SEIULI v NEW ZEALAND POLICE [2018] NZHC 369

SEIULI v NEW ZEALAND POLICE [2018] NZHC 369 [9 March 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-001[2018] NZHC 369BETWEEN TONY SEIULIAppellantAND NEW ZEALAND POLICERespondentHearing: 27 February 2018Appearances: R Roy for the AppellantI Ko for the RespondentJudgment: 9 March 2018JUDGMENT OF MUIR JThis judgment was delivered by me on 9 March 2018 at 3.00 pmPursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:Counsel/Solicitors:R Roy, Public Defence Service, ManukauI Ko, Kayes Fletcher Walker, ManukauIntroduction[1] On 12 December 2017 Mr Seiuli was convicted of doing an indecent act in apublic place.1 He was sentenced to six months' supervision. He now appeals hisconviction.Background and District Court decision[2] Before the District Court, the complainant alleged that while driving in the leftlane of two lanes on Flatbush Road, Ormiston with her four year old daughter, MrSeiuli, with whom she was unacquainted, drove his vehicle alongside her tooting,waving and otherwise trying to gain attention and that when he pulled up next door toher at the intersection of Ormiston Road and Te Irangi Drive this continued. At thatpoint she looked across at the defendant who she said took his hands off the steeringwheel, lent back in his seat and started masturbating his semi-erect penis while lookingat her and smiling.[3] The defendant's case was that he had not attempted to gain the complainant'sattention and that although he did have his penis outside his trousers and was handlingit, this was on account of itchiness resulting from a fungal infection (thrush) and that,in any event, he believed that neither the complainant nor anyone else was in a positionto see it because, among other things, the centre armrest in his vehicle (which in theupright position forms the back of a third front seat) was in the down position andbecause of his car's relatively high "waistline". His defence was therefore twofold:that he had not wilfully committed an indecent act and that, in any event, he hadestablished, for the purposes of the defence identified in s 125(2) of the Crimes Act1961 (the Act), reasonable grounds for believing he would not be observed.[4] In a reserved decision, Judge Lovell-Smith reviewed at length the respectivecontentions and identified the credibility of the parties as the critical issue. She foundthe complainant a reliable and careful witness and, by contrast, that she was "notimpressed" by the defendant's evidence and did not accept what he said.2 She1 Crimes Act 1961, s 125.2 His evidence included a stated belief that he did not think anyone would see him although he didacknowledge it was "not impossible" if such person was "high enough" as for example seated ina truck or bus.considered it established beyond reasonable doubt that the defendant was stroking hispenis outside his trousers, that the complainant had a clear and unobstructed view ofthis and that the defendant was at relevant times smiling and waving and signalling ather in an attempt deliberately to gain her attention. On that basis, she held that thedefendant had not proved that he had reasonable grounds for believing that he wouldnot be observed. She also dismissed the defendant's claim that he had thrush as"unsubstantiated". She sentenced him to six months' supervision with a condition toundertake any counselling necessary to address the causes of his offending.Grounds of Appeal[5] Mr Seiuli appeals his conviction on the basis that the Judge erred in herassessment of the evidence to such an extent that a miscarriage of justice occurred.Mr Seiuli asserts the following errors:(a) Her Honour erred in applying a subjective test to whether Mr Seiuli hadreasonable grounds for believing he would not be observed.(b) She erroneously declined an application for a view of the vehicles unders 82 of the Evidence Act 2006 when she was in no position to judge theprobative value of the view.(c) She did not correctly assess a number of factors that point cumulativelytoward an objective and credible basis for Mr Seiuli believing he wouldnot be observed.