Hrabchak v Police [2017] NZHC 2229 (14 September 2017)

Last Updated: 29 November 2017

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-28 [2017] NZHC 2229

BETWEEN	SHARON HRABCHAK Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 September 2017
Appearances:	Appellant in person K J MacNeil for the Respondent
Judgment:	14 September 2017

_{ORAL JUDGMENT OF MUIR J}

Counsel/Solicitors:

K J MacNeil, Crown Solicitors, Whangarei

_{Copy to: Appellant}

HRABCHAK v NEW ZEALAND POLICE [2017] NZHC 2229 [14 September 2017]

Introduction

[1] The appellant, Sharon Hrabchak, was convicted of one charge of wilful damage¹ and one charge of trespass² following a Judge-alone trial. The charges related to a single incident of entering her neighbour’s property, in respect of which she had previously been issued with a trespass notice, and damaging her neighbour’s air conditioning unit.

[2] On the wilful damage charge she was ordered to pay reparation of $250 to her neighbour and $2,350 to her neighbour’s insurer. In respect of the trespass charge, she was convicted and discharged.

[3] Ms Hrabchak now appeals against the convictions and sentence. She was self- represented at trial and remains self-represented on the appeal.

Background

The offending

[4] Ms Hrabchak resides at 37A Montgomery Avenue in Onerahi, Whangarei. The complainant, Penelope Paru, is her neighbour, residing at 37 Montgomery Avenue.

37A Montgomery Avenue is Ms Hrabchak’s own home, having formerly sold her property in Auckland and moved to the Whangarei District.

[5] The Crown case was that there had been ongoing difficulties between

Ms Hrabchak and her neighbour, Ms Paru, which culminated in Senior Constable Penney serving Ms Hrabchak with a trespass notice on 29 November 2016. That notice required Ms Hrabchak to stay off the property at 37 Montgomery Avenue. Senior Constable Penney says the consequences of breaching the trespass notice were

_{explained to Ms Hrabchak and that she understood them.}

1. Summary Offences Act 1981, s 11(1)(a). This offence carries a maximum sentence of three months’ imprisonment or a fine not exceeding $2,000.

² Trespass Act 1980, s 4(4). This offence carries a maximum sentence of three months’

imprisonment or a fine not exceeding $1,000; see Trespass Act, s 11(2)(a).

[6] The Police say that on or about 12 December 2016, at 10.00am, Ms Hrabchak proceeded from her address to the rear of Ms Paru’s property at 37 Montgomery Avenue where she approached the air conditioning unit next to the rear stairs of the address. The Police allege that, using a screwdriver or other similar item, she stabbed the air conditioning unit, intentionally damaging it.

[7] A technician subsequently checked the air conditioning unit and found it to be irreparable. Fins inside the unit had been damaged by a sharp instrument and were unable to be fixed.

Judge-alone trial

[8] Ms Hrabchak’s Judge-alone trial took place before experienced District Court Judge de Ridder in the Whangarei Court on 7 July 2017. Judge de Ridder delivered an oral judgment in which he found Ms Hrabchack guilty on both charges.³

[9] The prosecution called four witnesses: Mr Young, a neighbour; Mr Hallberg, an expert in repairing air conditioning units; Ms Paru, the complainant; and Senior Constable Penney, the officer in charge.

[10] Mr Young stated that he was a witness to the events in question. He says he saw Ms Hrabchak enter Ms Paru’s property on or about the morning of 12 December and going straight to the air conditioning unit, where she pulled something out from under her folded arms and poked it into the unit several times. When he observed this, he was about eight metres away from her, looking out his kitchen window, and, he says, nothing obstructed his view. In cross-examination Ms Hrabchak put to him that his curtains were always drawn, to which he responded that they were not, but he had tinted windows which may give the appearance of curtains being drawn.

[11] Mr Hallberg, a refrigeration engineer with a specialisation in air conditioning, examined the air conditioning unit after Ms Paru noticed puncture marks inside the grill sometime in February 2017. He disassembled the unit and was satisfied that it

_{had been intentionally damaged by something being pushed forcefully against it. He}

³ Police v Hrabchak [2017] NZDC 14920.

said there was no natural explanation for such damage, and he had never in his 24 years’ experience as a technician seen any similar sort of damage. Ms Hrabchak did not raise any matters in cross-examination of him. She did attempt to give evidence about her own version of events at that point in the proceedings but she was stopped by the Judge.

[12] Ms Paru gave evidence that she noticed the damage to her air conditioning unit in February 2017, and described how she called Mr Hallberg to check the unit. She also confirmed that she had asked the police to serve a trespass notice on Ms Hrabchak following incidents between them in 2016. Again, Ms Hrabchak had no questions for Ms Paru.

