Nathan v Police
[2020] NZHC 3452
•18 December 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-63
[2020] NZHC 3452
BETWEEN BARRY TAMATI TE HAU NATHAN
Appellant
AND
THE NEW ZEALAND POLICE
Respondent
Hearing: Wednesday 25 November 2020 Counsel:
N D F Bond for the Appellant
R H De Silva for the Respondent
Judgment:
18 December 2020
JUDGMENT OF CULL J
[1] On 18 October 2019,1 Mr Nathan was convicted in the District Court of assault with intent to injure,2 assault in a family relationship3 and strangulation.4 Mr Nathan appeals his conviction on the basis that a miscarriage of justice has occurred for three reasons:
(a)the Judge failed to give adequate reasons for setting aside Mr Nathan’s evidence and preferring that of the victim;
(b)the Judge erred in permitting the Police to adduce further evidence after the close of the Police case and that the circumstances in which this occurred created the appearance of partisanship; and
1 New Zealand Police v Nathan [2019] NZDC 21214.
2 Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
3 Section 194A; maximum penalty two years’ imprisonment.
4 Section 189A(b); maximum penalty seven years’ imprisonment.
NATHAN v THE NEW ZEALAND POLICE [2020] NZHC 3452 [18 December 2020]
(c)in respect of the conviction for strangulation, the victim was not cross- examined on her prior inconsistent statement that she was unsure whether her normal breathing had been impeded.
[2] The Police oppose the appeal on the ground there has been no miscarriage of justice.
Background facts
[3] At the relevant time, Mr Nathan and the victim had been in a relationship for approximately six months. They have no children together but the victim has one three year old child.
[4] On Monday 25 February 2019, Mr Nathan and the victim were in the living room of the victim’s house, following a birthday party for Mr Nathan attended by other whānau members. After the others had left and the victim’s son was put to bed, Mr Nathan and the victim were in the lounge area together. At some point, Mr Nathan went outside, possibly for a cigarette, and on his return the victim said she noticed a change in his behaviour, because he was irritated or angry at her for what he described as “showing off”. Without warning, he straddled her on the couch and, after verbally abusing her, punched her around the upper body area. The verbal argument continued and when they were seated next to each other on the couch, he punched her several more times in her arm, this time harder. In trying to push him away the victim tried to punch him the chest when Mr Nathan leant back and her hand made contact with his nose, causing it to bleed.
[5] Mr Nathan went to the bathroom to get a towel for his bleeding nose and on his return to the lounge the victim said he punched her in the face and upper body again. Both then fell asleep on separate couches in the lounge. Some time later, the victim asked Mr Nathan to come to bed but he assaulted her again, including a kick with his bare foot to her ear area. A further argument ensued after which the victim described how Mr Nathan threw a piece of firewood, described as a “good-sized log”, at her, which missed. The victim said Mr Nathan accused her of being a “drama queen” when she said her head was throbbing and that she wanted to go to a hospital. She described how she put a hoodie on but he grabbed it and, either using it or her
hair, dragged her into the lounge. Eventually the victim was able to go to bed with her young son in the early hours of the morning.
[6] The following morning, after Mr Nathan had gone to work, the victim called the Police, who visited, interviewed her, took a statement from her, and then left, saying that they would be arranging to talk to Mr Nathan. It seems the Police phoned Mr Nathan’s work place and as a result he became aware that the Police wanted to talk to him. He said in his evidence that he thought it might be something to do with his licence rather than any allegation of assault.
[7] Mr Nathan then texted the victim, asking her whether she had been to the Police. Assuming that she had, without her replying, he expressed his annoyance or anger that she had caused him to get arrested at his work so that his son would be left standing at school waiting to be picked up and he may lose both his job and his son. The victim says receiving those texts scared her so she went home to grab some gear intending to go to her mother’s, but before she could leave again Mr Nathan arrived home in his work ute at about 1 pm.
[8] The victim described that Mr Nathan came in really angry, calling her a nark and punched her in the face, then grabbed her by the throat and pushed her against a window in the conservatory, abusing her and threatening her, saying he was going to lose his job. The victim described how she had difficulty breathing during the 20 to 30 seconds or so that Mr Nathan held her around her throat but she eventually managed to push him off. They continued to argue about their relationship and the victim told Mr Nathan that it was over, at which point she says he picked up one or more of the drinks that she had purchased for lunch from kitchen table and threw them at her. She also says that he threw a chair at her, which hit her with a glancing blow but mainly struck a fish tank in the lounge.
