Paewhenua v Police
[2015] NZHC 1831
•4 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000036 [2015] NZHC 1831
BETWEEN RIWHIA PAEWHENUA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 July 2015 Appearances:
Martin Hislop for the Appellant
Rebecca Thomson and and Sandra McKone for the RespondentJudgment:
4 August 2015
JUDGMENT OF MOORE J [Appeal against conviction]
This judgment was delivered by me on 4 August 2015 at 4:45pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
PAEWHENUA v NEW ZEALAND POLICE [2015] NZHC 1831 [4 August 2015]
Introduction
[1] On 13 October 2014, Riwhia Paewhenua, the appellant, was convicted on two charges following a Judge-alone trial. Both charges arose from the same domestic incident that took place in July 2013.
[2] Ms Paewhenua now appeals those convictions on the grounds a miscarriage of justice resulted from the prosecution’s refusal to lead the evidence contained in Ms Paewhenua’s two-hour, exculpatory interview recorded by the Police.
Factual and procedural background
[3] The defended hearing before Judge Bouchier in the Manukau District Court occupied two days. It commenced on 11 April 2014 but was adjourned part-heard because of insufficient time. Despite various attempts to obtain an earlier fixture for the hearing to continue, it did not resume until 13 October 2014. On that date, in an oral judgment, her Honour found Ms Paewhenua guilty of both charges and entered convictions.
[4] Ms Paewhenua and her partner, the victim in this case, were in a relationship. They had one child together and the custody of that child appears to have been an issue in their deteriorating relationship.
[5] On the evening of 2 July 2013, they had an argument which culminated in the victim leaving home with the child and staying overnight at a different address.
[6] The following morning, the victim returned home. An argument ensued during which Ms Paewhenua went into the garage. On following her, the victim saw Ms Paewhenua pouring petrol from a container over his tools. As he approached her, Ms Paewhenua advanced towards him sloshing petrol out of the can. Fearful she would pour petrol over him, the victim retreated back into the house.
[7] Ms Paewhenua pursued him. She splashed petrol over him as he struggled to wrest the petrol can from her. As a result, he was doused with petrol down the front of his clothes.
[8] The couple then struggled over the possession of the petrol container. The victim regained control. As he turned to try to close the door between himself and his attacker, Ms Paewhenua hit him on the back of the head with a bowl causing dizziness and requiring him to lean against the wall for some minutes. As he did so, Ms Paewhenua flicked a cigarette lighter she was holding in her hand.
[9] Finally, the victim managed to escape from the scene to another address from which he called the Police. Shortly afterwards, the Police arrived at the address. They were directed to the couple’s home where Ms Paewhenua was located. She was arrested, cautioned and given her rights. Constable Wecke recorded the questions and answers in her notebook.
[10] It is unnecessary to record the whole of the question and answer sequence but, in summary, Ms Paewhenua admitted tipping petrol over the victim. She admitted she had a lighter. She also admitted she hit him but, despite this, claimed the victim would not leave the house. She said it was then she chased him with the petrol adding:
“If I had a lighter he’s a big boy, he can get out the door”.
[11] When she was asked why she had hit him on the head with the bowl, she replied:
“That’s when he grabbed the petrol can off me and gave it to [his cousin]. I
just grabbed whatever I could.”
[12] Further questions were asked but Ms Paewhenua was abusive and refused to answer.
[13] The evidence of those statements appears to be the only record of the interview adduced at Ms Paewhenua’s trial.
[14] However, Ms Paewhenua was interviewed by a detective the following day. This interview was recorded on DVD. It occupied more than two hours, starting at
1:06 pm and concluding at 3:15 pm. Ms Paewhenua’s account on DVD, although considerably longer, was broadly consistent with the statement given to Constable
Wecke. The predominant theme of both interviews was that the victim was the aggressor and Ms Paewhenua reacted to that aggression. It is common ground the only part of the DVD not referred to in the notebook entry was a reference to Ms Paewhenua hitting the victim in the head because he tackled her. Otherwise, the DVD was consistent with the earlier account and largely exculpatory.
