Te Whaiti v Police
[2017] NZHC 487
•17 March 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2016-485-92 [2017] NZHC 487
BETWEEN TIPENE TE WHAITI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 February 2017 Appearances:
C O Thorburn & N P Chisnall for Appellant
S T A Ellis for RespondentJudgment:
17 March 2017
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 17 March 2017 at 12pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Luke Cunningham Clere, Wellington
TE WHAITI v POLICE [2017] NZHC 487 [17 March 2017]
Introduction
[1] On 8 September 2016, following a Judge-alone trial in the Hutt Valley District Court, the appellant, Mr Te Whaiti, was convicted of four charges of breach of a protection order,1 and one each of assault,2 male assaults female,3 and assault with a weapon4.
[2] The charges all relate to offences alleged to have been committed against the appellant’s former partner.
[3] The appellant appeals his conviction on the grounds that the Judge erred in admitting the complainant’s previous statement into evidence, and by failing to consider the admissible evidence relevant to each individual charge and instead placing too much weight on particular aspects of the complainant’s evidence.
Factual background
[4] The following narrative of the factual background is taken from the Police summary of facts and is also the basis on which the prosecution case was advanced at trial.
[5] It is accepted by the appellant that on 23 May 2013, a final protection order was served on him by the District Court, naming him as the respondent and the complainant as the applicant. The protection order included the standard condition that the appellant was not to physically abuse the complainant.
[6] The prosecution alleged that between 1 March 2016 and 4 May 2016, during which time the complainant and the appellant were residing together at an address in Lower Hutt, the appellant had regularly assaulted the complainant. The frequency of the assaults was such that the complainant lost track of which of her multiple bruises were caused by which of the assaults. The appellant would not allow the complainant
to leave the house and controlled what she did. This conduct was the basis of the first
1 Domestic Violence Act 1995, ss 19(1)(a) and 49(1)(a): maximum penalty of three years’
imprisonment.
2 Crimes Act 1961, s 196: maximum penalty of one year imprisonment.
3 Section 194: maximum penalty of two years’ imprisonment.
4 Section 202C: maximum penalty of five years’ imprisonment.
of the four charges alleging a breach of the protection order, which was laid as a representative charge.
[7] On 4 May 2016, the appellant and the complainant had an argument and the appellant told the complainant to get into their vehicle, which she did reluctantly. As they were travelling in the vehicle, the appellant reached across towards the complainant and punched her leg hard, leaving a large bruise. This conduct constituted the second charge of breach of a protection order and the charge of common assault.
[8] On 5 May 2016, the complainant sought refuge in their vehicle, which she would regularly do to be safe when the appellant became aggressive. The appellant attempted to coax the complainant out of the vehicle by offering her some of the methamphetamine that he was smoking. The complainant rejected the appellant’s attempts, ran inside the house and went into the bathroom to get away from him. This angered the appellant who chased the complainant inside, pushed open the bathroom door, and proceeded to strike her several times with his closed fist. As a result of this assault upon her, the complainant was left with severe bruising to her upper right arm. This conduct was the basis of the third charge of breaching a protection order and of the charge of male assaults female.
[9] On the morning of 6 May 2016, the defendant told the complainant to pack her belongings and leave their address. She agreed. As she was leaving the defendant struck her very hard with an electrical extension cord around the back of her neck. This conduct was the basis of the charge of assault with a weapon, and the fourth charge of breaching a protection order.
Appeal against conviction
[10] The appellant appeals his convictions pursuant to s 229 of the Criminal Procedure Act 2011 on the grounds that a miscarriage of justice occurred for two reasons. First, that the Judge erred by allowing the complainant’s previous statement which she had made to the Police to be admitted into evidence. Second, that the Judge failed to consider the admissible evidence relevant to each individual charge
and instead placed excessive weight on two aspects of the complainant’s evidence
such that it appeared that the Judge engaged in improper propensity reasoning.
[11] This Court must allow the appeal if the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if “a miscarriage of justice has occurred for any reason”.5 A miscarriage of justice in this context means:6
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.
[12] In Wiley v R the Court of Appeal commented on the concept of a miscarriage of justice as referred to in s 232(4):7
Section 232(4)(a) focuses on an assessment of the potential risk of a different outcome. Applying the statutory language in its terms, the court must consider whether the identified error has created a real risk that the outcome of the trial was affected in the sense discussed by Tipping J in Sungsuwan: is there a reasonable possibility that a not guilty or more favourable verdict would have been delivered if nothing had gone wrong? If this real risk is identified, the court must allow the appeal.
