GSB v POLICE [2023] NZHC 2690

GSB v POLICE [2023] NZHC 2690 [27 September 2023]ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF THE CHILDREN.IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2023-443-029[2023] NZHC 2690BETWEEN GSBAppellantAND NEW ZEALAND POLICERespondentHearing: 26 September 2023Appearances: A R Laurenson for AppellantR L Hicklin for RespondentJudgment: 27 September 2023JUDGMENT OF GRICE J(Appeal against conviction)Introduction[1] On 6 July 2023, following a Judge-alone hearing held on 5 July 2023 beforeJudge Greig, the appellant, GSB,1 was convicted2 of assault on a person in a familyrelationship,3 and assaulting a child.4 On 6 July 2023, the appellant was sentenced tocome up for sentence if called upon within the next 12 months, and protection orderswere imposed in favour of the victims of the offending.1 The appellant's name has been anonymised to prevent identification of the children.2 Police v [GSB] [2023] NZDC 14269.3 Crimes Act 1961, s 194A — maximum penalty two years' imprisonment.4 Section 194(a) — maximum penalty two years' imprisonment.[2] The two charges relate to assaults on two boys, aged 14 and 13 respectively atthe time, who were effectively his stepchildren at the time.[3] The appellant now appeals his convictions on both charges on the grounds thatthe Judge erred in his assessment of the evidence to such an extent that a miscarriageof justice occurred. No appeal is made against the sentence.[4] The charge in relation to assault on a person in a family relationship relates tothe older boy, who said the appellant forcefully pulled him off his younger brotherwhile they were wrestling on the floor. The appellant does not deny that he did so butsays he was acting to protect the younger boy and was therefore acting in defence ofanother (which is a defence to the charge pursuant to s 48 of the Crimes Act 1961).[5] The charge in relation to assaulting a child relates to the younger boy, whoalleged that the appellant assaulted him on 14 September 2022 by pushing him out ofthe bathroom and holding him up against a wall for approximately 20 seconds. Theappellant submits there was insufficient evidence to convict the appellant, given thesignificant inconsistencies between the evidence of the two boys and their mother.SubmissionsAppellant's submissions[6] In respect of the charge involving the older boy, the appellant submits therewas no evidential foundation for the Judge to conclude that the reason the appellantacted in the way he did in pulling the older boy off his brother was because he wasannoyed at what was happening. The appellant submits his actions were clearly thoseof a person acting in defence of another and using reasonable force in thecircumstances as he perceived them to be, and the appellant should therefore havebeen found not guilty on that charge.[7] In respect of the charge involving the younger boy, the appellant submits therewas insufficient evidence for the Judge to reach the conclusion he did. The appellantsays the onus of proof is on the police to prove the charge beyond reasonable doubtand given all the evidence, there must have been a reasonable doubt as to whatoccurred, and that reasonable doubt should have been given to the appellant, whoshould therefore have been acquitted on the charge.[8] The grounds of appeal largely relate to the sufficiency of evidence and theweight put on the relevant evidence.Respondent's submissions[9] The respondent opposes the appeal and submits the appeal should bedismissed. The respondent submits there was no error in the Judge's assessment ofthe evidence in respect of either charge and the appellant has not identified any otherreason why a miscarriage of justice has occurred.Approach to appeal[10] The Court must allow an appeal of a decision in a Judge-alone trial if it issatisfied that the Judge erred in their assessment of the evidence to such an extent thata miscarriage of justice has occurred, or a miscarriage of justice has occurred for anyreason.5[11] A "miscarriage of justice" is any error, irregularity, or occurrence in or inrelation to or affecting the trial that (a) has created a real risk that the outcome of thetrial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity.6 Amiscarriage of justice is "more than an inconsequential or immaterial mistake orirregularity".7 The errors or irregularities must depart from good practice in a mannerthat is "so gross, or so persistent, or so prejudicial, or so irremediable" that an appellateCourt must condemn the trial as unfair and quash the decision.8[12] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".9 The appellant does not have to establish that the verdict5 Criminal Procedure Act 2011, s 232(2)(b)–(c).6 Section 232(4).7 Matenga v R [2009] NZSC 18 at [30].8 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002]UKPC 19, [2002] 1 WLR 2237 at [28].9 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].was "actually unsafe" but rather that there is a real possibility the verdict would beunsafe.10 "[S]omething more" than a simple disagreement with a Judge's factualassessment is required to meet the "real risk" test.11[13] In