[9] The victim says Mr Nathan also brandished a hammer at her, striking his own palm with it before he tried to make it up to her by apologising and hugging her. It was at that point that the Police arrived.
[10] The Police had been alerted to what was occurring inside the house because moments before Mr Nathan entered the house the victim dialled the Police emergency line again (111). When Mr Nathan entered the house, she put her phone down on a chair by the table so that Mr Nathan would not see it but she left the call open, recording what transpired.
[11] The victim had a number of injuries as a result of the incident, including multiple injuries to her right shoulder and arms, facial bruising, torso injury and bruising, and neck and throat pain. The District Court decision also records that when Police initially attended the victim’s address on their first visit on 26 February, one of the officers saw swelling above the victim’s eye and when the Police returned for the second time, the victim was described as being visibly distressed, crying, shaking and highly emotional.5
[12] When Police searched Mr Nathan’s address, two firearms and ammunition were located, for which Mr Nathan was charged with unlawful possession of firearms. He pleaded guilty to the firearms charges.
District Court decision
[13] The District Court heard the case in a Judge-alone trial over two days. The first part of the trial occurred on 15 August 2019 and the victim gave evidence, along with attending police officers. It transpired during the latter part of the prosecution evidence that there may have been a recorded 111 call relating to the events. This is the call on the 26 February when the victim said she called 111 and left the call open while the events unfolded.
[14] In the judgment, the Judge records that this call was “latterly disclosed to both the prosecution and the defence”,6 so the matter was adjourned part-heard to 18 October 2019 so that the 111 call could be located, transcribed, and at the resumption of the hearing, could be played to the Court as the final part of the Police case. That occurred and Mr Nathan then gave evidence.
5 Police v Nathan, above n 1, at [23].
6 At [2].
[15] Judge Tompkins found Mr Nathan guilty of all three charges and convicted him accordingly. He began by setting out the factual background outlined above. He then assessed the evidence given by each party, including the 111 call. He recorded that the defendant denied ever punching or partially strangling the victim, although Mr Nathan accepted that he whacked a cup of drink off the table as they argued.7 He acknowledged that he did suffer a bleeding nose but asserted that that came about when the victim punched him in the nose, effectively for no reason. He denied assaulting her in the way the victim and Police allege.
[16] In assessing the Police evidence, the Judge found that there were a number of matters outside the interaction between the victim and the defendant which were relevant. The first was the 111 call. The Judge commented that although the interaction between the two is “largely indistinct”, he concluded that “the overall impression is left that the defendant is the aggressor, at least to a degree, and that the audibly distressed victim complains of being hurt at instances during that call.”8 The Judge also concluded that the making of the call itself is corroborative of that aspect of the victim’s account.
[17] The Judge discussed the cross-examination of the victim, which attempted to show that she was ambivalent about the relationship ending, and concluded that “it is not unusual for persons involved in these kinds of events to have inconsistent responses to them” and he did not find the evidence to undermine the victim’s credibility.9 He also accepted the Police evidence that when they visited the victim that morning, one of the officers did see swelling above her eye, and when they returned for a second time she was visibly distressed.10
[18] Taking these matters into account, the Judge concluded that the defendant’s evidence was unsatisfactory in the sense that he minimised or avoided taking responsibility for what occurred that night and the following day, apart from when he was unable to avoid doing so. He continued:11
7 At [20].
8 At [21].
9 At [22].
10 At [23].
11 At [24].
Accordingly, I put his evidence entirely to one side and assess whether the charges are proved beyond reasonable doubt on the basis, primarily, of the complainant’s account, but also take into account that such external and unrelated evidence, outside of her own account, is consistent with the account she gave.
[19]The Judge concluded:
[25] I conclude that the case has been proved on all three charges. The complainant’s evidence and the sequential account she gave is consistent, as far as it goes, with the photographs produced, with the 111 call that she made, and with the attending constables’ evidence as to what was visible and apparent during both of their visits. Although the bruises to the complainant are difficult to discern in the relatively low quality photographs her swollen thumb is clearly apparent and I conclude that there are marks and swellings consistent with her account, particularly around her neck. …
[26] Accordingly, I conclude that all three charges are proved and that events unfolded, in respect to the essential elements of the offence, largely as the complainant described.
