Edmunds v Police
[2014] NZHC 1498
•1 July 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-37 [2014] NZHC 1498
BETWEEN KAYLEN NICOLAS EDMUNDS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 24 June 2014 Counsel:
M Boyd for Appellant
M J Ferrier for RespondentJudgment:
1 July 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 1 July 2014
at 4.45 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitors Office, Wellington
EDMUNDS v NEW ZEALAND POLICE [2014] NZHC 1498 [1 July 2014]
Introduction
[1] This is an appeal against conviction on a single charge of male assaults female entered by Judge Gittos.1 The Judge imposed a sentence of one years’ supervision and 100 hours’ community work.
[2] The informant called two witnesses – an independent eye witness, Mr Brown, and the arresting officer, Constable Osborne. The appellant gave evidence on his own behalf.
Facts
[3] The appellant was convicted of assaulting his former partner, Ms Jeffries, with whom he has had an intermittent five year relationship. They have two children together. On 10 October 2013, the appellant and Ms Jeffries were walking on the road, after having been drinking at a nearby location. Mr Brown saw the pair near a service station. While he was inside the station purchasing food, his attention was drawn to the couple. According to Mr Brown, Ms Jeffries was screaming loudly. He saw the appellant approach her, put his arms around her and push her bodily to the ground. He described Ms Jeffries as being on the ground and on her back, with the appellant crouched above her making motions with his arms that appeared to be consistent with punching.
[4] Throughout this time Ms Jeffries continued to scream and protest. Mr Brown called the police. He then observed Ms Jeffries get up off the ground and begin walking with the appellant along the road.
[5] The police arrived and Constable Osborne spoke to the appellant, who initially gave false particulars. He was cautioned and elected to make no statement at the scene or at the police station later. Constable Osborne said the appellant did not appear intoxicated. Ms Jeffries refused to receive treatment and Constable Osborne said he did not speak to her or have a chance to assess whether
she had suffered any injuries because she was standing 15 metres away.
1 Crimes Act 1961, s 194(b).
[6] The appellant gave evidence at the hearing. He said he had been drinking with Ms Jeffries and they began arguing. He acknowledged that they were walking in the vicinity of the service station where they were seen by Mr Brown. His evidence was that Ms Jeffries appeared to have fainted, fell to the ground and was “fitting”. He said he kneeled over her in order to put her into the recovery position. He maintained that she fell without any assistance from him and that he did not strike her when she was on the ground or at any other time.
[7] Ms Jeffries did not appear or give evidence. She had been summoned to give evidence for the prosecution and was notified to the defence as a police witness. Defence counsel only became aware Ms Jeffries would not be called as a witness during the opening of the case for the police.
[8] At the close of the prosecution case, the Judge declined to hear the defence submission of no case to answer.
The District Court decision
[9] The Judge reviewed the evidence provided by the appellant, Mr Brown and Constable Osborne and came to the view that there were “very obvious inconsistencies between Mr Edmunds’ story and the observations of Mr Brown”.2
[10] His Honour observed that, if Mr Edmunds had been giving assistance to Ms Jeffries, “it is surprising that he did not make that clear to the police at the time”. Similarly, the Judge found it surprising that he had not enlisted the support of Ms Jeffries to substantiate his explanation at the time of the incident.3
[11] The Judge placed significant weight on the fact that Mr Edmunds said Ms Jeffries was silent and unconscious before she recovered sufficiently to continue shouting at him; whereas Mr Brown’s evidence was that Ms Jeffries continued
screaming throughout the entire incident.4 The Judge concluded that he did not find
2 Edmunds v New Zealand Police DC Hutt Valley CRI-2014-096-0520 at [12].
3 At [12].
the appellant’s account credible and found Mr Brown to be an “honest and impartial witness”.
Grounds of appeal
[12] The appellant has appealed on the following grounds:
(a) that the procedure of the Judge alone trial was unfair. In particular, defence counsel was advised that Ms Jeffries had been summoned by the prosecution but was not present; and the Judge failed to hear and consider defence counsel’s submissions of no case to answer regarding a lack of evidence about key elements of the charge;
(b)that the Judge erred in his assessment of the evidence in a material way that was likely to impact on the outcome of the trial. In particular, the Judge drew an illegitimate inference of guilt from the appellant maintaining his right to silence when interviewed by police and also failed to consider that an honest and impartial witness may not be reliable.
