Alefaio v Police
[2021] NZHC 846
•21 April 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-42
[2021] NZHC 846
BETWEEN ALANI TAUI ALEFAIO
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 April 2021 Counsel:
G E Minchin for appellant H T Reid for respondent
Judgment:
21 April 2021
JUDGMENT OF TOOGOOD J
[Conviction appeal]
This judgment was delivered by me on 21 April 2021 at 9.00am
Registrar/Deputy Registrar Date:
Solicitors:
Thomas & Co, Auckland Crown Solicitor, Auckland
ALEFAIO v NEW ZEALAND POLICE [2021] NZHC 846 [21 April 2021]
[1] Alani Taui Alefaio was found guilty of one charge of assault with intent to injure following a judge-alone trial before Judge Jelas in the District Court at Waitakere on 3 September 2020.1
[2] Mr Alefaio appeals his conviction on the ground he did not get a fair trial due to the Police’s failure to disclose the transcript of the 111 call made by a neighbour, Ms Moore, who was the principal prosecution witness. It is said on his behalf that disclosure of that transcript prior to the trial would have assisted defence counsel to cross-examine Ms Moore on the key issue of her ability to see what she said she had seen taking place.
Background
[3] On 31 January 2020, Police went to the home of Mr Alefaio, his partner Ms S and their children, after several neighbours called the Police and reported screaming coming from the house. When the Police officers arrived, they heard screaming and yelling inside the property.
[4] The Police arrested Mr Alefaio and charged him with assaulting Ms S. Ms S did not give evidence at the trial. There was no evidence that she had suffered any injury. The prosecution case rested on Ms Moore’s evidence of what she saw and heard, supported by an arguably incriminating injury to Mr Alefaio’s hand that might have been caused in an assault of the kind Ms Moore described.
The case in the District Court
[5] In her evidence,2 Ms Moore said she saw and heard Mr Alefaio and Ms S arguing and that Mr Alefaio assaulted Ms S.
[6] It was put to Ms Moore in cross-examination that it was not possible for her to see the deck area, where the alleged assault happened, as her view from the window was obscured by foliage. She said she could see the deck through a gap in the foliage, assisted by her window being elevated relative to the deck. Despite challenges to the
1 Police v Alefaio [2020] NZDC 7590.
2 Discussed in more detail, below at [25].
reliability of her evidence, Ms Moore was adamant she had a clear view down onto the deck.
[7] The evidence of the attending Police officer was read to the court by consent. He said that, as he approached the house on foot, he could hear screaming and yelling from inside the property. The constable recorded in his notebook that Mr Alefaio had a laceration on his hand, photographs of which were produced in evidence.
[8] Mr Alefaio gave evidence. He denied the assault. He said that Ms S and he argued after he declined to drive her to the airport, so she could meet a family member, because he was tired. He said Ms S became angry and raised her voice when he refused to take her; she started calling him names. Mr Alefaio said he got angry, walked away, and took out his anger on the toilet door.
[9] Mr Alefaio said Ms S told him she would drive herself to the airport with their three children (aged four, three and one). He said he was concerned about her driving while she was in such an aggressive mood and he followed her out onto the deck area where they continued to scream at each other. Ms S was holding their youngest child. Mr Alefaio said she calmed down eventually, they both went inside, and she handed him the child. Mr Alefaio said Ms S went to her room and was there when the Police arrived a short time later.
The District Court’s decision
[10] Judge Jelas recorded in her decision that the prosecution was required to satisfy her beyond reasonable doubt that Mr Alefaio had assaulted Ms S as alleged by Ms Moore. She also recorded correctly how she should treat the evidence of a defendant who gave evidence, including that, if she found Mr Alefaio’s evidence did not answer the charge nor raise a doubt about the prosecution case, she should not automatically conclude that the charge had been proved. The Judge said that, in those circumstances, she must consider the evidence called by the Police to determine whether on that evidence she was satisfied (to the required standard) that the assault alleged took place. No criticism is made of the Judge’s statements about the legal position.
