Dick v Police
[2020] NZHC 1389
•19 June 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2019-412-000037
[2020] NZHC 1389
BETWEEN NIKKI JANE DICK
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 June 2020 Appearances:
C M Andersen for the Appellant R D Smith for the Respondent
Judgment:
19 June 2020
JUDGMENT OF NATION J
Introduction
[1] On 15 October 2019, Nikki Dick was found guilty on three charges of assault in a judge-alone trial before Judge Harding.1 On 16 October 2019 she was convicted, ordered to pay $200 emotional harm reparation, undertake 60 hours’ community work and placed on supervision for 12 months.2 There was a special condition requiring her to attend assessment, counselling and courses to address anger management and preventing violence as may be directed by the probation officer. Ms Dick appeals each of these convictions.
The trial
[2]The trial began on 15 October 2019 with Ms Dick facing four charges, that:
1 Police v Dick [2020] NZDC 4458.
2 Police v Dick [2019] NZDC 23535.
DICK v POLICE [2020] NZHC 1389 [19 June 2020]
(a) between 1 March 2016 and 30 March 2016, she assaulted the complainant (the arm incident);
(b) on 24 June 2016, she assaulted the complainant (the pushing incident);
(c) on 16 March 2017, she injured the complainant in such circumstances that, if death had been caused, she would have been guilty of manslaughter (the punching incident); and
(d) between 1 August 2017 and 31 August 2017, she assaulted the complainant (the gate incident).
[3] After the complainant had given her evidence at trial, the dates on charge (a) were amended to between 1 March 2016 and 31 April 2016. The dates on charge (b) were amended to between 1 July and 31 July 2016. Charge (c) was amended to another charge of assault. After the complainant gave evidence, the Judge dismissed charge (d), the complainant having given no evidence in support of that charge.
Background
[4] There was no dispute that Ms Dick and the complainant met and had the beginnings of a relationship in Dunedin some years before the alleged offending. Ms Dick then went to the North Island and was in a relationship with another person.
[5] In 2015, the complainant helped Ms Dick leave that relationship and return to Dunedin. Ms Dick joined the complainant and the complainant’s family in their home in Dunedin and said she became part of their family. The relationship at that time was loving and nurturing. However, over time, there was fighting between the two parties but, as the complainant said, also “a lot of love”. The difficulties became more pronounced after Ms Dick chose to spend Christmas 2015 away from the complainant. There were also recurring issues between the parties over Ms Dick’s former relationship. It was often the subject of heated arguments.
[6] The arguments often involved yelling and, on occasions, Ms Dick would just try to leave the house. On some such occasions, the complainant would try to stop her going and would grab her, sometimes holding onto her clothes. There were times
when Ms Dick pushed the complainant out of the way as she was trying to leave the house. Often when they fought, Ms Dick would throw and damage her cell phone.
[7] Both parties were also involved in incidents of self-harm. At the end of 2017, there was a particular incident when the complainant had surgical scissors and was trying to hurt herself. Ms Dick tried to grab the scissors from the complainant. The scissors were released suddenly and Ms Dick was injured. Both the complainant and Ms Dick said the injury was accidental.
[8] There were times when the parties were physically abusive towards each other and times when the complainant slapped Ms Dick on the face. Both parties recognised that the relationship was not good for their mental wellbeing. Most of the arguments and altercations occurred either when others in the complainant’s family were not at home or when the parties were in the bedroom. The arguments were upsetting for the complainant’s family, also for Ms Dick’s mother. Members of both families did what they could to have the parties face up to the problems in their relationship and take steps to stop the harm they were doing to themselves.
[9] Tragically, the complainant’s mother died unexpectedly in November 2016, after she was recovering from a minor operation. Her death was deeply distressing for all her family and for Ms Dick who lived as part of their family.
[10] Ms Dick left the complainant’s home around December 2017/January 2018. In evidence, the complainant said she kicked Ms Dick out of the house after the complainant was recovering from an appendix operation. Ms Dick said the last contact she had with the complainant was after they had stopped living together. They were in a car and the complainant was trying to obtain an explanation as to why they could not be together, with Ms Dick saying this would be too harmful for them both.
The complainant’s evidence
[11] As to the first charge (the arm incident), the complainant’s evidence was that they had been arguing. The complainant put her arm up because Ms Dick had raised her arm as if to hit the complainant. Ms Dick had used her arm in a “hammer motion” and “continuously hit” the complainant’s arm. Ms Dick then took off. The prosecutor
asked the complainant what had been “the result of being struck on the wrist?” The complainant said it resulted in her arm swelling. The complainant said she contacted a friend and, after about two hours, was taken by her friend to the After Hours and then to the hospital. She said she told the hospital she had “fallen down a bank or I had slipped on something”. The prosecutor then asked her what the result had been of her “wrist being struck numerous times”. The complainant said her arm was X- rayed and put into a cast. She said she was in a white plaster cast for two weeks and then she believed a fibreglass cast was put on for another four weeks, but she was not sure about that.
[12] The second charge (the pushing incident) occurred in July 2016. The complainant said they were yelling at one another and said “all of a sudden she pushed me, um, into an oil heater. I had fallen. The heater had fallen on me.” She said Ms Dick had thrown a cup at the TV but she was not sure as to when this happened. She said the glass cup smashed. She said this happened in “our bedroom”. The complainant said “she starting shoving me and ultimately I ended up being shoved into the heater. The heater fell on top of my leg.” She then said the heater was in the hallway but that either the complainant would have tried to walk away or Ms Dick would have walked away because “we always ended up following each other in arguments”. The complainant thought Ms Dick had ended up leaving after this incident.
[13] The complainant said friends took her to an appointment she had with her doctor that day. After the appointment, they came back to the house and cleaned up. Her friends then took her to the hospital where she said people at the hospital took photos of her bruising and her leg was X-rayed. She did not remember which leg. The complainant told people at the hospital she did not want the Police involved.
