Matika v Police
[2014] NZHC 1127
•26 May 2014
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2014-425-000019 [2014] NZHC 1127
JASMINE MATIKA
v
NEW ZEALAND POLICE
Hearing: 26 May 2014 (via audiovisual link to Christchurch) Appearances:
G S Williamson for the Appellant
M-J Thomas for the RespondentJudgment:
26 May 2014
ORAL JUDGMENT OF PANCKHURST J
Introduction
[1] This is in form an appeal against a decision declining bail after a witness was held in contempt of Court and sentenced to six weeks’ imprisonment. For reasons which will become apparent, however, it is now an appeal against sentence and I will deal with it on that basis.
The facts
[2] Ms Matika was called as a witness in relation to charges of male assaults female and a further charge of intentional damage. These charges were laid against her partner. I have referred to her as a witness, but in fact she was also the complainant in the case.
[3] In brief, the police case was that a domestic dispute occurred on 25 August
2013. Ms Matika discovered some text messages on her partner’s phone and
MATIKA v NEW ZEALAND POLICE [2014] NZHC 1127 [26 May 2014]
questioned him about them. She was tackled onto a bed, pinned and held on the bed, with the consequence that her breathing was affected. She was also punched to the head. Following this, she got into a motor vehicle, but was assaulted again and the car was damaged in the course of the struggle which ensued at that point.
[4] Turning to the events in Court, I have a description of what occurred in the decision of Judge Turner, who dealt with the matter last Friday afternoon, 23 May, and imposed the sentence for contempt. He said this:1
[3] When the case commenced the prosecutor called the first witness, … Ms Matika. She was sworn and gave her name and address. In answer to the very first question from the prosecutor, namely whether it was correct that she and the defendant had been in a relationship, the witness replied to the effect: Your Honour, I have had nine months to consider the matter and by reason of [my] Christian beliefs [I will] remain mute and not answer any questions. I then explained to her that whilst I appreciated her values she had a civic and legal obligation to answer questions directed to her by the prosecutor, defence counsel, or myself unless I decided the questions were irrelevant or for some other reason inappropriate. I explained to her that failing to answer questions would be considered contempt of Court which could render her liable to a term of imprisonment for up to three months. I asked her to reflect on her position and indicated I would stand the matter down to enable her to speak to a duty solicitor if she wished to do so.
[4] Ms Matika declined to respond to me despite various requests and it became clear to me that her decision to be mute extended to any questions from the Court. Accordingly I found her in contempt of Court and had her taken to the cells and directed that a duty solicitor see her. That was just prior to the luncheon adjournment.
[5] The balance of the decision refers to the Judge seeing Ms Matika again at
2.45 pm, but at that stage further time was required. He ultimately finally dealt with the matter that day at 4.00 pm. His notes record that Ms Matika apologised for her actions, but that her resolve to answer no questions remained. He therefore imposed a sentence of six weeks’ imprisonment.
[6] Ms Matika was taken into custody but detained at the Invercargill Police Station, as there is no female prison facility in the Invercargill area. Ordinarily, she would have been moved to Christchurch Women’s Prison, but in the event she
remained in police custody over the weekend.
1 Minute of Judge Turner, New Zealand Police v Tawaroa-Dixon, 23 May 2014.
[7] I note that Ms Matika is aged 20 years, a mother of a baby aged six weeks who is being breastfed. I also note that she has no previous convictions.
[8] Despite an initiative to have a bail hearing over the weekend, this did not eventuate. However, this morning the hearing of the case against Ms Matika’s partner resumed in the District Court. She was called to give evidence and I am informed by Mr Williamson, her counsel in this Court, that she gave evidence as expected in terms of her witness statement. I further understand that the case itself is still proceeding in the District Court as I speak.
Evaluation
[9] Apparently the issue of the currency of the sentence, whether it should remain in place, was not considered. In my view this should have been the course adopted in light of her purging the contempt and giving evidence this morning. I assume that the District Court Judge considered that the sentence he had imposed on Friday must remain. He probably knew of the bail appeal and hence that, at least to that degree, this Court was seized of the matter.
