Oud v Police
[2022] NZHC 2765
•26 October 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2022-488-59
[2022] NZHC 2765
BETWEEN THOMAS GEORGE OUD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 October 2022 Appearances:
M Davidson on instruction from J A Garrett for the Appellant A Tupuola for the Respondent
Judgment:
26 October 2022
(REDACTED) JUDGMENT OF GORDON J
This judgment was delivered by me on 26 October 2022 at 1.30 pm
Registrar/Deputy Registrar Date:
Solicitors:
Watkins Law, Whangarei
Marsden Woods Inskip Smith, Whangarei
OUD v NEW ZEALAND POLICE [2022] NZHC 2765 [26 October 2022]
[1] On 2 August 2022, following a defended hearing, the appellant Thomas Oud was found guilty and convicted of contravening a protection order1 by Judge D J Orchard in the Kaitaia District Court.2
[2] The appeal is brought on the grounds that Judge Orchard allegedly made a ruling that no factual finding could be made on an exhibit, “Exhibit B”, and as a result restricted defence counsel’s line of cross-examination of the complainant on the exhibit. Mr Oud claims the Judge then made a factual finding on this exhibit in her decision that contributed to her reasoning for finding him guilty of the charge. This is said to have resulted in a miscarriage of justice.
Background
Facts of offending
[3] Mr Oud was served with a temporary protection order on 6 May 2021. The complainant is a protected person under the protection order.
[4] The conviction relates to an incident on 2 December 2021. The complainant was shopping at Pak’nSave Kaitaia with her new partner. The two were in an aisle getting baby products when Mr Oud entered the aisle. As he walked past the pair it was alleged that he said: “you had better watch yourself/yourselves”. He then passed them and continued his shopping.
Exhibit B
[5] Exhibit B is an image of poor quality. It appears to be a screenshot of a Facebook Messenger conversation. It also appears to have been photocopied, perhaps several times, contributing to the poor image quality. It is displayed in black and white.
[6] The screenshot was taken by the person receiving the message (the complainant). The name of the alleged sender, “Christi Hayward”, is at the top.
1 Family Violence Act 2018, ss 9, 90(a) and 112(1)(a).
2 Police v Oud [2022] NZDC 16748.
Ms Hayward is Mr Oud’s current partner. At the bottom of the image there are two words in bold, “Unblock” and below that “Something’s wrong”. These would appear to be buttons displaying options that the user can press, however because of the low image quality only the text can be seen.
[7]The message reads:
Hi [redacted]. The fact that you have now blocked me and my partner Tom is petty as fuck he just wants to contact his daughter and wants to see his daughter and we will try in any way possible to do so even if we have to track down her school. You have no right to stop a father from seeing his child and the least you could do is message us back, his family have tryed [sic] to reach out to your family for an address or your phone number and they have told us all to stop harassing them, it’s not even harassment, yous just over react to [sic] much. Yes Tom has told me that you have a full custody parenting order but he wants to see his daughter and he ain’t going to court to try and see her either. The least you could do is message us back. We will not rest until we get her, she is rightfully his too and when we do get hold of her good luck with trying to find her this time. He should of put you in a hole when he had the chance.
[8] Exhibit B had been attached to a without notice application for a temporary protection order that the complainant made in 2021 against Mr Oud and Ms Hayward. That application was later discontinued as against Ms Hayward.
[9] Mr Oud’s position is that Exhibit B is manufactured. Its purported relevance is that if it is true that the complainant manufactured the message it is likely she manufactured the complaint relating to the alleged breach of the protection order.
The ruling
[10] The relevant ruling was given on 2 August 2022, just after Mr Garrett, counsel for Mr Oud, began cross-examining the complainant.
[11] Judge Orchard detailed the background to the ruling, namely, that Mr Garrett sought to put to the complainant that Exhibit B was manufactured. Mr Garrett acknowledged he could not prove it was manufactured nor the reason why the application against Ms Hayward had been discontinued but planned to call Ms Hayward to give evidence that she did not send the message.