Submissions
[13] Counsel for the appellant, Ms Boyd, submitted that proceeding without Ms Jeffries was unfair, given the Judge expressed surprise that Mr Edmunds had not enlisted her support in explaining his version of events. She said defence counsel would have considered summoning Ms Jeffries, had the police not already done so.
[14] In response, the Crown submitted that, in the circumstances of the charge and facts as alleged, it is not unusual for a complainant to not be called as a witness. The Judge had reminded himself that “there is no evidence from the complainant and one cannot draw any adverse inference from that”. Further, the complainant apparently had no further contact with the police after the incident.
[15] The Crown’s submission is that, even if the complainant had been called as a witness and given evidence at the trial that was consistent with the appellant’s
narrative, the Judge would still have been required to consider that evidence against the evidence given by Mr Brown. Alternatively, the Crown submitted that, if the appellant required the complainant to be there, he could have applied for an adjournment of the trial.
[16] Ms Boyd referred to s 105(5) of the Criminal Procedure Act 2011 as preserving the right of defence counsel to make a submission of no case to answer at the close of the prosecution case. The Judge had made no formal ruling on the no case to answer application, which, Ms Boyd submitted, amounted to a breach of the appellant’s right under the Criminal Procedure Act 2011 and was a procedural error resulting in an unfair trial.
[17] The Crown submission in response is that it was open to the Judge to decline to hear the defence submission of no case to answer, in light of the evidence offered by the prosecution, and in particular the evidence of Mr Brown.
[18] Ms Boyd argued that the Judge had erred in his assessment of the evidence in expressing surprise that the appellant had not given his explanation of the incident to the police officer at the time of the incident; and that the giving of false particulars was relevant as it militated against an innocent disclosure.5 Ms Boyd cited s 32 of the Evidence Act 2006, which provides:
32 Fact-finder not to be invited to infer guilt from defendant’s
silence before trial
(1) This section applies to a criminal proceeding in which it appears that the defendant failed—
(a) to answer a question put, or respond to a statement made, to the defendant in the course of investigative questioning before the trial; or
(b) to disclose a defence before trial. (2) If subsection (1) applies,—
(a) no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and
(b) if the proceeding is with a jury, the Judge must direct the jury that it may not draw that inference from a failure of that kind.
[19] In the Crown’s submission, no miscarriage of justice had arisen from this feature of the Judge’s reasoning, as the Judge had reminded himself that:
… one cannot draw any adverse inferences from the accused’s silence; he is entitled to maintain his silence, but I do not find his account credible.
[20] The Judge dismissed the appellant’s evidence, based on his assessment of the appellant’s credibility. He did not draw any inference of guilt from the appellant’s initial silence.
[21] The Crown’s further submission was that the Judge was entitled to draw an adverse inference as to the appellant’s credibility, based in part on the fact he initially provided false particulars to the police; and on the inconsistencies between the appellant’s account and Mr Brown’s observations.
[22] Ms Boyd’s submission was, however, that the Judge erred in his finding of guilt based on Mr Brown being an honest and impartial witness. She said there is a distinction between credibility and reliability.6 While the Judge had accepted Mr Brown as an honest and impartial witness, he had not made a finding in relation to reliability. In Ms Boyd’s submission, Mr Brown was not a reliable witness. In support, she highlighted inconsistencies in Mr Brown’s evidence regarding the way
Mr Edmunds had brought Ms Jeffries to the ground, in Mr Edmunds’ actions towards Ms Jeffries while she was on the ground, in the noise made by Ms Jeffries throughout the incident, and in Mr Edmunds’ level of intoxication and the distance from which Mr Brown had observed the incident.
[23] In response, the Crown submitted that it was open to the Judge to find Mr Brown to be a reliable witness and it can be inferred that he turned his mind to that issue. The Judge had referred to the fact that Mr Brown was closely cross- examined by defence counsel and appeared to be a “disinterested and fair witness” who was “definitely not shaken on the issue that this woman had been knocked to
the ground rather than had fallen herself, that the man had continued to stand over or to kneel over her making these motions, and that she continued with loud protestations throughout all of this”.7 In particular, the Judge had preferred Constable Osborne’s evidence as to the appellant’s level of intoxication, because he had the opportunity of speaking directly with the appellant and observing him closely for a period of time.
