Mihaka v Police

[2015] NZHC 1318

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-21 [2015] NZHC 1318

BETWEEN

TE RINGA MANGU NATHAN

MIHAKA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 June 2015
Counsel:	N Bourke for Appellant A R T Garrick for Respondent
Judgment:	11 June 2015

JUDGMENT OF SIMON FRANCE J

[1]      Mr Mihaka appeals a decision of the District Court finding him guilty of assault.  He also appeals a sentence of 80 hours’ community work.1

Facts

[2]      Mr Mihaka and the complainant lived in separate flats in the same building. One Sunday afternoon Mr Mihaka misplaced his keys.  The complainant invited him in,  and  offered  him  a  place  to  stay  for  the  night.    Wine  was  consumed  and Mr Mihaka went to sleep on the couch.  This much is agreed.  Thereafter the stories

depart.

1      NZ Police v Mihaka [2015] NZDC 6404.

MIHAKA v NZ POLICE [2015] NZHC 1318 [11 June 2015]

[3]      The complainant says he woke first, and as is his habit made coffee.   He touched Mr Mihaka on the shoulder to say coffee was being made, put two cups on the table and sat in his chair.   He says Mr Mihaka got up and came over to him. Mr Mihaka then put his hands around the complainant’s throat and tried to throttle him. The complainant feared for his life, but managed to break the hold.  Mr Mihaka then left.   There was photographic evidence supportive of the proposition that the complainant, the next day, had some bruising on his throat.  The police officer who took the photo said it was yellowish bruising.

[4]      Mr Mihaka’s version is different, albeit somewhat inconsistent.  He declined to make a pre-trial statement, represented himself at trial and gave evidence.   His position emerges from cross-examination of the complainant, through his evidence and through exchanges with the Judge.

[5]      Mr Mihaka denied strangling the victim, and denied putting his hands around the man’s throat.   He variously says that the complainant punched him, or put his hand on Mr Mihaka’s chest, or tapped his shoulder.  He later generalised this to a claim that the complainant assaulted him first, and then under questioning from the bench said it was a punch to the shoulder with a closed hand.

[6]      Mr Mihaka later said it was a tap but the clear gist of his evidence was that it occurred when waking and he thought it an assault.  Mr Mihaka says he pushed the complainant away and left, annoyed at his attitude.  He said, in cross-examination, he knew the difference between a friendly pat and something more, and this was the latter.

Decision under appeal

[7]      As is evident from the preceding outline, the context for the decision was two quite diverse versions.  There was common ground that the complainant touched (in some way) Mr Mihaka on the shoulder while he was lying on the couch. Thereafter:

(a)       the complainant says he moved and sat down, Mr Mihaka approached him and immediately began choking him;

(b)Mr Mihaka says he regarded the touch as an assault, he pushed him away and left. There was no choking.

[8]      The Judge approached the matter by first assessing Mr Mihaka’s credibility.

His testimony was assessed as unworthy of belief.  Four specific reasons were given:

(a)       the    vagueness     of    Mr Mihaka’s     accounts,    and    the    internal

inconsistencies;

(b)it was an implausible story, and not one Mr Mihaka had previously raised;

(c)      Mr Mihaka called a police officer to give evidence about allegedly having said to Mr Mihaka that the victim had no injuries and that prosecution was unlikely. The witness denied saying this;

(d)      an independent police officer saw bruising on the victim’s throat.

[9]      Given   that   Mr Mihaka   was   not   believed,   the   Judge   considered   that self-defence, if raised at all on the facts, was disproved beyond reasonable doubt. The complainant was then assessed as credible, and the case held to be proved.

Appeal

[10]     The primary ground of appeal is that the Judge did not properly direct herself on the elements of self-defence and accordingly failed to adequately consider the defence.   In particular, there was no initial identification of the circumstances as Mr Mihaka believed them to be.  This is submitted to have resulted in the defence being wrongly rejected.

[11]     The  respondent  submits  the  Judge  was  entitled  to  assess  Mr Mihaka’s credibility.     That  having  been  done,  there  remained  no  narrative  to  support self-defence.  It was, therefore, not an error to not address the specific elements of the defence.

Analysis

[12]     The starting point for the appeal is that there is no basis on which I might take a different view of the Court’s credibility findings in relation to the two key players.   Obviously the conclusions that Mr Mihaka was unreliable and that the complainant was reliable are interdependent to a certain extent.  If Mr Mihaka was considered reliable, there would inevitably have been a doubt about the choking having happened.   While there are aspects of the Court’s reasoning in relation to Mr Mihaka’s  credibility  concerning  which  I  have  reservations,  ultimately  the inconsistency in his accounts, and his denial of the reality that pressure was applied to the complainant’s throat, mean the Court’s credibility conclusions are consistent with the key facts.

[13]     The points where I doubt the credibility analysis relate to the Court’s reliance on Mr Mihaka’s pre-trial silence, and the significance of the defence witness (the police officer) not coming up to defence expectations.   Addressing the latter, presumably Mr Mihaka thought the police officer would agree with him.  Otherwise he would not have called him.  Although the witness did not agree, he did not say anything damaging to Mr Mihaka.  All that occurred is that there was an absence of support which Mr Mihaka expected to have.  It is legitimate for the Court to note that there is no objective support for Mr Mihaka’s claim that there was no choking.  But of itself, the witness not agreeing with Mr Mihaka does not undermine Mr Mihaka’s own evidence.

