Rakich v Police
[2017] NZHC 101
•8 February 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-341 [2017] NZHC 101
BETWEEN JOHN RAKICH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 February 2017 Appearances:
C Fredric for Appellant
D M A Wiseman for RespondentJudgment:
8 February 2017
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 8 February 2017 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
RAKICH v POLICE [2017] NZHC 101 [8 February 2017]
Introduction
[1] On 5 October 2016 following a Judge alone trial in the District Court, the appellant, Mr John Rakich, was convicted and sentenced on one charge of male assaults female.1
[2] He now appeals the conviction on the ground that the decision was erroneous because the Judge failed to adequately recognise a number of significant inconsistencies in the prosecution evidence given by the complainant, Jennifer Rakich (the appellant’s sister), and Mrs June Rakich (the appellant’s mother). The appellant says that the Judge’s decision was unreasonable in that it minimised and glossed over very significant inconsistencies, both in his sister’s account, and between her account and his mother’s account, and these inconsistencies were of such number and degree as to render the evidence incapable of satisfying the standard of proof required to establish the charge.
[3] The appellant further submits that the Judge failed to address the standard of proof, and failed to provide adequate reasoning for his rejection of the appellant’s evidence.
Factual background
[4] Following the death of the appellant’s father, family differences and disharmony had arisen between the appellant and other members of the family relating to the deceased’s estate. The charge of male assaults female arose from an incident that occurred on 24 July 2015 at the appellant’s residence when the appellant’s mother and sister went to his house to seek his assistance.
[5] On the morning of 24 July 2015, Jennifer and her mother arrived at the late Mr Rakich’s house with a removal truck, intending to remove some rubbish from the house. Upon arrival they found that a neighbour’s car had been parked across the
garage door and that as a result it could not be opened. The neighbours who they
1 Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment. The appellant was sentenced to six months supervision with a special condition that he undertake an anger management programme as directed by his Probation Officer. He was also ordered to pay $300 reparation to his sister, the victim of the offence, by 31 January 2017. Police v Rakich [2016] NZDC 20699; Police v Rakich [2016] NZDC 20700.
understood owned the car were not home, and so Jennifer and her mother went to the
appellant’s house, two doors away, to seek his assistance in moving the car.
[6] What happened next is disputed. The appellant gave evidence that when he answered the door to his mother and sister, Jennifer asked him about moving the car parked in the driveway, and he responded by saying that it was the neighbours’ car and had nothing to do with him. He said that when Jennifer said that she would have the vehicle towed away, he told her that she was trespassing and that he wanted her to leave his property immediately. He said he spoke to her in a raised voice in order to attract the attention of his neighbour, “ to see if I could get them to call the police and have these people removed.” He said that when his sister would not leave, he initially walked towards his gate to get them to follow him. When they did not, he returned to the front door of his house where his mother was shouting at his sister, and telling her leave. The appellant says that Jennifer then briefly left his property, passing out through the gate and along the driveway before returning again to the front door area of his house, and repeating her threat to have the car removed. At this point the appellant says that he: “stepped behind Jennifer, I placed my hands on her shoulders and I marched her out through the gate, and I wanna make sure that it’s clear that she didn’t resist, so there was no force in that.”
[7] The appellant said that he then walked back towards his front door where his mother was still standing, but that when he tried to enter his house, both his sister and his mother grabbed hold of him by the upper arms, “pushing and pulling me, trying to stop me from going inside the house to get away from them.” The appellant says that he again told Jennifer that she was trespassing and needed to leave, and he again stepped behind her, and putting his hands on the top of her shoulders “marched her” along the pathway, let her go and told her to go. He says that as she walked away from him she leant over and, with one hand, touched the ground. He says that he thought this was because she may have slipped or that she was “trying to pull a Hollywood”. He says that his sister then stood up and turning towards him said “That’s assault, I’m doing you for assault,” before walking away
[8] His sister’s and mother’s version of events, upon which the prosecution case was based, was that when the appellant answered his door and was asked about
helping to get the car moved, he flew into a rage, telling his sister to leave his property. Jennifer said in evidence that she had then started to go, leaving her mother trying to talk in the appellant. She said that as she was going she could hear the appellant talking to her mother, and as she was concerned for her mother, she returned. She said that as she approached her mother, the appellant grabbed her by her shoulders and turned her around:
holding me very tightly and sort of manoeuvring me so fast I was hardly able to keep on my feet, and so he was pushing me up the driveway and telling me to get out, and I said “I’m leaving, you don’t have to do this.” And he just kept pushing me and he picked me up – kind of grabbed me or picked me up and just kind of threw me into the concrete driveway. And I just sort of fell and tumbled, luckily I was not seriously injured or anything, I was a bit sore and bruised the next day and sort of fell on my wrist, but I otherwise had no injuries.