[11] The Judge said there were two aspects of Mr Alefaio’s evidence that she considered relevant to determining his credibility and reliability. The first was his description of Ms S having calmed down and gone into her room. That evidence was in direct conflict with the unchallenged evidence of the attending constable. Judge Jelas held that, in the circumstances of the case, the change in Mr Alefaio’s position about the constable’s account, by disputing it in his own evidence, was an attempt to better his position that was not credible.
[12] The second factor in the Judge’s adverse finding on Mr Alefaio’s credibility was his evidence about his hand injury. Mr Alefaio acknowledged he damaged the toilet door but denied causing the damage by punching it. Under cross-examination he said that he used his knee and that his hand injury was the result of an old wound opening-up.
[13] No other direct evidence explaining how Mr Alefaio damaged the door was offered, but the Police officer gave evidence that he thought the damage to the door was consistent with a punch. The possibility of Mr Alefaio’s knee causing the damage was not put to him. No medical evidence about the likely cause of Mr Alefaio’s injuries was offered and the Judge held they appeared to be recent. She noted that no evidence had been given about what might have caused the “old” wounds to open up. She concluded that, if they were existing wounds, they would have only re-opened as a result of force applied to them; either by Mr Alefaio striking the door with his fist, which he denied, or by the use of force when punching Ms S in the way Ms Moore described. The Judge found the hand injury and the lack of evidence from Mr Alefaio as to its cause were also relevant to her assessment of his credibility. Although she considered an explanation about the cause of the hand injury was called for in the circumstances of the case, there was none.
[14] Having regard to those factors, the Judge reached the view that Mr Alefaio’s evidence should be put to one side on the critical parts she did not accept as credible. She held it did not answer the Police case, nor did it raise doubt. The Judge’s findings on Mr Alefaio’s credibility were available to her on the evidence and no attempt is made to overturn them. That meant that, in the Judge’s view, the case turned on the evidence of Ms Moore.
[15] The Judge held that the primary issue was whether Ms Moore’s evidence that Mr Alefaio assaulted Ms S was credible and reliable. As she put it succinctly at the start of her decision, the question for the Court was whether Ms Moore had a sufficiently clear view of the deck area of Mr Alefaio’s home on 31 January 2020 to be able to reliably describe what she saw.
[16] Judge Jelas referred to photographs taken by the Police and determined that Ms Moore had a sufficient view of the deck. She accepted Ms Moore’s evidence as credible and reliable and found Mr Alefaio guilty of assaulting with intent to injure.3
[17] Whether the Judge was right in concluding that Ms Moore had a sufficient view of the deck is the central question raised in the appeal.
Approach to appeals against conviction
[18] Section 229 of the Criminal Procedure Act 2011 provides that a person has a general right of appeal against conviction.
[19] Under s 232(2), the Court must allow the appeal if it is satisfied that, in the case of a judge-alone trial, the judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any other reason. A “miscarriage of justice” is defined in s 232(4) as an 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 resulted in an unfair trial.
[20] An appeal against conviction proceeds by way of rehearing.4 If the appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But the appellant must show that an error has been made; the appellate court is not to consider the evidence afresh. The appeal court must remember the advantages a trial judge has, especially where the challenge is to credibility findings based on contested oral evidence.5
3 Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
5 At [38].
Submissions for the appellant
[21] Acknowledging that Ms Moore’s account of the assault was the principal evidence on which Judge Jelas founded her decision, Mr Minchin focused his argument on two principal and related points.
[22] First, he submitted that the Judge erred in accepting that Ms Moore could see, from the vantage point she described, the events which she said occurred on the deck of Mr Alefaio’s house. He says that it is apparent from a careful examination of several photographs showing the neighbouring properties and depicting views of Mr Alefaio’s house as seen from Ms Moore’s property that Ms Moore could not possibly have seen what she claims to have seen. Although the views from Ms Moore’s house through the windows on the side facing Mr Alefaio’s house would be elevated, the fence and foliage along the boundary of the properties and the line of sight would not have enabled Ms Moore to see what was occurring, particularly anything that she said had happened while Ms S was lying on the deck.
