WALKER v POLICE [2020] NZHC 3362

WALKER v POLICE [2020] NZHC 3362 [16 December 2020]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2020-476-15[2020] NZHC 3362BETWEEN SUSAN VIOLET WALKER (AKASUSAN VIOLET WALKER-DAVISON)AppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2020Appearances: Appellant in PersonH V Bennett for RespondentJudgment: 16 December 2020JUDGMENT OF MANDER JThis judgment was delivered by me on 16 December 2020 at 4 pm pursuant to Rule 11.5of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] The appellant, Susan Walker,1 was convicted on charges of wilful trespass,assault, and threatening behaviour following two judge-alone trials on 17 June 2020.2She was convicted and discharged and ordered to pay $50 in reparation to each of thetwo victims, together with witness expenses. Ms Walker appeals her convictions onthe basis the Judge erred in finding her guilty. She also appeals her sentence, allegingthat a community sentence rather than reparation should have been imposed.[2] Ms Walker seeks to appeal out of time. She is self-represented and states thereason for seeking an extension of time is because she has mental health issues. Thepolice are not prejudiced and do not oppose. Leave is therefore granted.Factual backgroundThe 12 November 2019 incident[3] On 12 November 2019 Ms Walker was walking past the AMPSS 101(Addictions, Mental Health Peer Support Services) building on Church Street, Timaru,(the AMPSS building). Ms Walker had previously been trespassed from this propertyfor abusing staff members.[4] Ms Walker saw the complainant, Ms Andrews, walking into an alley next tothe building during her tea break, presumably to smoke. She approached Ms Andrewsand became worked up. It was alleged she began shouting and verbally abusingMs Andrews. She then stood in her way and refused to let her past, effectivelytrapping her. Ms Andrews text messaged a colleague inside the building, using thewords "help". This colleague came outside and tried to calm Ms Walker down. Duringthis time, Mr Walker is said to have threatened Ms Andrews with words to the effect"I'm going to smash you over", "I'm going to burn down your two houses" and "I'mgoing to kill you". As a result of her conduct, Ms Walker was charged with threateningbehaviour.1 Variously known as Susan Violet Walker Davison, Violet Susan Walker-Davison and Violet SusanWalker.2 Trespass Act 1980, ss 4(4) and 11(2)(a); Crimes Act 1961, s 196; and Summary Offences Act1981, s 21(1)(a).The 28 November 2019 incident[5] On 12 October 2019 Ms Walker was trespassed from New World supermarketon Wai-Iti Road, Timaru. Some six weeks later, on 28 November 2019, Ms Walkerentered that same New World supermarket and approached a staff member at the Lottoand coffee counter. She ordered a coffee and asked to cash in some Lotto tickets. Shewas said to have become demanding and abusive towards the staff member servingher.[6] Another staff member, the complainant, Ms Hogan, was called to assist inremoving Ms Walker from the store. Having been asked to leave multiple times,Ms Walker became enraged. It was alleged that she twice spat at Ms Hogan, held herfist up to Ms Hogan's face and attempted to kick her. Ms Walker had to be restrainedby other members of staff until the police arrived. She was charged with wilfultrespass and common assault.Principles on appeal[7] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction 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." Amiscarriage means an error, irregularity, or occurrence in or in relation to the trial thathas created a real risk that the outcome of the trial was affected, or has resulted in anunfair trial.3 An appeal against sentence may only be allowed by this Court if it issatisfied there has been an error in the imposition of the sentence and that a differentsentence should be imposed.4District Court decision[8] Judge Maze gave two oral judgments following the completion of the twojudge-alone trials on 17 June 2020.3 Criminal Procedure Act 2011, s 232(4).4 Section 232(5).The trespass and assault decision[9] The Judge commenced her decision by outlining the circumstances that gaverise to Ms Walker being trespassed from New World.5 The Judge was satisfied on theevidence provided by Constable Rigby that a trespass notice for the supermarket hadbeen served upon Ms Walker on 12 October 2019. It ran for two years from the dateof its service.[10] Ms Walker did not dispute that she was at the New World supermarket on28 November 2019, and the Judge was satisfied that she was present on those premiseson that day. The Judge did not accept that Ms Walker thought the trespass notice hadexpired, particularly since she had been served with it only the previous month. Nordid the Judge think that Ms Walker was being truthful about believing that she was nolonger subject to a trespass notice. In the absence of any adequate explanation for whyshe was there in breach of the trespass notice, the Judge considered the elements ofthe trespass charge were proven beyond reasonable doubt.