[13] Senior Constable Penney testified that following a request from Ms Paru, he had served a trespass notice personally on Ms Hrabchak in November 2016. That notice prevented her from entering 37 Montgomery Avenue for a period of two years after the notice was issued. He produced a copy of the trespass notice in evidence. He testified that he became involved in the case again in February 2017 after Mr Young contacted him and informed him that he had witnessed damage to his neighbour’s property. He then made enquiries, including taking photographs of the scene and the air conditioning unit. Those photographs were produced in evidence. Again, Ms Hrabchak had no questions for Senior Constable Penney in cross-examination. Again she attempted to give evidence, in particular that although she had been served with a trespass notice she had not breached its terms but the Judge pointed out it was not appropriate for her to do so at that time.

[14] Finally, after the prosecution had called all its witnesses, the Judge gave

Ms Hrabchak an opportunity to present evidence herself or to call witnesses. He explained that she was not obliged to do so but could do so if she wished. Ms Hrabchak declined to call any evidence, saying “No I haven’t committed the offence so I don’t need no further evidence”. The Judge then clarified the position by asking whether she wished to give evidence herself. Ms Hrabchak replied “No I didn’t commit the offence. I can swear I didn’t do this damage. These are false accusations”. The Judge then retired to review his decision before giving an oral judgment.

[15] In that judgment, His Honour began by noting that the onus of proof beyond reasonable doubt fell on the prosecution. He set out the elements of trespass that the prosecution had to prove as follows:

(a) that the defendant was subject to a notice trespassing her from 37

Montgomery Avenue;

(b) that the defendant did in fact trespass on 37 Montgomery Avenue after being issued with such a notice; and

(c) that she did so wilfully, that is deliberately or intentionally.

[16] He then set out the elements of wilful damage that the prosecution was required to prove:

(a) that the defendant damaged the air conditioning unit, which was the property of Ms Paru; and

(b) that the defendant did so intentionally, that is deliberately.

[17] The Judge noted that there was no issue in terms of Ms Hrabchak being subject to a trespass notice at the relevant time. Rather the case turned on whether she entered her neighbour’s property and whether she damaged the air conditioning unit. He observed that there was a special need for caution before relying on visual identification evidence because perfectly honest witnesses can be mistaken as to identification. However, he was satisfied that Mr Young had seen Ms Hrabchak several times before and there was nothing to suggest he was mistaken as to her identity on the day in question. His view from the window was confirmed by the police photographs of the scene.

[18] Judge de Ridder concluded that the defendant “clearly did trespass on Ms

Paru’s property and clearly did damage the air conditioning unit”.

Sentence

[19] He then went on to sentence Ms Hrabchak.⁴ She was ordered to pay reparation of $250 to Ms Paru and $2,350 to ANZ Insurance. She was convicted and discharged on the charge of wilful trespass.

[20] The sentencing notes do not elaborate on the sentencing approach

Personal circumstances of Ms Hrabchak

[21] Ms Hrabchak is aged 68. She has only one previous conviction, which is for driving with excess breath alcohol in 2012.

Appellant’s submissions

[22] Ms Hrabchak filed a notice of appeal against her convictions and sentence on

10 July 2017. She stated the ground of appeal as being that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice had occurred. She challenged the eyewitness evidence of Mr Young.

[23] Ms Hrabchak did not file any submissions in support of her appeal, but she did file two affidavits: one from herself and one from a Mr Philbrick. Her own affidavit describes an antagonistic relationship between herself and Mr Young, in circumstances I will discuss further below.

[24] In his affidavit, Mr Philbrick affirms that on 7 January 2017 he drove to Whangarei from Auckland to “make sure all was well”. He says that as soon as he got out of the car, John (presumably Mr Young, but possibly Ms Paru’s son, who is also named John) approached him and informed him that Ms Hrabchak had planted flowers along the boundary and he had thrown water in her face as a result. He says John insulted Ms Hrabchak and made other accusations against her which Mr Philbrick

_{believed to be untrue.}

⁴ Police v Hrabchak [2017] NZDC 17456.

Respondent’s submissions

[25] For the Police Mr MacNeil submits that the material in Ms Hrabchak’s affidavit could and should have been presented to the Judge at trial, that as a result Ms Hrabchak is attempting to produce fresh evidence on appeal in circumstances where there is no explanation for failing to introduce it at trial.

[26] Putting the fresh evidence to one side, Mr MacNeil submits that there was no miscarriage of justice at trial. Judge de Ridder provided clear reasoning and did not misdirect himself as to the law.

Appeal against conviction

Approach on appeal

[27] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge- alone trial.

[28] Under s 232(2), the High Court can only allow an appeal from a Judge-alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”. A miscarriage of justice is defined in s 232(4) as any error, irregularity, or occurrence in or in relation to or affecting the trial that:

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

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

Analysis

[29] Ms Hrabchak says in her notice of appeal that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. She suggests that the Judge was incorrect in relying on the eyewitness evidence of Mr Young.