[15] The Crown has filed an affidavit from the sergeant who prosecuted this matter. She deposed that, in preparing for the trial, she expressly turned her mind to the question of whether to introduce the DVD interview in evidence as part of the prosecution’s case. Having read the synopsis, she formed the view the interview was self-serving and inconsistent with the prosecution’s case. She made the decision not to adduce the DVD interview. She did not recall discussing this with Ms Paewhenua’s then counsel before the hearing. She could not recall either Ms Paewhenua’s counsel raising the issue with her at the hearing nor Judge Bouchier ever being asked to consider the issue. She recalled she was never asked by the Judge for an explanation as to why the prosecution was not adducing the evidence and thus assumed that counsel never raised the issue with the Judge.
[16] Ms Paewhenua has also filed evidence. She said that her counsel told her that the Police had advised they would not produce the DVD at the trial because it was “self serving”. She said as a result of this advice, it was decided she would have to give evidence. While she was initially unconcerned by this prospect, she said that, during cross-examination, she became very nervous and flustered and, as a consequence, claimed she did not have a fair trial. She said she would have had a fair trial if evidence of her interview had been admitted and would thus have relieved her of the ordeal of giving evidence and being subjected to the scrutiny of cross- examination.
[17] Ms Paewhenua also claimed that during her trial, her counsel made an application for the DVD to be played but this application was refused by the Judge primarily on the basis of its length.
[18] If such an application was made, there is no evidence of it or of any ruling or other direction on the Court file or in the trial transcript.
[19] On the state of the evidence before me, it is simply not possible to make a finding of fact on the question of whether Ms Paewhenua’s counsel either requested the Police to adduce the evidence contained in the DVD or applied to the Court for any order compelling the prosecution to adduce this evidence as part of its case.1
Appellant’s submissions
[20] Mr Hislop, for Ms Paewhenua, submits that while s 21 of the Evidence Act
2006 (“the EVA”) appears to render inadmissible a defendant’s statement in a criminal proceeding where the defendant does not give evidence, this material alteration of the common law has not relieved the prosecution of its general obligation to assess, on a principled basis, whether the defendant’s statement is admissible and ought to be offered in evidence as part of its case. He submits it is important to ensure that s 21 is not misused. If the decision not to adduce a defendant’s statement is made on unprincipled grounds, the consequence is that a defendant who wishes to offer evidence of their own pre-trial statement will be obliged to give evidence and be subject to cross-examination. This, he submits, may not only be unfair but also in breach of s 25 of the Bill of Rights Act 1990 which provides and preserves the right to a fair hearing and the right not to be compelled to be a witness.
Approach to appeal
[21] Section 229 of the Criminal Procedure Act 2011 sets out the right to appeal against conviction:
“229 Right of appeal against conviction
(1) A person convicted of an offence may appeal under this subpart to the first appeal court against the conviction.
(2) An appeal against a finding that the convicted person is guilty of a contempt of court must be brought under subpart 5.”
1 Such a power exists under s 113(3) of the Criminal Procedure Act 2011, which permits the court, if it is of the opinion that the witness who has not called for the prosecution ought to be called, may require the prosecution to call the witness or make an order for the attendance of the witness; see too, the Court of Appeal’s decision in R v King [2009] NZCA 607 dealing with s
368(2) of the Crimes Act 1961, which was the statutory predecessor to s 113(3).
[22] Under s 232(2)(b) and (c), the High Court can only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason”.
[23] “Miscarriage of justice” is defined in s 234(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.”
[24] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.2 The error or irregularity must lead to either of the consequences listed in subparagraphs (a) or (b).
[25] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.”3 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.4
[26] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that:5
“[i]t is not every departure from good practice which renders a trial unfair...”
[27] Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.6 The courts have held that an unfair trial can also
exist when a defect in the trial causes an unacceptable appearance of unfairness
2 See Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]: “A miscarriage is more than an inconsequential or immaterial mistake or irregularity.”
3 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
4 Sungsuwan v R, above n 3, at [110].
5 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
6 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R, above n 5 at [28].
without actual prejudice to the defendant.7 In relation to a Judge-alone trial, this can occur where the trial Judge’s conduct could create a belief, in the mind of a reasonable observer, that it has deprived the defendant of a fair trial.8
Analysis
[28] At the centre of this discussion is s 21 of the EVA. Section 21 provides:
“21 Defendant who does not give evidence in criminal proceeding may not offer own statement
(1) If a defendant in a criminal proceeding does not give evidence, the defendant may not offer his or her own hearsay statement in evidence in the proceeding.
(2) To avoid any doubt, this section does not limit the previous consistent statement rule.”
