NICOL v NEW ZEALAND POLICE [2021] NZHC 305

NICOL v NEW ZEALAND POLICE [2021] NZHC 305 [26 February 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-000093[2021] NZHC 305BETWEEN ETHAN JAMES NICOLAppellantAND NEW ZEALAND POLICERespondentHearing: 24 February 2021Appearances: R M Gould for AppellantD T E Moore and J L Garden for RespondentJudgment: 26 February 2021JUDGMENT OF GENDALL JThis judgment was delivered by me on 26 February 2021 at 3:30 p.m. pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The appellant, Mr Nicol, was convicted of charges of threatening to kill1 (butacquitted on a charge of assault) by Judge Thompson in the Porirua District Court on4 September 2020.2 He was sentenced to 12 months intensive supervision.3 Mr Nicolappeals his conviction on the basis, first, that the Judge applied the wrong test infinding the charge proved and, secondly, that his lawyer did not take or followinstructions, which resulted in a miscarriage of justice. Before me, however,Ms Gould, counsel for Mr Nicol, confirmed that she relies here primarily on MrNicol's first ground of appeal noted above.Facts[2] Mr Nicol, with his mother, was at an address in Titahi Bay, occupied by hisgrandparents, while their home was renovated. In the late evening of 24 July 2019Mr Nicol, his grandparents, mother and his two uncles were all at this address.Mr Nicol behaved nosily, disturbing his grandfather resulting in an altercation. Theprosecution charged Mr Nicol with assaulting his grandfather but conflicting evidencefrom Mr Nicol's mother and grandfather meant the Judge felt unable to prove thatcharge beyond reasonable doubt.[3] Several hours later Mr Nicol and his uncle, Mr Pua Urech, were involved in aconfrontation. Mr Nicol put his hand near his pocket, gestured to indicate there was aweapon in the pocket, and told Mr Urech "just stay out of it and don't get involved,otherwise I'm going to pull out something and shoot you".Evidence[4] At trial during his evidence in chief Mr Urech stated: "I thought [Mr Nicol]was going to shoot us", and that he was "shocked and freaked out" and was "veryscared". During cross examination Mr Urech stated he had doubts over whetherMr Nicol would follow through with his threat and also that he had never seenMr Nicol with a gun. But later in his re-examination, Mr Urech confirmed:1 Crimes Act 1961, s 306.2 Police v Nicol [2020] NZDC 27373.3 Police v Nicol [2020] NZHC 26437.I was just scared for my safety and of him [Mr Nicol] saying what he wasgoing to do and freaking out on his behaviour.And in answer to a question from the prosecutor:So, would it be fair for me to say that you were quite scared when Ethan madethe threats?He said:Yes.And in answer to the question:can you just tell us again what the threat was?He answered:That he was going to shoot us.Principles on appeal[5] This Court may only allow an appeal against conviction if satisfied, in the caseof a judge-alone trial, that the Judge "erred in his or her assessment of the evidence tosuch an extent that a miscarriage of justice has occurred", or that "a miscarriage ofjustice has occurred for any reason."4 A miscarriage of justice means any error,irregularity, or occurrence in or in relation to the trial that has created a real risk thatthe outcome of the trial was affected, or has resulted in an unfair trial.5[6] The appeal proceeds by way of rehearing and this Court is required to form itsown view of the facts.6 If this Court reaches a different view on the evidence, itfollows the trial judge necessarily will have erred and the appeal must be allowed.7The onus is on the appellant to show that an error occurred.4 Criminal Procedure Act 2011, s 232(2)(b).5 Section 232(4).6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].7 At [38].District Court decision[7] In his decision in the District Court, Judge Thompson outlined the evidence hehad heard. He noted that Mr Nicol did not give evidence, and properly confirmed thiswas his absolute right. Mr Nicol also did not make a statement upon his arrest. Thismeant there was no evidence before the Judge provided by or for Mr Nicol.