TAIWHANGA v NEW ZEALAND POLICE [2019] NZHC 1164

TAIWHANGA v NEW ZEALAND POLICE [2019] NZHC 1164 [14 May 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-13[2019] NZHC 1164BETWEEN REVELL DOUGLAS TAIWHANGAAppellantAND NEW ZEALAND POLICERespondentHearing: 14 May 2019Appearances: L Lafferty for AppellantF Cleary for RespondentJudgment: 14 May 2019ORAL JUDGMENT OF GRICE J[1] On 28 January 2019, Mr Taiwhanga appeared before the Napier District Court.In an oral decision on the same day,1 the Judge found Mr Taiwhanga guilty of wilfullydoing an indecent act in a public place.2 Mr Taiwhanga was later sentenced to12 months of intensive supervision.3[2] Mr Taiwhanga appeals his conviction on the basis that the Judge erred byfailing to "enunciate the burden of proving the charge and the test of proof".4Factual background[3] On 21 August 2018 a witness was walking along the Marine Parade in Napierwith her four-year-old son around lunchtime. She said she walked past a Māori man1 Police v Taiwhanga [2018] NZDC 6890.2 Crimes Act 1961, s 125(1), maximum penalty of two years' imprisonment.3 Police v Taiwhanga [2018] NZDC 5667.4 I also deal below with the submission that the Judge failed to consider all the evidence and failedto give proper reasons. These were expanded on in argument.sitting on a bench. She said she saw his hand moving in a masturbating motion in hisgroin area. When she walked past him, she said he sped up this motion. Concernedby this behaviour the witness rang the police. When Constable O'Leary arrived thewitness told him what she had seen and described the man. The description fitted thatof Mr Taiwhanga. The witness took the officer back to the bench where the witnesssays she had seen the man masturbating. The witness said she did not see anythingother than the man's hand and she was unsure of which hand was being used. Whenasked about the incident by the police officer, Mr Taiwhanga said he had been "takinga piss" and spitting.District Court decision[4] In the District Court, the Judge noted the defence to the charge. It was thatthere was no certainty as to identification, as there was no adequate linkage betweenthe man the witness saw and Mr Taiwhanga. The Judge rejected this argument on thebasis that Mr Taiwhanga was apprehended and arrested shortly after the incident thatthe witness had described. Mr Taiwhanga also took the police directly to the benchwhere the witness said she had seen the man masturbating. The Judge also noted thatMr Taiwhanga matched the description that the witness had given.[5] On the issue of whether or not the behaviour observed was in fact masturbation,the Judge said that although no penis or other skin was seen, the actions constitutedmasturbation, which must be indecent in the minds of right minded people. The Judgesaid "[i]t is simply a reasonable inference that he was masturbating in a public place,and that in my view is indecent".5 The Judge convicted Mr Taiwhanga on that basis.Law on appeal[6] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the HighCourt must allow an appeal if the Court is satisfied that a "miscarriage of justice hasoccurred for any reason".5 Police v Taiwhanga [2018] NZDC 6890 at [8].[7] A "miscarriage of justice" is defined in s 232(4) as "any error, irregularity, oroccurrence in or relation to or affecting the trial that [either] has created a real risk thatthe outcome of the trial was affected; or has resulted in an unfair trial or a trial thatwas a nullity". As demonstrated in the legislation, and reiterated by the SupremeCourt, not every error or irregularity causes a miscarriage of justice. Importantly, "amiscarriage is more than an inconsequential or immaterial mistake or irregularity".6[8] An appellate Court assessing the appeal has limitations as it does not see orhear directly from the witnesses.7 The Court should only interfere with the factualfindings of the trial judge "in exceptional circumstances".8[9] Section 232(2)(b) of the Criminal Procedure Act provides that the High Courtmust allow an appeal where a Judge has erred in his or her assessment of the evidenceto such an extent that a miscarriage of justice has occurred. The verdict of a Judgesitting alone is to be treated as the equivalent of a jury's verdict.9 R v Owen affirmedthe principles set out in the R v Munro. To that extent, the principles set out by theSupreme Court in R v Owen apply:10(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 ofthe honesty and reliability of the witnesses is a classic example.(c) The weight to be given to individual pieces of evidence is essentially ajury function.(d) Reasonable minds may disagree on facts.(e) Under our judicial system the body charged with finding the facts is thejury. Appellate courts should not lightly interfere in this area.6 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].7 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]–[31].8 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38]; affirmed in McLean v R [2017]NZHC 3127 at [10].9 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].10 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13]; affirming the principles set out in R vMunroe [2007] NZCA 510, [2008] 2 NZLR 87.