Misiuk v The Queen
[2011] NZCA 663
•19 December 2011
| NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA307/2011 [2011] NZCA 663 |
| BETWEEN PAWEL MARIAN MISIUK |
| AND THE QUEEN |
| Hearing: 14 September 2011 |
| Court: Randerson, MacKenzie and Asher JJ |
| Counsel: M J Kidd for Appellant |
| Judgment: 19 December 2011 at 3 p.m. |
JUDGMENT OF THE COURT
A The time for appealing is extended.
B Leave to adduce further evidence is refused.
C The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
Table of Contents
Para No
| Introduction | [1] |
| Brief facts | [8] |
| The trial process in outline | [11] |
| Grounds of appeal | [16] |
| Fair trial issues | |
| (a) The ruling for trial by judge alone | [20] |
| (b) Lack of representation | [31] |
| (c) The appellant’s decision not to cross-examine the complainant | [40] |
| (d) Specific instances of unfairness | |
| (i) Page 99 of the notes of evidence | [46] |
| (ii) The white flowers evidence | [49] |
| (iii) Page 104 of the notes of evidence | [51] |
| (iv) Leading questions and irrelevant material | [55] |
| (e) Complaints about how certain alibi evidence was treated | [57] |
| (f) Search of the appellant’s address on 7 May 2009 | [67] |
| (g) Complaints about identification evidence | [71] |
| (h) Complaints of perceived bias and unfairness | [75] |
| The verdict on the count of threatening to kill was unreasonable and not supported by the evidence | [79] |
| Post-hearing memoranda | [87] |
| Conclusion on conviction appeal | [90] |
| Sentence appeal | [91] |
| Disposition | [93] |
Introduction
The appellant appeals against his conviction and sentence in the District Court on the following charges:
(a)7 counts of breaching a protection order;
(b)1 count of theft of a handbag;
(c)1 count of threatening to kill; and
(d)1 count of burglary.
He was acquitted on two other counts of breaching a protection order.
The trial took place before Judge Field sitting without a jury, an order having been made to permit that mode of trial under s 361D of the Crimes Act 1961 (the Act).
The trial occupied six weeks between 14 February 2011 and 31 March 2011. Judge Field’s lengthy and well-reasoned verdict was delivered on 6 April 2011.[1]
[1] R v Misiuk DC Auckland CRI-2010-004-4873, 6 April 2011.
On 18 April 2011 the appellant was sentenced on the counts on which he had been convicted after the trial, and on a further charge of escaping from the lawful custody of the Department of Corrections on 15 October 2010, to which he pleaded guilty on the sentencing date of 18 April 2011. He was sentenced to four years imprisonment on the burglary charge, with concurrent lesser sentences on the other charges found proved at trial. On the escaping custody charge he was sentenced to one month’s imprisonment, cumulative on the four year sentence.
That appeal has been withdrawn by a notice signed by the appellant dated 9 September 2011 in respect of all except the cumulative sentence on the escaping custody charge.
The notice of appeal was filed on 20 May 2011. That was some days outside the 28 day period prescribed in s 388 of the Act. There is no prejudice to the Crown arising from the late filing and we grant an extension of time for appeal.
Brief facts
The charges arose from a number of incidents involving the appellant Mr Misiuk and his former wife. The marriage was dissolved in September 2010. The complainant had earlier obtained a protection order in September 2007 and a final order in April 2009. The indictment alleged that the offending occurred over a period from November 2007 to August 2009. A brief summary of the Crown and defence case in relation to the counts on which the appellant was convicted now follows:
(a)Count 1 – Breach of protection order (s 49(1)(a) of the Domestic Violence Act 1995) on 12 November 2007. The Crown alleged Mr Misiuk breached the protection order by delivering flowers and loitering near the complainant’s residence. The Crown relied on an eye witness (Mr Haddon) to identify the appellant. Mr Misiuk disputed the reliability of Mr Haddon’s identification.
(b)Count 2 – Breach of a protection order on 23 November 2007. The Crown alleged that Mr Misiuk breached the protection order by telephoning the complainant. Telephone records showed that calls were made to the complainant from the address of Mr Misiuk’s mother. The issue was whether the calls were made by Mr Misiuk, his mother (acting on her own) or by his mother, having been encouraged to do so by Mr Misiuk.
(c)Count 3 – Breach of the protection order on 9 June 2008. The Crown alleged that Mr Misiuk accosted the complainant in an Auckland carpark. The complainant’s evidence was corroborated by her lawyer who described the meeting as confrontational. The appellant was said to have been aggressive and angry. Mr Misiuk’s defence was that he had a reasonable excuse.
(d)Count 4 – A further breach of the protection order on 17 April 2009. The allegation was that Mr Misiuk engaged in behaviour which amounted to psychological abuse by changing the registration details of the complainant’s car into his own name and address. Mr Misiuk acknowledged having done so but his defence was he had a reasonable excuse.
(e)Count 5 – Alleged that Mr Misiuk stole the complainant’s handbag from her vehicle on the same occasion as Count 4, 17 April 2009. Some items which the complainant said were in her handbag when it was taken were later found at Mr Misiuk’s address when a search warrant was executed. Mr Misiuk denied taking the handbag.
(f)Count 6 – Threatening to kill the complainant and her children on 22 April 2009. The Crown alleged that Mr Misiuk went to the complainant’s home with another woman, a Ms Hajnrych. Mr Misiuk was said to have banged on the door late in the evening, shouting that he would kill the complainant and the children. The Crown alleged that Mr Misiuk ran around the house banging on the door, shouting and trying to open the windows. Mr Misiuk denied he was involved and raised an alibi defence.
(g)Count 8 – Burglary on 23 April 2009. The Crown alleged that, the day after he had threatened to kill the complainant and the children, Mr Misiuk broke into the complainant’s flat after she had left for work. It was further alleged that he damaged her property by putting a hole in a painting, cutting leather sofas, blocking the kitchen sink causing flooding and water damage, breaking knives, scattering food, bending pots, cutting clothes, damaging kitchen appliances and placing cosmetics in the toilet. Mr Misiuk denied this offending and raised a defence of alibi.
(h)Count 9 – Breach of protection order on 23 April 2009. The conduct relied upon in relation to count 8 was also said to give rise to a breach of the protection order.
(i)Count 10 – Breach of protection order on 18 May 2009. The Crown alleged that Mr Misiuk sent a letter to the complainant commenting that she was sick and egotistical. Mr Misiuk acknowledged sending the letter but maintained he had a reasonable excuse for doing so.
(j)Count 12 – Breach of protection order on 11 August 2009. The Crown alleged that Mr Misiuk procured the prison chaplain to telephone his wife. Mr Misiuk’s defence was that he did not request the chaplain to contact his wife but had simply mentioned it in passing.
Mr Misiuk also raised a more general defence which the Judge described as the foundation of his case. He maintained that he was the victim of a concerted effort by a Polish criminal group to blacken his name, to have him subjected to unwarranted court proceedings, prosecution and, ultimately his detention in custody. He asserted that the complainant had been coerced by members of this group to make false allegations against him.
The Judge rejected Mr Misiuk’s evidence on this point, finding that it was “stretching credulity to the breaking point”. The Judge accepted that his task was nevertheless to determine whether or not the Crown had proved its case on all or any of the counts beyond reasonable doubt.
