KNUCKEY v NEW ZEALAND POLICE [2017] NZHC 2712

KNUCKEY v NEW ZEALAND POLICE [2017] NZHC 2712 [6 November 2017]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI-2017-443-27[2017] NZHC 2712BETWEEN PHILIP FREE KNUCKEYAppellantAND NEW ZEALAND POLICERespondentHearing: 31 October 2017Counsel: J Hannam for AppellantJ E Bourke for CrownJudgment: 6 November 2017JUDGMENT OF WILLIAMS J[1] Mr Knuckey faced trial on 16 charges relating to violence against his thenpartner, firearms and minor drugs possession.[2] At the commencement of his trial before Judge Harrop in the New PlymouthDistrict Court, Mr Knuckey pleaded guilty to four of those charges:(a) unlawful possession of a sawn-off single barrel shotgun andammunition; and(b) possession of cannabis; and(c) unlawful possession of 10 rounds of nine millimetre ammunition for aLuger pistol.[3] Mr Knuckey was then discharged at the end of the prosecution case in relationto possession of a butterfly knife with intention to injure as there was no evidence tosupport the charge.[4] Eleven charges then went to trial and Mr Knuckey was convicted in relation toeight of them as follows, in date order:1• 11 May 2016 – threatening to kill the complainant (CRN 1807); and usinga firearm in committing an imprisonable offence namely threatening tokill the complainant (CRN 1808).• 3 June 2016 – threatening to kill (CRN 1811); and male assaults female(CRN 1812).• 11 June 2016 – assault on the complainant using a baton as a weapon(CRN 1531).• 27 November 2016 – assaulting the complainant using a pistol as aweapon (CRN 2986); unlawful possession of a firearm (pistol)(CRN 2987); and breach of protection order (CRN 2989).[5] Judge Harrop sentenced Mr Knuckey to a total sentence of four years ninemonths' imprisonment with respect to those charges and the four charges to which hehad already pleaded guilty. No real issue is taken with sentence. The appeal isessentially a conviction appeal with a sentence appeal to allow for adjustment to finalsentence if the conviction appeal is partially successful.The judgment[6] At the outset, the Judge acknowledged Mr Knuckey's admission that he hadthreatened to kill in numerous text messages. Mr Knuckey said they were not to betaken seriously. Mr Knuckey said that was simply the way he expressed himself in1 Police v Knuckey [2017] NZDC 11969.texts. Mr Knuckey acknowledged only one assault on the complainant but this wasnot covered in any of the charges.[7] The Judge then dealt briefly with the question of standard and burden of proof.He reminded himself of the tripartite responsibility where, as in this case, thedefendant gives evidence. He reminded himself also that each charge is a separatetrial. He acknowledged further in this case the relationship between Mr Knuckey andthe complainant was characterised by extensive methamphetamine use, and herecorded the position as follows:Self-evidently [the complainant's] admitted methamphetamine use during thisperiod and indeed during the incidents gives rise to a real question about thereliability of her evidence. It also does the same in respect of Mr Knuckey'saccounts because she said that both of them were under the influence ofmethamphetamine during these incidents. However, of course, the onus is onthe police to prove the charges, not on Mr Knuckey to disprove them or toprove anything. Accordingly, it will be particularly important to look forperipheral aspects of the evidence which support the credibility of the accountof either [the complainant] or Mr Knuckey and any circumstantial orcorroborating evidence there may be.[8] As Mr Bourke submitted this was a judicial equivalent of a s 122 reliabilitywarning to the jury.[9] The Judge then turned to the incidents giving rise to the charges. These werealleged to have occurred on 11 May, 25 May, 3 June, 11 June and 27 November 2016.[10] The Judge began with the 11 June charges. He said these had the strongestevidence. He recorded on that evening that the pair had an argument in the vehicleMr Knuckey was driving. Apparently Mr Knuckey was furious that the complainanthad spoken to the police about another matter. The complainant got out of the car asa result of the argument and Mr Knuckey was trying to coax her back into it. He useda baton to do so. He scrapped it on the gravel on the ground and then waved it in frontof her face so that she could feel the air disturbance created by the movement but itdid not connect. He wielded it like a sword, she said. She said she ran and climbedover a wall to escape him. She hid in the forest.[11] The Judge recalled the complainant's evidence that Mr Knuckey walked upand down the road six or seven times with a torch looking for her. After he left, theJudge recorded, the complainant's evidence that she walked to a house in the vicinityof the forest and the couple who occupied it let her in. They referred to her as soakingwet and crying.