NOONE v NEW ZEALAND POLICE [2020] NZHC 1387

NOONE v NEW ZEALAND POLICE [2020] NZHC 1387 [18 June 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000016[2020] NZHC 1387BETWEEN KATARINA NOONEAppellantAND NEW ZEALAND POLICERespondentHearing: 18 June 2020Appearances: F King and M Dempster for AppellantB T Vaili for RespondentJudgment: 18 June 2020(ORAL) JUDGMENT OF LANG J[on appeal for leave to appeal out of time]Solicitors:Crown Solicitor, HamiltonCounsel:F King, Hamilton[1] Ms Noone faced a charge of common assault in the District Court.1 Shepleaded not guilty, but after a defended hearing on 5 September 2018 Judge K B FSaunders found the charge proved beyond reasonable doubt. She fined Ms Noone thesum of $500.[2] Fifteen months later, on 22 February 2020, Ms Noone applied for leave toappeal against conviction out of time. The Crown opposes leave being granted.[3] The issue of whether leave should be granted is complicated in the present caseby the fact that there is now no record of either the evidence given during the hearingin the District Court or the Judge's decision. As a result, and had the appeal been filedwithin time, an order would usually be made remitting the charge to the District Courtfor rehearing. The Crown submits this is not appropriate in the present case given theunexplained delay that has occurred and says the application for leave to appeal out oftime should be dismissed.Relevant principles[4] In R v Knight, the Court of Appeal observed that the Court's discretion to grantleave to appeal out of time is governed by the interests of justice in each case.2 It isfor the appellant to provide the Court with sufficient information to establish that agrant of leave is in the interests of justice.3[5] In R v Lee, the Court of Appeal affirmed the test referred to in Knight anddescribed the following factors as being relevant:4 the wider interests of society in the finality of decisions, the strength of theproposed appeal, whether the liberty of the subject is involved, the practicalutility of any remedy sought, the extent of the impact on others affected andon the administration of justice, and any prejudice to the Crown.[6] In the present case the Court is obviously hampered in determining whetherthe interests of justice require leave to be granted because of the absence of any1 Summary Offences Act 1981, s 9.2 R v Knight [1998] 1 NZLR 583 (CA) at 587.3 R v Davis [2007] NZCA 577 at [13].4 R v Lee [2006] 3 NZLR 42 (CA) at [99].transcript of evidence and reasons for the Judge's decision. Counsel have been ableto piece together, however, the relevant evidence that was given at the hearing. Fromthe prosecution perspective, this consists of the evidence of the complainant, MrHodgson, and that of Constable Sittauer, a police officer who attended the sceneshortly after the incident giving rise to the charge. The prosecution evidence iscontained in briefs of evidence that counsel agree formed the basis of the evidencegiven at trial.[7] Ms Noone's evidence is encapsulated in a brief of evidence her trial counsel,Mr Jepson, prepared prior to the hearing in the District Court. Mr Jepson has swornan affidavit confirming Ms Noone gave evidence along the lines contained in her briefof evidence.[8] Notably, Ms Noone has not filed any affidavit in support of the application.She has not sought to provide any explanation for why she took no action to challengethe Judge's decision between September 2018 and January 2020. She relies insteadon an affidavit sworn by Mr Jepson. Mr Jepson says that, although he has no file noteregarding his advice post trial and the possibility of an appeal, he recalls he advisedMs Noone "to put these matters behind her". Importantly, however, there is noevidence from Ms Noone to suggest she was uncomfortable with the Judge's decisionduring the 15 months that passed between the date of the hearing and the filing of theapplication for extension of time to appeal. It appears she took her counsel's adviceand put the matter behind her.[9] I propose to deal with the merits of the appeal by considering the evidence suchas it is and reaching my own decision as to whether the prosecution was able to provethe charge beyond reasonable doubt.The evidence[10] Ms Noone resides at a property adjoining the house occupied by a Mrs Bellingand her partner, Mr Hodgson. Ms Noone's brief of evidence makes it clear that therelationship between the two households was far from harmonious.[11] Mr Hodgson's evidence is to be found on notebook entries made by ConstableSittauer after he arrived at the scene. These record that Mr Hodgson was mowing thelawn of his address at about 4.10 pm on the day in question. He said he was notwearing any shirt because of the heat. He then said:All of a sudden I felt a large whack on the right side on my back. This whackreally hurt. I turned around and saw Katarina Noone, the elderly neighbourrunning away with a white bag in her hands. It looked heavy to me. It feltlike rocks were inside it. She ran right around the fence into her house andshut the door. I carried on mowing and I saw she had appeared again. I wasright beside her fence again mowing. This time she had a large tree branch.She took a swing at me but it broke in mid-air and missed me. If it hadn'tbroken it would have hit me.[12] Mr Hodgson then told the police Ms Noone had begun verbally abusing himand that he responded in kind and told her the police were on the way. She replied"Good. It's all on camera". At or about that point Mr Hodgson called the police.