an appeal from a Judge-alone trial, the appellate court must form its ownindependent judgment on the merits of the appeal following the approach in Austin,Nichols.12 If an appellate court comes to a different view on the evidence, the Judgenecessarily will have erred and the appeal must be allowed.13 However, it is not therole of a court on appeal to consider the issues de novo. The appellant bears the onusof persuading the appellate court to reach a different conclusion, and in dischargingthat onus must identify the respects in which the judgment under appeal is said to bein error.14[14] Additionally, in determining whether the judgment was wrong, the appellatecourt "must take into account any advantages a trial judge may have had."15 As aresult, where the challenge is to credibility findings based on contested oral evidence,an appellate court will exercise "'customary' caution", for two main reasons:16(a) a slow-paced trial, at which the evidence emerges gradually, provides agood opportunity for evaluating the strengths and weaknesses of a case,and allows a Judge the advantage of being able to form a view as towhat sort of people the witnesses are;17 and(b) a trial Judge is likely to be much better placed than an appellate Judgeto determine contested questions of fact based on contested oralevidence.1810 At [110].11 Gotty v R [2017] NZCA 528 at [15].12 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v StichtingLodestar [2007] NZSC 103, [2008] 2 NZLR 141.13 At [38].14 At [38].15 At [38].16 At [38], citing Austin, Nichols, above n 12, at [13].17 At [39].18 At [40].[15] An appeal court will only interfere with the trial Judge's finding of fact inexceptional circumstances.19Analysis[16] The appellant appeals his convictions on both charges on the ground that theJudge erred in his assessment of the evidence to such an extent that a miscarriage ofjustice occurred. For convenience, I address the assault in relation to the younger boyfirst, before turning to the assault in relation to the older boy.Assault in relation to the younger boy[17] The single issue in dispute was whether or not the appellant had actuallyassaulted him. That is, did the appellant apply force to the boy?[18] Given the inconsistencies of the evidence of the appellant, the appellant'spartner, the older boy and the younger boy, the Judge had to make factualdeterminations on the credibility and reliability of these witnesses. The Judge rejectedthe evidence of the appellant and the appellant's partner and accepted the evidence ofthe older boy over that of the younger boy.[19] The Judge rejected the evidence of the appellant, noting his ability to remembersmall details at trial despite having "zero recollection" of the events nine monthsearlier when first interviewed. In respect of the appellant's evidence, the Judge noted:[47] [The appellant] denied laying hands on [the younger boy] at all,attributing whatever mishap befell [the younger boy] as being due to [theyounger boy] slipping as [the younger boy] was trying hard to get out of thebathroom. He agreed that he had made a move towards [the younger boy] butdenied grabbing him and throwing him against the wall [20] The Judge then noted the appellant "agreed, however, that [the younger boy]had exited the bathroom going backwards, something that was not consistent with hisearlier explanation."20 Due to these inconsistencies, the Judge rejected the appellant'sevidence.19 Sullivan v Police HC Auckland CRI-2008-404-142, 2 October 2008 at [30]; and Wray v PoliceHC Hamilton CRI-2006-419-162, 3 May 2007.20 At [47].[21] The Judge rejected the appellant's partner's evidence on the basis that she wastrying to protect her partner. The Judge referred to strange elements of her evidence,such as odd circumstances surrounding photographs which were produced by theappellant's partner only at trial allegedly showing injuries inflicted on her by the olderboy.[22] The Judge noted the appellant's partner denied seeing anything that couldcorroborate the younger boy's version or the older boy's version of the assault on theyounger boy.21 The Judge noted that "very strangely, as was brought out incross-examination, she did not go and check on [the younger boy] despite having beentold that his brother had just been strangling him."22 The Judge said he was "notprepared to accept a word that [the appellant's partner] said",23 concluding:[56] I do not believe a word that [the appellant's partner] said. She wasclearly trying to protect her partner and in doing so was prepared to throw herchildren to the wolves.[23] Mr Laurenson for the appellant submitted that it was the appellant's partner'sevidence in the circumstances which should have been accepted, as she was as closeas the older boy. However, the Judge was in a good position to assess the evidenceand in my view did not err in rejecting the evidence of either the appellant or theappellant's partner, for the reasons he gave. Due to the internal inconsistencies of theevidence of both the appellant and the appellant's partner, the Judge was in a positionto make an evaluation that their evidence was not credible and reliable.