2013, shortly after 1:00 am, D made a 111 call. He said that he had just been indecently assaulted by a man, identified shortly afterwards to be Perry Emmerson. He had been walking in Glendene, Auckland; Mr Emmerson had pulled up in his truck and been friendly; he had climbed into the passenger side of the cab, for what reason he did not then say; and then, completely unexpectedly, Mr Emmerson had taken hold of his genitals.

[2] He had reacted, he said, by assaulting Mr Emmerson. He had pulled him out of the truck and continued to assault him, kicking him in the head. As he was speaking, he said Mr Emmerson was lying curled up to the side of the road. But he himself was still angry. To ensure he did not assault Mr Emmerson further he had hailed down a passing car. The occupants were with him. He was holding Mr Emmerson for the Police. He claimed to have acted in self-defence.

[3] One of the passers-by spoke to the operator. He confirmed D had hailed him down, together with his father and brother. They were at the roadside. Four officers arrived just as the call ended. Two spoke to D and arrested him for assault. Two spoke to Mr Emmerson, who was taken to North Shore Hospital. In a video interview at 2:26am D again admitted his assault on Mr Emmerson, with greater detail.

[4] D explained that shortly before the incident he and a friend of his, whom he proved reluctant to name, had been told to leave his uncle’s and aunt’s house. He and his uncle had argued. He was inconsistent about whether his friend was still with him, when Mr Emmerson pulled up. But finally he said that they had parted close to his aunt and uncle’s house and he was by himself. Mr Emmerson asked him for directions and offered him a lift.

[5] He climbed into the passenger seat, pushing to one aside Mr Emmerson’s possessions and spreading his legs to cope with more items in the foot well. He recalled that Mr Emmerson was drinking a can of bourbon or something alcoholic. Then, as they were pulling away from the kerb, to turn back up the road, and Mr Emmerson was apparently engaging the gear shift, he felt Mr Emmerson’s left hand on his genitals.

[6] He forced it away and punched Mr Emmerson three times, dragged him across the seat out the passenger door to the side of the road and continued to assault him. This time he admitted only to kicking Mr Emmerson in the ribs. He said he suffered from ADHD and had been violent in the past, but had been out of trouble for two, even three years. He was trying to keep his life straight. He had reacted defensively. Mr Emmerson, he said, was a paedophile. There was a cage on the truck and a large Shrek doll between the cage and the cab. Children could be vulnerable.

[7] D pleaded guilty to assaulting Mr Emmerson with intent to injure him, and was sentenced to 50 hours community work. Mr Emmerson, who was charged after he left hospital, denied indecently assaulting D. He said that he stopped to offer two men a ride, not just D. He denied D got into the cab. The passenger side was packed. He was then living in his truck. D, he said, assaulted him violently without warning or cause.

[8] On 11 August 2014, after a defended hearing in the District Court, Waitakere, at which Mr Emmerson elected to give evidence, Judge Taumaunu in an oral decision accepted D’s evidence. He convicted Mr Emmerson and later sentenced him to 50 hours community work and 12 months supervision. Mr Emmerson now appeals his conviction on two grounds essentially.

[9] One is that the Judge reversed the onus of proof and required him to negate D’s evidence that he assaulted Mr Emmerson only because Mr Emmerson indecently assaulted him. The other is that D’s evidence was unworthy of belief, for reasons advanced at the hearing, which the Judge rejected as relevant neither to whether Mr Emmerson had touched D indecently nor to D’s credibility.

Decision under appeal

[10] The Judge began his decision by identifying succinctly the essence of the offence charged, an uninvited touch without consent, which was indecent in character, as to which the only issue was whether ‘the Police have proved beyond reasonable doubt that Mr Emmerson intentionally touched [D’s] genital area, as

alleged by [D]’. The Judge then said, speaking of Mr Emmerson’s election to give

evidence:¹

Where the defendant gives evidence, as has occurred in this case, the Court may accept that evidence, the Court may find the evidence raises a reasonable doubt, or the Court may reject the evidence. If the Court rejects the defendant’s evidence it does not add to the case against him.

[11] The Judge held that Mr Emmerson’s evidence that D could not have sat beside him in the front passenger seat, because it was packed and there was a chainsaw in the foot well, was inconsistent with that of the two officers who gave evidence. They accepted that the passenger seat was covered with items, but said that the chainsaw was in the rear foot well and there were no squash rackets on the front seat. The assault D alleged was physically possible.