[11] In relation to the assault charge, Judge Maze noted that all of the allegationsrelied on to support the charge of assault were recorded on CCTV footage, which shehad viewed. The actions included spitting, use of a raised fist, a second spitting, andan attempted kick. All those actions could be seen on the CCTV footage. Apart fromthe complainant herself, two other eyewitnesses had given evidence of Ms Walker'sactions that was consistent with the video record.[12] Ms Walker, in her evidence, accepted that she attempted to kick Ms Hogan andspat at her twice. However, she maintained that she was defending herself becauseshe perceived Ms Hogan to be about to attack her. The Judge, after noting that theprosecution carried the burden of proving beyond reasonable doubt that Ms Walkerhad not been acting in defence of herself, referred to the required three-stage approachto the issue of self-defence. First, on Ms Walker's own admission, she did apply forceby spitting at Ms Hogan. Second, the Judge considered the circumstances as MsWalker perceived them. The Judge acknowledged that Ms Walker "is not a clearthinker", and noted her belief that she was under attack, although the Judge expressed5 Police v Walker [2020] NZDC 18410.reservations about whether that could have been the case during the whole period ofthe incident.[13] Finally, the Judge considered whether the force used was reasonable in thecircumstances. The Judge concluded that when viewed objectively it wasunacceptable for Ms Walker to have spat in Ms Hogan's face and that constitutedexcessive force. Similarly, the attempt to kick Ms Hogan and the raising of her fistwere unreasonable. An option readily available to Ms Walker was to have simply"turned on her heel and walk[ed] out". On this basis, the Judge considered the chargeof assault was proven beyond reasonable doubt.The threatening behaviour decision[14] In relation to the 12 November incident at the AMPSS building, the Judgeobserved that the genesis of Ms Walker's dispute with the complainant, Ms Andrews,appeared to be an allegation that the complainant had stolen Ms Walker's ex-husband'scaravan.6 Ms Andrews maintained this allegation was unfounded. The Judge notedthat Ms Andrews felt intimidated by Ms Walker's threats to kill her and to burn downher properties. She felt frightened and, being effectively trapped down an alley, hadno means of escape.[15] The Judge recounted how she had heard from Ms Andrews' colleague,Ms Sandrey, who went to provide assistance when Ms Andrews text messaged her.Ms Sandrey saw Ms Walker forcing Ms Andrews to retreat into a corner of the alley.Ms Walker was described as aggressive and Ms Sandrey heard her uttering threats.While attempting to insert herself between the two women, Ms Sandrey called thepolice.[16] The attending officer, Constable Keen, observed Ms Walker and Ms Andrewsengaged in what he considered to be a heated discussion. Having talked withMs Walker, he understood she was upset about being trespassed. He then arrestedMs Walker for threatening behaviour. The notebook entries of Constable Keen that6 Police v Walker-Davison [2020] NZDC 18407.recorded the officer's questions and Ms Walker's answers, and which Ms Walkersigned as true and correct, were entered as evidence.[17] Ms Walker gave evidence, saying she chanced upon Ms Andrews and whilethey initially spoke calmly things got out of hand. She admitted telling Ms Andrewsshe was not going back inside the AMPSS building but denied uttering any threats.Ms Walker maintained she was simply trying to talk to Ms Andrews and she knewnothing about the trespass.[18] Having recounted this evidence, the Judge concluded that the matter camedown to a question of fact. Ms Walker had admitted that the discussion deterioratedinto a heated argument. She admitted to Constable Keen she "saw red". Ms Andrewswas distressed enough to text for help. The Judge considered it was highly unlikelyshe would have done that if the confrontation occurred in the manner that Ms Walkerdescribed.[19] The Judge noted that Ms Walker had also admitted in her responses toConstable Keen that she was determined to stop Ms Andrews from continuing her joband admitted she would have "burnt her house down or broken her legs years ago".The Judge considered that this tended to suggest that Ms Walker was well aware ofthe allegations that would likely be made against her by Ms Andrews.