MENSAH v NEW ZEALAND POLICE [2017] NZHC 160

MENSAH v NEW ZEALAND POLICE [2017] NZHC 160 [16 February 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-385[2017] NZHC 160BETWEEN NASH YAW ADOMAKI MENSAHAppellantAND NEW ZEALAND POLICERespondentHearing: 13 February 2017Appearances: Appellant in personK Muirhead for RespondentJudgment: 16 February 2017JUDGMENT OF LANG J[on appeal against conviction]This judgment was delivered by me on 16 February 2017 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Mensah faced a charge of assaulting a female. Following a defended hearing, he was convicted by Judge D J Sharp in a reserved decision delivered on 21 October 2016.1 He now appeals against conviction.Background[2] The incident giving rise to the charge occurred on the evening of 1 January 2016. On that evening members of the Ghanaian community in Auckland had gathered at a hall to celebrate the New Year.[3] The complainant, Ms Angelina Anokyewah (Angelina), attended the event accompanied by her daughter Cassandra. Mr Mensah was also present at the function. Angelina and Mr Mensah had shared accommodation some years earlier, and difficulties had arisen between them recently. These stemmed from Mr Mensah's belief that Angelina was spreading malicious gossip about him within the Ghanaian community. This had prompted Mr Mensah to make two phone callsto Angelina's home during the days leading up to 1 January 2017. Mr Mensah had also asked the council of the Ghanaian Association in Auckland to intervene in order to resolve the dispute.[4] The prosecution case, based largely on the evidence of Angelina and Cassandra, was that as attendees began to leave the function Mr Mensah walked up to Angelina and begun punching her about the face and chest. He also allegedly grabbed her dress, thereby exposing her brassiere and stomach. Other attendees intervened to separate Mr Mensah and Angelina, whereupon Mr Mensah left the hall. Angelina and Cassandra also left the hall and went into a corridor. The police arrived a short time later and took statements from both Angelina and Cassandra.[5] The police later interviewed Mr Mensah when he went to the police stationvoluntarily after he had heard the police were looking for him. Mr Mensah deniedassaulting Angelina in both the statement he made to the police at that time and whenhe gave evidence at the trial. He said he had gone up to Angelina and tapped her onthe shoulder. His purpose in doing so was to ask her to come with him to discuss the1 New Zealand Police v Mensah [2016] NZDC 19950.dispute with members of the council of the Ghanaian Association who were still present at the function. He said that Angelina responded by striking him on the head with a water bottle. She then began punching him. He said that Angelina's assaulton him only stopped after other persons at the event intervened to pull her away.The Judge's decision[6] As will already be obvious, the Judge was primarily required to decide an issue of credibility. He needed to be satisfied beyond reasonable doubt that Angelina and Cassandra were telling the truth, and that the evidence given by Mr Mensah didnot leave him in a state of reasonable doubt. Mr Mensah's evidence had some support in the form of given by Mr Asubo, the President of the Ghanaian Association. Mr Asubo did not see the incident as it occurred, but he said he heard Angelina insulting Mr Mensah shortly after the incident ended. He said Angelina had called Mr Mensah a stupid man and an idiot, and told him he would go to prison. Mr Asubo said that when Angelina was saying these things Mr Mensah was walking away towards the carpark.[7] Mr Asubo also said that the Ghanaian Association had conducted its own investigation of the incident and had concluded that Mr Mensah's version of eventswas correct. In doing so the Association had spoken to Angelina but not Cassandra.[8] The Judge rejected Mr Mensah's evidence in the following paragraphs of his decision:2[14] After consideration I do reject the defendant's explanation forevents. I do so for the following reasons. Firstly his approach to the complainant by making telephone calls using a name other [than] his own suggests that his level of frustration about the dispute between them was significant. He accepted in his evidence that he was rude to the complainant in the telephone calls that he made and I take this to be demonstrative of his attitude in general. What he was doing was quite unrestrained and he had contempt for the complainant.[15] At the event he was the one that made contact with the complainant and he did so in the context of an unresolved dispute. The defendant accepted that the committee had not taken any steps to resolve matters and that things were nearing the end of the night.2 New Zealand Police v Mensah, above n 1.[16] The nature of the assault which is alleged includes pulling a wig offthe complainant and pulling down her dress exposing her breasts andstomach. This I take as an attempt to humiliate the complainant. An actdesigned to make up for the humiliation which the defendant felt in respectof comments that he said that she had unjustifiably made to others about himand which he said was "killing him".