J v Police HC Whangarei Cri-2007-488-26

[2007] NZHC 1988

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2007-488-000026

BETWEEN  J

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 August 2007

Appearances: R Bowden for Appellant

K R Thomas for Respondent

Judgment:      13 August 2007

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 13th day of August 2007.

RESERVED JUDGMENT OF GENDALL J

[1]      The  appellant  was  convicted  in  the  District  Court  at  Whangarei  after  a defended hearing on 8 March 2007, of indecent assault upon a girl aged 15.  He was sentenced to 350 hours community work and supervision for nine months with a special condition that he undertake such counselling courses and programmes as directed by a probation officer.  He appeals against conviction only.  The sentence of community work and supervision has been held in abeyance and stayed pending the outcome of the appeal.

Essential background

[2]      The police case was that in the early hours of the morning of 13 May 2006 after a party at which considerable alcohol had been consumed, the appellant entered a bedroom in which the complainant teenager was thought to be asleep.  On the bed

with her was her mother and the mother’s partner both of whom, the evidence was

J V NEW ZEALAND POLICE HC WHA CRI-2007-488-000026  13 August 2007

had retired intoxicated.   The police case was that the appellant who had had too much to drink, knelt beside the bed awakening the complainant when she felt him touch her in the vagina  area, the jeans that she had been wearing having been unzipped and pulled down, such not being the case when she retired to bed.   A complaint was made by the girl to her mother the following morning.  The appellant was spoken to by the police at 9.32am on 19 May 2006, six days later.  He made a written statement in which, in relevant parts records:

“Q.      The complainant has said during the night after she went to bed in her mother’s room, you came into the room and knelt down next to the bed, is that true?

A.       It must be true if she cried, if she was crying it must be true.

Q.        [The complainant] also said that you undid her jeans and began rubbing her pubic area, is that true?

A.       If it’s true, it’s true, I can’t say nothing.

Q.        [The  complainant]  has  said  that  after  she  looked  at  you  got  up walked to the bedroom door and pretended to call out to Wiremu [the complainant’s mother’s partner] is that true?

A.       If that’s what she said, it’s true.

Q.        Do you have any reason why this type of inappropriate behaviour happened?

A.       No, may be I had too much to drink.

Q.        Is there anything that you’d want to say to [the complainant] about what happened?

A.        I just really want to apologise to her, I hope one day she forgives me and that I’m really really sorry.

Q.       Did you try to apologise to [the complainant] the following day? A.         Yeah, but I don’t think it was the right time.

Q.       Who was there when you tried to apologise?

A.My kids’ mother, [the complainant and another girl].  She had come out after having a shower or bath.  I just said I’ve come to apologise, that wasn’t me.   [The other girl] told me to leave and I started crying.”

[3]      The complainant was  cross-examined by defence  counsel  regarding prior inconsistent statements she had made.   Apparently, in an initial statement to the

police, she had described the appellant’s position beside the bed as not being directly beside her, but on the other side of the bed with her mother and her mother’s partner lying between them.   If correct, that meant that the appellant lent across the two sleeping persons to sexually interfere with the complainant.   Apparently, that was repeated in another statement made after the appellant had initially pleaded guilty (but leave was given for him to vacate that plea).

[4]      But in her evidence-in-chief before the District Court Judge she was clear that the appellant was positioned “on my side of the bed” and when asked how he was standing she said, “I don’t know, kneeling”.  She acknowledged she had earlier told the police that the appellant was on the other side of the bed and her response was:

“I had said that he was on the other side of the bed but I was mistaken, and was on my side of the bed.

Q.       When did you realise that that was a mistake? A.   I don’t know I can’t remember.”

[5]      That prior statement was put to the complainant in cross-examination.  She agreed she made it, but was wrong.  She said that her mother was in the middle of the bed with the partner on the other side and then the following exchange took place:

“Q.On an earlier occasion did you say that he came into the room and knelt on the other side of the bed?

A.       Yes I did, I was mistaken.

Q.       When did you realise that you had made that mistake? A.  I said before, I do not know, I can’t remember. Witness shown statement of 29 May.

COURT

For what purpose Mr Bowden? MR BOWDEN

Previous inconsistent Sir. COURT

It’s the same one she’s admitted she made.  Well she’s admitted she said on a previous occasion something different.  What’s the point of putting it to her?   It’s only when she doesn’t specifically admit she made a previous inconsistent statement that the statement can be put.   Or am I being too technical?

