Ogden v R
[2016] NZCA 214
•20 May 2016 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA609/2015 [2016] NZCA 214 |
| BETWEEN | MICHAEL BRIAN OGDEN |
| AND | THE QUEEN |
| Hearing: | 14 April 2016 |
Court: | French, Asher and Williams JJ |
Counsel: | C J Nicholls for Appellant |
Judgment: | 20 May 2016 at 12.30 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
Introduction
The appellant, Mr Ogden, was charged with three counts of male assaults female against a single complainant, his ex-partner. He was tried in a judge-alone trial before Judge Tompkins in the Wellington District Court. He was convicted on all three counts on 2 September 2015.[1] On 2 October 2015 Judge Tompkins sentenced the appellant to 18 months’ imprisonment.[2] The appellant appeals both conviction and sentence.
Facts
[1]R v Ogden DC Wellington CRI-2014-096-3978, 2 September 2015.
[2]R v Ogden [2015] NZDC 19875.
The appellant and the complainant lived together in the complainant’s flat in Upper Hutt between June and September 2014. The complainant’s young daughter also lived with them at various points during this period.
The three assaults allegedly occurred in August and September of 2014.
The first charge related to an incident that is alleged to have occurred between 25 and 31 August 2014. The appellant and complainant argued in the lounge of the flat. The appellant punched the complainant in the face at least once. She had visible injuries and did not leave the flat for a period afterwards because of concern about her appearance.
The second charge related to an alleged incident on 9 September 2014. The pair were at the TAB and the complainant gave the appellant money from her bank account to gamble with but capped his expenditure at $50. The appellant lost that money and the complainant refused to give him more. She left and returned home, but the appellant remained. As she did not have a key, she waited outside the flat. When the appellant arrived later he was angry both for the lost money and for being abandoned at the TAB. The appellant kicked the complainant in the ribs while she sat waiting for him. She had to lie down once inside the house in order to ease the pain. As she lay down inside, the appellant then stomped on the back of her head.
The third charge related to events two days later on 11 September 2014. The Crown alleged that the complainant had accompanied the appellant to a counselling session. He met with the counsellor alone and the complainant waited outside. They caught the bus home. They had an argument, verbal to begin with, and then physical. The appellant eventually punched the complainant in the mouth with a closed fist, splitting her lip.
Grounds of appeal
In relation to the conviction appeal, the appellant advanced two grounds:
(a)The Judge, in his decision, had relied upon a formal written statement that was on the court file but had not been admitted in evidence. This created an error or irregularity that had resulted in an unfair trial such as to amount to a miscarriage of justice.
(b)The case, it was submitted, was a “his word against her word” case and the complainant’s evidence was not supported by other evidence such that no proper basis was available upon which the trial Judge could prefer the complainant’s evidence over the appellant’s.
In relation to the appeal against sentence, two grounds were advanced:
(a)The appellant was not interviewed by a probation officer for the purposes of a pre-sentence report. The sentencing ought to have been adjourned to allow the necessary interview to be completed.
(b)The end sentence was manifestly excessive having regard to the fact that it was added to a sentence the appellant was already serving in relation to separate offending that occurred around the same time as the offending at issue in this case. The sentence in respect of the index offending was excessive if the previous sentence is taken into account on a totality basis. The appellant ought to have been allowed to finish the sentence he was already serving before being sentenced for this offending in order to avoid this totality problem.
Conviction appeal
As the appellant claims miscarriage of justice, the relevant bases upon which an error or irregularity in the trial may produce a miscarriage are contained in s 232(4) of the Criminal Procedure Act 2011. This provides that a miscarriage may be found where the relevant error or irregularity:
(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.
Ground 1: Reference to formal statement not admitted
Background
Judge Tompkins heard evidence from the complainant, a Ms Waswo (a friend of the complainant whose daughter attends the same kindergarten as the complainant’s daughter), the complainant’s ex-partner and father of her child, a police photographer, the interviewing constable, a constable from the Family Safety Team, and the appellant himself both by way of evidential video interview and viva voce evidence.
