Body v The Queen
[2019] NZCA 378
•22 August 2019 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA657/2018 [2019] NZCA 378 |
| BETWEEN | JAMES GRAHAM BODY |
| AND | THE QUEEN |
| Hearing: | 29 July 2019 (further submissions received 12 August 2019) |
Court: | French, Mallon and Moore JJ |
Counsel: | M Starling and L M Drummond for Appellant |
Judgment: | 22 August 2019 at 10.30 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Body was convicted at trial in the District Court of kidnapping, three charges of male assaults female, two charges of doing a threatening act and one charge of threatening to kill. All the charges arose from a drunken altercation with his then partner at their home on 21 July 2017. The jury trial was presided over by Judge O’Driscoll.
Mr Body now appeals his convictions.[1]
The Crown case
[1]An appeal against sentence was abandoned.
According to the Crown case, the incident began when Mr Body took exception to the complainant cooking a meal for her adult son. He became enraged and over the course of the next few hours committed the following acts. He abused the complainant verbally, hit her on the ear with an open hand, discharged a firearm into the television, punched her in the jaw, bit her ear and discharged the firearm into a pot plant. He also smashed a bathroom mirror.
Sometime later, he got the complainant into the bedroom and pushed furniture against the door to block that exit, saying “I’ll fucking kill you bitch”. Eventually he fell asleep and the complainant was in the throes of leaving the house when police arrived responding to a call from her concerned son.
The seven charges were based on the following factual allegations:
Charge
Factual allegation Offence 1
Slapping her to ear Male assaults female 2
Shooting television Doing a threatening act 3
Punching her to jaw Male assaults female 4
Shooting pot plant Doing a threatening act 5
Biting her ear Male assaults female 6
Detaining her in bedroom
Kidnapping 7
Telling her he would kill her Threatening to kill
The complainant’s out of court statements
The complainant made three out of court statements that featured at the trial and on appeal:
(a)A brief statement to an armed police officer immediately after she had left the house on 21 July (the notebook statement). The complainant was recorded as having told the officer that her partner was drunk and had smashed up the house and was now asleep in the front bedroom. She confirmed there was a slug gun inside the house and when asked whether he had threatened her at all with the gun, she reluctantly replied “well, yeah sort of”.
(b)A formal seven page statement taken by a police officer later that night and completed in the early hours of the following morning (the formal police statement). It contained all the allegations described in [3] and [4] above.
(c)A letter of retraction written two weeks before trial in which the complainant effectively said none of the allegations were true and that she had not read the formal police statement. It had been written by the police who said they wanted Mr Body off the streets.
Grounds of appeal
Mr Body’s counsel, Ms Drummond, advanced several grounds of appeal. She pointed out that the case turned on the reliability of the complainant’s evidence and submitted the trial had miscarried because the Judge wrongly:
(a)permitted the Crown to produce the complainant’s formal police statement under s 35(2) of the Evidence Act 2006;
(b)permitted the Crown to produce the retraction letter despite the fact the complainant did not accept its contents;
(c)allowed those two statements to be produced without insisting on the notebook statement being also produced;
(d)questioned the complainant thereby encouraging her to change her story and unfairly preventing the defence from obtaining a discharge on the kidnapping charge; and
(e)unfairly undermined the defence by endorsing and thereby encouraging the jury to accept the Crown’s explanation for any inconsistencies between the notebook statement and the complainant’s evidence.
Was the Crown entitled to produce the formal police statement?
Background
Several times during her evidence in chief, the complainant said she could not remember particular details because she had blocked them from her mind. She was allowed to refresh her memory by reading her formal police statement and as a result came up to brief on the slap, the shot fired at the television, the punch to the jaw, and the shot fired at the pot plant.
She could not however recall the alleged bite to the ear. Nor could she recall the alleged threat to kill or saying there had been a threat to kill despite being allowed a second opportunity to read the formal police statement which canvassed both allegations.
At the end of the examination in chief, the prosecutor sought leave to produce parts of the formal police statement under s 90(7) of the Evidence Act.[2] The Judge considered the applicable provision might be s 35(2) of the Evidence Act but, at the request of Ms Drummond, agreed to defer any ruling on the point until after cross‑examination.[3]
[2]Section 90 relevantly governs the use of documents to refresh memory.
[3]Section 35 governs the admissibility of a witness’ previous consistent statements.
In cross-examination, Ms Drummond questioned the complainant about the complainant telling the police on the night of the incident that Mr Body was drunk and had smashed up the house. The complainant confirmed she would have said something like that then.
Ms Drummond also began to question the complainant about the retraction letter. When shown the letter, the complainant started to say it was a lie. At that point, the Judge stopped the cross-examination and the trial was adjourned to enable the Judge to give the complainant a warning about self-incrimination and an opportunity to take legal advice.
When the trial resumed, the complainant testified that Mr Body had pressured her to write the retraction letter, and that it was false. She further testified that everything in her formal police statement was correct, and in re-examination detailed the circumstances in which the police statement had been taken. She said the interview had taken an hour and a half. The officer had not led her but told her to just “say it as it was” and she had. She acknowledged that she still did not remember all aspects because she had blocked them out but everything that was in her formal police statement would be the truth. She would not have said it to the police otherwise. “They’re my words. That’s what happened.”