[14] The punching incident was alleged to have occurred on 16 March 2017. The complainant thought they had been arguing about her ex if she “remember[ed] rightly”. She said, in all honesty, the day was “a bit of blur”. She remembered being punched in the face, falling backwards and screaming a lot. She said it was a closed fist punch. She said she saw a doctor that afternoon and was very dizzy. She could not tell the doctor exactly what happened “cos it was a bit of a blur”. She also said
she told the doctor her partner had punched her in the face. She said she was sent for an appointment at the ENT department at the hospital but that was about all she could remember. She said “I feel like I had an ACC form” but could not remember if that was given to her on the day or not. She said the result of that appointment was that her “septum was deviated”. She was referred to a doctor at Fernbrae House. He did a lot of examinations to her nose and concluded that her septum was deviated as a result of which she underwent surgery months later, possibly in October 2017.
[15] The prosecutor then asked her to think about August 2017 and asked if there was an event at the complainant’s home. The question was obviously directed at the gate incident which Ms Dick was asked about in her Police interview. The complainant said nothing about this incident. The only incident she mentioned was as to what happened with the scissors.
Ms Dick’s interview
[16] Ms Dick was interviewed by Detective Henderson on 17 September 2018. The interview was recorded on DVD. In that interview, Ms Dick spoke of the background and nature of her relationship with the complainant.
[17] Ms Dick talked of the way she and the complainant would tussle, pulling each other’s clothes and grabbing each other, usually when they were arguing, but sometimes when she was trying to leave and the complainant was trying to stop her, or in connection with self-harm. She recalled an incident, after the death of the complainant’s mother, when they were arguing in a car. Ms Dick had thrown keys at the dashboard. They had bounced back and hit the complainant above one eye causing bruising. She said the complainant’s father heard the argument and was most upset. In the end, Ms Dick called her mother who came to the home and calmed the situation down. She said the worst thing that happened to her was when she was holding the complainant and the complainant bit her on the head but there were times she had bruises on her face from what had happened between the two of them. She could not recall an incident in April 2016 when she would have hit the complainant in the arm. She said all she could remember was “the key thing”. On being told the complainant said her arm had to be put in a cast after being hit, Ms Dick said her arm had been put
in a cast after the gate incident. Ms Dick said she had been trying to leave the property. The complainant followed and they were arguing at the gate. Ms Dick had slammed the gate and the complainant’s wrist had been hurt. She said she had not intended to hurt the complainant. She said the complainant had her arm or wrist in plaster after that incident. Ms Dick was adamant she had not intended to hurt the complainant and the injury had been an accident.
[18] When, at the end of the interview, the Detective put to Ms Dick the allegation of her hitting the complainant’s arm, she denied this had happened.
[19] As to the pushing incident, Ms Dick said she had never pushed the complainant into a heater. She recalled a time when she had thrown a cup of coke across a room and some had spilt on the heater. She spoke again of trying to leave after arguments but denied pushing the complainant in the way the complainant had described.
[20] At the conclusion of the interview, the detective put it to Ms Dick that the pair of them had been arguing, she was angry, pushed the complainant into a wardrobe door and shoulder barged the complainant into the walls. The result of that was her elbow crashed into the door, putting a hole in it. They had carried on arguing and moved into the hallway. Ms Dick pushed the complainant. The complainant had careered backwards into the heater and her legs had struck it. As a result, the complainant ended up with a big bruise on her leg. Ms Dick denied all of that.
[21] As to the punching incident, Ms Dick denied she had ever punched the complainant in the face. She said there had been a time, not immediately after any incident, when the complainant told her she had hurt her nose falling from the bed onto a bedside table. Ms Dick had been with the complainant when the complainant had an appointment with an anaesthetist prior to having nose surgery. She heard the complainant tell the anaesthetist this was how her nose had been hurt.
[22] During the interview, the detective put to Ms Dick, as a separate allegation, what must have been a complaint as to the gate incident in August 2017. Ms Dick explained again how the complainant had been chasing her after Ms Dick was trying to leave the property and how there was an argument at the gate. Ms Dick had
slammed the gate shut but said she did not deliberately swing the gate at the complainant.
Ms Dick’s evidence at trial
[23] Ms Dick gave evidence at the trial. She denied slapping the complainant on the face before the arm incident. She said she had not repeatedly punched the complainant on the arm or wrist around March or April 2016. Her counsel put to her the complainant’s evidence about her arm being put in a cast as a result of those blows. Ms Dick said she recalled the complainant’s arm being in a cast around that time but was pretty sure it resulted from a work injury. She could recall drawing on a cast. She recalled the complainant being in a cast a few times over the relationship, casts on both wrists.
[24] As to the pushing incident, Ms Dick said she could not recall the exact occasion the complainant was talking about but said she could recall many times trying to get past that area where the heater was situated in the room and either the complainant or her hitting the heater. She denied intentionally pushing the complainant with one or both hands and said the only reason either of them would have been in that situation was because one of them was blocking the other from leaving.
[25]As to the nose punching incident, Ms Dick said:3
I completely deny raising a fist to her and like I said before I can think of about three or four events that I can’t actually define separately that were all to the point where they were so rough, yeah, it was either both of us falling over at times, but I never ever punched, lifting a hand in the motion to punch.
[26] Ms Dick referred to photographs taken of her and the complainant at a Bulldogs rugby league game in Dunedin on 17 March 2017 and on 18 March 2017 at a function she and the complainant had attended with her nephew. She recalled them having a big argument around the time of the Bulldogs match, when she was trying to get out of the house. The complainant was pulling her back and they both ended up on the ground. She remembered them both getting hurt that day but said she had not
3 His Honour’s Notes of Evidence [“NOE”] at 46-47.
punched the complainant on the nose. She said the injuries “either of us always received were from one trying to get away or out from the other”.