The Judge gave his verdict in an oral judgment delivered immediately after counsel’s final addresses. The Judge rejected the appellant’s denials of any offending, describing him as a witness who misportrayed, misrepresented and minimised his role in these events.[3]
[3]R v Ogden, above n 1, at [19].
In addition, the Judge found that the appellant’s psychological and physical abuse and domination of the complainant were confirmed by “independent Crown witnesses who described the swift and concerning changes to the complainant’s demeanour and behaviour once her relationship with the defendant began”.[4]
[4]At [19].
Judge Tompkins listed three important Crown witnesses whose evidence confirmed the complainant’s story. He described the evidence of each witness in the following terms:[5]
In reaching that overall assessment, I have taken into account, particularly the other Crown evidence, being evidence from a friend of the complainant, Ms Waswo, who became concerned after the complainant had entered the relationship with the defendant, with the complainant beginning to act out of character and became concerned with the way she observed the defendant dominating and controlling the complainant on one occasion when she visited the Montgomery Crescent [sic] and on another occasion being prevented by the defendant from seeing the complainant when Ms Waswo was aware that the complainant was present upstairs at that house.
Similarly, there is evidence from the complainant’s ex-partner, who likewise became concerned with the complainant’s behaviour and, to a lesser extent, with their daughter’s behaviour, after the complainant had entered the relationship with the defendant. Mr Gad [sic], the complainant’s ex-partner, in particular described how the complainant’s previously frequent contact and communication with him decreased and then stopped altogether.
Lastly, there was evidence from the complainant’s daughter’s kindergarten teacher who described, at relevant times, the complainant, as withdrawing and becoming more reluctant to make eye contact.
[5]At [23]–[25] (emphasis added).
On delivery of the verdict, Crown counsel immediately advised the Judge that the evidence of the third mentioned witness, the kindergarten teacher (Ms Judkins), had not in fact been admitted in the trial. There was a formal written statement from her on the Judge’s file, but she was, in the end, not called to give evidence.
Having been appraised of this error, the Judge immediately delivered an “Addendum to Summing Up” in the following terms:[6]
Following the delivery of the reasons for verdict, Ms Goodhew properly drew to my attention that the formal written statement, as on the Court file, was not relied upon by the Crown at trial. I do not consider, given the relatively peripheral nature of that evidence, albeit corroborative, as I noted in the decision above, of the complainant’s account, that its presence or absence has affected the substance of my decision in any way.
[6]R v Ogden DC Wellington CRI-2014-096-3978, 2 September 2015 (Addendum to Summing Up) at [2].
In light of this turn of events, it is necessary now to set out briefly the contents of the statement.
Ms Judkins’ formal statement was taken at 1.45 pm on 28 April 2015. It was taken by Constable Johns and duly signed by Ms Judkins herself. Ms Judkins referred to the complainant visiting the kindergarten on 11 August 2014. She advised that the complainant was not her usual self. The visit was very quick and the complainant seemed nervous. According to the statement, the complainant said she had been unwell and that is why she had not been in. There was little or no eye contact. But, Ms Judkins allowed, the complainant is a shy person.
Ms Judkins further noted that she was “concerned for [the complainant] as she did seem to be withdrawing”.
Submissions
Counsel for the appellant Mr Nicholls argued the Judge’s mistake in relying on evidence that was not called was fatal. Neither the Crown nor the defence knew the Judge was going to do that and accordingly had no opportunity to question the evidence or make submissions about it prior to the Judge giving his decision. In Mr Nicholl’s submission that “by definition created an unfair trial.”
Mr Nicholls further submitted that the Judge’s attempt to retrieve the situation through the addendum failed. There could, he submitted, be no going back once the Judge had referred in his reasons for verdict to his reliance on the evidence. What is more, in his submission, the Judge’s reference to the witness’ evidence created the impression of judicial pre-determination, enhancing the sense of trial unfairness. Therefore justice had miscarried.
The Crown submitted there was no trial unfairness. The Crown relied on the fact that a judicial fact finder will often hear evidence that would be excluded from the ears of a jury, and judges are experienced at and capable of setting inadmissible material to one side in reaching their conclusions. In any event, the addendum, it was submitted, immediately corrected the error and fully addressed any allegation of unfairness.
