REID v NEW ZEALAND POLICE [2020] NZHC 1917

REID v NEW ZEALAND POLICE [2020] NZHC 1917 [31 July 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-40[2020] NZHC 1917BETWEEN SWAN DONOVAN REIDAppellantAND NEW ZEALAND POLICERespondentHearing: 28 July 2020Counsel: L A Caris for appellantK L Kensington for respondentJudgment: 31 July 2020RESERVED JUDGMENT OF DOBSON J[1] On 5 June 2020, following a judge-alone trial in the District Court at Porirua,the appellant (Mr Reid) was convicted of assault against his former partner (thecomplainant).1 Judge Harrop also found that the circumstances of the assaultconstituted a breach of a protection order that was in force to protect the complainant,so a second charge to that effect was also made out.[2] Mr Reid has now appealed those convictions on three grounds:(a) first, that the trial Judge erred in failing adequately to consider andprovide reasons for accepting the evidence from the complainant;(b) secondly, that the Judge erred in his assessment of the evidence uponwhich he determined the issue of self-defence; and1 Police v Reid [2020] NZDC 12534.(c) thirdly, that the Judge erred in his assessment of the legal test for self-defence.The factual circumstances[3] The Judge described Mr Reid and the complainant as having been in an "onagain, off again" relationship for some five years. Over that period, there have been alarge number of family harm incidents reported between them and a protection orderin favour of the complainant against Mr Reid has been in place since January 2015.[4] The interactions between them on the day in question remain somewhatunclear. The only direct evidence of what had occurred was provided by thecomplainant and the Judge was confronted with the familiar situation of a complainantof domestic violence substantially recanting on an initial and relatively detailedstatement given to the Police at the time. The differences between the complainant'soriginal statement and the evidence she was giving viva voce in court led to anapplication by the prosecution for her to be declared hostile, which was granted byJudge Harrop for the limited purposes of inviting her to explain the reasons for thedifferences between the two versions.[5] In the statement given to the Police on the date of the altercation, thecomplainant described Mr Reid arriving at her home, entering the house covertly usinga key she was not aware he had, and waking the complainant who was asleep in thelounge. She described him as being angry, and he demanded to know whether she hadcalled the Police about his conduct the previous evening. The complainantacknowledged that she had called the Police because Mr Reid had taken her cell phoneand had not returned it as she wanted him to. She described Mr Reid as then yellingat her and pushing her with a hand to her chest, and she pushed him back. In responseto that, Mr Reid pushed her even harder, causing her to lose balance and fall, hittingher forehead against a hard object. Mr Reid had then left the scene. The Police tookphotographs of the complainant's head, which appear to show a mark consistent withher having hit her head.[6] At the trial some three months later, the complainant stated that she had pushedMr Reid first because she had been annoyed at his not returning her cell phone. Itsabsence had caused her to miss an important CYFS conference in relation to herdaughter who was in care. Her evidence was that she pushed him with two hands inorder to get him to leave her home and that in response he had pushed her with onehand, but not to an extent that caused her to fall over or hit her head. She describedattempting to attack him after that, in the course of which she fell over and hit herhead. The effect of her evidence was that the bump on her head was essentially self-inflicted. The complainant explained that she had given the different version to thePolice on the day of the altercation to get Mr Reid "into trouble". She stated that shewas either intoxicated or hung over from drinking the previous evening, the suggestionbeing that had caused or contributed to her falling over when she tried to attackMr Reid.[7] The Judge considered it "fairly likely" that events had occurred consistentlywith the complainant's original statement to the Police, but after considering herevidence held that was not something he could be sure of. Accordingly, not beingsatisfied beyond reasonable doubt that events occurred in the way she had told thePolice, the Judge analysed the adequacy of the evidence on the basis of the version ofevents given by the complainant in her evidence in court.[8] The Judge was satisfied that Mr Reid had, during the altercation, pushed thecomplainant in the chest and he focused on that as the form of alleged assault that theprosecution would be required to prove beyond reasonable doubt. The Judge notedthat the complainant's evidence about the existence of the push was not challenged,nor was it put to her in cross-examination that the push was Mr Reid acting in self-defence.