STEWART v NEW ZEALAND POLICE [2019] NZHC 1743

STEWART v NEW ZEALAND POLICE [2019] NZHC 1743 [23 July 2019]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2019-454-000011[2019] NZHC 1743BETWEEN PHILIP LESLIE STEWARTAppellantAND NEW ZEALAND POLICERespondentHearing: 23 July 2019Appearances: Appellant in personJ H Harvey for RespondentJudgment: 23 July 2019JUDGMENT OF COOKE J[1] Mr Stewart was convicted of assault with a weapon1 and trespass2 after aJudge-alone trial before Judge Rowe in the District Court at Palmerston North on19 October 2018.3 Mr Stewart filed a notice of appeal against his convictions on1 May 2019. He now applies for leave to appeal out of time.[2] On 24 June 2019, the Court gave leave for Mr Stewart's counsel to withdraw.Mr Stewart proceeds with his application without counsel.Summary of offending[3] Mr Stewart had been in a relationship with the complainant for about one year,during which period both parties had resided together at a remote rural address inOhingaiti, about 90 km of Palmerston North. That relationship had ended1 Crimes Act 1961, s 202C; maximum penalty five years' imprisonment.2 Trespass Act 1980, ss 3(1) and 11(2)(a); maximum penalty three months' imprisonment.3 Police v Stewart [2018] NZDC 24140.approximately one month before the alleged offending. On 7 November 2017,Mr Stewart was issued with a trespass notice prohibiting him from attending theaddress for a period of two years.[4] On 4 December 2017, Mr Stewart arranged to collect his belongings from theaddress while a police officer was present. The police officer decided that Mr Stewartcould not collect any items that were claimed by both Mr Stewart and the complainant.One item claimed by both parties was a water trough.[5] Later that day, in the absence of the police officer, Mr Stewart returned to theaddress, by agreement, to collect two canopies he had left behind outside theboundaries of the property. The complainant went to the front gate of the property toensure that Mr Stewart only took the canopies before leaving. After placing thecanopies on his ute, Mr Stewart climbed over the fence and entered the property. Thecomplainant told him that he was trespassing and that he had to leave. Mr Stewartrefused and started walking towards the water trough.[6] Concerned that Mr Stewart might attempt to take the water trough, thecomplainant stood in front of Mr Stewart and began pushing him and grabbing at histop. Unable to physically stop him, the complainant then said she would take his keys,which had been left in the ute. She then climbed over the fence and headed for theute. Mr Stewart ran after the complainant, picking up an aluminium tent pole alongthe way. After climbing over the fence, Mr Stewart waved the tent pole towards thecomplainant with a wild look in his eyes.[7] Mr Stewart hit a small Jack Russell dog that was nearby, which yelped and ranoff in pain. He then walked past the complainant and, as he was climbing back overthe fence, hit her across the left shoulder with the tent pole. He then left the propertyin his ute. The complainant sustained a sore shoulder and red welt as a result of theassault.District Court decision[8] The Judge issued a reserved decision on 22 November 2018. The judgmentcomprehensively addresses and analyses the evidence.[9] In evidence, Mr Stewart explained that while he was collecting the canopies,the complainant was making very hurtful and sarcastic comments to him. The Judgesaid that the complainant accepted that she made some comments of this nature,although she disagreed about the details. Mr Stewart's evidence was that he originallyhad no intention of entering the property but decided he would take the water troughto restore his dignity after the comments the complainant had made. On that basis, theJudge found the trespass charge proven beyond reasonable doubt.[10] In relation to the assault charge, Mr Stewart accepted that he had applied forceto the complainant with the tent pole, although he maintained that he merely pokedher with it as opposed to bring it down forcefully onto her collarbone. He relied onself-defence to defend the charge. He claimed that the complainant had encouragedthe dog to attack him, which is why he struck the dog. He claimed that the complainantgrabbed him around the waist as he was climbing over the fence and tried to stop himfrom leaving. In his version of events, it was either when the complainant was comingto grab him, or while she was grabbing him, that he prodded her with the tent pole.[11] The Judge rejected Mr Stewart's version of events for the following reasons:(a) Mr Stewart claimed that he did not know why he originally picked upthe tent pole.(b) Mr Stewart said that he hit the dog because "it needed discipline".(c) Mr Stewart said he could not remember whether he raised the tent polein a threatening manner before he struck the complainant with it.(d) Mr Stewart's claim that the complainant grabbed him to stop him fromleaving was at odds with his agreement that the complainant had earlierwanted him to leave the property.