GREEN v POLICE [2020] NZHC 660

GREEN v POLICE [2020] NZHC 660 [31 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-499[2020] NZHC 660BETWEEN DANIEL ROBERT GREENAppellantAND NEW ZEALAND POLICERespondentHearing: 16 March 2020Appearances: J W Mackey for AppellantK M Moon for RespondentJudgment: 31 March 2020JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 31 March 2020 at 10 ampursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Meredith Connell, Crown Solicitor, AucklandCounsel: J W Mackey, Auckland[1] On 15 November 2019, after a Judge-alone trial, Judge Glubb found theappellant, Mr Green, guilty of one charge of male assaults female.1 The Judgesentenced Mr Green to 60 hours' community work and eight months' supervision.2[2] Mr Green appeals against conviction. I must allow the appeal if satisfied theJudge erred in his assessment of the evidence to such an extent a miscarriage of justicehas occurred within the definition of s 232(4) Criminal Procedure Act 2011.[3] An appeal against conviction following a Judge-alone trial is conducted by wayof rehearing, but it is for the appellant to show an error has been made. In assessingwhether there has been an error, the appellate court must take account of anyadvantages the trial Judge may have had. Where the challenge is to credibility findingsbased on contested oral evidence, as in this instance at least in part, an appellate courtwill exercise "customary caution" because of particular advantages the trial Judgederives from hearing the evidence.3Background[4] At about 5.40 pm on 28 November 2018, Mr Green and his partner, Ms Duin,were together in Mr Green's car. They were parked outside several shops, includinga barber shop. Mr Green was in the driver's seat and Ms Duin in the front passengerseat. They had been drinking, with Ms Duin particularly intoxicated by witnessaccounts, and were arguing.[5] As a result of (alleged) observations of a witness in the barber shop, the policelaid a charge of male assaults female in respect of what was said to have occurred inthe car when it was so parked. That charge was later withdrawn as the witnessconcerned did not appear at trial.[6] Mr Green drove away, with Ms Duin still in his car, then turned around andreturned to park on the opposite side of the street. The prosecution case was that,whilst so parked, Mr Green got out of his car, went to the passenger side and punched1 Police v Green [2019] NZDC 24300.2 Police v Green [2019] NZDC 24304.3 Sena v Police [2019] NZSC 55 at [38].Ms Duin through the open passenger window. Mr Balenti, a customer in the barbershop and the main prosecution witness, gave evidence supporting this scenario.[7] After this, Ms Duin got out of the car and Mr Green drove away. Ms Duin wasupset and crying. The owner of the barber shop called the police. Ms Duin declinedto make a statement to the police, and she did not give evidence at trial. Mr Greenreturned to the vicinity shortly afterwards. He spoke to Sergeant Carter at the sceneand then at the Henderson Police Station. Mr Green denied punching or strikingMs Duin at any time.Evidence[8] Mr Balenti, Sergeant Carter, Constable Oh, and Mr Green gave evidence attrial.[9] Sergeant Carter gave evidence of his questions to Mr Green and Mr Green'sanswers, at the scene and at the station.[10] Constable Oh gave evidence that Ms Duin "had been crying, there were redmarks on her face"; that, to the extent Ms Duin would say anything, it was that"nothing had happened"; and that he believed Ms Duin was drunk.[11] Mr Mackey, counsel for Mr Green at trial and on appeal, is highly critical ofMr Balenti's evidence, essentially to the effect Mr Balenti exaggerated what he saw. Iaddress this submission below but suffice to say for the moment Mr Balenti said hesaw Mr Green's right hand go through the open passenger window and Ms Duin'shead "fling back".