Bishop v Police HC GIS CRI 2008-416-000003

[2008] NZHC 2201

IN THE HIGH COURT OF NEW ZEALAND

GISBORNE REGISTRY

CRI-2008-416-000003

MATTHEW LEON BISHOP

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 February 2008

Appearances:  Mr M J Lynch for Appellant

Mr R J Collins for Respondent

Judgment:      28 February 2008 at 4.30 pm

JUDGMENT OF LANG J

[on appeal against conviction]

This judgment was delivered by me on 28 February 2008 at 4.30 pm, pursuant to

Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Burnard Bull & Co, Gisborne

BISHOP V NZ POLICE HC GIS CRI-2008-416-000003  28 February 2008

Crown Solicitor, Gisborne

[1]      On 14 November 2007 Mr Bishop was convicted by His Honour Judge Field after  a  defended  hearing  in  the  District  Court  on  charges  of  assault  with  intent  to injure, assaulting a female  and  indecent  assault.  On  the  following day the  Judge imposed  concurrent  sentences  of  five  months  imprisonment  on  each  of  those charges.

[2]      All of the charges arose as a result of an incident that  occurred  on  18

September 2007 at Wainui, near Gisborne. The prosecution case was that on the evening of that day Mr Bishop was responsible for a sustained assault, including an act of indecency, on his partner.   His partner did not, however, give evidence for the prosecution  at  the  defended  hearing. Instead,  the  prosecution  relied  on  a  written statement that she made to the police on the evening of the incident.

[3]      Prior to the hearing the prosecution gave notice under s 22 of the Evidence Act 2006 (“the Act”) that  it  proposed  to  adduce  the  complainant’s  statement  as hearsay evidence under s 18 of the Act.  It did so on the ground that the complainant could not be found, and was therefore unavailable to give oral evidence.

[4]      After  hearing  argument  on  the  point  at  the  beginning  of  the  hearing,  the Judge  ruled  that  the  statement  was  admissible.          In  doing  so  he  accepted  that  the complainant was not available as a witness, and he also concluded that she had made the  statement  in  circumstances  that  provided  reasonable  assurance  that  it  was reliable. The  Judge  also  ruled  that  the  probative  value  of  the  statement  was  not outweighed  by  the  risk  that  it  would  have  an  unfairly  prejudicial  effect  on  the proceeding, including Mr Bishop’s right to offer an effective defence to the charges against him. The Judge then relied on the contents of the statement, together with the  other  evidence  adduced  by  the  prosecution,  to  reach  his  conclusion  that  Mr Bishop was guilty of the acts that gave rise to the charges against him.

[5]      Mr Bishop raises two issues on appeal. First, he contends that the Judge was wrong to conclude that the statement was admissible. He argues that the probative value of the statement was outweighed by the risk that it would have an  unfairly prejudicial effect on the proceeding. That risk arose because the introduction of the

statement  deprived  him  of  the  opportunity  to  offer  an  effective  defence  to  the charges against him.   As a result, he submits that the mandatory provisions of s 8 of the Act required the Judge to exclude the statement even if it would otherwise have been  admissible. Secondly,  Mr  Bishop  argues  that  the  Judge  placed  too  much weight upon the complainant’s statement in reaching his substantive conclusion that Mr Bishop committed the acts that gave rise to the charges.

[6]      Mr   Bishop   therefore   contends   that   this   Court   should   quash   all   three convictions notwithstanding the fact that he has already served his sentence.

Did  the  Judge  wrongly  conclude  that  the  probative  value  of  the  statement outweighed  the  risk  that  it  would  have  an  unfairly  prejudicial  effect  on  the proceeding?

[7]      It is convenient to begin consideration of this issue by having regard to the relevant provisions of the Act.

The Evidence Act 2006

[8]      The Act fundamentally alters the longstanding general principle that hearsay statements  may  not  be  admitted  as  evidence.  The  admissibility  of  a  hearsay statement  under   the   Act   is,   however,   conditional   upon   several   matters   being established.   These are set out in s 18 of the Act which provides:

18    General admissibility of hearsay

(1)    A hearsay statement is admissible in any proceeding if—

(a)        the  circumstances  relating  to  the  statement  provide  reasonable assurance that the statement is reliable; and

(b)    either—

(i)    the maker of the statement is unavailable as a witness; or

(ii)     the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

[9]      The circumstances that are to be taken  into  account  in  determining  (under

s 18(1)(a))  when  there  is  reasonable  assurance  that  the  statement  is  reliable  are defined in s 16 of the Act, which provides as follows:

circumstances, in relation to a statement by a person who is not a witness, include—

(a)    the nature of the statement; and

(b)    the contents of the statement; and

(c)    the circumstances that relate to the making of the statement; and

(d)    any circumstances that relate to the veracity of the person; and

(e)     any circumstances that relate to the accuracy of the observation of the person

[10]     In addition to the requirements of s 18, the Court is required to have regard to the exclusionary principles set out in s 8 of the Act.   Section 8 provides:

8     General exclusion

(1)     In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a)    have an unfairly prejudicial effect on the proceeding; or

(b)    needlessly prolong the proceeding.

