Taniwha v R

[2016] NZSC 123

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 115/2015
[2016] NZSC 123

BETWEEN	LYONEL MANUREWA TE POU TANIWHA Appellant
AND	THE QUEEN Respondent

Hearing:

7 June 2016

Court:

Elias CJ, William Young, Glazebrook, Arnold and OʼRegan JJ

Counsel:

N P Chisnall and M F Laracy for Appellant
M D Downs and F G Biggs for Respondent

Judgment:

8 September 2016

Reissued:

12 September 2016

Effective date

of Judgment:

8 September 2016

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS
(Given by Arnold J)

Table of Contents

Para
Introduction	[1]
Background	[2]
The towel incident	[5]
Police safety order incident	[12]
The issues	[17]
Demeanour	[18]
The Judge’s instructions to the jury	[21]
Evaluation	[26]
Police safety order	[59]
Decision	[68]

Introduction

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.[1]  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.[2]  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.

Background

[1]See, for example, Aldert Vrij Detecting Lies and Deceit: Pitfalls and Opportunities (2nd ed, John Wiley & Sons, Chichester (Eng), 2008).

[2]See, for example, Eiten Elaad “Effects of Feedback on the Overestimated Capacity to Detect Lies and the Underestimated Ability to Tell Lies” (2003) 17 Appl Cognit Psychol 349.

1. The appellant, Mr Taniwha, was convicted following a jury trial before Judge O’Driscoll of six of 12 counts involving physical and sexual violence against the complainant, with whom he was in a relationship for a few months.  The Crown alleged that soon after the relationship began, Mr Taniwha began to act in a possessive and controlling way towards the complainant and later became abusive and violent towards her.  Ultimately the police became involved, which led to the charges.  Mr Taniwha denied the charges.  While acknowledging that there were arguments and fights during their relationship, he said that…