Akau v Police

[2012] NZHC 635

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000006 [2012] NZHC 635

BETWEEN  SEMISI AKAU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 February and 15 March 2012

Appearances: M Tu'ilotolava for the Appellant

K Wendt for the Respondent

Judgment:      3 April 2012

JUDGMENT OF GILBERT J [Appeal against conviction and sentence]

This judgment was delivered by me on 3 April 2012 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………….

Solicitors:           Ferguson Tu’ilotolava, Auckland:  [email protected]

Crown Solicitor, Auckland:  [email protected]

AKAU V NZ POLICE HC AK CRI 2011-404-000006 [3 April 2012]

[1]      Mr Akau, the appellant, was convicted on 15 July 2009 on a charge of male assaults female under s 194(b) of the Crimes Act 1961.  He was sentenced to 100 hours’ community work and nine months’ supervision.

[2]      He appeals against his conviction and sentence on the grounds that:

(a)      He wanted to give evidence at his trial and to call witnesses but the lawyer who represented him at the trial did not give him that opportunity; and

(b)      The sentence was clearly excessive in all the circumstances.

Proceedings in the District Court

[3]      The appellant faced two charges, one of threatening to kill the complainant, and the other of assaulting the complainant.

[4]      The case was tried summarily in the Auckland District Court before Judge E P Paul on 15 July 2009.  The Police called three witnesses: the complainant, a Police Constable who attended the scene after a 111 call and another Police Constable who conducted a video interview with the appellant.

[5]      The complainant’s evidence was that at the time of the alleged offending the complainant was living with the appellant.   She had three boys from a previous marriage and she and the appellant had a five year old daughter together.  They had been living together for some seven years but their relationship had deteriorated.

[6]      On 8 March 2009, the appellant and the complainant had a disagreement at home  over the complainant’s  children  following which  the appellant  left  in  the complainant’s car. That was sometime between 6 and 7 pm.

[7]      Two  to  three  hours  later,  the  appellant  returned  to  the  house.     The complainant said that he had been drinking.  The complainant instructed her children not to open the front door.  She went out through the back door and started walking down the driveway towards the car which was parked on the street. The complainant

said that the appellant followed her and tried to stop her from getting to her car.  She said that the appellant punched her on her right upper cheek with his right fist and said, in Tongan, words to the effect that he was going to beat her “insides out” before he drove off in the car.

[8]      At that stage, the complainant’s children came running out of the house, shouting and crying.   The neighbours also came over to see what was happening. One of them ran back to get an ice pack which was used to control the swelling on the complainant’s face. The complainant then rang 111.

[9]      A  Police  Constable  arrived  at  the  complainant’s  house  approximately

15 minutes later in response to the 111 call.  He gave evidence that the complainant was holding an icepack to the side of her face when he arrived.  He said that he could see redness on the side of her face and noted that it was slightly swollen.  He took photographs of the complainant’s face and these were produced.

[10]     The Police then played a DVD recording of an interview they conducted with the appellant.  In the interview, the appellant accepted the background facts and said that  as  he  was  trying  to  leave  in  the  car,  he  pushed  the  complainant.    He demonstrated  the  push  with  his  arms  outstretched  at  about  chest  height.    He explained he “push[ed] her because she was trying to get to the car” and “if she get the car, then so I have to walk and I, and she never allows me to get inside”.  He said “I can’t afford to walk around all night”.

[11]     The appellant was represented by Mr Edgar, a senior and experienced lawyer and Ms Hill, who was then a junior lawyer being supervised by Mr Edgar.  Mr Edgar and Ms Hill both appeared at the trial, which was conducted by Ms Hill under Mr Edgar’s supervision.

[12]     Ms Hill cross-examined the complainant on the basis that the complainant had tried to take the car keys off the appellant.  The complainant denied this.  She said that she had her own key and the appellant had been using the spare key. Ms Hill also challenged the complainant on her evidence about the punch.  Ms Hill

suggested that that the appellant merely pushed the complainant and that there was no punch. The complainant was adamant that she was punched, not just pushed.

