Kahi v Police

[2013] NZHC 3088

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000163 [2013] NZHC 3088

BETWEEN  DESMOND KAHI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   11 November 2013

Appearances:           D Nairn for Appellant

R See for Respondent

Judgment:                21 November 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 21 November 2013 at  3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………

KAHI v NZ POLICE [2013] NZHC 3088 [21 November 2013]

[1]      On 8 February 2013, Mr Kahi was convicted in the Manukau District Court on one charge of male assaults female.  He now appeals that conviction.

[2]      The allegations giving rise to the charge were derived from a statement made by the complainant, Ms Renee Karaitiana, to the Police, at Middlemore Hospital on

11 October 2012.  I record at this point that the name given by Ms Karaitiana to the

Police on that occasion and used in the statement was Janet Burnett.

[3]      In any event, Ms Karaitiana told the Police that she and Mr Kahi had been living together for about 18 months.   She said that shortly after midday on 11

October there had been an argument between them.  She said that Mr Kahi hit her twice on the thigh, punched her on the left cheek and once in the chest, below her breast. She fell to the ground.   An ambulance was called and she was taken to hospital.  Her injuries were minor.

[4]      Mr Kahi’s trial took place on 4 and 5 February 2013.  At the trial, however, Ms  Karaitiana  denied that  Mr Kahi  had  assaulted  her.    She  said  she  had  been intoxicated at the time and referred to her injuries being “self inflicted”.  She said that it was she who had been the aggressor.   Initially, she also denied that the statement taken at the hospital was made by her.

[5]      Judge  Recordon  declared  her  to  be  a  hostile  witness  and  permitted  the prosecutor to cross-examine her about the previous inconsistent statement she had made to Police.   Mr Nairn (for Mr Kahi) agreed that Ms Karaitiana was hostile. Later, the Judge permitted the Police Officer who had taken the statement (Constable Sen) to produce it in evidence.

[6]      Mr Kahi was convicted by Judge Recordon early on 8 February.  The notes of the in chambers discussion that morning record the Judge as saying:

It is a matter which as you know we spent some time on and went into it in some detail, and one of the issues obviously was the statement of Renee or Janet Burnett, as opposed to what she said in Court, and I think in many of these cases, as you know, when a complainant comes to Court and doesn’t give evidence that she’s given before, many of those cases they don’t go any further.

I think because of the good policing of the two young constables involved in this case there was evidence, which combined with the changes in the Evidence Act 2006 enabled me to look at all the other evidence to see whether I preferred that evidence to what she was saying in Court, and I’m going to write something out in some detail.  I have to get to Papakura Court for Youth Court now.   There will be something in detail and if there’s an appeal period it’ll start when Mr Nairn gets my written decision.  So you’ll have time to talk about it together and decide if you want to appeal, and that will include the issue of the statement coming into Court, and as you know, Mr Nairn argued very strongly that I shouldn’t have the whole statement, but I have got it and I’ve read it and taken it all into account, and I think that’s the truth of what happened, and that’s my decision.

The case has in my view been established beyond reasonable doubt.  That will come out in detail hopefully in the next few days.

[7]      On 5 April 2013, Judge Recordon sentenced Mr Kahi to a period of intensive supervision.  The Judge had not at that point delivered his reasons for convicting Mr Kahi.  His sentencing notes record him as saying that:

The decision which is here, but just has not been signed basically will be released very soon, or the reasons for the decision.

[8]      Mr Kahi has not appealed against his sentence.

The District Court Judge’s reasons

[9]      The Judge issued his reasons for finding the charge proved on 2 May 2013.1

Because of the issues raised in the appeal it is necessary to set out parts of that decision in some detail.

[10]     The Judge’s assessment of the complainant and her evidence began with him noting that she appeared to be much younger than her biological age of 25.  Then, he said:

[7]       The complainant (“Renee”) was the first witness.   She confirmed that there was an argument shortly after midday on 11 October involving her, the  defendant  and also  whanau  members,  including her  mum and  some young people.  She had been drinking.  The Defendant told her that she had disrespected his niece.  She told the Court she had a smart mouth and tried to take a glass off him and in the process she hit him and then inadvertently whacked herself in the face with her glass. She said she got more and more drunk and “he does not touch her in any way at any time”.   She said she made a big scene saying “don’t hit me, don’t hit me”, although he was not

touching her while she proceeded to “throw things at him including bottles”. She said she went to the hospital because she was drunk and she “had busted ribs, but they were self-inflicted”.  She said she was drunk “and got drunker” and was on non specified drugs.