The trial process in outline
The conduct of this trial by the appellant created enormous difficulties for the trial Judge, and tested to the limits the ability of the criminal justice system to meet the demands which the appellant placed upon it, in asserting what he considered necessary to obtain a fair trial. The appellant was unrepresented for much of the trial. The Judge began his judgment by outlining some of the background to the proceedings, to explain why they have occupied such an extraordinary amount of time and used such a large amount of the Court’s resources.[2] That contains important background to the understanding of this appeal, though we do not repeat that here. It is sufficient to record that Mr Misiuk made repeated applications for further disclosure, alleged corruption by the police, prosecutors and other officials, maintained unsupportable constitutional objections to his being tried, sought to issue witness summonses to a wide range of people without proper cause, and repeatedly dismissed a lengthy list of legal counsel. We confine our description to a relatively brief description of the more relevant events during the course of the proceedings.
[2] At [2]–[18].
It is convenient to begin the narrative with a ruling given by Judge Gittos on 21 October 2010. By that stage, Mr Misiuk had been committed for trial, and had elected jury trial. Judge Gittos noted that Mr Misiuk had been represented by counsel, Mr Rogers, but that Mr Rogers had been granted leave to withdraw. Mr Misiuk had made it clear that he wished to proceed unrepresented. Arrangements were made to appoint Mr Simmonds as amicus to assist the Court. Judge Gittos made that formal appointment and then described in some detail the role of Mr Simmonds as amicus:
[7] To that end, I wish to make it clear, that Mr Simmonds’ role will be in that last category identified in the case that I have just mentioned, that is to say, as counsel to assist an unrepresented accused. This role is discussed in Adams on Criminal Law at Chapter 5.3.A6. The need has arisen in this case in circumstances that I have, and just earlier identified. There have been other lawyers involved. They have been unable to stay with the proceedings for one reason or another. As observed in Adams on Criminal Law, Mr Simmonds as Amicus Curiae will not be representing Mr Misiuk. He will not owe a duty to Mr Misiuk, or be amenable to any direction by him. In this case, s 95 of the Evidence Act prohibits the accused from directly questioning the complainant in a case of this nature. It is necessary therefore, that Mr Simmonds should conduct the cross-examination of the complainant on behalf of the accused, and in accordance with his directions, so long as such directions are proper as a matter of law. If any issue arises in the course of this as to whether a question should properly be put, then the trial Judge will rule on these issues, as and when the occasion demands in the course of the trial. Other than that, Mr Simmonds will not ask questions of witnesses, or address the jury on Mr Misiuk’s behalf. It will be for the accused himself to do this on his own behalf. It would also be his responsibility to make strategic decisions through the trial. However, Mr Simmonds may be able to assist him by being available to give him advice on legal matters, in particular, matters of evidence and procedure, or other aspects of the criminal law that relate to the charges.
In a second minute also issued on 21 October Judge Gittos dealt with some other pre-trial issues. He noted the desirability of a judge being assigned to the case. Judge Field was assigned, and had responsibility for pre-trial matters from that point. The case on appeal contains 36 pre-trial rulings and two minutes issued by Judge Field between 3 November 2010 and 7 February 2011. By that stage, counsel for the Crown had become concerned as to the practicality of a jury trial. An application was made on 7 February 2011, the day a jury was due to be empanelled, for an order for trial before a judge without a jury pursuant to s 361D of the Act. The Judge granted that application in a ruling delivered on 8 February.
Before the trial commenced, Mr Misiuk applied for a stay of the proceedings. The Judge, after considering and declining an application by Mr Misiuk to give oral evidence in support of that application, gave a fully reasoned ruling on that application on 10 February 2011, in which he refused the application for a stay. There is no challenge to that ruling on appeal.
The trial proceeded as a judge alone trial. It commenced on 14 February 2011. It concluded with closing addresses on 31 March 2011. The notes of evidence run to some 1800 pages. In addition to the 36 pre-trial rulings up to 7 February 2011 to which we have referred, the case on appeal contains a further eight rulings in the period 8 to 11 February, and, from the start of the trial, an additional 56 trial rulings between 15 February 2011 and 29 March 2011. The Judge delivered his verdict on 6 April 2011.
Grounds of appeal
The grounds of appeal against conviction were not particularised in the notice of appeal. They were advanced in the submissions of the appellant’s counsel, Mr Kidd. Mr Kidd had appeared for Mr Misiuk at sentencing on a pro bono basis with the consent of Judge Field. He had been consulted at various times by Mr Misiuk, but was not closely involved with the trial. He records that on at least one occasion Mr Misiuk purported to terminate his retainer but then assented to the view that he needed consistent appellate advocacy, after Mr Kidd had familiarised himself with the trial transcript and advised Mr Misiuk on the issues to raise on his appeal.
The submissions advanced by Mr Kidd covered a number of topics which may be broadly categorised as:
(a)The appellant’s trial was unfair and led to a miscarriage of justice.
(b)The verdict on the count of threatening to kill was unreasonable and not supported by the evidence.
The unfair trial ground embraces a number of partially overlapping sub-issues:
(a)A challenge to the ruling that the appellant would be tried by judge alone.
(b)Unfairness through lack of legal representation.
(c)Unfairness through the appellant’s decision not to cross-examine the complainant.
(d)Specific instances of unfairness.
(e)Complaints about how certain alibi evidence was dealt with.
(f)Issues arising from the search of the appellant’s address on 7 May 2009.
(g)Complaints about the way certain identification evidence was dealt with.
(h)Complaints of perceived bias by the Judge.
In his submissions, Mr Kidd emphasises the importance of the right to a fair trial in criminal proceedings, and submits that Mr Misiuk did not receive a fair trial on process due to lack of representation, denial of the protections in the Evidence Act 2006 and the ability to put forward an alibi as he was both incarcerated and without representation.
Fair trial issues
(a) The ruling for trial by judge alone
We address first, in the context of considering whether the Judge properly protected Mr Misiuk’s right to a fair trial, the Judge’s decision under s 361D to order trial by judge alone. As we have briefly noted, that decision resulted from an application made by the Crown on the morning the jury was to be empanelled. Before dealing with that application, the Judge ruled on an application by Mr Misiuk to give evidence in opposition to that application, and to call as witnesses the Crown prosecutor Ms Lummis and Mr Simmonds. He ruled that Mr Misiuk was entitled to give evidence. The Judge declined to direct that the prosecutor and amicus give evidence and be questioned by Mr Misiuk.
Section 361D provides as follows:
(1)This section applies only to a person (the accused person) who is committed for trial for an offence that is not—
(a)an offence for which the maximum penalty is imprisonment for life or imprisonment for 14 years or more; or
(b)an offence of attempting or conspiring to commit, or of being a party to the commission of, or of being an accessory after the fact to, an offence referred to in paragraph (a).
(2)The Judge may, on a written application for the purpose made by the prosecutor to the Judge and served on the accused person before the accused person is given in charge to the jury, order that the accused person be tried for the offence before the Judge without a jury.
