Aranui v The the Queen
[2022] NZCA 25
•22 February 2022 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA394/2021 [2022] NZCA 25 |
| BETWEEN | RAYMOND ARANUI |
| AND | THE QUEEN |
| Hearing: | 9 November 2021 |
Court: | Miller, Goddard and Katz JJ |
Counsel: | DHP Schellenberg for Appellant |
Judgment: | 22 February 2022 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Raymond Aranui was found guilty by a jury of one charge of wounding with intent to injure.[1] He was sentenced by Judge B A Gibson to six months’ community detention and one year of intensive supervision.[2]
[1]Crimes Act 1961, s 188(2). Maximum penalty of seven years’ imprisonment.
[2]R v Aranui [2021] NZDC 16235.
Mr Aranui appeals against his conviction on the basis that:
(a)the trial Judge erred by ruling that hearsay statements of the complainant were admissible;
(b)the trial Judge’s summing-up was unbalanced, because it failed to adequately summarise the defence case; and
(c)the jury’s verdict was unreasonable and went against the weight of the evidence.
The Court must allow the appeal if it is satisfied that a miscarriage of justice has occurred for any reason.[3] A miscarriage of justice includes any error, irregularity, or occurrence in or in relation to or affecting the trial that:[4]
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
The trial
[3]Criminal Procedure Act 2011, s 232(2)(c).
[4]Section 232(4).
Mr Aranui had been in a relationship with the complainant for about three months at the time of the offending.
The prosecution case at trial
The prosecution case was that at around 3.15 am on 27 January 2020, Mr Aranui and the complainant were together on a street in Grey Lynn, Auckland. They were having a loud verbal altercation. Mr Aranui yelled at the complainant to “fucking shut up” and then grabbed her by the back of the neck and forced her to walk along the street.
After a short time, the complainant struggled free of Mr Aranui’s grip and attempted to flee. Mr Aranui chased after her. When he caught up, he picked her up by the waist, lifted her up off the ground, and then tipped her whole body over, slamming her headfirst onto the ground with her full bodyweight on her shoulder and neck. While the complainant was on the ground, Mr Aranui struggled briefly with her. The complainant began kicking out at him in an attempt to defend herself. Mr Aranui managed to grab hold of the complainant’s ankles and dragged her by her feet along the concrete towards the footpath on the side of the street.
At some stage during this incident, Mr Aranui allegedly punched the complainant repeatedly to the face. A member of the public called 111 and police arrived at the scene shortly afterwards.
The complainant suffered a swollen black eye, swelling to the left front of her head, multiple abrasions and grazes to her back and knees, nasal bone fractures and loose teeth. She was later diagnosed with a minor traumatic brain injury.
The defence case at trial
The defence case at trial was that Mr Aranui did not cause the injuries to the complainant. Rather, she had been assaulted by her cousin’s ex-partner earlier in the evening, prior to meeting with Mr Aranui. The complainant was therefore already injured, as well as being highly intoxicated, when Mr Aranui met up with her.
Mr Aranui was locked out of his apartment. Given that the complainant was distressed, Mr Aranui escorted her to a nearby park to calm her down and assist her. Along the way, the complainant continued to fall down and hurt herself, due to her level of intoxication. Those falls caused the remainder of her injuries.
Did the Judge err by admitting hearsay statements of the complainant?
The hearsay statements
Constable Insia Abdullali was one of the police officers who found Mr Aranui and the complainant lying under a tree in a park. Due to the complainant’s injuries, she was taken to hospital. Constable Abdullali accompanied the complainant in the police vehicle.
During the journey to the hospital, the complainant made several statements to Constable Abdullali. The officer’s notebook records the following:
Taking [the complainant] to the hospital to check her injuries; found [the complainant] at Western Park under a tree lying down.
States that her friend/boyfriend gave her a hiding. She stated that she knew the male since last September and met him through someone called Gordon. She stated that when the male punched her she peed her pants and didn’t [hit] him back. She said she started drinking because of the pain in her head. She also stated that she was okay when he punched her on one side of the head but she became dizzy after the 2nd punch to the other side of the head. She stated that the male tried to punch her teeth out.
Doctors at Auckland hospital states that she’s out of it and requires a head scan due to the severity of [the] injuries.