[9] Later that same morning, Jennifer made a complaint of assault to the police, and both she and her mother made written statements.
District Court hearing
[10] The matter was heard before Judge Mather in the District Court. The police called as witnesses: the appellant’s sister and mother, and the police officer in charge of the file. The appellant gave evidence in his defence, and produced several photos of the driveway area of his property which were used in the course of the evidence of all witnesses.
[11] The appellant claimed that he had a defence pursuant to s 56(1) of the Crimes
Act 1961 which provides:
Every one in peaceable possession of any land or building, and every one lawfully assisting him or her or acting by his or her authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him or her therefrom, if he or she does not strike or do bodily harm to that person.
[12] Judge Mather found that the police had proved the charge and convicted the appellant.
Appellant’s submissions
[13] The appellant’s principal ground of appeal is based on a criticism of the reliability of the prosecution evidence, which he contends included inconsistencies and an exaggerated account of the relevant events. The appellant maintains that the District Court Judge minimised and glossed over what were in fact serious inconsistencies in the evidence of the prosecution witnesses, and says that on the basis of the evidence, it was not possible for the prosecution to establish the charge to the required standard of proof beyond reasonable doubt.
[14] In particular, the appellant has identified the following inconsistencies:
(a) the appellant’s mother said she had warned the sister against going to
the appellant’s house, which the sister denied;
(b)the appellant’s mother could not recall that there was a gate at the appellant’s property;
(c) the appellant’s mother’s and sister’s evidence differed as to how many times the sister exited the gate and then returned;
(d)the appellant’s mother stated that she and the sister had grabbed the appellant to stop him going into his house, his mother said that she may have grabbed him, while the sister denied that any such conduct occurred.
(e) the appellant’s mother’s and sister’s evidence differed as to where on
the driveway the sister fell;
(f) the appellant’s mother first described the assault as involving two discrete actions and stated that the sister fell to the ground twice, whereas the sister herself said she fell down only once;
(g)the evidence was unclear as to whether the sister had been grabbed, picked up, or shoved and there were discrepancies in the evidence as to whether the sister stumbled;
(h)the sister stated in her evidence that her face or head connected with the concrete but this detail was not included in her written police statement; and
(i)the sister’s written police statement included no reference to her having suffered any injuries, whereas in evidence she said she had been bruised and sore the next day.
[15] In counsel for the appellant’s written submissions he further submitted that the Judge did not refer anywhere to the criminal standard of proof, and that the decision was unreasonable in terms of sufficiency of evidence.
[16] Counsel for the appellant Mr Fredric, submitted that for the prosecution case to have met the required standard of proof, there needed to be consistent accounts of the incident from both of the principal prosecution witnesses. He said that by reason of the pre-existing family disharmony, the prosecution witnesses were motivated to exaggerate and there were indications of collusion between them. This he said could be inferred from the similar descriptions the appellant’s mother and sister gave in their evidence of the manner in which they said Jennifer was forced or shoved onto the ground. Counsel noted that, in contrast to what the witnesses had said in their written statements of Jennifer being pushed or shoved onto the ground, in their evidence they both described the crucial event as the appellant picking her up and throwing her onto the driveway.
[17] Counsel submitted that taken together the inconsistencies in the evidence, coupled with the context of family disharmony and the motivation for the witnesses to exaggerate what actually happened, rendered the evidence incapable of being a cogent and reliable basis for the Judge’s conclusion that the charge had been proven beyond reasonable doubt.
Respondent’s submissions
[18] The respondent says that the prosecution witnesses’ evidence was consistent in all essential respects, and submits that some of the inconsistencies relied on by the appellant can be readily reconciled and explained, or are not inconsistencies at all. Further, the respondent says that such inconsistencies as do exist between the prosecution witnesses’ accounts of the incident are inconsequential, and do not detract from their evidence regarding the crucial event whereby the appellant was said to have pushed and forced the complainant onto the concrete driveway while manhandling her off his property.
[19] The respondent submits that the incident involved some heated argument and movement of the participants, and consequently some variation and differences in their accounts of the incident is to be expected. The presence of any inconsistencies is no indication of untruth or unreliability of the evidence. Mr Wiseman for the respondent notes that one of the witnesses was an actual participant in the incident involving physical contact between her brother and herself, while the other witness, the appellant’s mother, was a bystander. He submits that in light of their different participation and involvement, variation in their accounts and recollection of the incident is not unexpected. Mr Wiseman notes that:
(a) at the time of giving evidence, the appellant’s mother was over 80
years of age;
(b) the appellant’s mother’s and sister’s police statements were made on
the same day as the incident, while they were still shaken; and
(c) the incident had occurred some 15 months prior to their giving evidence at the trial.
