PAROLI v POLICE [2020] NZHC 3492

PAROLI v POLICE [2020] NZHC 3492 [22 December 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI 2020-485-71[2020] NZHC 3492BETWEEN CHRISTOPHER ALAN PAROLIAppellantAND NEW ZEALAND POLICERespondentHearing: 28 October 2020Counsel: R M Gould for AppellantS K Brennan for RespondentJudgment: 22 December 2020JUDGMENT OF MALLON JIntroduction[1] Christopher Paroli was charged with threatening to injure Cory Watts withintent to intimidate him.1 The charge proceeded to a judge alone trial in the DistrictCourt. The Judge found that, while Mr Paroli had threatened to injure Mr Watts, it hadnot been proven that he did so intending to intimidate him. The Judge amended thecharge to one of threatening to injure with intent to frighten Mr Watts and convictedMr Paroli of that charge.2[2] Mr Paroli appeals his conviction. He says the Judge made errors in his factualfindings, erred in dismissing his application of no case to answer, and erred inamending the charge without giving him an opportunity to be heard on that proposedamendment.1 Summary Offences Act 1981, s 21(1)(a).2 New Zealand Police v Paroli [2020] NZDC 1121. He was convicted and ordered to appear forsentence if called upon within 12 months.[3] For the reasons that follow, I allow the appeal.The evidenceBackground[4] Mr Watts is a former police officer. He joined the police force as a constablein 2000. He resigned in 2013 when he held the rank of Detective Sergeant. Duringhis time in the police force, he carried out general duties, was in the CIB, the armedoffenders squad, the drug squad, the burglary squad, and the child abuse team amongstother things. In 2011 he was subject to a disciplinary investigation for misconduct.He was ultimately cleared and no sanctions of any kind were imposed on him.3[5] Mr Paroli's evidence was that in the early 2000s Mr Watts arrested him on14 charges relating to a breach of a protection order. Mr Paroli spent three weeks incustody on remand on those charges. Mr Paroli said that he "had some very, ah, darkshit happen to me in there" and he had "met some very horrible people". He felt thatMr Watts had unfairly charged him. He had given a video statement with Mr Wattstelling him "everything's gonna be alright, and then he puts 14 charges" on him forone telephone call. Mr Paroli's recollection was that he pleaded guilty "against mywishes" to one charge to make it go away and was sentenced to community workwhich he served at a kindergarten.[6] Mr Watts' evidence did not discuss this background in any detail. He said that,as a police officer, he had interactions with Mr Paroli on two separate occasions inabout 2001 and 2002. He also said that, after leaving the police force, he received textmessages and telephone calls from Mr Paroli around 2015, 2016, 2017 "progressivelyover those years". They were anonymous to start with. The messages were things like"pig", "I know what you did last summer", "the village knows what you've done",listing people that Mr Watts had apparently acted corruptly in connection with, andother various allegations. Mr Watts said he would always respond "Please stopcommunicating with me. Do not text me. Do not contact me".3 Cross-examination on this topic was ruled admissible by the trial judge: Police v Paroli [2020]NZDC 11314.Incident giving rise to the intimidation charge[7] The incident giving rise to the charge occurred in the afternoon of12 November 2018 on a narrow street in Johnsonville.[8] Mr Watts' evidence was that he had driven to a dairy on that street. He parkedon the left-hand side of the road opposite to the dairy which was on the right-hand sideof the road. He was parked partly on the on the grass verge and partly on the road. Adelivery truck was parked on the right-hand side of the road outside the dairy.[9] Mr Watts said that as he was stepping out of his car he heard the noise of a carapproaching from the east (the same direction from which he had travelled). Hedecided he did not have enough time to sprint across to the dairy and so he leaned upagainst his car to wait for it to go past. He noticed the car was a blue Holden stationwagon and it pulled up to where he was standing. The passenger window was down.Mr Watts could see into the driver's seat. He recognised Mr Paroli as the driver.[10] According to Mr Watts, Mr Paroli then said "I will run you over, you cunt. Youdeserve to die". Mr Paroli was shouting and pointing at Mr Watts "quite aggressively".Mr Watts said:I found it quite scary at the time because in that moment I was in front of theengine bay of his car. All he had to do was lean left on the wheel and accelerateand I'd be smeared in my car so I immediately started looking at his wheel. Iwanted to see as soon as that moved, and at the same time I was trying to edgeback to behind my car to get me out of the life threatening situation.