Pandey v Police HC New Plymouth CRI-2010-433-26

[2010] NZHC 2434

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2010-433-26

BETWEEN  MEISHA PANDEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 December 2010

Counsel:         C B Sargeson for the Appellant

J M Marinovich for the Respondent

Judgment:      15 December 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

C B Sargeson, Nicholsons, DX NP90008, New Plymouth 4340. Fax: [phone]
Email: [email protected]

J M Marinovich, Crown Solicitors, P O Box 738, Taranaki Mail Centre, New Plymouth 4340. Fax: [phone]. Email:[email protected]

PANDEY V NEW ZEALAND POLICE HC NWP CRI-2010-433-26 15 December 2010

Background

[1]      On 3 December 2010 the appellant was sentenced by Judge Roberts, in the

New Plymouth District Court, to a term of two months imprisonment.

[2]      That  sentence  arose  out  of  events  on  that  day  which  need  some  brief narration.   The sentence was imposed for contempt of court under s 206(c) of the Summary Proceedings Act 1957. That provision relevantly provides:

206     Contempt of Court

If any person-

...

(c)       Wilfully and without lawful excuse disobeys any order or direction of the Court in the course of the hearing of any proceedings,—

any constable or officer of the Court, with or without the assistance of any other person, may, by order of the District Court Judge or Justice or Community Magistrate, take the offender into custody and detain him until the rising of the Court, and the District Court Judge or Justice or Community Magistrate may, if he thinks fit, by warrant under his hand, order that the offender be committed to prison for any period not exceeding 3 months, or order the offender to pay a fine not exceeding $1,000 for each offence.

[3]      Earlier that day the appellant had been summonsed for what, so far as she was concerned, ought to have been an oral evidence hearing before two Justices of the Peace.   The two Justices were presiding over a depositions hearing where the Crown alleged murder against three accused.   One of those accused was the appellant’s brother.

[4]      I have seen the summons which was issued to the appellant who was then living  in  Napier.    It  is  dated  22  November  2010  and  was  issued  by  the  New Plymouth District Court.  There can be no objection taken to the obligation of the appellant both to appear and give evidence.

[5]      For some months the appellant had given indications that she was reluctant to give evidence.  The reasons for her reluctance are obscure.  However, as early as 15

April 2010 it was clear, when she was visited by a Senior Sergeant of the New

Zealand Police, that there would be difficulties with the appellant crossing the start line so far as being a witness was concerned.  She refused, at that stage, to sign a statement which had been prepared for her.  She said she wanted a lawyer.  She said that she would not answer any subpoena.  In many respects the stance adopted by the appellant to the police officer in April was one of defiance.   These matters are recorded in a police job sheet.

[6]      She maintained her position, but exhibited what the police officer considered to be genuine distress, when she was revisited on 5 November.  At that point she indicated that some parts of her previous statements to the police were true and some were untrue.   She said she did not really want to be involved.   Throughout the interview with the police officer she cried intermittently.

Events of 3 December 2010

[7]      In the event the appellant answered her summons and appeared in the New Plymouth District Court before the two Justices.  I have had the benefit of reading the transcript.  She was asked whether she would swear on the Bible.  She replied:

No, I just want to say that everything – my first statement that I made was made under duress and I have nothing to say.

Fairly the Justices reminded the appellant that she was appearing to give evidence on a very serious matter.  They said the Court had to go ―through a process‖ of swearing her in or affirming.  She repeated her refusal and made it clear that she was not going to be sworn in.

[8]      Significantly in my view the appellant said:

I have been advised that if I swear on it [the Bible] you can still use my

statement and I don’t want it to be used.

I use the word ―significantly‖  advisedly.   Since the passage of the Evidence Act

2006, and having regard to certain High Court and Court of Appeal decisions since its enactment, it has become a well recognised and sensible practice that in situations where witnesses resile from their statements or refuse to give evidence at all they can

be declared hostile and/or their statements can be placed in evidence before the tribunal.  However, that process is not available, if at the outset, a potential witness refuses to take the oath.   Such refusal prevents the obligations which attach to a witness descending on him or her.  Anecdotally there have been instances in recent times, particularly where witnesses are associated with or in the orbit of gangs, of this device to be used.

[9]      I have not been referred to any evidence which suggests that the appellant here had been advised to take this course of action for an obstruction reason.  Indeed she  said  she  had  taken  some  legal  advice.    Nonetheless,  the  device,  as  I have described it, has the potential to be pernicious and to frustrate the due administration of justice and police prosecution of crime.  To that extent, in appropriate cases, some form of deterrence is obviously justified.

[10]     Faced with the appellant’s stance the Crown promptly applied, under s 39 of the Summary Proceedings Act 1957, for the appellant to be remanded in custody. Section 39 provides:

39       Witness refusing to give evidence may be imprisoned

(1)       At the hearing of any charge any person present in Court, whether he has been summoned to give evidence or not, may be required to give evidence.