The complainant could not subsequently be located to give evidence. The Crown therefore filed a pre-trial application to lead the statements she had allegedly made to Constable Abdullali as hearsay evidence.[5] Mr Aranui opposed the application.
The District Court decision
[5]Evidence Act 2006, s 18.
Judge Gibson found that the complainant’s statements, as recorded by Constable Abdullali, were admissible.[6] The Judge considered that the circumstances relating to the statements provided reasonable assurance that the statements were sufficiently reliable. This was because the statements were made shortly after the incident; the contents of the statement were coherent; the fact the complainant had “peed her pants” was corroborated by the Constable’s evidence that the complainant smelled of urine and was later found washing her underwear at the hospital; and the complainant did not deny that she had been drinking alcohol.[7]
[6]R v Aranui [2021] NZDC 2110 at [10]–[11].
[7]At [10].
The Judge noted that the complainant had recently suffered a head injury, so while she appeared intoxicated to other persons, that does not mean she was not coherent (as the Constable deposed).[8] Judge Gibson concluded that the jury would be able to determine the weight to be given to the complainant’s hearsay statements in the context of Mr Aranui’s evidence and the evidence of medical staff.[9]
Submissions on appeal
[8]At [10].
[9]At [11].
Mr Schellenberg, counsel for the appellant, submitted that the Judge should have found the hearsay statements to be unreliable, and therefore inadmissible, for the following reasons:
(a)The statements are simply Constable Abdullali’s account of what the complainant said. They were not read back to or signed by the complainant.
(b)Constable Abdullali had an incentive to record statements favourably towards the prosecution.
(c)Constable Abdullali would have been prioritising obtaining medical care for the complainant, rather than focusing on what was being said.
(d)The Judge erred by finding that the statement was corroborated by the Constable’s own evidence (regarding the complainant having “peed” herself).
(e)Constable Abdullali’s questioning of the complainant was contrary to the principles set out in the Chief Justice’s Practice Note – Police Question (s 30(6) of the Evidence Act 2006) (the “Practice Note”), and fell short of the standard described in the Police Investigative interviewing witness guide (the “Interviewing Guide”).[10]
(f)The complainant gave her statement in the early hours of the morning while she was injured and intoxicated. The medical staff described her as “out of it” and she scored 13 out of 15 on the Glasgow Coma Scale. The Judge should not, therefore, have accepted Constable Abdullali’s assertion that the complainant was coherent when she spoke to her.
Discussion
[10]Practice Note — Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297; and New Zealand Police “Investigative interviewing witness guide” (14 June 2012) (obtained under Official Information Act 1982). The Interviewing Guide appears to be an internal police document that was obtained by request under the Official Information Act 1982.
Constable Abdullali recorded the complainant’s statements in her notebook shortly after they were made. The officer would no doubt have been aware of the importance of accuracy, and that she may later be cross-examined on her notes in Court. She had no incentive to falsely implicate Mr Aranui, as opposed to any other possible offender, such as the complainant’s cousin’s ex-partner. Her role was simply to impartially investigate an alleged crime. There is nothing to suggest that she did not do so.
There is evidence that the complainant was intoxicated and may have suffered a head injury. On arrival at hospital she was assessed at 13 out of 15 on the Glasgow Coma Scale (with 15 being normal). This tends to suggest that while there may have been a degree of impairment, it was not at the severe end of the spectrum. Further, it cannot automatically be assumed that an intoxicated person will give a statement that is untruthful or unreliable. There may well be a greater risk of a person who is not intoxicated fabricating a story. Here, the officer gave evidence in a voir dire that, given the circumstances, the complainant answered her questions in a coherent manner. Further, the officer noted that the statements made by the complainant were elicited in response to open ended questions.
The officer was also entitled to give evidence, based on her personal observations, that corroborated one aspect of the complainant’s statement (namely, that she had “peed” herself). There was nothing improper or unfair about this.
The suggestion that the complainant should have been asked to sign the officer’s notes, despite being in distress, injured and in transit to hospital, ignores the practical realities of policing. The hearsay statement is not inherently unreliable simply because the complainant did not sign it. Rather, this is a further factor that goes to weight, which was a matter for the jury.
