THOMPSON v NEW ZEALAND POLICE [2019] NZHC 3241

THOMPSON v NEW ZEALAND POLICE [2019] NZHC 3241 [10 December 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000156[2019] NZHC 3241BETWEEN GRANT LESLIE THOMPSONAppellantAND NEW ZEALAND POLICERespondentHearing: 5 December 2019Appearances: Appellant Appears in PersonJ H Whitcombe for RespondentJudgment: 10 December 2019JUDGMENT OF GENDALL JThis judgment was delivered by me on 10 December 2019 at 11:00 a.m. pursuant to Rule11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: 10 December 2019Introduction[1] Mr Thompson, the appellant, was found guilty at a judge-alone trial of resistingpolice and assaulting a police officer.1 He was subsequently sentenced to 65 hours'community work.2 The appellant appeals both his conviction and sentence. It appearsthe appeal may have been filed one day out of time. No objection to granting of leaveis taken by the respondent. No prejudice is occasioned by this short delay. Leave toappeal out of time is granted accordingly.Facts[2] The appellant and his associate Ms Kelly were at The Warehouse retail shopon 14 July 2018. Constables Johnston and Smart were called to The Warehousebecause of a complaint of shoplifting. They had with them a Mr Dixon at the time,who was a young person interested in joining the police.[3] When the constables arrived at The Warehouse, they were directed to theappellant and Ms Kelly. The appellant denied shoplifting any items. He thenpurchased a can of drink and, according to the prosecution, produced three cosmeticitems from his pockets and placed them on the counter, making a comment along thelines of "I suppose you want these back". He then left The Warehouse and wasfollowed out by Constable Johnston and Mr Dixon.[4] Constable Johnston arrested the appellant for shoplifting, handcuffed him, andtook him towards the police car. According to the Constable, the appellant did not co-operate, but tried to pull away from him as they got closer to the police car. He wasforced up against the police car as the Constable tried to restrain him, then attemptedto knee the Constable in the groin twice while trying to pull away from him.[5] The appellant was placed into the back of the police car with the help ofConstable Smart. Constable Johnston leaned across the appellant to plug in theseatbelt, with Constable Smart assisting from the other side. The appellant is allegedto have spat at Constable Johnston in the face. He was then heard to "hoick" more1 Police v Thompson [2019] NZDC 20743.2 Police v Thompson [2019] NZDC 20735.spittle into his mouth, at which point Constable Johnston punched him in the side ofthe mouth, afraid he would spit at him again.District Court decision[6] The appellant represented himself at trial. After satisfying himself that theappellant understood his rights to legal representation and legal aid, Judge Spearconsidered an issue that had arisen regarding Mr Dixon who was a witness called bythe appellant in his defence. The appellant had requested Mr Dixon's details prior totrial with the intent of calling him as a witness, but the police, it seems, had beenreluctant to give him that information. It appeared the police had disclosed Mr Dixon'sname to the appellant, but not his contact details, and had then taken a police statementfrom Mr Dixon which was disclosed to the defence. Mr Dixon, as I have noted, wasthen required to attend court as a witness for the defence. Judge Spear considered thatapproach was incorrect. Mr Dixon should instead have been made available for theappellant to conduct his own interview prior to trial. Nevertheless, he found that hadno bearing on the case.[7] Judge Spear went on to consider the evidence of the two constables, theappellant, Mr Dixon and Ms Kelly. He found the accounts of the constables andMr Dixon to be corroborative of each other, particularly concerning the appellantbeing punched after he "hoicked" spittle into his mouth in the police car. Theappellant, however, complained that he was punched while he was resisting the effortsof the Constable to get him into the car. Meanwhile, Ms Kelly stated the appellantwas bleeding from the mouth when he came out of The Warehouse.[8] Judge Spear found the appellant to have resisted police based on the appellant'sown evidence. He noted there was a "very clear conflict" between the evidence of theappellant and Ms Kelly in regard to when the appellant was punched in the face anddid not accept the appellant's denials in respect of the assault charge. The Judge wassatisfied on the evidence of the constables that the appellant had assaulted a policeofficer, and accordingly convicted him of both charges.Principles on appeal[9] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied that the trial judge "erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.3 In this section, a trial includes a proceeding in which theappellant pleaded guilty.4[10] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.5SubmissionsAppellant's submissions[11] The appellant is again self-represented on appeal. In his written and his oralsubmissions before me, he makes the following complaints:(a) Mr Dixon's statement to police was simply a "mirrored" version of theconstables' evidence;(b) Constable Johnston acted in an unprofessional manner by writing theappellant's middle name as "Lee" instead of "Leslie" in his notebook;(c) he was "unlawfully arrested" for shoplifting (which he denies) and hewas punched in the mouth as a result;3 Section 232(4).4 Section 232(5).5 Criminal Procedure Act, ss 250(2) and 250(3).