WEWEGE v NEW ZEALAND POLICE [2020] NZHC 3117

WEWEGE v NEW ZEALAND POLICE [2020] NZHC 3117 [24 November 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-385[2020] NZHC 3117BETWEEN MONIQUE WEWEGEAppellantAND NEW ZEALAND POLICERespondentHearing: 24 November 2020Appearances: S Kim and M S Sweetman for AppellantC Howard for RespondentJudgment: 24 November 2020(ORAL) [INTERIM] JUDGMENT OF LANG J[on appeal against conviction and sentence]Solicitors:Kayes Fletcher Walker, AucklandPublic Defence Service, Auckland[1] Ms Wewege faced charges in the District Court of assault with intent to injure,1threatening to kill2 and strangulation.3 Following a Judge alone trial in the DistrictCourt at Manukau on 26 June 2020 His Honour Judge David J Harvey found the firsttwo charges proved but not the third. 4[2] On 11 August 2020 the Judge sentenced Ms Wewege to supervision for aperiod of 12 months and ordered her to perform 150 hours community work.5Ms Wewege appeals against both conviction and sentence.The appeal against convictionApproach[3] The approach to be taken by an appellate Court considering an appeal againstconviction was recently confirmed by the Supreme Court in Sena v Police.6 TheSupreme Court rejected the approach taken earlier by the Court of Appeal in Gotty vR.7 The Supreme Court held that the conventional appellate approach identified inAustin Nichols & Co Inc v Stichting Lodestar applies to appeals against convictionfollowing Judge-alone trials.8 If an appellate Court comes to a different view on theevidence the trial Judge will necessarily have erred and the appeal must be allowed.However, it remains for the appellant to show that an error has been made in the Courtbelow. In undertaking its own assessment of the correctness of the decision theappellate Court should take into account any advantage the trial Judge may have had.The latter principle obviously has particular importance in cases where a trial Judge isbeing asked to determine issues of credibility and veracity.[4] In the present case Ms Wewege contends the Judge erred in the assessment hemade of the evidence to such an extent that a miscarriage of justice has occurred.9 She1 Crimes Act 1961, s 193.2 Crimes Act 1961, s 306.3 Crimes Act 1961, s 189A4 New Zealand Police v Wewege [2020] NZDC 19161.5 New Zealand Police v Wewege [2020] NZHC 20687.6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.7 Gotty v R [2017] NZCA 528.8 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR at [4].9 Criminal Procedure Act 2011, s 232(2).contends the Judge reached factual conclusions that were not open to him on theevidence.The hearing in the District Court[5] The charges were laid as a result of an incident that occurred on the evening of3 May 2019. On that date Ms Wewege was staying at an address occupied by aMr Rodney Mitchell. Mr Mitchell had recently separated from his partner, Fallayne,and she had not yet completed the removal of items from his address. On the eveningof 3 May 2019 Fallayne sent Mr Mitchell a text message indicating she wished tocome to his address to uplift further items. She subsequently arrived at the addressand he met her on the pathway outside.[6] Mr Mitchell said in evidence that when Fallayne arrived at the address shegreeted him in a familiar manner. He said she hugged and kissed him and also touchedhis crotch area. He said he then invited her into the house. It seems that Ms Wewegehad seen what had happened outside the address through a window and took exceptionto it. Fallayne said that she came into the address and sat down on a couch. At orabout that time Ms Wewege appeared and demanded that Fallayne give her cellphonecharger cord back to her. This was apparently sitting onae couch behind Fallayne.Fallayne said that when she went to give the cord to Ms Wewege an attempt was madeto snatch it from her hand. She resisted this and reprimanded Ms Wewege for herrudeness in the way she was attempting to snatch the cord.[7] At that point a physical altercation occurred. Fallayne said Ms Wewegegrabbed her by the hair and pulled her from the couch to the vicinity of a kitchenbench. There she endeavoured to slam her head against the bench. Fallayne said herhead actually struck the bench on four or five occasions. She said that a few momentslater Ms Wewege clawed at her eyes. She then placed both arms around her neck andplaced significant pressure on it. She found it difficult to breathe as a result of thispressure.