(2)       If  any  person  without  offering  any  just  excuse  refuses  to  give evidence  when  required,  or  refuses  to  be  sworn,  or  having  been  sworn refuses to answer such questions concerning the charge as are then put to him, the Court may order that, unless he sooner consents to give evidence or to be sworn or to answer the questions put to him, as the case may be, he be detained in custody for any period not exceeding 7 days, and may issue a warrant in the prescribed form for his arrest and detention in accordance with the order.

(3)       If the person so detained, on being brought up at the adjourned hearing, again refuses to give evidence or to be sworn or, having been sworn, to answer the questions put to him, the Court, if it thinks fit, may again direct the witness to be detained in custody for the like period, and so again from time to time until he consents to give evidence or to be sworn or to answer as aforesaid.

[11]     The policy of this section is clear.  It empowers a court to imprison somebody who refuses to be sworn in or to answer questions for periods of up to seven days. Normally imprisonment would be salutary.   The prisoner would undoubtedly seek

legal advice.   In most cases the witness’ stance of defiance or uncooperation is modified.

[12]     The Crown’s proper application precipitated a number of submissions from all defence counsel.  Those submissions were designed to deflect the Justices from what, in my view, was their clear duty.   All manner of matters, some legitimate, were raised.  Imprisonment for up to seven days was described as being ―draconian‖ and imprisonment would interrupt the orderly progress of the depositions hearing.

[13]     The Justices were clearly concerned by this.  They took an adjournment and on their return invited the appellant to return to the witness box and to take the oath. Again she refused.  She was asked, mildly, ―Do  you prefer not to give evidence‖? She replied, ―Yes‖.

[14]     The Justices took another adjournment.  They were given the opportunity to read the job sheets to which I have referred.

[15]     The Justices then gave a decision.   In essence they refused to exercise the statutory power they had under s 39 to imprison the appellant.   They referred to being in ―a pretty difficult position‖.  They referred to ―harsh consequences‖.  Their view  was  reinforced  by  the  appellant’s  age  (she  was  18).    They  referred,  and properly so, to real concerns which the appellant had for her family.

[16]     The two Justices went on to say:

If she comes back on Wednesday or Thursday and in a similar state of mind, we are no further ahead.  Would it be putting someone in custody for the weekend, four or five days, bring them to heel as it were.  I wonder?

I interpolate that bringing witnesses who refuse to give evidence and take the oath to heel is precisely what the underlying policy of s 39 is designed to achieve.

[17]     The two Justices then observed, incorrectly, that it might be open for the Crown to have the witness declared hostile.  This of course, as I have observed, is not an available option.

To a District Court Judge

[18]     Faced with the Bench’s refusal to place the appellant in custody under the s 39 power, the Crown then invoked s 206.  There is clear and proper authority for this course of action.  Although s 39 has the potential for indefinite use, obviously it would be undesirable to embark on a course which involved repetitive incarceration of the reluctant or recalcitrant witness.   The High Court made observations along

these lines in Beckett v Attorney-General.[1]    There comes a period, possibly at the

expiry of a seven day imprisonment, where a court should consider whether it is best to punish for contempt under s 206, thus bringing the matter to a close.

[1] Beckett v Attorney-General [1989] 2 NZLR 233 (HC).

[19]     I turn now to the next phase of the 3 December events.   The  appellant appeared before Judge Roberts who was in the courthouse and available mid afternoon.  As had been the case before the Justices of the Peace, the appellant was represented by counsel.  The Judge had some preliminary discussions with counsel. Ms Clarke, for the Crown, referred to the unsuccessful application under s 39 that morning.  (It is common ground between counsel here that the Justices having made their ruling on s 39, the whole issue was res judicata.  The s 39 power could not be resurrected).

[20]     There was discussion with counsel.   The appellant’s counsel sketched the background.  Whether or not the Judge had the benefit of the job sheets, to which I have referred, is unclear.

[21]     The appellant’s counsel  submitted  as  mitigating  factors  to  the  Judge  the appellant’s age, her recantation, and her fearful demeanour.   The judge informed counsel  he  was  considering  imposing  a  two  month  sentence  of  imprisonment. Counsel took further instructions and invited the Judge to impose such a sentence.

[22]     There is little extra detail which emerges from the Judge’s sentencing notes. The Judge, and understandably so because he did not have the transcript available to him, was clearly perplexed as to why the Justices had not exercised their s 39 power.

He described it as a ―reluctance to proceed‖ on their part.

[23]     The Judge referred briefly to Beckett and also to an 1888 Queens Bench

Division case which had been cited to him.  He then concluded:

[9]       [Counsel]  tells  me  that  Miss  Pandey  is  but  18  years  of  age. Nonetheless, from my recall of her earlier discourse with the authorities, she discloses being in a bedroom when, at the very least, a serious assault was undertaken by two of the current accused, specifically, on the deceased.

[10]      I am uncertain as to which part she wishes to recant but in any event she had made a statement that was of some significance.

[11]      I too have considered just where the offending, as I determine it to be, sits.  The charge is a serious one.  It sends the wrong message both to the community and to other prospective witnesses that a potential witness can avoid responsibilities simply by clamming up.

[12]     In the circumstances I indicated prior to embarking on this process that I intended to imprison Miss Pandey for a period of two months.  Prior to commencing the recital, [counsel] spoke with her.  She was aware thus what I had in mind and that is the sentence that I now impose.   Two months’ imprisonment.

