Janif v Police

[2014] NZHC 2753

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000066 [2014] NZHC 2753

BETWEEN

SAHEED MOHAMMED JANIF

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	20 October 2014
Appearances:	G D Prentice and T Singh for Appellant S Cameron for Respondent
Judgment:	6 November 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 6 November 2014 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Public Defence Service, DX GX1005, Hamilton

Almao Douch, Barristers and Solicitors, DX GP2003, Hamilton

SAHEED MOHAMMED JANIF v NEW ZEALAND POLICE [2014] NZHC 2753 [6 November 2014]

[1]      Mr Janif appeals against his convictions for male assault female and breach of a protection order,  which were entered  by Judge H Riddell in the Hamilton District Court following a defended hearing on 5 November 2013.

[2]      The original grounds of appeal have been abandoned.  In an amended notice of appeal dated 10 October 2014, the grounds are now specified as:

(a)      the complainant was cross-examined by the police prosecutor without having been declared hostile in breach of ss 89 and 94 of the Evidence Act 2006 (Act);

(b)the evidence of what the complainant said happened to the neighbour was hearsay, because at the time it was given the complainant was a future testifier, therefore not a witness; and

(c)       the Judge reversed the onus of the burden of proof.

[3]      The appeal is lodged under s 115 of the Summary Proceedings Act 1957, as Mr Janif was first charged before the commencement date of the Criminal Procedure Act 2011.  Mr Janif has the onus of satisfying the High Court that it should differ from the District Court decision, but the High Court must come to its own view on the merits of the decision.1

Factual background

[4]      On 10 April 2013, the Police were called to a domestic disturbance at the appellant’s flat in Hamilton by a neighbour.  The neighbour had been alerted by the complainant’s young son, who knocked on her door, seeking her assistance.   The neighbour went to the scene of the disturbance and saw the complainant on the floor with her arms raised as if to protect herself and the appellant hovering over her.

[5]      The neighbour yelled out and said she was going to call the Police.  She then went back to her flat and rang 111.  She saw a cup come flying out of the appellant’s doorway.  The complainant also exited the appellant’s flat in an agitated state.  The

111 call records the complainant saying to the neighbour that the appellant had hit her.  The complainant then spoke to the 111 operator herself and told her that the appellant had hit her.

[6]      The Police arrived and the complainant repeated her advice that that the appellant had hit her and showed them her reddened arms and swollen left cheek bone. When later asked to make a formal statement, she declined.

[7]      On the day of the defended hearing the complainant did not attend Court, and a warrant to arrest her was issued.  The hearing commenced in her absence.  The neighbour  gave  evidence  first,  followed  by the  complainant  after  she  had  been brought to Court.  The complainant explained that she thought she was not required to attend Court because she had suffered a back injury and was both unwell and on medication.

[8]      The  complainant  confirmed  that  she  had  previously been  married  to  the appellant, but they had separated and she had taken out a protection order against him.  Since the incident they had attended counselling with a view to reconciliation.

Examination of the complainant

[9]      The first ground of appeal is that the complainant was cross-examined by the police prosecutor without having been declared hostile in breach of ss 89 and 94 of the Act.

[10]     Having carefully reviewed the notes of evidence, I am of the view that the examination by the police prosecutor was not cross-examination, as it was characterised by William Young J in Hannigan v R.2    It was not questioning which was   primarily   addressed   to   the   breaking   down   (or   impeachment)   of   the complainant’s evidence.   It did not contain the “rhetorical flourishes” one might expect of cross-examination in this context.

[11]     The complainant gave evidence that she had told the Police things that she should not have said because she was angry.  She also characterised the incident as a

tussle between them over a laptop, but did not give any explicit evidence that the appellant had hit her.

[12]     In  my  view,  the  examination  of  the  complainant  by  the  prosecutor  was primarily addressed at seeking an acknowledgement from her of what she had told the Police. At no stage did the prosecutor put to her that she was lying to protect the appellant or asked her to comment on the discrepancies between what she told the Police and what she said in Court.

[13]     The prosecutor did ask the complainant a number of leading questions, for example, “You accept that you told the Police that the defendant hit you?” but, because the recording of the 111 call was played to refresh her memory and she had a transcript of the call, the complainant acknowledged that she had said all that was recorded.  The prosecutor referred to the transcript and the complainant’s recorded comment that “He was hitting me” and asked the complainant how the appellant was hitting her. The complainant replied:

Like I say, he didn’t actually hit me, but we had a tussle…

[14]     In  my  view,  the  complainant’s  will  was  not  overborne  by  the  line  of questioning.  In fact, she stood her ground.  In that context, the leading questions did not amount to cross-examination.

[15]     Leading questions are, of course, permitted by s 89 of the Act.  Subsections (2) and (3) are relevant in the present context.  They permit leading questions with the consent of all other parties or with leave of the Judge.

[16]     The appellant was represented by experienced and competent counsel who objected only once during the examination of the complainant by the prosecutor. The  nature  of  the  objection  is  not  recorded,  but  it  followed  a  question  by the prosecutor – “Do you remember saying that?”