(e) Mr Stewart was inconsistent as to where the complainant was when heprodded her with the pole — she was either half a metre away or alreadygrabbing him.(f) Mr Stewart's credibility was undermined by the fact that, in his initialstatement to police on the day of the offending, he denied that he hadentered the property, hit the dog or hit the complainant. He also claimedthat he had no knowledge of the tent pole, which was found on his ute.(g) The complainants account was credible because she gave consistentand convincing detail about the events, made reasonable concessions,and clearly had an injury consistent with being struck forcefully by adownwards motion, which was demonstrated with photographicevidence. She also immediately complained to police about the matter.(h) Mr Stewart's own evidence demonstrated that he clearly had motive tohit the complainant.[12] The Judge referred to allegations by both parties of earlier incidents of assault.Ultimately, the Judge did not regard those allegations as helpful or probative indetermining what occurred on 4 December 2017. He suggested that, if Mr Stewarttook issue with how the police had dealt with these earlier incidents, he could pursuethe matter in separate proceedings before the Disputes Tribunal.[13] The Judge rejected that Mr Stewart acted in self-defence and found the chargedproved beyond reasonable doubt.Grounds for appeal[14] In an earlier memorandum to the Court, Mr Stewart's former counsel said thatthe appeal involved three grounds:(a) That Judge Rowe failed to meet the minimum standards of criminalprocedure prescribed by s 25 of the New Zealand Bill of Rights Act1990.(b) That Judge Rowe failed to properly consider the pattern of priordomestic violence when considering his self-defence narrative.(c) That Judge Rowe placed incorrect weight on the credibility of thecomplainant.[15] In his memorandum dated 17 July 2019 filed in response to Simon France J'sminute of 24 June 2019, Mr Stewart sets out the history of his relationship with thecomplainant in detail. He recounts the previous allegations of assault that he referredto before Judge Rowe and explains his belief that the police did not treat his complaintsseriously. Mr Stewart goes on to express his views on how the police and courts treatdomestic violence against men. In particular, he takes with the adversarial nature ofthe criminal justice system, which he says focuses unfairly on the culpability of theaccused and fails to uncover the truth. Mr Stewart concludes by saying that he wouldlike to be taken seriously and be allowed to pursue his right to appeal as provided forby the New Zealand Bill of Rights Act.Discussion[16] Extensions of time within which to appeal may be granted under s 273(3) ofthe Criminal Procedure Act 2011. That provision applies by operation of s 43(1) ofthe Bail Act. For an application for an extension of time to appeal to be granted itmust be in the interests of justice to do so. Extension of time applications ultimatelyreduce to two questions: the reasons the appeal was filed late and the merits of theprospective appeal points.4[17] In his minute of 24 June 2019, Simon France J advised Mr Stewart that thegeneral nature of his challenge to minimum standards of criminal procedure lackedsufficient detail as to what minimum standards he claimed were not met and on whatbasis he claimed those standards were not met. Simon France J said that Mr Stewartwould have to address that matter, and explain why his notice of appeal was filed outof time, if he is to be granted leave to appeal.[18] Mr Stewart has not addressed those matters. The discursive nature of hismemorandum does not articulate any ground of appeal.4 Mikus v R [2011] NZCA 298 at [26].Standard for appeal[19] For Mr Stewart to succeed on appeal, he must be able to satisfy the Court thatthe trial 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 other reason.5 A miscarriage of justice is defined as any error, irregularity, oroccurrence that created a real risk that the outcome of the trial was affected, or thatresulted in an unfair trial or a trial that was a nullity.6 A "real risk" is where "there isa reasonable possibility that a not guilty (or more favourable) verdict might have beendelivered if nothing had gone wrong".7[20] The Supreme Court has recently explained that a challenge to a trial judge'sassessment of the evidence is an appeal by way of rehearing conducted on the basis ofthe principles established in Austin, Nichols & Co Inc v Stichting Lodestar.8 Thatmeans the appellate court must reach its own view on the evidence, although theburden remains on the appellant to demonstrate that the trial judge erred in his or herassessment.9 Appropriate weight must be given to advantages the trial judge wouldhave had in assessing matters of credibility.10Submissions for the Crown[21] In his submissions on behalf of the respondent, Mr Harvey attempted toaddress any appeal ground. He submitted that no such ground was arguable. Heemphasised that Mr Stewart has not filed any affidavit evidence to support his claims.