Snowden aka Pikaahu v Police

[2021] NZHC 3491

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000082

[2021] NZHC 3491

BETWEEN

WILLIAM ROBERT SNOWDEN (aka WILLIAM ROBERT PIKAAHU)
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

13 December 2021

Appearances:

Appellant in person

J Bola for the Respondent

Judgment:

16 December 2021

JUDGMENT OF WYLIE J

This judgment was delivered by me on 16 December 2021 at 2 pm

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Auckland Copy to:   The Appellant

Introduction

[1]                 Following a judge-alone trial before Judge Bouchier in the District Court at Auckland, on 4 December 2020, the appellant, William Snowden, was found guilty of one charge of indecent assault and one charge of burglary.1 On 18 February 2021, he was sentenced to two years and 10 months’ imprisonment.2

[2]                 Mr Snowden appeals his convictions, alleging that a miscarriage of justice occurred at his trial. He argues that the lawyer who represented him at trial, Baden Meyer, failed to fully advance his defence. He also challenges the Judge’s assessment of the evidence presented at trial.

[3]The appeal is opposed by the respondent.

District Court decision

[4]                 Judge Bouchier noted the charges against Mr Snowden and the elements that had to be proved in respect of each charge. She recorded that the Crown bore the onus of proof and had to prove the elements of each charge beyond reasonable doubt. She observed that Mr Snowden was under no obligation to give or call evidence, but recorded that he had chosen to do so.

[5]                 The Judge then turned to the evidence, noting that there was no fingerprint or DNA evidence linking Mr Snowden to the offending. She summarised the evidence as follows:

(a)A was living at the same motel as the complainant at the time of the offending. He had known her for about a year to a year and a half. At around 3am on 20 January 2019, the complainant banged on his door. She was pale, upset, swearing and saying that her neighbour had come and touched her legs. The complainant asked him whether he had heard any noises and he replied that he did not as the walls were soundproof and he was using sleeping pills. He suggested that she call the police.

1      Police v Snowden [2021] NZDC 2799.

2      Police v Snowden [2021] NZDC 2830.

The next morning, he told the police that he and the complainant had been texting each other and that she had left her door open in case he came over. He said he had seen Mr Snowden walk by and look into their windows before. However, he did not remember seeing him that evening.

(b)The complainant said that she was living in the motel unit as emergency housing. About three weeks before the  incident,  she  had  noticed  Mr Snowden walking around looking into windows. She described him as having a “strange demeanour”. She first noticed him when she was in her kitchen and he was staring at her from outside through the window. She told him to go away and he did so without replying. She said  she  had  spoken  to  the  motel  manager  and   friends   about Mr Snowden’s behaviour.

On the night of 16 or 17 January, she had been watching Netflix with A in his unit. She then returned to her unit and locked it but left her keys hanging in the lock. Once she was in bed, she heard a sound at her door. She believed Mr Snowden was watching her sleep through the window in her bathroom. She said her bed could be seen from the bathroom window and that she had a Himalayan salt lamp on in her unit at all times. She said that she had never associated with Mr Snowden and had not given him permission to use her keys.

On the night of 20 January, the complainant again watched Netflix with

A. She left her door open for him when she returned to her unit. She got into bed, took a sleeping pill and fell asleep. She woke up to find Mr Snowden caressing the inside of her right leg with his finger close to her “private space”. He had his body on her bed and was propped up on his elbows. His eyes were wide open. She sat up and began yelling at him to “F … off”. She said he did not understand her and looked as though he was “processing something in his head”. He then shot off the bed and ran out of the unit through the bathroom. He had a rag in his hand.

In cross-examination, the complainant said that no one except the motel manager had a key to her unit. She denied that Mr Snowden had previously come to investigate noises in her unit. She denied that she was fabricating her evidence. She said that she was 100 per cent certain Mr Snowden was the person in her unit because she could see him by the light of her salt lamp. She said that after he ran out of her unit, she ran after him to confirm that it was him.

(c)Constable Vigor  Balcraig attended at the motel on the morning of    20 January 2019. He spoke to the complainant and A. He said it was clear that she was upset about what had happened. Police knocked on the door of Mr Snowden’s unit but there was no answer. He contacted the Crime Squad and took a statement from the owner of the motel. The Constable checked available CCTV footage, but the camera quality was too poor to make anything out.

