Prasad v Police
[2025] NZHC 459
•11 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-607
[2025] NZHC 459
BETWEEN RISHAN BIREN PRASAD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 February and 6 March 2025 Appearances:
R Chaudhry for Appellant J Kim for Respondent
Judgment:
11 March 2025
JUDGMENT OF LANG J
[on appeal against conviction]
This judgment was delivered by Justice Lang On 11 March 2025 at 11.00 am
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
R Chaudhry, Manukau
Kayes Fletcher Walker, Crown Solicitor at Manukau
PRASAD v POLICE [2025] NZHC 459 [11 March 2025]
[1] Following a Judge-alone trial in the District Court, Judge S Patel found Mr Prasad guilty on charges of wilfully damaging a motor vehicle, assaulting his former partner (the complainant) with intent to injure her and assaulting her with a weapon.1
[2] Mr Prasad appeals against conviction on the basis that the Judge erred in his assessment of the evidence to the extent that a miscarriage of justice has occurred. He also says the Judge’s decision was unreasonable having regard to the evidence. In addition, he argues the trial was unfair because the complainant did not appear as a witness and his counsel was therefore deprived of an opportunity to cross-examine her.
Background
[3] Mr Prasad stood trial on five charges. They comprised intentionally damaging the complainant’s motor vehicle2 and cellphone,3 assaulting her with intent to injure her4 and assaulting her using a coffee table and a pair of shoes as a weapon.5
[4] The charges were laid following an incident that occurred on the afternoon of 18 January 2023. It began with a verbal altercation between Mr Prasad and the complainant that occurred in her vehicle. The pair then returned to the complainant’s address, where a physical altercation took place in which Mr Prasad allegedly struck the complainant with a pair of shoes and a coffee table. These led to the charges of assault with a weapon. He also allegedly punched her to the face and kicked her. This led to the charge of assault with intent to injure. In addition, the prosecution alleged that Mr Prasad deliberately damaged the complainant’s motor vehicle by breaking the wing mirror and damaging the front (dashboard) console and window wiper lever. This led to the charge of intentionally damaging the motor vehicle. Finally, the complainant alleged Mr Prasad had damaged her cellphone by hitting it against hard surfaces in her motor vehicle and then throwing it at the windscreen of the vehicle. This led to the second charge of causing intentional damage.
1 Police v Prasad [2024] NZDC 29760.
2 Crimes Act 1961, s 269(2)(b).
3 Summary Offences Act 1981, s 11(1)(a).
4 Crimes Act 1961, s 193.
5 Section 202C.
[5] By the time the trial was held the complainant was living in Australia. She had made it clear in emails she sent to Constable Monique Ashford-Ross, the officer in charge of the case, that she did not wish to assist the prosecution and did not want the charges to proceed. She declined to give evidence at the trial either in person or remotely.
[6] In a pre-trial ruling, Judge D J McNaughton held that the prosecution could rely on the material contained in an interview with the complainant that Constable Ashford-Ross had recorded on her cellphone on the day of the incidents giving rise to the charges.6 This Court upheld that ruling.7
[7] The constable was the only witness to give evidence for the prosecution at the trial. She played the recorded interview to the Court, together with a recording of a call that the complainant had made to emergency services (the 111 call). The constable also gave evidence of an interview she had conducted with Mr Prasad and recorded in her notebook.
[8]Mr Prasad elected not to give or call evidence.
The evidence for the prosecution
[9] Constable Ashford-Ross said that she was despatched in response to the 111 call at about 6.45 pm. She went to the address occupied by the complainant’s landlord, from where the complainant had made the 111 call. There she spoke to both the landlord and the complainant. Constable Ashford-Ross said that the complainant was visibly upset and after obtaining her version of events she took the complainant outside to look at the damage to her vehicle.
[10] The complainant’s vehicle was parked outside the address, and the constable observed the wing mirror on passenger side of the vehicle dangling from its mounting. She could also see significant damage to the interior of the vehicle. The glove box on the front passenger side of the vehicle had been removed and there was damage to the front console. The window wiper lever had been removed from the steering column.
