Ngaweketuhimata v Police
[2019] NZHC 3176
•4 December 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-7
[2019] NZHC 3176
BETWEEN SHYAN NGAWEKETUHIMATA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 November 2019 Appearances:
C Tennet for Appellant
F E Cleary for Respondent
Judgment:
4 December 2019
JUDGMENT OF GRICE J
Introduction
[1] Mr Ngaweketuhimata was charged with 17 different offences, most of which related to family violence. These included six charges of breaching a protection order,1 two charges of male assaults female,2 one charge of threatening to kill,3 one charge of threatening to kill while using a firearm,4 two charges of assault with a weapon,5 one charge of assault with intent to injure,6 one charge of carrying a firearm without sufficient purpose,7 one charge of unlawfully discharging a firearm,8 one charge of
1 Domestic Violence Act 1995, ss 19(1)(a)–(b), 49(1)(b) and 49(3); maximum penalty of three years’ imprisonment.
2 Crimes Act 1961, s 194(b); maximum penalty of two years’ imprisonment.
3 Section 306; maximum penalty of seven years’ imprisonment.
4 Section 198B(a); maximum penalty of 10 years’ imprisonment.
5 Section 202C; maximum penalty of five years’ imprisonment.
6 Section 193; maximum penalty of three years’ imprisonment.
7 Arms Act 1983, s 45(1); maximum penalty of four years’ imprisonment or $5,000 fine.
8 Section 49; maximum penalty of three months’ imprisonment or $1,000 fine.
NGAWEKETUHIMATA v NEW ZEALAND POLICE [2019] NZHC 3176 [4 December 2019]
unlawful possession of a firearm9 and one charge of unlawful possession of ammunition.10
[2] On 17 August 2017 a District Court Judge gave a sentence indication to Mr Ngaweketuhimata on the above charges, with the exception of the charges for threatening to kill and threatening to kill while using a firearm.11 Mr Ngaweketuhimata rejected the indication of a four-year starting point, instead electing a judge alone trial. Mr Ngaweketuhimata entered a plea of guilty to one charge of breaching a protection order, unlawful possession of a firearm and unlawful possession of ammunition on 17 December 2017.
[3] Mr Ngaweketuhimata went to a judge alone trial on the remaining charges. It was held over two days, 19 and 20 April 2018, in the Napier District Court before the same Judge that had given the sentence indication. The Judge delivered his decision on 23 April 2018, finding Mr Ngaweketuhimata guilty on all charges.12 Mr Ngaweketuhimata was later sentenced to six years’ imprisonment on the charges set out above, together with two additional charges of assaulting police officers.13
[4]Mr Ngaweketuhimata appeals his convictions on four main grounds. They are:
(a)Judicial bias or inappropriate consideration of inadmissible evidence;
(b)Fair trial issues;
(c)Procedural errors relating to the trial; and
(d)Insufficient reasons given for the findings at trial.
9 Section 45(1) maximum penalty of four years’ imprisonment or $5,000 fine.
10 Section 45(1) maximum penalty of four years’ imprisonment or $5,000 fine.
11 Police v Ngaweketuhimata DC Hastings CRI-2017-020-001270, 17 August 2017 [Sentence Indication].
12 Police v Ngaweketuhimata [2018] NZDC 7821 [Conviction Decision].
13 Police v Ngaweketuhimata [2018] NZDC 22452 [Sentence Decision].
Factual background
[5] On 27 September 2016 a final protection order was issued by the Hastings District Court in favour of the first complainant, Mr Ngaweketuhimata’s former partner, and the two children, the second and third complainants. The second and third complainants were aged three and five years old.
[6]Four separate incidents gave rise to the charges.
4 April 2017
[7] The following charges arose from an incident on 4 April 2017: male assaults female; breach of a protection order against the second complainant; breach of a protection order against the third complainant; threatening to kill; threatening to kill while using a firearm; carrying a firearm without sufficient purpose; unlawful discharge of a firearm; assault with intent to injure; two charges of breach of a protection order against the first complainant; and assault with a weapon.
[8] On that day, all three complainants and Mr Ngaweketuhimata were travelling by car to Auckland for the unveiling of a family member’s headstone. During the trip to Auckland, Mr Ngaweketuhimata assaulted the first complainant repeatedly by punching her in the head. This gave rise to the charges of male assaults female and breach of a protection order.
