Te Heu Heu v Police

[2014] NZHC 329

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2014-163-000001 [2014] NZHC 329

JOHN LORENZO TE HEU HEU

v

NEW ZEALAND POLICE

Hearing:                   28 February 2014

Appearances:           I Farquhar for the Appellant

C Macklin for the Crown

Judgment:                28 February 2014

[ORAL] JUDGMENT OF WYLIE J

TE HEU HEU v POLICE [2014] NZHC 329 [28 February 2014]

Introduction

[1]      The appellant, Mr Te Heu Heu, appeals his conviction on a charge of indecent assault on a child under 12 years’ of age, laid under s 132(1) of the Crimes Act 1961. The conviction was entered following a defended hearing before Judge C J Maguire in the District Court at Taupo on 13 August 2013.

[2]      Mr Te Heu Heu   was   sentenced   to   five   months’   home   detention   on

20November 2013.

[3]      The notice of appeal is dated 25 November 2013.   It asserts that Judge Maguire  erred  in  his  assessment  of  the  evidence,  and  that  there  has  been  a miscarriage of justice.

[4]      The information is dated 14 March 2013.  The relevant appeal provisions in the Criminal  Procedure Act  2011  were not  in  force  at  that  time,  and  this  case therefore falls to be determined pursuant to the provisions which were then in force.1

The applicable provisions were in the Summary Proceedings Act 1957.  Section 115 conferred a right of appeal to this Court where the District Court determined any information and convicted a defendant.  The appeal proceeded by way of re-hearing2 and this Court had the power to hear and determine the appeal, and make such orders in relation to it as it thinks fit.3

The Information

[5]      The information charges that Mr Te Heu Heu indecently assaulted an eight year-old male child sometime between 15 January 1988 and 31 December 1988.

[6]      The police, in the summary of facts, allege that Mr Te Heu Heu went to an address in Turangi with a friend, and that the child was living there at the time with his parents and siblings.  It was said that Mr Te Heu Heu and his friend drank alcohol

at the address, and socialised with the child’s mother.

1      Criminal Procedure Act 2011, s 397(1)(b).

2      Ibid, s 119.

3      Ibid, s 121(1).

[7]      It is then asserted that the child went to sleep on a sofa bed in the lounge, and that sometime later in the evening, Mr Te Heu Heu laid down on the sofa bed next to the child.  It is alleged that Mr Te Heu Heu grabbed the child’s hand and placed it on his penis.  It is also alleged that Mr Te Heu Heu’s penis was erect, and that he moved the victim’s hand up and down his penis.

[8]      According to the summary of facts, the victim woke up to find his hand on Mr Te Heu Heu’s penis and he was too frightened to speak or move.  It is alleged that Mr Te Heu Heu told the child to be quiet, and that it was “their little secret”.  It is then asserted that Mr Te Heu Heu masturbated himself until he ejaculated, and that he then left the house and drove away from the address in a car.

[9]      Mr Te Heu Heu was approximately 23 years’ old at the time of the alleged offending.

District Court Hearing – the Judge’s Decision

[10]     As noted, the hearing took place on 13 August 2013.   The child, now an adult, gave evidence.  So did Mr Te Heu Heu.  There were two further witnesses, but their evidence did not, in my view, significantly advance matters.

[11]     There were a very large number of issues in dispute between the complainant and Mr Te Heu Heu.  I note the following by way of example only:

(a)       The complainant said that Mr Te Heu Heu had a ponytail at the time.

Mr Te Heu Heu denied this, and said that, at the time, he had “short back and sides”.

(b)      The complainant said that a fire was lit in the lounge during the evening,  and  that  he  stared  into  it  during  the  alleged  offending. Mr Te Heu Heu said that it was hot during the day, but cold at night.

(c)      The complainant says that Mr Te Heu Heu and his friend, a woman known as “Punchy”, together with the complainant’s mother, were

drinking in the kitchen, and that they were loud and rowdy.  He said that Mr Te Heu Heu was drinking from a beer bottle.  Mr Te Heu Heu said that Punchy and the complainant’s mother were drinking and chatting in the kitchen, but that they were quiet.  He says that he did not have a drink, because he was already severely hung over, and was not feeling well.

