Church v Police
[2019] NZHC 38
•30 January 2019
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2018-406-9
[2019] NZHC 38
GRAHAM DONALD CHURCH v
NEW ZEALAND POLICE
Hearing: 18 December 2018 Appearances:
F M Kelly for the Appellant
J W Cameron for the Respondent
Judgment:
30 January 2019
JUDGMENT OF CULL J
[1] On 2 August 2018, Mr Church was convicted of one charge of assault following a judge-alone trial before Judge S J O’Driscoll.1 He was later sentenced on 18 September 2018 by the Judge to a $400 fine and reparation of $800.2
[2] Mr Church appeals his conviction on five grounds. Ms Kelly, counsel for Mr Church, broadly submits the Judge erred by rejecting Mr Church’s testimony, unfairly favouring and not appropriately considering the inconsistencies in the prosecution’s witnesses, displaying bias towards Mr Church and not following proper process during the trial. Mr Church argues these errors denied him a fair trial, led to a miscarriage of
1 New Zealand Police v Church [2018] NZDC 16052 [Conviction decision].
2 New Zealand Police v Church [2018] NZDC 19720 [Sentencing decision].
CHURCH v NEW ZEALAND POLICE [2019] NZHC 38 [30 January 2019]
justice and an unsafe conviction. Mr Church also applies for leave to appeal out of time, having filed his notice to appeal four working days out of time.
[3] The Crown opposes the appeal. Mr Cameron, for the Crown, submits the trial Judge was faced with a variety of disputed matters and rightly focused on the factual allegations that supported the elements of the offence. He found corroboration on those matters and, the Crown submits, entered a safe conviction.
[4] The key issue is whether any of the alleged errors pleaded by Mr Church caused a miscarriage of justice, namely, whether there was a real risk that the outcome was affected or that there was an unfair trial.
Factual background
[5] The summary of facts alleges that on 23 April 2017 Mr Church assaulted the victim, Mr Holmes. Both men were riding on their quad bikes and met as Mr Holmes was coming up from the beach at Kekerengu South, in Marlborough. Mr Church allegedly began abusing Mr Holmes over an existing neighbourhood dispute and then punched Mr Holmes once in the head while he had turned his head away. Mr Holmes was knocked backwards onto his bike and then tried to defend himself when Mr Church allegedly punched him again in the head. The assault stopped when a neighbour intervened.
[6] Mr Holmes suffered several loosened and knocked-out teeth, a black eye, swelling and redness to the left side of his face. Mr Church was charged with assault with intent to injure.
[7] There was a history of animosity between Mr Church and Mr Holmes. There have been several previous incidents among Mr Church, Mr Holmes and Ms Ratter (Mr Holmes’ girlfriend), who are all neighbours. As Mr Church describes it, the incidents have included Ms Ratter’s dog attacking Mr Church’s dog, Mr Church allegedly being physically attacked by Ms Ratter, Ms Ratter presenting Mr Church with a trespass notice (and Mr Holmes filming this) and the police subsequently getting involved.
[8] Mr Church is now 65 years old and has 14 previous convictions, the most recent of which is from 1984.
District Court decision
[9] The Judge set out the elements of the charge, burden of proof and the cases for the prosecution and defence.3 The prosecution case is as set out above. The defence case was that Mr Church was waved down by Mr Holmes and then Mr Holmes attempted to drag Mr Church off his bike. They then both fell backwards onto the ground, got up and then when Mr Holmes went to punch Mr Church, Mr Church punched him twice in self-defence.
[10] The Judge identified that the “real issue” was “who did what”,4 and there were conflicts in the evidence between the complainant and Mr Church. In terms of legal issues, the Judge identified he needed to consider whether the prosecution excluded self-defence beyond reasonable doubt and whether, if yes, the prosecution has proved the elements of the charge beyond reasonable doubt.5
[11] There were four prosecution witnesses: Mr Holmes, Mr and Mrs Abrams (eyewitnesses) and Constable Mackenzie (the officer in charge). The Judge summarised their evidence. When cross-examined, Mr Holmes rejected Mr Church’s version of events.