6 Police v Prasad [2024] NZDC 11769.
7 Prasad v Police [2024] NZHC 1806.
[11] The constable took photographs of the damage to the interior of the vehicle and to the wing mirror. Her discussions with the complainant elicited the fact that not all the damage to the front console of the vehicle had happened on that day. However, the complainant told her that Mr Prasad had pulled off some sponge material from the console that day. He had also damaged the wing mirror and removed the windscreen wiper stalk.
[12] The constable began to record her interview with the complainant at 7.41 pm and this concluded at 8.06 pm. During the interview the constable observed physical injuries to the complainant’s arm that appeared to be pinch marks. Red marks could also be seen in the vicinity of the complainant’s left ear, together with some lumps on her cheek that appeared to be swelling. The redness continued down the side of the complainant’s face and along her jaw.
[13] The constable also observed a cut to both the complainant’s top and bottom lip. This area was quite swollen and bloody. She said the complainant told her she had sustained these injuries when Mr Prasad had punched her. The middle of the complainant’s upper left arm was also red and swollen. In addition, there was swelling to the complainant’s upper left shoulder at the point of the shoulder. The constable took photographs of the injuries after she had finished recording the interview.
[14] The complainant told Constable Ashford-Ross that at around 4.00 pm on 18 January 2023, Mr Prasad asked her to pick him up from where he had parked his vehicle. He got into her vehicle and, once the vehicle was moving, he told her to park it because they needed to talk. When she stopped the vehicle, he began asking her questions. He told her that, if he did not get true answers, “things around [her] will break more”. He asked the complainant questions about what she had been doing the previous day. After she said she had not done anything, he damaged the front console of the vehicle by kicking it and punched the wing mirror on the passenger side of the vehicle, causing it to break free of its mounting. The complainant said he also broke off the window wiper stalk before asking further questions and slapping her when he was not satisfied with her answers.
[15] The complainant said that several people had been walking in the vicinity of the vehicle while this was going on. She said Mr Prasad agreed that she should move the vehicle for this reason. The complainant suggested that they go to her home address. Mr Prasad agreed, saying that there would be “more things to break” at her home.
[16] At or about this time, the complainant said Mr Prasad damaged her cellphone by banging it against the console. He then threw it at the windscreen of the vehicle. It bounced off the windscreen and ended up in the back seat of the vehicle.
[17] The complainant said that after they arrived at her address, Mr Prasad continued asking her questions. When he became dissatisfied with her answers, he initially threw a covid testing kit at her head. A short time later began punching her on the back of her head and around her ear. He kept hitting her even though she repeatedly asked him to stop. He said he wanted answers from her and did not care if the police came to the address.
[18] The complainant said Mr Prasad was also kicking her and hitting her in the neck. In addition, he punched her on the cheek and on the right side of her mouth. This caused her mouth to bleed. She also said Mr Prasad struck her on the back with a pair of shoes and with a coffee table. She said he threw the coffee table at her and then used the tabletop to hit her in the area around her hand and wrist on three occasions. He also hit her on the head and shoulder area with the tabletop.
[19] The complainant said that following these assaults she got up, drank some water and went to the toilet where she began to vomit. While the tap was running, she managed to leave the address through the back door and went to her landlord’s address. When her landlord opened the door, the complainant said she needed help and that she needed to call the police. The complainant said her landlord then gave her access to a phone and she made the 111 call. Whilst this was happening, Mr Prasad came to the landlord’s door, called out the complainant’s name and asked her to talk to him. The landlord did not open the door.
[20] Later the same evening Constable Ashford-Ross went to Mr Prasad’s address and put to him the allegations the complainant had made. She recorded his answers in her notebook.
Mr Prasad’s explanation
[21] Mr Prasad told the constable that he had met with the complainant to talk about an argument that had occurred the previous day. He confirmed they had gone to her address in her vehicle. He said that during the journey the complainant continually tried to hold his hand but he kept pushing it away. This continued after they arrived at her address. He said that at one point the complainant had “flipped” his hand. This resulted in his hand hitting her face, causing her lip to begin bleeding. He said that he then moved away and kept quiet. The complainant kept trying to touch him and to talk to him but he ignored her. He said that the complainant went to the kitchen at the rear of her address and, when he went to find her, she was not there. He then went next door to the landlord’s address but left in his vehicle when nobody came to the door.
