Frew v Police

[2022] NZHC 1961

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2022-463-54

[2022] NZHC 1961

BETWEEN

MICHAELA-JO FREW

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 August 2022
Counsel:	E R Dyche for Appellant CA Bourke for Respondent
Judgment:	10 August 2022

JUDGMENT OF MUIR J

[Re: appeal on conviction]

This judgment was delivered by me on 10 August 2022 at 4.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Pollett Legal Ltd, Tauranga

FREW v POLICE [2022] NZHC 1961 [10 August 2022]

Introduction

[1]                  On 11 February 2022 Judge T R Ingram found the appellant, Michaela-Jo Frew, guilty of assault with a weapon,1 following a judge-alone trial in the Tauranga District Court.2

[2]                  Judge Ingram sentenced Ms Frew to 80 hours’ community work for the assault, and convicted and discharged her for breaching bail, apparently inadvertently.3

[3]                  Ms Frew now appeals against her conviction. She submits the Judge erred by disallowing the cross-examination of a witness on her own statements under s 21 of the Evidence Act 2006.

Facts

[4]                  The Police summary of facts records that on 27 July 2021 Ms Frew was at her address. She saw the victim, her neighbour, leaving home on her bicycle. Ms Frew went to the rear gate of her property, waited for the victim to ride past, and struck her on the head with a coffee mug, causing her to fall from the bike.

[5]                  The victim, in her evidence, explained the background to the assault. She said two of Ms Frew’s friends had moved into Ms Frew’s address, with two “vicious dogs”.4 On the day of the assault, as the victim was leaving her address, she was surprised by one of the dogs running loose. She confronted Ms Frew’s friends about the dog. One of Ms Frew’s friends picked up a fallen branch and attempted, unsuccessfully, to hit the victim with it. The victim got on her bicycle and left around the corner, but as she passed the back of Ms Frew’s address, Ms Frew stepped out of her gate and struck the victim with the coffee mug.

[6]                  The victim suffered a gash and bruising on her forehead, and was taken to hospital.

1      Crimes Act 1961, s 202C.

2      Police v Frew [2022] NZDC 14565.

3      Police v Frew [2022] NZDC 8889.

4      Notes of evidence at 4, line 30.

Trial

[7]                  The prosecution called two witnesses, the victim and Constable Redman, the officer in charge. The victim referred to a single exhibit, a book of photographs of the scene and her head wound.

[8]                  Mr Pawson, counsel for Ms Frew, put to the victim that in her original statement she described not knowing what had happened to her after she was hit with the mug. The victim clarified that she was at least sure of who had hit her.

[9]                  Mr Pawson also suggested the victim’s wound appeared to have been caused by hitting a fence, not being hit with a coffee mug. The victim insisted the wound had been caused by Ms Frew striking her with a coffee mug.

[10]              Constable Redman read a brief of evidence. On cross-examination, Mr Pawson suggested, and Constable Redman accepted, that he did not find the mug or interview Ms Frew’s friends. Constable Redman explained the victim’s statement made it clear Ms Frew was the suspect for the assault.5

[11]Ms Frew elected not to give or call evidence.

Decision under appeal

[12]              Constable Redman’s brief of evidence stated “I went to the [sic] Frew’s address and spoke to her about the incident which she denied happening”.6

[13]              On cross-examination, Mr Pawson asked  Constable  Redman  to  confirm  Ms Frew had denied the offending, which he did:7

Q. And when you interviewed the defendant she denied it and she said that she heard some of it and that she was on the toilet at the time?

A. Yes.

5      Notes of evidence at 21, lines 13–17.

6      Statement of Matthew Charles Redman (annexed to appellant’s submissions) at line 11. The Police SOF also records that Ms Frew denied the offending, and claimed the victim had fallen off her bicycle because she was drunk.

7      Notes of evidence at 21, lines 9–11.

[14]Judge Ingram declined to consider these statements:8

[7]        There was a discussion about whether or not I can and should take into account what the defendant said to the police. The police have not put in evidence the defendant’s interview and I consider I am bound by the provisions of s 21 of the Evidence Act 2006, which provides: “If the defendant in a criminal proceeding does not give evidence, the defendant may not offer her own hearsay statement in evidence in the proceeding”.

[8]        Accordingly, I am simply left in a position it seems to me where the only evidence about what happened on that day is the evidence that I have heard from the complainant.