[12] Mrs Abrams said she was in her house across the road from the incident when she saw Mr Church pull over, grab Mr Holmes and punch him on the left side of his face. She grabbed the phone and called out to her husband. She saw Mr Church trying to get Mr Holmes off his bike, then her husband arrived. She did not see either man on the ground.
[13] Mr Abrams said his wife called out to him, then he put on his shoes and went to the scene. He saw two men restraining each other. Mr Holmes was on his quad
3 Conviction decision, above n 1.
4 At [12].
5 At [14].
bike and Mr Church was standing over him. All he saw was mutual grabbing by both parties and did not see any punches.
[14] Constable Mackenzie said that Mr Church did not give a DVD or written statement. He said Mr Church categorised the incident as a fight and the injuries were likely caused when Mr Holmes fell off his bike.
[15] In summarising Mr Church’s evidence, the Judge observed that a number of earlier incidents had occurred involving Mr and Mrs Abrams, Mr Holmes and Ms Ratter. Mr Church was intending to go to the store on the day of the incident. He pulled in beside Mr Holmes who had waved to him and a yelling match occurred. He said Mr Holmes grabbed him and they were wrestling with each other. Mr Holmes tried to pull him off his bike, Mr Church fell on top of him and when Mr Holmes landed on the ground he hit his head. Mr Holmes looked like he was going to punch Mr Church so he hit him twice. They were standing. Then Mr Abrams arrived.
[16]The Judge made several observations in relation to the competing evidence:
(a)the timing of the incident was on 23 April 2017, and the evidence was heard over a year later on 1 August 2018;
(b)not all witnesses saw and heard everything that occurred (the Abrams);
(c)caution must be exercised over the evidence;
(d)there were a number of conflicts in the evidence such as (what injury was caused and the locations of the quad bikes) that are incidental to what the Judge needed to decide;
(e)there has been a background of a “long and deep-seated division between various parties who have lived in this small neighbour area”;6
6 Conviction decision, above n 1, at [28].
(f)there are usually two sides to every story and the Judge had heard suggestions that some witnesses may have colluded in their evidence;
(g)while the defence did cross-examine a number of prosecution witnesses on past events to attempt to establish a lack of credibility, this is also a double-edged sword and those past events may reflect on the credibility of the defendant; and
(h)witnesses can reconstruct past events and the Judge considered the likelihood and plausibility of events occurring in the way suggested by witnesses.
[17] The Judge rejected Mr Church’s self-defence claim.7 He found that Mr Church did not honestly believe he was about to be hit by Mr Holmes; Mr Church used this chance encounter to vent his anger and frustration on Mr Holmes when he came across him. The Judge did not accept Mr Church’s version of events and observed that Mr Church has attempted to justify his actions, embellish Mr Holmes’ role and minimise his own. The Judge rejected Mr Church’s evidence about the timing of the incident, how the punches occurred and whether they fell onto the ground.
[18] The Judge accepted the evidence of Mrs and Mr Abrams and considered this evidence was consistent with Mr Holmes’ testimony and version of events. No witnesses saw Mr Church on top of Mr Holmes on the ground. Although the Judge accepted that none of the witnesses saw everything, Mrs Abrams was still watching and saw her husband approach; she had every reason to watch and observe what took place. The Judge found there was no collusion by Mr and Mrs Abrams.
[19] The Judge found Mr Holmes was a reliable, honest and credible witness. He was upset at times while being cross-examined because his version of events was being challenged. The Judge did not accept that Mr Holmes would have waved down Mr Church as he wanted nothing to do with him.
