BOWLER v NEW ZEALAND POLICE [2023] NZHC 1145

BOWLER v NEW ZEALAND POLICE [2023] NZHC 1145 [12 May 2023]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2022-476-09[2023] NZHC 1145BETWEEN STUART FREDERICK BOWLERAppellantAND NEW ZEALAND POLICERespondentHearing: 11 May 2023Appearances: Appellant in personCA O'Connor for the RespondentJudgment: 12 May 2023JUDGMENT OF GRICE J (conviction appeal)Solicitors:Gresson Dorman & Co, TimaruIntroduction[1] The appellant was convicted on 5 August 2022 in the Oamaru District Court1of assaulting a police officer acting in the lawful execution of his duty, with the intentto obstruct the execution of that duty.2 The appellant was sentenced to five months'imprisonment in relation to this charge.3[2] Mr Bowler appeared in person in support of his appeal against conviction andsentence. As I understand it he has now served his sentence.. Pursuant to a minute ofOsborne J dated 3 May 2023, Mr Bowler was given an indication that if he did not fileand serve his written submissions by 4 May 2023 he could anticipate that the presidingjudge would provide him with a maximum of 10 to 15 minutes to speak to his appealgrounds. The Judge noted that the respondent for the time being was not required tofile and serve written submissions but the Judge requested the Crown file submissionsand responses expeditiously as possible.[3] In the event Mr Bowler did not file any written submissions in support of theappeal, but had received a copy of the respondent's submissions filed in anticipationof responding to submissions by Mr Bowler. Mr Bowler had, however, filed a copyof the complaint he had made to the Independent Police Conduct Authority in July2020, to which I refer below.[4] Mr Bowler spoke to the appeal in his oral submissions.Background to the offending[5] On 28 October 2021, Senior Constable Peter Scott saw the appellant travellingalong a road in Kurow. He activated the red and blue flashing lights and siren of hispolice car and followed the appellant into the carpark behind the Kurow Hotel. Bothgot out of their cars and the senior constable advised the appellant he had a warrantfor the appellant's arrest for failing to appear in court and that the appellant was underarrest.1 Police v Bowler [2022] NZDC 18534 [conviction decision].2 Crimes Act 1961, s 192(2) – maximum penalty three years' imprisonment.3 Police v Bowler [2022] NZDC 14959 [sentencing decision][6] The evidence was that there was a protracted scuffle between the two, whichlasted for some 15 to 20 minutes as the senior constable attempted to arrest theappellant, with the appellant resisting. The appellant was seen to be variously flailinghis arms around, shoving the senior constable in the chest and face and grabbing hisarms, hitting the senior constable and scratching his face, causing scratch marks andcuts to his face, kicking him in the leg, and spitting at him.[7] The senior constable sprayed the appellant with pepper spray at least twice andtackled him to the ground. The senior constable shoved the appellant onto a benchoutside the hotel, and after a time two local men came to the senior constable'sassistance and helped him to apply handcuffs to the appellant.[8] The appellant denied the allegations.District Court decision[9] In the District Court, the Judge looked at whether on the evidence the policehad called each of what he considered to be the essential elements of the offence wereproved.4[10] The Judge noted the appellant accepted that any kicking, hitting or spittingwould have been an assault.5 The Judge considered the complainant's warrant card,photo ID, police identification, the uniform he would have been wearing at the timeand evidence that he had been a sworn constable for some 22 years and was satisfiedbeyond reasonable doubt that the complainant was a sworn police constable at therelevant time.6[11] Turning to whether the appellant intended to obstruct the senior constable inthe execution of his duty, the Judge noted the appellant had acknowledged that thesenior constable had told him that he had a warrant for his arrest, and found that thesenior constable had lawful authority to action the arrest.7 The senior constable was4 Conviction decision, above n 1, at [7].5 At [8].6 At [9]–[11].7 At [12]–[13].therefore entitled to execute the warrant and the Judge was satisfied he was acting inthe execution of his duty at the time of the event.8[12] Turning to whether there was an assault, the Judge noted that in addition to thesenior constable's evidence, he also had the independent evidence of two otherwitnesses, Mr Kerr and Ms McCosker.9 The Judge noted Mr Kerr's evidence that heheard the senior constable say the appellant was under arrest, saw arms flailing andthe handcuffs in the hands of the senior constable. The Judge considered the kicking,hitting or flailing around would have been sufficient at that point to constitute anassault at a low level.10[13] The Judge then turned to the evidence of Ms McCosker, who said she saw theappellant strike the senior constable to the face and kick the senior constable.11 TheJudge described Ms McCosker as an independent witness, having no benefit in theproceedings at all, said there was no challenge to her reliability or credibility andaccepted that her evidence seemed to be truthful and honest.12[14] By contrast, the Judge considered the appellant's evidence denying theallegations was not credible.13 He found it was inconsistent with the events whichoccurred as had been described in the evidence given by the two independentwitnesses.14 He rejected the appellant's evidence that the spitting was to remove thepepper spray from his mouth, noting Ms McCosker's clear evidence it was a deliberatespitting action.15[15] The Judge was therefore satisfied the police had proved that the appellant didassault the senior constable by hitting, kicking and spitting at him.168 At [14].9 At [15].10 At [16].11 At [19].12 At [21].13 At [20].14 At [20].15 At [23].16 At [22].Approach to appeal[16] The Court must allow an appeal against a decision of a judge in a judge-alonetrial if the Court is satisfied that the judge erred in their assessment of the evidence tosuch an extent that a miscarriage of justice has occurred, or a miscarriage of justicehas occurred for any reason.17 The Court must dismiss the appeal in any other case.