AA v Police HC Gisborne CRI 2010-416-004

[2010] NZHC 2063

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2010-416-004

BETWEEN  AA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 October 2010

Counsel:         L Hemi for Appellant

R G Collins for Respondent

Judgment:      28 October 2010

JUDGMENT OF MILLER J

[1]      AA appeals against his conviction on three counts of indecently assaulting his daughter.   He complains that the Judge failed to give adequate reasons for her decision.

[2]      The offences are said to have occurred on 1 and 2 January 2009 and between

11 and 28 September 2009.   The complainant, who was aged 16 at the time, complained that when Mr A was drunk he touched her breasts and stomach and around her bottom, front and back, under her clothes.  This happened when she was in bed.  She said that she went to the police when one of her father’s drinking mates entered her bedroom.  She made it clear that he was unwelcome and he left, but she decided enough was enough.

[3]      The complainant gave a lengthy evidential interview, and there was also a video interview for the appellant.   Both were played at the hearing, at which they

were the only substantive witnesses.

AA V NEW ZEALAND POLICE HC GIS CRI 2010-416-004  28 October 2010

[4]      The defence was simply that the incidents did not happen.   Mr AA also denied being intoxicated at all.  He maintained that his daughter lied because she did not like the strict discipline at home.  He characterised her as dishonest, saying that she stole money and told lies and had a bad attitude.  She had no respect.

[5]      The Judge noted that the complainant was crucial to the prosecution case and directed herself that any doubts about the veracity of her evidence must be exercised in favour of Mr AA.   It was not for him to prove his innocence, nor to prove anything else.   The prosecution must prove beyond reasonable doubt that he did assault the complainant in a way that she had described.   The slightest degree of touching can suffice for an assault, but the assault must also have been indecent.  If the  allegations  the  complainant  made  were  correct  then  that  would  be  indecent assault.  The appellant must also have intended or appreciated the existence of those facts  and  circumstances  that  made  the  assault  indecent.    She  must  not  have consented, and he must not honestly believe that she was consenting.  She noted that consent did not arise on the facts as the defence was one of complete denial.  I record that there is no challenge to any of those directions.

[6]      The Judge then defined the sole issue as whether or not the Court could be satisfied beyond reasonable doubt that the actions complained of by the complainant did take place.

[7]      Addressing that issue, the Judge evaluated the complainant’s evidence.  The complainant impressed her as an honest witness, “a witness of the truth.”  The Judge accepted her account as reliable in the material particulars, although she may not have been completely clear on some background matters.  That was a reference to some difficulties in her evidence, which the Judge had earlier identified.  There was a suggestion that she had been asleep yet was aware of fights between her parents and knew that her mother had left the house before the appellant woke her up; further, that she had been trying to find the toilet and then woke up.  Plainly, if she had been asleep she would not have been aware of such background matters.  There was also an inconsistency in her account, in which she variously said that she had felt hands under her clothes on the third occasion and that she did not know if the appellant had touched her.

[8]      The  Judge  further  noted  that  the  complainant  appeared  distraught  when giving her evidence, particularly in the video interview, which had taken place on 15

October 2009 (the hearing was held on 23 March 2010).  Although the Judge did not use the term corroboration, it appears that she regard the complainant’s demeanour in the interview as corroborative in some degree.

[9]      The  Judge  next  stated  that  she  was  supported  in  her  view  on  the complainant’s evidence by her rejection of the appellant’s explanation that strict discipline was a reason to make up such appalling allegations against him.   That claim lacked the ring of truth as far as the Judge was concerned.  She added that the appellant did not impress as a reliable witness, possibly because at all relevant times he was affected by alcohol and it may well have affected his recall also.  I pause to note that the only evidence that he was affected by alcohol at the time was that of the complainant;  he denied it.

[10]     In conclusion, the Judge recorded that she was satisfied beyond reasonable doubt that the allegations were correct.   She accepted the complainant’s account where it differed from that of Mr AA, having seen and heard both of them.  He was duly convicted.

[11]     It will be seen that the Judge identified and resolved the conflict of evidence. Further, she gave reasons.  The question raised on appeal is whether those reasons were adequate.