[8] Given he had no reason to doubt Mr Urech's evidence, and no contradictoryevidence was provided, Judge Thompson said he was satisfied the threats were made.While it seems Mr Urech may not have seriously feared that the threats would becarried out, the Judge said that the fact they were made with intent to "cause concern"on Mr Urech's part, satisfied him that the charge of threatening to kill was provedbeyond reasonable doubt.Grounds of Appeal[9] Ms Gould, for Mr Nicol, as I have noted, relies on two key grounds for appeal.These are, first, that Judge Thompson applied the wrong test in finding the threateningto kill charge proven under s 306 of the Crimes Act and, secondly, due tomiscommunication between Mr Nicol and his counsel, Mr Nicol did not understandthat his failure to give evidence would result in only one version of events being putbefore the Court. I now turn to consider each of these grounds for appeal individually.Did the Judge apply the incorrect test?Submissions[10] In his judgment Judge Thompson concluded:Even though Mr Urech did not seriously fear that [the threat would be] putinto effect, it nevertheless was made and was made with the intent, there is nodoubt from the context, of causing concern on the part of the person to whomthe threat was made."88 Police v Nicol, above n 2, at [13].[11] Ms Gould submits the relevant test is whether the alleged offender intendedthe other person take the threat seriously and not whether the offender made the threatintending to "cause concern". She contends there was no real evidence before theDistrict Court to indicate that Mr Nicol had that requisite intent and, therefore, theconviction in question cannot stand.[12] Ms Gould argues further that this distinction is important as cases of mereranting, or hot air warrant a lesser sentence via a charge of intimidation under s 21Summary Offences Act 1981. It is only the more serious threats that warrant this moreserious charge of threatening to kill or do grievous bodily harm under s 306 of theCrimes Act, which itself carries a maximum sentence of seven years' imprisonment.[13] On all this, Ms Gould cites R v Meek where McMullin J noted "the wordsshould be intended to be taken seriouslyby the person or persons to whom it isaddressed and whose conduct may be influenced by it.9 In R v Adams the Court ofAppeal noted the mental element would be fulfilled if "the maker intended it to betaken as a threat which may be carried out".10[14] Mr Moore, for the Crown, in response confirmed that he accepts that R v Meekand R v Adams correctly confirm that addressing the mens rea element of the offencerequires that there must be an intention the threat will be taken seriously. The HighCourt has previously reformulated the test as requiring an intention "to influence themind of the person to whom it was addressed"11 and Adams accepted this expressionto be equivalent to the appropriate test.12 Mr Moore went on to suggest that, read incontext, the words used by Judge Thompson here to describe Mr Nicol's intent thatthey were to "caus[e] concern" were simply a description that Mr Nicol intended thethreat to be taken seriously by Mr Urech. The evidence, he says, supported no othercredible interpretation as it was not a joke. The threatening comments were made inthe context of the physical confrontation that evening. Therefore, the Judge,9 R v Meek [1981] 1 NZLR 499 (CA) at 503. R v Meeks was cited with approval in R v HardwickHC Auckland CRI 2005-404-328, 27 July 2006 at [14]; Reihana v Police HC Auckland CRI 2009-404-205, 21 September 2009, at [4]; R v Adams [1999] 3 NZLR 144 (CA) at [8].10 R v Adams, above n 9, at [7].11 Police v Goldie [1993] 2 NZLR 329 (HC).12 R v Adams, above n 9.Mr Moore says, did not apply the wrong threshold of intention test and the convictionhere should be upheld.Analysis[15] I accept that the Judge here did not articulate the exact requirements withregard to the mental element of this offence when he said the threatening commentwas made "with the intent of causing concern". The correct articulation of the test isthat the threat was made with the intent to intimidate or be taken seriously.13 However,it is also true here that the Supreme Court in Sena v Police on this aspect accepted:14that imperfection of expression is practically unavoidable, particularly inoral judgments. Accordingly, appellate courts should assess reasonscontextually, in light of the evidence given.