[Emphasis added]
[20] Mr Nathan was sentenced on 12 February 2020 to 20 months’ imprisonment for the domestic violence charges, together with eight months’ imprisonment to be served cumulatively for the firearms offending.12 That resulted in an end sentence of two years, four months’ imprisonment.13
Principles on appeal
[21] As noted, Mr Nathan appeals his convictions for strangulation, assault with intent to injure and assault in a family relationship.
[22] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.14
12 Police v Nathan [2020] NZDC 2480.
13 At [15].
14 Criminal Procedure Act 2011, s 232(4).
[23] Following Sena v Police, appeals are to proceed by way of rehearing, and the appeal court is required to form its own view of the facts and determine the appeal accordingly.15 If an appeal court comes to a different view than the trial Judge on the evidence, the trial Judge will necessarily have erred and the appeal must be allowed.16 However, the appeal is not to be approached de novo: it is for the appellant to show that an error has been made to such an extent that the process has miscarried.17
[24]I propose to deal with the three grounds of appeal in this order:
(a)the Judge erred in requesting and permitting the Police to adduce further evidence after the close of the Police case;
(b)in respect of the conviction for strangulation, the victim was not cross- examined on her prior inconsistent statement; and
(c)the Judge failed to give adequate reasons for setting aside Mr Nathan’s evidence and preferring that of the victim.
Did the Judge err in permitting the Police to adduce further evidence?
[25] To address this ground, it is necessary to set out the sequence of events between the first and resumed hearings in the District Court. In the initial defended hearing, the victim gave evidence that she had called 111 emergency services for a second time on 26 February, when Mr Nathan had arrived at her address. On his arrival, following Police advice from earlier that morning, she left the phone call open on a chair, out of the sight of Mr Nathan.
[26] Constable Morrison confirmed to the Court that before he left the victim that morning, he advised her that if Mr Nathan was to arrive back at the address, she should make a phone call to 111 and put her phone in a place where it could not be seen by Mr Nathan and leave the call open. He had already informed the Police communication centre of the victim’s mobile phone number and her address, so that if
15 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
16 At [38].
17 At [38].
any calls were received from that phone number or that address, any “police attendance would have to be a priority one status and needed to be attended to really quickly”. During the prosecution case, the transcript of the 111 call was not produced.
[27] At the end of Constable Morrison’s evidence, the Judge asked whether the 111 call, referred to in the evidence, had resulted in a recording. Constable Morrison responded that he did not know, but assumed that it may have. He said as far as he was aware, it was not available on that day. The Police prosecutor then closed the case for the Police.
[28] Immediately after the Police closed their case, the Judge further enquired as to whether the Police prosecutor knew anything about the 111 recording. The Judge expressed the view that such a recording appeared relevant, and asked trial Counsel if there was any objection to the Court requesting that the Police make enquiries about a recording over the lunch adjournment. After a brief adjournment to take instructions, Counsel for Mr Nathan advised his position on whether such a recording could be played would be advised once he had had the opportunity to listen to the tapes.
[29] The recording was subsequently obtained over the lunch adjournment and the Judge issued a ruling on its admissibility. He concluded:18
[4] Mr Luders objects to this recording’s admissibility, pointing to the lateness of this potentially relevant evidence being disclosed, namely on the day of the Judge-alone trial and as a consequence of questions asked by me and secondly, he stresses that the inaudible sections of the call, together with extraneous noise from the 111 call operators and the like, may lead to the probative value being lessened to an extent, that the prejudicial nature of the evidence outweighs the very reduced probative value. Given the way in which the complainant described making this call to the 111 number and the circumstances in which it, at least in part appears, although I have not yet listened to or heard the call, to record part of the factual narrative, which is of or potentially could be of central importance to proof of the charges against the defendant, whilst acknowledging the lateness of disclosure, I am satisfied that it should be admitted.
The Judge admitted the 111 tape evidence without having heard the recording himself, but both Counsel had heard the recording before making their submissions to the Judge.