[29] The question raised on this appeal is whether the failure/refusal by the prosecutor to adduce the DVD interview amounted to an error, irregularity or occurrence in relation to the trial which created either a real risk that the outcome of the trial was affected or resulted in an unfair trial.9
[30] In order to examine this question, it is necessary to consider two issues: (a) the nature and contents of the DVD interview; and
(b) the circumstances which require a prosecutor to adduce a defendant’s
hearsay statement.
[31] I shall consider each of these issues in turn.
7 See James v R [2011] NZCA 219, [2012] 1 NZLR 353 at [29], where the failure to address the juror’s capacity meant that there was a risk of a miscarriage of justice even though the verdict would have stood if the juror had been discharged.
8 EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA); R v Fotu [1995] 3 NZLR
129 (CA).
9 Criminal Procedure Act 2011, ss 232(2)(b), (c) and 234(4).
The nature and contents of the DVD interview
[32] In the present case, there was no indication at the beginning of the trial that Ms Paewhenua would give evidence. The prosecution led the evidence of Ms Paewhenua’s statement to Constable Wecke as recorded in her notebook. This included both inculpatory and exculpatory statements. Because the prosecutor was of the view the DVD interview was self-serving, she elected not to lead it as part of the prosecution’s case.
[33] I agree with Ms Thomson’s submission that because the Court received Ms Paewhenua’s account to Constable Wecke, no unfairness arose in terms of her ability to offer an effective defence.
[34] The DVD interview contained statements which were consistent with the account she gave to Constable Wecke, albeit necessarily longer and more detailed. The overwhelming theme of both statements was that the victim was the aggressor and Ms Paewhenua reacted to that aggression. It is common ground that the only detail in the DVD interview which was not recorded in Constable Wecke’s notebook, and adduced as part of the prosecution’s case, was that Ms Paewhenua hit the victim in the head because he tackled her against the wall and it was then that she hit him on the head with the cup.
[35] Even if the refusal or failure of the prosecution to adduce the evidence of the DVD amounts to an error, irregularity or occurrence in relation to the trial, which I do not accept for reasons develop later in this judgment, I am not satisfied the omission created a real risk the outcome of the trial was affected or resulted in an unfair trial or the trial was a nullity. This is because the evidence contained in the DVD interview reflected the evidence adduced by Constable Wecke and, in any event, was inadmissible for the reasons discussed more fully below.
What are the circumstances which require the prosecution to adduce a defendant’s
hearsay statement?
[36] The Court of Appeal has previously warned against the introduction of inadmissible statements by defendants. In R v Sturgeon, it said:10
“… there is a misapprehension that interviews are some class of evidential material which has automatic admissibility.”
[37] Section 21 of the EVA makes it clear that if a defendant does not give evidence, he or she may not offer his or her own hearsay statement in evidence at a trial.
[38] Mr Hislop submits, however, that this is not an unfettered discretion and refers me to the Court of Appeal decisions of Fox v Attorney-General11 and R v King.12 He is, of course, correct. The interests of justice and the need to ensure a defendant receives a fair trial are core considerations and duties which every prosecutor is obliged to uphold.
[39] The court’s power to intervene by fettering a prosecutor’s discretion was explained by the Court of Appeal in King. That case, at its highest, stands for the proposition that:13
“In the event of an unfair decision by a prosecutor not to lead evidence as to what an appellant said at a police interview, it would thus be open to the Court to require that evidence to be led.”
[40] The mechanism for the exercise of the court’s power is to be found in s 113(3) of the Criminal Procedure Act, which has preserved the power formerly contained in the Crimes Act 1961.14
[41] The only authority which counsel have located where the Court intervened to reverse the unfairness caused by a prosecutor not leading evidence of a pre-trial
10 R v Sturgeon [2005] 1 NZLR 767 (CA) at [25].
11 Fox v Attorney-General [2002] 3 NZLR 62 (CA)
12 R v King, above n 1.
13 At [19].
14 Criminal Procedure Act 2011, s 113; and Crimes Act 1961, s 368(2).
statement made by a defendant was considered by Lang J in R v Felise (No 3).15
There, the Crown had adduced evidence of what one defendant had said during a meeting between the Crown’s witness and some of the defendants. It elected not to adduce evidence of what the other defendants had said at the same meeting. The Judge permitted the defendants to cross-examine the Crown’s witness on the basis of what the other defendants had said to her. In light of the particular circumstances of that case, Lang J concluded that:16
“… it would be unfair for counsel for the accused not to be able to explore what was said at the meetings.”
