Nishant v Police

[2019] NZHC 18

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE CHILD COMPLAINANT

PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2018-463-31

[2019] NZHC 18

BETWEEN

NISHANT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 December 2018
Counsel:	C Horsley for appellant A J Pollett for respondent
Judgment:	21 January 2019

JUDGMENT OF KATZ J

This judgment was delivered by me on 21 January 2019 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:      Pollett Legal Limited, Office of the Crown Solicitor, Tauranga Counsel:       C Horsley, Barrister, Tauranga

NISHANT v NEW ZEALAND POLICE [2019] NZHC 18 [21 January 2019]

Introduction

[1]                  On 2 March 2018 the appellant, who goes by the single name Nishant, was tried in a Judge-alone trial at the Tauranga District Court before Judge T R Ingram. He was acquitted of two charges of assault on a child and found guilty of one charge of male assaults female and one charge of assault on a child.1 Nishant now appeals against his convictions.

Background

[2]                  Nishant faced one charge of male assaults female, relating to Ms A, and three charges of assault on a child – Ms A’s child (referred to as “the child” to protect her identity). The child was aged eight at the time of the offending, and nine when she gave evidence at trial.

[3]                  Nishant was in a relationship with Ms A for several years. It came to an end in early July 2017. During the course of the relationship, Nishant applied for and was granted a temporary residence permit, based on his relationship status. Ms A’s evidence was that once Nishant had obtained New Zealand residence status, his attitude to her and her daughter changed to one of indifference. He no longer played a meaningful part in family life. He wanted the child to leave the household and to go and live with her father.

[4]                  Nishant faced four charges, arising out of two incidents of alleged offending, on 20 and 21 March 2016. The Judge summarised the evidence of Ms A and the child relating to the 20 March 2016 incident as follows:2

The evidence was that both the defendant and [Ms A] were seated on a couch…The essence of the allegation is that the defendant lost his temper with [Ms A], as a result of which he put his hands around her neck and began to choke her. Thereupon the child… came across the room and hit the defendant, who then used one hand to slap her about the head, which caused her to bleed from the mouth and blood was left on the carpet.

[The child] also alleged that the defendant gave her what are known as Chinese burns, which in New Zealand is widely understood to mean two hands

1      New Zealand Police v Nishant [2018] NZDC 21250.

2       At [3] and [4].

being placed on a limb and the limb twisted forcefully in opposite directions, stretching the skin, reddening and hurting the skin in that location.

[5]                  As for the 21 March 2016 incident, the Judge summarised the evidence of  Ms A and the child as follows:

[5]        The events of 21 March are said to involve the defendant shaking [the child’s] head to the point where on her description she fell asleep and I imagine she was describing a state in which she lost consciousness somehow. There is a dispute between [the child] and the mother as to when that was said to have occurred. In [the child’s] evidence it was in the morning before school and the mother's evidence it was in the evening after school. They were sure that it happened on 21 March.

[6]        The Judge noted that Nishant denied every one of the allegations and said that none of this ever happened.

[7]        In relation to the allegation that Nishant had shaken the child’s head, the Judge found that the discrepancies between Ms A and the child's evidence were sufficient to raise a doubt in his mind as to what occurred, if anything, and when and where it occurred. The Judge was accordingly not satisfied beyond reasonable doubt that the events in relation to the head-shaking occurred as outlined. Nishant was accordingly acquitted on that charge.

[8]        Similarly, in relation to the alleged Chinese burns, the Judge noted that there was a dispute between Ms A and the child as to when that had happened. The child was sure she received the Chinese burns on the evening that Ms A was choked. Ms A said that it definitely did not happen on that occasion. Given this conflict in the evidence, the Judge was not satisfied beyond reasonable doubt that those events occurred in the manner or at the time alleged by the child. That charge was accordingly also dismissed.

