Williams v Police

[2012] NZHC 1092

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-460 [2012] NZHC 1092

JESSICA PATRICIA WILLIAMS

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 May 2012

Appearances: K Maxwell for Appellant

R Savage for Respondent

Judgment:      23 May 2012

JUDGMENT OF TOOGOOD J

[AS TO FRESHNESS OF PROPOSED FURTHER EVIDENCE]

This judgment was delivered by me on 23 May 2012 at 2:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

K Maxwell, Barrister, Auckland:  [email protected]

R Savage, Meredith Connell, Auckland:  [email protected]

WILLIAMS V NEW ZEALAND POLICE HC AK CRI-2011-404-460 [23 May 2012]

[1]      Jessica Patricia Williams was convicted by Judge Everett in the District Court at Auckland, on 7 October 2011, on one charge of assault with a weapon under s 202C  of the Crimes Act 1961.[1]      She has  appealed  against  her  conviction  and sentence.   The notice of appeal alleges that the Judge erred in finding the charge proved.

[1] NZ Police v Williams DC Auckland CRI-2010-004-22903, 7 October 2011 at [33].

[2]      The appellant has applied to adduce new evidence on appeal, on the grounds that such evidence could not, in the circumstances, have reasonably been adduced at the hearing[2] and, on 4 May 2012, Brewer J directed that the application be heard as a preliminary matter.

[2] Summary Proceedings Act 1957, s 119(3).

[3]      The proposed new evidence is contained in the affidavits provided by two witnesses; one who was present at the party at which the assault occurred (a Mr Lu), and one who was not present (Mr French).

[4]      The  principles  to  be  applied  by  an  appeal  court  when  considering  an application to admit further evidence were discussed by the Court of Appeal in R v Bain,[3]  and approved by the Privy Council on appeal.[4]      For present purposes, it is sufficient to quote the summary of the principles in the Court of Appeal’s judgment:[5]

It can therefore be seen that there are in substance three screens or controls which the court applies in a further evidence case.  The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial.   If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate court but for a new jury at a second trial which the court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the court in its discretion decides not to order a new trial.

[3] R v Bain [2004] 1 NZLR 638 at [18]-[27].

[4] Bain v R [2007] UKPC 33.

[5] At [26]. These principles were endorsed by the Privy Council as being “well-settled” at [34] of its judgment..

[5]      The term “freshness” is shorthand for the requirement in s 119(3) of the Summary Proceedings Act that the evidence “could not in the circumstances have reasonably been adduced at the hearing ....”  In coming to a view whether the test of freshness is met, the Court is required to consider all of the circumstances.  This will include an inquiry into whether the evidence existed at the time; whether, if the evidence existed, its existence could have become known to the appellant by the exercise of reasonable diligence; and whether, if its existence was known, it was reasonable not to adduce it at the time of the hearing.

[6]      In JEW v Police,[6]  Chisholm J held that the evidence of a witness (G), who was not called at trial, could not have reasonably been adduced, even though G and, in general terms, the evidence she could give, were known to the defence at the time of the trial.

[6] JEW v Police HC Christchurch CRI-2010-409-87, 7 October 2010.

[7]      The Judge accepted that it was genuinely believed by defence counsel, until only five  days  before  the trial  was  due to  begin,  that  G  would  be  called  as  a prosecution witness, her statement to the Police having been previously been disclosed to the defence.   When informing defence counsel that G would not be called as a witness, the Police told defence counsel that G’s evidence would be adequately covered by another prosecution witness, A, who was called at the trial.

[8]      After the appellant was found guilty, the defence discovered that the evidence G could have given, as disclosed in an affidavit sworn by her, went further than her Police statement. The Judge concluded that her evidence was not in fact adequately covered by the evidence given at trial by A.

[9]      Given the misunderstanding as to both whether G would be called by the prosecution and the extent of G’s evidence, Chisholm J held that neither the failure of the defence to interview her nor its failure to call her to give evidence was unreasonable.  In those circumstances, the evidence was construed by the Court as “fresh”.

