Everiss v Police

[2012] NZHC 1926

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-48 [2012] NZHC 1926

BETWEEN  JAMES WILLIAM EVERISS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 July 2012

Counsel:         E Hall for appellant

M J Ferrier for respondent

Judgment:      2 August 2012

RESERVED JUDGMENT OF DOBSON J

[1]      At the conclusion of a defended hearing in the Porirua District Court on

2 April 2012, the appellant (Mr Everiss) was convicted on one charge of assault.  On

27 April 2012, he was sentenced on this charge.  He was fined $400 and ordered to

pay Court costs of $132.89 and witnesses’ expenses.

[2]      Mr Everiss now appeals both his conviction and sentence.

[3]      The circumstances of the alleged offending are as follows.  The complainant in this matter (Mr Ellis) lives with his family in a property at or near the top of a hill in the suburb of Whitby.   Immediately adjacent to Mr Ellis’s property is a vacant section, apparently treated by teenagers, including Mr Everiss and his friends, as a “lookout” because of its commanding views.   That section is apparently privately

owned, but is undeveloped.

EVERISS v NEW ZEALAND POLICE HC WN CRI 2012-485-48 [2 August 2012]

[4]      Mr Ellis described a history of drunken and disorderly behaviour by young people visiting the adjoining section.  He had identified Mr Everiss as “a ringleader” of those going to the adjoining section.   There had been at least one prior confrontation that involved Mr Ellis asking a group including Mr Everiss to leave, and remonstrating with them for not doing so.

[5]      Sometime  after  midnight  on  the  night  in  question,  Mr Ellis  was  in  bed, asleep, when he was woken by what he thought was knocking on the windows of his property and kicking of the door, as well as people making barking sounds outside. He got partly dressed (he remained bare-chested) and went outside to confront the people knocking on his property.

[6]      Mr Ellis was head-butted by one of the group, causing, on his account, his nose to bleed profusely.  Paramedics attended and provided first aid.  Mr Ellis named Mr Everiss as the man who assaulted him on the night in question.  Some six weeks later, he was immediately able to identify Mr Everiss as his assailant in a photo montage identification arranged by the Porirua Police.

[7]      Identity of the assailant was the issue at the summary trial.  Mr Everiss gave evidence that he was out of sight when the assault occurred and therefore did not see who did it. A friend (Mr Greg) who had been with him gave evidence that they were within sight of the assault when it occurred.   Mr Greg confirmed that it was not Mr Everiss who assaulted Mr Ellis, but was not prepared to name the assailant, for fear of his own safety.

Appeal against conviction

[8]      Ms Hall did not appear for Mr Everiss in the District Court.  In pursuing the appeal against conviction on his behalf, she raised the prospect of fresh evidence from another of the group who had been at the so-called lookout on the night in question, one Jade Livesey.  Ms Livesey’s evidence would be to the effect that the assailant was another of the group.  Consistently with Mr Greg, she is not prepared in her affidavit to identify the assailant, for fear of her own safety.   Ms Hall has submitted that there was no real prospect of being able to locate Ms Livesey prior to

the hearing in the District Court, and that the grounds for admitting her evidence as fresh evidence on the appeal are made out.

[9]      The test for admission of new evidence has been expressed by the Court of

Appeal in R v Bain in the following terms:[1]

An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible.  Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh.   This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice.

[1] R v Bain [2004] 1 NZLR 638 (CA) at [22], affirmed in Fairburn v R [2011] 2 NZLR 63 (SC) at

[25].

[10]     The decision in Bain emphasises that the relative significance of evidence and the greater the risk of miscarriage of justice if it is not admitted can influence the Court’s overall assessment.   Credibility may be assessed both inherently and in a contextual way.   The evidence must be sufficiently fresh and sufficiently credible before jurisdiction to admit the evidence exists.  Once those elements are made out, then the Court still has to evaluate whether there is a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the fact-finder

at trial.[2]

Freshness

[2] R v Bain at [24].

