GREEN v POLICE [2017] NZHC 1551

GREEN v POLICE [2017] NZHC 1551 [6 July 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000135[2017] NZHC 1551IN THE MATTER OF an appeal against conviction and sentenceBETWEEN DAVID NORMAN GREENAppellantAND NEW ZEALAND POLICERespondentCRI-2017-404-000136IN THE MATTER OF an appeal against conviction andsentenceBETWEEN DAVID NORMAN GREENAppellantAND NEW ZEALAND POLICERespondentHearing: 19 June 2017Counsel: M J Hine for the AppellantJ D Cairney for the RespondentJudgment: 6 July 2017JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 6 July 2017 at 12.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Families Matter Law Practice, RotoruaMeredith Connell, AucklandIntroduction[1] Mr Green was involved in an altercation with his partner's son as the latter wastrying to leave an Auckland market by car. Mr Green did not dispute punching hispartner's son, but claimed he did so in defence of his partner who he thought was indanger of being run over.[2] Following a judge alone trial in the Auckland District Court,1 he was convictedof one charge of common assault.2 He was subsequently sentenced to 80 hours'community work for that offence.3[3] After a day in Court at the trial for that charge, Mr Green said to thepolice officer who had just given evidence, "you're fuckin dead". He was convictedof one charge of intimidation,4 following a judge alone trial at the AucklandDistrict Court.5 He was sentenced to 100 hours' community work for that offence.6[4] Mr Green appeals both convictions and sentences. He says both Judges madeerrors of fact and law in finding the charges proved beyond reasonable doubt. He saysthe sentences are manifestly excessive.[5] The conviction and sentence for common assault is considered first, followedby the conviction and sentence for the intimidation offence.1 Police v Green [2016] NZDC 21230.2 Summary Offences Act 1981, s 9. Maximum sentence is six months' imprisonment or a fine of$4,000.3 Police v Green [2017] NZDC 26987.4 Summary Offences Act 1981, s 21(1)(a). Maximum sentence is three months' imprisonment or afine of $2,000.5 Police v Green [2017] NZDC 7254.6 Police v Green [2017] NZDC 12971.Approach on appeal[6] Section 229 of the Criminal Procedure Act 2011 provides a right of appealagainst conviction. An appeal court must allow the appeal if satisfied that, in the caseof a judge alone trial, the judge erred in his or her assessment of the evidence to suchan extent that a miscarriage of justice has occurred; or a miscarriage of justice hasoccurred for any reason.7[7] A miscarriage of justice means any error, irregularity or occurrence in relationto or affecting the trial that created a real risk that the outcome was affected or resultedin an unfair trial or a trial that was a nullity.8 A "real risk" is a reasonable possibilitythat a not guilty or more favourable verdict would have been delivered if nothing hadgone wrong.9[8] In terms of an appeal against sentence, s 250(2) of the Criminal Procedure Act2011 provides that the Court must allow an appeal if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[9] In any other case, the Court must dismiss the appeal.10 An appeal court willnot intervene unless there is a material error, and if so, the appeal court will then goon to form its own view of an appropriate sentence.11Common assault: convictionThe offending[10] On 7 February 2016, the complainant was helping his mother, Mr Green'spartner, at her food stall at an Auckland market. An argument broke out between them7 Criminal Procedure Act 2011, s 232.8 Section 232(4).9 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].10 Criminal Procedure Act 2011, s 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].and the complainant decided to leave. The complainant's girlfriend picked him up andthey drove off together. Whilst in the car, he received a phone call from his motherasking him to go back and he returned to the market.[11] However, the argument with his mother continued. The complainant decidedto leave for a second time. As he left, he kicked an empty pot in the direction of thetrailer and threw a drink bottle behind him. There was a dispute about whether thedrink bottle hit his mother at this time causing an injury to her eye. He got into thedriver's seat of the car to leave for a second time.