[8]       Sergeant Graham showed to her her statement allegedly made to Constable Sen in the afternoon of 11 October.  She said, initially, the name on  the  statement  was  not  hers,  the  writing  was  not  hers,  nor  was  the signature found at various parts of the Statement.  She said she could hardly hold herself up while talking to Constable Sen.  She seemed to change her tune during her evidence on the signature and whether she had made a statement  or  not.   After  going  through  the  correct  formal  question  and answer procedure with relevant parts in the statement being put to the complainant,  Sergeant  Graham  asked  to  be  allowed  to  cross  examine pursuant to s 95 of the Evidence Act.  Pursuant to his request I found that Renee was hostile.  Mr Nairn did not contest.  I asked him if he agreed with my view that Renee was hostile in terms of the legal definition and he agreed she was.

[9]       Questioning continued.   We  broke  a  couple  of  times  during her evidence.   One of these breaks coincided with Renee in tears and in clear distress.

[10]      Her evidence contained inconsistencies throughout although there was a thread of denial that she had been hit by the defendant.   The inconsistencies  related  to her  name,  what  happened  prior  to  the  alleged assault, what was said, contact with flatmates.

[11]      My  assessment  of  Renee  from  her  evidence  was  that  she  was frightened, acting tough: she had a certain “bravado” but appeared in the witness box to lack much confidence at all in herself glancing furtively often at the expressionless face of Desmond Kahi.   I asked at one stage in her evidence that the Victim Advisor be invited to sit with her but as this is not the practice I am told in the Manukau Court she proceeded with her evidence unsupported.   She was shown the medical evidence from her time in Middlemore Hospital.   She was shown the photographs allegedly showing the bruising on the left side of her face.  She agreed there was a mark to the left side of her face from the photos although I had difficulty in seeing much by way of marks or bruising in the photos.  The medical evidence disclosed little of relevant injury, was more a self reporting of blows with fist to left temple, left lower chest wall, reporting one vomit in six hours following the incident.   There was a headache, chest wall pain, and “multiple previous episodes domestic abuse”.  Without any evidence to the contrary, I draw the conclusion that the reference to earlier abuse came from Renee.  Renee was interested in the photos of her face.  She said she could see the redness and marks which she told me were ‘self inflicted injuries’.   She said she had

‘broken’ ribs – but, again, was adamant she had caused the injury to her ribs.

…

[11]     Then (at [13]), the Judge recorded that as a result of concerns expressed by Mr Nairn about Ms Karaitiana’s previous statement a decision was made to ask the Police Officer who took the statement to come to Court and give evidence.  It was

thus that it was he (Constable Sen) who produced the statement.  At [15] the Judge noted that the statement was proffered as evidence of the truth of its contents and that “There is no rule against admitting previous inconsistent statements”.   The relevant law was discussed at some length by the Judge between [22] and [27] of his reasons and no issue is taken with his analysis by Mr Nairn, at least insofar as it was applied by the Judge to those parts of Ms Karaitiana’s statement that were in fact inconsistent with her evidence in Court and about which she was cross-examined.  In so far as those parts of her statement that were not inconsistent with her evidence at

trial, the Judge said:2

[15]      ... An issue for me were the parts in the statement consistent with the viva voce evidence.  The police were obliged to cross examine pursuant to s 94 to cross examine “on significant matters that are relevant and in issue and  that  contradict  the  evidence  of  the  witness,  if  the  witness  could reasonably be expected to be in a position to give evidence in those matters”. Once the relevant contradictory evidence has been put to the complainant, the statement should be admissible insofar as there is no repetition of consistent statements.   As far as consistency in the statement with what Renee was staying in Court was concerned, I discussed with prosecution and defence the possibility of blacking out consistent material in the statement.

[16]      I have read the previous inconsistent statement.  I know what is in it. It would have been somewhat artificial and nonsensical for me to cross out the consistent parts of the statement before I considered it in my decision on guilt/innocence. There are inconsistencies of name, length of time living with defendant, age, address, the fact there was an argument on the relevant day.  The consistencies are not particularly relevant to what I have to decide which is if the statement to the police is the truth and if the evidence in Court is the truth.

