Edwards v Police

[2018] NZHC 340

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI 2017-404-475

[2018] NZHC 340

BETWEEN

TRACEY LEIGH EDWARDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 February 2018
Counsel:	H Cheeseman for Appellant K Li for Respondent
Judgment:	7 March 2018

JUDGMENT OF DUFFY J

This judgment was delivered by me on 7 March 2018 at 3.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

H Cheeseman, Barrister, Manukau Crown Solicitor, Manukau

EDWARDS v NEW ZEALAND POLICE [2018] NZHC 340 [7 March 2018]

[1]    The appellant, Tracey Edwards, was convicted in the District Court of the following charges:1

(a)One charge of assault with intent to injure;2 and

(b)One charge of assault with a weapon.3

[2]    Ms Edwards was sentenced on 12 December 2017 to 80 hours’ community work. She now appeals against her convictions.

Factual background

[3]    The prosecution case against Ms Edwards was as follows. At around 9pm on 2 August 2015, Ms Edwards was at home with the victim, Ms Rawiri. Ms Rawiri is Ms Edwards’ daughter. Ms Rawiri was sleeping in the bedroom with her six-month old son. Ms Edwards was drinking alcohol in the living room.

[4]    Ms Edwards came into the bedroom and verbally abused Ms Rawiri. She then returned to the living room and carried on drinking. A short time later, Ms Edwards came to the doorway of the bedroom and challenged Ms Rawiri to a fight. Ms Rawiri remained in the bedroom with her son.

[5]    Some time passed. Ms Rawiri left the bedroom to get a bottle for her son. She was confronted in the hallway by her mother. Ms Edwards grabbed her daughter by the collar and dragged her to the floor, causing her bra to rip.

[6]    Ms Edwards then grabbed Ms Rawiri by the hair and dragged her into the kitchen, punching her in the face as she did so. Once in the kitchen, Ms Edwards banged Ms Rawiri’s head into the lino floor and continued punching her in the face.

[7]    At some point, Ms Rawiri managed to escape the kitchen. She fled into a bedroom and called the police. Ms Edwards pursued her daughter around the house as she was on the phone and continued to verbally abuse her.

1      Police v Edwards [2017] NZDC 14499.

2      Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.

3      Crimes Act 1961, s 202C; maximum penalty five years’ imprisonment.

[8]    Ms Edwards picked up a metal pole from a vacuum  cleaner and cornered  Ms Rawiri in the laundry. She swung the pole at Ms Rawiri, striking her three times in the upper body. She stopped when Ms Rawiri’s brother intervened.

[9]    As a result of the attack, Ms Rawiri sustained bruising to the forehead, right eye and temple. She also received two small cuts on the back of her hand.

[10]   A formal written statement was taken from Ms Rawiri at 10:02pm in which she provided details of the attack.

Procedural history

[11]   Ms Edwards first appeared before the Court on 3 August 2015. At the date of the Judge Alone trial on 14 September 2015, Ms Edwards failed to appear. Ms Rawiri was present at this time.   The hearing was adjourned until 6 May 2016.   Again,    Ms Edwards failed to appear. Ms Rawiri again was present.

[12]   At the next hearing on 30 August 2016, Ms Rawiri was not present. A warrant was issued for her arrest. The hearing was adjourned until 20 March 2017.

[13]   When Ms Rawiri failed to appear again on 20 March 2017 the prosecution applied for her formal statement to the police to be admitted as hearsay evidence for use against Ms Edwards, thus obviating the need for any further adjournment of the charges. Judge McNaughton heard evidence from Constable Pettigrew about the steps taken to ensure Ms Rawiri attended court. After Constable Pettigrew’s evidence and submissions from the prosecution and defence the Judge decided to admit the formal statement, with written reasons to be provided later. The defended trial then commenced.

[14]   Written reasons for the admission of the formal statement were delivered on 5 April 2017.4 The Judge alone trial did not finish on 20 March 2017; it was adjourned part heard and re-commenced on 23 June 2017, at which time the charges were found

4      Police v Edwards [2017] NZDC 6964.

proven and convictions entered. Written reasons for the guilty verdicts were delivered on 5 July 2017.