[14]     The  second  aspect  is  the  Court  placing  weight  on  Mr Mihaka’s  pre-trial silence when assessing the credibility of the claim of self-defence.   The right to silence is enshrined in s 23(4) of the New Zealand Bill of Rights Act 1990 which further requires that an arrested person be informed of this right.  In addition, s 32 of the Evidence Act 2006 says that a fact finder may not be invited to infer guilt from the exercise of this right.  The question arises, nevertheless, whether the failure to previously disclose a defence may be a factor taken into account when assessing a defendant’s credibility.

[15]     The traditional position is that set out in R v Coombs:2

… In some cases, both in England and in New Zealand, it has been said that there  is  a  clear  distinction  between  drawing  an  inference  of  guilt  from silence and taking prior silence into account as diminishing the weight of any explanation given by the accused for the first time in evidence at the trial.   In R v Gilbert (1977) 66 Cr App R 237, 244, Viscount Dilhorne, delivering the judgment of a Court of Appeal of which Lord Scarman was also a member, saw no clear dividing line, as in each situation the jury are being invited to draw an inference adverse to the accused on account of his exercise of the right to silence. We respectfully agree that the distinction is often too fine to be of practical value in a jury trial. When the accused has made no prior statement, comment on the belatedness of an explanation advanced for the first time at the trial will usually not be fair unless his right to silence is also clearly explained and the jury are warned not to draw an inference of guilt from silence.

(emphasis added)

[16]     In this passage, although Cooke P notes it is a fine distinction, its legitimacy is not rejected.  What is required is a balancing by emphasising the right to silence. Further, the Court’s concern is plainly with the jury situation, from which I infer that it is less of a concern when used by a judge.  The qualification remains, however, that silence cannot be probative of guilt but is only relevant to the credibility of the defendant’s present testimony.  Section 32 of the Evidence Act does not seem to alter this position.

[17]     However, while it might be conceptually permissible for the Judge to use pre-trial silence in this way, I doubt its legitimacy here.  It is plain from the evidence that Mr Mihaka is not inclined as a matter of principle to make pre-trial statements. There was nothing in the relatively low key nature of the circumstances and inquiries to suggest to Mr Mihaka that his jeopardy was significant, and that it would be wise to disgorge his explanation.  Mr Mihaka knew of his right to silence and exercised it. He did not make any statement inconsistent with his testimony, and might equally have thought it was just a matter not worth worrying about.  He was not asked in evidence to explain why he did not give this self-defence explanation earlier, and accordingly I am of the view that the circumstances do not support it being a matter

which undermines his credibility.

2      R v Coombs [1983] NZLR 748 at 751–752. See also R v Ryan [1973] 2 NZLR 611 where it is said to be “quite proper” for a Judge to comment upon the fact that an explanation has been given for the first time.

[18]     Despite these two doubts, I remain of the view there is no basis on which to doubt the Judge’s assessment of the complainant, itself reached against the background of Mr Mihaka’s vagueness and inconsistency, and the objective evidence of bruising on the complainant’s throat.  The analysis of self-defence must therefore proceed on the basis that the force in issue was a throttling of the victim, done a short time after any contact, and whilst the victim is sitting in a chair.

[19]     Once the context is set out in this manner, the difficulties for the appellant in successfully making out self-defence are apparent.  Assuming in his favour that he awoke and thought himself the victim of an assault (the circumstances as he believed them to be), there is nothing thereafter in the narrative that supports a claim of acting in self-defence.  On his own version, having pushed the complainant aside, he could readily leave.  But the evidence is that he got up, walked across to a seated victim and began throttling him.  There is no basis on which one could find this to be acting in defence of himself, or with reasonable force, even picking the most favourable option (to Mr Mihaka) concerning the force of the contact made on him by the complainant.

[20]     I accept Mr Bourke’s point that self-defence was raised on the facts.  It was common ground there was initial contact by the complainant, and evidence from Mr Mihaka that he considered it was not friendly contact but an assault.  However, the  complainant’s  version  of  the  nature  of  the  assault,  once  accepted,  makes self-defence unrealistic.  This is particularly so when the defendant does not accept that an assault by him in this form ever happened.  Whilst sometimes that can just be a question of degree, here the complainant’s version is inconsistent with any proposition of the assaulter acting in self-defence.

[21]     The conviction appeal is accordingly dismissed.

[22]     Concerning   sentence,   the   Judge   proceeded   to   sentence   Mr Mihaka immediately to 80 hours’ community work.  No reports were obtained, which is of itself not a concern given the level of the offending and the sentence imposed. However, taken with the fact that Mr Mihaka was self-represented, there is potential

for material not to be before the Court that might be relevant to the sentencing exercise.  It transpires that is what has happened.

[23]     I  am  advised  as  a  consequence  of  the  incident,  Mr Mihaka  has  lost  his accommodation and has been debarred for a year from reapplying for that sort of flat.  This is a significant penalty for a 73 year old and serves to make an otherwise orthodox sentence excessive.

[24]     In assessing the appropriate outcome, I recognise the offending would have been traumatic for the victim.  However, its inexplicable nature leads me to conclude Mr Mihaka  must  have  been  confused,  and  certainly  considered  he  had  been assaulted.   Whilst his response was not justified, this context is relevant to the possible sentencing outcomes.

[25]     Mr Mihaka has acquired numerous convictions over the years, but none since

2008.  He has, to my observation, a moderate walking disability, and as noted has already suffered a significant consequence.  Balancing all these factors, I conclude the appropriate outcome is conviction and discharge.

Conclusion

[26]     The appeal against conviction is dismissed.

[27]     The appeal against sentence is allowed, and the sentence of community work is quashed.

Simon France J

Solicitors:

N Bourke, Barrister, Wellington
Luke Cunningham & Clere, Crown Solicitors, Wellington