[12] Mr Knuckey acknowledged the drive and argument occurred but denied beingin possession of a police baton. He said she may have confused that incident with anextendable baton that a friend had.[13] Other evidence, the Judge indicated, corroborated the complainant's story. MrKnuckey's anger about the earlier statement to the police was reflected in a textmessage he sent on 12 June to a third party about it. In addition, the Judge found thatthe description about the way the baton was being used was too detailed to befabricated even though the pair had smoked methamphetamine on the day. It had, theJudge indicated "a ring of truth about it".2 The further details of hiding in the forestalso supported veracity. The complainant said she wished to be absorbed into theground so not to be noticed. She covered her mouth with a scarf so that her breathcould not be seen. These, the Judge considered, were details that were unlikely to besimply made up. They were too real.[14] Further, Mr Knuckey admitted to having a baton and (the Judge said,indirectly) he also admitted to using it in a manner short of beating the complainant.Further, the police found a baton in Mr Knuckey's car several weeks later.[15] The Judge rejected Mr Knuckey's denial as lacking credibility when seen incontext. The Judge then rightly indicated that an assault does not require actual bodilycontact. A threat to apply force is enough and he found that was proved beyond areasonable doubt. He dismissed a charge of threatening to kill also arising from theevents of 11 June, on the basis of insufficient evidence.[16] The Judge then moved to the charges arising on 27 November 2016 to whichMr Knuckey had pleaded not guilty: unlawful possession of a pistol, assaulting thecomplainant using the pistol, and physically abusing her in breach of a protectionorder. The Judge once again rehearsed and analysed the evidence.2 At [24].[17] Despite the fact that the complainant had a protection order in relation toMr Knuckey, she visited him at his house bus and, she said, slept on the couch at theother end of the bus until she got cold and climbed into bed with him. She found hisgun under her pillow. She described it as metal and black.[18] At some point Mr Knuckey grabbed the gun and placed it under thecomplainant's chin barrel up saying he was going to kill her. And then, according tothe complainant, he struck her on the side of the face with it. The complainant saidshe was caught in a difficult position. She was afraid to leave in case Mr Knuckey(who at that stage was very depressed) killed himself; but if she did not leave, she wasafraid he would kill her.[19] This evidence was corroborated by a text sent at midnight on the 27th sayinghe wanted to shoot himself, but lacked the courage despite hours of trying.[20] Mr Knuckey denied the gun incident although he accepted he had BB pistol inhis bed. But, he said, that was not the weapon the complainant described.[21] Notwithstanding this, the Judge noted two items of circumstantial evidencethat corroborated the complainant's story. The first was that the police found10 rounds of nine millimetre ammunition for a Luger pistol in the house bus. And thesecond was a series of texts in June in which Mr Knuckey advised various recipientsthat he was going to shoot the complainant and others. As the Judge noted "overallthere is ample evidence of Mr Knuckey both having and threatening to use firearms toharm people with whom he was disaffected."3 Thus, the Judge used the June texts aspropensity evidence. He found the charges proved beyond a reasonable doubt.[22] The Judge then moved to the events of 11 May. The charges were: threateningto kill and using a firearm when committing an imprisonable offence (threatening tokill).[23] Once again, the allegation was an argument developed between the pair, thistime while they drove to KFC in New Plymouth. The complainant was in her pyjamas3 At [42].but said she told Mr Knuckey she would get out of the car despite that. She said hermemory was poor and she recalled few of the details. At that point, the complainantwas then referred to her police statement of 7 June to refresh her memory about thedetails of the argument. She then said Mr Knuckey had a gun underneath his seat.She said it was "a cowboy looking thing". Her evidence then was that Mr Knuckeysaid he was going to shoot her that night. She said she believed him. He was wavingit around and pointing it at her and saying he would kill her. That said, the Judge notedthe complainant also admitted that she was (in the Judge's words) "deeply into hermethamphetamine use during May".4[24] Mr Knuckey denied these events occurred. He said he did not pull a gun out.In fact he never had one in the car.