[24] In respect of the evidence of the older boy and the younger boy, the Judgeexplicitly noted there was an inconsistency in the account of both boys. Ultimatelythe Judge accepted the older boy's version rather than the younger boy's because theolder boy was an objective observer from a very short distance away.[25] The Judge acknowledged the differences in the two boys' descriptions. He said:[27] [The older boy's] description of the event was different to [theyounger boy's] description. He saw [the younger boy] being pushed out ofthe bathroom, although it is clear that he could only see [the appellant's]21 At [54].22 At [54].23 At [53].hands, not his body, but he said that he could see [the appellant] had hold of[the younger boy] by the collar as he was pushing him out [26] The Judge then noted:[31] There was a clear inconsistency between the boys as to the assault on[the younger boy]. [The older boy], for example, did not see [the youngerboy] being held up off the ground against the wall. He was clear that [theyounger boy] had banged his head on the wall as he was pushed out of thebathroom.[27] Later, again, the Judge stated:[59] I do need to address the conflict between [the older boy's] evidenceand [the younger boy's] evidence. I had the advantage of seeing them giveevidence as well as of seeing [the appellant] give evidence. [The youngerboy] and [the older boy] impressed me as straightforward and honest youngmen. It was clear to me that they had not put their heads together to invent astory and an example is in relation to the assault involving [the younger boy]or the incident involving [the younger boy], were [sic] there were somereasonably significant differences.[28] The Judge noted that "[b]oth boys made concessions that teenagers mightordinarily find uncomfortable in making", had been able to add detail to theirnarratives, and in addition, that "[p]erhaps the biggest concession that [the older boy]made was his opening statement to the police" that the appellant had thought they hadbeen fighting, which "clearly sets up the defence of self-defence or defence of anotherby [the appellant]."24[29] The Judge noted although both boys wanted to go and live with their father,they would not make up allegations to achieve that. They had a close relationship withtheir father and could rely on their father to do what was necessary for them. For thatreason, the Judge accepted the boys' evidence.25[30] The Judge was satisfied that the discrepancy in the evidence of the two boyswas due to "the rapid events, the hard blow that [the younger boy] received coupledwith the shock that this must have caused him."2624 At [60] and [63].25 At [65].26 At [66].[31] I am satisfied that the Judge correctly analysed the boys' evidence, includingthe inconsistencies between them, and made no error in preferring the evidence of theolder boy. The Judge's finding for the reason for the discrepancy is supported by theyounger boy's description of the effect of the alleged assault on him:I was really nervous scared and like a it was kinda like a shock and I didn'teven know what to do um I kinda like panic yeah almost like had a panic attack I was really shaky [32] The older boy gave consistent evidence of force being applied by the appellantto the younger boy. His evidence throughout was that he saw the appellant grabbingthe younger boy by his collar and pushing the younger boy out of the bathroom so thatthe younger boy hit his shoulder against the door frame and his head against the wall.In cross-examination he confirmed he could see the appellant's hand and concededthat he could not completely see the appellant push the younger boy. The Judge madeno error in preferring the evidence of the older boy.[33] The Judge considered the boys' evidence could properly be regarded aspropensity evidence, as demonstrating a propensity to behave in an aggressive andviolent way in a family environment and that he had behaved aggressively towards theboys in the past. However, the Judge appropriately reminded himself that "it does notfollow from that that he must have committed these assaults."27[34] The Judge had the advantage of seeing the witnesses first-hand and makingevaluations of their evidence in person. A finding that the appellant had actuallyassaulted the younger boy was available on the evidence of the older boy. The Judgedid not err in finding this charge was made out.Assault in relation to the older boy[35] In respect of this charge, the sole issue was whether the appellant's use of forcewas reasonable in the circumstances as he perceived them to be.27 At [58].[36] Again the Judge had to make a determination on the credibility and reliabilityof the witnesses, and much of the reasoning in respect of the charge above applies tothis charge as well.