W v Police HC Auckland Cri-2009-404-124

[2009] NZHC 758

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000124

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 July 2009

Appearances: H D M Lawry for the Appellant

E R Harrison for the Respondent

Judgment:      6 July 2009

(ORAL) JUDGMENT OF DUFFY J

Counsel:     H D M Lawry P O Box 60673 Titirangi Waitakere 0642 for the Appellant

Solicitors:   Meredith  Connell  P  O  Box  2213  Shortland  Street  Auckland  1140  for  the

Respondent

W V POLICE HC AK CRI-2009-404-000124  6 July 2009

[1]      Mr W   appeals against conviction on one charge of male assaults female under s 194(b) of the Crimes Act 1961.  The appeal against conviction is brought on the ground that the District Court Judge failed to apply the correct standard of proof and failed to give reasons for preferring the evidence of the complainant to that of Mr W  .

[2]      The conviction arises from an incident that occurred on 11 December 2008. Prior to that time, the complainant and Mr W   were involved in a personal relationship.  They had announced their engagement and moved to Auckland.  About a month  before  11  December  2008,  they began  flatting  or  living  together  in  a property at Freeman’s Bay.  At some point in December, there was a breakdown in their relationship.   While Mr W   was out of Auckland, the complainant was involved in a brief sexual relationship with one of their flatmates.   Mr W   found out about this.  The relationship broke down.

[3]      In  the  early  hours  of  the  morning  on  11  December  2008,  Mr  W   returned to the flat in Freeman’s Bay, after a night out.  His evidence was that he had had no more than a couple of drinks of alcohol.  The complainant’s evidence was that Mr W   was in an intoxicated state.

[4]      Her evidence was that she believed she was sleeping when Mr W   came into the room.  He pulled her out of the bed and took her into the lounge, where he held her face down.  She said he put his arm around her neck with the force of his body, and she felt as if she was being strangled.  She could not recall what happened then, but remembered feeling disoriented and regaining consciousness on the floor. She said she was scared and found it hard to breathe.  She went to her bedroom, and called the Police on her cellphone.  It was her impression that Mr W   had run off, as he was no longer in the flat.

[5]      She had initially given evidence that she was taken to the lounge by being pulled by the hair but, when challenged about this in cross-examination, she accepted that her statement at the time of the alleged incident was likely to be more reliable, and that she was pulled by her arm.  She said she had difficulty remembering some particular details because she had only just been woken up.

[6]      Mr W   gave a completely different account of the situation.  He says he arrived home, got a glass of water from the kitchen, and went into the bedroom.  He accepted that later in the evening, he was opening and closing cupboard doors.  He said that he sat on the corner of the bed, and spoke with the complainant about their relationship  ending.     It  was  his  evidence  that  she  sat  up  in  bed,  became argumentative  with  him  by  threatening  various  things,  including  threatening  he would pay for what was happening, and telling people he had HIV/Aids.  He says, as a result of those statements, he flicked water at her and left the room.  He went back into the kitchen to cook some bacon, and accepted he made noise doing that.  It is not clear from the District Court judgment whether or not at the time of the incident the complainant and Mr W   were still residing under the same roof.

[7]      Apart from the accounts given by the complainant and Mr W  , there was no other evidence to support the charge.  The District Court Judge was faced with a direct contest between the evidence he heard from the complainant and that he heard from Mr W  .   Everything turned on the Judge’s assessment of the credibility of those witnesses, as well as his application of the burden of proof to the evidence before him.

[8]      At  [8],  the  Judge  correctly  expressed  the  legal  burden  of  proof  the  law requires in a criminal matter.

[9]      At [9], the Judge said that, having the benefit of hearing and seeing the complainant and Mr W  , it was his view that the evening in question was:

…  coloured  by  “the  parties’  emotions  because  of  the  various  factors affecting their relationship and the breakdown of it.

