Johnson v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA520/2019
[2021] NZCA 171

BETWEEN	PHILLIP DALE JOHNSON Appellant
AND	THE QUEEN Respondent

Hearing:	23 March 2021
Court:	Miller, Brewer and Dunningham JJ
Counsel:	Appellant in person R K Thomson for Respondent
Judgment:	7 May 2021 at 2.00 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce fresh evidence is declined.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Johnson was found guilty by a jury of two charges of male assaults female. On 30 August 2019, he was sentenced by Judge R J Collins to 12 months’ supervision, 100 hours’ community work and to make reparation for emotional harm in the sum of $1,000.[1]
[1]R v Johnson [2019] NZDC 21074.
Mr Johnson, who represents himself, now appeals his conviction and sentence. He appeals his conviction on the basis that justice miscarried because:
(a)His trial counsel failed to follow instructions to call witnesses.
(b)His trial counsel failed to put into evidence a video of the incident recorded by Mr Johnson on his cellphone which would have exonerated him.
(c)Mr Johnson was denied his medication so that when he gave evidence he was unable to do so effectively.
Mr Johnson did not address his appeal against sentence. We will consider whether it was manifestly excessive if we dismiss the appeal against conviction.
Our task on the conviction appeal is to decide whether there has been a miscarriage of justice, which means whether there has been an error, irregularity, or occurrence that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.[2]
[2]Criminal Procedure Act 2011, s 232(4).
Our task on the sentence appeal (if we get to it) is to decide whether there is an error in the sentence such that a different sentence should be imposed.[3]

Background

[3]Criminal Procedure Act 2011, s 250(2).