[22] In relation to the New Zealand Bill of Rights argument, Mr Harvey submittedthat there was nothing from the record of the Judge's decision that suggested anyaspect of the trial was unusual or unfair, and pointed out that counsel to assistMr Stewart was present at trial who can be presumed to have raised any such issues.5 Criminal Procedure Act 2011, s 232(2).6 Section 232(4).7 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].8 Sena v Police [2019] NZSC 55 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007]NZSC 103, [2008] 2 NZLR 141.9 At [38].10 At [38]–[40].[23] Although there was some delay in bringing the matter to hearing (the trialoccurred one year after the offending), this was partially due to Mr Stewart dismissinganother former counsel in August 2018.[24] The Judge was attentive to the burden of proof, which ensured that Mr Stewartwas afforded his right to be presumed innocent until proven guilty.[25] There is also no evidence to suggest that Mr Stewart was compelled to giveevidence. As Mr Harvey pointed out, it is common for a defendant pursuing self-defence to give evidence in order to establish the circumstances as he or she perceivedthem to be at the time.[26] Mr Harvey submitted that the allegations of previous assault were propensityevidence, which would ordinarily be admissible as evidence of the dynamics of therelationship.11 The Judge, however, considered that the competing accounts betweenMr Stewart and the complainant lacked enough detail to be sufficiently probative asevidence. Accordingly, he submitted, the Judge correctly set the evidence aside. Inany case, the point was clearly raised before the Judge and dismissed. The Judge hadnot failed to take Mr Stewart's evidence into account.[27] Finally, with respect to the complainant's credibility, Mr Harvey emphasisedthat no affidavit evidence has been filed by Mr Stewart and so it was difficult tounderstand the nature of his challenge on this point. In any case, the Judge explainedin some detail why he preferred the evidence of the complainant over that ofMr Stewart, so there is no basis upon which to disturb his assessment on appeal.Conclusion[28] Although Mr Stewart has not fully explained the reasons why the notice ofappeal was filed out of time, the period of delay has not been long, and it is apparentthat there have been difficulties in the relationship he has had with counsel.Mr Stewart is a litigant in person. It seems to me to be important that the Court addresshis proposed appeal on its merits rather than dismissing the application on this basis11 Evidence Act 2006, s 41; and Campbell-Joyce v R [2016] NZCA 192.alone. If there is some arguable merit in the appeal, it seems to me it would beappropriate to grant leave to appeal out of time.[29] Mr Stewart emphasised in his oral submissions that he was seeking a right tojustice. He was fighting a number of issues, and that he needed to clear his name tostart afresh. The key question, though, is whether he has an arguable case on his appealin terms of the offences for which he has been convicted.[30] Mr Stewart clearly takes issue with the evidence of the complainant. Hisposition appears to be that the Judge was wrong to accept her evidence, at least in partbecause of Mr Stewart's allegations concerning her past behaviour. That themeunderpins both the second and third proposed grounds of appeal. I accept Mr Harvey'ssubmission, however, that the Judge rightly treated the background complaintsMr Stewart makes as not relevant to the offending on 4 December 2017.[31] On Mr Stewart's version of events on 4 December 2017 — that he had enteredthe property without permission, but only poked rather than hit the victim with the tentpole — he has still committed the offences. Mr Stewart's argument that he wasprovoked by what the complainant said to him does not provide a defence. In termsof his claim of self-defence, it seems to me that the Judge has properly scrutinised theevidence, and then made appropriate findings for reasons properly articulated. I seeno error in this approach, and am not persuaded that the Judge was wrong to makethese findings. Mr Stewart has not advanced any specific challenge against theJudge's reasoning on credibility, and there does not appear to be any basis upon whichthis Court could depart from it. Equally, there appears to be no basis upon which tocriticise the Judge for failing to make findings on Mr Stewart's allegations concerningthe complaints past behaviour. In his memorandum of 17 July 2019, much ofMr Stewart's frustration seemed to be directed at the police. This application for leaveto appeal is not the appropriate venue in which to deal with those matters.[32] For those reasons, Mr Stewart has failed to demonstrate that he has an arguableappeal, and that, in the circumstances, it would be in the interests of justice to grantleave for him to appeal out of time.Result[33] The application for leave to appeal is dismissed.Cooke JSolicitors:BVA, Palmerston North for Respondent