The Judge then said:

What is most likely to have happened is that the defendant came home, got a glass of water after banging cupboard doors and came into the room where the complainant was sleeping.   The defendant has said today that the last thing he did was to flick water at the complainant.

The Judge then found that, in his view, at [10]:

… the account given by the complainant was most likely to be the more real of the two.

[10]     Mr W   contends that the Judge’s finding, based on what he thought was most likely to have happened, is wrong in law.  Mr W   also contends that the Judge needed to be satisfied about what had happened to the level of beyond reasonable doubt.

[11]     The Crown contends that the Judge was simply referring to the factual matrix in which the offence is alleged to have taken place and, when reaching a view on that matrix, the Judge did not need to be satisfied beyond reasonable doubt.  No authority was provided to support this proposition.

[12]     I have not found it necessary to resolve this legal dispute between the parties as to do so will have no impact on the outcome of the appeal.   Even if a lesser standard of proof could be applied, when determining the factual matrix  of the offending, the Judge has erred when it came to his determination on the elements of the offending.

[13]     The Judge had to be satisfied beyond reasonable doubt that the evidence showed the appellant had applied force to the complainant and that the force was deliberate.  At [11], the Judge acknowledged that he could not be satisfied how the defendant took the complainant into the lounge.   The Judge then expressed the conclusionary statement  that  he  was  satisfied  beyond  reasonable  doubt  that  the complainant  was  forced  on  to  the  couch  and  the  floor  in  the  manner  she  had described and, in particular, held from behind, with an arm around her throat and Mr W  ’s body pressure placed on her.  No reason is given to outline why the Judge reached that conclusion.   He expresses no view on his impression of the complainant in terms of her reliability and credibility as a witness.

[14]     The Judge then went on, at [12], to find that it was unclear exactly what had happened from there.  Notwithstanding the lack of clarity he has referred to, he then expressed himself to be satisfied that the defendant deliberately held the complainant from behind, with his arm applying pressure on her throat.  Nothing is said about the

level of proof being applied at this point.  Nor is any reason given as to why this aspect of the complainant’s evidence satisfied him.

[15]     At [12], the Judge also referred to Mr W  ’s denial of the complainant’s account of what had occurred.  The Judge does not go on to make any finding about how he viewed Mr W  ’s denial.  Nor does the Judge express any view on the credibility and reliability of Mr W   as a witness.   Since the appellant was convicted, it can be inferred that his evidence was rejected and that it was found to be unreliable and not credible.

[16]     At [13], the Judge expressed his view that:

… there is no doubt that [sic] incident occurred.

Again, no reasons are given as to why the Judge was in no doubt as to whose evidence to prefer.   The Judge also found that Mr W  ’s leaving the property was consistent with someone making good his escape.  No reasons for that view are given.    In  reaching  that  view,  the  Judge  expressly  rejected  the  complainant’s evidence that the appellant had run away.

[17]     In circumstances where the determination of a summary prosecution of a relatively serious offence turned  on  the oral  testimony of two  witnesses,  one  a complainant and the other the defendant, I would expect there to be express findings on the acceptance of one testimony and the rejection of the other.   Reasons to support such findings could also be expected.

[18]     The benefits of reasons being given were recognised in R v Awatere [1982] 1

NZLR 644.  In that case, the Court of Appeal was reluctant to lay down an inflexible requirement for reasons, which was of general application.  Nonetheless, it said that Judges should always do their best to provide reasons that were “adequate to the occasion” (at 649).  The trend since then has been towards a requirement for reasons to be given.  In Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [79], [80], [83] and [85], there is a full discussion on the general desirability of Courts giving reasons for their decisions. When it comes to determinations of proof in summary prosecutions, there is a helpful passage on the need for reasons in the judgment of

Winkelmann J in Taiatini v Police HC ROT CIV 2005-463-59 7 October 2005.  At

[12], Winkelmann J said:

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: Takarei v Police (HC Hamilton AP 77/02, 22 November 2002, Randerson J).  The extent of reasoning required will vary between cases, but the reasons given should be “adequate to the occasion”: R v Awatere [1982]

1 NZLR 644, 649 (CA). It must not be overlooked that Judges, in particular

District Court Judges operate under time constraints and in circumstances which usually require oral decisions to be given at the conclusion of the evidence: Kapa v Police (1989) 4 CRNZ 306.  Further, there are difficulties in articulating reasons for a credibility finding “which is based principally upon an exercise in judgment borne of experience, knowledge of human behaviour, and the evaluative process”: (Jai Ram Sharma v New Zealand Police, HC Auckland, CRI 2005-404-235).   Nevertheless, as Randerson J said in Takarei at [14]:

… some brief reasons for rejecting the evidence of a key witness should be given.

[19]     Later, at [15], Winkelmann J said:

I am satisfied that where the essential issue for the Court is whether the Judge accepts defence evidence as establishing a reasonable doubt, then reasons should be given for the credibility or reliability findings made in rejecting that  evidence.   I do  not  accept  the  Crown’s  submission  that because of the nature of the charge and because this matter proceeded in the summary jurisdiction, it was not incumbent upon the Judge to give reasons for his factual finding.

[20]     In Kapa v Police (1989) 4 CRNZ 306, Hardie Boys J found that a failure to give reasons that were adequate to the occasion would be a breach of natural justice that would result in the conviction being set aside.  In that case, the District Court Judge had expressly found the complainants to be truthful witnesses, and he also had expressly found that, despite the defendant’s denials, the charge had been proven to the standard required.   However, Hardie Boys J described these findings by the Judge (at 311) as:

With respect, this was a most perfunctory way of dealing with a serious and difficult case.  There was no analysis and no resolution of the issues, scant discussion of the submissions made by the defence, no reason given for the apparent rejection of the appellant’s evidence and the preference for the complainants’.

[21]     In Taiatini, Winkelmann J was able to find that the Judge did address the conflict of evidence before him and reach a finding in relation to it, as he had expressly found that the evidence of the witness whose evidence he preferred was given “truthfully and accurately”, and he went on to find that he “accept[ed] that evidence and … [made] findings on it”.  In addition, there was other evidence that caused Winkelmann J to conclude that it was open to the Judge to reject the evidence of the defendant’s witnesses.

[22]     The principles to be drawn from those decisions are that in the context of summary prosecutions, Courts should expressly state their acceptance, as well as their rejection, of the evidence of competing witnesses.  This is especially so when credibility is in issue.  Some brief reasons for the acceptance, as well as the rejection, of material evidence should also be given.  If there is nothing in the way of findings and reasons that are adequate for the occasion, the conviction will be set aside for breaching natural justice.   In an appeal against conviction based on a failure of a lower Court to give reasons for rejecting the defendant’s evidence, an appellate Court may look to other available evidence for the purpose of seeing if it was open to the lower Court to reach its conclusions on the evidence.

[23]     When  I apply those  principles  to  the  present  case,  it  seems  to  me  that, ordinarily,  a  Judge  hearing  a  defended  prosecution  in  the  circumstances  of Mr W  ’s case would express his or her finding on whether or not Mr W  ’s evidence was accepted and give reasons for the finding.  I would expect to see some comment on the Judge’s view of the reliability and credibility of Mr W   as a witness and the basis for reaching that view.

[24]     In a number of respects, I consider that this case is analogous to Kapa v Police.   Proof of Mr W  ’s conviction relies solely on oral evidence of the complainant.  The case turns on her credibility and reliability.  As was recognised in Kapa (at 309), in a case such as this, it is not a question of who the Judge believed so much as whether there was a reasonable possibility that, for whatever reason, the complainant had given false or unreliable evidence.   The answer to this question required the Judge to go further than to assess the credibility and reliability of the opposing witnesses.  The Judge had to consider whether the complainant might have

given false or unreliable evidence.  To do this, the Judge had “to go much deeper” (Kapa at 309).  The underlying circumstances had to be analysed.

