DIALLO v NEW ZEALAND POLICE [2020] NZHC 2233

DIALLO v NEW ZEALAND POLICE [2020] NZHC 2233 [31 August 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2020-488-36[2020] NZHC 2233BETWEEN PAPA ABDOUL SELLY DIALLOSelf-representedAND NEW ZEALAND POLICERespondentHearing: 17 August 2020Appearances: The appellant in personR Annandale and C Taylor for New Zealand PoliceJudgment: 31 August 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 31 August 2020 at 3.30 pmRegistrar/Deputy RegistrarDate:[1] Following a three-day Judge alone trial in the District Court at Kaikohe, theappellant, Papa Diallo, was convicted by Judge McDonald on one charge of assaultinga child, his son B.1 At a subsequent sentencing hearing, Judge McDonald orderedMr Diallo to come up for sentence if called upon within 12 months.2[2] Mr Diallo appeals against his conviction on the following grounds:(a) Judge McDonald erred by taking into account the victim's unlawfullyobtained evidential video interview;(b) Judge McDonald erred by failing to take into account relevant matters,including prior decisions of the Family Court; and(c) Judge McDonald erred by finding that the justification of parentalcontrol in s 59 of the Crimes Act 1961 was not available to Mr Diallo.[3] Mr Diallo also appeals against the sentence imposed by Judge McDonald.District Court decision[4] Judge McDonald commenced the Diallo reserved decision by noting theprotracted nature of the prosecution,3 and noted that it had arisen in the context of anongoing battle in the Family Court and High Court over the custody and care of Bbetween Mr Diallo and his ex-wife, B's mother.4[5] Judge McDonald also noted at the outset that, to find Mr Diallo guilty thePolice were required to prove "that Mr Diallo assaulted his son [B]", meaning thatthere had to be an intentional application of force to B, either directly or indirectly.5The Police also had to prove that at the time of the assault B was under 14.61 Police v Diallo [2019] NZDC 19824 ("Diallo reserved decision"). On a second charge ofassaulting B Mr Diallo was found not guilty.2 Police v Diallo [2019] NZDC 24228 ("Diallo Sentencing Notes").3 Police v Diallo [2019] NZDC 19824 at at [3]-[8].4 At [14]-[17].5 At [11]-[12].6 At [12].[6] Both B and Mr Diallo gave evidence. Based on those accountsJudge McDonald determined that one evening, not long after B came to live withMr Diallo in 2018, there was an argument about the internet not being available.7 Bwent to his room and Mr Diallo told B not to leave. At this point B said that if hewasn't allowed to leave through the door, he would go out the window, and proceededto try and jump out the window.8 B's evidence was that he tried to leave via thewindow at least twice and that Mr Diallo grabbed him by his shirt and his hair andthen threw him across the room, subsequently holding him down on the bed.9Mr Diallo however, stated that he was concerned for B's safety, and grabbed him bythe seat of his pants and pulled him back inside each time he tried to leave.10 Once Bwas inside Mr Diallo said he held B down on the bed and told him to calm down.11[7] With regard to the differing accounts, Judge McDonald held:12Mr Diallo went up to the bedroom to have an intellectual discussion with his 12 yearold son about ways to deal with conflict between the two of them [B] was notallowed to leave his room so he said he was going out the window On both accountsMr Diallo assaulted his son. I find, by grabbing him by the shirt and the hair not bythe pants. I also find that he threw [B] on to the bed and held him down.[8] Judge McDonald then went on to consider the availability of s 59 of theCrimes Act, which provides that a parent may use force against a child if the force isreasonable in the circumstances and for the purpose of preventing or minimising harmto the child. After setting out the section his Honour found that Mr Diallo could notrely on s 59 as a defence:13While the grabbing of [B] on the first occasion may well have been in order to preventharm to him. The force used to prevent harm was unreasonable in the circumstancesand I have some serious doubts as to whether in fact it was, when looked at objectively.There was no need to grab him, throw him on the bed and then hold him down. Thesecond or third time he was dragged back in by his father and thrown on the bedcannot be. Other steps could have been taken I am of the view that on the secondand third occasion it was not in order to prevent harm to [B] but was used forcorrection.7 At [32].8 At [32].9 At [26].10 At [29].11 At [29].12 At [32].13 At [34].