Paul v Police
[2025] NZHC 2131
•1 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000519
[2025] NZHC 2131
BETWEEN JONATHAN RANIERA PAUL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 April 2025 Appearances:
D Nairn for the Appellant
A Al-Janabi for the Respondent
Judgment:
1 August 2025
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 1 August 2025 at 12.00 pm.
……………………………… Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Auckland
PAUL v POLICE [2025] NZHC 2131 [1 August 2025]
Introduction
[1] On 11 June 2024, Judge S Moala in the Manukau District Court found Mr Paul guilty on a charge of breaching a protection order (psychological abuse)1 and a charge of damaging a dwellinghouse with intent to intimidate.2 She sentenced him to four months’ imprisonment.3 Mr Paul appeals his convictions.4 He had already been released from custody by the time the appeal was heard.5
[2] Mr Paul advanced several grounds of appeal. I focus on the only ground that has merit.6 That is whether the Judge was in error in granting the police application to admit into evidence the complainant’s mobile video record (MVR) as a hearsay statement under s 18 of the Evidence Act 2006.7 This section provides for exceptions to the rule against hearsay to admit a hearsay statement where certain preconditions are met.
[3] The MVR statement was admitted on the day of the trial when the complainant did not attend to give evidence. The previously scheduled trial had been adjourned when the complainant was summonsed and appeared at Court, but left before the trial commenced, in circumstances I describe later.
[4] Without the complainant’s MVR, the Crown had insufficient evidence to prove the charges. The question on appeal is whether a miscarriage of justice has arisen by admission of the MVR.8
The charges and evidence
[5]The charges related to an incident at the complainant’s home.
1 Family Violence Act 2018, ss 9, 90(a), and 112(1)(a).
2 Crimes Act 1961, s 308(a).
3 New Zealand Police v Paul [2024] NZDC 17923 [conviction decision]; and New Zealand Police v Paul [2024] NZDC 13461 [sentencing decision]. The sentencing decision was given orally on 11 June 2024, but reasons for the conviction decision were delivered on 3 September 2024.
4 The appeal filed was against conviction and sentence but advanced only as to conviction.
5 The District Court file was not complete. A miscommunication led to the last of the District Court documents being provided to this Court on 24 July 2025.
6 The admissibility issue was first raised in oral argument. I permitted the appeal point to be advanced.
7 New Zealand Police v Paul [2024] NZDC 12009 [hearsay ruling].
8 Criminal Procedure Act 2011, s 232(2)(b) and (c).
[6] The complainant gave a detailed MVR to police when they responded to her 111 call. Mr Paul had been at her home address with her consent. The gist of the complainant’s statement, as summarised in the summary of facts, was that they had begun arguing while she was folding washing and Mr Paul started throwing things around. She asked Mr Paul to leave, but he refused and started punching the wall in the hallway, leaving multiple holes. She said this caused her to fear for her safety.
[7] At trial, the police needed to establish that Mr Paul breached the protection order by psychologically abusing the complainant; and that he damaged property with intent to intimidate the complainant.9
[8] Police evidence established that Mr Paul had known of the protection order.10 Mr Paul did not contest this. Nor did he contest that he made the holes in the walls. There were photographs of these. The central issues were rather:
(a)whether Mr Paul’s conduct amounted to psychological abuse of the complainant; and
(b)whether Mr Paul damaged the walls with the requisite intent to intimidate.
[9] The evidence at trial comprised the oral evidence from the officer in charge; the complainant’s MVR and transcript; the 111 call transcript; a photograph booklet; the final protection order and proof of service of this; and propensity evidence in the form of summaries of facts for two previous similar breaches of the protection order by Mr Paul to which he had pleaded guilty. These involved the same complainant at the same address in July and October 2020.
[10] The issues at trial outlined above are such that the complainant’s evidence about what Mr Paul did and said was critical to establishing the charges.
9 Crimes Act, s 308(a).
10 A protection order has been in place since 21 September 2016. Under this order, Mr Paul is the respondent and the complainant and three of their children are the victims.