[9] Mr Ngaweketuhimata was again the passenger in the car as they drove back from Auckland to Hastings. During that ride Mr Ngaweketuhimata’s behaviour became increasingly threatening and bizarre toward the first complainant. He asked her how she wanted to die and said that he was going to make her shoot herself. The children, in the back of the car heard this.
[10] The first complainant then pulled over at a petrol station in Taupō to buy oil for the car. As they left the petrol station Mr Ngaweketuhimata pulled out a screw driver which he held to the back of the first complainant’s head, hard enough to cause a cut. That screwdriver was held in that position until they reached the Waipunga Falls lookout. When the first complainant pulled up there she ran from the vehicle to get
away from Mr Ngaweketuhimata. He chased her with the screwdriver and told her he was going to make her jump off the falls. The children were hysterical in the car.
[11] Mr Ngaweketuhimata then returned to the car and opened the boot. He removed a shot gun, which he began to load with shells from an ammunition belt. The first complainant ran off screaming in fear. Mr Ngaweketuhimata caught her nearby and ordered her to remove her clothes. She returned to the car and took them off. Mr Ngaweketuhimata then pointed the shotgun at the victim. She heard a clicking noise, but the gun did not go off. Mr Ngaweketuhimata then pointed the gun in the air, pulling the trigger and causing the gun to discharge. She put her clothes back on and they returned home to Hastings.
[12] When they arrived home Mr Ngaweketuhimata became irritated with the first complainant. He punched her in the head a few times, until she fell to the ground. She curled up in foetal position and Mr Ngaweketuhimata kicked her in the head as she lay on the ground. The children were in the room at the time of the assault. The intervention of Mr Ngaweketuhimata’s sister was said to have stopped the assault.
13 or 14 April 2017
[13] The charging documents indicate this incident occurred around 13 or 14 April 2017. This offending gave rise to a charge of male assaults female and a charge of breaching a protection order.
[14] The first complainant and Mr Ngaweketuhimata were at home when Mr Ngaweketuhimata became frustrated and threw his cup of tea at her. This caused redness on her body.
17 April 2017
[15] The final set of offending occurred on 17 April 2017. It is not necessary to go into this offending for the purposes of this conviction appeal as Mr Ngaweketuhimata pleaded guilty to the relevant charges on 11 December 2017.
District Court decisions
Sentence indication
[16] The Judge gave Mr Ngaweketuhimata a sentence indication on the charges he initially faced. The starting point was four years’ imprisonment.14 The indication did not take into account other aggravating or mitigating factors the Judge might have needed to consider at sentencing. The Judge only had before him submissions from police and counsel for Mr Ngaweketuhimata, the police summary of facts and the victim impact statement from the first complainant.
[17]During that indication the Judge made the following statement:
[7] … The defendant is certainly fortunate that he was not also charged with threatening to kill or do grievous bodily harm which would have allowed a higher maximum, but that is beside the point for present purposes. In my view, as an assault with a weapon, and even though there was no actual physical contact, the case may have come with a hair’s breadth of being a homicide and is properly categorised as close to the worst of its kind for the purposes of s 8 Sentencing Act 2002. In my view on that basis alone, the police starting point of four years’ imprisonment is justified and it is that starting point which I adopt.
Procedure before the trial
[18] On or about 12 April 2018 the prosecution laid two new charges relating to the same events. These were for threatening to kill and threatening to kill while using a firearm. These offences have higher maximum penalties with starting points of seven and ten years’ imprisonment respectively, compared to the lower five year maximum term of imprisonment available on the existing charges. No case review hearing occurred following the laying of the more serious charges.
[19]The trial related to all the charges, including the new ones.
[20] On the first day, 19 April 2018, the trial was set to begin at 10 am. The first complainant, however, was not in Court. After the matter was stood down, she was located brought to court and the trial began in the afternoon. The hearing was completed comfortably within the two days allocated despite the late start.
14 Sentence Indication, above n 11.
Conviction decision
[21] Mr Ngaweketuhimata was convicted by the District Court Judge on 23 April 2018. 15 Mr Ngaweketuhimata specifically challenges procedural aspects of the hearing as well as the findings of credibility made by the Judge.
[22] Both Mr Ngaweketuhimata and the first complainant gave evidence at the trial. The Judge noted the first complainant’s credibility had been challenged based on the lateness of her complaint. In explanation, she had said she had needed time to consider her situation. The Judge said he needed to weigh her evidence against that given by Mr Ngaweketuhimata.