[9]        As for the alleged slap to the child’s face, the Judge observed that Ms A and the child were adamant that the slap occurred and that Nishant was equally adamant that the slap did not occur. The Judge then stated:3

I can conceive of no reason why the child of that age would make up an allegation of this kind. On the other hand, the mother did not disclose any

3 At [8].

aspect of this when she made applications to the Family Court for a protection order. That was done mid-July 2017 and nothing in that application was advanced in connection with this incident.

[10]The Judge concluded that:

[9] The short question is whether or not the child was assaulted in the way alleged, namely slapped in the face. Having seen and heard [the child give evidence], I am satisfied that she is not lying about this matter. I am satisfied that she was indeed slapped in the face by the defendant and I do not accept the defendant's evidence that none of this happened. Had it been simply between the defendant and the child's mother, the child's mother's evidence would probably not have been sufficient to persuade me, but the mother materially corroborates [the child’s] allegation in every material respect. I, accordingly, accept her evidence and reject the defendant's evidence on that particular point and I find that charge proved.

[11]      Judge Ingram next turned to the charge of male assaults female, relating to the alleged choking of Ms A. Judge Ingram found that Ms A’s evidence was materially corroborated by the child. The Judge acknowledged the criticism levelled at Ms A that she had not specifically referred to this incident in an affidavit she had filed in the Family Court on 24 July 2017, when seeking a protection order (although he raised the possibility that she may have indirectly referred to the incident in that affidavit). Ultimately, the Judge concluded that:4

…Be all that as it may, I am quite satisfied that [the child] was telling me the truth as to what she observed, passed between her mother and the defendant, and I accept her evidence as being accurate and reliable in relation to what passed between them on 20 March in the lounge. I am satisfied beyond reasonable doubt that the assault, as [the child] described it, occurred.

[12]      In summary, Nishant was acquitted on two of the four charges he faced, and convicted in respect of the other two.

Grounds of appeal

[13]The notice of appeal identifies three grounds of appeal:

(a)the Judge failed to give proper weight and consideration to all of the evidence;

4 At [10].

(b)the verdicts are inconsistent with the evidence; and

(c)the Judge inappropriately posed the rhetorical question of why the child would make up allegations of this kind.

Approach on appeal

[14]      The appeal is brought pursuant to s 232 of the Criminal Procedure Act 2011. Section 232(2) relevantly provides that the Court must allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred,5 or that a miscarriage of justice has occurred for any reason.6 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—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

[15]      A “real risk” that the outcome of the trial was affected will arise if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.7 Irregularities which “plainly could not, either singly or collectively, have affected the result of the trial” are not miscarriages of justice and the appellate court must disregard them.8 However, a finding that there has been an unfair trial in terms of s 232(4)(b) means that it is unnecessary to consider whether this may have affected the outcome of the trial because s 232(4)(b) assumes that if an accused person has not received a fair trial then any resulting conviction must be set aside.9

5      Criminal Procedure Act 2011, s 232(2)(b).

6      Section 232(2)(c).

7      Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110]; Wiley v R [2016] NZCA 28, [2016]

3 NZLR 1 at [27].

8      Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; Wiley v R, above n 7, at [28].

9      Wiley v R, above n 7, at [37].

[16]      The prevailing approach of the authorities when addressing an appeal under s 232(2)(b) is to treat the findings as the equivalent of a jury verdict.10 To this effect, the Court of Appeal in Sena v Police has recently reiterated the summary of that Court in the 2017 decision of Gotty v R:11

[13]      This appeal essentially attacks the factual findings made by a Judge sitting alone in accordance with the appeal ground set out in s 232(2)(b) of the Criminal Procedure Act 2011. The appellant must therefore demonstrate that the Judge's assessment of the evidence was attended by such error that there is ‘a real risk’ the outcome of the trial was affected.

[14]      As this Court has noted in Roest v R factual findings that form the basis of a verdict reached by a judge sitting alone are to be treated on appeal as the equivalent of a jury verdict. So where an appeal amounts to a challenge to those findings, the principles in R v Owen will apply accordingly. It is well to repeat those:

(a)The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b)Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of honesty and reliability of the witnesses is a classic example.

(c)The weight to be given to individual pieces of evidence is essentially a jury function.