Section 18 of the Evidence Act
[11] The Judge was required to be satisfied that the preconditions for admissibility of a hearsay statement were met under s 18 of the Evidence Act. Relevantly, this requires that:
(a)the circumstances relating to the statement provided a reasonable assurance that the statement is reliable;11 and
(b)the complainant (the maker of the statement) is unavailable as a witness.12
[12]Section 16 defines when a person is unavailable as a witness:
(2)For the purpose of this subpart, a person is unavailable as a witness in a proceeding if the person—
(a)is dead; or
(b)is outside New Zealand and it is not reasonably practicable for him or her to be witness; or
(c)is unfit to be a witness because of age or physical or mental condition; or
(d)cannot with reasonable diligence be identified or found; or
(e)is not compellable to give evidence.
[13] Mr Paul did not suggest there was an error in the Judge’s assessment of the first limb of s 18 (reasonable assurance of reliability). In any event, the Judge was correct to find that this aspect was satisfied. The statement was recorded on video. It was given to a police officer immediately following the complainant’s 111 call to police communications. In response to questions, the complainant had confirmed the evidence could be used in Court. The importance of telling the truth was emphasised to her, and she promised to do so. The statement was consistent with other evidence.
11 Section 18(1)(a).
12 18(1)(b)(ii).
[14] The central issue is whether, in the circumstances, the witness was unavailable because she “[could not] with reasonable diligence be … found” within s 16(2)(d).
Approach to s 16(2)(d)
[15] In Huritu v Police,13 the Court of Appeal declined to set rigid principles to guide trial judges in the application of s 16(2)(d) of the Evidence Act. Rather, it considered that s 16(2)(d) posed a simple question of fact, citing the “straightforward and clear” nature of the language in the section.14 The Court went on to state:
[38] The question of whether reasonable diligence has been applied in attempting to find a witness requires an assessment of what has been done in the overall circumstances. There is no difficulty in the statutory language. What is required is simply an assessment as to whether what has been done amounts to reasonable diligence.
[16] The Court of Appeal accepted the respondent’s submission that the issue is to be determined by looking at the steps taken to find the witness and ought not to be influenced by a consideration of what role the witness will play in the trial if he or she is located and gives evidence. If a witness is unavailable, the party seeking to admit the evidence must still establish a likelihood of reliability and show the probative value of the evidence outweighs any unfairly prejudicial effect.15 The Court emphasised that “none of those matters has an impact on the factual enquiry as to whether due diligence has been applied in attempting to find a witness”.16
[17] The Court of Appeal’s approach to s 16(2)(d) as involving a factual enquiry was endorsed by the Supreme Court in the decision refusing leave to appeal.17
[18] In L v R,18 the Supreme Court addressed the test under 16(2)(b), a different head of unavailability, which is engaged where the witness is outside New Zealand and it is not “reasonably practicable” for him or her to be a witness. The majority of
13 Huritu v Police [2021] NZCA 15.
14 At [37].
15 At [39].
16 At [39].
17 Huritu v Police [2021] NZSC 126.
18 L v R [2024] NZSC 153, [2024] 1 NZLR 640.
the Supreme Court saw s 16(2)(b) as being primarily concerned with the logistics and practicalities associated with obtaining evidence from an overseas witness.19
[19] However, the Court went on to say that the enquiry under s 16(2)(b) must also reflect its underlying purpose, namely to mitigate the risks associated with hearsay, and the importance in our legal system of ensuring evidence can be tested by cross- examination.20 It set out a list of non-exhaustive considerations. In addition to practical aspects, these include an assessment of the nature of the case and the importance of the evidence in question,21 with the latter aspect encompassing indicators of the reliability of the evidence.22
[20] It is not obvious why “reasonable practicability” under s 16(2)(b) would involve a more contextual enquiry (that extends to considering the importance and reliability of the evidence) than “reasonable diligence” under s 16(2)(d). L v R did not refer to the decision in Huritu. Strictly, it is Huritu that continues to govern the approach to s 16(2)(d).