18 Police v Nathan [2020] NZDC 26719.
[30] Mr Bond submits that at no point did the Judge acknowledge that the recording was to be admitted as evidence after the Police had closed their case, and nor did the Judge directly confront the defence objection that the disclosure had been obtained only in response to the Judge’s own questioning and invitation to the Police to obtain it.
[31] In the hearing before me, during the course of Counsels' submissions, Ms De Silva for the Police submitted that it was not clear whether the prosecution had formally announced that the prosecution case had concluded before the trial judge sought the production of the victim’s 111 call transcript. In light of its relevance to this ground of appeal, I allowed Counsel the opportunity to address the notation at page 41 of the notes of evidence, where the transcription service typed "PROSECUTION CASE CONCLUDES", instead of typing the words used by the prosecutor on the day, before the Judge questioned the Police prosecutor on his knowledge of the 111 transcript. I arranged for a typed transcript of what was said at the time to clarify.
[32] The transcript of the recording was typed back and at 12.53.37 pm, the record is as follows:
Q. But as far as you're aware, it's not available today?
A. As far as I am aware it's not available today, no.
Sergeant Ford. Thank you Constable, and that's the case for the prosecution. Thank you Sir.
It was only after that the Judge asked for more information about the 111 call.
[33] No further memoranda were filed by Counsel, so I proceed on the basis that the Police prosecutor had closed his case when the Judge invited the Police to obtain the 111 recording.
[34] Section 98 of the Evidence Act 2006 governs the admission of further evidence after the closure of a case. Mr Bond submits first that the Police should not have been permitted under s 98 to lead that evidence after the close of their case, and second that
the circumstances in which permission was given created the appearance of partisanship.
Did the Judge err in allowing the Police to adduce the 111 call after the close of its case?
[35] The general principle is that all evidentiary material to be relied upon by the prosecution probative of guilt must be adduced before the close of its case.19 The Court of Appeal in R v Timutimu, prior to the introduction of the Evidence Act, explained:20
… [The] rationale [for such a principle] is fairness to the accused, so that he or she has an adequate opportunity to know the Crown case and plan a defence accordingly: R v Chin (1985) 157 CLR 671. Nevertheless, the Court has an inherent jurisdiction to allow the Crown to call further evidence at a later stage. The discretion is to be used sparingly and in such a way as to strike the appropriate balance of justice between the Crown and the defence. The two recognised categories of exception are, first, situations involving purely formal issues and, second, where issues have arisen unforeseeably or ex improviso. The discretion will be exercised rarely outside these two exceptions: R v Francis (1990) 91 Cr App R 271 at 275-276.
[36] As noted, s 98 of the Evidence Act now governs the circumstances in which evidence may be adduced after the close of a party’s case,21 and subsections (3)(a) and
(b) essentially codify the two recognised categories of exception identified in the passage above:
98 Further evidence after closure of case
(1)In any proceeding, a party may not offer further evidence after closing that party’s case, except with the permission of the Judge.
(2) …
(3)In a criminal proceeding, the Judge may grant permission to the prosecution under subsection (1) if—
(a) the further evidence relates to a purely formal matter; or
(b) the further evidence relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen; or
(c) the further evidence was not available or admissible before the
19 R v Timutimu CA23/6/06, 30 November 2006 at [12].
20 At [12].
21 See also Clutterbuck v R [2013] NZCA 373.
prosecution’s case was closed; or
(d) for any other reason the interests of justice require the further evidence to be admitted.
(4)In a criminal proceeding, the Judge may grant permission to a defendant under subsection (1) if the interests of justice require the further evidence to be admitted.
(5)The Judge may grant permission under subsection (1),—
(a) if there is a jury, at any time until the jury retires to consider its verdict:
(b) in any other proceeding, at any time until judgment is delivered.
[37] Both parties accept that none of the grounds in s 98(3)(a)-(c) provide a ground for the Judge to permit the Police to offer the recording as evidence in this instance. The question is whether the Judge was correct to allow the Police to adduce the evidence under s 98(3)(d) – “for any other reason the interests of justice require the further evidence to be admitted.”
