K v Police HC Wellington CRI-2008-485-10

[2008] NZHC 2349

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-10

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 May 2008

Counsel:         P Knowsley for Appellant

J Webber for Respondent

Judgment:      28 May 2008 at 2 pm

RESERVED JUDGMENT OF RONALD YOUNG J

[1]      Mr K   appeals against his conviction for breach of a protection order in the District Court.  The grounds of his appeal are:

(i)        Lack of a fair trial because he did not have a lawyer to represent him.

(ii)The  Judge  should  not  have  allowed  the  prosecution  to  prove  the existence of the protection order by documentary hearsay.

K V NEW ZEALAND POLICE HC WN CRI-2008-485-10 28 May 2008

[2]      The complainant is the appellant’s ex-wife.   The police case was that the complainant had obtained a protection order with respect to the appellant in 2001. On 27 November 2007 the complainant was in her car, stopped at lights in Johnsonville.   She saw the appellant on the street and he waived at her.   She instinctively waived back.  She parked the car and noticed the appellant nearby but walking away.   She got out of the car and went to a dental surgery and paid an account.  She said she delayed there for a while to ensure the appellant had gone and then returned to her car to get a library book.  She then turned towards the library and as she did so she saw the appellant coming towards her.  She said she quickly went to the library and hid behind some shelves.  She then saw the appellant enter the library and look around.  The complainant quickly left the library and got into her car.  As she was about to pull out she noticed the appellant at the back of her car but she drove away.  She complained to the police that the appellant had breached the protection order.

The District Court hearing

[3]      The appellant represented himself at the defended hearing.  He was therefore unable to cross-examine the complainant on her version of events (s 95 Evidence Act

2006).  During the trial, after the complainant had finished her evidence in chief, the following exchange is recorded between the Judge and the appellant.

THE COURT:

Now  as  you  know  under  our  Evidence  Act  there  is  a  restriction  on  a defendant whose representing himself in a charge of this kind, personally cross-examining the complainant.   I wonder if the complainant wouldn’t mind just leaving the Court, and I only do this for your protection because I am going to ask the defendant, Mr K   if there’s anything he wants to question you about.  The legislation is there to protect you so to give you the maximum protection I’m asking you to just step outside the courtroom while I hear this and then I’ll get you back in.  Your family are very welcome to stay and find out what’s happening.  It’s just to make sure you’re ok.

QUESTIONS FROM THE COURT:

Q.        Mr K  , was there anything in Mrs K  ’s evidence that you disagreed with or that you thought she should be asked about which is  important  to  your  defence  because  I  don’t  know  what  your defence [is].

A.        No, no, it’s just a misunderstanding,  I mean, I just  went to  the library.

Q.        You  don’t  wish  me  because  I  can  ask  questions  if  there  was something you thought needed to be asked of Mrs K  ?

A.       No, no, no, no, I don’t, yeah no.

Q.        Well  we’ll  have  Mrs  K    back  in  the  courtroom  and  we’ll proceed with this next witness.

[4]      At the end of the prosecution case the appellant gave evidence.  The thrust of his evidence was that it was a series of coincidences that he and the complainant met or were near each other in Johnsonville that day.  He said that he did not know his ex-wife was in the library when he came in and he was simply looking for the librarian to ask about a particular book he was interested in.  It was a coincidence that he had been near the complainant’s car when she was about to drive off and he was simply walking away from the library at the time.

[5]      The Judge rejected the appellant’s version of events.   She said that if the appellant’s version was correct then he would not have been in the library after the complainant had entered, but before.  She said the appellant claimed he had gone to the library straight after he had seen the complainant on the street.  That, however, could not have been true, the Judge said, because the complainant had paid her dental account and waited for a period and only then had gone to the library.  The Judge said the complainant’s evidence was that when she saw the appellant on the street and she had hurried to the library and the appellant had shortly afterwards also entered the library.  The Judge concluded that if the appellant’s evidence had been truthful, then he would already have been at the library.  She therefore rejected the appellant’s evidence, accepted the complainant’s evidence and convicted the appellant.

[6]      To return to the grounds of appeal.    The appellant has, without opposition, filed an affidavit in support of his appeal.  It explains the circumstances under which he came to be without counsel.   He says, when he first appeared in Court on this charge he was told by the duty solicitor that he was unlikely to be granted legal aid because the charge was not especially serious and that he may not be financially eligible in any event.  He had told the Duty Solicitor that he expected at some time in the future to inherent money from his father’s estate.

[7]      The appellant says he now believes he would have qualified for legal aid.  He says  that  he had  no  income  when  he  appeared  in  Court  and  he  was  living  on borrowed funds and could not afford to pay a lawyer.   The appellant says that because he did not have a lawyer he could not cross-examine the complainant about her movements that day.   As a result there was no cross-examination of the complainant at all and her story was not tested.  In those circumstances, the appellant says  that  his  trial  was  unfair  given  the  Judge  decided  the  case  based  on  an assessment of his and the complainant’s credibility.