[23] Ms Letitia Ngaweketuhimata, the defendant’s sister, also gave evidence. The complainant had said Ms Ngaweketuhimata was present and intervened in the incident on 4 April 2017 at the home. In her evidence Ms Ngaweketuhimata said she was not there and claimed that the offending did not occur.
[24] Mr Ngaweketuhimata agreed that the times and places of the events described by the first complainant were otherwise correct, but says the alleged criminal acts against her did not occur.
[25] The Judge noted Mr Ngaweketuhimata’s defence was that none of the alleged criminal acts occurred. Mr Ngaweketuhimata further submitted that the delay between the alleged incidents and their reporting compromised the first complainant’s credibility. He said the allegations were an easy way for the first complainant to get rid of a socially inconvenient partner. In addition, he said that the conduct alleged was so brazen someone must have noticed it. Finally, he argued as he had pleaded guilty to a number of charges already, he should be believed when he said he was not guilty of the rest.
[26] The Judge rejected Mr Ngaweketuhimata’s argument that because he had acknowledged some offending he was truthful in his denials here. The Judge said that was not a reliable indicator of veracity. He also rejected the argument that the lateness
15 Conviction Decision, above n 12.
of the complaints undermined the complainant’s credibility. The Judge said there could have been good reasons for the delay in reporting. He noted the complainant was reluctant even to give evidence, as shown by the difficulty in getting her to attend court.
[27] The Judge turned to the demeanour of the complainant. He said she appeared stoic, sad, and unshaken although showed occasional hesitancy. The Judge said he had the impression that she had realised that it was now or never for her and her family. The Judge noted the consistency with the statements she made to the police. While the Judge reminded himself that repetition did not strengthen evidence, he did say it showed consistency.
[28] The Judge said the sister of Mr Ngaweketuhimata gave “bald” evidence.16 He further noted that Mr Ngaweketuhimata appeared angry when giving evidence and was often non-responsive or evasive. The Judge also said it was important that the factual narrative had been confirmed by Mr Ngaweketuhimata, although the criminal actions were denied. The Judge particularly said aspects of his evidence were implausible.
[29] The Judge concluded there was nothing before him that led him to form a reasonable doubt about the charges based on evidence of the first complainant. He found all charges proved.
Law on conviction appeal
[30] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a “miscarriage of justice has occurred for any reason”.
[31] A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity”. The Supreme Court has reiterated that not every error or
16 At [36].
irregularity causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.17
[32] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.18 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.19
[33]I now turn to consider the heads of appeal.
Grounds of conviction appeal
[34] As I have already noted, Mr Ngaweketuhimata appeals his convictions on four main grounds:
(a)Judicial bias or inappropriate consideration of inadmissible evidence;
(b)Fair trial issues;
(c)Procedural errors relating to the trial; and
(d)Insufficient reasons given for the findings at trial.
[35]I will address each of those grounds.
Judicial bias or inappropriate consideration of inadmissible matters
[36] Mr Tennet, for Mr Ngaweketuhimata, argues that the Judge should have recused himself from the trial as he had already presided over the sentence indication. Mr Tennet says that this was both as a matter of general policy and in light of the specific circumstances of this case. He submits that because the Judge had previously had to assess the allegations, consider the summary of facts and the victim impact
17 Matenga v R [2009] NZSC 18 at [30].
18 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].
19 At [110].
statement he should not have later heard the case. The risk, he argues, is that the Judge may have inappropriately considered matters, or appeared to have inappropriately considered matters, that were not before him at the trial.
[37] Mr Tennet raises a concern about comments the Judge made in his sentencing indication. The Judge said that a charge of threatening to kill would not be out of place based on the facts then before him.20 Mr Tennet notes that that very charge was then laid by the police less than a week before Mr Ngaweketuhimata went to trial before the same Judge in April 2018.
[38] Mr Tennet relies on R v Smail.21 That case involved a defendant who pleaded guilty based on an informal sentencing indication. The Crown successfully then appealed the sentence and a new sentence was imposed. The defendant then appealed saying that he had been led to believe he would receive a much lower sentence. The case turned on whether or not there had been a sentencing indication. The Court referred to the dangers of providing a sentence indication. However, that case was decided before the sentencing indication process was recognised in the legislation. There is no dispute that a formal sentence indication was given here. I consider that Smail is of limited assistance.
[39] Ms Cleary, for the police, says that the laying of more serious charges was already in contemplation by the police. She says there is nothing to suggest the additional charges were due to the Judge’s comments. There is no prohibition on a judge sitting on both the sentencing indication and the relevant trial.
