Stevens v The Queen
[2020] NZHC 3290
•14 December 2020
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-454-01
[2020] NZHC 3290
BETWEEN ISAAC KEREHOMA STEVENS
Appellant
AND
THE QUEEN
Respondent
Hearing: 11 August and 8 December 2020 Appearances:
E Hall for the Appellant
J E Mildenhall for the Respondent
Judgment:
14 December 2020
JUDGMENT OF COOKE J
[1] Mr Stevens appeals against his conviction and sentence on 13 charges of offending against his former partner following a Judge alone trial.1 Judge Edwards imposed a sentence of 10 years four months’ imprisonment, with a minimum period of imprisonment of five years and two months.2
[2] The appeal is advanced on a number of related grounds, including that the judgment did not properly assess the elements of the various charges, and how the evidence established that those elements were proved. It is contended that the Judge made a number of related errors and that a substantial miscarriage of justice has resulted.
1 R v Stevens [2019] NZDC 20484.
2 R v Stevens [2019] NZDC 25602.
STEVENS v R [2020] NZHC 3290 [14 December 2020]
Course of the appeal
[3] The appeal has had an unusual procedural course. It was first set down for hearing before me on 11 August 2020. At the commencement of the hearing Ms Hall drew to my attention to the fact that the complainant in this matter had sworn an affidavit dated 10 August 2020 in which she withdrew some of her allegations. After the morning adjournment I discussed this further with counsel and it was agreed that the appeal should be adjourned and the matter investigated. I confirmed this by minute dated 11 August 2020.
[4] Subsequently the complainant filed a memorandum dated 14 August 2020 in which she said that she had been coerced into submitting her earlier affidavit. On 22 September 2020 I asked for a telephone conference to be convened to discuss progress. At a telephone conference on 13 October 2020 Ms Hall advised the appellant wished for his appeal to be completed on the basis that the complainant’s recantation (and the withdrawal of it) was to form no part of the appeal, and was to be put to one side. Ms Mildenhall for the Crown confirmed that this was an appropriate approach.
[5] The appeal was then rescheduled before me at a date convenient to counsel. It proceeded before me on 8 December 2020. I confirm that the recent communications received by the complainant have formed no part of my assessment of the appeal.
District Court findings
[6] As will be explained in greater detail, the District Court Judge did not set out her factual findings in a comprehensive way in the reasons for entering the convictions dated 11 October 2019. She did do so in the sentencing notes, however. She described the offending in the following way:
[3] The series of incidents started in mid-January when you and the victim were staying at the Denbigh Hotel in Feilding. You went downstairs in the hotel to meet with a friend and play on the pokie machines. The victim went down to see what was happening and caused a scene when she saw two other women there. You got angry and directed her to go upstairs and stay in your room. You went upstairs shortly afterwards. You and she argued. She went to run downstairs to get away from you, you did a flying kick to her stomach and shoved her down the stairs. She was in the very early stages of pregnancy at
the time. She landed half way down the stairs, winded. You laughed at her, told her she was being overdramatic and directed her to get back into your room.
[4] A few weeks later she learned that the baby she was carrying had died. She was given medication at the hospital to assist her to miscarry. You and she were staying at your brother’s house at the time. She was in significant pain, you were fixated on the issue of whether or not the baby had been yours. While she was sitting on the toilet miscarrying you were elbowing her in the back, winding her. You were again telling her she was being overdramatic. At one stage you punched her in the head with a closed fist causing her head to rebound and hit the back of the toilet. She ended up being taken to hospital by ambulance.
[5] A few days after she was discharged she again needed medical attention. She was feeling nauseous, she was in pain, she told you repeatedly that she wanted to go to the hospital. You had friends over and wanted to keep drinking. You became angry about, as you saw it, the fuss she was making. You grabbed her hair, punched her head in a jabbing motion and punched her in the eye. She decided she needed to drive herself to hospital. You and your brother followed her out to the car and in view of neighbours continued to argue with her. You tried to get into the car to get $2 coins that were in the car. You held her down by the neck and throat area and punched her in the head. You grabbed her by the hair and slammed her head against the interior of the car. You left before police arrived. She drove herself to the hospital and was admitted. She had bruising to her eye and the hospital staff recorded she had bruising to her chest area.
[6] By April, you and she were still living at your brother’s house in Feilding. Over a period of three nights you assaulted her by strangling her so that she could not breathe and to the point her eyes rolled back in her head. Her evidence was that this happened on three occasions over that time. One time while you were strangling her you said to her that you could easily kill her.
[7] The victim was by this time attending a hairdressing course … in Palmerston North. You used to collect her at lunchtime each day. On the evidence I heard, this was to ensure that you knew what she was doing whenever she was not attending her course. On one occasion when you collected her you noted some white hair treatment on her black uniform and shoe. You decided that this looked like semen and accused her of having sex with someone else. You drove her to a location somewhere near the back of the airport and assaulted her by grabbing her hair and pulling her around the front seat. You punched her in the side of her head so her head went into the window. You then ripped the crotch of her tights and shoved one or more fingers into her vagina to check whether or not she had been with someone else.
[8] Around a week later, you and she were arguing in your bedroom at your brother’s house. You threw her on the floor, climbed on top of her and while holding her by the ears banged her head again and again against the floor. She lost consciousness and woke up in a pool of blood from a gash to the back of her head. She thought she was going to die. The wound required stitches and you drove her to hospital but on the way the two of you discussed telling the hospital staff that she had fallen over while moving furniture.
[9] By June the two of you were living in a unit at [an] Apartment complex. You became angry after the victim did not want to eat the meal you had prepared and smashed her cellphone over her head. You then grabbed her by the hair, threw her to the floor and kicked her in the stomach and chest area. You also punched her to the back of her head.