[22] When the constable asked Mr Prasad about the damage to the vehicle, he said that he recalled putting his left leg on the door while the window was down and that his leg had slipped and accidentally kicked the mirror. When the constable asked about the damage to the complainant’s cellphone, he said it “was broken from Christmas time when I caught her cheating.” When the constable asked for clarification about what had happened whilst he and the complainant were at her address, he responded:
He said: “We were talking and she was trying to touch me.” I asked: “Do you remember kicking her?”
He answered: “I didn’t kick her, just pushed.”
I asked: “What do you know about her being hit with a coffee table?” And he said: “I didn’t hit her, I knocked it over with my foot.”
The Judge’s decision
[23] After reminding himself of the onus and standard of proof, the Judge summarised the complainant’s version of events as recorded in the interview. He then described the injuries observed by Constable Ashford-Ross when she spoke with the complainant on the evening of the incident. Some of these were depicted in photographs taken by the constable on her cellphone.
[24] After noting that Mr Prasad had exercised his right not to give evidence, the Judge summarised the explanation he had given to the constable. The Judge rejected this explanation for the following reasons:
[14] You did not give evidence, as is your right. However, as I said, you gave responses to questions by Constable Ashford-Ross. When considering your statement, if I accept what you said in relation to the allegations then you ought to be acquitted because you gave an innocent explanation in relation to parts of the allegations that were put to you. If what you said is a reasonable possibility, then again you ought to be acquitted. However, if I reject what you said in the notebook statement then it does not necessarily follow that there ought to be convictions, because I need to turn to what evidence that I accept and then ask myself whether the evidence satisfies me beyond reasonable doubt in relation to the parts that make up the charges.
…
[17] As I said there are three possible permutations as to the conclusion I reach in respect of what you said to the police. I reject what you said to the police in relation to what happened at the home in terms of how the injury to [the complainant’s] face and mouth was sustained. I also reject your explanation as to how the wingmirror was damaged. I consider that those explanations were utterly implausible, and I put those to one side.
[25] The Judge then turned to consider the evidence given by the complainant. He found this to be credible for the following reasons:
[21] However, I consider that most of what [the complainant] said was credible and reliable. That is because there was objective evidence of her injuries, that is from the photos that were taken by the Constable Ashford-Ross and the injuries that were observed by the her when she interviewed [the complainant] soon after the alleged events. Aspects of the 111 call were also corroborative of [the complainant’s] complaint, that is that she was assaulted and that she sustained injury. That 111 call was made very soon after the alleged incidents occurred. On the 111 call the police can be heard attending the address.
[22] What [the complainant] said in her video statement about the sequence of events is corroborated also by the 111 call, that is, [the complainant] said in her video statement that she went to the bathroom and spirited her way out of the house and into her landlord’s address. The 111 call was made while she was at the landlord’s address and you remained at her house. She also said in her video statement that you had come to the home to the door of her landlord’s house looking for her, and that is corroborated by what [the complainant] said on the 111 call.
[26] The Judge then assessed the weight to be given to the emails in which the complainant had told Constable Ashford-Ross that she did not wish to proceed with the charges and would not give evidence at trial. The Judge concluded that these did not detract from the complainant’s credibility for the following reasons:
[23] Part of the evidence were emails that [the complainant] sent between January 2023 and May 2024. I do not have time to go through all of those because I have another Judge-alone trial. In several of the emails [the complainant] says that she wants to withdraw the complaint. However, in many of the earlier emails [the complainant] does not say that the allegations that she made are untrue. In fact, some of what she says tends to suggest that what she said was true. It is around mid-2024 when [the complainant] finally said that the allegations were not true.
[24] I need to take all the emails into consideration and I need to ask myself whether the inconsistent statements, that is, those emails where [the complainant] says that the allegations are false, impact her credibility and her reliability. I consider that those emails that suggest the allegations were false do impact [the complainant’s] credibility and reliability to some extent. However, the context of those emails is that they were preceded by several emails that did not suggest the allegations were false. In fact, the preponderance of the emails suggest that the complaint was correct. The emails do not persuade me that [the complainant] is not a credible or reliable witness or unworthy of belief.
