BENTSON v POLICE [2022] NZHC 125

BENTSON v POLICE [2022] NZHC 125 [9 February 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2021-488-45[2022] NZHC 125BETWEEN KAHU-KURA VALDEMAR BENTSONAppellantAND NEW ZEALAND POLICERespondentHearing: 2 February 2022Counsel: C Muston for Appellant C S Taylor for RespondentJudgment: 9 February 2022JUDGMENT OF BREWER JThis judgment was delivered by me on 9 February 2022 at 1 pmRegistrar/Deputy RegistrarSolicitors:Christopher Muston (Whangārei) for AppellantMarsden Woods Inskip Smith (Whangārei) for RespondentIntroduction[1] On 20 May 2021, following a defended hearing, Judge K B de Ridder convicted Mr Bentson1 on one charge of assaulting a person with whom he was in a family relationship2 and one charge of breaching a protection order.3[2] Mr Bentson now appeals the convictions. He contends that there has been a miscarriage of justice because the Judge failed to direct himself on important legal principles and reached a decision which was against the weight of the evidence.[3] I must allow Mr Bentson's appeal if I am satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any other reason.Background[4] The evidence for the prosecution was straightforward. It was to the effect that on the evening of 19 May 2020 at the complainant's house she and the appellant argued. The complainant said that in the course of the argument the appellant picked her up and slammed her headfirst into the ground onto the carpeted floor. The complainant's evidence was that her shoulder took most of the impact of this but also the back of her head and neck. She described herself as being very stiff and her lip was cut. The complainant attributed the cut lip to her teeth impacting the lip when she hit the floor. She said she was very dazed.[5] The police were called and the complainant made a statement that night, although she did not sign it.[6] The complainant's brother gave evidence and said he went to the complainant's house having been telephoned by the complainant. He described the complainant as being semi-conscious and bleeding from the mouth. He said she sounded groggy and was not very clear and so he called the police and the ambulance.1 New Zealand Police v Bentson [2021] NZDC 9714 [District Court judgment].2 Crimes Act 1961, s 194A: carrying a maximum penalty of two years' imprisonment.3 Family Violence Act 2018, ss 90(a), 9 and 112(1)(a): carrying a maximum penalty of three years' imprisonment.[7] The final witness for the prosecution was Constable Paki. When he arrived at the complainant's house the ambulance was already there, as was the complainant's brother. Constable Paki described the complainant as not being very coherent and that she appeared dazed. The Constable observed an injury to the complainant's lower lip which he photographed and produced as an exhibit.[8] The appellant gave evidence. He accepted he was at the house that night and that there was an incident. But, in his version of events, the complainant was upset and he did his best to comfort her before she became aggressive and rushed at him. The appellant said in evidence that he did no more than push her away.[9] The defence argument was that there was a dispute between the appellant and the complainant's brother involving a motorcycle. The appellant alleged that the brother had stolen his motorcycle and there had been an earlier confrontation about that. It is common ground that there was such a dispute and there had been a confrontation. The defence case was that the dispute between the appellant and the complainant's brother caused the complainant to make a false statement to the police immediately after the incident on 19 May 2020 to use as leverage to force the appellant to withdraw his allegations about the motorcycle.[10] In support of this contention, the defence, in cross-examination, played recordings of telephone calls between the complainant's brother and the appellant and between the complainant and the appellant. These recordings were made after the 19 May 2020 incident.[11] The defence also put into evidence text messages the complainant sent to the appellant between June and August 2020.[12] Transcripts of the brother's three calls to the appellant record short bursts of invective-laden threats by the brother. The transcript of one recording appears to refer to the incident:Kahukura, why the f**k are you trying to keep on going to the f**ken cops and sh*t?! Why, you're the one that f**ken knocked out [the complainant], you're the f**ken cunt bro, now you trying to act like she's the bad person, soyou knock her out, you f**ken go to the cops, act like a little f**ken victim getting f**ken (?).[13] The recording of the telephone call by the complainant to the appellant was played to me in Court. The transcript is accurate. It is clear that the complainant wanted the appellant to withdraw the allegations made by the appellant to the police against the brother in respect of the motorcycle. In the course of the conversation, the appellant said very little. The complainant did most of the talking in a tone that was sad and weary but with an undercurrent of real anger. Relevant passages are:You know and getting the cops onto my brother, I told you, that um I've got a, I can go get an assault charge put on you, tomorrow if I want to. The Police have got my statement, I just need to pop in and sign it Kahukura. If you want to go and try and get the police onto my brother O whatever, whatever. Like why do you want to be like this? I could'a had assault charges on you. I could'a had you um you fired from your job by now but yet you're trying a, you're trying to act like you're the little victim (inaudible). Like why are you being like this?The appeal[14] The first ground of appeal is that the Judge did not refer to the presumption of innocence.[15] There is nothing in this point. The presumption of innocence underpins the prosecution's obligation to prove its case, and to do so beyond reasonable doubt. If the tribunal of fact is a jury then the trial judge should be explicit on this point because the jury is composed of lay persons. Judge de Ridder is a very experienced trial judge. Towards the beginning of his judgment he said:[4] As in all prosecutions, the burden of proving the essential elements of the charges rests on the prosecution and the prosecution must prove beyond reasonable doubt that those elements have been established.