MR BOWDEN

I think you are Sir, because, I can continue to cross-examine if you like to get the inconsistency.

COURT

Well is it something different you are wanting to put to her now than what she’s admitted she said on an earlier occasion?

MR BOWDEN Yes Sir. COURT

Oh well, sergeant, it might be a quicker way of getting to it I suppose.  No objection.

MR BOWDEN

It goes to credit Sir. COURT

It must only go to credit.”

[6]      Whilst counsel said he wished to cross-examine “to get the inconsistency” the witness  had  already  conceded  that  she  had  made  the  statement  and  it  was inconsistent.

[7]      Thereafter, defence counsel asked the complainant to look at the statement and she acknowledged that it was hers.  Cross-examination continued:

“Q.In that statement did you say ‘I fell asleep but then I was woken by someone touching me, I thought I was dreaming but then I opened my eyes and saw Clevedon and he was knelt next to Wiremu’s side of the bed and was reaching over them and had his hand between my legs’?

A.       Yes I did say that, like I said I was mistaken.

Q.        That is in fact what, that’s what you said in the first place, how were you mistaken in saying that he was on Wiremu’s side of the bed?

A.       ….I don’t know, I just was.”

[8]      Then cross-examination proceeded to deal with details of the statement as to the complainant saying she “rolled away” and that “I rolled towards my mum”. Defence counsel then tackled the complainant saying it could not have happened if the appellant had been on the other side of the bed, that is, reaching across both the complainant’s mother and Wiremu.   Of course that might be correct, but the complainant had not said in evidence that that was the case.   Defence counsel’s approach was that if the prior statement, not accepted as being true by the complainant, was in fact true then she could not have rolled towards her mother, and nor could the appellant have assaulted her.   Cross-examination then returned to a vigorous testing of the complainant as to the earlier statement and why the complainant might be mistaken but she did not resile from her evidence that she had given in Court, and that she had realised her earlier statements, in that regard contained that mistake.

[9]      The appellant gave evidence to the effect that he had gone to sleep in the lounge whilst the party was going on; denied entering the bedroom and touching the complainant.   He became aware of the allegation of the complainant later in the morning but he said that he had denied having done anything untoward.  He said that his admissions, at least implied to the detective, were because he was upset and scared and did not really know what to say.

[10]     Evidence was called from a witness, the partner of the appellant, to the effect that she was at the party, had consumed alcohol and smoked cannabis; she had observed the complainant drinking alcohol; had not observed the appellant to be leering at the complainant; that the appellant fell asleep on the couch and she went to bed at about 1.00am, awakening to see the appellant  at  about  5.45am  the  next morning on the couch.  She dealt with some of the events which occurred later that morning.  The Judge intervened to prevent what may have been complaint evidence, seriously prejudicial to the appellant, being given.  Her evidence was that at some time about two weeks later there were text messages exchanged between her and the complainant’s telephone which the defence said reflected upon the credibility and veracity of the complainant.

[11]     As to the text messages, the complainant in cross-examination had said that she   remembered   a   series   of   text   messages   with   the   appellant’s   partner, acknowledging that there had been some exchange, but denied the specific content of some part of them.   It seems that the narrative was that the appellant’s partner acknowledged sending a text to the complainant criticising her in somewhat vitriolic terms.  The complainant sent a text back to the effect that “you’re a man basher” but the witness denied saying “your man wants me”.  The Judge admitted that evidence in cross-examination after an exchange in which counsel contended that the evidence was relevant to the complainant’s credit.  An exchange between defence counsel and the Judge followed as to how the contents of any text message could be proved and counsel endeavoured to submit a typed statement he said he had prepared from the telephone. The evidence was that the telephone was that of the mother of the complainant and the Judge said:

“Well I’m going to treat this as an oral out of Court statement, she has denied she said it, she sent it so that’s that, if you want to prove it you can, you now don’t have to put it to her in some sort of document form unless I suppose you want to put the phone to her.”

[12]     The process was getting somewhat out of hand because of the difficulty of counsel appearing to act as a witness.   The Judge invited counsel to obtain the telephone which he attempted to do but the outcome was:

“We had the phone but it’s deleted Sir.”

[13]     All of this exchange and questioning of the complainant, and the evidence of the appellant’s witness, went very much to a peripheral matter, namely whether there had been statements or comments made to the appellant’s partner, some of which were acknowledged, and some not.   They were matters which, depending on the Judge’s findings, may have been only relevant to assessing the complainant’s credibility.

