Cotter v Police
[2021] NZHC 1532
•10 December 2021
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2021-442-000012
[2021] NZHC 1532
BETWEEN JOHN DAVID MCPHEE COTTER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 November 2021 Appearances:
M J Vesty for the Appellant
A R Goodison for the Respondent
Judgment:
10 December 2021
JUDGMENT OF GRICE J
(Conviction Appeal)
Solicitors:
O’Donoghue Webber, Whakatū | Nelson for the Respondent.
COTTER v POLICE [2021] NZHC 1532 [10 December 2021]
Introduction
[1] This is an appeal against convictions following a Judge alone trial on 5 March 2021.1 The convictions relate to three charges of strangulation,2 and one charge of assault against a person in a family relationship.3
[2] The grounds for appeal relate to, first, issues concerning competence of counsel for the appellant at trial and, in particular, in relation to failure to cross- examine the complainant on a number of points. The second main ground is that the trial Judge failed to give adequate reasons for rejecting the appellant’s evidence.
Background and factual background
[3] The background, as accepted by the Judge, was based on Ms Riley’s (the complainant’s) formal statement of 2 August 2020.4 She said both she and her partner, Mr Cotter, had been drinking with friends in Māpua. She walked home to put her phone on charge with the intention of re-joining them later. She then walked onto the street to see where the group had gone but saw no one and tried to call Mr Cotter.
[4] The complainant walked further down the street and met Mr Cotter who was angry. They argued. Mr Cotter then swung his hand at her, causing her to fall onto the road (leading to the charge of assault of a person in a family relationship). Mr Cotter then choked her while she was on the road (the first strangulation charge). Ms Riley got up and hit Mr Cotter in the face.
[5] The confrontation continued at their home. There, Mr Cotter grabbed Ms Riley by the neck and dragged her to the ground (leading to the second strangulation charge). He continued to verbally abuse Ms Riley. At this point, she kicked him, and he kicked her back in response.
1 Police v Cotter [2021] NZDC 4030 [“District Court Decision”].
2 Crimes Act 1961, s 189A: maximum penalty of seven years’ imprisonment.
3 Section 194A: maximum penalty of two years’ imprisonment.
4 District Court Decision, above n 1, at [41].
[6] Mr Cotter continued to choke the complainant. She struggled to breathe. He dragged her around the kitchen. Fearing for her life, Ms Riley then ran away to a friend’s house for safety.
Law on conviction appeals
Conviction appeal
[7] Section 232(2) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a miscarriage of justice has occurred (subs (b)) or a “miscarriage of justice has occurred for any reason” (subs (c)).
[8] A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] 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”. As demonstrated by the legislation, and reiterated by the Supreme Court, not every error or irregularity causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.5
[9] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.6 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.7
[10] This involves a two step-process:8 was there an error, irregularity or occurrence in or in relation to or affecting the trial and, if so, did either of the two states of affairs in subs (4)(a) or (b) arise in consequence?
5 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
6 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
7 At [110].
8 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24].
[11] Specifically in relation to a judge's assessment of the evidence, the Supreme Court in Sena v Police clarified the approach.9 Under subs (b), appeals proceed by way of rehearing in the same manner as set out in Austin, Nichols & Co Inc v Stichting Lodestar.10 If the appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.11 The Court noted:12
[38] … But, to the extent that Mr Jones was suggesting that the role of an appellate court is to consider the issues de novo as if there had been no hearing at first instance, then we do not agree. Since it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise "'customary' caution". There are two main, overlapping, reasons for this.
[39] The first is that a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case. In assessing the plausibility of what is said by the witnesses, the judge has the advantage of being also able to form a view as to what sort of people they are. This is an appreciable consideration despite the now well-recognised difficulties with demeanour-based credibility assessments.
[40] The second consideration, in effect the other side of the coin to the first, is that appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.
The decision
[12] The Judge delivered an oral decision, following the hearing of evidence. The evidence included that of Constables Connell and Coman, who were called to the incident on 2 August 2020. A statement was taken from the complainant at 1.56 am. This written statement was witnessed by Constable Coman.
9 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
10 At [26].
11 At [38].
12 Footnotes omitted.
[13] Constable Connell spoke to Mr Cotter and made notes of his comments. These notes were signed by Mr Cotter. Both the complainant and Mr Cotter gave evidence.
[14] The Judge, in his decision, summarised the elements of the charge. He said the defendant’s perspective on the incident on the footpath was that the complainant had struck him a number of times, he simply pushed her away and causing her to fall to the ground.13 In relation to the second incident back at the home, the defence maintained there was a further attack by the complainant on the defendant, the defendant held her to restrain in self-defence or at least restraining someone out of control.14
[15] The Judge referred to a number of inconsistencies that arose between Ms Riley’s evidence in Court and the narrative in her statement (of 2 August).15 The Judge set out the written statement in full, as follows:
[13] In this statement, she says:
That is my full name and I am speaking with Constable Coman in relation to an assault that happened earlier today to me. My partner, John Cotter, and I had been drinking in Mapua with friends. On the way home from the pub, I decided to walk home ahead of the group to put my phone on charge with the idea to rejoin them by the time they caught up. I left the house expecting to see everyone, but no one was around. I tried calling John's phone, but there was signal issues. We had missed calls. John showed up on the street and was grumpy and pissed off about something or just irritated. A verbal argument started between us on the road. He was really pissed off with me. I started thinking he was being dramatic. Sometimes he just gets wound up with me. Next thing I remember is, he swung his hand down onto me which caused me to fall on the road. That is where he first choked me. I got so shocked and I got up and hit him in the face as I was so shocked. We continued in an aggressive confrontation into our home. In the kitchen of our home, he grabbed me by the neck and dragged me to the ground. He continued to assault and verbally abuse me, calling me a whore and a slut. I was kicking out at him and asking why he was doing this to me. I remember him kicking me and continuing to call me a slut and whore. He continued and choked me again. I remember struggling to breathe. He dragged me around the kitchen by my arm and continuing to verbally abuse me. I do not remember the specifics of what he said. I said to him, "What else can you do? You've choked me up. Just kill me." I genuinely believed he wanted to kill me. I feared for my life. I just said for him to finish me. I remember running away. I had to control my breathing as I thought he was looking for me. I hid behind a friend's hedge and then knocked on her door to find safety.
