Wang v Police
[2021] NZHC 2741
•13 October 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000122
[2021] NZHC 2741
SHIKUN WANG v
NEW ZEALAND POLICE
Hearing: 27 September 2021 Appearances:
O Martell for the Appellant
A Masters for the Respondent
Judgment:
13 October 2021
JUDGMENT OF WALKER J
This judgment was delivered by me on 13 October 2021 at 3 pm Registrar/Deputy Registrar
WANG v NEW ZEALAND POLICE [2021] NZHC 2741 [13 October 2021]
Introduction
[1] Shikun Wang appeals against conviction and sentence for assault on a person in a family relationship1 and strangulation2 following a judge-alone trial in the Auckland District Court on 10 July 2020.3 He was sentenced to six months’ home detention, 120 hours of community work and $900 reparation for emotional harm.4 Mr Wang argues that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred. He contends that if the appeal against conviction is allowed in respect of the strangulation charge only, then he should be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. He seeks leave to file evidence and submissions in support of that contention once the outcome of the appeal is known.
[2] In this judgment, I do not refer to the complainant by name. I intend no disrespect. Nor is it intended to depersonalise her experience. The practical reason is to preserve her privacy, consistent with the provisions of the Family Violence Act 2018.
[3] The complainant is Mr Wang’s former partner. They had been in a relationship for between one and two years. They did not live together but the complainant says that she regularly spent a couple of nights with him each week. Mr Wang was boarding at the home of the complainant’s grandmother.
District Court decision
[4] The Judge began by recording that the defence advanced at trial for the assault charge was one of self-defence. In respect of the strangulation charge, Mr Wang denied that he intentionally impeded her breathing by applying pressure to her throat and neck.
[5] The Judge noted that it was not in dispute that the parties were in a close personal relationship for the purposes of s 12 of the Family Violence Act 2018. He
1 Crimes Act 1961, s 194A: carrying a maximum penalty of two years’ imprisonment.
2 Section 189A(b): carrying a maximum penalty of seven years’ imprisonment.
3 See New Zealand Police v Wang [2020] NZDC 13357 [Conviction decision].
4 See New Zealand Police v Wang [2021] NZDC 4756 [Sentencing notes].
also recorded that it had not been disputed that the complainant was beaten or hit by Mr Wang. The background to the incident involved a verbal argument over cleaning which escalated to a physical altercation. The Judge observed that the complainant herself accepted that she had used physical force but had said that she was defending herself from Mr Wang.
[6] The complainant said on cross-examination that she lost consciousness due to Mr Wang strangling her. The Judge considered that there was “clear evidence” in the form of photographs of extensive bruising suffered by the complainant to her legs and to her arms. There was also bruising around her throat and her upper chest near her neckline. He referred to medical notes which recorded multiple small bruises, a bruise on her left lateral knee and that she had a “soft” abdomen “diffusely tender”.
[7] The Judge noted the defence argument that the bruising came about because the complainant effectively “lost control of herself” and that Mr Wang had to hold her by her arms to prevent her attacking him further. Mr Wang denied attempting to strangle the complainant or putting his hands around her throat. Mr Wang had postulated at trial that the bruising that could be seen must have occurred after he had grabbed her hands and she continued to try to move them.
[8] The Judge observed that although there was evidence of extensive bruising to the complainant consistent with assault, there was only one scratch of approximately an inch in length to the forehead of Mr Wang, which Mr Wang attributed to the complainant. On this basis, the Judge was satisfied beyond reasonable doubt that there had been an intentional application of force to the complainant without her consent.5
[9] The remaining question on this charge was therefore the issue of self-defence. The Judge set out the basis for such defence being that, if self-defence appears to be available from the evidence, then the onus shifts to the prosecution to negate it by proving beyond reasonable doubt that the force used was not reasonable and was excessive.6