[12]Acknowledging the evidence had some relevance, Judge Orchard noted:
[4] I am concerned that if the defendant is given too much leeway in exploring this matter we will drift very much from the matters that are really at issue in this case. But on the other hand, what Mr Garrett is really wanting to put to the witness is that for her own ends she has in the past manufactured evidence against the complainant, or at least against his partner, in this case in support of an application for a without-notice protection order. As Mr Garrett said, if that were true then it would have an impact on the credibility of the complainant because it would show that she is prepared to make malicious allegations against the defendant and to do so in the context of court proceedings and moreover in a sworn affidavit.
[13]Judge Orchard then made her ruling as follows:
[5] In those circumstances I have indicated to Mr Garrett that I will permit him to put to the witness that she did file an affidavit with the exhibits I have already mentioned. Also to put to her that she discontinued that application and to put to her that she did that because she could not prove that the second document, the disputed text, had actually been sent by Ms Hayward. Further, that she herself had caused that to be manufactured.
[6] If she responds in the negative to those allegations my first instinct was to say that that was the end of it. However, I think that might have been a little precipitate. I will permit the defence to call Ms Hayward to say that she herself did not send that text. I do not know if she is in a position to add anything further to that which might add weight to the central, basic allegation of the defendant, which is that it must have been manufactured. We will wait and see. So that is my ruling, but I do caution counsel about drifting too much from central issues and we will now have the complainant back again please.
The trial evidence relating to Exhibit B
[14] The notes of evidence record that Mr Garrett put Exhibit B to the complainant and read out the content of the message.
[15] After some initial cross-examination Judge Orchard asked a few questions about the text at the bottom of the screenshot:
Q. And just at the bottom of that message there’s this word: “unblock, something’s wrong”.
A. I blocked her.
Q. Do you know what that means? “Unblock, something’s wrong”?
A. No, I had just blocked her. I don’t [know]. It was just a screenshot I took.
Q. So you don’t know what that “unblock, something’s wrong” means at the bottom of it?
A. No.
[16] After the Judge’s questions Mr Garrett put to the complainant that the message in Exhibit B was manufactured:
Q. So I put it to you that you manufactured that second – that message that I’ve just read out to you?
A. I did not manufacture anything like that. I don’t have that type of ability to create something like this. I mean, this is something really particular. You know, down in the corner that’s generally a drophead. There is no way I could have photoshopped something that tiny. And I received an iPhone that Christmas beforehand, it was my first time ever using iPhone ‘cos I’ve always used Samsung. There is no way I could do something like that. At all.
[17] Mr Garrett then put to the complainant that she discontinued the protection order proceedings against Ms Hayward because the message was manufactured:
Q. Ms Hayward is going to be giving evidence later today that you fabricated that message against her, which is why you discontinued the protection order proceedings against her. That’s the truth, isn’t it?
A. I did not fabricate that. I do not know if it was Ms Hayward that made that message and sent it to me. It could have been someone else. On top of that, I just – there’s no reason for me to be doing anything like this. I have nothing to do with Christi nor Tom [Oud] for how many years and all of a sudden this has popped up.
[18] Lastly on the topic of Exhibit B, Mr Garrett put to the complainant that she had fabricated both Exhibit B and the complaint relating to the breach of protection order:
Q. I’m putting it to you that you’ve done the same thing and making up stories against Mr Oud as you did at the Pak’nSave on the second of 5 December 2021, right?
A. No, why would I make something like that up?
Q. I put it to you you’re making it up because of the 10th and 11th of this month you have a Family Court hearing to determine contact between [your daughter] and her father and also that whether the temporary protection order made on the 5th of May is going to be made final and part of that is having something recent to point to against Mr Oud so you can get a final protection order against him and that will help your proceedings, won’t it?
A. No, absolutely not. I am not that kind of person. I do not do malicious things like this. I do not make things up. My daughter’s priority – is her priority – I am putting my daughter priority. And as you’ve seen in the evidence in the video I was not lying at all. He walked past me, spoke some words, and I mean for the first time I’ve seen that video he turned around behind me and I didn’t even know that. If I had turned around and seen him I probably would have started crying and freaking out. I just thought he walked down the aisle and continued on his way.
