Tafunaina v Police
[2015] NZHC 2144
•4 September 2015
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI-2015-476-04 [2015] NZHC 2144
BETWEEN IAFETA TAFUNAINA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 September 2015
(By way of audio-visual link)
Appearances:
D J Brown for Appellant
M Beattie for RespondentJudgment:
4 September 2015
JUDGMENT OF MANDER J
[1] Mr Iafeta Tafunaina appeals against his conviction on a charge of male assaults female, found proven by Judge Couch, after a defended hearing in the Timaru District Court. Mr Tafunaina submits that Judge Couch erred in its assessment of the evidence, resulting in a miscarriage of justice.
Background facts
[2] In December last year, Mr Tafunaina and the alleged victim Puaraua Paiaauia visited Mr Tafunaina’s wife, Veaofeao Tafunaina, at her house, where she lived with their children. Mr Tafunaina remains married to his wife, however, for approximately two years he has been in a relationship with Ms Paiaauia, and ceased living with his wife approximately a year prior to this incident. The reason for Mr Tafunaina and Ms Paiaauia visiting was because he wanted to live in the house with his wife and their children, together with Ms Paiaauia. It appears Mrs Tafunaina was willing to accommodate that arrangement, albeit reluctantly in the case of Ms Paiaauia. For her part, Ms Paiaauia did not want to enter into this
living arrangement.
TAFUNAINA v NEW ZEALAND POLICE [2015] NZHC 2144 [4 September 2015]
[3] After their meeting, Mr Tafunaina and Ms Paiaauia left the house via the front door. It was the prosecution’s case that, in the proximity of the front door steps, Mr Tafunaina assaulted Ms Paiaauia.
The evidence
[4] The prosecution called three witnesses, being Ms Paiaauia, Mrs Tafunaina and the officer in charge of the case, Constable Caird. The two women gave contrasting accounts of what had occurred on the outside steps. Ms Paiaauia denied that any assault had taken place. Her evidence was that when she and Mr Tafunaina went outside, he attracted her attention by pulling on the back of her cardigan, and that they both sat down on the steps. Ms Paiaauia said she was quite happy with him doing that in order for them to discuss their differences. She denied that Mr Tafunaina punched or assaulted her.
[5] A contrasting account was provided by Mrs Tafunaina. Her evidence was that following a discussion with her husband in the kitchen of the house, he and Ms Paiaauia left through the front door, which was closed behind them. She said she went to the living room for a short period, after which she heard shouting and screaming coming from outside the front door, and in particular from Ms Paiaauia. When she opened the front door, her evidence was that she saw Mr Tafunaina punch Ms Paiaauia from behind on the upper part of the right side of her head. Following this, Mr Tafunaina pulled Ms Paiaauia to the ground.
[6] Constable Caird’s evidence relayed to the Court Mr Tafunaina’s denial that
any assault had taken place.
The District Court decision
[7] Judge Couch correctly identified the issue before him as being whether he could be satisfied beyond reasonable doubt that the assault had occurred. Clearly, if he accepted the evidence of Mrs Tafunaina, and rejected that of Ms Paiaauia and Mr Tafunaina’s denial, the essential ingredients of the offence of male assaults female would have been established.
[8] Essentially, Judge Couch accepted the evidence of Mrs Tafunaina, and as a consequence found Mr Tafunaina guilty of the charge.
The appellant’s challenge
[9] Mr Tafunaina on appeal submits that Judge Couch could not have reached such a conclusion on the evidence.
[10] He argued the police tendered contradictory evidence as to whether an assault had occurred, and that to prefer one witness’s evidence over the other, in the absence of compelling reasons, amounted to speculation. In that regard, Mr Tafunaina sought to rely upon the decision of Eichelbaum CJ in Newson v Police.1 That case is authority for the proposition that where inferences of equal weight are open to a fact- finder it is impermissible to prefer one over the other. Mr Tafunaina sought to
submit that where evidence of two witnesses is adduced by the police, neither of which is impeached as a result of being declared hostile, and offered by the police as evidence of truth, the Court was not in a position to choose between the two.
[11] Mr Tafunaina further submitted that Mrs Tafunaina’s evidence was inconsistent. He referred to the cross-examination of that witness, where she accepted there were inconsistencies between how she had described the order of events to police in a notebook statement and that which she related to the Court in evidence. Mrs Tafunaina ultimately adopted the content of her earlier statement as being correct.
[12] Mr Tafunaina was critical of Judge Couch’s approach to this evidence and the
reasoning for why he preferred the evidence of Mrs Tafunaina.