13 District Court Decision, above n 1, at [4].
14 At [4].
15 At [11].
[16] The Judge went on to say that that statement was “quite at odds with the evidence she had given in the case at that stage”. Therefore, the prosecuting sergeant was given permission by the Judge to raise questions with the complainant on the glaring inconsistencies.
[17] Ms Riley’s evidence at the hearing was that she had been the aggressor and struck out at him, as a result of which she had been shoved away and fell to the ground. She said that when the defendant went into the house,16 she continued to remonstrate with him, was hyper-ventilating and when the defendant told her to leave him alone and shook her from his arm, she lost her balance and stumbled back into a wall. She said she was hysterical.
[18] The Judge went on to note that it had been put to her by the prosecuting sergeant that she had not said in her statement that she struck Mr Cotter first, had denied that she was choked and had stated that he had never touched her neck.17
[19] The Judge said that under cross-examination Ms Riley had confirmed that she had drunk maybe five-plus drinks when she would normally drink maybe two pints per month and confirmed that she had been the one that had struck Mr Cotter. In response to a question as to whether she was having some sort of asthma attack, Ms Riley said, “well, that’s how it felt”.
[20] Ms Riley, under cross-examination, said she had made the statement because she had wanted to go to hospital and while she did not want to make a statement but was told the police needed to interview her then. The Judge recorded that under cross- examination, she said she was angry at the time she made the statement and “wanted to speak to the police because she realised that Mr Cotter had not grabbed her by the neck”. In response to a question about whether she had wanted to make a second statement, she said she had and, “Yes, it was done over the phone and had been amended, and eventually signed on 17 August”.18
16 District Court Decision, above n 1, at [9].
17 At [15].
18 At [16].
[21] The Judge noted that Constable Coman said he had gone to the address in Mapua on 2 August in relation to an allegation of assault. When they arrived, Ms Riley was on the couch with her right arm in a makeshift sling and she was upset. The constable recorded that Ms Riley had said she had been “choked several times during a prolonged assault by her partner, John Cotter”.19 The Judge then noted that the formal statement was taken from Ms Riley and she was taken to hospital.20 Photographs of bruising around Ms Riley’s arms and hands were produced, which had been taken at the hospital.21
[22] The Judge said the constable rang to enquire as to Ms Riley’s wellbeing and she said that “everything from the previous night was becoming blurry and she could not be sure that she was remembering everything correctly”.22
[23] The Judge next noted that Constable Connell had given evidence of speaking to the defendant who had said he was angry, that there had been arguments and that Ms Riley had slapped him and he had pushed her over. Mr Cotter said he had not struck her.23
[24] The Judge noted a second statement was made by the complainant over the phone at her request, which was emailed, redrafted and sent back to Ms Riley and was eventually signed but that statement did not become an exhibit.24
[25] The Judge recorded that Constable Coman had said in cross-examination that at the time she gave the first statement, Ms Riley was emotional and constantly crying. The constable thought she was intoxicated because he could smell alcohol on her but, in his view, “she was able to talk and walk around the house” and he felt that “she was able to give a coherent account of what had happened”.25
19 District Court Decision, above n 1, at [19].
20 At [20].
21 At [22].
22 At [23].
23 At [25].
24 At [25].
25 At [27].
[26] The Judge noted that when Constable Coman was recalled,26 and asked about the intoxication, he indicated it was at the minor end of the scale and that Ms Riley’s speech was not slurred but that she was upset and crying, and breathing fast and was distraught.27
[27] The Judge noted that Constable Coman had expanded on the circumstances surrounding the taking of the first statement:
[29] … She told him that she had been choked several times during a prolonged assault and that her words were that "he had grabbed [he being the defendant] her around her neck". He said that the ambulance was called and because of the allegation of choking and or strangulation, he checked for any marks or bruising or any sign of injury to the windpipe and the sign of any petechiae in the eyes which can arise when a person is choked. He found none of those particular symptoms present but he clearly was very concerned about it. He said in terms of strangulation in his experience as a police officer, it is not unusual for there to be no bruising or other signs so close to the actual event. He said that, clearly, he wanted to get a statement from Ms Riley, but his position was that it would only be done if she was okay with that, and that was only after it was established that no urgent care or hospitalisation was required. He said that Ms Riley was perfectly all right with that, and that she felt safe because she was in the company of her friend. He said the statement commenced after the ambulance arrived because he checked with the ambulance staff or paramedics that if taking a statement was all right, and they confirmed that that would be all right because there was no immediate urgency to get her to the hospital. His opinion was that Ms Riley seemed perfectly all right to make the statement that he then took from her, and she said that she wanted to go to hospital to be checked out, and the constable assured her that that indeed would happen.
[28] Under cross-examination the Judge noted that Constable Coman confirmed that he felt the complainant’s degree of intoxication was minor. He could not remember exactly what he said to her but denied that there had been any pressure placed on her to give a statement at the time.28 There were no photographs of Ms Riley’s neck.
[29]The Judge went on to consider the evidence of the complainant, as follows:
[34] The first question in that regard then in terms of how I view the case is to ask what do I make of the complainant's evidence? My assessment,
26 District Court Decision, above n 1, at [29]. His evidence had been read but following the Judge’s concerns about the differences between the complainant’s evidence and the formal statements, the officer was called to give evidence in person.