[9] On this basis Judge McDonald found "the charge proved".14[10] The sentencing took place four days after the reserved decision was released.In his sentencing notes Judge McDonald noted the application of s 9A of theSentencing Act 2002 as an aggravating factor given B was under the age of 14, beforenoting that the charges Mr Diallo had faced "were just the latest in a long series ofcourt hearings involving [him] and [his] former wife over the care and upbringing of[B]".15[11] Sentencing Mr Diallo, Judge McDonald rejected both the prosecution calls fora short sentence of supervision or community work and the defence submission that aconviction and discharge was appropriate. Judge McDonald stated:16Any assault on a child is viewed in our society now as serious. I cannot put to oneside the background. In my view, a convict and discharge is too far down thesentencing ladder. You do not need to have any further input from specialists inrelation to the way you parent or in relation to your life generally. You have beensubject to that type of investigation for a decade in the Family Court.In my view, a sentence of to come if called upon within 12 months is an appropriateway of dealing with you. There must be some punitive element as well so I also orderyou to pay $500 towards the cost of prosecution.The appellant's position[12] Mr Diallo says that his Honour erred in three key respects.[13] First, he says that Judge McDonald erred by relying on B's evidential videointerview ("EVI") as it was obtained unlawfully. Mr Diallo explains that in June 2017he was awarded custody of B, but that B's mother appealed this decision. Two weeksafter the appeal hearing B reported the current offending and was removed fromMr Diallo's care. It was at this time that the EVI was conducted. Relying oncomments made in the Family Court17 Mr Diallo says that B should not have beenremoved from his care, and that as a result, the EVI was conducted unlawfully. Healso says that the context surrounding the EVI illustrates that B's mother told him to14 At [35].15 Sentencing Notes at [4].16 At [6]-[7].17 Diallo v Brownsword FC Whangārei, FAM-2008-027-000011, Minute of Judge Pidwell at [18].make false allegations against Mr Diallo. Because of this, Mr Diallo saysJudge McDonald should have found the EVI inadmissible and should have found B'sevidence to lack credibility.[14] Secondly, and more broadly, Mr Diallo argues that with regard to the widerlitigation relating to the parenting of B that the prosecution should not have beenbrought and that Judge McDonald erred by not considering the previous Family Courtand High Court decisions relating to the parenting of B in making his decision. InMr Diallo's opinion these decisions would have given context to the allegations ofassault by B and would have shown that B's evidence was unreliable. The failure toconsider these earlier decisions meant that Judge McDonald did not have a full set ofinformation before him, and that this impinged on Mr Diallo's right to offer a defence.[15] Thirdly, Mr Diallo says that Judge McDonald erred by finding the justificationof parental control in s 59 of the Crimes Act did not apply. Specifically, His Honourerred by failing to consider Mr Diallo's subjective purpose for applying force to hisson, that being to protect him from harm.[16] No specific submissions were made in relation to the sentence imposed otherthan Mr Diallo's comment in the course of the hearing before me that no sentence wasappropriate as the "effects of the prosecution and its consequences were already toogreat".Approach on appeal[17] Section 229(1) of the Criminal Procedure Act 2011 (CPA) allows a person toappeal against their conviction to the High Court.18[18] Section 232 of the CPA sets out that an appeal against conviction must beallowed if, in the case of a Judge-alone trial, the Judge erred in his or her assessmentof the evidence to such an extent that a miscarriage of justice has occurred, or amiscarriage of justice has occurred for any reason. In any other case the appeal willbe dismissed.18 Criminal Procedure Act 2011, s 230(b).Discussion[19] I begin my analysis by considering whether Judge McDonald erred inconsidering B's EVI. Mr Diallo dedicated a significant portion of his writtensubmissions to addressing the alleged unlawful approach of Oranga Tamariki and thePolice in obtaining the interview, and to a decision of Judge Pidwell in theFamily Court expressing disapproval of Oranga Tamariki's removal of B fromMr Diallo's care.