WESSELINGH v NEW ZEALAND POLICE [2022] NZHC 2161

WESSELINGH v NEW ZEALAND POLICE [2022] NZHC 2161 [29 August 2022]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2022-476-000006[2022] NZHC 2161BETWEEN STEPHEN WESSELINGHAppellantAND NEW ZEALAND POLICERespondentHearing: 25 August 2022(Heard at Dunedin)Appearances: Mr Wesselingh appears in personA R McRae for RespondentJudgment: 29 August 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 29 August 2022 at 3.30 pm.Registrar/Deputy RegistrarDate:Introduction[1] Stephen Wesselingh was convicted of a charge of assault1 following aJudge-alone trial.2 He appeals.Background and District Court decision[2] Before the commencement of the trial Mr Wesselingh said he did not havedisclosure from the police. On further inquiry it appeared Mr Wesselingh had beensent a full copy of the police case but no longer had those documents in his possession.The Judge was satisfied Mr Wesselingh had received disclosure but asked police tomake another copy of the documents available for the purposes of the trial.[3] The police case was Mr Wesselingh assaulted Mr McGregor, a Ministry ofJustice bailiff. On 2 May 2021, Mr McGregor, in uniform, travelled to the address ofAscot Manufacturing Limited to execute a warrant issued by the Court to seizeproperty for unpaid fines. Mr McGregor arrived to find a gate to the property locked.However, the company was on a corner site and Mr McGregor was able to enter via agate on the other street which was unlocked and open. He drove his vehicle in andstopped. He telephoned a number he had for the address, intending to speak to themanager. He spoke to Mr Wesselingh.[4] Mr Wesselingh accepted he spoke to Mr McGregor over the phone and thatMr McGregor identified himself and said why he was at the property. A short timeafter the call ended Mr McGregor said Mr Wesselingh approached him from one ofthe buildings. Mr McGregor took out his ID and told Mr Wesselingh why he wasthere. He says Mr Wesselingh advised he was the manager and made comment alongthe lines of he was not paying, the company was not paying and he did not agree withthe warrant.[5] When Mr Wesselingh turned and walked away, Mr McGregor followed him,stopping at the entrance of the building. Mr Wesselingh saw Mr McGregor was stillthere and approached him again, telling him to leave. Mr McGregor said he was angry1 Summary Offences Act 1981, s 9; maximum penalty six months' imprisonment.2 Police v Wesselingh [2022] NZDC 9326.and yelling. Mr Wesselingh got closer to him before, in Mr McGregor's words, he"lurched forward at me and put two hands on my chest, pushed me back with twohands on my chest". Mr McGregor activated his mobile duress alarm. That alarmalerted a security company who in turn alerted police.[6] Mr McGregor approach another employee in the building and asked them whothe manager was. He was advised it was Mr Wesselingh. When Mr McGregor triedto leave the property, he discovered the gates had been locked. He was effectivelytrapped. He waited in his car until police arrived. The first police officer at the scene,Constable Pendersen, gave evidence. He said he found both gates locked and theproperty surrounded by a tall fence. He spoke to Mr McGregor who was on the otherside of the fence before climbing over the fence and entering one of the buildings. Hesaw and attempted to speak with Mr Wesselingh. When Mr Weselingh refused, theconstable advised him he was under arrest. Mr Wesselingh was uncooperative andwas eventually removed from the building by the constable and Mr McGregor.[7] Mr Wesselingh was self-represented at trial. He cross-examined bothwitnesses and gave evidence. He accepted Mr McGregor spoke to him over the phone.He denied yelling at Mr McGregor but accepted he told Mr McGregor to leave. Hesaid Mr McGregor blocked his path and provided two photographs he said showedthis. He said that instead of pushing Mr McGregor he tried to slide past him. He saidas he did so Mr McGregor stepped back, said "that's assault", and activated his duressalarm. Mr Wesselingh said he obtained keys so as to lock the open gate beforereturning to work. He disputed the constable's evidence, saying he was busy workingwhen they asked to speak to him and did not have time to speak to police. He claimedto have been the victim of assault by the police and Mr McGregor.[8] The Judge accepted the evidence of Mr McGregor and Constable Pendersenwhere there was conflict between their evidence and Mr Wesselingh's. The Judgefound they gave internally consistent evidence in a clear and calm manner and theirevidence was supported in material respects by Mr Wesselingh's evidence. The Judgefound they made responsible concessions.[9] The Judge found Mr Wesselingh, by contrast, used highly emotive languageand was reluctant to answer questions from the prosecution. When he did so it was ina facetious manner. The Judge noted it was plain from Mr Wesselingh's evidence hewas aware of Mr McGregor's presence, what he wanted, why he was there and thatMr Wesselingh did not want him there.