[10] The incident that started on 17 June and continued over the next day was the one which resulted in your apprehension and arrest. It started at the Royal Hotel in Rangitikei Street. You had stopped there for a drink and for you to play on the pokie machines. While in the pokie machine room, you misinterpreted something she said to your friend, became jealous, stood up and punched her in the face. She fell to the floor and was assisted to her feet by your friend. While you were still ranting at her, she ran out of the hotel and across the road towards the outside of Rebel Sport. She was yelling at you to stay away from her and to leave her alone.
[11] You chased her across the road and kicked out at her. Either that kick connected or she tripped, but she ended up lying on the pavement where you repeatedly kicked her in the stomach, chest and legs. At your trial I was satisfied on the evidence of witnesses that there were at least 10 kicks. I was also satisfied that after the initial blows or perhaps her fall, she was unconscious. You extricated the victim from the concerned witnesses who had stopped to help and took her back to your car. You then drove her down to Wellington. During that trip you repeatedly hit her in the head and body with a bottle and told her she was a slut.
[12] At one point you stopped on the outskirts of Levin. You continued to hit her with the bottle and said to her that when it broke you would stab her in the throat with it. You grabbed her by the hair and pushed her face into the ground and told her that she was going to die there and that you were going to bury her and no one would ever find her.
[13] All of this offending was in breach of a protection order which was made final in 2015. You were arrested a few days after the last incident. There were a number of telephone discussions between you and the victim throughout late June-July, right through until September, during which you discussed making false statements to the police and creating alibis in relation to that last incident.
Lack of adequate reasoning
[7] A primary ground of Mr Stevens’ appeal is that the District Court Judge failed to properly assess the elements of the various charges against him, and that a proper basis for finding him guilty of those charges has not been set out in the judgment.
[8] This is a first appeal against conviction pursuant to s 232 of the Criminal Procedure Act 2011 (the Act). The Court must allow the appeal if satisfied that, for any reason, a miscarriage of justice has occurred.3 Appeals against conviction proceed
3 Criminal Procedure Act 2011, s 232(2).
by way of rehearing.4 If the appeal is allowed the Court may make any order it considers justice requires.5
[9] It is well established that the failure to engage in appropriate reasoning can give rise to a miscarriage of justice in the way contemplated by s 232(2)(b) of the Act. Reasoning that shows an assessment of the evidence leading to a conviction is needed. These requirements were confirmed by the Supreme Court in Sena v New Zealand Police.6 In doing so the Supreme Court followed the approach that had been set out in earlier decisions of the Court of Appeal in R v Connell7 and R v Eide.8 In Connell Cooke J said:9
Only in most exceptional cases, if ever, is it likely to be consistent with the judicial role in trying an indictment to give no reasons for the verdict. If the verdict is not guilty, however, occasionally a very brief statement of reasons is best. In other cases, whether the verdict is guilty or not guilty, it is obviously impossible to work out a formula covering all circumstances. But in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge's essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.
[10] In Sena the Supreme Court applied that approach to s 232 of the Act in the following way:10
[36] … We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment
4 Sections 229 and 232; Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
5 Section 233.
6 Sena v New Zealand Police, above n 4.
7 R v Connell [1985] 2 NZLR 233 (CA).
8 R v Eide [2005] 2 NZLR 504 (CA).
9 R v Connell, above n 7, at 237-238.
10 Sena v New Zealand Police, above n 4, at [36].
frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. …
[11] Ms Hall argued that the reasons given by the Judge here were inadequate and that a miscarriage of justice had accordingly arisen. Mr Stevens faced serious charges for a series of different offences involving factual events at a number of different times over a five month period. The trial was conducted over four days. Yet the judgment extended over only nine pages. Whilst the Judge had listed the 13 charges — two charges of assault with intent to injure, two charges of male assaults female, two of injuring with intent to injure, two of threatening to kill, one charge of sexual violation by unlawful sexual connection, one of wounding with intent to cause grievous bodily harm, two of assault with a weapon, and one of injuring with intent to cause grievous bodily harm — at no stage were the elements of any of these charges set out. Neither were the evidential contentions of the complainant and Mr Stevens assessed separately against those elements. Rather the Judge determined the case by making a generic assessment that the complainant was telling the truth, and Mr Stevens was not. Ms Hall submitted that there was accordingly a fundamental failure by the Judge to discharge her obligations in terms of the relevant principles. She illustrated the point by reference to particular charges which I address in greater detail below.
Analysis
[12] I accept that there are issues arising from the District Court’s judgment. Three related concerns can be said to arise.
[13] First Ms Hall is correct that the judgment is generally formulated at a generic level. The Judge analyses matters that have led her to conclude that the complainant’s evidence was credible and reliable, and then assessed why she did not find Mr Stevens evidence plausible or convincing. Those findings appear to be the principal reason why she has accepted that all 13 charges were proved against Mr Stevens.
[14] Secondly the Judge did not set out and analyse the specific elements of the charges faced by Mr Stevens, and accordingly what needed to be proved on each of
those charges. She did address one or two particular elements of the charges more closely as I will assess in greater detail below, but otherwise the elements have not been set out or addressed.
[15] Thirdly, the Judge did not set out the factual findings that the Court was making in a comprehensive way. It is notable that it is not possible from reading the reasons for the convictions to know what actually happened in this case. A fuller description of the offending is set out in the separate sentencing decision that I have quoted above. But that decision was released some two months later and cannot be taken to buttress the reasons for the entry of the convictions. The events as found to have occurred, and which gave rise to the convictions, were not set out in the conviction decision.