5 At [7].
6 At [8].
[10] The Judge noted in this regard that the degree of force used on the complainant as evidenced by her injuries and as she described was “considerable”.7 He saw it as “difficult” to see how one could argue that reasonable force was used against her but accepted that Mr Wang believed he was defending himself. Mr Wang disputed that he initiated the assault. Mr Wang accepted that he slapped her but said that it was only once and that it was in response to an assault by the complainant. However, given the nature and extent of the injuries suffered by the complainant, the Judge concluded that even if Mr Wang believed that he was acting in self-defence the force he used on the complainant was “excessive”. He said:8
It is quite clear that the fight between the two did not stop after the initial conflict. The defendant disputed that he initiated the assault. He accepted he slapped her but only said once but he said that was in response to an assault by the complainant. Nevertheless the physical actions continued and it is clear that from the forensic evidence namely the photographs that the complainant suffered a considerable assault.
[11] The Judge concluded that more than reasonable force was used and that the charge of assault on a person in a family relationship had been proved beyond reasonable doubt.
[12]As to the charge of strangulation, the Judge said:
[11] The charge of strangulation is supported both by the photographs of the bruising which were taken approximately two days after the events the subject of the charge and by the complainant’s evidence. She said that he used his hands to strangle her and in evidence-in-chief she said she had difficulty breathing and that the complainant pushed her against the wall and then attempted to strangle her and held her tightly around her neck.
[12] The defendant denied that this occurred. He said he did not attempt to strangle/choke the complainant. He said in explanation that, as I have already mentioned, that the bruising around her neck occurred he thought possibly when she might have hit herself when she was moving her hands or scratched the neck against something else. That was at a time when he was trying to restrain her by holding her hands. In my view the evidence shown by the photographs supports the complainant’s account and accordingly I find that charge also proved to the required standard of proof. She gave evidence of having her breathing impeded because of the defendant applying pressure to
7 Conviction decision, above n 3, at [9].
8 At [9].
her throat and neck by putting his hands around her neck and accordingly I find that charge proved to the required standard and the defendant also is guilty of the same.
Approach on appeal
[13] An appeal against conviction following a judge-alone trial is governed by s 232 of the Criminal Procedure Act 2011. The appeal must be allowed if the judge has erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred,9 or if a miscarriage of justice has occurred for any other reason.10 A miscarriage of justice means “any error, irregularity, or occurrence in or in relation to or affecting the trial” that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.11
[14] The court puts to one side any errors that are inconsequential or immaterial to the outcome of the trial.12 Its focus is upon errors of substance.13 A real risk arises if there is a real possibility that a not guilty (or a more favourable verdict) might have been delivered if nothing had gone wrong.14 Errors which could not have affected the outcome of the trial cannot found a successful appeal against conviction on the basis of a miscarriage of justice.15
[15] The standard principles in Austin, Nichols & Co Inc v Stitching Lodestar apply to appeals from judge-alone trials.16 If the appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.17 However, the appellate court does not consider the issues de novo as if there had been no hearing at first instance. It is for the appellant to show that an error has been made. The court must remain mindful in this respect of any advantages that
9 Section 232(2)(b)
10 Section 232(2)(c).
11 Section 232(4).
12 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [47].
13 At [47].
14 At [27]. See also R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
15 Wiley, above n 12, at [28]; and R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
16 See Austin, Nichols & Co Inc v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and
Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
17 Sena, above n 16, at [38].
the trial judge may have had and exercise the customary caution where the challenge is to credibility findings based on contested oral evidence.18
Submissions
[16] Mr Martell, for Mr Wang, submits that, although the appeal turns on issues of credibility, the “customary” caution need not be exercised because the Judge did not base his preference for the complainant’s evidence on her demeanour or some other non-verbal cue, but “solely on the evidence shown by the photographs”. Mr Martell submits that those photographs do not support the complainant’s account, particularly the one faint mark on the complainant’s neck. When pressed at the hearing, Mr Martell acknowledged that the demeanour point was not a strong point given current awareness of the unreliability of demeanour in assessing evidence in any event.