[27] The Judge concluded that the charge of assault using the coffee table had been proved beyond reasonable doubt because there was objective evidence of injuries to the hands, wrists and fingers of the complainant.8 These were demonstrated in photographs taken by Constable Ashford-Ross and the constable’s observations at the time she spoke to the complainant.
[28] The Judge did not consider the charge of assault using the shoes as a weapon had been proved to the required standard because there was no objective evidence of any injuries the complainant may have sustained as a result of that incident.9 The
8 Police v Prasad, above n 1, at [25].
9 At [26].
constable had not seen any injury that supported this charge and there were no photographs taken of any injuries that the complainant might have sustained.
[29] The Judge found the charge of assault with intent to injure proved for the following reasons:
[27] In relation to the charge of assault with intent to injure, I find you guilty. I find that you punched and kicked the complainant at her home. I am sure that you intended to injure her given the nature of the punches and the kicks and the number of the same. There was objective evidence of injury both from the photos and the observations of Constable Ashford-Ross.
[30] The Judge found Mr Prasad not guilty on the charge of intentionally damaging the complainant’s cellphone. As I have already noted, Mr Prasad said in his interview with Constable Ashford-Ross that the phone had been broken at Christmas time after the complainant had cheated on him. The Judge could not rule this explanation out as a reasonable possibility.10
[31] Finally, the Judge found Mr Prasad guilty on the charge of intentionally the complainant’s motor vehicle because there was objective evidence of the damage caused to the vehicle.11 This came from the damage observed by the constable and the photographs she had taken depicting that damage.
The appeal
[32] This is a first appeal against conviction. It is governed by s 232 of the Criminal Procedure Act 2011, which relevantly provides as follows:
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
10 At [29].
11 At [28].
(b)in the case of a Judge-along 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 that was a nullity.
…
[33] The appeal proceeds by way of rehearing. If this Court reaches a different view on the evidence, it follows that the trial judge will have necessarily erred and the appeal must be allowed.12 The onus is on the appellant to show that such an error has occurred.
[34] As I have already noted, Mr Chaudhry contends on Mr Prasad’s behalf that the Judge erred in his assessment of aspects of the evidence to such an extent that a miscarriage of justice has occurred. He also says that the absence of the complainant resulted in the trial becoming unfair.
Did the Judge err in his assessment of the evidence to the extent that a miscarriage of justice has occurred?
[35] Mr Chaudhry challenges several aspects of the manner in which the Judge assessed the evidence for both the prosecution and the defence.
The emails
[36] I have already set out the Judge’s assessment of the weight to be given to the emails that the complainant sent to Constable Ashford-Ross prior to the trial.13 Mr Chaudhry contends that the Judge failed to give sufficient weight to these, and that
12 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32] and [38].
13 See at [26] above.
they ought to have caused him to conclude they detracted significantly from the complainant’s credibility. He says the emails effectively amounted to a recantation of the allegations that the complainant made during the interview with Constable Ashford-Ross.
[37] Part of Mr Chaudhry’s challenge to this aspect of the Judge’s decision is that the Judge said he did “not have time” to go through all the emails.14 Mr Chaudhry says this meant the Judge failed to give them close enough scrutiny. It is therefore necessary for me to undertake a more detailed analysis of the emails upon which Mr Chaudhry relies.
[38] Between 26 January 2023 and 5 July 2024, the complainant sent 11 emails to the constable in most of which she said she did not wish the charges to proceed. However, as I indicated to Mr Chaudhry during the hearing, it is not uncommon for complainants in domestic violence cases to later recant allegations they have made regarding incidents involving violence perpetrated by their partner. This may occur for a variety of reasons, including a desire by the complainant to resume or revive their relationship with the alleged perpetrator and to ensure the family unit is not broken up. For that reason, the courts always exercise care when a complainant in a family violence context later seeks to recant allegations made at the time of alleged offending.