[12] There was considerable dispute about what happened next. The complainantcontends that his mother jumped in front of the car to prevent him from leaving. Hethen says that Mr Green came round to the driver's side, opened the car door, punchedhim in the jaw, and pulled him from the car whilst his seatbelt was still on. He thensays that Mr Green asked two of his workers to hold him. The car key broke in theignition but his girlfriend took it out. Whilst the two workers were holding him, MrGreen continued to punch him on the side of his face, shoulders and back of his head,and kicked him on the legs. The complainant's girlfriend got out of the car and triedto intervene, but was punched on the arm by Mr Green. The complainant then returnedto the car, retrieved the key from his girlfriend, and drove off.[13] Mr Green contends that he saw his partner (the complainant's mother) beinghit by the car on two occasions. On the second occasion he says that his partner wentup onto the bonnet and then rolled off to the side. He says he reached through thevehicle window to retrieve the car keys and place the vehicle in park. He admitspunching the complainant once at this time but says it was necessary to do that as thecomplainant was clawing at his arm to try to prevent him from getting the keys. Hesays the complainant then opened the door, knocking him backwards, and then thecomplainant began to hit and kick him in a blind rage. He says two Indian men thenpulled the complainant away.[14] The complainant and his girlfriend subsequently left the market in their car.While driving home, the complainant approached a police officer who was in the areaon an unrelated matter, and asked for his assistance to get his car which was parked atMr Green's house. He told the constable what had happened and photographs showingthe injuries were taken of him the same day.District Court decision[15] The trial took place before Judge Burns in the Auckland District Court. Sixwitnesses gave evidence including the complainant and Mr Green. Mr Green's partnerdid not give evidence.12 The key issue at trial was whether Mr Green had acted indefence of his partner.[16] The Judge reviewed the evidence given by each of the witnesses in some detail.He found the charge proved beyond reasonable doubt and entered a convictionaccordingly. He set out reasons for those findings over four pages of the reservedjudgment.[17] In essence, he rejected the evidence of Mr Green finding it was contradictedby his own witnesses, and that there was no objective basis for believing that any harmwas likely to be caused to Mr Green's partner. He was sceptical of the photographsproduced by Mr Green purporting to show injuries to both himself, and his partner.[18] The Judge preferred the evidence of the complainant and his girlfriend, whichwas corroborated by the photographic evidence of the injuries they had sustained. Heaccepted the complainant's account of events, namely that he had been pulled out ofthe car with his seatbelt still engaged. The Judge was satisfied that after pulling thecomplainant out of the car, Mr Green would have sought assistance from members ofhis staff and "it is highly improbable that his physical application of force would havestopped at that point".[19] The Judge found that there was no defence in law established, and onMr Green's own evidence, there was justification for a conviction.12 After the hearing of this appeal, I received a letter from Mr Green's partner setting out her versionof events. I have disregarded the contents of that letter in determining this appeal.Grounds of appeal[20] The appeal challenges the Judge's assessment of the evidence and four factualfindings that he made in the course of rejecting Mr Green's account. Those factualfindings are as follows:(a) That Mr Green and his partner did not make any complaint to the policein respect of the conduct of the complainant, which, on their version ofevents, would have constituted an assault.(b) The Judge's acceptance of the photos of the complainant's injuries, butthe rejection of the evidence regarding injuries to Mr Green, andinjuries to his partner.(c) The Judge's failure to resolve conflicts in the evidence regarding whathad happened to the car key. This evidence is said to be important tothe credibility findings made in favour of the complainant.(d) The Judge's finding that there was nothing untoward about thedestruction of the DVD by police. The Judge accepted the constable'sevidence that he had got rid of the DVD because the defendant haddecided not to make a statement and there was therefore no relevantevidence appropriate for trial.[21] Furthermore, it is contended that the Judge committed an error of law by failingto properly apply the legal test for defence of another under s 48 of the Crimes Act1961.