The complainant’s previous statement
[13] Following the incident on 6 May 2016, the complainant made a written statement to Police. When she was giving her evidence in chief at the trial, while not a hostile witness, she appeared to be a reluctant witness. She commenced her evidence by being asked to describe the events of 6 May 2016 being the day the Police were called to her house and arrested the appellant. The complainant explained that the appellant had asked her to pack up her things and said that as she was making to leave the house, he had came out of nowhere with an extension cord and “whacked” it around her neck.
[14] She was then referred to photographs showing bruises on her body. When
5 Criminal Procedure Act 2011, s 232.
6 Section 232(4).
7 Wiley v R [2016] NZCA 28 at [29] (footnotes omitted).
asked how she got the bruises she said that they were old bruises. She was not sure how old they were as she got them all the time. She said they were caused by “jealous punches”. She explained her inability to relate the bruises to specific events, saying: “I’ve lost track of which bruises [come] from which punch. It was a normal thing, every day, pretty much every day. I never used to call the police.”
[15] When asked about whether she had been in the car the night before the assault on 6 May, and what if anything had happened the previous night, she said that something had probably happened and it was probably why she was in the car. But she said but she honestly could not remember which “domestic” it was. At that point in her evidence, the complainant was asked by the prosecutor whether it would help her memory if she was able to refer to her Police statement. She responded saying: “Maybe”.
[16] The complainant was then shown the statement she had made to the Police and given an opportunity to read it silently to herself before further questions were put to her by the prosecutor. Once she had read it over, the statement remained with the complainant in the witness box, although it does not appear to have been referred to by her when answering further questions from the prosecutor.
[17] The complainant then proceeded to give evidence that on 5 May 2016 she and the appellant were together in their car going to pick something up. She said that the appellant was driving and she was sitting on the backseat. When asked how she got the bruise on her leg, she said “he punched me I’m pretty sure. Must have been a hard one, hard punch.”
[18] She then said that the punch to her arm happened near the toilet after she had run from the car but she couldn’t remember when that had happened because “it was just a normal thing”.
[19] The prosecutor then asked the complainant if she had initialled and signed her statement.8 The complainant confirmed that she had made a statement to Police
8 The copy presented to this Court is unsigned but was not from the District Court file. The
appellant’s submissions state that the statement was signed by the complainant.
and said that it was true. The prosecutor then produced the statement as an exhibit on the basis that it was a previous consistent statement under s 35 of the Evidence Act
2006 and provided the Court with information that the witness was unable to recall.
[20] No objection to this was made by defence counsel, and there is no record in the Court transcript of anything being said by the Judge about the statement being admitted.
[21] In the course of cross-examination, defence counsel herself referred to the contents of the complainant’s statement. She invited the complainant to confirm what she had said in it about smoking methamphetamine every day.
[22] When delivering his decision, the Judge made no reference to the complainant’s Police statement being admitted into evidence or to its contents. In his decision he summarised the complainant’s oral evidence, and noted that she had used the statement to refresh her memory.9 The Judge also mentioned that the complainant had said in evidence that her statement was true.10
Appellant’s submissions regarding the complainant’s Police statement
[23] Counsel for the appellant, Ms Thorburn, submits that the statement should not have been admitted under s 35 of the Evidence Act 2006. That section, at the time this case was heard, provided:11
35 Previous consistent statements rule
(1) A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3) A previous statement of a witness that is consistent with the
9 R v Te Whaiti DC Hutt Valley CRI-2016-096-1586, 8 September 2016 at [6].
10 At [6].
11 Section 35 of the Evidence Act 2006 was amended from 7 January 2017 by the Evidence
Amendment Act 2006. The content of subs (3) can now be found in s 90(7).
witness's evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.
[24] Ms Thorburn says that the Evidence Bill initially contained the phrase, “or able to recall only imperfectly” at the end of subs (3). Ms Thorburn submits that the removal of this phrase when the Evidence Act was enacted by Parliament, indicates a clear intention by the legislature that a previous statement of a witness would not become admissible under s 35(3) where the witness was able to recall relevant information imperfectly. She submits that the ability of a witness to refresh their memory by reference to a statement or document made at an earlier date provides a sufficient mechanism for dealing with a witness with an imperfect memory.
[25] Ms Thorburn submits that the complainant had demonstrated that she was able to recall the events which were relevant to the charges, albeit imperfectly.
[26] Ms Thorburn submits that the fact that the complainant had her statement in front of her while giving her evidence, and was thereby in a position to refresh her memory had she wished to, but failed or refused to do so, did not justify the admission of the statement as an exhibit pursuant to s 35(3).
[27] She further submits that the Judge did not consider whether the previous statement was reliable as required by s 35(3).