[11] Mr Watts said that, for a couple of seconds, he was "really worried" until hewas able to move to the back of his car. Mr Paroli went on to say that his "coppermates in Kapiti" had told him that they had to get the armed offenders squad out toMr Watts at his farm a couple of times. Mr Watts replied that this was "wrong" andthat he did not know Mr Paroli was "so matey with the cops" and to leave him alone.Mr Paroli said "You are a fucking one". Mr Watts pointed to his real estate car andsaid "no I'm not" to which Mr Paroli replied "once a pig, always a pig". Mr Parolithen "burned off" and that was the end of the incident. The incident was over in about20 or 30 seconds.[12] Mr Watts noticed the driver of the truck come out of the dairy and get into thetruck. Mr Watts went into the dairy, purchased some sweets, asked the guy in the dairyif he had seen what happened and whether he knew the truck driver, and then rang thepolice. He arranged to make a statement the following day.4[13] In cross-examination:(a) Mr Paroli put to Mr Watts that he posed no threat to Mr Watts. Mr Wattswas a fully trained detective who had worked in the armed offenderssquad whereas he was a hairdresser sitting in his car with his seatbelton and had no history of violence. Mr Watts said he "absolutely feltthreatened in that moment" and was "certainly not impervious to beingcrushed between cars".(b) Mr Paroli also put to Mr Watts that, if he was bending down to see himthrough the passenger window, it would have been impossible for hiscar to have turned into him so at no point was Mr Watts under threat.Mr Watts disputed this.(c) Mr Paroli also put to Mr Watts that he had not threatened him. Ratherit was an amicable conversation in which he had asked if Mr Watts wasalright and needed help because it had come to his attention throughpeople that Mr Watts had problems. Mr Watts categorically rejectedthis was what Mr Paroli had said to him.(d) Mr Paroli also put to Mr Watts that he (Mr Watts) had gone over to thetruck driver and said "this guy's with the pigs", "he's got police friends"and was doing "all this gangster stuff". Mr Watts said this was"absolutely untrue".[14] Counsel appointed as amicus curiae put to Mr Watts that Mr Paroli's view wasthat Mr Watts had been found to be unreliable when giving statements to previous4 Constable Fields confirmed that Mr Watts had come into the station on 13 November 2018 andsaid there had been in incident in which Mr Paroli had stopped in the middle of the street andthreatened to run him over. Mr Paroli was arrested the next day.courts or tribunals. Mr Watts denied this. He also denied he had given a false accountof the incident motivated by animosity towards Mr Paroli.[15] Mr Paroli elected to give evidence. His account was that he was driving alongquietly when he had to stop because Mr Watts flung open his door and stepped outinto the narrow road. He said that Mr Watts started going "Help, help" for the benefitof the truck driver who did not seem interested. Mr Paroli wound down his windowto ask if he was ok and said "you were lucky I didn't hit you. You stepped out. Youcould've been hit or even killed". He denied saying "I will run you over, you cunt.You deserve to die" explaining that he does not use that language. He confirmed hisdenial in cross-examination but conceded he may have said "cunt".[16] Mr Paroli said he did not do anything to make Mr Watts fear for his safety orhis life. He remained in his car with his seatbelt on. He did not turn the wheels of hisvehicle towards Mr Watts at any time. Mr Watts went round the back of his car andwas "getting all gangster like" and saying "this guy's with the pigs, you know, hismate's a pig". In cross-examination, Mr Paroli said it would have been impossible tohave turned the car into Mr Watts as he had alleged. There was never a threat and hewas not aggressive. He said his Italian "passion" can be misconstrued. He denied hewas lying and said that Mr Watts had "cases thrown out of this very court" forfabrication.[17] Mr Paroli said he "smelled a rat". He left and telephoned Mr Watts' boss whenhe was around the corner. He also spoke to a police officer about five minutes later.He said that Mr Watts "has a penchant for fabricating things and he's done it to manypeople over many years".The Judge's decision[18] The Judge issued a reserved decision the day after the hearing.5 In that decisionhe reminded himself of the burden of proof. He reminded himself that Mr Paroli wasto be acquitted if he accepted Mr Paroli's evidence or was left unsure about it. He5 New Zealand Police v Paroli, above n 2reminded himself that, even if he rejected Mr Paroli's evidence, he must consider allthe evidence he did accept and ask whether that left him sure of Mr Paroli's guilt.