Approach to the appeal
[13] Section 229 of the Criminal Procedure Act 2011 (the Act) provides a convicted person with a right of appeal against conviction. An appeal Court must
allow a first appeal against conviction if satisfied that in the case of a Judge alone
1 Newson v Police HC Wellington AP71/92, 27 May 1992. See also R v Puttick (1985) 1 CRNZ
644 (CA).
trial the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.2 Section 232(4) of the Act defines the reference “miscarriage of justice” as meaning:
… any error, irregularity, or occurrence in, or in relation to, or affecting the trial that –
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial, or a trial that was a nullity.
[14] This approach to appeals in the case of a Judge alone trial under the Act reflects that previously taken to appeals against conviction following a defended hearing in the summary jurisdiction which proceeded by way of rehearing.
[15] The appeal Court, however, must be mindful of the advantages the trial Court had in seeing and hearing the witnesses give their evidence, and being able to assess the honesty and reliability of witnesses. It follows therefore that when dealing with an appeal against a decision where the Judges’ findings involved an assessment of the witnesses’ credibility, some deference should be given to that assessment.3
Analysis
[16] Mr Tafunaina’s appeal rests on the proposition that the Court could not reasonably choose between the diametrically opposed and irreconcilable accounts of the same incident by two eye witnesses. Normally, the prosecution would not adduce the evidence of two witnesses who give such contrasting accounts of what they witnessed where the only available explanation is that one is deliberately giving a false account, as must be the situation in the present case.
[17] Should the prosecution have a well-founded concern that a witness it is proposing to call is not a witness of truth, it may choose not to call that witness. There is then an obligation to make that witness available to the defence. There are
other situations where the prosecution may be obliged to call the witness,
2 Criminal Procedure Act 2011, s 232(2)(b).
3 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]; R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [83]–[84]; Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [15].
notwithstanding reservations as to the accuracy of the account the witness is intending to provide.
[18] This appeal must be dealt with on the record of evidence adduced at trial, and I proceed to do so on that basis. I note, however, that the prosecuting sergeant had obvious concerns regarding the narrative which Ms Paiaauia was providing to the Court. He sought to have the witness refresh her memory from a prior statement. Judge Couch did not allow the prosecuting sergeant to follow that course. The Court took the view that it was not a situation where the witness needed to have her memory refreshed because she was giving evidence of her recollection. Judge Couch warned the prosecutor of the risk of impugning his own witness, and that she was not a hostile witness.
[19] Section 90 of the Evidence Act 2006 governs the use of documents when questioning witnesses, or refreshing memory. Section 90(4) provides that if a witness proposes to consult a document while giving evidence that document must be shown to every other party, and where the purpose of consulting the document is to refresh the witness’s memory, the process provided for in ss (5) is to be followed. That provision provides that, with the prior leave of the Judge, a witness may consult a document made or adopted at a time when his or her memory was fresh. Seeking to have a witness refresh his or her memory from a prior statement is a usual
prerequisite to having the witness declared hostile.4
[20] Section 94 of the Evidence Act provides that a party who calls a witness may, if the Judge determines the witness is hostile and gives permission, cross-examine the witness to the extent authorised by the Judge. Often this will involve the cross- examination of the witness on a prior statement. The term “hostile” in relation to a witness is defined in s 4 of the Evidence Act. Insofar as it is relevant to the present situation, a hostile witness will include one that gives evidence that is inconsistent with a statement made by the witness in a manner that exhibits, or appears to exhibit,
an intention to be unhelpful to the party who called the witness.
4 Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612.
[21] It follows therefore that if the prosecuting sergeant was of the view that the evidence Ms Paiaauia was giving about no assault having taken place was at odds with her previous statement, he was entitled to have asked the Judge for permission to show the witness her prior statement for the purposes of refreshing her memory. Indeed, if the prosecution was aware that Ms Paiaauia had previously made a statement disclosing an assault, and considered a declaration of hostility may need to be sought, arguably, it was required, as a preliminary step, to explore with the witness whether she had honestly forgotten, and provide her with the opportunity to have her memory jogged by reading her statement. In the absence of that being an explanation for her failure to remember the assault, the prosecution would have a proper basis to make application to the Court to have the witness declared hostile, as that is now defined under the Evidence Act.
[22] Alternatively, the prosecution could have immediately sought to have the witness declared hostile, it having become clear that the witness was giving evidence inconsistent with her statement, in a manner that appeared to exhibit an intention to be unhelpful to the party, namely the prosecution, which was calling her. As already noted, however, it may be preferable before ruling on such an application to have afforded the witness the opportunity to have their memory refreshed, in the manner I have previously outlined, before moving to the next stage of seeking to have the witness declared hostile.
