Ipo v Police HC Auckland CRI 2009-404-268
[2010] NZHC 2104
•24 November 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-404-000268
BETWEEN TEANEWA JOSEPH IPO Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 22 November 2010
Appearances: Appellant in Person
S Pidgeon for Crown
Judgment: 24 November 2010 at 4.45 p.m.
JUDGMENT OF VENNING J
This judgment was delivered by me on 24 November 2010 at 4.45 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Auckland
Copy to: The Appellant, C/- Auckland Prison
IPO V NEW ZEALAND POLICE HC AK CRI-2009-404-000268 24 November 2010
Introduction
[1] On 27 January 2009, following a defended hearing in the District Court at Manukau, Chief District Court Judge Johnson found the appellant guilty of assaulting a female. On 8 May 2009 the appellant was sentenced to imprisonment for 12 months. The appellant appeals against conviction.
The process of this appeal
[2] The appeal is out of time. The notice of appeal, although dated 26 May 2009 is not recorded as having been received by either the District Court or this Court until 2 September 2009.
[3] The appeal was first listed for hearing on 27 October 2009. By that time Ms Dyhrberg represented the appellant. The appellant had been represented in the District Court by Mr Hosking.
[4] When the appeal came before the Court on 27 October 2009 Stevens J noted that one of the points taken on behalf of the appellant was that the principal witness, the complainant, was available to give evidence so that her hearsay statement should not have been considered by the District Court Judge. Stevens J noted that the appellant would need to provide evidence on that matter. He adjourned the appeal, directing the appellant to file any affidavit or affidavits in support of the appeal by
27 November 2009 (together with an application for leave to adduce such evidence). After providing for a response on behalf of the police and a further reply by the appellant the Judge rescheduled the appeal for hearing on 3 February 2010.
[5] Shortly after that appearance the appellant appeared for trial in this Court on a number of serious charges. The trial commenced on 2 November 2009. At the outset of the trial the appellant dismissed Ms Dyhrberg as counsel for the trial. He also dismissed her as counsel for the purposes of the appeal.
[6] The Court file suggests that Mr Kaye was then instructed by the appellant. Mr Kaye was assigned to act for the appellant on the trial but, as is recorded in
further minutes of the Court, Mr Kaye encountered difficulties obtaining instructions from him.
[7] As a consequence the appellant failed to meet the timetable directed by the Court on 27 October 2009. The Crown sought an order dismissing the appeal. The matter was relisted before the Court on 7 January 2010. In a minute issued that day Stevens J recorded that the appellant’s advice that he intended to instruct new counsel to act on his behalf for the purposes of the appeal. While rejecting the Crown’s application the appeal be dismissed for want of prosecution Stevens J noted:
[5] However, the appeal cannot be allowed to languish unresolved for an indefinite period. The appellant, if he seriously intends to do so, must instruct new counsel without delay. Then, if he wishes to proceed with the appeal, he must agree to, and comply with, a fresh timetable along the lines of that established in the Minute of 27 October 2009.
[8] The fixture for 3 February was accordingly vacated. When the matter was reviewed again on 15 March 2007, Stevens J noted that there was a suggestion that legal services had withdrawn the grant of legal aid for the purposes of the appeal. At the time, and following his conviction on the substantive matters in this Court the appellant was facing the possibility of a preventive sentence.
[9] The matter was further reviewed before Stevens J on 20 April 2009 when the appellant was sentenced on the other matters. Mr Kaye was recorded as appearing for the appellant. The Judge recorded that the appellant had instructed Mr Kaye to seek leave to withdraw. The Judge formally declined Mr Kaye’s application for leave to withdraw. At the appellant’s request, the appellant was permitted to remain out of the Court during the sentencing hearing.
[10] In the meantime this appeal against conviction was allocated a new hearing date of the 22 November 2010. Yet another counsel, Mr Heaslip, was instructed by the appellant. Mr Heaslip filed comprehensive submissions in support of the appeal. However, again the appellant did not maintain his instructions to Mr Heaslip, who felt obliged to seek leave to withdraw. Mr Heaslip communicated that to the Court by letter of 18 October. The appellant did not instruct further counsel.
[11] When the appeal was called before the Court on 22 November 2010 Mr Ipo sought a further adjournment of the appeal, on the ground he wanted to take legal advice about the appeal.
[12] I pointed out to Mr Ipo that he had already had the benefit of advice and assistance from a number of counsel in relation to this appeal and that two of them had filed substantive submissions in support of the appeal.
[13] I then asked him to indicate what grounds, if any, he wished to pursue in addition to the grounds set out in those submissions. The appellant refused to engage in any discussion regarding the appeal other than to assert his right to have the matter adjourned because he wanted to take legal advice and be represented by a lawyer.