[15]              The Judge found the victim had insisted she was sure Ms Frew deliberately hit her, and that she did not hit a fence, despite “considerable effort” on cross- examination.9

[16]              The Judge concluded he was left with only one version of events. The issue was therefore whether the Judge could accept the victim’s evidence as proof beyond reasonable doubt of the offending.10

[17]              The Judge concluded the victim was credible. Her statement was made shortly after the offending, when she was in hospital and still “shaken up”. This explained the uncertainty in her initial statement.11

[18]              The photograph of the victim’s injury appeared to the Judge to be “exactly consistent” with being hit by a coffee mug, and unlikely to be produced by hitting a fence.12

[19]              Turning to the elements of the offence, the Judge was satisfied that a coffee mug could be a weapon, and that Ms Frew intentionally applied force to the victim’s body using a coffee mug, and so found the charge proved.13

8      Police v Frew, above n 2.

9      At [9] and [10].

10 At [11].

11 At [12].

12 At [13].

13     At [14] and [15].

Approach on appeal

[20]              An appeal against conviction proceeds by way of rehearing.14 The Court must allow the appeal if satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason.15

[21]              A 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.16

[22]               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”.17 This standard means that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe, only that there is a real possibility the verdict would be unsafe.18

Appellant’s submissions

[23]              Ms Dyche, for Ms Frew, submits Judge Ingram erred in law by deciding to exclude Ms Frew’s denials of the offending under s 21 of the Evidence Act 2006. Section 21 provides:

If a defendant in a criminal proceeding does not give evidence, the defendant may not offer his or her own hearsay statement in evidence in the proceeding.

[24]              Ms Dyche points to an exception to this rule, as explained by Lang J in R v Felise.19 The exception provides that, where the prosecution has raised part of a conversation in its evidence, fairness dictates that the defence be able to cross-examine those witnesses on the whole conversation, including exculpatory statements of the defendant, so as to put the conversation in its context.

14     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32]

15     Criminal Procedure Act 2011, s 232(2)(b) and (c).

16     Section 232(4).

17     R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

18 At [110].

19     R v Felise HC Auckland CRI-2008-092-8864, 8 February 2010; and R v Felise (No 3) (2010) 24 CRNZ 533 (HC).

[25]              Ms Dyche submits Ms Frew’s denial of the offending to Constable Redman was raised in examination in chief, in the Constable’s formal written statement. As the prosecution first raised the statement, the interests of justice required the Judge to allow the defence to explore it in cross-examination.

[26]              Alternatively, Ms Dyche submits Ms Frew’s denials were admissible to prove they were made, rather than the truth of their contents.20 They were therefore not hearsay statements and not covered by s 21.

Respondent’s submissions

[27]              The Police submit the Judge’s application of s 21 was orthodox, and the question Mr Pawson asked in cross-examination went beyond the scope of the exceptions in Felise and Harwood.

[28]              Unlike in Felise, the Police submit the prosecutor in the present case did not put the substance of Ms Frew’s interview with Constable Redman into evidence, only the fact that she denied the offending.

[29]              By asking “she said that she heard some of it and that she was on the toilet at the time?”, the Police submit Mr Pawson attempted to put the substance of Ms Frew’s statement into evidence, without requiring her to give evidence under oath or to be subject to cross-examination.

[30]The Police point to this passage of Harwood:21

… the inadmissibility of an accused’s exculpatory hearsay statement arises because of the content and nature of the statement. There may well be occasions where exculpatory, non-hearsay, statements (obviously instances of denial of offending) can be given in evidence. It will all depend upon whether an accused is endeavouring to have put before the jury, not on oath, his hearsay exculpatory statements or explanations as matters of direct evidence without having to give them on oath or be subject to cross-examination.

20     Harwood v R [2010] NZCA 545 at [42].

21 At [42].

[31]              The Police again submit the “latter part of the question” to Constable Redman went beyond a mere denial of offending and was an attempt to offer Ms Frew’s explanation as direct evidence.

Discussion

[32]              In Felise, the prosecution led evidence of conversations between a witness and the defendant, in which the defendant made inculpatory statements. Counsel for the defence sought to question the witness on the conversations in more detail, including on exculpatory statements made by the defendant but not raised by the Crown in evidence. Counsel also sought to question the witness on another conversation the defendant alleged he had with the witness, but which was not covered in the witness’s formal written statement.