[11]     As to her unavailability, Ms Livesey deposes:

I had little to do with James [Everiss] or Brad [Greg] after that night as well

– just the way things turned out.  I ended up leaving home and changed my cellphone number.  I used to be on facebook but where I was living didn’t

have the internet – so I wasn’t even checking my facebook.

[12]     Ms Livesey   deposed   that   she   had   more   recently   been   contacted   by

Mr Everiss’s mother on her new cell phone number.

[13]     Mr Ferrier   for   the   Police   disputes   that   these   circumstances   render

Ms Livesey’s evidence “unavailable” at the time of the summary trial.  The evidence

is that she is a friend of Mr Everiss.  There is no evidence that Ms Livesey left home in circumstances where she would not keep in touch with those at her home, or leave them without a mode of contacting her.  However, Ms Hall suggested from the Bar that Ms Livesey had gone her own way after a disagreement with her father, with whom she had been living.   Given the range of modes of contact between young people, particularly through modern technology, a change of physical address and cell phone number should hardly place Ms Livesey entirely out of reach.  It appears she has remained in the greater Wellington area and there is no evidence that she changed her place of work, which she deposed is Wellington Hospital.

[14]     Mr Everiss’s mother was in Court for the argument of the appeal.  Ms Hall volunteered that Mrs Everiss could give evidence of the extent of the attempts she had made over a period of time to contact Ms Livesey.  That form of attempting to discharge the onus of establishing that evidence from Ms Livesey was “unavailable” at the time of a summary trial is inappropriate.  If the issue is to be contested, then the best evidence to be relied on in establishing that unavailability ought to be produced in affidavit form sufficiently in advance of the hearing of the appeal to enable counsel for the respondent to take instructions on it and, if necessary, to take initiatives to test it.

[15]     There is no admissible evidence of the extent of attempts made to contact Ms Livesey before the summary trial.  Nor was there any suggestion that Mr Everiss might seek an adjournment of the trial date to enable further attempts to be made to contact Ms Livesey.  In a number of respects, Ms Hall was critical of the conduct of trial defence counsel and once the issue of inadequacies is raised, there is scope for unease that insufficient steps were taken prior to the hearing in the District Court (as distinct from the attempts made thereafter), to qualify the evidence from Ms Livesey as being “unavailable” at that time.

[16]     I am left with a real reservation as to whether there is sufficient evidence to justify a finding that evidence from Ms Livesey was “unavailable”.  The absence of any reference to attempts to locate Ms Livesey, in the context of the scheduling of the summary trial, and the absence of any request to adjourn it, deprives Ms Hall’s argument of what would be an obvious form of confirmation that attempts were

indeed being made and taken seriously.   It is speculative, but perhaps not unreasonable, to suggest that thorough attempts could have included Mr Everiss, or someone on his behalf, broadcasting to all those on Facebook the importance of contacting Ms Livesey, and asking for them all to “broadcast” a request that she contact  Mr Everiss,  or  that  he  be  provided  with  current  contact  details  for  her. However,  I  conclude  that  there  is  just  enough  for  me  to  treat  evidence  from Ms Livesey as “unavailable” on the basis of her affidavit, so that it is, by a small margin, to be treated as “fresh”.

Credibility

[17]     As to the credibility of the evidence Ms Livesey could provide in relation to the events on the evening in question, her state of inebriation might raise issues as to how reliable her recollection would be.  Mr Everiss’s own view of her state in his evidence was that she was “pretty drunk”, and that she was “absolutely drunk”.[3]   The other witness for the accused, Mr Greg, agreed that she had been drinking - “she had a few” and that she “was chappy and then she got a bit upset and stuff”.[4]   In cross- examination Mr Greg agreed that Ms Livesey was drunk and upset.[5]

[3] Notes of Evidence (NOE) at 24/3, 31/28.

[4] NOE at 37/19.

[5] NOE at 40/13-17.

[18]     Ms Livesey’s own recollection of her state was:

I had been drinking that night, I had some wine and beer.  I wasn’t sober but

I knew what I was doing, and I know what I saw and heard.

Ms Livesey is 17 years old and there is some scope for questioning her ability to accurately reconstruct how affected she was by alcohol six months after the night in question.