[19] At the conclusion of Mr Garrett’s cross-examination of the complainant the Judge asked the complainant a series of clarifying questions about Exhibit A (a Facebook message that the defence accepted Ms Hayward had sent to the complainant) and Exhibit B. There was some discussion about the times and dates displayed on the screenshots, why the name at the top was different between the two screenshots, and what app the messages were sent on (Facebook Messenger). The Judge then asked about the “blobs” in the image and the complainant answered that it was the Facebook page picture of Ms Hayward. The following exchange occurred:
Q. … What would they be, those blobs? If you could actually see them.
A. It’s the person that has sent it. The little, tiny one that drops down, it means that person is – they’ve sent it to you and the message has been opened.
Q. That’s the one – so just for the record that’s the one to the right of the page – bottom right of the page as you look at it?
A. Yes. Yes.
Q. At the end of the writing? Okay.
A. And it’s a really tiny picture so you can’t photoshop something that tiny to be exact, it doesn’t –
Q. And what about the one at the top by Christi Hayward, what would that
– do you know what that is?
A. I’m not sure, sorry.
[20] Judge Orchard then asked about the “original” of Exhibit B and the complainant confirmed it was in colour like Exhibit A. The complainant indicated she and her lawyer had the colour version where Ms Hayward’s Facebook page picture could be seen. The Judge asked about when the complainant had seen each message (Exhibits A and B), whether she had ever met Ms Hayward and whether she replied to either message.
[21] The Judge’s questioning of the complainant runs to just over five pages of the notes of evidence. No further questions arose from defence or prosecution counsel as a result of the Judge’s questioning.
[22] Ms Hayward was examined and cross-examined on Exhibit B. She stated that the message was false and did not come from her. Following cross-examination of Ms Hayward, Judge Orchard again asked a series of questions about Exhibit B:
Q. Ms Hayward, prior to, I suppose, being served with the application for a temporary protection order, had you ever met the complainant?
A. No.
Q. And I assume you’re saying that you’d never – the only time you had ever communicated with her at all was in that first text, exhibit A, is that your evidence?
A. Yes.
Q. So you didn’t know her, she didn’t know you?
A. No.
Q. All right. In the original annexure to the affidavit, perhaps first of all if I just show you exhibit A, that’s in colour, yes?
A. Yes.
Q. Exhibit B, it’s not in colour. Exhibit C is in colour and also full page, and then of course the two bank statements that are exhibit D are all in colour as well, yes?
A. Yes.
Q. So the odd man out if you like is exhibit B which is a photocopy and smaller? Yes.
A. Yes.
Q. When you – in the original affidavit, did all of the exhibits look the same? Were they all full colour? Which is what, I should tell you, [the complainant] has said.
A. I’m not – I don't remember. Maybe – I’m not sure – no.
Q. If they’re screenshots, because they’re all screenshots.
A. Yeah.
Q. The ones that are of – and purporting to be screenshots taken from [the complainant]’s phone, wouldn’t you expect them all to look the same if they’re all screenshots?
A. Yes.
Q. So why is exhibit B a photocopy and much smaller?
A. I don't know.
Q. Would you agree with me that Christi is spelt a number of ways by people who call themselves Christi. Would you agree with that?
A. Yes.
Q. Often with a K, is that right?
A. Yes.
Q. Often Kristie?
A. Yes.
Q. And variations of that. Would you agree that the way you spelled Christi, C-H-R-I-S-T-I, is unusual?
A. I guess so, yeah.
Q. In relation to the surname Hayward, that again is a surname that is, would you agree, is spelled different ways? There are different spellings, put it that way, of Hayward?
A. Yes.
Q. Yes? So I think one would be H-E-Y-W-A-R-D? Or H-A-Y wood, W-O- O-D?
A. Yes.
Q. And they all sound the same?
A. Yes.
Q. Did it not surprise you, if B were a forgery, that the forger, if it were in fact [the complainant], had spelt both of your names correctly?
A. No.
Q. Just a lucky guess?
A. Well my name’s on my Facebook page, so.
Q. Is it?
A. It’s spelt there for her to see very easily.
Q. But she’d have to have access to your Facebook page?
A. Which she did. Yeah.
Q. The sentiments that are contained in exhibit B, and by that I mean that Tom wants to contact his daughter, for example, was that true at that time?
