Hardy v Police
[2019] NZHC 1838
•31 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000399
[2019] NZHC 1838
BETWEEN RHETT DONALD HARDY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 July 2019 Appearances:
P Heaslip for the Appellant
Y Y Wang for the Respondent
Judgment:
31 July 2019
JUDGMENT OF HINTON J
This judgment was delivered by me on 31 July 2019 at 2.30 pm
…………………………………………………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Paul Heaslip, Barrister, Auckland Meredith Connell, Auckland
HARDY v POLICE [2019] NZHC 1838 [31 July 2019]
[1] Mr Hardy was found guilty by Judge Grace on 22 August 2018 on one charge of assault with intent to injure,1 and subsequently sentenced to six months’ community detention from 8.00 pm to 6.00 am each day (so he could continue his current employment), 120 hours of community work, and 12 months’ supervision.2
[2] He appeals his conviction. The appeal as filed was as to conviction and sentence, but Mr Hardy does not pursue the sentence appeal because he has already served the sentence and because it is accepted on his behalf (I consider correctly) that if the conviction were upheld, it would be difficult to argue the sentence was manifestly excessive.
[3] The appeal against conviction proceeds only on the ground that a miscarriage of justice occurred because the Judge should have required the prosecution to call three witnesses whose briefs had been provided, or at worst should have adjourned the trial. There were other points raised in written submissions, being that the charge of assault with intent to injure should have been split into two separate charges; that Judge Grace appeared to be biased in assessment of evidence; and that he erred in relation to his findings on the availability of self-defence. These points are not pursued, although I note that Mr Hardy says the non-calling of witnesses impacted on the Judge’s findings on self-defence, a point which I address.
[4] The appeal therefore proceeds as an appeal against conviction on the ground of miscarriage arising out of the non-calling of the three witnesses. The appellant says that as a consequence the trial and verdict were unsafe.
The test on appeal
[5] For the appeal to succeed, the appellant must show that there has been a miscarriage of justice, which for the purposes of this case is any error or irregularity that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.3
1 New Zealand Police v Hardy [2018] NZDC 21627.
2 New Zealand Police v Hardy [2018] NZDC 25884.
3 Criminal Procedure Act 2011, s 232.
The Judge’s findings
[6] The particulars of the charge are that Mr Hardy assaulted the complainant with intent to injure by headbutting and punching him.
[7] There was no dispute over most of the facts at trial. In essence, Mr Hardy went to an accountants’ office (BDO) where the complainant worked. He understood that an appointment had been made by a client of the complainant for him to sign some documentation to conclude a business transaction. Matters did not work out that way and he became annoyed with the accountant, partly as a result of the background to the transaction itself, and partly because what probably seemed like a straightforward matter to the appellant, was not being dealt with in that way.
[8] The Judge found in terms of the key relevant events that what followed at BDO’s premises was:
(a)The appellant headbutted the complainant.
(b)The complainant then pushed the appellant.
(c)The appellant then punched the complainant in the right cheek, drawing blood.
(d)The complainant then grabbed the appellant by the throat because the appellant had hit him. He said to the appellant, “I could punch you”, but did not and the two were separated.
[9] The Judge found that the punch coupled with the headbutt, overall constituted an assault with intent to injure.
[10] The Judge’s findings mirrored the complainant’s evidence and were consistent with the evidence of the prosecution witnesses. That is not in dispute.
[11] The Judge did not accept the appellant’s evidence. The appellant had denied the headbutt. He admitted the punch, but said it was in self-defence because the
complainant was holding him by the throat at the time; in other words, the appellant’s being grabbed by the throat preceded his punching the complainant.
[12] The Judge having found there was both a headbutt and a punch and that the punch preceded the complainant’s holding the appellant by the throat, rejected the appellant’s case and rejected his argument of self-defence.
Mr Hardy’s case and the relevant law
[13] Mr Hardy submits that his fair trial rights under s 25 of the New Zealand Bill of Rights Act 1990 were breached by the Police decision not to call three BDO witnesses, being Ms Hubbard, Mr Patel and Ms McMeel. He says that had the three extra witnesses been called, then, not so much would their briefs have been helpful to him, but they may have given different evidence which would have been, or could have been, helpful to his case.
[14] Section 25 of NZBORA provides for minimum standards of criminal procedure, including the right to a fair hearing. The appellant refers in particular to subs (f), “the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution”.
[15] This situation is specifically covered by s 113 of the Criminal Procedure Act 2011, which relates to adjourning a trial for a witness. Section 113(3) and (4) provide:
113 Adjourning trial for witness
…
(3)If the court is of the opinion that a witness who is not called for the prosecution ought to be called, it may—
(a)require the prosecution to call the witness; and
(b)if the witness is not present, make an order for the attendance of the witness.
