Hill v Police

[2024] NZHC 509

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI 2024-463-000061

[2024] NZHC 509

BETWEEN

ALAN JOHN HILL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	21 November 2024
Appearances:	T Condor & J McNally for the Appellant (via VMR) E O’Brien for the Respondent
Judgment:	16 December 2024
Reissued:	3 February 2025

JUDGMENT OF TAHANA J

[Appeal against conviction]

This judgment was delivered by me on 16 December 2024 at 1.00pm and

re-delivered by me on 3 February 2025 in accordance with Criminal Procedure Rules 2012, r 1.6.

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Pollett Legal, Tauranga Holland Beckett, Tauranga

HILL v NEW ZEALAND POLICE [Appeal against conviction] [2024] NZHC 509 [16 December 2024]

Introduction

[1]        Mr Hill appeals against his convictions on one charge of assault on a person in a family relationship1 and one charge of assault with a weapon2 after a judge-alone trial before I D R Judge Cameron.3 Mr Hill was convicted and discharged on each charge.4

[2]        Mr Hill appeals his convictions on the ground that the following evidence was available to trial counsel but was not led at trial:

(a)evidence from Mr Hill’s daughter about the complainant allegedly having previously acted aggressively towards Mr Hill;

(b)evidence from Mr Hill that he told his counsel that the layout of the rooms where the incidents occurred was not as the complainant had alleged; and

(c)medical evidence in relation to Mr Hill’s medical conditions.

[3]        In support of his appeal, Mr Hill has sworn an affidavit and filed an affidavit from his daughter. On appeal, Mr Hill asks the Court to consider that evidence.

[4]        The key issue on appeal is whether a miscarriage of justice has occurred because the evidence was not called at the trial.

Charges

[5]        The charges relate to two incidents, one that occurred on 11 May 2022 and the other on 20 May 2022. At the time, Mr Hill was aged 76. He and the complainant had met in China and started a relationship. The complainant moved to New Zealand in 2018 to live with Mr Hill at his home in Tauranga.

1      Crimes Act 1961, s 194A.

2      Section 202C.

3      Police v Hill [2023] NZDC 22534.

4      Police v Hill [2024] NZHC 11013.

[6]        Mr Hill walks with the help of a walking stick. He has cancer and limited mobility. It was common ground that by May 2022, the relationship had soured and there was tension in the house where Mr Hill and the complainant lived with Mr Hill’s adult son who has a mental health disability. Mr Hill’s adult son was present at the time of the 20 May 2022 incident.

[7]        It was alleged that on 11 May 2022, Mr Hill had punched the complainant after an altercation because the complainant had taken photos of Mr Hill’s online conversation with another woman.

[8]        As to the second incident on 20 May 2022, there is a video that was taken on the complainant’s mobile phone. It was alleged that Mr Hill hit the complainant on the head with his walking stick and then hooked the walking stick around her neck and attempted to drag her out of the dining room.

Decision under appeal

[9]        After setting out the relevant evidence, the Judge first considered the incident on 20 May 2022 given the video footage available.

20 May 2022 incident

[10]The Judge determined that the video footage:

(a)depicts Mr Hill, and not the complainant, as the aggressor;5 and

(b)depicts Mr Hill holding the non-handle end of his walking stick and thrusting the curved handle towards the complainant.6

[11]      The Judge noted that the photographs in the exhibit book included bruising around the complainant’s earlobe and on one of her legs, consistent with her assertion about her injuries.7

5      Police v Hill, above n 3, at [9].

6 At [9].

7 At [10].

[12]      The Judge determined that Mr Hill’s son’s  degrading statements to the complainant during the incident (as heard on the video) are consistent with Mr Hill being the aggressor and being morally supported by his son.8 The Judge considered that those comments were not consistent with Mr Hill’s claims that he was being attacked by the complainant at the same time.

[13]      The Judge noted that the evidence of Constable De La Mare (who attended at Mr Hill’s home on 20 May 2022) is also consistent with the complainant’s description of being attacked.9 The Constable noticed swelling on the complainant’s hand, and that the complainant was very upset and complaining of pain. The Constable noted that Mr Hill was present and argumentative, and also had a small bleeding injury to his hand between his fingers.

[14]      The Judge rejected Mr Hill’s evidence as to what occurred during the incident of 20 May 2022.