[39] Like the Judge, I consider the most significant aspect of the emails is the manner in which the reasons given by the complainant for not wishing to proceed with the charges altered over time. In the first email, sent on 26 January 2023, the complainant advised Constable Ashford-Ross as follows:
To whom may this concern
I [redacted] no longer live at [redacted]. I’ve temporarily moved to Australia when I return my address will be different and will update then..given a million thoughts over this matter and I have decided to not stand any case against Mr Rishan Prasad so I would like to take my statement back when I return I will consider reconcile and give it another chance as we’ve been through worse and just at that moment I had forgotten how strong our relationship is.
14 Police v Prasad, above n 1, at [23].
So please consider my feeling and drop charges pressed on Rishan Prasad.
Kind regards [redacted]
[40] This email makes it clear that the complainant did not want the charges to proceed because she wanted to consider reconciling with Mr Prasad when she returned from Australia. She reiterated the same concern in her next email, sent on 27 January 2023:
Hi Monique
This is [redacted] I’m contacting you in regards to the assault case. I’m no longer want my video statement or photos to be presented in court I don’t wany any charges to be [laid] on Rishan Prasad I’m currently out of the country and when I return I will consider reconcile as I’ve thought a lot and I can’t let him go I love him far too much please consider my feelings and I’m sure he won’t ever throw hands on me or anyone again.
Please contact me if you need anything further.
[41] The complainant also expressed similar sentiments in the third, fourth and fifth emails, sent on 28 and 29 January 2023 respectively:
28 January 2023
Hi there,
I’m very stressed due to all these situations please let me save my relationship understand my feels please help me drop charges on Rishan Prasad I will appear in court if you need me to but please get back to me as soon as possible.
Kind regards [redacted]
29 January 2023
Hi,
I understand every bit of it but please understand I do not want these to escalate any further please talk to the sergeant and help me remove this I do not want to start over again please understand and help me out.
Kind regards
[redacted]
29 January 2023
Hey,
I understand depth of the case and also understand what happened wasn’t right however me being the victim myself don’t want anything against Rishan I will reconcile on my return if any charges are pressed I will not be able to save the family we both were trying to build everything happened under heat with misunderstandings where it comes to my car being damaged that can be fixed without police support and also my phone. I as the victim do NOT want my statement or any photos to be presented in court as evidence against Rishan Prasad and do not want this matter escalating any further. Please consider everything and help me out here.
Regards [redacted]
[42] The trial was originally scheduled to be held on 14 December 2023.15 The police arranged for a summons requiring the complainant to attend and give evidence at the trial to be served on her on 3 December 2023. On the following day, the complainant sent Constable Ashford-Ross a further email in which she again expressed concern about the possibility that the charges may detrimentally affect her relationship with Mr Prasad:
Hello everyone
I am contacting you guys regarding case that involves Rishan Prasad I once again am saying that I do not want this case going forward. This case has given and still is giving me mental stress I’ve been seeing the doctors. When I had made this report I had become selfish and mad I only thought about myself and not about where mine and rishans relationship would stand it was my biggest mistake. Even though I’ve been given [summons] I am not wanting to go against my will and be there which will lead me more sickness I have attached a letter I got from the doctor and to avoid everything and to help my sickness I’m going out of the country and won’t be back for a long time. I hope everyone will understand where I am coming from.
Where it comes to giving evidence I will not be providing any evidence to this case.
Thank you all very much
15 Due to the recent service of the summons on the complainant the prosecution successfully applied for an adjournment on 14 December 2023. The trial was adjourned to 21 May 2024, when it could not be reached. It was then adjourned to 11 July 2024, when it was finally heard.
[43] Up until this point the complainant had not suggested or inferred that the information she had given the constable on the evening of the incidents was incorrect or false. This changed to some extent in an email the complainant sent on 12 December 2023, two days before the trial was initially scheduled to be held:
I will not be attending any court hearings this case was made out of anger he’s clean please I do request drop this case do not take it any further. I’m very sorry that your guys time and energy was put into this despite me saying from the start that drop this case I do not want it going any further.