[14] My review of the file disclosed that Mr Ipo had indeed had, not only the opportunity to take legal advice about the appeal but, obviously also been able to instruct counsel who had prepared full submissions on his behalf in support of the appeal. Despite that, Mr Ipo had, for his own reasons, either terminated the services of each counsel or had put them in a position where they felt obliged to withdraw. I was satisfied that Mr Ipo was simply putting himself in a position to be without representation when the appeal was heard in order to delay the resolution of the appeal.
[15] This appeal arises from a hearing that took place in January 2009. The hearing related to an incident that occurred on 30 December 2007, now almost three years ago. In the circumstances I declined Mr Ipo’s application for a further adjournment of this appeal. Subject to the issue of the appeal being in time, Mr Ipo
is entitled to have his appeal considered on its merits: Petryszick v R[1] but he is not
entitled to a further adjournment in order to obtain legal representation when he has had three counsel assist him on this file already and by his own actions has either directly or constructively dismissed them.
[1] Petryszick v R [2010] NZSC 105.
[16] I told Mr Ipo that I declined his application for adjournment. I told him I would be assisted by anything further he wished to say in support of the appeal but I proposed to deal with the appeal on the basis of what he said, the written submissions filed on his behalf and after hearing from the Crown. Mr Ipo maintained his position that he was entitled to an adjournment and that as I had declined to grant the adjournment he wanted, he said he would not address the Court further and that he wanted to leave the Court. I acceded to his request and he left the Court.
The appeal is out of time
[17] As noted the appeal is substantially out of time. There is no evidence before the Court to explain that delay. On that ground alone the appeal should be dismissed.
The merits of the appeal
[18] However, given the way the matter has developed, and as Mr Ipo absented himself, I propose to deal with the merits of the proposed appeal. The grounds of appeal as stated in the notice of appeal are:
a) the conviction was against the weight of the evidence;
b)the statement of the complainant was wrongfully admitted pursuant to the Hearsay Rules, s 22 Evidence Act 2006;
c) a witness was a staff member of the Manukau District Court.
Was the conviction against the weight of evidence?
[19] The appellant was charged with male assaults female, namely Ms T. Ms T was the appellant’s former partner. The assault took place on 30 December 2007. It was witnessed by a neighbour, Ms Ah Fook. Both Ms Ah Fook and the complainant
Ms T gave written statements to the police on the day. Ms T did not attend the Court. The police were unable to locate her in the months leading up to the hearing. The evidence for the prosecution was given by Ms Ah Fook and the officer-in- charge. Ms Ah Fook described witnessing an assault on a female neighbour. She identified the appellant as the offender. The complainant’s hearsay statement confirmed the appellant had assaulted her. In the absence of Ms T, at the conclusion of the prosecution the Judge amended the charge to read “namely a person whose name is unknown” in lieu of the words “namely, PT”. The defence chose not to call evidence. The Judge found the charge proved.
[20] There can be no issue that the Judge had jurisdiction to amend the charge as he did pursuant to s 43 of the Summary Proceedings Act 1957. In the circumstances, and in the absence of evidence other than that of Ms Ah Fook and the officer, (and the complainant’s hearsay statement), there was sufficient evidence to make out the charge beyond reasonable doubt. The first ground of appeal must fail.
The complainant’s statement
[21] The second ground of appeal is that the complainant’s statement was wrongly admitted in evidence pursuant to s 22 of the Evidence Act 2006. There is also the related issue of Ms Ah Fook’s identification of the accused.
[22] Ms Dyhrberg and Mr Heaslip both addressed this issue in their written submissions. It was submitted for the appellant that the hearsay statement of the complainant was not admissible as the qualifying requirement, namely that the maker of the statement was unavailable as a witness: s 18(1)(b)(i) was not satisfied. Ms Dyhrberg submitted the complainant was available as she was under a Police Protection Programme and had voluntarily moved back to the residence of one of the appellant’s relatives at 104 Hillside Road, Otahuhu, an address known to the police.
[23] The appeal was adjourned from 27 October to enable the appellant to file further evidence on this issue to support Ms Dyhrberg’s written submission on the point. As noted, the appellant did not file any further evidence on the issue. However, the police have filed further evidence, an affidavit of Sergeant Woolf
sworn on 22 November 2010 (a draft having earlier been served on the appellant in advance of the hearing). Sergeant Woolf confirms that to the best of his knowledge and belief the victim was never a participant in the New Zealand Police Protection Programme either up to or during the hearing.
[24] Further, the s 22 notice filed for the purposes of the hearing in the District Court confirmed the attempts the police had made to locate the appellant prior to the hearing, including contact with the occupants of 104 Hillside Road. On 14 August
2008 the occupants of that address told the police that the complainant had moved out two months earlier. This is not a case of a witness just being reluctant to give evidence. The complainant was unavailable for the purposes of s 18 as she could not, with reasonable diligence, be found: s 16(2).