(2)     In determining whether the probative value of evidence is outweighed by  the  risk  that  the  evidence  will  have  an  unfairly  prejudicial  effect  on  a criminal  proceeding,  the  Judge  must  take  into  account  the  right  of  the defendant to offer an effective defence.

[11]     Finally, no party may offer a hearsay statement in evidence in any criminal proceeding unless that party has complied with the notice requirements prescribed by

s 22 of the Act.

[12]     As a result, the Court may only permit a hearsay statement to be admitted as evidence in a criminal proceeding if it is satisfied:

a)        That the notice requirements under s 22 have been met; and

b)That  the  circumstances  relating  to  the  statement  provide  reasonable assurance that the statement is true; and

c)        That the maker of the statement is unavailable as a witness; or

d)That  undue  expense  or  delay  would  be  caused  if  the  maker  of  the statement were required to be a witness; and

e)        That the probative value of the statement is not outweighed by the risk that  the  statement  would  have  an  unfairly  prejudicial  effect  on  the proceeding (taking into account the  right of the defendant to offer a defective defence) or that it would needlessly prolong the proceeding.

[13]     In  the  present  case  there  was  no  dispute  that  the  prosecution  had  complied with the notice requirements of s 22. In addition, the Judge was satisfied that the circumstances in which the complainant  gave her  statement to the  police  provided reasonable assurance that the statement was reliable. He also decided, as a matter of fact, that the complainant was unavailable as a witness in terms of s 18(1)(b)(i) of the Act.  Mr Bishop does not challenge either of those conclusions on appeal.

[14]     Mr Bishop challenges, however, the Judge’s  conclusion  that  the  probative value of the statement was outweighed by the risk that the statement would have an unfairly prejudicial effect on the proceeding. He contends that the Judge ought to have reached the opposite conclusion and excluded the statement as a result.

Did the Judge apply the correct test?

[15]     Counsel for the appellant submitted that the Judge incorrectly applied the test prescribed by s 8 of the Act.   He acknowledged that the Judge expressly referred to s

8 in his decision.    He submitted, however, that the Judge “failed to recognise the importance  of  that  section,  and  failed  to  recognise  that  it  has  priority  over  other provisions  in  the  Act,  including  the  provisions  relating  to  admissibility of  hearsay evidence”.

[16]     In  support  of  this  submission  counsel  for  the  appellant  referred  to  the following passage from the Judge’s decision:

[17]     I  find,  however,  that  in  terms  of  the  circumstances  in  which  the statement  was  taken  do  provide  reasonable  assurance  that  the  statement is reliable.   That is not to say that one accepts the statement in its entirety and without any  criticism  at  all. All the Court  has  to  find  is  that the circumstances provide reasonable assurance that the statement is reliable. I find that   those   circumstances   exist, and subject to the witness being unavailable, the statement may be admitted in evidence.

[17]     Counsel submitted that this was not the correct test.   He submitted that, even

if  the  Judge  found  that  the  witness  was  unavailable  and  that  the  circumstances provide a reasonable assurance that the statement was reliable, he was still required to have regard to s 8 of the Act.  That section required him to exclude the evidence if the probative value of the statement was outweighed by the risk that the evidence would have an unfairly prejudicial effect on the proceeding.

[18]     The submission that the Court must have regard to s 8 even if the requirements of s 18 have been satisfied is undoubtedly correct. In the present case, however, counsel has taken paragraph [17] of the Judge’s decision out of context. That  paragraph  is  situated  at  the  very  end  of  the  Judge’s  decision, and  it  merely summarises the Judge’s earlier conclusion that the circumstances in which  the statement was taken provided reasonable assurance that the statement was reliable. He had reached that conclusion having regard to matters discussed at [9] to [13] of his decision, none of which are in issue on this appeal.

[19]     Having reached that conclusion, however, the Judge said:

[14]     Finally, of course, I must consider the general exclusion principles set out in s8.   That provides:

8    General exclusion

(1)     In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a)     have an unfairly prejudicial effect on the proceeding; or

(b)    needlessly prolong the proceeding.

(2)     In determining whether the probative value of evidence

is  outweighed  by  the  risk  that  the  evidence  will  have  an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right  of the defendant to offer an effective defence.

That has been touched upon by counsel in the course of submissions.

[15]     The  effective   defence   identified  here  is  the  right  to  cross- examine the complainant. If the statement is admitted that does not of  course  preclude  cross-examination  of  other  witnesses  and  indeed, the right to lead evidence for the defence if that is thought appropriate.

[16]     So, I weigh up the inability of the defendant to cross-examine the complainant as against the probative value of her statement.  I am very much alive to the issue of the inability to cross-examine.   That of course  is  the  case  in  every  case  where  a  statement  is  admitted,  a witness having been declared unavailable to give evidence, but it may assume special importance in this case and if the evidence is admitted then I will bear that in mind.

