MURRAY v NEW ZEALAND POLICE [2022] NZHC 2133

MURRAY v NEW ZEALAND POLICE [2022] NZHC 2133 [25 August 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2022-412-6[2022] NZHC 2133BETWEEN DONNA JANE MURRAYAppellantAND NEW ZEALAND POLICERespondentHearing: 16 August 2022 (By way of VMR)Appearances: B P Stephenson for AppellantC J Flatley for RespondentJudgment: 25 August 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 25 August 2022 at 3.45 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] On 10 January 2022, Judge A-M J Bouchier convicted1 Donna Murray of acharge of assault with a weapon2 and a charge of threatening to kill.3 She wassentenced on 17 February 2022 by Judge Large to 12 months of intensive supervisionand 12 months of judicial monitoring.4 Ms Murray appeals the conviction for theassault with a weapon.Background[2] The complainant on the charge of assault with a weapon is a nurse atWakari Hospital, where the offence took place.[3] On 3 May 2021, Ms Murray was in the seclusion room at the Wakari Hospital.The seclusion room can only be opened from the outside. Ms Murray had been placedthere about an hour before the complainant started her shift at 7 am that morning.Ms Murray had covered the windows in the seclusion room with paper. Thecomplainant and some other workers entered into the seclusion room to remove thepaper from the windows.[4] When the workers entered the seclusion room, Ms Murray tried to push pastthem to get out of the room. The complainant and another nurse, who also gaveevidence, took Ms Murray by the arms, and they all ended up on the ground. Thecomplainant was holding Ms Murray's arm on the floor. Ms Murray was face-down.The complainant's legs were next to Ms Murray's arm. Ms Murray had a needle inher hand that she had brought to the ward herself, although none of the staff memberswere aware of this. The complainant felt the needle go into her leg, saying it felt likean injection and there was not much force involved. It was only then that thecomplainant realised Ms Murray had the needle and she said something to the effectof "Oh, she's got a needle, she's poked me with it". The needle was small enough tobe concealed in Ms Murray's hand and the nurses only saw it when it was pried out ofMs Murray's hand.1 Police v Murray [2022] NZDC 10516.2 Crimes Act 1961, s 202C: maximum penalty five years' imprisonment.3 Section 306: maximum penalty seven years' imprisonment.4 Police v Murray [2022] NZDC 2814.The District Court decision[5] The District Court Judge started her judgment by acknowledging that a needlecan be a weapon and then canvassing the meaning of "prima facie" which is used ins 202C(1)(b) of the Crimes Act 1961. She then considered the evidence which wasgiven by two of the nurses who were in the room when the incident occurred, onebeing the complainant, and Ms Murray. The Judge said that Ms Murray was candidabout the fact that she did not have a good memory of the incident. The Judge acceptedthe evidence of the two nurses.[6] On the relevant charge the Judge concluded:[43] On an objective viewpoint, we have, I find, as a fact, that thedefendant, Ms Murray, tried to exit the room in a very hurried and quickfashion when the door was opened by the staff of the seclusion room; that inher hand, she had an uncapped needle; and that she did, when both [thecomplainant] and [the other nurse] were holding her down on the ground and[the complainant] had her knees on either side of Ms Murray's arm, thatMs Murray moved her hand in a way that then stabbed [the complainant] withthe needle.[44] Therefore, the prosecution has proven the charge to the necessarystandard of beyond reasonable doubt on the findings of fact that I have justmade.[7] The appellant says the evidence relied on by the Judge was insufficient to provethe charge and the Judge failed to articulate why it did. In the circumstances, theappeal against conviction should be allowed.Principles on appeal[8] This Court may only allow an appeal against conviction if satisfied, in the caseof a Judge-alone trial, that "erred in his or her assessment of the evidence to such anextent that a miscarriage of justice has occurred", or that "a miscarriage of justice hasoccurred for any reason."5 A miscarriage of justice means any error, irregularity, oroccurrence in or in relation to the trial that has created a real risk that the outcome ofthe trial was affected, or has resulted in an unfair trial.65 Criminal Procedure Act 2011, s 232(2)(b).6 Section 232(4).[9] The appeal proceeds by way of rehearing and this Court is required to form aview of the facts.7 If this Court reaches a different view on the evidence, it followsthe trial judge necessarily will have erred and the appeal must be allowed.8 The onusis on the appellant to show that an error occurred.SubmissionsAppellant's submissions[10] Mr Stephenson, for Ms Murray, advances the appeal on the followingthree grounds:(a) the Judge did not identify which facts proved that Ms Murray had aprima facie intention to use the needle as a weapon;(b) the Judge failed to identify what assault Ms Murray committed whilethere were circumstances that showed she had a prima facie intentionof using the needle as a weapon; and(c) the Judge did not identify and take into account all of the evidencebefore her on whether Ms Murray "moved her hand in a way that thenstabbed [the complainant] with the needle".