[42] In its review of the EVA, the Law Commission commented on this issue as follows:17
“We recognise that the approaches suggested in R v King and applied in R v Felise (No 3) will only be appropriate in rare circumstances where the resulting unfairness to the defendant impacts on his or her right to a fair trial.”
[43] A review of the only two cases which counsel have located, since the EVA was passed, shows that, in both cases, the Court considered the evidence of a defendant’s police interview in circumstances where the prosecution did not wish to adduce it.18 In each case, the Court found the statements to be admissible.
[44] In R v Boynton, the defendant gave two interviews to the Police. The first was a mixed statement in the sense it contained some inculpatory statements. The Crown indicated it did not intend to adduce any part of the second statement on the grounds it was largely exculpatory and consistent with the earlier statement. Toogood J declined to direct the Crown to adduce the evidence, observing:19
“… I [do] not consider that the interests of fairness required that the statutory purpose of s 21 of the Evidence Act should be overridden in respect of the second statement.”
15 R v Felise (No 3) (2010) 24 CRNZ 533 (HC).
16 At [25].
17 Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at [3.53].
18 R v Boynton [2013] NZHC 2415; Boyd v Police [2012] NZHC 713.
19 At [16].
[45] In Boyd v Police, the appellant, following a fight with his son, left the scene and met with his lawyer. After taking legal advice, he went to a nearby police station with a pre-prepared written statement. He was then interviewed on video. He began by reading his pre-prepared written statement. On appeal against conviction, he argued that the trial Judge was wrong to refuse to admit the videotape statement. The essence of the submission was summarised by Allan J as follows:
“[15] It seems that Mr Boyd’s unhappiness stems from the fact that, in his prepared statement, he referred to several important factual matters which supported his self-defence argument. Mr Mather submits that, by reason of the Judge’s refusal to accept the DVD in evidence, Mr Boyd was compelled to give evidence and to submit to cross-examination. Had the DVD been played, then it may be that he would not have needed to give evidence at all.”
[46] It is immediately apparent from that extract that the facts in Boyd bear a close resemblance to the essence of Mr Hislop’s submission to me. Allan J dismissed the argument in the following way:
“[23] The Judge was plainly right to decline to receive the video tape statement, comprising as it did a carefully prepared exculpatory account of the incident by the appellant. The statement was inadmissible. Mr Boyd complains that because the statement was ruled out, he was compared to give evidence on oath. But an accused person has no right to require the Court to accept a hearsay out-of-Court exculpatory statement in substitution for evidence given under oath at the trial. While the appellant was perfectly entitled to elect not to give evidence at all, he was not entitled to insist that his hearsay statement be admitted, whether it was part of the prosecution case or his own. Mr Eastwood submits that the course followed by the Judge rendered the trial unfair. But the exclusion of inadmissible evidence cannot amount to a breach of s 25 of the New Zealand Bill of Rights Act 1990.20
This ground of appeal must fail.”
[47] In the present case, the Court was made aware of Ms Paewhenua’s case after it heard the evidence of Constable Wecke. Merely because she had approximately eight hours to refine and adapt that account in the DVD interview does not mean that unfairness resulted through not leading it as part of the prosecution case. Adopting the phraseology of Toogood J in Boyd, the interests of fairness do not require the statutory purpose of s 21 of the EVA to be overridden in respect of the DVD
interview.
20 R v King, above n 1, at [14].
[48] Further, it cannot be overlooked that because the DVD interview was overwhelmingly consistent with Ms Paewhenua’s first statement to Constable Wecke, its probative value was significantly diminished. Weighing its probative value against the inevitability its inclusion would needlessly prolong the proceeding, which had already been adjourned part-heard because of time constraints, fortifies my view that the DVD interview was inadmissible and any application to require its admission under s 113 of the Criminal Procedure Act would necessarily have failed.
Conclusion
[49] I am not satisfied that, in terms of s 232(2)(c) of the Criminal Procedure Act the failure or refusal of the Police to lead the evidence of the DVD interview amounted to an error, irregularity or occurrence in relation to the trial which either created a real risk the outcome of the trial was affected or resulted in an unfair trial or the trial was a nullity.
[50] The interests of fairness do not require, in this case, the statutory purpose of s 21 of the EVA to be overridden in respect of Ms Paewhenua’s DVD interview.
Result
[51] The appeal is dismissed.
Moore J
Solicitors:
Mr Hislop, Auckland
Crown Solicitor, Auckland
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