The nub of Mr Johnson’s appeal against conviction is that what happened at the trial was unfair to him because evidence going to his innocence was not called. We will first set out what happened at the trial and then analyse Mr Johnson’s submissions as to what went wrong.
The first Crown witness was the complainant, Ms Finny. Her evidence-in-chief was:
(a)On 21 September 2018, she was driving her car along Ngunguru Road.
(b)She saw a car being driven erratically. It tailgated her before overtaking her and several other cars.
(c)Shortly afterwards, Ms Finny was driving directly behind the erratically driven vehicle. Ms Finny said the driver of the vehicle took exception to her being behind it and slammed on the brakes “which has sort of created a bit of a disagreement between the two of us”. Ms Finny said she reacted by “sort of giv[ing] him the fingers out the window and go[ing], ‘What are you doing?’”
(d)Ms Finny went on to describe escalating road-rage which led to her turning left into Waiotoi Road and pulling over on o the grass verge to let the other vehicle pass. Instead, “this person has then stopped right next to me and got out of the car”.
(e)Ms Finny said the other driver “stopped on the road preventing me to actually be able to drive away”. Ms Finny accepted that the cars were parallel.
(f)Ms Finny then said that the driver of the other vehicle got out of it and that was when she recognised the person. He was Mr Johnson.
(g)Ms Finny gave evidence to the effect she also got out of her vehicle and was “leant up against my car”. There was then a “verbal disagreement”:
Q.And what has occurred during this verbal disagreement?
A.This is where we have had a discussion that [Mr Johnson] said to me that, you know, I said, “You can’t drive like that,” you know, “Your driving is going to cause an accident,” you know, “There’s a lot of people on this road,” he said that he’d lived out there for 30-odd years he’s never had an accident, I said, “Well there’s more traffic on the road these days that,” you know, “could still cause an accident,” and that’s when he’s come up and he said, you know, “This is my town,” put his nose on my nose and I’ve sort of put my hands up like this to say, you know, “Get out of my face” and that’s when he has hit me around the head.
Q.And in terms of where you were, where were you positioned –
A.I was leaning, I was backed up against my car, so I didn’t have anywhere to move back to or anything like that.
Q.       And in terms of where the defendant was, he had –
A.       He had come forward –
Q.       Yes.
A.       – and put his nose on my nose.
Q.       And you said – and you’ve –
A.       I just did this motion here –
Q.       Yes.
A.– as, you know, “Get out of my face,’ and that’s when he’s hit me.
Q.       He’s hit you. And so how many times has he hit you?
A.       Three or four times, it was sort of a bang, bang, bang.
(h)Ms Finny gave evidence that she then heard a woman from across the road say that she had called the police. Ms Finny picked up her sunglasses from the road and walked towards the woman “to say thank you for calling the police”. Ms Finny said that Mr Johnson was still abusing her and the woman told them to leave her property and so they did. She said that she and Mr Johnson walked back to their vehicles and left.
(i)Ms Finny gave evidence that she suffered a split lip as a result of the assaults. Photographs were produced taken “a couple of days” later at the Whangarei Police Station.
Mr Johnson was represented at the trial by Mr John Day. Mr Day first cross‑examined Ms Finny on her evidence about the course of the driving which she had described as occurring prior to the assaults. The point of the cross-examination was to portray Ms Finny as the erratic driver, not Mr Johnson. Mr Day told Ms Finny that Mr Johnson was going to give evidence and he put Mr Johnson’s version of the driving incidents to her. Ms Finny did not accept it.
Ms Finny accepted that she knew that Mr Johnson lived in Waiotoi Road. She also accepted that Mr Johnson’s vehicle was not blocking her from driving away.
Mr Day continued his cross-examination:
Q. Now, you said that whilst trailing him going to Crawford Reserve, that you were concerned with the manner of his driving, you say he was staying on his brakes and you were giving him fingers and the bird and whatever. You were pretty worked up?
A. I wouldn’t say I was irate, but I was, you know, telling someone that their driving was unacceptable.
Q. Frustrated, I mean that is my word.
A. Yeah. I would say I was frustrated.
Q. Annoyed?
A. Not angry.
Q. Annoyed?
A. Not so much, maybe a little frustrated.
Mr Day watered down Ms Finny’s evidence that she was hit by Mr Johnson three or four times by referring to her statement to the police in which she had said she was hit between one and two times.
Mr Day put to Ms Finny that in fact she had pushed Mr Johnson. Ms Finny denied it. Mr Day put to her that as a result of the push Mr Johnson stumbled backwards and Ms Finny said “that’s wrong”. The cross-examination continued:
Q. He will then say that having righted his balance, (inaudible 10:56:50) himself he pushed you back, pushed you back by way of his right palm to your left shoulder. That is what he will say.
A. Okay, and so how did my lip get split then?
Q. That’s what he will say.
A. Okay.
Q. He will say that you stumbled backwards, did you?
A. No, because I was already backed up against the vehicle.
Q. He will say that you stumbled backwards and that your sunnies somehow came off your – you were wearing sunnies, weren’t you?
A. Yes.
Q. Did you have them over your eyes or on your hair or on your forehead, do you know?
A. If I remember rightly, they might – they were either on my eyes or sitting on top of my head, I can’t quite remember at the time, I’m sorry.
Q. But off they came.
A. Yes.
Q. And clattered onto the road.
A. That’s correct.
Q. You’re not normally asked, of me – how did you cut, how did your bottom lip get cut but I’ll turn it around.
A. Okay.
Q. We’ve seen the photographs?
A. Mhm.
Q. It does suggest that you did at the time have a cut lip. Was it the case and during this — I’ll call it, “altercation,” my word, was it the case — did it happen then?
A. Yes it did.
Q. How did it happen?
A. Well it all happened so quickly –
Q. No, no, how, how did you – well –
A. Oh, my tooth went through my lip.
Q. Could that have been by – you say you didn’t stumble backwards, but I’m suggesting you did, the shock of being pushed that you bit your lip.
A. No.
Q. No? Okay. Could it have been caused by having been pushed to your left shoulder moving backwards, your glasses coming off, that maybe your hand brushed your lip?
A. No.
Q. Do you wear rings? Wedding ring, engagement ring?
A. No.
The next witness called by the Crown was Ms Glenda Warbrooke. She was the woman from across the road. She was asked:
Q. And while you were in your house what have you – what have you seen?
A. I saw the female pull up on the other side of the road in a car on the grass, nobody lived in that house, I was a bit curious, and then the male pulled up very quickly, on the road blocking the lane, he got out of the car, went around, she got out of the car, so he was at the back of the car, she was at the back of her car at the rear but on the side, um, I couldn’t hear anything because the door – window was closed but they were obviously arguing, by their body language. Um, he –
…
Q. And so you mentioned you’ve seen the car pull up and you’ve seen another car drive behind her.
A. No, he came a few seconds after.
Q. A few seconds after.
A. Yes.
Q. And how as he – how was that car moving or what –
A. Fast, he jammed his brakes on.
Q. And, and was he – or, and a male has come out of that car?
A. Yes.
Q. And was he – what has he done when he’s come out of the car?
A. He’s walked quickly to the back of the car and she had gotten out and walked to the back.
Q. And that’s where they met?
A. Yes.
Q. And you’ve mentioned they were having a, an argument as – as you couldn’t hear it but you could see it?
A. Yes.
Q. What gave, what, what gave you that impression?
A. Just gesturing I guess, with their hands, um, yeah, and it just didn’t look right.
Q. And while this argument’s happened what have you then seen? What happened, what has happened next?
A. Um, she started to smile and laugh a little bit and they seemed a bit more relaxed. So I thought they might have been partners, they had a bit of an argument, I didn’t know what was going on really.
Q. And has the argument stopped there or?
A. I bent down and when I looked up he had moved, she hadn’t moved, but he had moved right into her space. So I could not see her fully as I could have done before, I could just see down one side, so he was right in her, right in her space.