[16] The Judge did note that Mr Urech may not have seriously feared that the threatwould be followed through but, instead, correctly he focussed on Mr Nicol's intentionrather than how Mr Urech interpreted the threat.15 I have read the notes of evidencein this matter and I accept Mr Moore's contention here that, in light of all the evidence,the Judge's use of the term "cause concern" is a description that Mr Nicol intended tointimidate and for the threat to be taken seriously. It was not a joke, nor was it amechanism to achieve some other goal as in Reihana.16[17] In Reihana v Police, Duffy J noted intent may be more readily identifiablewhere:the threats are accompanied by other circumstances which give credence totheir credibility".17When taken in the context of the earlier confrontation between Mr Nicol and hisgrandfather, and given all the surrounding events culminating from what the Judgedescribed as "plainly [bad] relationships at the time" and considering also thatMr Nicol clearly indicated to Mr Urech that he was concealing a gun and would use13 R v Meek, above n 9, at 503; R v Hardwick, above n 9, at [14]; Reihana v Police, above n 9, at [4];R v Adams, above n 9.14 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [37].15 Reihana v Police, above n 9, at [6].16 Reihana v Police, above n 9.17 At [21].it, I am satisfied the evidence before the Judge was sufficient to support his view thatthe intention was to intimidate and for the threat be taken seriously. Judge Thompson'suse of the expression "made with the intent of causing concern" must be read as anarticulation that the Judge believed Mr Nicol did intend the threat to be taken seriously.[18] On all of this, Ms Gould suggested in response that the evidence should not beseen as sufficient to support a conviction at the higher standard of intent required forthis offence. I disagree. There was ample evidence, as I see it, before Judge Thompsonto support the conviction to the standard, and while the Judge might have articulatedthe test differently, in practice I accept that he adopted the correct test.[19] Lastly, before me, Ms Gould made one further oral submission relating to theserious nature of this threatening to kill offence under s 306 of the Crimes Act. Onthis, she argued that the consequences for Mr Nicol of a conviction for this seriousoffence would be significant for his future employment, travel and related prospects.Whilst she accepted, and I do note, that the relevance of these matters is questionableon a conviction appeal of this type, in any event, I simply record for completeness thatMr Nicol, although a relatively young man aged 26 at the time of these events, alreadyhas a criminal and traffic conviction history exceeding some three pages, includingconvictions in March 2019 for two instances of family violence and resisting police,resulting in an imprisonment sentence. This issue raised by Ms Gould as toconsequences of a conviction for Mr Nicol I leave entirely on one side here.Failure to adequately explain the consequences of exercising right to silence[20] Before me, Ms Gould did not press the second ground of appeal. Her writtensubmissions, however, address this and for completeness I will turn to consider thisground, albeit briefly.[21] On this aspect, Ms Gould has suggested that Mr Nicol did not understand thathis decision not to give evidence would leave the Judge at his trial with only oneversion of events, which the Judge would likely feel compelled to accept unlessproperly in doubt. Mr Nicol, it is claimed, faced emotional distress at the hearing. MsGould says he felt unable to provide evidence to challenge his uncle's evidence, butinstead he relied on his lawyer to question in cross-examination the evidence that wasgiven. Ms Gould says, first, that Mr Nicol has extreme regret over his decision toexercise his right to silence and, secondly, that it is hard for a lay person to appreciatethe significance of such decisions.[22] On these matters I do not consider any miscarriage of justice has occurred onthis ground. Mr Nicol was at the trial, he heard the evidence from the prosecution,and could have then made a decision to provide evidence. Mr Nicol knew the policehad not taken a statement from him upon his arrest. He had access to a lawyerthroughout the trial and the notes of evidence show Mr Nicol was allowed access tohis counsel when he was unsure what was occurring.18 While subsequently he mayregret his decision not to provide evidence, there is no suggestion that Mr Nichol wasin a state of such emotional distress that he was quite unable to provide evidence ormake decisions. I consider it is likely Mr Nicol may have made a deliberate decisionnot to give evidence. This ground also is not made out here, nor does it warrantdisturbing the conviction.Conclusion[23] For all the reasons I have outlined above, I am satisfied no error or miscarriageof justice has occurred here. The appeal is dismissed....................................................Gendall JSolicitors:Rennie Gould, Barristers, PoriruaLuke Cunningham & Clere, Wellington18 At one point in the trial, it seems Mr Nichol interrupted the Court and stated "I haven't beeninformed of any of this". The Judge allowed an adjournment for Mr Nicol to speak to his counsel.