(d)Detective Constable Joshua Hindt also attended at the motel on the day. He noted the scene was poorly lit from the outside but that the internal lights were on and that the interior of the unit was well-lit throughout. He also took swabs from the complainant’s legs, specifically the shin area (between her ankle and her knee).

(e)Detective Daniel Ross attended at the motel on 20 January as well. He spoke to the complainant. She told him what had happened and said that she was certain the intruder was Mr Snowden. A vehicle registered to Mr Snowden was located and a search was undertaken of the vehicle. Several areas were fingerprinted. Detective Ross was told by police officers that there had been no response when they had knocked on Mr Snowden’s door. The manager of the motel entered Mr Snowden’s unit and found him there. Mr Snowden was then arrested and transported to the police station. No formal identification procedure was undertaken when Mr Snowden was apprehended because the complainant had identified Mr Snowden.

[6]                 The Judge then briefly summarised the DVD interview Mr Snowden gave after his arrest. He denied the allegations. He said that on one occasion before 20 January, he had gone to the complainant’s unit because he had heard noises and thought she was choking. He looked through the window and saw that she was masturbating on her bed. She saw him and pointed to her keys, which were on the windowsill by the open window. Mr Snowden took the keys and went to the back door of her unit. Once there, he opened the door and put one foot inside before turning around and running away.

[7]                 Mr Snowden gave evidence. He stated that he had received a head injury in 2018 which affected his processing ability as well as physical abilities; as a result, he said he can walk but not run. He said that he had only interacted with the complainant on one occasion (when he saw her through the window and she pointed to her keys). Mr Snowden denied standing outside her window on any of the days leading up to 20 January. He denied entering her unit on the night in question and he denied indecently assaulting her. He maintained these denials under cross-examination. He said that there would have been fingerprint or DNA evidence if he had offended as alleged.

[8]Having assessed the evidence, the Judge concluded:

[30]      … I prefer the evidence of [the complainant]. My view of her evidence is that she appeared to be an intelligent, articulate and very good witness, far better than one often sees, with a good memory of what occurred on the night and was clearly able to described what had occurred in the days preceding the incident and the incident itself. Her account and the way it affected her is also corroborated although corroboration is completely unnecessary by [A], who she agreed was her friend and he agreed that he was her friend. He described her as I have already mentioned, when she immediately came out of her room at 3 o’clock or roundabout in the morning of 20 January, banging on his door, swearing and saying that the neighbour had come in and touched her legs, being pale, teary-eyed, upset and swearing. Also this is corroborated in what she said in the emergency call that was made to the police and the description that she gave at the time of the entry and touching by her neighbour.

[31]      I do not, despite the vehemence of Mr Snowden’s evidence to the Court, accept what he has to say. I am of the view that he is relying on this view on the fact that there is no physical or scientific evidence to tie him into this matter and that there should be. The interesting factor which I have also noted is that [the complainant] said that he had a rag in his hand when he entered her apartment. Further than that I will not go but as I say, that is a

factor that I certainly noted. So I reject his evidence because I consider in my view that he is not telling the truth and that he is telling the Court untruths to protect himself.

[9]                 The Judge found that the charges against Mr Snowden had been made out beyond reasonable doubt.3

The appeal

[10]              The appeal is brought pursuant to s 229 of the Criminal Procedure Act 2011. This Court, as the first appeal Court, must allow the appeal if it is satisfied that the Judge erred in 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 other reason. A miscarriage of justice is any error, irregularity or occurrence in, or in relation to, or affecting that trial that has created a real risk that the outcome of the trial was affected, or that has resulted in an unfair trial or a trail that was a nullity.4

Submissions

[11]Mr Snowden was self-represented. His grounds of appeal were as follows:

(a)With regard to the conduct of his trial counsel:

(i)Mr Meyer failed to call witnesses and adduce evidence as instructed by Mr Snowden in emails sent to Mr Meyer on 6 June 2020;

(ii)Mr Meyer failed to inform the Court of his history of brain injuries, failed to provide the Court with a report prepared by a health assessor under s 38 of the Criminal Procedure (Mentally Impaired  Persons)  Act  2003  and  did   not   request   that  Mr Snowden be aided by a communications assistant.