The decision under appeal

[13]     The District Court Judge dismissed the charge of threatening to kill, finding that there was no case to answer in respect of that charge.   However, the Judge found, on the basis of the appellant’s own statement during the video interview, that he had assaulted the complainant.   The Judge therefore found the assault charge proved.

[14]     The Judge went on to determine whether the assault involved a mere push, as contended by the appellant during the Police interview, or a punch to the complainant’s cheek, as she had stated in her evidence.   The Judge accepted the complainant’s evidence about this, which he found was corroborated by the evidence of the Police Constable who attended shortly after the incident and observed the complainant holding an icepack to her face and also the redness and swelling on her cheek.

[15]     In  rejecting  the  explanation  given  by the  appellant,  the  Judge  noted  the inconsistency between the appellant’s statement to the Police and the case advanced through the cross-examination of his counsel that the complainant was trying to get his car keys off him.  There had been no mention of this in the Police interview.  The Judge also took into account that the appellant was affected by alcohol at the time and his recollection of events must have been affected as a result.  Taking those two matters into account, the Judge rejected his evidence as inherently unreliable.

[16]     On that basis, the Judge found that the appellant did assault the complainant and that the assault was a punch to her right upper cheek.

[17]     The Judge sentenced the appellant to nine months’ supervision with a special condition that he attend a Stopping Violence programme.    The Judge also ordered the appellant to undertake 100 hours’ community work.  In fixing this sentence, the

Judge took into account that the appellant had two previous convictions for violence, one in 1994 and the other in 2000.

Conviction appeal

[18]     Although he was convicted and sentenced on 15 July 2009, the appellant’s notice of appeal against conviction and sentence was not filed until January 2011. Despite the inordinate delay, the appellant was given leave to bring the appeal. Various adjournments of the appeal hearing were granted to enable him to prepare and present his appeal.

[19]     In  his  notice  of  appeal  dated  17  September  2010,  but  not  filed  until

12 January 2011, the appellant stated that the ground of his conviction appeal was:

I did not give any evidence at my trial although I had wanted to put my side across, plus call witnesses.  The lawyer who represented me did not give me that opportunity.

[20]     In her initial submissions filed on the appellant’s behalf in support of his appeal, Ms Tu’ilotolava submitted that Mr Edgar did not allow the appellant to give evidence even though he wanted to do so.  She submitted that this error denied the appellant the opportunity of explaining a number of important matters to the Judge. First,  he  would  have  denied  the  punching  and  that  the  complainant’s  face  was swollen or red.  He would have admitted that he had consumed a few cans of beer but he would have said that he was not drunk or so affected by alcohol that his memory of events on the evening was impaired.  Finally, he would have:

...   stressed   that   any   touching   or   pushing   of   the   complainant   was unintentional as neither wanted the other to reach the parked car ahead of the other.

[21]     After the submissions were filed, Mr Edgar provided Ms Tu’ilotolava with a written  instruction  dated  15  July  2009  signed  by  the  appellant  confirming  his election not to call evidence.  It was addressed to Mr Edgar and reads:

The Police now propose to produce my video interview at Court and play it. It contains my version of events and there is nothing more I can add so I elect not to give evidence.

[22]     In  the  light  of  this  signed  election  not  to  give  evidence,  the  appellant completed an affidavit dated 17 November 2011 in which he sought to shift ground:

I have seen this statement [the election] and although the copy was very difficult to read, I want to say that I was not happy with the way my case was argued and that is the reason why I wanted to appeal the decision.

[23]     Mr Akau stated in this affidavit that he had prepared a summary of facts but could not remember whether he gave his lawyer a copy of  it.   The appellant’s summary of facts confirms what he said in his Police interview that he did not punch the complainant but stated “I pushed her back”.  He claimed in the affidavit that the push was accidental although he did not say this in his summary of facts.

[24]     The appellant also stated in his affidavit that he did not instruct his lawyer that the complainant had been trying to take the keys off him.   He said there was no need for her to do that as she also had a set of keys.

