MCNEILL v NEW ZEALAND POLICE [2021] NZHC 2926

MCNEILL v NEW ZEALAND POLICE [2021] NZHC 2926 [18 October 2021]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2021-412-000023[2021] NZHC 2926BETWEEN MARK STEPHEN MCNEILLAppellantAND NEW ZEALAND POLICERespondentHearing: 18 October 2021Appearances: B Stephenson for the AppellantC J Bernhardt for the RespondentJudgment: 18 October 2021ORAL JUDGMENT OF GENDALL J[1] The appellant Mark McNeill was convicted of indecent assault following aJudge Alone trial before Judge Glubb in the Dunedin District Court.1 He appealsagainst that conviction on the basis the Judge erred in his assessment of the evidenceto the extent that a miscarriage of justice has occurred.[2] Turning to the background facts in this matter, on the evening of 25 July 2020the victim, aged 19 at the time, and four of her friends met at a local address. Theydrank alcohol and the victim estimated she consumed about 10 standard drinks. Ataround 10 pm the group went to a bar in the central city. There the victim consumedabout three standard drinks over a two hour period.[3] By midnight the group had left that bar and travelled to another barapproximately 100 metres down the road. There the victim consumed two1 Police v McNeill [2021] NZDC 4910.Tequila shots. After a period of dancing she went outside the bar to the smoking areawith a couple of friends. Mr McNeill then aged 55 was also outside in the smokingarea. Mr McNeill approached the victim and complimented her on her outfit to whichthe victim replied "thank you" or words to that effect.[4] Without warning Mr McNeill touched her breast over the top of her clothing.He then moved his hand towards her vaginal area and started rubbing. He told thevictim he wanted to have sex with her and that they should go to the bathroom. As away of getting out of this situation the victim stated she had a boyfriend and he wouldnot like what was happening.[5] The victim estimated the touching went on for about three minutes and onlyended when one of her female friends came out, saw the situation and pulled her away.She went back inside the bar and then the group left.[6] The victim was visibly upset and after approximately 15 minutes told herfriends what had happened. One friend called the police and the victim subsequentlymade a statement.[7] Following the incident Mr McNeill left the bar, took a taxi to his vehicle wherehe changed his jacket. He then returned in the taxi and was dropped at another bar incentral Dunedin where later he was located and arrested.[8] Turning now to the principles to be applied on this appeal, this Court may onlyallow an appeal against conviction if satisfied in the case of a Judge Alone trial thatthe Judge erred in his or her assessment of the evidence to such an extent that amiscarriage of justice has occurred, or that a miscarriage of justice has occurred forany reason. I refer to s 232(2)(b) of the Criminal Procedure Act.[9] A miscarriage of justice means any error, irregularity or occurrence in or inrelation to the trial that has created a real risk that the outcome of the trial was affectedor has resulted in an unfair trial. A trial includes a proceeding in which the appellantpleaded guilty.[10] This appeal proceeds by way of rehearing and the Court is required to form itsown view of the facts and I refer to Sena v Police.2 If this Court reaches a differentview on the evidence it follows the trial Judge necessarily will have erred and theappeal must be allowed. The onus is on the appellant to show that an error occurred.[11] In the District Court decision the Judge commenced his decision which was alengthy and carefully reasoned one by noting the principal issue, which was whetherthe victim consented to the touching which occurred, and if not whether Mr McNeillhonestly believed that she was consenting. Mr McNeill accepted he was involved inthe incident.[12] Judge Glubb in the District Court found Mr McNeill deliberately touched thevictim in two places as she alleged. Mr McNeill admitted to touching her but said heran his hand up her stomach to her breast and touched her thigh with the back of hishand. The Judge found Mr McNeill's description that the victim welcomed hisattention and consented to the contact as she made a sound of "ecstasy" to be highlyimplausible. The Judge noted the description of the touching given by the victim inevidence was consistent with her response and reaction to the touching and with theaccount she gave to her friends and later to the police.[13] The Judge concluded Mr McNeill considered the victim to be an easy targetand he took advantage of the situation that presented. He noted that Mr McNeillsuggested that sometimes a woman likes to be touched in that way without beingasked. The Judge concluded that the touching was indecent. He was "sure that rightthinking members of the community would conclude touching of that nature in thosecircumstances was indecent". He was sure that in the circumstances Mr McNeill wasaware that the touching was indecent.