Te Heu Heu v Police HC Nelson CRI-2011-442-000006

[2011] NZHC 689

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-442-000006

BETWEEN  THOMAS HONE TE HEU HEU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 June 2011

Counsel:         L S B Acland for Appellant

H J Boyd-Wilson for Respondent

Judgment:      30 June 2011

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 30th day of June 2011.

RESERVED JUDGMENT OF GENDALL J

[1]      The appellant was convicted of assault in the District Court at Nelson on

10 February 2011 and ordered to pay reparation of $450, at the rate of $10 per week

and witnesses’ expenses of $54.  He appeals against his conviction and sentence.

[2]      The grounds advanced in support of the appeal are:

the  decision  of  District  Court  Judge  A A  Zohrab  was  unreasonable because he had expressed uncertainty or doubt as to prosecution evidence only  to  later  convict  on  the  basis  that  he  said  he  was  satisfied  the evidence established the offence beyond reasonable doubt.   It is argued

that it was not open to him to be so satisfied;

there was apparent bias on the part of Judge Zohrab because he took on

an adversarial role during the hearing and made comments displaying to

TE HEU HEU V NEW ZEALAND POLICE HC NEL CRI-2011-442-000006 30 June 2011

an impartial observer apparent bias.   Further, he should have recused himself because of prior knowledge of the appellant through earlier appearances in the Nelson District Court.

Background

[3]      The police case was that the appellant assaulted Mr Darren  Fearnley on

27 June 2010 in a car park adjacent to the Nelson market.  The prosecution evidence from Mr Fearnley was that he and his partner were leaving the market when an argument and verbal altercation took place between the appellant’s ex-wife (Toni) and Mr Fearnley and his partner.  His evidence was that the appellant followed his ex-wife and intervened in the argument.   That woman was told to leave, but she opened the front passenger door of the car, in which the appellant had become seated.   The appellant said to his ex-wife to leave and said “let’s go”, and before doing so punched Mr Fearnley once through the open door, hitting him in the mouth.

Mr Fearnley’s evidence was:1

I was arguing with Toni.  He tried to do a bit of a sneaky one when I wasn’t looking.    Punched  me  through  the  opening  of  the  door  on  the,  on  the opposite side as Toni, and hit me in the mouth and that, and at the same time grabbed Toni and went.

...

He’s moved in, he’s taken a, a swing, a clean punch to me while I was not looking at him, I was arguing with his wife, and basically, ... tried to be a bit of a sneaky so no one could see, ... [and hit me in] the mouth and the nose.

[4]      His evidence was that his mouth became swollen and he was bleeding from the nose.

[5]      Mr Fearnley’s partner, Ms Sasha Bourne, gave evidence generally confirming that a verbal altercation had taken place between Toni and Mr Fearnley, with abuse being directed at him.  The car door was opened by Toni beside where Mr Fearnley was seated and she saw the appellant in front of the vehicle.  She left her driver’s

seat to go around and shut the passenger door.   Her evidence was that Toni then

1      New Zealand Police v Teheu-Heu DC Nelson CRI 2010-042-2702, 10 February 2011, Notes of

Evidence at 8.

again opened the door.  For a second time she got out of the car, walked behind it and then saw:2

I saw [the appellant’s] arm go into the car and, ... then he came around behind, and they both sort of stepped back away from the car as I shut the door.

She was not able to see whether a blow was struck but that she then shut the door, telling her partner to remain there and went to the appellant and told him to “fuck off” to which he said “make me”.  Her evidence was that after she got back into the car she saw Mr Fearnley had a bleeding nose with blood “pouring” down his face. The prosecution evidence was that Mr Fearnley and his partner then went to the police station to make a complaint.

[6]      The defence was simply that a punch did not occur.   The appellant gave evidence as to a history of antagonism with Mr Fearnley and Toni.  He said that he heard the argument between Toni and Mr Fearnley and walked over towards the car, noticing that she opened and reopened doors.  He denied striking Mr Fearnley in the

face. When asked if he reached into the vehicle his evidence was:3

A.        No, I did not reach.  I, I reached in to pull Toni out.

Q.       And did you reach to pull Toni out through the V of the vehicle door, or did you reach to pull Toni out around the side of the door?