[16] Notwithstanding these features my conclusion is that the reasons, and reasoning of the Court, were sufficient to meet the requirements of s 232. After setting out what the charges were, and that the defendant denied them, the Judge said:
[7] What I am required to decide is, did these things happen in the way and to the extent [the complainant] described? The key issue in this case is [the complainant’s] credibility. Is she telling the truth, or has she lied about the violence on these particular occasions or exaggerated the extent of it?
[8] The onus is on the prosecution to make me sure, in respect of each charge, that the violence alleged was inflicted (or threat to kill made) and that the defendant had the requisite intent at the time. I must determine each charge separately, as if this were 13 separate trials, and my decision on each charge must reflect the evidence relevant to that charge.
[17] Then between paragraphs [9]–[34] the Judge undertook an assessment on why she found the complainant’s evidence reliable and credible, and why she did not find Mr Stevens’ evidence convincing, and that it was self-justifying and implausible. She then concluded:
[35] I am satisfied that the Crown has proved these events happened in the way that [the complainant] described in her evidence. Where applicable, I am satisfied the nature and severity of the violence inflicted on her shows the requisite intent on the defendant’s part. In relation to the charge of sexual violation by unlawful sexual connection, there was no evidential foundation which put consent in issue so the sole issue for my determination is did the sexual violation happen in the way [the complainant] described? I am satisfied the Crown has proved it did.
[36] In relation to charge 5, threatening to kill, I find the charge proved despite [the complainant] not considering what was said amounted to a threat.
The Crown is not required to prove, as an element of the offence, that the person subjected to the threat actually feared for his or her safety as a result. The mens rea requirement is an intention on the defendant's part that the threat be taken seriously, and I am satisfied this requirement is met.
[37] Finally, in relation to charge 11, [the complainant] described the violence as involving not more than four kicks. However, I am satisfied on the evidence of Ms K that the number of kicks involved was at least 10. I bear in mind that any eye witness account must be regarded with caution, taking into account the surrounding circumstances, but I am satisfied from the evidence of the Snapchat segment Ms K recorded on her cellphone that she had a clear view of what was happening from her apartment window.
[38] Her evidence is also supported by that of Ms W, which I accept, to the effect that when she reached [the complainant], she was lying on the street unconscious and it took her a short time to wake her up. I am satisfied on the evidence that the initial kicks rendered [the complainant] unconscious and that is why she has no recollection of the later kicks.
[39] Other than that exception, I am satisfied that events happened in exactly the way [the complainant] described in her evidence. I find the defendant guilty of all 13 charges.
[18] Whilst I accept that the findings did not deal with each of the charges against Mr Stevens, I ultimately conclude that it is clear from the Judge’s reasons why he has been convicted of the particular offences, and that the judgment addresses the elements of the particular charges in an adequate way.
[19] The Judge held that, if the events occurred in the way that the complainant had described in her evidence, then the charges would be proved. Mr Stevens gave evidence and whilst he had admitted some offending to which guilty pleas had been entered, he denied the violence or the extent of violence alleged by the complainant. Having reviewed the complainant’s evidence I see no error in the Judge’s conclusion that the offending would have been established if this evidence was accepted. The central issue, therefore, was whether the complainant was giving honest and reliable evidence about those events to the point where the charges were proved to the required standard. On that issue the Judge set out detailed reasons for accepting her evidence. Among the factors considered by the Judge were:
(a)The propensity evidence. Mr Stevens had 10 previous convictions for assaulting the complainant, breaching a protection order, and threatening to kill between 2013 and 2016 which the Judge had earlier
accepted established a pattern of conduct involving violence against the complainant, particularly arising from jealously and suspicion.
(b)That the complainant’s account was detailed, coherent, and not provided in an emotional way. She also explained why she remembered particular events more clearly.
(c)The complainant had admitted that she could be jealous or mistrustful, but had given apparently direct and honest answers when it mattered.
(d)That she had demonstrated accuracy on some points, and made concessions on others that indicated that she was not embellishing her overall account.
(e)That whilst she had got some matters and details wrong this was explained by the fact that there were a number of different incidents over a five month period where some merging of details was understandable.
(f)That one of the incidents on Rangitikei Street was corroborated by independent witness accounts.
(g)Other evidence was corroborated by hospital, medical centre and ambulance notes. There were also recent complaints she had made at the time to her mother, a friend and a counsellor which the Judge accepted.
[20] The Judge also assessed Mr Stevens’ explanations for the events, and why she did not accept them. When explanations were provided she addressed the evidence carefully. For example she held:
[31] I did not find the defendant’s denials of any violence, or violence to the extent alleged, convincing. I consider his evidence in support of those denials was self-justifying and implausible. For example, he suggested his brother may have been responsible for the bruises on [the complainant’s] chest, observed by hospital staff when she was admitted on 26 February. He accused independent eye witnesses of exaggerating. He added details to his
evidence to plug obvious gaps in timing, most significantly the petrol stop in Levin on the way to Petone and the extra time he said it took to break into Valentines.
[21] What emerges from this analysis is that on the critical issue on which the charges depended — whether the complainant was giving a truthful and reliable account, or whether Mr Stevens’ account was correct — the Judge has made the necessary finding with detailed reasons.
[22] It is true that the Judge did not set out all the elements of the offence for each of the different charges, and then make findings in relation to those elements. Given that she did not do so, it is not a model judgment. But she has nevertheless found that the charges were proved, and indirectly addressed each of the elements by asking whether the events occurred as the complainant contended. In Connell the Court observed that a statement of the ingredients of each charge would be required.11 But the Judge’s analysis here can be seen to be going beyond the more rudimentary requirement identified in Connell, and attempting to focus on the key issue which she then addressed in a more extensive way. Whilst it would have been preferable for the Court to have first set out the elements of the charges it nevertheless seems to me to be sufficient for the Court to focus in on what the key area of contest was. What was missing in the reasons is not critical to the proper determination of the charges.