[17]      Mr Nairn was concerned with the hearsay rule, s 17.  He said that the prosecution was asking the person, namely the police officer, Constable Sen, who had not made the statement to have the complainant’s statement admitted.  He said Renee had not been given an opportunity to go through the  statement  in  detail.    He  used  the  words  “every  single  aspect”.    In response to that submission Sergeant Graham said that inconsistencies were highlighted when Renee had offered an alternative explanation in the statement.

[18]     Mr Nairn said that the document was seven pages long and only a couple of the points, in fact a mere handful, were put to Renee and that 90 per cent of what was in the statement was not put to her.  He said that there were other bits in the statement which he would like to have seen tested, for example length of the relationship.

[19]      He reverted to his argument on the hearsay rule suggesting that was

the strength of his argument.  “Why is it being produced?  She said she was

highly intoxicated and on drugs when she gave the statement and under the s

23  opinion  rule,  what  purpose  could  the  court  have  for  allowing  the

statement to be introduced?” (a rough precis of this part of Mr Nairn’s argument).

[12]     The Judge then moved on to assess the respective evidentiary value of Ms

Karaitiana’s earlier statement and her evidence during the trial.  He said:3

[28]      Having accepted the statement as evidence, I now have to consider it for what it was, a statement made on the night of the alleged incident, at the hospital during an interview with a police constable the complainant had not seen before.  It must be seen in the light of the photographic evidence and also the medical evidence, also the admissions of the complainant Renee in evidence before me that she had bruising on the left side of her face, had sore ribs, her explanation at the hearing being that they were self inflicted injuries.

[29]     The defendant when spoken to by the arresting officer was asked “what happened with Renee today”.  Answer: “I don’t know”.  He said little more and did not make a statement.

[30]      Question:  “Why don’t  you  want to talk about it?”   A:  “I know nothing”.  No adverse conclusion can be drawn from Mr Kahi’s decision not to talk to the police officer nor from the defence declining to call evidence.

[31]     There can be reasons for complainants giving false evidence to the police about their partners with motivation varying from case to case.  At trial some of those complainants retract earlier untruthful complaints but there are many who retract truthful complaints, whether out of fear, loyalty, self blame, guilt or a wish simply to have, back in their lives, the man who is providing  financially  and emotionally  for  the  children  and  their  mother. Here there is no evidence of motivation for the complainant to make false accusations against the defendant.   It seems they were   together for some months, possibly up to 18 months, prior to the incident and despite the difference in age (47/25 at the time), they had a relationship which appeared to be working reasonably well.  The report to the police on this night was as a direct result of the alleged assault and the injuries sustained.

[32]      The thrust  of the  complainant’s  evidence  in court, as  far  as  her previous statement was concerned, was that she had been intoxicated and on drugs and caused her injuries to herself because of that intoxication and drug use, and the statement she made was completely false.  Constable Sen was cross examined at some length and did not waiver from his view that she was, in his view, not drunk, nor barely coherent as she suggested.

[33]      Much was made by Mr Nairn of the notes made by Constable Sen on the back of the statements which were apparently incorporated into the statement itself when it was typed.   What Constable Sen was doing was writing down points to be covered, was asking questions, was writing down the responses and then reading back the responses to the complainant.  He said he was writing down as close as he could what was being said and gave

the complainant the chance to comment.  He said that every time he made a mistake, she corrected him and he changed it.  This was not the action of a heavily intoxicated and drugged person he believed.  There were parts which were changed as they went along e.g. timing of events.   Mr Nairn asked about  the  time  period  being  10-15  minutes  and  not  the  5-10  minutes. Changes were made by the complainant in the interests of accuracy – ‘not the actions of a highly intoxicated, drugged person’ – Constable Sen.

[13]     Ultimately, the Judge concluded that:4

[37]      ... Renee’s evidence was not limited to occasional inconsistencies nor were the inconsistencies with her statement given at the hospital trivial and inconsequential.  She was, essentially, in the words of Justice Priestley in Penny v P [citation omitted], “… taking an axe in her evidence to attack her previous statement root and branch in its entirety”.   Her evidence was inconsistent with her previous statement in all its material facts.  She denied, initially, the signature on the statement and that the words in it were not hers, that she had never seen it before.  This changed as her evidence went on. This  was  evidence  that  she  was  giving  her  evidence  in  a  manner  that exhibited an intention to be unhelpful to the prosecution.