[40] The crux of the issue here is whether the circumstances are such as to support an allegation of judicial bias. The recent High Court decision W v R is of some assistance.22 In that case the District Court Judge had reviewed materials prejudicial to the appellant and had expressed views in the lead up to trial. The relevant test for judicial bias was there summarised as follows:
[46] In Saxmere Co v Wool Board Disestablishment Co Ltd the Supreme Court authoritatively stated the test for apparent bias within the judicial
20 Sentence Indication, above n 11, at [7].
21 R v Smail [2008] NZCA 6, [2008] 2 NZLR 448.
22 W v R [2019] NZHC 2740.
system:23 whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The possibility — not probability — must be “real and not remote”.24 Further:
[5] The fair-minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision. He or she must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias. Lord Hope of Craighead commented in Helow v Secretary of State for the Home Department that:
[3] … before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
[47] The observer is assumed to understand three matters relating to the conduct of judges:25
(a)A judge is expected to be independent in decision-making and has taken an oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill-will”.
(b)A judge has an obligation to sit on any case allocated to the judge unless grounds for disqualification exist. It is regarded as important that judicial officers discharge their duty to sit and do not accede too readily to suggestions of apparent bias because that might encourage parties to believe they can seek disqualification of the judge in favour of one thought to be more likely to decide the case in the party’s favour.
(c)Judges are a trusted element of the judicial system which functions on the basis of decisions made as between litigants irrespective of the merits or demerits of their counsel.
[48] The issue of apparent bias is not to be tested by reference to the views of the particular litigant who has made the allegations and who endeavours to have a result overturned on that basis. That individual is likely to be “the least
23 Saxmere Co v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 [Saxmere (No 1)] at [3].
24 At [4].
25 At [8].
objective observer of all”.26 Equally, the issue is not tested by reference to judicial statements as to what did or did not influence the judge.
[41] Ms Cleary says there can be no credible suggestion of judicial bias here. The sentencing indication was given over seven months before the Judge alone trial and the Judge assessed the evidence carefully before he reached his decision to convict.
[42] Mr Phelps, who acted for Mr Ngaweketuhimata in the District Court, said in his evidence before me that he had not asked the Judge to recuse himself. Mr Phelps said that was not because of any concern about upsetting the Judge but because he considered it was a serious matter to raise. He said it would challenge the Judge’s ability to put the information from the sentence indication to one side. He also said there were a limited number of Judges sitting in criminal matters locally which might make recusal difficult. However, Mr Phelps also pointed out he had had a number of robust exchanges with the Judge in the course of the trial. This showed that he was not reticent, nor slow to take up appropriate matters with the Judge.
[43] For completeness, I note there are no allegations of trial counsel error in this case.
[44] Mr Tennet pointed to the following matters as support for the apparent bias ground:
(a)the Judge had said at the sentence indication it was fortunate the defendant was not facing more serious charges. Later, after those more serious charges were laid, the Judge commented at the commencement of the trial it was “entirely predictable that sooner or later this was going to be contemplated by the prosecutor, so we will enter the not guilty pleas for both matters now, Sergeant are you in a position to go today?”. Mr Tennet says the Judge made these comments based on the information he had gleaned at the sentence indication.
(b)the Judge asked the prosecutor about whether the complainant’s prior consistent statement, being her first statement to the police, should be
26 At [10].
produced. The transcript shows an exchange between the Court, the prosecution and Mr Phelps. It was not formally produced.
(c)the prosecutor asked Mr Ngaweketuhimata about when he had spoken to his counsel about what questions should be put to the first complainant. The defence objected to this question based on a recent Court of Appeal decision in Hazelwood v R which dealt with questions which might result in an answer breaching legal privilege.27 The Judge expressed some doubt as to the effect and ambit of Hazelwood in the course of dealing with the objection. Apparently, the Judge and Mr Phelps had been involved in Hazelwood at some stage. The objection was resolved by the prosecutor reframing the question.
(d)when questioning Ms Letitia Ngaweketuhimata the Judge asked her if she had Mongrel Mob connections. He then used colloquial language to put the proposition that it might be acceptable in gang circles for a woman to be hit by her partner but it would not be acceptable if the children watched. Ms Ngaweketuhimata denied she was present during the offending on 4 April. She maintained that in her responses to the Judge.