[17] I do not accept that the Judge based his preference for the complainant’s evidence solely on the photographic evidence. On two occasions the Judge referred to the complainant’s evidence and expressly or implicitly preferred it over Mr Wang’s account. The first was when he said that the charge of strangulation is supported both by the photographs of the bruising and by the complainant’s evidence.19 The second was his reference to the photographs supporting the complainant’s account.20
[18] With respect to the strangulation charge, Mr Martell argues that the Judge erred in finding that Mr Wang used his hands to strangle the complainant. He submits that the evidence of the complainant was riddled with inconsistencies, marking it as unreliable.
[19] Mr Martell put some stock in the transcript of the complainant’s video statement to Police made on 2 April 2019, one day after the incident occurred. He submits that the complainant’s evidence in the video statement was essentially that Mr Wang pushed her to the ground and got on top of her and used his thighs to hold her down. When the constable specifically asked the complainant whether Mr Wang had used his fingers or his hands, Mr Martell says that the complainant “categorically
18 At [38].
19 Conviction decision, above n 3, at [11].
20 At [12].
rejected” that contention, correcting the constable by reiterating that Mr Wang used his thighs.
[20] Mr Martell refers to numerous passages in the evidence to illustrate the purported inconsistencies:
(a)when it was put to the complainant that she was attacking Mr Wang to the point that he had to hold her hands and pin her down, she agreed, and said that Mr Wang sat on her shoulder, his head above her head, and used his knee to choke her, rather than his thighs as she had indicated in the video statement;
(b)the complainant did not disagree when it was put to her that she kept wanting to attack Mr Wang and get up while she was pinned to the ground. She said that it was because she was really scared and also because she lost consciousness. However, Mr Martell observes that the complainant never mentioned explicitly losing consciousness during her EVI. She merely said that she couldn’t breathe and agreed when asked by the constable whether she felt dizzy. He says that this detail only emerged a year later at trial;
(c)the complainant mentioned Mr Wang letting go of her hands to push her against the wall and getting on top of her, details that were never mentioned in her video statement;
(d)during examination-in-chief the complainant said she could see many bruises on her neck and chest but later, when being cross-examined, she agreed that the photographs did not show any marks on her neck except the very contained yellow mark when viewed from the front;
(e)it was put to her at one point during cross-examination that there was no strangulation, and she appeared to agree; and
(f)the complainant indicated on two separate occasions that Mr Wang used two hands to strangle her neck, even providing a demonstration on re- examination, despite denying that Mr Wang used his hands and fingers when interviewed by Police.
[21] In this vein, Mr Martell describes the complainant as having four distinct versions of the strangulation. First, Mr Wang using his thighs to strangle her. Then it was said that his knees were used. Then it was said that no strangulation occurred at all. Finally, the complainant said Mr Wang used his hands. By contrast, he submits that Mr Wang’s evidence remained consistent throughout. He denied putting his hands around her neck or throat, positing that the faint marks to her chest, collar bone and neck area were self-inflicted when Mr Wang was holding onto the complainant’s hands and she was moving about.
[22] Mr Martell submits that the photographs do not support the complainant’s account that she was held very tightly around her neck. In contrast with the clear bruising on the complainant’s arms and legs, there was only one very contained yellow mark on the complainant’s neck seen only under the “closest of scrutiny”. On an evaluation of all of the evidence, the Judge could not have been satisfied beyond reasonable doubt that Mr Wang applied pressure to the complainant’s throat and neck by putting his hands around her neck and erred in stating so. The conviction for strangulation should therefore be quashed.
[23] As to the charge of assault on a person in a family relationship, Mr Martell’s focus was on whether the force used by Mr Wang was reasonable. However, he submits that the Judge erred in recording that the allegation that Mr Wang beat or hit the complainant was not disputed. He submits that the Judge erred in his characterisation of the background to the incident, erred in failing to attribute the cause of the bruises, and erred in finding that the force used by Mr Wang in his defence was excessive by putting too much weight on the consequence of the force rather than how that force was applied and the context.