[20]     I am therefore satisfied that the Judge applied the correct test.    He decided first whether the circumstances in which the statement was made provided reasonable assurance that it was reliable. He then considered the principles set out in  s  8  of  the  Act. I  therefore  reject  the  submission  that  the  Judge  applied  an incorrect test by failing to have regard to the matters referred to in s 8.

Was the Judge’s decision incorrect on any other basis?

[21]     Counsel for the appellant emphasised that the  admission  of  the  statement created  an  unfairly  prejudicial  effect  because  it  precluded  him  from  testing  the complainant’s evidence by way of cross-examination. He submitted that his ability to advance Mr Bishop’s defence was significantly hampered by that fact.

[22]     This  is  essentially  the  same  submission  that  counsel  advanced   on   Mr Bishop’s behalf in the District Court.   The passages cited above at [14] to [16] of the Judge’s  decision  make  it  clear  that  the  Judge  was  alert  to  the  problems  that  the admission  of  the  statement  might  cause  for  Mr  Bishop. Mr  Bishop  now  argues, however, that the Judge failed to appreciate just how serious those problems were. That submission needs to be considered in the context of the principles to be applied in this area of the law.

The principles to be applied

[23]     There can be no doubt that the ability to cross-examine the witnesses called

by an opposing party falls within the right to a fair trial that is now enshrined in the New Zealand Bill of Rights Act 1990.   In a somewhat different context the Court of Appeal recently confirmed this principle in R v Clode CA478/07 17 October 2007 when it said:

[22]     It is important  to emphasise that in every case the starting point  is that  the  accused  must  have  a  fair  trial  and  must  not  be  precluded  from putting things that are necessary to his or her defence.  It is not necessary to recite here the undoubted authorities in this respect: that was the common- law  position,  it  is  the  position  under  the  New  Zealand  Bill  of  Rights  Act 1990,  and  it  is  recognised  by  the  Evidence  Act  2006  itself. Section  44 recognises that  the  need  to  put  to a  complainant  certain  features  of  sexual experience with another person may be distinctly relevant to the defence of the  particular  accused,  and  s  8(2)  of  the  statute  specifically  refers  to  the “right of the defendant to offer an effective defence”.

[24]     The Court of Appeal had earlier made the same point in R v J [1998] 1 NZLR

20, in which it said at 22:

The common law, the New Zealand Bill of Rights Act 1990 (s 25(a) and (f)), the European Convention on Human Rights (art 6(1) and 6(3)(d)), and the International Covenant on Civil and Political Rights (art 14(1) and 3(e)) all recognise the importance to the defence in affording the right of cross- examination as an integral part of ensuring a fair trial. A leading New Zealand authority in this area is the judgment of this Court in R v L [1994] 2 NZLR 54. … The Court stressed the importance of assessing the quality of the evidence, and of inquiry into whether the other evidence and the surrounding circumstances allow a conclusion that cross-examination would not make any relevant difference.

[25]     The importance of the ability to cross-examine an opposing party’s witness increases  significantly  when  the  evidence  of  the  witness  is  crucial  to  that  party’s case. Any  restriction  on  the  ability  to  cross-examine  the  witness  in  those circumstances is liable to create a substantial risk of unfair prejudice. This flows from  the  fact  that  the  ability  to  demonstrate,  through  cross-examination,  that  the evidence  of  the  witness  is  wrong  or  unreliable  forms  an  extremely  important component  of  offering  an  effective  defence. Although  the  same  result  may  be achieved in other ways, the outcome may not be nearly as compelling for the tribunal of  fact. Most  experienced  advocates  will  have  experienced  the  dramatic  effect

created  by a  significant  concession  extracted  from  a  key witness  for  the  opposing party.

[26]     In  R  v  L  [1994] 2 NZLR 54 the Court of Appeal accurately described the importance of cross-examination in the following terms at 61:

4.Cross-examination is aptly described as the greatest legal engine ever invented for the discovery of truth where credibility is in issue.  The right to cross-examine an accuser is regarded in our system of justice

as an important element of the criminal process.   As North J observed

in  R  v  Dagg  [1962] NZLR 817, 820 “an accused person has a fundamental right to have the evidence against him given in Court and there to be subject to cross-examination”.

[27]     The Court went on, however, to say at 63:

12.Clearly  then  the   common   law,   the   Bill   of   Rights  and   a   major international  covenant  paralleling  the  provisions  of  the  International Covenant on Civil and Political Rights which the Bill of Rights Act is designed  to  affirm,  all  bring  out  the  role  of  cross-examination  in ensuring fair trials. Against that background there is every reason for exercising the undoubted discretion of the Court under s 184 [of the Summary Proceedings Act 1957] in conformity with s 25(a) and (f). There  is  nothing  in  the  language  of  s  184  to  the  contrary  so  as  to require consideration of the application of ss 4, 5 and 6 of the Bill of Rights.  In  harmony  with  the  justified  limitations  on  the  specified rights and freedoms recognised by s 5, the Court may properly assess the practical implications of the absence of an opportunity for cross- examination in the particular case. It is not enough for an accused to assert a defence and a desire to cross-examine to support the defence. The   likely   veracity   of   the   complainant's   statement   is   a   crucial consideration.