A.       I would say around the side of the door, not over the top of the door. Q.     So your evidence is, ... at no time did you reach through the V of the

door towards Darren Fearnley?

A.        No way.

Q.       And did you strike Darren Fearnley in the face? A. No, I did not.

[7]      His evidence was that he had a medical condition, which prevented him from throwing a punch with his right arm and he also gave evidence that he could not

throw a punch with his left arm.

2      At 20.

3      At 31.

[8]      The next witness for the defence was Toni Te Heu Heu.  She gave evidence of an altercation involving verbal abuse between herself and Mr Fearnley and that she was yelling abuse at him for about three to four minutes.  She felt intimidated by Mr Fearnley’s partner and remembered the appellant saying to her “let it go”, “dragging me away, and ... they left.”  She said she was upset and angry because she felt threatened and that she did not see the appellant at any stage reach into the car or lean into the car and punch Mr Fearnley.

[9]      A further defence witness was Ms Warren, a relative of the appellant.  She described being with Toni for an hour and a half to two hours at the market;  she did not notice any tension;  they were having a “happy day” and Toni did not talk to Mr Fearnley at all.  She said she saw Mr Fearnley walking around the market, but did not see any verbal altercation between Toni and Mr Fearnley.  She did not see the appellant punch Mr Fearnley.  She said she saw Mr Fearnley and his partner getting

into their car:4

and then they took off.  There was no, nothing.  There was no conflict going on between the two, between the two people at all.

....

Well, there was no fist thrown through the car, there was no yelling.

[10]     At the completion of the police case Judge Zohrab said to the prosecution sergeant   that   he   was   considering   giving   him   leave   under   s   98   of   the Summary Proceedings Act 1957 to call evidence after the closure of the prosecution case, but did not know whether that was possible.  He inquired whether the police officer who took the complaint from Mr Fearnley was available, no doubt because if so he would have been able to give evidence to confirm whether or not the complainant then had a bleeding nose.  Judge Zohrab said that if that witness was

available it would:5

In my view it is going to be in the interests of justice because we have got two competing cases here.  One side is perjuring itself silly - ... or the other side is ... And that would assist me in resolving the matter and also making any recommendations as well.

4      At 52 – 53.

5      New Zealand Police v Teheu-Heu DC Nelson CRI 2010-042-2702, 10 February 2011, Legal Discussion, at 1.01pm.

[11]     The case was adjourned until 2.15pm when the prosecuting sergeant advised the Court that it did not wish to call that witness because, it seems according to remarks of Judge Zohrab in his decision,6  the sergeant was not able to contact that witness.

Discussion

[12]     I am not at all sure that after the informant and defendant have called all their evidence it is open to an informant to call further evidence, unless it falls within s 67(4) as evidence adduced “in rebuttal of any evidence given by or on behalf of the defendant”.  Undoubtedly, there is a discretion available to a District Court Judge to allow a witness for an informant to be recalled after the close of the informant’s case if a Judge thinks it is necessary to clarify some of the evidence.  What might have been adduced by another witness, not one who has already given evidence, would not have been in fact rebuttal, but as it happened the witness was unavailable. Whatever  the  evidence  would  have  been,  it  could  not  have  been  classed  as “rebuttal”.  But in any event none was given.  So the prosecution case was neither strengthened nor the defence case weakened.  So the point is immaterial.

[13]     What, however, counsel says is the relevance of the Judge’s remarks, is that they point to him having a doubt at that stage, when all the evidence had been heard. Therefore counsel say, any later finding by Judge Zohrab that the charge was proved beyond reasonable doubt was “perverse and unreasonable”.