(d)Reasonable minds may disagree on matters of fact.

(e)Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

(f)An appellant who invokes s 385(1)(a) [now s 232 of the Criminal Procedure Act] must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowances for the points made above, the verdict should nevertheless be set aside. [15] It is not for this Court to set aside a verdict on the basis that we disagree with the Judge's factual assessment. Something more is required to meet the ‘real risk’ test.”

10     Gotty v R [2017] NZCA 528 at [14] and [15]; and Ahmad v R [2017] NZCA 320 at [59].

11 Sena v New Zealand Police [2018] NZCA 203 at [9]; Gotty v R [2017] NZCA 528 at [13]-[15] (footnotes omitted). I note that the Supreme Court granted leave on 10 October 2018 to hear a further appeal from Sena v Police because the correct approach on appeal under s 232(2)(b) is a question of general and public importance: Sena v New Zealand Police [2018] NZSC 92.

[17]I follow that approach in this appeal.

Did the Judge err in his assessment of the evidence to such an extent that a miscarriage of justice has occurred?

[18]      The first two grounds of appeal both amount to the same essential challenge – that the Judge erred in his assessment of the evidence and as a consequence a miscarriage of justice occurred. However, as two different (but related) arguments were advanced under this head, I will consider each in turn.

Were the verdicts inconsistent with the evidence?

[19]      Mr Horsley submitted that the two conviction verdicts are inconsistent with the evidence. In particular, he submitted that the Judge’s uncritical acceptance of the child’s evidence on the two proved charges is inconsistent with his rejection of her evidence on the dismissed charges.

[20]The Judge’s essential findings can be summarised as:

(a)the discrepancies between Ms A and the child as to the time and place of the head-shaking and the Chinese burns raised a reasonable doubt; and

(b)there were no material discrepancies between the evidence of Ms A and the child on the choking and the slap charges, each account materially corroborated the other, leaving no reasonable doubt.

[21]The overall effect of the evidence from the child and Ms A was, in summary:

(a)The child thought she had been shaken by Nishant in the morning before school, while Ms A said that the child had been shaken by Nishant in the evening after school, leaving doubt as to when and if it happened. They both agreed she had her school uniform on.

(b)The child’s evidence was that she received the Chinese burns on the evening that Ms A was choked. Ms A’s evidence under cross-

examination was that she did not see Nishant give the child a Chinese burn that night. This raised a doubt as to if and when it happened.

(c)There were no such discrepancies as to the timing of the choking or the slapping charges. Both the child and Ms A agreed that they were in the lounge, that Nishant was choking Ms A, that the child slapped him, and that he then slapped the child. Their accounts were consistent with one another in all material aspects.

[22]      In summary, there were important differences between the evidence of Ms A and the child regarding the first two charges, but in regard to the choking and the slapping, they materially corroborated one another. This was a sufficient basis for the Judge to distinguish between the two sets of charges and find two proven, and two not proven. If anything, the distinction drawn demonstrates a careful and analytical assessment of the evidence by the Judge, and shows that he carefully considered the application of the standard of proof in relation to each charge separately.

Did the Judge fail to give proper weight and consideration to all the evidence?

[23]      Mr Horsley submitted that the Judge failed to properly analyse the evidence in two key respects, namely:

(a)he failed to address the inconsistencies in the Ms A’s evidence and her earlier statements regarding the occurrence and location of the alleged choking; and

(b)he erred by relying on the child’s corroboration in evidence notwithstanding that the child did not mention strangling or choking in her evidential video interview, given there was the possibility of coaching.

[24]      On the first point, Mr Horsley submitted that at trial Ms A gave evidence that the assault on her occurred in the lounge, which differed from her Family Court affidavit, in which she stated that the choking took place in the bedroom. He submitted that the Judge’s observation that “it was at least possible” the incident “may have”

occurred in the lounge is not consistent with the prosecution onus to prove the charges beyond a reasonable doubt.

