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Bullen v Police [2016] NZHC 1598 (14 July 2016)

Last Updated: 27 October 2016


IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY




CRI-2016-406-6 [2016] NZHC 1598

BETWEEN
DENNIS EDWARD BULLEN
Appellant
AND
NEW ZEALAND POLICE Respondent


Hearing:
12 July 2016 (via AVL)
Counsel:
R M Gould for Appellant
R M Thomas for Respondent
Judgment:
14 July 2016




JUDGMENT OF CLARK J


Introduction

[1] Following a defended hearing in the Blenheim District Court1 on 2 June 2016

Judge Ruth found the prosecution had proved the two charges which the defendant faced namely:

(a) possession of an offensive weapon in circumstances that showed a prima facie intention to use it to commit an offence involving the fear of violence;2 and

(b) resisting constables acting in the execution of their duty.3

[2] The appellant appeals his conviction. Ms Gould, counsel for the appellant, submitted there was one ground of appeal: the Judge accepted the prosecution




1 New Zealand Police v Bullen [2016] NZDC 11128.

2 Crimes Act 1961, s 202A(4)(b).

3 Summary Offences Act 1981, s 23(a).

BULLEN v NEW ZEALAND POLICE [2016] NZHC 1598 [14 July 2016]

evidence and rejected the defence evidence without providing clear reasons for doing so.

Background facts

[3] During the morning of Thursday 4 February 2016 Mr Bullen was at his home in Blenheim. Marlborough District Council inspectors were there to assess rubbish being stored on the property. Animal control was also present. The police were called to assist the Council and animal control personnel to execute their warrant. When three police officers arrived at the property Mr Bullen was in an agitated state and acting abusively and aggressively towards the various authorities present. Constable Spence tried to calm Mr Bullen but eventually needed to warn him that his behaviour was obstructive and disorderly and he faced the possibility of arrest if he did not stop. At some point Mr Bullen went into his garage and emerged with a mallet. He was told to put it down but would not do so and one of the officers grabbed the mallet and placed Mr Bullen in a type of headlock. Mr Bullen was arrested but continued to struggle. He was taken away from the property because of the number of persons present and the state of the front yard which was littered with scrap metal and car parts. Eventually Mr Bullen was handcuffed and taken to a patrol car. He continued to kick out and direct verbal abuse including spitting at Sergeant Weston saying he hoped it had landed because he had hepatitis C.

Principles governing appeals against conviction

[4] This is an appeal under s 232 of the Criminal Procedure Act 2011. I must allow the appeal 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 or if a miscarriage of justice has occurred for any reason. I must dismiss the appeal in any other case.

[5] A miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that:4

(a) his created a real risk that the outcome of the trial was affected; or

4 Criminal Procedure Act 2011, s 232(4).

(b) has resulted in an unfair trial or a trial that was a nullity.

[6] A “real risk” that the outcome of a trial was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.5

The District Court decision

[7] The Judge began by noting that the appellant had given and called evidence which he was not obliged to do given that he bore no onus. The Judge encapsulated the evidence he had heard from two police officers, Mr Bullen and Mr Bullen’s wife. The Judge made a number of observations about the possible scenarios and outcomes in the event that he did not accept Mr Bullen’s evidence or the prosecution evidence and he reminded himself of the standard of proof.

[8] The Judge explained why he had directed that the two officers be recalled. It was of concern to him that, throughout the giving of evidence by Mr and Mrs Bullen, a number of matters were alleged against the police officers which had not been put to them. In light of that, the Judge directed the two officers be recalled so that these matters could be put to them.6

[9] Coming to his ultimate conclusion the Judge accepted Ms Gould’s submission that he should not take the view the Police must necessarily be telling the truth and those who speak contrary to them must therefore be telling lies.7

[10] The Judge asked himself whether it was likely that the officers8

who had no stake in this matter, other than to assist local body personnel who had requested assistance, would be likely to react in the way in which Mr Bullen and Mrs Bullen have suggested.





  1. Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] adopted more recently in the context of the Criminal Procedure Act 2011 by the Court of Appeal in Wiley v R [2016] NZCA

28[2016] NZCA 28; , [2016] 3 NZLR 1 at [29]–[30].

6 At [54].

7 At [63].

8 At [64].

[11] The Judge said he found that to be an extraordinary proposition. The Judge expressly preferred the evidence of the officers where it was in conflict with the evidence of Mr and Mrs Bullen rejecting entirely their evidence as “untrue, and probably contrived”.9

The appeal

[12] Ms Gould submitted that the Judge’s approach was in error. By asking himself whether the officers who, he observed, had no stake in the matter, would be likely to react in the way suggested the Judge misdirected himself. The Judge’s first task, Ms Gould submitted, was to objectively consider the evidence given rather than to rule that the defence version of events amounted to “an extraordinary proposition”.

[13] A similar point was made in respect of the Judge’s findings that the officers gave evidence in a “very forthright, honest, direct manner” and that they had “no axe to grind”.

[14] Likewise, the Judge gave no reason for his rejection of the evidence of Mr and Mrs Bullen as being “probably contrived”. Relying on Reid v New Zealand Police10 Ms Gould submitted that the appellant was entitled to know the basis upon which his evidence had been rejected. It was not sufficient for the Judge to simply say that he preferred the prosecution evidence to the appellant’s evidence. Although the Judge went through the evidence Ms Gould submitted he did not analyse it. He

was obliged to do so and to critically appraise it.