Q. Would you say you had a clear view of him in, in her face?
A. Yes.
Q. And what has that male then done?
A. He then stepped back and then he raised his right arm up high and brought it down on the female’s face on the side of the head, her sunglasses came off and she dropped to the ground, before she got to the ground he grabbed her by her upper arm, picked her back up again and hit her again in the side of the head, by this stage I was at the window yelling for him to leave her alone.
Q. And once you intervened, what, what has happened?
A. Um, he still had hold of her, and he looked around and then he looked up and saw me, he quickly released her, he walked up the inside of his car, got his cellphone out and said, “I am recording this, I am recording his.” He walked around the front of his car, down the side and that’s when he yelled out, “She hit me first.” The female came onto my property closely followed by him and I was a bit scared of him, I yelled out from the window to get off my property, they both left, I was concerned about her wellbeing, so I ran down the steps but she was getting in her car and leaving. He was then talking to me again, I told him to leave and not to come onto my property and he then left.
…
Q. And were you able to see Ms Finny assault the defendant or –
A. I did not see her lay a hand on him.
In his cross-examination, Mr Day put it to Ms Warbrooke that Mr Johnson had not blocked Ms Finny’s vehicle from leaving. Ms Warbrooke accepted that. He asked:
Q. My friend asked you a question, “Did you see the female strike the male at all?”
A. Yes.
Q. And your response was?
A. No I did not see her hit him.
Q. Did you see the male stumble back at all?
A. He stepped back with his left leg.
Q. Not stumbled?
A. No.
At this point Mr Day took Ms Warbrooke to her statement to the police:
Q. Excellent. On the last paragraph, paragraph 10, page 1 you say, do you not, “I did not see her hit him, she may have shoved him but I could not see as he was in front of her.” Is that what you said?
A. Yes.
Q. Okay, and over the page you say, “He stumbled back a bit.”
A. Yes.
Q. That’s the word I was asking you earlier, ‘stumbled.’ I know it was a long time ago and it’s hard to cast your mind back over a period of time but this statement’s made on 4 October, may I suggest it would be more likely to be correct rather than your remembrance of the fact now?
A. It may have been but when I say, ‘stumbled’ and what I call stumbled and what you may say stumble may be two different things as well, to me he moved back with his left leg.
Q. But you do say the word ‘stumbled,’ that’s what you say, it’s not my word it’s your word.
A. Okay, he stumbled then.
Q. He stumbled back a bit. In the preceding paragraph you say, “She may have shoved him.”
Mr Day cross-examined Ms Warbrooke on her account of the assaults by Mr Johnson:
Q. … When you say you saw two punches (inaudible 11:39:40), were they punches or were they slaps? What were they? What did you see, what do you remember seeing?
A. It was very quick, to me they looked like punches. But it was quick, it was very quick.
…
Q. And looking at the photograph, photograph number 3, now you’ve told us where the vehicles are and you’ve said that they both went around to their respect, ends of their respective vehicles, and you’ve mentioned at one point in time it seemed to you that he got very close in her space?
A. Yes.
Q. Okay. When he stumbled, there was – to use the word in there, or stepped back, as you perhaps are now suggesting or saying now, how far apart were the two parties, the male and female?
A. They were still very close.
Q. Right.
A. Um, probably about that much distance between them.
Q. Okay.
A. He sort of stepped back and then to raise his arm.
THE COURT:
The witness estimated about 18 inches?
MR DAY:
Yes.
THE COURT:
Thank you.
CROSS-EXAMINATION CONTINUES: MR DAY
Q. Are you sure that way you saw wasn’t him pushing her?
A. No.
Q. A push to her left shoulder?
A. No.
Q. What hand or arm do you say that he punched her with?
A. His right.
Q. His right, okay. Could you see if his hand was closed in a fist or an open palm or –
A. I did not take notice of that, no.
Q. And why in part was that the reason?
A. It just happened very quickly.
…
Q. I put it to you that what you thought you saw, i.e. punches being thrown, was in fact a push, a single push to her shoulder?
A. Absolutely not.
In re-examination there was the following exchange:
Q. It was put to you a few times the definition of “stumbled” and obviously you have a different definition, but if you could just confirm what you saw the actions of the defendant when, in relation to that issue of the stumbling?
A. It was a quick step back with his left leg, like to balance himself.
The third witness called by the prosecution was Constable Groves who interviewed Mr Johnson at Mr Johnson’s home in Waiotoi Road. He was asked:
Q. In relation to the assault, we’ve heard from Ms Finny and Ms Warbrooke that the defendant has applied two hits to Ms Finny’s head, what was his explanation in – in that?
A. So Mr Johnson has denied assaulting Ms Finny. He did state a, now my brain is going to go blank, self-defence and that she first pushed him. This is where he made a comment which sort of stuck in my mind which was his training kicked in and he sort of showed like a palm striking action.
In cross-examination, Mr Day had the Constable confirm that Mr Johnson complained about Ms Finny’s driving, and that Mr Johnson denied striking Ms Finny but did admit to pushing her after Ms Finny had pushed him. Mr Johnson wanted to make a complaint of assault against Ms Finny.
After the conclusion of the Crown case Mr Johnson elected to give evidence on his own behalf. His evidence-in-chief was to the following effect:
(a)It was Ms Finny who was driving erratically.
(b)At one point Mr Johnson overtook Ms Finny but Ms Finny later “caught right up to me in no time”. He said Ms Finny was still behind him when they got to Ngunguru township, “yeah, she’s pulling the fingers the whole way”.
(c)He turned into Waiotoi Road because that is where he lives. He stopped:
A. ‘cos I was worried about her driving, just it was, you know.
Q. Why not just carry on keeping driving, why not just bypass her and just go home?
A. ‘cos I was quite, well I wanted to know what it was all about, I just couldn’t understand why she was driving like that.
(d)There was a conversation between the two of them about her driving. He denied that he invaded her personal space, saying that he stayed at a “good arm’s length, easy”.
(e)Mr Johnson denied that he struck Ms Finny:
Q. Tell the jury what happened?
A. Um, after talking with her a while I touched a sensitive subject with her and she stepped into me, you know, stepped in and pushed me, which –
Q. How did she push you?
A. Two hands, just shoved me.
Q. And what did you do?
A. I stumbled backwards, caught, yeah.
Q. Why stumble, did you physically more stronger more robust person?
A. Ah, just caught me off guard that she just star – yeah, went from laughing all of a – and then just shoving her just caught me right off guard, didn’t push me over but caught me off guard, I didn’t expect.
Q. Okay, now you’re again your guard or pushing or whatever, do you respond and if so how do you respond to being pushed?
A. Yes I pushed her sort of, I pushed her straight back with this hand with my, on her left shoulder and she –
…
A. Ah, she pushed me and I stumbled back and I just pushed her away, just did like, thing, keep your distance, it’s all going like, I thought she was going to just carry on attacking me, all I want to do is keep her at bay, you know.
Q. So you essentially pushed her in response to being pushed yourself?
A. Yeah, she, yeah she pushed me and stuck me yeah, I thought she was going to carry on spinning and hitting me so I just pushed her away like that, keep back.
Q. Both she and Ms Warbrooke who’s watching out her upstairs bedroom window.
A. Yeah.
Q. Says that Ms Finny stumbled backwards, that she, the force of your push or whatever it was.
A. Yeah she did stumble back and, um, yeah her hands went flying out she, yeah it was just dramat – and then her glasses fell off she went over, picked those up and then the neighbour yelled out, “Oi stop it you guys.” And then I said, “I’m recording this don’t worry.” And then she went over to neighbouring, she goes, “Did you see it, did you see it?” I said, “Yes she did see you push me first,” and then the neighbour said, “You guys just go away I don’t want your problems here, you know,” and so I left straight after that. That’s, that’s all it was.
(f)Mr Johnson denied causing Ms Finny’s split lip. The record is unclear, but Mr Johnson said that “when she went back” she could have “whacked it with her hands”.