[25]      Where the assault occurred is not an element of the offence, and accordingly it was not a matter the Crown was required to prove beyond reasonable doubt. Rather, the key issue is whether the inconsistencies in the evidence on the issue of where the assault occurred were such that the Judge could not have been satisfied that Nishant choked Ms A, beyond reasonable doubt.

[26]      Ms A’s affidavit in support of her application for a protection order in the Family Court stated at [12] that Nishant had choked her on two occasions. She stated that the first time they were in the bedroom and the child was in the lounge and after an argument he grabbed her by the throat. At [13] she stated that the second time “started in much the same way”. There is no mention of where the second incident occurred.

[27]      The fact that the first incident was in February 2017 and the second was in March 2017 supports the inference that the second incident referred to is likely a reference to the incident that gave rise to the male assaults female charge. However, neither paragraph [12] nor [13] mention that the child was also allegedly assaulted during that incident. The Judge considered this apparent lack of disclosure when assessing when the charge was proven. He found that while that affidavit does not expressly refer to an incident that occurred in the lounge, it is at least possible that the reference at [13], referring to the second time, was a reference to the incident in the lounge.

[28]      His Honour found the evidence of the child, which underpins both convictions, to be both credible and reliable. The Judge preferred the evidence of the child and Ms A over that of Nishant in relation to the two proven charges. He was satisfied that the child was not lying about being slapped in the face “having seen and heard” her give evidence.12 He also found the child’s evidence in relation to Ms A being choked was “accurate and reliable”.13 Both of these are findings of credibility by a Judge who

12     New Zealand Police v Nishant, above n 1, at [9].

13 At [10].

had the advantage of making the assessment after seeing the child complainant give evidence and be cross-examined. It involves an assessment of honesty and reliability which is a classic example of an advantage the trial judge has over an appellate court on review and ought not to be interfered with lightly.

[29]      This is also directly relevant to the second point – that the child did not mention strangling or choking in her evidential video interview. Mr Horsley submitted that the Judge erred by relying on the child’s corroboration in evidence, given this evidential gap.

[30]      In the child’s evidence in chief she gave the following information about the strangling allegation at page 3 of the Notes of Evidence:

Q.Now just about that, when that happened can you remember or do you remember where Mummy was?

A.       She was being strangled by Nishant so she was right next to Nishant.

Q.       Can you tell me a little bit more about that is that what you saw?

A.       Yes.

Q.       So what did you see?

A.       I saw Nishant attempt to strangle my mum.

[31]      The child then describes and demonstrates how Nishant was using one hand and that he used “his left-hand to slap [her] in the right jaw” after she slapped him.

[32]      In examination in chief, the prosecuting sergeant asked the child whether she had said anything about seeing Ms A being strangled in her evidential interview. The child responded:

A.I don't think so but I know that she was - I don't know why I didn't say it but I know that I said it when I - I remember when I was at Oranga Tamariki I remember I said that but ...

Q.       Okay so that's something that you saw?

A.       Yes.

Q.       It's not something that mummy's told you?

A.       No.

[33]      In cross-examination Mr Horsley put it to the child several times that she was told to say these things by Ms A. For example:

Q.You told me just before that the day before you had your interview you and Mummy talked about the things that Nishant had done?

A.       Yes.

Q.And you told me that it was Mummy who told you about Nishant hurting her finger?

A.       Mhm.

Q.And it was Mummy who told you to talk about the Chinese burns in the interview is that right?

A.       Yes.

Q.And it was Mummy who told you to talk about Nishant shaking your head?

A.       No.

Q.Nishant – and it was Mummy who told you to talk about Nishant slapping you and making your mouth bleed?

A.She didn't tell me to say that she just told me to say what I thought was right to say.

[34]      This evidence falls significantly short of establishing that the child was coached and that the Judge’s failure to expressly engage with this issue has arguably given rise to a miscarriage of justice. While the child accepted that Ms A told her to talk about the Chinese burns in the interview it is speculation as to whether that was in the nature of coaching or of a more innocent nature. The child subsequently denied that she had been told to talk about the head-shaking or slapping, and stated that she had only been told to say what she herself thought was right to say. In re-examination, the child stated again “[s]he did not tell me what to say she just told me to say what I thought was right to say.”