[33]              Lang J referred to R v King, a decision of the Court of Appeal, for the starting point that s 21 “means what it says”, and that the exclusion of inadmissible evidence does not infringe fair trial rights.22

[34]              He considered the purpose of s 21 was to “prevent defence counsel from placing a factual scenario before the jury on the basis of what the accused said to other persons at or about the time of the events giving rise to the charge”.23 But he went on:

[14] It is equally clear, however, that the section must occasionally cede priority to higher objectives. The interests of justice and the need to ensure that the accused receives a fair trial must remain paramount. As the Court of Appeal observed in King, the trial Judge retains the ability to ensure that these objectives are met through his or her ability to control the criminal trial process.

[35]              Lang J held that “principles of fairness and balance dictated that” the defence be able to cross-examine witness on the full context and content of discussions already placed in evidence.24 But s 21 continued to prevent the defendant from raising discussions not already mentioned in the Crown’s evidence.25

22     R v King [2009] NZCA 607, (2009) 24 CRNZ 527 at [14] and [15]; citing R v Frost [2008] NZCA 406 at [13]–[17].

23     R v Felise, above n 19, at [13].

24     At [19] and [28].

25 At [21].

[36]              In a later ruling, Lang J elaborated on his findings. He held that, where the Crown had “deliberately chosen to place one aspect” of a conversation before the jury, or had “elected to raise the issue of the meetings, and what was said by one accused during them”, fairness dictated that the defence be able to explore the conversations fully and put them in their context.26

[37]              The facts of Felise are quite different from the present case. In Felise, the Crown elicited evidence of inculpatory statements made to witnesses. The defence was able to cross-examine those witnesses on exculpatory aspects of the same conversations, in order to put the inculpatory statements into their proper context.

[38]              In this case, Constable Redman referred to a formal written brief of evidence which contained the exculpatory statement, “I went to the Frew’s address and spoke to her about the incident which she denied happening”. Mr Pawson cross-examined the Constable on the same statement, asking the Constable to confirm Ms Frew denied the offending, and eliciting more detail, namely that she said she had “heard some of it and that she was on the toilet at the time”.

[39]              The rationale for the exception in Felise was therefore not engaged. The evidence of the interview offered by the prosecution supported the defence case and so fairness did not require a response from the defence. To allow cross-examination by defence counsel on the statement would, as the Police submit, simply allow     Ms Frew to elaborate on her version of events without being subject to cross- examination.

[40]              In oral argument, Ms Dyche pivoted to argue that the District Court Judge appeared not only to rule inadmissible the comment put to Constable Redman in cross- examination, but also the defendant’s statement as recorded in his evidence in chief (in context a denial that the victim had been assaulted by the defendant with a coffee mug). She referred specifically to paragraph [7] of the judgment under appeal.27

26     R v Felise (No 3), above n 19, at [23] and [24].

27 Above at [14].

[41]              I accept there is an ambiguity in the first sentence of this paragraph in terms of whether the Judge was referring to everything the defendant said to Constable Redman or simply the comment that she was inside and sitting on the lavatory. But in the balance of the paragraph the experienced Judge went on to refer to s 21 of the Evidence Act, noting its prohibition on the defendant offering her own hearsay statement.

[42]              The Judge then went on to undertake an orthodox analysis of the evidence before him, noting that the evidence of the complainant was “unchallenged in the sense that no one is giving me a competing version of events”. He did not suggest it was unchallenged in the sense of undenied.

[43]              However, even if the exculpatory statement in the police evidence in chief was excluded in error, I am unable to identify any miscarriage of justice.

[44]              That Ms Frew denied the offending was obvious to the Judge. She pleaded not guilty. Her counsel made the case that the victim had fallen off her bicycle and hit her head, and that the victim had not clearly identified Ms Frew as the person whose actions precipitated that fall.

[45]              As the Judge said, there was no alternative “evidence about what happened on that day”.28 The response recorded in the constable’s written statement did not provide an alternative account of the events of 27 July 2021. It merely confirmed the self- evident fact that Ms Frew rejected the victim’s account.

[46]              In respect of the further argument that the statement was admissible not for its contents but as proof a statement was made, again no miscarriage of justice can, in my view, arise. If it could not be used to establish the truth of the fact that Ms Frew was inside at the time of the assault and could not therefore have been the guilty party, it could not have added in any way materially to her defence.

28 At [8].

Result

[47]The appeal is dismissed.

Muir J