Regards [redacted]
[44] However, the complainant did not suggest that she had made a false complaint in an email she sent the constable on 20 December 2023. This suggested the complainant did not want to give evidence or proceed with the charges because to do so would be detrimental to her own wellbeing:
Hi
Thanks for getting back to me I am thinking very clearly and my answer is still the same it will not change I want this case to be dismissed that’s the best in my opinion and if this drags any further then everyone is just wasting their time and energy fighting something that I myself am not supporting. If you guys want to give me a fine or something for the time you guys have spent so far then please do but DISMISS this case I will not be supporting it. And where it comes to my mental wellbeing this case dropping [will] help it a lot and I’ll start living again not in the misery that I currently am in.
I know you are all very understanding the police the court then please understand my heartfelt request and dismiss this matter.
Thank you very much. [redacted]
[45] On 1 May 2024, three weeks before the rescheduled commencement of the trial, the complainant sent the following email:
I’ve said it multiple time don’t want to proceed with this case not me or the court or anyone as I was who faced everything I faced. It was fault and anger that I contacted the police that day to me all this now feels as harassment.
This case needs to stop if it doesn’t I’ll be forced to do something I don’t want to do.
I’m not returning to NZ and this case really needs to stop going forward and let rishan live his life.
[46]Then, on 6 May 2024, the complainant said:
Good morning
I am once again saying I was the one who went through what I went through and I the one saying NO for this going any further I do not want to be part of it.
Why I want to withdraw is because I am in a different country living in peace I don’t want him to suffer anymore then he has already this is enough justice for me with the curfew thing he had. he must’ve suffered please tell the judge that it’s my heartfelt request let him go withdraw the charges please.
Kind regards [redacted]
[47] Just over a week later, on 15 May 2024, the complainant suggested for the first time that her statement to the constable was incorrect:
Good evening,
I [redacted] confirm that my police report was made out of anger rishan prasad is innocent. Majority of the statement was a lie I was angry and at that time my mindset made me do it this is the reason why I keep saying drop the case.
Whatever the court decision is for the false report I take it. I’d like to apologise for the time of court that’s been wasted.
Kind regards [redacted]
[48] As matters transpired, the trial did not proceed on 21 May 2024 because there was insufficient time available. The only issue dealt with on that date was the application by the prosecution to adduce the recording of the complainant’s interview with the constable on 18 January 2023.16 The trial was re-scheduled for 11 July 2024.
[49] The complainant’s final email on 5 July 2024 was in similar terms to that sent on 15 May 2024:
16 Police v Prasad, above n 6.
To whom may this email concern,
I have requested this case to be dropped multiple times and I am still requesting it to be dropped. I cannot live peacefully until I know this case is dismissed. Rishan is innocent; this case was made out of anger. Rishan has done nothing wrong. It was my mistake that I called the police that day; I acted in anger. I am begging, please let Rishan be free of any charges. I will never be returning to New Zealand for good. All this is causing me stress, and I am on sleeping pills. I don’t like being this way. My stress will only end the day I know Rishan is free and this case is dropped. Please.
Kind regards [redacted]
[50] Reading the emails sent by the complainant as a whole, I do not consider they support Mr Chaudhry’s submission that she effectively recanted her original allegations. Rather, they make it clear that she does not wish the case to proceed for other reasons. The first five emails record the complainant’s desire to keep alive the possibility of reconciling with Mr Prasad. Later, she refers to the need to preserve her own wellbeing. It was not until the initial rescheduled trial date of 21 May 2024 drew near that the complainant raised any issue regarding the truthfulness of her allegations.
[51] Although the last two emails are obviously relevant to the issue of the complainant’s credibility, I do not consider they give rise to any real concern that her original allegations were false. It follows that I do not consider the Judge erred in the assessment that he made of the weight to be given to them.
Failure to give reasons
[52] Mr Chaudhry contends the Judge failed to explain why he found Mr Prasad not guilty on some charges yet found him guilty of others.