(d)      The complainant says that Mr Te Heu Heu came into the lounge and indecently assaulted him on the sofa.  Mr Te Heu Heu denies this.  He says that he went to sleep in the kitchen while Punchy and the complainant’s mother talked and drank beer.

(e)      The complainant is adamant that the offender was Mr Te Heu Heu.

He said that he had not met him before, but that he knew his name was “Johnny”.  He said that he first met Mr Te Heu Heu on the day of the offending.   Mr Te Heu Heu accepts that he went to the house in which the complainant was living on one occasion, but he says that the complainant was not there on that occasion.

(f)      The complainant says that Mr Te Heu Heu left  in the same car in which he arrived shortly after the alleged offending.  Mr Te Heu Heu says that the car belonged to Punchy, and that she had already gone when he woke up.  He says that he walked home.

[12]     Judge Maguire gave an oral judgment.  He stated as follows:

Suffice to say that in a general way, both the complainant and the defendant, I am satisfied beyond reasonable doubt, are describing the same occasion but as I will come to, there are marked differences in what their respective recollections are.

[13]     The Judge then set out the evidence of both parties, in particular, that of the complainant, in some detail.  He noted that as the evidence developed:

The  defence  appeared  to  be  that  this  did  not  happen,  that  either  the

[complainant] dreamt it, but in any event it did not happen.

[14]     The Judge considered that there was evidence of prior consistent statements, and stated that the complainant’s wife told the Court of hearing the allegation some

10 or so years ago, within the first two years of their relationship.

[15]     The Judge, after commenting on a number of areas of factual dispute between the complainant and Mr Te Heu Heu, stated as follows:

What we are dealing with is what occurred some 25 years’ ago.   This is classically an allegation of historical sexual assault.  What is common to the two versions, if you like, from the complainant and the defendant is that this was the one and only occasion that the defendant went there, that the defendant arrived in daylight and left in the dark.  So whatever happened, if it happened, assuredly happened on this occasion…

What is in the nature of historic allegations and memories of what occurred this length of time down the track, some 25 years down the track, is that there will be elements of what occurred that may be seriously doubted and challenged.  What the complainant is adamant about is that he woke up and that his hand was on the defendant’s penis.  I reject as preposterous that the complainant, an eight year-old boy, placed his hand on the defendant’s erect penis.  I accept that whenever challenged on whether his hand was on the defendant’s penis, the complainant was adamant that it was.  Yes, children dream out things and so on, but this vivid evidence from the complainant as to the essence of the offence was unshaken.  Yes, he may well, as he did, say in the video interview that he did not know where the defendant’s hands were, but given that I accept the essence of what the complainant has said, that his hand was on the erect penis of the complainant, I infer that the defendant put it there, and indeed held it there.   I am further beyond reasonable doubt.

Accordingly, I find the charge proved.

[16]     This is the full extent of the Judge’s reasoning recorded in his oral judgment.

The Appeal

[17]     Mr Farquhar, appearing for Mr Te Heu Heu, submitted as follows:

(a)      That the Judge gave no or insufficient reasons for accepting the complainant’s  evidence  as  proving  the  charge  beyond  reasonable doubt;

(b)      That the Judge did not reject Mr Te Heu Heu’s version of events, his denials, or his defences;

(c)      That  even  if  there  was  an  implicit  rejection  of  Mr Te Heu Heu’s version of events, that the Judge provided no or insufficient reasons for that rejection;

(d)      That the Judge did not adequately consider the issue of identification of Mr Te Heu Heu.

[18]     Mr Macklin, for the Crown, submitted as follows:

(a)      Identification  was  not  a  central  issue  in  the  case,  and  that  the uncontested evidence established that the appellant was correctly identified;

(b)      If the Crown is wrong in that regard, and identification was in issue, that Judge Maguire’s decision was inadequate to properly address the issue;

(c)      Whatever  deficiencies  there  were  in  Judge  Maguire’s  reasoning (whether on identification or otherwise), there was sufficient evidence to prove the charge beyond reasonable doubt;

(d)      The  appeal  should  therefore  be  dismissed,  and  the  appellant’s conviction should stand.