District Court decision
[27] The Judge said neither the complainant nor Ms Dick were “crystal clear” about dates and sequences in the evidence. However, he noted that the complainant was straightforward, acknowledged when she could not remember or was unsure, and appeared to make appropriate concessions. She remained firm in her view of all three incidents.
[28] Conversely, the Judge found Ms Dick’s evidence to be unimpressive. He mentioned the significant pauses in her interview as she contemplated answers and said there were indications of reconstruction in those answers rather than relying on actual recall. He said his impression was that Ms Dick was genuinely unable to differentiate between incidents and was endeavouring to reconstruct what must have been rather than to recall what actually was, particularly in relation to the heater incident.
[29] The Judge found himself satisfied beyond reasonable doubt that, as a result of incidents between Ms Dick and the complainant, the complainant received an injury to her nose requiring surgery and, at some points in their relationship, she received injuries to her arms such as to require the installation of a cast. He found, on Ms Dick’s own evidence, she clearly behaved in an uncontrolled manner involving physical violence at least to property.
[30] The Judge explicitly said, where there was a material dispute between the complainant and Ms Dick, he preferred the complainant’s evidence. The complainant’s evidence was more compelling and was given with greater clarity, and her memory was materially better than that of Ms Dick’s.
[31] Additionally, Ms Dick confirmed the complainant’s evidence of her needing medical treatment both to her nose and her arm. There is thus at least some corroboration of the complainant’s version of events in Ms Dick’s evidence. On this evidence, the Judge found Ms Dick was not dissembling her recall.
[32] The Judge was thus satisfied that each of the charges of assault were proved, in that: there were repeated hits on an arm; there was a push into a heater which fell and caused problems to the complainant’s leg; and there was a punch or hit to the face which caused problems with the complainant’s nose. He found proved each of the charges still before the Court.
Principles on appeal
[33] Section 232(2)(b) Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.4 In Sena v Police, the Supreme Court clarified the proper approach under s 232(2)(b) is for the appeal court to form its own view of the facts and determine the appeal accordingly.5 It follows that, if an appeal court comes to a different view than the trial judge on the evidence, the trial judge has erred and there has been a miscarriage of justice, thus the appeal must be allowed.6 In s 232(2)(b), a trial includes a proceeding in which the appellant pleaded guilty.7
Appellant’s submissions
[34]For Ms Dick, Ms Andersen submits the Judge erred in:
(a) making credibility findings against Ms Dick when her evidence was not challenged in cross-examination;
(b) mistaking evidence relating to a charge no longer before the Court as being relevant to a live charge, and was cited as a basis for conviction;
(c) failing to properly resolve evidential disputes in making findings against Ms Dick; and
4 Criminal Procedure Act 2011, s 232(4).
5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [25].
6 At [38].
7 Section 232(5).
(d) not establishing the burden applied to establish the finding of Ms Dick’s guilt for each individual charge, and the basis for the finding.
[35] Ms Andersen submitted Ms Dick was not cross-examined by Sergeant Somerfield for the Police on any of the key allegations, in that none of those allegations were put to her.8 Therefore, the Police failed in its duty as prosecutor under s 92 Evidence Act 2006. Moreover, a failure to put to Ms Dick any matters at issue meant it was unreasonable for the Judge to make adverse findings as to her credibility.9
[36] Ms Anderson acknowledged the case law that states where a defendant has been able to fully put their case, issues of fairness do not arise in the failure to cross- examine.10 However, she says these cases related to single instances of omission in cross-examination, rather than a failure to cross-examine on matters at issue in their entirety. Thus, the Judge was at error in making adverse findings of credibility against Ms Dick where the Police failed in its duties under s 92 Evidence Act to put the key allegations to her.
[37] Next, Ms Andersen referred to a passage of the Judge’s decision where he cites evidence of Ms Dick swinging a gate into the complainant’s arm. She said this referred to evidence relating to a withdrawn allegation of an incident occurring between 1 August and 31 August 2017. Yet, the Judge relied on the evidence to find guilt on the first (remaining) allegation of assault (multiple hits to the arm). This amounted to an error in the Judge’s assessment of the evidence.
[38] Ms Andersen submitted significant evidential disputes were not resolved by the Judge in his assessment of the evidence. First, she cited the complainant’s conflicting evidence as to which side of the face she was punched. Moreover, while the Judge noted Ms Dick’s production of photographs taken one or two days after the alleged punch to the face not appearing to show a seriously damaged nose, the Judge did not resolve that evidential dispute. The complainant’s allegations also shifted through the course of the trial from a punch to the nose, to a punch to the left cheek,
8 NOE at 49–51.
9 Gutierrez v R [1997] 1 NZLR 192 (CA) at 199.
10 Solomon v R [2019] NZCA 616; Cummings v Police [2018] NZCA 622; R v Soutar [2009] NZCA 227; and R v Dewar [2008] NZCA 344.
to allegations she was punched to the right side of her face (after photos produced demonstrated no such injuries to the left side of her face).
[39] Secondly, as to the heater incident, Ms Andersen said the Judge noted Ms Dick was adamant there had been no direct application of force to the complainant but he failed to note the concession by the complainant that it was possible the push had been unintentional.
[40] Ms Andersen submitted, in discussing the evidential disputes, the Judge simply noted he found the evidence of the complainant more compelling as it had greater clarity and she appeared to have a better memory than Ms Dick. The disputes themselves were not specifically addressed or resolved in a reasoned manner, as required by the Supreme Court’s decision in Sena.11 For those reasons, there was an error in the Judge’s assessment of the evidence to such an extent a miscarriage of justice occurred.