The prosecutor then sought and obtained permission for the formal police statement to be admitted into evidence. It was read out aloud and produced. The prosecutor also produced the retraction letter.
After these exhibits were produced, the Judge permitted Ms Drummond a further opportunity to cross-examine the complainant. During this second cross‑examination, Ms Drummond again questioned the complainant about the notebook statement, putting it to her there was a big difference between what the complainant had told police initially and what she told them later.
Analysis
In admitting the formal police statement into evidence, the Judge relied on s 35(2) of the Evidence Act, reasoning that defence counsel had challenged the complainant’s veracity based on a claim of invention and that the police statement was necessary to respond to that challenge.
Section 35 states:
35 Previous consistent statements rule
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement—
(a) responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
(b) forms an integral part of the events before the court; or
(c) consists of the mere fact that a complaint has been made in a criminal case.
On appeal, Ms Drummond submitted the Judge had erred. She pointed out that s 35 only applies if the previous statement is consistent with the witness’s evidence. In this case, the complainant’s evidence was inconsistent with the statement because she could not recall matters contained in the statement. Ms Drummond also disputed that there had been any challenge to the complainant’s veracity based on a previous inconsistent statement as required by s 35(2).
We do not accept the last point. The whole purpose of putting the notebook statement and the retraction letter to the complainant was to impugn her veracity.[4] In order to trigger s 35(2) it is not necessary for the cross-examiner to directly accuse a witness of lying.
[4]As that phrase is understood in the context of s 35.
We do however agree that s 35 would not justify admitting the entire police statement, only those aspects of it that were repeated in the complainant’s evidence. The parts of the statement that concerned the ear biting and the threat to kill were not admissible under s 35 due to the lack of consistency with her evidence. However, in our view, those parts were admissible under s 90(7).
Section 90 relevantly provides:
90 Use of documents in questioning witness or refreshing memory
…
(7) A previous statement of a witness that is consistent with a witness’s evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.
As Ms Ewing for the Crown submitted, the purpose of s 90(7) is to enable an omission in the evidence to be remedied where the witness has not been able to recall the matter in question but where there is a separate reliable record suggesting they once did. In order to make sense of the provision, the phrase “consistent with a witness’s evidence” as it appears in s 90(7) has not been given the same interpretation as is afforded the same phrase in s 35. Otherwise, s 90(7) could never apply, its function being to fill a gap in the evidence caused by lack of recall. Under s 90(7) the phrase “consistent with the witness’s evidence” has been interpreted broadly as meaning “not inconsistent”.[5]
[5]Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612 at [88] and n 38 discussing Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23; Matthew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [EVA90.7] and n 32; and Simon France (ed) Adams on Criminal Law (online ed Thomson Reuters) at [EA90.11(1)(a)].
As regards the requirement under s 90(7)(a), we consider that was clearly satisfied. The complainant’s evidence about how the statement was taken, its formality and its context — including its proximity in time to the events at issue —provide the necessary reassurance that the information contained in it was reliable.
We are therefore satisfied that the formal police statement was properly admitted under s 35(2) in relation to all the statements in it except for those parts of it dealing with the ear biting and threatening to kill which were admissible under s 90(7). In short, we consider the only error made by the Judge in admitting the evidence was to rely solely on s 35 but that error has not occasioned any risk of a miscarriage.
Was it an error to allow production of the retraction letter?
Ms Drummond submitted the retraction letter should not have been produced because the complainant did not accept its contents.
We consider this argument to be without merit. The production of the retraction letter was done out of a desire to be fair to Mr Body. Its production could only have assisted him, not prejudiced him. Ms Drummond conceded she was not able to point to any specific prejudice. Significantly, she relied on the retraction letter in her closing address.
Was it an error to fail to insist on production of the notebook statement?
Ms Drummond submitted that if the formal police statement and the retraction letter were to be produced, then in fairness so too should have been the notebook statement. Then the jury would have had a complete set of the complainant’s out of court statements.
This argument however overlooks that the notebook statement was already part of the evidence as a result of Ms Drummond’s cross-examination. It only consisted of two or three short sentences. It featured in Ms Drummond’s second cross-examination as well as her first. It was also highlighted in the defence closing. In those circumstances, we do not accept that the failure to give the jury a piece of paper could have impacted on the weight they afforded the notebook statement and hence on the verdict. We note too that Ms Drummond never asked for the notebook statement to be produced.
We therefore reject this ground of appeal.
Did the Judge’s questioning of the complainant unfairly prejudice the defence?
As already mentioned, during Ms Drummond’s second cross-examination of the complainant, Ms Drummond referred to the notebook statement. She quoted from it and elicited the complainant’s acceptance that this must be the most accurate account of what happened. Ms Drummond also got the complainant to confirm her previous evidence that she did not remember the ear biting or the threat to kill and that she could have left when she was in the bedroom. The complainant had previously said in chief that there were other means of egress from the bedroom, other than using the door that Mr Body had barricaded.
