Abraham v Police HC Christchurch CRI-2011-409-000099

[2011] NZHC 1989

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000099

CRI-2011-409-000100

GEORGE ABRAHAM

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 December 2011

Appearances: C Ruane for Appellant

K Bell for Respondent

Judgment:      6 December 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      Following a summary hearing in the District Court Mr Abraham was found guilty of breaching a protection order on two occasions.   Two other charges were dismissed.   The charges  on which Mr Abraham was found guilty involved text messages that had allegedly been sent by Mr Abraham to his wife’s cell phone in breach of a protection order.

[2]      Immediately before the hearing began Mr Abraham’s counsel sought and obtained leave to withdraw.  It seems that there had been differences between them about  presentation  of  the  defence  case.    Having  granted  leave  for  counsel  to withdraw, the Judge immediately appointed him as amicus.  This probably reflects

that  Mr  Abraham  would  have  had  difficulty  being  able  to  cross-examine  the

ABRAHAM V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000099 6 December 2011

complainant. The situation was complicated by the fact that although Mr Abraham is a New Zealand citizen, he is national of India and English is his second language.

[3]      Without going into detail, the defence he wished to convey was that his wife’s computer system would have enabled her to effectively send the text messages in question to herself.  In other words, he was claiming that he had been “set up” by his wife.

[4]      One of his complaints on this appeal is that the amicus did not cross-examine the complainant on this issue.  Unfortunately, the recording of the trial failed from

10:50 a.m. to 11:33 a.m. and it was during this period that cross-examination was conducted by the amicus.   Thus there is no record of the issues traversed during cross-examination.

[5]      Mr  Ruane  submitted  that  in  considering  whether  there  should  be  a  new hearing it is appropriate for the Court to also take into account that Mr Abraham, without legal experience and with language difficulties, had problems in properly conveying his defence to the Judge.   He contends that this is evident from the confused manner in which he gave evidence on his own behalf.

[6]      For the respondent Ms Bell submitted that this case should not go back for a re-hearing.  She claimed that the decision of the District Court Judge is clear on its face, the appellant’s defence having been adequately addressed.  Ms Bell submitted that the matter really came down to credibility in respect of which the Judge had found against the appellant.  She submitted that the appeal should be dismissed.

[7]      The absence of a transcript concerning a vital part of the trial cannot be brushed aside.   Without the transcript I have no way of knowing whether the complainant was challenged on an issue lying at the heart of Mr Abraham’s defence. It is certainly not possible to safely draw any inferences from the decision.  I cannot, therefore, be confident that there has been no miscarriage of justice here.

[8]      Under all the circumstances I do not think that I have any option other than to allow the appeal and admit the matter back to the District Court for a re-hearing.  It will be called at 2:15 p.m. on 19 December 2011 in Hearing Room 1, Aoraki House.

[9]      My understanding is that Mr Ruane has been assigned for the purpose of this appeal alone.  Given the history of the matter, it would be desirable for Mr Abraham to be represented at the re-hearing.

Solicitors:

Craig Ruane,  [email protected]

Raymond Donnelly & Co,  [email protected]