[24] Mr Martell again notes a number of further issues and inconsistencies with the complainant’s evidence, including:
(a)that in the complainant’s video statement she mentions pushing Mr Wang during their initial argument. When things became physical, and he started using his fists, the complainant punched him back to defend herself, and he punched her back, twice, hard, to the left side of her face;
(b)during examination-in-chief the complainant said that the bruises on her hand came about by Mr Wang pressing on her arm—she did not say that Mr Wang punched her arm;
(c)in the complainant’s cross-examination it was put to her that she and Mr Wang only had a casual conversation prior to the physical altercation. The complainant agreed, and did not confirm the story she gave in her video statement that Mr Wang was shouting at her;
(d)the complainant accepted that at one point she wanted Mr Wang’s attention and that she would get a bit angry if she did not get her way, and that she was not happy because Mr Wang was talking to his friend. However, she later denied the contention that she was not happy because Mr Wang was not paying attention to her;
(e)the complainant initially said that Mr Wang kicked her first so she kicked him back, but later admitted that she kicked him, and Mr Wang kicked her back;
(f)there were inconsistencies over the number of slaps and who slapped whom first; and
(g)it was put to the complainant that there were no visible injuries on both sides of her face looking at the photographs in Exhibit 2. She agreed. This was inconsistent with her description in the video statement that Mr Wang “whacked” the left side of her face twice using his hand with a force of 8 to 9 on a scale out of 10.
[25] Indeed, Mr Martell submits that there was a pattern of the complainant initially denying propositions put to her by trial counsel but then contradicting herself when asked by the Judge. Mr Wang, by contrast, remained consistent through his interpreter. He readily and repeatedly accepted that he caused the bruising on the complainant’s hand and arm by grabbing onto them. He repeatedly said that he wanted to leave but the complainant grabbed his arms, so he pushed her away. He said the bruises on the complainant’s legs were caused when she fell and hit the leg of the bed. He repeatedly denied that he punched her arms, that he kicked her legs, and that he caused the bruise on her arms by punching them and the bruise on her legs by kicking them.
[26] Mr Martell submits that the background to the incident was that the complainant became jealous of and angry towards Mr Wang for not paying enough attention to her. They began to argue, and the complainant slapped Mr Wang multiple times. Any bruises to the complainant’s arms were caused by Mr Wang holding tightly onto them as the complainant flailed her arms, and any bruises to her legs were caused when she fell and hit the leg of the bed. The Judge accordingly erred in finding that the force used by Mr Wang in his defence was excessive.
The respondent
[27] Ms Masters, for the respondent, submits that the real contest was whether self- defence was available to Mr Wang on the facts. Although Mr Wang now argues that the fact of the assault against the complainant was disputed, there were a number of times during his oral evidence where Mr Wang admitted to variously slapping, pushing, and sitting on the complainant. Given these intentional applications of force against the complainant, to which she had not consented, Ms Masters submits that it is difficult to see how the fact of the assault can now be disputed.
[28] Ms Masters points out that the Judge noted that there was a dispute between the two parties which escalated into a physical altercation. The Judge accepted, as did the complainant, that she was upset and had used physical force against Mr Wang. On an evaluation of all of the evidence, the Judge concluded that the force used by Mr Wang was nevertheless unreasonable in the circumstances as Mr Wang perceived them to be. This conclusion was based in part on the 44 photographs produced at trial
depicting injuries to the complainant’s ear, neck, chest, both arms, both hands, and upper and lower legs on both sides. The bruising was particularly bad on her arms.
[29] Ms Masters also notes that during the period of the offending Mr Wang was able to leave his bedroom and go to the bathroom, demonstrating an ability to disengage from the situation. The complainant’s evidence however was that she was unable to leave. While the complainant stated multiple times in her evidence that she was scared for her safety, Mr Wang did not. Ms Masters therefore submits that the Judge was correct to regard the force used by Mr Wang against the complainant as excessive.