[17]     The District Court Judge was also alive to the evidential issues.  As soon as the neighbour started her evidence she addressed the prosecutor about what she perceived to be inadmissible hearsay.

[18]     Consent  of  all  other  parties  or  leave  of  the  Judge  does  not  have  to  be specifically sought before leading questions are asked.  It would have been simple enough for the appellant’s counsel to have leaned forward and asked the prosecutor not to ask leading questions, as is the normal course.   District Court Judges also retain control of the evidence gathering process and will obviously intervene if leading questions by the prosecutor start to amount to cross-examination or are in any other way unfair.

[19]     In this case, what the complainant said to the neighbour and to the 111 operator was independently admissible as part of the events in issue (formerly called the res gestae).  The words spoken by the complainant and recorded in the 111 call were spontaneous and explanatory of her physical and mental condition at the time. In those circumstances, there was no unfairness to the appellant.

Neighbour’s evidence

[20]     The second ground of appeal relates to the neighbour’s evidence.  She gave evidence  before  the  complainant.     The  appellant  submits  that  because  the complainant was a future testifier, what the neighbour said she was told by the complainant was inadmissible hearsay.   This is  said to have been unfair to the appellant because his cross-examination of the neighbour may have been different if he knew what the complainant was going to say.

[21]     In all the circumstances, I am of the view that there was no unfairness.  The District Court is a busy Court with sometimes strict time constraints.  Judge Riddell cannot  be  criticised  for  commencing  the  hearing  by hearing  evidence  from  the neighbour when the complainant failed to appear in answer to her summons.  Section

14 of the Act permits a Judge to admit evidence subject to evidence being later offered which establishes its admissibility.  In the 2013 review of the Act, the Law Commission expressed the opinion that it was appropriate to use s 14, in a Judge alone trial at least, to admit what is a hearsay statement on the basis that the maker of

the statement will later be called as a witness.3   If the maker of the statement is later

3      Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R17, 2013) at [3.19].

called as a witness, the evidence no longer falls within the definition of a hearsay statement.

[22]     On the other hand, if the complainant was unavailable as a witness,  the hearsay evidence could have later been found by Judge Riddell to be admissible through evidence called by the prosecution about the circumstances relating to her statement.    If the circumstances provided a reasonable assurance that the complainant’s statement was reliable, it could have been admitted by Judge Riddell under s 18 of the Act.

[23]     There was no objection at the time by the appellant’s counsel to calling the neighbour first.   Counsel was well aware of what the complainant had told the neighbour and the Police because it was recorded in the 111 call.  I am therefore of the  view  that  it  would  not  have  made  a  significant  difference  to  his  cross- examination of the neighbour if counsel knew that the complainant would later deny that the appellant had hit her.  As it was, counsel cross-examined the neighbour at some length about what she saw in the appellant’s flat.  He could also have made application to have the neighbour recalled after the complainant had given evidence if he thought the appellant had been disadvantaged by the neighbour giving evidence first.

Reversal of burden of proof

[24]     The third ground of appeal relates to comments made by Judge Riddell in her oral judgment following the defended hearing.  In the judgment she states:

The first charge is one of male assaults female.   It is a fact that the complainant  had  some  injuries.   We  know that  because  the  police  who attended the incident described, first of all, a swelling on the complainant’s left  side  of  her  cheekbone,  secondly,  a  red  mark  on  right  forearm,  and thirdly, blood spots on her shirt.  The police were told by the complainant that the defendant had hit her.  The defendant has not given me a reasonable explanation that might lead me to conclude she harmed herself during the altercation.  On balance, I find beyond reasonable doubt that the defendant did assault the complainant and that she did have injuries which were observed by a neighbour and the police.

[25]     The appellant submits that this reverses the burden of proof, thus creating a miscarriage of justice.  The appellant was not required to provide the Court with any

explanation about the complainant’s injuries.   Rather, the Police were required to

prove that those injuries were caused by the appellant assaulting the complainant.

[26]     I am of the view that this ground is also without merit.  The neighbour and the Police officer who attended the scene described the complainant’s swollen face. The complainant also said to them that the appellant had hit her.   Both the complainant  and  the appellant  gave evidence.    Neither the complainant  nor the appellant described any other event that could have caused this swelling to the complainant’s left cheekbone.   There was no obligation on the appellant to give evidence, but having given evidence, his testimony is added to all other evidence in the case.  I am of the view that Judge Riddell’s comment cannot be characterised as a reversal of the onus of proof or in some other way a contradiction to the presumption of innocence.  Judge Riddell was merely expressing a view that there was no other reasonable explanation for the complainant’s swollen left cheekbone in the entire body  of  evidence,  other  than  that  the  appellant  hit  her.    There  was  no  other reasonably possible explanation available.

Result

[27]     The appeal is accordingly dismissed.  I am of the view that Judge Riddell was plainly correct to find the appellant guilty beyond reasonable doubt.  She carefully reviewed the evidence, made appropriate findings of credibility and reliability and then reached conclusions which were soundly based on all the evidence.

……………………………….

Woolford J