Kay v Police
[2015] NZHC 3274
•17 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-347 [2015] NZHC 3274
REGINALD KAY
v
NZ POLICE
Hearing: 14 December 2015 Appearances:
M English and R Song for the Appellant
R Thompson for the RespondentJudgment:
17 December 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 17 December 2015 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Public Defence Service, Waitakere. Meredith Connell, Auckland.
KAY v NZ POLICE [2015] NZHC 3274 [17 December 2015]
Background
[1] On 20 October 2015, following a defended hearing in the Waitakere District Court, the appellant, Reginald Kay, was convicted of two charges of contravening a protection order, one of burglary and one of male assaults female in relation to an incident which occurred on 7 June 2015. He now appeals against those convictions.
Facts
[2] A summary of the allegations is as follows. The appellant is the ex-partner of the complainant. On the evening of 7 June 2015, he threw an object at the top window pane of the front door of the complainant’s home, causing it to shatter, in order to gain entry. He entered and approached the complainant.
[3] The appellant then grabbed the complaint and pinned her up against the wall. He then left the house and when the complainant followed him out, the appellant ran towards her, shouting at her. He pushed her, causing her to fall to the ground. He then left the property and began to walk onto the road.
[4] The complainant stood toward the end of the driveway to wait for the Police. He saw her and ran towards her. He punched her from behind on the side of her face.
[5] The complainant suffered cuts and grazes as a result of being pushed over. She also sustained swelling and cuts to her face as a result of being punched.
[6] At some point during the offending, the complainant called 111. A transcript of the call was put in evidence.
The District Court decision
[7] The Judge acknowledged that the matter boiled down to a factual issue with two competing versions of events.
[8] The case for the defence was that the evidence of the complainant was unreliable because her statements were at variance with her evidence in Court and so she did not tell the full story.
[9] The Judge was of the view that the complainant was in shock when she made her statement to the constable and that, despite the inconsistencies, she was firm as to the essential elements of the offences. The Judge made the following factual findings:1
The defendant became angry at having been asked to leave after an argument had escalated. He went outside then came back, I find, and broke the glass in the door, reaching and letting himself in, which was the burglary allegation, and then forced the complainant… up against the wall. He went outside again and when the complainant went outside, rather than tripping on the step as he would have it, he had struck her in the face from behind and forced her down, pushed her down onto the driveway, causing further injuries to her arm.
[10] The Judge took into account that aspects of the defendant’s version of events
were not put to the complainant. He explained:2
… but, of course, the failure to put the matter or the defence in detail is a matter of weight and I clearly take the point that if the witness was not challenged on those points, and did not have the opportunity to respond, it may be of less weight overall to the defendant’s evidence which was at odds with the complainant.
[11] The Judge noted that while the burden is on the prosecution, it does not mean that the prosecution has to prove every single fact:3
It needs, effectively, to prove beyond reasonable doubt and make me sure that the essential ingredients of the charge are concerned. I do not accept the contention of the defence that it was she that broke the glass of the door and effectively caused the injuries to herself when she slipped on the outside step or otherwise.
[12] The Judge’s view was that the complainant’s version of events was corroborated by the photographic evidence of her injuries, the broken glass door, and her distress which was obvious on the 111 call and when the Police arrived at the
address.
1 Police v Kay [2015] NZDC 20972 at [33].
2 At [34].
3 At [35].
Submissions
[13] In relation to the burglary charge, Mr English, for the appellant, submits there was a high level of confusion about what had happened and, as such, the charge of burglary had not been proved beyond reasonable doubt.
[14] In relation to the other charges, Mr English submits that the complainant’s evidence of what happened was inconsistent with what could be heard on the recording of the 111 call to emergency services. Mr English submits that, given the
111 recording provides no support for the complainant’s allegations that the appellant pushed her over and punched while on the phone to emergency services, her evidence was not credible. In contrast, the appellant gave a consistent account of what happened and it therefore cannot be proved beyond reasonable doubt that the complainant was more credible, Mr English submits.