[25]     The appellant’s complaints at the hearing of the appeal were focused on these

two criticisms.  I will deal with each in turn.

Accidental push?

[26]     Ms Tu’ilotolava submitted that the transcript of the Police interview shows that  the  appellant  was  conceding  only  an  accidental  push.     In  making  this submission, Ms Tu’ilotolava  was referring to a 13 page transcript of the interview, transcribed by a typist in Mt Wellington.   This transcript contains the following questions and answers:

Constable:      How were you feeling when you pushed her Mr Akau:      It’s not my attention of pushing her Constable:         Mm.

Ms Tu’ilotolava submitted that the word “attention” must be an error in the transcription and should be read as “intention”.  I accept that.

[27]     Ms Hill was asked about this transcript.  She said that it did not look familiar to her and appeared to be in a different format to the transcript she had seen.

[28]     A different transcript of the same interview was produced by Ms Tu’ilotolava at the hearing before me.  This is the version Ms Hill recalled seeing.  It is only nine pages long and has some material differences.   The passage I have referred to is recorded in this transcript as follows:

Constable:      How were you feeling when you pushed her? Mr Akau:     No, the intention of the, might be pushing her. Constable:       Mm.

Mr Akau:        Is not to hurt her.

This passage does not suggest that the push was accidental.  Mr Akau is saying no more than that he did not intend to hurt the complainant by doing so.

[29]     Neither transcript was produced in evidence in the District Court.  The only exhibits were the photographs (Exhibit 1) and the DVD interview (Exhibit 2).  I was not shown the DVD interview and I am not able to determine which transcript is accurate, or indeed, whether either is accurate.  The Judge saw the DVD interview. That was the evidence, not the transcript.

[30]     Mr Edgar and Ms Hill both filed affidavits and were cross-examined on them. Mr Edgar recalls that the complainant had difficulty accepting that a push could be sufficient to found an assault charge.   The appellant was apparently under the impression that more serious violence was required.  Mr Edgar clearly recalled that the appellant’s concerns at the time about the outcome of the hearing related to the level of violence required to justify a conviction for assault.  Mr Edgar said that the appellant never suggested that the push was accidental.

[31]     It appears from both versions of the transcript that the appellant admitted on several occasions during the course of his interview that he had deliberately pushed the complainant.  He said:

Mr Akau:        ... she’s heading towards the car, and I push her, then I ran to

the car and take off.

...

Constable:      How did you push her?

MrAkau:         Ah   just   push   her   (demonstrates   pushing   open   hands forwards) because I know that she is heading towards the car.

...

MrAkau:         Yeah, so, we were heading in the same direction and I push her like that (demonstrates pushing arms from right to left).

...

Mr Akau:        ... I pushed her because she was trying to get the car.[1]

[1] I note that there are some minor and immaterial differences in the two transcripts but the meaning in both is clear and consistent.

[32]     It seems clear from the transcript that the appellant denied punching the complainant but did admit to deliberately pushing her.  The Judge accepted that this was the case, having seen the video and the appellant’s own demonstration of the push with his arms outstretched.   The appellant said himself that he pushed her because she was trying to get to the car.   Ms Tu’ilotolava acknowledged in her original submissions that “the appellant had admitted to the Police interviewer that he had pushed the complainant away.   The appellant had therefore admitted to an

assault”.[2]

[2] Paragraph 13 of undated memorandum filed by Ms Tu’ilotolava for the hearing then scheduled for

7 November 2011.

[33]     The appellant may not have regarded this push as an assault.  He apparently considered that something more violent, like a punch, was required for an assault. The appellant is wrong about that.

[34]     The evidence that the appellant intentionally assaulted the complainant is overwhelming.  Having seen the appellant give evidence, I very much doubt whether his evidence would have been preferred to that of the complainant.   The District Court Judge was clearly justified in concluding that there was an assault and that this

involved a punch to the complainant’s right cheek.  The suggestion that there was

nothing more than a purely accidental push lacks credibility.  I can see no error on the part of trial counsel and no miscarriage of justice.