[8] Fallyne said that at this point Mr Mitchell intervened and separated the twowomen. A short time later Fallayne left the address after first calling the police. Bythe time the police arrived Fallayne was at a medical centre. The police travelled tothe medical centre where they took photographs of her. These were produced at trial.[9] Mr Mitchell said he had seen Ms Wewege acting in an aggressive mannertowards Fallayne. He confirmed that the two women had gone to the area around thebench. He said he saw Ms Wewege pushing Fallayne's head down towards the benchbut did not see it actually strike the bench. He also said that he saw Ms Wewege"clawing" Fallayne. Overall, Mr Mitchell considered Ms Wewege to be the aggressor,although he acknowledged it was ultimately an altercation or fight between the twowomen.The Judge's decision[10] The Judge considered Fallayne had embellished her evidence. On this point Iconsider it likely that he was referring to the evidence she had given aboutMs Wewege's attempts to slam her head on the bench. He said that it was thereforeimportant for him to have regard to independent evidence rather than the evidencegiven on an uncorroborated basis by Fallayne. He preferred the evidence given byMr Mitchell to that given by Fallayne.[11] Overall the Judge was not satisfied that Ms Wewege had placed her handsaround Fallayne's neck and tried to strangle her. He therefore dismissed that charge.He was satisfied, however, that during the course of the altercation Ms Wewege hadthreatened to kill Fallayne in Afrikaans. He therefore found that charge proved beyondreasonable doubt. The Judge noted that photographic evidence showed the injuriesaround Fallayne's eyes. During her evidence in chief Fallayne had confirmed thatthese were caused when Ms Wewege tried to, in her words, "gouge her eyes" with herthumbs. The Judge therefore considered the charge of assault with intent to injure hadbeen proved beyond reasonable doubt.The appeal[12] The sole ground of appeal is that Fallayne was such an unsatisfactory witnessthat the Judge could not reasonably have been left sure she was telling the truth. MrKim points out on Ms Wewege's behalf that the Judge expressly said that Fallayne hadembellished her evidence and that independent supporting evidence was necessarybefore weight could be given to it. Given the shortcomings in Fallayne's evidence,Mr Kim submits the Judge could not reasonably have concluded that either charge hadbeen proved beyond reasonable doubt.DecisionThe charge of assault with intent to injure[13] I bear in mind the principle that in a case such as this the trier of fact, in thiscase Judge Harvey, had a distinct advantage because he was able to see and hear thewitnesses and judge for himself the manner in which they gave their evidence. ThisCourt must be cautious before adopting a different view regarding issues of credibilityfor that reason.[14] It is also clear that, although the Judge found Fallayne had embellished herevidence, he did not find her to be an untruthful witness. Rather, he looked forsupporting evidence before giving weight to what she had said on important points.[15] The prosecution did not specify which assault constituted the charge of assaultwith intent to injure. If Fallayne's version of events was correct there were in factseveral assaults. The first was the incident where Ms Wewege allegedly pulled herhair and in doing so pulled her over from the couch to the area around the kitchenbench. The second was the incident in which Ms Wewege allegedly drove Fallayne'shead into contact with the kitchen bench. The third was the alleged gouging ofFallayne's eyes.[16] The Judge did not reach any firm finding of fact regarding the incidentinvolving Ms Wewege driving Fallayne's head into the kitchen bench. However, indeciding the charge on the alternative basis relating to the gouging of the eyes I amsatisfied he must have concluded he was unable to be satisfied beyond reasonabledoubt regarding the incident involving the kitchen bench. Mr Mitchell did not seeFallayne's head strike the bench. As a result there was no independent evidence thatthe striking had occurred. It is therefore not surprising the Judge did not find thecharge proved on this basis.