Keen v Police HC Auckland CRI-2011-409-000039

[2011] NZHC 643

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000039
CRI-2011-409-000043

CRI-2011-409-000044

DAMIEN ROBERT KEEN

Appellant

v

POLICE

Respondent

Hearing:         10 June 2011

(Heard at Ashburton)

Appearances: M Starling for Appellant

C Boshier for Respondent

Judgment:      15 June 2011

RESERVED JUDGMENT OF HON JUSTICE FRENCH

Introduction

[1]      Mr Keen appeals his conviction for injuring his wife with reckless disregard for the safety of others.

[2]      He was convicted by a District Court Judge following a defended hearing1

and sentenced to a term of imprisonment of 15 months.2

1      Police v Keen DC Christchurch CRI-2010-012-005822, 26 January 2011.

2      Police v Keen DC Christchurch CRI-2010-012-005822, 4 April 2011.

KEEN V POLICE HC CHCH CRI-2011-409-000039 15 June 2011

[3]      The key issue on appeal is whether the Judge erred in declaring Mrs Keen a hostile witness.

Factual background

[4]      On the evening of 9 November 2010 Mrs Keen had run to her neighbour’s house, crying and hysterical, saying “He hurt me, he hurt me” and also “He burnt me”.   The neighbour saw a burn mark on Mrs Keen’s back, which the neighbour described in cross-examination as about the size of a basketball.

[5]      While at the neighbour’s, Mrs Keen telephoned her father and was overheard

saying “He hurt me” and “It’s bad this time”.

[6]      The father called the police.  That night the police took a written statement from Mrs Keen.  In the statement she said that following a drunken argument:

Damien grabbed a can of hairspray and sprayed it onto the skin of my back. He sprayed it for a good length of time, two or three seconds, just on my lower back.  I just felt a hot sore pain on my back.  I presume he’d lit it with a lighter as we both smoke.  I ran out of my flat, down the road, until I found a house with a light on.  I ran down Hereford Street and then Tancred Street. He was following me and I was scared he was going to kill me.  I don’t want to really make statements though because of Damien.  I know what he can do.  Damien ripped my shirt, it’s completely torn.  Luckily the lady gave me this sweatshirt because my top’s all ripped.

[7]      A few weeks later, on 23 November 2010, Mrs Keen handed police a letter she had written saying that her previous statement was false.  The letter said the burn had been self-inflicted by deliberately sitting up really close to a heater, and that she had falsely accused her husband so as to pay him back for threatening to leave her.

[8]      While discussing the contents of the letter with a police officer, Mrs Keen told him that it was actually her husband’s ex-girlfriend, Heather, who had inflicted the burn.

[9]      It is common ground that this, however, was impossible, because Heather had not been at the house that night.

[10]     At  the  hearing,  the  police  called  Mrs  Keen  as  their  first  witness.    Her evidence was to the same effect as her letter, ie that the burn had been self-inflicted. The prosecutor started to ask her about the statement she had made to police on the night of the incident.  Defence counsel, Mr Starling, objected, but the Judge allowed it.  Mrs Keen was then taken through the contents of her statement.  She accepted she had made the statement, but said it was untrue.  The prosecutor applied to have her declared hostile.  The Judge asked Mrs Keen to identify the difference, as she saw it, between her evidence and the statement, and also asked her when she had told police the statement was untrue.  The transcript then records “Counsel Addresses the Court”, followed by “Legal Discussion”.  Mr Starling told me this consisted of him objecting to Mrs Keen being declared hostile on the grounds that the requirements of s 4 of the Evidence Act 2006 had not been satisfied.

[11]     The transcript then records the Judge as saying:

I should say that at the moment I shall consider that the witness is hostile and may be cross-examined.  Certainly not desirous of telling me the truth as…

(At this point the Judge adjourned the Court as the microphones were not working.)3

[12]     Following this ruling, Mrs Keen was cross-examined by the police prosecutor and Mr Starling, the latter getting Mrs Keen to produce her letter as an exhibit.  The Judge also asked her some questions about the heater.   He had noted from a photograph that it appeared broken.  Mrs Keen confirmed this, but claimed she had smashed it immediately after burning herself with it.   This was at odds, however, with her letter, which said that after she could not take the pain any more, she turned the heater off, waited for it to cool down and then ran out of the house.

[13]     After Mrs Keen had given her evidence, the police called the neighbour, as well as two police officers who attended the incident and the police officer who spoke to Mrs Keen about her letter.  One of the attending officers testified that while they were at  the Keens’ house, Mr Keen  returned, causing his  wife to become hysterical and suddenly uncooperative, saying “He’s gonna kill me.  Tell him it’s not

me that called police, I didn't want this.”

3      Notes of evidence, page 8, line 4.

[14]     The defence did not call any evidence.

