Kovalenko v Police

[2012] NZHC 1184

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000014 [2012] NZHC 1184

BETWEEN  IVAN KOVALENKO Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         29 May 2012

Counsel:         H F Croft for Appellant

S A Bishop for Respondent

Judgment:      29 May 2012

ORAL JUDGMENT OF COLLINS J

[1]      The appellant was convicted in the Wellington District Court on 13 February

2012 of assaulting his wife.  The charge was laid under s 9 of the Summary Offences

Act 1981.

[2]      The events which resulted in the appellant’s conviction arose from a dispute between the appellant and his wife on 16 August 2011 at approximately 7.30am. The police case was that the appellant assaulted his wife in two distinct ways:

(1)       by slapping her four or five times with his hand;  and

(2)       by “flipping a cup of tea at her”.

[3]      The evidence which the District Court considered is recorded in 111 pages of transcript.

[4]      After considering the evidence the District Court Judge concluded:

KOVALENKO V NEW ZEALAND POLICE HC WN CRI-2012-485-000014 [29 May 2012]

(1)that  the  police  had  not  proven  to  the  requisite  standard  that  the appellant had slapped his wife;

(2)that  the  evidence  established  beyond  reasonable  doubt  that  the appellant had flung the contents of a cup of tea at his wife.

The appellant was therefore convicted and ordered to appear for sentence if called upon within six months.

Grounds of appeal

[5]      Ms  Croft,  counsel  for  the  appellant  in  this  Court  helpfully  distilled  the grounds of appeal to two issues, namely that:

(1)the appellant did not receive a fair trial because he was not able to adequately speak English;  and

(2)the District Court Judge misinterpreted the evidence concerning the trajectory of the contents of the teacup.

[6]      I will traverse the evidence in more detail when analysing each ground of appeal.

Procedure on appeal

[7]      Appeals of this nature are conducted as a general rehearing pursuant to ss 115 and s 119(1) of the Summary Proceedings Act 1957.

[8]      In Austin, Nichols & Co Inc v Stichting Lodestar, the Supreme Court said that when considering a general appeal from a decision of the Trade Marks Commissioner, the High Court is required to:1

... come to its own view on the merits.  The weight it gives to the decision of the Commissioner is a matter of judgment [sic].  If the High Court is of a

different view from the Commissioner and is, therefore, of opinion that the

Commissioner’s decision is wrong, it must act on its own view.

[9]      The Court went on to say:2

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 [sic].  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.

In the present appeal there was no basis for caution in differing from the assessment of the tribunal appealed from.  The case entailed no question of credibility.  It turned on a judgment [sic] of fact and degree, not the exercise of discretion entrusted to the tribunal.  We are of the view that the Court of Appeal was not correct to suggest that, because the decision turned on a value judgment [sic] apparently open to the Assistant Commissioner, “the High Court Judge ought not to have embarked on a reconsideration of the issue  without  considering,  and  giving  weight  to,  the Assistant Commissioner’s conclusion”.   The High Court Judge was obliged to reconsider the issue.   He was entitled to use the reasons of the Assistant Commissioner to assist him in reaching his own conclusion, but the weight he placed on them was a matter for him.

[10]     The same approach is required of the High Court when it hears a general appeal from the District Court.

First ground of appeal

The appellant’s rights

[11]     The first ground of appeal engages ss 24(g), 25(a), (e) and (f) of the New

Zealand Bill of Rights Act 1990 (BORA).

[12]     Section 24(g) of the BORA guarantees that everyone who is charged with an offence “shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court”.

[13]     Failure by the executive to honour that right risks breaching an accused’s minimum rights of procedure in a criminal trial.  Principally, an accused’s rights to:

(1)       “... a fair and public hearing by an independent and impartial court”

(s 25(a) of the BORA);

(2)       “... be present at [their] trial and to present a defence ...” (s 25(e) of

the BORA);  and

(3)       “... examine witnesses ...” (s 25(f) of the BORA)

risk being compromised if the right to a translator is not complied with.

What translation services were provided?

[14]     The appellant was born in the Ukraine.  His first language is Russian.  It is also, however, acknowledged that he has a “pretty good” command of English.

