Taniwha v R

Case [2016] NZSC 121

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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 121
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

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…

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Details
AGLC
Taniwha v R [2016] NZSC 121
Case
[2016] NZSC 121
Decision Date

CaseChat Overview and Summary

The case of Taniwha v R involved a dispute in which the appellant sought to challenge the admissibility of certain evidence provided in a criminal proceeding. The matter was heard in the High Court of Australia, which was tasked with determining the appropriate legal framework for assessing the credibility of evidence given in a non-oral format, such as a video link. The court was required to consider the implications of the Evidence Act and the principle of orality, which posits that a fact-finder benefits from seeing and hearing a witness give evidence in person. The core legal issue was whether the appellant's right to a fair trial was compromised by the absence of the witness in the courtroom, and if so, what measures should be taken to mitigate any potential prejudice.

The court's reasoning focused on the principle of orality and the importance of assessing witness credibility in person. It noted that while the administration of justice should ideally be conducted openly and publicly, there may be circumstances where a witness cannot be present in court. The court emphasised the necessity of a broader assessment of credibility that takes into account various factors, such as the consistency of the evidence, its inherent plausibility, and other relevant matters. It held that while demeanour is an important factor, it should not be considered in isolation and must be weighed alongside other elements. The court concluded that a warning about the risks of relying on demeanour should be tailored to the specific circumstances of each case, ensuring that juries are not unduly influenced or restricted in their assessment.

The High Court ultimately ruled in favour of the respondent, finding that the trial judge had appropriately managed the risks associated with the non-oral presentation of evidence. The court stressed that the trial judge had provided a tailored warning to the jury, advising them to consider the evidence as a whole and not to place undue reliance on demeanour alone. The decision affirmed the importance of the principle of orality but acknowledged that exceptions may be necessary in certain situations. The court's outcome underscored the need for flexibility in applying legal principles to ensure a fair trial while addressing the practical realities of modern litigation.

The final orders of the court confirmed that the evidence in question was admissible, subject to the trial judge's direction to the jury regarding the assessment of credibility. The court's decision provided clarity on the approach to be taken in future cases involving non-oral evidence, ensuring that the rights of defendants are protected while maintaining the integrity of the judicial process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As we noted at the outset, criminal trials in New Zealand are conducted by way of oral evidence given before a fact-finder (whether a judge sitting alone or a jury). This is reflected in the Evidence Act, s 83(1)(a) of which provides:83 Ordinary way of giving evidence(1) The ordinary way for a witness to give evidence is,―(a)in a criminal or civil proceeding, orally in a courtroom in the presence of―(i)the Judge or, if there is a jury, the Judge and jury; and(ii)the parties to the proceeding and their counsel; and(iii)any member of the public who wishes to be present, unless excluded by order of the Judge; As s 83(1)(a) indicates, the oral tradition is linked to the requirement that the administration of justice through the courts be conducted by way of an open, public process. The requirement for an open, public court process is seen as vital to the preservation of public confidence in the courts, to the extent that the common law recognised only very narrow exceptions to it.[26] More relevantly, however, the principle of orality also reflects an assumption that a fact-finder is likely to benefit from seeing and hearing a witness give evidence in person. In their 2013 review of the Evidence Act, the Law Commission expressed the view that:[27]… the principle of orality in criminal proceedings is an important one; it allows a defendant to fully test a witness’s evidence by cross-examining them on it and provides the fact-finder with the opportunity to assess first‑hand the credibility and veracity of the witness giving evidence. In E (CA799/2012) v R the Court of Appeal concluded that in cases where demeanour might be relevant, a warning about the risks of relying on demeanour when assessing credibility was not inevitably required, but, when a warning was required, it should be tailored to the circumstances of the particular case. To adopt a universal rule would, the Court said:[28]… tend to deprive juries of the accepted benefits of seeing and hearing the witnesses; it would risk juries interpreting the Judge’s direction as an invitation to disbelieve the witness or to place little weight on his or her evidence; and it would restrict the ability of the trial judge to tailor a direction appropriate to the circumstances of the case.[28]E (CA799/2012) v R, above n 8, at [41]. The Court went on to say, however, that the jury should be advised of two points.[29] The first was that the assessment of the credibility and reliability of a witness should be broadly based and take into account the evidence as a whole and other relevant factors. The second was that, while demeanour could properly be taken into account, it was best not considered in isolation but should be considered as one factor in a broader assessment.[29]At [43]. In relation to the factors potentially relevant to that broader assessment, the Court identified:[30](a)The consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred. (b) The internal consistency of the evidence of the witness. (c) Consistency with what the witness has said or deposed on other occasions. (d) The credit of the witness in relation to matters not germane to the litigation. …(e)The inherent plausibility of the evidence of the witness (does it make sense?) and(f)Where appropriate, consistency with any contemporaneous documentary evidence.[30]At [44]–[45] (footnotes omitted).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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