[38] Mr Bond submits this was not evidence that was given in order to ensure that Mr Nathan received a fair trial, but rather it was produced solely because the Judge thought that it would be relevant. Mr Bond submits that the possibility that further evidence, which has not been led as part of the prosecution case, might be relevant does not meet the threshold for what is “required” in the interests of justice. He submits, therefore, that it was not in the interests of justice to admit the 111 call, particularly as the call had not been disclosed, the prosecution did not intend to lead the call, the call was inaudible or indistinct, the probative value was outweighed by the illegitimate prejudice and the Judge had not heard the call and therefore could not form a view on defence Counsel’s submission.
[39] The commentary by the authors of Mahoney on Evidence on the interpretation of “interests of justice” under s 98(3)(d) states:22
Notwithstanding the more specific circumstances set out in s 98(3)(a)-(c), s 98(3)(d) gives judges the discretion to permit the prosecution to reopen its case where “the interests of justice require the further evidence to be admitted”.
22 Elizabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th ed, Thomson Reuters, Wellington, 2018) at 672-673 (footnotes excluded).
Nonetheless, by comparison with defence applications to adduce further evidence pursuant to the same “interests of justice” test set out in s 98(4), the particular circumstances listed in s 98(3)(a)-(c) suggest a more restrictive judicial attitude toward prosecution requests under s 98(3)(d). Indeed, consistent with the approved outlined by the Court of Appeal in R v Timutimu… the Law Commission has stated that s 98(3)(d) was added “to avoid injustice in exceptional circumstances that do not fit within paras (a)- (c)”.
[40] R v Timutimu provides an example of when judicial permission to reopen the prosecution case will be appropriate under s 98(3)(d).23 In that case, Mr Timutimu had been stopped and searched by a police officer who located a number of small snaplock bags containing white crystal powder in his car. The bags were removed to the Police station where they were recorded and labelled with Mr Timutimu’s name and weighing 6.6 grams. The bags were ultimately delivered to a scientist who issued a certificate confirming the existence of seven snaplock bags, each containing white crystal powder that was methamphetamine. The total weight, without the bags, was
4.3 grams.
[41] The Court of Appeal upheld the High Court decision, which allowed the Crown to call further witnesses after the close of the prosecution case.24 This was to remedy the defects in the “chain of custody” of methamphetamine evidence central to the prosecution. The High Court had found that the Crown’s failure to call relevant evidence arose from a misunderstanding between Counsel for the parties. Crown Counsel had understood from her discussion with defence Counsel that chain of custody of the drugs was not at issue. In those circumstances, the Court was of the view that Crown Counsel could fairly have expected defence Counsel to raise with her, before the Crown closed its case, that chain of custody was at issue. The High Court Judge relied on two further issues – the Crown had only just closed its case, and the subject evidence could hardly be characterised as relating to the central issue in the case. The Court of Appeal upheld this view and added that there was no prejudice to the accused in admitting the testimony, a step that would have been undertaken in the Crown’s case in chief but for the misunderstanding between the parties.25
23 R v Timutimu, above n 19.
24 R v Timutimu HC Auckland CRI-2004-092-14159, 4 May 2006.
25 R v Timutimu, above n 19, at [20].
[42] Another case where s 98(3)(d) has been considered, albeit briefly, is S (CA481/2018) v R.26 In that case, during the course of cross-examination of a defence witness, the prosecutor pursued an issue with some vigour and elicited an account of a conversation between the defence witness and a Crown witness, whom the prosecutor sought to recall to put the alleged conversation to him. The Court of Appeal accepted that the prosecutor would have been caught by surprise by the defence witness’s account: the Crown could not have reasonably expected to know of the alleged conversation.27 The defence witness’s account was also considered material because it put another witness’s reliability in issue. However, the Court concluded that in the particular circumstances of the case, it would not have been in the interests of justice under s 98(3)(d) (or 98(3)(b), which was the primary focus) to allow the rebuttal evidence. The Court explained it was the prosecutor rather than defence counsel who had made a major issue of the subject-matter, and the defence witness did not volunteer the answer. In other words, the prosecutor asked the question that invited the response.28
[43] The Police submit here that it was in the interests of justice to admit the 111 call and say, further, that the “prosecution was not aware that the call existed until after the complainant and Constable Morrison had given evidence.”