[30] She seeks to adduce further evidence on her appeal. That evidence directly challenges Mr Young’s evidence: in essence it says that he could not have seen her; he is antagonistic towards her and has a motive to lie about her; and she could not have inflicted the damage because she has arthritis. This evidence was not before the trial Judge.

[31] Appeal courts have a general jurisdiction to admit new evidence on appeal if it is necessary and expedient in the interests of justice to do so, under s 335 of the Criminal Procedure Act 2011:

335 Special powers of appeal courts in appeal involving conviction, sentence, or contempt

(1) This section applies to an appeal or application for leave to appeal under subpart 3, 4, or 5.

(2) For the purposes of an appeal or application for leave to appeal, an appeal court may, if it thinks it necessary or expedient in the interests of justice,—

(a) order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court, whether or not they were called at the trial:

(b) order the examination of those witnesses to be conducted before any Judge of the court or before any officer of the court or other person appointed by the court for the purpose, and allow the admission of any formal statements before the court:

(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness:

(d) order that a question arising on the appeal be referred to a special commissioner appointed by the court if the court thinks the question involves prolonged examination of documents or accounts, or any scientific or local investigation, and cannot conveniently be conducted before the court, and act on the report of the commissioner so far as the court thinks fit to adopt it:

(e) order the production of any document, exhibit, or other thing connected with the proceeding if the court considers that its production is necessary:

(f) appoint any person with special expert knowledge to act as assessor to the court if the court thinks that special knowledge is required for the proper determination of the case.

(3) Subsection (2)(a) to (d) and (f) do not apply if an appeal or application is determined just on the basis of written material before the appeal court.

[32] The overarching test as to the admission of new evidence on appeal is the interests of justice. However, the courts will generally not allow new evidence on appeal unless it is fresh, credible and cogent (in the sense that it might reasonably have led to a finding of not guilty if it had been given at trial).⁵

[33] The first difficulty that Ms Hrabchak faces is that the evidence she seeks to adduce on appeal is not fresh in the sense that it is not evidence unavailable at trial. As Mr MacNeil points out, there is no reason why she could not have, with reasonable diligence, called the evidence of Mr Philbrick at trial and/or given evidence herself.

[34] There is some evidence that Ms Hrabchak was confused at trial as to the difference between cross-examination and giving evidence. The notes of evidence demonstrate that she tried, on multiple occasions during the cross-examination, to give evidence herself. For example, during cross-examination of Mr Young, Ms Hrabchak began addressing the Judge, saying that Mr Young was lying. The Judge at that point stopped her and said:

No, Ms Hrabchak. If you want to give evidence, you’ll have the chance to do it soon. At this stage all you have to do is just ask Mr Young any questions you want to ask.

[35] In saying this, the Judge alerted Ms Hrabchak to the difference between giving her version of events and questioning a witness. Ms Hrabchak was made aware that she would have the opportunity to give evidence herself at a later stage in the trial. This was also carefully explained to her when the Judge outlined the procedure at the outset of the trial. Finally, at the conclusion of the Police’s case the Judge asked her on multiple occasions if she wished to give evidence or to call evidence. She did not take the opportunity to do so. In the circumstances, it is very difficult to see why she

_{should be permitted to adduce this evidence now.}

5. Simon v R [2017] NZHC 1235 at [10], citing R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA) at [22] and [26], endorsed in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [117]–[120].

[36] I will nevertheless consider the second criterion, which is whether the evidence is sufficiently credible and cogent to be admitted on appeal. I have difficulty with the evidence of Mr Philbrick in this respect. His brief affidavit lacks sufficient context and any real connection to the facts of this case. He does not explain his background or his connection to Ms Hrabchak. I therefore place his evidence largely to one side.

[37] The evidence of Ms Hrabchak has more substance. In summary she says:

(a) The eyewitness evidence of Mr Young was not true: that she has never set foot on Ms Paru’s property.

(b) Mr Young could not have seen her because his curtains were always drawn, as well as his windows being tinted.

(c) Mr Young was motivated to lie about Ms Hrabchak because of past conflict between them: he had previously thrown water, stones and rubbish onto her property, and thrown water in her face.

(d) There was a considerable period of time between Mr Young witnessing the events and reporting it to the police reflecting on the credibility of his statement in Ms Hrabchak’s submission.

(e) Mr Young stated the wrong distance between his window and the air conditioning unit.

(f) There was no photographic evidence of Ms Hrabchak committing the offence, and photos attached to the affidavit show the air conditioning unit was already old and deteriorating before the alleged damage.

(g) She was unable to inflict the damage because she has severe arthritis in her hand.