(3)However, the Judge may make an order under subsection (2) only if the prosecution and the accused person have been given an opportunity to be heard in relation to the application, and following such hearing, the Judge is satisfied—
(a)that all reasonable procedural orders (if any), and all other reasonable arrangements (if any), to facilitate the shortening of the trial, have been made, but the duration of the trial still seems likely to exceed 20 days; and
(b)that, in the circumstances of the case, the accused person's right to trial by jury is outweighed by the likelihood that potential jurors will not be able to perform their duties effectively.
(4)In considering, for the purposes of subsection (3)(b), the circumstances of the case, the Judge must take into account the following matters:
(a)the number and nature of the offences with which the accused person is charged:
(b)the nature of the issues likely to be involved:
(c)the volume of evidence likely to be presented:
(d)the imposition on potential jurors of sitting for the likely duration of the trial:
(e)any other matters the Judge considers relevant.
(5)If the accused person is one of 2 or more persons to be tried together, all of them must be tried before a Judge with a jury unless an order under subsection (2) for all of them to be tried by a Judge without a jury is applied for and made.
(6)This section does not limit section 361B or 361C or 361E.
In his ruling, the Judge referred to Mr Misiuk’s opposition to the application, and his right to be tried by jury, and noted there was no obligation on him to show cause for trial by jury and that it was for the Crown to justify a change to that situation. The Judge had reached the firm view that the trial would greatly exceed the 20 day period provided for in s 361D(3)(a). He noted that an initial estimate of two weeks had been extended to four and then to six weeks. He regarded that as a conservative estimate and considered the possibility that the trial might run for as long as perhaps three months. He gave extensive reasons for having reached that conclusion.
He then turned to consider, under s 361D(3)(b), whether Mr Misiuk’s right to trial by jury was outweighed by the likelihood that potential jurors would not be able to perform their duties effectively. He noted that the subject matter of the charges themselves raised no difficult issues which would justify trial by judge alone. He said Mr Misiuk had, understandably from time to time, been visibly affected by the impact of the proceedings on him and had occasionally given way to anger and displays of emotion, related to his firm conviction that the prosecution had been orchestrated by many, and that the system of justice in New Zealand is dysfunctional and subject to corruption in particular instances.
The Judge foresaw enormous difficulty for the jury if Mr Misiuk were overcome by feelings of emotion or anger and the consequences of repeatedly standing down the jury to deal with such issues would mean that the jury would not be able to perform its duties effectively. He was satisfied accordingly that, having regard to the matters he was required to consider by s 361D(4), Mr Misiuk’s right to trial by jury was outweighed by the likelihood that potential jurors would not be able to perform their duties effectively.
As this Court noted in R v Wenzel,[3] the s 361D decision required a judicial assessment of the circumstances that the prosecution contends brings the case within the section. The section is directed at promoting fair trial outcomes.
[3] R v Wenzel [2009] NZCA 130, [2009] 3 NZLR 47.
The statutory pre-condition in s 361D(3)(a) was clearly satisfied. The Judge’s assessment that the trial was likely to exceed 20 days was amply justified on the material before him and proved to be accurate. There were no reasonable procedural orders or reasonable arrangements which could have been made to facilitate the shortening of the trial to within 20 days. The previous history, and the many pre-trial rulings to which we have referred, clearly demonstrated that cooperation between the parties to reduce the trial time was not a realistic possibility. There was no reasonable prospect that the Judge could, on his own initiative, have taken steps to curtail evidence, or the pursuing of issues, without risking a challenge to whether the trial was fair. Mr Misiuk was asserting that his fair trial rights required trial processes which could not have been accommodated by a trial of less than 20 days.
For these reasons, the crucial question for the Judge arose under s 361D(3)(b); namely whether in the circumstances of the case the accused’s right to trial by jury was outweighed by the likelihood that potential jurors would not be able to perform their duties effectively. Of the factors in subs (4), the number and nature of the offences was not such as to make trial by jury impracticable. The charges, and the events to which they related, were within a compass which could ordinarily be readily dealt with by a jury trial. What made jury trial impracticable in this case was the way in which Mr Misiuk was insisting upon conducting his case, and the nature of the issues which he was insisting upon raising. Those matters meant that paragraphs (b) and (c) of s 361D(4) were particularly relevant in this case. Some insight into those considerations was available to the Judge from the various pre-trial applications on which he had already ruled. In the course of dealing with these, he had ample opportunity to observe Mr Misiuk, and his approach to the presentation of his case.
Mr Kidd accepted there was no question about Mr Misiuk’s fitness to stand trial and no evidence of any lack of mental capacity on his part. But, he submitted that Mr Misiuk’s personality contributed to difficulties in the trial. Mr Kidd produced, without objection from the Crown, a psychological report on Mr Misiuk, prepared in July 2011, which described him in these terms:
Mr Misiuk did, however, portray narcissistic personality traits. He also repeatedly voiced hyper-suspiciousness in relation to agencies in New Zealand including the Police, Judiciary, the Department of Corrections, some Prison Officers, various legal representatives and others. He evidenced a persecutory interpretive bias of events that have impacted on him over the past few years, since coming to New Zealand.
Our observations of the record, and of Mr Misiuk in his appearance by video link at the hearing of the appeal, lead us to agree with the report writer on these matters. The way in which Mr Misiuk intended to, and did, present his defence reflected these aspects of his personality. Given these traits, the nature of the issues which Mr Misiuk was likely to raise and the volume of evidence which this would entail, the Judge was justified in concluding that the trial could not sensibly be confined to issues and evidence which on a reasonable assessment would be relevant to the matters a jury would be required to consider. That made it unlikely potential jurors would be able to perform their duties effectively.
We consider the trial Judge was acting properly in the exercise of his discretion when he made the order for judge alone trial. We find nothing in his ruling which suggests that he exercised his discretion on a wrong principle, took into account irrelevant considerations, or failed properly to weigh the statutory requirements or other matters relevant to the exercise of the discretion. In all the circumstances, we are satisfied that the Judge’s exercise of his discretion to order a judge alone trial was amply justified.
(b) Lack of representation
Mr Misiuk was initially represented by counsel. The Judge recorded[4] that Mr Misiuk had been involved with about ten counsel, all but one of whom he criticised. He elected to be self-represented as Mr Kidd acknowledged. Mr Simmonds was appointed as amicus. As already noted, Judge Gittos dealt at length in his ruling of 21 October 2010 with the role of the amicus, and how it would affect Mr Misiuk’s position as a self-represented litigant. He noted the need for the trial judge to give the appellant the statutory caution under s 364 of the Act, but out of an abundance of caution, he also articulated it himself at that time. He also arranged for the appellant to be given a memorandum setting out his position as a self-represented person and how Mr Simmonds as amicus would be able to assist. Mr Simmonds also proffered to the appellant a memorandum explaining his role, but the record indicates that Mr Misiuk refused to sign an acknowledgement that he had received that memorandum. It is clear that Mr Misiuk had the opportunity to be legally represented. We are satisfied that the circumstances were such that s 30(2) of the Sentencing Act 2002 was satisfied.
[4] At [17].