In the case described in subsection (3), the court may—
(a)adjourn the trial; or
(b)if it is of the opinion that it would be in the interests of justice to do so, on the application of the defendant, discharge the jury and postpone the trial.
[16] A prosecutor has an obligation under s 13 of the Criminal Disclosure Act 2008 to provide full disclosure to a defendant, including a copy of any statement made by a prosecution witness, any brief of evidence prepared in relation to a prosecution witness and any written account of any interview. Beyond that, at common law, the prosecution has a discretion with regard to which witnesses it calls. But under s 113 of the Criminal Procedure Act, the Court can require the prosecution to call a witness who is not being called and “ought to be”.
[17] In R v Wilson, Eichelbaum CJ said that the Court should interfere with the prosecution case sparingly under the then-equivalent to s 113 of the Criminal Procedure Act, inter alia because a Judge lacks knowledge and information about any particular witness. He also said that the s 113 discretion is to be exercised in the interests of justice, which of course includes, but is not limited to considerations of fairness to the defence.4
Does s 113 apply here?
[18] The background to the witnesses not being called is that on 14 August 2018, a week before the 21 August 2018 hearing, offered by the Court earlier that month, the Police wrote to Mr Hardy and said they were seeking an adjournment on the grounds some of their witnesses were not available on 21 August 2018. It seems from the prosecutor’s email that Mr Hardy had already told them the adjournment was opposed. On 17 August 2018, Mr Hardy wrote to the Police that he strongly opposed a further adjournment of the trial and that he wanted the trial to proceed on 21 August 2018, with the six civilian witnesses from BDO. Subsequently, on 20 August 2018, the Crown wrote to Mr Hardy and said that the Police would be ready to proceed. They listed four witnesses, including three of the civilian witnesses and excluding the three witnesses to whom I have referred.
4 R v Wilson [1997] 2 NZLR 500 (HC).
[19] At the commencement of his oral judgment, dated 22 August 2018, Judge Grace records that there were six (civilian) witnesses and that the prosecution had elected to proceed on the basis of four, which caused some concern to the defendant because he had clearly intended to cross-examine the two additional witnesses. The Judge says, “one of those witnesses is overseas and I am not sure where the other one is but because the matter has been outstanding for such a lengthy period of time and also I think rightly so, Mr Hardy wanted the matter resolved, I directed that the matter should go ahead yesterday”.5
[20] In his original appeal submissions, Mr Heaslip for Mr Hardy said that when Mr Hardy appeared before Judge Grace, he maintained essentially the same position that he had recorded in his 17 August 2018 email. In other words, he opposed an adjournment and wanted to proceed with all witnesses. In reply submissions dated 28 July 2019 (but apparently filed on Friday, 26 July 2019), Mr Heaslip records that Mr Hardy asked the Judge on the morning of the trial for an adjournment because the three excused witnesses were important. He says that an adjournment was never an available option.
[21] I do not accept that there was any request for an adjournment by Mr Hardy. That would fly directly in the face of the opening paragraph of Judge Grace’s judgment, Mr Hardy’s email of 17 August 2018, and his lawyer’s submissions on the appeal prior to the reply submission dated “28 July 2019”. Further, Mr Hardy clearly had the opportunity to adjourn the trial on the face of the email exchange shortly before trial.
[22] However, I do accept, in particular where someone is self-represented, it is not an answer to a case like this for the Crown to say simply that Mr Hardy had the opportunity to adjourn the trial.
[23] It seems to me, especially where a defendant is unrepresented, and is saying he wishes to cross-examine missing witnesses, the Court needs to consider the nature of
5 In fact the prosecution elected to proceed on the basis of three civilian witnesses (plus Police witnesses) and there were three additional witnesses who were not called.
that potential additional evidence. It may be an adjournment is necessary under s 113, even though a defendant is saying he wishes to proceed.
[24] The key point in this context is whether the evidence of any one of the three witnesses might have contradicted the prosecution case on a relevant issue. This is not limited to a consideration of the witnesses’ briefs, but also, without being fanciful, what more they might reasonably have said, considering their brief and all of the circumstances.
[25] The first “missing” witness, Ms Hubbard, said that the first thing she saw was the complainant holding Mr Hardy by the shoulder and/or neck area with his fist raised. She heard the complainant say to Mr Hardy, “I could punch you” but he did not. He just continued to hold Mr Hardy at arm’s length and Mr Hardy was standing with a smirk on his face.
[26] This statement of Ms Hubbard was entirely consistent with the evidence of the complainant himself and with the finding that the Judge made as to what happened last in the sequence of events recorded above.