Decision to admit hearsay statement

[15]   Judge McNaughton found that the strength of the hearsay statement as evidence outweighed the moderate prejudice inherent in the denial of cross- examination.

[16]    Judge McNaughton considered that the hearsay statement was corroborated by:

(a)The contents of Ms Rawiri’s 111 call,

(b)The photographs of Ms Rawiri’s injuries,

(c)The photographs of Ms Edwards’ injuries, specifically the damage to her knuckles,

(d)Ms Edwards’ abusive and aggressive comments which can be heard in the background of the 111 call,

(e)The fact that Ms Rawiri’s statement was made very soon after the incident, and

(f)The damage done to Ms Rawiri’s bra and the presence of the vacuum cleaner pipe on the floor.

Ground of appeal

[17]   Ms Edwards appeals against her conviction on the basis that Judge McNaughton erred in law by admitting Ms Edwards’ evidence as a hearsay statement. She submits this error led to a miscarriage of justice, which has created a real risk that the outcome of the trial was affected and also created or resulted in an unfair trial.

Ms Edwards’ submissions

[18]   For Ms Edwards Mrs Cheeseman submits that Judge McNaughton gave insufficient consideration to the issue of prejudice arising from the admission of the hearsay statement. This error is said to have been compounded by the fact that the Judge did not hear submissions from the appellant on this point.

[19]   Mrs Cheeseman argues that inability to cross-examine Ms Rawiri prevented Ms Edwards from presenting an effective defence. The risk of the hearsay statement having an unfairly prejudicial effect on the proceeding therefore outweighed its probative value. Accordingly, it should have been excluded by the general exclusion contained within s 8 of the Evidence Act 2006 (the Act).

[20]   At the appeal hearing Mrs Cheeseman accepted that Ms Rawiri was unavailable to give evidence.5 Ms Edwards also accepted the circumstances in which the police obtained Ms Rawiri’s statement provided “assurance as to its reliability” which partially meets requirements of s 18(1)(a) of the Act.6 However, on closer examination this concession was limited to the timing of the taking of the statement and the fact it was taken by a police officer.7

[21]   Section 16(1) of the Act defines the “circumstances” that can provide “reasonable assurance that the statement is reliable”. Here Mrs Cheeseman argues that the reliability of the hearsay statement is diminished by the fact it is not in question-and-answer form, and so it is not possible to determine to what extent the written account given by Ms Rawiri constitutes her own words rather than affirmative responses to leading questions from the police officer. She also disputes Ms Rawiri’s veracity.

5      Section 18(1)(b)(i) of the Evidence Act 2006 provides one of the grounds for the admission of a hearsay statement is that the maker of the statement is unavailable as a witness.

6      Under s 18(1)(a) of the Evidence Act 2006 the circumstances relating to the statement must provide reasonable assurance that the statement is reliable.

7      See the definition of “circumstances” under s 16(1).

[22]   Mrs Cheeseman relies on Lang J’s comments in Bishop v Police that any restriction on the ability to cross-examine a witness is liable to create a substantial risk of unfair prejudice where the evidence of that witness is crucial to their party’s case.8

[23]   Further Mrs Cheeseman submits that Ms Rawiri’s evidence was “pivotal” to the Court’s determination of the issue of self-defence. All other evidence merely corroborated the existence of a physical altercation, without shedding light on whether Ms Edwards was acting in self-defence.

[24]   Mrs Cheeseman argues that if the hearsay evidence had been excluded, there would not have been sufficient evidence to convict Ms Edwards.

[25]    Alternatively, Mrs Cheeseman contends that if Judge McNaughton had properly considered the issue of prejudice while still admitting the hearsay statement, less weight might have been given to it as evidence, which could have affected the outcome of the trial.

Respondent’s submissions

[26]   Ms Li, for the respondent, submits that it was open to Judge McNaughton to conclude that the probative value of Ms Rawiri’s statement outweighed the risk of unfair prejudice.