[20] The respondent further submits that the most significant inconsistencies were all put to the prosecution witnesses in the course of their cross-examination, and were thereby highlighted for the Judge. The respondent submits that it is clear from his decision that the Judge was alive to the inconsistencies and had considered them in the course of reaching his conclusion that the charge had been proven.
[21] The respondent submits that the Judge did give sufficient reasons for both accepting the evidence of the prosecution witnesses regarding the crucial events, and for preferring their evidence to that of the appellant. Mr Wiseman says the Judge provided sufficient reasons for rejecting the appellant’s evidence which were adequate in the circumstances and to the occasion, in accordance with this Court’s
decision in Kilroy v R.2
[22] As regards the Judge’s reference to and application of the requisite standard of proof, Mr Wiseman says that in fact the Judge specifically referred to it when concluding his decision by saying: “All ingredients have been proved beyond reasonable doubt and [the appellant] is convicted.” The respondent submits that the general tenor of the Judge’s decision is as to whether the required standard of proof was made out by the prosecution evidence.
Appeal against conviction
[23] The appellant has a right of appeal against his conviction pursuant to s 229 of the Criminal Procedure Act 2011, this being a first appeal from a Judge alone trial.3
[24] Under s 232, this Court must allow the appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”.
[25] Not every “error or irregularity” amounts to a miscarriage of justice. A miscarriage of justice in this context will be an error, irregularity, or occurrence in, or in relation to, or affecting the trial that:4
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[26] The appellant is entitled to judgment in accordance with the independent
opinion of this court, even if that opinion “… is an assessment of fact and degree and
2 Kilroy v R [2016] NZHC 2115.
3 Criminal Procedure Act 2011, s 230.
4 Section 232(4)(a).
entails a value judgment.” In reaching that opinion, the Court of Appeal has stated
that two fundamentals remain constant:5
First, it is still axiomatic that the appellant bears the onus of persuading the appellate court to reach a different conclusion. Of necessity, in discharging that onus the appellant must identify the respects in which the judgment under appeal is said to be in error.
Second, it is also axiomatic that in determining whether the judgment was wrong the appellate court will take into account any particular advantages enjoyed by the trial court. The advantages possessed by a trial judge in determining questions of fact are obvious, especially where assessments of credibility and reliability are involved.
Analysis
[27] I agree with the respondent that many of the supposed inconsistencies are not inconsistencies at all and are easily reconciled, or are immaterial as regards the central issue of whether and how the complainant was forced onto the ground.
[28] For example, the appellant submits that there is a very significant conflict between his sister’s written statement, in which she said she was not injured, and her evidence in court when she said that the following day she felt sore on her arms where she had landed but didn’t have any significant injuries. However, it was accepted by both parties during the trial that the sister’s written statement was made on the same day as the incident. Accordingly, the fact that she stated that she was uninjured when making her police statement on the day of the incident, is entirely consistent with her evidence that she felt sore and bruised the next day.
[29] Nor do I consider that there is any significance in the supposed inconsistency between the mother’s and sister’s evidence about the sister leaving and re-entering through the gate. The sister’s evidence was that when Mr Rakich flew into a rage she started to leave the property (by walking through a gate which led back to the communal driveway). She then noticed that the appellant was still talking to her mother, and so she walked back through the gate towards the front door. When the
appellant’s mother was asked in cross examination whether she remembered the
5 Green v Green [2016] NZCA 486, (2016) NZTR 26-021 at [30]-[31]; summarising Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
sister leaving through the gate and then returning she said, “No I don’t, because I had my back to the driveway where she would have been coming down and I was trying to talk to John, he would’ve been facing her, but not me…” In my view that is a credible explanation and reason why she may not have observed her daughter leaving the property briefly, and it is certainly not an inconsistency that would undermine the reliability of her account of the incident.
[30] I do not consider that the mother’s inability to remember the gate itself is of any significance. As the Judge himself observed, she is an elderly woman remembering events that had occurred over a year prior to her giving evidence. Moreover as she noted, the gate may have been open at the time and therefore not so obvious to her, whereas it was closed in the photographs produced and referred to in court.
[31] The appellant’s version of events included a description of both his mother and sister grabbing his jacket during the incident to prevent him from going back inside his house. The appellant’s submissions note that while his mother conceded that she may have grabbed his arm, his sister denied entirely that any such conduct occurred. In my view however, the mother’s evidence on this point does not support his case. She said, “I might’ve tried to stop him, yes, when I said, ‘Stop, John, don’t do that stop.’ I might’ve grabbed his arm, I don’t remember that part…” I consider that her description of possibly grabbing the appellant’s arm at one point when he was “barging” at them appears to relate to a quite different aspect of the incident and is not a reference to having grabbed him to prevent him from returning inside. Furthermore the appellant’s mother does not say or suggest that the sister also grabbed the appellant. So, in my view, this claimed inconsistency is of no significance.