[25] The Judge found against Mr Knuckey. He concluded that there was ampleevidence that Mr Knuckey had firearms and had in other instances threatened to usethem to intimidate the complainant. She also had the distinctive recollection thatMr Knuckey had said in the course of the argument between them that if she left himit would be a "Romeo and Juliet scenario". Meaning the Judge concluded,Mr Knuckey threatened the complainant with a murder/suicide scenario.[26] The Judge found:5Notwithstanding her methamphetamine use and her difficulty in initiallyrecalling those details, I consider her account credible and I accept it. It isreinforced by her running away from the car in her pyjamas, something she ismost unlikely to have done if not genuinely fearful for her safety. I reject MrKnuckey's denials. It may be that there is limited space under the driver's seatof that particular vehicle [apparently, the onboard computer is located there],but I am satisfied he had the weapon secreted somewhere at hand andproduced it to reinforce his threats. It is also of some significance, though notin itself determinative that when asked if he had threatened her, he did notdeny having done so, merely saying that he could not recall doing so.[27] Next, the Judge turned to the charges in relation to 25 May: threatening to killand male assaults female. They arose from an incident in a side room of a workshopin Waitara. Mr Knuckey became angry and lunged at the complainant. She pushed4 At [50].5 At [55].him away. He came back at her and she slipped on the wet floor and landed on herback. He then pinned her down with his booted foot to her head, according to thecomplainant's evidence. She tried to fight him off but he pushed his foot down harderon her face, she said.[28] In cross-examination, the complainant accepted that she was probably smokingmethamphetamine on the day.[29] Judge Harrop did not accept that these charges were proved. There was, theJudge noted, no corroborating evidence of injury nor (in contrast to other charges)collateral text messages confirming what had happened in some way.6 He concluded:7While based on my credibility findings in favour of [the complainant] on othercharges, I think it likely events occurred as she said, I am not brought to theposition where I am satisfied beyond reasonable doubt of Mr Knuckey's guilton these charges and they are both dismissed.[30] Further charges of threatening to kill and male assaults female arose from anincident on 3 June. The complainant said she slept in her car outside the Highway 61gang pad that night and in the morning Mr Knuckey knocked on the car window to gether out. After some tense exchanges, she later came inside and had a coffee. Anargument developed. The complainant said Mr Knuckey threw her against one of thewalls in a side room and threatened to kill her because she was a "lying bitch". Hesmacked her on the side of the face and punched her in the head causing her nose tobleed. She said she was very afraid and that his actions were completely unjustbecause she had done nothing wrong. Mr Knuckey was apparently convinced she hadbeen sleeping with one of his associates.[31] The Judge referred to corroborating texts. In the early hours of 3 June, therewas a text along these lines from Mr Knuckey to the complainant:I will fucken kill u. U lying fucken piece of shit cunt y do u fucken lie allthe fucken time cunt.[32] And then at 9.59 am a text from the complainant in these terms:6 At [62].7 At [63].You just punched me in the head and face AGAIN coz you think I suckedJamie's dick. I'm leavin here in my car and you'll never see me again.[33] Further texts along a similar vein were sent the next day and again on the 5th.On the 6th, Mr Knuckey's text in reply was as follows:No u got smacked for lying.[34] On the basis of this material, the Judge did not hesitate to find the 3 Junecharges proved.Appeal standard and grounds[35] As I have said, this is primarily a conviction appeal although there is also asentence appeal. As to the sentence appeal, Mr Hannam made it clear that that appealwas only relevant if the conviction appeal is wholly or partially successful as this willrequire a sentence adjustment.[36] The conviction appeal identifies three grounds:(a) A miscarriage of justice occurred because the complainant's evidencein court was based upon a wholly unreliable police statement which sheused to refresh her memory. The unreliability arose from the fact thatin evidence the complainant accepted that at the time she gave herpolice statement, she was under the influence of methamphetamine.(b) The trial Judge reached findings not available on the evidence, whichmaterially affected the decision of the Court causing a miscarriage ofjustice.(c) There is now fresh evidence which undermines the complainant'sveracity. That evidence should be admitted on appeal as it is cogentand demonstrates that a miscarriage of justice has occurred.