[20] The Judge was satisfied that Ms Walker had threatened to injure Ms Andrewsand to damage her property, or words to that effect, that she knew her conduct wasreasonably likely to frighten Ms Andrews, and that this was her intention. The chargewas held to have been proven beyond reasonable doubt.Sentencing decision — 5 August 2020[21] Judge Maze observed at the commencement of her sentencing remarks that theoffending was at the lower end of the scale, albeit still distressing for the victims.7 Shenoted that Ms Walker had relevant previous convictions, but none since 2013.7 Police v Walker-Davison [2020] NZDC 19642.[22] Community Corrections advised the Court that due to Ms Walker's difficultlifestyle there were no community sentencing options they could offer. In any event,the Judge considered that it would be setting Ms Walker up to fail if community workwas imposed. A sentence of community detention was the only alternative, but theJudge considered this sentence to be too high in the hierarchy of sentences to beappropriate, and would likely cause further distress to Ms Walker.[23] The Judge noted that Ms Walker's financial resources were limited but that shehad offered to pay $50 reparation to each of the two victims. In addition, she acceptedshe would have to pay witness expenses. On that basis, Ms Walker was convicted anddischarged on the three charges but ordered to pay a total of $100 reparation and $250witness expenses.The appeal[24] Ms Walker, who represented herself on her appeal, raised a series of discursivepoints in support of her appeal that I will endeavour to address in turn.[25] Ms Walker maintained that due to COVID-19 she was not provided with theopportunity to have her matter heard by a Judge from outside of Timaru. Thisappeared to be something that was important to her, although it was not clear why.Her preference was for Dunedin. However, a charging document is required to befiled in the office of the District Court that is nearest to where the offence is alleged tohave been committed, or nearest to where the person filing the charging documentbelieves the defendant can be found.8 The offences occurred in Timaru where MsWalker resides. The appropriate court was therefore the Timaru District Court. Therewas no discernible reason to transfer the matter from that venue.[26] Ms Walker asserted that she was not trespassing when she visited the NewWorld supermarket on 28 November 2019, nor the AMPSS building on 12 November,earlier that month. However, I do not consider that there can be any realistic disputeregarding the trespass charge. Ms Walker admitted to being present at New World on28 November and the District Court Judge was entitled to accept the evidence of8 Criminal Procedure Act, s 14(1).Constable Rigby that he had served a trespass notice on Ms Walker relating to thosepremises on 12 October 2019. Constable Rigby gave evidence of the circumstancesin which he had served the notice on Ms Walker in the previous month, and Ms Walkermust have been aware of its effect.[27] Ms Walker complained that some two weeks prior to the incident at New Worldshe visited the supermarket to pick up cigarettes from her son who is an employeethere. Ms Walker submitted that she was not asked to leave the property on thatoccasion. However, that is no answer to the charge. The fact Ms Walker managed tosee her son at New World on a previous occasion makes no difference to the legaleffect of the trespass notice and the occupant's legal right to ask her to leave on theday of the incident. Insofar as the AMPSS building is concerned, whether Ms Walkerwas trespassing at the time is of no consequence as she was not charged with any suchoffence in relation to the events of 12 November 2019.[28] In relation to the assault charge, Ms Walker took issue with the number ofangles that the CCTV shows of the incident. She maintained that if other angles hadbeen shown, then the Court would see that Ms Hogan came towards her first and thatshe was defending herself. Ms Walker believes that she was going to be attacked. MsWalker also claims that Ms Hogan pulled her shirt during the altercation, which wasthe reason she spat on her. In oral submissions, Ms Walker was critical that otherpersons who were present at the supermarket were not called as witnesses, althoughshe did not suggest how their evidence might differ from that given by Ms Hogan andtwo other eyewitnesses, nor why other CCTV angles would show anything different.[29] The difficulties for Ms Walker in attempting to relitigate the assault charge aretwo-fold. First, the evidence was overwhelming that she assaulted Ms Hogan.Ms Walker herself admits having spat at Ms Hogan and of attempting to kick her. Theaccounts given by three of the people who witnessed Ms Walker's conduct and gaveevidence confirmed she spat at Ms Hogan, raised her fist at her and attempted to kickher. The CCTV footage corroborated the eyewitnesses' evidence. There is no reasonto believe that other witnesses or other angles (if they are indeed available from theCCTV) would have resulted in any different narrative, particularly when regard is hadto Ms Walker's own admissions.