(b)With regard to Judge Bouchier’s assessment of the evidence:

3      At [32]-[33].

4      Criminal Procedure Act 2011, s 232.

(i)The Judge failed to find that the complainant was an unreliable witness;

(ii)The Judge wrongly convicted Mr Snowden of offences that were not part of the Case Management Memorandum and instead relied on the evidence given by the complainant at trial;

(iii)The Judge failed to identify that Constable Hindt had swabbed the wrong areas of the complainant’s leg and misled the Court, having recorded in his notebook that she was touched on the back of her leg;

(iv)The Judge failed to consider whether the Police should have used a formal identification procedure after apprehending him because the complainant’s description of him was not of itself enough to identify him as the intruder;

(v)The Judge falsely stated that a rag was being held by the intruder when he entered the complainant’s unit and she relied on this.

[12]              Ms Bola noted that there were two main threads to the appeal – first, trial counsel error and secondly, the Judge’s assessment of the evidence presented at trial. She dealt with each of the witnesses Mr Snowden asserted should have been called by trial counsel and submitted that there was no error. In regard to the Judge’s assessment of the evidence, she noted the various inconsistencies in the complainant’s evidence alleged by Mr Snowden, but pointed out that the complainant was subject to cross- examination on the perceived inconsistencies and that her position was clarified before the Court. She dealt with each of the  other  alleged  errors  and  submitted  that Judge Bouchier was entitled to be satisfied beyond reasonable doubt of the charges and that no miscarriage of justice can be made out.

Evidence

[13]              In an affidavit affirmed on 8 December 2021, Mr Meyer deposed that he was assigned to act for Mr Snowden on 22 May 2020 pursuant to a grant of legal aid. He

went on to address Mr Snowden’s grounds of appeal. He deposed that the case review hearing had already occurred when he was assigned as Mr Snowden’s lawyer and that, as a result, he cannot be held liable for any alleged failures that occurred at the case review stage. He denied receiving any instructions from Mr Snowden on 6 June 2020. He said that he told Mr Snowden that the complainant’s phone data could not be presented as evidence because Vodafone no longer held messages over the relevant period. He further deposed that a s 38 report had been completed and that it was provided to the Court. He considered that Mr Snowden was capable of communicating his instructions and that a communications assistant was not essential. He asserted that the notes of evidence record that the trial was conducted in a professional and competent manner and that all evidence adduced by the prosecution was subjected to appropriate cross-examination. He deposed that he followed Mr Snowden’s instructions and put forward his defence.

[14]Mr Meyer was not called for cross-examination.

Analysis

[15]              I deal first with trial counsel error and then with the Judge’s assessment of the evidence.

[16]              Before doing so I comment briefly on Mr Snowden’s assertion that he was convicted of offences that were not part of the case management memorandum. I am not sure what Mr Snowden was referring to. The memorandum was not on the file and it was not among the documents Mr Snowden made available to me. In so far as I can glean, the charges  remained  the  same  except  for  a  minor  amendment  to Mr Snowden’s name. Without more I cannot take this issue any further.

Trial counsel error

[17]              Mr Snowden asserts  that  a  miscarriage  of  justice  occurred  because  of  Mr Meyer’s failures as counsel. This allegation falls under s 232(2)(c) of the Criminal Procedure Act, which is concerned with whether something material has gone wrong with the trial other than the sufficiency of the evidence.

[18]              A defendant is entitled to a fair trial under s 25(a) of the New Zealand Bill of Rights Act 1990 and a key aspect of the right to a fair trial is the right to present a defence.5 A part of the right to a fair trial is the right to be represented by competent counsel who meets relevant standards and complies with relevant statutory, regulatory and common law obligations.6

[19]              The leading authority on the issue of trial counsel error is the decision of the Supreme Court in Sungsuwan v R.7 The Court emphasised the need for an appellate court, when considering any appeal based on trial counsel competence, to retain its focus on the question of whether or not a miscarriage of justice has occurred, rather than focusing on whether there were shortcomings in counsel's performance and how those shortcomings might be characterised. Gault J noted as follows:

[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

In addition, Tipping J observed as follows:

[115]  … when counsels conduct is said to have given rise to a miscarriage  of justice, the Court must ask itself first, whether something can fairly be said to have gone wrong with the process of justice in the way the appellant was represented at the trial. If that is so, the Court must then ask itself whether what has gone wrong has deprived the appellant of the reasonable possibility of a not guilty or more favourable verdict. If the answer is no, there will be no real risk of an unsafe verdict and thus no miscarriage of justice. If the answer is yes, there will have been a miscarriage of justice, irrespective of whether what has gone wrong amounts to negligence on counsel’s part. …

