STITT v POLICE [2020] NZHC 676

STITT v POLICE [2020] NZHC 676 [2 April 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-382[2020] NZHC 676BETWEEN DION NIKOLAS STITTAppellantAND NEW ZEALAND POLICERespondentHearing: 3 February 2020Appearances: I M Brookie and C G Farquhar for AppellantH J Musgrave for RespondentJudgment: 2 April 2020JUDGMENT OF PETERSThis judgment was delivered by Justice Peters on 2 April 2020 at 8.30 ampursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Meredith Connell, Crown Solicitor, AucklandCounsel: I M Brookie, AucklandC G Farquhar, Auckland[1] Following a Judge-alone trial before Judge Sainsbury, the appellant, Mr DionStitt, was convicted of one charge of assault and two of male assaults female.1 TheJudge sentenced Mr Stitt to one year's intensive supervision and 60 hours' communitywork.2[2] Mr Stitt appeals against conviction on the basis a miscarriage of justice hasoccurred, that is, there was an error, irregularity or occurrence in or in relation to histrial that has created a real risk the outcome of the trial was affected.3[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 the trial Judge derives particularadvantages from hearing the evidence.4[4] Mr Stitt relies on two principal grounds of appeal.[5] First, he contends a miscarriage arose because of trial counsel error. Mr Stittcontends Ms Ou, defence counsel at trial, erred in two respects, including by failingto call his father, Mr David Stitt, to give evidence.[6] Secondly, Mr Stitt contends the Judge's reasons for finding the offendingproved were inadequate.Background[7] Mr Stitt and the complainant, Ms Timms, were in a relationship in September2018, when the assaults took place or are said to have taken place. Mr Stitt was20 years old and Ms Timms 17, and they were living with Mr Stitt's parents.1 New Zealand Police v Stitt [2019] NZDC 17481.2 New Zealand Police v Stitt [2019] NZDC 16594.3 Criminal Procedure Act 2011, s 232.4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].[8] Ms Timms called the Police after the incident on 7 September 2018.Constables Tuigamala and Kiwara attended, Mr Stitt was charged and pleaded notguilty, and Ms Ou was assigned to represent him.[9] Ms Timms and Constable Tuigamala gave evidence for the prosecution, andMr Stitt in his defence, with the Judge giving his verdicts at the conclusion of theevidence.5 September 2018[10] The Police originally charged Mr Stitt with assault with intent to injure inrespect of what occurred on 5 September 2018. This charge derived from a statementby Ms Timms that Mr Stitt had bitten her on the arm. However, at trial, Ms Timmsdid not give evidence of such a bite, and the Judge of his own volition reduced thecharge to common assault. The Judge found the charge proved, accepting Ms Timms'evidence that Mr Stitt had pushed her.[11] Ms Timms' evidence in chief as to events that day was that the pair werearguing in Mr Stitt's bedroom regarding a Facebook message Ms Timms had seen onMr Stitt's cellphone, that Mr Stitt had pushed her with both hands, on her chest, afterwhich she collected her belongings and tried to leave, but Mr Stitt would not let her.[12] In cross-examination, Ms Timms agreed that she had kicked Mr Stitt repeatedlyon the legs "pretty hard" and pushed him to get him out of the way, when he wouldnot let her leave. Ms Timms also stated that Mr Stitt "grabbed" her with open armsand that her back "cracked", agreeing with Ms Ou that it was like a "bear hug". Thatreference to a bear hug rather confused matters because it, rather than the push, becamethe focus of the cross-examination of Mr Stitt in respect of the 5 September incident.[13] In his evidence, Mr Stitt said he had a limited recollection of events that daybut agreed they may have been arguing about a Facebook message. Although theprosecutor put it to Mr Stitt that he had given Ms Timms "this bear hug that crackedher back", something Mr Stitt did not remember, the prosecutor did not put it toMr Stitt that he had pushed Ms Timms. As I have said, ultimately that was the assaultthe Judge found proved.6 September 2018[14] The second charge, of male assaults female, arose from events at about 9.30 pmon 6 September 2018. Ms Timms' evidence was that Mr Stitt had put her cellphone inhis pocket and she was trying to retrieve it, and that Mr Stitt "tackled me to the groundand I hit my head on the concrete and when I got up I hit it on the door and I feltdazed". Ms Timms then said Mr Stitt had picked her up with his right arm (whichwould seem to be different from tackling her to the ground), and dropped her so thatshe was on the ground, following which Mr Stitt's father, David Stitt, had intervenedand calmed things down. This was the assault the Judge found proved, that is, Mr Stitthad lifted up Ms Timms and dropped her down, to get her away from him.