[23] Second, and in support of that proposition, he refers to a passage in the transcript of the 111 call, obtained by counsel after the trial and not previously disclosed, in which Ms Moore said, in answer to a question about whether Ms S looked injured and whether she needed an ambulance:
I can’t see her exactly. I can just see through the trees like him whacking her.
[24] Mr Minchin says that if the evidence of Ms Moore’s statement in the 111 call had been available to defence counsel at trial, it would have been possible to challenge Ms Moore’s evidence-in-chief that, despite the fence and the foliage between the two properties, she could see down onto the deck.
The evidence
[25] In her evidence-in-chief, Ms Moore said she heard screaming from the property next door and that it became so loud that she moved away from the noise. She said that when the screaming got louder, she stood up and looked out the windows and saw a male punching a female. She identified Ms S from the photograph she was shown and said that she could see Ms S being punched with a closed fist, quite hard,
to her face and upper body. She said that the male then grabbed the female by her hair with his left hand, pulled her to the ground and then proceeded to kick her. Ms Moore said it was quite easy to see that from her window because of the open area looking down onto the deck. She saw the male kicking the female three or four times around her back while she was on the ground. She said that, although there were trees around, there was nothing obstructing the view from where she was standing.
[26] In those circumstances, it became important to know Ms Moore’s vantage point at the time she made those observations. She estimated that she was more than five, but less than eight, metres away from what she saw occurring on the deck.
[27] To assist with Ms Moore’s explanation of what she had seen, the prosecution produced at the trial photographs taken by a Police officer who attended the scene. They were said to have shown the view from where Ms Moore was standing at the time of her observations. For the purposes of cross-examination, however, defence counsel produced photographs, one of which was sourced from Google Maps. It shows a street view of both houses, the driveways alongside the properties and the boundary fence. That photograph has the advantage over the prosecution exhibit of showing three windows on the side of Ms Moore’s house facing Mr Alefaio’s property. The window nearest the street was marked “Window #1” and was identified by Ms Moore as being the bedroom window from which she made her observations. The second defence photograph was taken from the deck on Mr Alefaio’s property, looking up to Ms Moore’s property with partially obscured windows seen in the top right-hand corner. It is unclear from that photograph how much of the deck can be seen; there may have been more deck area (not depicted) off to the right of the photograph.
[28] It appears that there was some confusion between the Judge, the witness and counsel cross-examining Ms Moore about which of the windows was depicted in the second defence photograph. Mr Minchin’s point on appeal was that the window shown in the defence photograph, which the Judge accepted was the window identified by Ms Moore in cross-examination as being the one from which she viewed the scene below, could not have provided her with a view of what was taking place on the deck.
[29] In explaining that she accepted Ms Moore’s account and was able to rely upon it to find beyond reasonable doubt that Mr Alefaio had assaulted Ms S as alleged, the Judge referred to the assistance she had received from the defence photograph. Nevertheless, the Judge acknowledged that Ms Moore did not always have an unobstructed view but concluded that Ms Moore had a sufficient view to determine what was taking place on the deck.
[30] Mr Minchin argues that the error of Ms Moore and the Judge in identifying the position of Ms Moore at the time she says she observed the assault casts real doubt on the evidence about whether she could see what was happening on the deck. In turn, that undermines the reliability of her evidence and renders the conviction unsafe.
[31]Mr Minchin seeks orders quashing the conviction and ordering a new trial.
Failure to disclose the content of the 111 call
[32] Mr Minchin says the Police are required to disclose to defence counsel all relevant material in their possession and that, as a matter of routine disclosure, the Police should disclose, at least, the existence of a recording of a relevant 111 call. He submits that Ms Moore’s 111 call was relevant as it was contemporaneous evidence of the alleged assault and it was not identical to Ms Moore’s evidential statement.