A. That he wanted to contact her?
Q. Yes.
A. At the time it was, yes.
Q. At that time that it was sent, I’m saying. Who it was sent by.
A. Yes.
Q. And that he wanted to see his daughter and would try in any way possible to do so?
A. No. Absolutely not. He wanted a phone call for her birthday that day when I sent that first message.
Q. And that was the end of it?
A. Yes.
Q. Okay.
[23]No further questions from counsel arose from the Judge’s questioning.
Conviction decision
[24] Judge Orchard reminded herself of the burden and standard of proof, the defendant’s right to abstain from making a statement to the Police and that he did not have to give or call evidence although he did give evidence himself and called Ms Hayward.
[25] The Judge stated that the essence of the defence case was that Mr Oud never said the things he is alleged to have said.
[26] The existence of the protection order protecting the complainant at the material time was not in issue. Nor was the defendant’s knowledge of the protection order.
[27] The prosecution was required to prove that the defendant breached the order in the manner alleged, that is, by psychological abuse. The Judge was satisfied the use
of the words (if said) amounted to psychological abuse in the context of the very strained relationship between Mr Oud and the complainant and the complainant’s evidence that she was distressed as a result.
[28] The Judge recognised that the central issue was whether or not the words “you had better watch yourself (or yourselves)” were said. The complainant and her new partner both gave evidence of the incident. Senior Constable David Reynolds took the complainant’s statement and acquired CCTV footage of the supermarket aisle. Judge Orchard viewed the CCTV footage and described Mr Oud walking past the complainant. She was directly in his field of vision. He turned slightly and briefly towards her. After walking past her he stopped and swung the trolley around to face her back. The complainant and her partner left the aisle and after collecting a few items so did Mr Oud. The Judge found it implausible that Mr Oud did not see the complainant until after he had walked past her (as he claimed).
[29] Judge Orchard then turned to consider Exhibits A and B. As already mentioned, these were purportedly screenshots of messages sent by Mr Oud’s current partner Ms Hayward. Exhibit A was a “polite” Facebook message from Ms Hayward to the complainant asking for a phone call between Mr Oud and his daughter on her birthday. Exhibit B, also a message allegedly sent by Ms Hayward to the complainant, was “aggressive in tone”. The Judge noted that in cross-examination it was put to the complainant that the message was fabricated. The complainant denied this. In her evidence Ms Hayward denied sending the message.
[30] Judge Orchard stated that she must “take into account or make a finding of fact” as to whether the complainant manufactured the message.3 The Judge ultimately concluded that the complainant did not manufacture it, taking into account the technological skill required, the credibility of the complainant, and the fact that a much cruder effort could have been made if all that was sought was to sully Ms Hayward’s character and by extension Mr Oud’s. Instead the Judge considered that Ms Hayward had likely sent the message when she was “a little overheated”.4
3 The Judge incorrectly refers to the message as an email but the notes of evidence make clear both exhibits relate to Facebook messages.
4 At [25].
[31] The Judge ultimately accepted the complainant and her partner’s evidence of the interaction at Pak‘nSave and that Mr Oud did say the alleged words. She noted that the credibility of the complainant and her partner was supported by the fact they did not embellish the evidence, for example, by alleging Mr Oud swore, used abusive language or made a worse threat.
Law
[32] The appeal is brought under ss 229, 232 and 233 of the Criminal Procedure Act 2011.
[33]Section 232 provides:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that, —
(a)in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b)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; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means 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.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
Appellant’s submissions
[34] In his written submissions Mr Garrett submits that Judge Orchard made an evidential ruling that no factual finding would be made on the alleged manufactured Facebook message, and she would only allow a restricted line of questioning in cross- examination of the complainant.
[35] In particular, Mr Garrett says he was unable to question the complainant on how she received the message if she had blocked Ms Hayward (as was stated in the text of the message). He contends that if a user has blocked someone they cannot receive or see messages from that person.
[36] Mr Garrett submits that the Judge went on to make a factual finding that the message was not fabricated, and she used this fact as relevant evidence to prove Mr Oud was upset with the complainant and did threaten her at Pak’nSave.
[37] Accordingly Mr Garrett submits there has been a miscarriage of justice. Mr Davidson did not seek to make any oral submissions to supplement Mr Garrett’s written submissions.
Respondent’s submissions
[38] Ms Tupuola for the respondent submits that there is no record of Judge Orchard making a ruling that no factual finding would be made on the message. The Judge did not restrict the scope of Mr Garrett’s questioning. The main proposition that the complainant had manufactured the message was put to the complainant, and she rejected it.