[11] Mr Stephenson also identifies a preliminary issue being that the Judgeappeared to have convicted Ms Murray under s 202C(1)(b), whereas the charge waslaid under s 202C(1)(a). Mr Stephenson acknowledges the Judge had the power toamend a charge under s 136 of the Criminal Procedure Act 2011, but there was nodetermination or declaration by the Judge that this is what was being done and why.There was, therefore, no opportunity to be heard on whether it was to be opposed.However, counsel goes on to say that this is not a key ground of appeal, as a chargeunder s 202C(1)(b) was still within the same offence section and would not havealtered the way the defence was cast at hearing.7 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].8 At [38].[12] Assuming the conviction was under s 202C(1)(b), Mr Stephenson submitsthere was insufficient evidence and reasoning to show a prima facie intention to use aneedle as a weapon. Mr Stephenson submits the Judge made the followingconclusions and then declared the charge proven beyond reasonable doubt:(a) Ms Murray tried to exit the room in a quick and hurried fashion whenthe door was opened by the staff of the seclusion room;(b) Ms Murray had an uncapped needle in her hand;(c) the two nurses were holding Ms Murray to the ground, and thecomplainant had her knees on either side of Ms Murray's arm; and(d) Ms Murray moved her hand in a way that stabbed the complainant withthe needle.[13] Mr Stephenson submits that these four factors were not enough to prove thecharge beyond reasonable doubt because those conclusions were insufficient to provea prima facie intention to use the needle as a weapon.[14] He further submits that there are a number of factual matters or circumstancesaccepted by both the nurses which count against a finding that there was a prima facieintention to use the needle as a weapon. These are:(a) Ms Murray attempted to run past the nurses when the door was openedto the seclusion room;(b) before Ms Murray was restrained, she did not present the needle at thenurses, threaten them, nor act threateningly in any way;(c) both nurses only saw the needle after the complainant had beenpunctured;(d) the complainant accepted in cross-examination that it was probable thatMs Murray was flailing her limbs and trying to push back against therestraint, and that it was possible that the needle came into contact withthe complainant's knee in the course of that movement; and(e) the complainant accepted that Ms Murray's hand was close to thecomplainant's knee at the time, and she does not recall much forcebeing applied when being punctured.[15] Mr Stephenson points out that the complainant in her examination in chiefstated that "I believe that [Ms Murray] twisted her hand that had the needle in it andjust pushed it into my thigh, 'cos I was kneeling on each side of that bent arm, so myknee was close to her hand." He argues it is unclear given the use of the words "Ibelieve" whether the complainant was recounting what she actually saw, or whethershe reconstructed the events in her mind after she had been punctured. He submits thelatter is more likely.[16] Counsel submits that these circumstances were not dealt with adequately bythe trial Judge and there was not a considered basis for the conclusion reached by theJudge. He submits that the circumstances referred to above indicate that Ms Murraywas intent on leaving the seclusion room, as opposed to attacking the nurses.[17] In any event, to convict under s 202C(1)(b), there needs to be an assault andMr Stephenson submits that the Judge failed to explain in her reasons which ofMs Murray's actions constituted an assault. The only fact the Judge pointed to wasthat Ms Murray moved her hand in a way that stabbed the complainant with the needle.While he accepts that this is a fact that tends to prove the needle was used as a weaponunder s 202C(1)(a) but, if that was the case, it is unclear why the charge was apparentlyamended to convict Ms Murray under s 202C(1)(b).[18] Furthermore, the Judge did not consider whether the force used wasintentional, which is required under the definition of "assault" in the Crimes Act.9While the Judge used the word "stab", which might suggest that the application offorce was intentional and therefore an assault, that element was not discussed in a fulland considered manner.9 Crimes Act, s 2 definition of "assault".[19] The third ground of appeal is that there was insufficient evidence to proveMs Murray moved her hand in a way that stabbed the complainant with the needleintentionally (as opposed to incidentally while she was flailing on the ground).