[44] I am unable to uphold this submission. The Police were aware of the call, having advised the victim to make it, and the summary of facts records that as soon as Mr Nathan arrived at the victim’s address on 26 February 2019, the victim called 111 immediately. Further, when the Judge questioned the Constable about whether he knew if the 111 call resulted in a recording, he responded:
I’m not entirely sure. I would assume that any communication with our communications centre via a phone call or anything like that may be documented by recording.
[45] Applying s 98 of the Evidence Act, the transcript evidence of the 111 call was not a formal matter,29 but one which required disclosure before the hearing. The
26 S (CA481/2018) v R [2019] NZCA 169.
27 At [29].
28 At [29]-[30].
29 Section 98(3)(a).
evidence was available before the prosecution’s case was closed,30 but the Police prosecutor, despite being asked by the Judge if it was available, closed the prosecution case and did not seek its admission.
[46] In S v R, the Court of Appeal found that where the failure to call the evidence earlier or the reason that the prosecution now needs to call further evidence is at the hands of the prosecution itself, as it was in that case, it may not be in the interests of justice to allow the evidence to be adduced.31 The same can be said in this instance. The Judge asked for the evidence after the prosecution case had closed, despite it having always been available for the prosecution to adduce, and then admitted it - over the objection of defence Counsel and without having listened to it.
[47] I find that the Judge erred in admitting the 111 call transcript in the following ways:
(a)He admitted it contrary to s 98 of the Evidence Act and against the authorities. It was not in the interests of justice to admit the evidence.
(b)He admitted the evidence without listening to it and undertaking an assessment under ss 7 and 8 of the Evidence Act as to its reliability, relevance and/or prejudicial value.32 The Judge acknowledged the sounds were indistinct, yet ultimately relied on it as part of finding Mr Nathan’s guilt.
(c)By admitting the evidence after the prosecution case, the defence never had an opportunity to seek a ruling on its admissibility before the defended hearing and nor did defence Counsel have an opportunity to cross-examine on it.
30 Section 98(3)(c).
31 S v R, above n 26.
32 See for example Bain v R [2009] NZSC 16, [2010] 1 NZLR 1.
Is there an appearance of partisanship?
[48] This point can be dealt with briefly. The relationship between the prosecutor and the Court requires that the Judge must avoid “descending into the arena” in an inquisitorial role, in which the Judge seeks to remedy the deficiencies in the case on either side.33 The Judge should always remain, and appear to remain, impartial.
[49] I accept Mr Bond’s submission that the Police had chosen to prepare and present their case in a way that did not include the recording of the 111 call. At no time did the Police seek to obtain or produce that call as evidence prior to the trial Judge’s invitation to do so. In inviting the Police to obtain and produce the 111 call, the Judge then “descended into the arena”. He gave the appearance of attempting to assist the Police by calling further evidence to close gaps in the prosecution case, stating that the 111 call “potentially could be of central importance to proof of the charges against the defendant”.34 By describing it as potentially important inculpatory evidence against Mr Nathan, I consider the Judge has given the appearance that he wished to obtain inculpatory evidence against Mr Nathan.
[50] The statement quoted from Judge Tompkins deserves to be considered in its entirety. The Judge said, and I repeat here for ease of reference:
[4] … Given the way in which the complainant described making this call to the 111 number and the circumstances in which it, at least in part appears, although I have not yet listened to or heard the call, to record part of the factual narrative, which is of or potentially could be of central importance to proof of the charges against the defendant, whilst acknowledging the lateness of disclosure, I am satisfied that it should be admitted.
[51] As noted above, the Judge had admitted the evidence without taking into account that the defence has not had an opportunity to cross-examine the prosecution witnesses. It appears he has overlooked this because he focused on the evidence being important to prove the charges against the defendant. This, in my view, has occurred because the Judge has descended into the arena by seeking to obtain further evidence to support the prosecution case to prove Mr Nathan’s guilt. I find that this too is an error of law.
33 R v Wilson (1996) 14 CRNZ 607 (HC) at 613-614.
34 Police v Nathan, above n 18, at [4].
Conclusion
[52] The Judge erred in admitting the 111 tape transcript after the close of the prosecution case.
The failure to cross-examine on a prior inconsistent statement
[53] Although I have made the above findings, I consider briefly the other two grounds, which may be of assistance to the parties in the future.