[30] With respect to the charge of strangulation, Ms Masters submits that the complainant’s evidence was overall consistent but, to the extent that there were any inconsistencies, they were not of sufficient number or consequence to render her evidence on the strangulation issue unreliable. On the key issue—the use of his hands to strangle her—she was consistent. In her video statement, she referred to the use of a “hand”. At trial, she gave evidence that Mr Wang used both his knee and his hands to strangle her. In re-examination, she provided a clear demonstration of how Mr Wang used his hands to strangle her. She confirmed this a number of times at trial and that this caused her to lose consciousness.
[31] Ms Masters urged the Court not to take selected portions of the evidence in isolation. She points out that the Judge had the advantage of observing the witnesses and was uniquely placed to make determinations as to their credibility; the mere fact that the Judge preferred the complainant’s evidence, in the absence of more, does not and cannot give rise to an appeal. Finally, Ms Masters notes that while the complainant appeared to acknowledge at one stage that she was not strangled, seen in context, she had in fact been responding to a separate question from the Court so that it is unsafe to understand her answer as a retraction.
[32] As to the appeal against sentence, Ms Masters submits that Mr Wang did not apply for a discharge without conviction at sentencing and it is settled law that if a discharge without conviction was not raised in the District Court, the issue cannot be
raised on appeal in the High Court.21 She does however acknowledge that the Court of Appeal has observed that it may still be appropriate to consider grant of a discharge on appeal where there has been a change in circumstance or where fresh evidence becomes available.22 Pressed on whether a successful appeal on one conviction amounts to a change in circumstance as contemplated by the Court of Appeal, Ms Masters (rightly in my view) considered that this could amount to a change in circumstance. She added however that there is also no basis upon which the Court could conclude that the consequences of a conviction are out of all proportion to the gravity of the offending in the absence of evidence and submissions addressing that issue.
Discussion
[33] The video statement was a relatively superficial record of the complainant’s version of events. According to the record, it started at 11.32 pm and concluded at
11.47 pm. The recorded interview is only 15 minutes long.23
[34] After the hearing I made inquiries of counsel as to whether there was any objection to me viewing the complainant’s video statement, principally to understand whether language difficulties may have played any part but not limited to that purpose. Neither counsel had any objection. However, the video statement was not made available to me and, in the end, I have decided it is unnecessary to view it given its brevity. I have relied on the transcript of that interview, the notes of evidence and the Judge’s observations.
[35] The complainant did not mention loss of consciousness during the interview. Her account at trial, in cross-examination rather than examination-in-chief, was more fulsome but this does not mean her evidence was inconsistent. More particularly, I do not accept there was material inconsistency in respect of the assertion of strangulation by Mr Wang’s hand or hands.
21 See Barrington-Nash v New Zealand Police [2012] NZHC 868.
22 Ho v R [2016] NZCA 229 at [11].
23 It is apparent that the complainant had already spoken with the constable before the recording commenced.
[36]The relevant exchange was:
[Constable] You couldn’t even breathe?
[Complainant] Yes, ‘cos he was using his thighs to just like [inaudible] [Constable] He was using his hand, fingers …
[Complainant] No, he use his thighs, he was … [Constable] Oh, sorry …
[Complainant] … on top of me here.
[Constable] … yeah, yeah. Use your thigh, his thigh. [Complainant] Yes.
[37] Although the appellant relies on this portion of the interview transcript, a short time later, the complainant did refer to the use of hands when she said:
[Complainant] This was the first time before he use his hand to strangle me.
[38] Mr Martell suggests that this is not a reference to the events on the evening in question but to an earlier time in the sense of an earlier occasion.24 I do not accept that is the meaning conveyed. Had the interviewer understood it that way, it could be expected that he would have followed up with questioning about other occasions. I consider that the complainant was referring to more than one action constricting her breathing over the course of that evening/early morning rather than other occasions. There is clear reference to Mr Wang’s use of his hands around her throat or neck.
[39] At page 5 of the transcript, she also said “he just punched me back, it’s like, like whacking on my face and also like, pin me down on the ground and r-, ride on me and then start choking me (emphasis added)”.