27 At [29].
28 At [30].
having seen her give evidence, having viewed the discrepancies between her statement and her subsequent evidence, having heard the further evidence arising from Constable Coman when re-called I reach the view that the truth from her was what she told the police officer on 2 August. The complainant's statement was given almost immediately after these events happened. It is simply a narrative that has been recorded by the police officer as matters have progressed during that statement, and I note that where there were discrepancies, for example, in para 2, the officer has written "Motueka" as the venue where the drinks had been consumed and clearly, has been corrected by Ms Riley and that happened on two occasions, and that has been amended and initialled by the complainant. She says in the statement that for example that there had been a decision to go to this party and that she walked home ahead of the group to put her phone on charge and to then re-join them by the time they caught up with her. In her evidence, she says that she did not want to go to the party and so simply went home and called her boyfriend and was annoyed when he did not answer. His evidence was that they were walking together and that he was not even aware that she had parted company with him until later on when he met her on the street.
[30] The Judge went on to note that the two versions were vastly divergent but the complainant made an important disclosure to the constable that when she had been pushed or struck down to the ground, it was caused by a swing of the defendant’s hand and she said that was where he first choked her. She said it was then that she got up and struck him.29
[31] The Judge reviewed the evidence given by the defendant, reminding himself that the defendant did not have to prove anything.30
[32] The Judge then noted the evidence of the defendant was that there were a large number of blows struck against him. Whereas, Ms Riley did not think she had hit him more than once. The Judge noted “the considerable discrepancy” there. He then noted that her evidence was that he never kicked her but in her statement, she said she remembered him kicking her when he was abusing her “calling her a slut and a whore”. The Judge took the view that it was not, in that sense, a bare allegation. It was an allegation that had context to it and again in terms of being dragged around the kitchen by her arm, again, and not a bare assertion”. The Judge went on to note that the complainant could remember she was struggling to breathe which also gave context to the allegation. She remembered running away and had to control her breathing because she thought he might be looking for her. She said she went behind a friend’s
29 District Court Decision, above n 1, at [35].
30 At [32] and [33].
hedge and knocked on her door and the Judge noted this seemed “to be consistent with the evidence of where she was found and who she was with at the time”.31
[33]The Judge noted the defendant’s evidence had covered the following points:
(a)They had both drunk perhaps four pints each.
(b)Ms Riley went into the house, but he was unaware that she had done so. This was contrasted with the complainant’s position that she went ahead because she never wanted to go to the party, and she explained why that was.
(c)He said she started to punch him so much he had to put his hands up to block her. One of the strikes resulted in him pushing her away by way of defence and she fell over. It was not a hard push. She stumbled.
(d)He denied touching her neck at all.
(e)He said he walked into the house after this altercation and she was yelling and shouting at him.
(f)They continued arguing and she was “being crazy”, striking him, and he needed to raise his hands to block her. He grabbed her arms and told her to calm down, which she started to do. He went for a glass of water, but she started up again. She ran outside a ranch slider, tripped and fell onto the concrete, after which she ran away. 32
[34] The Judge noted that Mr Cotter agreed that he signed some notes made by the police officer at the time but even though he had signed it, he disagreed with the content.33
31 District Court Decision, above n 1, at [36].
32 At [37].
33 At [38].
[35] The Judge went on to note that Mr Cotter disputed that he choked her, that he grabbed her and dragged her to the ground and called her a whore and a slut. He said he did not think she kicked him and was adamant he did not kick her.34
[36]The Judge then made his findings as follows:
[41] My findings are these. Firstly, as I have already indicated, the narrative that arises in the statement taken on 2 August represents the truth so far as Ms Riley is concerned. I reject the discrepancies raised in her evidence as being an attempt simply to now extricate her then partner from the difficulty he is facing in relation to these charges. I accept then that she was telling the truth when she said that she was on the ground as a result of a swing from the hand or arm of the defendant, causing her to fall down. I reject any suggestion that that was in response to her striking him and I am satisfied the only time she struck him at all this evening, was when she got up from the road, not only having been struck to fall down there, but also having been choked for the first time. I am also satisfied and accept that he did kick her and was dragging her around the kitchen once they had got back to the home. I accept what she says in the statement, that again he choked her during that altercation, and I also accept that he choked her when they first got to the kitchen when he dragged her to the ground at a time when he was insulting and verbally abusing her, calling her a slut and a whore.
[42] That represents the three charges of strangulation. I find each of those proved beyond reasonable doubt. I reject the denials by the defendant and I also find that as a result of what I have said about the facts on the roadway, at or about the time when a party was being embarked upon that that assault did happen. It was a deliberate blow by the defendant to the complainant and that no question of self-defence arises given the findings I have made. He will be convicted on each of the charges he faces.
[43] I am not in any doubt that the assault that you carried out on this woman did take place. I have no doubt at all that she has simply come to Court and has lied and tried to put you in a better light than you deserve to be in. Having heard from the police officers, am in no doubt about any of that. You are convicted on each of these charges. You are remanded with your bail to continue to 20 May at 11.45 before me. I seek a pre-sentence report with appendices, so that any options open to the Court for sentence remain open.
Summary of submissions
Leave for evidence of Ms Rasmussen to be admitted:
[37] The appellant submits that the evidence of Ms Rasmussen, who was the person whose house the complainant ran to following the altercation with her partner, was relevant and should have been put before the Judge. The appellant now seeks leave to
34 District Court Decision, above n 1, at [40].
adduce that evidence, submitting it is relevant in relation to the complainant's level of intoxication and also that the complainant tried to provide a more accurate recollection to replace her original statement.
[38] The respondent submits first that the evidence is not fresh. Secondly, that it does not affect the safety of the conviction as, broadly speaking, the matters raised were already before the Court. For instance, that Constable Connell's evidence was that he thought the complainant was intoxicated but was able to walk and talk that he felt she was able to give a coherent account. The constable had also referred in evidence to Ms Riley’s making a second statement.35
Failing to cross-examine the complainant's second statement:
[39] The appellant submits that the second statement, made on 8 August 2020 (and signed on 17 August) should have been put in evidence in trial. In that statement the complainant said she had hit the appellant once, and he shoved her away, and that he did not hit nor strangle her.