[10]     At the outset of the hearing of the application, I confirmed with counsel that they understood that the preliminary issue to be decided was the first of the three screens or controls for the exercise of the discretion in s 119(3) (freshness), and that the issues of credibility and cogency would need consideration in the context of the hearing of the substantive appeal only if I determined that the evidence could not have reasonably been adduced at trial.  It was accepted also that my decision as to freshness could be reached on the basis of the affidavit evidence provided, and on the submissions of counsel.

[11]     It was agreed that if I concluded that the evidence was fresh, the witnesses would  be  made  available  for  cross-examination  (if  required)  before  the  Judge hearing  the  substantive  appeal  who  would  then  make  a  determination  as  to credibility and cogency in the context of the appeal as a whole.

The alleged offending

[12]     The appellant was charged with assault with a weapon. It was said that she had “bottled” a fellow guest at a work party to celebrate the birthday of a colleague. The Judge found that there was an argument between the appellant and the victim of the assault, Ms Megan Piper, which was seen by a prosecution witness, whom I shall call Mr S.   Mr S was also an employee of the business.   Judge Everett gave his findings of what then happened in these terms:

[Mr S] immediately stepped in to stop that and he had Ms Williams at one arm’s length, pushed away and Ms Piper at the other arm’s length, pushed away.  He was facing in the direction of Ms Piper, with Ms Williams behind him, when something whizzed past his right side of his head, past his eye and into Megan’s cheek and there was blood all over the place.  The bottle, he said, could only have been thrown (and it was a bottle because it fell to the ground) by Ms Williams who was standing behind him in the corner area, where there was no one else and it happened much to the disagreement of the other defence witnesses, it happened after the fighting between the two girls, when he had separated them.  The icing on the cake was that there was no blood around when he stepped in to separate them, that happened afterwards, when the bottle which he believes, and I accept was a bottle, came flying past the right side of his head, past his eye, just missing it.  He felt it go by, he saw it out of the corner of his eye.  He saw it hit Ms Piper in the face and fall to the ground ....

[13]     One of the central issues at trial was whether Ms Piper received the blow from the bottle before or after Mr S’s intervention in the argument.   The Judge’s finding on that point was important because the appellant’s defence was that the bottle  in  her  hand  had  accidentally  struck  Ms Piper  around  the  eye  when  the appellant reacted to Ms Piper throwing a drink in her face by instinctively raising her hands.  The plausibility of the injury being inflicted in such a way would be much greater if Mr S intervened after the blow had been struck.

[14]     On Mr S’s evidence, his intervention occurred before Ms Piper was struck by the bottle, suggesting a deliberate act by throwing the bottle.  That is why the Judge described Mr S’s evidence that there was no blood around when Mr S intervened as the “icing on the cake”.

[15]     Although Ms Piper gave evidence at the trial that Mr S intervened before Ms Williams threw the bottle at her, it appears that in her statement to the Police, Ms Piper had said that Mr S intervened after she was struck with the bottle.[7]   This view was supported by a defence witness, Ms Okesene, in evidence taken before the Registrar, to the effect that Mr S did not intervene until after Ms Piper was struck with the bottle.  She did not think the bottle had been thrown.

[7] Notes of evidence pages 22, line 25 to 25, line 29.

[16]     Mr Copeland, the appellant’s then boyfriend, also said  that Mr S did  not intervene until after the injury was caused.  That was the evidence of the appellant also.

[17]     For reasons which he discussed in the judgment, Judge Everett preferred the evidence of Mr S to that of the appellant and the other defence witnesses.   He accepted Mr S’s evidence as being true and honest, worthy of belief and credible.  In contrast,  the  Judge  considered  that  the  appellant  was  motivated  to  lie  and  that Mr Copeland was partisan, giving “a reconstructive narrative” basing much of it on hearsay. He attached little weight to what Mr Copeland said.  While saying that he gave weight to Ms Okesene’s evidence, he preferred the  evidence of the victim Ms Piper as more accurately reflecting what took place.