[17] The defendant's evidence appears to me to attempt to place theblame for a physical attack on the complainant. She was somebody who had no knowledge that he was attending at the function but who simply attacked him on sight. I see no reason or demonstration within the evidence to suggest the complainant was willing to attack the defendant on sight. This may be contrasted with him showing frustration and deep concern over previous comment. I find the defendant was acting due to the absence of any steps from the Ghanaian Society who he had previously enlisted to attempt to deal with the problem. I set the defendant's evidence to one side.[9] The Judge also put Mr Asubo's evidence to one side because Mr Asubo had not seen the incident giving rise to the charge. For that reason the Judge consideredthat Mr Asubo's evidence did not provide any basis to reject Angelina's evidence in respect of the nature of the incident that occurred.[10] The Judge then considered the evidence given by Angelina. He noted that she had given her evidence in a volatile manner, but had been adamant that she had been punched numerous times and that she felt shame about the circumstances in which she was placed. The Judge continued:3[19] She said she was crying, that she had been hit everywhere. She couldn't remember precisely how she had been hit but that she said she wasattacked. She wasn't sure what she had done with the plastic bottle. Shesaid she may have thrown it at the defendant but she was unsure. Sherejected exaggerating matters and although she was unsure whether she hadtold the police about her clothing being pulled and her belly and breastsbeing exposed she maintained that was what had happened. She did notaccept that the defendant was protecting himself from an attack from her.She did accept that she did not have physical injuries. She said she was inpain but she said that she was lucky that people had intervened and separatedand it was a matter of luck according to her evidence that she did not suffersome injury from the blows that she had been subjected to.[11] The Judge then set out passages from Cassandra's evidence in which she said she saw Mr Mensah punch her mother on several occasions. Cassandra also confirmed that Mr Mensah had pulled at her mother's clothes and pulled her wig off.The Judge noted that these statements were consistent with the event as described by3 New Zealand Police v Mensah, above n 1.Angelina. The Judge found Cassandra to be a reliable and credible witness, and observed that her evidence supported that given by Angelina. In addition, the Judge noted that another prosecution witness, Mr Fori-Anyiam, had given evidence of arriving shortly after the incident had concluded. Mr Fori-Anyiam saw Angelina'swig lying on the ground and was able to see that her brassiere was high. He could also see Angelina's stomach. The Judge noted that Mr Fori-Anyiam's evidence was consistent with that given by both Angelina and Cassandra.[12] The Judge then concluded:4[26] When the evidence of the prosecution is put together with the circumstances surrounding the disagreement between the defendant and the complainant the prosecution is able to establish that the defendant punched the complainant, pulled at her clothing and was successful in pulling her wig off. This was with the view to not only committing a physical assault but also with a view to repay the complainant for the statements that she had made about him that he regarded as untrue and unfair.[27] Accordingly the charge is proven.Issues on appeal[13] Prior to the hearing, Mr Mensah helpfully filed a document setting out the grounds on which he proposed to challenge the Judge's decision. He amplified some of these during the hearing before me. The issues canvassed at the hearing can be summarised as follows:(a) Neither Angelina nor Cassandra made any mention of the ripping ofthe dress and exposure of Angelina's brassiere and stomach instatements made to the police at the time of the incident.(b) One of the persons identified by Cassandra as having separated Mr Mensah and Angelina has now given a statement denying that this occurred.(c) Angelina gave false evidence when she said she had asked Mr Mensah to leave her address when he was boarding with her.4 New Zealand Police v Mensah, above n 1.(d) Two witnesses who could have given evidence for Mr Mensah did not want to come to Court.(a) The evidence given by Angelina and Cassandra regarding the ripping of thedress so as to expose Angelina's brassiere and stomach[14] Mr Mensah has provided the Court with copies of the statements made to the police by both Angelina and Cassandra on the evidence of the incident. It is true that in neither of these statements does either witness refer to the fact that Mr Mensahgrabbed Angelina's dress in such a way that her brassiere and stomach were exposed. However, Cassandra said in her statement that Mr Mensah "grabbed Mum's top and tried to rip it off". She also told the police that Mr Mensah had grabbed Angelina'swig and pulled that off. Angelina said in her statement that Mr Mensah had grabbed her dress and began pulling it. She said it felt as if he was trying to tear her clothes off.