[54] The offence of strangulation consists of “intentionally or recklessly imped[ing] another person’s normal breathing” by “applying pressure on, or to, that other person’s throat, neck, or both.”35 To prove the charge, the onus is on the Police to prove beyond reasonable doubt that the victim’s normal breathing had been impeded.
[55] Mr Bond submits that a miscarriage of justice has occurred in respect of Mr Nathan’s conviction for strangulation due to the lack of cross-examination by trial Counsel on the victim’s evidence in chief that she could not breathe when Mr Nathan held her by the throat. The victim had given a prior inconsistent statement that she was unsure whether her normal breathing had been impeded. If the prior inconsistent statement had been put to her in cross-examination, therefore, the defence argue that there was a real possibility that the trial Judge may have found there was a reasonable doubt as to whether her breath had been impeded or not.
[56]The relevant passage of the victim’s evidence in chief was:
Q. And what happened once you were in the conservatory area?
A. He grabbed me by the throat and pushed me up against the window.
Q.Now, just got to take this quietly and slowly. Can you show us how he’s grabbed you by the throat? So you’re indicating the areas between the forefinger, sorry index finger and thumb is around the centre area of your throat, just above the Adam’s apple area that’s –
A. Yeah.
Q. - because we have to record what you are saying?
35 Crimes Act, s 189A.
A. Yeah.
Q.So that’s a fair, okay and what did he do once he’s grabbed you around the throat?
A.He was saying if I lose my son and my job, like, I’m going to kill you and just threatening me.
Q. And how loose or tight was this grip around the throat?
A. It was tight, I couldn’t breathe.
Q. And how long was he holding you around the throat area?
A. Close to a minute, maybe 40 seconds or so.
Q. And how were you feeling when he’s been holding you like that?
A. Oh, I couldn’t breathe and I was in shock.
Q. And after this 40 seconds or so, what happened then?
A. I pushed him off me.
[57] The victim’s formal witness statement, completed on the day of the alleged offending, contained no such allegation that she had been unable to breath. It relevantly states:
[17] I managed to step into the conservatory and I was near the outer sliding door.
[18] I faced him and he grabbed me around the throat with his hand. I am not sure what hand he grabbed me with.
[19] He pushed me up against the window and held me by the throat for about 40-50 second.
[20] I am not sure how long or if my breathing was restricted as I was in shock.
[21]My neck feels really tight and sore as a result of him choking me.
[Emphasis added]
[58] The fundamental issue is whether a miscarriage of justice occurred. As the Supreme Court emphasised in R v Sungsuwan, the focus is therefore on outcome, with the cause providing context.36 Trial counsel error is not a precondition of a miscarriage
36 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [69].
of justice. Rather, if the error is one that goes to the root of the trial process, it raises a risk of a wrong verdict and so itself constitutes a miscarriage of justice.
[59] The Supreme Court in R v Sungsuwan provided the appropriate approach to claims that a miscarriage of justice has occurred as a result of trial counsel error.37 First, there must in fact be an error or irregularity demonstrated on the part of trial counsel. Second, there must be a real risk that the error affected the outcome of the trial. The Court of Appeal has cautioned that simply because hindsight reflection points to a better course of action this does not necessarily mean that the original decision was an error, nor that there has been a miscarriage.38 Both parties accept that the courts are typically “slow to second-guess” defence counsel’s decisions in relation to cross-examination.39
[60] Trial Counsel has provided an affidavit setting out his decision-making in respect of choosing not to cross-examine the victim on the prior inconsistent statement. As provided in the affidavit, trial Counsel considered whether to cross- examine on the inconsistency, but decided against it on the following bases:
(a)It was not necessary to do so given the defence he was running, in accordance with Mr Nathan’s instructions, was that Mr Nathan never put his hands to the victim’s throat at all, not that he did so but never impeded her breathing.
(b)He assessed the victim as a “robust” witness, in that she maintained a calm demeanour and was clearly thinking critically about the evidence and answers she gave. He considered that if he cross-examined her on the inconsistency it was likely she would use it as an opportunity to shore up her evidence, which could have the effect of bolstering her evidence and credibility, a situation trial Counsel had found himself in recently to his and his client’s detriment.