[27]   Ms Li submits that the ability to cross-examine Ms Rawiri would not have had a significant bearing on the outcome of the trial. The strength of the appellant’s self- defence  claim,  based  primarily  on  statements  made  in  a  DVD  interview  of  Ms Edwards, was tenuous. Any contention that Ms Edwards could have established self-defence through cross-examination is dismissed as “pure speculation”.

[28]   Ms Li further submits that the admission of Ms Rawiri’s hearsay statement does not fall within any of the specific examples of risks of unfair prejudice contemplated by Justice Lang in Bishop:9

8      Bishop v Police HC Gisborne CRI-2008-416-3, 28 February 2008 at [25].

9 At [35].

(a)When the absent witness could provide evidence for the defence, thereby removing the need for the defendant to give evidence;

(b)When cross-examination could expose the false or unreliable nature of the witness’ evidence;

(c)Where there is reason to believe that the witness may not come up to brief; or

(d)When there is reason to believe the maker of the statement would have recanted.

Approach on appeal

[29]Ms Edwards can appeal as of right to this Court.10

[30]   This Court can only allow an appeal from a Judge Alone trial if it is satisfied that the District Court 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”:11

232     First appeal court to determine appeal

(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a)in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or

(b)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; or

(c)in any case, a miscarriage of justice has occurred for any reason.

(3)The first appeal court must dismiss a first appeal under this subpart in any other case.

10     Criminal Procedure Act 2011, ss 229 and 230.

11     Section 232.

(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[31]   Not every “error or irregularity” causes a miscarriage of justice.12 The Court of Appeal recently confirmed that the Criminal Procedure Act 2011 has not changed the approach to appeals against conviction. The tests that applied prior to the enactment of the this Act continue to apply.13

[32]   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.”14 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.15

[33]   An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.16 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.17 Courts have held that an unfair trial can also exist when a defect in the trial causes an unacceptable appearance of unfairness without actual prejudice to the defendant.18

12     “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].

13     Wiley v R [2016] NZCA 28.

14     R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.

15 At [110].

16     Condon v R [2006] NZSC 62 at [78].

17     Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the Supreme Court in Condon v R, above n 4, at [38].

18 See James v R [2011] NZCA 219, at [29], where the failure to address the juror’s capacity meant that there was a risk of a miscarriage of justice even though the verdict would have stood if the juror had been discharged.

Discussion

[34]   The key question is whether Judge McNaughton erred in deciding to admit Ms Rawiri’s hearsay statement. There are some disquieting factors here.

[35]   The Act sets out a process for the admission of hearsay evidence in criminal proceedings. One such factor is the requirement in s 22 of the Act for prior written notice to be given, unless the criteria for dispensing with notice are established. Nothing was said in either the District Court or before me on appeal about this topic.

[36]   The notes of evidence record some of the discussion at the commencement of the defended Judge Alone trial on the topic of the admission of the hearsay statement. This record gives the impression the question was being addressed for the first time at the hearing, and only then as a result of Ms Rawiri failing yet again to appear as a witness.

[37]   The prosecutor is recorded as saying the prosecution does not rely “whole- heartedly” on the hearsay statement and then refers to other prosecution evidence: namely, the record of the 111 telephone call Ms Rawiri made, photographs of her injuries and statements Ms Edwards made to police including a DVD evidential interview of Ms Edwards.

[38]   The hearsay statement and the other prosecution evidence were made available to the Judge for his consideration. After that there were submissions from the prosecution and defence.

[39]   After the Judge had read the material made available to him by the prosecution he queried defence counsel (then Mr Scott) saying, “Why are we even having a hearing?” When the Judge then asked Mr Scott what was actually at issue the response was “self-defence”. The Judge correctly understood and stated there was no self- defence narrative in the material provided to him. Mr Scott acknowledged that and then pointed to aspects of the transcript of the record of the DVD evidential interview where Ms Edwards made statements about Ms Rawiri attacking her as providing a basis for self-defence. Mr Scott also outlined what Ms Rawiri would be saying in her

evidence at trial. The Judge then stated that he was going to admit the hearsay statement as there was:

… ample evidence to corroborate what the complainant is saying and I am satisfied the police have made adequate enquires as well so I am going to admit it and we can get on with the hearing.