[33] Mr Minchin argues that in the 111 call Ms Moore mostly refers to hearing Ms S scream; the only time she reports seeing violence is in response to a leading question by the 111 dispatcher, as follows:
Dispatcher: … so is he physically punching her?
Ms Moore: “Yeah.
[34] He submits this is materially different from her evidence where she said she saw Mr Alefaio punch Ms S multiple times and drag her down by her hair. He also submits that Ms Moore’s statement to the operator that “I can’t see her exactly I can just see through the trees...” contradicts Ms Moore’s evidence at trial that she had a clear view of the events, unimpeded by trees and the fence.
[35] Mr Minchin argues that it was a prosecutorial failure to not properly evaluate the evidence in their possession and disclose the content of the call to defence counsel and that the trial was unfair. He refers to T v R,6 where it was held Police should have done more to properly investigate allegations. He submits that the conviction should be set aside and a new trial ordered.
The 111 call
[36] To assist with the hearing of the appeal, without objection from Mr Minchin, counsel for the Police provided a recording and a transcript of the 111 call. I have listened to the recording and verified the accuracy of the transcript, except in one respect, but the error is not relevant to the matters at issue.
[37] The conversation between Ms Moore and the dispatcher lasts just over five minutes in total. It is clear that Ms Moore is describing to the dispatcher events that she is both hearing and seeing at the time of the call. She first reports domestic violence and says that the female is “actually screaming her head off … really screaming … she’s really screaming, she’s really, really screaming”.
[38] After Ms Moore gives a brief description of the male involved in the incident, the following exchange is recorded:
Ms Moore: … They’re actually known for violence over there. Dispatcher: Okay.
Ms Moore: But this is the worst we’ve seen it over here.
Dispatcher:Yeah, what’s – what’s – does the female look injured, does she need an ambulance?
Ms Moore: I can’t see her exactly. I can just see through the tree
like him whacking her.
Dispatcher: Okay. So he’s physically punching her? Ms Moore: Yep.
6 T v R HC Christchurch CRI-2007-009-6270, 10 October 2008.
[39] Mr Minchin argues that the transcript shows that Ms Moore’s account was based on what she could hear rather than what she could see and that the first exchange about whether she could see anything was the result of an enquiry about whether the female looked injured. Ms Moore responded to that question with a statement that she could not see her “exactly” and that what she could see was “like” Mr Alefaio whacking the female. The confirmation that he was punching her, therefore, came from a leading question from the dispatcher. Mr Minchin says that if the transcript and the recording had been made available to him in discovery as it should have been, he would have been able to cross-examine Ms Moore on her ability to see and to challenge her account at trial, in which she gave detailed evidence of the alleged assault. Ms Moore said that it was quite easy to see from her window because of the open area which looked down onto the deck. She said that, while this was happening, Ms S was screaming and saying she was not scared of him any more, and that he kicked her “easily three or four times” around her back while she was on the ground. She said there were trees but there was nothing obstructing her view from where she was standing.
[40] It is apparent from the transcript that Mr Alefaio and Ms S went inside their house while Ms Moore was speaking to the dispatcher; Ms Moore said she could hear them yelling and screaming inside. The Police arrived during the call, as Ms Moore reported.
[41] Mr Minchin argued that the Police should routinely disclose the existence of 111 recordings as part of their disclosure obligations in criminal matters. Ms Moore referred to the 111 call in her statement to the Police; Mr Minchin frankly acknowledges that he was aware of the recording and that he could have asked for a transcript to be provided.
[42] The Police practice, however, is not to transcribe all 111 calls related to a prosecution unless requested to do so or unless it is deemed to be relevant to a matter in issue in the case, in which event it may be provided as part of the prosecution evidence. But the Police do not routinely examine the contents of a 111 call and check it against witness statements or other evidence.