[25] The next issue is whether the circumstances relating to this statement provide reasonable assurance it was reliable: s 18(1)(a). As noted the statement was taken on 30 December 2007, the day of the incident, and shortly after the incident occurred. It was given in the course of an interview with a police officer. There is no suggestion that it was other than reliable.
[26] The Judge was entitled to take the complainant’s statement into account as it satisfied the requirements of the Evidence Act 2006 for admissibility as a hearsay statement.
[27] In any event, even though he was entitled to, the Judge does not appear to have placed much, if any, weight on the complainant’s statement. In the course of his judgment the only passage in which the Judge referred to what the complainant had said was in relation to Ms Ah Fook’s evidence that the complainant had mentioned the appellant’s name to her.
[28] Ms Dyhrberg’s next submission for the appellant, again adopted by Mr Heaslip, was that the Judge was wrong to accept and rely on the identification evidence of Ms Ah Fook.
[29] Ms Ah Fook’s evidence was that she was awoken by screaming at the neighbour’s place at 41 High Street (she lived next door at 43 High Street). She then described the assault:
“... so I got out of our gate and made my way to my neighbour’s house where I saw my neighbour’s daughter being attacked.
And then later:
A. I saw a man attacking a – the girl, that young lady.
...
A.He was holding her, I believe, on her – just on her arm or her body or something, but he was holding her down while he was punching her.
...
Then:
Q.How many times – you said he’s been punching her – how many times would you say that he punched her?
A.It would’ve been more than three times I’d say. He was going hard at her and I had to yell at him, “Hey stop that.” And he says “Nah, it’s all right. She’s my girlfriend.” And I said, “So what? Stop that now.”
...
Q. What has happened then?
A.He’s tried to carry on but then I’ve sort of like approached and he stopped. He’s now run to the back of the house, got onto a motorcycle and taken off. And I’ve – I’ve told her if she’s okay and she said to me, “Obviously I’m not,” so I’ve sort of like brought her to my house so we can ring the police.
[30] Ms Ah Fook’s evidence as to her identification of the appellant was:
Q.Had you – the male who was punching her, had you seen this male before?
A. Yes I have.
Q. Where had you seen him before?
A. I actually went to school with him when I was younger.
Q. Do you know his name? A. Yes I do.
Q. Can you tell the Court?
A.Te Anewa Ipo. I went to primary with him and he still looks the same, just a bit scruffy and whatnot.
WITNESS IDENTIFIES DEFENDANT
[31] Ms Dyhrberg noted that Ms Ah Fook had not told the police officer that she had been to school with the appellant in her initial statement. Ms Dyhrberg also referred to passages of cross-examination of Ms Ah Fook and submitted Ms Ah Fook appeared to accept she did not know who the person was that was assaulting the complainant. I agree that the transcript of Ms Ah Fook’s evidence on that point is confusing. But the Judge was in the best position to consider her evidence overall. In addition to her evidence-in-chief, in parts of her cross-examination, Ms Ah Fook confirmed that she was sure it was the appellant.
[32] It was for the Judge whether he accepted Ms Ah Fook’s evidence proved the identification of the appellant as the assailant beyond reasonable doubt. Having heard and seen the witness give her evidence and be cross-examined Judge Johnson accepted her evidence identifying the appellant as the assailant. He was entitled to do so.
[33] Ms Dyhrberg also submitted that Ms Ah Fook’s reference to the appellant being the same person that she went to school with might show that the witness was able to identify the person she went to school with but did not necessarily mean she was able to identify the appellant as being the person at the scene. But while Ms Ah Fook said that she had gone to school with the appellant, she was independently able to identify the appellant, both as the person at the scene and the person in Court, as one and the same.
[34] Finally, Ms Dyhrberg in her written submissions referred to s 45(2) of the Evidence Act noting that no formal procedure had been carried out in relation to Ms Ah Fook’s identification of the appellant. The submission is correct.
[35] However, the short answer to this point and the challenge to the identification of the appellant as the assailant generally is that the prosecution did not have to rely solely on Ms Ah Fook’s identification of the appellant. Quite apart from Ms Ah Fook’s evidence, the complainant’s statement confirmed the identity of the appellant as the assailant.
[36] The complainant described the incident in her statement. She said the appellant chased her through the house before catching her out the front by the gate. At that time she was screaming for help. The complainant then describes the assault and says she saw her neighbour, who had come out onto the street and was watching what was happening and said:
[The appellant] was trying to tell her it was all alright, but she stayed there. He let me go and I ran next door to 43 High Street and phoned Police.
My neighbour told me he took off on his motorbike straight after.
