Fifita v Police
[2021] NZHC 1031
•10 May 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000118
[2021] NZHC 1031
BETWEEN NELSON FIFITA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 May 2021 Appearances:
P Masani for Appellant
OS Klinkum for Respondent
Judgment:
10 May 2021
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 10 May 2021 at 3.00pm
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland To: P Masani, Auckland
FIFITA v NZ POLICE [2021] NZHC 1031 [10 May 2021]
Introduction
[1] Nelson Fifita was charged with two charges of assault with intent to injure.1 After a judge-alone trial on 15 January 2020 before Judge J M Jelas, he was convicted of both charges.2 He now appeals those convictions on the basis Judge Jelas drew unreasonable inferences that led to her dismissing Mr Fifita’s evidence, and finding that he was guilty beyond a reasonable doubt.
The evidence at trial
[2] Mr Fifita and the victim had been in a relationship for two to three years. In early October 2018, they discovered that the victim was pregnant with their first child. The charges related to two alleged incidents of violence that took place on the evening/early hours of the morning of 9 and 10 October 2018.
The first incident
[3] Mr Fifita’s narrative was as follows. On the evening of 9 October 2018, he told the victim that he was going out. She became angry, and wanted him to stay at home, although Mr Fifita said that he would not call it an argument. There was no violence. He said that it was common for him to go out without his partner, and she got mad with him that night about it, but he just left.
[4] The victim’s narrative was that she and Mr Fifita had argued about Mr Fifita going out without her that evening. During the argument, she said he pushed her hard, causing her to land on the ground. Once on the ground, he punched her at least once and kicked her twice. Neighbours heard the arguing and came to intervene (though evidently did not witness anything; they were not called to give evidence). Mr Fifita left the address, as did the victim, who walked to a friend’s house to call her mother.
The second incident
[5] There was no dispute that the victim left Mr Fifita’s house and made her way to her mother’s home. In the early hours of the morning of 10 October 2018, Mr Fifita
1 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2 Police v Fifita [2020] NZDC 11774.
and the victim texted each other. Mr Fifita wanted to visit the victim to apologise. He came to her mother’s house at about 3:30 am. Both the victim and her mother were awake. The unchallenged evidence was that Mr Fifita and the victim were “lovey- dovey” towards each other.
[6] Mr Fifita said that the reason for his apology was for going out at night without the victim. The victim said that it was because of “what happened”. Judge Jelas said in her written reasons for verdicts that she inferred this was a reference to the alleged assault in the first incident.
[7] When Mr Fifita got up to leave and left the house, the victim went with him. The victim said that outside the address there was a discussion about a phone that Mr Fifita refused to give her. She then saw a female friend of Mr Fifita’s in the driver’s seat of the car in which Mr Fifita had arrived. The victim accepted she was angry and jealous. She took the keys from the ignition and ran back towards her mother’s house, when she tripped. On the ground, she said that Mr Fifita kicked her once or twice. She called out to her mother for help, and Mr Fifita left the address. Her mother did not see the alleged second assault (Mr Fifita having left by the time she arrived outside).
[8] In contrast to the victim’s account, Mr Fifita says that the victim went ahead of him when he left the home. She took the keys from the car, and then an argument ensued. The victim, Mr Fifita says, told him to fuck off and that she was going to call the cops. He then left the address. Again, he said there was no violence.
The law
[9] Section 232 of the Criminal Procedure Act 2011 provides that I must allow this appeal if the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or in any case if a miscarriage of justice has occurred for any reason.
[10] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to, or affecting, the trial has created a real risk the outcome of the trial was affected. In Haunui v R, the Supreme Court stated that:3
The question under s 232(4)(a) is ‘whether the error, irregularity or occurrence in or in relation to or affecting [the] trial has created a real risk the outcome was affected’. That question ‘requires consideration of whether there is a reasonable possibility another verdict would have been reached’. If the answer to that question is ‘no’, that is the end of the matter and the appeal will be dismissed. If the answer to that question is ‘yes’, …the appeal court then asks whether it is sure of guilt. If the answer is ‘no’, the appeal will be allowed. If the answer is ‘yes’, the court determines the error did not in fact create a real risk that the outcome was affected and the appeal will be dismissed.
[11] The Supreme Court has clarified the approach to be taken to an appeal pursuant to s 232, in Sena v R.4 The appeal proceeds as a rehearing. I must come to my own assessment of the evidence and determine the appeal accordingly.5 Nonetheless, the appellant must show some error in the trial judge’s reasoning, and – importantly for this case – I must exercise “customary caution” in overturning the Judge’s credibility findings. 6 The trial Judge had the advantage of hearing all of the evidence and could form a first-hand view as to the witness’s credibility and reliability, and what sort of people the different witnesses were. This cannot be easily duplicated by reading the notes of evidence. As the Court in Sena put it:7
More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.