7 Conviction decision, above n 1, at [49].
[20] Although Mr Church was charged with assault with intent to injure, the Judge amended this to a charge of common assault.8 He found Mr Church guilty of assault beyond reasonable doubt as he was satisfied there was an intentional application of force by Mr Church to Mr Holmes. He could not, however, be satisfied Mr Church had an intent to injure. The Judge observed he suspected “that this occurred really out of frustration between the parties”.9
[21]On 18 September 2018, the Judge sentenced Mr Church to a $400 fine and
$800 reparation, to be paid at a rate of $50 per week.10 The reparation was ordered to cover the remaining cost of Mr Holmes’ dental treatment following the incident. The Judge also ordered Mr Church to pay Court costs. As Mr Church had not received a conviction since 1984, the Judge treated him as a first-time offender.
Leave to appeal out of time
[22] Mr Church filed his appeal four working days late and seeks leave to appeal out of time. Ms Kelly explains Mr Church has not received legal aid and he lives in the South Island but has had to instruct a lawyer in the Wairarapa who is currently undertaking the work on a pro bono basis. She explains that the delay was caused because Mr Church was away post sentencing and she had difficulty obtaining instructions in time.
[23] A notice of appeal against sentence must be filed within 20 working days after the date of the sentence appealed against.11 The appeal Court may, at any time, however, extend the time allowed for filing a notice of appeal.12 The touchstone for granting an application to extend time is the interests of justice in a particular case.13 This requires the wider interests of society in the finality of decisions to be balanced against the interests of the individual applicant in having the conviction (and sentence) reviewed. There are a variety of considerations relevant to the interests of justice,
8 Crimes Act 1961, s 196. Maximum penalty is one year’s imprisonment.
9 Conviction decision, above n 1, at [52].
10 Sentencing decision, above n 2, at [13].
11 Criminal Procedure Act 2011, s 248(2).
12 Section 248(4).
13 R v Knight [1998] 1 NZLR 583 (CA) at 587, which was confirmed in R v Lee [2006] 3 NZLR 42 (CA) at [95]–[107].
including the length and reason for the delay, the strength of the proposed appeal and the public interest in the finality of decisions.14
[24] I am granting leave to file a notice of appeal out of time because I consider it is in the interests of justice to do so in these circumstances. There was a very short delay in filing and Mr Church should not be barred from filing his appeal because of minor delays in giving instructions to counsel and dealing with issues of funding.
Approach to appeal
[25] An appeal against conviction in a judge-alone trial is a general appeal. This appeal is governed by s 232 of the Criminal Procedure Act 2011. Therefore, the appellant must satisfy the Court that a miscarriage of justice has occurred, either because “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or for any other reason.15 A miscarriage of justice is “any error, irregularity, or occurrence” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.16 As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.17
[26] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness.18 In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair.”19 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.20
14 Isherwood v R [2010] NZCA 347 at [16].
15 Criminal Procedure Act 2011, s 232(2).
16 Section 232(4).
17 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
18 Mann v New Zealand Police [2015] NZHC 588 at [9].
19 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
20 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the Supreme Court in Condon v R, above n 19, at [78].
Grounds of appeal
[27] Mr Church appeals his conviction on five grounds. He submits the Judge erred by:
(a)finding Mr Church did not act in self-defence and rejecting his testimony on this point;
(b)not considering the inconsistencies between the prosecution witnesses and failing to take a cautious view in respect of their credibility and reliability;
(c)erred in law by making a negative inference from Mr Church’s decision to refrain from making a statement to police upon his arrest;
(d)unfairly restricting defence counsel in cross-examination of the complainant and other witnesses; and
(e)the Judge displayed bias against Mr Church.
[28] These grounds, and the parties’ positions in relation to each, are discussed below.
Grounds 1 and 2: Competing cases and witness testimony
[29] The first two appeal grounds allege the Judge erred in not preferring Mr Church’s testimony and his self-defence claim over the prosecution witnesses.
Mr Church’s position
[30] Mr Church submits that the Judge, having heard full and cogent testimony from Mr Church that he acted in self-defence, could not rightly convict him beyond reasonable doubt. Further, he submits that the Judge did not give proper attention to the multiple inconsistencies among the four eyewitnesses’ accounts of the alleged offending. Given the history of animosity between Mr Church and these witnesses,
he submits the Judge should have adopted a more cautious view of the credibility, reliability and veracity of the prosecution evidence.