[22] The appeal was brought out of time, and an extension of time was thereforesought by Mr Green. The reasons for the delay include a change in counsel for theappellant, the filing of the appeal notice in the wrong court, and counsel oversight dueto a preoccupation with the second charge. The police did not oppose the extensionof time, and I grant it accordingly.Analysis[23] The first four grounds of appeal challenge the Judge's findings of fact and hiscredibility assessments. The appeal proceeds by way of rehearing and the principlesin Austin, Nicols & Co Inc v Stichting Lodestar apply.13 The appellant is thereforeentitled to the independent opinion of this Court even where it involves an assessmentof fact and degree, and entails a value judgment.[24] However, as the Court of Appeal recently said in Green v Green, the appellantstill bears the onus of persuading this Court to reach a different assessment.14 Inconsidering each of the errors alleged, I take into account any particular advantagesenjoyed by the trial court where assessments of credibility and reliability areconcerned.[25] The first ground of appeal challenges the Judge's observation that if Mr Greenhad been assaulted by the complainant, as he says happened:15 It is likely that he [Mr Green] would have been aggrieved as a result andtaken some steps. He did not do so. He went about his normal business.[26] Mr Hine, for Mr Green, submits that the finding is unfair and unreasonable.He says the evidence establishes that Mr Green arrived home very shortly after theincident with the intention of paying his staff and returning to the market. He thereforedid not have a reasonable opportunity to make a complaint. And, if he had made acomplaint to the police when they arrived shortly afterwards to talk to them, hisaccount would have been discounted as retaliatory.[27] I accept that the fact that Mr Green and his partner did not immediately makea complaint to the police does not mean that they were not telling the truth about whathappened. There may be several reasons why people do not make a complaint topolice about an alleged assault by a family member. However, as explained furtherbelow, this was not a consideration which ultimately had any bearing on the Judge's13 Austin, Nicols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].14 Green v Green [2016] NZCA 486, [2017] NZLR 321 at [26]–[34].15 Police v Green [2016] NZDC 21230, above n 1, at [50](d).decision, as there was ample evidence to support the Judge's credibility findingswithout relying on this factor.[28] The second ground of appeal challenges the Judge's findings in relation toMr Green's photographic evidence. The Judge accepted the photographic evidence ofthe injuries to the complainant, but expressed scepticism about the photographsproduced by Mr Green. Those photographs show purported injuries to Mr Green'swrist and knee, and to his partner's eye.[29] I consider there was sufficient evidence to justify the Judge's scepticism aboutthe reliability of the photographs produced by the defence in this case. Mr Green gaveevidence that the photographs were taken on Monday, 8 February 2016 at 3.00 pm,which is after the arrest and subsequent release of Mr Green. When cross-examinedabout who had taken the photographs, and when, Mr Green said he had taken them onhis phone, and accepted that the phone would probably record the date when thosephotographs were taken. However, when asked to produce the phone he said he didnot have it, and when pressed further, he said it was a business phone, not a personalphone, and he did not have it with him in Court. The phone was not produced, andthere was no evidence confirming the date and time the photographs were taken.[30] In addition, the constable gave evidence that he had not observed any injurieson either Mr Green or his partner when he came to interview them. Mr Green saysthat the constable did not see any injuries because Mr Green was interviewed in avideo booth where only his upper torso was visible. That does not adequately explainwhy the constable did not see any injuries when he initially came to see Mr Green athis home. Nor does it explain why no injuries were observed on Mr Green's partner,when the alleged injuries were to her face, and accordingly visible. Further, MrGreen's partner did not give evidence at trial, and accordingly there was no evidenceto substantiate that her son caused her any injury to her face.[31] The third ground of challenge concerns the evidence regarding the broken carkey. Mr Hine submits that the Judge failed to resolve a conflict in the evidence aboutthe key which was important to assessments of credibility.[32] The complainant's evidence was that the car key broke in the ignition asMr Green was trying to grab it. He said part of the key was still in the ignition, butthen his girlfriend took it out. They were able to drive away using the broken key.The complainant's girlfriend confirmed that the key was broken whilst Mr Green wastrying to pull it out of the ignition. Mr Green did not deny breaking the key, but queriedhow the complainant could drive away if the key was broken.