[37] In particular, in respect of the appellant's evidence, the Judge noted:[43] In [his police evidential interview], [the appellant] denied assaulting[the younger boy] and was unable to recall the incident where he was allegedto have assaulted [the older boy]. He said that he had zero recollection of that.He described the boys as being "full of shit" [38] When the appellant gave evidence in court, the Judge noted that, by contrast:[45] In his evidence, he was able to recall the incident with [the older boy].He said that he had had to work hard to recall it. He denied that his versionof events had been put together after he had read the disclosure evidence anddenied that he had overreacted to the boys playfighting because he wasstressed by the fighting [39] The Judge remarked: "Despite having zero recollection of the incident whenasked about [it] by the police nine months ago, he could now remember smalldetails".28 The Judge also noted that the appellant had been highly aggressive in hispolice interview but much more polite and reserved in court.[40] I am satisfied that the Judge made no error in rejecting the appellant's evidence,in view of the inability to recollect details at the police interview yet when he gaveevidence he could recall even minor details. Mr Laurenson submits on appeal that thisis explained as at the police interview the appellant did know what the police weretalking about, and it was later on reflection that he could do so. While that was anexplanation advanced for the appellant, the Judge made no error in reaching theconclusion which he did as to the appellant's credibility in the circumstances.[41] As Mr Laurenson pointed out in his submissions, the issue was what theappellant's understanding was. However, it was open on the evidence for the Judgeto conclude that the appellant knew the boys were playfighting. This was alsosupported by the evidence of the boys. The Judge had found the boys to bestraightforward and honest witnesses, and the older boy had described how they would28 At [46].wrestle every Tuesday and Thursday night and the appellant knew that they wrestled.Importantly, as the Judge noted, the older boy had stated that after the assault, theappellant did not see if the younger boy was okay.[42] Moreover, the Judge noted:29 [the older boy] emphatically denied making all of this up so that he couldgo and live with his father, although he did agree that this was something thathe very much wanted to do by that time.[43] Again, the Judge considered the boys' evidence could properly be regarded aspropensity evidence, as demonstrating a propensity to behave in an aggressive andviolent way in a family environment and that he had behaved aggressively towards theboys in the past, but reminded himself that it did not follow from that that he musthave committed the assault.30[44] I agree, as the appellant submits, that the conclusion the Judge made that theappellant had assaulted the older boy out of annoyance does not appear to be supportedby the evidence. However, that was not the question to be determined at first instanceand is not the question on appeal. The question, for the appellant's defence of defenceof another, is whether the appellant believed the younger boy to be in danger at thetime. Given the evidence, particularly the appellant's lack of concern for the youngerboy subsequently to the assault, the conclusion drawn by the Judge, therefore, that theappellant did not actually believe the younger boy was in danger, was one that theJudge was reasonably entitled to draw based on the evidence.[45] As the Crown notes, even if the appellant did believe the younger boy to be indanger, the use of force in such circumstances was clearly excessive. The appellantaccepted that he had lifted the older boy from a prone position on the ground andthrown him back one to two metres. All that was necessary was for the older boy'sarm or hands to be removed from the younger boy's neck. Lifting and throwing theolder boy was clearly excessive, even if the appellant did believe the younger boy tobe in danger, which is far from clear.29 At [34].30 At [58].[46] Again it must be noted that the Judge had the advantage of evaluating theevidence and drawing conclusions based on it at trial first-hand. I do not consider theJudge made any error in his evaluation of the credibility of the witnesses or theevidence in this case. I am satisfied the Judge was entitled to draw the conclusions hedid based on the evidence, in finding this charge to be proven.Conclusion[47] For these reasons, I am satisfied the Judge made no error in finding that theappellant was guilty of the two charges.[48] In respect of the assault on the younger boy, I do not consider the Judge madeany error in rejecting the evidence of the appellant and the appellant's partner, and inaccepting the evidence of the two boys, preferring that of the older boy over that ofthe younger boy, in finding that the appellant had actually assaulted the younger boy.[49] In respect of the assault on the older boy, I am satisfied the Judge made no errorin rejecting the appellant's evidence and accepting the evidence of the two boys, infinding that the force used by the appellant was excessive, even in the circumstancesas he claimed to have perceived them to be.[50] I do not consider there is any real risk that the outcome of the trial was affected,or any miscarriage of justice.Result[51] The appellant's appeal against his convictions is dismissed.____________________Grice JSolicitor:C & M Legal, New Plymouth