[24] It was the Crown’s further submission that Mr Brown’s evidence was
consistent on the key elements the informant was required to prove.
Approach on appeal
[25] Section 232 of the Criminal Procedure Act 2011 provides that an appeal must be allowed if, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. Miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity. It is necessary to show not just that there has been an error, but that the error has impacted on the Judge’s decision in such a way that if the error had not been made, the Judge may have come to a different conclusion.
[26] The Court on appeal must be mindful of any disadvantage in not having seen and heard the witnesses. In dealing with an appeal against a decision where the Judge’s findings were based on their assessment of the credibility of the witnesses, some deference should be given to that assessment.
Discussion
[27] Standing back and reviewing the fairness of the situation overall, I am satisfied that neither the fact that Ms Jeffries was not called; nor the Judge’s declining to hear the defence submission of no case to answer rendered the trial unfair. While it would have been preferable for Mr Edmunds to be advised before the trial that Ms Jeffries would not be appearing as a witness for the prosecution, her
dissuaded the Judge from preferring the independent account given by Mr Brown. Further, the Judge did not draw any adverse inference from her absence at trial and specifically directed himself on that point. In my view the Judge’s expression of surprise that, at the time of the incident, Mr Edmunds had proffered no explanation and nor had he enlisted Ms Jeffries’ support, was no more than the Judge expressing surprise that given the nature of the appellant’s subsequent innocent explanation advanced at trial, he had not enlisted Ms Jeffries’ help at the time of the incident. The Judge was not commenting on her absence from the trial.
[28] The no case to answer procedure involves an assessment by the courts of whether the evidence adduced at trial is capable of supporting any rational determination of guilt beyond reasonable doubt. The test to be applied by the presiding Judge was considered by the House of Lords in Haw Tua Tua v Public
Prosecutor:8
In their Lordships’ view the same principle applies to criminal trials where the combined roles of decider of law and decider of fact are vested in a single judge (or in two judges trying capital cases). At the conclusion of the prosecution’s case what has to be decided remains a question of law only. As decider of law, the Judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking, then, and then only, is he justified in finding that ‘no case against the accused has been made out’…
Where he has not so found, he must call upon the accused to enter upon his defence, and as decider of fact must keep an open mind as to the accuracy of any of the prosecution’s witnesses until the defence has tendered such evidence, if any, by the accused or other witnesses as it may want to call and counsel on both sides have addressed to the judge such arguments and comments on the evidence as they may wish to advance.
[29] While the Judge did not make an express ruling on the application of no case to answer, it is clear that he considered that there was sufficient evidence to establish each essential element in the alleged offence on the basis of the evidence provided by Mr Brown. I accept that assessment as sound.
[30] The Judge clearly turned his mind to the question of Mr Brown’s reliability as a witness. In particular, while Mr Brown was in a position to witness Mr Edmunds’ physical actions towards Ms Jeffries, he was less able to assess Mr Edmunds’ level of intoxication than was Constable Osborne. Accordingly, the Judge preferred the evidence of the Constable on that matter. That suggests the Judge consciously turned his mind to the reliability of each important aspect of Mr Brown’s evidence.
[31] Finally, s 32 provides that a fact-finder cannot be invited to infer guilt from a defendant’s silence before trial. Section 32(2) does not, however, expressly preclude the Judge in a Judge alone trial from relying on the defendant’s pre-trial silence as the basis for an inference of guilt. This may suggest that a Judge alone, as opposed to a jury, may validly draw an inference of guilt from pre-trial silence. However, it is not necessary to resolve any debate over that aspect here.
[32] In the present case, the Judge was entitled to treat the appellant’s silence, when questioned by the officer, as relevant to the assessment of the credibility of his account at trial. The simple and innocent nature of the explanation: that is that Ms Jeffries had fainted and been “fitting”, does render it surprising that this explanation was not proffered at the time.
[33] While there is a very fine distinction between an inference of guilt, which is prohibited by s 32(2), and “mere” damage to the defendant’s veracity, I am satisfied that the Judge did not cross the line in this case.9
Conclusion
[34] The procedure of the Judge-alone trial did not result in an unfair trial.
[35] The Judge did not err in a material way in his assessment of the evidence, to the extent that there is a real risk that the outcome of the trial has been affected.
9 E (CA727/09) v R [2010] NZCA 202 at [60].
Goddard J
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