[35]      I have not been persuaded that the Judge, who had the benefit of hearing and seeing both Ms A and the child give evidence, has materially erred in his assessment of their evidence. There are often inconsistencies between witnesses, and between a witness’s evidence in court and their previous out of court statements. Such inconsistencies provide fertile ground for cross-examination (as occurred in this case)

and may impact on the assessment of a witness’s credibility and reliability. They are only one factor to be considered, however, in an overall assessment of the evidence. In this case I have not been persuaded that the inconsistencies relied on by Mr Horsley are of such magnitude as to give rise to a real possibility that a miscarriage of justice has occurred.

[36]      Ultimately, the two guilty verdicts resulted from Judge Ingram’s assessment of the honesty and reliability of Ms A and the child, and what weight could be given to their evidence. The factual findings made by the Judge were appropriate and open to him on the evidence. He had the opportunity to see all three witnesses give evidence and be cross-examined. He rejected the evidence of Nishant that the relevant events simply never happened, and preferred the evidence of Ms A and the child. There was no apparent error in his assessment of the evidence, or in his resulting factual findings, let alone an error of such magnitude as to give rise to a real risk the outcome of the trial was affected.

Did the Judge’s statement that the child had no known motive to lie amount to an error that resulted in a miscarriage of justice?

[37]Judge Ingram stated in his judgment that:

[8] In relation to the slap to the child, mother and child were adamant that the slap occurred. The defendant was equally adamant that the slap did not occur. I can conceive of no reason why the child of that age would make up an allegation of this kind.

[38]      Mr Horsley submitted that it is inappropriate for the finder of fact to ask himself whether a witness had a motive to lie. He submitted that the danger of such a course is apparent in the requirement in a jury trial to give a lies direction in appropriate cases.

[39]      It is not, however, unusual in trials for a prosecutor to suggest that a complainant had no motive to lie, or to ask a defendant if he or she knows of any reason why the complainant would lie. Such a course is permissible. It may be undesirable in many cases, however. In particular, it can give rise to potential dangers that, in a jury trial, might require a direction by the Judge in summing up. The key risks are that such statements risk shifting the onus, or may suggest that the defendant

is required to give a reason as to why a complainant is lying or mistaken. As the Supreme Court observed in Parker v R:14

[3]     The principal authorities on such directions  emphasise the necessity  to direct that, regardless of the state of the evidence about motive, the onus of proof remains on the Crown through and it is not for an accused to prove motive.

(Footnotes omitted.)

[40]      The Supreme Court further observed in Parker that “[t]he apparent absence of motive is of course a matter which a jury may properly take into account when assessing a complainant’s credibility but it is only one factor.”15

[41]      In this case it was open to the Judge to conclude that the complainant had no motive to lie, and to take that into account in assessing her credibility. Indeed, the defence had squarely put whether the complainant had a motive to lie in issue by suggesting in cross-examination that Ms A had told the child what to say.

[42]      There is nothing to suggest that the Judge somehow fell into error as a result of concluding that the complainant had no motive to lie, for example by shifting the onus to the defence. The Judge was clearly aware that the prosecution bore the onus of proving the charges beyond reasonable doubt.

[43]      Mr Horsley’s suggestion that a lies direction would have been required if this had been a jury trial is misplaced. Lies directions under s 124 of the Evidence Act 2006 are limited to lies by the defendant. Lies by other witnesses are addressed in summing up under the heading of credibility and reliability (as are any issues of a witnesses’ motive to lie). It is in that context that the Judge considered the issue of motive to lie here.

[44]       In conclusion, it was open to the Judge on the evidence before him to conclude that the child had no motive to lie. There is nothing to suggest that, as a result of this finding, the Judge fell into error in his analysis, for example by reversing the onus of proof. This ground of appeal therefore also fails.

14     Parker v R [2008] NZSC 25.

15 At [6].

Result

[45]The appeal is dismissed.

Katz J