The fact that Mr Misiuk was not legally represented at trial did not of itself constitute a breach of Mr Misiuk’s right to a fair trial. But that is not the end of the matter. As the Supreme Court noted in R v Condon,[5] even in those circumstances, an appeal Court must still examine the overall fairness of the trial. If there has been no breach of the appellant’s right to representation, the conviction will not be set aside unless the appellant can persuade the Court that the trial was unfair because the defence could not, in the particular case, have been adequately conducted without the assistance of counsel. The manner in which the appellant through his own choice or conduct came to be unrepresented may be relevant to the assessment of unfairness. We address the other submissions which Mr Kidd made in relation to lack of representation, against that test, namely that it is for Mr Misiuk to persuade the Court that the trial was unfair.
[5] R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [80].
At the hearing of the appeal, we sought further information from Mr Kidd relating to Mr Misiuk’s representation. Mr Kidd has filed a further memorandum on this issue. In it, he refers to certain material, which it is not necessary for us to describe but which we have considered, along with all other relevant material. Mr Kidd submits that Mr Misiuk was not represented by Mr Simmonds and did not cooperate with him and that the transcript shows that overall Mr Simmonds took a passive role.
That submission is consistent with Mr Simmonds acting as amicus, and not as counsel for Mr Misiuk. It does not provide support for the proposition that the trial was unfair, in the light of Mr Misiuk’s decision to be self-represented. Mr Simmonds was amicus, not counsel for Mr Misiuk. The materials produced by Mr Kidd show that Mr Simmonds was able to obtain Mr Rogers’ file, pursuant to an authority from Mr Misiuk, but that Mr Misiuk was not prepared to waive privilege to the extent of enabling Mr Rogers to discuss the case with Mr Simmonds. That was Mr Misiuk’s choice, which he was entitled to make. We do not find anything in the way Mr Simmonds performed his role as amicus which has resulted in Mr Misiuk receiving an unfair trial.
Mr Kidd further submits that the documents presented by him show that Mr Misiuk wanted to choose his lawyer. That is based upon a note made by Judge Kiernan at a hearing on 14 October 2010. We take that note as indicating that the Judge was informed that Mr Misiuk wanted to be self-represented, and that he did not wish Mr Rogers, who was at that time instructed, to act for him. Mr Rogers was granted leave to withdraw as Judge Gittos recorded on 21 October. Judge Kiernan’s note referred to Mr Misiuk wanting one of two other named lawyers. That shows that Mr Misiuk was clearly aware of his right to legal representation.
There is however no evidence that he took any steps to instruct another lawyer, or that he had any difficulty in doing so. There is no indication in Judge Gittos’ rulings of any attempt to engage another lawyer. Mr Kidd submits that up until 1 December 2010, Mr Misiuk could have nominated his own lawyer, but that changes to legal aid from that date meant he lost that right. There is no indication that Mr Misiuk took steps to obtain legal aid with a lawyer of his own choice, or on the basis of an assignment by the legal aid authorities, after Mr Rogers’ withdrawal.
Mr Misiuk elected to represent himself, and the transcript shows he was given considerable assistance by Mr Simmonds, and by the Judge in recognition of Mr Misiuk’s situation. He was able to cross-examine witnesses, and to call evidence. The transcript demonstrates that he did so in a way which enabled his defence, as he chose to advance it, was adequately before the Judge. The Judge recorded[6] that Mr Misiuk’s difficulties in obtaining access to legal materials had been addressed by both Mr Simmonds and himself (although the Judge rejected some of Mr Misiuk’s applications for copies of legislation out of hand as they were irrelevant).
[6] At [23]–[24].
Mr Kidd accepted that Mr Misiuk had the necessary intellectual capacity and verbal skills to conduct his case. That view was also shared by the Judge who referred to Mr Misiuk as a man of exceptional intelligence.[7] Although English was not Mr Misiuk’s first language, Mr Kidd accepted he did not need an interpreter.
[7] See [77] below.
For these reasons, we are satisfied that the fact that Mr Misiuk was self-represented has not led to a breach of his right to a fair trial.
(c) The appellant’s decision not to cross-examine the complainant
There is one aspect of Mr Misiuk’s self-representation and its effect on the fairness of the trial, which we need specifically to address. When the complainant gave evidence, she was not cross-examined. At the conclusion of her evidence in chief, there was an in-chambers discussion (on 15 February 2011 at 3.30pm) in which the timing of cross-examination was discussed. The record of that discussion indicates that it was contemplated that Mr Simmonds would cross-examine her, after speaking to Mr Misiuk. At a further in-chambers discussion the following day, it became clear to the Judge that Mr Misiuk was not willing to give information to Mr Simmonds to assist him in cross-examining the complainant. The record shows clearly that neither the complainant nor the Crown would have any notice of the questions before they were put in cross-examination.
The matter was deferred to a further in-chambers discussion the following morning, 17 February. Mr Kidd appeared, following a request from Mr Misiuk. He informed the Court that Mr Misiuk did not wish to cross-examine the complainant. The Judge questioned Mr Kidd to satisfy himself that Mr Misiuk understood the implications of that. Mr Misiuk also confirmed to the Judge that was his position. The Judge recorded, in a minute dated 17 February 2011, that Mr Misiuk “is prepared to allow the case to stand or fall on such evidence as the Crown leads without challenging it”.[8] He recorded Mr Misiuk’s assent to that and that the Crown would consider whether, and to what extent, further evidence should be given in support of the Crown case. The Crown did not close its case at that point. The complainant was not cross-examined, but other Crown witnesses were called. Mr Misiuk did cross-examine other witnesses. He also called defence evidence, and sought to recall the complainant at that stage, as a defence witness. The Judge refused to allow that, in Ruling 41 dated 17 March 2011.[9]
[8] R v Misiuk DC Auckland CRI-2010-004-4873, Minute 1, 17 February 2011.
[9] R v Misiuk DC Auckland CRI-2010-004-4873, Ruling 41, 17 March 2011.
Under s 95 of the Evidence Act, Mr Misiuk was not entitled to personally cross-examine the complainant unless the Judge gave permission. Given Mr Misiuk’s relationship to the complainant, the nature of the allegations, and his personality the Judge would have been justified in refusing leave. The option which was considered, cross-examination by Mr Simmonds as amicus on the basis of questions suggested by Mr Misiuk, was appropriate. The constraints imposed by s 95, and the possibility that assistance from Mr Simmonds might address that issue, had been raised by Judge Gittos in his ruling of 21 October 2010. Mr Misiuk’s unwillingness to cooperate in that process provides support for the proposition that refusal of leave to cross-examine personally was justified and that there was no basis for Mr Simmonds to effectively cross-examine the complainant without instructions from Mr Misiuk.
The decision by Mr Misiuk not to contest the complainant’s evidence, or to facilitate cross-examination by Mr Simmonds, were fully informed decisions, made after taking legal advice, and after the implications of those decisions were explained to him. In these circumstances, it cannot be said to have resulted in any unfairness in the trial process. The Judge dealt with this issue in his judgment in these terms:[10]
[the complainant] is the principal Crown witness. She gave evidence at some length. Her evidence was not challenged in cross-examination. Now, that is not to say that I must therefore accept her evidence uncritically. I am required to determine whether it appears credible on the face of it, whether it makes sense, whether it is consistent, or inconsistent, with other evidence given by the prosecution or defence witness, whether it is corroborated or contradicted by other witnesses whose evidence I find reliable for both prosecution and defence. The situation here is governed by section 92 of the Evidence Act, which provides that:
In any proceeding a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters. If a party fails to comply with the section the Judge may admit the contradictory evidence on the basis that the weight to be given to it may be affected by the absence of questioning of the complainant, or the Court may exclude the contradictory evidence.
