MCASEY v POLICE [2020] NZHC 2408

MCASEY v POLICE [2020] NZHC 2408 [16 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-274[2020] NZHC 2408BETWEEN LORRAINE GAIL MCASEYAppellantAND NEW ZEALAND POLICERespondentHearing: 7 September 2020Appearances: S D Withers & V I Tava for AppellantC R Purdon for RespondentJudgment: 16 September 2020JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 16 September 2020 at 3:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Ms Lorraine McAsey (the appellant) appeals a decision of District Court JudgeB A Gibson finding her guilty and convicting her of assaulting her neighbour Mrs ToniKennedy1 (Mrs Kennedy) on 17 April 2019.2 The charge against the appellant waslaid under s 9 of the Summary Offences Act 1981. In delivering his decision of 24June 2020, Judge Gibson said that he had no doubt that the appellant had struck MrsKennedy on her elbow with a torch as Mrs Kennedy had described in her evidence,and he was accordingly satisfied beyond reasonable doubt that the appellant was guiltyof the assault.[2] The assault was alleged to have occurred at around 8.45 pm on the night of 17April 2019 on a driveway shared by the appellant and her next door neighbours, MrsToni Kennedy and her husband Michael. The incident was recorded by a CCTVcamera located on the appellant's residence. In his decision the Judge referring to theCCTV said that "the film is of assistance in showing what happened." 3[3] The appellant appeals on the ground that the Judge erred in his assessment ofthe CCTV evidence and of the oral evidence. The appellant says that the CCTVimages show Mrs Kennedy using her right arm to strike the top of the appellant's leftarm causing the appellant's arm and the torch she was holding in her left hand to movein a downwards direction so as to hit Mrs Kennedy on her left arm. The appellantcontends that she did not intentionally apply force to Mrs Kennedy, and says that anyphysical contact she made with her was involuntary.Approach on appeal against conviction[4] The appellant brings her appeal against conviction pursuant to s 229 of theCriminal Procedure Act 2011. The first appeal court must allow an appeal in the caseof a Judge-alone trial if satisfied that the Judge erred in his or her assessment of theevidence to such an extent that a miscarriage of justice has occurred, or a miscarriage1 At the time of the alleged assault and trial in the District Court, Mrs Kennedy was known as MsToni Harris.2 Police v McAsey [2020] NZDC 120583 At [5]of justice has occurred for any reason.4 A miscarriage of justice is defined as meaningany error, irregularity, or occurrence in or in relation to or affecting the trial that hascreated a real risk that the outcome of the trial was affected or that has resulted in anunfair trial, or the trial was a nullity.5[5] The Supreme Court in Sena v New Zealand Police6 has confirmed that theapproach adopted in Austin, Nichols & Co Inc v Stichting Lodestar7 in respect of civilappeals conducted by way of re-hearing is applicable to criminal appeals unders 232(2)(b). The Supreme Court said:8If an appellate court comes to a different view on the evidence, the trial judgenecessarily will have erred and the appeal must be allowed. But to the extentthat [counsel] was suggesting that the role of an appellate court is to considerthe issues de novo as if there had been no hearing at first instance, then we donot agree. Since it is an appeal, it is for the appellant to show that an error hasbeen made. Further, in assessing whether there has been an error, an appellatecourt must take into account any advantages a trial judge may have had.Because of this, where the challenge is to credibility findings based oncontested oral evidence, an appellate court will exercise "customary' caution".The Judge's decision[6] In his decision the Judge accepted the accounts of the incident given by Mr andMrs Kennedy. Referring to the CCTV recording, he said:[3] It can be seen in the camera footage that [the appellant] raised the torch,which seemed to be a reasonably large torch, very close to [Mrs Kennedy's]face, approximately one foot from her face. [Mrs Kennedy's] evidence [was]that the torch was shone on her face and that can be seen on the CCTV. [MrsKennedy] said in evidence, and I accept, that she asked the defendant to movethe torch and what the defendant then did, according to [Mrs Kennedy], wasswing it and hit her on her left elbow.SubmissionsFor the appellant[7] Mr Withers for the appellant submits that the Judge erred in finding that thecopy of the CCTV recording played at the appellant's trial assisted the