Wills v Police

[2020] NZHC 2171

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-43

[2020] NZHC 2171

CHRISTOPHER WILLS

v

NEW ZEALAND POLICE

Hearing:	25 August 2020
Appearances:	J A Dean and L R Smith for the Appellant M A Heslip for the Respondent
Judgment:	25 August 2020

JUDGMENT OF COOKE J

[1]                 Mr Wills faced three charges of child assault before Judge Davidson in a judge alone trial in the District Court.1 The three charges arose from three separate events:

(a)An alleged assault between 5 June 2018 and 17 November 2018 of  Mr Wills’ 10 year old de facto stepdaughter, J, whereby Mr Wills is said to have grabbed J and threw her down a hallway. He was found not guilty of this charge.

1      New Zealand Police v Wills [2020] NZDC 9784; and Crimes Act 1961, s 194(a), maximum penalty two years’ imprisonment.

WILLS v NEW ZEALAND POLICE [2020] NZHC 2171 [25 August 2020]

(b)An alleged assault of the same complainant on 17 November 2018 where Mr Wills is said to have grabbed J around the neck and pushed her onto a vacuum cleaner. He was found guilty of this charge.

(c)An alleged assault of Mr Wills’ nine year old de facto stepson, Z, between 1 September 2018 and 16 November 2018 where Mr Wills is said to have struck his stomach with a garden hose. He was found not guilty of this charge.

[2]                 Mr Wills appeals his conviction on the second charge on the grounds there is fresh evidence which proves that the offending did not occur in the manner the prosecution witness said it did.

[3]                 The Crown opposes the appeal. It submits that the evidence should not be admitted, and that even if it is admitted it would not have any effect upon the outcome of the trial.

Factual background

[4]                 The complainants in this matter are siblings and the eldest children of the   Mr Wills’ ex-partner. Mr Wills and the complainants’ mother were in a relationship from 2014 to 2015 and have one child together, born April 2016. From 2016 until the time of the alleged offending Mr Wills would see the complainants and their mother during contact arrangements, which usually took place at the mother’s home.

[5]                 The three incidents giving rise to the charges are said to have occurred between 5 June 2018 and 17 November 2018. The charge at the centre of this appeal concerns the incident on 17 November 2018 where Mr Wills is said to have assaulted the female complainant.

[6]                 The prosecution’s case was that on the day of the incident, Mr Wills had gone to his ex-partner’s house to see his daughter. His ex-partner left the house shortly after to go to the supermarket and then to a friend’s house. Mr Wills then fell asleep in a bed with his daughter and woke some time later and went into the lounge. J’s account of events is that she arrived at the house later that afternoon to find Mr Wills there, looking after the other children. She was angry and upset about this and says Mr Wills

told her he was going to take J and the other children away from their mother. As she went to walk away from him, he grabbed her by her neck and pushed her down, onto a vacuum cleaner on the floor. This incident was witnessed by Z, who was standing in the stairway. J then got up from the floor and ran out through the back of the house through the laundry, followed by Mr Wills. Mr Wills threw or sprayed liquid from a can in her direction. Mr Wills then left the address shortly after with Z and the two younger children. J then left the house later that afternoon and went to a neighbour’s, where she stayed the night.

[7]                 Mr Wills’ version of events was that he was sitting on a couch in the lounge with the two youngest children, facing the dining area. He says J started acting aggressively towards him by throwing cutlery at him from the dining room. He tried to shut the door but a rug jammed underneath the door which he tried to remove. While he was bent down J then charged into his outstretched hand and bounced off it, falling onto a vacuum cleaner. J continued to act aggressively so he decided to take the other children from the house in his car.

[8]                 Police were called to the address at 9 pm after a report that J was home alone. Upon arriving, the police could not locate J but contacted Mr Wills who arrived back at the address soon after with Z and the other younger children. He told the police that he had been looking after the children, including J, after the mother had gone out earlier in the day. He said there had been an altercation with J during which she had thrown items at him, and he had left the address as a result. Police contacted the mother and soon after received information that J had been found at a neighbour’s address.

District Court decision

[9]                 At the outset of the decision the Judge noted the case for each side. The prosecution’s case in respect of the second charge was that J’s account of events was truthful, supported by the following circumstantial evidence:2

(a)The defendant’s opportunity to commit the offences,

2 At [2].

(b)Z’s observation of the vacuum incident involving his sister,

(c)J’s behaviour after the alleged incident,

(d)Mr Wills’ acknowledgement to Detective Appleyard that evening that there had been an altercation between him and J,

(e)The mother’s evidence that J had complained to her of a sore throat.

[10]             The defendant’s case was that the prosecution could not prove the essential truthfulness of J’s account beyond reasonable doubt and that there was no reasoned basis to reject Mr Wills’ evidence. The vacuum cleaner incident was accidental and there were significant differences between the accounts given by J and Z. It was unlikely that Z was even in a position to observe the incident and there was a risk that J and Z colluded to make up a broadly matching version of events.

[11]The Judge summarised the evidence relevant to the incident:3

(a)In cross-examination J had rejected the defendant’s explanation that she had become hysterical and had thrown cutlery. She rejected the defendant’s suggestion that the layout of the lounge was different than that in the exhibit photographs.

