Rewi v Police

[2012] NZHC 2415

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-073-000504 [2012] NZHC 2415

BETWEEN  KALEB THOMAS REWI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 September 2012

Appearances: S Bhardwaj for Appellant

S Cameron for Respondent

Judgment:      18 September 2012

ORAL JUDGMENT OF VENNING J

Solicitors:           Bridge Law, Hamilton

Crown Solicitor, Hamilton

REWI V NEW ZEALAND POLICE HC HAM CRI-2011-073-000504 [18 September 2012]

[1]      The appellant Kaleb Rewi appeals against his conviction on two charges, one a breach of a protection order by physical abuse and the other a related charge of assault.  He was convicted on those charges in the District Court at Te Kuiti before Judge Tompkins in July last year.

[2]      In support of the appeal the appellant advances the following grounds: (a)     the District Court Judge was wrong in fact and law;

(b)      the Judge made findings contrary to the evidence;

(c)       the Judge failed to direct himself to the proper principles of law; (d)  the Judge failed to apply those principles to the facts;

(e)      the Judge placed considerable weight on the evidence of a person who had sat through the hearing in Court and had not been notified as a prosecution witness, and had not provided a written brief of evidence; and

(f)      the Judge did not properly apply the principle of beyond reasonable doubt.

[3]      Mr Bhardwaj has helpfully clarified in his submissions that the points on appeal can really be summarised into the following heads:

first, that the complainant’s mother, who had sat in the back of the Court during the complainant’s evidence, should not have been permitted to give evidence to support the complainant’s case as the Judge had allowed her to do;

second and related to the first point, that justice must not only be done but be seen   to  be  done.  Permitting  the  mother  to  give  evidence  in  those

circumstances breached that principle;  and

third, generally, that the evidence taken as a whole did not establish the

charges beyond reasonable doubt.

[4]      At the trial the complainant had given evidence that, on the night of 30 and

31 March 2011 there had been an incident between her and Mr Rewi, her partner at the time, trigged by an argument between them.   The argument had led to two assaults by Mr Rewi on her.  The complainant said Mr Rewi had kicked her to the lower back while they were in the kitchen and then punched her in the jaw and her cheek area with a closed fist in the lounge.

[5]      The complainant’s evidence was that as a consequence she told Mr Rewi to move out.  She also went to the police the next day, which was a Thursday, and made a complaint to the police which led to the prosecution.   She also said during the course of re-examination that her mother (and other friends) might have seen the bruises caused by the assault.

[6]      The defence case was that the incident described by the complainant had not occurred.  Mr Rewi’s case was that the parties had argued, that they had argued in the past about a number of matters, particularly money, but that he had not assaulted her.  It was put to the complainant she had made the assault up.

[7]      At the conclusion of the complainant’s evidence, the complainant’s mother, who was in Court, made it clear to the prosecuting officer that she could give evidence to confirm she had seen the bruising on her daughter.  An application was made to the Judge for the mother to be called as a witness, which the Judge granted.

[8]      The mother then gave evidence consistent with the complainant’s evidence. She said that she had spoken to the complainant on the Thursday morning and that as she, the mother, lived and worked in Tauranga, she could not get away from work until the end of Friday morning but then, on Friday afternoon she went over to see

her daughter.  When she got there she saw a bruise on the small of her daughter’s back and a bruise on her face.  She said there was a definite bruise to the face and described as a “bluey, fainter bruise”.

[9]      To complete the picture the accused Mr Rewi then gave evidence.  He denied there had been an assault.  Then his mother, who had also been in Court and had sat through the above process, was then permitted to give evidence as well.  She said she had gone to pick up Mr Rewi on the Thursday, had seen the complainant but had not seen any bruising on her.

[10]     In finding the charges proved the Judge said:

[7]       Having  seen  both  the  complainant  give  evidence  and  be  cross- examined and also the defendant likewise, I am satisfied that what happened that night unfolded as the complainant described it in her evidence.  I was not satisfied with the account given by the defendant and in particular if the defendant’s account was correct, then this night was no different from any other and yet it is clear that as a result of what happened during the evening, both the complainant contacted her mother in a state of considerable distress sufficient to warrant the complainant’s mother travelling from Tauranga to Otorohanga to be with her daughter and the defendant likewise spoke to his mother in circumstances where he was aware that the relationship was at an end.

[8]       In respect of the evidence of the bruising, I accept the evidence of the complainant’s mother that when she arrived in Otorohanga on the Friday there was evident bruising both on the complainant’s face and on the complainant’s hip.

[11]     The first issue arising is whether the complainant’s mother should have been permitted to give the evidence she gave.  In his written submissions counsel for the appellant referred to s 67 of the Summary Proceedings Act 1957 and suggested that once the police had closed their case the Judge should not have allowed the complainant’s mother to take the stand to give evidence.  He made the point that the complainant’s mother was never notified as a possible police witness.  He suggested that to allow the complainant’s mother to give evidence in that way could potentially undermine the public faith in the justice system and encourage people to sit in the body of the Court and then come forward and give evidence as spontaneous witnesses.