For the most part I have taken the view that the contradictory evidence may be admitted, but subject to that portion about the weight to be given to it.
[10] At [52]–[53].
Having regard to the lack of cross-examination of the complainant, we consider that the approach by the Judge to her evidence was appropriate to ensure that the trial did not become unfair.
This was not a case which depended solely or mainly on the complainant’s evidence. On most counts there was corroboration of her evidence from other witnesses. Particularly on the important theft and burglary counts, there was incriminating evidence found in Mr Misiuk’s possession, including items which were proved to be from the handbag taken from the car and from the house. We describe later the corroborating evidence on the threatening to kill charge. Corroborating witnesses on some of the counts of breaching the protection order included Mr Haddon, and the complainant’s lawyer, Ms Armstrong. On other counts, there was no dispute that the actions alleged to be in breach of the protection order had occurred. The defence was that Mr Misiuk had a reasonable excuse. The count which alleged breach of a protection order by changing the registration details of the complainant’s car did not depend to any significant extent on her evidence. The actus reus was admitted by Mr Misiuk.
(d) Specific instances of unfairness
(i) Page 99 of the notes of evidence
The first instance of unfairness which Mr Kidd gives relates to count 3. Ms Armstrong, the lawyer acting for the complainant, was giving evidence about the incident when the complainant was approached at the car park. Mr Misiuk put to her in cross-examination the evidence of another witness to that incident. The question and her reply, and the subsequent comment of the Judge, were as follows:[11]
Q.According to Mr Pala’s affidavit, there were no threatening movements or behaviour which could possibly constitute any threatening or intimidating behaviour. What do you say about that?
A.As I said, I didn’t see Mr Pala. I saw you approach the complainant while there was a protection order in force, so in doing so you breached the order. It doesn’t matter he thought you did something and I thought you did something else. You approached her; you breached the order. It’s as simple as that.
THE COURT:
Well it really is as simple as that, isn’t it?
[11] Notes of evidence 99/9–18.
Mr Kidd submits that this passage demonstrates a lack of objectivity by the Judge, and that he allowed the witness to make observations as to the ultimate issue. Counsel for the Crown submits that there was an element of the line of questioning provoking the response from the witness, and that the Judge was clear about the relevance and ambit of the witnesses’ evidence because he had made clear, in an earlier intervention in the course of Mr Misiuk’s cross-examination, that “what I am interested in is, is whether or not the witness can shed any further light through cross-examination on what in fact she saw.”
We do not consider that this passage indicates any unfairness on the part of the Judge, or that the answer to the question was inappropriately allowed. The witness was making it clear that her evidence was of an approach, not of threatening or intimidating behaviour. For that element of the offence, an approach was sufficient and the Judge was not acting unfairly in agreeing with that proposition. He was appropriately focussed on the essential issue.
(ii) The white flowers evidence
Count 1 involved an allegation that Mr Misiuk had placed white flowers in the complainant’s letterbox. The Crown case was that this would have the potential to be disturbing to the complainant because white flowers, in Polish custom, are associated with death. Mr Kidd submits there was unfairness to Mr Misiuk in the way in which evidence about this was introduced and used. He submits that the prosecutor was wrongly permitted to lead the complainant in the questioning on that issue. He submits that the complainant was not aware that the flowers had been deposited in her letterbox and her evidence indicates that she was not unduly concerned. He refers to the Judge’s finding that the white flowers meant death in Polish custom but submits there was no evidence led that the complainant understood the flowers as a threat. He submits there was evidence that it was the complainant’s birthday in two days time so that the Judge’s finding that there was no reasonable excuse for leaving the flowers was not made out.
The matters raised on this issue do not form a proper basis for a submission that the trial was unfair. The leading of the witness which is complained of was inconsequential, and directed only to identifying the relevant topic for questioning. As Mr Kidd acknowledges, the real question is whether or not this breach of the protection order was established beyond reasonable doubt. That required the Crown to prove that it was Mr Misiuk who had placed the flowers in the letterbox. The Judge viewed the significance of the white flowers as assisting in the identification of Mr Misiuk as the person who had left them.[12] The Judge did not discuss whether the complainant understood the flowers as a threat. It was clear from her evidence that she did not see them as such. She said “the flowers were not important so I don’t remember”.[13] To prove the charge, the Crown did not need to prove that the complainant actually felt threatened.
(iii) Page 104 of the notes of evidence
Mr Kidd refers to a passage in the evidence of Mr Haddon, a witness to the white flowers incident. In the course of leading evidence as to what the witness had seen a person doing, the prosecutor asked the witness if he could recall telling police what the person he had observed was wearing. Following an objection by Mr Misiuk, the question was re-put “do you recall telling the police that evening what Mr Misiuk was wearing”. The prosecutor immediately realised her mistake and said “sorry”. The Court then corrected her by saying “well, what the person was wearing”. The prosecutor then put the question in that way, and again apologised. The transcript then records “the Court addresses Mr Misiuk – identity not established”.
[52]Mr Kidd further submits that the Judge wrongly allowed the witness to refer to a prior consistent statement to refresh his memory as to what the person was wearing. Mr Misiuk objected to the statement being used in that way. Counsel for the Crown submits there were no consequences for the fairness of the trial because the Judge recognised that identity had not been established at that stage, and that Mr Misiuk himself conceded (when cross-examining) that the witness had seen him.
[12] At [63].
[13] Notes of evidence 15/27.
It is clear that the question should not have been asked by the prosecutor in that way. She immediately realised that and apologised. In a judge-alone trial, there was no risk of unfairness arising from this, as the Judge immediately recognised the point, and, as the transcript indicates, did not take the question or answer as identifying Mr Misiuk. We do not accept the submission of counsel for the Crown that Mr Misiuk himself conceded that the witness had seen him. In the passage referred to by counsel for the Crown, Mr Misiuk was establishing that the witness knew him. That was an essential aspect of the line of cross-examination which followed. Mr Misiuk did not, in that line of cross-examination, concede that he had been the person whom the witness had seen on the occasion in question.
Mr Misiuk did not suffer any disadvantage, in this line of cross-examination. In his judgment,[14] the Judge treated this as a disputed identification, and ruled upon it on that basis. He was correct to do so. As to the use of the earlier statement by the witness to refresh his memory, we consider that that use of the statement was permissible under s 90(5) or s 35(3) of the Evidence Act.
(iv) Leading questions and irrelevant material
[14] At [56].
Mr Kidd takes issue with the following:
(a)He submits that, at page 24 of the notes of evidence, the following leading question was wrongly allowed in the evidence in chief of the complainant: “When you describe walking back home after the meeting in the café in Howick, and Pawel following behind you, how far did he follow you?”
(b)He submits that the Judge allowed an improper question by the prosecutor to the complainant about Mr Misiuk’s immigration status, in which the complainant said he had an order to leave New Zealand.
(c)He submits that there was further prejudicial evidence about Mr Misiuk following the complainant on another occasion for which he was not charged.