[31] The key inconsistencies and issues that Mr Church points to in the evidence of the prosecution witnesses are:
(a)Mrs Abrams stated she had not met Mr Holmes prior to the incident, when this was incorrect.
(b)Mrs Abrams acknowledged she had less than perfect vision when she saw the incident through a window of her house about 100 metres from where the men were positioned. She was also vague in being able to describe where the men or quad bikes were. Mrs Abrams said that Mr Church pulled up beside Mr Holmes on his left, but this is at odds with both Mr Church’s and Mr Holmes’ evidence that Mr Church pulled up on the right side of Mr Holmes. Mr Church submits she may have, therefore, attributed the punch to the wrong man and her evidence is unreliable.
(c)Mrs Abrams testified that Mr Holmes remained sitting on his bike throughout the incident. This is contradicted by the evidence of Mr Church and Mr Holmes that the latter got off his bike at one point.
(d)Mrs Abrams also incorrectly recalled the injuries Mr Holmes suffered. She described a cut to his foot, but she said he had not fallen off his bike and nothing in her account could explain this injury.
(e)After the incident, Mr and Mrs Abrams discussed the incident for around two hours, following which they made separate statements. Mrs Abrams, however, denies that her husband crafted her statement.
(f)Mr Abrams admitted he had a negative view of Mr Church. Mr Church submits that the transcript reveals Mr Abrams was a difficult, evasive and argumentative witness.
(g)Mr Abrams denied and contradicted the statement of his wife that he had been trespassed from another neighbour’s property previously.
(h)Mr Abrams admitted he never saw the incident unfold and he did not see Mr Church hit or punch Mr Holmes. Mr Abrams’ evidence was that when he approached the two men they were “grappling” each other, which contradicted his wife’s evidence that Mr Holmes never engaged physically with Mr Church.
(i)Mr Abrams identified, consistently with his wife, where the bikes were placed. However, both their evidence contradicted that of Mr Church and Mr Holmes.
(j)Mr Abrams gave evidence that he had typed out his wife’s statement because she is not a good typist, even though Mrs Abrams claims her husband did not assist her to write her statement. When Mr Abrams was challenged that his and his wife’s statements mirrored each other, he commented that he “wrote down what she told me to write down.” Mr Church submits this raises concerns about the credibility of both of their statements.
(k)Constable Mackenzie was the officer in charge and did not witness the incident. He gave evidence that after Mr Church freely accompanied him to the police station, Mr Church declined to give a statement and did not make a complaint. Mr Church submits his evidence does not assist the Judge in determining whether Mr Church assaulted Mr Holmes.
(l)The evidence of Mr Holmes and Mr Church is contradictory and irreconcilable. Mr Holmes described turning his head to listen to the voices of children at the beach. However, Mr Church submits that Mr Holmes was unlikely to have seen part of the beach and unlikely to have heard them. Despite these contradictions, and given the limitations of the other witnesses’ testimonies, Mr Church submits the Judge should
have considered only the evidence of Mr Church and Mr Holmes when assessing the facts and reaching his conclusion.
[32] Mr Church submits these inconsistencies and issues mean that the Judge erred by failing to adopt a cautious approach to this evidence and in not preferring Mr Church’s evidence. Mr Church submits the Judge’s findings are unsustainable.
Crown’s position
[33] The Crown argues the Judge did not err in assessing the evidence before him. The Crown submits these types of inconsistencies between the witnesses are not unusual when reconstructing past human events with human memories.
