IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-60 [2015] NZHC 1359

BETWEEN	WENDY MAREE EGEN
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	8 June 2015	

Appearances:	
Appellant in Person
J V Barry for Respondent	

Judgment:	
16 June 2015	

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
16 June 2015 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Meredith Connell, Crown Solicitors, Auckland
Copy to:
Wendy Egen, Auckland

EGEN v NEW ZEALAND POLICE [2015] NZHC 1359 [16 June 2015]

[1]	Wendy Egen was found guilty of one charge of common assault.1    She was

sentenced to nine months’ supervision and 100 hours community work.

[2]	Ms Egen appeals both conviction and sentence.  Ms Egen is self-represented. She appeals on the following basis:

I deny the claim of the charges that I, Wendy Maree Egen assaulted Joy Egen on the 10th July 2013.

I also observed the final summary explaining what happen from JUDGE H M TAUMAUNU was incorrect from the statement given from Faith Egen, therefore I am questioning the outcome of the case.

I am also questioning the cross-examination of the crown prosecutor Mrs H Lotriet.

The Police Officer, Constable Ryan under cross-examination evident was unsupported, and under oath gave incorrect information.

Background

[3]	This matter was considered by a Judge  alone.	The Judge identified  the disputed issues as follows:

[4]        … The disputed issues of this case are:

(a)        Whether the police have proved beyond reasonable doubt that the defendant assaulted the complainant.

(b)        A factual dispute as to the nature and extent of the assault proved beyond reasonable doubt by the police.

(c)        If the police have proved beyond reasonable doubt that the defendant assaulted the complainant, whether the defendant was acting in self-defence.

[4]	As to the first question, the Judge identified a number of admissions by Ms

Egen including that:

(a)	The physical exchange between herself and her daughter started in the kitchen;

1	New Zealand Police v Egen [2015] NZDC 3617.

(b)       She  pushed  the  complainant  after  the  complainant  initiated  the physical exchange by pushing the defendant first;

(c)       There was likely a second push, but she was not sure about that aspect of her evidence;

(d)       She thought it was possible that the complainant pushed her again in the kitchen and she pushed back again a second time;

(e)       She was pushed into the fridge and the wine glasses fell off the top of the fridge and smashed and she had nowhere to go because the complainant was in her face and that is why she pushed the complainant back;

(f)       It was a possibility that it was one or other of those pushes that may have led to the complainant falling onto the kitchen bench;

(g)	She  held  the  complainant’s  hair  in  the  lounge  when  she  was

attempting to retrieve her car keys from the complainant;

(h)       She had a struggle with the complainant trying to retrieve her car keys, a physical struggle occurred and there was the deliberate touching by the defendant on the complainant’s person as a result of the struggle over the car keys.

[5]       The Judge noted that while the defendant denies the charges, because of the defendant’s admissions, the police have proved beyond reasonable doubt the material element of assault to the extent admitted by the defendant.

[6]       The Judge referred to the complainant’s version of the events in the nature of the alleged assaults.   It is observed that the complainant’s evidence suffers from numerous minor inconsistencies that were highlighted in cross-examination and to a large extent the complainant explained away those inconsistencies by reference to the delay between the incident itself back in July 2014 and the present day.

[7]       The Judge then observed:

[20]      I was also left with the impression after hearing the complainant’s evidence that she may have played a more active role in the physical exchange than she admitted in her evidence.  It was not entirely clear and she, if her evidence is correct, showed remarkable restraint up to the point where she accept that in the bedroom she did strike back and punched her mother once in the face.  That is the first time she has ever struck her mother and so there is some concern that the complainant may well have been more active in the physical exchange than she admitted.

[21]      And then there are the complainant’s actions when she left the house because she let down the tyres of her mother’s car, she kicked the door of the house and nearly broke it, or her mother, the defendant, was concerned that it would break.  That was the strength of the kicking that was involved.  She stole her mother’s wallet from the car and then threw the wallet and the cards.    It  is  not  entirely  clear,  the  wallet  was  certainly  thrown  out  the window; the cards may have been retained or may have been thrown out. But what is clear is that the mother’s wallet was returned to the defendant but the cards were not.  Those are factors that are indicative of a person who was angry at the time and seeking retribution.