[10] I turn then to the merits of the sentence itself, as opposed to whether bail pending resolution of the case is appropriate. Ms Thomas has rightly drawn attention to relevant provisions in the Criminal Procedure Act 2011. Section 365 provides for contempt of Court. Subsection (1)(c) provides that any person commits a contempt if they wilfully and without lawful excuse disobey any order or direction of the Court in the course of the hearing of any proceeding.
[11] Ms Matika was, technically at least, in breach of that subsection, in that having had the situation explained to her by Judge Turner, she nevertheless confirmed her decision to remain mute and not to answer any questions as a witness. This, I accept, was to disobey a direction of the Judge.
[12] However, as Ms Thomas accepted, s 165 of the Act was directly in point and should have been the section utilised in the circumstances of this case. Section 165 relevantly provides:
165 Witness refusing to give evidence may be imprisoned
(1) At any hearing any person present in court who could have been compelled to give evidence for the party seeking to call the person as a witness may be required to give evidence, whether that person has been summoned to give evidence or not.
(2) Subsection (3) applies if a person—
(a) without offering any just excuse refuses to give evidence when required; or
(b) refuses to be sworn; or
(c) having been sworn refuses to answer any questions concerning the charges that are put to him or her.
(3) If this subsection applies, the court may—
(a) order that, unless he or she consents to give evidence or to be sworn or to answer the questions put to him or her, as the case may be, he or she be detained in custody for any period not exceeding 7 days; and
(b) issue a warrant for his or her arrest and detention in accordance with the order.
…
(5) Subsection (6) applies if a person detained under subsection (3), on being brought up at the adjourned hearing, again refuses to give evidence or to be sworn or, having been sworn, to answer the questions put to him or her.
(6) If this subsection applies, the court, if it thinks fit, may again direct the witness to be detained in custody for the period referred to in subsection (3), until he or she consents to give evidence or to be sworn or to answer as described in subsection (2).
(7) The power in subsection (6) may be exercised more than once.
[13] I am satisfied that the necessary course in this case was to invoke this section and impose a sentence of no more than seven days’ imprisonment. While this was an example of wilful disobedience on the part of a witness, it was an instance where there were no aggravating features. To the contrary, is it apparent Ms Matika was generally respectful of the Judge, behaved properly throughout, save for the fact she was not prepared to give evidence and remained mute in response to questions.
[14] Whilst I have accepted that she was probably, at least technically, in contempt as defined in s 365, it was nonetheless a plain and simple case of a witness refusing to give evidence in terms of s 165. This is not to say there may not be cases where it is appropriate to have regard to s 365 where the behaviour of the witness comprises much more than simply a refusal to answer questions, but that is certainly not this case.
[15] The second problem that now exists is the need to have re-evaluated matters once Ms Matika gave evidence, regardless of the fact that there was a bail appeal pending in this Court. Section 165 enables a Judge to impose a sentence not exceeding seven days, but it is also competent for the Judge to impose a sentence of up to seven days, which sentence will remain in place until such time as a witness purges the contempt. This is a course which was recognised, and approved, by the
Court of Appeal in Siemer v Solicitor-General.2
[16] Even had he not imposed the sentence in that fashion I consider that the Judge had jurisdiction to revisit the sentence and reduce it, or alternatively to waive the balance of the sentence, in light of Ms Matika changing her ways and deciding to give evidence. As that was not done in the District Court, I propose to do it in this Court. This meets the situation. The course of justice has been served. Evidence has been provided upon pain of further detention. The purpose of s 165, as confirmed in subs (6), has been achieved.
Result
[17] I therefore allow the appeal, quash the balance of the sentence and direct that
Ms Matika is entitled to be discharged immediately.
[18] Again, I sound a caution in that there may be cases where the behaviour of a witness, despite a subsequent purging of the earlier failure, will still make it
2 Siemer v Solicitor-General [2009] NZCA 62, [2009] 2 NZLR 556.
appropriate for the balance, or part of the sentence, to be served. But this is not such a case, particularly when her situation as a mother and her conduct in Court last Friday is taken into account.
Solicitors:
Malcolm McKenzie Law Ltd - Hewat Galt Lawyers, Invercargill
Preston Russell Law, Invercargill