[27] Mr Patel’s statement was that the first he saw was the complainant and Mr Hardy pushing each other aggressively and he saw blood on the complainant’s face.
[28] This again is consistent with, or at least not inconsistent with, the prosecution case and the Judge’s findings. In any event, like Ms Hubbard, Mr Patel’s written statement was that he was not present and/or did not see any of the key events. I return to the question of self-defence.
[29] Ms McMeel’s formal statement records that she saw a verbal altercation develop between the complainant and Mr Hardy; she went back to the lunchroom and when she looked out again, Mr Hardy was standing very close to the complainant and refusing to leave. She says he then made contact with the complainant with force. She said she did not see what exactly happened as the complainant’s back was to her, partially obscuring her view of Mr Hardy. She said the complainant turned around
and she could see blood on his right cheek. He looked shocked and Mr Hardy had a big grin on his face and was moving in a way that looked very provoking.
[30] A reasonable interpretation of that evidence is that Ms McMeel saw either the headbutt and the punch, or just the punch, the headbutt having preceded her looking out from the lunchroom. Either way, this evidence again would have been quite consistent with the prosecution case and the Judge’s findings.
[31] In summary, I agree with the respondent that the proposed evidence of Ms Hubbard, Mr Patel and Ms McMeel, individually and in combination, was consistent with the evidence of the complainant and the prosecution case. At best (from a defence perspective) some of it may be described as neutral.
[32] The crux of the matter is that the evidence of the three additional BDO witnesses would have made no difference to the findings of fact and their absence did not result in an unfair trial for Mr Hardy.
[33] I should add for the sake of completeness that Mr Heaslip’s main emphasis was not on the actual evidence contained in their statements, but on what further evidence the three witnesses might have given. I agree that the inquiry can extend that far, but there would need to be something in the statements or in the circumstances generally to point to further exculpatory evidence being a realistic possibility. This might arise, for example, if there were a large apparently relevant hole in a brief of evidence. Here there is no such thing. Rather, their evidence is that, to the extent they have not commented, they were not in the room or they were in the room and could not see more than they did. There is nothing that would enable me to consider any one of the three additional witnesses might have given different evidence that would or could be relevant. That would be pure speculation.
[34] It follows that I also do not agree with the submission made for Mr Hardy that there were two factions of prosecution witnesses, one being those called, and the other being those left out. None of the witnesses (including the three extras) said the same thing. As the Judge observed, this led him to consider they had not colluded, although they were all employees of the accounting practice. But everything they said was
nonetheless consistent overall, as to any relevant point, both with each other and with the prosecution case.
[35] In terms of self-defence, Mr Heaslip makes the submission that the additional evidence of the three witnesses, particularly the evidence of Mr Patel, is relevant to the defence of self-defence, (where of course the burden remains on the Crown). Mr Heaslip points to Mr Patel’s evidence that both Mr Hardy and the complainant were acting forcefully, which he says supports the argument of self-defence because the punch could have been in response to the complainant’s pushing Mr Hardy, not in response to the complainant’s holding Mr Hardy by the throat. On the latter argument, Mr Patel’s evidence would not have been of any assistance to the defence because his statement records that at the same time as he saw Mr Hardy and the complainant being aggressive with each other, he saw blood on the complainant’s face (but did not know how it got there). But Mr Heaslip says Mr Patel’s evidence is consistent, or not inconsistent, with the complainant pushing Mr Hardy and Mr Hardy punching him in self-defence.
[36] Ms Wang, for the Police, responded to that argument by pointing out that Mr Hardy’s case at trial was not that he was retaliating, or saw the need to retaliate, to a push from the complainant, but rather that he was retaliating as a result of the complainant’s grabbing him by the throat. I accept this point. At page 21 of the notes of evidence, Mr Hardy puts to the complainant that if the complainant had him by the throat because he wanted him to leave the office, would that be reason for him to lash out. In that same context, Mr Hardy advised the Court that he struck the complainant because he was manhandling him at the time. And at page 68 of the notes of evidence, Mr Hardy gave evidence that he hit the complainant after the complainant had him by the throat for it seemed like a long time, and that was the time at which he retaliated.
[37] The Judge, consistent with the appellant’s cross-examination, advice to the Court during the trial, and own evidence, recorded in his judgment that Mr Hardy argued that he was being held by his throat and therefore hit out at the complainant and that Mr Hardy did not claim he hit out because he was being pushed by the complainant.
[38] Therefore, on the argument as run by the appellant at trial, Mr Patel’s evidence would have made no difference to the claim of self-defence.
Conclusion
[39] The appellant has not identified any error which would have affected the outcome of the trial. The appeal against conviction is dismissed.
Hinton J
0
0
0