Pue-Skellern v The King
[2023] NZCA 253
•21 June 2023 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA581/2022 [2023] NZCA 253 |
| BETWEEN | HOANI ANARU PUE-SKELLERN |
| AND | THE KING |
| Hearing: | 8 May 2023 |
Court: | French, Hinton and Gendall JJ |
Counsel: | S L Abdale for Appellant |
Judgment: | 21 June 2023 at 3.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
Introduction
On 22 July 2022, after a two-day jury trial before Judge Greig, Hoani Pue-Skellern was convicted of seven charges against his partner, Ms Te Tau.[1] He appeals his convictions on the basis that there has been a miscarriage of justice because provision of Ms Te Tau’s evidence-in-chief by way of victim video statement (VVS) was unfairly prejudicial and the trial Judge wrongly interfered with cross-examination.
[1]Male assaults female, threatening to kill, wounding with intent to injure, assault with intent to injure, kidnapping and breach of protection order (x 2).
The Crown opposes the appeal.
Background
Mr Pue-Skellern had been in a relationship with Ms Te Tau for approximately three years. He had committed several family violence offences against her and a final protection order had been served on him in September 2020.
According to the Crown case, at about 1.30 am on 10 December 2020, Ms Te Tau went with their ten-month-old son to Mr Pue-Skellern’s address in Waitara. An argument ensued and Mr Pue-Skellern threw Ms Te Tau onto the floor and then into the bedroom door frame, smashing her head against the frame. He kicked Ms Te Tau’s arms and legs and threatened to kill her. He attempted to stop her phoning police and when she tried to escape, tackled her to the ground and dragged her by her legs to the kitchen. At 2.45 am Ms Te Tau fled, waved down a police unit that had arrived, and was taken to the Taranaki Base Hospital.
At 5.06 am, Constable Mikayla Nager took a VVS from Ms Te Tau at the hospital. Ms Te Tau described receiving her injuries in a prolonged assault and recounted the facts outlined above.
Ms Te Tau subsequently reconciled with Mr Pue-Skellern and sought to withdraw her complaint on a number of occasions. Ms Te Tau was seven months pregnant at the time of the trial.
At trial before Judge Greig, Ms Te Tau’s VVS account was played as evidence-in-chief following a ruling by Judge Greig to that effect.[2] It was supported by the medical and photographic record of her injuries, the attending police officer’s observations and propensity evidence of previous violence against Ms Te Tau in similar circumstances.
[2]R v Pue-Skellern [2018] NZDC 13672 [Ruling No 1 of Judge Greig]. Note that this ruling was made on 21 July 2022, however the official citation incorrectly refers to 2018.
In a short period of supplementary examination-in-chief, Ms Te Tau claimed she could not remember many details. In cross-examination, she resiled from a number of her statements in the VVS. She then accepted that she should not have gone to the address at 1.00 am, should not have been drinking and driving and that she was responsible for the incident. Judge Greig stopped two further questions along those lines. After a very brief discussion, Ms Abdale closed her cross-examination. Prior to re-examination, on application by the Crown, Ms Te Tau was declared hostile.[3]
Analysis
[3]R v Pue-Skellern [2022] NZDC 13740 [Ruling No 2 of Judge Greig].
Mr Pue-Skellern appeals his conviction under s 229 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that a miscarriage of justice occurred that created a real risk the outcome of the trial was affected.[4] That is, this Court must only find a miscarriage of justice occurred if an error or irregularity is such that the trial was unfair or there is a real risk that the outcome of the trial was affected.[5]
[4]Criminal Procedure Act 2011, s 232(2)(c).
[5]Section 232(4).
For the reasons outlined below, we do not consider a miscarriage of justice has occurred in this case.
Evidence-in-chief by VVS
As recorded in s 106A(1) of the Evidence Act 2006 (the Act), a family violence complainant is entitled to give their evidence-in-chief by a video record made by a police employee no later than two weeks after the relevant incident occurred. On application by a defendant under s 106B, a Judge can direct that the complainant give evidence in the ordinary way under s 83 or a “different alternative” way under s 105.[6] In deciding whether to give a direction under s 106B (and depart from the presumption in s 106A), the Judge must have regard to whether the interests of justice require a departure from the usual procedure, and to the matters in ss 103(3) and (4).[7]
[6]Evidence Act 2006, s 106B. A defendant’s application under s 106B is to be made before the first case management conference. It seems in this instance the defendant was permitted to raise the point on the first day of trial.
[7]Evidence Act 2006, s 106B(4).