In cross-examination, Mr Johnson:
(a)accepted he had an argument with Ms Finny;
(b)denied he “put my nose into her nose”;
(c)denied he became angry and denied that he hit Ms Finny in the head.
Towards the end of the cross-examination, Mr Johnson confirmed Ms Warbrooke’s evidence that he had said he was recording the incident:
Q. So you were recording this whole entire encounter?
A. Yes.
Q. But we haven’t seen that have we?
A. No, um, Mr Adam Groves, yeah he’s seen it.
THE COURT:
Q. Sorry, who’s seen it?
A. Adam Groves, he come up to interview me.
QUESTIONS ARISING CONTINUES: MR TAYLOR
Q. So he’s seen the recording?
A. Mhm.
Q. And no one else?
A. No one else that I know, oh my family.
Q. That would explain quite a lot, wouldn’t it, that recording?
A. So it would.
Q. But you saw – you heard Mrs Warbrooke –
A. That’s why I’m quite confident to sit here and say I did not push or attack her first.
Q. But that recording would explain a lot.
A. It would.
Q. Where is it?
A. At home.
Q. Okay.
A. Yeah.
Q. Mrs Warbrooke that you’ve – after assaulting Ms Finny, you’ve walked to your car and then you have said, “Don’t worry, I’m recording,” and you’ve grabbed your phone then?
A. Ah, my phone was always in my pocket.
Q. That’s just because you have finally realised someone’s watching you and seen what you have done and you panicked?
A. No, it’s because I do computers, I work with computers, phones and computer.
THE COURT:
Q. Okay – just, just pause. Let’s just be clear. Are you saying that you have video footage of what you say was the pushing at the rear of your car?
A. I’m just saying I have a recording of the incident, the whole incident taking place.
Q. Okay, we’ll let’s start – video recording or audio recording only?
A. Video and video after the, the alleged assault.
Q. Okay, and you’re saying that you played the audio recording –
A. Yes.
Q. – to Constable Groves?
A. Yes, yes. Adam Groves told me that she had admitted pushing first but he had to charge me based on what the neighbour independent witness said.
Q. Now don’t worry, just, just confine yourself to what I have asked.
A. Sorry, that’s – I’m just doing that.
There was no re-examination and the defence case concluded. However, Judge Collins was sufficiently concerned by Mr Johnson’s evidence that he had recorded the incident that the next day, 29 August 2019, he conducted a voir dire at which Constable Groves gave evidence.
Constable Groves said that Mr Johnson had briefly mentioned having a video recording but that when the Constable asked to see it Mr Johnson said “it will come up later”. Accordingly, the Constable had not seen any video recording. Constable Groves was not cross-examined.
Judge Collins continued the trial. Counsel gave their addresses, the Judge summed up and the jury eventually returned verdicts of guilty.
Judge Collins sentenced Mr Johnson the following day, 30 August 2019.