[15] Mr English refers to the Judge’s concern that some of the appellant’s evidence was not put to the complainant (those were that the appellant was still at the house with consent; the complainant pulled him off the couch; and that she stopped him from leaving). In Mr English’s submission, the Judge placed too much weight on the failure to put the case to the complainant and, in any event, Mr English disputes there were a need to put peripheral matters to her. The Judge simply discounted the entirety of the appellant’s evidence on the basis that those matters were not put, says Mr English.
[16] Ms Thompson, for the respondent, submits the essential elements of the burglary charge were proven beyond reasonable doubt and there was no confusion in that regard. She accepts that there is an inconsistency in the complainant’s evidence as to when the 111 call was made but, in her submission, the recording of the call indicates that it was made after the door was smashed as no sound of glass breaking can be heard in the recording. In Ms Thompson’s submission, the complainant’s evidence is corroborated by the photographs of the smashed front door and the inconsistency is immaterial.
[17] In relation to the other charges, Ms Thompson accepts that the complainant was inconsistent about when the Police were called in relation to the assaults. Again,
this was not material as she was otherwise consistent about the features of the incident, she says.
[18] Ms Thompson submits the complainant’s version of events is corroborated by the photographs of her injuries, in particular, that there is a photograph of the complainant with a red abrasion on her left cheek, consistent with being punched to the side of her face; and there is a photograph of the complainant’s left arm showing redness and scratching, consistent with the arm being used to break her fall onto the concrete.
[19] As well, there is the evidence of Constable Robert who had overheard the appellant say, in response to why he was at the police station, that he “fucked up my missus again”. In evidence, the Constable stated that he was directly behind the appellant when he said this and that he recorded the comment immediately in his notebook. In cross-examination, Constable Roberts rejected the proposition that he had misheard what was said. In Ms Thompson’s submission, there was therefore sufficient evidence for the Judge to find the assault charge proved beyond reasonable doubt.
[20] Ms Thompson refers to the Judge’s criticism of matters not being put to the complainant and, in her submission, this did not affect the outcome of the decision. The Judge correctly admitted the evidence under s 92(2)(b) of the Evidence Act, she says.
Approach to appeals
[21] Section 229 of the Criminal Procedure Act 2011 sets out the right to appeal against conviction.
[22] Under s 232(2)(b) and (c), the High Court can only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason”.
[23] “Miscarriage of justice” is defined in s 234( 4) as:
… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[24] Not every error or irregularity causes a miscarriage of justice. The error or irregularity must lead to either of the consequences listed in subparagraphs (a) or (b) of s 234(4). The errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court “must quash the decision.”
[25] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.” This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.
[26] An appeal against conviction proceeds by way of rehearing. I am, therefore, required carefully to consider all matters which were before the Judge, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgment.
[27] Generally an appellate court will defer to findings of credibility made by the court below where that court has enjoyed the advantage of seeing and hearing the witnesses and the findings cannot be shown to be plainly wrong.4
Analysis
[28] I consider this appeal in three parts:
(a) whether, on the burglary charge, the inconsistency between what the complainant said in the 111 call, her statements to the Police, her
evidence in chief and in cross-examination resulted in an error in the
4 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [76], [83], [84]. Austin, Nichols & Co Inc v
Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5], [13].
Judge’s assessment of the evidence to such an extent that a miscarriage of justice occurred;
(b)whether the alleged inconsistency between what was said in the 111 call, her statements to the Police, her evidence in chief and in cross- examination, on the other charges, resulted in an error in the Judge’s assessment of the evidence to such an extent that a miscarriage of justice occurred; and
(c) whether the way in which the Judge considered matters not put to the complainant resulted in an error in the Judge’s assessment of the evidence to such an extent that a miscarriage of justice occurred.
