R v Police HC Wellington CRI-2008-485-39

[2008] NZHC 1525

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-39

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 September 2008

Appearances: D A Ewen for the Appellant

J Webber for the Respondent

Judgment:      29 September 2008

RESERVED JUDGMENT OF CLIFFORD J

[1]      Mr R  , the appellant, was found guilty in February 2008 after a summary trial in the District Court before Judge Johnston of two charges of male assaults female (s 194(b) of the Crimes Act 1961).  Mr R  ’s victims were his  former  partner  Ms  Charika  Wijewardena,  and  Ms  Wijewardena’s  daughter, Minoli Kularatne.  Mr R  ’s application to be discharged without conviction was declined by the Judge on 10 April 2008.  He was fined a total of $1,000 and

ordered to pay $250 reparation.  He now appeals against conviction.

R V POLICE HC WN CRI-2008-485-39  29 September 2008

[2]      Mr  R  ’s  grounds  of  appeal  stated  that  his  fair  trial  rights  were breached when the Judge who presided at his trial failed to disqualify herself, she having had previous involvement with the parties in the Family Court.

Facts

The Judge’s previous involvement

[3]      Ms Wijewardena had, in June 2007, commenced proceedings in the Family Court at Wellington to restrain Mr R   from disposing of property with the intention of defeating her claim under the Property (Relationships) Act 1976. She subsequently discontinued that proceeding.

[4]     A minute of 10 July 2007 records those proceedings as having been discontinued.

[5]      On 28 August 2007 Ms Wijewardena applied again for such orders, on an ex parte basis.  In support of her application she provided an affidavit, which said that she  had  withdrawn  the  previous  proceedings  because  of  pressure  from  Mr R  .

[6]      Ms Wijewardena also said she had been treated for a depressive illness, and attached a letter dated 2 August 2007 from her doctor which, she said, “confirms my current medical state”.

[7]      On 29 August 2007, Judge Johnston issued a minute, indicating that she was prepared to make the ex parte orders sought but seeking clarification of the accounts containing moneys which were relationship property.

[8]      On 30 August, another Judge ordered restraining orders to be made as had been proposed in a memorandum obviously filed in response to the minute of 29

August 2007.

[9]      Ms  Wijewardena  subsequently  applied  on  18  September  for  substantive orders under the  Property (Relationships)  Act  1976,  requesting  a  definition  and division of relationship property as between her and Mr R  .

[10]     Ms Wijewardena’s proceedings appear to have been called on 14 December before Judge Johnston.  On that day the Judge issued a minute recording that there had been no appearance and that counsel were to be advised the application would be struck out unless Ms Wijewardena advised the Court by 31 January of the reasons for her non-appearance and what further steps, if any, she wished to take.

[11]     The relationship property proceedings came before the Judge  again on 8

February.  On that occasion Mr Rennie appeared for Ms Wijewardena and Mr R   appeared in person.   Mr R   filed a statement of “preliminary defence”, setting out his position in very general terms.  Mr R  ’s position was that the applicant was mentally unstable, suffered from irrational beliefs and might not be fully competent to provide instructions to her solicitor.  Mr R   referred to approaches from Ms Wijewardena to resolve matters outside Court.  Mr R   therefore sought the Court’s “intervention to clearly clarify from the applicant, as to what her preference would be”.

[12]     That same day, the Judge issued directions, which I set out in full:

[1]     The applicant has filed her application and her supporting affidavits.

She is entitled to have her applications dealt with by the Court.  Her mental state, her ability to instruct are matters for her lawyer to be satisfied about.

[2]The respondent has had the documents in his possession for some time.  I strongly recommend he see a lawyer of his own to take up any matters with his own lawyer.

[3]     I direct that the respondent file his narrative affidavit in response, and his affidavit as to assets and liabilities by 29 February.  The affidavits must include details of bank accounts referred to in the interlocutory application of 18 September.

[4]The matter is now placed in Registrar’s list, 6 March, so that counsel and respondent can advise how this matter should proceed.

Mr R  ’s trial

[13]     Mr R  ’s trial on the assault charges involving Ms Wijewardena and her daughter commenced before Judge Johnston on 13 February 2008.

[14]     The first day was occupied with the Police case.  Ms Wijewardena and her daughter gave evidence of the events in the early hours of 18 April 2007 which gave rise to the charges faced by Mr R  .  The defence put to Ms Wijewardena a series of letters signed by her dated 27 April, 2 May and 20 June 2007 to the District Court, and a letter signed by her dated 20 June to the Police.  Those letters variously sought the removal of bail conditions imposed on Mr R   and the withdrawal of the charges against Mr R  .   The letter of 20 June to the District Court attached a letter, of the same date, from Ms Wijewardena’s doctor.