[23] Ms Hall relied on Wenzel v R where the Court of Appeal indicated that it was not part of the function of the appellate court to make the necessary findings by assessing the evidence for itself.12 But here it is not a matter of this Court making the necessary findings based on the evidence at trial. The Judge has made the relevant findings. The difficulty is that it is necessary for this Court to go back to the complainant’s evidence to understand the effect of her findings. That seems to me to be a different difficulty than that identified in Wenzel.
[24] In the end there can be no criticism of the District Court Judge’s conclusion that the charges would be proved if the events occurred as the complainant has said they occurred, with the level of violence alleged, provided that the defendant had the
11 R v Connell, above n 7, at 237.
12 Wenzel v R [2010] NZCA 501 at [57]–[58].
requisite intent at the time. As Ms Mildenhall submitted the Judge focused in on what the critical issues were, and then addressed them. So notwithstanding the other required reasoning was highly abbreviated, the judgment nevertheless addressed what was necessary for the determination of the charge.
Sexual violation charge
[25] The point is illustrated by the Court’s findings in relation to the sexual violation charge which was subject to specific criticism in Ms Hall’s submissions. Here the Judge concluded that “there was no evidential foundation which put consent in issue so that the sole issue for my determination is did the sexual violation happen in the way [the complainant] described”.13 Ms Hall argued that this was not an appropriate approach as it was always necessary to address consent, and the lack of a reasonable belief in consent, as necessary elements of the charge.
[26] In support of that submission she referred to the authorities which say that a Judge must always direct a jury on the consent elements regardless of whether the defence have raised the point or not.14 She submitted the position should be no different for a Judge alone trial. The Judge was accordingly required to address the elements of consent, and the lack of reasonable belief in consent to properly determine the charge.
[27] In my view it was not necessary for the Judge to go further than make the findings she did. Unlike a jury, the Judge was aware that these are necessary elements of the offending — indeed she specifically referred to the consent element. What the Judge’s finding involved is a conclusion that there was no evidential basis that could put consent in issue as a matter of fact. This was apparent from the nature of the complainant’s evidence. The alleged sexual violation she described involved Mr Stevens making a non-consensual invasive examination, supposedly to establish whether she had been having sexual relations with somebody else. Based on her evidence there could be no question of consent. Mr Stevens’ evidence was “that did not happen at all”. There was no suggestion from him that it did happen, but was a
13 At [35].
14 See, for example, Christian v R [2017] NZSC 145, [2018] 1 NZLR 315 at [34]–[35].
consensual act, or that he believed that she was consenting. The ultimate question was whether the prosecution had proved that it did happen as she described to the required standard. For these reasons the Judge’s findings seem to me to be justified. I do not accept that there is any deficiency in the reasoning. I agree it would have been better for the elements of the offending to be set out, and addressed more methodically. But the reasoning nevertheless addresses what was necessary to properly address, and then explain the findings made by the Court.
Threatening to kill charge
[28] Similar points arise in relation to the charge of threatening to kill addressed at paragraph [36] of the judgment. Ms Hall criticised the lack of analysis of the evidence, and relevant findings in relation to the requirement that the threat was intended to be taken seriously. That was particularly so given the complainant’s evidence that she had not taken the threat seriously. The Judge held, however, that the Crown was not required to provide that the person subject to the threat actually feared for his or her safety, but rather that there was a mens rea requirement that the defendant intended the threat to be taken seriously.15 On that element she held that the requirement was satisfied. That finding was sufficient to address this element of the alleged offending. The correct element of the offence was set out, and then a required finding was made. It was a justified finding given the threat in question was issued while the Mr Stevens was engaged in strangling the complainant. Mr Stevens then engaged in further strangulation in the following days. The Judge’s finding that these events took place as the complainant said was of central significance. The Judge therefore addressed the additional elements where they were potentially in issue for the particular charge. So her findings focus in on, and then address the central issues.
[29] Similar points emerge from the findings on the other charges raised on appeal. The reasoning is not as comprehensive and methodical as it could have been, but the elements of the offences are nevertheless covered by the findings.
15 At [28].
Conclusion
[30] For these reasons whilst there are shortcomings with the way the judgment has been expressed, and whilst it would have been preferable for the Judge to set out and address the specific elements of each of the offences and then set out the facts as found in a more comprehensive manner, I am not satisfied that there has been a miscarriage of justice by the lack of reasoning in the judgment. On the critical issue, that of the credibility and reliability of the complainant’s account compared with the evidence of Mr Stevens, the Judge has made explicit findings. Those findings also address whether the level of the violence occurred as she had described it, and whether the defendant had the relevant mental elements for the offences to be established. The Judge has then addressed particular elements of the offending to the extent they were significant for the particular charges. The fact that the findings were not set out in a comprehensive way have meant that I have had to read the relevant evidence to make sure a proper basis for the findings exist. But having done so I am satisfied that the findings were correct.
[31] In any event the necessary reasoning standards were met. For these reasons I reject this ground of appeal.
Particular evidential issues
[32]Ms Hall also addressed two evidential issues on behalf of Mr Stevens.
Demeanour
[33] The first issue related to the Judge’s assessment of the complainant’s evidence. Ms Hall advanced this argument in connection with the adequacy of the Court’s reasoning, but it is also a self-standing point. In particular the Judge considered the complainant’s demeanour when giving her evidence, and included a positive assessment of demeanour as one of the reasons why she accepted her evidence. Ms Hall referred to the decision of the Supreme Court in Taniwha v R where such reliance on demeanour was cautioned against. There the Court said:16
16 Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 (footnotes omitted). See also at [32].