The basis for Mr Johnson’s appeal

Mr Johnson’s grounds of appeal can be gleaned from the affidavits he filed in this Court.
In his affidavit of 20 November 2019, Mr Johnson deposes he had asked his lawyer to play the video of the incident in Court but the lawyer did not. Mr Johnson also deposes that the lawyer “refused to bring in my witnesses as asked”. Mr Johnson deposes that the video shows there was no assault and also that Ms Finny lied “at least six times”.
In a further affidavit sworn on 9 March 2020, Mr Johnson said he would like Mr Dale Johnson to be called to give evidence that Constable Groves did watch the video. He said Dale Johnson would also (we paraphrase) give evidence of a longstanding conflict between Ms Finny, her friends and family, and the Johnson family. Mr Johnson deposed that on the day of the incident there was no mention that Ms Finny’s friends helped her block the road “as seen and heard on the video”.
Mr Johnson concludes his affidavit as follows:[4]
All I wanted was a fair trial where I could take my medication and not be in pain and that the truth be told by police and so-called victims and that after seeing my records you will see that I went from a few driving offences in 41 years to having 21 callouts to our house by police in the last 3-4 years due to our neighbours thinking our kids are there for their pleasure and to be photo’d whenever they feel like it which is what really started this case. As you could see there was no fingers being given by me before she pulled over like she swore on the stand.

Counsel’s affidavits

[4]We have used standard spelling.

Mr Johnson was represented by Mr Aaron Harvey prior to trial and by Mr Day at trial. The Crown, following waiver of privilege, filed affidavits from both.
Mr Harvey deposed that Mr Johnson told him about his difficult history with the complainant and her associates. He explained to Mr Johnson that this could be viewed in two ways. The first was supportive of Mr Johnson’s narrative in that it would provide an explanation for why Ms Finny would be the aggressor and why she would make an inaccurate complaint. The second was that it provided a motive for Mr Johnson to be the aggressor.
Prior to trial, Mr Harvey accepted employment in Christchurch and Legal Aid was advised of this on 31 July 2019. Mr Day was assigned the case and Mr Harvey had discussions with him. Mr Harvey provided Mr Day with his file, including a document entitled “Working Notes”.
Mr Day deposes he was assigned to the case by Legal Aid on 8 August 2019. He received Mr Harvey’s file on 19 August 2019. Mr Day confirms that prior to then he discussed the case with Mr Harvey, and did so again after having received and read the file. Mr Day deposes:
4.IT was apparent from speaking with Mr Harvey and reading his file that the trial had been well-prepared. Annexed hereto and marked with the letter “A” is the witness brief of Mr Johnson, headed “Working Notes”, as received by me from Mr Harvey’s file (the underlining of portions and other markings on those Notes have been done by me and are in my hand).
The “Working Notes” referred to by Mr Day are a transcript of a recorded interview Mr Harvey had with Mr Johnson on 30 January 2019. There is no reference in them to a video recording of the incident.
As to the recording made by Mr Johnson, Mr Day deposes:
12.MR Johnson gave pretty good evidence and detailed, in my view, a credible and coherent narrative. When he said towards the end of his cross-examination that he had taken a video of the whole incident, it was the first time I had heard of it. Mr Johnson said he had never shown anyone the video apart from his family and the officer in charge of the case, Constable Groves. Constable Groves was recalled to establish whether he had viewed the video in the course of his investigation, and he said he had not; nor could he recollect any mention by Mr Johnson of it. I have still not seen the video that Mr Johnson has provided the Court.
One of Mr Johnson’s complaints, developed in his evidence before us, is that Mr Day had very little to do with him before the trial and, he said, spent only 10 minutes on the phone with him before trial. Mr Day, in his affidavit, denies that. He deposes he made initial contact with Mr Johnson by telephone on Thursday, 22 August 2019, introduced himself, and went through the file in sufficient detail to assure Mr Johnson he was familiar with it. Mr Day deposes he told Mr Johnson he had spoken with Mr Harvey on two occasions and suggested he meet Mr Johnson on Monday, 26 August 2019. Mr Day estimated the telephone call to have been of some 10–15 minutes duration.
Prior to meeting Mr Johnson on 26 August 2019, Mr Day drove the route Mr Johnson and Ms Finny described to familiarise himself with it and to view the scene of the incident.
Mr Day deposes he met Mr Johnson during the luncheon adjournment at Court on 26 August 2019. He spent some three-quarters of an hour going through the file and Mr Johnson’s defence. Mr Day deposes:
At no point during that discussion did Mr Johnson tell me that he had recorded or captured the incident as a video on his cellphone. Nor did he suggest let alone instruct that he wanted any witnesses called. This was consistent with the file I received from Mr Harvey, it being silent both as to the existence of a cellphone video and to wanting any witness or witnesses called.
Mr Day’s file note, made later that day, is consistent with this account.
Mr Day attended Court with Mr Johnson on 27 August 2019 and 28 August 2019. The first occasion was a callover to confirm the trial was ready to proceed later in the week. The second occasion was to select and empanel the jury. Mr Day deposes that he spoke with Mr Johnson about the trial on both occasions and that on neither did Mr Johnson raise with him his cellphone video or that he wanted any witnesses to give evidence in his defence.
Mr Day deposes:
9.MR Johnson wanted to explain the backstory to this trial, that being the whole two-year history of his bad blood with the complainant and her family and circle of friends as part of his defence. I could see from the file that Mr Harvey had previously advised him that this would be unwise. I gave him the same advice: it could, probably would, provide a motive for him to have begun the violence against the complainant. Mr Johnson accepted this advice.