The Crown submitted that, even if that was wrong, mere error alone will not necessarily be productive of a miscarriage. Rather, the Crown submitted, the fairness of a trial is to be assessed in relation to the trial overall. A miscarriage requires errors or irregularities that are so irremediable the court has no choice but to quash the decision.
In this case, the Crown submitted, the statement of Ms Judkins was little more than corroborative. The important evidence in terms of supporting the complainant had been provided by Mr Gadd and Ms Waswo, as the Judge identified in his decision. That, the Crown said, is why, in the Judge’s addendum, Ms Judkins’ evidence is referred to as “peripheral”. There was therefore, the Crown submitted, no “real risk” in terms of s 232(4)(a) that the error might have affected the outcome, and no real argument that the trial was so unfair as to be irremediable.
Analysis
There is no question that the Judge relied on Ms Judkins’ formal statement as one strand of evidence that supported the complainant’s story and undermined that of the appellant. The Judge said as much. This evidence was never called and the prosecution did not rely on it to support the appellant’s guilt beyond a reasonable doubt. The Judge thus made an error and there was an irregularity in the trial.
We do not agree with Ms O’Sullivan, for the Crown, that the addendum issued by Judge Tompkins after the irregularity had been pointed out to him corrected it. The Judge could not have it both ways. He either relied on the evidence or he did not. We consider the addendum was unhelpful and risked being seen as self-serving. The judgment ought to have been left to speak for itself or formally recalled and, following argument, a new verdict issued or a mistrial directed.
We were advised there was no opportunity given for counsel to be heard on the appropriate course once the error was discovered.
Nonetheless, we must step back and determine objectively whether the error or irregularity created a “real risk” that the outcome of the trial was affected or that it caused the trial to be unfair. Once a realistic assessment is undertaken of the role Ms Judkins’ evidence played in the Judge’s reasoning, it is clear there is no real risk the error might have affected the outcome and no basis upon which it could be said the error made the trial unfair.
We turn first to the “real risk” test. As Tipping J said in Sungsuwan v R, a real risk arises if there is a reasonable possibility that a not guilty or more favourable verdict might have been delivered if the error had not been made.[7] The selection of the term “real” means the inquiry is concerned with realistic rather than theoretical possibilities.[8] Not every error will have the required effect.
[7]Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110]. The Court of Appeal in Wiley v R [2016] NZCA 28 confirmed at [27] that Tipping J’s statement applies to the “real risk” test under the Criminal Procedure Act 2011.
[8]Wiley v R, above n 7, at [28].
In reality, the evidence that decisively corroborated the complainant’s version of events was that of Ms Waswo and the complainant’s ex-partner, Mr Gadd.
Ms Waswo’s evidence provided details of the appellant’s controlling behaviour toward the complainant. She identified an occasion when she visited the complainant’s flat but the appellant would not let her upstairs to see the complainant. The witness was not cross-examined in relation to this evidence.
Mr Gadd gave evidence that when the appellant came onto the scene the complainant withdrew from regular contact with him, including with respect to their daughter. He said his daughter had told him the appellant had hit the complainant. He became concerned that his daughter was becoming withdrawn, quiet and isolated as a result of the complainant’s relationship with the appellant.
When viewed in the context of that evidence, Ms Judkins’ formal statement did not take the prosecution case very much further. She simply confirmed the complainant had become somewhat furtive and withdrawn since she formed the relationship with the appellant.
It might be accepted that there was in this evidence a theoretical possibility that the Judge could come to a different verdict in the absence of Ms Judkins’ statement, but that possibility is most unrealistic. It is clear from the evidence given by Ms Waswo and Mr Gadd, and from the way in which the Judge assessed the evidence of these two witnesses and Ms Judkins’ formal statement, that the statement was only of minor significance — no more than confirmatory of what had been said more emphatically and in more detail by the other two.
We conclude there was no real risk the Judge’s reliance on Ms Judkins’ statement affected the outcome in the trial.