[20] While, having considered the material relied upon by Mr Diallo, I understandwhy Mr Diallo takes issue with the conduct of Oranga Tamariki, this does not meanthe EVI had been obtained unlawfully. Ultimately, in terms of the prosecution as itunfolded, the admissibility of the EVI was for Judge McDonald to determine, whichhis Honour did after Mr Diallo challenged the admissibility of the interview in thecourse of cross-examination of Andrea Kingi, the prosecution witness who hadinterviewed B for the EVI.[21] After considering the issue in his reserved decision Judge McDonaldconcluded the interview was "conducted in an appropriate way and in accordance withbest practice and the regulations".19 To this end Judge McDonald was satisfied "there[was] nothing in the interviewing of [B] that cause[d] any concerns".20 Given thecircumstances I can see no reason to find the interview was obtained unlawfully, andin any case I agree with Mr Annandale for the Police, that even if it had been, theexclusion of the evidence would be disproportionate to any alleged impropriety.21Accordingly, I can see no error with his Honour's decision to rule the EVI admissible.[22] I turn now to the second issue, the Police decision to prosecute Mr Diallo inthe light of the wider litigation over the parenting of B, and the lack of considerationgiven by Judge McDonald to the various decisions of the Family Court and theHigh Court relied upon by Mr Diallo.19 At [23].20 At [23].21 Evidence Act 2006, s 30.[23] On this issue I can readily understand why Mr Diallo feels aggrieved at havingbeen prosecuted and, having been prosecuted, found guilty, given in particular theconclusions expressed in a specific judgment issued by Judge Pidwell in theFamily Court.22 Issued some eight months prior to Judge McDonald's reserveddecision on the assault charges, Judge Pidwell expressed the following forthrightviews about the pending prosecution:23One charge Mr Diallo now faces allegedly occurred between 29 June 2017and 12 August 2017. [B] alleged that on this occasion, during a weekend, hewas trying to climb out a window at Mr Diallo's house and his father pickedhim off the windowsill and threw him across the floor:"He picked me up off the windowsill and he threw me across theroom and ah, then he closed the door, locked it again.. I was reallysad, and I was crying a lot, and it was really, really scary...""the first time he threw me down twice. The first time he threw mehe grabbed a little bit of my hair and mostly my collar .. but thesecond time he grabbed more of my hair and that was quite painful."Mr Diallo's version of the night is contained in his comments to Ms Lightfootas follows:"he tried to jump out the window, and I wouldn't let him (it's a 2-storey drop), and I had to restrain him, but it wasn't an argument. Hehad displayed anger and physical violence, and smashed hiscomputer and screen on the ground, when I told him he could not goon his device. I told him to go to his room, and then gave him agood 5 minutes to cool down. And I went to his room and said doyou want to talk about it and he said no. So I said well when youdo, let me know. And then he said well if you won't let me out, I'mgoing to jump out of the window. And so I basically said go ahead,and he tried to actual1y. And if he was serious I don't know, but Ididn't want to take the chance, so I held him by the seat of his pants,and in the end he calmed down and we talked about it"[B]'s evidential interview was watched and analysed by Ms Lightfoot. Herqualifications and expertise were not challenged. The Court notes that shewas employed by the Department of Child, Youth and Family Services (as itwas then) as a senior psychologist for more than 30 years in the area offorensic evaluation of adults and children. She supervised evidentialinterviewers and assessed forensic interviews for validity.She concluded that there "appeared to be nothing in [B]'s statements duringthe evidential interview, to indicate he might be fabricating stories" and that[it] was a "valid disclosure". This means that the evidential requirements forsuch interviews was met.22 Brownsword v Diallo [2019] NZFC 639.23 At [51]-[58].Mr Diallo is able to use reasonable force to prevent or minimise harm to [B],and/or to prevent him from engaging or continuing to engage in offensive ordisruptive behaviour. At the time of the first allegation, [B] clearly did notwant to be living with his father. The Court had just embarked on a well-known, evidence-based legal and therapeutic process of neutralising theeffects of Ms Brownsword's alienation of [B], which had had the desired effectof poisoning his view of his father.His perception that his father assaulted him on this occasion must be seenwithin that context.In my view, Mr Diallo was entitled to restrain [B] from climbing out thewindow. [B]'s version of the incident that his father then threw him across thefloor is likely to be his perception of what happened, and possibly the outcomeof the force used. It is definitely affected by the fact that his view of his fatherand perception of events involving him has been infected over many years.There is no reason apparent to me why the police chose to lay a charge relatingto this incident 10 months later, coincidentally just after Ms Brownsword hadargued her (losing) appeal in the High Court.