[14]     It is necessary to focus on exactly what Judge Zohrab said, and what  it reasonably could have meant.  He had the competing evidence of the complainant and the appellant.  The former said he was struck in the face and left with a bleeding nose.  The appellant denied that that had happened.  No other prosecution or defence witness was able to give direct evidence seeing what, if anything, occurred.  So the Judge’s remarks about “two sides” can only relate to the competing evidence of complainant and appellant.   Obviously, if one was telling the truth and the other deliberately lying, then the latter would be committing perjury.  That has to be the

basis upon which the Judge made his remarks.   But he did not say that he had a

6      New Zealand Police v Teheu-Heu DC Nelson CRI 2010-042-2702, 10 February 2011 at [23].

doubt, or that he was unsure.  He was simply saying that if there existed evidence from a police officer who took the complaint that confirmed the complainant was bleeding, or on the other hand did not give such confirmation, then that would have assisted the Judge in determining whether the charge had been proved beyond reasonable doubt.

[15]     Not having evidence one way or the other from a police officer, the Judge was left to undertake a process of analysing all the evidence that he heard.  He could, and did, accept or reject those parts that he found to be unreliable or not worthy of belief.  It is the orthodox approach adopted by fact-finders (whether Judges sitting alone or a jury) to assist in the process of determining of whether they can be satisfied beyond reasonable doubt on all evidence that the prosecution has proved its case.

[16]     A careful  reading  of  the  oral  judgment  of  Judge  Zohrab  shows  that  he approached the task of assessing the competing evidence in a measured way.   He reminded himself of the “tripartite” situation that a Court or fact-finder will find itself in when an accused person gives or calls evidence.7    He reminded himself of the onus of proof resting upon the prosecution.  Then he first analysed the evidence of the witnesses Mr Fearnley and his partner, Ms Bourne.   Then he went on to

analyse the evidence of the appellant and his two witnesses.  He then had to make his findings of credibility or reliability.  He said of Mr Fearnley:8

There are quite different accounts of what took place. As far as Mr Fearnley is concerned, he gave his evidence in a fairly reasonable fashion.  He did not appear to bear too much in the way of animosity towards either of the Teheu- Heus.   In terms of his description of events, he did not go into an over- amount of detail.  He did not seem to exaggerate what had happened. Whilst it was a punch, it was not a direct connection in his view.  He did not exactly see it coming.

He was adamant, though, that he ended up with a fat lip and a bleeding nose, and matters of that sort.

7 See [5] – [7].

8      At [33] – [34].

[17]     Judge Zohrab referred to the account given by Ms Bourne although not word for word the same, as being supportive of him.   He assessed her in the following way:9

She appeared to me to be not the sort of person who was wanting to exaggerate things.  She did not make any great pronouncements about what she observed.  She was coming round, she says, for the third time to close the door and did not have a direct view of what was going on, because she was at the back of the car, and she says that she saw Mr Teheu-Heu reach through the window.   She did not say that it was any wind-up for a great punch or anything like that.   She could not see what happened.   She was quite clear about that.  The next thing she sees when she gets into the car is that Mr Fearnley has a bleeding nose.

[18]     When he came to analysing the evidence of the appellant and his witnesses the Judge found there were significant differences between them in their evidence and their accounts.  The evidence of Ms Warren he said he put completely to one side because it was in direct contrast to what the appellant and his ex-wife said.  The

Judge then made his crucial findings:10

This is a straight credibility contest.   Given  the inconsistencies and the account of the evidence between Mr and Ms Teheu-Heu, I reject their evidence.   I reject the suggestion that it would not have been possible for him to have punched Mr Fearnley in the manner described because of the sore shoulder ...

... [The appellant’s] account is different in many respects from Ms Teheu- Heu’s account and I find Ms Teheu-Heu’s account certainly to be an understatement or an underplaying of what happened.

The reason, essentially, why I reject their evidence is the real independent witness, and I do not accept for a moment that Ms Bourne has any desire to fabricate what had happened, she bore no animosity towards them, she was a straightforward witness, she gave her evidence in a direct fashion, she was a competent and compelling witness, and so I reject the evidence of Mr and Ms Teheu-Heu.

[19]     Accordingly, the Judge said he was satisfied, looking at the prosecution case

“as a whole”, that an assault was established beyond reasonable doubt.11

[20]     Given the care with which the Judge analysed the evidence and his reasons for accepting and rejecting parts of it, it cannot be said that he erred in his approach.