Nor, turning now to trial fairness, do we consider the error led “by definition” (to use counsel’s phrase) to an unfair trial. The right to a fair trial is absolute,[9] and the breach of this right will always undermine a conviction.[10] But not every error or mishap produces an unfair trial. As with the “real risk” test, an overall assessment must be made. This Court in Wiley v R referred to the comments of the Privy Council in Randall v R to the effect that:[11]
There will come a point when a departure from good practice is so gross, or so persistent, or so prejudicial, or so irremedial, an appellate court will have no choice but to condemn the trial as unfair and quash the conviction as unsafe however strong the grounds for believing the defendant to be guilty.
[9]Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77].
[10]Wiley v R, above n 7, at [34].
[11]At [35], citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
The Court gave examples of trial unfairness that might vitiate a conviction irrespective of potential impact on verdict: lack of legal representation, failure by counsel to follow instructions on fundamental issues such as plea or the giving of evidence, or deprivation of an accused’s right to an adequate closing address.[12] These are examples of failures of process or substance that tend to undermine values fundamental to the criminal trial process itself. They go to the heart of any trial. They are so irreducible that their compromise will be fatal irrespective of the strength of the rest of the prosecution case.
[12]At [40], citing Condon v R, above n 9; Hall v R [2015] NZCA 403; and Kaka v R [2015] NZCA 532.
We do not think this case presents as an example of that kind of failure. Even with a judge in a judge-alone trial relying on evidence not properly before him or her, unfairness will be a question of degree. Evidence relied on that goes to the heart of the case but was not called at trial is very likely to give rise to trial unfairness (quite apart from the “real risk” limb of the miscarriage test). But there are many categories of unadmitted evidence where, even if the judge impermissibly relied on it, such reliance would not tend to undermine trial values: minor or marginal exhibits, for example; evidence such as chain of custody evidence, where that matter is not really in issue; statements of fact witnesses that are background only and do not relate to elements of the offence, and so forth. That means in every instance of such irregularity an assessment must necessarily be made of the potential impact of the evidence before trial unfairness can be objectively assessed. Effect will always be a matter of degree. In reality, therefore, with this particular kind of error there will be little difference in substance between the real risk test in s 232(4)(a) and the trial unfairness test in s 232(4)(b).
It must follow that the Judge’s error in this case was of such minor or peripheral effect that its formal inclusion in the Judge’s reasoning cannot be considered so gross, prejudicial or irremedial as to render the trial unfair. The evidence was, in the overall context of this trial, little more than a makeweight.
We therefore reject this ground of appeal.
Ground 2: Insufficient support for the complainant’s evidence
The appellant did not formally abandon this ground of appeal, but counsel placed no particular emphasis on it. The submission was that the photographic evidence of the complainant’s injuries did not support the complainant’s story. It was simply a “her word against his word” case, and, counsel submitted, there was no proper basis upon which her word could be preferred by the Judge over his.
This ground of appeal is entirely misconceived. No corroboration was required of the complainant’s evidence. That is the effect of s 121(1) of the Evidence Act 2006.[13] The Judge was entitled to reach his own conclusions as to the credibility and reliability of the protagonists’ competing narratives, provided there was a rational basis upon which to prefer the complainant’s narrative.
[13]The exceptions to this rule are criminal proceedings in relation to perjury, false oaths, false statements or declarations and treason.
In fact, there was ample circumstantial corroboration of the complainant’s evidence about her injuries. Her refusal to be seen in public after the assaults and the appellant’s refusal to allow her to be seen was corroborated by both Ms Waswo and Mr Gadd. In addition, there was the advice given to Mr Gadd by their daughter.
We reject this ground of appeal.
The conviction appeal is dismissed accordingly.
Sentence appeal
Background
When the matter came back before Judge Tompkins for sentencing a month later on 2 October 2015, counsel informed the Judge that the appellant had been sentenced in the Palmerston North District Court on 31 March 2015 by Judge Lynch for other offending (the Palmerston North offending).[14] The Palmerston North offending covered offending during the period March 2014 to March 2015. It included an assault on a previous partner of the appellant that occurred on 3 March 2014 as well as burglary, a further assault, and theft. The appellant was in fact on bail for the Palmerston North assault when he committed the Upper Hutt male assaults female offences.
