Cantwell v Police

[2024] NZHC 3827

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-292

[2024] NZHC 3827

BETWEEN

AMBER JADE CANTWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

2 December 2024

Appearances:

Appellant in person

M S Chiraag for respondent

Judgment:

13 December 2024

JUDGMENT OF JOHNSTONE J

(appeal against convictions)

This judgment was delivered by me on 13 December 2024 at 4 pm

Registrar/Deputy Registrar

Solicitors: MC, Auckland

CANTWELL v POLICE [2024] NZHC 3827 [13 December 2024]

[1]                 On 23 May 2024, after a Judge-alone trial that had been held that day in the District Court at Auckland, Amber Cantwell was found to have committed offences of assault and intentional damage.1 She was sentenced to undertake 12 months’ supervision, and ordered to pay $500 in reparation.2

[2]                 Ms Cantwell, appearing in person without legal representation, appeals against her convictions for those offences. I address her arguments below. First, I discuss: the correct approach on appeal, the course of the trial (as confirmed by audio recordings of the trial, which have been produced to form part of the materials available in the appeal), and the Judge’s oral judgment.

Approach on appeal

[3]                 Ms Cantwell’s appeal must be allowed if a miscarriage of justice occurred, whether because the Judge erred in his assessment of the evidence, or for any other reason.3 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial, that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.4

[4]                 If I reach a different view on the evidence, it will follow that the Judge erred in a manner affecting the trial’s outcome. However, it is for Ms Cantwell to show that an error has been made, and in assessing whether an error has been made, this Court must take into account any advantages the Judge may have had, when hearing the matter at first instance.5

The trial

[5]                 At the beginning of the trial, Ms Cantwell faced three charges. In short, the police alleged that, following an unremarkable early evening at the home of her acquaintance, Mr Smith, Ms Cantwell left, only to return shortly after, at which point:

1      New Zealand Police v Cantwell [2024] NZDC 17939.

2      New Zealand Police v Cantwell [2024] NZDC 14318.

3      Criminal Procedure Act 2011, s 232(2)(b) and (c).

4      Section 232(4).

5      Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].

(a)Ms Cantwell took Mr Smith’s cell phone out to her car, in that way stealing it;

(b)when Mr Smith followed Ms Cantwell out to her car, she assaulted him; and

(c)when Mr Smith went inside to call the police, Ms Cantwell threw a plant pot through a glass pane in his front door.

[6]                 As might be inferred, the three charges Ms Cantwell faced were charges of theft,6 assault,7 and intentional damage.8

[7]                 When the case was called  on  23  May  2024,  the  Judge  first  addressed  Ms Cantwell’s request for disclosure of documents prepared by two police officers who attended the incident but, unlike a third officer who dealt with Ms Cantwell that evening, were not listed to be called as prosecution witnesses. The police prosecutor advised that the two officers had not prepared documents. The Judge confirmed that that dealt with the issue. During the discussion, the prosecutor advised that the two officers were present at the Court, and available to Ms Cantwell should she wish to call them as witnesses. Similarly, another named officer was standing by in Australia, and available to be called as a witness by Ms Cantwell.

[8]                 Next, the Judge addressed Ms Cantwell’s disclosure request for records confirming that, at the time of the incident, Mr Smith was on parole for attempted murder, a matter which informed her defence of self-defence. The Judge pointed out that Ms Cantwell would be able to cross-examine Mr Smith on that issue if it arose.

[9]                 Then, the Judge sought to assist Ms Cantwell by explaining a range of matters of trial procedure: the calling and questioning of witnesses, the prosecutor’s burden of proof, Ms Cantwell’s entitlement not to give evidence, her inability to advance contested matters of evidence via questioning without supporting evidence, the

6      Crimes Act 1961, ss 219 and 223(d). Maximum penalty: three months’ imprisonment.

7      Section 196. Maximum penalty: one year imprisonment.

8      Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months’ imprisonment, or

$2,000 fine.

Judge’s role in determining matters of procedure (including evidential relevance), and his intention to determine the case based solely upon evidence to be given and whether the evidence made him sure Ms Cantwell had committed each offence.

[10]              Ms Cantwell enquired whether United Nations laws concerning disability would have relevance, given her autism. The Judge said not.

[11]              And then the trial proper commenced. The prosecutor called two witnesses, Mr Smith and Constable Miles Beresford. The audio recordings and the transcribed notes of evidence accurately reflect each other.

Mr Smith’s evidence and 111 calls

[12]              Mr Smith gave evidence that Ms Cantwell visited his  home after work  on  28 April 2023. After a couple of drinks, she left at about 8.30 pm. Mr Smith noticed she had left her glasses behind, and texted her to that effect, advising he would leave them in the chilly bin outside his home.

[13]              Mr Smith said that, shortly after his text, Ms Cantwell returned and in an agitated state accused him of stealing her phone. She went to where his phone was plugged into a battery pack which was plugged into a wall socket, took the phone and charger, and went out to sit in the driver’s seat of her car, parked on the road.