[45] Mr Tennet summarised the interventions described as the Judge behaving in a way, that in the circumstances, gave rise to apparent bias. This was particularly so where the Judge had knowledge of the allegations from presiding in the sentence indication. Mr Tennet said that counsel should not be put in the position of accusing a judge of bias. This was particularly so in a locality where there were a limited number of judges sitting on criminal matters. He said it was the Judge’s obligation to recuse himself even if counsel did not take up the point. He also noted that counsel may be reluctant to make bias allegations particularly if they regularly appear before the Judge.
27 Hazelwood v R [2018] NZCA 44 at [41].
[46] Ms Cleary says that there was nothing in the exchanges referred to which indicated apparent bias. They were no more than might be expected in a defended judge alone hearing.
[47]I now consider each of these matters in turn.
[48] First, the Judge’s comments about the amended charges might have been unnecessary but do not support an allegation of apparent bias. The sentence indication had been given seven months earlier and Mr Ngaweketuhimata faced firearms charges at that stage. The fact of the involvement of the firearms charges pointed to the possibility of more serious charges being laid. This was apparent from the charging documents. I also note no objection was raised by counsel at the time. The Judge’s passing the comment was unexceptional in the circumstances and did not indicate any view on Mr Ngaweketuhimata’s innocence. It was merely a comment about the charges. If counsel had had any concerns about the Judge’s familiarity with the facts he would have expressed them to the Judge.
[49] Turning to the two evidential interventions, I do not consider they support the ground of apparent bias. A Judge often takes a more active role in a judge alone trial than in a jury trial. This is particularly so if the Judge is seeking clarification of a factual matter which he will be required to determine. The exchanges between the Judge and Mr Phelps here were not out of the ordinary in that context. Mr Phelps was clearly experienced and familiar with the issues that were raised. He was able to engage appropriately with the judge on the points. Mr Phelps’ points were apparently accepted by the Judge on both occasions.
[50] Finally, I turn to the questions directed by the Judge to Ms Ngaweketuhimata. The fact the Judge put his questions to her in colloquial language may look strange in the transcript, but it is apparent the Judge was attempting to put the issue of why she might have intervened clearly to the witness. His questions do not go beyond what is acceptable. Ms Ngaweketuhimata did not show any signs of intimidation.
[51] In my view, the matters pointed to here either separately or together do not give rise to an appearance of judicial bias in this context. A fair minded lay observer with
a reasonable understanding of Court process would not believe that the Judge would fail to bring an impartial mind to the case. A Judge in a judge alone case will often intervene to clarify as factual issues which he considers may assist him reaching his conclusion. Mr Phelps was experienced and he engaged appropriately with the Judge. He was not concerned about possible or apparent bias and denied that he felt concerned about confronting the Judge where appropriate. The legal points were not straightforward and the issues raised in the Judge’s interventions were resolved largely in favour of Mr Ngaweketuhimata. The ability to put to one side evidence that should not be considered during a trial is part and parcel of a Judge’s role.
[52] As I noted the legislation does not prohibit the same Judge sitting on a sentencing indication and trial on the same matters. In my view this ground is not made out. No error giving rise to a miscarriage of justice has occurred on the basis of apparent bias or judicial bias.
Fair trial rights
[53] Mr Ngaweketuhimata was not present in the Court for about half an hour when some expert evidence was given and an application for adjournment was granted.28 Mr Phelps was present representing Mr Ngaweketuhimata at the relevant time. The notes of evidence record Mr Ngaweketuhimata was absent from about 11.30 am to
11.49 am. Mr Tennet says this was an error as a defendant should always be present throughout his trial.
[54] Mr Ngaweketuhimata said he was in the holding cells outside the court room. The Judge had returned after the matter had been stood down because the complainant had not shown up. The Judge returned, as was expected, at about 11.30 am. Mr Ngaweketuhimata was not taken into the court room when the Judge returned. It is not clear why this occurred. Mr Phelps said the Judge’s return was not sudden. The Judge was properly announced and counsel had been expecting his return. It appears to have been an oversight as none of the Court participants, including Mr Phelps, noticed that Mr Ngaweketuhimata was not present for a short period.
28 I note the adjournment did not occur in the end.
[55] The police arms expert gave evidence during that period. The evidence was given in an iterative manner, with the Court asking questions and counsel adding comments. It appears that before the Judge returned the prosecutor and defence counsel had been discussing an issue with the expert. This led to an indication that common ground could be found which would shorten the evidence. Overall the evidence was favourable to Mr Ngaweketuhimata. It related to whether the firearm had jammed or the safety mechanism was intentionally engaged when the gun was fired at the first complainant.