[33] Neither counsel at trial questioned any of the witnesses further about whichparts of the key had been broken, and how it was possible to drive away if the key wasbroken in the ignition. It is theoretically possible to be able to operate a car even afterthe key has broken, for instance, if the plastic handle breaks off rather than the part ofthe key that triggers the ignition. In any event, I do not consider the mystery of thebroken key would have resulted in a different credibility assessment, when the weightof all the evidence adduced at trial is considered.[34] The fourth error of fact relates to the Judge's acceptance of the constable'sevidence that the DVD had been destroyed because Mr Green did not want to make astatement. Mr Hine submits that this could have been important for the defencebecause that DVD may have substantiated Mr Green's claim that he suffered injuries.Further, he says that the constable's notebook should have been disclosed prior to trial,and the proper course would have been to adjourn the case to ensure fairness waspreserved.[35] Mr Hine did not seek to press home these errors as ones which vitiated theJudge's decision. I am satisfied that they did not do so. The constable's evidence wasthat Mr Green was asked if he wanted to make a statement on DVD. Although heinitially agreed to do that, he subsequently changed his mind, and no statement wasrecorded. There was therefore no consent to record a statement, and there can be nocriticism of the police for failing to keep the DVD in those circumstances. It alsoappears from reviewing the Judge's notes that the constable's notebook was in factdisclosed prior to trial. No prejudice from late disclosure was identified at the time,nor was an adjournment sought. These grounds of appeal cannot therefore succeed.[36] Finally, Mr Green also challenged the Judge's decision on a question of law.He said the Judge erred in applying the legal test for defence of another as set out in s48 of the Crimes Act 1961. In particular, he says the Judge erred by failing to assessthe circumstances from the defendant's subjective perspective.[37] Consideration of the s 48 defence involves answering three questions:16(a) What were the circumstances as the defendant believed them to be?(b) Did the defendant use force for the purpose of defending himself orherself or another?(c) Was the force used reasonable in those circumstances?[38] The first question involves a subjective enquiry. The other two questions areto be assessed objectively. The Crown bears the onus of disproving the defencebeyond all reasonable doubt.[39] To answer these three questions, the Judge first had to resolve the conflicts inthe evidence and assess the credibility of each witness' account. The Judge clearlypreferred the account given by the complainant over that given by Mr Green. Iconsider he was right to do so.[40] The complainant's evidence was given openly and directly. It wascorroborated by his girlfriend's evidence and the photographs taken by police. Incontrast, Mr Green's evidence was contradicted by that of his own witnesses inrelation to crucial facts, such as whether the car was moving, and the position of hispartner in front of the car. Contrary to Mr Green's claim that the complainant had hithim, those defence witnesses did not see any punching or hitting at all. Finally,Mr Green's evidence about the two workers who intervened was confused, and again,at odds with that of witnesses called on his behalf.16 R v Auckram [2007] NZCA 570 at [24].[41] Accordingly, there was an evidential foundation for the Judge to conclude thatMr Green did not genuinely hold a subjective belief that his partner was about to berun over. But, assuming Mr Green did hold that belief, the defence would still bedisproved on the other two, objectively assessed, questions. The evidence shows thatMr Green was not acting in defence of his partner, and even if he was, the force usedwas not reasonable. Mr Green's actions went well beyond grabbing the car keys todisable the car. By all accounts, the car had stopped by the time he was there, and hispartner was no longer in danger. There was no need to punch the complainant in thejaw, and certainly no need to continue the assault once he was dragged from the car.[42] In my view, the prosecution disproved the s 48 defence, and the conviction wasproperly entered.Common assault: sentence[43] In sentencing Mr Green, the Judge observed that the assault was at the upperend of assaults falling within s 9 of the Summary Offences Act 1981. He referred toMr Green's prior convictions for assault, noting that the last such offence was in 1990.He stressed that Mr Green needed to be given an indication that this kind of conductand behaviour was inappropriate, and sentenced him to 80 hours' community work.