[9] The Judge then analysed whether the prosecution had eliminated the prospectof self-defence, and concluded that it had:2[23] I am sure that you were not acting in self-defence. You could easilyhave turned around and left when she pushed you. You had no need to pushher. She is small. She is female. You are a strong guy, I can see that, and youdid not need to defend yourself against her. You could easily have chosenanother means. You could have put your hands up defensively if you wereconcerned about being further attacked, but proactively pushing her is not self-defence in my view.2 Police v Reid, above n 1.The outcome was that the Judge held a minor assault had been made out.Inadequate consideration of, and reasons for accepting, the complainant'sevidence[10] The Supreme Court in Sena v Police made the following observations aboutthe task of a Judge when producing a determination for a judge-alone trial:3[Judges] should show an engagement with the case, identify the critical issuesin the case, explain how and why those issues are resolved, and generallyprovide a rational and considered basis for the conclusion reached.[11] The Court also observed:4 appellate judges dealing with a case on the basis of a written record of whathappened at trial and the submissions of counsel are unlikely to be aswell-placed as a trial judge to determine contested questions of fact based oncontested oral evidence. For instance, what a witness means may beconveyed, at least in part, by gesture or intonation, something which will notbe apparent on the written record. More generally, the appellate process inwhich appellate judges are taken, sometimes rather selectively, to the aspectsof the evidence on which counsel rely does not replicate the advantages of atrial judge which we have just described.[12] Ms Caris submits that the reasoning here did not record an adequateconsideration of the factual issues relevant to self-defence.[13] The context in which the Judge made the finding that self-defence had beennegatived by the prosecution is in the following paragraphs:5[19] In essence the submissions that are made about that, given that youhave not given evidence and explained how you saw the situation, are that Ican properly draw the inference that you were or may have been defendingyourself and if so that you were or may have been using reasonable force todo that. Ms Caris submits that [the complainant] was angry at you and wasattacking you by pushing you and so your response was proportionate andunderstandable and in defence. But Ms Thomson [the prosecutor] submitsthat you knew she was angry. It was her house. She wanted you to leave andyou would not and that what you did by way of pushing was not in defenceand not proportionate.[20] So the first question, whenever self-defence is considered, is that theCourt has to assess what were the circumstances as the defendant reasonablybelieved them to be. Well, that depends on inference in this case because you3 Sena v Police [2019] NZSC 55 at [36].4 At [40] (footnotes omitted).5 Police v Reid, above n 1.have not told me how you saw the situation. As to the circumstances as youmust have believed them to be I find are that you had come into her houseearly in the morning. You had woken her up. She did not know you werecoming. You were angry with her. It was her house and she was angry withyou, wanted you to leave and she has a protection order against you entitlingher to ask you to leave, quite apart from the fact that she is an occupier whomight otherwise have had that right. As soon as she got her phone back fromyou she wanted you to go and you did not. So those are the circumstances inwhich I have to consider whether this push was or may have been self-defence.[21] She only pushed you when her request that you leave was nothonoured and you would not leave when asked. I can infer from that that youmust have known that you needed to leave when you were asked to by theprotected person. That is your obligation under the protection order and youmust have known that.[14] Ms Caris criticised the absence of an explicit acknowledgement by the Judgeof the "self-warning" he should have issued to himself under s 122(5) of the EvidenceAct 2006. That requires a judge determining a criminal proceeding in the absence ofa jury to bear in mind the need for caution before convicting a defendant in relianceon evidence of a kind that may be unreliable.6 Here, the significant differencesbetween the two versions of events presented by the complainant arguably renderedher evidence unreliable in the sense contemplated by s 122, triggering the need for theJudge to explicitly acknowledge that caution, and explain why parts or all of apotentially unreliable witness's evidence was being relied upon.[15] There certainly were material inconsistencies in the complainant's evidence.The Judge's reasons limited his reliance to core matters that were either not in disputeor which it was reasonably open for him to rely on as being consistent with thosematters not in dispute. I am not persuaded that the Judge erred by not including anexplicit acknowledgement of the "self-warning" in s 122(5).[16] In considering the adequacy of reasons in this case, I respectfully adopt thepractical observation by the Supreme Court in Sena:7[37] In saying all of this, we accept that imperfection of expression ispractically unavoidable, particularly in oral judgments. Accordingly,appellate courts should assess reasons contextually, in light of the evidencegiven and allowing for the burden for judges of balancing the need for promptdetermination of criminal cases with other workload requirements. The6 See, for example, Hicks v Police [2019] NZHC 1647 at [70].7 Sena v Police, above n 3.adequacy (or not) of reasons must be assessed in light of the type of case(including seriousness) and the issues involved. What is required are reasonswhich address the substance of the case advanced by the losing party.Depending on the circumstances, this can be achieved without necessarilyreferring in detail (or sometimes at all) to every issue or argument which thatparty has advanced.