[38]      The evidence in the statement that she made to Constable Sen was in my view, what happened.  There was an argument.  She was punched.  She was held down.  She was hit.  She had injuries.  An ambulance took her to the hospital where she was interviewed.  The decision is not based on assumptions that Renee’s evidence change in Court was out of loyalty to Mr Kahi.  I am in the dark as to the intentions for their combined or separate lives.  She may have thrown bottles and other objects but the element of the charge is proven, that she was assaulted. What is in the statement is the truth in my view.  While not on oath and not tested at the time, there is sufficient in the statement combined with the injuries and photographs, to establish the elements of the charge beyond reasonable doubt. The charge is proved.

Grounds for appeal

[14]     The grounds of appeal given in Mr Kahi’s notice of appeal were simply that the learned District Court Judge had erred in fact and law.  No doubt that was in part because the notice appears to have been prepared (but not filed) before the release of Judge Recordon’s reasons.  No criticism can be made of that.

[15]     It is fair to say, however, that Mr Nairn did not assist his case by failing to file submissions in accordance with the Court directed timetable or, indeed, prior to the hearing at all.  Accordingly, neither the Crown nor the Court had advance notice of the numerous, more specific, grounds of appeal advanced by him at the hearing.

[16]     Putting such irritations to one side, however, his key submissions may be summarised as follows:

(a)       The Judge had erred in admitting into evidence the entirety of Ms

Karaitiana’s statement to Police and taking all of it into account;

(b)Because the statement was not admitted in its entirety until after Ms Karaitiana  had  given her evidence  Mr  Nairn  was  unable  to  cross examine her on all of it;

(c)      The Judge failed to isolate the relevant facts or the elements of the charge;

(d)The delay in giving reasons for finding the charge proved raised a question about whether the judge had merely tailored the reasons after the fact to justify the conviction;

(e)      On the basis of Ms Karaitiana’s evidence in Court the Judge should have considered whether a defence of self-defence was available to Mr Kahi;

(f)       Ms Karaitiana’s previous statement and her evidence in Court were

not diametrically opposed;

(g)The  judge  was  wrong  to  conclude  that  there  was  no  evidence  to suggest that Ms Karaitiana had a motive to make false accusations against Mr Kahi;

(h)      Aspects  of  the  Judge’s  reasons  suggested  that  he  had  taken  into

account evidence that was not before the Court;

(i)The Judge misinterpreted the use by Ms Karaitiana in her evidence of the term “self inflicted” to describe her injuries.  Mr Nairn said that the judge’s misunderstanding of what she meant by that term (which was simply that the injuries were caused accidentally, rather than by

Mr Kahi) caused the Judge to regard her evidence at trial as more improbable than it actually was;

(j)In finding the charge proved the Judge had put weight on the injuries suffered by Ms Karaitiana, when there was no evidence that any real injury had been suffered by her.

Approach to appeal

[17]     An appeal against conviction is by way of rehearing.  The appellate task is to be approached in accordance with the dicta of Elias CJ in Austin, Nichols & Co Ltd v Stichting Lodestar:5

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[18]     A degree of deference to the first instance Judge nonetheless continues to be not  only  appropriate  but  also  (on  some  occasions)  necessary  where  witness credibility is in play.

Discussion

[19]     Notwithstanding the Austin Nicholls approach, the difficulty with all of the grounds of appeal advanced on Mr Kahi’s behalf is that most of the alleged errors identified by Mr Nairn are of no moment if the Judge’s decisions, both to admit and to prefer Ms Karaitiana’s earlier statement that she had been hit by Mr Kahi, stand. By way of example only, Mr Nairn’s contention that there was evidence which gave rise to the possibility of self defence is only conceivably sustainable if Judge Recordon had rejected (on the grounds of either admissibility or credibility) Ms Karaitiana’s earlier statement to Police, and believed her evidence at trial.  But he did

neither.

5      Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

[20]     I have already indicated that Mr Nairn did not contest the admissibility of the earlier statement, insofar as it was inconsistent with Ms Karaitiana’s evidence at trial.  Nonetheless (and as the grounds summarised at [16](a) and (b) above make clear) he did seek to make something of the admission of the statement in toto and, more particularly of comments made by the Judge to  the effect that he had read and considered “all” of it, without giving Mr Nairn the opportunity to cross-examine Ms Karaitiana further.  But I do not consider that his submission advances matters.