Instructions regarding the keys

[35]     Mr Edgar was not able to assist on the issue about the keys.   He does not recall receiving any instructions about that and assumes that such instructions must have been provided to Ms Hill.

[36]     Ms Hill explained in her affidavit that she watched the DVD of the Police interview and took notes.  She also prepared cross-examination questions in advance. She said that she prepared the questions about the keys based on instructions given by the appellant that the complainant had attempted to take the keys from him and that is why he had pushed her.   Ms Hill stated that these instructions provided the foundation for this part of her pre-prepared cross-examination.

[37]     Ms Hill stated that she did not receive the summary of facts that the appellant had prepared.  She believed that the instructions from the appellant were taken in the course of a telephone conversation with him.   Ms Hill was emphatic under cross- examination that she would not pursue a line of questioning without appropriate instructions to justify it.

[38]     The appellant was also cross-examined on his affidavit.   He acknowledged that he made no complaint at the time about the questioning regarding the keys.  He said he was not surprised to hear those questions at the time.  He confirmed that he was not happy with the Judge’s interpretation of an assault.  He also confirmed that he did not tell Mr Edgar or Ms Hill that he wanted to give evidence.

[39]     Ms Hill prepared her cross-examination questions in advance of the hearing. It  is  extremely unlikely that  she would have  invented  the story about  the keys herself, without any instructions from the appellant.  Ms Hill was well aware that she could not put any proposition to the complainant in cross-examination that was not supported by reasonable instructions from the appellant or other credible information in her possession.  It is clear that Ms Hill prepared carefully for the hearing, typing

up her proposed cross-examination questions in advance.  She was being supervised by Mr Edgar, who is a senior and experienced practitioner.

[40]     The appellant’s complaint about the issue regarding the keys seems to have surfaced quite recently.  It was not remarked on by the appellant at the time.  He was apparently not surprised to hear the questions.   He made no complaint about this aspect of his case in his notice of appeal which was based solely on his allegation that his counsel did not give him the opportunity to give evidence.

[41]     His complaint is also inconsistent with instructions he apparently gave to Ms Tu’ilotolava last year.  In a memorandum dated 5 July 2011, filed in support of an application for an adjournment of the appeal hearing, Ms Tu’ilotolava stated:

My standing instructions are that the appellant had only pushed the complainant in his efforts to safeguard a set of keys in his possession for the motor car which he subsequently drove off in leaving the complainant after an argument.  In trying to grab the keys off the appellant, the complainant had assaulted the appellant...

[42]      I reject the appellant’s evidence that he gave no instructions to Ms Hill about the keys.  I accept Ms Hill’s evidence that her line of questioning regarding the keys was based on instructions she received from the appellant.

Conclusion

[43]     Contrary to the ground relied on in the notice of appeal, the appellant was given the opportunity to give evidence but he elected in writing not to do so.  I am not satisfied that any other error on the part of trial counsel has been established.  In any event, I do not consider that the outcome would have been any different even if the  appellant  had  given  evidence  claiming  that  the  alleged  push  was  purely accidental and the key issue had not been raised.  The District Court Judge accepted the complainant’s evidence about being punched.  This evidence was corroborated by the Police Constable who saw the injury shortly after the incident.   I do not consider that there has been any miscarriage of justice.

[44]     For these reasons, the appeal against conviction must be dismissed.

Sentence appeal

[45]     The sentence appeal can be shortly disposed of.  Ms Tu’ilotolava realistically acknowledged that the sentence was not clearly excessive in the circumstances if the assault involved a punch, as was found by the District Court Judge.  As I have said, I can see no basis to disturb the Judge’s finding on this point.    There was ample evidence to support it, including the corroborative evidence given by the Police Constable who saw the facial redness and bruising soon after the incident occurred. Having  regard  to  the  appellant’s  previous  convictions  for  offences  involving violence, the sentence cannot be challenged as being clearly excessive.

[46]     For these reasons, the sentence appeal must also be dismissed.

Result

[47]     The appeal against conviction is dismissed.  The appeal against sentence is also dismissed.

M A Gilbert J