Section 103(3) requires the Court to consider, so far as relevant, the relationship between the witness and another party, the trauma suffered, and the physical condition of the witness. Section 103(4) requires the Judge to ensure that there is a fair trial and to have regard to the views of the witness, in particular the need to minimise stress on them and promote their recovery.
The purpose of ss 106A and 106B requires some additional comment. These provisions were inserted by the Family Violence (Amendments) Act 2018. This Act was divided from the Family and Whānau Violence Legislation Bill (Bill 247-2) as Bill 247-3B. The Bill was proposed to address New Zealand’s “unacceptably high rates of family violence” in recognition of the fact that “family violence is cyclical with significant re-victimisation and high levels of recidivism”.[8] As this Court noted in Singh v R:[9]
[5] A particular problem has long been presented by domestic cases, where a woman’s security depends on the husband or partner whom she loves and yet who regularly attacks her. Her need for medical or other help may bring the matter to police attention. But that has often been followed by reluctance, whether out of affection or fear, to give evidence in support of a charge. There is frequently a cycle of such events. …
[8]Family and Whānau Violence Legislation Bill 2017 (Bill 247-2), Commentary.
[9]Singh v R [2010] NZCA 144.
The clear intention is that the use of contemporaneous video evidence, like evidence of 111 calls and CCTV footage, will assist to break the cycle and prosecute such offending.
In his ruling allowing the VVS to be used as evidence-in-chief Judge Greig said:[10]
This is the best evidence. It shows the complainant in the immediate aftermath of the incident. It demonstrates her injuries. It does not highlight them in any particular or unfair way. It is a much clearer picture of her at the time, including her demeanour, rather than the well-made up and the well-dressed witness that will appear in court 18 months after the event.
[10]Ruling No 1 of Judge Greig, above n 3, at [8].
Ms Abdale for Mr Pue-Skellern says the ruling was in error. She submits that the VVS was unfairly prejudicial by virtue of the hospital setting and beeping of machines, Ms Te Tau’s visible, unwashed, weeping laceration and Ms Te Tau’s hysterical state. In oral submissions, Ms Abdale also said that paragraph 2(a), of what she described as police guidelines, had not been followed because the police did not ensure the victim was in a fit state to be interviewed. Ms Te Tau should not have had injuries requiring medical attention. Ms Abdale says it was particularly concerning that the police proceeded immediately with the interview given Ms Te Tau’s condition when they had two weeks in which to do so under s 106A(1).
We agree with the Judge’s ruling and his reasons. We do not consider that the interests of justice require a departure from the default procedure under s 106A. It is precisely in situations such as this where the use of a VVS is in the interests of justice. Ms Te Tau, in need of urgent help, brought the offending to the attention of police but later attempted to withdraw the charges against Mr Pue-Skellern and was declared a hostile witness at trial. In these circumstances, and in light of the seriousness of the offending, the interests of justice required the use of the VVS. Departing from the s 106A default procedure would have prevented any prosecution of Mr Pue-Skellern.
We agree with the Crown that the relevant factors in s 103(3) of the Act weigh heavily in favour of the “usual procedure”. We note, although the point was not raised, that s 103(4)(b) stipulates the Court must have regard to the views of the witness on an application under s 106B. In this instance the victim’s advisor had informed the Judge there had been complications with Ms Te Tau’s pregnancy and having to give evidence verbally would put undue stress on her. Had Ms Te Tau stated a preference for giving evidence orally however, it would have been appropriate for her views to be put to one side. The provision is clearly directed at protection of the witness, not at situations such as this where the witness is recanting.
We note also that video evidence in criminal proceedings concerning family violence must comply with the regulations set out in Part 4 of the Evidence Regulations 2007. There is no suggestion that the various requirements of the regulations were not met. In particular, the video record includes a statement by Ms Te Tau that she is aware the video may be used as evidence and agrees to its use for that purpose.
The police guidelines to which Ms Abdale refers are an internal police user guide for VVS. The relevant paragraph provides:
2. Consider whether the victim is in a fit state for an interview:
a.The victim should not have injuries requiring immediate medical attention i.e. bleeding, internal damage. Consider following up with the Victim at hospital. It is acceptable and appropriate to interview victims in hospital if circumstances dictate this.
b.The victim is not drunk or emotionally unfit. This is a matter of the Victim being able to understand and give informed consent to complete an interview. Again, common sense should be applied – just because a victim has had a few drinks or is upset about what has occurred does not mean that they cannot take part in an interview.
The underlying driver for paragraph two seems to be safety of the witness rather than fair trial issues. In any event, we consider the guideline, which does not form part of the legislative regime, was comfortably met by the police.