[15] Mr Stitt point blank denied this had ever occurred. His evidence was he didnot have Ms Timms' cellphone, whatever she may have thought, she was grabbing hisclothes, he was bracing himself in a doorframe and pulled away from her, and she fellover. Mr Stitt said he was screaming at her to stop, as he had been sick and vomiting(Ms Timms agreed he had) and essentially he was not well enough to be having a fightwith Ms Timms.7 September 2018[16] The third charge, also male assaults female, arose from events on the morningof 7 September 2018. Ms Timms' evidence was she told Mr Stitt she was going home,they were in David Stitt's computer room talking, that Mr Stitt grabbed her arms andstarted pulling her around the room, that Mr Stitt got angry when she spat at him, andhe had kicked her in the legs and punched her in the face.[17] Mr Stitt's evidence was that he spent most of the night of 6 September 2018on the couch in the living room as he was unwell; that he then went to the bedroom;Ms Timms was kicking and pushing him (Ms Timms had accepted this was so); thathe was still getting up and vomiting; they argued; Ms Timms was throwing punchesand kicks and followed him downstairs into the computer room; and she ran at him,and fell over when he moved out of the way. Mr Stitt denied punching Ms Timms inthe face.[18] As to this third charge, the Judge said he accepted there was some kicking.although Mr Stitt had been provoked.[19] The Judge considered Ms Timms' evidence corroborated by the followingmatters:(a) Photographs of her taken by Constable Tuigamala on 7 September2018.(b) Mr Stitt's acknowledgment in evidence that sometimes he would notlet Ms Timms leave their bedroom when they were arguing. The Judgeconsidered this consistency corroborative of Ms Timms' account of theincident on 5 September 2018.(c) Ms Timms' telephone call to the Police.[20] The Judge considered there was a lack of corroboration of Mr Stitt's evidence,including an absence of evidence of bruising to him, despite his evidence thatMs Timms was the aggressor.[21] The Judge also said the "dynamic at play" had a bearing on his overallassessment. This dynamic was that Ms Timms was a guest in Mr Stitt's parents' house;was in a position where "it may be difficult to make too much of a situation she is in",whereas Mr Stitt was not; if Mrs Timms' behaviour was as erratic as Mr Stitt described,the Judge would have expected to hear more about it from those who were there(presumably Mr Stitt's parents); and, absent that, Ms Timms' need to stay there, withno way of getting out, was supportive of her credibility.[22] For these reasons, the Judge accepted Ms Timms' account and did not acceptMr Stitt's evidence as raising a reasonable doubt.Discussion[23] Counsel for Mr Stitt, Ms Farquhar, submits several of the Judge's reasons forpreferring Ms Timms' account were insufficient. This submission reflects statementsby the Supreme Court in Sena v Police.5[24] The first point concerns Constable Tuigamala's photographs of Ms Timms.The photographs showed a bruise to Ms Timms' arm and leg. However, presumablythrough oversight, the photographs were never put to Ms Timms and so there was noevidence from her to link the bruises to the allegations. Rather, the prosecutor had thephotographs produced in evidence through the Constable, and after Ms Timms hadgiven evidence. The Constable's evidence was that Ms Timms had told him thebruises were from Mr Stitt biting her arm and kicking her leg. Ms Ou objected to thisevidence from the Constable, on the basis it needed to come from Ms Timms. TheJudge dismissed that objection and the photographs came into evidence.