(d) She erred in her assessment of the medical evidence relating toMr Seiuli's alleged thrush condition.Appellant's submissions[6] Mr Seiuli's appeal focuses principally on application of the s 125(2) defence.Although there was no challenge to the Judge's key credibility findings, Mr Roysubmitted that whether the defendant had reasonable grounds for believing he wouldnot be observed was to be determined on an objective assessment of the circumstancesat the time. Although in his written submission he suggested that it was irrelevantwhether by gestures and facial expression Mr Seiuli demonstrated a belief he wasbeing observed, he did not maintain that position in oral argument. Rather, Mr Roysubmitted that:(a) although such evidence was relevant to the assessment of belief andreasonableness of belief, it was not decisive;(b) it was logically possible for a person to be trying to draw attention tothemselves but nevertheless believe that their otherwise indecentconduct was incapable of being observed; and(c) the District Court Judge failed to assess other relevant evidence in termsof the respective heights of the cars and seating positions; the"waistline" of the defendant's vehicle, the height of the complainant,the distance between the vehicles and the fact that Mr Seiuli said thethird seat/armrest had been folded down.[7] He submitted also that the Judge was wrong in rejecting Mr Seiuli's evidenceabout having thrush which he says was uncontroverted and did not requirecorroboration.[8] Finally, he says that the Judge erred in declining a view of the respectivevehicles because in so doing she deprived herself of a readily available means ofmaking an objective assessment of the s 125(2) defence. This was not, however, anargument at the forefront of his oral submissions.Respondent's submissions[9] The Police submit that against the Judge's unchallenged credibility findings inrelation to Mr Seiuli's facial expressions and attention seeking behaviour, the findingof fact that the complainant's vehicle (a Toyota "people mover") was "substantiallyhigher" than the defendant's five door Honda hatchback, and the clear line of sightwhich the Judge accepted the complainant had of the defendant's semi-tumescentpenis, the appellant's submissions in respect of the so-called "objective" evidencewere an invitation to consider the case "in the abstract".[10] Mr Ko, therefore submitted that the Judge was correct in concluding that thes 125(2) defence had not been proven.3[11] In respect of the defendant's claim to have thrush, he said the Judge wasentitled to place little weight on the unsubstantiated claim and that such must be seenin the context of her general rejection of his evidence as "unimpressive".[12] He further submitted that the Judge was entitled to decline a view of thevehicles on the grounds that there was no relevant probative value. He says that as theJudge herself recorded, she had a number of photographs of the respective vehicles onthe basis of which an assessment of the key issues could be made.[13] Accordingly, Mr Ko submitted there was no error in the Judge's decisiongiving rise to a real risk that the outcome of the trial was affected.Appeal against convictionApproach on appeal[14] Section 229 of the Criminal Procedure Act 2011 sets out a person's right toappeal against conviction. Under s 230 of that Act, this is a first appeal from a Judgealone trial.[15] Under s 232, the High Court can only allow an appeal from a Judge alone trialif it is satisfied that the District Court Judge "erred in his or her assessment of theevidence to such an extent that a miscarriage of justice has occurred", or that "amiscarriage of justice has occurred for any reason":232 First appeal court to determine appeal3 At the hearing both the appellant and the Police accepted that proof in terms of s 125(2) requiredthat the defendant establish the defence on a balance of probabilities basis. See Robertson v Police[1957] NZLR 1193 and 1194; and R v Hansen (2005) 22 CRNZ 83. The appellant's writtensubmissions, had, contrary to the wording of s 125(2), asserted that no such proof was necessary.(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error,irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.(5) In subsection (4), trial includes a proceeding in which the appellantpleaded guilty.[16] As s 232 makes clear, not every "error or irregularity" causes a miscarriage ofjustice.4 The error or irregularity must lead to either of the consequences listed ins 232(4)(a) or (b). The Court of Appeal has recently confirmed that s 232 does notchange the approach to appeals against conviction. The tests that applied prior to theenactment of the Criminal Procedure Act continue to apply.5[17] 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."6 This standard means that "an appellant does not have toestablish a miscarriage in the sense that the verdict actually is unsafe", only that thereis a real possibility the verdict would be unsafe.74 "A miscarriage is more than an inconsequential or immaterial mistake or irregularity": Matenga vR [2009] NZSC 18 at [30].5 Wiley v R [2016] NZCA 28.6 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.7 At [110].