Huritu v Police
[2019] NZHC 2560
•8 October 2019
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI 2019-463-84
[2019] NZHC 2560
BETWEEN CODY HURITU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 October 2019 Appearances:
G R Tomlinson for T Braithwaite for the appellant G Banuelos for the respondent
Judgment:
8 October 2019
ORAL JUDGMENT OF JAGOSE J
Solicitors/Counsel:
Gowing & Co Limited, Whakatane Braithwaite Law Ltd, Rotorua Gordon Pilditch, Rotorua
HURITU v NEW ZEALAND POLICE [2019] NZHC 2560 [8 October 2019]
[1] On 1 August 2019, Cody Huritu was found guilty of assaulting his partner1 and breaching a protection order,2 following a judge-alone trial before Judge P W Cooper in the District Court at Rotorua.3 Mr Huritu pleaded guilty to a further charge of breaching release conditions when he failed to report to his probation officer.4 On 22 August 2019, Mr Huritu received an end sentence of one year and six months’ imprisonment.5
[2] Mr Huritu appeals against a pre-trial decision admitting hearsay evidence.6 He says the introduction of that evidence resulted in his conviction and accordingly also appeals against conviction. The appeal against the pre-trial decision is out of time.7 I deal with the appeal as an appeal against conviction.
Background
—the alleged incident
[3] The complainant is Mr Huritu’s sometime partner over 20 years, with whom he has two children. There is extensive history of family violence recorded between them, with her being the victim in more than a third of his 21 violent offences. A temporary protection order was served on Mr Huritu on 17 June 2018. It became final on 18 October 2018 but had not been served on Mr Huritu.
[4] On 10 December 2018, the complainant and Mr Huritu were at their home address in Rotorua. They argued over who was to clean a pot he had burned cooking food. The complainant retreated to the sitting room and sat on the couch. Mr Huritu followed her and became verbally abusive. He began punching her head. She rolled onto her side and raised her arms to protect herself. Mr Huritu paused his assault long enough for the complainant to sit up. After she demanded he leave, he hit her once to
1 Crimes Act 1961, s 194A.
2 Domestic Violence Act 1995, ss 19(1)(a) or (b), 49(1)(b) and 49(3).
3 Police v Huritu [2019] NZDC 15221 [District Court decision].
4 He received a concurrent sentence of two months’ imprisonment.
5 Police v Huritu [2019] NZDC 16816. A sentence of 12 months’ imprisonment was imposed in relation to the assault charge, with a cumulative six-month sentence imposed for the breach of a protection order.
6 Police v Huritu [2019] NZDC 15660 [Pre-trial ruling].
7 Criminal Procedure Act 2011, s 220(2). A notice of application for leave to appeal a pre-trial decision must be filed within 20 working days after the date of the decision to which the appeal relates.
the right eye with enough force to cause immediate bruising. When she screamed and tried to move away, his nails dug in to her face. She then got up and left the address. She returned a short time later, she says so as not to leave their 19-month son alone with Mr Huritu.
[5] A police officer arrived at the complainant’s address at approximately 2.40 pm that day, to discuss an earlier family harm incident. When the complainant presented with visible injuries, the constable enquired as to what had happened. The complainant then accompanied the officer to the police station to give a formal written statement.
—District Court proceedings
[6] Mr Huritu’s judge-alone trial was scheduled for 18 July 2019. The complainant was summoned to give evidence on that day. When she did not answer, she was arrested on warrant and bailed to appear on 1 August 2019 for the re-scheduled trial. When she again failed to appear, the Judge heard argument if her formal written statement to police should be admitted as a hearsay statement. Following that, another warrant for her arrest was issued. Police unsuccessfully attempted – to locate her by visiting her house and that of an associate, and by making repeated calls to her phone
– to execute the warrant.
[7] Later on 1 August 2019, the Judge granted the application to admit the formal written statement of the complainant. Following s 18(1) of the Evidence Act 2006, the Judge was satisfied the complainant was unavailable as a witness, given she could not with reasonable diligence be identified or found.8 The fact she was unwilling to be a witness did not preclude her from being described as ‘unavailable’. The Judge further was satisfied the circumstances of the statement provided reasonable assurance it was reliable. He had specific regard for the formal nature of the statement, the fact it was signed with attestation to its truthfulness and correctness, its consistency with other evidence, and its detailed nature.
[8] In determining the “general admissibility question” under s 8, the Judge again considered the circumstances in which the statement was made and its consistency
8 Referring to s 16(2) of the Evidence Act 2006 and the decision of Rameka v R [2019] NZCA 105.
with other evidence. While acknowledging the defence would be unable to cross- examine the complainant, the Judge believed Mr Huritu would still be able to offer an effective defence. He could give evidence himself or offer other evidence. Ultimately, the strong probative value of the statement was not outweighed by any prejudice, and it was admitted into evidence.
[9] The Judge had express regard for s 122, which directs caution be exercised when dealing with hearsay evidence. He again highlighted the reliability of the circumstances in which the statement was made. The Judge ultimately was satisfied beyond reasonable doubt the statement was “the true position in relation to this incident”, and Mr Huritu did assault the complainant. Both charges – assault and breach of a protection order – were proven.