[41] While the Judge stated he was satisfied beyond reasonable doubt of Ms Dick’s guilt on each of the charges, Ms Andersen submitted his actual findings amounted to a preference of the complainant’s evidence to Ms Dick’s. She inferred from this that his reasoning is on the balance of probabilities, rather than to the criminal standard. In coming to his findings of guilt, the Judge failed to systematically address each of the charges, the evidence relating to those charges, resolve the evidential disputes or make specific findings on each of the charges or specifying whether or not guilt was established beyond reasonable doubt.
Respondent’s submissions
[42] For the Police, Mr Smith referred to the Supreme Court’s statements in Sena as to what was required of a Judge giving a decision after a judge-alone trial. He submitted, with the way the case proceeded, the defendant was given the opportunity to give admissible evidence on the matters in conflict during evidence in chief. He submitted there had been no failure to cross-examine to the extent required by s 92 Evidence Act.
11 Sena, above n 5, at [36].
[43] Mr Smith submitted there had been evidence from Ms Dick at trial where she had acknowledged the complainant being in a cast during the period encompassed by the first charge, the arm incident. He said that was despite it being said in cross- examination of the complainant that Ms Dick would be giving evidence that the complainant’s arm was not at all in a cast over that period.
[44] As to the pushing, he suggested Ms Dick had acknowledged there was an incident in the hallway where the complainant was pushed over although denied it was deliberate. He said whether there had been a deliberate application of force was a matter for the Judge to determine on all the evidence.
[45] As to the punching incident, Mr Smith submitted Ms Dick had seemed to acknowledge the complainant did receive an injury in a scuffle around 16 March 2016 but denied a punching. He suggested there was an inconsistency in that, in her interview, the defendant had remembered bruising on the complainant’s face around the incident of 16 March 2017, but the complainant was cross-examined on the basis there had been no bruising as a result of a punching, as apparent from photographs which were produced of her soon after that time.
[46] He submitted Ms Dick, through counsel, had been given ample opportunity to cross-examine the complainant on the essential allegations so there had been no unfairness. Ms Dick had also given evidence as to certain matters which had not been put to the complainant when they should have been.
[47] As to the argument that the Judge had conflated Ms Dick’s statements in her interview about the complainant’s wrist being injured in an incident with the gate with the alleged incident where the complainant said her arm had been struck, Mr Smith said the Judge seemed to have relied upon that acknowledgement as an acceptance by Ms Dick that she may well have caused the injury to the complainant’s arm in the arm incident. He submitted that, on the evidence at trial, it was open to the Judge to find there were not two separate incidents. He submitted, relevantly, it had not been put to the complainant in cross-examination that the injury the complainant had spoken of as having been suffered in the arm incident had been caused in a completely separate incident. Nevertheless, relevantly for the purpose of this appeal, Mr Smith told me he
understood that the complainant, in her formal written statement to the Police, did complain of two separate incidents where she alleged Ms Dick had caused her injuries requiring the installation of a cast to her arm, the first from repeated blows to her arm in the period 1 March 2016 to late April 2016 and the second about August 2017. He acknowledged the complainant had given no evidence about the incident in August 2017.
[48] Mr Smith said the Judge had rejected the evidence as to the gate as some sort of concoction, there thus being no conflation of what Ms Dick had to say about two separate incidents and that being relied on by the Judge to explain his finding that there had been blows to the arm in 2016 as the complainant claimed.
[49] As to the alleged punch to the nose, Mr Smith referred to evidence given by the complainant and evidence from Ms Dick at trial which he argued had provided a reasonable basis for the finding the Judge came to, likewise with the pushing incident. He suggested the concession made by the complainant ultimately in cross- examination, that the pushing may have occurred while Ms Dick was attempting to leave the property, was only as to a possibility. He said the complainant had been firm in her evidence that she had been subjected to a purposeful push.
[50] Although the Judge had said, where there was a conflict between the evidence of Ms Dick and the complainant, he preferred the evidence of the complainant, ultimately in his determinations the Judge had considered whether or not the essential allegations had been proved beyond reasonable doubt. He submitted the Judge had given reasons for his determinations as to credibility in the manner required by the Supreme Court’s judgment in Sena.12 He acknowledged the Judge’s reference to preferring the evidence of the complainant was “unfortunate” but said it was clear the Judge adopted the correct approach to assessing the evidence and applied the correct standard of proof.
[51] Mr Smith submitted that, with the way the trial proceeded and with the explanation the Judge gave for his determinations, there was no miscarriage of justice.
12 Sena, above n 5.
Discussion
[52] I consider that, in his judgment, the Judge did engage with what was in issue as to the essential elements of the charges. Ultimately, he considered whether the charges had been proved applying the correct standard of proof on each charge. He gave reasons for his findings as to credibility to the extent required by the Supreme Court in Sena.
[53] However, given what had been put in issue through Ms Dick’s statements in her interview, there were particular issues on which a determination was required relevant to the overall assessment of credibility as to each charge. In certain significant respects, which I discuss below, I consider the Judge failed to deal with those issues.
[54] I do consider the Judge made a mistake in treating evidence from Ms Dick as to the gate incident as relating to the arm incident and drawing adverse inferences as to Ms Dick’s credibility because of this. Mr Smith submitted the Judge could not have conflated the two incidents because he had rejected the evidence of Ms Dick as to the gate incident. The Judge could not have reasonably rejected Ms Dick’s evidence as to what happened in the gate incident. She gave a clear description of such an incident in her Police interview. She described how others in the complainant’s family had been aware of what happened. The Police charged her with an assault based on that incident.
[55] I also accept the Judge made an overall assessment as to the credibility of the complainant and then applied that assessment to determine all charges without sufficiently considering whether the Police had proved each charge separately and whether the prosecution had discharged its burden of proof on each charge separately.
[56] As stated earlier, on appeal, I am required to form my own view of the facts and determine the appeal accordingly.