[16] As I will come to shortly, the Judge returned later in the judgment to this fundamental point with reference to the effect of the appellant giving evidence.[17] There is no risk of a miscarriage of justice because the Judge did not explicitly refer to the presumption of innocence.[18] The second ground of appeal is that the Judge did not direct himself about the effect of the appellant giving evidence. In particular, "he did not give himself the tripartite direction".[19] I do not accept this point.[20] The Judge clearly put the fact that the appellant gave evidence into its proper legal perspective:[18] Mr Bentson gave evidence. Of course, he was not required to do so. There is no obligation on him to prove anything. It is for the prosecution, as I have said, to prove beyond reasonable doubt these charges.[21] The defence is clearly, as I have just said, that Mr [Bentson] did not pick [the complainant] up and drop her onto the floor in the manner she says; therefore, it amounts to a false allegation on her part. For the prosecution to prove these charges, I have to accept what [the complainant] says and, therefore, her credibility and reliability is clearly in issue.[21] The "tripartite direction" is merely a means of making it clear that even though a defendant has given evidence, that does not alter the burden on the prosecution to prove its case beyond reasonable doubt. Even if the tribunal of fact rejects a defendant's evidence, the prosecution must nevertheless prove its case. The Judge, of course, understood that.[22] The remaining grounds of appeal, together, can be summarised as contending that the Judge did not properly take into account the dispute between the complainant's brother and the appellant relating to the motorcycle in deciding the contest of credibility between the complainant and the appellant. Further, the Judge did not give sufficient reasons for his acceptance of the complainant's evidence and his rejection of the appellant's evidence.[23] The need to give reasons is well-established.4 Indeed, the Supreme Court inSena v Police observed that s 232(2)(b) of the Criminal Procedure Act 2011 is4 In the context of Judge-alone trials, s 106(2) of the Criminal Procedure Act 2011 expressly requires the court to give reasons for its decision.premised on the assumption that the requirement for reasons has been satisfied.5While this standard is not inflexible, and some imperfection of expression is "practically unavoidable",6 the trial judge is required to:7 show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge's assessment of the evidence and why that assessment resulted in a conviction.[24] In my view, the Judge did take into account the dispute between the complainant's brother and the appellant as reflected in the text messages and recorded telephone conversations put into evidence. The Judge said:[6] It is very clear that there had been ongoing serious difficulties in the relationship for some time between the parties.[25] The Judge specifically referred to the cross-examination of the complainant on the various texts she had sent to the appellant between 1 June 2020 and 4 August 2020. The Judge quoted two of them which he said were of particular relevance.8[26] The Judge also referred to the relevant content of the telephone call from the complainant to the appellant on 19 June 2020.[27] The Judge, as quoted above, referred specifically to the defence case that the complainant had made a false allegation, and specifically directed himself that for the prosecution to prove the charges he would have to accept the complainant's account of what happened. The Judge said:[22] It appears that relationship property issues erupted three days before this alleged assault, particularly in relation to a Harley Davidson motorcycle. As I understand it, that particular dispute is still going on. Matters between [the complainant] and Mr Bentson rapidly deteriorated as evidenced by the evidence of the texts sent by her and the phone call she made. Some of the content of those texts and the phone call does her no credit whatsoever, but the essence of the defence appears to be that [the5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [36].6 At [37].7 At [36].8 District Court judgment, above n 1, at [11]–[12].complainant] has fabricated her complaint in relation to this assault to assist her in relationship and property disputes, particularly in relation to the motorbike, although it was not specifically and categorically put to [the complainant] in those plain terms that that is what she had done. But it is clear from the general tenor and course of the cross-examination that that essentially is the assertion for the defence.[28] The Judge based his decision on the corroborating evidence of the brother and Constable Paki as to the condition of the complainant shortly after the incident. In particular, that the complainant was "not very coherent" and the injury to her lip.9 The Judge found, as he was entitled to find, that this evidence was consistent with the complainant's account as to what had happened but inconsistent with the appellant's evidence that he simply pushed the complainant away.Decision[29] This was a straightforward case. The Judge had the benefit of hearing the witnesses give evidence and he was well aware that this was a credibility case and that the onus was on the prosecution to prove beyond reasonable doubt that the complainant's description of events was accurate. The Judge did not make subjective appreciations of the witnesses. Instead, he found that the evidence of the complainant's brother and Constable Paki materially corroborated the complainant's account and was materially inconsistent with the evidence of the appellant. The Judge did not have to elaborate on his reasoning. The basis for his finding is made clear.[30] The Judge took into account the dispute between the complainant's brother and the appellant. Although the Judge did not say so, it seems material that the text messages and telephone recordings produced by the appellant were made after the incident. There is an inference available from the passages quoted at [12] and [13]that the brother and the complainant were interacting with the appellant on the basis that the assault had occurred.[31] The Judge was entitled to reject the appellant's evidence and to find the prosecution case proved on the evidence given by the complainant, her brother and Constable Paki. I do not identify a miscarriage of justice.9 At [25].[32] The appeal is dismissed.________________________________Brewer J