We do not consider any of these questions were improper. As to the first, the complainant had in a previous answer given evidence of a meeting with Mr Misiuk, and of having walked back home with him walking behind. The meeting in the café in Howick did not form the basis of a charge against Mr Misiuk. It had been arranged between him and the complainant. It was a necessary part of the background to the relationship between them. As to (b) and (c), what was discussed at that meeting (which included Mr Misiuk’s immigration problems), as well as his conduct after that meeting and on other occasions not the subject of specific charges, was necessary background evidence. As counsel for the respondent submits, a judge sitting alone is able to exclude prejudicial material. No unfairness, or prejudice to fair trial rights, to Mr Misiuk has resulted from the admission of this evidence.
(e) Complaints about how certain alibi evidence was treated
In March 2010, at a stage when he was represented by Mr Rogers, Mr Misiuk served an alibi notice. It related to four of the charges (the threatening to kill and burglary charges, and two associated breach of protection order charges). The notice concerned his whereabouts on two occasions: on 22 April 2009 from midday until about midnight, and then for the rest of that night; and on 23 April from about 10am or 10.15am. He gave notice of a number of persons who might be called as witnesses in support of that alibi defence.
The 22 April date related to count 8 (burglary) and count 9 (the related breach of protection order). The alibi notice for 22 April said:
On 22 April I was at [the complainant’s then address] from after midday until about midnight.
I went out at about midnight. I walked to 39/45 Stoddard Road, Mt Roskill. I walked from there to St Luke’s and then to 1 McDonald Street, Morningside. I walked home arriving between about 2.30am and 3.00am.
That night I slept in a car on a road about 200-300 metres away from [the complainant’s then address].
We address the evidence concerning 22 April in discussing the verdict on count 6 (threatening to kill).
The second time, 23 April, related to the burglary charge. The Crown case was that this was carried out at some time during the day when the complainant was away from home, at work. The alibi notice for that day said:
On 23 April I got up at about 10.00am or 10.15am. I went to a private address in Three Kings. I shall provide that address as soon as I am able to obtain it. I got there just before 11.00am. I was at the Three Kings address until about 2.00pm or 2.30pm.
Later that day I went to a fast food takeaway restaurant at St Luke’s. I stayed there for around an hour.
I drove from St Luke’s to the Fat Camel Hostel, Fort Street, Auckland. I then went to another hostel in Fort Street about opposite the Police Station. I stayed there for the evening.
The essence of that alibi was that Mr Misiuk claimed that he was at a house in St Andrews Road, Three Kings, carrying out tiling work for which he had been engaged by Mr Butskikh for the householders, Mr and Mrs Munro.
There is an application for leave to adduce further evidence on appeal in relation to this part of the alibi notice. In his affidavit in support of the application to admit fresh evidence the appellant seeks to admit an affidavit of himself, and evidence in accordance with an unsworn statement from Mrs Munro. He also seeks to adduce an affidavit of Mr Dooley, a private investigator who test-drove relevant distances between properties to ascertain the driving time, and interviewed both Mrs Munro and the investigating officer who had obtained a statement from Mr Butskikh. Mr Butskikh now lives in Australia and did not want to cooperate with any investigation concerning the alibi. Mr Misiuk had sought to have Mr Butskikh’s statement admitted, unsworn, in evidence at trial. That was refused by the Judge.[15]
[15] R v Misiuk DC Auckland CRI-2010-004-004873, Ruling 56, 29 March 2011.
The test for admission of fresh evidence on appeal is discussed in the decision of this Court in R v Bain[16] as endorsed by the Privy Council in Bain v R.[17] That test was affirmed by the Supreme Court in Fairburn v R.[18] There are in substance three controls which the Court applies: freshness, credibility and whether the evidence might reasonably have led to a finding of not guilty at trial.
[16] R v Bain [2004] 1 NZLR 638 at [22]–[26].
[17] Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
[18]Fairburn v R [2010] NZSC 159, [2011] NZLR 63. See also Witehira v R [2011] NZCA 255 at [39].
None of the evidence meets these three tests. All of the evidence now relied on could have been obtained by diligent inquiry before trial. Further, the evidence is not credible in the sense of accounting for Mr Misiuk’s whereabouts during the period when the burglary could have occurred. The evidence was that the complainant had left the house before 8am. Mr Woloszyn gave evidence that the complainant had dropped him at another address on her way to work “before 8 o’clock I think, something like that, maybe early”.[19] The burglary was discovered when the complainant returned from work that afternoon. Mrs Munro says in her statement that she cannot remember the date on which the tiling work at her property was done. Mr Butskikh’s statement did not establish that the tiling work for which he had paid Mr Misiuk was carried out on 23 April. This material lacks cogency and could not assist Mr Misiuk in establishing on alibi. The application for leave to adduce further evidence must be dismissed.
[19] Notes of evidence 145/181–182.
The evidence at trial fell far short of establishing an alibi. Mr Kidd refers to instances of witnesses giving what amounts to alibi evidence in Mr Misiuk’s favour, none of which was remarked on by the Judge in his oral decision. He submits that Mr Shapkin can account for Mr Misiuk’s movements for much of the day on 23 April. It is not necessary to describe that evidence in detail. None of it came close to establishing an alibi for Mr Misiuk. Mr Shapkin’s evidence did not account for Mr Misiuk’s movements throughout the period when the burglary must have taken place. The Judge described the position in these terms:[20]
In the alibi notice given in the first instance by Mr Misiuk’s counsel, Mr Rogers, to the authorities, we are faced with a number of difficulties. There are conflicting times given concerning these. One, for example, accounting for his whereabouts up until 11 o’clock. Another, asserting that Mr Rogers, his counsel, was asking him to cover time between 10.00 and five, or 5.30 pm, and that is exactly what he, Mr Misiuk, did. There is a discrepancy between the notices given and the account that Mr Misiuk gives of his whereabouts.
Mr Misiuk expected, I think, some assistance from Mr Evgeny Butskikh, who lives on the North Shore, and who has been referred to by Mr Shapkin as well as someone for whom Mr Misiuk worked. That has in fact come to nothing and I am left without any assistance there.
[20] At [160]–[161].
There is no proper basis for a challenge to those factual findings. We consider that the evidence fell far short of providing Mr Misiuk with an alibi for the burglary charge. And, as we later note, Mr Misiuk accepted he was in the vicinity of the complainant’s home on the day of the burglary.
(f) Search of the appellant’s address on 7 May 2009
On 7 May 2009, a search warrant was executed on the room Mr Misiuk was living in, in connection with the burglary of the complainant’s home on 23 April. Mr Kidd submits there were irregularities in the search. This aspect was extensively addressed at trial, in the cross-examination by Mr Misiuk of the officer in charge of the case. In that cross-examination, Mr Misiuk asserted that a large number of documents had been seized and never returned to him. They were mostly bank records. Counsel for the appellant submits: that this was significant in the light of the overall allegation by Mr Misiuk that there is a background of corruption and money laundering; there were discrepancies between the documents seized and those produced in court; the Judge did not deal with that very well and “brushed it aside”; that in taking items not on the list of items stolen in the burglary police were on a “fishing trip”; that there was no proper identification of where items were located; in particular that some family photographs scattered about the room were put in a suitcase before being photographed; that the chain of possession and control was not properly established and that there were inaccuracies in the records of items taken in the search.