[14]New Zealand Police v Ogden [2015] NZDC 5326.
We note Corrections had advised the Palmerston North District Court on 23 February 2015, a week before Judge Lynch imposed sentence for the Palmerston North offending, that a pre-sentence report would not be available because the appellant had failed to attend his appointment at the Fielding Community Probation Service Centre on 28 January 2015. Contact was made with the appellant’s grandmother with a request that he contact Probation Services so that an interview could be undertaken before sentencing. No such contact was made.
In any event, when the matter came before Judge Lynch in Palmerston North, the appellant expressed a willingness to continue with anti-violence counselling, and the Judge acknowledged that.[15] The Judge adopted a starting point of 24 months’ imprisonment, with an uplift of six months for previous criminal history, followed by discounts for guilty pleas and remorse, leaving a final sentence of 21 months’ imprisonment. So by the time the appellant was sentenced on the current charges, he was already a sentenced prisoner.
[15]New Zealand Police v Ogden, above n 14, at [11].
Meanwhile, a brief pre-sentence report was completed by a probation officer on 17 September 2015 to assist Judge Tompkins with the separate sentencing for the Upper Hutt offending. The report provided the appellant did not want a pre-sentence interview with probation services:
Mr Ogden advised me via Prison Staff that he did not wish to be interviewed by Community Probation in regards to the Pre-sentence report. I made contact with Mr Ogden’s lawyer; however, I have not received any further instruction that Mr Ogden would partake in the interview prior to it being required in Court.
Therefore, this report has been completed without any input from Mr Ogden.
When the matter came before Judge Tompkins for sentencing, Mr Nicholls sought an adjournment until after the compulsory release date at the conclusion of half of Mr Ogden’s sentence for the Palmerston North offending.[16] Mr Nicholls advanced two reasons, and these are reflected in his grounds of appeal before us. He submitted there “was a misunderstanding or miscommunication between [the appellant] and prison staff”. The appellant says he was told that the visitor was an ACC counsellor and then someone else (counsel could not remember who). The appellant became frustrated and declined to see visitors of any kind. He said he did not know the visitor was a probation officer and he sought another opportunity for interview.
[16]See Parole Act 2002, ss 17 and 86(1).
The second point made was that if the appellant was sentenced on the charges then before Judge Tompkins to a sentence cumulative on his pre-existing sentence, this would have a significant effect on his total term of imprisonment. Mr Nicholls said:
Mr Ogden’s concern (given he anticipates that he would unlikely be granted early release on parole) that if a cumulative sentence is imposed of more than 3 months on this current offending, it will likely mean that he will actually serve the entire sentence of 2½ ‑ 3 years, which he believes would be a disproportionate sentencing outcome in all the circumstances, given he would lose automatic release.
Judge Tompkins rejected the application, concluding that the alleged mix-up at the prison was:[17]
Yet another manifestation of Mr Ogden’s clear sense of entitlement and refusal to countenance any restrictions on or directions to his behaviour.
Mr Ogden has had a long involvement with the criminal justice system and has been seen and interacted with the Community Probation Service over a very long period. I simply do not accept that he misunderstood what the nature of the probation officer’s visit was but rather he simply decided, for whatever reason, that he was going to refuse to co-operate.
[17]R v Ogden, above n 2, at [6]–[7].
The Judge concluded he should not take into account the effect of the sentence on the earlier scheduled release date because the offending before him was separate in time, place and circumstance from that for which he had already been sentenced, “involved an entirely different complainant and … took place in the context of a psychologically and physically abusive relationship”.[18]
[18]At [12].
The Judge relied on this Court’s decision in R v Clarke to the effect that cumulative sentences were justified in cases of multiple serious violence on females at different times and places.[19]
[19]At [10], citing R v Clarke CA128/06, 6 June 2006.
The Judge accepted he was required to take into account the principle of totality.[20] He adopted a starting point of six months’ imprisonment for each count, to be served cumulatively inter se, leaving a total sentence of 18 months as there were no mitigating factors. That sentence was then to be served cumulatively on the sentence being served by the appellant. No discounts were considered appropriate. The Judge indicated in his sentencing notes that the Parole Board and prison authorities should “give very careful consideration” to providing Mr Ogden with a significant range of intensive rehabilitative options given his continuing risk to the safety of future intimate partners.