[57] I have considered all the evidence before me to arrive at my own conclusion on the facts. I have done this conscious of the responsibility an appeal court has to assess whether a miscarriage of justice has occurred. I am conscious I did not have the advantage of seeing the complainant and Ms Dick give evidence in Court. It is
however accepted that the demeanour a witness has in giving evidence may not be the best indicator of their honesty or reliability as a witness. A trial Judge has the advantage of hearing and seeing the context in which a question is put and answered. The transcript nevertheless accurately records what was asked of the witness and what the witness said in response. It is in that way the record assists an appellate court in reaching a view as to credibility of a witness.
[58] Importantly, in this case there was a lengthy interview of Ms Dick. That interview was recorded on DVD so that I am as well able to assess what Ms Dick said in that interview and how she came to say it, as was the trial Judge.
[59]The Judge said:13
[Ms Dick’s] evidence in interview was not impressive. There were significant pauses as she contemplated answers and she clearly did not recall a number of matters. In a number of situations of [sic] her evidence there were indications of reconstructive answers rather than answers relying on actual recall.
[60] My assessment of the interview is different. Ms Dick participated willingly in the interview. She did not hesitate over proceeding in the interview without benefit of legal advice. She appeared to respond genuinely when asked to describe in general terms the nature of her relationship with the complainant. In doing so, she for instance mentioned the untimely death of the complainant’s mother, the way it had affected everyone in the complainant’s family and Ms Dick herself, and the pressures that arose from that, especially for the complainant. In talking about this, she seemed upset. She told the detective that it was the first time she had spoken of the mother’s death in this way.
[61] Ms Dick spoke positively of the complainant, of her being a good person. She described how the complainant had rescued Ms Dick from the abusive relationship Ms Dick had been in for a number of years in the North Island.
[62] Ms Dick acknowledged how, in the end, her relationship with the complainant was harmful for them both. She talked about how others in both families recognised this and urged them to get help. She acknowledged there had been a time when she
13 Police v Dick, above n 1, at [24].
ceased taking medication needed for her epilepsy. This led to her having epileptic seizures which put her at risk and was not fair to the complainant’s parents. She showed no animosity towards the complainant’s family and expressed considerable gratitude for the way they took her back into their home and treated her as part of the family, all this some years after their initial relationship had ended.
[63] Even before the complainant’s allegations were put to her, Ms Dick told the detective they had a relationship where both were inclined to resort to self-harming behaviour and, on occasions, one or the other would seek to intervene to stop this from happening. She said, when their relationship deteriorated, there was often heated verbal exchanges and physical tussles. She said these often occurred when, after such an altercation, Ms Dick would try to leave the complainant’s home. She said she knew the home was the complainant’s safe place and the complainant was entitled to that security. She however spoke of occasions when the complainant would try to stop her leaving, occasions when the complainant pursued her down the street and other people observed what was happening.
[64] The picture Ms Dick presented in her interview was of a relationship which was ultimately harmful for them both but, nevertheless, one from which she had benefited and was grateful for over a significant period.
[65] In talking about her relationship generally, Ms Dick said the worst incident occurred when the complainant had taken surgical scissors from Ms Dick and was trying to stab herself with them.
[66] Without it having to be put to her, Ms Dick accepted she had on occasions thrown cell phones when she was angry. She talked of an occasion when, during an argument, she threw an Xbox. She spoke of an occasion when the complainant bit her on the head but explained this was when Ms Dick had been holding onto the complainant in a way the complainant did not like.
[67] Without it being put to her as an allegation, Ms Dick told of an occasion when they were in a vehicle and had an argument. Ms Dick had thrown the keys at the dashboard. The keys bounced back and hit the complainant above the eye causing a
cut. She said that incident led to others in the complainant’s family and Ms Dick’s mother intervening and telling them they needed to get help with their relationship. Ms Dick spoke of an occasion when the complainant needed surgery. She said the complainant told her she had fallen off the bed and hit a table. She said they spoke to an anaesthetist together in connection with the surgery. She heard the complainant say this was how she had hurt her nose.
[68] I have been able to carefully watch and listen to the interview of Ms Dick on several occasions in a way that would not have been possible for the Judge, in observing the interview only during the trial, before having to give his decision. I do not accept there were significant pauses in the interview which adversely affect my assessment as to the honesty and reliability of the statements she made in that interview. There was some hesitation when Ms Dick was first asked about the arm incident but that could be explained by her genuinely trying to recall whether there was such an incident. The only other time I discerned hesitation was at the end of the interview. By that time, she had already responded to the allegations. The detective then said he was obliged to put the allegations to her. He did that by making a statement as to what the allegation was. It was not put as a question. Ms Dick listened to what he had to say. At one point she responded by saying “I am listening”. It was clear to me there was a delay in her response because she did not know what was expected of her. She did not appreciate she was being asked a question. When the detective clarified with her that he wanted to know whether she accepted the truth of the allegation, she made it clear she did not.
[69] I have had the advantage of being able to make my assessment away from the pressures of a trial. In that interview, it was clear Ms Dick denied hitting the complainant on the arm in an incident around March or April 2016 but recalled an incident where, as a result of an altercation, the complainant’s wrist had been put in a cast. That was the gate incident which occurred in August 2017. There was a charge relating to that incident. She explained how she had not intended to hit the complainant with the gate. The charge related to that incident was dismissed because the complainant gave no evidence about it.
[70] Ms Dick accepted there had been incidents where she and the complainant pushed or pulled at each other, on occasions when Ms Dick was trying to leave the house after an argument. She did not recall the incident where the complainant spoke of being pushed into a heater. In evidence, Ms Dick said she could recall many times trying to get past that area with “her or I hitting the heater”. The Judge was not correct in saying she:14
… acknowledged that there could have been an incident with a heater during which she was endeavouring to leave and may have accidentally in effect tripped or forced the complainant into the heater, perhaps with consequences such as those described by the complainant.