[18]     It appears to have been common ground that there were around 15 people at the  party.    The  only  eye  witnesses  called  by  the  prosecution  were  the  victim Ms Piper, and Mr S.  Copies of the statements given to the Police by Ms Piper and Mr S, and their proposed evidence briefs, were disclosed by the prosecution prior to trial.  A statement to the Police by Mr Copeland was also disclosed to the defence, but the Police indicated that they did not propose to call him as a witness.

[19]     It is accepted by both counsel that there is no evidence that any of the people present at the party were interviewed by the Police, other than the appellant, her boyfriend Mr Copeland, Mr S, and Ms Piper.

[20]     In support of the application to adduce fresh evidence, the appellant has sworn an affidavit in which she said that she had been approached by Ms Okesene a week after the incident and told that Ms Okesene had seen what had happened.  Her counsel   then   arranged   for   someone   independent   to   take   a   statement   from Ms Okesene.  The appellant says that the reason Ms Okesene became involved was because Ms Okesene made the approach and that the appellant had not approached Ms Okesene or anyone else before the defended hearing.

[21]     The appellant says she did not even think of approaching others.   She was embarrassed and did not want people to know that she had been charged as she was still working at the store.  She explained this by saying that a co-owner of the store, Mr Tarrant, had asked her to approach all of the employees to discuss whether they felt comfortable working with her.   She said no one had any issues but she just

wanted to forget the whole thing and keep the legal situation to herself.  She says:[8]

[8] Affidavit of Jessica Williams, sworn 26 April 2012, paragraphs 25-26.

25.Looking back, I guess I felt like everything would work out ok.  I knew what had happened.  I had read the Police evidence.  I knew that Peter had got many things wrong, most  significantly about when he intervened and about a bottle being thrown.  I was confident that given all of the evidence the Judge would see that ... [Mr S] was wrong.

26.Perhaps I was simply naive about believing that things would work out.   I had never been through a Court case before and had no appreciation of how the system worked.  It was only when I saw ...

[Mr S] give evidence that I realized that ... [Mr S] was deliberately not telling the truth.

[22]     She then went on to explain that she had mentioned to her counsel in passing that Mr S was under suspicion by his employers for theft.  She says that she only mentioned this in passing and did not think to tell her counsel that she had in fact reported Mr S to management and that by the time the hearing came around Mr S was no longer working in the business.  The appellant says in her affidavit that it was only after the hearing that she considered whether Mr S may have wanted to get back at her for alerting management to his behaviour.   She also wonders whether Mr S backed Ms Piper’s version of events to get on the good side of Mr Tarrant, the manager, who was a friend of Ms Piper and had invited her to the party.

[23]     The appellant also seeks to adduce affidavit evidence from a Mr French, who was the co-owner of the business with Mr Tarrant.  He was not present at the party. His affidavit contains hearsay evidence of what he was told by both the appellant and Mr S about what had occurred.   He does not have a clear recollection about that, except that he recalls Mr S telling him “Jess bottled a chick”.  He said that he was happy to take Mr S’s resignation because Mr S had been under suspicion as to his trustworthiness  around  money,  the  issue  having  been  brought  to  Mr French’s attention by Ms Williams a few weeks prior to the incident.

[24]     Significantly, however, Mr French says that he was not sure whether Mr S knew that the appellant had suspicions concerning his trustworthiness or that she had reported him to their employer.

[25]     It is submitted on behalf of the appellant that Mr French’s evidence is “fresh” in that the question of a possible motive for Mr S to lie to the Court in his evidence was not obvious to the appellant prior to trial.  If there was evidence that Mr S knew that the appellant had reported her suspicions about him to his employers, there may have been a basis for challenging his credibility.  But the appellant frankly concedes that she does not think that she had told her lawyer that she had reported Mr S to management.