Pre-sentence report
[20]At [14].
Before us, Mr Nicholls argued, as he had before Judge Tompkins, that sentencing ought to have been adjourned to allow a pre-sentencing report to be completed with the benefit of an interview.
Pre-sentence reports are prepared in almost all cases of offending punishable by imprisonment, although s 26 of the Sentencing Act 2002 is cast in permissive terms. There is no requirement in the section that the offender be interviewed, but obviously such interviews assist the reporter in accurately reflecting the perspective of the offender and, equally obviously, basic principles of natural justice require the offender or his counsel to be accorded an opportunity to be heard in the preparation of the advice.
Such right is, of course, not absolute. The offender may choose not to avail himself of it. Judge Tompkins concluded that is exactly what the appellant chose to do in this case.[21]
[21]R v Ogden, above n 2, at [7].
The pre-sentence report confirms the appellant did not wish to be interviewed by probation services in regards to the report. The Judge was sceptical about the appellant’s explanation that there had simply been a miscommunication. The Judge was entitled to be sceptical in light of his assessment of the manipulative and abusive nature of the offender himself, and in light of the way in which the offender had also failed or refused to engage with his interview opportunity in relation to the Palmerston North offending.
We reject the proposition that, on the facts in this case, the Judge was required to adjourn the sentencing because the appellant had effectively changed his mind once he saw the possible sentencing outcomes that might result. We agree with Judge Tompkins that the appellant was trying to game the process in order to achieve an advantage; probably delay in sentencing until after his release on the Palmerston North offending.
This ground must fail.
Totality
The next ground is that the Judge should have taken more careful account of the sentence in the Palmerston North offending when setting a final sentence for the current offending. The appellant argued that the effect of an 18-month sentence cumulative on the 21-month Palmerston North sentence was a notional sentence of three years and three months for all offending. This was excessive on a totality basis, it was submitted.
The Crown submitted cumulative sentences were appropriate in principle as all offences were separate in time, place and circumstance.
Cumulative sentences cannot be faulted in this case. Nor can it be said that a final sentence of 18 months for the Upper Hutt offending was manifestly excessive, however that sentence was constructed. There were three counts of male assaults female; there was evidence of injury and a suggestion that the complainant had been detained by the appellant to hide his offending; and the offending occurred while the appellant was on bail for similar offending against another domestic victim. Eighteen months was clearly in range.
That said, there is ample authority that an overall totality assessment should be made where an offender is already serving a term of imprisonment and is back before the court to be sentenced for separate offending.[22]
[22]Haywood v R [2015] NZCA 551 at [11]. See also R v Nuku [1969] NZLR 343 (CA) at 344, R v Fissenden CA364/95, 21 February 1996, and R v Bowen CA64/92, 28 May 1992. See Sentencing Act 2002, s 85(2).
This will be particularly so where there is a relationship in time and context such that the offending is connected in some way, even if distinct for the purposes of cumulative sentencing.
In the present case, the offending overlapped in time and the appellant was on bail for the earlier offending when he offended in Upper Hutt. A totality assessment was therefore required. Judge Tompkins mentioned totality as an issue to be considered, but no proper assessment of that issue was undertaken in the Judge’s sentencing remarks.
Stepping back then, the question is whether, considered on appeal, a sentence of three years and three months for three counts of male assaults female (all of which produced physical injury in some form), two common assaults (one of which was against Mr Ogden’s partner), a residential burglary and theft of a bicycle might be considered excessive on a totality basis. We do not think this sentence can be considered manifestly excessive in context.
When account is taken of the appellant’s now serious and serial pattern of male on female violence and his extensive criminal history, the sentence is, we think, in range. Appropriate uplifts for the aggravating factors already mentioned would have comfortably brought the sentence to around the three-year mark, making a final sentence of three years and three months beyond criticism.
The appeal against sentence is dismissed accordingly.
Result
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Luke Cunningham Clere, Wellington for Respondent
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