[71]The Judge however did accurately recall the evidence in saying:15
She was adamant that at no time had she deliberately applied any force to the complainant and she denied the pushing into the heater incident happened in those terms at all.
[72]Ms Dick firmly denied ever punching the complainant in the nose.
[73] I consider Ms Dick was honestly describing what she remembered when she was interviewed about the complainant’s allegations. Consistent with this, I note the Judge observed in his decision that, in explaining why he preferred the evidence of the complainant, he considered Ms Dick had provided “some limited corroboration for the complainant’s version of events. I do not think that the defendant was dissembling in her recall.” The defendant’s clearest recollection of events and most coherent account was in her interview. In saying that she had not dissembled, the Judge seemed to be observing that she had been honestly recalling events. That coincides with my assessment.
[74] I did not discern obvious indications of Ms Dick reconstructing a version of previous events when she was being asked about what she could recall during the interview. She spoke of incidents she could remember with some detail but detail of the sort she might well have remembered even though those events had occurred some years previous. There were other instances where she said she could not recall events.
14 Police v Dick, above n 1, at [14].
15 At [14].
She did not provide detail as to a specific event differentiating that event from others in a way that might have been indicative of a reconstruction.
[75] In his decision, the Judge said the complainant’s evidence of receiving treatment to her nose and arm was confirmed by Ms Dick “although in different terms”. He nevertheless said, in this regard, Ms Dick’s evidence provided “some limited corroboration for the complainant’s version of events. I do not think that the defendant was dissembling in her recall”.
[76] I do not consider Ms Dick’s evidence in speaking about the cast, either in her Police interview or at the trial, in any way corroborated the complainant’s evidence.
[77] In her evidence, Ms Dick was clear that the complainant had her arm in a cast as a result of the accidental injury suffered with the gate. At trial, she denied having hit the complainant in the arm in the way the complainant had described. She did say the complainant’s arm could have been in a cast around March/April 2016, but in no way did she suggest or accept that the complainant’s arm was put in a cast as a result of Ms Dick hitting it. Ms Dick said, if the complainant’s arm was in a cast around that time, it could have been because of an injury she had suffered at work.
[78] The Judge said he had to attach less weight to Ms Dick’s evidence as to that possibility because it had not been put to the complainant in cross-examination. There was however evidence that the complainant had suffered from arm injuries unrelated to any alleged assault. At one point in her interview, Ms Dick mentioned the complainant suffered from a scaphoid condition, a condition which she referred to again when giving evidence as to how the complainant could have had her arm in a cast around March/April 2016.
[79] The complainant had talked about blows to her arm having been suffered in April 2016. Under cross-examination, she said this was not the first time her arm had been in a cast.
[80] Ms Andersen endeavoured to lead evidence from Ms Dick as to a photograph that had been emailed or otherwise messaged to her during 2015 showing the
complainant’s arm in plaster. Associated with it were text messages that would have shown the complainant had her arm in plaster earlier in 2015, at a time when Ms Dick was still in the North Island. The transcript records that the Police prosecutor objected, saying the photograph was not date stamped. Ms Andersen then endeavoured to question Ms Dick as to the timing of the photograph through reference to the associated messages. The transcript records there was then a legal discussion and that line of questioning ceased.
[81] I enquired of counsel as to what happened at that point. As a result, I received a copy of the photograph and the relevant associated messaging. That photograph and the messages showed the complainant had her arm in a cast in 2015, probably at a time when Ms Dick was still in the North Island.
[82] I have listened to the recording of what was said in the discussion. The Police prosecutor referred to there being no time stamp on the photograph. The Judge said to the prosecutor he would have to wait and see what came out but then added:
There is nothing on this document that identifies the date. There is already evidence from this witness that the complainant had casts quite a lot so whether this can be tied into anything that we are concerned with I don’t know.
[83] Ms Andersen did not ask Ms Dick further questions as to the photograph or the timing of it.
[84] Ms Dick’s case, clear from her interview, was that the complainant’s arm or wrist was placed in a cast after an incident involving Ms Dick but this was as a result of the gate incident. Ms Dick was not saying, as a defence, that the complainant’s arm was never put in a cast around March/April 2016. Whether or not the complainant could have suffered an injury in a manner not connected to any of Ms Dick’s actions was relevant in assessing the complainant’s credibility as to whether she suffered an injury in the way she described in the arm incident.
[85] Ms Andersen did not, as she should have, cross-examine the complainant as to whether, if the complainant’s arm was in a cast around April 2016, this could have been the result of a work-related injury. Despite that, Ms Dick’s evidence was, if the complainant’s arm or wrist was in a cast around that time, it would have been as a
result of an injury not connected with any assault. If that explanation was not to be accepted by the prosecutor, in terms of s 92 Evidence Act, the prosecutor should have cross-examined Mr Dick, should have showed her the explanation was not accepted and given her the opportunity to respond. He did not do so.
[86] The way the trial proceeded may explain why I consider the Judge did unjustifiably treat what Ms Dick had to say about the complainant’s wrist being put in a cast after the gate incident as, in some way, corroborating what the complainant had said about injuries being suffered in the March/April 2016 incident. Mr Smith told me that, according to the complainant’s statement, there were two incidents when she was in a cast. If that was the case, the prosecutor did nothing to clarify the situation, through further questioning of the complainant, or cross-examination of Ms Dick as to her explanation for the complainant having her arm in a cast as a result of an incident involving Ms Dick, an explanation she had clearly given in her interview. This was evidence on which, in terms of s 92 Evidence Act, she should have been cross- examined if that explanation was being challenged. The complainant’s evidence at trial related to only one incident.