Discussion
[34] It is plain that there were evidential conflicts among the various witnesses as to what happened in the altercation between Mr Church and Mr Holmes. The Judge was fully cognisant of the conflicts and observed that it is not unusual in court cases of this type to receive evidence that conflicts between prosecution and defence witnesses. He also observed that there can be conflicts for a variety of reasons among witnesses called by the same party.21
[35] Having made that observation, I consider the Judge took a cautious approach in assessing the evidence. First, the Judge considered whether the conflicts in the evidence were of significance and whether they were important to the issues he had to decide.22 The Judge was also careful to record that he took into account the background and relationships among the various parties who gave evidence, including the long and deep-seated division among various parties who have lived “in this small neighbour area.”23 The Judge traversed the evidence from Mr Church about some of the historical incidents that had occurred involving the complainant and his girlfriend as well as the Abrams. The Judge acknowledged that some of the past events may reflect on the credibility of witnesses, but carefully stated that it was not his job to
21 Conviction decision, above n 1, at [23].
22 At [27].
23 At [28].
resolve past conflicts among the parties, and such evidence may have a double-edged aspect to it, reflecting on the defendant as well.24
[36] The Judge was mindful of the allegations that some of the witnesses may have colluded and that witnesses can reconstruct past events, including witnesses attempting to minimise their role in an incident.25
[37] Having reminded himself of these factors, the Judge rejected the defence of self-defence, because he found that Mr Church did not honestly believe he was about to be hit by Mr Holmes. He stated that he did not accept Mr Church’s version of events because he believed Mr Church attempted to justify his actions, embellishing the role of Mr Holmes and minimising his own actions.26
[38] His conclusion was based on his acceptance of Mr and Mrs Abrams’ evidence, despite some inconsistencies. The Judge approached the evidence of both of these witnesses on the basis of their consistency with the evidence of Mr Holmes. The Judge then measured that against Mr Church’s evidence, noting that although Mr Abrams did not see any punch, if Mr Church’s evidence had been correct he would have been able to see those punches as he approached both Mr Church and Mr Holmes. The Judge also accepted Mr Abrams’ evidence that Mr Holmes was still on his bike, not off his bike as suggested by Mr Church, when he was punched by Mr Church.
[39] The Judge found there was no collusion by Mr and Mrs Abrams, and his reason for doing so was that Mr Abrams could easily have embellished his evidence. The Judge gave the example that Mr Abrams could have said that he did see Mr Church punch Mr Holmes, but Mr Abrams did not give that evidence. The Judge notes the punching was over by the time Mr Abrams arrived, and that is consistent with the evidence of both Mr Holmes and Mrs Abrams.
[40] Perhaps most pertinent to the Judge’s assessment of the facts was his finding that:27
24 Conviction decision, above n 1, at [30]–[31].
25 At [29] and [32].
26 At [38].
27 At [44].
Mr Holmes was a reliable, honest and credible witness. He was upset at times when he was cross-examined and a number of propositions were put to him. He was upset, I find, because his version of events was being challenged.
[41] The Judge then dealt with the specifics of Mr Church’s evidence, which he rejected on a number of factual bases.28
[42] In detailing the factual matrix of events, the Judge focused on specific elements. The matters that have been raised before me at this hearing were raised in submissions carefully by Ms Kelly, counsel for Mr Church.
[43] Although the Judge did not deal with the inconsistencies as set out in [31] above in detail or attempt to reconcile all the inconsistencies, it was open to the Judge to make findings of credibility on the evidence he heard, assess whether the inconsistencies were important or incidental, and make a finding based on his assessment of the evidence and the witnesses he heard, as he did here. The Judge could make such a finding, basing his determination on his assessment of credibility of the witnesses. It is the role of the trial Judge to make such findings of credibility. I do not consider this Court in its appellate jurisdiction should make an alternative finding in this case, when the Judge was best placed to make the factual findings he did.