Analysis

[19]     I start, by observing that this was clearly a case where credibility was in issue.  Indeed, it was central to both parties.

[20]     Further, in my judgment, identification was in issue.  The complainant, in his evidence-in-chief, said that the person who assaulted him had “sort of longish hair”. He was cross-examined about this.  He repeated his assertion that his assailant had longish hair.  He said that it was tied up in a ponytail.  He was not sure of the length of the ponytail.  When it was put to him that Mr Te Heu Heu would say that at the

time he came to the house he had short hair, the complainant accepted that he was not certain whether his assailant had a ponytail.  He then said that people in those days had ponytails, and that he had assumed that his assailant had a ponytail.  The questions continued, and it was put to the complainant that he had said that his assailant had longish hair, and that he had said that he had a ponytail.  He was asked expressly whether his assailant had a ponytail or not.

[21]     After considering the issue, the complainant firmed his evidence up, and said that his assailant did have a ponytail.  It was then put to him that if Mr Te Heu Heu said that at the time he visited the house, he did not have a ponytail, and if that evidence was true, then Mr Te Heu Heu could not be his assailant.  The complainant did not directly answer that question.

[22]     None of these various issues were canvassed by the Judge in his decision. Rather,  as  I  have  noted,  the  Judge  assumed  that  both  the  complainant  and Mr Te Heu Heu were dealing in their evidence with the same incident.

[23]   The Judge does not appear to have considered the possibility that the complainant may have conflated two people and two different visits to the house, and led himself to believe that the indecent assault happened on one occasion, when it may have happened on another.

[24]     Where identification is in issue, the law is quite clear.   Section 46A of the

Evidence Act 2006 provides as follows:

46A     Caution regarding reliance on identification evidence

If evidence of identity is given against the defendant and the defendant disputes that evidence, the court must bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.

[25]     This section came into effect as from 1 July 2013.  It was in place at the time of the hearing.   Further, and in any event, the section replicated the provisions contained in what was s 67A of the Summary Proceedings Act.

[26]     While a Judge need not explicitly warn himself or herself in a Judge-alone trial, or refer to the relevant provisions, it must be clear from a Judge’s decision that:

(a)       the risk of mistaken identity was identified; and

(b)      the Judge proceeded with caution, and took the possibility of mistake into consideration.4

[27]     It is simply not clear from Judge Maguire’s decision whether he was alive to these issues.   That this was the case was responsibly accepted by Mr Macklin, appearing for the Crown.

[28]     In   relation   to   credibility,   the   Judge   appears   to   have   preferred   the complainant’s version of events on the key issue – whether or not the indecent assault took place.   The only express reason the Judge gives for preferring the complainant’s evidence is that the complainant was adamant as to his version of events.  The Judge records, but does not deal with, different versions advanced by the complainant in his vive voce evidence given in Court, and in an earlier DVD interview given to the police in July 2013.  The Judge did refer to evidence of a prior consistent statement.  It is not clear what weight (if any) he put on that statement. For my part, I do not consider that there was any adequate evidence of a prior consistent statement.  It is clear from the transcript that an order was made excluding all witnesses, except for the officer in charge.   When the complainant’s wife was called, the following exchange occurred:

Q.        Now in light of today’s proceedings and you know a bit about today don’t you?

A.       Yes.

Q.       When did you first find out about this?

A.        I can’t give an exact date or year but it was definitely in the early stages of our relationship.  We have been together for 13 years and I would say it was the first three, within the first three years maybe the first two even we’d been together.

[29]     The exchange was taken no further by the prosecuting sergeant, and when, a little later, the witness said that the complainant would make comments when he saw a   certain   person,   there   was   an   objection   by   Mr   Farquhar,   on   behalf   of Mr Te Heu Heu, and the questioning went no further.  There is simply insufficient in that evidence to amount to a prior consistent statement.  Insofar as I can glean from the transcript, either the objection was allowed, or the prosecuting sergeant decided not to  pursue the matter.    Certainly,  the prosecuting sergeant  did  not  go  on  to question the complainant’s wife in any further detail in relation to the issue.