[15]     Prior to his trial in the District Court arrangements were made to have a translator present who could translate from English to Russian and vice versa.  No issue is raised about the calibre of the translator.

[16]     Both the appellant’s trial counsel and the District Court Judge were very sensitive to the need to ensure the appellant was not disadvantaged because he speaks English as a second language.   The following extracts from the transcript illustrate the steps that the appellant’s trial counsel and the District Court Judge took to ensure that the appellant had access to an appropriate translator:

(1)      MS ANTUNOVIC:

May it please Your Honour, counsel’s name is Ms Antunovic and I am here for Mr Kovalenko.  He will be assisted today in Court by an interpreter,  Ms  Palmer.     Mr  Kovalenko  is  from  the  Ukraine originally.  His English is pretty good but he may need the assistance of the interpreter at points throughout the hearing.”3

(2)      THE COURT:

Now just before we resume can I just check that Mr Kovalenko does not  require  any  interpretation  so  far  because  I’ve  seen  that  Ms Palmer hasn’t really been speaking to him.

MR KOVALENKO:

Yes, I’m fine thank you Sir.4

(3)      MS ANTUNOVIC:

Sir, perhaps at the outset I could just indicate that if Your Honour is having trouble understanding Mr Kovalenko perhaps then we could use the services of the interpreter.

THE COURT:

I’ll let you know.5

(4)      THE COURT:

... Mr Kovalenko I’m finding your accent a little bit strong. I’m just wondering whether it might help everybody if you spoke in Russian.   Would be easier to speak in Russian and then the interpreter could interpret that to the Court.  So I do think that everyone here is finding it ... finding it a little bit difficult to follow.

MS ANTUNOVIC:

Well I certainly have had contact with Mr Kovalenko so I’m aware of it but I could understand from someone who hasn’t heard him before that it would be difficult.

...

THE COURT:

... I also think that the circumlocution of the answers I think might be improved if he spoke in Russian ...6

WITNESS:

Yes, I would just like to say that this will be more complicated for me, more difficult straight away to switch too much from two languages.   It should be better if only the part which is not clear really I can enlist   interpreter otherwise it will be more difficult actually.  For me it’s more sort of ...

4      At 25.

5      At 58.

THE COURT:

Perhaps make your answers ...

Just think about the answer and then make it shorter.  Okay, we will try it that way.7

[17]     At the conclusion of the hearing arrangements were also made between the appellant’s trial counsel and the trial judge for the translator to return to the Court when the trial judge was to deliver his oral judgment.

[18]     The transcript and submissions of counsel for the appellant establish:

(1)That an appropriately qualified and competent translator was made available to the appellant.

(2)The  interpreter  sat  next  to  the  appellant  and  assisted  him  when required.

(3)The appellant was reluctant to use an interpreter when he was giving evidence because it would be difficult for him to think in two languages at once.

[19]     In addition, my reading of the transcript leaves me in no doubt that although there were some passages of the appellant’s evidence that were a little confusing, he appears to have given his evidence in English in a coherent way that was capable of being understood by any judicial officer.

[20]     It is also clear from the passages of the transcript set out above that both the appellant’s trial counsel and the District Court Judge were conscious of the need to ensure that the appellant took advantage of the translation services available if he wished to do so.

Were the appellant’s rights breached?

[21]     Notwithstanding  these  efforts,  the  appellant  now  submits  that  this  Court cannot be satisfied that the appellant did receive a fair trial.  It is submitted that this Court could never know if the appellant’s decision to decline the services of the translator meant that he:

(1)       was not fully appraised of all the evidence;  and

(2)       that he failed to present his case in the best possible way.

[22]     The  appellant  relies  on  the  Supreme  Court  judgment  in  Abdula  v  R8   to support his appeal.  In that case the Supreme Court was concerned about the quality of translation services.  The appellant in that case spoke Oromo.  He had a limited command of English.  The only certified translator of Oromo who was available was brought  to  New  Zealand  from Australia  to  conduct  translation  from  English  to Oromo for the appellant and his co-accused.  Issues arose about the style and quality of the translation.  Ultimately the Supreme Court held that the appellant’s right to access to a translator guaranteed by s 24(g) of the BORA was not breached.  It was notable that in Abdula the appellant was not able to identify any part of the trial that he did not comprehend.