[30] In oral argument, Ms Walker claimed that Ms Hogan grabbed her by the arm,which is a slight variation on her written submission that Ms Hogan pulled her shirtduring the altercation. Ms Walker did not refer to these actions by Ms Hogan whengiving evidence at the trial and it is unlikely that any further evidence would qualifyas being fresh and sufficiently cogent to be admitted for the purposes of the appeal. Inany event, Ms Walker's claims of fearing being attacked cannot overcome the seconddifficulty she faces in seeking to justify her actions on the footing of self-defence.Even proceeding on the basis that Ms Walker was not thinking clearly at the time (asthe Judge did), spitting at Ms Hogan (at least on one occasion in her face) andthreatening to strike or kick her was excessive. Her actions in assaulting Ms Hogancould not be legally justified in the circumstances. As the Judge noted, Ms Walkerhad the option of walking from the premises if she was truly concerned about hersafety at the time.[31] In addition to these points, Ms Walker sought to raise a number of proceduralmatters. She complained that the disclosure she received was different from theevidence that was ultimately adduced at the defended hearing. Ms Walker providedno details of what those discrepancies were. She was represented by counsel in respectof the 28 November incident, and it is not apparent that she was caught by surprise inrespect of either incident by the content of the evidence called by the prosecution. Nordoes it appear that any complaint of that type was raised in the District Court at thetime.[32] Ms Walker also complained that two of the witnesses relating to the12 November incident, Ms Andrews and Ms Sandrey, were permitted to be in theCourt while the charges relating to the New World matter were being heard.Ms Walker did not articulate how that created any unfairness, given they had noinvolvement in the 28 November incident. An order excluding witnesses from ahearing is for the purpose of avoiding one witness's evidence about the same eventtainting the evidence of another and removing any suggestion of one witness's accountinfluencing another witness. Because the two sets of charges arose out of two differentincidents involving different people, it is not apparent there was any reason whyMs Andrews and Ms Sandrey could not remain in the courtroom while the matter inwhich they had no involvement was being heard. Ms Walker did not provide anydetails of how their presence prejudiced either her or her defence.Conclusion[33] Having undertaken an overall appraisal of the two hearings, it is not apparentthat the District Court Judge erred in her assessment of the evidence. The Judgeprovided sufficient reasons for how she arrived at her decisions to convict. On eachof the charges, Judge Maze canvassed the facts and considered the evidence and theelements of each offence that were required to be proven. I am unable to discern anyerror in the Judge's approach or that any miscarriage of justice arises from her findingthe charges proved.Sentence appeal[34] Turning to the sentence appeal. The sentence ultimately imposed accordedwith a submission made on behalf of Ms Walker by her counsel who represented herat sentencing on all three charges, that she be convicted and discharged, and an ordermade that she pay reparation. Ms Walker is recorded by Judge Maze as offering topay $50 reparation to each of the two victims. In submissions filed in advance of thesentencing hearing, counsel advised that the Department of Corrections was unable toprovide any satisfactory community-based sentencing option. Her counsel wasunderstandably anxious to avoid any sentence that may result in her being detained.The choices available to the Court were therefore limited. Appropriately, thesentencing Judge in the circumstances opted for the least restrictive sentence availableand imposed a nominal amount of reparation in respect of each victim. The sentenceis clearly not manifestly excessive.Result[35] In the absence of any identified error in the District Court's assessment of theevidence in relation to each charge and the process followed, I am satisfied thatMs Walker's trial was fair and that there has been no miscarriage of justice. Thesentences were appropriate in the circumstances. It follows that the appeals againstboth the convictions and sentence are dismissed.Solicitors:Crown Solicitor, Timaru