[24] Notwithstanding the tenor and content of Judge Pidwell's comments theycannot assist Mr Diallo in this appeal. As Mr Annandale noted the decision toprosecute Mr Diallo is ultimately not a ground for appeal, able only to be reviewed (inseparate proceedings) in exceptional circumstances.24 Likewise, it is clearJudge McDonald was correct in stating that the Judge alone trial convened to hear theassault charge was "not an opportunity for [Mr Diallo] to traverse the multitude ofFamily Court hearings and decisions".25[25] The reason for that is the earlier decisions of the Family Court and High Courtin relation to the ongoing parenting issues were simply not relevant to the chargebefore Judge McDonald. On the contrary, Judge McDonald was required to determinethe charges on the basis of the evidence presented before him, and in undertaking thattask was not bound to adopt the previously expressed views of the judges not actuallyseized of the same issue.26 It was therefore not only open but a requirement forJudge McDonald to undertake his own assessment of the credibility of the evidencehe himself heard, in this case from both B and Mr Diallo, and to prefer B's evidence24 Osborne v WorkSafe New Zealand [2017] NZSC 175, [2018] 1 NZLR held that the prosecutorialexercise of the discretion to prosecute or not is justiciable but a court will only undertake such areview in exceptional circumstances, namely where the decision is vitiated by policies or practicesthat improperly fetter the prosecutor's discretion.25 See Police v Diallo [2019] NZDC 19824 at [14].26 Brownsword v Diallo [2019] NZFC 639.over that of Mr Diallo, noting that Mr Diallo did not call any other evidence when hiscase opened nearly three months after the prosecution case had concluded. As a result,his Honour's conclusion that on both B's and Mr Diallo's accounts of the offending,Mr Diallo had assaulted B was entirely open to him on the evidence and no error istherefore apparent.27[26] The final issue relating to Mr Diallo's conviction appeal is the availability ofthe justification set out in s 59 of the Crimes Act 1961. As has been noted, beforeJudge McDonald, Mr Diallo essentially admitted he had assaulted B but said it wasfor the purposes of protecting him from harm. His Honour assessed both thereasonableness of the force used by Mr Diallo and whether it was indeed used for thepurported purpose, finding that both by grabbing B and by holding him down on thebed, Mr Diallo had used force beyond what was reasonable in the circumstance, andfor the purpose of correction. Mr Diallo's subjective intent was not relevant to thisassessment.28 This finding, that s 59 was not engaged, was reasonably available tohis Honour, and I can see no error here.[27] Accordingly, Mr Diallo has failed to identify any error on the part ofJudge McDonald, and on this basis the appeal against conviction must fail.Sentence appeal[28] In the notice of appeal Mr Diallo also sought to appeal his sentence. In theabsence of any identified error, I am satisfied the sentence is well within the availablerange and indeed confirmed clearly Judge McDonald was aware of the wider mattersat issue in determining the appropriate sentence. The appeal against sentence must bedismissed.27 See Police v Diallo [2019] NZDC 19824 at [32]. I note that following the hearing of the appeal,Mr Diallo purported to file a range of additional material, including memoranda, emailcommunications and witness summons, in an attempt to further illustrate that Judge McDonalderred by failing to consider the entire context of the case. However, as Mr Diallo has not soughtleave to adduce this material on appeal and this information was never placed beforeJudge McDonald, it does not take the matters raised by Mr Diallo any further, nor is it fresh orcogent so as to warrant admission, and I decline to receive it.28 See Adams on Criminal Law – Offences and defences (Online looseleaf ed, Brookers) at[CA59.03].Decision[29] The appeal against conviction and sentence is dismissed._______________________________Powell J