Carhuamaca v Police

[2018] NZHC 3206

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2018-419-0052

[2018] NZHC 3206

BETWEEN

JIMMY OMAR HUZCO CARHUAMACA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 December 2018
Appearances:	MLA Wright for the Appellant L C Hann for the Respondent
Judgment:	6 December 2018

ORAL JUDGMENT OF JAGOSE J

Solicitors:

Rae & Wright Limited, Morrinsville Almao Douch, Hamilton

CARHUAMACA v NEW ZEALAND POLICE [2018] NZHC 3206 [6 December 2018]

[1]                 On 22 June 2018 the appellant, Jimmy Huzco-Carhuamaca, was convicted of four charges of violence in a domestic setting, following a five-day judge-alone trial in the District Court in Hamilton.1 He has since been sentenced to six months’ home detention.

[2]                 Jimmy now appeals against his conviction on those charges, essentially arguing the Judge failed to give proper weight to inconsistencies in the complainant’s account, and to the corroboration of Mr Huzco-Carhuamaca’s account provided by audio recordings of conversations between him and the complainant.

The alleged incidents of domestic violence

[3]                 The charges relate to four separate incidents of violent or threatening behaviour alleged to have occurred between January and October 2017.

[4]                 Mr Huzco-Carhuamaca and the complainant are Peruvian, and emigrated to New Zealand in October 2011 and January 2013 respectively. Shortly after the complainant’s arrival, in January 2014, they married and had a child later that year. Their relationship quickly became dysfunctional. As the Judge found, it was:2

… plainly deteriorating with neither able to emotionally support the other well. Arguments seem to have been regular and genuine communications between them seem absent other than about the day-to-day practicalities. This presumably was painful and sad for both of them.

[5]                 Perhaps in strong illustration of this dysfunction, Mr Huzco-Carhuamaca had a habit of overtly and covertly recording the complainant, even covertly filming within the house. He was not alone in that. The complainant also recorded some of their interaction. This is how a number of audio recordings of the alleged incidents were able to be provided to the Court.

1      Police v Huzco-Carhuamaca [2018] NZDC 15727.

2 At [11].

—first charge: injuring with intent to injure

[6]                 The first charge, injuring with intent to injure,3 related to offending which, it transpired at trial, likely occurred in early January 2017. The complainant’s evidence was she was in a room with her daughter when Mr Huzco-Carhuamaca entered, annoyed, and asked her to give him her phone. He believed the complainant was talking to someone else. When the complainant refused, Mr Huzco-Carhuamaca kicked her wrist.

[7]                 It was not disputed by the defence the complainant had an injury to her wrist. However, Mr Huzco-Carhuamaca’s evidence was this incident did not happen, and the complainant had an underlying injury she had sustained in Peru which was aggravated when her daughter kicked her wrist.

[8]The Judge found this charge proven and entered a conviction.

—second charge: injuring with intent to injure or male assaults female

[9]                 The second charge, injuring with intent to injure or alternatively male assaults female,4 arose out of an argument between the complainant and Mr Huzco- Carhuamaca on 10 April 2017. The complainant’s evidence was that on the morning in question, she was preparing to take her daughter to playschool. Because Mr Huzco- Carhuamaca was at home that day, she asked if he wanted to come with her. He said he did not. An argument appears to have broken out about the keys to the car, and the complainant said Mr Huzco-Carhuamaca pushed her against the wall and started choking her. She said this lasted for about a minute. She said after this, she did not leave the house for 15 days because of bruising to her neck.

[10]             Mr Huzco-Carhuamaca acknowledged that there had been an argument over keys about this time, but gave evidence it occurred in a very different context. His evidence was he wanted the car to go to the library on 10 April 2017, because he had a paper due in a course he was participating in. He said the complainant bit him,

3      Crimes Act 1961, s 189(2).

4      Section 194.

grabbed his arm, and that he had merely fended her off. He said he eventually removed the keys without touching her, and his efforts at reasoning with her were unsuccessful.

[11]             Because of an inconsistency between the complainant’s evidence about leaving the house, and evidence she had attended an Easter church service on 11 April 2017, the Judge did not accept the evidence choking had occurred. However, overall she preferred the complainant’s evidence that an assault had occurred and entered a conviction for male assaults female.

—third charge: male assaults female

[12]             The third charge, male assaults female, related to an argument which occurred on 5 October 2017. The complainant found messages in Mr Huzco-Carhuamaca’s phone suggesting he had been communicating with another woman, named Melissa. The complainant contacted this woman, which according to the complainant made Mr Huzco-Carhuamaca furious. He wanted to know why she had contacted Melissa, and she wanted to know what his relationship with her was. The complainant said she was pushed to the floor by Mr Huzco-Carhuamaca, leaving her unconscious for a time. She said the side of her face was bruised and swollen, and she felt a punch or kick to her back.