[23]     The purpose of the right to a translator codified in s 24(g) of the BORA is to ensure that an accused sufficiently understands all aspects of their trial to enable them to properly engage in the proceedings to the extent that they wish to do so.  It was made very clear in Abdula that the translation provided need not be perfect.

[24]     In the present case the executive provided the appellant with appropriate translation services.   Accordingly the right set out in s 24(g) of the BORA was complied with.

[25]     Notwithstanding the finding that s 24(g) of the BORA was complied with it is

necessary to also determine if there was still a breach of the appellant’s fair trial

rights because he did not take full advantage of the translation services that were available.  In my judgement this aspect of the appellant’s case cannot succeed for the following reasons:

(1)As with the appellant in Abdula, the appellant in the present case is unable to identify any part of the trial that he did not understand, or that there were parts of his evidence that were not understood by the trial judge.

(2)Having carefully perused the transcript I am unable to identify any deficiency in the way in which the trial proceeded.   In particular, while there are parts of the appellant’s evidence that are a little confusing, it is clear that he was not disadvantaged in the way he gave his evidence.

(3)The trial judge’s alertness to the need to ensure the appellant was not disadvantaged is illustrated by the fact that when the appellant used the word “discipline” to describe his motives for remonstrating with his wife the trial judge sought from the translator a clear explanation of what the appellant meant. The trial judge said in his judgment:9

Now, to English language speakers, the word discipline sounds alarming because it generally involves the use of force.  Nevertheless, Ms Palmer, the Russian interpreter, told the Court that discipline in Russian means to reason with.  I accept  this  explanation  and  by  “discipline”  you  meant “reason with” and not “apply force to”.

This passage demonstrates that the trial judge was taking every precaution to ensure that the appellant was not disadvantaged by reason of the fact that English is not his first language.

(4)It was the appellant who declined the use of the translation service made available to him.   His decision appears to have been rational,

informed and voluntary.10

9      Police v Kovalenko DC Wellington CRI-2011-085-3898, 2 February 2012 at [20].

10     See Police v Kohler [1993] 3 NZLR 129 (CA) at 133.

[26]     For these reasons, the appellant’s rights under s 25(a), (e) and (f) of the

BORA were honoured.

Conclusion

[27]     The first ground of appeal must fail.   The appellant had made available to him the translation services required by s 25(g) of the BORA.  Furthermore, there was no breach of s 25(a), (e) and (f) of the BORA caused through the appellant’s failure to take full advantage of the translation services that were made available to him.

Second ground of appeal

[28]     The second ground of appeal was advanced on the basis that it carried less weight than the first ground of appeal relied upon by the appellant.

[29]     The appellant’s defence at his trial was that tea was accidentally spilt from a teacup onto a placemat and that the appellant’s wife then shook that tea onto herself. That evidence was difficult to reconcile with the observations of the police who visited the scene and described tea stains on the dining table near the appellant’s wife and  approximately  1.5  metres  away  on  a  cabinet.    The  District  Court  Judge considered that the tea’s trajectory was indicative of the use of force which produced velocity that could only have been explained through the contents of the teacup having been thrown.

[30]     In this Court the appellant raises an issue as to where he was standing in relation to his wife at the time the contents of the teacup came in contact with her. That explanation was however never raised in the District Court and is impossible to reconcile with the appellant’s explanation in the District Court that he accidentally spilt tea onto the placemat in front of his wife.

[31]     Having carefully reviewed the evidence before the District Court Judge I am in no doubt that the District Court carefully scrutinised all relevant evidence and reached the only rational conclusion that was available to him.

[32]     Accordingly, I am left with no option other than to conclude that the District Court Judge was correct when he decided on the evidence produced in the District Court that the appellant deliberately threw the contents of a teacup at his wife.

[33]     The second ground of appeal must therefore also be dismissed.

D B Collins J

Solicitors:

Helen Croft, Wellington for Appellant

Crown Solicitor, Wellington for Respondent