Stark v Police
[2017] NZCA 414
•19 September 2017 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA48/2017 [2017] NZCA 414 |
| BETWEEN | MICHAEL JAMES STARK |
| AND | NEW ZEALAND POLICE |
| Court: | Harrison, Duffy & Williams JJ |
Counsel: | F E Guy Kidd for Applicant |
Judgment: (On the papers) | 19 September 2017 at 2 pm |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Duffy J)
Michael Stark was convicted in the District Court following trial before Judge Phillips sitting without a jury on charges of injuring with intent to injure and assault using a weapon.[1] His appeal against those convictions to the High Court was unsuccessful.[2] He now seeks leave to bring a second appeal to this Court.[3]
[1]New Zealand Police v Stark [2016] NZDC 3401.
[2]Stark v New Zealand Police [2016] NZHC 2786.
[3]Criminal Procedure Act 2011, s 237.
The application for leave is based on the ground a miscarriage of justice may have occurred because Mr Stark had an unfair trial as a result of bias on the part of the trial Judge: Mr Stark contends the trial Judge intervened too often, at times took control of the prosecution case and essentially went out of his way to assist the prosecution to secure convictions.
Mr Stark also contends that his first appeal was materially prejudiced as a result of relevant evidence not being before the High Court. Seemingly part of the transcript of the hearing was not before Mander J. Mr Stark contends the missing parts (which are now available to us) evidence the level of bias the trial Judge is alleged to have displayed towards Mr Stark.
Background facts
The offending occurred in a domestic context. The complainant and Mr Stark are partners who had been living together for approximately eight months at the time of the offending.
The complainant is a prostitute. On the night of the offending she was working from the home she shared with Mr Stark. The Crown alleges that shortly after she had finished with a client, who then departed, Mr Stark became angry with the complainant. What followed were assaults upon her which led to the charges on which he was convicted.
The police and an ambulance arrived shortly after the complainant managed to remove herself from the offending. She required hospital treatment. The next day she gave a full statement to the police identifying Mr Stark as the cause of her injuries, which were moderately serious. She received a series of punches to her head, stomach and other areas of her body (the injuring with intent to injure charge) and a blow to her head with a baseball bat, which caused her to bleed (the assault with a weapon charge). Her injuries were well documented and photographed.
The trial
There is no doubt about the severity of the injuries the complainant suffered. The key question at trial was the identity of her assailant.
At trial the complainant testified that it was the client who had injured her, not the defendant. She knew the client as Dan, and said he was a neighbour and a member of the Road Knights gang of whom she was frightened. She initially said she could not remember what happened on the night of the offending. She was given the opportunity to refresh her memory from her written statement to the police. This did not assist her recall. Then she said the injuries were caused by Dan. This contradicted her written statement to the police. Her explanation for not identifying Dan earlier on was because he was threatening, and she was afraid of what he might do to her.
Part way through her evidence in chief the complainant was declared hostile, and she was then cross-examined on her written statement by the prosecutor, which was then produced into evidence.
Mr Stark refused to make a statement to the police when interviewed immediately after the attack on the complainant. He became aggressive and assaulted two officers who were investigating the complaint. At trial he gave evidence in his own defence, denying the offending and blaming Dan.
Mr Stark complains he did not receive a fair trial because the trial Judge:
(a)intervened excessively and essentially took over running the prosecution case;
(b)displayed bias through his threats to hold the complainant in contempt, detain her in the cells and send her to prison; and
(c)did not maintain an appearance of impartiality or an open mind as evidenced by his discussion with defence counsel before Mr Stark gave evidence.
Was there excessive intervention by the trial Judge?
The transcript reveals the prosecutor was not adept at handling a witness like the complainant. The trial Judge intervened from time to time, asking questions of the complainant and asking the prosecutor what he planned to do next. Although the Judge intervened perhaps more than might usually be the case, we are satisfied he did so for proper reasons. It is plain the police prosecutor was inexperienced. The complainant was clearly hostile and reluctant to give evidence against Mr Stark. Her evidence was at times vague and nebulous to an unsatisfactory degree; the Judge sought to clarify it. As the first-instance fact finder, he was bound to do so.
In dismissing this ground of appeal Mander J correctly found that the Judge was reinforcing the prosecutor’s statutory obligation under s 92 of the Evidence Act 2006 to cross-examine the complainant on contested issues arising from her statement.[4] We are satisfied that Mander J correctly summarised the position as follows:
[58] In summary, the majority of the interventions by Judge Phillips were in order to retain control over the proceedings which, between an apparently inexperienced police prosecutor and a complainant adverse to the prosecution, threatened to derail the trial’s fact-finding function. The Judge also interposed himself in the complainant’s examination on a number of occasions to clarify her answers. There is always the danger when a Judge is obliged to intervene in an extensive way and question a witness that an impression of bias may arise, or apparent unfairness. In the context of a Judge alone trial where the witness had on good grounds been declared hostile, I do not consider that Judge Phillips interventions, which largely arose as a consequence of that turn of events, created any real risk of the trial being rendered unfair or that it illegitimately affected its outcome.