[13]             Mr Huzco-Carhuamaca also did not deny this argument occurred. However, his evidence was the complainant knocked his phone away, and during a struggle for the phone she fell on the ground and hit her face. He denied hitting the complainant, and denied that she became unconscious.

[14]             The Judge accepted that the complainant’s account was credible, and her evidence provided a cogent explanation for bruises observed by others and visible in photographs taken the following day. She found Mr Huzco-Carhuamaca’s evidence was not accurate or cogent; neither did it raise a reasonable doubt.

—fourth charge – threatening to kill

[15]             The final charge of threatening to kill,5 related to an interaction shortly after, on 8 October 2017. The complainant’s evidence was Mr Huzco-Carhuamaca arrived at the house with an associate who she had not met and offered her some cake which he had made to ask for forgiveness. She refused, because she was not prepared to forgive him. At that point, she said that Mr Huzco-Carhuamaca threatened to kill her. She believed Mr Huzco-Carhuamaca had brought his associate with him in order to intimidate her.

[16]             Mr Huzco-Carhuamaca also acknowledged this interaction took place. However, he denied there being any threat. His evidence was he simply baked a cake and invited his friend over.

[17]             The Judge accepted the complainant’s evidence this threat was made and, in context, would have made the complainant feel very intimidated. She pointed out that the following day the complainant left the house to live with two close relatives who also gave evidence, Carlos Garces-Manoz and Yakson Garces. She also entered a conviction on this charge.

Approach

[18]             Mr Huzco-Carhuamaca’s counsel, Matthew Wright, points to a number of errors in the Judge’s approach which he submits have given rise to a miscarriage of justice. He painstakingly contends line-by-line for inconsistencies in the evidence which the Judge should have resolved in Mr Huzco-Carhuamaca’s favour, and reinforces that by a paragraph-by-paragraph dissection of the Judge’s decision.

[19]             By miscarriage of justice, Mr Wright means – if I am satisfied any of these errors are made out, and there is a “real risk” the outcome of the trial was affected: “a reasonable possibility that a not guilty (or more favourable) verdict might have been

5      Section 306.

delivered if nothing had gone wrong” – I must allow the appeal.6 Otherwise I must dismiss the appeal.7

[20]             I am to make my own assessment of the facts, independently of those found by the Judge (with appropriate deference for her advantage in seeing and hearing witnesses give evidence).8 But that is a review function: that I might disagree with the Judge’s factual assessment is not enough – “[s]omething more is required to meet the ‘real risk’ test”.9

[21]             Last, Mr Huzco-Carhuamaca must persuade me a miscarriage of justice occurred.10

Did the Judge err?

—argument on appeal

[22]             As I have said, numerous specific errors in relation to the Judge’s findings on each charge are advanced.

[23]             I mean no disrespect for Mr Wright’s industry by reducing his submissions to these two central allegations:

(a)the Judge placed insufficient weight on important inconsistencies in the complainant’s evidence, which ought to have led her to the conclusion the complainant’s evidence was not reliable or credible; and

(b)the Judge did not give proper weight to the transcripts of Mr Huzco- Carhuamaca’s audio recordings, which corroborated important aspects of his evidence.

6      Criminal Procedure Act 2011, s 232(2); Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [27], adopting Tipping J’s formulation in R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

7      Section 232(3).

8      Austin Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

9      Sena v Police [2018] NZCA 203 at [9].

10     Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].

—my analysis

[24]             The Judge delivered a comprehensive oral judgment which contained a detailed analysis of the vital evidence in respect of each charge.

[25]             There is little doubt the complainant and Mr Huzco-Carhuamaca were in a fraught relationship, involving elements of domestic violence. That much is clear from the transcripts of recordings made by Mr Huzco-Carhuamaca, as well as the consensus between the complainant and Mr Huzco-Carhuamaca that many of the arguments preceding the incidents of domestic violence did occur. There was also evidence from Mr Garces-Manoz and Mr Garces, who the Judge accepted were credible and reliable witnesses, of an incident involving Mr Huzco-Carhuamaca pushing the complainant hard against a wall and letting air out of the tyres of the car she was using.

[26]             It was necessary for the Judge to assess the complainant’s credibility in that context. Plainly, she did so, and was satisfied the complainant was a credible victim of domestic violence. For example, she found:11

… presenting normally can be behaviour which is not inconsistent with having been a victim of an assault. Common knowledge is that victims of assaults, violence and domestic violence go to significant lengths to hide and deny their situation and so, whilst alive to the possibility, I do not conclude [the complainant’s decision to leave the house following one attack] was inconsistent with having been the subject of an assault.