[20] Mr Stephenson submits that the Judge must have relied on the evidence of thecomplainant because she was the only witness to give evidence about how Ms Murraymoved her hand. As noted above, Mr Stephenson submits the complainant was notsure about whether she saw Ms Murray's hand move against her thigh and she saidshe felt the needle before she saw it. He submits the complainant provided areconstruction of the events, rather than a recollection of them.[21] Mr Stephenson submits there was a miscarriage of justice in this case becauseof the identified errors. As a result, the conviction is unsafe whether it was unders 202C(1)(a) or s 202C(1)(b) because the Judge did not reason appropriately that allof the elements of either offence to be proven, and when all the evidence is taken intoaccount, they do not prove all the elements for either offence. Specifically, theevidence was insufficient to prove:(a) whether there was an intentional application of force through the use ofthe needle, in terms of an offence under s 202C(1)(a); or(b) there existed circumstances that prima facie showed an intention onMs Murray's part to use the needle as a weapon.Respondent's submissions[22] Ms Flatley, for the respondent, submits the Judge identified the relevant facts,identified the relevant assault, and provided sufficient reasons for her conclusion.[23] In responding to the appellant's first ground of appeal, Ms Flatley submits therewas sufficient evidence to show a prima facie intention to use the needle as a weaponas required under s 202C(1)(b). While she agrees that the appellant was not aggressiveor threatening towards the nurses before being restrained, Ms Murray conceded incross-examination that she had intentionally removed the cap off the needle in theseclusion room just before the nurses entered, and it was open to the Judge to concludethat an intention to use the needle existed after the appellant had been restrained.[24] Ms Flatley submits the fact the appellant was flailing her limbs and trying topush back against the restraint while continuing to hold an uncapped needle,demonstrates circumstances which show an objective, prima facie, intention to use theneedle as a weapon as a means of escaping restraint. While not determinative of intent,she also submits that the fact the complainant received a puncture wound contributesto the overall circumstances which show intent to use the needle as a weapon, sayingit could not have been accidental for a needle of that size, which was small enough tofit in the appellant's closed fist, to puncture the victim's skin. A deliberate applicationof force must have been required to puncture the complainant. Furthermore,Ms Murray said in evidence that the needle had "cut my palm". Her failure to dropthe needle despite it cutting her palm further supports the fact that she had an intentionto keep hold of the needle in order to use it as a weapon. The fact that not much forcewas used is irrelevant when establishing the appellant's intent to use the needle as aweapon.[25] Regarding the characterisation of the complainant's evidence as areconstruction of what she thought happened, Ms Flatley submits that the complainantusing the word "believed" in her evidence is consistent with her remembering theevents, rather than reconstructing them. She also says that it is understandable in thecircumstances that the complainant did not have an awareness of Ms Murray'sintention until the incident occurred, given how quickly everything happened and howMs Murray concealed the needle in her hand. She submits that the complainant onlyrealising that Ms Murray had the needle after she was punctured is not essential toestablishing an objective view of the circumstances during the incident norMs Murray's intention.[26] Ms Flatley submits the Judge adequately explained her reasons, especiallygiven this was a Judge-alone trial set down for one day, and the Judge delivered herreasons orally.[27] Regarding the second appeal ground, Ms Flatley submits the Judgeappropriately identified what assault Ms Murray committed and the circumstances ofthat assault. Ms Flatley submits the Judge was clear when saying "Ms Murray movedher hand" that this was an intentional act, and that if the Judge wanted to indicateotherwise, she would have said "her hands were moving around". Similarly, the useof the word "stabbed" indicates a finding of an intentional application of force.Ms Flatley submits this reasoning, albeit brief, was sufficient in the context of the trial.