[37] This appeal essentially attacks the factual findings made by a Judge sittingalone in accordance with the appeal ground set out in s 232(2)(b) of the CriminalProcedure Act 2011. The appellant must therefore demonstrate that the Judge'sassessment of the evidence was attended by such error that there is "a real risk" theoutcome of the trial was affected.[38] As this Court has noted in Roest v R factual findings that form the basis of averdict reached by a Judge sitting alone are to be treated on appeal as the equivalentof a jury verdict.8 So where an appeal amounts to a challenge to those findings, theprinciples in R v Owen will apply accordingly.9 It is well to repeat those.(a) The appellate court is performing a review function, not one ofsubstituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court.Assessment of the honesty and reliability of the witnesses is a classicexample.(c) The weight to be given to individual pieces of evidence is essentiallya jury function.(d) Reasonable minds may disagree on matters of fact.(e) Under our judicial system the body charged with finding the facts isthe jury. Appellate courts should not lightly interfere in this area.(f) An appellant who invokes s 385(1)(a)[10] must recognise that theappellate court is not conducting a retrial on the written record. Theappellant must articulate clearly and precisely in what respect orrespects the verdict is said to be unreasonable and why, after makingproper allowance for the points made above, the verdict shouldnevertheless be set aside.[39] It is not for this Court to set aside a verdict on the basis that I disagree with theJudge's factual assessment. A higher standard is required to meet the "real risk" test.[40] As to the proposed new evidence in relation to ground (c), I will address thatwhen turning to that ground.8 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].9 R v Owen [2007] NZSC 102; [2008] 2 NZLR 37 at [13] affirming the principles set out in R vMunroe [2007] NZCA 510; [2008] 2 NZLR 87.10 Section 385 of the Crimes Act 1961 was replaced by s 232 of the Criminal Procedure Act 2011.The new section does not materially change the approach to conviction appeals: Wiley v R [2016]NZCA 28, [2016] 3 NZLR 1 at [56].Unreliable evidence[41] This argument focused primarily on the charges of 11 May 2015 arising fromthe events in the vehicle. This combination of charges was the most serious chargefaced by Mr Knuckey. The complainant said that Mr Knuckey had obtained the gunused to threaten to kill her from under the driver's seat. Initially however, she had norecollection of the gun at all and did not mention it in her evidence-in-chief. Thecomplainant repeatedly conceded in answers to the Court that her memory was poorand in particular that her recollection of details was very "sporadic". In order torefresh her memory, her relevant police statement was given to her. It referred to thegun. The complainant then recalled it, and described what happened incorporatingthat detail.[42] And then in cross-examination she made an important concession:And you'll also understand that I was under the influence ofmethamphetamine when those statements were made yea.[43] This, Mr Hannam submitted, undermined entirely the reliability of thestatement upon which the complainant in turn relied in order to recollect the gun.[44] In my view, the complainant's reference to using methamphetamine in relationto these statements does not render them fatally unreliable. It is, I accept, possible thatthe complainant was really saying she was in the grip of methamphetamine at the verytime she made the statement, though when her evidence is seen in its wider contextthis seems unlikely. The complainant says on a number of occasions that May was aperiod of heavy use. She does not appear to have been suggesting that she wascompletely out of control on methamphetamine at the time of the relevant statement.And contemporaneous police notes do not record the sort of odd behaviour that onewould associate with a methamphetamine high. One would have expected they would.But even if methamphetamine use had some influence on her perceptions at the time(and I simply accept that is a possibility), there is other evidence to suggest that herrecollection in that respect at the time of the police statement was reliable nonetheless.[45] Mr Knuckey admitted having a pistol and indeed was charged with unlawfulpossession of firearms – in this case a sawn-off shotgun. Further, there was no pistolactually found, but 10 rounds of Luger ammunition were. That suggests verypowerfully that Mr Knuckey did have a hand gun capable of firing bullets and got ridof it. The complainant did say the gun looked like some kind of "cowboy lookingthing". This may have been a misdescription – a Luger certainly does not look like aColt 45, even to the uninitiated. But the other possibility is that in fact Mr Knuckeyhad more than one pistol.