[1] In New Zealand, as in other jurisdictions from the common law tradition, criminal trials are conducted orally, in open court. The principle of orality, enshrined in s 83 of the Evidence Act 2006, recognises the fundamental importance of transparency in the administration of justice through the courts. The principle also rests upon the assumption that a fact- finder, whether a judge sitting alone or a jury, is likely to benefit from seeing and hearing witnesses give their evidence. There is, however, research which indicates that a person’s demeanour when giving evidence in court generally provides little or no assistance to a fact-finder charged with determining whether or not the witness is telling the truth. A witness who presents as confident, articulate and honest may be mistaken or dishonest; a witness who presents as diffident, hesitant or awkward may be telling the truth and their evidence may be accurate. Not only can appearances be deceptive, but fact- finders may over-estimate their ability to recognise those who are truthful from those who are not, by, for example, relying on unreliable behaviours such as fidgeting or looking away. In this appeal, the Court is asked to consider how a judge instructing a jury in a criminal trial should deal with the question of demeanour.
[34] For the reasons then identified in detail by the Supreme Court demeanour can be a unreliable guide to the truthfulness or reliability of the evidence of particular witnesses. But the Supreme Court did not say that demeanour was irrelevant. The Court ultimately concluded that there was no invariable requirement for judges to give demeanour warnings when summing up to juries,17 and that the case before the Court was not one where there was a risk of miscarriage of justice as a result of the jury making a legitimate assessment of credibility based on demeanour. In Sena the Supreme Court further noted that a trial judge is best placed to form a view of a witness notwithstanding the difficulties with demeanour-based assessments.18
[35] I accept that the Judge included an assessment of the complainant’s demeanour as part of the reasons why her evidence was accepted. But it was only one of a series of reasons why the Judge accepted that evidence. It would certainly have been dangerous to base findings on demeanour alone. But demeanour can still be taken into account as one of a series of reasons why a Court accepts a witness’s evidence. Normally it may be better to ignore it as a factor. By itself it may not amount to much, but it may still be legitimately considered as inter-related with other factors. Given the factors I have summarised at [19] above I do not accept that demeanour has had an undue influence on the outcome in this case.
17 See particularly the discussion from [42].
18 Sena v Police, above n 6, at [39].
Propensity
[36] The next evidential challenge was to the admissibility of propensity evidence. By a pre-trial ruling dated 27 February 2019 the Judge allowed the prosecution to adduce Mr Stevens’ convictions between 2013 and 2016 against the same complainant.19 Ms Hall argued that the propensity evidence should not have been introduced. She emphasised that the admissibility of propensity evidence turns on analysis of the level of particularity.20
[37]In allowing the propensity evidence to be led the Judge held:
[22] I agree with the Crown’s submission that, taken together, the proposed propensity evidence and the present allegations demonstrate a violent relationship between the complainant and the defendant over a considerable period of time. It is clear from the convictions just discussed that there has been at least one violent incident against his partner which has resulted in a conviction or convictions for the defendant each year between 2013 and 2017.
[23] There are a number of similarities between the violence allegedly involved and the triggers for it, as it is the Crown's submission that the convictions demonstrate a tendency for the defendant to become violent in specific ways, prompted by jealousy or fears of infidelity on the complainant’s part or where there have been arguments between them.
[38] Ms Hall argued that this approach is not sufficiently particularised and that the prior offending was not sufficiently probative of facts and elements of the present offending. In addition Mr Stevens had conceded that he had been violent towards the complainant, and was admitting three charges. Ms Hall also argued it was inappropriate for the same Judge to deal with the propensity application, and then with the trial.
[39] The critical issue in this case was whether Mr Stevens had been violent towards the complainant as she said. A pattern of previous violent offending against the same complainant clearly demonstrated a propensity to offend against her. It had probative value. As indicated the ultimate issue in this case was whether the violent offending she alleged occurred at all. There is plainly prejudicial effect from the admission of such material. But given that this was a Judge alone trial the concern about such
19 R v Stevens [2019] NZDC 3690.
20 Relying on Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145; H (CA 319/15) v R [2015] NZCA 400; and R v Bevan [2012] NZHC 2125.
prejudice is diminished. Judges are well placed to apply propensity evidence with the required care. The Judge did so here. She said:21
[12] If I consider the evidence about his past offending establishes a pattern of conduct or a propensity on Mr Stevens’ part to behave in this way, I can use it to assist me to decide if [the complainant] is telling the truth about what she says the defendant did to her between January and June 2017. However it would be improper for me to conclude that just because he has behaved violently towards [the complainant] in the past, he must therefore be guilty of any of these charges. I must take all the evidence relating to each of these charges into account to determine whether the prosecution has proved each of the charges beyond reasonable doubt.
[40] Ms Hall argued that Mr Stevens had accepted that he was violent towards the complainant such that the propensity evidence was not truly relevant. But as Ms Mildenhall argued the propensity ruling was more specific than that. The ruling focused on the triggers for the violence in particular ways because of jealously or fears of infidelity.22 Whilst the Judge did not specifically explain how the propensity evidence was relevant to her findings in her reasons for entering the convictions, it is significant that she found that issues of jealously and suspicion made the complainant’s evidence in relation to the sexual violation charge credible, however bizarre they may have seemed.23 So whilst the Judge has not said so explicitly, this is an example where the propensity evidence would have been of assistance. I accordingly accept that the evidence was admissible and properly used.
[41] I also do not accept the criticism that the same Judge should not determine the propensity application, and then be the trial Judge. There is a considerable advantage in a single Judge dealing with issues leading up to trial. Judges can be expected to apply a disciplined approach to putting to one side potentially prejudicial material. There may be cases where it is better that a Judge not sit as the trial Judge because of matters the Judge becomes aware of leading up to trial. But there is nothing about present case that suggests there was unfairness to Mr Stevens.
