AWATERE v NZ POLICE [2019] NZHC 194

AWATERE v NZ POLICE [2019] NZHC 194 [18 February 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI 2018-485-77[2019] NZHC 194BETWEEN CHRISTINA WHILIMINA AWATEREAppellantAND NEW ZEALAND POLICERespondentHearing: 5 February 2019Counsel: C Thorburn and T Luders for AppellantT G Bain for RespondentJudgment: 18 February 2019JUDGMENT OF SIMON FRANCE J[1] Ms Awatere appeals her conviction for common assault, it being alleged shespat at the victim during an altercation over a disability parking space.1 Difficultieswith the Court's recording system means that part of Ms Awatere's evidence, and theJudge's oral reasons, were not recorded.[2] Counsel are agreed that the authorities make it plain the imperfect writtenrecord does not mean the appeal must be allowed.2 It remains necessary to show anirregularity or error.1 New Zealand Police v Awatere CRI-2018-096-000527, trial commencing 08 October 2018. Thecharge was originally Crimes Act assault. At the Judge's invitation, prior to delivering thedecision, the charge was amended to Summary Offences Act assault.2 Kingi v R [2016] NZCA 160.[3] In the present case the prosecutor took a written note of the decision. It isaccepted by the parties that it is an accurate albeit incomplete record. As forMs Awatere's evidence, she made a recorded statement to the police which wasavailable at trial. Such of her evidence-in-chief as was recorded is consistent withwhat she told the police. I will proceed on the basis that under cross-examination sheremained consistent in her version of events, and no significant damage was wroughtthrough cross-examination.Facts[4] Ms Awatere and her partner were parked in a manner that obstructed part of adisability parking space. It seems the positioning of their car, in an adjacent park, wasthe product of how other people had parked, thereby rendering unusable part of thegeneral parking space adjacent to the disability space.[5] When Ms Awatere and her partner returned to their car, they encountered thecomplainant's son videoing the situation. He was using his cellphone. An altercationensued. It became heated, then quietened, and then a comment provoked anger inMs Awatere. She unleashed a verbal barrage at the complainant whilst approachingher so as to be very proximate.[6] It seems common ground that some spittle from Ms Awatere hit thecomplainant. The complainant and her son allege that Ms Awatere deliberately spatat the complainant. It was noted several items of spit landed in the same spot on thecomplainant's dress. Ms Awatere accepted some spittle may have hit the complainantbut denied spitting at her. She explained she has no teeth, and when agitated andyelling, spit can fly out.[7] The video taken by the son records the early stages and the yelling but doesnot record a spit. It does record the son saying to Ms Awatere not to spit at his mother.The video ends due to a physical altercation occurring between the son andMs Awatere's partner. On the recording, when the son accuses Ms Awatere of spitting,Ms Awatere immediately denies it.[8] The Judge records these events and notes the evidence about the saliva landingon the same spot. The prosecutor's summary of the reasoning concludes:Having read all the evidence and accepting during verbal interaction thedefendant may well have spat unintentionally also conclude during thealtercation the defendant deliberately spat on the complainant on a number ofoccasions.Appeal[9] The appeal is advanced on the basis that the District Court did not giveadequate reasons for why the defendant's evidence was not accepted. This issubmitted to be particularly acute when some of her evidence, relating to unintentionalspitting, was accepted.3 Further, it is submitted that there were inconsistencies thatrequired consideration and this has not been done. The thrust of the argument is thatthe prosecution witnesses were confused over the sequence but appear to agree thatthe spitting occurred prior to the video ending. Whilst it is not necessarily the casethat the video aspect would record it, it is submitted the audio is equally unsupportiveof the prosecution case.[10] In R v Jeffries, the Court of Appeal set out the options available to the appealcourt where there is insufficiency of reasons.4 These include remitting back either forfuller reasons or for rehearing, the appeal court itself determining the matter on therecord, or quashing the conviction. In Clark,5 Panckhurst J, confronted with thecombination of inadequate reasons on credibility plus a defective record, determinedthat it would not be appropriate for the High Court to itself determine the matter. Ifthat situation applies here, I agree.[11] I consider it likely that the Judge's credibility reasoning, though not on theavailable record made express by him, revolves around the inherent unlikelihood ofspit randomly hitting the clothing in the same place. The apparent positioning in thejudgment of this key fact immediately before the conclusion suggests as much.3 Clark v Police HC Timaru CRI-2003-476-000024, 17 December 2003, Panckhurst J, and Taitaniv Police HC Rotorua CRI-2005-463-000059, 7 October 2005, Winkelmann J are relied upon asemphasising the need for reasons where credibility is in issue.4 R v Jeffries (1999) 17 CRNZ 128 (CA).5 Clark, above n 3.[12] However, I accept Mr Luders' submission that there are aspects of theprosecution case that do not immediately hold together and which at least needexplanation. It is apparent that some of the complainant's evidence was accepted, andwithout a proper record of the reasoning, I cannot be clear why the Court was sure thebalance was untrue. Looking at the video I find it difficult to discern when it is thatMs Awatere could have deliberately spat at the complainant up to four times.[13] The situation is unfortunate but in the absence of a complete record I do notconsider it appropriate for the appeal Court to undertake its own assessment. Theappeal must be allowed. As for resolution, it is significant that the District Courtsuggested the charge be downgraded. Without minimising the situation for thecomplainants, the core charged act is one of spitting at clothing. In thesecircumstances, the correct response is not to remit the matter but instead to quash theconviction.[14] The appeal is allowed, and the conviction quashed._________________________Simon France J