Section 206 conviction

[24]     I am  grateful to both counsel for their focused and helpful submissions. There are really two issues which were raised.   The first is whether s 206 was properly invoked.   The second issue is whether the two months sentence was manifestly excessive.

[25]     Looking at the terms of s 206(c), there can be no serious argument that the appellant deliberately disobeyed an order or direction of the Court by refusing to take the oath.  The mens rea element of ―wilfully‖ was clearly present.  There is no direct case law on the actus reus component of ―without lawful excuse‖.   However, Ms Sargeson was not able to point to any lawful excuse which might assist in the circumstances of this case.  Fear of reprisal, threatened social isolation, misguided but understandable feelings of family or whanau loyalty, may all operate, as I am sure they did in this case.  But such matters cannot be regarded as a ―lawful excuse‖. Witnesses who, for whatever reason, take the line of least resistance when faced with hostility or threats are unwittingly or otherwise contributing to perversions of the course of justice.

[26]     Events  moved  rapidly  on  3  December,  particularly  in  the  wake  of  the Justices’ refusal to exercise their s 39 power when the Crown had asked them to do so.   However, such a rapid evolution has not in my judgment resulted in any jurisdictional flaw or process error.

[27]    Thus, to the extent that this appeal might have been an appeal against conviction, it is dismissed.

Two month sentence

[28]     I now turn to the issue of the two month sentence.  Mr Marinovich submitted with some force that refusal to give evidence in the context of a homicide trial was a very serious matter and should be dealt with accordingly.   I agree that homicide prosecutions are serious.   But the behaviour which s 206 is designed to counter is contempt of court.  The seriousness of a crime where a witness has been called is but one factor which has to be assessed in the overall context of the contempt.

[29]     Section 206(a) refers to deliberate insults of judicial officers, witnesses or court officers.   Section 206(b) refers to deliberate interruptions of proceedings or misbehaviour.  These can both properly be categorised as contempt in the face of the court and require swift action on the part of judges to preserve the court’s authority and, to a lesser extent, to retain control.

[30]     Section  206(c)  is  more  subtle.    In  the  context  of  this  case  it  covers  a deliberate refusal  to  take the oath  and  to  give  evidence.    Of the three discrete components of s 206 I have little hesitation in regarding s 206(c) as covering more serious and insidious contempts than the other two subsections.

[31]     The Judge arrived at a figure of two months’ imprisonment.   That is two thirds of the three months stipulated maximum.  I have no difficulty, in the context of the matter before him, with two months as a start point.

[32]     Where I have considerable unease, however, is that the Judge, although he specifically referred to the various mitigating factors placed before him by counsel,

did not vary his two month start point at all.  In an attempt to meet this difficulty Mr Marinovich submitted that it could well have been that the Judge had a higher start point in mind and that the two month end sentence indeed reflected mitigating discount  from  a  higher  but  undisclosed  figure.     I  understand  that  argument. However, it has no discernible basis so far as the Judge’s sentencing notes are concerned.

[33]     This was certainly not the worst form of contempt of its kind.   Yes, the appellant was in a situation of divided family loyalty.  Certainly her behaviour that day was the culmination of a course of action she had clearly signalled to the police some eight months previously.  She had taken legal advice.  I have some unease as to whether the device of the highly significant obstacle which refusal to take the oath entails (supra [8]) was operative.   But the appellant was undoubtedly young.   Her distress was manifest.  Certainly she regarded herself as being under some form of coercion or duress.   She had no previous convictions.   In my judgment the end sentence should have been tempered somewhat to reflect these mitigating factors.

[34]     To test that view, I do no more than observe that the maximum sentence under s 206 is three months’ imprisonment or a $1,000 fine.  Section 39 envisages short, sharp terms of imprisonment not exceeding seven days.  And finally, although it has not been referred to by counsel, there is a seldom used provision contained in s 54 of the District Courts Act 1947 which includes (s 54(1)(b)) a maximum fine of

$300 for refusal to be sworn or to give evidence.  That section is headed ―penalty for neglecting witness summons‖.

[35]     However, in my view s 54 could not sensibly be engaged in this situation. Section 39 of the Summary Proceedings Act 1957 would have been by far the better route.   Section 206 was really the end of the road.   In respect of the appellant’s behaviour and the Justices’ ruling the Crown and the Judge had no other option.

[36]     Returning to mitigating factors (I have referred to these statutory  provisions to give some context to the penalties which Parliament has prescribed), I for my part, from a two month start point (eight weeks), would have given a two week discount

being  25%   which   would   have  resulted   in   an  end   sentence  of  six   weeks imprisonment.

Result

[37]     Given the relatively short sentence involved (two months), I do not consider that a reduction of two weeks can be fairly described as ―tinkering‖.  I have the firm view that in the circumstances of this case the sentence imposed by the Judge was manifestly excessive by a margin of a fortnight.

[38]     For that reason therefore, the sentence imposed in the New Plymouth District

Court on 3 December 2010 of two months imprisonment is quashed. [39]     A sentence of six weeks imprisonment is substituted.

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Priestley J