[21] The Supreme Court majority in L v R did comment on the concept of unavailability in all its various forms in s 16(2). The Court said that this is to be approached primarily as a question of inability or necessity.23 Generally, unwillingness will not suffice. The Court accepted that in some cases the unwillingness of the prospective witness will be relevant in considering the availability part of the exception to the rule against hearsay but emphasised that the focus is on logistics or practicalities.24
[22] Here, the issue is whether the complainant could not with reasonable diligence be found. In practical terms, this needs to be assessed by comparing what steps were taken with what further steps could have been taken in the overall factual circumstances. One of those circumstances is that the complainant was (and was
19 At [69].
20 At [69]–[70].
21 At [70].
22 At [77].
23 At [83]–[90]. In L v R, arrangements for the evidence of an Australia-based witness to be taken remotely had been made but the witness refused to leave her room. Ellen France, Williams, and Miller JJ held that the witness was not unavailable. Glazebrook and Kós JJ dissented.
24 At [106].
known to be) an unwilling witness. It is in that sense that unwillingness is relevant to the appeal.
Factual context
[23] The factual background to the Judge’s decision to admit the evidence needs explanation. Mr Paul had appeared for a Judge-alone trial on 8 March 2024. The complainant had been present in Court and the parties confirmed they were ready to proceed. The matter was stood down until 10 am while the presiding Judge, Judge Y Yelavich, dealt with other matters. A short adjournment was then taken.
What next happened is summarised in the minute of Judge Yelavich:25
[4] When I returned to court at 11.10 am, I was advised by [the prosecutor] Ms John that there had been a development with the complainant
… I was advised that following callover, Ms John met with the complainant in the presence of the officer in charge and [the] victim advisor … Ms John spoke to the complainant for around five to 10 minutes and Ms John advised me that the complainant appeared to be ready and willing to give evidence.
[5] Ms John then returned to court at 10 am. During the adjournment that followed, the officer in charge went to speak to the complainant to advise her that the trial would be starting soon. She found the complainant speaking to the defendant’s grandparents. The grandparents told the officer in charge that the complainant was not meant to be there. The complainant indicated to the officer that she needed five minutes and the Constable then left her with the grandparents. When the constable returned 10 minutes later, the complainant had left court. The defendant’s grandparents told the officer in charge that the complainant’s parents had picked her up from court. The officer in charge tried to call the complainant multiple times but there was no answer.
[6] Ms John at that stage requested more time to locate the complainant and an adjournment was taken until 12 noon. When the matter was re-called, I was advised that no progress had been made in terms of contacting the complainant … At 2.15 pm I was advised that the police had not been able to locate the complainant. The police had checked the complainant’s address but she was not home. The police had been to her father’s address, but she was not with him and he stated that he had not had anything to do with her recently. The police do not have any address for the complainant’s mother.
[24] Police also did an area check at a shopping centre but were unable to locate the complainant.
25 Police v Paul DC Manukau CRI-2023-092-79, 8 March 2024.
[25] The Judge granted the prosecution application to adjourn the trial without opposition by Mr Paul. A new trial date of 28 May 2024 was allocated. Mr Paul, who was already in custody, was remanded in custody until the new trial date.
[26] On 28 May 2024, Mr Paul appeared for trial before Judge Moala. The complainant did not attend. The Police applied to admit the MVR as a hearsay statement. It followed that no written notice of hearsay evidence was given by the prosecution.26
[27] In granting the prosecution application to adduce the MVR as a hearsay statement,27 the Judge outlined the events since the matter had been adjourned on 8 March 2024. I summarise these below:
(a)On 30 April 2024, the officer in charge served a summons on the complainant at her home address. When asked about her disappearance from Court the previous month, the complainant said she had "had enough of her in-laws".28 She decided to leave the Court and caught a bus.29
(b)On 8, 9, 14, 15 and 16 May 2024, the officer in charge attempted to phone the complainant, but she did not answer.30 The officer also visited the complainant’s house for a door-knock on 14 May at
10.15 am, but there was no answer.31
(c)On 16 May 2024, the complainant called the officer back. The Judge recorded that in this call, the officer asked the complainant whether she would like to give evidence in an alternative way, such as via CCTV. The complainant said she did not want to come to Court “at all”, but understood she had to.32 The complainant also said that she preferred