[40]   Defence counsel then made a single statement referring to “aspects of prejudice during the hearing”. The Judge’s response was:

Well there are plenty of cases where hearsay statements of complainants have been admitted, taking into account the defence right to cross-examine and I dealt with that twice in two previous reserved decisions, one of those files was actually here. I will deliver a decision later, but we need to get on with the hearing. So I am going to deliver a reasons decision after the event but my decision is to admit the statement and let’s get going.

[41]   The requirement for prior written notice of the proposed use of a hearsay statement by the prosecution is so that defence counsel are not taken by surprise and, therefore, have every opportunity to consider whether to oppose, and if so, to argue against its admission. The record of the proceeding in the District Court is silent on the topic of whether prior written notice was given. Certainly, there is nothing recorded that might suggest such notice was given. The notice requirements can be avoided where the other party waives the requirements for notice, but there is nothing to suggest that happened here.19 Everything points the other way. The recorded arguments of the prosecution and defence appear to be on-the-spot submissions rather than considered submissions that refer to relevant authority.

[42]   Whilst the Act provides discretion for departing from the requirement of prior written notice, nowhere is there reference to any application of that nature, nor does Judge McNaughton refer to this discretion or factors that may have persuaded him to exercise it.20

[43]   In short, I consider the way in which the decision to admit the hearsay evidence was made was unsatisfactory in terms of the process that was followed. Surprisingly,

19     Evidence Act 2006, s 22(1)(b).

20     Sections 22(1)(a) and 22(5).

neither counsel on the appeal referred to this aspect of the decision to admit the hearsay statement.

[44]   Ms Li contends there was no prejudice to Ms Edwards and there was nothing to suggest the inability to cross-examine Ms Rawiri was in any way prejudicial to the defence. In this regard Ms Li referred to K v R where the Court of Appeal said it would be speculative to assume cross-examination of an unavailable complainant could have led to her making concessions.21 However, the present case is different from K v R. In that case the complainant was unavailable because she was deceased whereas here Ms Rawiri had failed to appear on two trial dates, despite being subject to witness summons.

[45]   There may be more than one explanation for Ms Rawiri’s non-appearance. However, one available inference to be drawn from her apparent reluctance to testify is that she had second thoughts about her evidence. Reluctance on the part of a witness can indicate the witness wants to resile from the account which she tendered to police. The police had said they had lost contact with her and offered this as an explanation for her two failures to appear. However, if Ms Rawiri wanted to give evidence she could have taken steps to contact the Police to ascertain the new trial date.

[46]   I acknowledge her reluctance may have been for other reasons such as not wanting to give evidence against her mother, or not wanting to appear in court at all. Nonetheless, because of her two non-appearances the circumstances here are such that they reasonably support an inference that had Ms Rawiri testified: (a) she may not have come up to brief; (b) she may have recanted from her statement to the Police; or

(c) cross-examination may have shown her to be an unreliable or dishonest witness.

[47]   I am not satisfied the balance of the prosecution evidence corroborated the hearsay statement insofar as it went to prove all the elements of the two offences on which the convictions rest. I acknowledge the balance of the evidence corroborates assaults on Ms Rawiri. But more is required to prove the two convicted offences beyond reasonable doubt.

21     K (CA332/2014) v R [2014] NZCA 393 at [32].

[48]The elements of the offence of assault with intent to injure are:22

(a)An assault on the victim; and

(b)That the assault was carried out with the intention of causing actual bodily harm.

[49]   Recklessness as to the prospects of actual bodily harm occurring is not sufficient. The photographs of Ms Rawiri’s injuries are just as consistent with a common assault as with an assault with intent to injure. The contents of the 111 call and Ms Edwards’ abusive and aggressive comments which can be heard in the background of the 111 call do not establish an intent to injure. Those comments are just as consistent with threatening language or recklessness as to whether injury occurs as they are with revealing an intent to injure.