[19]     The  consistency  of  Ms Livesey’s  evidence  with  that  of  Mr Everiss  and Mr Greg may also shed light on the credibility of her evidence.   The relatively consistent impression given by Messrs Everiss and Greg as to the composition of the group that visited the section next to Mr Ellis’s property on the night in question is

that it comprised the two of them, plus Ms Livesey, and a group of three others who

were friends of hers rather than friends of theirs.  In contrast, Ms Livesey describes being invited by Mr Everiss to “hang out with him and some of his mates and have a few drinks”, and that the others, who included the assailant, were already with Mr Everiss when she joined the group on the evening in question.

[20]     On  other  details,  Ms Livesey’s  evidence  would  be  inconsistent  with  that given by Mr Everiss, although more consistent with that of Mr Greg.  For instance, she described all the rest of the group, including those two and her, following the assailant up Mr Ellis’s driveway, that the other boys (including Messrs Everiss and Greg) were one and a half to two metres behind the assailant, and then both Messrs Everiss and Greg together with another man running down the driveway, leaving the assailant at the top of the driveway after the assault had occurred.  She recalls seeing a mark of blood on the assailant’s forehead.

[21]     In contrast, Mr Everiss said that he was sufficiently far away when the assault occurred, not to be able to see it because he was around a bend in the road.

[22]     I have a reservation that Ms Livesey’s evidence as deposed in the affidavit would ultimately be found sufficiently credible and reliable such that it casts the relevant  events  in  a  different  light.     In  particular,  Mr Everiss  had  Mr Greg corroborate his own evidence that another of the group was the assailant, but the Judge was able to provide a reasoned basis for rejecting that evidence in light of the quality of Mr Ellis’s evidence as to the identity of the assailant.   Could a second, basically consistent, corroborative statement make a difference?

[23]     Ms Hall advised me from the Bar that she was satisfied that Ms Livesey had not discussed the terms of any evidence she could give with Messrs Everiss and Greg, before Ms Hall interviewed her and drafted the affidavit as sworn.

[24]     In  weighing  the  credibility of  Ms Livesey’s  evidence,  Ms Hall  submitted (implicitly on the basis that the Court is satisfied that it was unavailable at the original trial) that the potential impact of Ms Livesey’s evidence should be assessed

consistently  with  the  approach  suggested  in  the  Brookers’ commentary  on  the

Summary Proceedings Act 1957, citing the English decision of R v Flower, namely:[6]

[6] Commentary on Summary Proceedings Act 1957 (online looseleaf ed, Brookers) at [SA119.06],

R v Flower [1966] 1 QB 146.

if the fresh evidence is accepted as true and is conclusive of the appeal,

then the conviction ought to be quashed;

if the Court is not satisfied that the fresh evidence is true but nevertheless that evidence might be accepted by the Tribunal as fact, then a new trial

ought to be ordered;

if the Court rejects the new evidence, the appeal should be determined as

if the evidence had not been tendered.

[25]     I am not satisfied that the analogy with Flower would always be appropriate, given the guidance in the New Zealand context from Bain and Fairburn.  However, treating  Ms Livesey’s  evidence  as  falling  within  the  second  of  the  alternatives proposed, there is a realistic prospect that her evidence, taken with evidence to the same effect from Messrs Everiss and Greg on the identity of the assailant, might produce sufficient doubt on identification for the Police case not to be made out.  In the particular circumstances of this proceeding, I treat that as creating a risk of a miscarriage of justice.  In the final assessment of the Livesey affidavit, that prospect is enough to attribute to her evidence sufficient freshness and credibility to warrant having regard to it on appeal.

[26]     It is therefore in the interests of justice that the conviction be quashed, and a new trial on the charge ordered.

[27]     In these circumstances, it is inappropriate to comment on the other grounds of challenge to the reasons for conviction.   It is similarly inappropriate to venture an

opinion on the appeal against sentence which was also argued.

Outcome

[28]     The conviction is quashed. A new trial is ordered on the charge of assault.

Dobson J

Solicitors/Counsel:

E Hall, Wellington for appellant

Crown Solicitor, Wellington for respondent