In Wellington before Court of Appeal Judges: Hon. Justice William Young (President), Hon. J. Grant Hammond and Hon. J. David Baragwanath. Tuesday 23 March 2010.
In the second case heard in Courtroom 2 before the Court of Appeal on Tuesday morning 23 March 2010, James Louis Mason, 51, Christchurch musician and father of six, defended himself against his 2009 conviction of assault against his 4-year-old son. His wife Ann was in attendance and assisted him. A Society representative who attended the court hearing spoke at some length with James and his wife before the case, during recess and after the case. The court hearing was filmed by TV3 and a number of the media were present.
James Mason pointed out that six trained police policeman were called to the scene of the altercation (on the Christchurch Bridge of Remembrance) following an emergency call from an off-duty policewoman Senior Constable Andrea Trenchard. She had been alerted to the fact that James may have hit a boy, by a schoolteacher Mrs Belinda Paine, who along with her son claimed to have seen the alleged assault. James told the Court that a Senior Police Investigator Rick Dury was given the task of investigating the matter.
In the Christchurch District Court jury trial held before Justice Michael Crosbie, James had been found guilty on 19 May 2009 on “count 3” – the charge of assault involving ear pulling and/or punching his 4 year old Seth. James had maintained at that court hearing that he had only pulled Seth’s hair in the course of trying to drag him away from his bike and then when he refused to desist, he gave him an ear flick to reinforce the fact that he was to obey his father. (James was acquitted by the jury of assault under counts 1 & 2 involving force used in relation to the bike on which Seth was seated).
The Court of Appeal judges noted that Judge Crosbie had directed the jury that it was open to them to convict James of assault based only on the ear flick OR the punch OR both. Judge Crosbie had referred to the jury verdict on sentencing James on 17 June 2009 as “unanimous” in terms of a conviction for assault involving a “punch” and the media had reported this at the time.
James told the Court of Appeal today that he felt a serious injustice had occurred as he maintained he never punched his son. If he had been convicted of assault based on an ear flick he said that would be easier to bear, but the claim of a punch put him, he felt, into a category along with serious child abusers, of which he was not one. He expressed concern that little account seems to have been taken in sentencing to the context of the altercation that involved him being caught up in a serious injury, defiance shown by his boy and the imposition of a police woman intent on getting answers when he had other pressing issues to deal with.
James expressed concern to the Court of Appeal judges over the fact that the third count of assault deliberated on by the jury for nine hours before they made their decision, and for which he was found guilty, had treated the ear flick and punch under one count. He said he had brought the matter before the Appeal Court because he felt the ruling had been ambiguous as to whether he had been found guilty of punching his son or of ear-flicking him. The Court of Appeal judges referred to the “rolled up nature of count three” but contended that it was very common for distinct actions contributing to an assault be grouped. They noted that if James had been convicted of assault for both actions separately, he might have faced a stiffer sentence than the one he had got – nine months supervision and required attendance at an anger management course. – all of which he has now completed.
The three Court of Appeal judges appeared were very sympathetic to the fact that James faced a serious “trilemma” when the alleged assault took place. He was faced with dealing with an emergency when Zac crashed his bike and was seriously injured – to the degree that he was passing in and out of consciousness. He needed to urgently get ice to Zac to reduce the swelling of the forehead (and possible brain damage) while at the same time prevent young Seth from dashing off on his bike down a ramp and potentially have an accident. In addition he had his young daughter to care for who could not be left alone.
Confronted by an off-duty Senior Constable Andrea Trenchant who, based on a report she received from an onlooker (Mrs Paine), suggested he may have hit his son, James had only one thing on his mind – the welfare of his seriously injured boy Zac. James admitted that in the heat of the moment he was quite abrupt with the officer who seemed intent on pursuing the accusation rather than allowing him to get some ice for Zac’s treatment from a nearby shop. She informed him he could do no such thing and when six police officers arrived they talked with James and the two witnesses (Paines) about the allegations and took notes – all of which were subsequently lost.
James told the Court that the officer in charge, after completing the site investigation and having taken notes, told him he could go home with his kids and that no charges would be laid against him. However, he was told that they had “put a black mark” against his name and that should he be referred to them again for a similar matter they might take it further. The officer said he would contact James within a few days after making a few follow up investigations. Two days later James says that Inspector Rick Dury contacted him and told him that the police would not be laying charges and he repeated what he had said to him on the day of the incident.
James told the Court of Appeal that he had had to make 11 court appearances prior to the matter being dealt with in the Christchurch jury trial on 19 May 2009. He expressed his real concerns at the way his defence counsel Miss Elizabeth Bulger had dealt with the evidence leading up to the trial and regretted the fact that she had convinced him to have the alleged punch and ear pull grouped together under one charge.
Press reporter Phil Hamilton had contacted Rick Dury about the case after James had received a phone call from Sergeant Rick Dury who told him that the police would not lay charges. Mr Hamilton had been prompted to do so by the fact that Mrs Paine had raised concerns with the media about the way the police had used their discretion in the incident and failed as she saw it to lay charges. She was upset that a father who had punched his son might have used a defense under section 59 of the Crimes Act or some similar type defense based on reasonable force. And yet the case as Mr Mason has stated and the sentencing Judge stated publicly was never about the merits or otherwise of the “reasonable force/discipline” s. 59 defense.
Mr Mason argued before the Court of Appeal that once the police who had attended the altercation and interviewed witnesses had informed him that he was not to be charged, and two days later repeated this finding to him in a logged phone call, that should have been the end of the matter. The police had exercised their discretion and any subsequent action on their part to overturn the original finding should not be admissible in his view. He argued in effect that the application of the principle of natural justice was denied him when Mrs Paine went to the media and made public certain accusations against him that were contrary to what she had stated in the witness report, and did so BEFORE she went to the police with the same allegation. No witnesses came forward at the jury trial to say they had witnessed James punch his son.
On 29 June 2009, in a Police Media Release to NZPA, Christchurch Central Area Commander Derek Erasmus stated: “Mr Mason was seen by two very credible witnesses to punch his child and he was subsequently charged with this offence.” Keith Lynch reported for the Press on 19 May 2005 that Ms Paine had told the court Mason “yanked his son’s ear and hit him in the face with a clenched fist.”
However, when asked on the day of the altercation whether she had seen James punch his son, Mrs Paine and her son stated they were unsure. Senior Constable Trenchard who first voiced the accusation to James on the day, did not do so directly. She emphasised to him that “a lady thinks you MAY have punched your son” an accusation which James rejected when he explained to her that it was only an ear flick. It was only after Ms Trenchard refused to allow him to get ice for Zac that he made certain comments in the heat of anger that he now regrets that were used before the jury to convict him of assault.
James was adamant that the interview notes taken by officers at the time of the incident were all lost when the investigation was reopened only after Mrs Payne sought relief by spilling her complaints to the media three weeks after the event.
The Court of Appeal Judges reserved their decision.