26 The requirements for written notice of hearsay evidence are set out under s 22 of the Evidence Act.
27 Mr Paul waived the notice requirement under s 22 (1)(b) of the Evidence Act.
28 Hearsay ruling, above n 7, at [17].
29 At [17].
30 At [18].
31 At [18].
32 At [19].
to give evidence via a CCTV feed, so that the events of the first trial were not repeated.33 Police subsequently made a mode of evidence application.
(d)On 27 May 2024, the day before the hearing, the officer in charge attempted to contact the complainant by phone but was unsuccessful. She also phoned the complainant on the morning of the hearing, but the complainant did not answer.
Submissions for the Police
[28] The Police support the Judge’s reasoning for concluding that the complainant could not without reasonable diligence be found and was hence unavailable to give evidence. This is set out below:
[21] I am satisfied that the complainant was aware of today’s court hearing. I am satisfied that the officer in charge has made all reasonable efforts to get the complainant here today including persistent phone calls and visits. The last time that she spoke to the complainant, the complainant did say she does not want to come to court at all but understood that she has to, so that is an indication to me of her feelings and views about coming to the Court today.
[22] The Act does not require that every possible method or effort or alternative method has been used to try and get the complainant here. My assessment is whether the police have used reasonable diligence in order to try and get her here. I am satisfied that they have done that. They have been unable to get the complainant here. She was aware she needed to be here. Of course, given the context that this is family violence, that is a complex area. She may have other reasons why she did not want to be here today, or she is unable to be here. But I am satisfied that she is unavailable for the purpose of the pretrial hearing today.
[29] Ms Al-Janabi for the Police emphasises that the Police made repeated efforts to contact the complainant over several days and utilised multiple methods of communication. Despite these efforts, the complainant did not respond, notwithstanding her previous responsiveness.
[30] Ms Al-Janabi also emphasises that although the Police are well-resourced, those resources are not unlimited. She says that the number and nature of the attempts
33 At [19].
made to contact the complainant amounted to reasonable diligence, being commensurate with the nature of the case.
Analysis
[31] I acknowledge the resource limitations faced by Police. However, I do not agree with the Judge’s conclusion that the witness was “unavailable” under s 16(2)(d).
[32] The Police knew where the complainant lived with her school-aged children. She was served with a summons at her address. There is no evidence to suggest that she had commenced living elsewhere. It is difficult to conclude that the complainant could not with reasonable diligence be “found” (applying the straightforward statutory language) when the Police did not physically try to locate her. They did not take the most obvious step of going to the complainant’s known address either the day before the trial or on the day of the trial.
[33] The counterargument is that it was reasonable for the Police to infer from their past interactions with her that the complainant was being deliberately evasive and hence that any further steps would be futile.34 Those circumstances are that the complainant left Court on the previous trial date, the previous difficulty in reaching her, the complainant’s professed reluctance to attend the second trial, and her non-responsiveness to calls the day before and morning of the trial.
[34] On analysis, I do not consider that the circumstances are sufficiently clear to justify that inference. The Judge’s comment that the complainant “may have other reasons why she did not want to be here today, or she is unable to be here” highlights the speculation involved. While the complainant had not answered a series of mid-morning Police phone calls in May, she did ultimately call the Police back. She was not a witness that had completely gone to ground and was unlocatable. She had previously cooperated with the Police, albeit with some delay.
[35] Moreover, this counterargument ignores the preventative steps that were available. The complainant had demonstrated herself as potentially unwilling to give
34 Compare Huritu v Police, above n 13.
evidence by her prior conduct. She was a known risk, so to speak. In the two conversations the officer in charge had with the complainant after the earlier adjourned trial (one in person on 30 April and one on the phone on 16 May), the Police did not seek information or take steps that would assist in protecting against difficulties in locating or contacting her on the day of trial, such as other means of contacting her or places to locate her. Prior arrangements could also potentially have been made to pick up the complainant on the day of trial.