In [Scott v R [1989] AC1242 at 1249] the Privy Council went so far as

to  say  that  the  quality  of  the  evidence  is  all  important.  It  is  also important under New Zealand law to consider whether the inability to cross-examine the maker may prejudice the defence. That may also be implicit in Scott particularly as the statute in question there required full opportunity for cross-examination at depositions as a precondition to admission at the trial. And in R v Cole Ralph Gibson LJ said at p 116:

". . . the weight to be attached to the inability to cross- examine  and  the  magnitude  of  any  consequential  risk that admission of the statement will result in unfairness to  the  accused,  will  depend  in  part  on  the  court's assessment of the quality of the evidence . . . ".

[28]     The Court then concluded at 63 and 64:

If the testimony appears to be inherently reliable and there is nothing

in any other evidence or in the surrounding circumstances casting any doubt on its trustworthiness the Court may properly conclude on that material  that  cross-examination  would  not  have  made  any  relevant difference. That was in essence the conclusion reached by this Court on a similar point in R v Hovell [1987] 1 NZLR 610, 613 and 614. In such a case it cannot reasonably be said that the absence of an opportunity to cross-examine at the preliminary hearing would affect the fairness of the ensuing trial.

In short, on the material before the Court we are driven to the conclusion that there  is  simply  nothing  to  support  the  proposed  defence.  It  cannot  be suggested from any material in the case that cross-examination would have made  any  difference.  The  possibility  that  the  complainant  might  not  have come  up  to  her  statement  at  the  trial  or  might  have  departed  from  her previous  account  under  cross-examination  is  pure  speculation  without  any grounding in the material before the Court. This is one of those perhaps rare cases  where  a  Court  can  confidently  conclude  that  there  is  no  basis  for giving any substantial weight to the absence of any practical opportunity to cross-examine  the  complainant  at  the  preliminary  hearing.  The  appeal  is dismissed.

[29]     The Court of Appeal referred to R v L with approval in R v J [1998] 1 NZLR

20.     In  R  v  J,  however,  several  factors  persuaded  the  Court  that  the  evidence  in question should not have been before the jury.   It said at 25:

As against those considerations, the fact remains that the statement was the only   substantive   evidence   which   could   establish   any   of   the   disputed elements of the offences.  Unlike R v L there was no independent evidence which directly supported any of the material factual allegations contained in the statement.       In such a situation a Court would need to exercise extreme care before concluding that cross-examination would not make any relevant difference to the result of the trial. …

[30]     The  introduction  of  the  Evidence  Act  2006  requires  these  issues  to  be reconsidered  to  some  extent,  because  the  wording  of  s  18  is  sufficiently  wide  to encompass any hearsay statement regardless of its significance to the outcome of a case.   The policy reasons identified in earlier cases remain, however, as valid as they ever  were. Moreover,  the  wide  discretion  to  exclude  evidence  under  s  18  of  the Evidence  Amendment  Act  (No  2)  1980  has  been  replaced  with  a  mandatory requirement to exclude evidence in the circumstances referred to in s 8. The change in wording reflects Parliament’s intention that hearsay evidence is not to be adduced in certain circumstances.

[31]     Those circumstances will arise when there is a risk that the hearsay evidence will have an unfairly prejudicial effect on the proceeding.  The alternative ground under  s  18  of  the  1980  Act,  namely  that  it  is  not  necessary  or  expedient  in  the interests  of  justice  to  admit  the  statement,  has  been  removed  under  the  new legislation.

[32]     The word “unfairly” was not used in s 18 of the 1980 Act.    Its introduction

is, in my view, an important development. It recognises that the admission of hearsay evidence in any form is likely to create some risk of prejudice. The risk of prejudice  alone, however, is not sufficient to require the Court to exclude the evidence. Instead, the prejudice must carry with it a risk of unfairness. In a criminal  proceeding  an  important  aspect  of  that  risk,  and  one  that  the  Court  is required  to  consider,  lies  in  the  potential  restriction  that  the  admission of the statement may have on the ability of the defendant to exercise his or her right to offer

an effective defence.

[33]     Concepts of “fairness” and “unfairness” are obviously incapable of precise or universal definition.                   Whether or not the  risk of unfair prejudice will arise in any given case will therefore depend upon the circumstances of that case. The mere fact that the maker of the statement is unavailable for cross-examination  will  not, however, be sufficient to engage s 8.          In order for the section to apply, the absence

of the witness will need to create the risk of unfairness in the proceeding.

[34]     That  risk  may  arise  because  the  admission  of  the  hearsay  statement  may create a risk of specific prejudice to the defendant in conducting his or her defence.