[17] There was, however, supporting evidence for the alternative assault occasionedby the gouging of the eyes. First, there was Fallayne's evidence that this had occurred.Secondly, Mr Mitchell observed a "clawing", although he did not specify the area ofthe body to which this was directed. Thirdly, the photographs produced at the hearingdepict abrasions in the areas around both Fallayne's eyes. Fallayne said she sustainedthese when Ms Wewege gouged her eyes. She also said that her vision was blurry asa result of the incident. Counsel for Ms Wewege did not challenge Fallayne's evidenceabout the injuries depicted in these photographs and it is too late for any challenge tobe made to those assertions now.[18] Taking those factors into account, I am satisfied there was material availableon which the Judge was entitled to find the charge of assault with intent to injureproved. Furthermore, I do not consider he was in error to do so. The appeal againstconviction on that charge is accordingly dismissed.The charge of threatening to kill[19] The position is different so far as the charge of threatening to kill is concerned.The Judge found this charge proved for the following reasons:10[9] Fallayne has given evidence that there was a threat to kill and it wasmade in Afrikaans and although some of the incident was overheard byAntionette Appelgryn, Fallayne herself has said that at one stage during thedispute she referred to Monique as a white kaffir, which is a serious insult toa South African, one which I will not attempt to break down. It was confirmedby the witness that it was serious and it was also clear that between the two ofthem there were words exchanged and I am satisfied that the argumentbetween them, the words and the violence were heated and that during thecourse of that, even although it may not have been heard by Ms Appelgryn,there was a threat that was made by Monique to kill Fallayne and that wasmade in Afrikaans. I am satisfied that that charge has been made out.[20] It is obvious from this paragraph that the Judge was satisfied that Ms Wewegemade a threat to kill Fallayne notwithstanding the fact that this was not heard by eitherMr Mitchell or by Ms Appelgryn, who heard at least some of the altercation after MsWewege called her by cellphone and then left the cellphone line open whilst thealtercation took place. There is, however, a second element that the prosecution mustprove in relation to a charge of threatening to kill. This is that the person making the10 New Zealand Police v Wewege, above n 1.threat intends the recipient of the threat (or some other person) to take the threatseriously.11 The Judge did not deal with this aspect of the charge and it may not havebeen drawn to his attention.[21] On the evidence adduced during the trial, however, I do not see how this aspectof the charge could be made out. The altercation amounted primarily to a tussleinvolving pushing, pulling, shoving and eye-gouging. Ms Wewege did not use anyinstrument to strike Fallayne and there is nothing about the background to the eventsto suggest Fallayne might have appreciated that Ms Wewege intended any threat tokill to be taken seriously. Nor do I think the Court can realistically infer that MsWewege intended the threat to kill to be taken seriously.[22] I am therefore satisfied the second aspect to the charge cannot be provedbeyond reasonable doubt. The appeal against conviction in relation to the charge ofthreatening to kill is accordingly allowed and that conviction is quashed.Appeal against sentence[23] The sentence imposed by the Judge obviously needs to be reviewed in light ofthe successful appeal against conviction on the charge of threatening to kill.[24] Mr Kim advises me that Ms Wewege wishes to pursue an application fordischarge without conviction in light of the outcome of the conviction appeal and herunsuccessful efforts since she was convicted to find employment. I direct that anyevidence in support of an application for discharge under s 106 of the Sentencing Act2002 is to be filed and served no later than 15 December 2020.[25] Submissions on Ms Wewege's behalf in relation to the appeal against sentenceare to be filed and served no later than 20 January 2021. Submissions by the Crownare to be filed and served no later than 28 January 2021.11 R v Meek [1981] 1 NZLR 499 (CA) at 503.[26] I will resume hearing the appeal on Thursday 4 February 2021 at 2.15 pm (onehour allocated).Lang J