[21]     First, I record my view that Mr Nairn’s interpretation of what the Judge said in this respect is a little too exacting.  The reality of the position was as stated by the Judge, namely that because he had already read the statement in its entirety, any process  whereby  the  irrelevant  parts  of  it  were  omitted  or  redacted  from  the document that was ultimately admitted in evidence would be an exercise in futility. In my view the Judge was more than capable of putting those inadmissible and irrelevant parts of the statement to one side.

[22]     The fact that the Judge did in fact put the rest of the statement to one side is, in my view, clear from the decision itself.  Significantly, Mr Nairn was not able to point me either to:

(a)      any part of the learned District Court Judge’s reasons in which he clearly  relied  on  or  took  into  account  a  matter  contained  in Ms Karaitiana’s statement other than those matters about which she was questioned; or

(b)any part of Ms Karaitiana’s statement (other than the parts upon which she was questioned) which might potentially have been prejudicial to Mr Kahi had it (covertly) influenced the Judge.

[23]     Accordingly I consider that there was no vitiating error by the Judge in relation to the admissibility of the prior statement.

[24]     The only real issue, therefore, is whether there is any basis for attacking the

Judge’s preference for Ms Karaitiana’s statement to Police over her evidence at trial.

The only submissions advanced by Mr Nairn that really engaged with that issue were:

(a)      his contention that the Judge wrongly disregarded the evidence that Ms Karaitiana was intoxicated while at the hospital and that her statement was therefore made up or unreliable; and

(b)his contention that the Judge was wrong to conclude that there was no evidence of Ms Karaitiana’s motive to lie when making her statement at the hospital.

[25]     As far as the first point is concerned, Ms Karaitiana’s own evidence was, of course, that she was drunk when she made the earlier statement.  Constable Thomas, who “attended the scene” (prior to the arrival of the ambulance) also said that, like Mr Kahi, she had been drinking.  He said “She was quite intoxicated also, but she was coherent”.

[26]     Under  cross-examination  by  Mr  Nairn,  Constable Thomas’s  view  of  Ms Karaitiana’s coherence could not be shaken. As the Judge noted, his evidence in that respect was backed up (and amplified) by Constable Sen, who spent considerably more time with Ms Karaitiana and who took the statement from her.  I can see no possible basis upon which I could reasonably differ from the Judge in his assessment of that evidence.

[27]     As far as the second point is concerned, Mr Nairn said that Ms Karaitiana had a motive to lie because she was angry with Mr Kahi.   That they were having an argument of some kind on the day in question is one of the consistent aspects of both her earlier statement and her evidence in Court.  The same argument also forms the backdrop to the allegation of assault by Mr Kahi.

[28]     It was not, directly put to Ms Karaitiana that she lied when making her statement because she was angry as a result of the earlier argument.  In fairness to Mr Nairn, however, that was no doubt because she had her own explanation about why the earlier was false, namely that she was drunk.  I suspect that if Mr Nairn’s

alternative hypothesis had been put to her she might well have adopted it.   But it does not really matter, however, because the Judge formed the view that none of what she said at the hearing was true.

[29]     In the end, I simply note that Judge Recordon was very careful to set out the basis for his finding that Ms Karaitiana’s account at trial was not credible and why he thought her earlier statement was the truth.   He did not simply rely on her demeanour, although it seems that there were aspects of it that were telling.   He supported his findings by reference to other evidence (including, in particular, Constable Sen’s assessment of her relative sobriety at the hospital) and the evidence of her injuries, albeit that they were at the very minor end of the scale.

[30]     Importantly, too, Judge Recordon has considerable experience in dealing with cases involving domestic violence and with the reasons that complainants in such cases may retract statements that they have earlier made.  He talked about that in his decision here.

[31]     As I have said, the upshot is that there is no basis upon which I can or would wish properly to depart from the Judge’s view that the truth about what happened on

11 October was contained in Ms Karaitiana’s statement to Police, rather than in her evidence in Court.  In that statement she said that Mr Kahi deliberately punched her. That is all that was necessary to find the assault charge proven.

[32]     The appeal is dismissed accordingly.

Rebecca Ellis J