[50]   The circumstances of the offending as disclosed by the balance of the prosecution evidence do not corroborate Ms Edwards having the requisite intent as the circumstances are just as consistent with her being reckless as to whether injury to Ms Rawiri occurred or not.

[51]   Proof of the charge of assault with a weapon (here the vacuum cleaner pipe) faces the problem that there was a clear evidential conflict between what Ms Rawiri said in the hearsay statement and what Ms Edwards said to police. The balance of the evidence does not corroborate Ms Rawiri’s account. The circumstances of how the vacuum cleaner pipe was found are consistent with both person’s account of events. The vacuum cleaner pipe was found on the floor outside the laundry. Ms Edwards said to the police that she went to go into the laundry (which is where Ms Rawiri was) and Ms Rawiri picked up the vacuum cleaner pipe and tried to hit Ms Edwards with it. The fact the police found the vacuum cleaner pipe outside the laundry is not inconsistent with the account Ms Edwards gives. If Ms Rawiri attacked Ms Edwards with the vacuum cleaner pipe  as  Ms  Edwards  was  trying  to  enter  the  laundry Ms Rawiri may then have retreated back to within the laundry and closed the door, leaving the vacuum cleaner pipe outside the laundry. Accordingly, the fact this pipe

22     Crimes Act 1961, s 193.

was found close to the entrance to the laundry seems to me to be a neutral factor that fits with either person’s account rather than something that corroborates Ms Rawiri’s account of what occurred.

[52]In Bishop Lang J stated:23

… the Court may only permit a hearsay statement to be admitted as evidence in a criminal proceeding if it is satisfied:

a)That the notice requirements under s 22 have been met; and

b)          That the circumstances relating to the statement provide reasonable assurance that the statement is true; and

c)That the maker of the statement is unavailable as a witness; or

d)          That undue expense or delay would be caused if the maker of the statement were required to be a witness; and

e)          That the probative value of the statement is not outweighed by the risk that the statement would have an unfairly prejudicial effect on the proceeding (taking into account the right of the defendant to offer [an effective] defence).

[53]   The above approach has also been adopted by the Court of Appeal.24 When applied to the present circumstances there are insufficient reasons to support admission of the hearsay statement.

[54]   First, there is nothing to satisfy me about compliance with the notice requirements under s 22. Whilst counsel have not addressed this issue, when it comes to the questionable admission of evidence trial judges have a duty to ensure any conviction is not based on material evidence that is in law inadmissible; and this includes a gatekeeper role to exclude evidence where admissibility has been wrongly conceded.25 I consider the same principles apply to appellate judges hearing appeals against conviction when the question turns on whether material evidence should have been excluded on the grounds its admission did not comply with the Act’s requirements.

23 At [12].

24     Pepene v R [2011] NZCA 497.

25 Wilson v R [2015] NZCA 531 at [18]; whilst said in the context of prior consistent statement evidence under s 35 of the Evidence Act the principle is equally applicable to other forms of evidence that are subject to exclusionary rules.

[55]   Secondly, for the reasons already given I do not find the circumstances relating to the hearsay statement provide reasonable assurance it is true.

[56]   Thirdly, for reasons already given I find the probative value of the statement is outweighed by the risk that it would have an unfairly prejudicial effect on the proceeding: namely, by preventing Ms Edwards from presenting an effective defence through her inability to cross-examine Ms Rawiri.

[57]   Accordingly, I find the admission of the hearsay statement was an error that warrants this Court allowing the appeal to the extent the convictions should be set aside. However, that is not the end of the matter. The balance of the prosecution evidence is sufficient in my view to prove beyond reasonable doubt that Ms Edwards committed more than one assault on Ms Rawiri.

[58]   I realise Ms Edwards contends she was acting in self-defence. However, the balance of the prosecution evidence reveals Ms Edwards making sufficient admissions for the Court to conclude beyond reasonable doubt that blows were struck against  Ms Rawiri and that Ms Edwards’ conduct went beyond the use of reasonable force to protect herself.