[36] Whether any steps on the day of trial (or prior to it) would have assisted is unclear. But the absence of such efforts means that I cannot conclude that reasonable diligence to find the complainant was applied.
[37] Another consideration is that the trial was allocated only a part-day for hearing. Realistically, the matter could only be stood down for a relatively short period.35 If the trial was adjourned, the next available trial date would have been some months away.36 The charges were not at the most serious end of the spectrum and Mr Paul was in custody. Nonetheless, these factors do not explain why the Police did not at least check the complainant’s address,37 as they had when she left Court on the day of the first trial. 38
[38] As discussed earlier, the key idea behind the concept of unavailability is necessity. This reflects the principle that admissibility of a hearsay statement is an exception to the ordinary exclusionary rule against hearsay and that a witness’ evidence should generally be able to be tested through cross-examination.
[39] If unanswered phone calls are routinely sufficient to constitute reasonable diligence to find a witness on the day of trial, there is a risk that hearsay statements are admitted under s 16(2)(d) in substance because the witness would prefer not to
35 This differs from cases where the matter could be adjourned for a day or more to take further steps to find the witness: Huritu v Police, above n 13; Greaves v Police [2019] NZHC 3003; and Miller v R [2024] NZHC 3753.
36 This is evident from the notes of argument.
37 If there were reasons why the Police could not do this that could been put forward in evidence. The record indicates that the officer in charge was unwell on the day of the hearing, which at least may go some way to explain a practical difficulty.
38 The steps taken to locate the complainant on that occasion are outlined in the minute of Judge Yelavich at [23] above.
face the prospect of giving evidence. Unavailability and unwillingness would be conflated. That is not to say that a phone call would never suffice. The surrounding circumstances might exceptionally justify that conclusion. I do not think it does so in this case.
[40] In other cases, the unsuccessful enforcement of a warrant has been seen as significant (or required) before the complainant’s absence may constitute unavailability.39 Here, the Police understandably did not seek a warrant for the complainant’s arrest on the day of the earlier trial because the complainant had responded to the summons and there was the suggestion of interference by the defendant’s grandparents. Similarly, issuing a warrant on the day the complainant failed to appear at the second trial would not have helped find her that day.
[41] Finally, I referred earlier to the Supreme Court decision on s 16(2)(b) in L v R, which tends to suggest that s 16(2)(d) also requires a more contextual enquiry.40 Applying that approach, the charges here were not of the highest seriousness, each carrying a maximum penalty of three years’ imprisonment. Mr Paul received a sentence of four months. The complainant’s evidence was central to the prosecution case. The statement was reliable.
[42] However, in assessing what suffices for “reasonable” diligence to find the complainant, those factors are overwhelmed by the failure to make any effort to physically locate her, in a context where it was important for Mr Paul to be able to test the complainant’s evidence on what Mr Paul said and did.
[43] I find that the Judge was in error in concluding that the complainant was unavailable. Hence, her MVR statement should not have been admitted.
Conclusion
[44] There was no case against Mr Paul without the complainant’s MVR statement. Because this was admitted as a hearsay statement in error, a miscarriage of justice has occurred.
39 See Greaves v Police, above n 35, and Huritu v Police, above n 13.
40 I emphasise again that Huritu remains the governing authority on s 16(2)(d).
[45] Usually, the appropriate course would be to direct a new trial. I decline to do so in the circumstances of this case. Mr Paul has served his sentence and been released. There would be no utility in directing a re-trial.41 The appropriate course is to quash Mr Paul’s convictions.
Result
[46] I allow the appeal. I quash Mr Paul’s convictions for breach of protection order and a charge of damaging a dwellinghouse with intent to intimidate.
Anderson J
41 This is the same approach taken in Miller v R, above n 31.
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