[12]     In a case such as this, where the question is whether there is a reasonable possibility that a complainant has given false evidence, the Judge cannot assess credibility simply as a matter of impression.  The underlying circumstances must be analysed.[1]    And having done that, the Judge must give reasons appropriate to the occasion.[2]      The  reasons  may be brief,  especially where  they are  also  based  on judgement resulting from experience and knowledge of human behaviour.   As Winkelmann J summarised the authorities in Taiatini v Police:[3]

[1] Kapa v Police (1989) 4 CRNZ 306 at 311.

[2] R v Awatere [1982] 1 NZLR 644 at 648; Kapa v Police (1989) 4 CRNZ 306 at 311.

[3] HC Rotorua CRI 2005-463-59, 7 October 2005.

[12]     Where credibility is in issue, the presiding Judge should ordinarily give  reasons  for  rejecting  the  evidence  of  a  witness  whose  evidence  is material  to the  outcome:   Takarei  v  Police (HC  Hamilton  AP77/02,  22

November 2002, Randerson J).  The extent of reasoning required will vary between cases, but the reasons given should be "adequate to the occasion":

R v Awatere [1982] 1 NZLR 644, 649 (CA). It must not be overlooked that

Judges, in particular District Court Judges operate under time constraints and in circumstances which usually require oral decisions to be given at the

conclusion of the evidence:  Kapa v Police (1989) 4 CRNZ 306.  Further,

there are difficulties in articulating reasons for a credibility finding “which is based principally upon an exercise in judgment borne of experience, knowledge of human behaviour, and the evaluative process”. (Jai Ram Sharma v New Zealand Police, HC Auckland, CRI 2005-404-0235). Nevertheless, as Randerson J said in Takarei at [14]:

… some brief reasons for rejecting the evidence of a key witness should be given.

[13]     Mr Hemi argued that just two reasons were given;  Mr AA’s explanation that his daughter lied because she disliked strict discipline was implausible, and Mr AA did not impress the Judge as a reliable witness.  These really amount to one reason; Mr AA was not a reliable witness.  The rejection of his explanation as implausible can be discounted having regard to the onus of proof;  if rejected, the explanation could not supplement the complainant’s account.   And to say that Mr AA was unreliable is merely to state a conclusion, not to give a reason.   The Judge might have said that he was evasive, inconsistent, or unwilling to answer questions, but she said none of those things.  In the circumstances, the reasons given were inadequate.

[14]     This argument discounts the Judge’s careful and favourable findings about the complainant.  She did not base her decision primarily on her finding that Mr AA was unreliable.  Rather, she evaluated the complainant’s evidence, dealing with the weaknesses in it, and concluded that she was an honest witness.  Having reached that point, the question was whether, in light of the defence evidence, the Judge was left with a reasonable doubt about the happening of the assaults.

[15]     The Judge drew on the contrast between her impression of the complainant and his assertion that the complainant was thoroughly dishonest and had no respect. She did not reverse the onus by noting the implausibility of his evidence that the complainant might lie because she disliked family discipline.

[16]     The Judge’s reference to Mr AA being affected by alcohol does rest on the complainant’s evidence, as Mr Hemi submitted, but that does not mean it is immaterial.   Experience and knowledge of human behaviour might well lead the Judge to think that the complainant’s account was more plausible because she spoke of Mr AA getting drunk before entering her bedroom.

[17]     I accept that the Judge did not elaborate on why Mr AA impressed her as an unreliable witness, although he used an interpreter and the Judge referred to interpreting difficulties getting in the way of the cross-examination.  But one may infer from the reference to alcohol that she found his recall unsatisfactory.   The transcript conveys the impression that he contented himself largely with denials, without adding much detail.   Further, it is evident that the principal reason for finding him unreliable was that the Judge had in the preceding sentence rejected his explanation.

[18]     Although it would help had the Judge given fuller reasons for finding Mr AA unreliable, the reasons  she did  give  are rather more substantive than  those that survived appeal in Taiatini.  They are in combination adequate.

[19]     The appeal is dismissed.

Miller J

Solicitors:

Rishworth Wall & Mathieson, Gisborne for Appellant

Elvidge & Partners, Napier for Respondent