[30]     Further, the Judge gives no reason for rejecting Mr Te Heu Heu’s version of events.   Indeed, he does not even expressly address Mr Te Heu Heu’s version of events in his reasoning, and its rejection is only implicit.

[31]    In my judgment, the Judge’s reasons set out in his oral judgment were inadequate and insufficient to deal with the matters which were before him.

[32]     The leading authority in this country on the giving of reasons by Judges sitting  in  the  summary  jurisdiction  is  the  judgment  of  the  Court  of Appeal  in

R v Awatere.5

The Court noted as follows:

The real issue is to assess what is practically possible against the ideal, and an appellate Court must be careful to keep in mind the multiplicity of individual cases of varying kinds which are being dealt with in the District Courts up and down the country.

It is not surprising that different conclusions have been reached in the common law countries although a common denominator is clearly there to be discerned: that it must always be good judicial practice to provide a reasoned decision. And by and large in this country that practice is observed. Furthermore the matter takes on added importance whenever the decision to be given will be subject to a statutory right of appeal. But of course it is right to recognise that those occasions when an appellate Court is faced with the kind of problem under discussion in this judgment are fortunately comparatively rare and when the difficulty has arisen the cause has been pressure of time upon the Court. In addition in terms of the Summary Proceedings Act 1957 there are statutory safeguards which surround the criminal jurisdiction of the District Court. All general appeals are to be by way of rehearing and if necessary by taking viva voce evidence including further evidence in a proper case: s 119. And in terms of s 131 it is possible for the High Court to return the case for rehearing in the District Court itself.

a problem may arise where a party wishes to bring an appeal limited to a question of law. In the absence of reasons it could be difficult to formulate the necessary case stated for submission to the District Court Judge or to Justices. There is however power in the High Court to make an order requiring a case to be stated by the Judge or Justices or have a case stated sent back for amendment: s 109(3) and 111. And it would seem that a defendant could always exercise the general right of appeal if he had been unable to obtain reasons following a request.

In the end the matter of providing reasons for a decision and the extent to which they might need to be spelled out are matters of practice for domestic determination by this Court in the New Zealand environment. And when the infrequency of the problem is weighed against the volume of cases coming before the District Court, together with the present powers of the High Court to ensure that justice will be achieved by one means or another, we have concluded that it would be both undesirable and impractical to lay down an inflexible rule of universal application that would result in what Laskin CJC has described as an "indiscriminate requirement of reasons". Nonetheless, Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion. Indeed failure to follow that normal judicial practice might well jeopardise the decision on appeal. It could do so because a potential appellant might seem to be unduly prejudiced or it could do so by leaving it open for the appellate  Court to infer that there are in fact  no adequate reasons to support it and so in either case act more readily than otherwise it would have done to order a rehearing or to rehearing or to rehear the case itself or to make an order that proper and adequate reasons are to be supplied or even to quash the verdict outright.

[33]     The following day, a differently constituted Court of Appeal followed these observations,6  albeit noting that there is no inflexible obligation on a Judge at first instance to give reasons for his or her decision.  In a dissenting judgment, Somers J expressed  the  view  that  it  is  implicit  in  the  rights  of  appeal  conferred  by  the Summary Proceedings Act, that the Tribunal, at first instance, is under a duty to make such findings, or express such reasons or conclusions, as in the particular

circumstances are necessary to render the right of appeal effective.

[34]     In a later case, R v Jefferies,7 the Court of Appeal observed that the giving of reasons in summary proceedings is always highly desirable.   It acknowledged that

what is appropriate must depend on the nature of the case and the issues involved.