[43] In Polyblank v R, the Court of Appeal noted that the contents of 111 calls are not routinely disclosed because it is not Police practice to download the recordings.7 The Court made no observation about whether that was a reasonable practice. It found that the pre-trial disclosure of the contents of the 111 call in that case could not have made any material difference to the ability of defence counsel to cross-examine or to the outcome of the case.
Discussion
[44] I do not think this is a case in which I should make a finding about whether the Police should routinely disclose transcripts of all 111 calls that may be relevant to a prosecution. It is well understood by criminal defence lawyers that 111 calls are recorded and that the recordings and transcripts will be made available to a defendant on request. Reaching a considered view on whether there is, or ought to be, a general obligation of disclosure of the content of calls would require evidence and fuller submissions. But, in any event, I am not persuaded that Mr Alefaio’s defence would have been advanced by cross-examination on the transcript.
[45] It is clear that Ms Moore’s exchanges with the dispatcher were contemporaneous with her observations. The recording of the call has the hallmarks of an authentic account in which she was observing an assault and demonstrating that she was distressed by it.
[46] Mr Minchin argued that the account given to the dispatcher that simply revealed that Mr Alefaio was punching Ms S was not consistent with Ms Moore’s more detailed account of the blows to the face and upper body and then the description of Mr Alefaio dragging Ms S to the ground and kicking her. I do not see any merit in that point. Ms Moore’s more detailed Police statement and her evidence were based on inquiries in which she was asked to describe precisely what she saw. In questioning her at the time of the 111 call, the dispatcher would have been interested only in getting sufficient details to know in general terms what was taking place so that she could relay the information to the attending Police officers.
7 Polyblank v R [2013] NZCA 621.
[47] If the Judge had heard the 111 recording as part of the evidence, she would have been entitled to conclude that Ms Moore was genuinely upset by what she saw and that she was not fabricating her account. The evidence would not have assisted Mr Alefaio.
[48] I am not persuaded either that there was a material error by the Judge and Ms Moore in identifying which window of Ms Moore’s house could be seen in the defence photograph taken from the deck area of Mr Alefaio’s house. The photograph was not authenticated in that it was not produced by a witness who could explain the circumstances in which it was taken, including when. Two witnesses gave evidence that the shrubbery in the defence photograph appears thicker than it was at the time of the assault. Moreover, it appears that only part of the deck area is shown. If the photograph had been properly proved, questions could have been asked of the photographer about his or her position on the deck and whether moving to the photographer’s right would have provided a clearer view from the deck to the window at which Ms Moore was standing and vice versa.
[49] As Ms Reid submits on behalf of the respondent, the proper interpretation of the Supreme Court’s judgment in Sena v Police is that appeals under s 232(2)(b) of the Criminal Procedure Act 2011 proceed by way of rehearing.8 The Supreme Court’s reference to Herewini v Ministry of Transport does not mean that, for the purposes of an appeal under s 232(2)(b), any factual error in the trial judge’s assessment of the evidence necessarily means that the conviction must be quashed.9
[50] Even accepting there was an irregularity in Ms Moore’s evidence concerning the window from which she observed the assault, the principal issue was not whether Ms Moore correctly identified the window at which she was standing but whether she gave a credible account of seeing the assault. The 111 call tends to confirm that she did.
8 Sena v Police, above n 4.
9 Herewini v Ministry of Transport [1992] 3 NZLR 482 (HC).
Conclusions and result
[51] Having rejected Mr Alefaio’s denial that there was any assault, Judge Jelas properly directed herself that she was required to be satisfied beyond reasonable doubt by Ms Moore’s evidence that Mr Alefaio was guilty of assaulting Ms S with intent to injure her. On the evidence, she was entitled to conclude that the charge was proved and I am not persuaded that cross-examination on the transcript of the 111 call might have altered that finding. There was no miscarriage of justice.
[52]I dismiss the appeal.
Toogood J
0