37 At [70].
38 McGeachin v R [2015] NZCA 558 at [6].
39 W v R [2018] NZCA 11 at [15], citing S (CA361/2010) v R [2013] NZCA 179 at [60].
(c)The “prior inconsistent statement” simply said she was not sure if her breathing was restricted as she was in shock. It did not say her breathing was not restricted, and the preceding sentence was that he held her up against the window for about 40-50 seconds, and afterwards her neck felt really tight and sore “as a result of him choking me”. He considered there was enough there without cross-examining her on the point.
[61] As the Court of Appeal has noted, there must be “a degree of latitude accorded to counsel as to how to conduct cross-examination”.40 Here, defence Counsel considered the potential outcome for his client, genuinely believing that cross- examination of the victim may well adversely affect his client.
[62] Although it is understandable that defence Counsel wished to limit the risks to his client by cross-examining a “robust witness”, the principal ingredient of the charge was the restriction of her breathing. In order to prove the charge of strangulation, the Police must prove beyond reasonable doubt that the victim’s normal breathing had been impeded. The victim was not sure that had happened when first interviewed. Her prior inconsistent statement was therefore highly relevant and should have been put to her in cross-examination. It was critical that she was cross-examined on her prior inconsistent statement to impeach her credibility and raise a reasonable doubt the strangulation occurred, particularly as his client was giving evidence to deny that he impeded her breathing. There is, therefore, in my view a real risk that the failure to cross-examine on this point has resulted in a miscarriage of justice.
[63] On this ground, I find that the failure to cross-examine the victim on her prior inconsistent statement risked a wrong finding of guilt on the charge of strangulation and constitutes a miscarriage of justice.
Were adequate reasons given for preferring the evidence of the victim?
[64] The final matter is whether a miscarriage of justice has occurred because the trial Judge failed to give adequate reasons for rejecting Mr Nathan’s evidence in its
40 W v R, above n 39, at [15].
entirety and preferring that of the victim. Mr Bond submits the Judge erred in his assessment of the evidence to such an extent that a miscarriage has occurred. In light of my findings above, I deal with this briefly.
[65] After canvassing the prosecution and defence cases, the Judge concluded that:41
… the defendant’s evidence is unsatisfactory in the sense that he minimised or avoided taking responsibility for what occurred that night and the following day, apart from when he was unable to avoid doing so, for example, with respect to the spilled drinks shown in the photographs on the floor of the house.
The Judge then put Mr Nathan’s evidence “entirely to one side” and assessed whether the charges were proven based primarily on the victim’s account and that other evidence was consistent with the account she gave.42
[66] In Sena v Police, the Supreme Court emphasised the importance of reasons in Judge-alone trials.43 The Court “broadly accept[ed]” Counsel’s submission in that case that a Judge has to justify their findings. How a decision is reached and what was taken into account (and what was not) is of importance. A global credibility finding is not enough, and if the analysis or reasons are deficient, the conclusion is flawed and unsubstantiated.44 In the Court’s words:
[36] … We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. …
41 Police v Nathan, above n 1, at [24].
42 At [24].
43 Sena v Police, above n 15, at [35]-[36].
44 At [35], quoting Counsel’s submissions for the appellant.
[67] Both Counsel addressed this issue under a number of evidential headings. However, in light of my findings above, I do not propose to resolve those differences.
[68] What is of concern is the absence of the Judge’s reasoning in respect of each charge and why the defendant’s explanation, in respect of each charge, was rejected. I am not satisfied that the Sena test was met by the Judge’s blanket rejection of Mr Nathan’s evidence in its entirety. The only reason given by the Judge is that Mr Nathan “minimised or avoided taking responsibility for what had occurred”.45
[69] There is no analysis of each of the charges, their ingredients, or why Mr Nathan’s actual explanation was rejected in respect of each. I find therefore that the Judge erred by not giving adequate reasons for rejecting the defendant’s evidence in its entirety, in respect of all three charges.
Result
[70]The appeal against conviction is upheld.
[71]The convictions are set aside and I direct that a new trial be held.46
Cull J
Solicitors:
Bond Legal, Wellington for the Appellant G J Burston, Wellington for the Respondent
45 Police v Nathan, above n 1, at [24].
46 Criminal Procedure Act, s 233(3)(b).
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