T v Police HC Rotorua CRI-2006-463-69

[2006] NZHC 1532

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2006-463-69

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 December 2006

Appearances: Mr S Hewson for appellant

Ms S Christensen for respondent

Judgment:      7 December 2006 at 2.10 pm

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

Solicitors:

Hewson & Co, P O Box 10798, Wellington

Crown Solicitor, Tauranga

T V NZ POLICE HC ROT CRI-2006-463-69  7 December 2006

[1]      On 29 June 2006 Mr T   was convicted by Judge Adeane in the District Court at Opotiki on a charge of threatening to injure Jessica Anne Wiseman with intent to frighten her.   He was sentenced on the same day to undertake 100 hours of community work.

[2]      Mr T   now appeals to this Court against both conviction and sentence. In order to understand the issues raised on appeal it is necessary to briefly set out the factual background to the charge that Mr T   faced in the District Court.

Factual background

[3]      In January 2006 the complainant, Ms Wiseman, was the owner (with her mother) of a rental property situated at 39 Otara Road, Opotiki.   That property was rented to Mr T  , who also goes under the name of Cyrus Christian.

[4]      On 30 January 2006 Ms Wiseman decided to inspect the property.   She took with her a builder, Mr Nash, to check whether any maintenance needed to be carried out on it.

[5]      When Ms Wiseman and Mr Nash arrived at the property, they walked around the outside and noticed some work that needed to be carried out on the windows. When they subsequently went into the house, however, they found that Mr T   had carried out alterations to it without first obtaining the landlord’s consent as required by the tenancy agreement.    A discussion about these alterations quickly turned into an argument.    The prosecution case was that, during the course of the argument, Mr T   threatened Ms Wiseman and Mr Nash that he would “smash their heads in” with a crowbar that was sitting in the room.   This led to the charge that Mr T   faced in the District Court.

[6]      At the hearing evidence was given for the prosecution by Ms Wiseman and Mr Nash.   They both confirmed that Mr T   had made the threats, although they differed slightly as to exactly what occurred during the argument.   Mr T   gave evidence in his own defence and also called his partner, Ms Susan Poole.     Mr

T   said that he never made the threats that were the subject of the charge.   Ms

Poole’s evidence was also to the same effect.

[7]      At the conclusion of the hearing Judge Adeane delivered an oral decision in which he said that he preferred the evidence of the prosecution witnesses to the point where he accepted them on the material matters beyond reasonable doubt.   He was therefore satisfied that Mr T   had made the threats, and that the only reasonable inference was that they were intended to frighten the persons to whom they were made.     On that basis he held the charge to have been proved to the required standard, and he convicted Mr Tasssell.

Grounds of appeal

[8]      As refined by Mr Hewson at the hearing, the sole ground of appeal is that Mr T   was denied the right to a fair trial in the District Court.    That right is, of course, affirmed by s 25(a) of the Bill of Rights Act 1990.   Mr Hewson submitted that the breach of the right to a fair trial had occurred as a result of the following matters:

a)        The  fact  that  Mr  T    was  denied  the  opportunity  to  properly question Ms Poole during her evidence in chief.

b)The fact that the prosecution had failed to call as a witness at the hearing the officer who arrested Mr T  .

[9]      Mr Hewson relied on the decision of the Supreme Court in Condon v R (2006) NZSC 62. In that case the Supreme Court considered in detail the manner in which the right to a fair hearing applies in respect of an unrepresented defendant.

[10]     Mr Hewson did not seek to attach any significance to the circumstances in which Mr T   had decided to represent himself.    He submitted, however, that that decision created flow-on effects, and that it contributed to Mr T   not receiving a fair hearing.

Was Mr T   denied the opportunity to properly question Ms Poole during her evidence in chief?

[11]     When Mr T   called Ms Poole to give evidence, the Judge asked her some introductory questions.     These were designed to obtain her details and place of residence.   At the conclusion of these, the Judge posed the following question to Mr T  :

OK would you like to lead the questioning or shall we just leave Ms Poole to give us her recollection of events?

Thank you?

[12]     At this point the transcript shows that Ms Poole began describing the events that occurred on 30 January 2006 in narrative form.  Although it does not record that Mr T   consented to Ms Poole giving her evidence in that way, I infer from the fact that he did not interrupt her narrative that he agreed that he would not lead her evidence himself.

[13]     Ms Poole’s evidence continued in narrative form for a full page of transcript. At that point the Judge asked her two short questions.    She then carried on for a short time giving her evidence in narrative form.   The transcript then reveals that the Judge began asking her questions.   It records these as follows:

…

When was it finished off?   Before we left the premises, before the eviction was all put into place.

Therefore [sic] the daughter came to visit?  No after.

So the daughter came to find that a hole had been cut in the wall?   Oh, but it was tidy and it was with permission from the land lady.