[15]     It was Ms Wijewardena’s evidence that those letters had been prepared by Mr R    and  that  she  had,  in  effect,  been  coerced  into  signing  them.    She produced a letter of 29 November, addressed to the Registrar of the District Court, to that effect.  In that letter she concluded:

So please disregard any letters that he wrote and I signed, as they were done by him to help him with the case.

[16]     Ms Wijewardena’s daughter, Minoli, also acknowledged handwriting a letter dated 29 April 2007 asking for the charges against Mr R   to be withdrawn. She said she did so because she felt under pressure and was trying to help her mother.

[17]     The hearing recommenced on 15 February.

[18]     It  would  appear  that  Mr  R    was  unavailable  that  day  due  to conflicting appointments.  His counsel, Mr Knowsley, advised the Judge of that fact and in doing so mentioned that Mr R   was on a tight Family Court schedule and that to meet that schedule it would appear he was meeting with the solicitor that afternoon.  The Judge excused Mr R  ’s need to appear.

[19]     There was then a discussion as to the availability of an important witness for the defence, namely Ms Redshaw, a JP who had witnessed one of the disputed letters, namely the letter of 20 June to the District Court.  An exchange between the prosecuting sergeant and Mr Knowsley followed as to the significance and relevance of that evidence.  It was Mr Knowsley’s submission that the JP would be able to give evidence of the circumstances in which the letter was signed to support Mr R  ’s position that, at the time, Ms Wijewardena was not under duress and knew what she was signing.  Mr Knowsley commented that the evidence of the JP would dramatically influence the assessment of the reliability and credibility of the witnesses.

[20]     The  Judge  then  made  certain  remarks  that  were  central  to  Mr  Ewen’s argument.  She is recorded as having said:

All right.  The reason I have asked to see you both in chambers is that I was the Family Court Judge who dealt with this matter on – last Friday and what your client is telling you is simply not true Mr Knowsley.  He tried to have the application made by the complainant delayed indefinitely because of her mental health.  Now I looked at the exhibit produced and particularly exhibit

1 and I would ask that both – have a look at that medical certificate from the

Ngaio Medical Centre.   I don’t believe that is genuine.   I have a medical certificate – well, I’ll let you check that.

[21]     There was then a further exchange between the Judge and Mr Knowsley as to the relevance of the JP’s evidence and the possibility that the medical certificate attached to the letter of 20 June was not genuine.   At a later point, the Police Sergeant asked if it were possible that a copy be made of that letter so that he could make further enquiries.   The Judge agreed that could occur, and the following exchange then occurred between the Judge and Mr Knowsley:

THE COURT:

Yes.  Also I don’t accept the defendants unavailability, that simply isn’t true. He was granted a very generous adjournment, he’s had – in fact it’s a total of adjournment  of  some  –  from  the  time  received  the  document,  of  some months.  I gave him to the 29th February which was 21 days from last Friday and he has – that is – that was against the objection of counsel for the applicant so to say that he’s been given a tight plan for Family Court matters just isn’t true.

Mr KNOWLSEY:

Is he obliged to say anything other than that he’s unavailable?  I mean he’s – THE COURT:

Well I’m going to set a date – MR KNOWSLEY:

I mean he’s presumed innocent, he has no previous – THE COURT:

I know but he shouldn’t give instructions – I’m not blaming you Mr Knowsley, you can only say what you were told.  I’m – it’s just perhaps his bad luck I happened to be the Judge who –

MR KNOWSLEY: Maybe it’s good luck. THE COURT:

And I know that what – that he was very generously dealt with.   He was given three weeks and he really is well out of time.

MR KNOWSLEY:

Well, all I can say is Your Honour that I’m hoping that – I trust that the matter – this matter, regardless of your involvement with family proceedings and heaven knows how he’s presented there, I trust his matter will be dealt with, with intellectual honesty because personality and how a person represents himself has limited bearing on what happened on this night.

THE COURT:

It does, it’s a completely different issue, it’s not – MR KNOWSLEY:

That’s right. THE COURT:

It’s nothing to do with property but – MR KNOWSLEY:

I’d like –

THE COURT:

But the Court doesn’t expect to be misled, no matter what the jurisdiction -

[22]     The Judge then indicated she was available to hear the matter on a reserve day the next week, and Mr Knowsley indicated he would make himself available on that day by rearranging his schedule.