[40] The respondent responds saying that the Judge had clearly rejected the complainant’s evidence that the events did not unfold as set out in the first statement. The Judge, the respondent says, was aware of Ms Riley's attempts to retract her first statement.
Complainant's text messages not put in evidence:
[41] The appellant submits that a text message that the complainant sent the day after the offending stating, “I want to remove my statement and my involvement in the whole thing” shows she had immediately tried to correct her original statement, without suggestion or influence from the appellant, suggesting it was not an attempt sometime later, but she had almost immediately tried to correct her statement. This text was not.
[42] The respondent submits that it is unlikely such a text would have changed the outcome, as the Judge was aware of Ms Riley's early attempts to retract her statements.
35 District Court Decision, above n 1, at [25].
The complainant's level of intoxication:
[43] The appellant says that trial counsel did not explore any evidence in relation to intoxication with the complainant during cross-examination, giving the impression that her level of intoxication was not contested by defence. This failure taken together with the omission to produce the second statement of 8 August (which stated she was “drunk at the time”) were relevant given that credibility was at issue. This would have also supported Ms Rasmussen's evidence that the complainant was "drunk".
[44] The respondent submits that the Judge was aware of the issue of Ms Riley's intoxication. It had been noted in Constable Connell's evidence and ultimately there is no real risk the trial outcome would have been affected.
Other relevant evidence not raised (strangulation, injuries and vodka bottle):
[45]The appellant submits that the 8 August statement provides:
(a)Additional reasons as to why the complainant thought she was being strangled when she was not, such as that she was hyperventilating.
(b)Information that her injuries resulted from falling over after returning home from the incident. She said that in her 8 August statement and when questioned at trial. However, the prosecutor having been allowed some latitude to question her in evidence included, led to the prosecutor to suggest her leg injury was due to being dragged. In addition, the fact that the complainant was seen by the appellant holding a vodka bottle when they met on the roadside was not explored. The appellant also said Ms Riley was not cross-examined about saying in her statement that she had hit the appellant multiple times.
[46] The respondent submits that the alternative explanation for difficulty breathing is not likely to have made a difference to the trial outcome. It also says the explanation for the leg injury had already been explored in evidence given at trial. The Crown says the presence of the vodka bottle is a peripheral point. The respondent says the
fact she said he hit her; this too was very unlikely to have altered the Judge's view of the evidence.
Failing to give reasons:
[47] The appellant says the Judge failed to give reasons as to why he rejected the appellant's evidence, and this was compounded by relevant evidence not being produced.
[48] The respondent submits that the Judge had considered the evidence and made a credibility assessment of Ms Riley and of the defendant and this justified his conclusion.
Evidence of Mr Jones (trial counsel)
[49] Mr Jones, trial counsel, provided an affidavit in accordance with the usual procedure. He was also cross-examined by the appellant. The affidavit was put into evidence by the respondent.
[50] In his affidavit Mr Jones responded to various matters raised by Mr Cotter in his affidavit. These matters related to Mr Jones’ competence as counsel. Mr Cotter, in his affidavit, said he had emphasised to Mr Jones the importance of the second statement but Mr Jones said repeatedly that the Court was likely to focus on Ms Riley’s initial statement and any subsequent statement would be put to one side by the Court. Mr Cotter said he had not been given a lot of guidance by Mr Jones and felt lost. Mr Cotter also said that Ms Day, Mr Jones’ junior, prepared Mr Cotter’s brief of evidence and it was a concern to him that Ms Day had been left to cross-examine Ms Riley “at short notice without adequate time to prepare”. Mr Jones had told him that Ms Day was mostly “assisting” with the file. Therefore, it came as a surprise to him that Ms Day was undertaking cross-examination.
[51] In general terms, Mr Jones responded to the general criticisms as to the time spent preparing for Mr Cotter’s trial by referring to the relevant time sheets, which indicated 17 contacts with the appellant in the four-month period between 24 August 2020 and 21 December 2020, as well as eight contacts with the appellant in the two-
week period between 9 February 2021 and the defended hearing on 24 February 2021. This included emails, telephone calls and meetings with the appellant and his mother. Mr Jones also pointed to time records for his and Ms Day’s attendances. This include an hour preparing for the defended hearing on 24 February, which was spent rehearsing the defence case prior to the trial starting at 10.00 am. Mr Jones said the records confirmed a considerable amount of preparation was completed prior to the defended hearing, including Ms Day spending 1.4 hours on 7 October 2020 preparing for cross-examination.
[52] Mr Jones said that Ms Day was prepared to cross-examination. They were aware that Ms Riley was “pro-defendant” and would be giving evidence favourable for the defence and so was not judged to be a difficult witness. For that reason, Ms Day, although a junior, was given the opportunity to cross-examine. Mr Jones said that he sat next to Ms Day throughout the cross-examination and they exchanged comments during the cross-examination.
[53] Mr Jones produced a document entitled “Cross-Examination – Fay Riley”, which covered in detail the lines of cross-examination that Ms Riley was prepared for under the headings: “drunk”, “angry”, and “rush statement/revenge”. Mr Jones said that he recalled Judge Ruth interrupting the complainant while she was giving evidence and that while Mr Jones could not remember his exact words, “he did make it abundantly clear to her [Ms Riley] that he was displeased with her attempts to distance herself from her first statement. The message to her was clear that if she persisted with this, she would attract the ire of the Court, but I cannot recall if the Judge used the words ‘misleading the Court’ as alleged by Mr Vesty”. Mr Jones said he vaguely recalled Ms Day ceasing to put any further questions to the complainant because of the warning given to her by the Judge.