[35]     It  may,  for  example,  arise  where  there  is  reason  to  believe  that  the  absent witness could provide evidence to support the proposed defence, thereby removing the need for the defendant to enter the witness box. Similarly, where cross- examination alone could expose the false or unreliable nature of the witness’s evidence. Such a risk could also arise  where  there  is  reason  to  believe  that  the maker of the statement might not come up to brief if required to give oral evidence and be cross-examined. Or it may surface where there are grounds to believe that

the maker of the statement would recant the allegations contained in the statement or,

at the least, accept that some of them were incorrect.

[36]     As before, the nature and quality of the hearsay statement may also assume importance.  To a large extent this factor is recognised by the requirement that the circumstances in which the statement is made provide reasonable assurance that the statement is reliable. There may, however, still be a risk of unfair prejudice where a party seeks to introduce a hearsay statement in circumstances where, as was the case in R v J, there is no  independent  evidence  to  support  any  of  the  crucial  factual allegations contained in the statement. The courts should still exercise real caution in allowing hearsay evidence to be adduced in those circumstances. In cases where there  is  absolutely  no  independent  evidence  to  support  the  version  of  events contained  in  the  hearsay  statement,  the  defendant  may  be  at  a  real  and  unfair disadvantage if he or she is not able to cross-examine the maker of the statement.

[37]     Although the Judge in the present case was clearly alert to the fact that the inability  to  cross-examine  the  complainant  was  likely  to  cause  problems  for  the defence, he did not set out in any detail how those problems might (or might not) create the risk of unfair prejudice.   That is probably not surprising, because I suspect that counsel for Mr Bishop may not have developed his submission on this point in any detail during the hearing in the District  Court. In  his written submissions in support  of  the  appeal,  however,  counsel  articulated  the  ways  in  which  he  was specifically  prejudiced  in  the  conduct  of  Mr  Bishop’s  defence  by  his  inability  to cross-examine the complainant.

Specific prejudice

[38]     Counsel submitted that he may have been able to advance Mr Bishop’s cause

in the following ways if he had been able to cross-examine the complainant:

(a)     He could have established that the complainant had consumed 8 bottles

of  beer  and  was  thereby  likely  to  have  been  under  the  influence  of alcohol at the time of the incident.

(b)He could have identified inconsistencies between some aspects of her statement and other evidence that the Judge accepted.

(c)     He could have elicited the fact that the complainant has a large number

of previous convictions for dishonesty and alcohol-related offences.

[39]     The difficulty with this submission is that all of this information was before the Court in any event, because it was contained within the other evidence adduced

by  the  prosecution.     The Court was therefore able to take it into account notwithstanding the fact that it did not come from the complainant. The nature of the evidence is not such, either, that its effect would have been greater if it had been extracted by cross-examination of the complainant rather than from other sources.

[40]     Moreover, Mr Bishop does not, and  could not, claim  that  he  was  forced  to give  evidence  because  he  was  unable  to  introduce  his  defence  through  the  cross- examination of the complainant.  Although Mr Bishop gave evidence at the hearing, that evidence  was to a large extent a repetition of what he had  already said  in  his videotaped interview with the police. The evidence was therefore available to the Court regardless of whether or not he elected to give evidence.

[41]     There is no suggestion, either, that Mr Bishop had reason to believe that, if the complainant had been required to give oral evidence and be cross-examined, she would have retracted or altered her evidence in any way.  How she may have reacted under cross-examination remains a matter of speculation.

[42]     All of these matters persuade me that the Judge was entitled to conclude that the inability of Mr Bishop’s counsel to cross-examine the complainant did not create

a  risk  of  specific  prejudice  to  Mr  Bishop.  This  lessened  the  likelihood  that admission of the statement would  create  a  risk  of  unfair  prejudice  to  Mr  Bishop’s right to offer an effective defence.

[43]     Against   that   finding,   it   is   appropriate   to   consider   whether   there   was independent   evidence   to   support   the   allegations   made   in   the   complainant’s statement.

Was   there   independent   evidence   to   support   the   allegations   contained   in   the complainant’s statement?

[44]     The complainant began giving her statement to the police at 9.43pm, which was approximately an hour after she alleged that Mr Bishop had assaulted her.  In her statement she said:

My full name is [A] and my date of birth is [B], I am 37 years old.  I live at

[C] and I am on a sickness benefit.

I am speaking to Constable Timutimu at the Gisborne Police Station about an assault that happened tonight.

I am going to be talking about my partner Matthew Leon Bishop he is aged

32 years.  He lives at 16 Dalton Street with his sister Marie BISHOP aged 22 years.  I have been in an off and on relationship with him for about a  year.  I have been living with him at his place for about three weeks.

At about 10.00am today Matthew and I went to my friend Blue PEACHEY’s place up Fleming Street.   I don’t know Blue’s address but I know it’s on that street.  It is a two storey home.

We sat there and drank Stein larger [sic] and New Zealand larger for about four hours.  There was Blue who is aged about 39 years, his misses Kanoff aged 37 years, me and Matt.

I had about eight large bottles of Stein Larger and Matt had about the same amount.

We  finished  drinking  and  walked  home.   I  don’t  know  what  time  we  got home but no one was home when we got there.

