Cammock v Police

[2013] NZHC 547

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-0039 [2013] NZHC 547

BETWEEN  DARREL ALEXANDER CAMMOCK Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 March 2013

Appearances: M D Talbot for Appellant

K R L Guthrie for Respondent

Judgment:      20 March 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 20 March 2013 at 2 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Talbot Law, Hamilton: [email protected]

Almao Douch, Crown Solicitor, Hamilton:  [email protected]

CAMMOCK V POLICE HC HAM CRI-2012-419-0039 [20 March 2013]

Introduction

[1]      The Appellant appeals against his conviction for assault following a defended hearing before Judge D C Ruth in the District Court at Hamilton on 22 and 25 May

2012.1

[2]      The Appellant appeals on two grounds.  The first is that the Judge erred in declining to admit evidence which the Appellant sought to adduce in support of his defence.   The second  ground is that the evidence the prosecution adduced was insufficient to support the charge.  The Appellant’s case on this ground is that the Judge placed insufficient weight on the complainant’s retractions of earlier allegations.

Background

[3]      The charge arose from an incident said to have occurred on 18 September

2011.  The complainant is the Appellant’s son.   He and the Appellant’s other son, who  is  the  complainant’s   younger  brother  (“brother”),  were  staying  at  the Appellant’s house that weekend.

[4]      The gist of the allegation was that the Appellant had choked the complainant on three separate occasions during a short period on the Sunday afternoon, and that the Appellant had also applied pressure to the complainant’s forehead, and pushed, hit, slapped and raised a fist to the complainant.

[5]      At the trial the witnesses for the prosecution were the complainant and his mother. The witnesses for the defence were the Appellant and his partner.

[6]      A DVD  of  an  evidential  interview  of  the  complainant  was  played,  that interview having been carried out by a specialist child interviewer.  The complainant

also gave further evidence in chief, and was cross examined and re-examined.

1 Police v Cammock DC Hamilton CRI-2011-019-7689, 25 May 2012.

[7]      The complainant’s mother’s evidence was to the effect that the complainant was crying and upset when he returned from the Appellant’s house.  She also gave evidence that the Appellant denied the allegations when she spoke to him.  Both the complainant and his mother gave evidence of a subsequent conversation between the Appellant and the complainant at McDonald’s.  The complainant’s account was that the Appellant told him to tell the Police that the incident was “all a joke”.

[8]      At the conclusion of the prosecution case, the Judge was not satisfied there was evidence of intent to injure and he amended the charge from assault with intent to injure to assault.

[9]      For  his  part,  the Appellant  acknowledged  that  there  was  some  physical contact between the two, involving the Appellant tapping the complainant on the head to emphasise a point.  The Judge said that he did not regard such an action to be sufficient by itself to constitute an assault for the purposes of the hearing.2     The Appellant otherwise denied all of the actions attributed to him.   The Appellant’s account of the conversation at McDonald’s referred to above was that he told the complainant to tell the truth.

[10]     The gist of the evidence of the Appellant’s partner was that she recalled

nothing out of the ordinary that weekend.

[11]      The Judge found the choking allegation, but not the punching or slapping, proved beyond reasonable doubt and he convicted the Appellant of assault.3    The Judge rejected the Appellant’s denials out of hand.  The Judge said that he was “in no doubt” that the complainant understood he was to tell the truth, and that the complainant understood the difference between the truth and a lie.  The Judge said the  complainant  was  articulate,  intelligent  and  insightful  and  he  rejected  the

possibility that the complainant had made up and maintained a story from September

2011 to the date of the hearing.4

2 Ibid, at [6].

3 Ibid, at [60] and [69].

4 Ibid.

[12]     The Judge was impressed by the complainant as a witness.  He said:

[25]    ... In general it can be said that under cross-examination [the complainant] was prepared to accept that he had difficulty remembering some matters, they now being some time ago and agreed at one point that he might be mistaken about the choking and that he might have been mistaken about the punching and hitting but was not quite sure. However later in the cross-examination [the complainant] then reiterated that he was not mistaken about the choking actually having happened.

[26]     Under re-examination [the complainant] confirmed that he was not mistaken about the choking at that that had happened but was now having difficulty remembering just how hard the choking action was.

Grounds of appeal

Retractions

[13]     I first address the Appellant’s second ground of appeal, namely that the Judge placed insufficient weight on evidence by the complainant recanting or retracting earlier allegations.

[14]     As I understand it, the retractions relied upon are these.   First, initially the complainant  said  that  the  Appellant  had  choked  him  for  30  seconds  on  each occasion.   At  trial the  complainant reduced  the time to 10  seconds.    Secondly, although initially he had said he was choked whilst walking to the bathroom, at trial the complainant said that he was not in fact walking at the time.

[15]     The Judge took the reduction in the time estimate as an indication that the complainant was not willing for something to go before the Court that he realised was incorrect, and that he considered the complainant to be a truthful and honest witness who was unwilling to embellish his evidence.  Whether the complainant said he was walking to the bathroom at the time, and later said he had paused en route, is immaterial in my view. That change was not significant.

[16]     The Appellant also relies upon an absence of marks on the complainant as indicating no assault took place.   That evidence is relevant, but could not be determinative.

[17]     As I have said, the Judge was impressed by the complainant as a witness. Although  the  Judge  did  not  find  the  slapping  and  punching  proved  beyond reasonable doubt he said the position would have been different if he had been asked to decide on the balance of probabilities.

[18]     The Judge had the benefit of hearing each witness.  I do not propose to go behind his clear finding as to credibility and I dismiss this ground of appeal.