[12] The Judge recorded the defence submission that D’s evidence suffered from

‘substantial inconsistencies’, as to whether his friend was still with him, on which point he had lied; as to whether his account that he was walking to his ex-partner’s place to see their children was a late invention; and as to the degree to which he continued to be angry after leaving his aunt and uncle’s house just beforehand.

[13] The Judge held that these reasons for questioning D’s evidence did not ‘relate to the central focus of the case and that is the disputed touching’. He also held D’s failure to mention earlier that he was a sexual abuse victim was unsurprising; and that the defence challenges as a whole ‘carry little weight in the overall context of the case’.

[14] The Judge rejected as ‘inherently improbable’ Mr Emmerson’s evidence that he did not indecently assault D, first, because it was Mr Emmerson who initiated contact:

It was Mr Emmerson who chose to pull up next to [D]. [D] did not hail him in the normal manner of a hitchhiker. He did not stand in the middle of the road looking to wave Mr Emmerson down. Mr Emmerson was over twice the legal limit for drink-driving and it was 1:00 am in the morning. In my view it was an unusual time for a person to pick up strangers and in this particular context to pick up hitchhikers unsolicited.

¹ Police v Emmerson DC Waitakere CRI-2013-090-3410, 11 August 2014.

[15] Second, the Judge held that it was inherently improbable, even on the defence case, that D:

... went immediately from someone standing on the side of the road, a stranger to Mr Emmerson, to a person then involved, after being offered a lift, in a sustained attack that included dragging an unknown stranger from the seat of his vehicle onto the footpath and continuing the attack.

[16] Third, the Judge found that the wider evidence supported D’s account:

[D], after committing a serious assault against Mr Emmerson, then attempted to enlist the aid of other members of the public to ensure effectively a citizen’s arrest of Mr Emmerson. That combined with the fact that [D] then spoke to the Police 111 operator and requested Police to attend the scene and arrest Mr Emmerson for touching his genitals, and in his words to the 111 operator, ‘for putting his hand on my cock’.

He also found the truck’s position, and state, consistent with D’s account, and inconsistent with that of Mr Emmerson. It was not parked at the curb. It was parked two metres out from the curb with the passenger door open.

[17] Fourth, the Judge found that D’s violent response was ‘a plausible reaction’,

accepting D’s evidence that he was a victim of sexual abuse.

[18] The Judge again said that it was not enough that he had rejected Mr Emmerson’s evidence. He had to accept, and he did accept, D’s evidence, set against all the prosecution evidence:² ‘... [D’s] version of events, as he described them, is entirely plausible. The inconsistencies pointed out by the defence carry little weight ... because in my view there is no other inference available in this case’. He found the prosecution evidence ‘overwhelming’:³

... Mr Emmerson and [D] were strangers, and there was no consent to the touching. The touching took [D] by surprise. [D] had accepted a ride from Mr Emmerson, but nothing more. There was no evidence at all that there had been any discussion between [D] and Mr Emmerson about consensual sexual conduct and I reach the view that right thinking members of the community would find the touching in the circumstances indecent.

² _{At [29].}

³ At [30].

Appeal principles

[19] Mr Emmerson’s appeal must be allowed if I am satisfied that ‘the Judge erred in his ... assessment of the evidence to such an extent that a miscarriage of justice has occurred’.⁴ A miscarriage of justice is, in the context of this case, any ‘error’ that

‘has created a real risk that the outcome of the trial was effected’, or ‘has resulted in an unfair trial’.⁵

[20] This question must be answered in its own terms. For there to be a miscarriage of justice in a Judge-alone trial, any error by the Judge in evaluating the evidence must carry a ‘real risk’ of rendering his or her decision unreasonable; and that ‘there is a reasonable possibility that a not guilty (or more favourable) verdict

might have been delivered if nothing had gone wrong’.⁶

[21] Furthermore, this is a general appeal by way of rehearing. It is not an appeal from the verdict of a Judge without a jury.⁷ The appellant must show that in some material sense the decision under appeal is wrong. But this Court must also make its own independent assessment, always taking into account as to issues of credibility the advantage the Judge at first instance had in seeing and hearing the witnesses.⁸

Appeal submissions

[22] On this appeal Mr Emmerson does not dispute that the Judge directed himself correctly as to the onus of proof, but his first submission is that, despite that, the Judge in his analysis of the evidence effectively reversed the onus.