[14]              Mr Smith said he went after Ms Cantwell, and from the driver’s side saw her struggling to unlock his phone. She demanded to know what he had done to her phone, and what its passcode was.

[15]              Mr Smith said he tried to grab his phone, by reaching in through the open driver’s door. Ms Cantwell responded by lashing out with one open hand across his face. Mr Smith asked her to calm down, and she “punched [him] a few times in the head”, throwing the phone into the front passenger footwell. And she kicked him.

[16]              Mr Smith said he then went around to the passenger side, opening that door, but was unable to see his phone. He then noticed blood on the side of his face, and went back inside to call 111 using his separate work phone. A recording of this 111 call

was played and produced to the Court. Mr Smith’s account to the call taker was largely as outlined above.

[17]              Continuing his evidence in chief, Mr Smith said that after the call, he saw  Ms Cantwell coming back up the drive to his home, he went to walk to his spare room, and then heard “an almighty kaboom”. Although at that instant his back was turned, his front door was only around half a metre behind him. The sound was that of a pot plant breaking through a windowpane in the door, and smashing on the internal wooden floor and a nearby television unit. Ms Cantwell was screaming and rambling. He was scared. He called 111 again. This 111 call was also played and produced.

[18]              Mr Smith can be heard speaking, emotionally, both with the call taker, and then also addressing a person near him. The person can be heard. Their voice is a woman’s voice. She sounds aggressive and highly agitated. Mr Smith addresses her as “Amber”. He repeatedly insists to the person “I don’t have it”. Mr Smith then reports, to the call taker, Ms Cantwell leaving and going back to her car. By this time, he sounds extremely upset. He speaks of being fearful.

[19]              Resuming his evidence in chief, Mr Smith described the police arriving, and with their assistance retrieving his phone from Ms Cantwell’s car. He said the phone was found in the car, not initially but when it was called.

[20]Ms Cantwell sought to cross-examine Mr Smith, by putting to him that:

(a)She only struck him when he entered her car through the front passenger’s door.

(b)It was not possible for her to kick him, while she was seated in the driver’s seat and he was standing at the driver’s side of the car.

(c)If she had stolen his phone she would simply have driven off.

(d)The television was not damaged, Mr Smith not having complained about such damage to the police attending that night. Mr Smith damaged the television himself, in an attempt to extort money from her.

(e)Mr Smith described both a window being smashed and a door, and was again attempting to overstate the damage actually suffered.

(f)Her first departure from the home that evening was not on good terms, this being evident from Mr Smith’s text that he had left her glasses outside, rather than inviting her back inside. Mr Smith had in fact stolen her phone, and had it inside his home, which is why he put her glasses outside.

[21]              Ms Cantwell had difficulty framing appropriate questions, rather than arguments based on her account of events. The Judge intervened with some frequency, in my view reasonably and appropriately, assisting and re-directing Ms Cantwell while seeking to maintain focus on matters in issue and procedural propriety.

[22]              The Judge prevented Ms Cantwell  from  asking  questions  about  whether Mr Smith was on parole for attempted murder, or facing charges for assaulting another person, finding those questions irrelevant.

[23]              Mr Smith maintained his account. He said he was unaware of the damage to the television until attempting to turn it on after the police left. He complained to the police about the television the next day. The window he referred to was the smashed windowpane in his front door. It was only her glasses which Ms Cantwell left behind, which he put outside because he thought she had left and it might be more convenient for her to retrieve them from outside. In any event, he opened the door to her when she returned the first time.

Constable Beresford’s evidence

[24]Mr Beresford gave evidence that he arrived outside Mr Smith’s home at around

9.20 pm. He observed Ms Cantwell speaking loudly, in an agitated manner, from the driver’s seat of her car to another police officer who arrived before him.

[25]              Mr Beresford said he went to Mr Smith’s home, noticing the smashed windowpane of his front door, and a plant pot inside the door amongst broken glass.

He spoke with Mr Smith, then returned outside and arrested Ms Cantwell for the suspected offence of intentional damage.

[26]              Mr Beresford said he found Mr Smith’s phone and battery pack, upon Mr Smith using another phone to call the found phone, tucked into a crevice between the driver’s seat and backrest in Ms Cantwell’s car. And he said that Ms Cantwell had two phones of her own, both found on her person when she was searched pursuant to her arrest.

[27]              Ms Cantwell cross-examined Mr Beresford, seeking first to ask about him calling mental health services, about the handcuffs applied to her upon arrest being too tight, and about whether Mr Beresford was previously known to Mr Smith. But the Judge indicated he thought those issues would not go to whether a phone had been stolen, or episodes of assault or intentional damage had occurred.

[28]Ms Cantwell challenged Mr Beresford by suggesting:

(a)it was not possible for him to have arrived, conducted his investigative activity and read her her rights in the way his notebook entries, including as to timings, recorded;

(b)he and Mr Smith had together embellished Mr Smith’s account;

(c)his notebook entry “nil phone” contradicted his evidence of her having two phones on her person;

(d)he improperly allowed Mr Smith to search her car, and a bystander to move her car away from Mr Smith’s home.