[8]       The  Judge  referred  to  the  evidence  given  by Faith  Egen,  who  is  also  a daughter of the defendant and older sister of the complainant.  He considered that Faith Egen was a reluctant, but not a hostile witness.

[9]       His assessment of the evidence given by her was that it was reliable, credible and compelling.

[10]     The Judge observed:

[24]      Throughout the incident Faith Egen saw both parties grabbing onto each  other,  trying to  restrain each other.   In  the  kitchen,  Faith saw the complainant holding the defendant’s hair and the defendant trying to push the complainant.  In the complainant’s bedroom, Faith saw at one point the defendant’s hand hitting the complainant.  Faith did not remember who hit who first but she did see the defendant grabbed the complainant’s hair close to the scalp, and this is in the complainant’s bedroom, and Faith Egen saw the defendant punch the complainant in the side of the face about three times.

[25]    Faith Egen left to check on her baby and returned to see the complainant on the bedroom floor, the defendant standing up over the top of the complainant, the defendant was bent over and moving her shoulder.  In the lounge, Faith Egen saw the defendant grabbed the complainant by the hair and attempt to punch the complainant while holding onto her hair.  In the car outside, Faith saw the defendant pulling and pushing the complainant while trying to get the defendant’s wallet back.  Faith Egen believed that the

injuries suffered by the complainant were caused by the defendant and had no reason to believe that the complainant caused the injuries herself.

[11]	And further:

[28]      In  my  assessment,  the  defendant  significantly  downplayed  or minimised the role that she played in the physical exchange with the complainant.   In my assessment the evidence given by the defendant was self-serving and lacked credibility when compared to the evidence given by her daughter Faith Egen, who gave credible and reliable evidence that was plainly contrary to the evidence given by the defendant in several material respects.

[29]      I note  that  Faith  Egen  did  not  engage  in  the  physical  exchange between the defendant and the complainant and that she also attempted to stop the physical exchange at one point by telling both to calm down and stop what they were doing.  Although there is obviously the relationship of daughter and  mother involved  between  Faith  Egen and  the  defendant, I consider that Faith Egen’s evidence in this case is similar to that of an independent eye witness.  Faith Egen was reluctant to give evidence against her mother but did so notwithstanding that reluctance.  Although Faith Egen [was] comprehensively, and I have to say skilfully cross-examined by Ms Stokes, [she] did not change her position at all throughout.   Faith Egen clearly saw the events that she described and was not prepared to change her evidence throughout the course of examination-in-chief, cross-examination and re-examination.  The only times that there appeared to [be] some slight change was when it seemed to me she was confused about the question, and that was in particular this morning when she gave evidence there was some confusion but by and large she struck to her guns about what she said she saw her mother do.

[12]	The Judge then makes the following key factual findings:

[32]      …  I  am satisfied  that  these  facts  are  proved  beyond  reasonable
doubt:

(a)        In the kitchen, the defendant pulled the complainant’s hair and pushed the complainant’s head into the sink bench, and that is consistent with the injuries that were shown in the photographs and described by both the complainant and also confirmed by the officer in charge of the case who gave evidence today.

(b)	In the lounge, the defendant pulled the complainant’s hair,
bent her fingers back and kicked her in the stomach.

(c)        In the bedroom, the defendant pulled the complainant’s hair, repeatedly punched her in the face and in the back of the head and choked her with the collar of the jacket.  Now that incident seems to me to be both in the hallway where the punching in the back of the head occurred and followed on into the bedroom.

(d)	In the car, the defendant pushed and pulled the complainant when trying to retrieve her wallet.