[18] An unfair trial exists when the errors are prejudicial or unacceptably give riseto the appearance of unfairness. In Condon v R, the Supreme Court stated that "it isnot every departure from good practice which renders a trial unfair".8 Instead, theerrors or irregularities must depart from good practice in a manner that is "so gross, orso persistent, or so prejudicial, or so irremediable" that the court must quash thedecision.9 Courts have held that an unfair trial can also exist when a defect in the trialcauses an unacceptable appearance of unfairness without actual prejudice to thedefendant.10[19] Unfairness does not necessarily give rise to a nullity,11 there has to be somefundamental procedural error. Examples of such a fundamental error include: aconviction where a court lacks jurisdiction,12 or where the charge fails to disclose acriminal offence.13DiscussionThe s 125(2) defence[20] Section 125(2) is in the following terms:(2) It is a defence to a charge under this section if the person chargedproves that he or she had reasonable grounds for believing that he orshe would not be observed.[21] What must be "proved"14 is firstly that the accused believed he would not beobserved, and secondly that there were reasonable grounds for that belief. The defenceis in that sense similar to that considered in Rex v Perry and Pledger which concerneds 208(2) of the former Crimes Act 1908.15 That section provided that it was a defence8 Condon v R [2006] NZSC 62 at [78].9 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by theSupreme Court in Condon v R, [2006] NZSC 62 at [38].10 See James v R [2011] NZCA 219 [2012] 1 NZLR 353 at [29], where the failure to address thejuror's capacity meant that there was a risk of a miscarriage of justice even though the verdictwould have stood if the juror had been discharged.11 Jago v The District Court of New South Wales (1989) 168 CLR 23 (HCA) at 57 per Deane J, citedby the Supreme Court in Condon v R [2006] NZSC 62 at [77].12 R v O (No 2) [1999] 1 NZLR 326 (CA).13 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338.14 Both appellant and respondent accept that the standard of proof engaged is the balance ofprobabilities as established in Robertson v Police [1957] 1 NZLR 1193 at 1194 and R v Hansen(2005) 22 CRNZ 83.15 Rex v Perry and Pledger [1920] NZLR 21.to a charge of indecent assault on a girl under 16 if the defendant had "reasonablecause to believe that she was over that age". The Court held that "both the belief ofthe accused as to the age of the girl in such cases and reasonable cause for such beliefmust be established by some legal evidence".[22] In assessing whether a stated belief is adequately proven the Court can onlylook to all the surrounding circumstances. It cannot otherwise divine what was in thedefendant's mind at the time. It must then consider whether the reasonableness of thatbelief has been adequately demonstrated, having regard to, for example, the locationin which the allegedly indecent act occurred, potential lines of sight by members ofthe public and related considerations.[23] In the present case, Her Honour's rejection of the defence was premised on thefact that she accepted the complainant had a clear line of sight of the defendant's penis,and she accepted the complainant's evidence about the defendant smiling while sheobserved his actions. She also accepted that the defendant had, for a continuousperiod, endeavoured to draw attention to himself with gesticulations and by soundingthe horn of his car.[24] Although Her Honour also made a finding that the complainant's vehicle wassubstantially higher than the defendant's, Mr Roy is correct that the judgment does nototherwise include findings about what he calls "objective factors" (distance of the twovehicles, height of complainant, waistline of defendant's car, etcetera) that couldpotentially establish a reasonable belief within the terms of s 125(2).[25] He is also critical of the "substantially higher" finding referring to thefollowing exchange during cross-examination of the complainant:Q. Your car has a high roof doesn't it?A. Correct.Q. But the seats where you sit are the same as in a normal car aren't they?A. You mean in terms of height?Q. Yes?A. I would guess so.Q. So you're not sitting anywhere near as high as a bus or a lorry or areyou?A. No, no.