[23]     Mr  R  ’s  trial  continued  and  concluded  on  21  February.     Mr Knowsley called Mr R   who gave evidence on his own behalf.   That evidence, as had the complainants’, focused on the events of the evening in question and the letters that had been put to or produced by Ms Wijewardena or her daughter on the first day of the trial.  Whilst Mr R   admitted typing various of those

letters, it was his evidence that the letters reflected Ms Wijewardena’s wishes at the time, and that he was not coercing her.

[24]     Mr R   repeated his concerns about Ms Wijewardena’s mental health.

[25]   The JP, Ms Redshaw, also gave evidence.   Her evidence was that Ms Wijewardena did not appear to be under duress and appeared to sign the letter willingly.     She  had  confirmed  with  Ms  Wijewardena  at  the  time  that  Ms Wijewardena understood what she was signing and was happy to sign it.

[26]     The very brief closing addresses to the Judge from both counsel submitted that the central issue for the Judge was one of credibility.

[27]     In her oral judgment, the Judge carefully recorded the evidence she had heard, both as to what had happened on the night in question, and as to the various letters that had been produced in evidence.  On the letters, the Judge concluded that the way Ms Wijewardena expressed herself when giving evidence in no way resembled the contents and the style of the letters produced as exhibits.

[28]     At [56] the Judge made the following comments:

I have particular concern about the doctor’s certificate attached to Exhibit C. I did indicate my concerns about that to counsel and to the prosecution when the matter was part heard.  I had difficulty accepting the doctor’s certificate as attached to Exhibit C as being genuine, given the errors in it and the way it is expressed and I did ask that that be taken up with the doctor.  The police said he has done so and the doctor confirmed that that was written.  Whether or not it was, my concerns still remain that the lettered Exhibits are not expressed in a way that the complainant Charika would express herself and I have, for the purposes of this hearing, made a finding that I prefer to believe and rely on the contents of her letter dated 29 November 2007.

[29]     The Judge went on to conclude that, on the credibility issue, she preferred the evidence of the complainants as to what had happened and rejected Mr R  ’s defence of self defence.  She found both charges had been established to the standard of beyond reasonable doubt and accordingly convicted Mr R  .

[30]     At sentencing, Mr R   appeared for himself.  The Judge rejected Mr

R  ’s submission that he should be discharged under s 106 of the Sentencing

Act  2002,  noting  that  she  considered  the  offending  serious.     She  fined  Mr

R   and ordered him to pay Court costs.

Submissions

[31]     It was Mr Ewen’s submission that the Judge had not only recollected material provided at the previous week’s hearing, a reference I take as to the hearing on 8

February, but had used that material to come to the conclusion the appellant was lying to his lawyer and by extension to the Court.  Furthermore, she had used those impressions of the Family Court material court material in deciding in favour of the complainants’ credibility.   The Court record therefore demonstrated a real danger that the Judge did not bring an independent mind, uninfluenced by extrinsic matters, to bear on the evidence.  In addition to breaching the rules governing apparent bias, those facts grounded a breach of the right under s 25(a) of New Zealand Bill of Rights Act 1990 to a fair and public hearing by an independent and impartial court.

[32]   In reply, Mr Webber submitted for the Police that the Judge had only commented unfavourably on Mr R   in terms of his apparent suggestion that the “timetable” under which he had been placed by orders in the Family Court had affected his availability for the hearing.  As to the reference to the genuineness of the doctor’s certificate, that had arisen because of the evidence given on the first day by Ms Wijewardena and was something the Judge had realised herself after the first day’s hearing.  That was not material that had been made available to her as a result of her involvement in the Family Court matter.   The issue of Ms Wijewardena’s mental health had clearly been placed in issue, as had the genuineness of the letters she had signed.   There was no indication that the Judge used knowledge of any Family Court material to form a conclusion about the complainants’ credibility, or Mr R  ’s lack of credibility.  In any event, the Judge specifically mentioned at paragraph [56] of her judgment that the Police had confirmed the certificate was genuine.

Discussion

[33] Mr Ewen advanced his argument by reference to the Judge’s remarks regarding Mr R ’s truthfulness in terms of the significance of the Family Court timetabling orders, and by reference to her concerns about the genuineness of the medical certificate (see [20] above). Mr Ewen’s principal concern was that the Trial Judge had formed an adverse opinion of Mr R by reference to the concerns she had expressed about the genuineness of the doctor’s certificate. Mr Ewen submitted that those concerns had been carried over into her judgment, referring to the passage from that judgment set out at [28].