[12] In his evidence, Mr Green denied punching Ms Duin and gave the followingaccount of what occurred that afternoon. Mr Green said he and Ms Duin wereboarding with people he knew and, as I understand it, her behaviour was embarrassinghim, including her failure to pay her share of expenses. Both had been drinking thatafternoon, her rather more than him. Ms Duin wished to go into town. Reluctant todrive her as he had been drinking, he said he would take her to the motorway so shecould hitchhike. En route, Ms Duin contended Mr Green had stolen her wallet. Hepulled in outside the barber shop, found her wallet in the glove box, and had a tusslewith her when he took some money out of her wallet. Ms Duin started punching himso he gave her the money back. On Mr Green's account, Ms Duin was incoherent.Mr Green resumed driving Ms Duin to the motorway. Ms Duin then accused him oftaking her phone, which he had not. He assumed she had left it at home and turnedaround to drive back. Ms Duin then threw his phone out of her window. He parkedon the opposite side of the road to the barbershop (driver's side of the vehicle beingthe closest to the shop), retrieved his phone and told her to get out of the car "then andthere". Ms Duin "booted" the passenger door open with such force it jammed on thefootpath. Mr Green got out of the car, "fuming" and with clenched fists, lifted thedoor up, slammed it shut, and got back in the driver's seat. Ms Duin then got out andhe drove away. Mr Green drove back to find her when he realised she had left herjacket in the car, at which point he spoke to the police.[13] The prosecutor, Mr King, suggested to Mr Green he had left Ms Duin at theside of the road because he knew she was going to contact the police about the assault.Mr Green denied this. His response was that he was fed up and wanted her out of hiscar.[14] Asked how he accounted for Mr Balenti's evidence that he saw her head flingback, Mr Green said he did not know but it might have been because he had slammedthe door shut with such force. Mr Green also said his car windows are tinted so hequestioned how Mr Balenti could have seen what he said he saw.4 Mr Green wasadamant he had got out of the car twice and he could not understand why Mr Balentihad not seen that. Mr Green also added that he is "not a small guy" (photographs ofMr Green bear this out) and, if he were to punch Ms Duin in the face, her eye wouldhave been closed. Her face appears unmarked in the close up photographs of her facetaken at the time.4 It is unfortunate this point was not put to Mr Balenti.District Court judgment[15] As the Judge said, if he accepted Mr Green's denial or if Mr Green's evidenceraised a reasonable doubt, he would find Mr Green not guilty. As it was, the Judgerejected Mr Green's account for the following reasons.[16] First, the Judge considered Mr Green's evidence at trial inconsistent with hisstatements to the police. I address Mr Mackey's submission on this matter below.Secondly, Mr Balenti's and Mr Green's accounts did not tally on uncontroversialdetails which, again, I refer to below.[17] That left the Judge with the issue of whether he accepted Mr Balenti'sevidence, which he did. The Judge considered Mr Balenti had a clear and unobstructedview, that he had no motive to lie and his evidence was consistent with Ms Duin'spresentation after the incident.Submissions[18] I turn now to the errors Mr Mackey submits the Judge made in his assessmentof the evidence, and why Mr Mackey contends the Judge was wrong to rejectMr Green's evidence and accept Mr Balenti's.[19] First, Mr Mackey submits the Judge was wrong to draw an adverse conclusionfrom apparent differences between Mr Green's statements to Sergeant Carter and hisevidence. Mr Mackey submits this was unfair as the police did not ask Mr Green fora full account of events.[20] There is merit in this submission. Sergeant Carter's notes, which he read inevidence, record his specific questions and Mr Green's answers. The focus was onwhether Mr Green had punched Ms Duin, which Mr Green denied. Sergeant Carterdid not ask Mr Green "what happened", which was essentially the question Mr Greenanswered when he gave evidence. So, I accept Mr Mackey's submission on this point.[21] Mr Mackey's second submission concerns the apparent absence of injury toMs Duin's face after the incident, this consistent with Mr Green's denial.[22] Crown counsel, Ms Moon, submits there was evidence of injury to Ms Duin'sface, in that Mr Balenti said he thought he could detect swelling in Ms Duin's facefrom the photographs of her, and that it was "too soon" for bruising to have appeared.This latter evidence was inadmissible, Mr Balenti not being an expert. Ms Moon alsoreferred to Constable Oh's evidence of "red marks" on Ms Duin's face. Nor is thisevidence of injury. My reading of the relevant evidence is the Constable was linkingthe "red marks" to why it was apparent to him Ms Duin had been crying.