[56] Mr Tennet accepted that the evidence was favourable but said that as Mr Ngaweketuhimata was not present to hear it was an error which gave rise to a miscarriage of justice.
[57] I turn now to the ruling given during that time. The complainant had failed to appear at 10 am so Judge had stood the matter down for police to locate her. He came back into Court at about 11.30 am. Following the exchange with the arms expert, counsel and the Judge discussed options if the case could not proceed that day. Mr Phelps said that any adjournment application should be declined and the charges dismissed. The Judge responded that the complainant not turning up was not unusual and given the seriousness of the charges and the involvement of domestic violence, he was satisfied the case should proceed and that any adjournment sought should be granted. The adjournment was not needed as the first complainant arrived in time for the case to begin at 2.15 pm.
[58] In my view, while it was irregular that Mr Ngaweketuhimata was not present for 20 minutes, there was nothing which occurred in the period of his absence which would result in a miscarriage of justice. The expert evidence favoured him in some respects and in any event was not relevant as his defence as he said that the shot gun firing had never occurred. The adjournment ruling never became relevant as the complainant was found in time for the case to proceed. In addition Mr Phelps as counsel was present representing Mr Ngaweketuhimata throughout.
[59] In the circumstances there was an irregularity but no miscarriage of justice. These matters would not have impacted the outcome of the trial.
Procedural errors
[60] Several procedural errors have also been pointed to as creating difficulties in the trial that might give rise to a miscarriage of justice.
[61] The first of these is that new charges were laid only a week before Mr Ngaweketuhimata was to go to trial. There was no adjournment to permit time for a case review hearing to occur. Mr Tennet says this was an oddity and particularly problematic here. There was no opportunity to seek a sentence indication based on the new charges nor take other steps that might have been possible if a case review hearing had occurred.
[62] I note, however, where charges have already been laid, the adding of new charges does not always require a case review hearing or case review memoranda.29 In circumstances where a defendant pleads not guilty to a new charge that is added to an existing proceeding where a case management memorandum has already been filed, the normal case management rules do not apply.30 In any event, no adjournment was sought. The charges were laid almost a week before trial and the facts upon which they were based were the same as those on which the original charges had been laid. Mr Ngaweketuhimata had already had a sentence indication hearing, albeit on less serious charges, which he had rejected. There was no miscarriage of justice in relation to the laying of new charges. No errors occurred here.
[63] Next, Mr Tennet argues evidence, being transcripts of Mr Ngaweketuhimata’s phone conversations from prison, were inappropriately adduced at trial. This is because at the case review hearing the prosecution indicated it did not intend to adduce them. However, before the hearing, apparently when a new prosecutor took over, the decision was made to adduce the evidence. Mr Phelps was not notified until approximately a week before the trial. The relevant evidence had been disclosed earlier and well in advance of trial.
29 Criminal Procedure Act, s 140
30 Section 140(1)–(3).
[64] The initial thrust of this ground was that the delay in notifying Mr Phelps of the evidence being called had prejudiced Mr Ngaweketuhimata. In the course of oral submissions, however, the argument became that the transcripts were illegally obtained evidence and the Judge had not undertaken the required consideration for their admission under the Evidence Act 2006. Mr Phelps indicated that his concern about the transcripts was that the evidence was produced late without a production order or a search warrant.
[65] In response the Crown said, in relation to any delay, that while it was irregular for the prosecution to initially say that the transcripts would not be produced and then produce them, nevertheless, any prejudice could have been dealt with by adjourning the matter. No such application was made. It is difficult to see how any prejudice did accrue. If delay had been a cause for the concern an application for an adjournment would have been the appropriate course for the defence to take. None was made.
[66] Turning to the argument that the evidence was illegally obtained, Mr Phelps indicated the usual practice was either for an order to produce to be made or a search warrant executed to obtain the transcripts for production.
[67] Ms Cleary pointed to ss 112 and 117 of the Corrections Act 2004. These sections authorise the recording of a prisoner’s phone calls and disclosure concerning those calls by the Department of Corrections (the Department). In particular, s 117 allows disclosure of a prisoner’s calls if there is belief, on reasonable grounds, that the disclosure is necessary “to avoid prejudice to the maintenance of the law by a public sector agency … including the prevention, detection, investigation, prosecution and punishment of offences”.31 A further ground for disclosure is that the authorised person believes on reasonable grounds that the disclosure is necessary for the conduct of proceedings before a Court or Tribunal.32
[68] Mr Tennet responded to this submission that nevertheless the production was a breach of privacy.
31 Section 117(2)(a).
32 Section 117(2)(b).
[69] The submissions on the transcripts being unlawfully obtained evidence were not developed in any depth before the oral submissions were made and it appears that no objection was raised to the evidence being unlawfully obtained at the time it was adduced.
[70] However, I am of the view that, in any event, the evidence was able to be adduced through s 117 of the Corrections Act. It was not unlawfully obtained evidence and did not require an evidential ruling.
[71] The defence was given late notice of the adducing of the evidence. This was not best practice but there was no prejudice to Mr Ngaweketuhimata as sufficient notice had been given to enable the defence to prepare for the evidence. Notice had been given nearly a week before trial and the evidence had been disclosed some time earlier.
[72] I do not consider any error was made in relation to the admission of the transcripts. In any event no miscarriage occurred on the basis of procedural errors as outlined.
Insufficient reasons
[73] Mr Tennet argues the Judge gave insufficient reasons for rejecting Mr Ngaweketuhimata’s evidence and accepting that of the complainant. He says the Judge relied on demeanour and was influenced by what he had previously read and heard at the sentence indication. The Judge said:33
[33] I can have regard to the demeanour of the complainant whose evidence in Court, when she finally was persuaded to come along, had a stoic character about it. She was sad and downcast, but nevertheless unshaken in what she had to say and one formed the distinct impression that the complainant had realised, because of the nature of the allegations being made, that it was probably now or never for herself and her family.
[74] In my view the Judge correctly considered the evidence. He referred to why he preferred the evidence of the complainant and not that of Mr Ngaweketuhimata. In addition to the comments about demeanour the Judge pointed to other reasons for
33 Conviction decision, above n 12.
believing her over the appellant. The Judge was also alive to the need for careful weighing of the evidence when he said:
[25] Having recounted those allegations in some detail, it is obviously important to weigh against them the evidence given by the defendant who has chosen to give an account of matters and has also called his sister to the one particular point to which I have already referred. The defendant’s evidence is largely to the effect that none of the episodes of violence claimed by the complainant, in fact, took place.
…
[28] Many questions thereby go unanswered, but the bottom line in all of this is that the matters alleged by the complainant, so far as domestic violence are concerned, are entirely denied. So, too, are any threats, even though the framework within which she says the offending took place is agreed. The specific ingredients of each of the offences is denied and, of course, the onus is on the prosecutor to prove those beyond reasonable doubt. I repeat, the defendant is not obliged to give or call evidence and he takes on no onus of proving anything.
[75] In relation to the complainant’s credibility he noted the domestic violence context and background. He said:
[31] So far as the first and second platforms of the defence are concerned, fabrication and delay, there is an obvious tension between them. Why, for example, would an accuser bent on making self-serving false allegations for ulterior reasons delay in making those allegations? Why would the same complainant fail to attend at Court to give evidence except hours late and then under threat of arrest and with much support and encouragement from the police and officials if the complaint she was bent on making was false and for her purposes? Both questions must arise in the context of this case.
[32] We know, too, that psychologists and sociologists have finally persuaded the Law that 18th century notions of “hue and cry” are unsound and that there can be good reasons for delay in making a complaint. I have to consider whether those good reasons exist here and in doing that I am entitled to draw on the not inconsiderable information I now have about the relationship and the background of the people involved in it. I have also seen and heard the protagonists.
…
[34] The statement that [the complainant] made to the police was referred to in cross-examination. It has to be said that that is largely consistent with the evidence given in Court in material respects, particularly considering the violence which she alleges. Her evidence was occasionally hesitant. She was occasionally in a position of having to say, “I don’t remember.” In context, I do not take any such admission as amounting to a capitulation or resiling from the complaints made and it is to be borne in mind that the complainant in this matter was highly conflicted, not only by Māori family loyalty, but also by
Māori gang affiliation with all the implications that those have when giving evidence in the Court environment.
[35] I remind myself that the repetition of allegations does not strengthen or add to them, but it is a matter that can be taken into account where consistency is in issue.
…
[39] Other mundane domestic matters about time and place, expenditure en route, accommodation en route, et cetera, as recounted by the complainant are all effectively common ground, so that there are many shreds of corroborative detail that coincide convincingly with the complainant’s account of matters, except of course for the violence to which she refers.
[40] So, the question becomes, has the complainant introduced into a mundane and undisputed domestic travel arrangement a series of bizarre, terrifying, humiliating and quite degrading fabrications in order to falsely accuse the defendant and has she made use of her children as props in that same fabrication and to that same end?
…
[42] I return to the complainant’s narrative which is convincing and in many respects rather too horrible, too degrading to her, to have been the subject of invention. Likewise, it seems to me highly improbable that such a narrative would be dreamed up and incorporating the children by a mother presenting the demeanour of this complainant.
[76] On the other hand the Judge pointed to the reasons he did not believe Mr Ngaweketuhimata’s denials. He said:
[36] … But of course, his is the only evidence save that of his sister that the complainant is untruthful and I think it is fair to say that his sister’s evidence was bald and not, in my view, conclusive of the propositions for which it was led.
[37] The defendant in giving evidence was impulsive and angry, as indeed other documents in the case demonstrate that his conduct may be from time to time. His answers were frequently either non-responsive or evasive, but the content of his evidence, of course, largely confirms the factual background account also given by the complainant: the journey to Auckland, its purposes and its events from beginning to end.
[38] The defendant, of course, denies the violence and denies the use of the gun, but the existence of a gun is confirmed by him, albeit with a number of implausible surrounding matters of detail which incidentally were not put to the complainant while she was giving evidence, particularly any connection between her family and this particular gun, let alone any suggestion that members of her family concealed it at the defendant’s home.
…
[41] Having seen and heard all the evidence in the case, there is nothing here that causes me reasonable doubts about the evidence given by the complainant. So far as the defendant’s evidence is concerned where he denies the violence, I do not accept it and I put it to one side.
[77] The Judge gave appropriate reasons for preferring the complainant’s over Mr Ngaweketuhimata or his sister. There is no miscarriage of justice. The Judge’s reasons were sufficient.
Conclusion
[78] I have found while there were some procedural irregularities in the conduct of the proceedings, however, they do not support a finding on appeal that there has been a miscarriage of justice either separately or taken together in this case.
[79]The appeal against conviction is dismissed.
Appeal against sentence
[80] The focus of this appeal was Mr Ngaweketuhimata’s conviction. However, Mr Tennet also made submissions on the sentence. These submissions were based on the fact that the sentence indication gave a starting point of four years, whereas Mr Ngaweketuhimata’s final sentence was six years’ imprisonment with a starting point of five years’ imprisonment being uplifted to recognise other offending.34
[81] An appeal against sentence is brought under s 250 of the Criminal Procedure Act 2011. It is an appeal against a discretion and must only be allowed if the Court is satisfied that there has been an intrinsic error in the sentence imposed and a different sentence should be imposed.35 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.
[82] Mr Tennet acknowledged there were two further assault charges relating to police officers which were not before the Judge at the time of the sentence indication. Nevertheless, he said they would only have justified a further six month uplift. Mr Tennet said the facts at the indication were essentially the same as dealt with by
34 Sentence Decision, above n 13.
35 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.
the Judge in the final sentencing,36 and thus the substantially higher starting point was not justified. He said, despite the charges being more serious, when the Judge raised the starting point from four to five years on unchanged facts, he was unfair to Mr Ngaweketuhimata.
[83] Mr Tennet suggested that in the circumstances it was open to this Court to allow the appeal and immediately re-sentence Mr Ngaweketuhimata. He accepted that there were serious domestic assaults involved. He said this Court should resentence Mr Ngaweketuhimata at the level contemplated by the sentence indication. This would avoid a retrial which would mean the complainant would need to give evidence again.
[84] This submission ignores the fact that the sentencing judge was facing a different situation to that before him when he gave the sentence indication. For a start even though the facts were similar, or as Mr Tennet has it more favourable to the defendant, the Judge had to take into account the more serious charges and the increased maximum penalties involved. Similarly, there were a further two assaults which appear to have been reasonably serious. The Judge had also seen and heard the evidence on the series of domestic violence incidents. He was not just relying on a summary of facts and so was in a better position to assess its seriousness. It is the whole of the offending that needs to be taken into account by the sentencing Judge. His sentence was not out of the expected range.
[85] Apart from pointing out the one-year difference between the sentencing indication and the final sentence, nothing was put before me which suggested the level of the sentence was out of the appropriate range.
[86]In my view the Judge made no error in the sentence.
[87]For those reasons the appeal against sentence is dismissed.
Grice J
36 He said it could even be possibly better as there was no suggestion of attempted murder, given the expert arms evidence.
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