9 At [37].

10     At [41] – [43].

11 At [44].

What the appellant’s counsel says is that it was “perverse” of the Judge to find the charge proved beyond reasonable doubt when his earlier observation indicated that he had a doubt and he could not determine which of the two versions was correct.  In my view, however, that misstates the position.

[21]     It is often the case in the reasoning process of a fact-finder (Judge or jury), in determining what has been proven to be the facts of a case, that he/she/it will work through  a  reasoning  process  sifting  out  evidence,  and  weighing  it  up  and determining,  in  the  end,  whether  as  a  whole  it  satisfies  the  fact-finder  to  the necessary standard of proof.   The fact-finder may initially start out the reasoning process with some uncertainty.   Yet after undertaking the necessary process of analysing all the evidence, nevertheless ends up having no reasonable doubt and being sure.  Often a jury or Judge may like there to have been some more evidence which would have assisted it in determining a particular issue.  But if it simply does not exist, the fact-finder then undertakes the task of analysing all the evidence that exists, and may eventually, and properly, reach a conclusion that they are satisfied beyond reasonable doubt and are not left unsure with any honest uncertainty.

[22]     If Judge Zohrab had not, in his judgment, given the care that he did to his analysis of the evidence and findings of fact, and reliability and credibility issues, and did not give cogent reasons, there might be some force in the argument of counsel.  But given the manner in which the eventual task was undertaken I reject the submission that the Judge was perverse in finding the charge proven beyond reasonable doubt.   The evidence was sufficient for him to reach that conclusion, depending on his assessment of it, and he gave thorough and proper explanations and reasons for his conclusions.

[23]     As to the submission that the Judge displayed apparent bias.  The grounds of appeal suggest that this arose in part because of interventions by Judge Zohrab in the course of the trial (the grounds say “assisted the prosecution rather than remaining neutral”);  taking on an adversarial role by his invitation to the prosecution to reopen its case;  and his references to “perjury” pointed at the appellant when the Judge said “one side is perjuring itself silly”.   Further, counsel says that the Judge made the

following comments after convicting the appellant support that he was biased.  First, to the prosecuting sergeant:12

if  you  have  a  report  from  the  officer  who  took  the  statement  from Mr Fearnley confirming that he observed injuries, then the police should consider a perjury enquiry. All right?

[24]     And further, when imposing sentence upon the appellant the Judge remarked “I have asked the police to look at their file carefully to see whether or not there should be a perjury inquiry”.13

[25]     In written and oral submissions, counsel did not enlarge upon the claim that there was extensive and improper judicial questioning of witnesses.  The transcript of the hearing does not indicate that was so, and there is nothing in this point. Rather, the thrust of the argument was that the Judge stepped outside his role by seeing whether the prosecution wished to call another witness and by recommending investigation of the perjury allegation.

[26]     This is not a case where it is alleged there is any abuse of process through the Judge instigating that the appellant be charged with perjury, because that has not happened.  What is said is that the Judge should not have appeared to initiate or seek or invite policy inquiries as to perjury.  It is well known that Judges should not have a responsibility to  institute prosecutions.    See  for example,  the speech  of  Lord

Salmon in Director of Public Prosecutors v Humphrys:14

I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a Judge has not and should not appear to have a responsibility for the institution of prosecutions;    nor  has  he  any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not have been brought.

[27]     But it is too much of a leap to say that because a Judge may initiate inquiries or make a complaint of perjury to the police following upon the completion of a hearing, that he was biased during the course of that hearing or that hearing was an

abuse of process. The situation is entirely different.