11 May 2022 incident

[15]      The Judge noted that in rejecting Mr Hill’s evidence in relation to the 20 May 2022 incident, Mr Hill’s credibility was “severely undermined”.10

[16]      The Judge noted that there was clearly a struggle for the phone, initiated by Mr Hill, and his inability to retrieve the phone while standing up is consistent with the complainant’s evidence that he took this further by punching her, causing her to fall to the ground.11 The Judge noted that the evidence clearly indicates that Mr Hill was struggling to obtain the phone from the complainant, consistent with her account that Mr Hill committed violence against her to obtain it. For these reasons, the Judge rejected Mr Hill’s evidence that he was not the aggressor in the 11 May 2022 incident.12

8 At [12].

9 At [13].

10 At [15].

11 At [15].

12 At [17].

[17]      The Judge determined that the complainant gave a clear and consistent account of being attacked on 11 May 2022 and 20 May 2022 and accepted the complainant’s evidence as to what occurred during those attacks. Accordingly, the Judge found that the prosecution had established the elements of both offences, and that Mr Hill was guilty of both charges.

Legal principles

Approach on appeal

[18]      Appeals against conviction are governed by subpart 3 of the Criminal Procedure Act 2011 (ss 229 to 243). The appellate court must allow an appeal against a judge-alone trial if the Court is satisfied that:13

(a)the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b)a miscarriage of justice has occurred for any reason.

[19]      A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:14

(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.

[20]      The Crown referred to Nishant v Police where Katz J considered the meaning of a “real risk” and noted:15

A “real risk” that the outcome of the trial was affected will arise if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. Irregularities which “plainly could not, either singly or collectively, have affected the result of the trial” are not miscarriages of justice and the appellate court must disregard them. However, a finding that there has been an unfair trial in terms of s 232(4)(b) means that it is unnecessary to consider whether this may have affected the

13     Criminal Procedure Act 2011, s 232(2)(b).

14     Section 232(4).

15     Nishant v Police [2019] NZHC 18 at [15].

outcome of the trial because s 232(4)(b) assumes that if an accused person has not received a fair trial then any resulting conviction must be set aside.

New evidence on appeal

[21]      Whether new evidence can be considered on appeal requires that the Court be satisfied that the evidence is fresh (not available at trial), sufficiently credible and cogent as set out in R v Bain.16 The evidence must be such that it might reasonably have led to a finding of not guilty if called at trial.17

[22]      If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter.18 The court is engaged in considering what effect the new evidence might reasonably have had on the jury (or judge).19

[23]      If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury (or judge) at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.20

Trial counsel error

[24]      The appellant argued that because the evidence was known but not led by trial counsel, that is an accepted basis on which evidence can be accepted as fresh and referred to Fairburn v R.21 In Fairburn, the Supreme Court was satisfied that trial counsel had made a serious error in proceeding to trial based on an untenable defence of justified self-defence and in overlooking the need for an expert opinion to support the defence of accident. The new evidence was from a qualified expert in vehicle accident analysis. The Supreme Court considered that in those circumstances, it would

16     R v Bain [2004] 1 NZLR 638 (CA).

17 At [19].

18 At [24].

19 At [25].

20 At [26].

21     Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63.

be “contrary to the interests of justice” to rule the evidence out on the basis it was not fresh.22

[25]      Fairburn is not authority for any evidence not called by trial counsel being fresh. Rather, if there has been counsel error in not calling the evidence, then the fact the evidence is not fresh, will not be a barrier to its admission on appeal. It is helpful to also set out the relevant legal principles when trial counsel error is relied on.

Trial counsel error

[26]      Eaton J set out the principles that apply when an appellant relies on trial counsel error as follows:23

[38]      The relevant legal principles that arise in an appeal alleging trial counsel error were helpfully summarised by the Court of Appeal in Clutterbuck v R. The Court said:

[13]   The starting point is R v Sungsuwan where the Supreme Court emphasised that the focus must always be on whether there has been a miscarriage of justice. Counsel’s decisions may be relevant to that, but radical error by trial counsel is not required to establish a miscarriage has occurred. More recently this Court in R v Hall reviewed the topic of alleged counsel error. The Court identified three fundamental matters over which a defendant had the absolute right to decide and concerning which counsel must follow or not act — the plea, the focus of the defence and the decision to testify.

[14]   The emphasis in R v Sungsuwan on whether there has been a miscarriage had the effect of reducing the emphasis or focus on the nature of counsel’s error, and the then test of whether it was a “radical” error. The consequence of any errors was more important than assessing their gravity. R v Hall is consistent with this, but clarifies that some matters are so fundamentally tied to a defendant’s rights that errors in relation to them will almost always constitute a miscarriage.