[59]   Regarding the charge of assault with a weapon, namely the vacuum cleaner pipe,  the  account  given  in  the  hearsay  statement  is  directly  contradicted  by  Ms Edwards. When the Police arrived the vacuum cleaner pipe was found on the floor outside the room where Ms Rawiri was behind a closed door. This could support the inference that Ms Edwards was the person with the vacuum cleaner pipe and after being hit Ms Rawiri had escaped to the other room. On the other hand, Ms Edwards’ allegation that it was Ms Rawiri who came at her with the vacuum cleaner pipe is not inconsistent with the pipe then being found outside the room where Ms Rawiri was. If Ms Rawiri attacked Ms Edwards with the vacuum cleaner pipe it is possible on  Ms Edwards’ retaliation that Ms Rawiri then retreated, leaving the vacuum cleaner pipe behind.

[60]   It was for the prosecution to exclude self-defence as part of proving the charges against Ms Edwards. The difficulty Ms Edwards now faces is her admissions to the Police which are consistent with her assaulting Ms Rawiri .

[61]   In the evidential interview Ms Edwards couches what occurred on the basis that Ms Rawiri tried to fight her and Ms Edwards “fought back”. She also said that she would plead guilty and that she had “done it”. At the time she said this she was facing a charge of common assault. Another time in the interview she said “she” being Ms Rawiri “assaulted me as well”, which implies they had each assaulted each other.

[62]   When asked how many times Ms Edwards actually hit Ms Rawiri she said, “I have no idea honestly.” When asked the question again she said she had no idea but at no time did she deny hitting Ms Rawiri.

[63]   Of particular note are the comments made by Ms Edwards to Constable Pettigrew immediately after being detained. These were recorded in the Constable’s notebook and include Ms Edwards stating the following:

(a)“Yes, [I] did hit the little bitch this time”;

(b)“Next time I will drop the bitch and stomp her under the ground”; and

(c)“She is worthwhile beating up”.

[64]   Put plainly, in light of the above statements from Ms Edwards I do not think that the case for self-defence was a strong one. I also do not think that even the most skilful cross-examination of Ms Rawiri would have changed this.

[65]   Unlike Judge McNaughton, who thought self-defence was not raised until trial, I accept that during the evidential interview Ms Edwards does refer to self-defence. Nonetheless, there were strong evidential reasons for Judge McNaughton to reject self- defence. These were:

(a)The photographs showing Ms Rawiri’s injuries, the extent of which brings into question the veracity of  the  narrative  relied  upon  by  Ms Edwards;

(b)The photographs of Ms Edwards’ skinned knuckles and their inconsistency with Ms Edwards’ vague concession that there may have been some punching during the scuffle with her daughter; and

(c)The numerous aggressive comments made by Ms Edwards during the police interview, during the DVD interview, those recorded in the officer’s notebook, and those heard in the background of the 111 call; taken as a whole, these display a large amount of aggression and are entirely inconsistent  with  the  version  of  events  relied  upon  by  Ms Edwards in pleading self-defence.

[66]   Mrs Cheeseman argues that the above evidence merely corroborates the existence of a physical altercation between Ms Edwards and Ms Rawiri and does not bear on the question of self-defence. However, this submission seems to view each piece of evidence in a vacuum. Taken as a whole, a clear picture of offending by common assault emerges.

[67]   At the hearing Mrs Cheeseman responsibly accepted she could not disagree with the view that apart from the hearsay statement the remainder of the evidence was sufficient to prove charges of common assault beyond reasonable doubt.

[68]   It follows that in substitution for the two convictions I have set aside, two convictions of common assault should be entered against Ms Edwards.

Impact on sentence

[69]   I queried with Mrs Cheeseman whether she wished to be heard on the question of sentence if the outcome was as I have now found. Mrs Cheeseman advised me that Ms Edwards had been sentenced to nine months’ supervision and she saw no basis for

querying that as a sentence for the substituted offences. Accordingly, the sentence imposed remains the same.

Result

[70]The appeal is dismissed.