The Judge’s decision

[14]     Judge D J  McDonald  found  the  charge to be  proven,  accepting that  the complainant’s evidence in its material respects was reliable and truthful.  The Judge reminded himself of the burden and standard of proof and of the tripartite approach

where a defendant has given evidence in Court.  The Judge then identified that the essential issue was whether there had been any touching at all by the appellant, because, if so, issues of indecency were obvious.  The Judge recorded that he had specifically put to one side the initial plea of guilty and the vacating of that plea.  He had not read any of the affidavits filed in support of the application to change plea. That was entirely proper.

[15]     The Judge then reviewed in summary form the evidence, noting that there was no suggestion in any of the evidence of another adult male in the house that could have been present in the room, (outside the bed) apart from the appellant.  The Judge then dealt with the prior inconsistent statement of the complainant and noted what defence counsel had wished to do – that is, to introduce the statements in their entirety as proof of the truth of their content.  Defence counsel’s position was that if the correct position was as the complainant had originally stated then for her to be touched in the manner described would have been impossible.  But she had said that was not correct.  The Judge said:

“[17]    Mr Bowden seeks to have both the first statement in its entirety and the victim impact statement in its entirety produced to me as an exhibit for me to consider.  In my view it is not appropriate for the defendant to seek to produce a document in which there is inconsistent statement where the witness accepts the inconsistent statement was made by her.  It is only where the witness does not expressly admit that the prior statement was made, that the statement can become admissible as an exhibit.   Even in those circumstances it is normal to call in relation to the first statement, the police officer who took the statement and to prove in oral evidence what is the statement.”

And further:

[19]     Mr Bowden made the submission to me during the hearing that I could accept what was said in the inconsistent statements or out of Court statements as the truth as to what occurred in the bedroom.  That cannot be the case.  A prior out of Court inconsistent statement can only go to credit where the witness does not accept the truth of the prior statement.   I can however, consider it when I am gauging the credibility and believability of [the complainant].

[20]      When I do that of course I must take into account the reason she gave as to why she got it wrong in her out of Court statements.  She told me at  the  time  she  was  going  through  some  difficulties  and  that  she  was confused about where he was, but not about what happened.”

[16]     The Judge went on to record some of the qualified admissions made by the appellant to the police and then referred to the evidence of the appellant, his witness. The Judge then referred to the evidence about some text messages, which had escalated, but concluded:

“They do not assist me in any way in making the credibility findings I must in relation to [the complainant] and Mr J  .   To do so would be to speculate.  I could on the one hand say there were a series of texts from [the complainant] getting angrier and angrier because she knew was right about what occurred.  Or at the other end of the spectrum, they could be her trying to justify something that never happened.  It would be extremely dangerous for me to put any meaning to those texts and I propose not to do so.”

[17]     The Judge dealt with the question of intoxication and the necessity of intent being proven despite that having not been raised by defence counsel, and concluded that he found there was not an evidential basis that the appellant was so intoxicated that he could not have formed the requisite intent.

[18]     The Judge then referred to looking around for evidence to support a crucial witness and referred to the actions of the appellant, before the police were involved, in going back to where the complainant was, not categorically denying what she said, and apologising.   The Judge  observed  that  the  appellant  would  well  have known what the allegation was, for which he is said to have apologised at that stage. The Judge said that the actions of the appellant saying he wished to apologise when questioned by the detective were in contrast to his evidence given in Court.

[19]     The Judge reminded himself that silence is not an admission of guilt and then dealt with the submission of counsel that the Court needed to make its findings in relation to the complainant’s inconsistent statements.  But the Judge said this:

“She gave her evidence in a straightforward way.   She did not attempt to embellish it.  She made concessions to Mr Bowden where concessions were to be made.  She did not argue with him.  When she did not know she said so.  She was certain that these events occurred.  She gave her evidence in an honest, open faced way which I could clearly see.  I had, on listening to her evidence, and prior to the cross-examination, no reason to disbelieve what she told me.

[34]      She was then cross-examined and these prior statements put to her. Do those prior statements affect her credibility in such a way that I should now disbelieve her or at least have some doubt about her evidence?  In doing that I must take into account the reason she gave as to why she got it wrong

in her statement to Detective Kemp.  She did not try to hedge that.  I do not find that it does affect her credibility to any greater degree, or at least to the point where I must now say I do not accept that she is a credible witness.”