[28] For the third ground of appeal, Ms Flatley submits it was open to the Judge tofind Ms Murray moved her hand in a way that stabbed the complainant. Ms Flatleyaccepts that the complainant acknowledged that she could have been punctured in thecourse of Ms Murray attempting to resist restraint. However, she submits that if thiswas the case, this would still meet the definition of "assault" under the Crimes Actbecause moving her hands in that way would be an intentional application of intendedforce. She further submits that s 202C(1)(b) does not require the person charged tohave used the weapon in the assault.Analysis[29] A key part of the appellant's arguments is that the District Court Judge did notadequately explain her decision because she failed to identify the relevant facts onwhich she reached her conclusions as to whether the elements of the offence, whetherunder s 202C(1)(a) or s 202C(1)(b), were proved to the requisite standard.[30] The Supreme Court in Sena v Police identified the following requirements ofa Judge's reasoning:10[The reasons] should show an engagement with the case, identify the criticalissues in the case, explain how and why those issues are resolved, andgenerally provide a rational and considered basis for the conclusion reached.Reasoning which consists of a conclusionary credibility preference is unlikelyto suffice. The language of s 232(2)(b) reflects an assumption that the reasonsgiven by a judge will reflect that judge's assessment of the evidence and whythat assessment resulted in a conviction. A failure to provide such anassessment frustrates the operation of s 232(2)(b) and may well engage s232(2)(c); this is on the basis that a reasoned judgment is essential to a fairtrial. A failure to provide a reasoned resolution of a significant evidential10 Sena v Police, above n 7, at [36].dispute may, alternatively, suggest a misapprehension of the effect of theevidence, for instance a misapprehension of the significance of the dispute.[31] However, the Supreme Court also recognised judgments, particularly oraljudgments delivered in a busy court, may not be as precisely drafted as desired,saying:11 we accept that imperfection of expression is practically unavoidable,particularly in oral judgments. Accordingly, appellate courts should assessreasons contextually, in light of the evidence given and allowing for theburden for judges of balancing the need for prompt determination of criminalcases with other workload requirements. The adequacy (or not) of reasonsmust be assessed in light of the type of case (including seriousness) and theissues involved.I bear those observations in mind as I consider the judgment and whether the Judgewas right to conclude the charge proven.[32] I start with which subsection of s 202C of the Crimes Act 1961 Ms Murray wasconvicted under. That section relevantly provides:202C Assault with weapon(1) Every one is liable to imprisonment for a term not exceeding 5 yearswho,—(a) in assaulting any person, uses any thing as a weapon; or(b) while assaulting any person, has any thing with him or her incircumstances that prima facie show an intention to use it asa weapon.[33] Section 2 of that Act defines "assault" as meaning: the act of intentionally applying or attempting to apply force to the personof another, directly or indirectly, or threatening by any act or gesture to applysuch force to the person of another, if the person making the threat has, orcauses the other to believe on reasonable grounds that he or she has, presentability to effect his or her purpose [34] Under the charging documents, Ms Murray was charged under s 202C(1)(a).However, Mr Stephenson submits the trial Judge convicted Ms Murray unders 202C(1)(b). This is because the trial Judge canvassed some case law and legal11 At [37].commentary about s 202C generally at the beginning of her judgment, and includedcomments about the meaning of the term "prima facie" which only appears ins 202C(1)(b). However, the position is unclear. The Judge's factual findings, as setin [6] above, included the finding that Ms Murray "moved her hand in a way that thenstabbed [the complainant] with the needle". That suggests she was still assessing thecharge under s 202C(1)(a).[35] In my view, if the Judge had intended to amend the charge, this needed to beclearly articulated during the hearing so that counsel could ensure theircross-examination explored the elements of that charge and so they could ensure theirsubmissions were similarly focused on those elements. It is unsatisfactory that thejudgment suggests that the Judge is considering s 202C(1)(b) when there has been noother indication that she intends to amend the charge.[36] However, more importantly, I accept Mr Stevenson's submission that the Judgedoes not clearly identify the elements of the charge she is considering nor whatevidence supports the charge. If the charge was assault with a weapon, I consider thefinding "that Ms Murray moved her hand in a way that then stabbed [the complainant]with the needle" is equivocal as to the intentional application of force. It equallyencompasses an inadvertent or accidental application of force. If the Judge wasintending to convict under s 202C(1)(b), then she failed to articulate with any claritywhat the circumstances were that showed "an intention to use [the needle] as aweapon".