[19] The Judge said he was sure that Mr Paroli did threaten Mr Watts. This wasbecause:(a) Mr Watts was very clear about the details of the incident;(b) he would not have complained to the Police unless he was genuinelyfearful as he said he was;(c) it was entirely consistent with the long-standing animosity between thetwo men for Mr Paroli to have taken the opportunity to abuse andthreaten Mr Watts when that opportunity unexpectedly arose;(d) given that animosity, it was not credible that Mr Paroli would have beensympathetic towards Mr Watts and politely inquired with an offer tohelp him;(e) Mr Paroli acknowledged that he may have used the word "cunt" andthis was inconsistent with the flavour of the incident that Mr Paroliportrayed;(f) both men would not have called the police if the incident had been asinnocuous as Mr Paroli claims;(g) Mr Watts would not have gone to the trouble of seeking witnesses,making a formal complaint and giving a false account on oath at trialabout an innocuous incident; and(h) Mr Watts' credibility and reliability was not affected by the 2011disciplinary events given the outcome of that investigation.[20] The Judge was satisfied also that the threat was to injure Mr Watts. This wasbecause of the way the threat was uttered, that running Mr Watts over with his carwould have caused "at least some injury" and "he also had the present ability to carryout that threat, if so minded".6[21] The Judge went on to discuss that it did not matter whether Mr Paroli had anyintention to carry out the threat. Rather, the Judge had to be sure that Mr Paroliintended his threat to be taken seriously. The Judge was sure of this because of:(a) the history between the two men;(b) the proximity of Mr Paroli's car to the vulnerable position in whichMr Watts was standing at the time;(c) Mr Paroli's ability to carry out the threat if so minded;(d) the link between the threat and the ability to carry it out – that is, hethreatened to effect an injury not in a general way but in a particularway involving the car he was in control of at the time; and(e) Mr Watts was genuinely fearful (which corroborated Mr Paroli havingan intention that his threat be taken seriously).[22] The final element of the charge was whether Mr Paroli intended, in making thethreat, to "intimidate" Mr Watts. While Mr Watts "certainly felt intimidated" that wasnot the issue.7 What Mr Paroli intended was the issue. The Judge noted that to"intimidate" had a narrower meaning than to "frighten" because in the former it isnecessary that the person making the threat intends to compel or influence the conductof the person threatened. The Judge was satisfied that Mr Paroli had no intention ofinfluencing Mr Watts' future conduct in any way.[23] This meant the prosecution had not established the charge. The Judge went onto amend the charge to one of threatening Mr Watts with intent to frighten him. TheJudge considered this was the necessary inference from his factual findings ofMr Paroli's threat and the surrounding circumstances. He noted that Mr Watts was6 At [26].7 At [29].certainly frightened and considered this was a good indicator of Mr Paroli's intent.The Judge accepted that Mr Paroli might not have intended to actually hurt Mr Wattsbut he was sure that, by uttering the words he did, Mr Paroli intended that Mr Wattsbe scared that he might well do so.[24] The Judge was also satisfied that Mr Paroli was not prejudiced by theamendment. This was because Mr Paroli's defence was that no threat was uttered atall and "had nothing to do with the intention with which the threat was delivered".8The Judge could not conceive of any different approach that Mr Paroli would havetaken if at the outset the charge had been one of intending to frighten Mr Watts.[25] Mr Paroli was accordingly convicted of the charge as amended by the Judge.Assessment of the appeal[26] The reserved judgment misspelt Mr Paroli's name, as "Pirelli", in a number ofplaces as well as referring in one place to Mr Watts when the Judge meant to refer toMr Paroli. Mr Paroli's counsel has explained to him that these were merelytypographical errors. However, Mr Paroli considers they show that he was not takenseriously and has been treated unfairly. It is unfortunate that these typographical errorswere not corrected in the typed judgment before it was issued because Mr Paroli feelsaggrieved by that. That of course does not give rise to any appeal ground.[27] Potentially more significant is the Judge's error as to Mr Paroli's direction oftravel. The Judge records Mr Paroli's direction of travel as "from the oppositedirection to that from which Mr Watts had come".9 The respondent accepts this wasan error. The respondent submits, however, that it was of no consequence because theevidence established that Mr Watts was standing on the road and against the car withthe door closed and the direction of Mr Paroli's travel was immaterial to that.