[20]     In the end the Judge concluded:

“As I have said the prior out of Court inconsistent statements in my view, having seen and heard the witnesses, does not impact upon that [the complainant telling the truth] for the reasons I have given.  I therefore find the events did occur and that those events have been proved through the evidence of [the complainant] beyond reasonable doubt.   I find the charge proved.”

[21]     Mr Bowden’s submissions that the Judge was required to direct himself that the prior inconsistent statements of the complainant had to be considered by him as to their truth is misguided.  The experienced District Court Judge was well aware (as he said) of the manner in which out of Court inconsistent statements of a witness could then be used.  He was correct in his statement that the law, at the time of the hearing (while under the new Evidence Act there may have been a shift although that is irrelevant for the purposes of this appeal).  Whilst a prior inconsistent statement can be proved if the witness does not admit it having been made, in this case the complainant admitted making the statement.   She acknowledged it was hers but saying it was incorrect, and made mistakenly.  So, it was not the case here there was a dispute as to whether the prior inconsistent statement had been made.  Generally it was accepted that proof of prior inconsistent statement cannot be used to prove the facts stated contained in the statement.  Its effect was to weaken the credibility of the witness’ evidence, and the law was that a jury had to be directed that unless a statement had been unequivocally accepted as true by the witness, the fact finder could not use it for any other purpose than in assessing the credibility of the witness. The Judge correctly ruled that the contradictory statement was able to be as to discredit of the complainant at trial.   The proposition of counsel, put before the District Court Judge and in this Court as to the use to which the complainant’s out of Court statement could be put was incorrect.   The Judge was entitled to reject the submission.

[22]     The second ground advanced on appeal by Mr Bowden was that the Judge’s conclusion was wrong on the facts.  This is the equivalent to a jury finding.  It was a conclusion  made  by  the  fact  finder  who  had  to  assess  the  credibility  of  the

complainant and others, including the appellant who gave evidence.   Counsel submitted the Judge was wrong in his assessment of credibility because the complainant did not, he said, give a “proper basis” as to why she had made a prior inconsistent statement.  Those were matters unquestionably submitted to the District Court Judge.  It is clear from the comprehensive reasons that he gave that he was alive to the argument and clearly took it into account.   The challenge is to a factual finding of credibility by a fact finder where there was ample evidence entitling him (or a jury if it were to determine the issue) to find as he did.  There is nothing in this ground of appeal and it fails.

[23]     The third area of complaint by Mr Bowden was that the Judge excessively intervened in the case and he referred to a number of passages in the notes of evidence where the Judge asked questions.   He said the interventions had the cumulative effect of slanting the evidence in favour of the prosecution and assisting the complainant in the giving of her evidence.  It has to be remembered that this was trial before a Judge alone and not a jury.  The Judge was entitled to ask questions to clarify matters that were not clear or to assist a witness in understanding questions which were put in a confusing or convoluted way.  Mr Bowden gives five examples of where he says the Judge wrongly intervened.  That, it seems is over a transcript which encompasses 59 pages.

[24]     Of course it is undesirable for a Judge to intervene too often because it may run the risk of giving the appearance of partiality to one party.  But it all depends on the nature, type and number of interventions.   Furthermore, mere numbers of interventions  will  not  necessarily  be  decisive.     The  applicable  principles  are reviewed in R v Matthews [1984] 78 Cr.App.R 23 at 32-33 as:

“(1)Whilst a large number of interruptions must put this Court on notice of the possibility of denial of justice, mere statistics are not of themselves decisive;

(2)The  critical  aspect  of  the  investigation  is  the  quality  of  the interventions as they relate to the attitude of the Judge as might be observed by the jury and the effect that the interventions have either upon the orderly, proper and lesser deployment of the case for a defendant by his advocate or upon the efficacy of the attack to be made on the defendant’s behalf upon vital prosecution witnesses by cross-examination administered by his advocate on his behalf;  and

analysing the overall effect of the interventions, quantity and quality cannot be considered in isolation, but will react one upon the other.”

[25]     Counsel said that the interventions had the effect of slanting evidence in favour  of  the  prosecution  and  the  evidence  of  the  complainant,  giving  to  her guidance in her evidence and other interruptions in relation to clarifying questions of text messaging.