[10] The Judge considered Mr Wesselingh's cross-examination of the constable onthe lack of physical evidence of an assault, for instance injury or damage to clothing.The Judge determined there did not need to be physical evidence as the slightest degreeof force could be sufficient. The Judge was satisfied beyond reasonable doubt thatMr Wesselingh applied force to Mr McGregor by placing his hands on his chest. TheJudge was also sure Mr Wesselingh had intentionally applied that force.Mr Wesselingh was convicted.Principles on appeal[11] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay allow an appeal against conviction only if satisfied that the trial judge "erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", or that "a miscarriage of justice has occurred for any reason."A miscarriage of justice means any error, irregularity, or occurrence in or in relationto the trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.3 In this section, a trial includes a proceeding in which theappellant pleaded guilty.4SubmissionsAppellant's submissions[12] Mr Wesselingh provided his written submission by way of email to theregistrar. He said:The grounds for my appeal include but not limited to the following, the judgestarted from I'm guilty and I have to prove I'm innocent when it should havebeen I'm innocent and the police have to prove I'm guilty, he also gave me a3 Criminal Procedure Act 2011, s 232(4).4 Section 232(5).paper with something on it, he tells me to read it then says I have read andunderstood it, he also interferes with my questioning telling me what I shouldbe asking, he overlooked the police witnesses not answering my questions, hethreatened by case when I said I would not answer questions from the policethugs, he makes statements he says I made which was not correct then ignoresmy statements as to why this case was all McGregors imagination, hewouldn't let me use any information from supplied paperwork.[13] He indicated he intended to appear and give oral submissions.Respondent's submissions[14] Ms McManus, for the Crown, submitted Mr Wesselingh's grounds of appealcould be separated into the following issues:(a) whether the Judge erred by presuming Mr Wesselingh was guilty;(b) whether the Judge erred by providing Mr Wesselingh with informationprior to the trial commencing;(c) whether the Judge inappropriately interfered with Mr Wesselingh'sability to cross-examine the prosecution witnesses;(d) whether the Judge erred by not taking into account prosecutionwitnesses not answering questions from him;(e) whether the Judge erred in his assessment of Mr Wesselingh's evidence;and(f) whether the Judge prevented Mr Wesselingh from leading evidence insupport of his defence.Analysis[15] I accept Ms McManus' helpful identification of the issues on appeal. I considerher submissions under each of the headings against Mr Wesselingh's submissions.Whether the Judge erred by presuming Mr Wesselingh was guilty[16] Mr Wesselingh submitted the Judge started from the position he was guilty andsaid the Judge placed the onus on him to prove he was innocent. Ms McManusacknowledged the Judge did not expressly set out the fact Mr Wesselingh enjoyed thepresumption of innocence but submitted there was nothing in the Judge's decision thatindicates he started from a presumption Mr Wesselingh was guilty. She submitted theJudge showed an engagement with the case and the competing factual contentions,setting out both sides' evidence and explaining the tensions between the cases. Shemaintained it was only after setting out the competing cases and giving reasons thatthe Judge determined the prosecutor had satisfied him beyond reasonable doubt thecharge was proven.[17] I accept Ms McManus' submissions. Nothing in the Judge's decision indicateshe lost sight of the presumption of innocence. To the contrary, when delivering hisfindings on the first charge the Judge referred to the requisite evidentiary threshold,namely for the prosecution to prove beyond reasonable doubt. The Judge did not erron the onus of proof.Whether the Judge erred by providing Mr Wesselingh with information prior to thetrial commencing.[18] Mr Wesselingh submitted the Judge gave him a "paper with something on it"and told him to read it before saying he had read and understood it. The Judgecommented he had given Mr Wesselingh a copy of the information provided tounrepresented defendants. Ms McManus anticipated this was a standard formprovided to any defendant who is self-represented at a judge-alone trial. She submittedno miscarriage of justice can have resulted from this information being provided.[19] I agree with Ms McManus that no miscarriage of justice can have resulted fromMr Wesselingh being provided with this information. The Judge noted in his decisionMr Wesselingh read the information, but nothing turns on that. I do not consider thiscan have materially affected the fairness of Mr Wesselingh's trial.Whether the Judge inappropriately interfered with Mr Wesselingh's ability tocross-examine the prosecution witnesses[20] Mr Wesselingh submitted the Judge interfered with his questioning by tellinghim what he should be asking. Ms McManus accepted there were times where theJudge became involved in Mr Wesselingh's cross-examination of witnesses. Shesubmitted the Judge was, in most cases, attempting to determine what Mr Wesselinghwas asking of the witness in an attempt to ensure the witness was able to understandthe questions. Likewise, the Judge prevented Mr Wesselingh from asking questionsthat were not relevant.[21] Judges are charged with ensuring the proper administration of justice. Thisincludes protecting the right to a fair trial5 and ensuring litigants do not spend time onirrelevant matters.6 Under s 100 of the Evidence Act 2006, the Judge may ask awitness any questions that, in the opinion of the Judge, justice requires.[22] Having reviewed the notes of evidence, I do not consider the Judge interferedwith Mr Wesselingh's cross-examination inappropriately. As Ms McManus hassubmitted, the Judge's interventions are characterised by attempts to assistMr Wesselingh with adhering to formal requirements of the trial process, ensuringwitnesses understood the questions asked and ensuring the Court was provided withthe full narrative of the competing cases.