The District Court decision
[12] Judge Jelas first addressed the question of whether Mr Fifita’s evidence was plausible and/or reliable. If she accepted it, that necessarily meant he should be found not guilty. She correctly noted that even if it raised a reasonable doubt, again, he should be found not guilty. If she did not find it plausible, the Judge (again correctly)
3 Haunui v R [2020] NZSC 153 at [67].
4 Sena v R [2019] NZSC 55.
5 At [38]. This approach is similar to that in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768 in respect of civil appeals conducted by way of rehearing.
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768 at [13], cited in Sena v R [2019] NZSC 55 at [38].
7 Sena v R [2019] NZSC 55 at [40].
noted that she then needed to ask whether the Police evidence proved Mr Fifita’s guilt beyond a reasonable doubt.
[13] Judge Jelas considered that there were two reasons why Mr Fifita’s evidence was not credible. First, she observed that even on Mr Fifita’s own narrative, it was common in his relationship with the victim for him to go out without her and for her to be unhappy about this. The Judge considered that going to visit the victim’s mother’s house in the early hours of the morning constituted a special trip, which would require some special reason to apologise, over and beyond normal behaviour in the context of their relationship. Second, Judge Jelas noted that Mr Fifita did not stay at the address and did not seem to ever have any intention of staying. Mr Fifita’s narrative was that he was apologising for behaviour (going out without his partner) that he was immediately and openly repeating.
[14] For these reasons, Judge Jelas considered Mr Fifita’s evidence implausible and put it aside. She then considered the remaining evidence, and found that the witnesses were credible and consistent. She noted that the couple’s home had been their home for some years. It was not plausible, she considered, that the victim would have left it to stay with her mother if there had simply been an entirely ordinary argument. Judge Jelas therefore considered an apology for an assault to be more plausible than an apology for simply going out. She also noted that in the context of the alleged second assault, the victim had called out for her mother to help, and told Mr Fifita that she would call the Police, which, again, was consistent with the victim’s narrative.
[15] Judge Jelas observed that the victim did not suffer any injuries as a result of the alleged assault. Mr Masani for Mr Fifita cross-examined the victim on that point. Judge Jelas did not consider that to be determinative, drawing on her expertise as a District Court Judge. On her assessment of the evidence overall, she concluded that she was sure that Mr Fifita had assaulted the victim as alleged and found him guilty accordingly.
The appellant’s submissions
[16] Mr Fifita submits that Judge Jelas drew unsubstantiated inferences that led to a miscarriage of justice. These were:
(a)finding that the apology was for the alleged violence, and not simply for going out at night without the victim;
(b)finding that the assault occurred on the basis that the appellant left after the victim threatened to call the Police;
(c)finding that Mr Fifita’s evidence was not credible for the above reasons; and
(d)finding that it was proven beyond reasonable doubt that Mr Fifita was guilty.
[17] Mr Masani, counsel for Mr Fifita, submits that since Mr Fifita’s family home and that of the victim’s mother were very close together, the trip to make the apology was not a “special trip” as suggested by the Judge. Furthermore, he submits that it is common for partners to apologise to each other for going against one another’s wishes. He submits that Mr Fifita’s intention to go out again directly after the apology is not relevant: as Mr Fifita said, that was a pattern in the couple’s relationship. He notes that the victim did not specify what the apology was for, and suggests that Judge Jelas’ made an unjustified inference in assuming it was for an earlier assault.
[18] Counsel submits that if the first assault had been as serious as suggested, then the victim would likely have called the Police. He submits that as she did not, this undermines the credibility of her evidence. Similarly, Mr Fifita’s submission is that given the stated nature of the alleged assaults, there ought to have been at least some physical injuries. That there was not also ought to count against the victim’s credibility.
[19] Finally, Mr Fifita suggests that Judge Jelas’ reasoning in relation to her credibility findings was a “conclusory credibility preference” of the sort that the Court in Sena considered inadequate. 8
8 Sena v R [2019] NZSC 55 at [36].
The respondent’s submissions
[20] The respondent supports Judge Jelas’ reasoning. It submits that the apology could only have been for the alleged violence, i.e. something unusual that had occurred between the parties earlier in the evening. Consistent with this, the respondent submits that Mr Fifita’s trip to the victim’s mother’s house was a distinct trip in the early hours of the morning, and hence could be appropriately described as a “special trip”. It submits that the length of the visit and the nature of Mr Fifita’s departure is of relevance to his credibility, though emphasise that this was not the sole consideration in the assessment of credibility in any event. Counsel further submit that adequate reasons were provided by the Judge for her credibility assessment, and remind the Court of the customary caution of appellate courts in assessing the fact finder’s conclusions on credibility. The respondent notes that the fact that the victim did not initially call the Police was not put to her in cross-examination, and in any case is not particularly indicative; in a domestic violence situation there are many reasons a victim might not immediately go to the Police.
