Richmond v Police - [2013] NZHC 356

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT, PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS (OR NAMED WITNESS UNDER 18 YEARS OF AGE) PROBHIBITED BY S 204
OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-42 [2013] NZHC 356

BETWEEN KEITH ALAN RICHMOND Appellant

ANDPOLICE Respondent

CRI 2012-441-45 [2013] NZHC 356

AND BETWEEN CHRISTOPHER HOPE NGARONOA Appellant

ANDPOLICE Respondent

Hearing: 4 February 2013

Counsel: R A A Weir for Appellant Richmond S J Jefferson for Appellant Ngaronoa N M Graham for Respondent

Judgment: 28 February 2013

JUDGMENT OF THE HON JUSTICE KÓS

[1] These appeals raise the same question: what approach should a trial Judge take to evidence of a complainant who resiles from her original complaint? They do so in a very similar context: an alleged assault by male against female where,
regardless of the complainant’s change of evidence, the evidence still demonstrated

RICHMOND v POLICE HC NAP CRI 2012-441-42; NGARONOA v POLICE HC NAP CRI 2012-441-45 [28 February 2013]

beyond doubt an assault. Either the assault alleged originally, or another arguably lesser assault.

[2] Mr Richmond appeals against conviction, but not sentence. Mr Ngaronoa appealed originally against both, but the sentence appeal was not pursued.

The Richmond appeal

[3] Mr Richmond was convicted following a hearing before Judge Watson in the District Court at Napier on 29 October 2012. The charge he faced was that he had assaulted a girl aged 9 years of age on 29 July 2012. For the purposes of this judgment, I shall call her Elizabeth.

[4] Elizabeth made a complaint of assault in an evidential interview conducted on 7 August 2012. That interview was played as her evidence-in-chief at trial. Elizabeth had been practising poi for a kapa haka concert later in the week. Twice the poi slipped from her hand and struck Mr Richmond. Her evidence-in-chief was that Mr Richmond grabbed her by the hair the second time he was hit by the poi and marched her towards her room. And then that in doing so, he kicked her bottom with his foot. A hard kick, “force four out of five”.

[5] Mr Richmond was interviewed by police on 1 August 2012. That was after the complaint but before Elizabeth’s evidential interview. In the course of that interview he admitted it was possible that he had kicked Elizabeth with his foot. He did not suggest at that stage that he had thrown the poi at Elizabeth. Rather, he said Elizabeth had regathered the poi and put it up her jumper to prevent it being thrown in the rubbish. Which is what Mr Richmond wanted to do with it.

[6] In cross-examination, Elizabeth accepted that Mr Richmond may not actually have pulled her hair when he placed his hand at the back of her head and marched her towards her room. The Judge found that the hair-grabbing allegation fell away as a result. I agree, however,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 356
Decision Date: 28 February 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Napier Registry, the appeals of Keith Alan Richmond and Christopher Hope Ngaronoa against their convictions by the District Court were heard. The central issue in both appeals was the approach a trial judge should take when dealing with a complainant who changes their testimony from the original complaint. The complainants in both cases had altered their statements, yet the evidence still pointed to an assault by the appellants against the female complainants. Keith Richmond appealed against his conviction but not the sentence, while Christopher Ngaronoa initially appealed both but dropped the sentence appeal.

The Court concluded that where a complainant changes their testimony, it is up to the fact-finder, whether a judge or jury, to determine the credibility and reliability of the complainant's evidence. The judge in the District Court was entitled to weigh the evidence presented and decide which parts of the complainant's testimony were credible and which were not. In both Richmond's and Ngaronoa's cases, the judges found the original statements of the complainants to be credible and the changed testimonies to be incredible or unreliable. The Court found that the judges' conclusions were reasonable and based on the evidence presented. Consequently, the convictions were upheld, and the appeals were dismissed.

Orders