[13] The police arrived at Mr Hodgson's address at approximately 4.30 pm.Constable Sittauer noticed that Mr Hodgson was not wearing a shirt. Mr Hodgsontold him what had happened, and the constable made notebook entries of thisconversation. During this period the constable was able to observe a large red markon the right-hand side of Mr Hodgson's back. Mr Hodgson told the constable this wasan injury left when he was struck by an object whilst mowing his lawn. The constabletook several photographs of the mark on his cellphone and these were produced inevidence at the hearing.[14] Constable Sittauer then went to Ms Noone's address. He said she wasextremely animated and angry, and told the police Mr Hodgson had damaged herfence. She was acting in an aggressive manner and at one stage waved a crutch atthem. Constable Sittauer asked her at that point if she was threatening him with thecrutch. The officers were also required to tell Ms Noone to calm down on severaloccasions. Ms Noone denied assaulting Mr Hodgson.[15] Constable Sittauer then took Ms Noone to the police station. He initially toldher that he proposed to release her with a pre-charge warning. She said she did notwant this to happen and that she wanted the matter to go to the court. He thereforearrested her and charged her with common assault. He then released her on bail.[16] Ms Noone's evidence is to quite different effect. She says she was inside heraddress when she heard a loud cracking sound outside. She looked out her windowand saw that Mr Hodgson had fallen over her fence and damaged it. She then wentout of the property to confront him and found him urinating in the bushes outside heraddress. She then said:11. I walked up to Hodgson. I ignored the fact that he had his penis in hishand and tapped him on his shoulder and said "why did you break my fence?"He acted startled and surprised. He must have been near finishing relievinghimself and he put his penis away, he grabbed the temporary fence that I haderected with his left hand and raised his right hand as if he was going to hitme. The fence is really only temporary and where it was attached to the treepulled off and pulled back a bit and he lost his balance slightly and I justwalked away. I went back into my house.[17] Ms Noone said she then called Housing New Zealand to let it know what hadhappened to the fence. A short time later the police turned up. She said she was spokento by a constable and arrested and charged with assault.The Judge's decision[18] The Judge was obviously faced with conflicting evidence by Mr Hodgson onone hand and Ms Noone on the other. She was therefore required to make adetermination as to the credibility of each. If she accepted the evidence given by MrHodgson as to how the mark on his back had been caused, the charge would be provedbeyond reasonable doubt. This would only occur if Mr Hodgson's evidence satisfiedthe Judge as to guilt beyond reasonable doubt. If, however, Ms Noone's evidence leftthe Judge in a state of reasonable doubt she was bound to acquit.[19] Mr Jepson says in his affidavit that the Judge was "swayed" by Mr Hodgson'sversion of events because it was supported by the photograph of the mark on his backand there was no other obvious explanation as to how that could have been caused.Decision[20] On Ms Noone's behalf Mr King submits several pieces of evidence suggestthat Mr Hodgson either embellished his evidence or was otherwise an unreliablewitness. He points out that Ms Noone was 72 years old at the time of the incident.Clearly, she must have had problems with mobility because she was in possession ofa crutch when the police arrived. In those circumstances Mr King submits MrHodgson's evidence that he saw Ms Noone running away is improbable to say theleast. He also submits that other aspects of Mr Hodgson's evidence are unreliable.[21] On the other hand, several factors support the prosecution case that Ms Noonestruck Mr Hodgson on the back and thereby caused the injury that the constable sawand photographed. First, Ms Noone was obviously angry at Mr Hodgson when thepolice spoke to her on the day in question. Secondly, something caused Mr Hodgsonto call the police as a result of what happened to him whilst he was mowing the lawn.It is difficult to see why he would have taken that step on the basis of the events asdescribed by Ms Noone. Thirdly, the mark on Mr Hodgson's back was clearly visibleto the constable and he took photographs of it. This provided supporting evidence forthe fact that he had been recently injured. Given those factors I do not consider itsurprising that the Judge accepted Mr Hodgson's version of events rather than MsNoone's bare denial. I am satisfied the Judge was correct to find the charge provedbeyond reasonable doubt.[22] This means there is no merit to the proposed appeal. Furthermore, and as Ihave already recorded, Ms Noone has failed to give an adequate explanation for thelengthy delay that has occurred in filing the appeal. In addition, any re-hearing in theDistrict Court would be difficult to run at this point because of the fact that thememories of the witnesses would have dimmed since the events giving rise to thecharge. Finally, the conviction resulted in Ms Noone receiving a modest fine ratherthan any loss of her liberty. All these factors mean it is not in the interests of justicefor Ms Noone to be granted leave to appeal out of time.Result[23] The application for leave to appeal out of time is dismissed.Lang J