[8]      The  appellant  submits  that  this  process  breached  ss  24  and  25  of  the New Zealand Bill of Rights Act in particular s 24(c) and (f) regarding access to a lawyer and s 25(f) relating to the right to examine witnesses for the prosecution.

Discussion

[9]      This was a difficult case for the Judge.  The appellant was prevented by law from personally cross-examining the complainant.  This created a special dilemma for the Judge.  This was a criminal case where the decision was going to be based on an assessment of the facts.   Fair trial rights assume that both parties are able to challenge the evidence given by the other side.  This is especially important where the facts are in dispute and a resolution of the disputed facts is likely to resolve the case for the Judge.

[10]     The difficulty of the case was exacerbated by the circumstances under which the appellant came to be unrepresented.  The appellant wanted a lawyer.  It seems probable he could not afford one at the time.  He was certainly put off seeking legal aid by the advice he received from the Duty Solicitor.   It seems probable that he would have been eligible for legal aid and the seriousness of the offending would have justified a grant.

[11]     I accept that the Judge’s decision was essentially based on an assessment of the credibility of the complainant and appellant.   The Judge recognised important details of the evidence of the complainant and the appellant diverged.   Ordinarily, both the appellant and complainant would have had their initial evidence led and then be cross-examined to test the accuracy and veracity of what they had to say.

[12]     The appellant was extensively cross-examined but the complainant was not. I acknowledge that the Judge did ask the appellant if there was anything in the complainant’s evidence he disagreed with, or anything the complainant should be asked about.  The appellant said “No, no, it’s just a misunderstanding, I mean, I just went to the library”.  The Judge reiterated that she could ask questions if there was “something you thought needed to be asked of Mrs K  ”.   However, without knowing  in  detail  exactly  what  the  appellant  would  say,  it  was  going  to  be impossible for the Judge to ask the complainant relevant questions on the appellant’s behalf.

[13]    The Court’s experience is that lay litigants often do not understand the importance of putting the detail of their case to an opposing witness.  Even where there is no restriction on cross-examination and a litigant represents themselves Judges are required to do their best to ensure the detail of an accused’s case is, where required, put to the opposing witness.

[14]     In  this  case,  the  burden  on  the  Judge  created  by  s  95  was  greater. Section 95(5) Evidence Act 2006 provides as follows:

95       Restrictions on cross-examination by parties in person

…

(5)A  defendant  or  party  to  a  proceeding  who,  under  this section, is precluded from personally cross-examining a witness may have his or her questions put to the witness by—

(a)       a lawyer engaged by the defendant; or

(b)       if the defendant is unrepresented and fails or refuses to engage a lawyer for the purpose within a reasonable time specified by the Judge, a person appointed by the Judge for the purpose.

[15]     Section 95 makes it clear in a general sense that every effort should be made to try and ensure that someone represents an accused person and is available to conduct  the  cross-examination  of  the  party  the  accused  is  prohibited  from cross-examining.   Subsection (b) recognises the difficulty if a defendant is unrepresented.   It anticipates that a Judge will give the accused an opportunity to engage a lawyer for the purpose of conducting the cross-examination, or if they refuse, it anticipates that the Judge will appoint a person for the purpose of undertaking the cross-examination.   The purpose of s 95(5)(b) is presumably to ensure  compliance  with  s  25(f)  of  the  New Zealand  Bill  of  Rights  Act.    This provides as follows:

25       Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights…

(f)       The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution.

[16]     Here, the appellant was anxious to have a lawyer but thought he could not afford one and would not have got legal aid.  There is no evidence the Judge ever offered the appellant a specific opportunity to obtain the services of a lawyer or another person to cross-examine the complainant.  It seems probable that if the Judge had engaged s 95(5)(b) by giving the appellant the appropriate advice, he would have chosen to either have a lawyer to represent him or a person appointed by a Judge to undertake the cross-examination.

[17]   In the circumstances, there was effectively no cross-examination of the complainant.   Given the failure to undertake the s 95(5)(b) offer, the absence of

challenge  to  the  complainant’s  evidence  and  the  resolution  of  the  case  by  a credibility finding I am satisfied this was not a fair trial.

[18]     The respondent submitted that in any event there were no questions that could have been asked of the complainant which would have made any difference to the appellant’s case.   The answer to that submission is it is impossible to know without asking the questions.  It may be unlikely that the complainant would have changed her evidence or modified it in a way which helped the appellant’s case. Any such assessment would be by necessity, speculative.   More importantly, however, if the trial has not been a fair trial, then the conviction based on such a trial cannot be allowed to stand.

[19]     For the reasons given the appeal is allowed, the conviction set aside.   The appellant will need to be re-tried on the charge of breach of a protection order.

[20]     In the circumstances, I do not need to consider the second point relating to the admissibility of evidence of the protection order.  I simply say that, in my view, there was ample evidence to establish the existence and currency of the protection order in this case.

“Ronald Young J”

Solicitors:

Crown Solicitor, Wellington