Evidence

[19]     Counsel for the Appellant sought a pre-trial ruling from the Judge regarding expert evidence the Appellant sought to adduce at trial.  The Judge declined to admit the evidence.5     The Appellant submits that the Judge erred in doing so.   For the reasons set out below, I am not satisfied that the Judge made any error.   For that reason, it is unnecessary for me to consider whether the exclusion of the evidence might have rendered the conviction unsafe.

[20]     The Appellant sought a ruling permitting the Appellant to adduce expert evidence from a consultant clinical psychologist, Ms T Breen.  I have read a report that Ms Breen prepared in advance of the District Court trial, and her evidence to the Court was intended to be as set out in the report, or very similar.  It is evident from the report that Ms Breen had been asked to review the DVD of the interview of the complainant and a DVD of an interview of the brother.  It is common ground that the brother’s evidence was unreliable and the prosecution did not propose to call the brother to give evidence at trial.

[21]     Ms Breen’s opinion was that, taken on its own, the complainant’s account could be considered plausible, but that viewed with the brother’s DVD it would appear less so.  For instance both boys referred to their father “needing help” and the fact that access arrangements would change if they moved with their mother to another city.   It is implicit in the report that Ms Breen considered the boys might have been using words that their mother had used and that they might have been

“coached” or influenced by her in some way.  Ms Breen’s view was that there was an

5 Police v Cammock DC Hamilton CRI-2011-019-7689, 9 May 2012.

increased likelihood that the finder of fact might doubt the complainant’s account if the DVD of the brother’s interview was played at trial.

[22]     Although counsel for the Appellant sought a ruling only in relation to the expert evidence, it was an essential part of the application that the DVD of the brother’s interview would be played, so that comparisons could be made.  To this end, counsel for the Appellant and a Police prosecutor had agreed that the DVD of the brother’s interview could be admitted by agreement, pursuant to s 9(1) Evidence Act 2006 (“Act”), without the Appellant being required to call the brother as a witness.

[23]     In his ruling, the Judge stated that the Appellant would have to call the brother as a witness if the DVD of his interview were to be adduced as evidence at trial and that it was a matter for the Appellant if he wished to do so.  The Judge was not willing to admit the DVD of the brother’s interview as evidence in the absence of his being called to give evidence.

[24]     The Judge ruled out Ms Breen’s evidence for two reasons.  First, her evidence would be in breach of s 37(4) of the Act, being called to impeach the brother’s evidence  (if  he  were  called).    Secondly,  the  Judge  said  the  expert  evidence constituted an intrusion on a matter reserved entirely to the finder of fact, being the credibility of a witness.

[25]     The Appellant submits that the Judge erred in refusing to allow the DVD to be played at trial without the brother being called as a witness and that the Judge erred in refusing to admit the expert evidence.

[26]     For the following reasons, which are not given in any particular order, I am not satisfied that the Judge erred in any respect.

[27]     First, a Judge retains a discretion to decline to admit evidence, whatever the parties may have agreed.  Section 9(1) provides that the Judge “may” admit evidence pursuant to an agreement between the parties, not “must”.  In addition, the Court has previously held that the Judge has an obligation to ensure a fair trial and that any

agreement  the  parties  may  reach  is  subject  to  that  obligation.6    If  the  Judge determines that, to proceed as the parties have agreed might jeopardise a fair trial, then the evidence should not be admitted.  In this case the brother was available to give evidence.  The DVD interview was not to be played for the truth of its content but for entirely the opposite reason.  I have reservations as to whether the DVD of the interview could be considered evidence or relevant evidence in the context of the trial  of  the  Appellant,  given  the  purpose  for  which  it  was  to  be  adduced. Nonetheless, had the DVD interview been played as the parties had  agreed, no questions could have been put to the brother, including questions from the Judge.  I consider that a factor any Judge might take into account when deciding whether or not to admit evidence that is the subject of an agreement by the parties.

[28]     Secondly, however it might have been presented to the court, the purpose of the expert evidence was to attack the complainant’s credibility and/or reliability. Section 37(1) of the Act reads as follows:

37       Veracity rules

(1)       A party may not offer evidence in a civil or criminal proceeding about a person's veracity unless the evidence is substantially helpful in assessing that person's veracity.

[29]     In addition, s 25(1) of the Act is relevant because it sets out the circumstances in which an opinion by an expert is admissible.  Section 25(1) reads as follows:

25       Admissibility of expert opinion evidence

(1)       An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

[30]     Both ss 25(1) and 37(1) require the proposed evidence to be “substantially helpful”.  Quite clearly, the Judge did not consider he would obtain substantial help from Ms Breen’s evidence.  In my view, that was a conclusion that was open to the Judge.  The assessment of the credibility and reliability of a witness is reserved for

the finder of fact and there was nothing unusual in this case which meant expert evidence would assist.

[31]     I make one further point regarding comments that the Judge made in his ruling, to the effect that s 9(1) of the Act was never intended to be put to the use proposed by the Appellant.  In particular, the Judge said that s 9(1):7

... is really designed for those situations where a defendant accepts certain factual propositions and does not seek to put the prosecuting authority to proof ... Subsection (1) deals with evidence that otherwise would not be admissible,  that  cannot  be  said  about  [the  brother]  on  the  face  of  it. Subsection (1)(b) talks about evidence being offered in any form and this may be what Sergeant Morrison was trying to achieve.  However, the more usual use of that subsection would be to admit perhaps in written form the evidence which would otherwise have been given orally.

[32]     On appeal, counsel for the Appellant was critical of the Judge’s comments in this respect.  It is unnecessary for me to express a view as to whether there is any limitation in the use of s 9(1) other than those expressed in the provision itself.  I am satisfied that the decisions the Judge made as to evidence were open to him on the express words of the Act.

[33]     I dismiss this appeal for the reasons given.

..................................................................

M Peters J