prosecution4 Criminal Procedure Act 2011, s 232(2)(b).5 Section 232(4).6 Sena v New Zealand Police [2019] NZSC 55 at [32].7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.8 Sena v New Zealand Police, above n 6, at [38].case.9 Counsel submits that the CCTV recording contradicts the evidence of theprosecution witnesses in a material way, as it shows that the first and only strike ismade by the complainant, Mrs Kennedy herself. Mr Withers submits that the CCTVdoes not show the appellant using the torch in her left hand to strike Mrs Kennedy. Hesubmits that the CCTV shows that immediately prior to the alleged assault,Mrs Kennedy raised her right arm above the appellant's and then struck the appellant'sleft arm with a downwards motion. Counsel submits that Mrs Kennedy's hand can beseen on the CCTV "in relief against the backdrop of [Mrs Kennedy's] face which isilluminated by the torch held by the appellant." Mr Withers submits that there arereasonable grounds to suggest that Mrs Kennedy's act of doing that caused the torchbeing held by the appellant in her left hand to strike Mrs Kennedy's own left arm.[8] Furthermore, says Mr Withers, the CCTV shows the torch beam being held onMrs Kennedy's face for a full two seconds before she strikes down on the appellant'sarm causing the torch to hit her own left arm. He submits that this is quite contrary tothe Judge's finding that the appellant had raised the torch up to strike Mrs Kennedy aswas described by the prosecution witness Ms Caldwell.[9] Mr Withers says that the CCTV images show that immediately following MrsKennedy's downward striking of the appellant's left arm, a struggle between the twowomen over possession of the torch ensued, before Mr Kennedy intervened anddragged the appellant onto the ground.[10] Mr Withers submits that the prosecution witnesses10 interpreted the CCTVrecording in a manner favourable to their shared account that it was the appellant whohad struck Mrs Kennedy. He says however that there was nothing in the CCTVrecording that provided any reason for the Judge to prefer the oral evidence given bythe prosecution witnesses, over what was visible from the CCTV. Counsel submitsthat as the CCTV recording does not support the prosecution witnesses' claims that itwas the appellant who swung the torch down on Mrs Kennedy's left arm, the Judge9 A copy of the CCTV recording produced as exhibit 1 in the District Court, was produced andavailable for the purposes of the appeal.10 Mr and Mrs Kennedy and their neighbour Ms Amanda Caldwell.ought to have preferred the CCTV evidence over their oral evidence, and concludedthat there was reasonable doubt as to the accuracy of their accounts of what occurred.[11] Mr Withers submits that the Judge's erroneous assessment of the evidence hasled to a miscarriage of justice.The respondent[12] Mr Purdon for the respondent submits that the CCTV recording corroboratesthe account given by the three prosecution witnesses. He submits that the CCTV showsthe appellant raising the torch to shine it into Mrs Kennedy's face before the light issubsequently redirected down towards the ground, indicating that the hand holding thetorch has swung in a downward motion. He says that the CCTV does not show MrsKennedy striking the appellant's arm.[13] Mr Purdon submits that the CCTV images are "grainy" and difficult todecipher except as showing that the torch light was first shone in Mrs Kennedy's face,and then redirected towards the ground. He says that in the absence of oral testimonyit is not possible from the CCTV images to tell how or why that redirection of the torchbeam happened. He submits that Mr and Mrs Kennedy and another neighbour whowas an independent witness gave evidence that it was the appellant who shone hertorch into Mrs Kennedy's face and then struck downwards with the torch hittingMrs Kennedy on her arm. He says that their version of the events is consistent withwhat can be observed with sufficient clarity from the CCTV images.[14] Mr Purdon says that the Judge made no error in his finding and submits thatthe appeal should be dismissed.Discussion[15] The CCTV recording was played several times during the hearing of theappeal, including being played in slow motion and at normal speed. The CCTVrecording produced as an exhibit is not the actual recording made by the CCTV device,but rather a recording made by a police constable who filmed the original CCTVrecording being replayed the day following the alleged assault. The CCTV imagesshow the appellant and the Kennedys standing together on the shared driveway at adistance of around 20 metres from the camera. The area where they are standing isilluminated by electric lighting shining from the vicinity of appellant's house downthe driveway towards where they are standing.