[44] I am satisfied that the Judge did not err in any of the ways alleged by Mr Green.By way of (brief) response to each of the grounds alleged:(a) The Judge made findings of fact which favoured the complainant'sversion of events. In those circumstances, there was no need to applya discount for the actions of the complainant pursuant to s 9(2)(c) of theSentencing Act 2002.(b) The Judge did not expressly refer to the willingness of the appellant toattend a restorative justice meeting, but there is no evidence that he hadexpressed such a wish, or that this was before the Court at the time ofsentencing.(c) The sentencing notes make it clear that Mr Green's medical conditionwas before the Court. The Judge said:17I am told by Mr Clearwater that he may have had a healthissue. I do not know about that in terms of provision ofevidence but no doubt he can provide medical evidence toCorrections and they can take that into account in terms ofhow he serves the community sentence.[45] In any respect, even if the Judge had erred in assessing the individualcomponents of a sentence, it is the end sentence which is relevant on appeal.18 I amsatisfied that the end sentence was well within range, and may even be consideredlenient in all the circumstances of the case. The appeal against this sentence isdismissed.Intimidation charge: convictionThe offending[46] On 19 September 2016, at the end of proceedings for the common assaultcharge, the complainant asked the constable to walk him to his car. The constable andthe complainant were walking down the street when the constable saw Mr Green. Hedecided to take action to ensure that he did not pass too close to Mr Green.[47] Mr Green was getting into the passenger side of a van. Mr Green's partner wasgetting into the driver's seat. The constable heard Mr Green's partner say "hope youare happy you have ruined my family". At that point in time, Mr Green got out of thevan swearing. The constable may well have said "pardon?" at this stage.[48] It was at this point in time that Mr Green is alleged to have said "you're fuckindead" twice to the constable. The constable then asked Mr Green if he was threateninghim, to which Mr Green said "no". The constable then spoke to Mr Green's counseland suggested it was in Mr Green's best interests to leave.17 Police v Green [2017] NZDC 26987, above n 3, at [4].18 Tutakangahau v R, above n 11, at [36].District Court decision[49] Mr Green was charged with intimidation under s 21(1)(a) of theSummary Offences Act 1981. The charge was defended and the trial took place beforeJudge McDonald in the Auckland District Court on 5 April 2017. The Judge foundthe charge proved, and entered conviction.[50] The Judge commenced his decision by restating that the onus and burden ofproof remained on the police and did not alter simply because Mr Green had givenevidence and called his partner to give evidence also. The Judge then stated thevarious elements of the offence of intimidation and reviewed the evidence that he hadheard.[51] The key findings which resulted in a conviction are set out at paragraphs [9] to[11] of the oral judgment:I find it proved beyond reasonable doubt, accepting the constable's evidence,that as he was passing the van Mr Green deliberately got out and swore twiceat the constable saying, "you're fuckin dead." Although Ms Yeap did not hearthat, she says she did hear the constable (as the constable said to me) say toMr Green, "Are you threatening me?" to which Mr Green replied, "No." AllMs Yeap has not heard is the threat.I find it proved beyond reasonable doubt, rejecting as I do the evidence givenby Mr Green that he did not say it, that a threat was made, that when that threatwas made Mr Green intended it to be taken seriously. Also I find it provedbeyond reasonable doubt that he knew that in saying that it was reasonablylikely to intimidate the constable viewed objectively. I also find that wordssaid in that tone, angry, would also be reasonably likely to intimidate.However it is the defendant's mens rea that I must look at. I infer from allthat I have heard and what I accept, which is the constable's description as tohow this occurred, that Mr Green knew that his conduct was likely tointimidate the constable.Analysis[52] Mr Green challenges the Judge's decision as being wrong in fact and in law.Each of the grounds of appeal is considered below.