(f) An appellant who invokes s 385(1)(a)11 must recognise that the appellatecourt is not conducting a retrial on the written record. The appellant mustarticulate clearly and precisely in what respect or respects the verdict is saidto be unreasonable and why, after making proper allowance for the pointsmade above, the verdict should nevertheless be set aside.[10] A simple disagreement with a Judge's factual assessment is thereforeinsufficient, "[s]omething more is required to meet the "real risk" test".12Discussion[11] The appeal ground here is that the Judge failed to "enunciate the burden ofproving the charge and the test of proof". Although it is phrased as a failure toexpressly identify the burden of proof, it is also an argument that the proof before theJudge was insufficient to support the charge. Mr Lafferty enlarged on this in hissubmissions. He said that while the appellant did not give evidence, he had given anexplanation to police, and that should have weighed more heavily in the Judge'sassessment. In particular, he says the Judge should not have made the inferences hedid in favour of the prosecution and the Judge did not explicitly reject the defendant'sexplanation.[12] However, in my view the Judge implicitly rejected the defendant's explanation.The defendant at the time explained he was "taking a piss". This does not appearconsistent with the observations of the witness that the defendant was seatedthroughout the incident. The Judge said:13[7] The defence is that there is no certainty as to identification, noadequate linkage, but in my view the fact that the defendant was arrested veryshortly after [the witness] had seen him, that he took the police to the verypark bench where [the witness] said she observed him masturbating, theninsofar as time and place are concerned, in my view there is adequate linkageto put Mr Taiwhanga on the spot so to speak.[8] Insofar as whether or not it was an indecent act performed given that[the witness] did not see his penis or his skin, in my view his actions constitutemasturbation. Masturbation in a public area must be indecent in the minds ofright minded people. It may be that when members of the public see suchthings that they should go and take a closer look, but that is simply impractical,11 Section 385 of the Crimes Act 1961 was replaced by s 232 of the Criminal Procedure Act. Thenew section does not materially change the approach to conviction appeals: Wiley v R [2016]NZCA 28, [2016] 3 NZLR 1 at [56].12 Gotty v R [2017] NZCA 528 at [15].13 Police v Taiwhanga [2018] NZDC 6890 (emphasis added).particularly when she was with a young child, and in my view, it is just simplyunreasonable to expect a member of the public to see someone they suspectmasturbating, not once, but on two or three occasions to go up and have acloser look. It simply is a reasonable inference that he was masturbating in apublic place, and that in my view is indecent and he is convicted.[13] On the submission that the Judge failed to note the standard of proof requiredto make findings in a criminal matter, the Crown submits that the Judge is anexperienced District Court Judge and it is inherently unlikely that he was unaware ofthe criminal burden. In that respect I note the remarks of Justice Priestly in Lolohea vPolice where he said:14A District Court Judge sitting in summary jurisdiction who is faced withconflicting evidence of the type we have here, does not in my judgment needto give him or herself directions on the burden of proof. The District CourtJudges by training and temperament have the necessary legal knowledge andforensic skills to grapple with the criminal onus without having to remindthemselves about it during the course of giving decisions.It is unnecessary in this case for the Judge to have reminded himself of the criminalburden of proof. This ground must also fail.[14] Turning to the issue Mr Taiwhanga raised in relation to the evidence referredto in the Judge's decision, in my view it is a simply a disagreement with the Judge'sfactual assessment. As noted in Gotty v R, "[s]omething more is required to meet the"real risk" test.15[15] Mr Taiwhanga in his submissions outlined the evidence before the Judge andpointed to why he did not believe it supported the factual assessment that the Judgemade. However, while Mr Taiwhanga may not agree with that assessment, the Judgehad the facts before him upon which to base his decision and make the inferences thathe did.[16] Therefore, this submission must also fail.14 Lolohea v Police HC Whangarei AP16/01, 19 June 2001 at [15].15 Gotty v R [2017] NZCA 528 at [15].Conclusion[17] I conclude that there was no error in the District Court judgment. The appealis dismissed._________________Grice JSolicitors:L Lafferty, NapierCrown Solicitor's Office, Napier