Evaluation

[15] I have identified no error in the Judge’s assessment of the evidence or in his

approach to the reasons he gave.

[16] The first point is that this was a Judge-alone trial. A Judge sitting alone effectively delivers a verdict:11

It need not be supported by elaborate reasons. To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge's failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay. Careful consideration is an elementary need, but not long exposition.

[17] As Cooke J said in R v Connell it is not possible to devise a formula to cover all circumstances but in general not much more can be required than —12

a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge’s essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.

[18] These essential elements are apparent in Judge Ruth’s judgment.

[19] The facts which, on Mr Bullen’s own evidence, are not contentious are that Council officers arrived at his address around mid-morning. They said they had a warrant. The Police arrived after that time then Mr Bullen said he felt like he was under attack from all three bodies and was overwhelmed by it all. He said he had had enough and told them he would like to fix his fence and he wanted everyone to go. He had raised his voice by this time. He got his mallet. He agreed he was yelling at the Police. Council staff went to the rear of the property and the two police officers stayed at the front of the property where Mr Bullen had asked them to stay. Mr Bullen accepted that they complied with what he had asked. Mr Bullen had been yelling and he was asked to lower his voice. Mr Bullen had ten-pound sledge hammers. He took the soft hammer and walked towards one of the police officers

carrying the mallet low Mr Bullen said. Mr Bullen also said that his daughter had taken a video of the entire episode. When asked if he had it he said it had been given to the Police Complaints Authority but he had been told there wasn’t enough evidence to proceed (presumably with a complaint).

[20] Mrs Bullen agreed that her husband was upset that the dogs were to be taken and that he raises his voice when he is upset.

[21] In effect the Judge disbelieved that Mr Bullen was going to fix his fence with the mallet but decided to cast it aside because of the way a police officer looked at him. That had been Mrs Bullen’s evidence. Ms Gould cross-examined the police officers one of whose evidence was that the Police had been calm and professional throughout and did not yell and were not abusive at all.

[22] In the course of her appeal submissions Ms Gould said one of the features of the evidence that was concerning was that Sergeant Weston could not categorically say that he had used his right or left arm to headlock the appellant. His evidence was that with his normal motions and actions he would have said he used his right arm and grabbed the mallet with his left. Ms Gould’s point was that he did not have a clear picture in his mind of the scenario and this was another feature of the evidence which demonstrated the Judge’s preference for the prosecution evidence was without foundation. I observe from the notes of evidence that Ms Gould also cross-examined Constable Spence as to which arm he had seen Sergeant Weston use when he grabbed Mr Bullen in a headlock. The Judge intervened and said he did not expect a blow-by-blow account of this detail of an event happening very quickly in “the heat of the episode”. In any event the issue is resolved when one turns to the transcript. Ms Gould put to Sergeant Harris in cross-examination that she thought he would have a picture of it in his mind and concluded “Do you not?” He answered “I do but

—”.

[23] The relevant point concerning the Judge’s treatment of the evidence is that from the prosecution witnesses he received a lucid and plausible account of the mallet incident. For example, Sergeant Weston’s evidence was that Mr Bullen came within two metres of him and began to raise the mallet towards shoulder height.

Sergeant Weston thought Mr Bullen was going to attack him or Constable Spence who was standing approximately two metres to his side. When Mr Bullen was directly in front of him, Sergeant Weston realised he “seemed to be transfixed” on Constable Spence. Sergeant Weston believed at that moment that the Constable was going to be attacked with the mallet. The sergeant immediately went forward to grab the mallet from Mr Bullen’s right hand and placed him in a headlock.

[24] This detailed account contrasts with the less specific account given by Mr and Mrs Bullen. The Judge was in the best position to assess the credibility of the various witnesses and their competing accounts. He was entitled to accept or reject parts of the evidence as he saw fit.

[25] Ms Gould’s case was that Mr Bullen’s account was no less viable than that of the Police and the Judge’s task was to analyse both versions while taking credibility and demeanour into account.

[26] That is what the Judge did. Specifically, with regard to his credibility findings, the Judge found both officers gave evidence in a forthright, honest and direct manner. Having read the transcript I do not see the flaws in the evidence which Ms Gould sees.

[27] The Judge found that Mr and Mrs Bullen’s account of the police officers’ conduct on the day not to be credible. He reached that conclusion having heard the evidence and also on the basis of his experience which led him to conclude that officers who had simply arrived to assist local body personnel who had requested assistance and therefore had no stake in the matter would be unlikely to react in the way suggested. He was entitled to regard Mr and Mrs Bullen’s proposition as “extraordinary”.

[28] Conclusions and findings of this kind are commonly made by Judges and upheld on appeal where an assessment of the evidence and circumstances leave the

appeal court in no doubt that it was a finding or conclusion properly available to the

Judge.13

[29] I have identified no error in the Judge’s approach. Nor, when they are considered against the backdrop of the evidence in its totality, do the Judge’s articulated reasons for rejecting the defence evidence suggest a miscarriage of justice has occurred.

Result

[30] The appeal against conviction is dismissed.






Karen Clark J


Solicitors:

Crown Solicitor, Nelson for Respondent































13 For example Kouznetsov v New Zealand Police [2014] NZHC 1482 at [50]–[51] where Lang J found the Judge was entitled to describe an extravagant and unlikely explanation for an incident would be “a remarkable coincidence”.


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