But it hadn’t been finished?   No it hadn’t had the panelling around it. Was the hole cut in the wall?   Um –

MR TASSELL:   Can I ask a question Your Honour?

THE COURT:    Not just right at the moment.    I’m asking the witness? Um, well it was finished in the sense that it wasn’t painted, it wasn’t sanded. It was actually a doorway that had previously been there.

…

[14]     From this point on the Judge effectively led Ms Poole’s evidence in chief by asking her questions designed to elicit her version of the events that occurred in the house.   Thereafter Ms Poole did not revert to giving her evidence in narrative form as she had done up until this point.

[15]     When the Judge had finished asking Ms Poole questions, there is nothing in the  transcript  to  suggest  that  Mr  T    was  given  the  opportunity  to  ask  the question that he had sought to ask earlier in her evidence, or indeed to ask any further questions at all.   Instead, the prosecutor immediately began to cross-examine Ms Poole

[16]     Mr Hewson submitted that the manner in which the Judge effectively took over the leading of Ms Poole’s evidence meant that Mr T   was unable to ask questions that he considered to be material to the outcome of the case.   In particular, he was denied the opportunity to ask Ms Poole whether there was a crowbar in the room as the prosecution witnesses had stated.   Mr Hewson’s instructions are to the effect that Ms Poole would have told the Court that Ms Wiseman and Mr Nash were wrong, and that there was no crowbar in the room.   Mr Hewson submitted that this was a material aspect of the case, because the threats that formed the subject of the charge related specifically to a crowbar.

[17]     Moreover, Ms Wiseman and Mr Nash had given differing evidence about the location of the crowbar.   Ms Wiseman said that the crowbar was “resting up against the  side  of  the  fireplace  surrounding”,  but  Mr  Nash  recalled  that  “there  was  a crowbar in the corner of the kitchen”.   Mr Hewson submitted that, if Mr T   had been able to gain the support of evidence from Ms Poole on this point, the Judge may well have regarded the evidence of the prosecution witnesses with a great deal more caution.   He contended that the fact that Mr T   was denied the opportunity to question Ms Poole regarding the crowbar was important, particularly given the fact that the case necessarily turned on the credibility of Ms Wiseman and Mr Nash.

[18]     The issue of whether or not the crowbar was present in the room at the time that the threats were allegedly made was not raised directly by the prosecutor during

his cross-examination of Ms Poole.    The only reference to the crowbar was in his opening question, which was as follows:

Did you hear the defendant threaten Ms Wiseman with a crowbar, did he threaten to use his crowbar?

I did not.   I did not.

[19]     It can be seen that the prosecutor effectively asked Ms Poole two questions. The first related to whether or not she had heard Mr T   threaten Ms Wiseman with a crowbar.   The second was whether he threatened to use “his” crowbar.   The second question therefore proceeded on the basis that Mr T   did in fact have a crowbar available to him at the time that he made the threats.   Ms Poole’s response makes it clear, however, that she was only answering the  first  question.     She confirmed by her answer that she had not heard Mr T   threatening Ms Wiseman with a crowbar.     She did not, as I read her answer, respond to the prosecutor’s second question at all.

[20]     The   prosecutor’s   questions   obviously   provided   Mr   T     with   the opportunity in re-examination to ask Ms Poole whether there was a crowbar in the room.    Notwithstanding this opportunity, Mr T   elected not to ask Ms Poole any questions at all in re-re-examination.

[21]     As  both  counsel  emphasised,  the  question  of  whether  or  not  Mr  T   received a fair hearing must be viewed having regard to the hearing overall.     It would be artificial to isolate one or two passages from a hearing that spans 38 pages of transcript.

[22]     Nevertheless, when I view the manner in which Ms Poole’s evidence in chief came to be given, I am left with several concerns.

[23]     First, it must have been obvious to the Judge at the time that Mr T   sought leave to ask a question of Ms Poole that he had a question that he wished to put to her.   I can understand why the Judge may not have wanted Mr T   to ask a question at that particular point, because he was in the middle of asking Ms Poole a series of questions.   Nevertheless, the Judge ought to have allowed Mr T   to ask

his question at the earliest convenient opportunity, and preferably before the Judge moved on to ask Ms Poole questions about a different topic.

[24]     At the very least, the Judge ought to have permitted Mr T   to ask Ms Poole supplementary questions once he (the Judge) had completed asking her questions during her evidence in chief.    If the transcript is correct, however, Mr T   was never at any point asked whether he wished to ask questions of Ms Poole before the point at which the prosecutor began his cross-examination.   The Judge’s failure to permit Mr T   to ask questions of his own witness amounted, in my view, to a significant departure from the requirements of a fair hearing.