[87] The potential for the Judge to unfairly conflate Ms Dick’s evidence about the gate incident as a reconstruction of what happened in the arm incident also increased because Ms Andersen did not put to the complainant Ms Dick’s evidence from the interview as to how the complainant’s wrist was in a cast as a result of the gate incident. No doubt, this was because the complainant had said nothing about the gate incident when giving evidence, even though it was the subject of a charge and the gate incident figured in the allegations put to Ms Dick in her interview.
[88] Ms Andersen probably did not want to give the complainant the opportunity to provide evidence in support of a charge which she had not given when the prosecutor led evidence from the complainant. The complainant’s evidence should not have been treated as being of no weight on that basis. Through her evidence from the interview, the prosecutor was on notice as to Ms Dick’s explanation for a wrist injury before trial so had the opportunity to cross-examine Ms Dick about it if it was to be suggested her explanation was either a fabrication or a reconstruction as to the arm incident. Ms
Dick’s account of the gate incident in her interview seemed credible. The gate incident was the subject of a charge.
[89] There was also potential for confusion because, in the gate incident, Ms Dick had spoken of the complainant suffering a wrist and thumb injury as a result of which her wrist was put in a cast. In the interview, the detective put it to Ms Dick that, as a result of the blows Ms Dick had struck to the complainant’s arm, the complainant’s thumb had been injured, necessitating the visit to the hospital and her arm being put in a cast. In the arm incident, the complainant spoke at trial of being struck on the arm but the prosecutor then questioned her as if she had been struck on the wrist.
[90] It was put to the complainant in cross-examination that her arm was not in a cast as a result of an April 2016 assault. The complainant said her arm was in a cast twice as a result of an assault but she had given no evidence as to a second such assault when giving her evidence in chief. It was not an allegation the prosecutor put to Ms Dick when she gave evidence or asked the complainant about on re-examination.
[91] At the trial, the complainant spoke of her arm swelling through being hit. She gave no evidence of her thumb being injured, but this was the allegation put to Ms Dick in her interview to which Ms Dick responded by referring to the gate incident.
[92] I do not consider there was any evidence from Ms Dick, either when she was interviewed or when she gave evidence, that could be taken as providing even limited corroboration of the complainant’s evidence that the complainant’s nose was injured as a result of being punched by Ms Dick. In her interview, Ms Dick recalled a time when the complainant suffered minor injuries when Ms Dick threw keys at the car dashboard and they bounced back and hit the complainant above the eye. Ms Dick said she remembered the complainant having a bruise to her face but that was in relation to the key incident.
[93] Both the complainant and Ms Dick were involved in heated verbal and physical arguments with each other. They were both involved in instances of self-harm. I do not consider the fact Ms Dick threw and damaged objects, such as a cell phone, made
it more likely that she participated in specific assaults in the way the complainant alleged.
[94] In the context of this summary trial and the issue as to whether there has been a miscarriage of justice, I consider it also significant that there was no medical evidence corroborating the complainant’s evidence as to the treatment she says she received at the hospital and from other doctors. The prosecution took this matter to trial with Ms Dick facing a charge, amongst others, that Ms Dick had injured the complainant in such circumstances that, if death had been caused, she would have been guilty of manslaughter.
[95] It was put to the interviewing detective that, after what was referred to as the hammer allegation, he asked the hospital for relevant medical details. It was put to him that nothing came back confirming the complainant’s wrist had been X-rayed and then placed in a plaster cast in the period between 1 March and 30 April 2016. The detective said he could not recall what information the hospital provided so he was not in a position to argue it through cross-examination.
[96] Ms Andersen established that the detective had sought information relating to the charging documents and thus for the period between 1 March 2016 and 31 August 2017. After the detective said he could not recall what information the hospital gave him, Ms Andersen asked the question “you don’t recall receiving any information that would have related …”. The Judge intervened and said “that is enough”.
[97] Fairness required, first, that the Police tell the Judge what information they had received from the hospital or other medical people who had dealt with the complainant in connection with the alleged incidents. Detective Henderson had referred to the enquiries Police had made of medical specialists when interviewing Ms Dick as if the information obtained was supportive of the complainant’s allegations. Ms Andersen’s questions of Detective Henderson and an earlier objection she made when the complainant referred to being X-rayed after the arm incident, suggests that, having received disclosure from the Police, Ms Andersen knew the Police had not received any information from medical authorities which corroborated the complainant’s evidence, at least as to being X-rayed and having her arm in plaster after the arm
incident. Police evidence as to what they had been told by hospital authorities was likely to have been hearsay. The Judge could have chosen to disregard it for that reason. In a trial, the Judge could also, to ensure fairness to the defendant, have found out what information had been provided to the Police and could then have decided whether, given the potential reliability of that information and the unavailability of hospital witnesses, the hearsay evidence would nevertheless be admitted and taken into account. I consider the peremptory way in which the Judge required Ms Andersen to cease questioning Detective Henderson as to this was likely to have been unfair to Ms Dick.
[98] In the particular circumstances of this case, when there were significant issues as to the credibility of both the complainant and the defendant, I do weigh in the balance the fact there was no corroborative medical evidence presented consistent with what the complainant said as to how she had been assaulted, the particular injuries she sustained, X-rays and treatment.
[99] As to the pushing incident, the complainant accepted under cross-examination that the pushing may have occurred in connection with Ms Dick attempting to leave the house. The complainant’s evidence was that Ms Dick pushed her and she fell on a heater that was up to about knee height. It would thus seem that she fell either against or onto a heater. Inconsistent with that account, she also said the heater fell on her leg causing it to bruise and swell. Her account of what happened, in terms of how her leg was injured, seems somewhat improbable.