[16] While the images of the three people are not sharply focussed, they arenevertheless sufficiently clear to enable the following to be observed. In order toundertake this review of the CCTV it was necessary to view the images of the crucialaspects of the incident on a frame by frame basis. The CCTV recording shows:(a) Three people are seen standing together in a group. The appellant isnearest to and facing away from the camera, facing towardsMrs Kennedy who is standing immediately in front of her and slightlyto her left.(b) Mr Kennedy is also standing in front of the appellant, beside and to theleft of Mrs Kennedy. Initially the beam from the torch held in theappellant's left hand is directed at the ground around Mrs Kennedy'sfeet. Although both Mrs and Mr Kennedy are standing in closeproximity to the appellant it is clear that Mrs Kennedy is somewhatcloser and in the appellant's face.(c) While in that position Mrs Kennedy raises her right arm and hand up toabove her own shoulder height into a position around the appellant'sface height. While Mrs Kennedy is in that position, Mr Kennedyappears to use his right arm and right hand to move Mrs Kennedy awayfrom that position and the appellant.(d) After stepping back approximately a metre, Mrs Kennedy still facingthe appellant then gestures towards her with her arms spread wide atshoulder height, before stepping forward to once again stand directly infront of the appellant but in closer proximity to the appellant thanMr Kennedy who remained standing to Mrs Kennedy's left.(e) As Mrs Kennedy steps forward towards the appellant, she once againraises her right hand in a motion that brings it in proximity to theappellant's face. At that point the appellant brings her left hand up toshine the torch beam into Mrs Kennedy's face from what must onlyhave been a short distance as evident from the narrowly focussed lightof the torch beam on Mrs Kennedy's face.(f) The position of the torch beam in Mrs Kennedy's face is maintained forapproximately two seconds before Mrs Kennedy's right arm and thetorch beam both move rapidly. The direction of the torch beam movesfrom Mrs Kennedy's face towards her left to briefly illuminate MrKennedy and thence downward to the ground.(g) At the same time as the torch beam moves, Mrs Kennedy's right armmoves across her body and downwards. This movement of MrsKennedy's arm is consistent with her using a swatting motion to get thetorch beam out of her face. In doing so it is quite possible that the torchstill held by the appellant would have struck Mrs Kennedy on her leftarm.(h) There then ensues a brief struggle between Mrs Kennedy and theappellant while Mr Kennedy stands back. It appears that the torch isdropped and Mr Kennedy then appears to intervene to separate the twowomen and appears to take hold of the appellant and pull her down thedriveway a short distance where the two of them move off the drivewayinto a gap in the hedge.(i) Some few seconds later, when the appellant reappears onto thedriveway, she is on the ground and Mr Kennedy is standing beside herand he appears to be dragging her back out onto the driveway. He isholding the torch at this time, and while the appellant is still on theground, Mr Kennedy passes the torch to Mrs Kennedy. When theappellant gets back up off the ground, Mrs Kennedy can be seenhanding her back the torch, before the appellant walks back up thedriveway towards her house.[17] What appears from a close viewing of the CCTV is materially inconsistent withMrs Kennedy's account which was:11[the appellant] was standing there facing me with the torch in my face. Shestarts to walk towards me with the light directly in my face until she's aboutthis far away from me with the torch.Police prosecutor: Just pause. "This far," won't translate if it has to be typedup, so are you talking about a foot away from your face?Yes, by that time she'd stopped, her torch was in my face, in my eyes, Icouldn't see. I was asking her, "Could you please get that torch out of myface?" She then swung up her arm and whacked the torch onto my leftshoulder. I mean left elbow, sorry. I reacted 'cos I couldn't see.