[39] Additionally, the complainant is not a technological expert who is qualified to give evidence on whether or not the message is manufactured. Defence counsel had sufficient time prior to trial to call an expert to give evidence on these matters if they desired.
[40] Judge Orchard extensively questioned the complainant about the message, and Mr Garrett did not seek to ask any questions arising from the Judge’s questions.
[41] As the presiding trial judge, Judge Orchard was entitled to determine which parts of the evidence she heard during trial she accepted and/or rejected.
[42] The issue in the trial came down to credibility. After hearing the evidence, including that given by and called on behalf of Mr Oud, the Judge accepted the evidence of the complainant and her partner.
Discussion
[43] The first issue is the effect of Judge Orchard’s ruling. Mr Garrett contends that the Judge ruled that no factual finding would be made on Exhibit B.
[44] There is no such ‘ruling’ in the Judge’s formal ruling. There is no reference to factual findings in the ruling.
[45] In the legal discussion preceding the ruling Judge Orchard indicated that she was “not in a position to draw any inferences as a layperson from whether there’s anything to be concluded from” the differences between Exhibits A and B. This comment by the Judge was made in response to Mr Garrett inviting the Judge to infer that Exhibit B was manufactured because of the differences between the screenshots in the two exhibits, such as the technology appearing different. The Judge’s comment did not form part of her ruling.
[46] In any event the Judge did not say, as asserted by Mr Garrett, that she would not make a factual finding on Exhibit B. Her observation in the discussion with counsel was limited to not drawing an inference based on any alleged differences between Exhibits A and B.
[47] The Judge’s statement, of course, did not preclude her from making a factual finding that the message was genuine and sent by Ms Hayward based on the other evidence available to her. Although the Judge had also said in her discussion with counsel that she might have a difficulty in deciding if Ms Hayward would be telling the truth in the absence of analysis of the phone, there was ultimately evidence that enabled her to do so. The Judge made such a factual finding based on the evidence that:
(a)There was no evidence that the complainant had any technological ability.
(b)A fabrication would have required technological skill.
(c)It would have also required skill to carefully construct the message with similar general construction to the first message in Exhibit A, but with a change in tone and detail.
(d)There was no reason for the complainant to construct such a message. Even if she wanted to paint Mr Oud or Ms Hayward in a bad light that could have been more easily achieved by a brief abusive or threatening message.
(e)The Judge’s impression of the complainant was that she was not “duplicitous” or “particularly sophisticated”.
(f)Although Ms Hayward seemed credible, it is plausible her emotions ran high and she felt aggrieved on behalf of her partner when she sent the message. Ms Hayward accepted she sent the message in Exhibit A which was partisan and seeking to promote contact between Mr Oud and his daughter.
[48] Second, the Judge’s main concern with questioning relating to Exhibit B’s provenance was clearly relevance. The Judge recognised that there was some probative value in the evidence which went to the complainant’s credibility. Accordingly she restricted questioning to the topics that would be relevant to credibility. No error of law arises with that approach.
[49] In any case, as is clear from the evidence set out above, the issue of whether Exhibit B was manufactured was well canvassed by both counsel and Judge Orchard. The complainant stated in response to the Judge’s questions that she did not know what “Unblock” and “Something’s wrong” meant on the screenshot. It is questionable whether she would have been able to meaningfully answer a more complex question
about the functionality of the Facebook Messenger app. In any event Mr Garrett did not seek to ask any questions arising out of the Judge’s questions. It was open to him to do so.
[50] Further, as Judge Orchard noted in her ruling, she did not consider the Facebook messages to be central to the main issue in the trial. Her finding on credibility was primarily influenced by the plausibility of the complainant and her partner’s evidence, in particular, that they did not embellish the incident. Additionally the Judge rejected Mr Oud’s main contention that he did not see the complainant in the aisle and therefore did not say anything to her.5 Because the CCTV footage did not capture audio, the key issue of whether Mr Oud said the words alleged turned on the credibility of the witnesses.
[51]For all the above reasons I consider no miscarriage of justice has occurred.
Result
[52]The appeal is dismissed.
Gordon J
5 At [14] and [26].
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