[23] All of that said, whilst the photographs of Ms Duin's face are consistent withMr Green's denial, they are not determinative of whether she had been punched. Therewas no evidence injury from a punch would be evident virtually immediately.[24] Thirdly, Mr Mackey was critical of Mr Balenti's evidence. He submittedMr Balenti asserted he saw more than he actually did and was partisan.[25] To test this submission, I have reviewed the transcript of Mr Balenti's evidence,but bearing in mind the advantages the trial judge has from hearing and observing awitness give his or her evidence.[26] The gist of Mr Balenti's evidence was as follows:... the [passenger] window was down and I saw his right hand go into thewindow and I also saw the female's head fling back as if she had been struck.[27] Shortly after that, the prosecutor showed Mr Balenti the photographs ofMs Duin and asked Mr Balenti who it was in the photographs. Mr Balenti said "that would be the victim in this case". When Mr Balenti was asked what he meant by"the victim" he said "I mean from what I saw, she was assaulted ".[28] Mr Balenti having given evidence of what he observed, both the prosecutorand Mr Mackey asked Mr Balenti questions in which it was implicit that Mr Balentihad actually seen Mr Green's fist connect with Ms Duin's face. That they did so doesnot alter the evidence Mr Balenti actually gave. Likewise, the Judge, seeking to clarifya question put to Mr Balenti, asked Mr Balenti whether he was assuming Mr Greenhad assaulted Ms Duin, or was sure. Mr Balenti said he was "sure".[29] Coming back to the Judge's decision, however, the Judge's description ofMr Balenti's evidence was consistent with his evidence:5[7] [Mr Balenti] said not long after that, the car returned but by now itwas on the opposite side of the road and it stopped. He said he saw the maleget out of the driver's door, he said he saw him walk around the car with hisfists balled at his sides and he described him as being angry and aggressive.He said he had noted that the passenger's window was down at the time thevehicle was parked outside the barber's shop earlier and he said when the mangot to that window, he said he saw his right fist go into the window and at thesame time saw the woman's head jerk back and to the side. He said from whatI saw she was assaulted.[30] The Judge then went on to say said that Mr Balenti had denied Mr Green hadgot out of his car and picked up his phone. This is not strictly correct. Mr Mackeyput it to Mr Balenti he could not dispute that Ms Duin had thrown Mr Green's phoneout of the window. In response Mr Balenti said he "could not directly dispute that"but at no point did Mr Green bend over as if he were picking something up.[31] Next Mr Balenti was asked if he had observed Mr Green slam the (passenger)door shut. Mr Balenti answered that he had seen Mr Green shut the door and Ms Duinthen get out. Pressed if he had seen Mr Green slam the door, Mr Balenti said he couldnot see that from the barbershop, as it was on the other side of the vehicle, that is theone furthest from the shop. This answer raised the obvious point of how it could bethat Mr Balenti had observed anything much of what had occurred on the passengerside of the vehicle.[32] The Judge construed Mr Balenti's evidence as an outright denial that Mr Greenhad retrieved his phone and slammed the door shut. For myself, I do not think that isthe construction to put on the evidence. The most that can be said is that Mr Balentidid not observe this, and he quite fairly accepted it was difficult for him to see exactlywhat was occurring on the passenger side of the vehicle. Nor, for the reasons givenabove, am I persuaded there is much in the difference between the answers Mr Greengave to Sergeant Carter and Mr Green's evidence. For these reasons, I am satisfiedthere has been a miscarriage of justice in the sense required and I allow this appealagainst conviction accordingly.5 Police v Green, above n 1.Result[33] I allow this appeal. The conviction for male assaults female is quashed.Peters J