The evidence called on appeal

Mr Johnson gave evidence before us. Ms Thomson for the Crown cross‑examined him on his relationship with his lawyers and about his medication.
Mr Johnson did not take real issue with Mr Harvey’s representation of him.
On the issue of his video recording, Mr Johnson said that he did tell Mr Harvey that he “had a tape of the incident”.
As to Mr Day, Mr Johnson was adamant that Mr Day telephoned him only the night before the trial for five minutes.
Mr Johnson denied that he met Mr Day at the courthouse on Monday, 26 August 2019 for about 45 minutes. He said he saw him for 10 minutes:
That’s it. That’s all we had. There were no meetings at all. He didn’t even know about any of the other people involved in the court case.
Later, there was this exchange:
Q.When you spoke to Mr Day, you didn’t tell him that you had a contemporaneous video of the…
A.Yes, I did. Yes, I did. I called for it to be played multiple times once locked up downstairs, along with asking for my witnesses to come in. As you’d seen if you watched the video, you can count… I counted five times she lied on the video. Why would I keep the video for two years and not ask it to be played if I picked up five lies that the victim supposedly had said? You’d be mad. You’ve just watched someone lie five times, you have kept a tape for two years, would you not want it played? Would you honestly say no…
Ms Thomson cross-examined Mr Johnson on the medication issue. Mr Johnson acknowledged he brought his pain medication to the Court but he said it was taken from him when he was put into the cells.
Ms Thomson put to Mr Johnson the record made by Judge Collins that the Judge had been approached by the security guards because the guards were concerned about how many medication pills Mr Johnson had taken throughout the day:
Q.It was only at that point, after you had already given evidence and your counsel had already closed to the jury, that the Judge directed that your pain medication be taken away from you?
A.Yeah.
Q.Is that what happened?
A.It’s half of what happened and, like I said, it was taken away from me first thing in the morning. It wasn’t in my hand to administer to myself as I needed. It was given to me hourly, if that, by the security, or whenever they thought I needed it, not when I needed it for my pain. Sitting on a concrete floor induced a lot more pain than I was used to, so I needed more and I wasn’t receiving it.
Q.But, to clarify, were you given access to your medication on a regular basis throughout the day?
A.No, I wasn’t. I couldn’t physically take it whenever I wanted, no.
Q.But you were able to take some throughout the day?
A.Yeah, I was able to take some when they seen fit. Not when I needed it, no.
Q.You were able to give evidence in your own defence, weren’t you, Mr Johnson?
A.I’m able to do a lot of things without my pain meds but not very efficiently.
Q.And you didn’t change your story when you were being cross-examined by the prosecutor?
A.What do you mean?
Q.You weren’t confused by the questions that were being put to you and you didn’t change your account of what happened?
A.I forgot a lot of things because I wasn’t on my meds, yes. I forgot to instruct the jury about the other people involved in blocking the road which were clearly there on videotape. I forgot about a lot of things. I forgot about Adam Grove taking a videotape without a warrant or permission or consent from me. I forgot about a lot. There’s a lot of things I forgot. I was trying to focus on the back pain and the pain I was in. That’s all I was thinking about. I was even told by the Judge to stop moving around. They kept telling me they were going to hold me in contempt if I kept moving. But I couldn’t stop moving. I was so sore.
Mr Johnson maintained his position that he instructed Mr Day to call witnesses but Mr Day did not do so. He said he wanted to call witnesses to prove Constable Groves did view the video recording before the trial and was therefore lying when he said he had not.
We then allowed Mr Johnson to call his mother, Mrs Glenda Johnson, to give evidence. Mrs Johnson was present in the courtroom in Whangārei and Mr Johnson was insistent that she could give evidence to corroborate his evidence on a number of matters not covered in her affidavit which was part of his evidence.
In the event, Mrs Johnson’s oral evidence did not assist Mr Johnson’s case. Mrs Johnson had no first-hand knowledge of anything relevant, save that she was in Mr Johnson’s presence when Mr Day telephoned to introduce himself.
Mr Day gave evidence and was cross-examined by Mr Johnson. Mr Day did not depart from the evidence set out in his affidavit.