[53] First, Mr Green says that the Judge erred in preferring the constable's evidenceas to whether a threat had in fact been made. He points out that this evidence wascontradicted by the evidence of Mr Green's partner who said that the use of the word"fuck" was not something Mr Green would say in her presence.[54] I am satisfied that this ground of appeal must fail. The Judge was clearlyentitled to prefer the evidence of the constable as to what was said by Mr Green.Mr Green's partner gave evidence that while she did not hear the initial threat made,she did hear the constable say to Mr Green, "are you threatening me?", and Mr Greenreply, "no". I agree with the Judge that this evidence appears to corroborate theconstable's evidence, even if she did not hear the initial threat.[55] Second, Mr Green says even if it can be established that the words "you'refuckin dead" were said to the constable, those words are not capable of constituting athreat. Mr Green submits that they are capable of multiple meanings, including"you're dead to me". This ground of appeal has no prospect of success. The wordsspoken, the context in which they were said, and the angry tone used, confirms thatthe words were a threat within the meaning of s 21(1).[56] Third, Mr Green submits that there was nothing in the incident that couldreasonably be likely to cause the constable to be frightened or intimidated. He submitsthat these are things that are said every day to constables, and it is clear that theconstable was not in fact intimidated by what was said. On that basis, it is said thatthe Judge erred in finding that the relevant mens rea of the offence was proved.[57] The charge was laid under the alternative of the mens rea elements prescribedby the section, that is, "knowing that his or her conduct is likely to cause that otherperson reasonably to be frightened or intimidated". It is Mr Green's state of mind atthe time the words are said that are relevant to the charge. Actual intimidation, or fearin the complainant, does not have to be established.19[58] The Court has to be satisfied beyond reasonable doubt that the defendant hadknowledge his conduct was likely to cause the person to reasonably be frightened orintimidated. For the defendant to think this result "likely", he or she must considerthere is a real or substantial risk of that result, not merely a remote possibility. That19 Gillespie-Gray v Police HC Auckland, CRI-2006-404-123, 22 September 2006 at [9]–[10].is, the defendant must anticipate a feeling of fright or intimidation which would be areasonable response to the conduct in question.20 A court can infer such knowledgefrom the defendant's conduct.21[59] Here again I am satisfied that the Judge was right to infer from the words used,the fact that they were directed towards the constable, and the manner in which theywere said, that Mr Green knew that his conduct was likely to cause the constable to bereasonably frightened or intimidated. That was the entire purpose of making the threat.The fact that the constable was not unduly frightened or intimidated does not affectthat analysis.[60] I am satisfied that the Judge did not err in either fact or law and the appealagainst conviction must be dismissed.Appeal from sentence[61] Mr Green was sentenced to 100 hours' community work for this offence.[62] As Mr Hine submits, the aggravating features of the offending included thefact that he was on bail at the time and in the middle of a trial on the common assaultcharge, and the person to whom the threat was directed was a constable acting in thecourse of his duty. There were no mitigating circumstances of the offending.[63] However, the sentence had to be proportionate in light of the sentence imposedfor the common assault. I consider the 100 hours' community work was manifestlyexcessive when compared to the 80 hours' community work imposed for the commonassault.[64] Mr Hine has provided me with a number of cases that show that sentences forthis type of offending vary. Having regard to those cases, and the aggravating featuresof Mr Green's offending, I consider a sentence of 40 hours' community work isappropriate in all the circumstances.20 Simon France (ed) Adams on Criminal Law—Offences and Defences (online looseleaf ed,Thomson Reuters) at [SO21.02].21 Gillespie-Gray v Police, above n 19, at [10].[65] I accordingly quash the sentence imposed for the conviction of intimidationunder s 21(1)(a) and substitute a sentence of 40 hours' community work.Result[66] Leave to appeal the conviction for the common assault out of time is granted.The appeals from both convictions are dismissed.[67] The appeal from sentence for common assault is dismissed.[68] The appeal from sentence for intimidation is allowed. The sentence of 100hours' community work is quashed and substituted with a sentence of 40 hours'community work.Edwards J