[26]     In R v Baleitavuki and Abbot CA142/03, 159/03 24 October 2003 the Court of Appeal said:

“[8]      The principles of course of judicial intervention in Jury trials are well established.   If a Judge crosses the line and goes into the arena, and thereby it could be perceived as creating a situation where the Jury might perceive some bias, then the Court of Appeal has on occasion held that that could have had an adverse impact as far as the accused is concerned on the outcome of the trial.”

[27]     In the present case there was not a jury trial.   Judicial intervention in an attempt to clarify evidence is unobjectionable.  I was referred by Mr Bowden to dicta in R v Loumoli [1995] 2 NZLR 656 (CA) where it is said that a trial Judge’s intervention created a real danger the trial was unfair, giving rise to a reasonable likelihood of bias. But that was a case where the Judge intervened 110 times, asked

232 questions and during the defence case intervened 61 times asking 163 questions. The Court of Appeal emphasised that the issue of excessive judicial interruption cannot be decided on statistics alone.  On its face the scale of intervention in that case was unusual and unexpected.  The Court of Appeal, however, went on to say at

667:

“Generally speaking of course it is not inappropriate for a Judge to intervene to clarify evidence or otherwise assist the jury, and a number of the Judge’s questions can be seen in that light.  Often, ambiguities apparent in answers when given are dissipated by later evidence or cleared up by counsel;  but whether Judges intervene at once or (as many prefer) wait until counsel have finished, is a matter of judgment and style.  However, many of the Judge’s questions in the instant case cannot be regarded as solely in the interests of clarification.”

[28]     I  have  reviewed  the  transcript  in  its  entirety  and  assessed  the  Judge’s questions as a whole, and in context.  I bear in mind that they may have been made either to clarify matters for himself or the witness.   The test is whether an interventions could create a belief in the mind of a reasonable observer that the Judge’s conduct at trial deprived the appellant of a fair trial;  see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146; (1987) 3 CRNZ 38 (CA) and the cases referred in Adams Crimes Act 1961 CA385.10. It is not inappropriate for a Judge to sometimes take an active part in a trial by asking questions but obviously care has to be taken when intervening during examination and cross-examination to ensure counsel is not prevented from effectively carrying out their task.

[29]     The transcript as a whole does not give any cause for concern.  The Judge’s questions do not by a wide margin fall into the category of being improper or running the risk of the trial being unfair or having the appearance of unfairness.  It is abundantly apparent that the defence was not prejudiced or inconvenienced in the manner  in  which  it  questioned  prosecution  witnesses  or  in  presentation  of  its defence.    There  was  no  error  or  irregularity  on  the  part  of  the  Judge  in  his questioning so as to impinge upon the appellant’s right to a fair trial.   This was a Judge alone trial and Judge McDonald’s actions showed that he was very much alive to being completely fair to the appellant.  He was extremely careful not to move into the areas of why there had been a guilty plea and why leave had been granted to change the plea, and aptly stated he had to rely solely and only on the evidence before him.

[30]     Finally, on this point, if counsel adopt a line of questioning or pose questions in a particular way which are confusing or difficult to understand, or a witness appears to have difficulty in following the process or understanding what it is that he or she is required to answer, then there can be no criticism of the Judge assisting in clarifying so as to ensure the ends of justice are met.   A trial needs to proceed expediently and realistically and not to become an artificial “game”.  This ground of appeal has no substance.

[31]     Generally speaking, this is an appeal against a finding of fact based upon the

Judge’s assessment of credibility where he gave clear reasons for preferring the

evidence  of  a  complainant  in  a  situation  where  the  appellant  had  equivocally admitted the allegations in an out of Court statement but denied them on oath.  It was classically a case for assessment by a fact finder and although Mr Bowden says the Judge should not have reached that decision, but nevertheless, he was perfectly entitled to do so given the state of the evidence as disclosed in the transcript.  There is nothing about the hearing which suggests it was unfair, nor to give this Court any concern about the safety of the Judge’s decision.

[32]     The appeal is without merit and the appeal is dismissed.

[33]   The appellant is to report to a Probation Officer at the Department of Corrections, Whangarei no later than 72 hours after 10 am, Tuesday 14 August 2007 to commence the sentence of community work and supervision.

“J W Gendall J”

Solicitors:

Roger Bowden, P O Box 1862, Whangarei for Appellant

Crown Solicitor, Whangarei for Respondent