[25]     I do not consider, either, that Mr T  ’s failure to ask questions in re- examination should be held against him.    By that stage he had been denied, for a significant  period,  the  opportunity  of  asking  Ms  Poole  any  questions  at  all. Moreover, some of the questions that the Judge asked Ms Poole demonstrate that he had reservations about the manner in which she was giving her evidence.     An example of this is the following exchange between the Judge and Ms Poole:

…

Here we are back in the kitchen?   Right.

Could we stay there without any self-serving digressions and just tell me what happened?   Okay.

Because I get suspicious of the genuineness of a witness who is busily blowing smoke around everything they say?   Oh Okay.

Instead of stick right to the issue, what happened in the kitchen?   …

[26]     Mr T   was a lay litigant who clearly had no real knowledge of court procedure.   The manner in which the Judge had rebuffed his earlier attempt to ask a question, coupled with the way in which he led Ms Poole’s evidence, may well have been  sufficient  to  persuade  Mr  T    that  there  was  no  point  in  asking  any questions in re-examination.   The end result of this remarkable series of events was that Mr T   did not receive the opportunity to ask his own witness a solitary question.   That in itself must indicate that Mr T   did not receive a fair hearing.

[27]     Moreover, the crucial issue in the hearing in the District Court was that of credibility.     The Judge was required to determine whether the evidence of the prosecution witnesses satisfied him beyond reasonable doubt that Mr T   had made the threats that formed the subject of the information.     In reaching that conclusion, he needed to determine whether the evidence of Mr T   and Ms Poole was sufficient to raise a reasonable possibility that the threats had not been made.    The issue of the existence of the crowbar may well have assumed some importance in that context had Mr T   been able to properly explore it with Ms Poole.  As matters transpired, however, that did not occur.

[28]     I do not under-estimate the pressure under which the hearing was obviously conducted.    It was no doubt heard on a busy fixtures day in a circuit Court.    The flavour that comes through from the transcript is that the Judge was conscious of the time and the need to conclude the hearing in an efficient manner.   Even taking these matters into account, however, it was important that Mr T   be given the opportunity to properly put his case.    I do not consider that that opportunity was given.

[29]     Given the Judge’s ultimate findings, and in particular the fact that he clearly preferred the evidence of the prosecution witnesses, I also accept that it is unlikely that the ultimate outcome would have been any different had Mr T   been permitted to ask Ms Poole further questions.   That, however, is not the point.   The point is whether or not Mr T   received a fair hearing.    For the reasons that I have given, I have reached the conclusion that he did not.

[30]     I therefore conclude that the appeal must be allowed on this point.

Failure to call the arresting officer

[31]     It is clear that the prosecution initially intended to call Constable Atkinson, the officer who arrested Mr T  , as its final witness.    Ultimately he was not called to give evidence, no doubt as a result of the following discussion between the Judge and the prosecutor:

… Sergeant, any further Police evidence?

SERGEANT RANKIN:    Sir there was just the evidence of the officer in charge, but he simply made the arrest.    The defendant made absolutely no comments.

THE COURT:  What day did he make the arrest?

SERGEANT RANKIN:   Not till March.    He can’t help in respect of the date of the offence Sir, so I don’t propose to call him subject to a direction from you.

THE COURT:  That’s the Police case? SERGEANT RANKIN:   Yes Sir. PROSECUTION CASE CONCLUDES

[32]     Prior to the hearing Mr T   had received Constable Atkinson’s brief of evidence.     The constable had arrested Mr T   on 27 March 2006, some two months after the events that gave rise to the charge before the Court.    Nothing in Constable Atkinson’s evidence appears to have been contentious, and it would not have assisted the Judge to determine the central issue of credibility.   For that reason it is difficult to see how Mr T   was prejudiced by the fact that he was not called as a witness.

[33]     Mr  Hewson  submitted,  however,  that  Mr  T    was  prejudiced  by this unanticipated turn of events.   The prejudice arose because Mr T   had intended to ask the constable questions about a conversation that occurred at the time that Mr T   was arrested.   In particular, Mr T   wanted to ask the constable whether he, Mr T  , had offered the constable the opportunity to search his house at that time in order to try to locate a crowbar.   The constable evidently declined that offer.

[34]     I do not consider, however, that this evidence would have advanced Mr T  ’s cause.    The fact that the constable declined Mr T  ’s offer to permit him to search the premises would not, in my view, have contributed in any way at all to the defence that Mr T   was advancing at the hearing.   The fact that no search was ever carried out means that Mr T   could not show what would have been discovered if the constable had taken him up on his offer.   And, even if Mr T   had been able to establish that there was no crowbar at the house on 27 March, that fact would not have assisted the Court in determining whether one had been there some 8 weeks earlier.

[35]     This ground of appeal could not succeed.

Result

[36]     The appeal is allowed.

[37]     The conviction and sentence imposed upon Mr T   on 29 June 2006 are quashed.   The proceeding is remitted to the District Court at Opotiki for re-hearing.

Lang J