[15]     In  his  decision,  the  Judge  said  he  found  Mrs  Keen  to  be  a  thoroughly unreliable witness, and continued:

[20]      … That is to say, what she has said, in evidence, occurred is not at all reliable.  However what she said to Ms Lupes [sic] [Ms Lups, Mrs Keen’s neighbour] and what she said to the police is an allegation that, in effect, her husband had burned her by setting fire either to her skin or to spray from a canister of hair preparation.   It is perfectly clear that hair preparation can produce “intense heat”.

[21]      Ms Lupes gives evidence of an allegation against Mr Keen.  So does a Constable Hensley and they are careful allegations.   So the question is whether  or  not  the  evidence  in  the  statement  to  the  police  satisfies  me beyond reasonable doubt that it was Mr Keen who did this.  It does.  The bar heater was broken.  It was not, in my judgment, broken after it was used in the way described by Mrs Keen.  It was broken when she lost her temper and started smashing things about the flat.  Consequently the condition in which it was found and which I have seen is incapable of causing any burn because, my judgment is that the heater does not work.  The upshot of all of this is that Mrs Keen did not, and I find beyond reasonable doubt, did not cause these injuries to her so who did?  It boils down to either being Mr Keen or Heather on her other allegation.   Well Heather was not there so it cannot have been Heather.

[22]      The conclusion I come to is that Mr Keen did cause the injury.  It was an injury, actual bodily harm as defined in the Crimes Act.  It must have been in Mr Keen’s mind that when he set fire, either to the jet of hairspray or to the back on which it had been sprayed, that this would cause an injury and he decided to do so regardless.  It is perfectly clear to me that Mrs Keen was terrified of Mr Keen and still is.

Grounds of appeal

[16]     Mr Starling advanced two grounds of appeal:

(a)      The Judge had  been  wrong to  declare Mrs  Keen  hostile,  and  her earlier statement to police should not have been admitted.

(b)Even if the statement was admissible, the Judge gave it excessive weight, failing to take into account her other explanations and/or the reasonable possibility that all three versions were untrue.

[17]     In contending that the Judge did not have a sufficient basis on which to declare Mrs Keen a hostile witness, Mr Starling submitted that the mere fact of there

being inconsistent statements was not in itself enough.  There was no evidence of coercion.  Mr Keen was in custody when Mrs Keen wrote her letter.  Nor was it a situation of Mrs Keen refusing to answer any questions or deliberately withholding information.  Up to the point she was asked about her earlier statement, she had been giving her evidence clearly and unhesitatingly.  Her testimony was fully consistent with her letter.   She also gave an explanation for making a false statement to the police.   In those circumstances, in Mr Starling’s submission, the Judge could not have been satisfied she was by words or conduct showing a lack of veracity.

[18]     Mr Starling was also critical of the process which had been followed.   He contended the Judge should not have allowed the prosecutor to put the previous statement to Mrs Keen without first hearing reasoned argument on the issue and making a formal ruling.  As it was, Mrs Keen was questioned about her statement so that the Judge got to learn of its contents before he made his ruling, even although the only basis on which it could have been put to her was if she were declared hostile.   Mr Starling said he was not afforded the opportunity to make any submissions other than registering an objection and the grounds for that objection, while the Judge gave no reasons for his decision declaring Mrs Keen hostile other than the passage I have quoted.

[19]     Essentially, Mr Starling’s complaint was that the Judge had been too quick to declare Mrs Keen hostile and admit the statement.  Mr Starling said it was important for Judges to exercise greater caution because the outcome of declaring a prosecution witness hostile can be extremely prejudicial to the defence, as it was in this case. The earlier statement in effect becomes the evidence, and cross-examination is rendered highly problematic.  The witness has said her prior statement is a lie, and so there is no effective means of cross-examination.

[20]     As regards the second ground of appeal, Mr Starling contended that even if the statement was admissible, the Judge erred in his analysis of the evidence by automatically assuming the statement was correct and placing excessive weight on it. Yet it was a statement that had been made by a woman who was a demonstrable liar, and there was no independent evidence to support it.  The neighbour’s evidence was consistent with either version.  Mr Starling also pointed out there was no medical or

other expert evidence that hairspray will in fact ignite off skin, while if it were the case that the lighter had been applied to a jet of spray mid-air, that would have resulted in a much more impressive and intense heat.  Having regard to the police officer’s description of the burn mark as being round and roughly the size of the bottom of a plastic water cup, Mr Starling submitted Mrs Keen’s statement was inherently  implausible.    There  was  accordingly  a  real  possibility  that  all  three versions of events given by Mrs Keen were false, which in the absence of any other evidence meant the police had not proved their case beyond reasonable doubt.

Discussion

[21]     Section 94 of the Evidence Act 2006 provides:

94      Cross-examination by party of own witness

In any proceeding, the party who calls a witness may, if the Judge determines that the witness is hostile and gives permission, cross- examine the witness to the extent authorised by the Judge.