[32] As regards the central issue as to whether and where the victim fell, how she fell, and whether she was forcefully and deliberately shoved by the appellant or stumbled herself, I consider that the discrepancies are inconsequential. In my view, the fact the two women described the events differently is an expected and natural consequence of circumstances where the incident involved both motion and emotion. I do not consider that there is any significance to be attached to the fact that the
complainant described herself as being “picked – up” and thrown onto the concrete, as she said at the trial, but had earlier said in her written statement to the police that she had been pushed forcefully along the driveway and was then given a “really hard shove forcing me to the ground. I landed on the concrete driveway…”. While counsel for the appellant criticises the Judge’s comment that the complainant used “slightly different words to describe the incident in her written statement to the Police from what she said in evidence…”, I consider that the Judge was quite justified in doing so, and I agree with the Judge’s conclusion that the different language used by the complainant, “does not, in my view, detract in any significant way from the overall description of what occurred.”
[33] Finally, I do not consider there to be any significance in the fact that the complainant said in evidence that her face hit the concrete, which she had not specifically mentioned in her written statement. In her statement she did however say that as a result of being shoved and forced to the ground she “landed on the concrete driveway”. Furthermore in giving evidence at trial, she did not say that her face had hit the concrete with any significant force, but merely that her face “sort of went onto the concrete as well, but I didn’t have any significant injuries.” As she did not claim that her face was injured in any way, there may not necessarily have been any reason for her to have referred to her face connecting with the concrete when making her written statement. The appellant’s submission that it is of “considerable significance” that the witness referred to her face hitting the concrete and then later her head hitting the concrete is in my view without substance. The two words are clearly intended to refer to the same aspect of the incident and are interchangeable in the context used here.
[34] Overall, I consider that the Judge’s findings were reasonable and entirely open to him on the evidence. The Judge specifically addressed the issue of the conflict in the evidence in his approach to resolving the conflict by way of credibility findings, as follows:
[29] Given that conflict of evidence, findings as to credibility must be made. I observed all three witnesses to the events giving their evidence carefully. Both Jennifer and her mother gave their evidence in a careful, clear and largely consistent way. There was an agreed statement by all witnesses as to a significant and deep-seated dispute within the family over
the circumstances of the late Mr Rakich’s death and his estate. The details are not relevant, but it was common ground that there was a significant dispute between the defendant John Rakich on one hand, and his mother and sister Jennifer and others on the other.
[30] That gives context to the events of 24 July 2015 and I need to take that into account in assessing the more credible version of events given by the witnesses.
…
[33] When I consider the evidence of Jennifer and June Rakich I need to take account of what they said to police at the time. The fact that Jennifer used slightly different words to describe the incident in her written statement to the police from what she said in evidence does not, in my view, detract in any significant way from the overall description of what occurred. She was clearly distressed by that incident and went straight from the property, when she had finished her business there, on the same day to the police station to make a complaint of assault.
[34] She was closely and carefully cross-examined in her evidence. I was left in no doubt in my mind as to the essential truthfulness of her description of that incident. There was no embellishment or overstatement and she made appropriate concessions when necessary.
[35] The evidence of her mother was likewise, in my view, credible. She is apparently 84 years of age. Despite that she is clearly in full control of her faculties and gave a succinct and balanced account of what she recalls occurred in a quite frightening violent episode some 15 months previously.
[35] In relation to the appellant’s ground that the District Court Judge failed to adequately direct himself to the applicable standard of proof, it is quite clear that the Judge did so. In relation to the appellant’s sister’s version of events he said, “I was left in no doubt in my mind as to the essential truthfulness of her description of that incident.”6 Furthermore as I have already noted, at the conclusion of the judgment he said “The charge of being a male assaulting a female has been established. All ingredients have been proved beyond reasonable doubt and Mr Rakich is convicted.”7
Conclusion and Result
[36] The learned Judge had the benefit of seeing and hearing the witnesses give their evidence before him at trial, and it appears that he formed a very positive view
as to the credibility and reliability of the complainant, as appears from his comment
6 At [34].
7 At [39].
that he was left in no doubt as to the essential truthfulness of her account of the incident. I find that the Judge’s consideration of the evidence was thorough, and addressed all the material criticisms and challenges to the prosecution case raised by the defence. The conclusion the Judge reached to prefer the account of the complainant and to find the charge proven, was well supported by the evidence he found to be credible and reliable.
[37] I find that the appellant has failed to show that the Judge erred in his consideration and assessment of the evidence such as created a real risk that the outcome of the trial was affected or that a miscarriage of justice occurred.
[38] Accordingly, the appeal is dismissed.
Paul Davison J
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