[23] While it appears the Judge may have become exasperated with Mr Wesselinghat points, nothing did or said went beyond a judicial officer endeavouring to assist aself-represented litigant defending themselves when unfamiliar with trial process. TheJudge even permitted Mr Wesselingh to ask the constable further questions after thepolice prosecutor had completed their re-examination. Ultimately, the Judge'sinterventions were proper and did not jeopardise Mr Wesselingh's fair trial rights. Nomiscarriage of justice resulted from them.5 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [18].6 Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293.Whether the Judge erred by not taking into account the prosecution witnesses notanswering Mr Wesselingh's questions[24] Mr Wesselingh claims the Judge overlooked police witnesses not answeringhis questions. Ms McManus thought he may have been referring to an instance whereMr Wesselingh asked Mr McGregor where Stage Highway One is and the Judgeintervened and advised the question was irrelevant and no answer was required. Shesubmitted this ground is on a similar vein as the previous ground — a trial Judge isentitled to regulate the proceedings so long as they ensure the trial is fair.[25] It is difficult to determine which questions Mr Wesselingh takes issue with theconstable not answering. I do not think it is likely this appeal ground relates to thehighway issue, although that is possible. It is possible it relates to the followingexchange:Q. That is about the only piece of your evidence that is correctMr Pedersen.I refused to accept the assault charge because there was no assault. Isthat correct?A. I can't answer that.THE COURT ADDRESSES MR WESSELINGH – RE: FOR THECOURT TO DETERMINE [26] It would have been inappropriate for the constable to answer that questionbecause it was for the Judge to determine whether Mr Wesselingh had assaultedMr McGregor. It was clear from the context that the constable was acceptingMr Wesselingh had denied the assault. In any event, it is plain the Judge consideredall the relevant evidence and set out his reasons for finding the charge proven andconvicting Mr Wesselingh.Whether the Judge erred in his assessment of Mr Wesselingh's evidence[27] Mr Wesselingh submitted the Judge threatened his case when he said he wouldnot answer questions from the police prosecutor in cross-examination, said he madestatements he denies making and ignored his evidence as to why the case was all inMr McGregor's imagination.[28] Ms McManus submitted the Judge appropriately engaged with the case andassessed the evidence of the various witnesses. She said the Judge drew appropriateadverse conclusions against Mr Wesselingh due to his reluctance to answer questions.She submitted the Judge's assessment of Mr Wesselingh's evidence was rational andconsidered.[29] Mr Wesselingh initially refused to answer the prosecutor's questions. He toldthe Judge he would answer questions depending on what they were. The Judgeendeavoured to explain to him that the prosecutor, in cross-examination, was entitledto ask him leading questions. Mr Wesselingh proceeded to give answers that wereappropriately described by the Judge as facetious to several questions from theprosecutor. An example is, when the Judge asked him the prosecutor's question aboutwhether he was happy Mr McGregor was at his business location, Mr Wesselinghresponded that he was "very happy" Mr McGregor was at his business premises.Similarly, he continued in response to another question "of course I wanted him [atmy business premises]". These answers did not assist the Court and it was appropriatefor the Judge to draw adverse inferences from them.[30] The Judge did not ignore Mr Wesselingh's evidence. As Ms McManus hassubmitted, the Judge gave cogent reasons why he preferred the evidence of theprosecution witnesses and discounted Mr Wesselingh's evidence on the materialdisputes. Having reviewed the Judge's decision against the notes of evidence, there isno basis to suggest the Judge credited statements to Mr Wesselingh that he did notmake.Whether the Judge prevented Mr Wesselingh from leading evidence in support of hisdefence[31] Mr Wesselingh submitted the Judge would not let him use information from"supplied paperwork". Ms McManus was not sure what Mr Wesselingh was referringto but accepted it was likely he was referring to an exchange where he attempted torefer Mr McGregor to a statement of Shaun Ballantyne (seemingly an employee at thecompany). Mr Wesselingh was under the impression Mr McGregor would have seenthis document. The Judge intervened and prevented Mr Wesselingh referring to thisstatement. As Mr Ballantyne was not a witness, this statement was hearsay and didnot form part of the evidence before the Court.7[32] However, as Ms McManus identified, the Judge did not simply stop and moveon. He endeavoured to determine what Mr Wesselingh was hoping to accomplish byreference to the statement and asked a further question of the witness as a result. Therecan be no suggestion the Judge erred in how he dealt with this issue. No unfairness ormiscarriage of justice resulted.Overall merits[33] It is apparent Mr Wesselingh's concerns stem from his inexperience with thecourt process and the fact he was a self-represented litigant. The Judge used his bestendeavours to help him and to ensure he had a fair trial where he was able to presenta defence. No errors are apparent. The Judge's reasons for convicting Mr Wesselinghwere consistent with the evidence and no miscarriage of justice resulted.Result[34] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, DunedinCC:Mr Wesselingh7 Evidence Act 2006, ss 4 and 18.