[14] The Judge accepted the victim's evidence that she did not consent in any wayto being touched in that manner. Whilst the Judge acknowledged she did not resist ortell Mr McNeill to stop, that does not amount to consent. In reaching the conclusionthat Mr McNeill did not have an honest belief in the victim's consent the Judge notedthat very soon after the events the bouncer had told him to leave. When he was spoken2 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].to by the police he said "is this about the girl"? The Judge inferred from his commentthat Mr McNeill knew he had overstepped the bounds.[15] Mr McNeill maintained that he honestly believed she was consenting but theJudge found that ran contrary to the circumstances and was more consistent withMr McNeill's efforts to justify his contact. The Judge concluded that Mr McNeillsimply "took his chance" and as a stranger touched the victim, an intoxicated youngwoman. He reached that by drawing an inference from the fact that Mr McNeill hadnever met the victim before, there was a significant age difference, he immediatelytouched her, there was a sexualised comment and he acknowledged that sometimes awoman wants to be touched in that way without being asked.[16] The Judge was satisfied beyond reasonable doubt that the prosecution hadproved the charge.[17] Turning now to the appellant's submissions before me, Mr Stephenson forMr McNeill raises four ways in which he says the Judge erred in finding that he wassure that the victim's account of the touching was reliable.[18] First, he submitted the Judge did not consider the victim's level of intoxication.Mr Stephenson notes the victim reported her level of intoxication at the bar as a sevenout of 10. It is unclear what the Judge had on his mind when he stated "even thoughshe had consumed a large amount of alcohol" and ultimately Mr Stephenson suggeststhe Judge did not consider what bearing her accepted level of intoxication had on thereliability of her account. Mr Stephenson points to a number of factual circumstanceswhich he says are relevant as to whether the victim could properly recall the eventsthat occurred on the night in question.[19] Secondly, Mr Stephenson contends the Judge erred in concluding the victim'saccount was consistent with what she had told the police in her statement as herstatement did not form part of the evidence at trial. He maintains there was noevidence before the Judge as to what the victim had told the police. Further, he saysthe Judge erred in his conclusion that the description of the touching given by thevictim in her evidence was consistent with what she told her friends.[20] Thirdly, it is submitted the Judge erred in not placing weight on the evidenceof the doorman as it was inconsistent with that of the other witnesses.[21] Finally, Mr Stephenson maintains the Judge drew improper conclusions whenrejecting Mr McNeill's evidence. He suggests the Judge did not explain why heconsidered Mr McNeill's description of the touching to be unlikely.[22] In combination he says these factors raise sufficient doubt over the victim'saccount of evidence, such that the Court cannot draw the conclusion that Mr McNeilldid not honestly believe in consent here. It must follow, in Mr Stephenson'ssubmission that the charge cannot be proven beyond reasonable doubt.[23] Turning now to the respondent's submissions, Mr Bernhardt for therespondent, in response maintained the "errors" identified by Mr McNeill are not infact errors. Rather they are a reasonable assessment of the evidence in each case thatwas open to the Judge to make. Mr Bernhardt submits the District Court Judge wasin the best position to weigh the importance of the victim's intoxication condition inhis overall assessment of her reliability, in the circumstances relating to the factualmatrix of this case. He noted the victim was candid about her level of inebriation andmade reasonable concessions about her recollections.[24] Mr Bernhardt notes too that the fact she could not recall certain parts of theevening does not change the fact she firmly recalled her interaction with Mr McNeill.[25] The Crown position too is that the Judge was entitled to infer that the victim'scomments had not substantially deviated from the complaint she made to police on thenight. Mr Bernhardt notes the words used by the Judge do not raise any error here.However, if this Court disagrees and does find an error has occurred, then MrBernhardt in his submissions suggested it was not one that affected the trial outcome.