[17] A miscarriage of justice is any error, irregularity, or occurrence in relation toor affecting the trial that has created a real risk the outcome of the trial was affectedor has resulted in an unfair trial or a trial that was a nullity.18 A miscarriage of justiceis "more than an inconsequential or immaterial mistake or irregularity".19 Rather, theerrors or irregularities must depart from good practice in a manner that is "so gross, orso persistent, or so prejudicial, or so irremediable" that an appellate court mustcondemn the trial as unfair and quash the decision.20[18] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".21 The appellant does not have to establish that the verdictwas "actually unsafe" but rather that there is a real possibility the verdict would beunsafe.22 To establish a "real risk" that the outcome was affected, "something more"than a simple disagreement with a judge's factual assessment is required.23[19] In considering a conviction appeal from a judge-alone trial, the appellate courtmust form its own independent judgment on the merits of the appeal.24 If an appellatecourt "comes to a different view on the evidence, the trial judge necessarily will haveerred and the appeal must be allowed."25 However, the appellant bears the onus ofpersuading the court to reach a different conclusion and in discharging that onus must17 Criminal Procedure Act 2011, s 232(2)(b)–(c).18 Section 232(4).19 Matenga v R [2009] NZSC 18 at [30].20 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002]UKPC 19, [2002] 1 WLR 2237 at [28].21 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].22 At [110].23 Gotty v R [2017] NZCA 528 at [15].24 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v StichtingLodestar [2007] NZSC 103, [2008] 2 NZLR 141.25 At [38].identify the respects in which the judgment under appeal is said to be in error.26Additionally, in determining whether the judgment was wrong, the appellate courtmust take into account any advantages a trial judge may have had.27 Where thechallenge is to credibility findings based on contested oral evidence, an appellate courtwill exercise customary caution, as the trial judge has the advantage of being able toform a view of the witnesses, and is better placed than an appellate judge to determinequestions of fact based on contested oral evidence.28[20] An appeal against sentence is an appeal against a discretion and must only beallowed if the Court is satisfied that, for any reason, there was an error in the sentenceimposed and a different sentence should have been imposed.29 The Court must dismissthe appeal in any other case.30 An appellate court will not intervene unless a sentencewas outside the range available to the sentencing Judge.31 The focus is on the finalsentence and whether that was in the available range, rather than the exact process bywhich it was reached.32Discussion[21] As noted, Mr Bowler filed with the court a copy of a complaint he had madeto the Independent Police Conduct Authority in July 2020 concerning his beingtrespassed or being treated as a trespasser by the police. The location is not importantto this appeal. He indicated in his oral submissions that his appeal was based on thefact that the Judge accepted the evidence of the senior constable and he should nothave. Even when invited by me to comment on the evidence of the other witnesses,Mr Bowler did not comment or criticise the evidence of Ms McCosker or the other laywitness.[22] Mr Bowler said it was a requirement for New Zealand police officers to weara body camera. The senior constable said in his evidence he was not wearing a body26 At [38].27 At [38]28 At [38] (citing Austin, Nichols, above n 24, at [13]), [39] and [40].29 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].30 Criminal Procedure Act, s 250(3).31 Tutakangahau, above n 29, at [36].32 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 29, at [36].camera and never wore one. The evidence was that there was no footage taken by anybody camera. Mr Bowler said this supported his case.[23] Mr Bowler also indicated he had reason to believe that the senior constablewas not a police officer, as some years earlier the senior constable had told him he hadbeen "fired" from the police. Therefore Mr Bowler said he did not believe thecomplainant could have been a police officer at the time of the alleged arrest. He alsopointed out the lack of a reference to a badge number or a badge. However, it appearsthat Mr Bowler subsequently acknowledged that the senior constable was a policeofficer. The officer had the accoutrements of the position, including the police car andthe fact that he was in a police uniform.[24] Mr Bowler also indicated he had filed a complaint under the IndependentPolice Conduct Authority Act 1988, which he read out and a copy of which was beforeme dated 15 July 2020. This related to an incident when he was "in the area andlooking at the mountain". He explained later in the day when he was at the hotel(presumably the hotel at which the altercation with Senior Constable Scott occurredon 5 August 2022-although that detail is not relevant to the appeal) for "ski clubreasons". This apparently led to an allegation that Mr Bowler was trespassing, whichis related to the subsequent events which are the subject of the conviction. Mr Bowleralso indicated his car had been taken due to the alleged trespass, when he was nottrespassing and he could prove he was not on the list of trespassers which was in place.[25] Mr Bowler indicated that he had initiated various steps, including a requestunder the Official Information Act 1982 for relevant information and had filedproceedings, including a civil claim relating to the trespass allegations.[26] However, none of these matters go to the merits of the appeal, nor couldMr Bowler point to any error by the Judge, other than wrongfully accepting theevidence of Senior Constable Scott.