(footnotes omitted)

[39]In R v Sungsuwan, the Supreme Court observed:

[W]hile the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real

22 At [33].

23     Chin v New Zealand Police [2024] NZHC 2646.

concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[40]      The approach to be adopted in cases in which trial counsel error is alleged is to:

[A]sk first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

(footnotes omitted)

[27]      Here, it is necessary to consider whether there is a real risk that the failure to lead the evidence affected the outcome. If the failure to lead the evidence could not have affected the outcome, any further scrutiny is unnecessary.

Is there a real risk that the failure to call the new evidence affected the outcome?

[28]      In considering this question, it is necessary to consider the nature of the new evidence and its potential relevance.

[29]Mr Hill’s counsel argued that the new evidence is relevant because:

(a)The evidence of the prior conduct of the complainant is relevant to how the events in the video are construed.

(b)To the extent that the video shows Mr Hill using force, evidence of prior violence is of relevance to whether his actions were justified.

(c)The complainant’s account could not be correct because it was inconsistent with the layout of the  house  and  was  impossible  for Mr Hill to carry out.

Evidence about complainant

[30]      Mr Hill’s daughter affirmed an affidavit dated 16 September 2024. That affidavit attaches an email she sent to trial counsel dated 23 February 2023. In that email:

(a)She refers to the “day following the first time she hit my dad”. It is unclear when this day was, whether Mr Hill’s daughter witnessed the complainant hitting Mr Hill or whether she is relying on what she has been told. It is also unclear whether she is referring to the incident on 22 May 2022.

(b)She refers to the complainant’s “extreme behaviour” and says that the complainant was “unapproachable and hostile” and “unpredictable”. These statements are not evidence as to what the complainant said or did and do not disclose the underlying evidence which gives rise to these opinions of the complainant’s behaviour.

(c)She refers to the complainant yelling and being loud.

(d)She says that on one occasion she saw the complainant throwing shoes across the deck while yelling very loudly at her father.

[31]      In her 16 September 2024 affidavit, Mr Hill’s daughter says that in late March 2022 or early April 2022, the complainant “grabbed” her from behind and “yanked” her almost causing her to fall over. That evidence was not included in the email sent to trial counsel on 23 February 2023 so was not known to trial counsel.

[32]      Mr Hill’s counsel submits that this evidence paints a different picture of the relationship than that found by the Judge to be indicated by the video. He submits that had the Court known that the complainant had previously been violent towards Mr Hill then his actions in the video footage may have been viewed as having a defensive element.

[33]At trial, Mr Hill’s evidence in relation to the 20 May 2022 incident was that:

A. My son was sitting in the hall and because she was just going feral I was concerned for my son so I crawled to the bed pulled myself up, grabbed my stick [and] went down the hall.

…

A. The speed of me going down the hall in the video I can’t walk that fast that’s the wrong speed, that’s the videos’ fault.

Q. When we look at the video is that from your recall taken after the incident in the bedroom.

A. Yes. After being kicked to the ground yes.

Q. And you’re seen walking down the hall –

A. Yes.

Q.    – towards her.

A. Yes I was angry, it’s a perfectly natural human reaction when you get kicked in the stoma to the ground.

Q. Now you walked towards her what were you –

A. I was telling her to get out.

Q.  Get out.

A.  Get out.

Q. From where sir

A. Go away get out. She’d only been in the house five minutes and she’s, you know, she was out making trouble again.

A. Now did you use your walking stick to hit her on the video.

A. On the video

Q. in the video.

A. Yes.

Q. Did you use your walking stick it hit her around the neck.

A. No, no, no absolutely not. She grabbed my walking stick at one stage she was fighting me for my stick. She knows without my stick I’m hopeless. I was all right, she pushed me back through the doorway, I was holding onto the door frame to hold myself up because she was trying to push me backwards, she was pushing me backwards, she was pushing me backwards the whole time and banging my hands and – on the doorframe and she tried to grab my stick at one stage. At no time – I think she says I put my stick around her neck was that then.

Q. Yes did you do that.

A. That’s garbage that didn’t happen. What she’s in the photo is I’m changing hands because I’m holding onto I think both hands both the translator and the stick in one hand. I was going to drop it anyway and I changed hands to keep my stick from pulling my stick out of my hand.