[26] Mr Bernhardt maintains too that there were sufficient issues with the evidenceof the doorman to justify the Judge putting it to one side. That evidence given by thedoorman he says contained significant inconsistencies that meant his reliability wasfundamentally impugned. And, in response to the final ground of appeal therespondent's position is that the Judge as fact finder was entitled to draw the inferenceshe did. He was effectively presented with two scenarios of the night in question.[27] The Judge was entitled to weigh the likelihood of one scenario versus the otherand to find as he did that Mr McNeill's version was highly implausible.[28] Turning now to my analysis in this matter, in essence Mr McNeill challengesthe District Court Judge's factual finding that the victim's evidence was reliable andthat he preferred her evidence over Mr McNeill's account of events. Relevantly theauthors of Adams on Criminal Law state:3"In particular where the challenge is to credibility findings based on contestedoral evidence, an Appeal Court must exercise "customary caution" reflectingthe advantage the trial Judge has in evaluating the strengths and weaknessesof a case as the evidence emerges during trial, and in making an assessmentof witnesses, and the disadvantage for an Appeal Court dealing with a casebased on the written record of what happened at trial and counsel'ssubmissions".[29] With this caution in mind I now address each of the grounds of appeal in turn.As to the first ground, the level of intoxication of the complainant, Mr McNeill'sposition is that the Judge did not take into account that level of intoxication whenassessing the victim's reliability. Having reviewed the notes of evidence and hisHonour's decision I find that position is untenable for the following reasons.[30] I accept the respondent's submission that while the victim had consumed asignificant amount of alcohol here, this would necessarily affect different individualsin different ways. In this case the victim was candid about her level of inebriation andaccepted her alcohol consumption impacted her full recollection of some aspects ofthe night. She was able to recall some parts of that night clearly but as expectedwith her level of intoxication she was uncertain about other parts. In particularMr Stephenson refers to the victim's admission that she could not recall if she hadtaken a couple of steps towards Mr McNeill. The Judge acknowledged this in hisdecision.3 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters)at CPA 232.03.[31] He went onto say "it was also put to her [in cross-examination] that she cameup to him, perhaps even touching him to which she responded I never touched him".[32] The fact the victim could not recall this element must also be viewed in thecontext of the evidence as a whole. Assessment of reliability is based on a range offactors and again as I see it the Judge's fact finder adequately weighed this submissionfrom the victim in the context of her evidence as a whole.[33] Judge Glubb had the benefit of seeing the victim give her evidence. He wasable to compare her purported level of intoxication with the degree of certainty sheexpressed when recalling critical events on the night in question. The Judgereferenced the victim's intoxication a number of times in his decision stating "thecomplainant was significantly affected by alcohol, she had consumed a large amountof alcohol and she was a young woman affected by alcohol".[34] It is clear to me the Judge was not under the erroneous impression that she wassober or even partially so. He was cognisant of the victim's level of intoxication. Iconsider the District Court Judge adequately took into account the victim's level ofintoxication when assessing her reliability. It follows that I find he did not err in hisassessment as to her evidence.[35] I turn now to the second appeal ground, the fact the complainant's priorstatements were not before the Court. In his decision the Judge made the followingfinding in relation to the victim's evidence and I usefully repeat this here.[45] I note the description given by the complainant in evidence isconsistent with her response and reaction to the touching but also with whatshe soon told her friends and the police. It has not changed. It is also to bepreferred given the context of their meeting and the defendant's immediatecomment to the stranger, a young woman affected by alcohol, that he wantedto fuck her. In context, I conclude the defendant considered the complainantto be an easy target and took advantage of the situation that presented. Hefelt he was able to touch her in that and did so without compunction. Heconfirmed that sometimes a woman likes being touched in that way withoutbeing asked. In my assessment, it is a clear indication of the approach thedefendant was taking to the encounter with this young woman.