[18] Mr Kennedy's account of the incident was not specific as to what occurred. Hesaid:12Then the neighbour got her torch, was shining that directly into Toni's face. Itwas quite threatening. I might have said something like, "Put your torch down,don't shine that like that." I don't remember exactly. Then [the appellant] forsome reason struck Toni on her forearm with the torch. I said, "Don't do that,"or something. At the same stage [the appellant] was walking, the neighbourwas walking towards me, I was retreating, not wanting confrontation, physicalconfrontation. I think – well yes, what happened then was [the appellant] mayhave tripped, probably on my feet, I would think, fell over. At the same timeshe had my sweatshirt grabbed in her hand. As she fell down onto a pile of,small heap of hedge trimmings et cetera.[19] Ms Amanda Caldwell is a neighbour whose property adjoins the shareddriveway where the alleged assault occurred. Hearing some commotion coming fromthe driveway on the evening of 17 April 2019 she went to see what was happening.She described what she observed:13It was getting dark, quite dark, and there was a bit of a commotion going onwith [the appellant] the neighbour and the other two neighbours. And whilestanding there listening to what was going on, I saw [the appellant] had a torchand she was shining it at them and they were sort of moving back as she wassort of seeing what was happening. And then I saw her raise the torch up andbring it down, which ended up striking Toni and she screamed out, "Ow, that's11 Notes of evidence page 3 line 20.12 Notes of evidence, page 23, line 26.13 Notes of evidence page 33 line 21, and page 35 line 16.my arm." Then there was a scuffle and [the appellant] advanced towards Mikeand then they fell to the ground and then I didn't see what happened after thatbecause they went behind the bush. And then she was lying on the ground andsaying, "Call me an ambulance," and Toni was saying she'd hurt her arm....There was an altercation and there was a lot of words used and then I saw thetorch in [the appellant's] hand go up in the air and then strike down, obviouslywith being the light in the torch you could see what was happening. That struckToni on the arm. Then there was a bit of a scuffle and then she lurched forMike and then they went over behind that bush there.[20] Having reviewed the CCTV recording of the incident in detail, this Court isable to determine what happened by means of the direct evidence of the CCTV images.In these circumstances, the Judge's advantage of seeing and hearing the witnesses andthe findings he made in which he accepted Mrs Kennedy's account given are not suchas require the appeal court to defer to the Judge's assessments and conclusions.[21] The CCTV recording is of assistance in showing what happened, but what itshows is not consistent with the evidence given by Mrs Kennedy, Mr Kennedy, andMrs Caldwell. The CCTV shows that the appellant did not swing her arm up and"whack" the torch onto Mrs Kennedy's left elbow. The events as shown on the CCTVare quite inconsistent with Mr Kennedy's account and evidence. Similarly, the accountgiven by Ms Caldwell of seeing the appellant's hand go up in the air and then strikedown on Mrs Kennedy's arm, is not what actually happened.[22] Assault is defined in s 2(1) of the Summary Proceedings Act 1981 as meaningthe act of intentionally applying or attempting to apply force to the person of anotherdirectly or indirectly. Here it was alleged that the appellant assaulted Mrs Kennedyby deliberately and intentionally striking her left arm with a torch she was holding.[23] From the CCTV recording it appears that Mrs Kennedy used her right arm andhand against the appellant's left arm or hand in which she was holding the torch, inorder to get the torch beam out of her face. In brushing or swatting the appellant'storch holding hand out of her face, Mrs Kennedy's action is likely to have caused theappellant's arm and the torch she was holding to strike Mrs Kennedy's own left arm.[24] As a close examination of the CCTV images makes this at least a reasonablepossibility, I find the prosecution has not proven beyond reasonable doubt that theappellant assaulted Mrs Kennedy.[25] I am satisfied that the Judge erred in his assessment of the evidence andparticularly his assessment of the CCTV recording of the incident. Rather thanconfirming the oral evidence of Mrs Kennedy, her husband, and Mrs Caldwell, theCCTV recording shows that what actually happened was materially different than theaccounts that they gave in their evidence. I accordingly find that the Judge's error hasresulted in a miscarriage of justice and the appellant's assault conviction should bequashed.Result[26] The appeal is allowed. The conviction entered against the appellant is quashed.[27] I find the appellant not guilty of assaulting Mrs Toni Kennedy on 17 April2019._____________Paul Davison J