[20]              The Supreme Court in Sungsuwan did not need to deal with counsel’s failure to follow instructions because the counsel error challenge in that case did not relate to the defendant’s instructions to his trial counsel. The issue however was referred to by the Supreme Court in R v Condon, where it was noted that trial counsel are obliged to

5      New Zealand Bill of Rights Act 1990, s 25(e).

6      Hall v R [2015] NZCA 403 at [3].

7      Sungsuwan v R [2005] NZSC 57; and see R v Scurrah CA159/06, 12 September 2016.

present a defence a defendant wants to run.8 The Court of Appeal in Hall v R has since held that there are three fundamental decisions on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage of justice.9 The fundamental decisions are those relating to plea, electing whether to give evidence and advancing a defence based on the defendant’s version of events.

[21]              Mr Snowden argued that Mr Meyer failed to competently discharge his duties as counsel by failing to follow instructions. In particular, he said that Mr Meyer did not call the following:

(a)The ESR examiner;

(b)The fingerprint examiner;

(c)The owner of the motel complex;

(d)A psychiatrist;

(e)The complainant’s doctor;

(f)A person from Vodafone;

(g)The person who received the 111 call;

(h)Senior Constable Mark Wardlaw; and

(i)A police artist.

[22]              Mr Snowden said that the instructions to call these witnesses were given in an email on 6 June 2020. He attached what purported to be a copy of the email to his submissions. It was a handwritten document. Mr Snowden said that this was sent by the Department of Corrections to Mr Meyer on or about 6 June 2020 (Mr Snowden was in custody at the time). He produced a document from the Department of

8      R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [28].

9      Hall v R, above n 6, at [65].

Corrections said to evidence this. However, that document was simply a form signed by Mr Snowden authorising the Department of Corrections to record his feedback on the effects of Covid-19 and the impact it had had on him. There is nothing in the form recording Mr Snowden’s instruction to send the handwritten document to Mr Meyer nor confirming that that had been done.

[23]                Mr Meyer, for his part, asserted that he never received any email of 6 June 2020. He said that the first time he saw the handwritten document was when it was supplied to him by the Crown in the course of this appeal and he was asked to comment on Mr Snowden’s assertions (after privilege had been waived).

[24]              I am not persuaded that Snowden gave Mr Meyer any instructions on 6 June 2020. The handwritten document attached to his submissions is not an email and it could not have been sent via email in the handwritten form disclosed by Mr Snowden. I accept that the handwritten document could have been annexed to an email. There is however nothing to show that the document was sent to Mr Meyer and he denies having received it. As I have already noted, Mr Meyer was not called for cross- examination. He has deposed on oath that he did not receive the email. Mr Snowden has not deposed on oath that the email was sent. Rather, he simply asserted it in his written submissions. I am not persuaded that the instructions were given as claimed.

[25]              It was also asserted by Mr Snowden that further instructions were given by email, also on 6 June 2020, advising Mr Meyer that some disclosure was missing and recording that Mr Snowden wanted a production order to gain access to the complainant’s phone for the period from 11  pm on 19 January 2019 to 3 am on     20 January 2019. Again, the copy of the email disclosed by Mr Snowden is handwritten and there is nothing to suggest that it was sent to Mr Meyer.

[26]              There is a further difficulty for Mr Snowden. Where an appellant argues on appeal that a miscarriage of justice has occurred as a result of counsel’s failure to call witnesses, the Court will be reluctant to conclude that a miscarriage has occurred if no briefs of evidence are provided from the potential witnesses detailing what their evidence would have been had they been called. Where there is no brief, “there is simply no basis on which an appellate court [can] conclude any miscarriage has been

occasioned by the absence of those witnesses” as any such conclusion would be “speculative at best”.10 Here, there are no briefs from the witnesses Mr Snowden says should have been called.