[26] I do not accept that criticism given the equivocal response of the complainant"I would guess so", and counsel's comparison with a "bus or lorry". Thecomplainant's seated position could be substantially higher than that in the defendant'shatchback without reaching the height of the two comparatives suggested and thephotographic evidence clearly demonstrated that the vehicles were respectively a highsided and substantial "people mover" (having the overall proportions of a van) and amoderately sized Japanese hatchback.[27] Turning then to Mr Roy's substantive criticisms, I do not consider that therewas a material risk of injustice in the way her Honour's analysis proceeded.[28] I accept that as a matter of logic it may be possible for a person simultaneouslyto seek to draw attention to themselves but nevertheless believe on reasonable groundsthat what would otherwise be an indecent act would not be observed. A personmasturbating while standing behind a chest-high wall separating a private propertyfrom a public place while simultaneously gesturing with his or her other hand tomembers of the public may be an example. But what is significant about this exampleis that, ex hypothesi, the Court will not have before it, as the District Court did in thiscase, credible evidence by a member of the public that they observed the act inquestion. Such observation will simply not be possible[29] When evidence of observation is coupled with evidence that the defendant wasseeking to draw attention to himself, some level of sexual excitement on his part andevidence that the defendant was looking and smiling at the person whose attention hewas seeking, after taking his hands off the wheel, leaning back and starting to strokehis penis, I agree with counsel for the respondent that there is an "abstract" quality toany defence under s 125(2). The surrounding circumstances overwhelmingly do notsupport a genuine and reasonable belief in the absence of potential observation andthe Judge was entitled to reject the defendant's evidence to the contrary. Her Honourwas in that sense correct that the critical issue in the case was one of credibility becausehaving accepted the complainant's evidence on these key issues and having rejectedthat of the defendant the defence became implausible.[30] Although the District Court Judge does not address the "objective factors" onwhich the appellant relies (apart from her finding as to the respective heights of thevehicles), it is implicit in her decision that such factors did not (and in most practicalexamples could not) establish the defence on a balance of probabilities basis when thesurrounding circumstances were as she otherwise found. Accordingly, I do notconsider the defendant has established a real possibility that the verdict was unsafe asa result of failure specifically to consider and discount each of the factors relied on.Although it may have been preferable for the Judge to have stated her conclusion interms which expressly acknowledged that, even taking those factors into account, thesurrounding circumstances precluded satisfaction of the burden, I do not thereforeconsider any miscarriage of justice arises from her failure to do so.The medical evidence[31] The Judge found the defendant's claim to be suffering from thrush,unsubstantiated. There was no requirement for substantiation as such but, havingregard to the adverse credibility findings otherwise made against the defendant, theJudge was, in my view, entitled to reject his evidence in this respect. Moresignificantly, however, the possibility of some benign explanation for why thedefendant was handling his visible penis while seated in his car in a public place isbelied by his state of sexual arousal, his attention seeking behaviour and his smilingat the complainant when she observed him doing so. There is, in my view, nomiscarriage of justice in the District Court Judge having concluded, on a basis beyondreasonable doubt, that the defendant was engaged in an indecent act, as opposed toinnocently attending to the consequences of a fungal infection.The Judge's decision to decline to take a view[32] I do not consider there to have been any realistic prospect of a miscarriage ofjustice on this account. The Judge had photographic evidence of the two vehicles,sufficient, as I have observed, adequately to draw a reliable conclusion about whichwas the "higher" vehicle. Whether a view is undertaken by a Judge is a matter ofdiscretion based on an assessment of the interests of justice.16 The defendant does notestablish any of the accepted grounds of appellate review of exercise of thatdiscretion.17Result[33] The appeal is dismissed.__________________________Muir J16 Evidence Act 2006, s 82(1).17 May v May [1982] 1 NZFLR 165 (CA).