Discussion

The issue for the jury was whether the Crown had proved beyond reasonable doubt that Mr Johnson deliberately struck Ms Finny to the head. The two charges reflected the Crown’s case that at least two such blows were struck.
Judge Collins’s directions to the jury succinctly focused it on the issues to be decided. The Judge told the jury:
[10]     … It does not matter whose driving was bad. It is clear that both the main participants, Ms Finny and Mr Johnson, think that the other drove badly. On the issues in this case is whether it was one push to the shoulder or whether he struck her twice to the head, it does not matter in the lead-up whose driving was at fault. It would not matter if her driving had been 100 percent at fault, that would not justify what has happened. And, it does not matter whether his driving had been 100 percent at fault, that does not make it necessarily more likely that he did the things that she said he did in striking her to the head.
…
[24]     Right, now, I have explained to you that an assault is the intentional application of force by one person to the person of another, and you might be saying to yourselves, “Well, hang on, the Crown case is two blows to the head, but Mr Johnson’s admitted a push to the shoulder, so isn’t that the intentional application of force, wouldn’t that be an assault?”. In this case, if that was the view you came to, the Crown does not seek a conviction. The Crown has nailed its case, or in each case, a blow to the head. So the Crown is saying, “Unless we have proved that to you beyond reasonable doubt, we don’t seek a verdict of guilty.”
[25]     Okay, now, pushing. If you are of the view that you think Ms Finny pushed Mr Johnson first, I am giving you a direction that this expression that you have heard of self-defence does not arise and you do not consider that. Self-defence and the direction I give you in this case is not an issue where a push would justify a male of Mr Johnson’s size and build striking a female of Ms Finny’s size and build in the head. So if you think that she did push him, that is no defence, if you like, in this case for him to have struck her in the head. In any event, he says, “I didn’t do that.” He said, “All I did in response to the push was a push to the shoulder,” and as I have just explained to you, if you come to the view that all that he did was a push to the shoulder, then the Crown does not seek a conviction based on that.
We agree with those directions. Further, given the evidence of the eye-witness, Ms Warbrooke, it is quite clear the jury was entitled to find Mr Johnson guilty on both of the charges on the evidence it heard.
The issue on appeal, therefore, is whether the matters raised by Mr Johnson, if established, create a real risk that the outcome of the trial was affected; or the trial was unfair.

Failure to call witnesses

First, we do not accept that Mr Johnson instructed Mr Day to call witnesses and that Mr Day failed or refused to do so. We accept the evidence of Mr Harvey and Mr Day that Mr Johnson accepted advice that calling evidence of the long-term animosity between Mr Johnson, Ms Finny and people associated with them would not assist Mr Johnson’s case. It was good advice.
Before us, Mr Johnson seemed most concerned about a failure to call witnesses to corroborate his account that Constable Groves had viewed his video recording of the incident. He submitted that Constable Groves’s evidence on this point damaged his credibility in the eyes of the jury.
We heard evidence from Mr Johnson’s mother. She could give no evidence on this point.
Mr Johnson’s father, Mr Dale Johnson, filed an affidavit in which he deposes only:
I was in the shed and saw Constable Adam Grove turn up to our house and go in and see [Mr Johnson]. So I wandered over and stood outside on the deck. Adam Grove was looking at [Mr Johnson’s] cellphone trying to find the video on it.
This does not materially assist Mr Johnson. Mr Dale Johnson does not say he saw the Constable viewing the video recording, nor how he knew the Constable was “trying to find the video on it”. One inference is that this is what Mr Johnson told him later.
In any event, Constable Groves was not asked any questions about the video recording in front of the jury, either in evidence-in-chief or in cross-examination. There was no conflict between his evidence and that of Mr Johnson.
We accept Mr Day’s evidence that Mr Johnson did not, prior to the trial, tell Mr Day that he had made a video recording of the incident. Not only is Mr Day’s evidence consistent with Mr Harvey’s evidence on this point, but had Mr Johnson told Mr Day about the video recording it is inherently incredible that Mr Day would not have immediately asked to see it. It could potentially be decisive evidence for the defence.
Nor do we accept Mr Johnson’s criticisms of Mr Day’s level of trial preparation. It is clear that Mr Day discussed the case with Mr Harvey, familiarised himself with the scene of the incident, read Mr Harvey’s file and met with Mr Johnson more than once before the trial. This was not a complicated case.

Evidential value of the video record

A person who appeals a conviction cannot as of right refer the appellate court to new evidence. For new evidence which was not presented at trial to be admitted on appeal, it must be:[5]
(a)credible;
(b)fresh (that is, the evidence could not, with reasonable diligence, have been produced at trial); and
(c)cogent (that is, the evidence, in combination with the other evidence at trial, might reasonably have led to a finding of not guilty if it had been called at the trial).
[5]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

