SAMATUA (aka SOLOMONA) v POLICE [2020] NZHC 3175

SAMATUA (aka SOLOMONA) v POLICE [2020] NZHC 3175 [3 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000291[2020] NZHC 3175BETWEEN ROBERT SAMATUA (aka SOLOMONA)AppellantAND NEW ZEALAND POLICERespondentHearing: 1 December 2020Appearances: Appellant in personHD Benson-Pope for RespondentJudgment: 3 December 2020JUDGMENT OF DOWNS JThis judgment was delivered by me on Thursday, 3 December 2020 at 10 am.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Manukau.Copy to: Appellant[1] In July this year, Judge D J McNaughton found Robert Samatua guilty ofpossessing cannabis paraphernalia and assaulting a Police officer in the execution ofduty.1 The Judge imposed no penalty, other than directing Mr Samatua to appear forsentence if called on within six months.2[2] Mr Samatua appeals conviction. He is self-represented; legal aid was declined.[3] At the hearing of the appeal, Mr Samatua said he wished to pursue only theconviction on the assault charge.3 Mr Samatua said he accepted guilt on theparaphernalia charge.[4] Little background is required. Police were called to a home on24 February 2019. They were told two brothers were arguing, and one had refused toleave. Mr Samatua was in a bedroom. Constable Felix Ellis said Mr Samatua toldhim to "fuck off" and turn the lights off. The officer then noticed cannabisparaphernalia. He arrested Mr Samatua for possession of that. The officer saidMr Samatua pretended to be asleep, so he and Mr Samatua's brother had to carry himto the Police car. Mr Samatua attempted to trip his brother, and once he was in the car,refused to bend his legs. The officer said as they drove away, Mr Samatua kicked himto the back of the head.[5] Constable Hannah Park corroborated much of Constable Ellis' account.[6] Mr Samatua gave evidence. He said he could not recall the incident as he was"sleeping comfortably in my bed". He said he had been drinking heavily, and takencodeine (for a longstanding back injury).[7] Mr Samatua's mother gave evidence too. She said she saw Mr Samatua beingcarried out the front door. She said he appeared asleep.[8] The Judge accepted Mr Samatua was asleep when Police arrived, and that hewas intoxicated. However, the Judge concluded Mr Samatua intentionally kicked1 Police v Samatua [2020] NZDC 14491.2 Police v Samatua [2020] NZDC 14508.3 Mr Samatua did not file written submissions.Constable Ellis, having woken once Police arrived. The Judge noted whileMr Samatua's intent might have been influenced by alcohol, "it was still an intentionand a deliberate act".4[9] I asked Mr Samatua why I should allow his appeal in relation to the assault.He said he was asleep throughout the incident, and the Judge was wrong to findotherwise. Or in terms of the Criminal Procedure Act 2011, "the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice hasoccurred".5 Mr Samatua added that at the end of the hearing before JudgeMcNaughton, he approached Constable Ellis and apologised (even though he couldnot remember what happened).[10] This is a simple case. It was open to the Judge to accept the evidence of theofficers and reject the core aspect of Mr Samatua's account that he was asleep whenhe kicked the officer. The Judge said:6[Mr Samatua] did exhibit behaviours after that which showed at least a limiteddegree of consciousness, firstly in telling Constable Ellis to fuck off and turnthe light out. So he was at least conscious that someone was there and thelight was on. As he was carried out of the house and down the steps, he did, Ifind, wrap his leg around his brother's leg in the way that constable describedit, which again indicates a conscious effort perhaps to frustrate what the policeand his brother were doing getting him to the patrol car. The rigidity of hislegs was another conscious effort to frustrate the police and it is no accidentthat when he lashed out with his foot, it connected with the back of ConstableEllis' head, the officer that had arrested him. All of those acts show at leastsome limited consciousness and intention, and while that maybe a drunkenintoxicated intention, it was still an intention and a deliberate act, andaccordingly I am satisfied beyond reasonable doubt that this was an intentionalassault. All of this background information is a mitigating circumstance butnot a defence to the charge.[11] This reasoning discloses no error. As Mr Benson-Pope for the respondentobserved, there was "ample evidence" to support the conclusion the assault wasdeliberate (rather than an involuntary act or absent criminal intent, whether throughintoxication or otherwise).4 Police v Samatua, above n 1, at [26].5 Criminal Procedure Act 2011, s 232(2)(b).6 Police v Samatua, above n 1, at [26].[12] The appeal is dismissed...Downs J