The burglary charge
[29] In the 111 call, the complainant is recorded as saying:
He just smashed my window and tried to run away
[30] In the Police statement, she said:
I heard kicking on the front door…. I opened the front door soon after and looked out. I saw him walking back towards the front door. I shut and locked the front door and backed away. The next thing I remember was the glass pane in the front door shattered. I could only see one male being [the appellant]. He has approached the front door, reached in with his left hand and unlocked the door. He opened the door and walked towards me.
[31] In evidence in chief, she said the appellant was at the address prior to the incident; he was asked to leave and he did. He came back to the door, pulled out a fuse from the power box, smashed her front door, entered by reaching the door handle and had her up against the wall.
[32] In cross-examination, the complainant was asked:
Q: You talked about [the appellant] breaking the window, was [the 111 call]
before or after [the appellant] broke the window? A: During.
Q: While [the appellant] was breaking the window?
A: Ah when he was kicking the door actually.
[…]
Q: So your evidence is that he broke the window while you were on the phone?
A: Yes.
[33] After the recording of the 111 call was played to the Court, the complainant was cross-examined as follows:
Q: … there’s no indication is there of the time when you say he came into
the house and pinned you against the wall, is there?
A: No.
Q: No, because that didn’t happen did it?
A: Not at the same time I was on the phone, no.
[34] Mr English accepts that, when she gave evidence, the complainant said that the door was not smashed when she was on the phone to emergency services although at another point in her evidence she said that it was and that was what she had said in her statement to the Police.
[35] The issue in this appeal, of course, must focus on the elements of the offence which are:
(a) the appellant entered the complainant’s house;
(b)the appellant had no authority to enter the house or remained in the house without authority; and
(c) the appellant entered with the intention of committing a crime in the house or remained in the house without authority and with intent to commit an offence
[36] I agree with the Judge that the complainant’s evidence in relation to these essential elements was consistent throughout her statement to the Police and in evidence.
[37] The Judge determined the sequence of events, as follows: (a) the appellant was at her house;
(b) the appellant then left the house;
(c) he returned to the house and smashed the door; (d) he reached in and unlocked the door;
(e) he entered into the house; and
(f) he pinned her up against the wall.
[38] In the Judge’s view, the complainant was “firm” as to the essential elements of the offence. I agree.
[39] Turning to the issue of inconsistency, I am not satisfied this leads to the suggestion that the complainant’s version of the offending lacks credibility or is unreliable. Furthermore, there is supporting evidence. First, there is evidence to support the observation that the complainant was, at the time of the offending, in a distressed state and so it is understandable that her recollection of the sequence of events was confused. In cross-examination, Constable Love stated:
Initially when I arrived at the property she was distraught, had tears coming down her face, was quite emotional, did take quite a period of time to calm down. But I believed her emotional state at the time was sufficient to gain a statement from her.
[40] Secondly, I agree with the Judge’s finding that the complainant’s version of events is corroborated by the photographs of the damage to the door glass and the injuries she suffered.
[41] Mr English also criticises the complainant because, in her statement to the Police on the night of the incident, she simply said that she was not expecting anybody to visit that evening. She was not forthcoming about the fact that the appellant had earlier been at the house with her consent. Mr English suggests that
the complainant had lied in her statement to the Police and the Judge failed to take that into account. I do not accept that submission. Her statement concerned what happened around 10.30 pm that night. It is true she did not volunteer the fact that the appellant had previously been at the address with consent but that, in my assessment, does not amount to a lie and I take the point no further.
[42] My finding is that any inconsistency is immaterial and the Judge’s reliance on the complainant’s version of events did not result a miscarriage of justice.
Other charges
[43] The next question is whether the inconsistencies alleged by the defence to be present in the complainant’s version of events in relation to the other charges resulted in a miscarriage of justice. My observations above necessarily inform the issue.