12     New Zealand Police v Teheu-Heu DC Nelson CRI 2010-042-2702, 10 February 2011, Legal Discussion, at 2.50pm.

13     New Zealand Police v Teheu-Heu DC Nelson CRI 2010-042-2702, 10 February 2011, Sentencing Notes, at [2].

14     Director of Public Prosecutors v Humphrys [1977] AC 1 (HL) at 46.

[28]     Counsel for the appellant relies upon in part the High Court judgment of R v Groube, which was a stay application based upon the concept of abuse of process which was declined.15     The initiation of the charge, there it seems came at the suggestion of a District Court Judge, so it was argued the Judge had a significant measure of responsibility for initiation of the prosecution itself.   Panckhurst J concluded that the factual circumstances indicated the District Court Judge was:16

to some degree responsible for the initiation of the prosecution, or at least that he appeared to be.  But does that actuality, or appearance, so offend this Court’s sense of justice and propriety that the prosecution must be stayed?  I do not think so.  I accept it was unfortunate that the Judge went as far as he did.

[29]     This case is different.  Here Judge Zohrab was not initiating this prosecution, but simply referring the matter or his complaint to the police.  It is argued that those remarks signify bias or antipathy towards the appellant.  There is no impediment to a Judge referring a file or evidence to authorities, whether they be the police, disciplinary professional bodies or other authorities to investigate if the Judge considers there is material which discloses breaches of the law.  It is preferable that remarks about those matters do not come during the course of a hearing.  They may lead, as was the case here, to a defendant taking umbrage and believing the Judge was partial.  But, in the end, however, the issue of bias depends upon an objective assessment of all the circumstances surrounding the hearing and Judge’s comments or actions, if any.  Do all the matters or circumstances individually or collectively, give rise to a reasonable apprehension of bias on the part of a fair-minded lay observer?

[30]   In assessing allegations of alleged judicial bias a two-stage inquiry is necessary.17   First, the actual circumstances must be established which have a direct bearing on a suggestion that the Judge was or may have been seen to be biased;  that is, the identification of whatever it is that might lead a Judge to decide a case other than on its legal and factual merits.   Second, the Court has to ask whether those

circumstances as established might lead a fair-minded lay-observer to reasonably

15     R v Groube HC Christchurch CRI 2007-409-120, 20 August 2007.

16 At [49].

17     Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [62] and [94], affirmed in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3] – [4].

apprehend that the Judge might not bring an impartial mind to the resolution of the case before him or her.

[31]     The fair-minded lay-observer has been given some further attributes.   That observer:18

(a)       is presumed to be intelligent and to view matters objectively;

(b)       is neither complacent nor unduly sensitive or suspicious about what

might influence the Judge’s decision;

(c)      is a non-lawyer but is reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to have given rise to an appearance of bias;

(d)“the sort of person who takes the trouble to read the text of an article as well as the headlines”;

(e)      can be taken to know that the Judge has taken a judicial oath, and will not likely accept that the Judge has put aside that oath;

(f)       can be taken to know that the Judge has an obligation to sit on any case allocated to the Judge unless grounds for disqualification exist;

(g)is not to be confused with the person who is alleging the bias (the reactions of the appellant are not controlling).

[32]     It  is  obvious  that  the  appellant  in  the  present  case  has  a  belief  that

Judge Zohrab was influenced by bias, but his belief is not the test.

[33]     What  then  are  the  actual  circumstances  which  it  said  give  rise  to  the suggestion  of  bias  in  this  case?  Apart  from  the  earlier  references  to  possible

“perjury” counsel for the appellant puts forward the later reference to perjury and

18     See Muir at [95] – [96]; Saxmere at [5] – [10].

recommending an investigation of that allegation;   and that the Judge had a prior knowledge of the appellant through his appearance before the Judge on previous occasions on criminal matters in the District Court.

[34]     Counsel reasoned that an “apparent bias may go some way to explain how and why the Judge made his leap of reasoning from a finely balanced case to a definitive find of guilt”.  I reject that submission as speculative.  I have already dealt with, and disposed of, the argument that the earlier comments meant that the Judge had a doubt, and could not therefore have reached his conclusions beyond reasonable doubt.   The point that is relevant in a Court determining whether bias allegations have traction is whether the fair-minded lay-observer might reasonably apprehend that the Judge might not have brought an impartial mind to the case.