Counsel for the Crown in her submissions addresses each of the complaints made. We do not consider it necessary to describe in detail the various points made. The trial was not, as the Judge clearly recognised, the proper forum for a complaint against police for their conduct of the investigation. Police misconduct in the search might be relevant if it led to evidence being improperly obtained (which might then require a balancing exercise under s 30 of the Evidence Act) or if there were a seriously arguable case that evidence relevant to Mr Misiuk’s defence had been lost on mishandled. We are satisfied that none of the claimed discrepancies in the search process has led to the admission of evidence improperly obtained. Counsel for the appellant has not identified any documents allegedly mishandled which it is seriously arguable might have assisted in Mr Misiuk’s defence.
The transcript records that the Judge was concerned to identify the ways in which Mr Misiuk claimed the various items were important to his case, and how they might constitute evidence of police corruption.[21] The Judge found that the appellant’s complaint that documents seized from his room had been incorrectly counted had some foundation.[22] He concluded however that the circumstantial evidence on the burglary count was overwhelming. He placed particular reliance on a range of items which were of great significance to the complainant which were found in Mr Misiuk’s possession. A small silver box which contained personal items was mentioned. And he placed particular significance on a knife found at the complainant’s home as well as the nature and extent of the damage which, he considered, showed that the offender had a specific desire to hurt the complainant.
[21] See especially notes of evidence 545–556.
[22] At [41].
The miscounting of the documents had no effect on the outcome. We do not accept the appellant’s description that his concerns were “brushed aside” by the Judge. There is nothing in the appellant’s submissions that could support a submission that the way in which these aspects were addressed by the Court might have led to a miscarriage of justice.
(g) Complaints about identification evidence in respect of count 8 (burglary)
A related aspect of Mr Kidd’s submissions concerns the evidence of identification of Mr Misiuk as the person involved the burglary on 23 April. In part, this evidence was also linked to the events of the evening before when Mr Misiuk allegedly threatened to kill the complainant and the children. On this charge neighbours of the complainant, Mr and Mrs Tapuvae, gave evidence. Mr Tapuvae said that the complainant called on him about 8.00 or 8.30am on 23 April 2009, to apologise for the disturbance at her house the previous evening, and left with him a photograph of Mr Misiuk. Mrs Tapuvae identified Mr Misiuk, from the photograph, as the man she saw outside the complainant’s house on the morning of 23 April at about 8.30am.
Mr Kidd submits that no warnings were given by the Judge and he did not weigh whether this type of evidence should be given. Mr Misiuk instructed Mr Kidd that he challenged this but the Judge “brushed it aside”.
Counsel for the Crown properly acknowledges that Mrs Tapuvae’s evidence about the photograph may well present evidential problems under s 45(2) of the Evidence Act. However, we are satisfied that no miscarriage of justice could arise from this point, because the Judge did not rely on the evidence of Mr and Mrs Tapuvae to any significant extent.[23] We note, however, that Mr Misiuk did not dispute Mrs Tapuvae’s evidence that she saw him at the top of the driveway to the complainant’s house at 8.30am.[24] It is not clear why the Judge only made passing reference to this admission since it was important evidence placing Mr Misiuk in the vicinity of the burglary on the day in question. As already noted, the evidence principally relied upon by the Judge to establish that the burglar was Mr Misiuk was first, the way in which the property in the complainant’s house was treated by the burglar, and second, the finding of items from the complainant’s house in the search of Mr Misiuk’s room.
[23] At [148].
[24] Notes of evidence at 932, 1438.
We consider there is no substance to the challenge to the way in which the Judge dealt with identification evidence, for either of those incidents. In addition to the specific points which we have made, we note that the Judge had reminded himself earlier in his judgment when he dealt with the first identification issue, of the cautions in s 67A of the Summary Proceedings Act 1957 and in the Evidence Act. He recorded that his reminder to himself of these matters applied also to other areas of disputed identification. We do not consider there is anything in the way in which the Judge dealt with the identification evidence which constituted an error of law or might in any way have led to a miscarriage of justice.
(h) Complaints of perceived bias and unfairness
The Judge took care to ensure that, as an unrepresented litigant, Mr Misiuk was able to conduct his defence so that he was not disadvantaged. There were numerous instances throughout the trial where the Judge was at pains to ensure that Mr Misiuk was given proper advice necessary for an unrepresented litigant. We have not, in our review of the transcript of the trial and of the Judge’s rulings, seen anything which would support the submission of bias or unfairness on the part of the Judge. That issue must be assessed from the perspective of a reasonable fair minded observer, not from the perspective of Mr Misiuk. In reaching that conclusion, we have taken into account the matters raised by Mr Kidd, to which we now turn.
We have already dealt specifically with the instances of alleged unfairness raised by Mr Kidd which collectively or individually he submits led to a miscarriage of justice. In doing so, we have borne in mind that these are put forward as instances only. We have not therefore confined our consideration to these specific instances. We have considered the transcript as a whole to gain an impression as to whether there was any unfairness or, as the grounds of appeal suggest, bias, in the Judge’s handling of the case. As we have said, we have found none. On the contrary, we consider that the Judge dealt fairly and patiently with Mr Misiuk, who chose to conduct his defence in a way which created difficult challenges for the Judge.
Some indication of the difficulties which the Judge faced, and of his response to them, can be gleaned from the following passage from his judgment:
[30] It is indeed a measure of Mr Misiuk’s distrust of the process that at one point he was insisting that even informal discussions between us concerning these and other matters be transcribed and form part of the record. In an attempt to reassure him that nothing would be hidden, I directed that this should happen, at least in the first instance, but it became apparent that the transcribers were simply unable to cope with the sheer volume of this material, and that has had to be abandoned. However, it is, of course, there, recorded, for consultation if necessary.
[31] As I say, there are some areas of concern which Mr Misiuk has expressed which have some foundation. There has, for example, been a miscounting, it seems, of some hundreds of documents seized during the course of a warranted search of Mr Misiuk’s address. Constable Hemingway in examination and cross-examination was quite determined that there was a particular number of documents in one bundle and yet another number in others. Both counsel and Mr Misiuk, and Constable Hemingway, I understand, have re-counted those documents together and found that Mr Misiuk is correct in his numbering of these documents.
[32] None of this, of course, has gone any way at all to allaying Mr Misiuk’s perception that the justice system is skewed against him and in favour of women who make complaints. The Court is said to be in favour of women generally. Some of the women are supported by groups of “femin-nazis” with a feministic agenda, who have gone beyond a desire for equality, but rather a desire to be, as Mr Misiuk puts it, “large and in charge”.
[33] Having said all of that, his evidence and his submissions on the law should not be written off simply because of the kind of views that he holds. I mention this simply by way of background. Mr Misiuk is an exceptionally intelligent man, of a strong personality, persuasive, eloquent and, if I may say, capable of considerable charm. His preparation has been painstaking and his demeanour to the Court has, for the most part, been courteous, although from time to time he has lost control in the face of an unfavourable ruling. I myself acknowledge such a loss of control on one occasion, so it has not been entirely one-sided.