21 R v Stevens, above n 1.
22 R v Stevens, above n 19, at [23].
23 R v Stevens, above n 1, at [30].
Recalling the complainant
[42] The appellant’s next ground of appeal is that the District Court Judge erred in failing to allow for the complainant to be recalled to answer further questions during the trial.
[43] The Judge dealt with the application in ruling number two.24 Mr Stevens’ then trial counsel indicated that there were particular matters he had not pursued in cross- examination which he should have. In particular:
(a)That the complainant had written to the defendant in 2018 acknowledging she had made up the allegations.
(b)That there is a phone call between the complainant and Mr Stevens before trial in which she had indicated she was only proceeding with the allegations because she did not want to be charged with perjury.
(c)The detail of what the complainant had told a counsellor.
(d)Where the complainant had asked the midwife not to disclose the dates of pregnancy because she was concerned about paternity.
[44]In declining the application the Judge ruled:
[8] I do not consider that the matters raised, singularly or cumulatively, amount to grounds for recalling [the complainant] in the interests of justice. The matters Mr Foster raises were in the main put to the complainant and she had the opportunity to respond. The exception to this is a letter allegedly sent in 2018, although the allegations said to be contained in the letter was put to her.
[45] The ability to apply to recall a witness is regulated by s 99 of the Evidence Act 2006, and depends on whether it is in the interests of justice to do so. In R v Sikulei the Court upheld an appeal against conviction on a number of related grounds, including that the Court had wrongly denied an application to recall an accuser, indicating that challenging such evidence was a right recognised by s 25(f) of the
24 R v Stevens [2019] NZDC 19837.
New Zealand Bill of Rights Act 1990.25 In that case, however, what was involved was “new and damaging evidence against the appellants” that the appellants were unable to cross-examine on.26 Similarly in R v T the High Court granted an application to recall a witness when new evidence emerged in re-examination that concerned a key issue at trial.27 These cases suggest that the appropriateness of allowing a witness to be recalled in a criminal case will be fact specific. Central considerations will include the importance of the relevant evidence, whether it has emerged in a way that was not anticipated, and the significance of potential lines of cross-examination.
[46] In her supplementary submissions Ms Hall refers to the decision of Williamson J in R v Ellis (No 15) where the discretion was described as a broad one, and where the Court allowed a witness to be recalled even on topics that had already been the subject of cross-examination.28 She also referred to the cross-examination duties arising under s 92 of the Evidence Act and suggested that trial counsel needed to make the application to recall an order to properly challenge the complainant’s evidence.
[47] I do not accept that s 92 was engaged — the topics of cross-examination were covered with the witness, and there was a challenge to her evidence. But I accept it would have been open for the Judge to recall the witness for similar reasons as the High Court did in R v Ellis (No 15). That does not mean that there was an obligation on the Judge to allow that application, however. The Judge accurately identified the correct legal test for directing a witness to be recalled. What was then proposed was further cross-examination on details of topics that were already the subject of cross- examination. Moreover in assessing the interests of justice a court can appropriately take into account the general impact of requiring a witness to be recalled. That appears to have been a factor here as the complainant had needed breaks when giving evidence. In the absence of the proposed cross-examination being significant in terms of the prosecution case, and given that the underlying topics had already been subject to challenge, I do not accept that there has been a miscarriage of justice arising from the decision under s 99 not to direct she be recalled. Indeed it seems to me that the decision made by the Judge was open to her.
25 R v Sikulei [2008] NZCA 577 at [31]–[34].
26 At [34].
27 R v T HC Christchurch CRI-2007-009-6270, 9 April 2008.
28 R v Ellis (No 15) HC Christchurch T9/93, 27 May 1993.
Adjournment application
[48] The final ground of appeal for the appeal against conviction related to an adjournment application that was declined by the District Court. On the morning of the last day of the trial an application was made by Mr Stevens to adjourn the trial by one day. The adjournment was advanced to enable two further potential witnesses to be called by the defence, Mr Corey Miller and his partner Ms Bella Kingi. Counsel advised that they had not been able to locate Mr Miller until the day of the application, and that he would not be able to attend the Court that day. In addition the application was made to pursue enquiries in relation to an alleged stop at a petrol station in Levin that had been referred to in Mr Stevens’ evidence, particularly in relation to the prospect of CCTV footage.
[49]The Judge declined the application in ruling number three. She held:29
[5] I am not satisfied it is in the interests of justice to adjourn this trial to enable those potential witnesses to be called. There has been considerable delay in reaching this trial for various reasons already. I am not satisfied the evidence these witnesses could give, especially as it only … relates to one charge, is of such potential significance that an adjournment is warranted for them to be located and summonsed. Indeed, on the evidence I have heard, there is no real indication the evidence they could give would be of significance in relation to the events of 26 February.
[50] She also indicated that a more relevant witness to this alleged offending would be Mr Stevens’ brother rather than Mr Miller. In relation to the CCTV footage she said it was unlikely that the footage from the petrol station would still be available some two years later.
[51] Ms Hall contended that an adjournment overnight so that the trial finished on the Friday, rather than the Thursday, should not have been declined. These were witnesses of potential significance to Mr Stevens’ defence and the adjournment was not a lengthy one.
[52] In relation to the enquiries concerning the petrol station, they were only of peripheral significance, and would not have justified an adjournment. It seems likely that the Judge was right about the likely availability of the CCTV footage. None has
29 R v Stevens [2019] NZDC 19927.
been made available on appeal. It is true that the Judge herself raised with Mr Stevens whether the petrol station in Shannon could have been more natural place for him to go when questioning him about his version of events. But these matters were still peripheral to the main issues. As Ms Mildenhall argued it was Mr Stevens who had introduced the question of whether he had stopped at the petrol station in his own evidence. This was not an issue that emerged by surprise from other evidence.