[34]     The Trial Judge therefore, in Mr Ewen’s submission, not only recollected material provided to her at the directions hearing in the Family Court, but had used that to come to the conclusion the appellant was lying to his lawyer and by extension to the Court.

[35]     I have more than a little difficulty accepting Mr Ewen’s proposition that the Judge’s  reference  to  her  concern  as  to  the  genuineness  of  the  doctor’s  letter evidences real or apparent bias, in terms of reliance on information she had received during the Family Court proceedings.

[36]     I note that, when the Judge issued her minute of 29 August 2007, there was on the Family Court file a copy of Mrs Wijewardena’s doctor’s letter as regards her health, dated 2 August 2007.  That letter was in similar terms to the letter from the doctor of 20 June 2007.  The letter of 2 August 2007 was, however, provided by Ms Wijewardena in support of her explanation to the Family Court as to why she had discontinued the previous proceeding.   There was, therefore, nothing in those circumstances to call the genuineness of the letter into question, or to raise that issue in the Judge’s mind.

[37]     As to the Family Court hearing on 8 February, the directions the Judge made in those proceedings related only to the filing of documents and to timetabling. There appears to have been no consideration of the substantive issues on that day. The respondent notes that the notice of preliminary defence filed by the appellant on

8 February 2008 consists almost entirely of various allegations about the complainant’s mental health and veracity.   That document clearly supported the defence that Mr R   raised in the defended hearing.  If kept in mind by the Judge, it could only operate to assist him.

[38]     Moreover, the evidence of Ms Wijewardena on the first day of the trial was that she had been coerced into signing letters prepared by the appellant.  It was in that context that the Judge would appear to have become concerned as to the genuineness of the doctor’s letter of 20 June, and to have raised it with counsel on 15

February.

[39]     I therefore do not accept Mr Ewen’s argument that, because of the material she had been exposed to in the Family Court, the Judge brought with her to Mr R  ’s criminal trial a pre-conceived concern about the genuineness of that letter, which she subsequently relied on adversely to Mr R   during that trial.

[40]   There remains, however, the significance of the Judge’s remarks to Mr Knowsley regarding Mr R  ’s credibility.   The Judge made those remarks based on her knowledge of the terms of the timetabling order she had made in the Family Court.   Quite understandably, on the basis of Mr Knowsley’s explanation, she became concerned that Mr R   was not telling Mr Knowsley the truth relating to that order.  In my judgment, having formed that view – which she did not form based on the evidence put to her at Mr R  ’s trial, an issue arose relating to Mr R  ’s entitlement to be tried on the basis of the evidence put before the Judge at the trial alone.

[41]     I acknowledge the authority in Bakker v District Court at Te Awamutu & Others (HC HAM CP35/99 6 August 1999 Tompkins J), a case brought to my attention by Mr Ewen:

That the Judge had had some previous dealings with the parties in which he has made findings adverse to the plaintiff does not, by itself, give rise to a real danger of bias. It would normally be assumed that the Judge was able to put the events that occurred on the earlier occasion out of his mind; R v Cullen [1992] 3 NZLR 577, 580.

[42]     The difficulty here is that, during the course of this trial, the Judge drew a clearly adverse inference as regards Mr R  ’s truthfulness based on knowledge she had, which she did not acquire during the trial.  I acknowledge that, quite properly, in her discussions with Mr Knowsley the Judge acknowledge that her concern on the point was not directly relevant to the matters before her.  Moreover, she  made  no  reference  to  that  matter  in  her  judgment,  she  accepted  that  the certificate about which she had concerns was genuine, and again did not refer to any of those issues at sentencing.

[43]     Nevertheless, the Judge had formed, and communicated, the very clear view that Mr R   had not told the truth to his lawyer about issues relating to his availability for trial.   In my view, as a matter of apparent bias if nothing else, the Judge should at that point have discontinued the trial.   That the Judge herself acknowledged that the matter might have some influence on her is, I think, reflected in her comment that it was perhaps Mr R  ’s “bad luck” that she was the judge conducting his trial.

[44]     In the circumstances, I do not think there is any appropriate course but to allow the appeal, to quash Mr R  ’s conviction and to remit the matter to the District Court for rehearing.

“Clifford J”

Solicitors:           The Law Store, Porirua for the appellant (Counsel: [email protected]) The Crown Solicitor, Wellington for the respondent ([email protected])