[4]Stark v New Zealand Police, above n 2, at [54].
Mr Stark complains specifically about the Judge’s actions relating to production of the complainant’s written statement. The prosecutor cross-examined the complainant on her statement after she was declared hostile. However, he omitted to produce her statement. In answer to a question on this subject from the Judge he said “no sorry, yes Sir”. Ms Guy Kidd, who did not appear for Mr Stark at trial or in the High Court, submits that by engaging with the prosecution to this extent the Judge played an active part in the trial process. That is because it is part of counsel’s role — not the Judge’s — to produce evidence.
Ms Guy Kidd admits that this ground of appeal was not raised in the High Court. Arguably Mr Stark is not entitled to raise this ground now. However, we can answer it shortly. The statement was admissible evidence against Mr Stark. Its contents were already partly in evidence as a result of the cross-examination. The prosecution had relied upon the statement to establish the complainant’s hostility through inconsistency between the account she gave in the statement and her testimony at trial. The written statement displayed inconsistencies in the complainant’s evidence that had already become apparent during the prosecutor’s cross-examination of the complainant. We do not see anything improper in the Judge reminding the prosecution to take the step of formally producing a document on which there had already been cross-examination.
Threats relating to contempt
The trial Judge was faced with a complainant who on one view appeared to be colluding with Mr Stark to enable him to escape conviction. The references to contempt and its consequences were made close to the end of the complainant’s evidence, by which time she had been declared hostile. Accordingly, the Judge would have been aware of the divergence between what the complainant said in her statement to the police and her testimony. The Judge was faced with the real prospect that the complainant was perjuring herself in order to pervert the course of justice. In such circumstances the warnings the trial Judge gave to the complainant are understandable and in her own interests. While some of the Judge’s language may be criticised, we agree with Mander J that there was no causal connection between his reference to placing the complainant in custody and the nature and quality of the evidence she gave subsequently.[5]
No appearance of impartiality
[5]At [57].
The above findings go some way to displace this complaint. Mr Stark also complains about the exchanges between the trial Judge and defence counsel before Mr Stark gave evidence, which he contends reveal apparent bias. As mentioned, the transcript of the exchanges was not available for the first appeal. These exchanges suggest the Judge did not think much of the complainant’s testimony, or that of Mr Stark.
The exchanges occurred before Mr Stark was to give his evidence. However, parts of Mr Stark’s evidence, in particular his account of Dan being the assailant, had been put to the complainant as part of defence counsel’s cross-examination. Accordingly, the trial Judge would have had a reasonable idea of what Mr Stark was going to say before he gave evidence. After hearing all the prosecution evidence, the trial Judge had seemingly formed the impression the complainant and Mr Stark were colluding by falsely laying the blame on Dan. In this context it was understandable the Judge warned defence counsel about the consequences of perjury. We do not see this conduct as indicating or suggesting the Judge was biased.
Conclusions as to fair trial
Accordingly, we reject the submission Mr Stark did not receive a fair trial in the District Court. The complaints he makes cannot lead to this trial being characterised as unfair in terms of R v Condon and Wiley v R.[6]
[6]R v Condon [2006] NZSC 62, [2007] 1 NZLR 300; Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.
The evidence against Mr Stark was overwhelming. The complainant had plainly suffered moderately serious injuries. Someone had to be responsible for them. Apart from the complainant’s testimony at trial, the balance of the prosecution evidence showed Mr Stark was her assailant. When interviewed by the police investigating her complaint immediately after the attack, she specifically identified Mr Stark as her attacker. There was no credible basis for suggesting that she was then lying or mistaken. The transcript itself discloses that her contrary evidence at trial was fabricated; she was plainly attempting to protect Mr Stark. Once the Judge rejected that evidence it was inevitable that he would conclude Mr Stark was guilty of the offences.
The complaints about the trial Judge’s conduct relate to matters that could not have influenced the verdicts. On the evidence before him it is understandable the Judge chose to disbelieve the testimony of the complainant and Mr Stark. It is also understandable that the Judge accepted and relied upon the complainant’s written statement to the police and other prosecution evidence pointing to Mr Stark’s guilt.
Appeal in the High Court
As for the evidence that Mr Stark says was not before Mander J in the first appeal, we are satisfied this omission did not affect the outcome of the appeal. We have already found the missing exchanges do not show bias or lack of impartiality on the part of the trial Judge. Those exchanges cannot materially detract from the significant weight of evidence pointing to Mr Stark being the person responsible for the complainant’s injuries. We see nothing in this aspect of the appeal.
Accordingly, we are satisfied there is no risk that justice may have miscarried so as to warrant a second appeal.
Result
The application for leave to appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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