[25] Ms Farquhar submitted the Judge's treatment of the photographs wasproblematic. First, the Judge said the photos showed a bruise to Ms Timms' armconsistent with her being manhandled by being lifted up off the ground or falling, anda bruise to her leg consistent with kicking. This was despite evidence that the injuryto the arm derived from a bite. The Judge said he would put that evidence to one side,that is, Ms Timms' statement the injury was from a bite, because he had not heardevidence of that from Ms Timms. As Ms Farquhar submitted, the Judge did not hearany evidence whatsoever from Ms Timms regarding the photographs. The onlyevidence was from the Constable, and there was no basis for the Judge accepting partof the Constable's evidence but not the other. Overall, Ms Farquhar submitted noweight could be put on the photographs, absent evidence on oath from Ms Timms asto what the photographs showed and how they were relevant.[26] There is another point about the photographs, which is that they do not add agreat deal to resolving the issues in this case. That is because there was no disputeMs Timms ended up on the ground on 6 September 2018, or that she may have been5 Sena v Police, above n 4, at [36] and [47]. Applied in Johnson v Police [2019] NZHC 2966 at[26]-[28]; and Webster v Police [2019] NZHC 1335 at [12]-[15].kicked at some point. The issue was how she came to fall on 6 September, and indeedwho had done what to whom on each occasion.[27] Secondly, Ms Farquhar submitted the Judge ought not to have treated Mr Stitt'sacknowledgment that he did not always let Ms Timms leave the room, as described at[19](b), as corroborative of Ms Timms' evidence. She submitted mere consistencybetween two accounts does not render one account more credible than the other.[28] I accept these submissions from Ms Farquhar in the context of this case, andmention two other points for the sake of completeness.[29] The first is that the Judge relied on Ms Timms' telephoning the Police ascorroborating her account. No real complaint is made about that but, for myself, Ihave reservations about the probative value of the point. I cannot see anything todistinguish it from Mr Stitt's immediate complaint to Constable Tuigamala, on theConstable's arrival, that Ms Timms had been pushing, bullying and antagonising himwhen he was unwell. These statements were equally consistent with his evidence tothe Court. The second point is that there was no evidence Ms Timms needed to stayat Mr Stitt's parent's house. In fact, her evidence was she went home three times aweek. It is also apparent from the evidence that Ms Timms said she was leaving onseveral occasions, but ultimately did not do so. The gist of the evidence was she choseto stay.[30] Crown counsel, Ms Musgrave, submitted, correctly, that an appellate court isto exercise caution when considering a challenge to a conviction based on credibilityfindings; that the Judge had not placed undue weight on the photographs; and it wasopen to the Judge to reason that Mr Stitt might assault Ms Timms if he wished to stopher leaving a room. I accept the first of these submissions of course, but equally, andas noted, a Judge is required to give sufficient reasons for accepting the evidence ofone witness and rejecting that of another. I am not persuaded the Judge did so in thiscase. As to the other submissions, I think the Judge did place considerable weight onthe photographs, and the last submission would be to authorise an exercise inspeculation.[31] Excluding these reasons from consideration, one is left with the absence ofevidence of injury to Mr Stitt. This is an insufficient basis for rejecting Mr Stitt'sevidence and accepting Ms Timms'. It follows that I propose to allow the appeal,being satisfied there has been an error, irregularity or occurrence in or in relation tothe trial that has created a real risk the outcome of the trial was affected.6 I set asidethe convictions and order a retrial.[32] It also follows that it is unnecessary to address the ground of appeal allegingcounsel error. In fairness to Ms Ou, I record that, having heard the evidence andsubmissions on appeal, my preliminary view was that she did not err as submitted byMs Farquhar.Result[33] The appeal is allowed, the convictions set aside, and a retrial ordered.Peters J6 Criminal Procedure Act, s 232.