Analysis
[21]In my view, Mr Fifita’s appeal must be dismissed.
[22] In short, whether the Judge was satisfied beyond reasonable doubt that Mr Fifita had committed the offending in question ultimately turned on a credibility assessment between him and the victim. As outlined earlier in this judgment, an appellate court will exercise customary caution when credibility findings are challenged on appeal.
[23] I cannot discern any proper basis for interfering with the Judge’s credibility assessment in this case. Rather, the basis for preferring the victim’s evidence over that of Mr Fifita was in my view open to the Judge on the evidence before her, including that immediately following the alleged first assault, the victim had left the property and gone to a friend’s house in order to call her mother, and then gone to her mother’s home. This seems unlikely had the argument that evening simply been about Mr Fifita going out without the victim, which appeared to have been a common occurrence. Further, I accept that Mr Fifita’s explanation for visiting the victim at her mother’s
home later that evening, namely to apologise for the earlier argument, does not appear to have the ring of truth about it, again given it was not uncommon for the couple to argue when Mr Fifita went out without the victim. Rather, the factual narrative before the Judge provided a proper foundation for her to conclude that the reason Mr Fifita went to the victim’s mother’s house in the early hours of the morning was to apologise for the earlier assault. For that reason, I do not accept the submission that it was not open to the Judge to infer from the victim’s evidence that Mr Fifita had come to apologise for “what happened”, namely an earlier assault. This is particularly so given the notes of evidence show that this reference to the apology being for “what had happened” immediately followed the victim’s account of the assault a few hours earlier.
[24] I am also unpersuaded that the Judge erred in preferring the victim’s account of events which occurred at her mother’s property. Again, this is a matter entirely within the domain of a trial Judge and there is nothing in the materials before me which suggests any error on the Judge’s part. I am also satisfied that the Judge was able to call on her general experience to conclude that the fact there were no visible physical injuries to the victim did not itself rule out the assaults as alleged having occurred.
[25] Finally, I accept Mr Masani’s submission that judges in judge alone trials must provide more than conclusory statements as to their credibility assessments. The Supreme Court in Sena made that plain. However, in my view, the Judge’s (oral) judgment provides ample reasoning for the credibility assessments she made. The Judge’s assessment of Mr Fifita’s credibility is set out at [17] to [20] of her judgment. In my view, the Judge’s reasoning for rejecting Mr Fifita’s evidence was sufficiently clear and detailed to understand the basis upon which she reached the conclusions she did.
[26] A number of other more minor points were raised on appeal, though not pressed to the same degree as the matters already discussed. As noted, Mr Fifita takes issue with the Judge’s description of Mr Fifita’s visit to the victim’s mother’s house as a “special trip”. There is no error in my view. It is plain even on Mr Fifita’s evidence that he made a “special trip” to the victim’s mother’s house in the early hours of the morning, to make an apology to the victim for what had occurred earlier in the evening.
For the reasons articulated in her judgment, the Judge accepted that the apology related to an earlier assault and not simply going out against the victim’s wishes.
[27] I accept that the length of Mr Fifita’s visit to the victim’s mother’s home does not have significant relevance to the events in issue, and in particular, to the competing credibility assessments. But it was not wrong, in my view, for the Judge to take this into account. In effect, on Mr Fifita’s narrative, he was apologising for going out without the victim, but then going out again without the victim (but with his female friend who was with him in the car at the time). And this was only one factor considered by the Judge in reaching her overall assessment of Mr Fifita’s credibility in any event. Accordingly, I am satisfied it does not (and did not) alter the overall outcome of the Judge’s decision. There is also nothing in the point made on Mr Fifita’s behalf that if the first assault was as serious as the victim described, one would have expected her to have called the Police. Unfortunately, there are many reasons why a victim of domestic violence does not immediately complain to the Police. I note that in any event, a 111 call was made following the second assault at the victim’s mother’s house.
[28] I return to the point made at the outset of this section of my judgment, namely that the outcome of the trial before the District Court Judge turned on the Judge’s credibility assessment of the witnesses involved. There is no error in the Judge’s approach to that issue and the appeal must therefore be dismissed.
Fitzgerald J
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