[17] I consider the reasons expressed for the Judge's findings to be adequate in thecircumstances of this case. The only direct evidence was from the complainant, theJudge had reviewed the circumstances in which two versions of events had beenrelayed by her and concluded that he was obliged to assess the prosecution case againstMr Reid on the version that was more favourable to him. As demonstrated inMs Caris's arguments on the second ground of the appeal, the Judge's reasons wereadequate to understand how he had come to the views on the sequence of issuesrequired to consider the proof of the charges, and to expect any more would be anunrealistic counsel of perfection.Errors in assessing the evidence going to self-defence[18] Ms Caris invited a reconsideration of a number of specific passages of thecomplainant's evidence, which she cited as suggesting a different context in which thealtercation between the complainant and Mr Reid occurred, leading to a differentpredicament confronting Mr Reid at the time of his admitted push to the complainant'schest.[19] In particular, Ms Caris challenged the Judge's finding that Mr Reid was angrywith the complainant on his arrival at the property when that was stated by thecomplainant in her original statement to the Police, but not repeated in her evidencein court. Further, the Judge found on the evidence that Mr Reid had no need to protecthimself when the complainant's evidence suggested that she was "really angry at him"and that her anger at having missed a communication with CYFS about her daughter(because he had her cell phone) was the trigger that escalated the confrontationbetween them.[20] For the respondent, Ms Kensington accepted that the Judge's finding thatMr Reid was angry from the outset was not justified on the complainant's viva voceevidence. However, she submitted the reference to that detail was not material to theJudge's analysis as to whether the prosecution had established he was not acting inself-defence. In other respects, Ms Kensington submitted that the differences ofemphasis Ms Caris sought to draw from her selected extracts from the transcript ofevidence did not cast the altercation in a sufficiently different light to alter theoutcome.[21] Having reviewed all of the complainant's evidence in light of the SupremeCourt's caution in Sena as to the advantage enjoyed by the trial Judge, I accept therespondent's submission on this ground of appeal. Mr Reid had the opportunity towithdraw when it was plain that the complainant was angry with him, and he had noneed to protect himself given his materially larger and stronger stature. These factorsare sufficient for the prosecution to rely on in negating any actual need for Mr Reid toact in self-defence, or forming a basis for any reasonable belief on his part that aretaliatory push of the complainant was necessary to defend himself.[22] I accordingly reject the second ground of appeal that the evidence wasinsufficient for the Crown to discharge the onus in negating the prospect of self-defence.Error in the legal test applied for self-defence[23] Ms Caris characterised the Judge's reasoning as finding that because Mr Reidhad alternatives to a retaliatory push against the complainant, he should be treated asnot taking that course of action as a matter of self-defence. She submitted that theapproach was akin to assuming that there was a duty to retreat, which would be wrongas a matter of law.[24] I do not treat the Judge's reasoning as reflecting anything like a duty arising asa matter of law for Mr Reid to withdraw when the confrontation with the complainantarose. As the Court of Appeal observed in Vincent v R, the alternative courses of actionwhich may present themselves to a defendant when faced with an attack or anticipatedattack are a question of fact and degree.8 The Judge was entitled to reflect on thealternatives as part of the context in which he assessed whether Mr Reid might8 Vincent v R [2015] NZCA 201 at [28].reasonably apprehend the need to push the complainant for the purpose of defendinghimself. The Judge's analysis goes no further than is permissible in considering thedefence of self-defence.[25] Ms Caris submitted that the Judge erred in describing Mr Reid as having"proactively" pushed the complainant.9 Ms Caris interpreted the use of that word asmeaning that Mr Reid's push was some separate initiative on his part, which woulddistinguish it from a reaction to the complainant having pushed him first. Shecriticised this as an indication of the application of a wrong test for self-defence.[26] I do not accept that the Judge used the word "proactively" in the sensecontended for by Ms Caris. In context, it was used as a synonym for "positively",intended to emphasise the distinction from the defensive option clearly available tohim of simply putting his hands up. It is certainly no more than what the SupremeCourt in Sena described as an imperfection of expression.10[27] I therefore reject the third ground of appeal for the reasons discussed above.Result[28] Accordingly, none of the grounds of appeal challenging the conviction aremade out and the appeal is dismissed.Dobson JSolicitors/Counsel:Lara Caris, Wellington for appellantCrown Solicitor, Wellington for respondent9 Police v Reid, above n 1, at [23], cited at [9] above.10 Sena v Police, above n 3, at [37], cited at [16] above.