[46] The long and short of this is that the surrounding evidence suggests that thedetail in the police statement was in fact more reliable than the initial viva voceevidence given by the complainant in court, not less reliable than it. I reject thatground accordingly.Conclusions not available on the evidence[47] Effectively, three points were raised. First, Mr Hannam argued that it was notopen to the Judge to find that Mr Knuckey possessed and wielded pistols. Althoughthe complainant described the weapons she saw as a "cowboy looking thing" and ablack "police-type" gun, the appellant argued these descriptions were vague and nofirearms anything like these had been found. The only actual evidence of any gun wasa BB gun Mr Knuckey admitted he owned, and it was shown to the complainant duringthe trial.[48] I do not accept this argument. There was more than sufficient evidence for theJudge to infer from independent sources that the complainant's evidence was reliableand able to be believed. Mr Knuckey was found in possession of pistol ammunition.The texts referred to him threatening to shoot himself and putting a bullet in thecomplainant's head. This cannot have been a reference to his shotgun. They do notfire bullets. It is much more likely to be a reference to a pistol.[49] Overall the circumstantial evidence was very much in support of thecomplainant's evidence. Each item did not need to be enough on its own to establishproof beyond a reasonable doubt provided that in combination the complainant'sevidence and the collateral evidence got to that point. I am satisfied there wassufficient evidence for the Judge to come to that conclusion.[50] Then under this heading Mr Hannam suggests it was most unusual for thecomplainant, if she was genuinely afraid of Mr Knuckey, to go into the house bus,have a pistol pointed to her chin and then calmly go into the dwelling on the propertyand have coffee with Mr Knuckey's cousin. It was far too unusual to be treated asreliable evidence of the truth. It was irrational not simply to flee. Perhaps,Mr Hannam suggested, this reflected drug consumption or, alternatively, there was noassault in the house bus at all. Either way, a reasonable doubt was created.[51] Once again, I do not accept this. There is ample expert evidence routinelycalled in courts these days to establish why traumatised intimate partners return totheir abusers time and again to be retraumatised. They do not run away. They stay.[52] The test of truth and reliability is not necessarily rationality in all cases. If itwas, the criminal courts would not be quite so busy.[53] The final argument under this heading related to Judge Harrop's reliance ontext messages to support a number of the charges. Mr Hannam submitted the textswere only evidence of anger and frustration in the relationship. They could not belinked to any particular date and were too generic in nature.[54] I do not agree with this argument on the facts. A number of the texts wereroughly contemporaneous with incidents that were the subject of particular charges.But even if that were not so, as generic indicators of Mr Knuckey's attitude, aggressionand anger directed toward the complainant, they were still supportive of theprosecution case.New evidence[55] Mr Hannam produced the affidavit of a Mr Tett. In it, Mr Tett deposed that hehad a close familial type of relationship with the complainant and despite that closerelationship, she did not tell him about any of the complaints she made to the police,or the incidents that formed the basis of such complaints. This, Mr Hannam submitted,called into question the complainant's veracity and credibility.[56] The test of adducing fresh evidence on appeal is well known. The evidenceshould generally speaking be fresh and not reasonably available at the time of trial –although where evidence is particularly material, that requirement may well berelaxed.11 And it must be cogent.[57] This evidence does not meet any of the tests. Mr Tett could have been calledto give this evidence at the time of trial. But even if he was, it was most unlikely tobe treated as decisively cogent. It amounted to no more than "we were close and shewould have told me". This is not necessarily logical at all. There could have beenmany reasons why the complainant did not do that. She may not have been as closeto Mr Tett as he had apprehended. She may have been too embarrassed to speak. Shemay have wanted to keep it to herself.[58] Mr Tett's evidence is not admissible accordingly, and would not have madeany difference.Disposition[59] The appeal against conviction must be dismissed accordingly. The appealagainst sentence is also dismissed as a result.Williams JSolicitors:Julian Cameron Hannam, Barristers & Solicitors, New PlymouthCrown Solicitor, New Plymouth11 R v Bain [2004] 1 NZLR 638 (CA) at [22].