[38] In addition the affidavit asks the Court to reconsider her sentence.

[39] This evidence could not be said to be wholly implausible, although I do note that there is no supporting evidence of Ms Hrabchak’s alleged severe arthritis.

[40] Ultimately the question must be whether there is a reasonable possibility that this evidence, had it been led at trial, could have led to a finding of not guilty.⁶ I do not consider that this evidence is likely to have influenced the result had it been before the trial Judge, for the following reasons:

(a) The question about Mr Young’s curtains being drawn was put to him in cross-examination and he explained that he never closed his back curtains. The Judge was entitled to accept that straightforward evidence on this point.

(b) Ms Hrabchak’s evidence of animosity between herself and Mr Young is not fully explained in her affidavit, in particular the origins and reasons for that conflict. The evidence of limited hostility between them does not go so far as to suggest that Mr Young would commit perjury by lying in court in a criminal proceeding where he was the principal Crown witness. Mr Young’s evidence was otherwise internally consistent and the Judge found him to be both credible and accurate in his identification. He cautioned himself in relation to identification evidence but nevertheless accepted it was reliable.

(c) Nor was the nature of Ms Hrabchak’s arthritis and how it affected or restricted her movement properly explained in her affidavit.

(d) The allegedly “wrong distance” between Mr Young’s window and the air conditioning unit is unlikely to have been material.

(e) Mr Young explained in his evidence-in-chief why he did not report the matter to the police sooner. He noted that it was a very busy time of

⁶ I note Tipping J’s observation in R v Bain, above n 5, at [22] that “the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled”.

year and he did not see Ms Paru for some time. He forgot about it, he said, until he was talking to Ms Paru’s son in February 2017. This has the ring of a plausible explanation.

(f) It is clear from the judgment that although the defendant did not give evidence, His Honour was very much alive to the denial of involvement which featured in the defendant’s affidavit.

[41] It follows from that analysis that in my view Ms Hrabchak has not established an adequate foundation for the admission of new evidence on appeal.

[42] Putting the further evidence to one side then, I cannot see how it can be said that the Judge erred in his assessment of the evidence which he did hear such that a miscarriage of justice occurred in terms of s 232 of the Criminal Procedure Act. I consider that he directed himself properly as to the law, including the elements of both wilful damage and trespass. He carefully considered the prosecution evidence. He noted, as I have said, there was a special need for caution before accepting Mr Young’s identification evidence, as Mr Young could have been mistaken in that respect. However, in his view all the evidence indicated that he was not. Mr Young knew Ms Hrabchak and had seen her regularly over a two month period; the weather was fine and it was daylight; he had a clear line of sight from his window to the air conditioning unit, which was a relatively short distance away, whatever the actual measurement. It is implicit that the Judge found Mr Young to be a credible witness.⁷ He gave a clear and fully reasoned decision.

[43] It follows from that that I must dismiss the appeal against conviction.

Appeal against sentence

[44] On the appeal against sentence, Ms Hrabchak makes no particular submissions in her affidavit beyond asking the Court to reconsider her sentence.

⁷ See Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30].

[45] Ms Hrabchak was required by the Judge to pay reparation. Judge de Ridder was entitled to make an order for the payment of reparation under s 32(1) of the Sentencing Act 2002:

32 Sentence of reparation

(1) A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—

(a) loss of or damage to property; or

(b) emotional harm; or

(c) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

[46] Ms Paru has suffered damage to her property as a consequence of

Ms Hrabchak’s offending. Section 12(1(a) of the Sentencing Act states that the Court must order reparation where lawfully entitled to do so under s 32, unless satisfied that it would result in undue hardship for the defendant.

[47] Ms Hrabchak now invites me to set aside the reparation order on the basis of her undue hardship. She says she has significant difficulties as a result of a former overpayment of National Superannuation which she is now being required to repay.

[48] There are appropriate procedures for her to address that concern. Under s 38A of the Sentencing Act the Court may cancel a sentence of reparation on its own initiative, on application by an offender or on application by the Registrar. Any such applications are, pursuant to s 72(1)(d) of the Sentencing Act to be made to the District Court at first instance. It is possible that Ms Hrabchak may be able to negotiate with the Registrar instalment payments at a level which can be accommodated within her budget. If not and either her financial position has changed significantly since the sentence was imposed or the Registrar believes that there is any other sufficient reason for the matter to come again before the Court, an application can be made.

[49] Mr MacNeil has indicated that he will explain all relevant procedures to Ms Hrabchak on conclusion of this appeal with a view to assisting her to make arrangements which can be accommodated within her budget (or alternatively application for remission of the reparation order). I thank him for this indication. It is not in my view appropriate, however, that I interfere with such order at this stage.

Result

_{[50] Accordingly, I dismiss both the appeals against conviction and sentence.}

Muir J