It is difficult to conclude the video record is credible. It is a recording of a recording and the screen goes blank at the critical moment. However, for the sake of argument, the Crown accepts the video recording shows the incident as it took place. We will adopt that position.
It is clear the video record is not fresh. It could have been produced at the trial.
However, as always, the interests of justice are paramount. The criterion of cogency is the most important and so we will assess the evidential value of the video record.
We have viewed the video record. It is of poor quality and at times the cellphone screen appears to be obscured by static. It does not show anything of significance because, during the confrontation between Mr Johnson and Ms Finny, the cellphone appears to have been carried by Mr Johnson at about waist level. It does not show any of the physical violence between the two. As we have said, at the critical moment, the screen goes blank.
The evidential value of the video record lies in the associated audio record. The cellphone appears to have recorded what was said between Mr Johnson and Ms Finny during their confrontation. It does not assist Mr Johnson because it is apparent that he is the more verbally aggressive. Ms Finny does not shrink from the confrontation but she largely responds to Mr Johnson’s remarks.
It is not possible to infer from the audio record what happened during the physical violence. Each accuses the other of violence. Mr Johnson is heard saying to Ms Warbrooke to note that Ms Finny pushed him first. The most that can be taken from the audio record in favour of Mr Johnson is that it does not exclude the possibility that Ms Finny pushed him before he retaliated.
Having viewed the video record, we understand why Mr Johnson did not tell Mr Harvey or Mr Day about it. The record does not exonerate Mr Johnson. It shows him to be the initiator of the confrontation with Ms Finny. It shows him to be verbally aggressive and it is consistent with the Crown case that Mr Johnson struck Ms Finny.
The video record is neither fresh nor cogent. Its absence from the trial evidence did not create a real risk that the outcome of the trial was affected or that the trial was unfair. We therefore decline to admit it as evidence in the appeal.

Medication

We are satisfied there is nothing cogent in Mr Johnson’s complaint about being deprived of his medication.
First, he was not deprived of his medication. As his answers in cross‑examination quoted above at [50] make clear, he was given his medication but was not able to take it whenever he wanted it. The issue reported to Judge Collins by the security guards was that they thought Mr Johnson was taking too much of the medication. Judge Collins recorded:[6]
[2] Throughout the day Mr Johnson has presented as alert. He gave evidence, he gave a coherent narrative, he had no difficulty understanding and answering the questions. He was argumentative as a witness but not any more so than a number of witnesses. But after the jury had retired to consider their verdicts, which they are still doing, I directed that he was not to take any further medication until we knew what it was he was taking and what he was taking was in the directional prescription provided by his doctor. I said that he was to take no further medication until he had given authority to Mr Day to speak to his doctors.
[6]R v Johnson [2019] NZDC 16993 (Ruling 1 of Judge Collins).
The transcript of Mr Johnson’s evidence gives no indication that Mr Johnson was in any physical discomfort. There is no allegation that Mr Johnson complained to Mr Day or to anyone else that he was being deprived of medication. Having seen and heard Mr Johnson, we have no doubt he would have complained vigorously if there had been a real problem.
We are not persuaded that Mr Johnson was deprived of medication and so affected by that as to make his trial unfair.

Outcome of appeal against conviction

We are satisfied that Mr Johnson received a fair trial. There is nothing in the grounds of appeal which suggest a miscarriage of justice. The issues in the trial, as directed by Judge Collins, were simple and clear. It came down to whether the Crown could prove beyond reasonable doubt that Mr Johnson, at least twice, struck Ms Finny in the head. The jury was entitled to find Mr Johnson guilty on the charges. We dismiss the appeal against conviction.

The appeal against sentence

As we have said, Mr Johnson did not address his appeal against his sentence. We will consider for ourselves whether it was manifestly excessive, in which case a different sentence should be imposed.
Judge Collins sentenced Mr Johnson the day after he was found guilty by the jury.[7] It was a short hearing. The Judge said to Mr Johnson:
[4] You have a history of violence. You obviously have a very poor ability to control your temper. You have three convictions for violence and you have alcohol driven offending in your history. At some point, Mr Johnson, a Judge might say, “Enough is enough and you can go to prison.” Well, today is not that day. I am not threatening you, this is for your own benefit, you are getting close, but for today, you will be sentenced to 12 months’ supervision and that will be on the following special conditions:
(1)You are to undertake assessment for alcohol and other drug abuse. You, I suspect, are at real risk of becoming potentially addicted to pain killers or prescription medication.
(2)You are also to undertake assessment for anger management and assessment for a Departmental programme and all of that is as directed by a probation officer.
(3)Thereafter, you are to undertake any programmes, counselling or treatment as recommended by the assessments and as directed by the probation officer and to the satisfaction of the probation officer and treatment provider.
[7]R v Johnson, above n 1.
In addition to the sentence of supervision, the Judge sentenced Mr Johnson to 100 hours’ community work and ordered reparation of $1,000 for emotional harm to the victim.[8]
[8]At [5].
The history of violence to which the Judge referred begins with convictions in 2011 for assault with intent to injure and common assault for which Mr Johnson was sentenced to nine months’ supervision and 160 hours’ community work. In 2017 he was convicted of making threats and of common assault. He was sentenced on these charges to 150 hours’ community work and to make reparation of $200.
It is clear from the special conditions imposed by Judge Collins that he was concerned with rehabilitation. Given Mr Johnson’s record, his initiation of the confrontation with Ms Finny, and his lack of remorse, the Judge could well have imposed a greater sentence. The sentence he did impose cannot be described as manifestly excessive.

Decision

The application for leave to adduce fresh evidence on appeal is declined.

The appeal against conviction is dismissed.
The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[2021] NZCA 171

7 May 2021 at 2.00 pm