[100] In the interview of Ms Dick, the detective had also put the complainant’s account of that incident to Ms Dick. Included in it was detail as to Ms Dick pushing the complainant into a bedroom door, shoulder barging her into walls and Ms Dick putting a hole in the door with her elbow. None of that detail was recorded as definitely part of this incident when she gave evidence about it at trial. The detail included with the allegations, as put to Ms Dick at interview, causes me to be concerned that, in the complainant’s recollection of this incident, there was considerable potential for unreliable reconstruction.
[101] At trial, the complainant said they had been yelling at each other in the bedroom. The complainant said, all of a sudden, Ms Dick picked up a cup and threw it at the TV, then started shoving the complainant and, ultimately, she ended up being shoved into the heater. She said, when she was shoved into the heater, it was “just in the hallway. So, it had moved, cos I would have tried to walk away or she would have walked away and we always ended up following each other in arguments”. She was not sure if that happened the day she said she was shoulder barged into a wardrobe.
[102] The complainant was cross-examined to the effect that the pushing could have occurred as Ms Dick was trying to get past the complainant while attempting to leave the house. The complainant accepted that was a possibility.
[103] Ms Dick, in her evidence, denied ever intentionally pushing the complainant with one or both hands. She said “the only reason I ever would have, either of us would have been in that situation was because one of us was blocking the other from leaving”.
[104] The prosecutor did not cross-examine Ms Dick over that evidence, as s 92 required him to do if her evidence as to how a pushing could have occurred was not to be accepted.
[105] The Judge said he was satisfied there was a push into a heater but did not determine whether this could have occurred as Ms Dick was attempting to leave the house and had her way blocked by the complainant.
[106] The assault however related to the pushing. In the context of evidence both the complainant and Ms Dick gave as to the way they argued, ended up tussling with each other and the way the complainant, at times, sought to stop Ms Dick from leaving the house, I accept it was reasonably possible that, whatever shoving or pushing occurred, happened as Ms Dick was attempting to leave the house.
[107] Both parties were attempting to recall an event which had occurred more than three years prior to their giving evidence at trial. It was just one incident in a relationship where they were often mutually involved in physical altercations. In all
the circumstances, as apparent from the evidence, I am left with a reasonable doubt as to whether an assault occurred in a way that would have justified either a guilty verdict on this charge or a conviction.
[108] As to the punching incident, the complainant’s evidence was that she was punched in the face in a way that left her dizzy and her nose was injured in a way that resulted in her having a deviated septum which required surgery. The operation did not take place until a number of months after the alleged incident, an unusual delay. A deviated septum does not have to result from an injury, but it was the complainant’s evidence it was a punch from Ms Dick that caused the injury. When sentencing Ms Dick, the Judge said the complainant had suffered from what “is colloquially referred to as a broken nose”.
[109] The complainant was cross-examined extensively as to what she remembered of exactly where she was punched and whether it was on the left or right side of her face. The complainant’s answers about this were somewhat contradictory but she was consistent in that, whichever side the punch was to, she was hit on the nose and there was swelling.
[110] Under cross-examination, the complainant accepted that, on the day after this alleged punching and serious assault, she attended a Warriors rugby league game with Ms Dick and the next day she attended another event with her young nephew. On both occasions, close-up photographs were taken of the complainant’s face. They clearly showed both sides of her nose. The complainant accepted that photographs taken of her at that time showed no sign of bruising or swelling on her face.
[111] Ms Dick gave evidence of going to the Warriors game and the next day to a function with the complainant’s nephew. She took photographs of the complainant at the Warriors game on 17 March 2017 and also on 18 March 2017 when the complainant was with her nephew. She remembers that on one of the days before the Warriors game they had a huge argument. They were both at the back door. The complainant was pulling clothes. Ms Dick tried to get out of the house. The complainant blocked her way. She remembered them both getting hurt that day but
she said she did not punch her on the nose. She said the injuries they always received were from one trying to get away or out from the other.
[112] The complainant said her septum was deviated and she had surgery to fix it. She said, after being at the hospital, she was referred to a Dr Ryan at Fernbrae House. He did a lot of examinations of her nose and concluded that her septum was deviated and she needed surgery to fix it. She thought the surgery might have happened in October 2017.
[113] In his decision, the Judge noted that Ms Dick denied ever punching the complainant with a fist and, in the interview with the Police, Ms Dick said the complainant told her she had fallen off the bed and hit the side table, causing an injury to her nose. He said that proposition had not been put to her in cross-examination. The Judge, I infer, gave less weight to that evidence on the basis it had not been put to the complainant in cross-examination. It should have been, especially because Ms Dick had told the detective of how the complainant had talked of receiving this injury when she was interviewed by the Police about it.
[114] The Judge accepted the photographs taken of the complainant a day or two after this occasion were full-frontal, in effect showed both profiles and did not appear to show the complainant as having a seriously damaged nose. The Judge nevertheless said he did not find the photographs particularly of assistance in determining matters before him.
[115] Reconsidering all the evidence, as I am required to do, I do not dismiss the relevance of the photographs in such peremptory fashion. There is no evidence in the photographs of the complainant having suffered a broken nose. She also appears to have posed willingly with Ms Dick for close-up photographs of them both without any apparent unease or discomfort as to what the photographs might show.
[116] The photographs leave me with a reasonable doubt as to whether the complainant was punched on the nose in the way she described.
[117] The complainant had also made a complaint to the Police about an alleged assault occurring in August 2017 in which she must have complained that Ms Dick had deliberately slammed a gate on her with the intention of hitting and hurting her. At trial it seems the complainant had no memory of that incident, despite the way she must have complained to the Police she was injured through what happened and must have complained the injury was a result of an assault.
[118] On my review of all the evidence, I conclude that the evidence was not sufficient to prove each of the charges beyond reasonable doubt. For that reason, there has been a miscarriage of justice. The appeal is allowed. The convictions and sentence are quashed.
Solicitors:
C M Andersen, Barrister, Dunedin RPB Law, Dunedin.
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