[28] I disagree the error was immaterial. Mr Paroli endeavoured to put to Mr Wattsand explain to the Court that Mr Watts was in no danger from him. This was becauseMr Watts accepted he had leant down to look through the passenger side window8 At [38].9 At [8].where he could see Mr Paroli in the driver's seat. Mr Paroli's point was that, ifMr Watts was standing next to his passenger window, then it would be impossible forMr Paroli to drive into him. In other words, his vehicle could not move sideways.[29] This point was not addressed by the Judge at all. It was relevant because, evenif the Judge was sure that Mr Paroli said the words that Mr Watts alleged, Mr Parolihad no present ability to carry out the threat. If he had no ability to carry out the threat,then that was a relevant factor in determining whether Mr Paroli intended his threat tobe taken seriously.[30] Once this factor was removed, the remaining factors relied on by the Judgewere the history between the two men and Mr Watts' evidence that he was fearful.However, neither factor formed a compelling basis on which to draw the conclusionthat Mr Paroli intended his threat to be taken seriously.[31] The history between the two men explained why Mr Paroli might have spokenaggressively to him in circumstances where Mr Watts had appeared in front of himand had leant in to look at him through the passenger window. As Mr Paroli said, heis a passionate Italian and what he says when his "passion runs high" can bemisconstrued. The Judge apparently did not consider that Mr Paroli might have beensimply shouting his frustration at Mr Watts rather than making a threat that he intendedto take seriously.[32] As to Mr Watts' fear, of more relevance was whether Mr Paroli intended that.Mr Paroli made the point in cross-examining Mr Watts and in his own evidence, thathe was seated in his car, with his seat belt on and that he had no history of violence.He also made the point that Mr Watts was a former police officer who had been in thearmed offenders squad. In other words, Mr Paroli was angry with Mr Watts andintended Mr Watts to know that, but it was reasonably possible that he did not thinkhe would frighten Mr Watts. The Judge's reasons did not take this into account.[33] I therefore consider the factual error as to the direction of travel was material.It meant the Judge overlooked an aspect of Mr Paroli's defence, namely that it was notpossible for him to have run over Mr Watts and cause him any injury. Although theJudge rejected Mr Paroli's account of the words he used, it did not follow that heintended those words to be taken seriously and to frighten Mr Watts. There was afactual narrative giving rise to the reasonable possibility that this was not his intention.[34] In these circumstances the conviction cannot stand. This conclusion makes itunnecessary to determine whether the Judge erred in dismissing Mr Paroli'sapplication of no case to answer and in amending the charge without seeking furthersubmissions from him. I note, however, that I accept Mr Paroli's submission that theJudge erred in reasoning that Mr Paroli was not prejudiced by the amendment becausehis defence was solely that he had made no threat. As just discussed, Mr Paroli alsocontended that he could not have carried out any such threat and this was relevant towhether he intended his threat to be taken seriously and to frighten Mr Watts.[35] For completeness, I note that Mr Paroli also faced an intimidation chargearising out of an incident on 10 July 2019 in the Wellington District Court building.Mr Paroli was alleged to have sat down beside Mr Watts and whispered somethinginto his ear. This was alleged to have been something like "I know your wife anddaughter". On an application to dismiss the charge, the Judge viewed the CCTVfootage. He concluded that it did not appear that Mr Watts was particularly troubledby the event. The Judge dismissed the charge.10[36] This decision was not before the Judge on the present charge althoughMr Paroli had tried to mention it in the context of the Judge dismissing his applicationof no case to answer. While it does not directly bear upon the outcome of the presentcharge it is another incident in the history of the two men. It is apparent that Mr Parolistruggles to behave appropriately when he is around Mr Watts. He would do well tokeep himself under control should he come upon Mr Watts again.Result[37] The appeal is allowed. Mr Paroli's conviction is quashed and an acquittal isentered.Mallon J10 Police v Paroli [2020] NZDC 9385.