[23] It needs to be remembered that a witness’s prior inconsistent statement is admissible as evidence in its own right, and is not hearsay. Being an inconsistent statement, it does not infringe s 35 of the Evidence Act, which renders previous consistent statements of witnesses inadmissible.
[24] In the present case, if the police possessed a statement from Ms Paiaauia that was inconsistent with her oral evidence, and which described an assault, the prosecutor could have produced that statement as evidence, either through Ms Paiaauia or the officer in charge. It is obviously preferable if the maker of the statement, being the witness now giving inconsistent evidence, is provided with the opportunity of commenting on his or her previous inconsistent statement before it is produced as evidence in its own right. The Judge can then take any explanation by
the witness about the inconsistency into account in weighing that evidence. All this is traversed by William Young J in his judgment in the Supreme Court decision of Hannigan v R.5
[25] It must be stressed that these observations are something of an aside, because the only evidence that was allowed to be adduced by Judge Couch was Ms Paiaauia’s oral account that no assault took place, and it is on that basis that this appeal must be decided.
[26] As already noted, Mr Tafunaina’s appeal rests on the submission that the Judge was not entitled to choose between the competing accounts given by the two witnesses called by the prosecution. I reject that submission. The analogy sought to be made with the prohibition on drawing an inference where an alternative inference is equally available on the evidence, is not valid. The drawing of reasonable inferences from proven facts is an entirely different exercise from assessing conflicting evidence sourced from different witnesses. In the former situation concerning inferences there is no dispute regarding the evidence, rather what is in issue is what can safely be inferred from that body of uncontested information. As a matter of logic, if two inferences of equal weight are open, then it would be unsafe to draw one inference in preference to the other.
[27] Judge Couch was presented with a not uncommon situation faced by fact- finders, whether they be Judges sitting alone or juries. What was evident was that the witnesses’ evidence could not be reconciled, and that the only conclusion was that one was giving false evidence.
[28] Judge Couch described Mrs Tafunaina’s evidence as “extended and detailed”. The Judge expressly considered the main challenge to her evidence, which centred on the cross-examination which highlighted an inconsistency in her evidence regarding the order of events in which the assault had taken place in comparison to her previous statement. In her prior statement, the witness had said that the assault
occurred after Ms Paiaauia had been pulled to the ground, while, in her evidence in
5 Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612.
Court, her narrative included the punch having occurred whilst Mr Tafunaina and
Ms Paiaauia were standing.
[29] Judge Couch directly addressed that issue, and concluded that he was satisfied that Mrs Tafunaina’s evidence was honest, and that her mistake in relation to the sequence of events was understandable, upon which he placed little weight. Judge Couch, having considered all the evidence, rejected Ms Paiaauia’s evidence that there was no assault. In large part, he had reservations regarding her motivation to give the evidence that she did, and that she did not come to the Court as an impartial witness, being pregnant with Mr Tafunaina’s child, and had a strong interest in their relationship continuing.
[30] Judge Couch also directly addressed the challenge made in the course of the evidence of Mrs Tafunaina’s reliability, namely that she had made up her evidence because of her hostility to the husband’s relatively recent relationship. Judge Couch observed that her answers to such propositions were worthy of acceptance. The Judge noted that Mrs Tafunaina had conceded that she was still not happy about Mr Tafunaina having left her at the time these events had occurred, but she had now reconciled herself to that situation, and wanted Mr Tafunaina to be involved in the life of their children and remain her friend. Judge Couch was entitled to accept Mrs Tafunaina’s answers to that challenge to her partiality as a witness, and to view her as reliable and honest.
[31] Ultimately, the trial Judge had to be satisfied beyond reasonable doubt that the prosecution had proved the assault had occurred. It does not follow from the simple fact that two eye witnesses are in direct conflict in relation to that issue that such a conclusion cannot be reached. It is the function of the Court, if it can, to assess that evidence and make decisions regarding the reliability and weight to be given to the respective witnesses accounts.
[32] It is apparent from Judge Couch’s decision that he did not believe the evidence of Ms Paiaauia, who he considered had a motive to lie. In contrast, he assessed Mrs Tafunaina’s evidence as being comprehensive and detailed. She had stood up to the scrutiny of cross-examination when inconsistencies between her oral
evidence and a prior statement had been put to her. The Judge concluded that Mrs Tafunaina had no motivation to fabricate her evidence and, having reviewed her responses to the proposition of potential animus towards her estranged husband as put to her in cross-examination, concluded that Mrs Tafunaina was an honest and reliable witness.
[33] Accordingly, I have concluded the Judge did not err in his assessment of the evidence, and that no miscarriage of justice arises. It follows therefore that the appeal is dismissed.
Solicitors:
Gresson Dorman and Co, Timaru
D J Brown, Timaru
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