As a final point in his written submissions, Mr Kidd notes the inherent difficulties which face an unrepresented defendant. He submits that the transcript is replete with these difficulties, and that the trial Judge on several occasions descended into advocacy or made disparaging comments. We do not find any of the matters on which Mr Kidd relies in support of this submission, when read in their context, provide any support for the submission that they constituted advocacy or disparaging comments. It is unnecessary to say more, except to repeat that on our assessment the Judge has dealt with a difficult case fairly and conscientiously.
The verdict on the count of threatening to kill was unreasonable and not supported by the evidence
Counsel for the appellant next asserts there are contradictions in the account of the complainant on the threatening to kill charge (count 6 on 22 April). Counsel submits that the Judge failed to deal with these apparent contradictions. Although not specifically raised in this form in the grounds of appeal, the complaint must be treated as a submission that the verdict on this charge was unreasonable and not supported by the evidence. Mr Kidd also relied on this issue as an aspect of perceived bias and unfairness by the Judge.
The appellant submits that the complainant’s evidence could not be believed in relation to this count. The complainant’s evidence was that Mr Misiuk had come to her house, with a woman. He shouted at her to open the door. When she did not, he ran around the house, banging and shouting. The complainant made a 111 call, a recording of which was played in evidence. Mr Kidd submits there was a contradiction in that the complainant gave evidence of Mr Misiuk running around the house banging on the door and shouting to open the windows, but there were no sounds of banging or shouting in the background of the 111 call.
The appellant also refers to the evidence of the woman with him, Ms Hajnrych, who had said that there was no banging or shouting. Ms Hajnrych was called as a witness for the defence, by video-link from Poland. There was also evidence from another witness that the children, who were sleeping in a room near the front door, were not woken by sounds of banging.
Mr Kidd submits there was no proper assessment by the Judge of the impact of this apparently contradictory evidence on the credibility of the complainant’s evidence that there was banging and shouting. Counsel submits the case was not proved beyond reasonable doubt and that there is some evidence that two separate sets of person may have visited the house. He submits that this, together with the lack of background sounds in the 111 call, raises a reasonable doubt in Mr Misiuk’s favour and was not something to be glossed over as an inconvenient contradiction to Mr Misiuk’s guilt.
In her submissions, counsel for the respondent describes the evidence of the several witnesses who gave evidence about this incident. She submits that the evidence on this count was cogent and that the complainant’s evidence was consistent with that of the other witnesses.
The Judge discussed this incident at some length.[25] He identified two issues: whether, it happened at all, and if it did, whether Mr Misiuk was the person who made the threats. He dealt with the evidence, and assessed the credibility of the respective witnesses, as he was required to do. He preferred the evidence of the complainant and the man who was with her that night, which he found to be corroborated by other evidence. He noted that Ms Hajnrych’s evidence by video link was inconsistent with her earlier statements, and that her evidence provided some confirmation for the Crown case, in that she acknowledged being near the complainant’s house. He rejected her evidence and that of Mr Misiuk that they were elsewhere at the time, and found the other two alibi witnesses (Mrs Lanshikova and Mr Shapkin) were mistaken as to timing of events which suggested Mr Misiuk was elsewhere at the time of the offending.
[25] At [102]–[137].
The assessment of credibility was a matter for the Judge. This Court is not in a position to revisit that assessment. There is nothing in the points raised on behalf of the appellant which could lead to the conclusion that that assessment of credibility was not properly made, and soundly based on the evidence. There is nothing in the Judge’s findings which justifies the submission that the evidence must have raised a reasonable doubt, nor that any evidence was, as the appellant submits, “glossed over” as an inconvenient contradiction to Mr Misiuk’s guilt.
The absence of noise on the recording of the 111 call was noted by the Judge.[26] He held, despite that absence of noise from the 111 call, there was indeed banging and shouting by somebody. That finding cannot properly be disturbed, on the basis of the criticism which the appellant advances of the Judge’s comments on the 111 call. There was ample evidence, accepted by the Judge, to justify his finding that there was banging and shouting. It is not appropriate for this Court to accede to counsel’s request that the recording of the 111 call be made available for forensic analysis.
Post-hearing memoranda
[26] At [117].
Subsequent to the hearing, Mr Misiuk has personally submitted two memoranda. One raises an issue of witnesses who had been summoned, whom he says he was prevented from calling at his trial. He submits that some of the witnesses’ summonses were set aside by the Judge, and two were placed on the list of prosecution witnesses but were not called. Others, he submits, were simply ignored by the Court and the parties without any ruling or assistance to call them to give relevant evidence. He says that Mr Kidd was given all copies of these summonses but “wasn’t interested”. The second memorandum seeks disclosure of documents.
These memoranda raise issues not canvassed in counsel’s submissions or addressed at the hearing of the appeal. Mr Misiuk had sought at times to call a large number of potential witnesses including judges who had dealt with cases involving the appellant and the complainant, lawyers engaged in such cases, and a number of other persons. Judge Field gave numerous rulings as to whether particular witnesses could be called. Mr Misiuk also sought disclosure of documents on numerous occasions both before and during his trial. Mr Kidd has been aware of Mr Misiuk’s complaints and has not considered it appropriate to raise them on this appeal. He has carefully and conscientiously advanced all matters which can properly be raised on Mr Misiuk’s behalf. To raise these additional matters at this late stage would require leave. We are satisfied that it is not in the interests of justice for leave to be granted.
We record that, at the hearing of this appeal, as well as hearing from Mr Kidd as counsel, we permitted Mr Misiuk to comment briefly on some matters. We also gave him the opportunity to consult in private with Mr Kidd over the video-link to give instructions. We did this on two occasions, at the end of Mr Kidd’s submissions in support of the appeal, and again following Ms Toohey’s submissions, before Mr Kidd’s reply.
Conclusions on conviction appeal
For the foregoing reasons, we find that the appellant’s trial was not unfair. The appellant has not established that any of the grounds advanced, either individually or in combination, have led to a miscarriage of justice. He has not established that the verdict of the Judge should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. Nor has he established that there has been a wrong decision on any question of law. The appeal against conviction must accordingly be dismissed.
Sentence appeal
So far as the appeal against sentence is concerned, this is, as we have noted, now limited to the additional one month’s imprisonment imposed for a charge of escaping from custody on 15 October 2010, when Mr Misiuk was at Court for a preliminary hearing. He ran from the courtroom after the hearing, and was pursued and detained by prison officers accompanying him. He described that to the probation officer as a spur of the moment decision. He claimed that his guilty plea, entered on 18 April 2011, was entered on the understanding that he would not receive any additional sentence.
We consider that the imposition of a one month cumulative term was within, indeed at the lower end of, the available range. This was clearly quite separate offending, which justified the imposition of a cumulative sentence under s 84(1) of the Sentencing Act. There had been no sentencing indication which might affect the exercise of the discretion of the sentencing judge. The appeal against sentence must accordingly also be dismissed.
Disposition
For the foregoing reasons:
(a)We grant an extension of time for appealing;
(b)We decline leave to admit further evidence in this appeal; and
(c)We dismiss the appeal against conviction, and the appeal against sentence on the escaping custody charge.
Solicitors:
Crown Law Office, Wellington for Respondent
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