[13]     In terms of the issue of self-defence, the Judge accepted that it is reasonably possible that the complainant initiated the physical exchange in the kitchen.  But he says that at the point in the lounge when the defendant kicked the complainant in the stomach,  certainly  by  the  point  in  the  bedroom  and  in  the  hallway  when  the defendant repeatedly punched the complainant in the back of the head and in the face, the Judge was satisfied beyond reasonable doubt that the defendant was no longer acting in self-defence.

[14]     The Judge observed that if he is wrong about the fact of the defendant not acting in self-defence, he was satisfied beyond reasonable doubt that the force used was unreasonable in the circumstances as the defendant believed them to be.

[15]     The Judge concluded:

[37]      In   my   assessment,   the   defendant   lost   her   temper   with   the complainant and took out her anger by punching her in the face and in the back of the head, by kicking her in the stomach, by using her fingernails to claw the complainant’s face and neck and by the actions that she took in assaulting her daughter.  The force used was disproportionate to the threat posed by the complainant to the defendant because I do accept even though she may have understated her role that the complainant was attempting to show some restraint in the exchange that took place.

[16]     The Judge then found Ms Egen guilty as charged.

[17]     As to sentencing,2 the Judge observed that the assault was relatively serious on its face, but the actual injuries suffered were relatively minor. They were cuts and scratches and they consisted of some bruising that did not show until some days after the event.

[18]     The Judge also observed that Ms Egen needed to be held accountable and responsible for her offending, but bearing in mind that it was not a “completely one way street”, a sentence of community work was imposed.  Previous convictions for
assault with a weapon and other common assault convictions were also noted.  A

2	New Zealand Police v Egen [2015] NZDC 354.

sentence of 100 hours community work together with nine months’ supervision was

the end sentence.

Jurisdiction

[19]     My jurisdiction on appeal against conviction is conferred by s 232 of the Criminal Procedure Act 2011 (the Act).  In short, I must consider whether the trial Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.  I also adopt the approach taken by Courtney J in Leatinu’u v Auckland Council3  (cited by the Crown) to the effect that an appeal against conviction is a general appeal and the Court may make its own assessment of and  form  its  own  opinion  on  the facts.    I should  pay appropriate deference to findings made by a Judge with the advantage of hearing the witnesses on questions
of credibility, but nevertheless review the evidential basis for the factual findings carefully.

[20]     As to appeal against sentence, s 250 of the Act states that I may allow an appeal if for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.  Recent Court of Appeal authorities affirmed that the basis for allowing an appeal against sentence has not changed substantially as a consequence of the introduction of s 250.4     I may allow an appeal against sentence if I consider it to be manifestly excessive.

Argument

[21]     At the hearing Ms Egen emphasised that:

(a)	Faith Egen’s statement was not written in her own handwriting  and that she said the police officer wrote it for her;

(b)	The Judge had to threaten Faith with a warrant of arrest and that the

Crown Prosecutor stated to Faith before she spoke that —

3	Leatinu’u v Auckland Council [2013] NZHC 3489 at [5].
4	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]—[27].

…if she said anything else or different other than what was written in her statement she would be prosecuted…

(c)	Constable Ryan stated that a female police officer was present when a

DNA sample was taken, but there was no officer present.

(d)	Given these matters, her right to a fair trial has been breached.

(e)       She has applied to become a real estate agent and the conviction will have serious consequences for her.

[22]     Given the seriousness of the allegation about the prosecutor, I granted leave to Ms Egen to have Faith provide an affidavit as to what was said to her by the prosecutor.  I cautioned her that the claim made about the prosecutor is very serious and that she and Faith should take independent advice about the implications of the allegation.  I also granted leave to provide further information about her application for a real estate licence.

[23]     Ms Egen later advised the Court that Faith did not wish to provide further evidence. She also provided a letter confirming that she had enrolled in Real Estate (Salesperson) course with the Open Polytechnic.

[24]     Mr Barry for the respondent submitted:

(a)	The Judge did not err in his assessment of fact or law; (b)	The claim of prosecutorial misconduct was baseless;
(c)       There is no proper basis to revisit the sentence, having regard to the gravity of the offense;

(d)       While her convictions will undoubtedly affect any application for a real estate licence, the evidence does not suggest she would be more prejudiced any more than another person who had convictions seeking employment.