[27] Mr Bowler is unhappy about his interactions with the senior constable. Heasked that the court make a declaration that Mr Bowler had been "unlawfullytrespassed". I understand that this is referred to the incident the subject of thecomplaint to the Independent Police Conduct Authority. I explained to Mr Bowler thatsuch a declaration was outside the jurisdiction of this court on appeal.[28] I now turn to deal with the appeal.[29] In Waaka v Police, concerning the similar offence of assaulting a constable inthe execution of their duty, the Court of Appeal held that mens rea must go to all theingredients of the offence.33 The prosecution must prove that the defendant knew theperson assaulted was a police officer and knew they were acting in the execution oftheir duty, or that the defendant wilfully shut their eyes to these possibilities or wasindifferent as to whether or not they were the truth.34[30] As the Court there noted, a defendant's knowledge of these factors may beassumed unless there is a foundation in the evidence for a contrary view.35 It is nodefence that the defendant might have entertained an incorrect understanding of theextent of a constable's powers.36[31] In this case I am satisfied the Judge noted the correct legal principles regardingthe onus and standard of proof required in a criminal prosecution. The Judge referredthroughout to the burden of proof being on the prosecution throughout and theappellant had nothing to prove.37[32] The Judge correctly identified the elements of the offence and assessed theevidence in relation to each of the required elements.[33] The Judge accepted the evidence of the complainant, which was corroboratedin large part by the two independent witnesses. The Judge was entitled to do so andhe did not make any mistake which would ground an appeal against conviction inrejecting the evidence of the appellant. The evidence supports the findings made bythe Judge as to the elements of the charge being made out in all respects.33 Waaka v Police [1987] 1 NZLR 754 (CA) at 759.34 At 759.35 At 759.36 At 759.37 See for example at [2] and [7] of the conviction decision, above n 1.[34] In considering whether the appellant intended to obstruct the senior constablein the execution of his duty, the Judge ought to have made the finding explicitly thatthe appellant had the requisite intention to obstruct the senior constable. However,that the Judge was satisfied the appellant had the requisite intention can be inferred byreference to considering the element of intention, followed by the subsequent analysiswhich indicates the Judge was clearly satisfied. The Judge's failure to state explicitlyhe was satisfied the appellant had the requisite intention was not an omission whichgives rise to a real risk the outcome of the trial was affected.[35] As the Judge pointed out, that the appellant might have had an incorrectunderstanding of the senior constable's authority to arrest him is no answer to the factthat the senior constable was in fact a police officer acting in the execution of his dutyand the appellant intended to obstruct the senior constable in the execution of his duty.The appellant appears to have challenged that the complainant was a police officer dueto a mistaken belief that all police constables in New Zealand wear body cameras, and,in relation to a matter pursued in the District Court hearing, because the seniorconstable is Australian. This is inconsistent with comments in the appellant'sevidence-in-chief and cross-examination acknowledging the senior constable was apolice officer at the time.[36] Though the appellant might have held a mistaken belief that he was lawfullyjustified to resist his arrest by means of physically assaulting the complainant on thebasis his arrest was "arbitrary", this is what the Court of Appeal identified in Waakaas an incorrect understanding of the complainant's powers, which cannot constitute adefence. The senior constable was acting pursuant to a warrant and was not actingoutside his authority. The conviction appeal must be dismissed.[37] The notice of general appeal filed by Mr Bowler does not specifically indicatewhether it is an appeal against the conviction decision or the sentence or both. Thereference to the charge details the assault charge on which he was convicted andsentenced. Both the defended hearing and the decision as well as the sentencing tookplace on 5 August 2022. The sentencing referred to two matters, one of which was areview application filed by the Department of Corrections in Blenheim in respect of asentence of supervision. Corrections had also applied for a cancellation of thecommunity work. That application was an oral application not opposed byMr Bowler's counsel, Ms Middlemass, who appeared for Mr Bowler both in thedefended hearing and in the sentencing.[38] Mr Bowler's submissions were directed at the conviction, not at the sentence.Despite the invitation to make any further submissions at the appeal hearing, MrBowler did not refer to the sentence. The Crown made no comment on the sentence.The sentence was of five months' imprisonment. That sentence appears within range,given the starting point taken for the assault was four months' imprisonment, with nocredits available in terms of a guilty plea. In relation to the review of the relatedsentence of assaulting another person the Judge indicated that as community work hadnot been done and supervision was not undertaken, a sentence of one month wasappropriate for that, cumulative on the earlier sentence. There is nothing before me toindicate that the sentence imposed was within range. Accordingly, the sentence appealis dismissed.Conclusion[39] I am satisfied the Judge made no error in his assessment of the evidence. Thereis no real risk the outcome of the trial was affected and I am satisfied no miscarriageof justice occurred. No error is made in relation to the sentence and it appearsappropriate.Result[40] The appeal against both conviction and sentence is dismissed.____________________Grice J