[53] The answer to this submission is that the Judge did give reasons for his decision that the prosecution had not proved two of the charges beyond reasonable doubt. As already noted, he said that the charge alleging use of the shoes as a weapon could not be proved because there was no objective evidence of injury to the complainant’s back to support that charge. Similarly, the Judge was left in reasonable doubt as to when the damage was caused to the cellphone. This was because Mr Prasad told Constable Ashford-Ross that the damage to the cellphone had occurred the previous
Christmas. Given that the complainant was not available to answer this explanation, the Judge found this charge could not be proved beyond reasonable doubt.
[54] Importantly, however, the Judge’s conclusions in relation to these charges were not based on his rejection of the evidence given by the complainant. Rather, the Judge was not prepared to find that the charges were proved beyond reasonable doubt for the reasons he gave.
[55]I am satisfied there is nothing in this ground of appeal.
Criticism of police investigation
[56] Mr Chaudhry criticises several aspects of the police investigation. First, he says the police ought to have obtained a statement from the complainant’s landlord to corroborate the version of events she gave. However, there was no dispute that the complainant had made the 111 call from the landlord’s address. She was still at the landlord’s address when Constable Ashford-Ross arrived in response to that call. Further, the landlord could not have given evidence about the events that had occurred at the complainant’s address earlier in the evening because she was not present when those events occurred. At most, the landlord could have provided evidence of recent complaint under s 35 of the Evidence Act 2006 to counter the defence submission that the complainant had made the allegations up.
[57] Mr Chaudhry also points out that the police did not obtain a medical report confirming the injuries that the complainant had suffered. This may be so, but the Judge was still entitled to take into account the injuries described by both the complainant in her interview and the constable when she gave evidence. This was supported, to some extent at least, by the photographs taken by the constable after the interview concluded. The police were not obliged to arrange for the complainant to be examined by a doctor so that the existence of the injuries could be corroborated further.
[58] In any event, jurors are regularly told that they should not take into account the fact that certain types of evidence have not been placed before them. Rather, they are directed to decide the case solely on the basis of the evidence that has been adduced.
[59] Next, Mr Chaudhry criticises the police for not searching the complainant’s address to find corroboration of matters such as the fact that she had vomited after being assaulted by Mr Prasad as she claimed. However, the issue of whether such an investigation would have produced any evidence remains a matter of speculation. If the constable had searched the toilet and found traces of vomit, it may well have supported the prosecution case. However, if the toilet had been flushed, there would be no evidence to be found. Either way, this issue does not assist Mr Prasad on the appeal.
Failure to give adequate weight to Mr Prasad’s explanations
[60] Mr Chaudhry submits that the Judge failed to give adequate weight to the explanations Mr Prasad gave to Constable Ashton-Ross regarding the damage to the vehicle and the injuries suffered by the complainant.
[61] As will already be evident, however, the Judge did address the explanations Mr Prasad had made to Constable Ashford-Ross on the day of the incident. In the case of the damage to the cellphone, he accepted that it raised a reasonable doubt that the prosecution could not refute in the absence of the complainant.
[62] However, he rejected the evidence relating to the damage to the wing mirror as being implausible. This is not surprising. In my view, it would be highly unlikely for the damage to the wing mirror to be caused in the manner described by Mr Prasad. Similarly, the photographs depicted significant cuts to the inside of the complainant’s mouth in two separate areas. It is difficult to see how the injuries to the complainant’s mouth could have been caused by the complainant “flipping” Mr Prasad’s hand so as to bring it in to contact with her mouth. The constable also described the bruising to the complainant’s shoulder, wrist and hand, where she said Mr Prasad had struck her using the top of the coffee table. Mr Prasad did not provide a specific explanation that related to these but his global explanation that he merely pushed the complainant could not have caused those injuries. The marks on the various parts of the complainant’s head and body are wholly inconsistent with the complainant being pushed. Rather, they are consistent with blows inflicted by a blunt object of some description.
[63] I therefore do not accept that the Judge gave inadequate weight to the explanations given by Mr Prasad.
The 111 call
[64] Mr Chaudhry challenged the weight given by the Judge to the 111 call. He submits the call was of poor quality, and provided no assistance on the matter the Judge was required to decide.
[65] The 111 call was not available when I began hearing the appeal on 25 February 2025. I therefore adjourned the hearing until 6 March 2025 so that the recording of the call could be located and played in Court. This was done when the hearing resumed on that date.