The Judge did not allow the prosecution any re-exanimation but proceeded to ask the complainant some questions himself:
QUESTIONS FROM THE COURT:
Q. There is just one thing that I want to just clarify with you and that’s in relation to the time that you were in the bedroom, you have told Ms Drummond that you could have left?
A. Yes, because at that stage it wasn’t as radical as it was later on. I could have left because there were doors there and I never said to myself, go out the door, run. I just stayed in the room. Because I don’t know either way what would have happened, so I took no chances and just stayed.
Q. Right. One of the charges that Mr Body faces is a charge of kidnapping?
A. He never kidnapped me.
Q. Well, that is one of the charges.
A. Okay.
Q. And I want to clarify this with you now while you’re here –
A. Yes.
Q. – with the jury here. And that is why I am asking you these questions in front of the jury.
A. Yes.
Q. One of the charges is a charge of kidnaping (sic), right, that is what he is facing?
A. Yes.
Q. As part of a charge of kidnapping it means to keep someone or to detain them without their consent. So I want to be upfront with you and ask you, were you detained in, and I think I am right Mr McClenaghan, that your case is, in the bedroom, isn’t it?
MR MCCLENAGHAN ADDRESSES THE COURT (12:19:46)- GIVES BRIEF DETAIL. IT WILL BE IN CLOSING SUBMISSIONS
LEGAL DISCUSSION
QUESTIONS FROM THE COURT CONTINUES:
Q. I want to give [the complainant] the opportunity to comment really.
A. I could have left yes. [My son] was still there and I could’ve gone yes.
Q. Right, if [your son], when [your son] wasn’t there did you feel that you could have left?
A. No.
Q. Why not?
A. Because I feared that it would erupt into a fight. So I just had to wait and make sure he went to sleep.
Q. So did you agree to stay after [your son] had left did you agree to stay –
A. Yes I said to [my son] “I’ll stay here.”
Q. Right but once [your son] left did you feel that you could leave?
A. No.
WITNESS EXCUSED
The transcript did not record whether the Judge asked counsel if they had any questions arising from his questions. It has since been confirmed that he did not.
Ms Drummond submitted that in questioning the complainant in the way he did, the Judge had stepped outside the proper role of a trial judge and descended into the arena. She disputed the Crown’s characterisation of the Judge’s questions as open questions that were in the nature of clarification and submitted it had unfairly prejudiced Mr Body. The questions related to the elements of the offence. They had allowed the complainant to change her story and unfairly prevented Mr Body from being able to apply for a discharge on the kidnapping charge.
In Ms Drummond’s submission, the Judge’s intervention, combined with counsel being denied the opportunity to address matters arising, was in itself grounds for allowing the appeal.
We agree the Judge’s questions were not open questions. We also agree the Judge should have afforded both parties an opportunity to ask any questions arising out of his questions as is required by s 100 of the Evidence Act. It was an error not to do so.
However, we do not accept that this error and/or the Judge’s questioning of the complainant warrants appellate intervention.
The Judge’s questioning only elicited evidence the complainant had already given. She had said several times in evidence that although it would physically have been possible for her to leave, because there were two other doors, she had gone into what she had described as survival mode, complying with Mr Body’s wishes and biding her time until she felt she could safely leave. Even if the Judge had not asked any questions, it would not have been possible for Mr Body to have obtained a discharge.
As for the breach of s 100 of the Evidence Act, in order for that ground of appeal to succeed, Ms Drummond would have needed to identify what further questions she would have asked the complainant had she been given the opportunity, questions which if asked could have altered the verdict. Ms Drummond has not done so.
Was the Judge’s comment to the jury about the notebook statement unfair?
During the course of his summing-up, the Judge made this comment:
Is it reasonable that a complainant; is it plausible that a complainant might be expected to give a detailed account of what occurred to a fully uniformed and armed member of the Armed Offenders’ Squad whose main purpose, you might have thought, would have been to have apprehended anyone left in the house.
The comment reflected the complainant’s evidence that at the time of the notebook statement, she was in shock and that she was talking to a man (an armed officer) who had rushed her out of the house. She gave this as an explanation for any discrepancy between the notebook statement and the formal police statement.
On appeal, Ms Drummond submitted that the Judge’s comment unfairly undermined the defence because it was one-sided and minimised the importance of the notebook statement.
Viewed in isolation, the comment might be seen as unwise, unaccompanied as it was by a statement of the defence perspective on the notebook statement. However, the comment must be read in the context of the summing-up as a whole. As noted by Ms Ewing, the summing-up began with the standard reminder that the facts were for the jury and that any contrary view indicated by the Judge should be ignored. Importantly, it also followed a lengthy and neutral summary of the complainant’s various statements and the conclusions, including conclusions favourable to the defence, that the jury might draw from them.
We are not persuaded the impugned comment would have had any impact on the jury’s verdict.
Outcome
We are satisfied that none of the grounds of appeal whether viewed collectively or individually warrants appellate intervention.
The appeal against conviction is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent