Nikau v Police

[2012] NZHC 3568

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-419-000043 [2012] NZHC 3568

TAWERA NUI EIA NIKAU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 December 2012

Counsel:         G Gotlieb for the Appellant

R G Douch for the Respondent

Judgment:      20 December 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 20 December 2012 at 2.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

G Gotlieb: [email protected]

R Mann: [email protected]

NIKAU V POLICE HC HAM CRI 2012-419-000043 [20 December 2012]

[1]      Mr  Nikau  appeals  against  a  decision  of  Judge  PR  Spiller,  sitting  in  the District Court at Huntly, delivered on 1 June 2012, finding him guilty of one charge of male assaults female.  He also appeals orders made on 9 July 2012, when he was convicted and ordered to make payment of $250 by way of reparation and Court costs of $132.89.

[2]      The  notice  of  appeal  asserts  that  Judge  Spiller  erred  in  entering  the conviction, because Mr Nikau was acting in self defence.   It also asserts that the Judge erred in finding Mr Nikau guilty after he had indicated that he did not require Mr Nikau to give evidence.  In relation to sentence, it is asserted that the Judge erred because he sentenced Mr Nikau by reference to the seriousness of the charge, rather than by reference to what actually occurred.

[3]      Submissions  have  subsequently  been  filed  for  Mr  Nikau  clarifying  the grounds  of  appeal.   The appeal  against  conviction  is  founded  on  the following grounds:

(a)       miscarriage of justice due to “trial irregularity”;

(b)      inadequate reasons given by the Judge for his decision; and

(c)       conviction against the weight of the evidence.

The  appeal  against  sentence  asserts  that  Mr  Nikau’s  application  for  discharge

without conviction should have succeeded.

[4]      In the event, I have concluded that the appeal should be allowed because there was a miscarriage of justice, such that I cannot be confident that the verdict is safe.  I am sending the matter back to the District Court for rehearing.  I therefore make no finding in relation to any of the other grounds of appeal and do not venture any comment on them.

[5]      The incident the subject of the charge occurred against a backdrop of ongoing difficulties in the relationship between Mr Nikau and his daughter, the complainant. There had been conflict regarding custody of the complainant’s two children shortly before the incident.

[6]      The police case was that Mr Nikau assaulted his daughter at about 2.00 pm on  24  February  2012,  on  William  Street  in  Huntly.    The  police  asserted  that Mr Nikau   was   driving   his   motor   vehicle   in   a   northerly   direction   along William Street, in the area of the police station, and that he saw his daughter and another female walking north along the footpath.  They asserted that he stopped his vehicle and yelled out to his daughter.  She could not hear what was being said so she approached  the vehicle and  opened  its  rear door.   The police asserted  that Mr Nikau got out of the vehicle, walked around to the rear of the vehicle, grabbed his daughter around the throat area, and pushed her backwards across the road to the footpath.   They said that Mr Nikau then released his daughter, got back into his vehicle, and drove off.

[7]      The  police  called  evidence  from  the  complainant,  from  an  independent witness, a Mr Brown, and from a Constable Peter Sherie, who was called to assist in the matter.  Constable Sherie subsequently interviewed Mr Nikau, and a copy of the DVD interview was produced in the course of the hearing.

[8]      The complainant said that she was walking along the street with a female friend, outside the police station in Huntly.  Mr Nikau drove past in his motor vehicle and yelled out something to her.  She said that she walked towards the motor vehicle to find out what he was saying.  Mr Nikau stopped the vehicle in the street, and she went to the back door of the vehicle and opened it.  Mr Nikau got out of the vehicle and walked towards her.  According to the complainant, he was angry and “hyped up”.   She said that he attacked her by putting his right hand around her throat, partially blocking off her breathing and making it difficult for her to speak.  She said that the assault caused a small bruise on her neck.   She accepted that in breaking free, she might have struck Mr Nikau.

[9]      The independent witness, Mr Brown, said that he was following Mr Nikau’s vehicle along William Street in Huntly on the day in question, and that Mr Nikau stopped in the middle of the lane.  He did not notice what preceded the incident, but said that he did see Mr Nikau get out of his vehicle and walk around to the two women.  He said that he saw Mr Nikau walk up to one of them and put his hand around her throat or upper chest area, and push her up against a tree.   In cross- examination, Mr Brown conceded that Mr Nikau was not throttling his daughter — rather, he was holding her away.

[10]     In his police interview, Mr Nikau said that he saw his daughter walking down the road, and stopped to ask if she was “OK”, and that she then started yelling abuse at him.  He said that his daughter then came out onto the road, punched his rear-side passenger door and opened that door.   He said that he got out, and that she ran towards him to attack him and scratched his arm.   He said that he retaliated by pushing her off and holding her at a distance.   He expressly asserted that he was acting in self defence.

District Court Judge’s Decision

[11]     In an oral judgment delivered on 1 June 2012, Judge Spiller recorded the various versions of events.   He made various observations regarding the onus of proof.  He then found, without any detailed elaboration, that the police had proved the charge against Mr Nikau.   Judge Spiller recorded that he had considered the evidence and in particular, the evidence of Mr Brown, the independent witness.  He found Mr Nikau guilty as charged.  He did not address the issue of self defence.

Submissions

[12]     Mr Gotlieb appeared for Mr Nikau before Judge Spiller.  He also appeared for Mr Nikau at the appeal hearing before me.  He advised me that it was the defence case from the outset that the complainant had a history of anger and emotional volatility, that on occasion she resorted to violence, and that it had been intended to call   two   defence   witnesses   to   give   evidence   of   previous   incidents   which demonstrated her propensity for violent confrontation.  He also said that he had been

intending to call Mr Nikau to give evidence.   He referred me to the transcript to show that the various previous incidents of alleged violence by the complainant had been put to  her in cross-examination.   He advised me that the purpose was  to demonstrate her propensity for aggression and violence, and that this was intended, first, to throw doubt on her evidence that she had been attacked by her father, and secondly,  to  support  the  defence  contention  that  the  complainant  had,  in  fact, attacked Mr Nikau, causing him to act in self defence.   He also referred to his cross-examination of Mr Brown, the independent witness.  He noted that Mr Brown had accepted that it looked to him as though Mr Nikau was holding the complainant off.

[13]     Mr Gotlieb noted that the defence had been ready to both give and call evidence.  He referred to the part of the transcript when the defence was called to elect whether or not to call evidence.  He noted that Judge Spiller expressly indicated that he did not require to hear from Mr Nikau.  Mr Gotlieb advised that on that basis, the decision was  made  not  to  call  evidence,  in  anticipation  that  the Judge was intending to dismiss the charge and that he therefore did not need to hear anything more.  Mr Gotlieb submitted that had he appreciated that Judge Spiller considered there was sufficient evidence to find the charge proven, that he certainly would have called defence evidence.   He submitted that the Judge’s comment gave every appearance of an indication that the charge would be dismissed.  He submitted that Mr Nikau had been effectively deprived of the opportunity to give evidence, and to call witnesses in aid of his defence, and that there had consequently been a miscarriage of justice.

[14]     Ms Mann for the police referred to the transcript and suggested that it was clear that the decision not to call evidence was a decision made by defence counsel. Ms Mann noted that it is not for the Court to require a defendant to give evidence, that Judge Spiller’s indication to defence counsel was entirely appropriate, and that any suggestion that there was a miscarriage of justice is unfounded.

Analysis

[15]     The appeal is brought pursuant to s 116 of the Summary Proceedings Act

1957.  The appeal proceeds by way of rehearing.[1]   The Court is required to hear and determine the appeal and make such order in relation to it as it thinks fit.  Inter alia, the Court can set aside a conviction and send the matter back to the District Court for rehearing.

[1] Summary Proceedings Act 1957, s 119(1).

[16]     Here, the informant’s case proceeded in the normal way.  The police called their witnesses and they were duly cross-examined by Mr Nikau’s counsel.   Inter alia, the DVD recording of Mr Nikau’s interview with the police was played to the Court.  It was clear from that interview that Mr Nikau was relying on self defence, and that it was his case that the complainant in fact attacked him, and that he had simply put  out  his  arm  so  as  to  hold  her  at  a distance.    It  is  noteworthy that Mr Brown,  in  the  course  of  cross-examination,  acknowledged  that  Mr  Nikau appeared to be holding the complainant off.  This, of course, was consistent with the defence theory of the case — namely that Mr Nikau was acting in self defence.

[17]     I have read the notes of evidence, watched a copy of the DVD recording, and read the transcript of Mr Nikau’s police interview.  I accept Mr Gotlieb’s assertion that it was arguable that at the close of the police case, the police had failed to prove the charge beyond reasonable doubt, because they had failed to negative the possibility of self defence that was available under s 48 of the Crimes Act 1961.

[18]     Following  the  close  of  the  police  case,  Judge  Spiller  asked  whether  the defence wished to call evidence.   The relevant part of the discussion between the Judge and Mr Gotlieb has been transcribed.  It reads as follows:

THE COURT:

Mr Gotlieb, does the defence elect to lead evidence?

MR GOTLIEB:

Well I'm in a position, I can certainly call my client to add slightly to what his interview is, but you can see the defence that is in this case that he was

simply not assaulting and was simply holding the daughter off which is a

very short ambit of the case.  If Your Honour would like to hear from my

client he’s more than willing to get in the witness box Sir.

THE COURT:

That’s up to you.  It’s your client.

MR GOTLIEB:

I realise that, but if it’s of assistance to Your Honour I will do that.

THE COURT:

I have heard what Mr Nikau has said in the interview.

MR GOTLIEB:

Yes.

THE COURT:

It’s a question of whether you wish him to elaborate on that.  I understand

the point that he’s made that’s –

MR GOTLIEB:

Yes, I think he’s made it fairly thoroughly and what I'm simply saying is that

I would submit on what there is before the Court on the second test beyond reasonable doubt that there must be a doubt that relates to it Sir.   If you require my client to be called I will call him.

THE COURT:

I don't require your client.

MR GOTLIEB:

Thank you Sir.  So that is the situation.  It’s not as though he doesn't want to

give evidence.  He’s prepared to but I don't think it’s necessary in this case

Sir.

[19]     It was not for Judge Spiller to require Mr Nikau to give evidence.  Rather, the decision  whether  or  not  to  give  or  call  evidence  was  required  to  be  made  by Mr Nikau, no doubt relying on advice from Mr Gotlieb.   Mr Gotlieb expressly indicated that defence evidence was available.  He indicated what the evidence from Mr Nikau would be and further indicated that on the material that was available to the Court, there must be a reasonable doubt as to whether or not the charge had been proved.  It was in that context that Judge Spiller made the comment “I don’t require your client”.  The Judge correctly noted at the outset that it was for Mr Gotlieb and Mr Nikau to decide whether or not they wished to call evidence.  However, in my judgment, his later comment, in context, signalled that he did not require to hear any defence evidence because the charge had not been made out beyond reasonable doubt.  Effectively, the comment made by the Judge that he did not require Mr Nikau

to give evidence was tantamount to confirmation that he accepted that there was a reasonable doubt.  The defence election not to call evidence was made in light of the comment that he did not require to hear from Mr Nikau.

[20]     In my view, there has been a miscarriage of justice as a consequence of the misunderstanding between the Judge, Mr Nikau and his counsel.

[21]     I refer to the judgment of the Supreme Court in Sungsuwan v R.[2]   Elias CJ

[2] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.

there noted:[3]

[3] Ibid, at [6]–[7].

Miscarriage of justice does not arise because of incidental errors or irregularities in the trial, unless they amount to denial of the right to fair trial contained in s 25(a) of the New Zealand Bill of Rights Act or unless they are significant enough in themselves to cause the appellate Court to consider the verdict to be unsafe…

…The inquiry is not into the competence of counsel but whether the verdict is unsafe through any deficiency in the trial, however caused…

Gault, Keith and Blanchard JJ cited from an earlier authority, which noted that a mere mistake in tactics in the conduct of the defence does not afford grounds for a new trial, but that rare cases do arise in which it becomes necessary to hold that in the conduct of the defence, there have been a mistake or mistakes so radical that a miscarriage of justice can be made out.  They noted that an appellate Court can, in such circumstances, treat the trial as unsatisfactory.[4]    Similar comments were made

[4] Ibid, at [45] citing R v Pointon [1985] 1 NZLR 106 (CA).

by Tipping J.[5]   He observed that a mistake denotes simply the need for something to

[5] Ibid, at [107].

have gone wrong with the way in which the appellant was represented at trial.

[22]     Here, there has been a mistake in the conduct of the trial.   There was a misunderstanding between defence counsel and the Judge.  Mr Gotlieb thought, not unreasonably, that the Judge was indicating that he did not require to hear from Mr Nikau because the police had not made out its case beyond reasonable doubt.  It is clear from the Judge’s subsequent decision finding the charge proved, that the Judge did not mean that, and that he considered that it was for Mr Gotlieb and

Mr Nikau to elect whether or not to call defence evidence.  The Judge’s comment

that he did not require to hear from Mr Nikau was, in the circumstances, unfortunate. Mr Nikau was inadvertently misled, and as a result, the wrong decision was made in relation to the calling of defence evidence.   I am not satisfied that the resulting verdict is safe.

[23]     The appeal is allowed.   The conviction is set aside, and the matter is sent back to the District Court for rehearing.

Wylie J