[37] As the Judge has not identified the critical issues in the case, and then explainedhow and why those issues are resolved in favour of conviction based on the evidencebefore her, I consider I must form my own view of the facts and determine the appealaccordingly. However, in doing this, I must take into account any advantage that thetrial Judge may have had including in evaluating the strength and weaknesses of thecase as it emerged during trial and in making assessments of the witnesses.[38] To convict the appellant under s 202C(1)(a), I must be satisfied:(a) the appellant assaulted the complainant, that is, she intentionallyapplied force to the complainant; and(b) while assaulting the complainant the defendant used something as aweapon.[39] Here, there was no dispute that Ms Murray had in her hand a needle which shehad uncapped prior to staff entering the room. There was also no dispute that a needlecan be a weapon, that is, an article capable of being used to inflict bodily harm. Thequestion here is whether it was deliberately used as a weapon, or whether it waspossible that the needle made contact with the complainant inadvertently. Negligenceor recklessness is insufficient to support a finding that there was "use of any thing asa weapon". There must be an act of conscious volition on the part of the user.12[40] The appellant's evidence is that she intentionally uncapped the needle whileshe was in the isolation room. She then rushed at the nurses as they opened the door.Her explanation for having the needle in her hand is that she used needles forself-harm. When asked about whether she purposefully stabbed the complainant withthe needle, she denied that, saying the complainant was her favourite nurse and shewould not have deliberately hurt her. However, she also repeatedly said she couldremember little of that morning, although when she was being restrained, she said shewas trying to cap the needle.[41] The complainant said she was holding onto one of the appellant's arms as sheknelt beside her on the floor and, while she was holding her there, the appellant"twisted her hand around and pushed it into my inner thigh as I was kneeling besideher". That was when she realised the appellant had a needle and she said "she's pokedme with it".[42] While in cross-examination, the complainant acknowledged that it waspossible the movement from the appellant in resisting restraint might have caused theneedle to come into contact with her knee. I reject the suggestion that this action wasunintentional. I do this for the following reasons:12 Soper v R HC Invercargill Ap25, 9 May 1991 at 3.(a) Ms Murray acknowledged uncapping the needle prior to the nursescoming into the room. While she said she did this because she wasupset and wanted "to choose peace" (i.e. self-harm), she also said "allI wanted was out of the room" which suggests she intended using it toresist restraint.(b) The fact she concealed it in her hand suggests she did not want staff toknow she had it, so they could not disarm her.(c) She says she pricked herself with the needle while holding it in herhand. For her to have then pricked the needle in the complainant's leg,she must have deliberately altered the position of the needle in her hand.(d) While the appellant was not aggressive or threatening towards thenurses before being restrained, this was unsurprising. The evidencemakes it clear she tried to rush out the door as soon as it was opened.There was no opportunity for her to threaten staff with the needle beforeshe was brought to the ground.(e) While the complainant at one point said she "believed" the appellanttwisted her hand and pushed the needle into the complainant's leg, shewas clear in her first explanation of what happened that Ms Murray"twisted her hand around and pushed it into my inner thigh". The useof the words "I believe" in her subsequent explanation appears to reflectthe careful way in which the complainant gave evidence, rather thanuncertainty. For example, when asked when the appellant was face upor face down, she says "face down I believe", and when asked howmuch force was used she says "I don't believe it penetrated deeply"explaining that because she was holding the appellant's arm, she couldonly use minimal force. It does not detract from this being a reliableaccount of what she says happened.(f) I also take into account the Judge's assessment that the two nurses werecredible witnesses.[43] I am satisfied, beyond reasonable doubt, that Ms Murray intentionally movedher hand, despite being restrained, and got the needle into a position where she could,even if momentarily, push it into the complainant's leg. Accordingly, albeit on a freshexamination of the available evidence, I am satisfied the Judge was correct to find thecharge of assault with a weapon was proved beyond reasonable doubt.[44] Because I have found the charge proven under s 202C(1)(a), I do not need togo onto consider whether the elements of the charge under s 202C(1)(b) were met.Result[45] The appeal against conviction is dismissed.Solicitors:Public Defence Service, DunedinRPB Law, Dunedin