[37] This is consistent with Ms Ah Fook’s evidence. The complainant identified the appellant as her assailant in her statement to the police officer on the day. There was good reason not to require a formal identification: s 45(4)(e).
[38] When the complainant’s statement is taken with Ms Ah Fook’s additional evidence the Judge was entitled to find the appellant’s identity proved beyond reasonable doubt.
Ms Ah Fook’s position as Registrar of the Court
[39] The last ground of appeal, which is covered in some detail in the submissions prepared by Mr Heaslip, is that a miscarriage of justice resulted by virtue of a breach of s 25(a) of the New Zealand Bill of Rights Act 1990, the appellant’s right to be tried by an independent and impartial Court. In his written submissions Mr Heaslip invited the Court to take judicial notice of certain facts, namely:
a) Judge Johnson had been a resident Judge of Manukau District Court;
b) Ms Ah Fook was a Registry staff member at the Manukau District
Court during the Judge’s tenure there and also afterwards;
c) Judge Johnson would have dealt with Ms Ah Fook in her professional capacity; and
d) Judge Johnson was integral to the establishment of the Domestic
Violence Court in which the case had been heard.
[40] It is unnecessary to consider whether the Court should take judicial notice of those particular facts, because they have largely been proved by the evidence in an affidavit of Kelvin Smillie, the Court Manager of the Manukau District Court, sworn on 19 November 2010, and admitted for the purposes of this appeal: s 119(3) Summary Proceedings Act.
[41] Mr Smillie confirms that Ms Ah Fook was employed by the Department for Courts in the Manukau District Court on or about 22 March 2002, originally as a court-taker then Court Registry Officer in the criminal jurisdiction. Her duties included administrative and case management functions as well as the role of court- taker. She held the appointment of Deputy Registrar of the Manukau District Court until she ceased employment on 20 March 2009. The Chief District Court Judge, Judge Johnson, was a resident Judge of the Manukau District Court from the beginning of 2003 until he was appointed Chief District Court Judge on 1 April
2005. While Judge Johnson was involved in the initial setting-up of the Family Violence Court, Mr Smillie has no particular knowledge of the Judge’s involvement in that Court. He confirms that as part of Ms Ah Fook’s role she would have provided support to the District Court Judges such as the provision of information concerning Court files and administrative services in the courtroom and general support services.
[42] On the basis of the working relationship between Ms Ah Fook and Judge Johnson at the time they were both at the Court Mr Heaslip submitted that apparent bias existed in the present case.
[43] The test for apparent bias was confirmed in Muir v Commissioner of Inland
Revenue as:[2]
In our view, the correct inquiry is a two-stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the instant case. ...
[2] Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 at [62].
[44] Mr Heaslip’s argument relied heavily upon the following passage of William
Young P in R v Bain:[3]
Obviously the sort of working relationship which a New Zealand High Court Judge has with his or her associate is more than formal and would warrant recusal of the Judge from a trial at which the associate was to give significant and controversial evidence.
[3] R v Bain [2008] NZCA 455 at [27].
[45] Mr Heaslip submitted there was nothing to differentiate a registry officer in the District Court from an associate in the High Court.
[46] That submission is, however, fundamentally flawed. The actual circumstances confirm there is a quite different relationship between a High Court Judge and his or her associate and a member of the registry staff. A High Court Judge’s associate performs the role of a personal assistant, is located in an office adjacent to the Judge, travels with the Judge on circuit, and works each day in direct contact with the Judge. The Judge has ultimate responsibility for directing his or her associate’s work.
[47] The relationship between a Judge and a registry officer is of a quite different nature. Registry officers report to the Court Manager and are assigned their task by the Court Manager. While they have contact with Judges, it is much more formalised and limited contact. It is generally limited to file processing and other administrative matters.
[48] The circumstances of the present case are that Judge Johnson was a resident Judge at the Manukau District Court for a period of approximately two and a quarter years while Ms Ah Fook worked in the Registry of that Court. After April 2005 the Judge was not resident at the Manukau District Court. The case was not heard until January 2009, almost four years later.
[49] A fair-minded lay observer, who had that information and understood the distinction between a Judge’s associate and a member of the Registry staff would not have any concern about the ability of a senior and experienced Judge, such as Judge Johnson, to bring an impartial mind to his determination of the case against the appellant and, in particular, his acceptance or otherwise of Ms Ah Fook’s evidence. The Judge’s role in the establishment of the Family Violence Court cannot seriously be suggested as a reason for him not to hear a case of this nature.
[50] For the above reasons I reject the points raised in the notice of appeal as supplemented by both Ms Dyhrberg and Mr Heaslip’s written submissions. As noted, the appellant did not suggest there were any other grounds to support the appeal when given the opportunity to do so.
Result
[51] In the circumstances the appeal is dismissed.
Venning J
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