Q. Okay.

A. yeah.

[34]      The video clearly depicts Mr Hill advancing down the hallway with his walking stick towards the complainant. Mr Hill can be clearly heard telling the complainant to “get out” and that “you deliberately cause trouble”. The video also depicts Mr Hill pushing the handle of the walking stick towards the complainant’s head. In response to the question as to whether he used the walking stick to hit the complainant, Mr Hill said “yes”. Although he did not agree that he had used the walking stick to hit her around the neck and said that she tried to grab the walking stick at one stage. Mr Hill is heard saying “get out” as he pushes the walking stick towards the complainant.

[35]      Mr Hill’s counsel accepted that the appeal turns on the video. He argued that the video is a “cipher” such that its meaning is open to interpretation and the surrounding circumstances assume importance. While parts of the video are obscured so that nothing is visible, the parts of the video on which the Judge relied (Mr Hill walking down the hallway, Mr Hill’s words and Mr Hill pushing the walking stick handle towards the complainant) were not obscured such that further evidence is relevant to the interpretation of those parts of the video.

[36]      In circumstances where those parts of the video are clear, I do not consider that there is a real risk that the failure to lead the evidence about the complainant affected the outcome. The Judge’s findings as to Mr Hill’s actions in thrusting the walking stick towards the complainant were based on what was clearly visible (and heard) on the video. The findings were not arrived at by drawing inferences.

[37]      The audio on the video is clear as is the location of Mr Hill’s son and the proximity of Mr Hill’s son to Mr Hill and the complainant. Mr Hill’s evidence at trial that he was concerned for his son did not require additional evidence as to the complainant’s previous conduct in circumstances where the video is unambiguous as to the son’s location and what the son was saying at the time. That further corroborated the Judge’s finding that it was Mr Hill who was the aggressor.

[38]      I am not satisfied that there is a real risk of manifest injustice in circumstances where the video is clear in depicting Mr Hill pushing the walking stick towards the

complainant. On an objective viewing of the video, that action could not be construed as defensive.

Medical evidence

[39]      Mr Hill’s counsel also submits that Mr Hill’s actions in the video footage may have been viewed differently if the Court had received more detailed evidence on  Mr Hill’s medical condition, particularly his inability to bear weight on both legs. His counsel argued that the allegation that Mr Hill used his cane as a weapon by swinging it while holding the base is impossible for him based on the additional medical evidence.

[40]      The video depicts Mr Hill with his walking stick in his left hand and then moving the handle end of the stick towards the complainant. At the same time, he is telling her to “get out”.

[41]      The Judge’s finding that Mr Hill thrust the walking stick in the direction of the complainant was taken from the video. I do not consider that the video is ambiguous in that regard such that additional medical evidence might reasonably have led to a finding of not guilty.

[42]      I agree with the Crown that the new medical evidence does not offer materially different information from that presented at trial. Mr Hill’s health conditions were not in dispute, and the police did not challenge his evidence regarding his diagnosis or his balance issues. The Judge’s findings arose from what is seen in the video and I do not consider that the failure to lead further evidence as to his medical condition indicates a real risk of a miscarriage of justice.

Evidence as to the layout of house

[43]      For completeness, I note that the appeal also relies on the failure to lead evidence about the layout of the house. Mr Hill deposes that he told his trial counsel that the complainant’s evidence about the layout of the furniture was inaccurate and that his trial counsel did not ask for photos in support of this and did not put the inconsistencies to the complainant during cross-examination.

[44]      At the appeal hearing, Mr Hill’s counsel did not explain what the new evidence was or how the failure to lead it gives rise to a real risk of a miscarriage of justice. In the absence of evidence as to what the layout was, or any submissions as to how this resulted in a miscarriage of justice, I do not consider this ground of appeal can be sustained.

Summary

[45]      I am not satisfied that there is a real risk that the new evidence might reasonably have led to a finding of not guilty if led at trial. The relevant parts of the video on which the Judge relied are not ambiguous such that in the absence of the new evidence there is a real risk of a miscarriage of justice. Mr Hill’s evidence at trial was that he used the walking stick to hit the complainant. While he did not accept that he had hit her around the neck, he answered “yes” to whether he used the walking stick to hit the complainant. The unambiguous parts of the video do not indicate an objective basis upon which Mr Hill’s conduct (in pushing the walking stick towards the complainant) can be said to have been in self-defence.

[46]      The findings made by the Judge that Mr Hill was the aggressor arose from those parts of the video which are clear and unambiguous. In these circumstances, I am not satisfied that the failure to lead the evidence at trial led to a miscarriage of justice.

Result

[47]For the reasons above, the appeal is dismissed.

Tahana J