[54] On a number of issues which Mr Cotter raised in his affidavit, Mr Jones responded to the effect that he had made tactical decisions. For instance, Mr Cotter said that Mr Jones should have called character evidence. Mr Jones made a decision that character evidence would not be substantially helpful nor admissible. He felt mention of Mr Cotter’s previous lack of convictions would sufficiently convey this message.
[55] In relation to the failure to put the second statement into evidence, Mr Jones indicated that he assumed the Judge’s warning to the victim that she was in danger of misleading the Court, put a stop to that line of questioning. Mr Jones also noted that the second statement was not made until six days after her first statement, therefore, was not “almost immediately” a change of her initial statement.
[56] In cross-examination, Mr Jones agreed that in hindsight he should have put the second statement in evidence, pursued a line of cross-examination based on self- defence, raised in detail that Mr Cotter said he had been struck a number of times and called the witness (Ms Rasmussen) who had been with Ms Riley following the event had he known about her. As noted earlier, Ms Rasmussen, has filed an affidavit in the appeal. Essentially, Ms Rasmussen’s evidence is that Ms Riley was very upset when she gave the statement, was talking quickly and not in a narrative and that she was intoxicated.
[57] Mr Jones also agreed that he had told Mr Cotter not to give evidence about Ms Riley holding a bottle which Mr Cotter said she shoved at his chest and he threw it away to the grass. He did not recall why he told Mr Cotter not to mention it, but it could have been because it was improper, given the matter had not been raised specifically in cross-examination.
[58] Mr Vesty also put to Mr Jones that the police had sought a production order in relation to Ms Riley’s telephone records, apparently to pursue enquiries about whether Mr Cotter had been attempting to defeat the course of justice. This was in the context of Ms Riley’s changing her story in the second statement. Mr Jones did not obtain disclosure of these telephone records. Mr Jones agreed in cross-examination, it may have been wise for him to obtain those but unnecessary.
[59] In re-examination, Mr Jones said he was “about 100 per cent” certain that he would have checked Ms Day’s preparation. He was supervising Ms Day and indicated that he was involved in all other parts of the hearing, apart from the cross-examination of Ms Riley and was beside her exchanging comments with her during the cross- examination.
[60] Mr Vesty pointed out that nothing appeared in the trial transcript (which had included all the Judge’s comments) indicating an intervention by the Judge during the course of Ms Day’s cross-examination. Mr Jones responded that he was surprised by that because his recollection was that it was during his examination that those comments were made by the Judge and he thought this “effectively stopped Ms Day in her tracks”.
Issues of counsel’s competence
[61] A basic requirement for a fair trial is the right to be represented by competent counsel who meet the relevant standards and the obligations imposed on trial counsel.36
[62] When an appeal court is considering an appeal on the basis of trial counsel’s incompetence, the focus is on the question of whether a miscarriage of justice has occurred, rather than focusing on whether there were shortcomings in counsel’s performance and how those shortcomings might be characterised. The Court said in Sungsuwan v R:37
[70] … While the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as the result of a conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[63] Similarly, the Court of Appeal in Scurrah summarised the approach of the majority in Sungsuwan, saying:38
[17] The approach appears to be, then, to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.
36 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, Brookers) at [CPA 232.11](1); citing Hall v R [2015] NZCA 403, (2015) 28 CRNZ 630 at [1].
37 Sungsuwan v R, above n 6, at [70].
38 R v Scurrah CA159/06, 12 September 2006 at [17]–[20].
[18] On the other hand, where counsel has made a tactical or other decision which was reasonable in the context of the trial, an appeal will not ordinarily be allowed even though there is a possibility that the decision affected the outcome of the trial. This reflects the reality that trial counsel must make decisions before and during trial, exercising their best judgment in the circumstances as they exist at the time. Simply because, with hindsight, such a decision is seen to have reduced the chance of the accused achieving a favourable outcome does not mean that there has been a miscarriage of justice. Nor will there have been a miscarriage of justice simply because some other decision is thought, with hindsight, to have offered a better prospect of an outcome favourable to the accused than the decision made.
[19]This analysis will be sufficient to deal with most cases.
[20] But there will be rare cases where, although there was no error on the part of counsel (in the sense that what counsel did, or did not do, was objectively reasonable at the time), an appeal will be allowed because there is a real risk that there has been a miscarriage of justice.
[64] In cases where there is an allegation based on a failure of counsel to follow instructions, there will generally be a miscarriage of justice if the failure is in respect of “fundamental” decisions such as plea, electing whether to give evidence or advancing a defence based on the defendant’s version of evidence.39
[65] The learned authors of Adams on Criminal Law note that the focus in such cases will be on whether “as a matter of fact” there was a failure to follow instructions.40
[66] In relation to an allegation that counsel did not properly investigate issues at trial, the assessment must be done in a practical way, bearing in mind the defendant should put his or her best case forward to counsel.41 The appellate courts recognise that the conduct of cross-examination is generally a matter of judgement for trial counsel – subject to satisfying the central requirement to put the defence case to the complainant:42
… the fact that cross-examination could have been undertaken differently, possibly even better, does not in itself justify a finding of counsel error. An error will generally only arise if the decision was not one a competent lawyer would have made. Even if there has been an error by trial counsel, there will
39 Hall v R, above n 36, at [65].
40 At [69].
41 Adams on Criminal Law – Criminal Procedure McGechan, above n 36, at [CPA 232.11](1); referring to Hall v R, above n 36, at [50].
42 Kumar v R [2019] NZCA 669 at [4] (footnotes omitted).
not necessarily be a miscarriage of justice as a result: ultimately the question is whether there is a real risk that it affected the outcome.