Before we went to sleep he demanded his sweatshirt back he said “give me fucken sweatshirt back bitch!”   I gave his grey coloured sweatshirt back to him and said “Come on baby here’s your shirt everything is happy now lets go to sleep”.

We went to sleep in our bedroom.

I woke up and went to the toilet.  Matt came up and said “what the fuck are you doing bitch? Your  not fucken going anywhere bitch your staying here with me!”  He looked fucken angry!  I was scared and frightened because he has beaten me up before.   I don’t know why he was like this but I think he is over possessive with me.

I was still sitting on the toilet and he grabbed me by my hair and dragged me through the house and then outside.  I can’t remember where abouts he took me outside because I was so traumatised.

He ripped my clothes off me.  I had my blue coloured jeans, my red coloured panties  these  are  lacey  and  frilly,  and  my  grey  and  black  bra  which  is  a bikini style.   He threw my clothes on the ground.

He  was  threatening  me  and  he  said  “I’m  gonna  fucken  kill  you  bitch  … don’t fucken come back here no more … I’m not gonna suck your pussy no more”.      He  kept  repeating  himself.          While  he  was  saying  this  he  was punching me in the head.            He used both hands to punch he likes to call it a combination.   I’m not sure how many punches he threw it happened really fast.

I didn’t say nothing.  I just went to hide away under the shrubs at the front of our house.  When I ran off he couldn’t find me I didn’t go far because I was naked.

I could see him when I was hiding but he couldn’t see me.

Matt’s friend Teddy turned up and saw me behind the shrubs.  Teddy is aged about 22 years and this is about the third time I’ve seen him.

Teddy gave me his Jacket to wear because I had no clothes on.   He left me before Matt saw me and went to go and calm him down.

A car was at my neighbours place and it drove past and I flagged it down.  I got in the car and he drove away.   He said “what’s up how can I help?”   I said please help .. I need help, can you ring woman’s refuse?” [sic]

I don’t know what that  mans name is that  picked me up  that  was the first time I had met him.  He drove me out to Wainui and gave me some pants to wear.  He used the public pay phone and called the Woman’s Refuge for me. He got the answer phone so he phoned the Police.

I didn’t wait that long before the Police arrived.

I’ve got pain on my forehead and on the right side of my body  My head is sore from him pulling it and I have bruises on my right hip.

…

[Details relating to identity of complainant excised]

[45]     An  important  witness  for  the  prosecution  was  Mr  Baker,  the  person  who stopped and picked the complainant up at the end of the incident. In his substantive decision the Judge summarised Mr Baker’s evidence as follows:

[12]     I turn now to Mr Baker’s evidence. Mr Baker struck me as a truthful and thoroughly impressive witness. I commend Mr Baker for the attitude that he took when confronted by what may have been a very disturbing situation and the police may wish to convey those remarks to Mr Baker. He

adopted  a  thoroughly  responsible  attitude  in  my  view  and  is  deserving  of praise for it.  I completely reject any suggestion that he was looking to “hook up” with the complainant or that he was cruising for a pick-up as I think may have been suggested or at least hinted at.

[13]     Mr  Baker  was  visiting  his  brother  that  night.   At  around  8.30  pm according to him by a park he sees some people at a distance.   He thought they were playing around and did not think much of it.  Then it occurred to him that one of them or more was naked.  He could see the pallor of the skin of  one of the  people.   He  turned  around  to  see  what  the  position  was.   A young man from the group approached him.  That young man I am satisfied was the defendant.  Mr Baker observed the complainant lying between some shrubs, which she described in her evidence, with another guy leaning over her.   I am satisfied on the evidence that was Teddy who was trying to give her a coat to cover her up.   She was naked on the ground.   Mr Bishop I am satisfied  approached  him  in  an  aggressive  way  saying  “Who  the  fuck  are you?  Are you a cop?”.  Mr Baker said there was far too much of this sort of activity going on and it was disturbing to him.  He observed the complainant yelling and crying, leaning on one elbow on the ground calling out for help. She had nothing on at all.   The person Teddy seems to have been holding a coat for her.   He  identified  Mr  Bishop  as  the  person who  approached him aggressively, saying to him “That’s my fucken missus”.  She appeared to Mr Baker to have been drinking but not staggering drunk if I can put it that way. Mr Baker took her to a telephone where the police were called and the police in the person of Constable Timutimu arrived.

[46]     Next, there is the evidence of items that the police found when they searched the area immediately in the vicinity of where the complainant was situated when Mr Baker stopped his vehicle.           These included denim fabric with a zipper attached, and

a grey bikini top lying on the ground.

[47]     In  summary,  therefore,  the  independent  evidence  confirmed  that  when  Mr Baker arrived the complainant was lying naked in bushes near her house.              A male person,  whom  the  Judge  accepted  was  the  defendant’s  friend  Teddy,  was  leaning over her and trying to give her a coat. The complainant was in a highly distressed state, and was yelling and crying.   She was trying to get up and was asking for help. When Mr Baker intervened, Mr Bishop reacted in an extremely aggressive way.  He swore at Mr Baker and demanded to know whether he was a police officer.