[28] Counsel submits that as a consequence of the admission of the complainant’s statement as an exhibit, the prosecution were able to overcome the difficulties of being unable to obtain from the complainant the required details to prove the charges, while the defence were left in the position of being unable to cross-examine the complainant on those details due to the complainant’s reluctance to turn her mind to the details.
[29] She says that the statement was unfairly prejudicial and should have been excluded pursuant to s 8 of the Act.
[30] Finally Ms Thorburn submits that because the Court did not declare the witness hostile under s 94 of the Act, it cannot allow the prosecution to produce the witness’s previous statement.
Respondent’s submissions regarding the complainant’s Police statement
[31] Ms Ellis for the respondent submits that the complainant’s previous statement
was properly admissible under s 35(3) of the Act.
[32] Ms Ellis takes issue with the appellant’s submission that the removal of the words “or recalls only imperfectly” from s 35 means that where details contained in a previous statement are recalled imperfectly, the previous statement will not be admissible. The respondent submits that the real question is whether the whole statement should be admitted, or only that part of the statement dealing with the
matters the witness is unable to recall. Citing Davis v R,12 the respondent submits
that once the requirements of s 35 are established, what and how evidence is adduced are matters for counsel and the trial judge.
[33] The respondent says that here the complainant was asked to refresh her memory as to the day on which the appellant had struck her and caused the bruising to her arm. Despite refreshing her memory, she was unable to remember on which day it had happened as she said the assaults on her were a normal occurrence and the events occurred a long time ago.
[34] The respondent submits that while she was a reluctant witness, the complainant was not a hostile witness and she confirmed that she had told the truth in her Police statement. The respondent says that the District Court Judge found the complainant’s evidence compelling and her previous statement was only referred to, to clarify the date on which one of the assaults had occurred.
[35] The respondent also takes issue with the appellant’s submission that the
Judge had failed to address whether the complainant’s statement was reliable, and
that given her history and initial lies to the Police, there was an insufficient basis
12 Davis v R [2011] NZCA 24 at [18].
upon which the Judge could have been satisfied that the statement was reliable. The respondent submits that there was a sufficient basis for the Judge concluding that the complainant’s statement was reliable. The respondent notes the complainant gave a convincing explanation for having initially given a false name to the Police; she had not complained of the assaults to the Police until an officer asked her about what was happening in the house; and there was photographic evidence of her injuries, which corroborated her account.
[36] Further, the respondent submits that the appellant’s ability to defend himself was not hampered by the admission of the complainant’s statement, as the defence case was that the complainant’s whole account was a self-serving fabrication to explain her failure to complete her community work, and that the bruises could have been caused by her methamphetamine use.
[37] The respondent notes that the Judge expressly had regard to the challenges to the complainant’s veracity and accuracy as raised by the defence. The respondent submits that having heard and seen the complainant give her evidence, the Judge was entitled to accept her evidence as reliable and reject the proposition that her bruises were caused by anything other than being assaulted by the appellant in the manner and on the occasions she described.
[38] The respondent submits that apart from one detail as to the date upon which one of the assaults occurred, the Judge did not rely on any of the other contents of her previous statement in finding the charges proved.
Analysis and conclusion
[39] In my view, the complainant’s previous statement and its admission as an exhibit did not play a significant part in the determination of the charges faced by the appellant at his trial.
[40] Prior to its production as an exhibit, the complainant was provided with her previous statement to refresh her memory of when the incident in which she received bruises to her leg had occurred. After the complainant had refreshed her memory by
referring to her Police statement, the Judge clarified her evidence by asking her if she was referring to an event that had happened on the day before the photographs of her bruises were taken at the Police station. She confirmed that she was. That appears to be the only aspect of her evidence that involved her relying on the contents of her previous statement because of her inability to recall the detail of when a particular assault event occurred.
[41] Apart from being employed for that purpose, the complainant’s previous statement was not used or relied upon in the evidence in any material way. As noted, defence counsel referred to the statement in the course of her cross-examination as containing information that the complainant used methamphetamine every day, but the statement and its contents were not otherwise referred to, and the Judge’s reference to it in his decision was limited to noting that the complainant had been given the opportunity to refresh her memory by reading her statement in the course of giving her evidence, and further that the complainant had said that her statement was true.
