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High Court of New Zealand Decisions |
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
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NEW ZEALAND POLICE Respondent
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Hearing:
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12 July 2016 (via AVL)
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Counsel:
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R M Gould for Appellant
R M Thomas for Respondent
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Judgment:
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14 July 2016
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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.
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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