[22]     A witness may only be declared hostile for the purposes of s 94 if the witness satisfies the following definition:4

hostile, in relation to a witness, means that the witness—

(a)       exhibits,  or  appears  to  exhibit,  a  lack  of  veracity  when  giving evidence  unfavourable to the  party who  called the witness  on  a matter about which the witness may reasonably be supposed to have knowledge; or

(b)       gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or

(c)       refuses to answer questions or deliberately withholds evidence

[23]     In this case it is not entirely clear whether the Judge relied on s 4(a) or s 4(b) or both.   His oral judgment at the conclusion of the evidence says the previous statement was admissible because “it was perfectly plain that Mrs Keen was not

embarking on a truthful account of what happened”.5   That statement, together with

4      Section 4, Evidence Act 2006.

5 At [6].

the comments made at the time of the ruling, indicate reliance on s 4(a), but I accept

Ms Boshier’s submission that it was equally capable of being s 4(b).

[24]     Section 4(b) makes it clear the fact of inconsistency is not in itself enough. The Judge must also consider the manner in which the inconsistent evidence is being given.  However, while inconsistency is not in itself enough, the degree and nature of the inconsistency is relevant to an assessment of manner.  This point was made by Priestley J in Penney:6

[32]      The clear application of the provision is to situations where a witness is giving evidence inconsistent with a statement made by that witness.   If there is no such statement the provision is inapplicable.   The focus then shifts to the manner in which the witness is giving the inconsistent evidence. In my judgment, although “manner” clearly covers such matters as the witness’s demeanour, the word has a wider ambit.   The nature of the inconsistencies is relevant to an assessment of manner.  Relevant too would be the frequency of inconsistencies and their centrality to a party’s case.

[25]     In this case, like Penney, there was obviously a radical inconsistency between Mrs Keen’s testimony and her statement.  It was also an inconsistency that went to the very heart of the police case.  Further, it appears from the Judge’s decision that he had noted eye contact between Mr and Mrs Keen while Mrs Keen was giving her evidence, which influenced his assessment she was not telling the truth.

[26]     In all those circumstances, I am satisfied that there were sufficient grounds for declaring Mrs Keen a hostile witness and for admitting her previous statement.

[27]     As regards process, I am unaware of any authority which requires a Judge to rule on the application, as it were, in a vacuum without knowing anything about the prior statement.   That would be quite unworkable and contrary to usual practice. Significantly, I note that in Penney Priestley J expressly states it would have been better for the District Court Judge in that case to ask the witness why she was adopting  the  stance  she  did  before  declaring  her  hostile,  not  afterwards  as  Mr Starling appeared at one point in his argument to be suggesting was the proper

course.

6      Penney v Police HC Auckland CRI-2008-404-000301, 4 December 2008.

[28]     In this case, what the Judge has effectively done is hold an informal voire dire before making his ruling.  The fact he was aware of the content of the statement before giving his ruling does not mean that he was incapable of putting the statement from his mind had he rejected the police application to have Mrs Keen declared hostile. That is a necessary consequence of a Judge alone trial. The statement would then  of  course  have  been  inadmissible  and  the  prosecution  case  would  have collapsed.

[29]     I accept that in a perfect world, as Ms Boshier put it, there should ideally have been detailed legal submissions.  However, I am satisfied their absence in this case  would  not  be  ground  for  appellate  intervention.    Mr Starling did  have  an opportunity to object, he did object and he did give the ground of his objection.  The Judge did not accept the objection, a decision that was undoubtedly open to him in the circumstances.

[30]   The mere fact that a witness has been declared hostile and a previous inconsistent statement admitted does not of course mean that the fact finder must find the prior statement is credible.   The fact finder is still required to assess and weigh all the evidence.  I am satisfied that is exactly what the District Court Judge has done in this case.  Mrs Keen’s other out of Court statements, her letter and the oral statement to the police on 23 November were also admitted in evidence and considered by the Judge.   As the passage from the oral judgment I have already quoted demonstrates, the Judge correctly identified the issue he had to decide and gave reasons why he considered the statement to police on the night was compelling. In this regard, the neighbour’s evidence was important, not only because of Mrs Keen’s demeanour and what she said, but also because of what the neighbour saw on Mrs Keen’s back.  Unlike the police officers, the neighbour saw the burn before it had received any medical treatment from the ambulance staff.

[31]     The findings which the District Court Judge made were ones which in my view were irresistible and which accord with commonsense.  They were made after seeing and hearing the witnesses.   I do not accept that the Judge has erred in his analysis of the evidence.

[32]     I am also unable to accept Mr Starling’s argument that there was no effective means of cross-examination.  He could have put to Mrs Keen that she had lied on every occasion and also questioned her about the plausibility of the burning process.

[33]     It follows from all of the above that in my view there are no grounds of

interfering with the Judge’s decision.

[34]     The appeal is accordingly dismissed and the conviction confirmed.

Solicitors:

M Starling, Christchurch

Crown Solicitor’s Office, Christchurch