6      R v MacPherson [1982] 1 NZLR 650.

7      R v Jefferies [1999] 3 NZLR 211.

[35]     The courts have continued to discuss the issue over the years.  The general desirability of the giving of reasons has been repeatedly acknowledged.  I refer, for example, to Lewis v Wilson and Horton Limited.8   It has been held that where credibility is in issue, the presiding Judge should ordinarily give reasons for rejecting the evidence of a witness whose evidence is material to the outcome.9   Further, it has been held that a presiding Judge should expressly state his or her acceptance, as well as rejection, of the relevant evidence of competing witnesses.  Brief reasons for the acceptance and rejection will suffice, but if there is nothing in the Judge’s ruling, the conviction  can,  and  often  will,  be  set  aside  for  breaching  the  rules  of  natural justice.10    Unless reasons are given, a Court sitting on appeal cannot be confident that  the  Judge  below  has  applied  his  or  her  mind  to  the  relevant  issues,  and considered the defence case properly.  There is no sufficient basis for any conviction entered, and the Court will have to consider whether the conviction should be set aside as being unsafe.11

[36]     Applying  these  authorities  in  the  present  case,  I  am  satisfied  that  the conviction is unsafe.  There is nothing to suggest that Judge Maguire gave himself the appropriate warnings in relation to identification. There are no adequate reasons to explain why the Judge preferred the complainant’s evidence, and there are no reasons at all to explain why the Judge rejected Mr Te Heu Heu’s evidence.  It is not clear from the Judge’s judgment how he applied the burden of proof.   I am not persuaded, from the reasons contained in the oral judgment, that the Judge has properly applied his mind to the matters which were in issue before him. I cannot be confident  that  the  conviction  he  entered  against  Mr Te Heu Heu  was  safe  and accordingly, I set the conviction aside.

[37]     The Crown, in its written submissions, enjoined me to find that whatever deficiencies  there  were  in  Judge  Maguire’s  reasoning,  that  there  was  sufficient

evidence to prove the charge beyond reasonable doubt.

8      Lewis v Wilson and Horton Limited [2000] 3 NZLR 546 at [79]-[87].

9      Takarei v Police HC Hamilton AP77/02, 22 November 2002 at [14]; Taiatini v Police HC Rotorua CIV-2005-463-59, 7 October 2005 at [12] and [15]; Wieblitz v Police HC Auckland CRI

2009-404-124, 6 July 2009 at [18]–[22]; Lundquist v Police HC Auckland AP67/99, 13 August

1999; and see R v Atkinson [1984] 2 NZLR 381 (CA) at 383.

10     Kapa v Police (1989) 4 CRNZ 306.

11     Major v Police HC Tauranga AP33/95, 16 April 1996.

[38]     I am not prepared to follow that course.  I have read the transcript carefully. There are very real problems in preferring the evidence of one witness over another simply from the material contained in the transcript.  I did not have the opportunity to observe the witnesses, or how they reacted to cross-examination.  I have not seen the DVD interview given by the complainant, or even a transcript of it.  There is no proper basis on which I could reach any conclusion as to credibility.

[39]     Mr Macklin, in his written submissions, asserted that this case has to be determined  in  this  Court,  and  that  there  is  no  provision  for  remitting  it  to  the District Court.   I discussed this issue with Mr Macklin in the course of the hearing and he accepted that his written submissions were in error.

[40]     Section 121(1) of the Summary Proceedings Act gave this Court power to make such orders in relation to an appeal as it thought fit.  The section went on to state that in the case of an appeal against conviction, the Court could confirm the conviction, set it aside, or amend it.   It was, however, clear that those express provisions did not limit the generality of the power conferred by s 121(1).  Further, the Court had express power to remit the matter to the District Court, pursuant to s 131 of the Summary Proceedings Act.   The availability of these various powers was noted and confirmed by the Court of Appeal in R v Jefferies.12

[41]     In my judgment, the only appropriate course is to order a re-hearing in the District Court.  Were I to simply set the conviction aside and not remit the matter to the District Court, there would be a potential unfairness to the complainant.  He is clearly aggrieved by what he says occurred in 1988 and he wants to put it behind him.  Were I to deal with this matter myself, by ordering a re-hearing in this Court, there would be a potential unfairness to Mr Te Heu Heu.  He would be denied a right of appeal.

[42]     Accordingly, it seems to me that the fairest course, from the perspective of both parties, is to set the conviction aside and remit the matter to the District Court

for re-hearing.

12     Jefferies, above n 7, at [18]–[21].

[43]     For these reasons, the conviction entered by Judge Maguire is set aside.  The

matter is remitted to the District Court to be re-heard.

Wylie J