[53] The application to adjourn to allow further witnesses to be called for the defendant had more substance. The proposed evidence concerned the incident summarised at paragraph [5] of the sentencing notes.30 It was only an adjournment for a day. But at that stage it would not have been known to the Judge what evidence the suggested witnesses might give. That does not appear to have been explained in any detail. As the Judge said, it related to only one of the charges. On the basis of what the Court was told, it did not appear to be evidence of significance.
[54] A description of the evidence that Mr Miller might have given has now been provided in the form of a record of an interview he gave with a private investigator in October this year. After being read paragraph [5] of the sentencing notes and being asked for his recollection Mr Miller said:
Yes. I do remember he was in the car. He was leaning in the car.
The car door was open.
Eru was outside (that’s his brother).
I came out and I could see that Isaac was angry at the time. I ended up grabbing him out and pulling him out of the car.
That is true, he was trying to get his two dollar coins. I actually pulled him out of the car.
I had my partner with me, that’s Bella, and we ended up grabbing him because the neighbours next door said they were going to ring the cops.
I grabbed him and I threw him in my truck. I got him out of there.
30 R v Stevens, above n 2, at [6].
[55] Whilst I accept that this evidence could be said to be consistent with Mr Stevens’ version of events, it is not evidence that is inconsistent with the Court’s findings. Mr Miller does not say that paragraph [5] of the sentencing decision was wrong, or could not have happened. He did later say that he did not see Mr Stevens strike the complainant. But the above passage suggests Mr Miller was pulling him out of the car because the neighbours wanted to call the police, so something must have occurred to cause them to want to do that. I accept this would have been relevant evidence, but it was not necessarily exculpatory.
[56] Since the hearing of the appeal Ms Hall has submitted a copy of a signed statement of Ms Bella Kingi. It is a fuller statement and is more clearly evidence that is inconsistent with the complainant’s version of events, and consistent with Mr Stevens evidence. In particular it suggests that there was no violence towards the complainant as she contended. Had it been available at the time it could have been significant. There is no information before me to explain why this information is only available now more than a year after the trial. Neither do I have information that this evidence would have been available had the overnight adjournment been granted.
[57] In any event given the application made at the time, and the basis for it, I do not agree there has been a miscarriage of justice for a failure to adjourn the trial. It was not clear what evidence the witnesses would give, and it would not have been certain that they would even show up given that Mr Miller had not been able to be located until the day the application was made. It did not have the appearance of reliable and significant evidence.
[58] This would have been a difficult issue for the Judge, but given what she was presented with I accept the decision not to adjourn was reasonably open to her. With hindsight it may have been better to adjourn to the following morning. But given the application made to her I accept the decision she made was open to her, and I also accept that no miscarriage of justice resulted as a consequence.
Cumulative effect
[59] I have also considered the appellant’s grounds of appeal in a cumulative sense, particularly as there were shortcomings in the Court’s judgment, and other matters
where a different approach could have been adopted. Ms Hall contended that matters had gone wrong in a number of respects, the overall effect was that Mr Stevens had not had a fair trial.
[60] Whilst I accept that there are issues that could have been dealt with differently, I do not accept that there has been a miscarriage of justice, or an unfair trial. Although I did not have the advantage of seeing and hearing the complainant’s evidence or Mr Stevens’ evidence, I have considered the formal record. My conclusion is that it was plainly open to the trial Judge to assess the credibility and reliability of the evidence of the complainant and Mr Stevens in the way that she did. I am satisfied that the charges were proved to the required standard.
[61]For these reasons the appeal against conviction is dismissed.
Appeal against sentence
[62] Mr Stevens was sentenced to 10 years four months’ imprisonment, and to a minimum period of imprisonment of five years and two months. When doing so the Judge observed that direct comparison with other cases was problematic, and that it was a question of evaluating Mr Stevens offending in its particular context.31 That point is frequently made in relation to cases of family violence.
[63] As the Judge observed, the precise methodology to be adopted for offending involving a series of significant offences committed over a period of time can be debated. The more important question is the ultimate end sentence rather than how it is reached.32 She noted that the Crown had suggested a starting point of 14 years’ imprisonment, and defence counsel submitted it should be 12 years’ imprisonment.
[64] She ultimately accepted the defence submission of a starting point of 12 years. She grouped various offences together and then adopted starting points for each of the groups of charges leading to an overall starting point of 18 and a half years’ imprisonment which she adjusted to 12 years on the basis of totality.
31 R v Stevens, above n 2, at [24].
32 At [23].
[65] On appeal Ms Hall contends that an overall starting point of nine years’ imprisonment should have been adopted.
[66] I accept Ms Mildenhall’s argument, however, that the starting point was within range. The first point is that the starting point on each of the categories of offences was appropriate. The Judge first assessed the sexual violation by unlawful sexual connection charge, and concluded that the case fitted at the top of band one or the bottom of band two of the range set out in R v AM.33 I agree that a starting point of four and a half years’ imprisonment was appropriate on that basis. She then identified a starting point of four and a half years for the Rangitikei Street incident and subsequent drive down to Wellington based on R v Taueki and Nuku v R.34 Again given the level of violence and the threats of violence that would appear to be appropriate. She then adopted a starting point of three and a half years’ imprisonment for the charge involving the repeated hitting of the complainant’s head on the floor causing a lack of consciousness. Again that seems appropriate. Finally she has adopted a further uplift of four years’ imprisonment for the other offending, including the strangulation offences, and a two year uplift for the charge of attempting to pervert the course of justice.