Evidence before the Court
[67] As Mr Vesty pointed out to Mr Jones, the Judge did not appear to have made any comment during cross-examination warning, Ms Riley, however, the Judge did express his concerns about the evidence of Ms Riley. In a ruling he made on 24 February 2021 leading to the adjournment of the trial part-heard to enable Constable Coman to be available for cross-examination, the Judge made the following comments about Ms Riley’s evidence:43
[5] In any event the assertions that she makes about the police behaviour are in my own view are serious and she may, I do not know, have put herself in a rather difficult position by taking the stance she has. It seems to me the only way I can sensibly determine those factors is to have that constable called to give evidence about those issues. As it happens regrettably the constable is away from duty at this time which is no doubt why Mr Jones helpfully suggested that his evidence be read without him being present. That was an entirely proper thing for Mr Jones to do and none of this is a criticism of the defence at all. It was simply unable to be predicted that this witness would take the course she has and to the extent she has.
[68]It appears this was the warning to what Mr Jones was referring.
[69] It appears that Constable Coman, whose evidence had been read, was away and by consent his evidence had been read. However, he was recalled and cross- examined by Ms Day on:
(a)the level of Ms Riley’s intoxication;
(b)whether there was pressure on her to give the first (formal) statement; and
(c)that there was no redness or bruising or other physical signs of strangulation.
43 District Court Decision, above n 1, at [5].
[70] The evidence Mr Cotter gave at trial was in line with his brief of evidence, which had been prepared by Ms Day. In essence, he said:
(a)Ms Riley had been drinking at the “Gold Beer” with some friends. He met her there. She was “sort of jovial” and she had been drinking.
(b)Walking back to the house in a group, Ms Riley left the group and he did not realise. He ran back after her as he was worried as she did not know where they were going.
(c)He met her about 200 metres before the address and she was annoyed. She had a go at him.
(d)They had an argument and she started hitting him. He raised his hands to block her and one hit her on the side of the head, and he pushed her and she stumbled backwards and fell over. It was not a hard push but knocked her off balance.
(e)He denied strangling her or touching her neck at any stage.
(f)Mr Cotter walked toward the house and Ms Riley started walking behind him, yelling and shouting at him. He kept walking. In the house the argument carried on. He called her “crazy” and she started hitting him again and again. He raised his hands to block it. She hit him about six to eight times with a closed fist toward his head.
(g)He grabbed her arms and held her against the wall to stop her hitting and calm down. He was not “fully pinning her down”, but just enough to grab her arms so she would stop swinging.
(h)She started breathing and calming down. The shouting stopped.
(i)He went to get a glass of water and it started up again.
(j)She ran out the ranch sliders and fell on the ground on the concrete.
[71]In cross-examination, Mr Cotter said:
(a)He was not intoxicated.
(b)He was worried not angry.
(c)He denied calling the complainant a whore and a slut.
(d)He denied grabbing her by the neck and dragging her to the ground in the kitchen.
(e)He could not remember Ms Riley kicking him in the kitchen nor dragging her around the kitchen by the arms.
(f)He assumed that she hurt her shoulder and was in a lot of pain because of that injury when she fell over.
[72] Mr Cotter’s evidence was largely consistent with the notes made by Constable Connell except however in his evidence said he was neither angry nor did he get really aggressive. However the notes he signed at the time recorded he said:
(a)He was angry.
(b)He went back for her.
(c)They had an argument. She slapped him and he pushed her over.
(d)“I got really aggrieved I suppose. She shoved me, I shoved her back. Nah I didn’t hit her bro”.
[73] Ms Riley’s evidence, as I have indicated earlier, was that she was not strangled by him and she was the aggressor. She said she ended up “swinging and hitting him”, so he shoved her away and she fell.
[74] Ms Riley said she was hyperventilating the whole time and does not remember it very coherently. She said she had been holding on to Mr Cotter at the house and he shook her off and she lost her balance and stumbled into the wall. She was “off balance and drunk”. She said she was hysterical and he was trying to calm her down.
[75] Ms Riley said she then went into the street but as she had not used her inhaler, she could not run very far. She went into the trees to get her breath. She went into a “bit of an orchard” and stood in the trees to catch her breath. She said she hurt her elbow because she had fallen over when she left the house, outside the door, and grazed her leg as well.
[76] When her formal statement was put to her, Mr Riley said she was quite visibly drunk when she made the statement. In addition, she said:
(a)She did not want to sign the statement because her eyesight was blurry. She could not read it and she could not hold the pen because her shoulder hurt so much.
(b)She denied that Mr Cotter had swung his arm at her and caused her to fall on the road.
(c)She had told the police officer more than once that she had hit Mr Cotter.
(d)She denied that Mr Cotter grabbed her by the neck and dragged her to the ground, called her a whore and slut, kicked her or dragged her around. She did not recall “John pushing [her] neck at all”. He did not touch her neck at all.
[77]Ms Riley, under cross-examination by Ms Day, said the following:
(a)She had drunk around five drinks but usually only drank two pints on the average a month.
(b)She had convinced herself that Mr Cotter did not care for her anymore and that caused her to become angry and she “lost a bit as well”.
(c)She swung out and hit Mr Cotter first on the face.
(d)She did not recall swinging out more than once but “… just feel like I shot off a bit, don’t – just remember that action and then the hit on the ground, and I had no idea at the time, just felt pretty instant”.
(e)That once back at the house, Mr Cotter wanted to move to the bedroom and stop the situation was happening.
(f)She considered the issues needed resolution and so grabbed his arm and he shook her off and she stumbled toward the wall.
(g)She panicked and hyper-ventilated. She also had asthma and suffered with hay fever and eczema. She has inhalers and felt she was having an asthma attack.
(h)She felt obliged to say something purposeful to the policeman, but she really just wanted to go to the hospital.
(i)She was emotional and distressed at the time she was giving this statement and was crying.
(j)She felt angry toward Mr Cotter at the time she gave her statement about the argument.
(k)Once she was at the hospital, she sobered up and told the medic that she needed to talk to the policeman because Mr Cotter had not grabbed her by the neck and she needed to tell the policeman that that was not true.
(l)She made a second statement to the police. She had made no contact with Mr Cotter before making that statement.
(m)She tried to speak to the police officers on the following Monday to tell them that what she had said hadn’t happened. It took till 28 August and her going to the police station and calling again to get the statement made.