[40] I accept that some of the complainant’s evidence is contradictory at first blush. However, it must be seen in context. The trial Judge was best placed to appreciate that context because he saw and heard the witnesses and he made an assessment of the credibility of the complainant. There were multiple occasions when the Judge was
24 Mr Wang is not facing any other charges.
compelled to intervene to ask defence counsel to reframe questions to make them more comprehensible to the witness. On occasion, the Judge reformulated the question or sought clarification. It was through that process that it appears as though the complainant gave inconsistent answers. In actuality, the Judge elicited different answers through clarity of expression. Other questions and answers were ambiguous. I accept Ms Master’s submission that it is necessary to exercise caution before isolating passages of the evidence. Divorced from context, a misleading impression is conveyed.
[41] One example is when defence counsel put to the complainant that there was no strangulation. Mr Martell submits that the complainant agreed to the proposition. The relevant passage in the evidence is:
Q: … There was no strangulation, was there? None.
The Court
Q: Hang on. Just answer the question? A: Yeah.
Q: Thank you.
[42] The import of this is equivocal. It is far from clear that this is to be understood as the complainant agreeing that there was no strangulation. Not long after there was the following exchange with defence counsel:
Q: And it was because of that he has to grab your arms to pin you down, to prevent you from attacking him?
A: Yes.
Q: He never used his two hands to strangulate your neck? A: He did.
[43] The witnesses’ credibility is very much the domain of the trial Judge. I also note that the medical notes which were in evidence record that the complainant stated to medical staff that there was a brief loss of consciousness and that she had been
strangled with hands. This was a few days after the events in question so was proximate to the offending.25
[44] I am not therefore persuaded that the Judge erred in his assessment of the evidence on the charge of strangulation.
Assault against person in family relationship
[45] It is readily apparent that Mr Wang admitted “one slap” albeit he said this was in retaliation to the complainant’s slap. He also admitted sitting on the complainant to restrain her and pushing her. The fact of an assault is indisputable.
[46] Therefore, the nub of the appeal of this conviction is whether Mr Wang used reasonable force in the circumstances that Mr Wang believed existed.
[47] Mr Martell submits that it was the complainant who attacked Mr Wang in anger multiple times. Each time, Mr Wang was forced to restrain the complainant by pinning or holding her arms, thereby explaining the bruising on her arms while the leg bruises were caused by the complainant being pushed and falling against the leg of the bed. He stresses there was no evidence given of Mr Wang striking the complainant’s legs but the complainant herself said they kicked each other. In those circumstances, the fact of multiple bruises was explicable by Mr Wang’s narrative of the events rather than indicating an assault over a period of time, either initiated by or carried on by Mr Wang.
[48] The Judge expressly noted that there was a dispute or argument between the couple which escalated and resulted in a physical altercation. Further, he acknowledged that the fight between the two did not stop after the initial conflict. The complainant in her evidence accepted that she was upset and had used physical force
25 Medical records may be considered hearsay where the medical practitioner is not called to give evidence. This includes notes concerning what is communicated by their patients in the course of consultations. Even if hearsay, they could nevertheless be admissible under the exception in s 19 of the Evidence Act 2006 as a business record. If not relied on for the truth of their contents but only as evidence of a report by the complainant close in time to the event, they will not be hearsay. As a prior consistent statement, the statement may be admissible under section 35(2)(a) of the Evidence Act 2006.
herself. The Judge emphasised the forensic evidence—namely the photographs—to conclude that the force used by Mr Wang was excessive.
[49] It is implicit in the Judge’s conclusion that he preferred the complainant’s evidence over Mr Wang’s evidence and that regardless of the motivation for pinning or restraining the complainant, he considered that the extent of injury evidenced excessive force in restraint. He was entitled to reach that conclusion. I find no error in the conclusion.
Result
[50] The appeal against conviction is dismissed. The sentence appeal accordingly falls away since it was conditional on a successful appeal against the conviction under s 189A(b) of the Crimes Act.
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Walker J
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