(e)	Ms  Egen’s  convictions  do  not  fall  within  the  class  of  conviction prohibiting her from becoming a real estate agent.

Assessment

[25]     I will address the appeal in three parts:

(a)	Whether there has been any miscarriage of justice in terms of the evidence placed before the Judge;

(b)	Whether there has been any prosecutorial misconduct;

(c)	Whether the sentence should be commuted to a discharge without conviction.

No miscarriage

[26]     A critical  feature of this case is the assessment of the credibility of the evidence given by Faith Egen.   The Judge observed that Ms Egen’s evidence was credible and reliable and that she had seen the defendant punch the complainant in the face three times.  This finding is consistent with the recorded testimony given by Ms Faith Egen.

[27]     There was therefore a proper and sufficient basis upon which to find, beyond reasonable doubt, that the defendant committed a common assault.  I also consider that there is no proper basis for me to reverse a credibility finding in this case, there being nothing to suggest that Faith Egen was untruthful by reference to the record. Accordingly, there is simply no basis from which to make a finding that the Judge erred on the primary finding of fact about the assault.

[28]     The evidence could be said to be equivocal in relation to the self-defence charge.  There is certainly some suggestion from the evidence that, as the Judge put it, it was not a one way street.  But the assessment of whether or not the defendant was acting in self-defence is a complex one inevitably involving a judgment about the credibility of the respective accounts of the complainant and any supporting

witnesses.  There was in my view certainly a sufficient basis upon which to reach a conclusion that the mother, while confronted by the complainant at times physically, was not acting in self-defence at the key time of the assault upon which the Judge finding of guilt was based, namely the three punches to the head.

[29]     I need only deal briefly with the contention that Constable Ryan gave false evidence about the presence of a female officer while the DNA test was done.  I am not prepared to revisit the conviction on the basis of an allegation that a female officer was present during a DNA test.  Even if Ms Egen is right about this, it does not show that Constable Ryan was untruthful.

No evidence of prosecutorial misconduct

[30]     Ms Egen table an “affidavit” outlining her recollection of what was said to Faith by the prosecutor.  The affidavit was not formally sworn. I was not prepared to rely on this given the seriousness of the allegation.  Moreover, I considered that Faith should provide evidence on this matter and if necessary be available for cross- examination.  As Faith did not wish to provide evidence on this, the claim is essentially without foundation.

[31]     For  completeness,  I  invited  the  respondent  to  make  inquiries  with  the prosecutor.   The claims are strenuously denied. Given the absence of evidence to support the allegation, I have no reason to doubt this denial.

Sentence

[32]     The sentence handed down is plainly within the range of sentences available to the Judge by reference to recent High Court authority including Clark v New Zealand Police5 and Uele v New Zealand Police6 as cited by the respondent.

[33]     I am not satisfied that Ms Egen has established a proper basis for discharge. First, while her desire to become a real estate agent is laudable, the simple fact of
enrolling  in  a  course  does  not  in  my view  engage  my discretion  on  appeal  to

5	Clark v New Zealand Police [2014] NZHC 2806.
6	Uele v New Zealand Police HC Auckland CRI-2011-404-190, 1 November 2011.

discharge without conviction.  My position might have been different had Ms Egen been about to apply for a licence having completed a lengthy course of study. But that is not the case.  Furthermore her prior convictions for assault militate strongly against discharge.

Final issue – Request to seek counsel

[34]     In her memorandum filed with the Court after the close of the appeal hearing Ms Egen sought time to obtain counsel. I rejected this request.  I granted leave to file memoranda after hearing on a limited basis.  Ms Egen could not produce evidence from Faith Egen about the prosecutorial misconduct claim.  There was nothing more to consider other than the new information about sentence.   Ms Egen could have sought legal advice prior to the hearing of the appeal.  I was not prepared in those circumstances to elongate this process still further.

Result

[35]     The appeal against conviction and sentence is dismissed.