[78] In re-examination, Ms Riley agreed that her second statement was dated 8 August and signed on 17 August.
Analysis: trial counsel error
[79] In my view, the matters that the appellant now says were not put in cross-examination by Ms Day were either sufficiently put in cross-examination or had been covered in evidence in chief from the prosecuting sergeant. In particular:
(a)The level of intoxication. This was explored with Ms Riley. Her answer indicated that she had drunk a considerable amount. One of the police constables also said she was intoxicated, although she could walk and talk and was capable of making a statement.
(b)Ms Riley was angry and upset.
(c)Ms Riley was the instigator – Mr Cotter had been responding to Ms Riley swinging at him. In the first incident, she went off balance and fell on the ground.
(d)In the incident in the house, she again was the aggressor, assaulting Mr Cotter and he was trying to calm her when she fell to the ground.
(e)Ms Riley did not want to give a statement at the time. She was drunk and angry with Mr Cotter.
(f)Ms Riley was hyper-ventilating or having an asthma attack, crying and emotional.
(g)Her first statement was not correct. She was the aggressor and Mr Cotter had not strangled her nor hit her.
(h)She changed her statement providing a different version of events within days of the first statement, although the second was signed sometime later.
[80] In those circumstances, it appears that the defence’s case was adequately put to Ms Riley. While there was no mention of the vodka bottle, that was a matter that was intended to go to the fact of how drunk she was and that she was the aggressor. It was peripheral and would not have taken matters any further.
[81] This is not a case where the appellant’s version of events has not been put to the complainant. It met the requirement that the appellant’s case being put to the complainant and brought out all the points relevant to the defence case.
[82] The evidence of the complainant largely supported that of the defendant. It was largely a tactical decision as to how far to push matters with the complainant in cross-examination. Ms Day had largely achieved what she had set out to do. Matters such as the complainant being angry, hitting the respondent and the denial of strangling or choking were squarely before the Court. It was a matter for counsel’s judgment as to how far to explore matters with Ms Riley, particularly given the Judge’s comments.
[83] It is likely to have achieved nothing and quite possibly damaged Mr Cotter’s defence to pursue Ms Riley once the main points had been established.
[84] The fact that Mr Jones might have done something differently in retrospect is not directly relevant in these proceedings. Mr Jones was supervising Ms Day. She did a competent job of cross-examination. It is easy in hindsight to criticise tactics. However, the tactical decisions made by Ms Day in cross-examination were open to her and she made no errors.
[85] The grounds of counsel incompetence due to failures in cross-examine are not made out.
[86] The failure to call Ms Rasmussen and seek disclosure of the telephone records fall into the same category as the allegations of failure to cross-examine.
[87] While in hindsight, Mr Jones may have considered that it would have been appropriate to make further enquiries about who Ms Riley had been with when she made her formal statement, not doing so is not a matter of counsel error. The evidence of Ms Riley was clear in establishing that she had been upset and hyperventilating at the time she gave this statement. She said she had been upset and angry with Mr Cotter and she who was the aggressor and the strangling did not occur. Ms Rasmussen’s evidence may have supported Ms Riley’s but failure to call her was not a material error and would be unlikely to have made a difference to the trial outcome.
[88] In relation to the telephone records, it is difficult to see what they would have added to the defence. There was no suggestion that Ms Riley and Mr Cotter had colluded, which resulted in her changing her story. Trial counsel made no error not pursuing those records, which were largely irrelevant to the issues before the Court.
[89] There was no trial counsel error nor was there any miscarriage of justice resulting from the conduct of the defence.
Failure of the Judge to give reasons
[90]I now turn to the second main ground: the failure of the Judge to give reasons.
[91] The appellant submits that the trial judge gave no or inadequate reasons for rejecting Mr Cotter's evidence.
[92] The appellant noted the case of R v Awatere, where the Court of Appeal noted that judges "should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion".44 Citing the High Court decision in Takarei v Police, this Court noted that where credibility is in issue, the judge should ordinarily give reasons for rejecting the evidence of a witness whose evidence is material to the outcome.45 The appellant cited Kapa v Police for
44 R v Awatere [1982] 1 NZLR 644 (CA) at 649.
45 Takarei v Police HC Kirikiriroa | Hamilton AP77/02, 22 November 2002 at [14].
the proposition that if there is nothing in a judge's ruling as to the acceptance and rejection of relevant evidence, the conviction can, and often will, be set aside for breaching the rules of natural justice.46
[93] Here, the appellant says the Judge gave no reasons and, aside from preferring the accuracy of the complainant's original statement, there was no other analysis undertaken. The appellant says this is exacerbated by the fact that other relevant information was not put before the Judge, including the statement of Ms Rasmussen, which would have provided evidence of an independent nature. Overall, the defendant submits the Judge breached the rules of natural justice for his failure to give reasons.
[94] The respondent notes the comments of the Court of Appeal in R v EF in relation to a charge of sexual violation by rape:47
[19] The circumstances which presented themselves to the Judge were neither unusual nor extreme. The Evidence Act reforms recognise the reality that at trial women retract truthful complaints of violence by partners whether out of fear, loyalty, self-blame or guilt. The new regime provides juries with the necessary evidential material to determine which of a complainant's conflicting accounts of events is true. There is no presumption favouring the evidential value or integrity of statements made on oath. A complainant's change of heart and attitude, for whatever reason, cannot of itself suffice to vest the Court with power to discharge an accused person under s 347.
[95] In this case, the respondent submits that the Judge had analysed the evidence at [34] of the decision. His Honour then considered the differences between the accounts of Ms Riley and Mr Cotter, such as how they became separated that evening and the number of times Ms Riley said she hit the appellant. His Honour also noted from the first statement that the fact she hid behind a hedge and knocked on a friend's door was consistent with who she was found with. The Judge also appears to have made credibility findings about the appellant at [38]–[40] of the decision.