[48]     Mr Baker also confirmed that, shortly after  he  arrived,  the  complainant jumped up, grabbed the  coat and went to Mr Baker’s car.  He then took her  to  a nearby telephone booth, from where she immediately called the police.            When the police arrived, one of the police officers noticed a red blemish on her face, although she did not notice any other obvious injuries. The police later located fragments of

the complainant’s shredded clothing near to the area in which the complainant had been when Mr Baker first approached her.

[49]     I accept that there was no independent evidence to support the complainant’s critical assertion that Mr Bishop assaulted her in the precise way that she describes in her statement. There was, however, independent evidence to confirm that Mr Bishop was the apparent aggressor in an incident that had left the complainant naked in a public place and in an extremely distressed state. I therefore consider that the evidence  of  the  police  officers  and  Mr  Baker  provides  some  support  for  her statement that she had earlier been the subject of an aggressive attack at the hands of Mr Bishop.   That is to be contrasted with the version of events consistently given by Mr Bishop. According to that version, the complainant attacked Mr Bishop and her clothes came off when he was defending himself.

[50]     Moreover,  the  complainant  made  her  statement  a  very  short  time  after  the incident  ended. She  made  it  at  the  police  station  in  an  environment  where  she would have felt safe from influence by others.  The statement is detailed, and such inconsistencies as have been identified are in my view relatively minor in nature.

[51]     All of these matters persuade me that the Judge was entitled to conclude that the  probative  value  of  the  complainant’s  statement  outweighed  the  risk  that  Mr Bishop might be unfairly prejudiced in offering a defence to the  charges  by being unable to cross-examine the complainant in the present case.  The Judge was not, therefore, required to exclude her statement under s 8 of the Act.

A cautionary note

[52]     In reaching my conclusion I do not ignore the fact that complainants in cases involving  allegations  of  domestic  violence  are  often  reluctant  to  give  evidence against their spouses or partners.   This case should not be seen as giving prosecuting authorities  the  unrestricted  right  to  prove  criminal  charges  solely  on  the  basis  of written statements made by absent complainants.

[53]     The circumstances of the present case were such that the prosecution could demonstrate that the probative value of the complainant’s statement outweighed the risk of any unfair prejudice that it may have had for Mr Bishop.  That will often not

be the case.   In circumstances where the complainant’s statement comprises the only evidence to support the charge, the risk of unfair prejudice remains very real. Each case will need to be determined on its own facts.

Did  the  Judge  place  too  much  weight  on  the  complainant’s  statement  in reaching his substantive decision?

[54]     Counsel for the appellant  accepted  that,  once  evidence  is  properly before  a tribunal of fact, the weight to be given to that evidence is usually a matter for the tribunal.  It must make its own judgment as to the reliability of the  evidence and whether or not to accept or reject it.

[55]     Counsel  also  accepted  that  the  Evidence  Act  2006  does  not  specify  how  a Judge  trying  a  case  without  a  jury  is  to  undertake  this  task  in  relation  to  hearsay evidence admitted under s 18. He submitted, however, that  s  122  of  the  Act provides  some  assistance  in  this  regard. Section 122 sets  out  directions  that  the Judge must give to a jury if the Judge is of the opinion that admissible evidence may nevertheless be unreliable.   Section 122(2) requires the Judge to give such directions whenever hearsay evidence is given.   In such cases the Judge is specifically required to direct the jury of the need for caution in deciding whether to accept the evidence and in deciding the weight to be given to it. Counsel submitted that, although s 122 did not apply to a Judge sitting without a jury, nevertheless it provided guidance as to the manner in which hearsay evidence should be treated in Judge alone trials.

[56]     I accept that it would be prudent, in any case where a party adduces hearsay evidence, for the Judge to exercise caution in deciding what weight is to be given to that evidence.  Prudence is required because of the fact that the opposing party will not have had an opportunity to test the evidence by cross-examination.

[57]     The submission for Mr Bishop under this ground of appeal is that the Judge failed to exercise sufficient caution when  he  decided  to  accept  the   evidence

contained  in  the  complainant’s  hearsay  statement.         That  submission  needs  to  be measured, however, against what the Judge actually did.

[58]     After  noting  that  he  had  admitted  the  complainant’s  statement  as  hearsay evidence under the Act, the Judge said:

[2] … I have given my reasons for admitting the statement into evidence and

I will not repeat them now. As I made clear at the time, and as counsel for the defence has just reminded me, admissibility is one thing; weight  is another. In considering the weight to be given to the statement I have regard to a number  of matters. Firstly, it was not a statement  given on oath although it was confirmed as being true and correct at the time of signing.

Secondly, it follows  that there  has  been  no  cross-examination  possible on contentious areas in the statement.   Thirdly, the maker of the statement is a

woman with quite significant  criminal  convictions. I touched upon these when hearing argument concerning its admissibility. She does have a large number of convictions mostly for driving but there are two  dishonesty

convictions  in  2003. As I say she presents as  a  person  with  significant offending in her background, much of it I would think alcohol related if the convictions for driving with excess breath or blood alcohol are any guide.