[44] The Supreme Court, in Matenga v R, observed that in considering a conviction appeal, the appeal court “must of course take full account of the disadvantage it may well have in making an assessment of the honesty and reliability of witnesses on the sole basis of the transcript of the oral evidence.”29 Appellate courts have repeatedly held that courts must be mindful of a trial Judge’s advantage in having seen and heard the witnesses give evidence, and being able to assess their reliability and credibility as a result.30 Without some good reason to depart from the Judge’s factual findings concerning credibility of witnesses, this Court should be slow to disturb such findings.31
28 Conviction decision, above n 1, at [45]–[50].
29 Matenga v R, above n 17, at [32].
30 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [83]–[84]; Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]; Ross v Police [2016] NZHC 2886 at [14]; and Tafunaina v New Zealand Police [2015] NZHC 2144 at [15].
31 Palmer v New Zealand Police [2016] NZHC 2633 at [16], citing Austin, Nichols & Co Inc v
[45] It was open to the Judge to make his findings on the evidence and, in particular, to assess the differing versions from Mr Holmes and Mr Church of the sequence of events. I do not consider there is any good reason to depart from the Judge’s findings. I am unable to find that there has been a miscarriage of justice.
[46]This ground of appeal is dismissed.
Ground 3: Refraining to comment to police
Parties’ positions
[47] Mr Church submits the Judge erred in law by assigning a negative inference to the fact Mr Church refrained from making a statement to the police upon his arrest. Mr Church was entitled to invoke his right under s 23(4) of the New Zealand Bill of Rights Act 1990 (NZBORA). This factor should not, he submits, have been held against him or used to justify a finding of guilt.
[48] The Crown submits Mr Church has mischaracterised the Judge’s focus on his lawful decision not to make a statement. There was only one mention of this at trial and a single reference in the decision:32 neither of these references, when seen in context, the Crown submits, can support the conclusion of a negative inference being made.
Discussion
[49] During the course of the evidence-in-chief from Mr Church, Ms Kelly clarified with Mr Church whether he gave any explanation to police at the time of the incident. Specifically, Ms Kelly asked Mr Church whether he had told the police officer, who arrived at his home, what had happened. Mr Church replied:
Well I gave a bit of my version but I remember seeing something on TV years ago, they … don’t say too much.
Ms Kelly then clarified with him what he had admitted, including his acknowledgement that he punched Mr Holmes twice.
Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
32 Conviction decision, above n 1, at [20].
[50] After the re-examination of Mr Church was concluded, the Judge asked for further clarification of Mr Church’s evidence that he rang the police to make a complaint. The Judge questioned Mr Church as to whether he followed through with any complaint to the police and asked him whether he gave the police a written statement of his complaint or version of events.
[51] In his decision, the Judge recorded the evidence of Constable Mackenzie, who was called by the prosecution and was the officer in charge of the case. The Judge recorded that the constable said the defendant did not give a DVD or written statement, but related what the defendant had told him. He said the defendant categorised the incident as a fight and that the injuries to Mr Holmes were likely to have been caused when he fell off his bike.
[52] I am unable to uphold Mr Church’s submission that the Judge drew a negative inference by referring to the fact that Mr Church had not given a DVD or written statement. The matter was before the Judge when Mr Church gave his evidence-in- chief, with Mr Church stating that he wanted to make a complaint to the police. Correctly, in my view, the Judge detailed the evidence of the officer in charge, clarifying that although there was not a DVD or written statement from Mr Church, Mr Church had made these comments to Constable Mackenzie. That is entirely proper for a trial Judge to take into account and to record it as part of his decision. It is a matter of fairness for the defendant to have his oral statements to the police recorded, as they formed part of his defence in the case.
[53] I do not find that there has been any breach of NZBORA and nor do I find that the Judge drew a negative inference from his description at [20] of his decision.
[54]This ground of appeal is dismissed.
Ground 4: Restricting defence cross-examination
Parties’ positions
[55] Mr Church submits the Judge unfairly restricted defence counsel in cross- examination at trial during the questioning of the complainant and other prosecution
witnesses. At trial, counsel sought to establish motive for the prosecution witnesses to either deliberately or inadvertently wrongly accuse Mr Church of committing this offence. This included by establishing their hostility towards Mr Church. Mr Church submits the Judge restricted counsel’s questions on this, however. By limiting counsel’s cross-examination, the Judge undermined Mr Church’s right to the minimum standards of criminal procedure set out in s 25 of NZBORA, namely, his right to present an effective defence. Mr Church argues that he was denied a fair and impartial trial and his conviction was unjust.