[42] In considering the complainant’s account of how she received her injuries and bruises, the Judge appears not to have had any regard to, or placed any weight on, the contents of the complainant’s previous statement. The Judge described the complainant’s evidence as “compellingly graphic”, saying that despite being an unwilling witness she nevertheless “gave descriptions of matters which went beyond mere exaggeration and/or any desire to get back at the defendant.”13
[43] The Judge then gave examples of what he was referring to:14
Two examples will suffice. First, she said today that she has difficulty recalling the individual assaults and when they might have happened because they were a constant factor in her life. Secondly, she said she had a point of refuge. This was the car on the property which she would get into when being assaulted or when she anticipated she was going to be assaulted, she would drive this car away or just sleep in it in situ. She felt safe when she was in the car.
She has a history of methamphetamine use, a conviction for dishonesty in
2015 and she lied to the Police on the day initially about her identity. In my view these do not discredit her account. She gave a convincing explanation
13 At [12].
14 At [13] and [14]
for giving a false name which was that a warrant for her arrest was existing on a breach of community work. She did not want the Police to arrest her for that. She was not a willing witness and wanted to leave part way through cross-examination during the hearing today. However she was persuaded to stay and did so. Her reluctance to be giving evidence in Court did not, in my view, undermine the veracity of what she was saying. I find all the charges to be proved on the basis of the complainant’s account.
[44] From these comments of the Judge, it is very clear that he founded his decision on his assessment of the complainant as being a credible witness. The Judge specifically addressed the challenges to the complainant’s veracity and found that those challenges did not diminish her credibility or reliability.
[45] Consequently, even if the complainant’s previous statement was wrongly admitted as an exhibit, it had very limited evidential purpose or value and it was not relied upon by the Judge as proof for any purpose that was unfairly prejudicial to the appellant or which could possibly have resulted in a miscarriage of justice. Essentially the extent to which the statement was used during the trial was limited to the complainant refreshing her memory as to the timing of the event that resulted in the bruises to her leg, and the statement was not in fact itself used to provide the Court with information.
[46] The Judge did not make a finding that the previous statement was admissible pursuant to s 35 and did not say in his decision whether he was satisfied that the statement was reliable. The absence of any such reference to the admissibility of the statement is in my view a clear indication that the Judge treated the statement as having been used for the limited purpose of refreshing the complainant’s memory. Although formally produced as an exhibit the statement was not otherwise relevant. Nevertheless, in my view the complainant’s statement would have been admissible pursuant to s 35(3). It was made on 6 May 2016 at a time when the events over recent days would have been fresh in her memory and in circumstances that would provide reasonable assurance that the contents of the statement were reliable. Further, it was not the whole of the statement that was relied on by the prosecution, but only that part of it that related to the timing of the assault that resulted in bruising to the complainant’s leg.
admitted into evidence, I do not consider that the appeal could succeed on that ground. In my view for the reasons I have set out above, the statement had limited evidential significance beyond enabling the complainant to identify the day on which the assault which resulted in the bruises to her leg had occurred. By contrast, it was the compelling and graphic description of the events that was accepted by the Judge and which satisfied him that the charges had been proved. In these circumstances, I find that any error relating to the admission of the complainant’s statement did not give rise to any real risk that the outcome of the trial was affected. There was no reasonable possibility of not guilty verdicts or more favourable verdicts being delivered if nothing had gone wrong.
[48] I further find that the admission of the complainant’s statement as an exhibit did not impede or prevent the appellant from presenting an effective defence. Counsel were able to cross-examine the complainant on the contents of her Police statement and to make use of those parts in which the complainant acknowledged using methamphetamine, and to having initially provided false information to the Police. The defence were not left in a situation where the complainant’s evidence was effectively given by proxy as Ms Thorburn submits.
[49] Accordingly, I do not consider that the admission of the statement into evidence affected the fairness of the trial or its outcome.
Assessment of the evidence
[50] Ms Thorburn submits that the District Court Judge does not appear to have considered whether the elements of each individual charge had been proven beyond reasonable doubt. Counsel acknowledges and recognises that while the factual findings relating to some of the charges are obviously based on the complainant’s account (in particular the assault with the electrical cord), the relevant factual basis relating to some of the others charges is unclear. In particular, Ms Thorburn submits that it is unclear when and how the appellant was found to have breached the protection order by physically abusing the complainant between 1 March and 4 May
2016.
charge, was clear. Judge Butler identified the following evidence:
Assault with a weapon and breach of protection order:15
She said that on 6 May this year… he whacked her with an extension cord
which caused her to cry. She said at that time she was outside by the shed
and was taking her gear to leave the property. She said the cord hit her on the back of the neck, she was unable to remember at that point some of the other details…
Assault and breach of protection order:16
She made a statement to police and was given the opportunity to refresh her memory by reading the statement. She said thereafter that she could now remember how the bruise to her leg was caused, it being a punch. She said that had happened in the car the day before the police arrived. She described the punch as a hard one. She said at the time she had been on the back seat and the defendant driving the car but that he stopped the car to punch her.