[3]      I take into account also the fact that on her statement  she  had consumed a significant quantity of alcohol although she was not observed to

be incoherent by  the  interviewing  officers.  I am  also  mindful  that  some items of information in the statement do not coincide with other independent

observations. For example, she says  that  she  was  wearing  blue  coloured jeans, which were ripped off her. It appears that a piece of fabric around the

zipper area of a pair of black jeans was found by the prosecution when the property was searched. She has also indicated,  at  least  initially,  the  red coloured panties were thrown onto the ground outside the house whereas I

observe they were found inside the house. So, there are areas within the statement itself, which are inconsistent  with  other  evidence  that  I  accept.

So, I take all of these matters into account when assessing the weight to be given to the relevant parts of the statement.

[4]      The  statement  was  taken  at  9.43pm  not  long  after  the  events complained of are said to have occurred.  Constable Timutimu at about 9pm received  information  of  an  assault.   She  went  to  the  payphone  at  Wainui where, incidentally, it appears, the complainant was taken by Mr Baker.  Mr Baker’s car was parked by the telephone.  She spoke to the complainant who she  described  as  being  distressed,  sobbing  and  calling  for  help.   She  was wearing clothing that was obviously not her own.  Constable Timutimu took her back to Gisborne and made a further observation of her condition. She had minor injuries apparent to Constable Timutimu at the time.   She had a red blemish on her face with no visible injuries.  There was no other bruising or  cuts  as  such  observed  by  Constable  Timutimu  at  that  time.   I  pause  to comment that the complainant was photographed some days later I think by

Sergeant Chalmers and at that time bruising was observed to her eye.   She

did  have  a  black  eye  but  that,  I  accept,  was  as  a  result  of  a  subsequent incident which is the subject of another complaint, not involving Mr Bishop. Also, it seems, when she was photographed later there were injuries to the thigh to which I will return later.

[59]     Then, after summarising the  contents  of  the  complainant’s  statement,  the

Judge said:

[11]     In a case where it is not possible to cross-examine a witness if the Court is going to accept beyond reasonable doubt the allegations contained therein, particularly when challenged, the Court must look for other evidence

to determine whether or not reliance should be placed on the statement.   In my   view   it   would   be   very   dangerous   to   convict   without   significant corroborative  evidence  from  a  source  which  I  can  accept. In  terms  of corroboration there is the photographic evidence which shows that a pair of red underpants was found in the house; there is the ripped denim material; there is the one part of the bra in photographs 3 and 4 of exhibit 6;  there is another part of the bra in photographs 9 and 10 and the items are shown in more  detail  in  photographs  11-14  inclusive.    So,  there  is  in  my  view  no doubt that somehow she lost her clothing in the course of this and indeed of course that is amply corroborated by Mr Baker.

[60]     The Judge  then  reviewed  the  evidence  given  by  Mr  Bishop,  both  in  his videotaped interview with the police and at the hearing itself. After determining, as

he was entitled to do, that he did not accept Mr Bishop’s evidence in relation to the essential issues, the Judge correctly said:

[20]     …  Having  rejected  his  evidence  of  course  I  do  not  automatically assume guilt.  I have to go back to the evidence in the case that I do accept and  then  determine  whether  on  the  basis  of  that  evidence,  the  prosecution have proved guilt beyond reasonable doubt.   I do this of course going back again to the issue of the statement and what use I should make of it.

[61]     The Judge next considered each of the charges in light of the evidence that he did accept.    That process led him to accept the essential parts of the complainant’s statement and, on the totality of the evidence, to find the charges proved.

[62]     I  accept  that,  in  assessing  the  weight  that  he  should  give  to  the  hearsay statement,  the  Judge  did  not  specifically  remind  himself  of  the  need  to  exercise caution. It is clear, however, from an overall reading of the Judge’s decision that that is exactly the approach that he took. He recognised that counsel for Mr Bishop had not had an opportunity to test the statement in cross-examination, and he  also acknowledged  that  there  were  some  inconsistencies  in the statement. For that reason he looked for independent evidence to corroborate the version of events given by the complainant. He did so because of his observation that “it would be very dangerous to convict without significant corroborative evidence” from a source that he could accept.

[63]     The approach that the Judge took satisfies me that he was well aware of the need  to  exercise  caution  when  considering  the  weight,  if  any,  to  be  given  to  the complainant’s statement. He was, however, entitled to accept the critical aspects of that statement once he found that there was some evidence from independent sources to corroborate it. Matters of weight were, ultimately, for the Judge to assess. It is not  open  to  this  Court  to  say  that  the  Judge  was  precluded  from  preferring  the evidence  contained  in  the  complainant’s  statement  to  the  sworn  evidence  of  the appellant.

[64]     For these reasons I do not consider that there is any substance to the second ground of appeal.

Result

[65]     The appeal is dismissed.

Lang J