Pomana v Police
[2019] NZHC 2520
•4 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000274
[2019] NZHC 2520
BETWEEN RAHIRI POMANA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 September 2019 (further submissions received 2 October 2019) Appearances:
D Nairn for Appellant
J Bragg for Respondent
Judgment:
4 October 2019
JUDGMENT OF LANG J
[on appeal against conviction and sentence]
This judgment was delivered by me on 4 October 2019 at 11.30 am.
Registrar/Deputy Registrar Date……………
POMANA v NEW ZEALAND POLICE [2019] NZHC 2520 [4 October 2019]
[1] Mr Pomana faced charges of assaulting a female, threatening to kill and being in possession of an offensive weapon. Following a Judge-alone trial before Judge Earwaker, Mr Pomana was convicted in a written decision delivered on 8 April 2019.1 On 11 June 2019 the Judge sentenced Mr Pomana to 22 months imprisonment on the charges.2
[2] Mr Pomana appeals against conviction and sentence. He contends a miscarriage of justice has occurred because the prosecution breached its obligation to provide full and material disclosure to his counsel prior to the hearing in the District Court. He says this failure affected the outcome of the case and the convictions should be set aside. In the alternative, he contends the sentence was manifestly excessive.
The prosecution case
[3] The complainant is Mr Pomana’s former partner. In a videotaped interview given at the time of the alleged offending she told the police that on 2 September 2018 she was celebrating her birthday at a friend’s house. She left that address to walk to another friend’s address. As she was doing so, she said Mr Pomana drove past and pulled into the driveway of her friend’s house. She said he then told her to get into his vehicle. When she refused, she said he dragged her into the vehicle forcibly.
[4] The complainant said she then told Mr Pomana she had left her cellphone inside the house and needed to retrieve it. This was a ruse to enable her to go back into the address to ask the occupants to call the police. When the complainant went back into the address, however, the occupants refused to call the police. The complainant believed this was because Mr Pomana threatened the occupants when he accompanied her into the address.
[5] The complainant said she went back to Mr Pomana’s vehicle because she did not want to anything to happen to the occupants of the address. They then left the address and Mr Pomana drove towards Pakuranga Road. The complainant said that during the journey she was screaming and this caused Mr Pomana to threaten “to give
1 Police v Pomana [2019] NZDC 6600.
2 Police v Pomana [2019] NZDC 11040.
her a hiding”. As the vehicle travelled down Ti Rakau Drive, the complainant said she jumped out of the car. She landed in the middle of the road and tried to stop passing vehicles to get assistance. She said Mr Pomana stopped his car and parked on the left hand side of the road. He then got out and ran towards her holding a screwdriver in his hand. She said he threatened to kill her with the screwdriver. At this point the complainant said she was able to get up off the road and run towards a car parked in a shopping centre on the other side of the road. There she was able to get into the car of a passing motorist, who had stopped to give her assistance. Once inside this person’s vehicle she was able to call 111 for assistance.
[6] When the police spoke to Mr Pomana about the incident he denied any involvement in it.
The hearing in the District Court
[7] The prosecution called three witnesses at the hearing in the District Court. The first was the complainant, who was clearly a reluctant witness. Her evidence in chief was effectively placed before the court in the form of her videotaped evidential interview. The prosecutor did not ask any supplementary questions. Mr Nairn then cross-examined the complainant on Mr Pomana’s behalf.
[8] At first the tenor of Mr Nairn’s cross-examination suggested Mr Pomana was defending the case on the basis that he had been driving in the vehicle with the complainant but that none of the conduct she complained about had occurred. In particular, Mr Nairn suggested to the complainant that Mr Pomana did not have a screwdriver in his hand and that he may have been yelling and waving his arms around. Mr Nairn then asked to speak to his client in private. After doing so Mr Nairn advised the Judge that Mr Pomana had clarified his instructions. Mr Pomana’s position was that he was not the person driving the vehicle from which the complainant had emerged on Ti Räkau Drive and he had not been involved in any of the events the complainant had described.
[9] Mr Nairn suggested that Mr Pomana needed new counsel, but the Judge was clearly reluctant to put the matter off given the fact that the complainant was well into
her evidence. Mr Nairn did not formally seek to withdraw and did not seek to abort the hearing. He then continued to cross-examine the complainant as follows:
CROSS-EXAMINATION CONTINUES: MR NAIRN
Q.Just going back to the start where you said this incident occurred I put it to you that it wasn’t the defendant that came around to your address or the address that you were at and picked you up in the car, that it was someone else. How do you respond to that?
A. It was him.
Q. Have you previously made allegations of a similar nature about he defendant being responsible for similar type offending and then basically admit that it was someone else?
A. What do you mean sorry.
THE COURT:
Is there any foundation for that question Mr Nairn?
MR NAIRN:
Yes from what the defendant has told me. It goes towards propensity.
THE COURT:
To what?
MR NAIRN:
To lying, to make up stories about a former partner.
THE COURT:
Q. Do you understand what the question is?
A. No.
Q.The question being asked of you is this, have you on another occasion, so not the time that we are talking about but another time said that something has happened, said it was your partner the defendant but that it was not true? Has there been any occasion like that? That is what Mr Nairn is asking you. Have you made a false allegation against the defendant before? Do you understand the question?
A. Yep.
Q. What is the answer?
A. I don’t know.
Q. You don’t know?
A. No.
This concluded Mr Nairn’s cross-examination of the complainant.