Grounds of appeal
[10] Appearing for Mr Huritu’s counsel, Tim Braithwaite, Gene Tomlinson directs his submissions toward the admission of the hearsay statement of the complainant, arguing its introduction resulted in Mr Huritu’s conviction. Specifically, Mr Tomlinson says the Judge erred:
(a)the complainant was not unavailable as a witness, as a higher threshold of diligence applies to locate complainant witnesses in circumstances “where without the statement the defendant had no case to answer”. A lesser threshold for complainant statements sets “a dangerous precedent and could open the floodgates for any complainant who does not turn up to court”;
(b)the reliability threshold was not met, as the complaint’s statement was given against “a background of deceit”, and her “proven untruthfulness” and the inadequacy of corroboration rendered her statement unreliable; and
(c)the probative value of the statement did not outweigh its prejudicial effect in precluding the complainant’s cross-examination.
Approach on appeal
[11] If I am satisfied any of these errors are made out, and there is a “real risk” the outcome of the trial was affected – “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong” – or the trial was unfair or a nullity, I must allow the appeal on grounds of miscarriage of justice.9 Otherwise I must dismiss it.10
[12] If my own view on that question differs from the Judge, the Judge will have erred and the appeal must be allowed. But it is for Mr Huritu to show such an error had been made; I must take into account any advantages the trial judge may have had.11
Discussion
—was the complainant unavailable?
[13] A person relevantly is unavailable as a witness in a proceeding if the person “cannot with reasonable diligence be identified or found”.12 No different threshold applies for complainants as witnesses; what constitutes ‘reasonable diligence’ in any particular circumstance will depend on the facts.
[14] Mr Tomlinson was critical that what constituted ‘reasonable diligence’ here was defined by the timetable the Judge allowed. He said the complainant should not in effect be able to make herself unavailable, particularly as she was the only evidence of identity. Mr Tomlinson draws an analogy with s 16(3), where a hearsay statement may not be offered in evidence in circumstances in which its proponent has caused the [maker’s] unavailability. Mr Tomlinson says the Court should be very slow to permit single witness unavailability to cross the threshold.
[15] Material effort was made to locate the complainant here. Trial had been previously adjourned to secure her attendance by arrest and bail, and the police made
9 Criminal Procedure Act 2011, ss 232(2) and (4); Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [27], adopting Tipping J’s formulation in R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110], and [37].
10 Criminal Procedure Act 2011, s 232(3).
11 Sena v Police [2019] NZSC 55 at [38].
12 Evidence Act 2006, s 16(2)(d) (definition of ‘unavailable as a witness’).
significant effort to locate her on that second occasion, before the Judge ruled the complainant was unavailable as a witness. To my mind the Judge justifiably considered reasonable diligence had been exercised; as in R v Rameka, “the police made every enquiry that could reasonably be expected”.13 The Judge did not err in this respect.
—was the hearsay statement reliable?
[16] As will be appreciated, a ‘hearsay statement’ is a statement, made by a person other than a witness, offered in evidence as proof of the truth of its contents. Here, the hearsay statement is the complainant’s formal written statement to police, offered in evidence by the police as proof of the truth of its contents.
[17] The circumstances of a statement by a person who is not a witness – defined as including the nature and contents of the statement, and circumstances relating to the statement’s making, its maker’s veracity, and the accuracy of their observation14 – must provide reasonable assurance the statement is reliable.15 That is a threshold test in which the judge plays a “gate-keeping role … quite different from the jury’s role in assessing … the reliability of evidence”.16
[18] In connection with the statement’s circumstances, the Judge explained it is “not the veracity of the witness but the veracity… of Constable Vedder” and “again … not the observation of the witness”.17 The Judge’s reference to Constable Vedder is a mistake; she was the witness. The Judge’s explanation only makes sense if he intended (correctly) to refer to the complainant.
[19] Certainly there is evidence of circumstances going to the complainant’s veracity. When police attended the house earlier in the day to serve the final protection order on Mr Huritu, she told them he “wasn’t here but he was”. On the police’s return, she told them her report the previous day (when police attended a family harm
13 Rameka v R, above n 8, at [42]. The witness did not attend the trial as summoned and a warrant was issued for her arrest. The police enquired with her family, telephoned and sent messages to the witness, checked her home address as well as enquired with bus companies.
14 Evidence Act 2006, s 16(1) (definition of ‘circumstances’).
15 Section 18(1)(a).16 Adams v R [2012] NZCA 386 at [26].
17 Pre-trial ruling, above n 6, at [9].
incident) of an argument with her brother had in fact been with Mr Huritu. But neither undermines the statement’s reliability. Denials or retractions of allegations are not uncommon in cases involving allegations of family violence, and do not necessarily detract from whether a statement is reliable.18 Here, in significant degree, the complainant’s ‘untruths’ – seeking to distance herself from potential consequential conflict with Mr Huritu – endorse the reliability of her formal written statement.