[29]              Mr Beresford maintained his account. He said his notebook was accurate, he simply recorded Mr Smith’s account faithfully, the entry “nil phone” was intended to record Ms Cantwell did not provide a phone number when asked for contact details, and it was the police who searched her car with Mr Smith assisting by ringing his personal phone number, and the police who moved it away so she would not breach bail conditions when coming back to recover it.

The balance of the trial

[30]              The prosecutor then announcing that the police case had been presented, the Judge asked Ms Cantwell whether she wished to call the other police officers who were present (see [7]), but reminded her their evidence would need to focus on the charges. Ms Cantwell elected not to call them.

[31]              The Judge then advised Ms Cantwell that she needed to make an election whether to give evidence, suggesting she might have a few minutes to consider the issue. Ms Cantwell said she thought her account was clear, and she elected not to give evidence, saying “I’ll leave it at that”. Upon her observing that she was unsure whether she might be permitted to call evidence from Interpol or the Australian Federal Police, referring to “terrorism”, the Judge advised that they would not assist.

The Judge’s decisions

[32]              Having heard the evidence, the Judge gave a brief oral judgment. The Judge found the charges of assault and wilful damage to have been proved beyond reasonable doubt, and convicted Ms Cantwell upon them. The Judge found the theft charge not to have been proved, and dismissed it.

[33]              Again, I have listened to the audio recording of the Judge’s oral judgment, and I have reviewed the transcribed version. They are an accurate reflection of each other, the transcribed version appropriately leaving to one side, or re-casting, the strict wording of the Judge’s remarks so as to better capture their meaning.

[34]              The Judge observed he was not sure Ms Cantwell had stolen Mr Smith’s phone. In particular, the evidence suggested Ms Cantwell thought the phone she took was hers. The necessary aspects of criminal intent had not been established.

[35]              The Judge found the assault charge proved, Ms Cantwell appearing to accept she struck Mr Smith. The Judge addressed whether Ms Cantwell might have been justified by acting in defence of movable property,9 but observed that the action of striking Mr Smith ruled that out.

9      Crimes Act, ss 52–53.

[36]              The Judge found the intentional damage charge proved, relying on the striking consistency between Mr Smith’s account of events and the 111 calls, and the inherent implausibility of Mr Smith being motivated to smash his own front door windowpane, let alone able to achieve that in circumstances where the 111 call after the event plainly portrays Ms Cantwell as the aggressor.

Ms Cantwell’s position

[37]              Ms Cantwell advanced her arguments on appeal orally, during a substantive hearing conducted before me on 2 December. In essence, she argued that:

(a)The audio recordings show that those who played a role in the trial — the witnesses, the prosecutor and the Judge — are all lying. More specifically: the transcribed notes of the evidence given at the trial are incorrect, and in fact there was no evidence which might support her convictions.

(b)The evidence suggested the complainant may have staged the intentional damage. By doing so, the complainant demonstrated that none of his evidence could be believed. The Judge was wrong to discount these possibilities.

(c)Such evidence as there was raised the possibility of self-defence, which the Judge did not address and could not have been disproved.

[38]              Ms Cantwell also suggested that if the Court did not accept her arguments she would complain to other authorities, mentioning the media,  Interpol  and  the  United Nations.

Analysis

[39]              Dealing with Ms Cantwell’s last suggestion first, I observe simply that it neither helped nor hindered her argument. I will determine her appeal based on its merits, without regard to the prospect of complaint.

[40]As to the merits:

(a)I consider the audio recordings to confirm that Ms Cantwell received a fair trial, at which evidence was presented in a procedurally correct manner, and following which the Judge reached an available view of the evidence. With respect, I would have reached the same view. None of the participants Ms Cantwell complains about were lying.

(b)Mr Smith’s account was substantially corroborated by the 111 calls. Ms Cantwell appears simply to have made an unfortunate mistake, with significant negative consequences, for both Mr Smith and ultimately for herself. Whether as a result of Mr Smith’s text about her glasses, or because she overlooked the phones she already had with her, she formed the mistaken view that Mr Smith had kept her phone in his home. She returned in a state of some agitation, assumed his phone was hers, took it, and became further upset when he tried to retrieve it.

(c)Essentially for the Judge’s reasons (described  at  [36]),  I  am  sure Mr Smith did not damage the windowpane in his own front door.

(d)The evidence did not raise an evidential possibility of self-defence. Ms Cantwell put to Mr Smith only that she struck him when he entered at her passenger’s door. He agreed, having explained in his evidence that he did so in an attempt to retrieve his phone. There being no evidence adduced to the effect that Mr Smith may have threatened  Ms Cantwell’s physical safety:

(i)there was no need for the Judge to consider whether the prosecution had disproved self-defence; and

(ii)similarly, the Judge’s view, that evidence of Mr Smith facing or being on sentence for other charges could not be relevant, was correct.

Result

[41]              For these reasons, Ms Cantwell having failed to establish a miscarriage of justice, her appeal is dismissed.

Johnstone J