[12]     Ultimately, however, as counsel accepted, this was a matter for the discretion of the trial Judge on the day. As a preliminary point I note that it does not appear the police case was closed before the mother came forward and was permitted to give her evidence.

[13]     It appears that, after the appellant’s evidence was given and she was excused, there was then a discussion about calling a witness from the body of the Court.  The application was granted and then the mother was called.   It was only after her evidence that the notes record the informant’s case was concluded.

[14]     The evidence of the mother was clearly relevant evidence and admissible under the Evidence Act 2006.  It was an issue for the Judge whether, in the exercise of his discretion, he determined in the circumstances of the case it was appropriate to admit the evidence or not and, if he was to allow it, what weight he gave to the evidence bearing in mind that the complainant’s mother had sat in Court and heard the cross-examination of the complainant about the matter.

[15]     The complainant’s mother was not spoken to as a potential witness.  There was no witness statement prepared for her so it is not a case of a failure to disclose evidence  or  witness  statements  in  terms  of  the  Criminal  Disclosure Act  2008. Counsel for the appellant at trial, Mr Hamblett, could have sought an adjournment but did not.   While it is unfortunate that the matter developed as it did I do not consider that it can be said that there has been any prejudice to the appellant in the way the matter developed because the complainant’s mother’s evidence was given only on a very limited issue.  She was able to be cross-examined about that.  Counsel could have made the point in submission that she only saw the complainant on the Friday afternoon, (this incident occurring on the Wednesday night) when the appellant’s mother had seen the complainant on the Thursday.

[16]     Ms Cameron submitted that in fact the mother’s evidence could have gone further.   Given the content of the cross-examination and the suggestion the complainant was making the matter up, the mother could have been called to give evidence of the complainant’s earlier statement to her about the assault in accordance

with s 35 of the Evidence Act 2006.  However, that was not done and the evidence of

the complainant’s mother was very limited.

[17]     This Court is left with a decision which was a matter of discretion for the trial Judge.  The experienced District Court Judge considered it appropriate to admit the evidence.  I accept he was correct to do so.

[18]     The next point on this issue is the submission of the need for justice not only to be done but to be seen to be done.  I accept there would be concern if this was to become  a  regular  practice.    But  there  was  no  evidence  of  any practice  of  this occurring.  It does seem to have arisen in a strange and unusual set of circumstances where both the complainant’s mother and the accused’s mother were present in Court and at the conclusion of the evidence of both the complainant and then later the accused, both of their mothers were called from the body of the Court to give spontaneous evidence.  It is unlikely that such a situation will arise regularly.

[19]     As noted, however, the point would have been addressed if, in the course of inquiries and verifying the assaults on the complainant the police had spoken to the mother or other people who had seen the complainant within the next day or two of the assaults to verify the bruising.

[20]     I do not consider there is anything in the particular circumstances of this case that would justify allowing the appeal on policy grounds.

[21]     That leaves the appeal on the merits of the Judge’s decision.  Essentially it is a challenge to the Judge’s finding of facts and the submission that there was insufficient evidence to find the charge proved beyond reasonable doubt.  In relation to that I note that the Judge directed himself properly on that issue, noting that he needed to be satisfied beyond reasonable doubt.   He concluded then that he was satisfied.  He preferred the evidence of the complainant on the point.  The Judge also took into account that the evidence of the complainant about the incident was consistent with the actions of both the complainant and the appellant after the incident, namely that the complainant went to the police and lodged the complaint and that the parties’ relationship ended and the appellant left.

[22]     The complainant’s evidence that this incident occurred on Wednesday night and was violent in the way she said it was, was consistent with her contact with her mother early on Thursday.  It was also consistent with her mother being concerned enough  to  travel  from  Tauranga  to  her  daughter’s  home  on  the  Friday.    It  is immaterial whether, as counsel has noted, that was at Te Kuiti or Otorohanga.  The important point is that the mother travelled to the complainant’s home.

[23]     The appellant’s evidence was that nothing had happened that night and there was  just  “silly  little  arguments”  as  usual.    But  that  is  inconsistent  with  what happened the next day, namely the complainant making the complaint and the appellant moving out and the relationship coming to an end.

[24]     The Judge was quite entitled to take into account that the appellant’s account

was inconsistent with the actions of both parties on the next day.

[25]     In addition, the Judge had the advantage of seeing and hearing the witnesses. [26]     There  was  sufficient  evidence  for  the  Judge  to  have  found  the  charges

provided beyond reasonable doubt, which is what he did.

[27]     There is nothing in the submission Mr Bhardwaj has advanced that ultimately can support the appeal being allowed.

[28]     The appeal is dismissed.

Venning J