Discussion
[56]Section 25 of NZBORA states:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a)the right to a fair and public hearing by an independent and impartial court:
…
(e)the right to be present at the trial and to present a defence:
(f)the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
…
[57] It is evident from the decision that the Judge took into account the background and relationships among the various parties who gave evidence, but made it plain that it was not his job or function to resolve past conflicts among the parties. The Judge observed specifically that the defence “attempted and did cross-examine a number of prosecution witnesses to establish a lack of credibility on their part, due to the past events”,33 but stopped Ms Kelly cross-examining about other persons who were not present at the hearing.
33 Conviction decision, above n 1, at [31].
[58] A Judge’s function in managing a trial is to ensure that the evidence is relevant to the issues to be determined. This is reinforced by s 8 of the Evidence Act 2006. A Judge must also be alert to evidence involving other named people in a community, who do not have an opportunity to defend themselves if accusations are being made about their actions or have no part in the matter before the Court. The Judge was alert to ensuring, as he said, that he must “exercise caution over a number of aspects of the evidence” that he has heard.34
[59] It is clear that the Judge did take into account the history of animosity among the neighbours in this community, but limited the questioning about others who were not involved in the hearing and to matters that were relevant for determination. I do not consider there has been any breach of the minimum standards of criminal procedure under s 25 NZBORA.
[60]This ground of appeal is dismissed.
Ground 5: Allegation of bias
Parties’ positions
[61] Mr Church submits the Judge displayed bias against him in breach of his right under s 25(a) of NZBORA. This was demonstrated, he submits, through his different attitudes towards the defence and prosecution witnesses. The Judge consistently adopted positive interpretations of the prosecution witnesses, even when they were evasive, aggressive or resistant to cross-examination. Mr Church submits that the Judge’s bias is evident because he rejected Mr Church’s detailed, consistent and plausible evidence. Further, the Judge got angry at Mr Church when delivering the end of his decision because of a comment he made to his wife.
[62] The Crown submits there is no appearance of bias by the Judge. The Judge appropriately took all matters into account in his decision.
34 Conviction decision, above n 1, at [26].
Discussion
[63] It is a high standard to establish bias. The relevant principles were settled by the Supreme Court in the leading decision of Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.35 Apparent bias will be established if a fair-minded and properly-informed lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question which the Judge is to decide.36 This involves two stages:37
(a)identifying the circumstances that may lead the Judge to decide a case other than on its merits; and
(b)the party alleging apparent bias must also articulate a logical connection between the matter complained of and the feared deviation from impartiality.
[64] Ms Kelly, in advancing this ground of appeal, was doing so properly on her instructions. However, I do not consider the Judge’s conduct reached the high standard to establish bias. Clearly, the Judge ultimately had to prefer either Mr Church’s evidence or the complainant’s, which he did in a reasoned manner, as I have set out above.
[65] There is one other factor which I consider shows the absence of bias on the part of the Judge. At the end of the Judge’s consideration of the evidence, he exercised his discretion in Mr Church’s favour and amended the charge from assault with intent to injure to a charge of common assault. This reflects, in my view, an absence of bias, and although he rejected Mr Church’s defence, he reduced the charge against Mr Church and imposed a fair sentence.
[66] In submissions, Ms Kelly referred to the reference at the end of the Judge’s oral conviction decision, where he heard Mr Church make a comment about his finding and told Mr Church off. For completeness, I find that this was not a display
35 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
36 At [3].
37 At [4], [20] and [86].
of bias. It occurred after the Judge had made his decision and after the Judge had reduced the charge in favour of Mr Church.
[67]This ground of appeal is also dismissed.
Result
[68]The appeal is dismissed.
Cull J
Solicitors:
O’Donoghue Webber, Nelson for Respondent
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