[20] The Judge did not err in his assessment of the circumstances of that statement. It was made within five hours after the assault it records in specific detail. The complainant signed the statement, attesting to its truth and accuracy with knowledge it could be used in court proceedings. It was given in a formal environment, in a formal transcribed document, witnessed by an independent person.19 Mr Tomlinson is critical of its absence of corroboration but it is consistent with Mr Huritu’s history of offending against her, the earlier reports of family harm, the existence of protection orders against Mr Huritu, her concern for his response to the police’s intended service of the final protection order, her oral statement at the house, and the photographic evidence of her injuries.20 The gateway threshold is crossed.
[21] The Judge did not err in his conclusion the circumstances relating to the statement provided reasonable assurance the complainant’s statement is reliable.
—did the statement’s probative value outweigh its prejudicial effect?
[22] Mr Tomlinson says the inability to cross-examine the complainant precluded Mr Huritu from offering an effective defence. The inability to cross-examine should not be understated, especially when the evidence sought to be relied on is crucial to determination of the case. Mr Tomlinson says Mr Braithwaite was unable to question the complainant’s veracity and the veracity of the statement, and unable explore the
18 Nisha v R [2015] NZCA 178 at [27].
19 See Adams v R, above n 16, at [35]. The Court of Appeal stated that if “an independent person interviewed [the maker of the hearsay statement], and took a formal statement…there would have been little or no issue as to there being reasonable assurance as to the reliability of the statement”.
20 Wilson v R [2017] NZCA 455 at [29]; Reid v R [2015] NZCA 175 at [24]; and Nisha v R, above n 18, at [20]. The photographs clearly show bruising under the complainant’s right eye and a lump on her forehead. Her written statement says she was “smacked…in the right eye with the palm of his hand”. She had a bruised index finger, which supports her statement she raised her arms to block Mr Huritu’s blows.
lack of injuries to the complainant’s arms (Mr Braithwaite arguing the lack of bruises on her arms was inconsistent with her evidence that she used her arms to block Mr Huritu’s blows).
[23] A hearsay statement that meets the s 18 test nevertheless may be excluded if the risk of an unfairly prejudicial effect on the proceeding outweighs its probative value.21 In assessing the risk of unfair prejudice, the interests of both the prosecution and defence must be considered.22 The mere fact the complainant is “unavailable for cross-examination does not of itself necessarily create unfair prejudice”.23
[24] The formal written statement of the complainant is highly probative. It directly implicates Mr Huritu and contains a detailed account of the incident. The “exclusion of such highly relevant and important evidence would have an unfairly prejudicial effect on the proceeding so far as the Crown is concerned”.24 Without it, the Crown may have been unable to prosecute its case.
[25] By definition, the maker of a hearsay statement cannot be cross-examined.25 The inability to cross-examine the complainant did not preclude Mr Huritu’s counsel from offering an effective defence (specifically, it was not Mr Huritu who assaulted the complainant), as the identified ‘inconsistencies’ in the complainant’s evidence were still raised. The defence had its own challenges, even without the complainant’s statement. Mr Huritu said it was the complainant’s cousin who inflicted her injuries a few days earlier. But when Constable Vedder attended the address the day before the incident presently at issue, the complainant displayed no visible injuries.
[26] It is speculative if cross-examination of the complainant would have yielded concessions favourable to Mr Huritu.26 As an aside, while the complainant did not have any bruises on her arms, she had a bruised index finger said to be a result of blocking Mr Huritu’s blows. In Bishop v Police,27 Lang J set out an extended treatment
21 Evidence Act 2006, s 8(1).
22 Black v R [2012] NZCA 482 at [31], citing Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [20].
23 Wilson v R, above n 20, at [38]; see also K (CA332/2014) v R [2014] NZCA 393 at [31].
24 K (CA332/2014) v R, above n 23, at [30].
25 TK v R [2012] NZCA 185 at [22].
26 K (CA332/2014) v R, above n 23, at [32].
27 Bishop v Police CRI 2008-416-0003 HC Gisborne, 28 February 2008, at [26]–[29], citing R v L
[1994] 2 NZLR 54 (CA) at 63:
of the prejudice or otherwise of an absence of cross-examination of an unavailable witness:
If the testimony appears to be inherently reliable and there is nothing in any other evidence or in the surrounding circumstances casting any doubt on its trustworthiness the Court may properly conclude on that material that cross-examination would not have made any relevant difference.
On balance, I consider the Judge was correct in concluding the probative value of the statement outweighed its prejudicial effect.
[27] I am not satisfied any miscarriage of justice has occurred. The Judge followed the correct procedure for admission of hearsay evidence and exercised sufficient caution in his consideration of the complainant’s formal written statement. None of the alleged errors has been made out; no miscarriage of justice has been established.
Result
[28]The appeal is dismissed.
—Jagose J
If the testimony appears to be inherently reliable and there is nothing in any other evidence or in the surrounding circumstances casting any doubt on its trustworthiness the Court may properly conclude on that material that cross-examination would not have made any relevant difference.
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