[35]     The  Judge  reached  the  conclusion  that  the  appellant’s  evidence  was  not believed by him.   He knew the approach he had to follow when dealing with the defence evidence, and specifically said so.  He rejected the appellant’s evidence after the careful reasoning process that he undertook.  His later suggestions to the police regarding investigating perjury whilst unfortunate cannot be elevated to the position that they affected the Judge in reaching his conclusion as to guilt beyond reasonable doubt.

[36]     Where an allegation rests on prior adverse judicial knowledge of an accused, the Court of Appeal said in R v Cullen:19

A second matter raised was that the Judge should have disqualified herself from hearing the case at all.  As to this we will accept the facts as set out in a letter  from  the  accused’s  counsel.    The  trial  was  due  to  commence  on

10 February 1992 but the accused failed to turn up.   He presented himself before the Judge during the afternoon explaining that he had had to walk all

the way from Henderson to the Otahuhu District Court where the case was to be heard.   However, the accused was unaware that a police car had been

dispatched to his address ... that morning when the policeman had been advised that the accused had left his home there to come to Court on that morning.   The letter does not say so, but the inference is invited that the

Judge was aware that in stating he had had to walk from Henderson the accused had lied.  The fact that the remand was in custody is consistent with

the  view  that  the Judge  did  not  accept  the  accused’s  explanation.    She directed that the pretrial application should proceed the following day, as in

19     R v Cullen [1992] 3 NZLR 577 (CA) at 580 – 581, affirmed in R v Jessop CA13/00,

19 December 2005 at [73]

the  event  it  did,  over  protest  from the  accused’s  counsel  that  since  the pretrial hearing would raise questions of credibility, the Judge should not hear the matter.

We are quite unable to agree that these circumstances required the Judge to disqualify herself.  It ignores the realities and necessities of daily life in the District Court.   It is inevitable that defendants will appear more than once before the same Judge and there may be some happening on a prior occasion which is discreditable to the defendant.   Judges are well able to put such things out of their mind, just as juries are expected to do from time to time under  proper  directions.     The  informed  objective  bystander  (see  EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146, 152-153) would not form the opinion that there was a reasonable suspicion of bias.

[37]     Something more than mere adverse knowledge is necessary, and an example where this occurred is in Ratna Haran v Police.20     I am told from the bar that Judge Zohrab had not been called upon to consider the appellant’s credibility on other occasions, and no request was made that he recuse himself.  In a city such as the size of Nelson, it is entirely ordinary for many persons to come before the same District Court Judge on frequent occasions. This ground is without substance.

Conclusion

[38]     Whilst the remarks made by the Judge appearing to initiate a perjury inquiry were unfortunate when made during the course of the hearing, neither they nor the fact that the appellant had previously appeared before him would, when viewed in the totality of the circumstances of this case, lead a fair-minded observer to conclude or reasonably apprehend Judge Zohrab might not have brought an impartial mind to the determination of the case.  I do not accept that a proper inference can be drawn from the Judge’s invitation to the prosecution to inquire whether a further witness might be available, because either complainant or appellant might be committing perjury, to lead to a logical conclusion either:

(a)      that the Judge should have been left with a reasonable doubt;  or

(b)      the Judge’s decision was infected because of judicial bias.

20     Ratnaharan v Police HC Wellington CRI 2008-485-39, 29 September 2008.

[39]     Once  Judge  Zohrab  had  determined  credibility  and  reliability  by  the reasoning process he adopted there was clearly sufficient evidence for a conviction to follow.   He looked at the prosecution case as a whole and only after finding it proven did he raise the issue of investigating perjury on the part of the appellant.  It would have been better not to have said this during the course of the proceeding, but I am satisfied it played no part in the Judge reaching the credibility and reliability findings that he did given the careful reasons contained in his judgment.

[40]     No submissions were advanced in support of the appeal against sentence.  As Judge Zohrab observed it was a relatively minor assault and dealt with by emotional harm reparation to be paid to be paid in instalments and witness expenses.  It is not possible to say that that was manifestly excessive.

[41]     The appeals against conviction and sentence are dismissed.

J W Gendall J

Solicitors:

Bamford Law, Nelson for Appellant
Crown Solicitor, Nelson for Respondent