[66] Having listened to the 111 call, I accept that the quality of the recording is not good. The complainant appears to have been whispering when she spoke to the operator and as a result most of what she said cannot be heard. The only means of ascertaining the nature of her comments is through the operator’s responses to them. However, it is apparent from these that the complainant told the operator that she had been assaulted because the operator asked her whether she was bleeding. I therefore consider the 111 call provides some corroboration for the fact that the complainant had been assaulted.
My assessment
[67] The starting point in the present case is the fact that the complainant left her own address and went to her landlord’s address to make the 111 call. The question arises as to why she would do that unless something untoward had just occurred at her address. People do not tend to make 111 calls lightly because they know that emergency services inevitably respond quickly. The very fact that the complainant was prepared to make the 111 call therefore provides a degree of corroboration for her version of events. Further, as previously noted, the complainant is likely to have told the 111 operator that she had been assaulted because the operator asked her if she was bleeding.
[68] Constable Ashford-Ross arrived at the landlord’s address whilst the complainant was still speaking to the 111 operator. She was able to observe that the complainant was upset. The complainant also had several discernible injuries that were consistent with the version of events she subsequently described in the recorded interview. I viewed this in the company of counsel at the resumed hearing. The complainant pointed the injuries out to the constable during the interview. They are also shown in the photographs taken by the constable at the conclusion of the interview.
[69] On a standalone basis the version of events described by the complainant appears to be credible. She described what had happened unprompted and with minimal interruption by the constable. The complainant’s evidence is supported by the constable’s observations and the photographs she took of the injuries. Like the Judge, I do not consider the emails that the complainant subsequently sent to the constable detract from the credibility of the complainant to any material degree.
[70] Taking these factors into account, I consider the evidence entitled the Judge to be sure that the prosecution had proved the three charges on which he found Mr Prasad guilty to the required standard. It follows that the Judge did not err in his assessment of the evidence. A miscarriage of justice has not been shown to have occurred on this basis.
Did the absence of the complainant result in an unfair trial?
[71] Mr Prasad obviously cannot challenge the admissibility of the complainant’s recorded interview because that issue was finally determined when this Court dismissed his appeal against the District Court ruling as to its admissibility.17 However, Mr Chaudhry submits that the inability to cross-examine the complainant on material points resulted in Mr Prasad’s trial becoming unfair. He says it prevented the defence from putting its case.
[72] I do not accept this submission because the defence case was that the events described by the complainant did not occur. It was therefore entitled to put the Crown
17 Prasad v Police, above n 7.
to proof on each of them. Mr Prasad had also given explanations regarding the damage to the cellphone and the wing mirror. The Judge found that the former raised a reasonable doubt whilst the latter did not. He further gave explanation for the most significant of the complainant’s injuries, which were the cuts to the inside of her mouth. The Judge considered this but found it not to be credible. Mr Prasad also told the constable he had “pushed” the complainant but this did not explain the bruising to her head and body.
[73] Mr Chaudhry was able to put to the constable several issues that he would have asked the complainant. He did so by asking whether the constable had asked, or considered asking, the complainant why she had done or not done several things. One example is the complainant’s decision to invite Mr Prasad to travel with her to her home even though he had already become aggressive towards her in the vehicle. Mr Chaudhry asked Constable Ashton-Ross if she had asked the complainant why she had taken this step. She replied in the negative.
[74] It is true that Mr Chaudhry was not able to put these issues to the complainant directly because she did not give evidence. Had he been able to do so, however, the complainant may well have been able to provide answers that strengthened the prosecution case. I therefore consider it speculative to say that the absence of the complainant placed Mr Prasad in a worse position than if she had been present.
[75] However, Mr Chaudhry was entitled to, and no doubt did, raise these types of questions with the Judge by way of submission in support of his argument that the complainant’s version of events was not credible. I therefore do not consider that Mr Prasad has established there is a risk that his trial became unfair because his counsel was unable to cross-examine the complainant.
Result
[76]The appeal against conviction is dismissed.
Lang J
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