[25]     The events, found to be an assault, had occurred shortly after the complainant had woken from her sleep.  The complainant and Mr W   were young adults, whose engagement was in the process of ending, following the complainant’s sexual relationship with their flatmate.   The occasion would, therefore, have been emotionally fraught.  The Judge had formed a view that the accounts of each witness were, to some extent, coloured by their emotions.   Given Mr W  ’s evidence denying the assault, it was incumbent on the Judge to analyse the evidence for the purpose of determining if there was a reasonable possibility, for whatever reason, that the underlying circumstances had led to the complainant overreacting and giving an exaggerated account of the interaction with Mr W  .   He had, to use the words of Hardie Boys J, to go much deeper than simply to assess the credibility of each witness as each of them gave their evidence.

[26]     The  Crown  invited  me  to  consider  the  evidence  that  was  led  in  the District Court and to reach my own conclusion as to what had occurred.  However, the only evidence from which an inference of guilt could be drawn was the oral evidence of the complainant.   If this were a case where there was some extrinsic evidence I could take into account which would confirm the complainant’s account of events, as was the case in Taiatini, I would be prepared to undertake this exercise. But here, there is nothing that would confirm the complainant’s evidence and, therefore, there is nothing to be gained from such an exercise.  As I have not seen or heard the complainant and Mr W   give evidence, I am in no position to assess and make determinations on credibility and reliability.

[27]    In all the circumstances, for the reasons I have outlined, I consider the conviction of Mr W   is unsafe.  There is an additional issue that causes me to consider the conviction is unsafe.  During the course of the hearing, evidence came out of other difficulties Mr W   has had with the Police.   The Judge has said nothing in his judgment about disregarding that evidence, even though it was highly prejudicial, but of no probative value in the prosecution.

[28]     The Crown referred to the decision of the Privy Council in Christian & Ors v R [2007] 2 WLR 120 in which Their Lordships opined that in a Judge alone hearing, the Judge does not have to refer expressly to the evidentiary directions he or she will have made for himself or herself in the course of reaching a decision. Whilst I accept that, as a general rule, a Judge sitting alone need not express directions on evidence, this case is different. The absence of certain necessary findings, as well as reasons to support those findings, taken together with the silence on how the prejudicial evidence was dealt with, gives rise to a suspicion, however unwarranted, that the Judge was unduly influenced by the inadmissible evidence. The overall appearance is that, in this case, justice does not appear to have been done. Accordingly, the conviction is quashed.

[29]     So,  for  all  these  reasons,  I  find  that  the  conviction  is  unsafe  and  it  is, therefore, set aside.

[30]     The next issue is what should now be done.  For Mr W  , it is submitted that  the  appeal  should  be  allowed,  with  no  more  than  the  conviction  quashed, because (at [10]) the Judge has said that:

… the account given by the complainant is most likely to be the more real of the two.

This is said to be an indication that the Judge could not determine beyond reasonable doubt  whose  account  he  would  prefer  and,  therefore,  he  has  adopted  a  lower standard.  Consequently, the same outcome is likely at any rehearing and, therefore, there is no point in ordering a rehearing.

[31]     The Crown, however, has referred me to the fact that (in [11] and [12]) the Judge  has  said  he  was  satisfied  beyond  reasonable  doubt  that  an  offence  had occurred.

[32]     The manner in which the judgment in the lower Court was reached may simply be due to pressure of time.  There may well be good reasons for accepting the complainant’s evidence and rejecting that of Mr W  .   On one view of the evidence, there is sufficient evidence to support a conviction.

[33]     Accordingly, I consider that it is more appropriate that the matter be remitted back to the District Court for rehearing.

Result

[34]     The appeal against conviction is successful.  The conviction of male assaults female is set aside.   The information is remitted back to the District Court for rehearing.

Duffy J