[26]     Mr French’s evidence would seem to rule out the possibility of a revenge motive for Mr S’s evidence.  While it may be arguable that the admissible evidence in Mr French’s affidavit is fresh, there is no arguable basis on which it could be regarded as cogent, even on the view most favourable to the appellant, because there is nothing in it which would have assisted the District Court Judge to have come to a different view.   In the circumstances, further submissions on cogency would not avail the appellant.   There is no basis upon which Mr French’s affidavit could be admitted in support of the appeal under s 119(3).

[27]     The appellant also submits the affidavit of another fellow employee who was at the party, Nan Lu.   He had not been interviewed by the Police and had not previously made the evidence contained in his affidavit known to Ms Williams.  His description of the relevant events was that he recalled seeing Mr S using one of the computers in the office while talking on a telephone situated beside the computer. There had been a discussion about Mr S arranging a taxi and Mr Lu assumed that that was what he was doing.  He described Mr S as standing with his back facing the

area where the incident had occurred.  He then says:[9]

[9] Affidavit of Nan Lu dated 26 April 2012, at paragraphs 19-25.

19.I heard a bottle sound.   It was a hitting sound as opposed to a breaking sound.

20.      I turned around and saw Jessica and another girl facing each other.

They were standing about one metre away from each other.  I did not see the girls fighting or arguing.

21.I recall saying, “whoa, whoa.”  I said this more because of the noise of hearing the bottle.

22.      I heard ... [Mr S] say, “Stop.”

23.      Everyone seemed shocked.

24.      [Mr S] went over to the two girls and tried to push them apart.

There was no need for him to do this.  In my view he was just being dramatic as the girls were not fighting at that point.

25.I did not see how the bottle ended up on the floor.  But I recall that it was not broken.

Mr Lu’s affidavit then contains evidence of his opinion of the appellant and Mr S.

[28]     Mr Lu and Ms Williams do not say in their affidavits whether Mr Lu was approached by the appellant’s legal advisers or whether he made the first approach. Ms Williams says that she did not provide Mr Lu’s name to her counsel and that Mr Lu had only been spoken to as a result of the appeal.

[29]     For the same reasons that I consider Mr French’s affidavit should not be admitted, I do not consider Ms Williams’s allegations about Mr S’s possible motives to lie should be adduced on the hearing of the appeal proper.  There is no arguable basis on which it could be said to be cogent.   Mr Lu’s evidence touching on that issue should be excluded also.

[30]     I am satisfied, however, that Mr Lu’s evidence that Mr S intervened after Ms Piper was struck by the bottle should be regarded as fresh, on the basis that it could not in the circumstances have reasonably been adduced at the hearing.   My reasons are that:

(a)      the appellant’s affidavit satisfies me that it was reasonable for her counsel to rely solely on the evidence of the appellant, Mr Copeland and Ms Okesene and not to interview every other person who attended the party in the hope of obtaining supportive evidence; and

(b)it was open to reasonable inference from the absence of any disclosure by the Police of statements obtained from anyone other than Ms Piper, Mr S and Mr Copeland that none of the other guests could contribute any relevant evidence.

[31]     As a preliminary ruling, therefore, I determine that paragraphs 1-29 inclusive and paragraph 37 of Mr Lu’s evidence may be heard and received by the Court at the substantive hearing of the appeal.

[32]     It will be a matter for the Judge hearing the appeal to determine whether Mr Lu’s evidence is credible and whether it is such that it might reasonably have led to a finding of not guilty if called at the trial before Judge Everett.

[33]     To assist the Court to determine what time should be allocated for the hearing of the appeal, counsel for the Crown should be in a position to indicate to the Criminal List Judge at the callover on Friday, 25 May 2012 at 9:00 am, whether Mr Lu is required for cross-examination at the hearing of the appeal.

...................................................

Toogood J