IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2019-404-009
[2019] NZHC 2688	

BETWEEN	RUSSELL WARD SMITH
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	17 September 2019	
Appearances:	Appellant in person
L P Radich for Respondent	
Judgment:	21 October 2019	

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 21 October 2019 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:	Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Copy for:	Appellant

SMITH v POLICE [2019] NZHC 2688 [21 October 2019]

Introduction

[1]	Following  a  judge-alone  trial  in  the   District   Court   at   Manukau,   on 11 September 2018 Judge D J McNaughton found Mr Smith guilty of two charges of male assaults female.1 Mr Smith now appeals against his conviction.

Background

[2]	Both charges arose out of arguments between Mr Smith and his former partner, Ms Stanners.

[3]	The first was on 11 August 2016. An argument between the two ultimately culminated in Ms Stanners hitting her head on a kitchen tile, causing a split above her eye.  Mr Smith’s  and  Ms   Stanners’  accounts   of   this   occurrence   conflicted. Ms Stanners’ account was Mr Smith pushed her when she tried to grab her handbag from him, that she fell down, made a second attempt at the handbag, and that Mr Smith “grabbed her by the shirt and flung her to the ground”, causing her to hit her head on the kitchen tile.2

[4]	Mr Smith’s evidence was that Ms Stanners ran at him, knocked him off balance, that he stepped back, steadied himself, and put a hand out in front of him, palm up. He described Ms Stanners running at him, colliding with his hand(s) and falling over. The Judge thought this unlikely but said he “could not exclude it as a reasonable possibility”.3

[5]	The second incident occurred on 23 December 2016. Though Mr Smith was no longer living with Ms Stanners, he had been staying at the house whilst Ms Stanners was away.

[6]	On Ms Stanners’ return, an argument developed regarding, amongst other matters, the ownership of a dog. Mr Smith picked up the dog and went to put it in his van. Ms Stanners kept getting the dog out of the van. In any event, Ms Stanners’

account was that Mr Smith first pushed her into a bush next to the driveway causing her to fall over backwards. She said Mr Smith subsequently picked her up by the shirt and threw her backwards, that she landed on the front lawn, and skid three or four metres across the grass.

[7]	Mr Smith denied picking up Ms Stanners or throwing her. Indeed, because of a back injury, he said it would have been impossible for him to do so. Mr Smith acknowledged he pushed Ms Stanners away while he was carrying the dog and that this caused her to trip and fall backwards over a plant next to the driveway. He said this was done in self-defence (Ms Stanners having been pushing, scratching, and striking him) or in defence of movable property (the dog).

[8]	Margaret Kumar, a neighbour, gave evidence that, alerted by the sound of an argument, she entered the address and saw Ms Stanners and Mr Smith standing by a van. Ms Kumar’s evidence was that Mr Smith was pushing Ms Stanners, and that  Ms Kumar told Mr Smith to “cut it out”.4 She said Mr Smith “picked [Ms Stanners] up and threw her on the lawn”.5 Ms Kumar accepted that both were pushing and shoving each other, and that Mr Smith was telling Ms Stanners to get out of his way as he wanted to leave.

[9]	When the constables arrived, Mr Smith acknowledged that he had pushed  Ms Stanners but said that he was acting in self-defence at all times, as she was scratching and pushing him and stopping him from getting into his van. He denied throwing Ms Stanners to the ground.

[10]	As to the push Ms Stanners described, the Judge said he was “unable to exclude self-defence as a reasonable possibility on the evidence, or use of force to defend movable property”, that property being the dog.6

[11]	However, the Judge was satisfied that Mr Smith had thrown Ms Stanners on the lawn, principally on the basis of Ms Kumar’s evidence, and some photographs of Ms Stanners’ elbows taken by a constable on 23 December 2016. The Judge described

Ms Kumar as “effectively neutral and in close proximity when the second incident occurred”.7 The Judge found the second charge proved beyond reasonable doubt.

[12]	The Judge then returned to the first charge arising from the August incident and said Mr Smith’s guilt on the second occasion affected his interpretation of events in relation to the first. The Judge said he was “satisfied beyond reasonable doubt that there was an intentional assault on the first occasion as well and both charges [were] proved”.8 Although he did not say so expressly, it appears the Judge considered the offending on the second occasion to be propensity evidence on the first.

Grounds of appeal

[13]	Mr Smith has raised numerous grounds of appeal and has been critical of the conduct of his counsel at the time, Ms Cheeseman. Having read all evidence, the submissions  made  to  me,  and  Ms Cheeseman’s  affidavit,  I  am  satisfied  that  Ms Cheeseman did an excellent job for Mr Smith and any criticism of her is quite unwarranted.

[14]	Turning to Mr Smith’s appeal on the 23 December incident, I am not persuaded the Judge made any error in relying on Ms Kumar’s evidence as he did. The Judge was entitled to accept her evidence, and the reasons he gave for doing so were sound.

[15]	However, I am satisfied that the Judge erred in finding the first charge proved as he did. Having heard the evidence on that charge, the Judge was unable to exclude the possibility that Ms Stanners charged into Mr Smith’s outstretched arm. I do not consider that whatever may have occurred on the second occasion could assist in resolving the conflict on the evidence as to the first charge. On the contrary, given the Judge could not exclude that Mr Smith was acting in self-defence for at least part of the second incident, that might equally have supported Mr Smith’s account as to what transpired in the August incident.

[16]	For that reason, I propose to quash the conviction entered on the first charge of male assaults female, that is the conviction relating to the incident on 11 August 2016.

Section 106 Sentencing Act 2002

[17]	At the time he gave his decision, the Judge is said to have indicated he would look favourably on an application by Mr Smith for a discharge without conviction if Mr Smith first undertook 50 hours of community work.9 Mr Smith did so and, in fact, told me he undertook more than the 50 hours. He also completed an anger management course as he was required to do.

[18]	As it turned out, the Judge did not grant the discharge. He convicted Mr Smith and ordered him to come up for sentence if called upon within six months.10

[19]	Given my decision on the first charge, it is appropriate to ask the Judge to reconsider Mr Smith’s application for a discharge without conviction.  Mr Smith is 55 years of age, has no prior convictions and has not offended since. He also did that which the Judge suggested he do.

[20]	Mr Smith’s prospects on his application for a discharge without conviction are likely to be improved materially if he has counsel. He should apply for legal aid if necessary, and provide a copy of this decision to the Legal Services Agency in support of his application, as it may assist the Agency’s consideration of his application.

Result

[21]	I quash Mr Smith’s conviction for male assaults female on 11 August 2016. I dismiss his appeal against his conviction for male assaults female on 23 December 2016. I remit this matter back to the Judge for reconsideration of Mr Smith’s application for a discharge without conviction.

Peters J