We have viewed the VVS. Ms Te Tau had only one visible wound, which had been cleaned up. It was bloody, but not bleeding noticeably. She was in a hospital bed with machines intermittently beeping around her. She was remarkably calm given the events that had occurred and the very early hour of the morning. She became distressed at certain points but not because of her condition, rather because of the topic being discussed. She was never “hysterical”. The police officer’s evidence, with which we concur, was that there was no sign of intoxication and Ms Te Tau’s own evidence was that she only had two beers some five or six hours earlier. There is no reason to say she was not in a fit state to be interviewed. As required, she had consented to being interviewed.
The jury would have been aware in any event of the extent of Ms Te Tau’s injuries and the fact that she was in hospital. The police exhibits and photograph book include close-up photos of Ms Te Tau’s injuries. The VVS did not disclose to the jury anything of which they were not already aware or anything of which they should not properly have been made aware. We do not consider there was a risk of unfair prejudice as a result. In addition, the Judge appropriately addressed the jury in his summing up as to not being influenced by prejudice or sympathy. We are satisfied that no miscarriage of justice occurred.
Cross-examination
Ms Abdale placed particular emphasis in her argument as to unfair interference with cross-examination, on a pre-trial ruling by Judge Hikaka where he stated he was “sure that the complainant will be cross-examined about the cause of [her] injuries”.[11] She submits that the defence was prohibited from such cross-examination as the Judge refused to allow “relevant questions” of the complainant and, specifically, “prevented defence counsel from asking the complainant any further questions arising from her intoxication and subsequent impaired actions”. In oral submissions Ms Abdale contended that the Judge in effect “shut down” her cross-examination by his manner and tone. Further, it would have been apparent to the jury he was angry with her. She submits that the defence’s inability to cross-examine the complainant resulted in a miscarriage of justice.
[11]R v Pue-Skellern [2022] NZDC 974 at [27]. This was in a context where the Judge had upheld an objection by the Crown to admissibility of medical evidence tendered by the defence.
The relevant part of the cross-examination is as follows:
Q. … Do you accept responsibility for that – for what happened that night in that you should not have been going to Hoani Pue-Skellern’s house at 1 am in the morning?
A. I do.
Q. You should not have been drinking and driving [your son] in a car without appropriate car seats?
The Court addresses Ms Abdale – clarifies question
A. I can’t recall that.
Q. So the first, the first question was that she shouldn’t have – does she take responsibility for going – partly for what happened that night because she went to Hoani Pue-Skellern’s house at 1 o’clock in the morning and my understanding is that you said: “Yes”?
A. Yes.
Q. And do you accept that you shouldn’t have been drinking and driving with your son that night and taking him to his father’s for contact in the middle of the night?
A. Yes.
Q. And do you accept that even though you deny, or you denied to Constable Nager that you were intoxicated, do you accept that you should not have been drinking and driving and taking [your son] in the car to his father at that time, or at all?
A. Um, can you please say that again.
THE COURT: You don’t have to answer that question Ms [Te Tau], it’s got nothing to do with this.
CROSS-EXAMINATION CONTINUES: MS ABDALE
Q. Do you accept Ms [Te Tau] that the incident that occurred on the night of the 10th of December would never have happened if you hadn’t have gone there?
THE COURT: You don’t have to answer that question either Ms [Te Tau].
In the subsequent chambers discussion on whether to declare Ms Te Tau hostile, the Judge said that the two questions he disallowed almost amounted to victim blaming. We agree. These questions did not relate to the effect of Ms Te Tau’s alcohol consumption on her coordination or ability to recount the events of the evening to the police or any other issue relevant to the proceeding. In particular, referring back to Judge Hikaka’s comment, the questions that were overruled did not relate to the cause of Ms Te Tau’s injuries. Ms Abdale had already cross-examined as effectively as was possible in that regard. Rather, they were questions which were irrelevant, repetitive and improper as they amounted to victim-blaming.
The Judge was correct to disallow such questions. In fact he was obliged to do so in terms of s 85 of the Act. Although we make no criticism of him, some of the earlier questions should have been disallowed also.
Importantly, the defence was not prevented from cross-examining on any matter relevant to the issue in dispute. We have, at Ms Abdale’s request, listened to the audio record of the hearing and disagree with her submission that her questioning was “shut down”. She was stopped from continuing what was an inappropriate line of questioning. The manner in which the Judge overruled the questions was brief and courteous. It was Ms Abdale’s election to end the cross-examination. Further, we cannot see that there was any line of relevant questioning left unpursued. Accordingly, no miscarriage of justice occurred.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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