Later the Judge found there was nothing in the fact the complainant did not tell Mr Garces-Manoz and Mr Garces of the assaults at the time, because it is not inconsistent for victims of domestic violence to hide abuse from friends and family.12

[27]             These findings are unassailable. The Judge was right to view the challenges to the complainant’s evidence in light of the domestic violence context of the offending. Moreover, as the Judge concluded, the complainant presented as a largely accurate witness in respect of the critical events, with one exception. She also found the complainant appeared distressed at having to recount certain events.13 Other than her inconsistency in relation to the choking event, which the Judge found did not reduce

11 At [8].

12 At [70].

13 At [7].

the value or credibility of her other evidence and which I deal with shortly, the Judge considered the complainant’s evidence to be cogent and reliable.14 In arriving at this conclusion, I do not downplay the benefit the Judge had of hearing the evidence over five days, including the two full days the complainant spent giving evidence.

[28]             The most significant inconsistency in the complainant’s account was her evidence, after the choking incident, she did not leave the house for 15 days because of significant bruising. However, the Judge was alive to this inconsistency. It led her to find the alternative to charge two, male assaults female, proved, rather than the more serious charge of injuring with intent to injure.15 She was not satisfied beyond reasonable doubt the choking occurred, but she was so satisfied of at least an assault.

[29]             I see no error in the Judge’s conclusion this inconsistency did not affect the complainant’s credibility more broadly. The complainant otherwise presenting as a credible and reliable witness, and her account was corroborated in a number of ways. Additionally to the evidence of Mr Garces-Manoz and Mr Garces, there was evidence from others in the complainant’s social circle, including a Ms Dibble, who gave evidence she had observed bruising on the complainant on earlier occasions. The complainant’s employer, Ms Voyce, also observed bruising, and it was she who eventually called Women’s Refuge at the end of November 2017. Ms Voyce maintained her observations under cross-examination. A number of prior consistent statements of the complainant, alleging assaults by Mr Huzco-Carhuamaca, appear in the transcripts of the audio recordings he made.

[30]             And, aside from the inconsistency just discussed, the inconsistencies pointed to by Mr Wright all concern peripheral matters which do not impugn the complainant’s credibility in a fundamental way. For example, in relation to the first charge, Mr Wright submitted the complainant retracted her statement in a police interview that her wrist was bruised black after the assault during her evidence in court. She also had told police the reason her wrist was not black by the time she visited the doctor, a number of days later, was because Mr Huzco-Carhuamaca gave her bruising cream. Her evidence in court was her wrist was not black, and the cream was for pain not

14 At [8].

15     At [69]-, [71].

bruising. Few conclusions can be drawn about the complainant’s credibility from this retraction, which may in any event be explicable by the fact all evidence given in court was through translators, and English is not the complainant’s first language. More importantly, it was not in dispute the complainant’s wrist was injured, or the argument described by her occurred. Mr Garces-Manoz and Mr Garces gave evidence the complainant could not carry her child or cook meals for a time.

[31]             Another challenge made to the complainant’s credibility relates to charge three. Mr Wright submits the audio recording reveals the complainant telling Mr Huzco- Carhuamaca she is “well advised” she could obtain residency if she reported Mr Huzco-Carhuamaca, which she denied during cross-examination. This submission is misconceived. As the Judge correctly noted, the complainant’s claim she was well advised related to advice she had received she was a victim of family violence. She rejected trial counsel’s assertion in cross-examination she told Mr Huzco-Carhuamaca she was “well advised and could obtain residency that way”.

[32]             By contrast, the Judge found Mr Huzco-Carhuamaca was forceful and careful as a witness, and failed to reveal any insight into his habit of covertly recording and filming within the house.16 She commented his evidence was unsettling, often including self-serving positives and leaving out the negatives.17 The Judge had good reason to reject the evidence of Mr Huzco-Carhuamaca. Particular explanations given by him were implausible, such as his explanation their infant daughter kicked the complainant’s wrist with sufficient strength to cause the injury described in the evidence. Moreover, his evidence was inconsistent with other evidence the Judge found compelling.

[33]             The Judge also concluded, having admitted the transcripts of recordings made by Mr Huzco-Carhuamaca into evidence, little weight could be placed on them. As fact-finder, she was entitled to place whatever weight on them she considered was appropriate. The Judge found the transcripts covered only portions of conversations between the complainant and Mr Huzco-Carhuamaca. She noted, because Mr Huzco- Carhuamaca knew when conversations were being recorded, an inference was

16 At [14].

17 At [21].

available he subconsciously or deliberately captured self-serving statements and behaviour.18 She gave examples of that.19

[34]             Having reviewed the transcripts myself, I agree this inference is clearly available. Moreover, the transcript of the conversation where Mr Huzco-Carhuamaca’s associate is present in particular appears to be in two parts, as the Judge found, and the start and end points of the transcript are not explained. Overall, I agree the recordings are largely unhelpful, and at times appear contrived and incomplete.

[35]             For those reasons, I am not satisfied any of the contended ‘errors’ are made out. Even if there was room for a different view on some facts, I cannot identify any real risk a different outcome might have resulted. Certainly there is no reasonable possibility of not guilty verdicts. No miscarriage of justice has occurred.

Result

[36]The appeal against conviction is dismissed.

—Jagose J

18 At [15].

19     Eg, at [44].