[36] First Mr Stephenson for Mr McNeill notes that the victim's statement was notin evidence before the Court. Further in her evidence-in-chief he says the victim didnot elaborate on what she had told the police. There was no proper evidential basis toconclude therefore that her oral evidence was consistent with what she had told thepolice earlier.[37] I accept the victim's statement to police was not before the Court. I havereviewed the transcript of Constable Norrie's evidence. He provides detail on thesurrounding circumstances and Mr McNeill's arrest, but not on the specific content ofthe victim's allegations. In the absence of cross-examination to the contrary, it appearsJudge Glubb drew an inference that the victim's evidence was consistent with herstatement to police.[38] No evidence was before the District Court that the victim's evidence wasinconsistent with her statement to police. It might have been desirable here for theJudge to articulate that he was drawing an inference or not to make that inference atall. However I do not consider this gives rise to a material error that was sufficient tohave affected Mr McNeill's trial.[39] Secondly Mr Stehenson submits there was insufficient evidence by which theJudge could properly conclude that what the victim told her friends was consistentwith the description given in her evidence. I do not consider there is any merit in thispoint. The victim told her friend, Mr De Koning, that she had been assaulted and"grabbed". This is generally consistent with the evidence she gave before the DistrictCourt Judge.[40] I turn now to the third appeal ground, the fact it is argued the Judge gaveno weight to the doorman's evidence and effectively placed it on one side. Thedoorman gave evidence that contained a number of inconsistencies, namely that firstMr McNeill and the victim were kissing. Neither Mr McNeill nor the victim howevergave evidence of this occurring.[41] Secondly, the doorman said that Mr McNeill had slapped the victim's butt asthe group walked out. The victim maintained however that there was no contact andMr McNeill suggested that at most there had been an accidental touch when he reachedto touch her shoulder.[42] Thirdly, the doorman said it was one and a half to two hours before the malefriend returned and made a complaint to the manager. The other evidence before theDistrict Court which was given suggests it was around 45 minutes before he returned.[43] Mr Stephenson before me submitted the doorman was an inherently reliablewitness as he was independent, and the only witness who had not been consumingalcohol on the night. In relation to the kissing, he says it was open to the Judge to putthat evidence to one side and to go on to consider what weight he placed on thedoorman's overall perception of what he saw as being a consensual encounter betweenthem. That submission in my view however is problematic.[44] First, the fact the doorman states he saw the couple kissing gives rise to thepossibility that he may have been mistaken in identifying the parties. This isparticularly so in light of the fact the victim and Mr McNeill deny there was anykissing. If the doorman was mistaken in identifying the parties, it follows he wouldbe mistaken in his perception that the encounter was consensual.[45] Given the inconsistencies with the evidence, I consider it was open to theJudge, as the factfinder, to set that evidence aside.[46] And lastly I turn now to the fourth ground of appeal relating to the inferencesand conclusions reached by Judge Glubb here. On this Mr Stephenson submits theJudge reached inferences and drew conclusions that were outside the scope of theevidence. In essence he seeks to challenge the Judge's conclusion that Mr McNeill'sdescription of the events was "highly implausible". It is suggested Judge Glubb erredin failing to go on to explain why he considered Mr McNeill's description of thetouching as unlikely.[47] The Judge however clearly articulated the burden and standard of proof in hislengthy decision here. As the factfinder he was required to weigh the competingscenarios and to determine, based on the credibility and reliability of each witness andtheir evidence, whether the charge was proved beyond reasonable doubt.[48] Considering all matters in the round here, I see no error in Judge Glubb'sdetermination based on all the available evidence that he had the benefit of hearing. Iaccept too his finding that Mr McNeill's description of the events in thesecircumstances is implausible.[49] For all these reasons I find the appellant has been unable to convincingly makeout any of his grounds of appeal. No error has occurred on the part of Judge Glubbhere. I conclude that clearly no miscarriage of justice has occurred.[50] This appeal is dismissed.Gendall JSolicitors:Public Defence Service, DunedinRPB Law, Dunedin