Male assaults female and breach of protection order:17
As to the punch on the arm which caused bruising, she said that happened in or near the toilet area in the house. She said she ran from the car and went to the toilet area. She said she could not remember exactly when it happened; there were just one of so many in her account.
[52]
I agree with the appellant that the basis for the conviction on
the
representative charge of breach of a protection order between 1 March and 4 May was not clearly explained by the Judge when delivering his reasons. The Judge however accepted the complainant’s evidence that the assaults were “a constant factor in her life”. The complainant gave evidence that the appellant punched her almost every day, that they had been living at the property for a few months and that she would often take refuge in the car to avoid him.
[53] Ms Thorburn also relies on Wenzel v R and the Court of Appeal’s description
therein of the obligations of a Judge sitting alone on a criminal trial to give detailed reasons for their verdicts:18
15 At [3].
16 At [6].
17 At [6].
18 Wenzel v R [2010] NZCA 501 at [39].
As this Court held in R v Connell,19 careful consideration is an elementary need but long exposition is not required. Although recognising that the extent of reasoning required will vary according to the circumstances of the case, this Court said:20
…in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge’s essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.
[54] Ms Ellis for the respondent also refers to and relies on the Court of Appeal’s
observations in R v Connell:21
To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge’s failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay. Careful consideration is an elementary need, but not long exposition.
[55] In my view, the evidence in support of this charge was expressed in rather broad and general terms, and consequently the Judge did not specifically identify and relate the elements of the charge to those parts of the evidence that he found to amount to proof of the charge. However I consider that his finding that the appellant breached the protection order between 1 March and 4 May was clearly open on the evidence, and that in the circumstance of this particular charge it was not necessary for the Judge to articulate the process of identifying the ingredients of the representative charge and then relating the relevant evidence to the essential elements and particulars of the charge. A fact-finder may convict a defendant of a
representative charge if satisfied beyond reasonable doubt that the defendant has
19 R v Connell [1985] 2 NZLR 233 (CA).
20 At 238.
21 At 237.
committed at least one act of the type alleged to have occurred during the period specified.22 The Judge clearly accepted the complainant’s evidence that being assaulted by the appellant “was a normal thing, every day, pretty much every day. I never used to call the Police”. That evidence combined with the photographic evidence of bruises on the complainant’s body, provided a sufficient evidential basis for the Judge’s finding that the representative charge was proved.
[56] Ms Thorburn submits that the Judge was required to relate each alleged assault to a specific date and specifically address the particulars and elements of the charge. However given the nature of the allegation that the assaults occurred frequently during the period when the couple were living together in the house, the specific dates of individual assaults and events are of no real significance. The nature of the assaults and the injuries caused to the complainant clearly amounted to proof of the representative charge alleging that between 1 March and 4 May 2016 the appellant had physically abused the complainant while a protection order was in force against him and the complainant was a protected person pursuant to the protection order.
[57] While it would have been preferable for the Judge to have more precisely identified the evidence on which he based his finding on the representative charge, there was nevertheless a sufficient evidential basis for his finding that the representative charge was proven. Any shortcomings or failure on the part of the Judge to identify the essential elements of the charge and relate the evidence to those elements, was not such as to give rise to a miscarriage of justice. In my view, what the Judge said in explaining the reasons for his finding on this charge was a sufficiently plain statement of his reasons which demonstrated that he had considered the essential issues necessary in reaching his conclusion that the charge was proved.
Propensity reasoning
[58] Finally, I find that the Judge did not engage in any improper propensity reasoning in the course of considering the evidence and determining the verdicts.
22 Dryden v R [2013] NZCA 232.
[59] Ms Thorburn’s submission is that because the Judge accepted the complainant’s evidence that she had been subjected to ongoing violence during her relationship with the appellant, the appellant had a propensity to use violence against the complainant and must have done so on the occasions alleged. I reject that submission as being misconceived. The Judge accepted the evidence of the complainant as to the specific events and incidents she described when being assaulted by the appellant. The Judge also accepted the complainant’s evidence that in addition to those specifically described incidents, there were many other occasions, too many for the complainant to be able to recall specifically, when the appellant had also assaulted her. In these circumstances I find that the Judge did not employ any propensity type of reasoning.
[60] Rather, he outlined aspects of the complainant’s evidence which satisfied
him that she was being truthful.
Result
[61] I find that the appellant has failed to show that a miscarriage of justice occurred.
[62] For the reasons I have set out above, the appeal is dismissed.
Paul Davison J
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