[15] The only item missing from the statement of both witnesses is the fact thatthe effect of Mr Mensah's actions was to expose Angelina's brassiere and stomach.This omission needs to be balanced against Mr Fori-Anyiam's evidence that he observed Angelina's brassiere to be high and her stomach exposed.[16] Furthermore, reading the Judge's decision as a whole it is clear he did notplace great weight on these issues. For that reason I do not consider that this issue assists Mr Mensah's cause in respect of the appeal.(b) Cassandra's evidence about the person who separated Mr Mensah and Angelina[17] Cassandra said that several persons endeavoured to separate Mr Mensah and Angelina when the incident occurred. The only person she was able to name, however, was a person called "Uncle Sammy". Mr Mensah says that the only person called Sammy at the event was Mr Samuel Boateng. Mr Mensah has provided a"draft brief of statement" signed by Mr Boeteng that says Cassandra's evidence was not true because Mr Boateng "was not there at that very moment".[18] I regard the identity of the person who is said to have separated Mr Mensah and Angelina as being of peripheral significance to the central issue the Judge was required to decide. There was no dispute at trial that other persons endeavoured to separate Mr Mensah and Angelina. The difference between the prosecution and defence cases was that the prosecution alleged that other attendees were required to pull Mr Mensah away from Angelina, whereas the defence case was that they were required to pull Angelina away from Mr Mensah. The identity of the persons involved in this particular aspect of the incident was not of any importance given that none of those persons was called to give evidence at trial. I therefore do not place any weight on this ground of appeal.(c) The circumstances in which Mr Mensah left Angelina's home[19] There was no dispute that Mr Mensah had lived in the same house as Angelina some years prior to the present incident. I do not consider, however, that the circumstances in which Mr Mensah came to leave that address were relevant to the issue the Judge was required to decide. That issue related solely to the credibility of the witnesses who had given evidence before him.(d) Failure of defence witnesses to come to Court[20] If Mr Mensah had wished to ensure that his witnesses came to Court, he should have obtained a witness summons directing that they appear on the hearing date. Mr Mensah could then have obtained a warrant for their arrest if they did not appear, and he may also have been able to obtain an adjournment of the trial so that the witnesses could be located and brought to Court. The fact that Mr Mensah'scounsel failed to take that step means it is too late for the issue to be raised now.Conclusion[21] During the hearing Mr Mensah did not traverse the other grounds for appeal contained in his draft points on appeal filed on 18 January 2017. I have considered all of those issues, however, and I also acknowledge Mr Mensah's observation to methat the conviction has affected him greatly. During the hearing he explained the consequences that have occurred as a result of the conviction. I have sympathy withMr Mensah, but I cannot revisit the Judge's decision on appeal unless I am satisfied that it was wrong.5 Furthermore, it is now well established that in cases involving the assessment of credibility the trial court may enjoy a particular advantage that an appellate court will not have.6[22] In the case the Judge had the advantage of seeing and hearing all of the witnesses and was in a far better position than this Court to make the credibilityfindings that lie at the heart of his decision. Reading the Judge's decision as awhole, I cannot say that he was not entitled to reach the decisions that he made inrelation to credibility notwithstanding the issues that Mr Mensah raises. Nor can Isay that the Judge's ultimate conclusion was wrong. He was faced with twoprosecution witnesses, each of whom gave evidence that was consistent with thatgiven by the other. That evidence was supported to some extent by the evidencegiven by Mr Fori-Anyiam. On the other side of the coin Mr Mensah's version of thecritical events had no support from any other source.[23] Furthermore, the evidence as a whole paints a picture of Mr Mensah becoming increasingly frustrated in the days leading up to 1 January 2016 by his belief that Angelina was spreading gossip about him and the apparent failure of the Ghanaian Society to take steps to resolve the dispute. Given that background it is not surprising that the Judge concluded it was Mr Mensah who assaulted Angelina rather than her assaulting him.[24] I do not consider there is any legitimate basis on which this Court caninterfere with the Judge's decision.Result[25] The appeal against conviction is dismissed.Lang J5 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].6 At [5].Solicitors:Crown Solicitor, Auckland