[67] So the starting point on each of the relevant charges was within the range set by the relevant guideline judgments. The only real issue that could be taken with the analysis is whether the totality adjustment has been significant enough, and whether the starting point was excessive for the offending overall. It is noteworthy that the ultimate starting point the Judge adopted was that proposed by defence counsel. But that does not mean that it was appropriate.
[68] The difficulty with suggesting that a greater totality adjustment should have been allowed is the nature and extent of Mr Stevens’ offending over an extended period of time. He has exposed the complainant to significant acts of violence, cruelty and callousness on a number of occasions. In terms of the purposes of sentencing the concepts of accountability and denunciation are of central significance. A totality
33 At [25]–[26]; R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
34 At [27]–[28]; R v Taueki [2005] 3 NZLR 372, [2005] NZCA 174; and Nuku v R [2012] NZCA
584, [2013] 2 NZLR 39.
adjustment was needed to ensure the cumulative effect of the sentence did not become out of proportion. But equally the adjustment should not be made in a manner that undermines the need to reflect the individual significance of each of the very serious offences.
[69] So whilst I agree that the sentence imposed might be said to be towards the higher end, I accept that the approach was open to the Judge. The starting point was not above the available range.
[70] I note that the Judge then referred to Mr Stevens’ previous offending and that an uplift to the starting point may have been justifiable for that reason, but that the better course was to deal with that issue through the minimum period of imprisonment. It would have been unusual for a Judge to increase the starting point because of prior convictions having just decreased it for totality. I also agree that the minimum period of imprisonment is directed to a different issue. But given that the Judge did not adjust the sentence because of these factors there was no error resulting in the sentence being manifestly excessive.
[71] Ms Hall also challenged the discounts that the Judge then gave for personal mitigating factors. The Judge held:
[36] I turn now to consider any discounts for mitigating features. You are 39 years of age. I have received a helpful psychological assessment report completed as a part of your assessment for ACC counselling. It details an incredibly sad background of hardship, deprivation and abuse in your childhood. You were the victim of sexual abuse from a very early age and this continued through to your first years in prison as a teenager. Your wider whānau was involved in heaving drinking, the gang culture and drug abuse. Your mother was physically abusive. You have little knowledge of your father or his whānau. You started using drugs before you were a teenager and you were first imprisoned at 17.
[37] You are on prescribed medication for anxiety and depression and you have attempted suicide in your younger years. You have little in the way of family support. You told the pre-sentence report writer that while you have written to your mother and your sister many times while you have been on remand, you think that your whānau has probably disowned you because of your offending. Prison is a lonely place for you.
[38] The other information I have suggests that you are in the early stages of addressing your issues, which is important because until you come to terms with your own trauma and the post-traumatic stress disorder that has arisen as a result of your own trauma, you will not be able to benefit from specialist
treatment to address your violent offending. It is a real sign of hope as I see it that you have completed a number of counselling sessions and are motivated to continue with this.
[72] The factors put forward by Mr Stevens were significant ones, and plainly needed to be reflected in the sentence. But the Judge did so. She allowed a 14 month discount on the starting point, a discount of approximately 10 per cent. She also allowed a further discount of six months for the guilty plea on three charges he admitted prior to trial.
[73] Again whilst a higher discount could have been given this approach is within range. I am not prepared to accept that it involves any error of principle, or resulted in a sentence that was manifestly excessive.
[74] The final aspect of the sentencing appeal is a challenge to the minimum period of imprisonment imposed by the Judge. As Ms Hall submitted, the imposition of a minimum period of imprisonment should not be routine or arbitrary. In R v Brown the Court of Appeal said:35
[32] It must be a matter for judicial judgment whether the “sufficiently serious” threshold is crossed. Generally this will involve identifying aspects that set the particular offending apart. Any attempt to list possible features that might qualify would unduly fetter the sentencing discretion. The Judge must review the circumstances as a whole and apply the statutory test. The central consideration must be culpability which necessarily is increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences. This last factor may be important in cases involving major drug dealing. We do not consider the overall assessment need be constrained by the particular charge brought in respect of the conduct concerned; for example in cases of serious violence against the person the assessment of culpability should be in relation to conduct of that kind and not limited only to conduct giving rise to charges for precisely the same offence.
[75] Ms Hall argued that the kind of rigorous analysis this contemplated had not been undertaken by the Judge. The Judge held:
[43] The Crown urges me to impose a minimum period of imprisonment. I may only do so if I am satisfied that a non-parole period of one third is not sufficient to hold you accountable, to denounce the conduct you are involved in, to deter you and others from this type of offending and or to protect the community from you.
35 R v Brown [2002] 3 NZLR 670 (CA).
[44] I am going to impose a minimum period of imprisonment of 50 percent of the total of 10 years and four months’ imprisonment. So, that is a minimum period of five years and two months before you will be eligible for parole. I am satisfied that the normal one third would not be sufficient to mark the purposes and principles of sentencing I have just referred to.
[45] I disagree with your counsel’s submission that the community does not require protection from you. Your victim is a member of the community and in future you may well be in other relationships with other women and until you have received and learnt from specialist treatment to address your violence, you pose a very high risk of similar violent offending.
[76] The reference to the sentencing principles arising from the case can be understood in the context of the unusual callousness of this offending. In addition the specific reference to the protection of the community, and particularly the victim was a highly relevant factor. They are features of this case that appropriately trigger a minimum period of imprisonment. For those reasons I do not accept that the Judge erred in imposing such a period.
[77]For these reasons I also dismiss the appeal against sentence.
Conclusion
[78] For the above reasons the appeals against conviction and sentence are dismissed.
Cooke J
Solicitors:
E A Hall, Wellington for the Appellant
Crown Law Office, Wellington for the Respondent
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