[27]              In any event, there is no reason to conclude that any evidence the witnesses could have given, would have assisted in resolving the issues at the trial:

(a)Mr Snowden argued that the ESR examiner should have been called so that the DNA results could be clearly understood by the Court. There is nothing to suggest that the Judge required any assistance in relation to the DNA evidence. The ESR examiner reported that a low level and partial DNA profile from at least one and likely more unrelated males was on the swabs taken from the complainant’s leg. The DNA was however unsuitable for comparison. Detective Ross gave evidence about this. Mr Meyer cross-examined Detective Ross on this evidence and on the lack of  any  DNA  linking  Mr  Snowden  to  the  scene. Mr Meyer did expose through cross-examination that the swabs were apparently taken from the lower leg shin area whereas the complainant was adamant that she had been touched on the inner thigh. I cannot see that the DNA examiner was required to explain the DNA report. DNA testing was done and no probative results were obtained. The Judge was aware of this. DNA played no part in her reasoning.

(b)Similarly, the fingerprint examiner could not have added anything to the trial. Mr Meyer cross-examined Detective Ross on the results of the testing that was undertaken. Detective Ross confirmed that two fingerprint matches were found, one from a friend of the complainant and the other from a police officer who attended the scene. Requiring the fingerprint examiner to give evidence that Mr Snowden’s fingerprints were not found at the scene would have added nothing, because there was nothing to suggest that they were. Again fingerprint evidence played no part in the Judge’s reasoning.

10     Michaels v R [2014] NZCA 258 at [32] and [34]; Devries v R [2014] NZCA 324 at [28].

(c)Mr Snowden asserts that the owner of the motel complex should have been called to give evidence that he had sustained an injury to his leg and that he walks with a limp. However, Mr Snowden himself gave evidence of this. He said that he had sustained a head injury in 2018, that he has nerve dysfunction in his leg, that he is unable to run and that he would not be able to run down the road. He said that he could not therefore have been the intruder named by the complainant, because she gave evidence that the intruder ran out of her room after she screamed at him. Mr Meyer cross-examined the complainant on this point and she stated that she could not recall seeing Mr Snowden limping. She said that on the night in question she “wasn’t interested in the way he ran” and that she was “more concerned about her safety”. The issue was squarely before the Court. There is no miscarriage of justice from any alleged failure to call the motel owner.

(d)Mr Snowden argued that a psychiatrist should have been called to explain why the complainant would leave her door unlocked if, as she said, she was scared of him. Such evidence would necessarily be speculative and irrelevant and therefore inadmissible. Further, the underlying issue was explored in cross-examination of the complainant by Mr Meyer.

(e)The same applies to any evidence the complainant’s doctor may have been able to give about the sleeping pills which the complainant said she took. The effect of the sleeping pills on the complainant could have been explored under cross-examination, but there may well have been good tactical reasons for abstaining from undertaking such cross- examination. The complainant in her evidence in chief said that despite taking sleeping medication she was “still very aware of [her] environment” and that she did “wake up to any disturbances”. Again, the issue was before the Court.

(f)Mr Snowden sought the disclosure of text messages between the complainant and A. He had made the same request to a lawyer

previously assigned to him. That lawyer made enquiry and he was advised that the text messages  were  no  longer  held  by Vodafone. Mr Meyer confirmed the position after he was instructed Mr Snowden nevertheless wanted a person from Vodafone called to confirm this. Such evidence would have been irrelevant and therefore inadmissible.

(g)Mr Snowden complains that the 111 call operator was not called. However, the 111 call was recorded and the recording was played at trial. It was produced through the complainant, who was a party to the call. She confirmed that it was her voice on the recording. There was no need to call the operator and there was no miscarriage of justice.

(h)Senior Constable Mark Wardlaw took the complainant’s statement on 20 January 2019. Mr Snowden argued that he should have been called to tell the Court what happened at the police station, and what questions the complainant was asked. The complainant’s formal statement was produced but it did not form the basis for the Judge’s verdicts. Rather, Mr Snowden was convicted on the basis of the complainant’s viva voce evidence. No miscarriage of justice can have arisen from any alleged failure to call Constable Wardlaw.

(i)Mr Snowden argued that Mr Meyer should have called a police artist to test the complainant’s description of the intruder because no formal identification process was followed. It is not clear how a police artist could have helped. The complainant gave firm evidence that she knew Mr Snowden, that they had been neighbours for some four weeks, that she had had previous encounters with him and that she had noticed details about him, including that he always wore a green cap. She was able to clearly identify him on the night in question and he was then wearing a green cap. There was clear identification evidence given by the complainant, and no miscarriage of justice could have arisen from any alleged failure to call a police artist.

[28]              Mr Snowden also submits that Mr Meyer did not advise the Court about the difficulties he faces as a consequence of his head injuries or engage a communications assistant for him.