The Interviewing Guide contains non-prescriptive guidelines to assist police in the interviewing of witnesses. There was little or no scope, however, for the various formalities set out in that document to apply to a conversation that took place in a police car on the way to hospital between a police officer and an injured victim of an apparent crime. In any event, the Interviewing Guide provides for officers to take statements in their notebook in “exceptional” circumstances, such as when it is impractical to conduct a formal interview. That clearly applied in the circumstances.
As for the Practice Note, the purpose of that document is to protect the rights of suspects during police questioning. It has little or no relevance to the discussion that took place between the complainant and Constable Abdullali in the police car.
Constable Abdullali is a law enforcement professional who was investigating a possible crime. While she may have been concerned about the complainant’s injuries, we do not accept that this would have distracted her to the extent that she would have recorded statements in her notebook that the complainant did not make, and which falsely implicated Mr Aranui.
Ultimately it was for the jury to decide what weight to give the statement in the context of the overall evidence, including evidence about the complainant’s mental state at the time she spoke to Constable Abdullali. We are satisfied that the Judge did not err in finding that the circumstances relating to the statement provided reasonable assurance that the statement is reliable. It follows that it was properly admitted as hearsay evidence at trial.
Was the Judge’s summing up unbalanced and/or unfair?
Mr Aranui’s second ground of appeal is that there were several failings in the Judge’s summing-up, namely:
(a)The Judge failed to mention that the defence case was that the complainant was already injured when Mr Aranui met her that night, and that any subsequent injuries were caused by multiple falls, not just the one fall that the Judge noted.
(b)The Judge improperly expressed his own views that two of the Crown’s witnesses were honest and reliable. The Judge did not provide Mr Aranui’s evidence with such support.
(c)The Judge comprehensively outlined the medical documents referred to by the Crown, but only mentioned the medical evidence referred to by the defence in the context of discrediting it with respect to the contradictory Crown evidence.
Did the Judge fairly summarise the defence case?
The defence case at trial was that someone else, namely the complainant’s cousin’s ex-partner, had assaulted the complainant, causing some of her injuries, and that this occurred prior to her meeting with Mr Aranui. Further injuries were likely caused by the complainant falling over onto the pavement, due to her level of intoxication.
The key evidence in support of the “alternative assailant” scenario was a hearsay statement that the complainant made to an occupational therapist shortly before she was discharged from hospital. The complainant told the occupational therapist that her cousin’s ex-partner had assaulted her.
Some additional support for this scenario was provided by Mr Aranui’s evidence. Although he did not witness the purported earlier assault, he said that when he first saw the complainant that evening, he noticed that she had a “cut or a grazing … just under her eye”. He further stated that he did not notice any other marks or injuries on her. This is consistent with Mr Aranui’s contemporaneous police statement in which he said that he had not seen any bruises or injuries to the complainant’s face prior to her falling over that evening, but he did see “a scratch”.
The police photographs showed the complainant with much more extensive facial injuries than those described by Mr Aranui, including a black eye and significant facial grazing. The defence case was that most of the complainant’s injuries were caused by accidental falls onto the pavement.
In closing, defence counsel summarised the “alternative assailant” scenario as follows:
Mr Aranui didn’t wound [the complainant]. He had no intention to injure her. He found his partner disorientated, beaten up and bleeding. He’s concerned and he’s trying to help her. She’s hysterical … She’s intoxicated on drugs and alcohol. She’s unsteady on her feet. She’s falling over. This is how she’s hurt herself … Mr Aranui is trying to help her.
When summing up, the Judge did not expressly refer to Mr Aranui’s evidence that the complainant had a cut, graze or scratch under her eye when he first saw her. Ideally, the Judge should have referred to this aspect of the evidence. However, relatively little turns on this omission, given that this aspect of Mr Aranui’s evidence was referred to in both the prosecution and defence closings. Further, Mr Aranui’s evidence as to a very minor pre-existing injury (a scratch or graze) could not explain the bulk of the complainant’s injuries. The only alternative explanation for those was that the complainant had accidentally fallen onto the pavement one or more times. Mr Aranui referred to one such fall in his police interview, and several falls in his evidence in Court.
It is also of note that the practical impact of the Judge’s failure to refer to the “scratch” evidence was that defence counsel’s statement in closing that Mr Aranui had found the complainant “beaten up and bleeding”, was the last word to the jury on the topic. This was to Mr Aranui’s benefit as it significantly over-stated what Mr Aranui’s evidence actually was.