[10] Neither the prosecutor nor the Judge sought to ask the complainant questions about whether she had made a previous false complaint against Mr Pomana.
The omission to disclose the complainant’s convictions
[11] Following the hearing the police disclosed a redacted version of the complainant’s previous convictions to Mr Nairn. One of these was a conviction for making a false statement that an offence had been committed. The complainant had been sentenced to one year’s supervision for that offence on 26 September 2017. This charge related to an incident that had occurred on 11 December 2015. It was laid after the complainant and another female made a false complaint that a male (not Mr Pomana) had grabbed the other female and dragged her away whilst carrying a long butcher-type knife. This caused the police to arrest and question the person identified by the complainant and her associate as having committed the offence. It turned out that the complainant and her associate had spent the night with this person and he was able to satisfy the police he had not been involved in the incident the two females described. He was then released. The complainant and her associate admitted later the same day that they had falsified their statements in order to have the male person arrested and charged.
[12] This conviction should obviously have been disclosed to the defence prior to the hearing, as should other convictions for offending involving dishonesty. Ms Bragg accepts on the respondent’s behalf that this is so. The facts giving rise to the conviction for making a false complaint do not, however, tally with the question put to the complainant by Mr Nairn that she had previously made a false complaint about Mr Pomana. Ms Bragg advised me during the hearing, however, that she had received information to suggest there may have been another proceeding in which the complainant had recanted her evidence during the defended hearing of a charge against Mr Pomana. I therefore adjourned the appeal to enable Ms Bragg to make further enquiries about this issue.
[13] Ms Bragg has now ascertained that on 21 September 2017 Mr Pomana stood trial in the District Court at Auckland on a charge of injuring the complainant with intent to injure her. Prior to the trial Mr Pomana’s counsel (not Mr Nairn) had obtained a copy of diary notes that the defence contended were written by the complainant. The notes suggested the complaint was false and that another person had been responsible for the acts that led to the charge being laid against Mr Pomana. The defence called evidence from an expert who said that the handwriting in the letter matched the complainant’s handwriting. The defence had also been given disclosure of the complainant’s conviction in 2015 for making a false statement that an offence had been committed. These and other matters prompted the trial Judge to dismiss the charge even though the complainant maintained in her evidence that Mr Pomana had assaulted her.3 The complainant may therefore have been referring to this incident when she was ambivalent at the hearing of the present charge in response to questioning about making an earlier false complaint against Mr Pomana.
[14] Ms Bragg now accepts on the respondent’s behalf that the failure to disclose relevant matters has caused a miscarriage of justice because the Judge may well have taken a different view of the complainant’s evidence if he had been made aware of her previous convictions and the issues that led to the other charge against Mr Pomana being dismissed on 21 September 2017. The respondent therefore accepts the appeal must be allowed.
Result
[15]The appeal is allowed. The convictions and sentence are quashed.
[16] Ms Bragg contends the police should have a further opportunity to re-try M Pomana given the seriousness of the charges. She therefore seeks an order under s 233(3)(b) of the Criminal Procedure Act 2011 directing a new trial in the District Court.
[17] Mr Nairn submits on Mr Pomana’s behalf that matters should be brought to an end at this point. He therefore opposes a re-trial being directed.
3 Police v Pomana District Court Auckland CRI 2017-004-8117, 21 September 2017.
[18] Several factors persuade me that I should not direct a new trial. First, the situation that has arisen was caused by a serious failure on the part of the prosecution to meet its disclosure obligations. It is difficult to see how the police could have formed the view that the complainant’s previous convictions were not relevant to the charges that Mr Pomana faced.
[19] Secondly, Ms Bragg’s enquiries have revealed that the police did not speak to any of the persons who were at the house where the complainant said Mr Pomana threatened the occupants. That is also a surprising omission because it would have been a simple matter for the police to have interviewed those persons to establish that Mr Pomana had been with the complainant shortly before the alleged offending.
[20] Thirdly, the motorist who rendered assistance to the complainant after she got out of the vehicle on Ti Rakau Drive did not identify Mr Pomana as being the male person who approached the complainant at that time. This leaves the complainant as the only available witness who identifies Mr Pomana as being the person who abducted and threatened her on 2 September 2018.
[21] Fourthly, the complainant was clearly a reluctant witness at the hearing in the District Court. If there is a re-trial the presiding Judge will also be required to assess her credibility taking into account not only her conviction for making a false complaint in 2015 but also her previous convictions for offending involving dishonesty and the issues that arose in relation to the charge Mr Pomana faced in 2017,
[22] Fifthly, it appears unlikely that any re-trial would take place before early to mid-2020. This means a re-trail would cause a significant delay in bringing this matter to a conclusion given the fact that the incident giving rise to the charges occurred in September 2018.
[23] Finally, Mr Pomana has now been in prison since at least early November 2018. This means he has already served nearly the whole of the sentence he received on the present charges.
[24] All of these factors persuade me it would be wrong to direct a re-trial. I therefore make an order under s 233(3)(a) of the Criminal Procedure Act 2011 that a judgment of acquittal be entered on all charges.
[25] During a telephone conference this morning Ms Bragg advised me that Mr Pomana may presently be remanded in custody on another charge. Mr Nairn confirmed he is not acting for Mr Pomana on that charge. The prison authorities will therefore need to ensure they do not release Mr Pomana as a result of this judgment unless he has already been granted bail on the other charge.
Lang J
Solicitors:
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