[44] The appellant maintains that the 111 call directly contradicts the complainant’s evidence about being pushed on the concrete and punched. Mr English says that the complainant remained adamant when she gave evidence that both those assaults occurred when she was on the phone to emergency services. She was clearly wrong about that, in Mr English’s submission, and therefore, her evidence had to be discounted.
[45] Given the importance of the call to emergency services, I have listened to it a number of times. I am satisfied that, rather than detracting from the complainant’s evidence, it corroborates it.
[46] At the start of the call, page 1 of the transcript, there is a very long pause during which the transcript notes there was “inaudible shouting” by the complainant and an “unknown male noise”. During this period, it is clear that the male in the background is shouting but what he says is indecipherable. What the complainant says is also inaudible. That provides the context for what was recorded on the call, that is, despite the shouting, the quality of the recording is insufficient to enable what was said to be deciphered. What is clearly audible, however, is that, at this time, there is a small scream followed by the complainant requesting Police help and
saying “he just pushed me over on the concrete”. That is consistent with the complainant’s version of events rather than undermining it.
[47] The second relevant part of the recording is transcribed on pages 4 and 5 of the transcript. The complainant is clearly becoming increasingly concerned that the male is approaching her saying, “[h]e’s coming up towards me” and she then yells at him several times, “[g]o away, go away”. Then the transcript on page 5 records the complainant saying, “[g]o away. Oh, fuck off! He’s abusing me, can you get somebody here now…and he smashed my face with his hand”.
[48] The actual recording provides a different impression from the written word. The word “oh” is said separately from “fuck off” and is said with an expression of surprise. That is entirely consistent with the complainant being suddenly punched from behind which was what she said in her statement to the Police and her evidence. The words she spoke immediately after – “[h]e’s abusing me… and he smashed my face with his hand” – provides support for the complainant’s version of events.
[49] For these reasons, I am satisfied that the call to emergency services, rather
than completely undermining the complainant’s evidence, in fact, supports it. [50] What is required in respect of the charges is that the Judge was sure:
(a) On the charge of male assaults female:
(i) the appellant was a male and the complainant a female; and
(ii)the appellant intentionally applied force to the body of the complainant.
(b) On the breach of protection order charge:
(i)the appellant, at the material time, was subject to the protection order;
(ii) the appellant was aware of that protection order; and
(iii) the appellant breached that protection order.
[51] I am satisfied from the evidence that, first, the appellant grabbed the complainant and pinned her against the wall inside the house; secondly, the appellant pushed the complainant over onto the concrete; and thirdly, the appellant punched the complainant at the side of her face from behind.
[52] The photographic evidence of the complainant’s injuries (grazed arms, marks on the face) and the evidence of Constable Roberts are consistent with the complainant’s version of events. In Constable Roberts’ statement, he said he overheard the appellant say very quietly, “I fucked up my missus again” when he was at the police station. Constable Roberts said that he wrote down what he heard immediately in his notebook because the appellant said nothing the whole time and that was the only thing he heard him say.
[53] It is obvious that, in the circumstances, the appellant had breached the protection orders by physically attacking the complainant, being the protected person, and damaging her property without her consent.
[54] In light of these circumstances, I consider the Judge was correct to prefer the complainant’s version of events. He reminded himself of the standard tripartite direction which applies when a defendant elects to give evidence but concluded that he was sure the essential elements of each charge had been proved by the prosecution.
Matters not being put to the complainant
[55] The Judge made observations that particular parts of the appellant’s evidence were not put to the complainant and, the appellant submits, this unduly affected the Judge’s decision. In Mr English’s submission, the Judge discounted the entirety of the appellant’s evidence on the basis that these peripheral matters were not put to the complainant. However, from my reading of the decision, this was not the case.
[56] The Judge correctly considered the appellant’s evidence and he directed
himself properly as to the onus and standard of proof.
Conclusion
[57] I am satisfied there was no miscarriage of justice and the appeal is dismissed.
Thomas J
0
2
1