Further, and importantly, it would have been very clear to the jury that the defence case was that the complainant’s injuries were caused by a combination of an earlier assailant and an accidental fall, or falls, onto the pavement. In particular:
(a)When describing the elements of the offence, the Judge informed the jury that they must be sure that the relevant injury (a wounding) was inflicted by Mr Aranui:
… because if it was caused by someone else, then obviously he would not be responsible. You would have to be satisfied that he caused an injury that led to a flow of blood, either internally or externally.
(emphasis added)
(b)The Judge summarised Mr Aranui’s evidence that the complainant was upset, angry and intoxicated when he first saw her. Mr Aranui was trying to assist her, but she was punching and kicking at him and he was pulled over in the process. He denied inflicting any blows or slapping her.
(c)The Judge initially summarised the defence case as being:
[33] … simply that it did not happen; that the defendant came across the complainant, he was concerned at how she presented. She did not appear sober, she seemed to be on drugs … He denied punching her, denied slapping her. He said she stumbled, he tried to get her up. In the course of trying to get her up, he himself tripped over her, but he did not inflict any injuries on her. And that when the police turned up at the park, they were both lying there, he with his arm around her, and she was asleep.
[34] That is how the defence put it, and what the defendant said is consistent with what he said to Constable Middleton when he was asked about what had been going on that night. The defendant simply says to you: well, that’s what happened, so the Crown has not proved the case against him beyond reasonable doubt. He had an explanation for these things, and the injuries that she did have may well have occurred when he was trying to get her off the middle of the road and he dragged her to the pavement, and perhaps she did suffer lacerations and cuts as a result of that process, but it certainly was not done deliberately, he was getting her off the middle of the road for her own safety’s sake and they then, when he got her onto the pavement, they then got up and proceeded on their way and turned down into Crummer Street and then made their way to the park, and that was where they were found. That is the defendant’s case.
(d)The Judge later expanded on this, with reference to the defence closing, stating that:
[47] [Defence counsel] reminded you again of the content of exhibit 7; that is, the account given to the occupational therapist as to what happened to her, given [by] her later in the morning just before she was released. She refers to her cousin’s ex-partner as being the assailant, not to Mr Aranui, and he said there is no basis to assume that the defendant caused the injuries, and no evidence against him, but of course there is the evidence of Mr Geno and Mr Insley, and the account given to a constable, Constable Abdullali. What you make of those are matters for you.
[48] [Defence counsel] commented on Mr Insley’s evidence. He suggested to you that he was unreliable, and he suggested to you, if he [Mr Aranui] was the assailant, why would he run back to her when she called for help?
(emphasis added)
The Judge accordingly identified the fundamentals of the defence case. The proposition that the complainant’s injuries were caused by a prior assault, and the complainant subsequently falling onto the pavement and being dragged to safety by Mr Aranui, was squarely before the jury.
Did the Judge improperly express his views as to the honesty of Crown witnesses?
Mr Schellenberg submitted that the Judge improperly expressed views regarding the credibility of two Crown witnesses in the following passages of his summing-up:
[24] In this case, we have two witnesses who were in effect eyewitnesses to be called by the Crown. That is Mr Insley and Mr Geno, and of course we have Mr Aranui’s account himself, so you have to consider all of those accounts. As for Mr Insley and Mr Geno, I suggest to you they were honest witnesses doing the very best they could to try and remember events a year or so ago. Mr Insley was in fact accused of lying or exaggerating his evidence for the benefit of the police. It is a matter for you, not for me, but there did not, in my view, seem to have been any basis for that, but there is always the possibility that an honest witness can be a mistaken witness, and you always have to take that into account, especially when you are being asked about something you saw over a year ago.
…
[32] You will recall that comment made in response to a question by me, and it was: “You were asked many times as to whether you were mistaken as to what you saw.” Then he said: “Possibly.” But what he then said is: “This is wrong, this is wrong, I swore on the Bible.” So you might think that he was a person not really familiar with the way we go about things in court. He was somewhat surprised to find the account he gave as an eyewitness challenged, but nevertheless, the defence is entitled to challenge it. They are entitled to put other evidence to witnesses and they are entitled to invite the witness and invite you to consider that Mr Geno may be giving his evidence honestly, but he is simply mistaken about what in fact it was that happened.