[29]              At trial, Mr Snowden gave evidence about his head injury from 2018 and its effects on his physical abilities, memory loss, processing ability and nerve issues. The Judge was aware of the situation.

[30]              Further, Mr Meyer deposed that the Court was advised that a s 38 report had previously been sought. He said that a report had been completed and provided to the Court. A copy of this document is available. It is a letter dated 23 January 2019 from a forensic Court liaison nurse – not a s 38 report. It notes Mr Snowden’s head injuries but includes no recommendations. Two s 38 reports were prepared to assist the Court in determining whether Mr Snowden was fit to stand trial on different charges (unrelated to the indecent assault and burglary offending). One was dated 11 October 2019 and the other 28 October 2019. Both concluded that Mr Snowden has some symptoms of brain damage but retains an adequate enough understanding of Court procedures that he was likely to be found fit to stand trial. Both suggested that the Court should consider allowing regular breaks and giving Mr Snowden additional time to discuss matters with his lawyer. Neither recommended a communications assistant. In so far as I am aware, neither of those reports were before the Judge.

[31]                Mr Meyer deposed that, in his judgement, Mr Snowden was able to express himself and that he did not require a communications assistant. The notes of evidence do not suggest that Mr Snowden had any difficulty. He appears to have been able to recall matters of fine detail readily. It was a short trial – one day – before an experienced Judge. Mr Snowden was not in the witness box for very long – the transcript  of  his  evidence  runs  to  only  10  pages.  The  Judge  was  aware  of   Mr Snowden’s injuries and Mr Meyer says that he told her that s 38 reports had previously been sought. She did not feel it necessary to arrange a communications assistant.

[32]There was no trial counsel error in this regard and no miscarriage of justice.

[33]              I have read the transcript of the hearing. As far as I can glean, Mr Meyer’s cross-examination was competent and thorough. He explored most of the issues which have been raised by Mr Snowden. He called Mr Snowden and Mr Snowden gave evidence in relation to many of the matters in respect of which he has now complained as well. There was no trial counsel error and no miscarriage of justice as a result of the way in which the trial was run.

[34]              In my view, Mr Meyer properly and competently discharged his duties as trial counsel. This ground of appeal must fail.

Assessment of the evidence

[35]              Mr Snowden also argues that the Judge erred in her assessment of the evidence. This raises s 232(2)(b) of the Criminal Procedure Act.

[36]              The correct approach in terms of this subsection was discussed by the Supreme Court in Sena v Police.11 This approach can be summarised as follows:

(a)the appeal proceeds by way of rehearing. The appellate Court is required to form its own view of the facts and determine the appeal accordingly;

(b)if the appellate Court comes to a different view than the trial Judge on the evidence, the trial Judge necessarily will have erred and an appeal must be allowed. However, an appeal is not approached de novo. It is for the appellant to show that an error has been made. In assessing whether there is any error, this Court must take into account any advantages the trial Judge may have had, for example, in regard to credibility findings on contested oral evidence.

[37]              I consider that no miscarriage of justice arises from the Judge’s assessment of the evidence. Mr Snowden was convicted in the face of a strong Crown case. He was known to the complainant. On the night of the intrusion and indecent assault, her salt

11     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[40].

lamp was on and she immediately recognised Mr Snowden as the intruder. He had been living next to her for four weeks and she had had various encounters with him. Immediately after the incident the complainant went around to her other neighbour, A, and told him what had happened. His evidence was consistent with her evidence. The Police were called promptly and the complainant made a formal statement early the following morning. She gave more detailed evidence at trial. Her evidence was unshaken in the face of thorough cross-examination by experienced counsel. The perceived inconsistencies in the prosecution case (as identified by Mr Snowden) were put to the complainant and other witnesses.

[38]              The Judge had the benefit of hearing both from  the complainant and from  Mr Snowden. She stated at the beginning of the verdicts judgment that the focus at trial was on the oral evidence and she reached her verdicts based on her assessment of the demeanour of the various witnesses called, preferring the complainant’s evidence over Mr Snowden’s evidence. She gave reasons for taking this view. The Judge was clearly entitled to prefer the complainant’s evidence and, having done so, to be satisfied beyond reasonable doubt of each of the elements of the charges.

[39]There was no miscarriage of justice in the verdicts.

Result

[40]For the reasons I have set out, the appeal is dismissed.

Wylie J