(d) the Judge was incorrect in his finding that the appellant spat atConstable Johnston (which he also denies); and(e) there is a security camera outside The Warehouse, but neither theprosecution nor The Warehouse would provide him with footage of theincident to conduct his defence.[12] The appellant does not provide any submissions regarding his appeal againstsentence. Before me orally the appellant indicated he had no issue now with hissentence and said that he had already completed it.Respondent's submissions[13] Mr Whitcombe, for the respondent, submits that no miscarriage of justice hasoccurred. The findings of the Judge were open to him on the evidence of the twoconstables, and were supported by the evidence of Mr Dixon. The evidence ofMs Kelly was at odds with all the other witnesses and was rightfully put to one side.The evidence of the appellant demonstrated that he had resisted Constable Johnston,and Mr Whitcombe submits the Judge was entitled to prefer the evidence of theconstables and Mr Dixon over the appellant's in relation to the assault charge.[14] Although the police should have provided Mr Dixon's contact details to theappellant, Mr Whitcombe contends that any prejudice that may have arisen wasameliorated by Mr Dixon giving evidence at trial and being available for questioning.[15] With regard to the sentence appeal, Mr Whitcombe refers to Clarke v Police,where the appeal Court upheld a sentence of 80 hours' community work for spittingin the face of a police officer.6 Given the appellant's previous record and the extentof the assault, being an attempt to knee the officer and spitting on him, Mr Whitcombesubmits the sentence imposed of 65 hours' community work could be consideredlenient.6 Clarke v Police [2015] NZHC 259.Analysis[16] I find no substance in the appellant's first two grounds of appeal. There is noevidence that Mr Dixon's statement to the police was false, and in any event, Mr Dixonwas further questioned in his examination by the appellant in Court.Constable Johnston allegedly miswriting the appellant's middle name similarly has nobearing on the appellant's guilt or otherwise.[17] The appellant submits he was unlawfully arrested for shoplifting, a chargewhich appears to have been dismissed or withdrawn. Judge Spear said to the appellantduring his cross-examination of Constable Johnston that the dismissal of that charge"may have well been a very fortunate outcome for you" given it appeared to him theelements of the offence had been made out. On the material before the Court, it isdifficult to reach any other view on this aspect here than that reached by the Judge.The appellant's arrest could therefore not be described as unlawful, despite the chargein question being dismissed or withdrawn.7[18] As for Constable Johnston punching the appellant, the Constable stated in courtthat he was protecting himself and his partner from the appellant's saliva as it couldhave contained diseases. This could well justify a defence under s 48 Crimes Act1961. Judge Spear did not deal with this aspect in his judgment, nor did he need to,given his factual finding that the punch occurred after the appellant assaulted theConstable. By that point the appellant had already committed the offences with whichhe was charged. I can find no issue with the Judge's factual conclusion about the orderin which those events occurred.[19] The appellant's fourth ground of appeal challenges the Judge's factual findingthat he spat at the Constable. The appellant advances no explanation as to why theJudge's conclusion was unreasonable based on the evidence. I consider the Judge hadample evidence upon which to make the finding he did. This was the evidence of thetwo constables and Mr Dixon. Furthermore, the appellant does not challenge thefinding that he attempted to knee the Constable, which also constitutes an assault. I7 Crimes Act 1961, s 315.do not consider the appellant has shown that there is a real risk here that the Judge'sassessment of the evidence has caused a miscarriage of justice.8[20] As to the final ground of appeal, the appellant contends that The Warehouse'ssecurity cameras would have recorded the incident outside the store, but he says hewas not given access to this footage by either the prosecution or The Warehouse.Mr Whitcombe for the Crown before me has confirmed that no such CCTV footagewas either provided to the Crown or was actually available. In his evidence at trial,Constable Johnston stated that he recalled talking to The Warehouse "about possibleCCTV footage from the carpark, which they said they did not have".[21] The appellant made no submissions regarding his appeal against sentence andindeed before me he indicated he had no issue now with the sentence. And, in anyevent, I can find no basis for that sentence appeal to be allowed. As evidenced by thecase referred to by Mr Whitcombe, the sentence of 65 hours' community service herewas certainly not manifestly excessive.9Conclusion[22] There is no basis in this case to conclude that Judge Spear erred in his factualfindings or that Mr Thompson's trial was unfair or that some other error occurred heresuch that a miscarriage of justice resulted.[23] For all these reasons Mr Thompson's appeals against both conviction andsentence are dismissed....................................................Gendall J8 The test for appealing a factual finding is a high one: Gotty v R [2017] NZCA 528 at [14]; Roestv R [2013] NZCA 547, [2014] 2 NZLR 296 at [56]; and R v Owen [2007] NZSC 102, [2008] 2NZLR 37 at [13].9 Clarke v Police, above n 6; see also Tanu v Police HC Auckland CRI-2009-404-155, 14 February2011.Solicitors:Raymond Donnelly & CoCopy to Appellant