Mr Wiseman, for the Crown, submitted that these comments by the Judge were entirely consistent with, and reflected, the defence closing. We accept that submission. The relevant passages of the defence closing are as follows:
(a)In relation to Mr Insley, Mr Schellenberg said in closing that:
… I’m not suggesting that he’s dishonest. You can be an honest witness, but you could be mistaken. There’s a difference there.
(b)In relation to Mr Geno, Mr Schellenberg said in closing that:
Mr Geno’s mistaken about this and he’s exaggerated what he’s seen. Now he might believe what he saw is correct and he may, he may be swearing to God and saying that he honestly believes that’s what he saw. But the fact is he’s mistaken. You can think that you’ve seen something and believe that, but you can be wrong.
Given that the defence did not take issue with the honesty of the eyewitnesses, but rather submitted to the jury that they were honest, but mistaken, the Judge can hardly be criticised for doing the same. The Judge did not therefore err in focusing the jury’s attention on the fact that even honest witnesses can be mistaken.
Further, there was no risk that the jury would prefer the Judge’s views over their own, given that the Judge’s comments were expressly framed as a “suggestion”. It was made clear to the jury on more than one occasion in the summing-up that it was a matter for the jury what they made of the witnesses’ evidence (including those specific witnesses). For example, the Judge unequivocally stated to the jury at the outset of his summing-up that it was not his role to make conclusions as to fact nor weight:
The sole responsibility for deciding all questions of fact rests with you. It is for you to decide what evidence you will accept or reject, and what weight you will give to any part of the evidence. Should I indicate any view of the evidence or of any witness, and that view does not accord with your own, then disregard what it is that I have said.
Did the Judge improperly discredit the medical evidence relied upon by the defence?
Mr Schellenberg submitted that the Judge’s summing-up of the medical evidence relied upon by the defence improperly discredited that evidence. The relevant passage of the summing-up is as follows:
He reminded you again of the content of exhibit 7; that is, the account given to the occupational therapist as to what happened to her, given [by] her later in the morning just before she was released. She refers to her cousin’s ex-partner as being the assailant, not to Mr Aranui, and he said there is no basis to assume that the defendant caused the injuries, and no evidence against him, but of course there is the evidence of Mr Geno and Mr Insley, and the account given to a constable, Constable Abdullali. What you make of those are matters for you.
(emphasis added)
This passage of the summing-up appears to respond to the following passage in the defence closing:
So when she’s first admitted to hospital she’s highly intoxicated. The medical evidence is clear on that. After she’s had the opportunity to rest up and sober up she reports her cousin’s ex-partner has caused her injuries and not Mr Aranui. Her cousin’s ex-partner. And no there’s never been in any of the evidence that we’ve heard from the Crown about saying who assaulted her et cetera, not once has it ever been named Raymond Aranui, or Ray, or Raymond.“He’s the person who beat me up.” The Crown are asking you to infer that when in my submission there’s really no basis and no fair basis to do it. This medical page document here, that gives you a reliable and credible statement from [the complainant] about what’s happened to her.
(emphasis added)
This passage in the defence closing is somewhat ambiguous. The Judge appears to have interpreted it as defence counsel asserting that the only evidence as to the identity of the assailant was that contained in exhibit 7, the occupational therapist’s notes. Obviously, that was incorrect. There was clear evidence pointing to Mr Aranui as the assailant, even if the relevant witnesses did not refer to him by name.
The Judge was entitled, in our view, to correct any impression that there was no evidence against the defendant, by mentioning the names of the three key witnesses relied on by the Crown. The Judge did not repeat, summarise or endorse their evidence, but appears to have simply intended to correct any impression that there was no evidence that Mr Aranui was the assailant. This was not improper.
Was the jury’s verdict unreasonable?
If Constable Abdullali’s record of the complainant’s hearsay statements were excluded, then it would necessarily follow that the jury’s verdict was against the weight of the evidence, and therefore unreasonable. The evidence of the two eyewitnesses alone would not have been sufficient to prove the charge.
We have found, however, that the complainant’s hearsay statements were correctly admitted. On that basis there was clearly sufficient evidence to meet the “beyond reasonable doubt” threshold, and the jury’s verdict was not unreasonable.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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