[96] The respondent submits given the circumstances sufficient reasons were provided for the conclusions reached.
46 Kapa v Police [1989] 4 CRNZ 306 (HC).
47 R v EF (CA339/12) [2012] NZCA 402.
Analysis
[97] I consider the Judge gave adequate reasons for his finding that he preferred the complainants initial statement given on 2 August and produced by the police constable who took the statement to the version of events that Ms Riley gave in the witness box or Mr Cotter’s evidence.
[98] The version of events Ms Riley gave in the witness box was largely consistent with her second statement to which the Judge referred. The Judge had heard evidence that Ms Riley attempted to retract her first statement shortly after the event. He was aware she made another statement, dated 17 August which had been shown to her in cross-examination. He referred to the second statement of 8 August, although it was not an exhibit.48
[99] The Judge’s decision was based on credibility findings. He found the original statement of Ms Riley and the evidence of the constable who took that statement as to the circumstances to be the reliable evidence.
[100] The Judge’s reasons for finding the first statement of the complainant was reliable appeared throughout the judgment. For instance, the Judge said:49
[34] The first question in that regard then in terms of how I view the case is to ask what do I make of the complainant's evidence? My assessment, having seen her give evidence, having viewed the discrepancies between her statement and her subsequent evidence, having heard the further evidence arising from Constable Coman when re-called I reach the view that the truth from her was what she told the police officer on 2 August. The complainant's statement was given almost immediately after these events happened. It is simply a narrative that has been recorded by the police officer as matters have progressed during that statement, and I note that where there were discrepancies, for example, in para 2, the officer has written "Motueka" as the venue where the drinks had been consumed and clearly, has been corrected by Ms Riley and that happened on two occasions, and that has been amended and initialled by the complainant. She says in the statement that for example that there had been a decision to go to this party and that she walked home ahead of the group to put her phone on charge and to then re-join them by the time they caught up with her. In her evidence, she says that she did not want to go to the party and so simply went home and called her boyfriend and was annoyed when he did not answer. His evidence was that they were walking
48 District Court Decision, above n 1, at [25].
49 At [34].
together and that he was not even aware that she had parted company with him until later on when he met her on the street.
(Emphasis added)
[101] The Judge also referred to some inconsistencies in the evidence given by Ms Riley and by Mr Cotter, leading him to find that the complainant’s statement was more consistent with what was likely to have happened. Mr Cotter had signed the notes made by the constable of Mr Cotter’s responses when questioned on the night in question. Despite Mr Cotter later saying the notes were inaccurate and did not properly record his comments. The Judge found that Mr Cotter’s recorded comments in the notebook, which were signed at the time, corroborated the complainant’s formal statement that Mr Cotter was angry and aggressive. His oral evidence was that he was not.
[102]In addition, the Judge pointed out:50
(a)An important disclosure by the complainant to the constable was that she had been pushed to the ground and it was caused by a swing of the defendant’s hand. She had added further important words, which had been initialled in the statement: “that’s where he first choked me”.51
(b)That he preferred the complainant’s version of events that she had gone on ahead of the group to go home, rather than Mr Cotter’s version that she went into the house but he was unaware that she had done so, only later realising she was not with the group. The Judge said the complainant’s position that she went on ahead was consistent with her evidence that she never wanted to go to the party and she had explained why.
50 Ms Riley’s statement provided details of her being dragged around the kitchen and struggling to breathe. She said in the statement she ran away struggling to breath and trying to control her breathing because he might be looking for her. She said she hid in a hedge before going to the neighbour (Ms Rasmussen).
51 District Court Decision, above n 1, at [35].
(c)That Mr Cotter evidence he found her on the footpath and she was angry because he had left her did not fit in with what she had said.52
(d)Mr Cotter had signed the notes taken by the constable as the same but he now said the officer had not recorded them properly. The Judge said this was different from saying the comments were not true.53
(e)That the defendant said Ms Riley hit him a number of times, however, Ms Riley both in her first statement and in her evidence said she hit him only once. In the former she said was in response to his striking her and in the latter, it was a strike by her as aggressor.
(f)Ms Riley had provided credible detail in her statement, such as that Mr Cotter had verbally abused her, calling her, at [32]
(g)The constable checked on the complainant early the next morning while she was still at the hospital, and she said that her recollection of the previous night was becoming blurry and she could not be sure she was remembering everything.54
(h)Ms Riley had gone through her statement with sufficient care to make amendments which she initialled, at [29].
[103] The Judge was required to make a findings as to what evidence he found reliable. He did so and gave reasons for his preferring the evidence contained in Ms Riley’s first statement made close in time to the incident. While the reasons were not listed in one place in the judgment, they were adequate when the judgment is viewed as a whole.
[104] This is also a case where the Judge had an advantage in seeing and hearing the witnesses, in particular, that of Ms Riley and Mr Cotter. He concluded that neither
52 District Court Decision, above n 1, at [37].
53 At [38].
54 District Court Decision, above n 1, at [23].
were reliable in the witness box. He preferred the evidence version of the events set out in the first statement.
[105]Accordingly, the appeal fails on the grounds of failure to give adequate reasons.
Conclusion
[106] The affidavit of Ms Rasmussen is not fresh evidence nor is it material. The application for leave to admit it is dismissed.
[107] The appeal is dismissed. I have found that the errors alleged of counsel incompetence and failure of the Judge to give reasons are not made out.
[108] Even if one or both of those errors were made out, I would have found that no miscarriage of justice had occurred, due to counsel’s conduct of the defence. The Judge heard Mr Cotter’s version of events, Ms Riley’s evidence and her first statement. While there might have been matters of detail which counsel could have approached differently, the conduct of the defence was a matter of judgment and tactics. I do not consider that additional cross-examination and/or the evidence of Ms Rasmussen would have changed the outcome.
[109]Accordingly, the appeal is dismissed.
Grice J
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