[23] Mr Emmerson accepts that the Judge was entitled to reject his evidence. But, he says, the Judge required him to account for the severity of the assault he had suffered at D’s hands; then rejected his account and inferred that he must have assaulted D indecently, because otherwise D would not have assaulted him. The Judge compounded this error, he contends, by accepting uncritically that D was

_{especially vulnerable as a result of childhood abuse.}

⁴ _{Criminal Procedure Act 2011, s 232(1) and (2)(b) and (c).}

⁵ _{Section 232(4).}

⁶ _{R v Sung Suwan [2005] NZSC 57; [2006] 1 NZLR 730 (SC) at [110] per Tipping J.}

⁷ _{R v Slavich [2009] NZCA 188.}

⁸ Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 (SC) at [16].

[24] Mr Emmerson submits, secondly, that the Judge could not on the evidence discount as a reasonable possibility that D did become extremely violent the moment he was offered a ride. D himself said that night that he has a history of violence and that he assumed that Mr Emmerson was a sexual predator. The Judge should also have rejected D’s evidence.

[25] In these two ways, Mr Emmerson contends, the Judge erred in not recognising the relevance and force of the following features of the evidence as a whole:

(a) D’s evidence went beyond his 111 complaint and DVD interview, especially when he said that he was walking by himself to his girlfriend’s house to see their child;

(b) D was at a loose end and angry, because he had just argued with his uncle and been ejected from his aunt and uncle’s house not long before the incident;

(c) D had a friend with him when Mr Emmerson offered them both a ride, a fact D lied about, which made it improbable that Mr Emmerson would target either one for a sexual encounter;

(d) The fact that there were two at the roadside also strengthened Mr Emmerson’s evidence that he intended to offer to carry both on the flat deck of his truck, because he had all his belongings in the cab;

(e) The cab was, when inspected afterwards, filled with Mr Emmerson’s possessions and, despite the evidence of the officer, the chainsaw could only have been accommodated by the front foot well and by the gap underneath the outer edge of the front passenger seat. There was no space to sit there.

Conclusions

[26] The Judge made no error when describing where the onus of proof lies when the defendant gives evidence. He twice said, at the beginning of his decision and the end, that it remains on the prosecution; that he may have rejected Mr Emmerson’s evidence but that was not enough. He had to be convinced by D’s evidence set against the prosecution evidence as a whole.

[27] The Judge identified equally accurately the reasons why the defence contended that D’s evidence was inconsistent with his two accounts on the night, and was entitled to set them to one side. When D rang 111 he was clearly highly emotional. He made his complaint elliptically, punctuated by bursts of anger. He was more detailed when video interviewed shortly after, but still emotional and affected by drink. Any shifts in his evidence were mostly peripheral and unsurprising.

[28] It was irrelevant to the central issue, whether there had been an indecent touching, and to D’s credibility, that he said for the first time in evidence that he was going to his ex partner’s house to see their child. Nor could the Judge safely infer from D’s evidence that he was already highly angry when Mr Emmerson pulled over, or that he instantly rated Mr Emmerson a sexual predator.

[29] D’s evidence as to the argument at his aunt and uncle’s house was too abstract to establish that he was angry, and he only said that he found the cage on the truck and the Shrek toy sinister, after he had repeatedly said that Mr Emmerson had unexpectedly assaulted him. The Judge was right not to give any weight to that theory.

[30] It was relevant to the credibility of both D and Mr Emmerson whether, as Mr Emmerson said in evidence, D’s friend was with him when Mr Emmerson pulled over. But that would depend on when Mr Emmerson first said there was a second man, before or after disclosure. It has also to be set against the indisputable evidence which the Judge found decisive, as do I.

[31] It was D who rang 111, not Mr Emmerson. He not only began by saying that he had just assaulted Mr Emmerson. He said he wanted to assault him more. Only then did he explain why, and complain that Mr Emmerson had indecently assaulted him first. In his video interview soon after, he again made these very frank admissions against interest. On each occasion he claimed to have acted in self- defence, but he made no attempt to minimise what he had done. The contrary is the case. His evidence was all of a piece.

[32] The Judge was entitled on that basis, as he did, to find D’s indecent complaint against Mr Emmerson to be credible and reliable, including his claim to have been sexually abused when young, unless Mr Emmerson’s evidence put that in doubt. For the reasons he gave, with which I agree, he discounted Mr Emmerson’s evidence as implausible, when set against the evidence as a whole. In his analysis, he did not reverse the onus of proof.

_{[33] I dismiss Mr Emmerson’s appeal. I uphold his conviction and sentence.}

Keane J