(b)Z in his evidence said he observed the incident and was coming downstairs when he heard a noise. He saw Mr Wills punch J in her stomach, pick her up off the ground by holding her around the throat and pushed her back down on the vacuum cleaner. He said J then ran off and Mr Wills threw a can at her. He rejected Mr Wills suggestion that the couches were set out differently as depicted in a sketch produced by the defendant.

(c)J and Z’s mother in her evidence said she observed sprayed Coca-Cola- type marks in the laundry area and saw empty bourbon cans when she returned to the address later that evening. When she spoke to Mr Wills

3      At [6]–[9].

on arriving back at the address he denied hitting J in any way. She also said J had complained to her the next day of a sore throat.

[12]             The Judge further observed that, while there were differences in the accounts given by the children there was a broad consistency between the two accounts that Mr Wills grabbed J in the throat area and pushed her forcefully down.4 The differences could be explained by their respective ages, degrees of involvement and perspective, and respective positions of observation. Their accounts were supported by the mother’s observation of sprayed liquid in the laundry, J’s later complaint to her of a sore throat, Mr Wills’ acknowledgement to police of an “altercation” and J’s behaviour afterwards.

[13]             As to the Judge’s view of Mr Wills’ evidence, he found him a “wholly unimpressive witness”. He said that much of his evidence was long-winded and he would often go off-topic. The Judge noted that there was some evidence, however, that Mr Wills suffered from ADHD and some allowance had to be made for that.

[14]Ultimately the Judge rejected Mr Wills’ explanation for the following reasons:5

(a)No cutlery or crockery was seen lying in the lounge area consistent with the defendant’s account of J throwing items at him.

(b)Mr Wills’ account was based on a different layout of the couches not supported by the evidence from J, Z and the mother. The Judge considered the evidence was designed to persuade the Judge that Z could not have seen the incident.

(c)It was implausible that a slightly built 10 year old girl would charge at the defendant at a time when he was on the floor trying to free the caught rug.

(d)The defendant’s account that J reacted as aggressively as she did, without warning or reason, was implausible. More plausible was J’s

4 At [10].

5 At [31].

version of events that she was upset by Mr Wills’ comment that he would remove the children.

(e)The defendant accepted that he had some memory blank and confusion about the order of events and acknowledged in cross examination that he was prone to embellishment and exaggeration.

(f)It was unlikely that J and Z colluded to come up with a similar story as the strength of their account lies in the differences indicating that they were not coached or rehearsed in their answers. Collusion or rehearsal of their evidence was also not put to either of them in cross- examination.

Relevant law

[15]             An appeal against conviction in a Judge-alone trial is governed by s 232 of the Criminal Procedure Act 2011. This appeal is brought under s 232(2)(b).

[16]               The Supreme Court re-examined the approach to assessment of evidence for conviction appeals in Sena v New Zealand Police.6 The Court held that appeals in such cases should proceed by way of rehearing in accordance with the well-established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.7 The Court summarised the approach under s 232:8

…appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well- placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.

6      Sena v New Zealand Police [2019] NZSC 55.

7      At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

8      Sena, above n 6, at [40] (footnotes omitted).

Application to adduce new evidence

[17]             The appellant seeks to file further evidence by way of affidavit. The evidence comprises photographs taken by the appellant in October 2018. The photographs are of the interior of the house where the assault took place.

[18]             The High Court may admit further evidence on appeal pursuant to s 335 of the Criminal Procedure Act or in its inherent jurisdiction.9 The discretion should be exercised sparingly and “only admitted where it can properly be said that the interests of justice require the admission, and the proposed evidence satisfies the principles for admission of fresh evidence”.10 The evidence should be sufficiently fresh and sufficiently credible.11

[19]             The Police accept the evidence is credible as it shows that on 3 October 2018, one and a half months before the offending, that one of the couches in a position the appellant maintained it was in at trial. The main dispute concerns whether the evidence is sufficiently fresh. Evidence must be fresh in the sense that it could not, with reasonable diligence, be produced at trial. The appellant says the photographs were held on his Google Drive but he could not access them at the time of the trial because his laptop was broken. Since the trial his laptop has been repaired and he is now able to produce the photos. Mr Heslip for the Police submits that the evidence is not sufficiently fresh as there is no explanation as to how his laptop came to be broken.

[20]             I accept that there is reason to be sceptical on whether this is really fresh evidence, but in the circumstances I have decided to admit it. The issue as to placement of the couch seems to be at the centre of the appeal and the evidence sought to be adduced on appeal is relevant to that. It is important that the appellant is not deprived of his argument on appeal on its merits.

Discussion

[21]             The essence of the appeal is that the Judge was wrong to refuse to accept    Mr Wills’ version of events and the new evidence corroborates his account.

9      R v Ratu [2013] NZHC 3085 at [24].

10 At [24].

11     R v Bain [2004] 1 NZLR 638 (CA), approved by Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; and Lundy v R [2013] UKPC 28.

[22]             At trial there were several discrepancies between the evidence of Mr Wills and the children as to the layout of the living room. The children maintained the layout of the room was consistent with the police photographs taken on 4 June 2019 and produced in evidence. Mr Wills disputed this and said the couches were positioned as depicted of his sketch drawn at the police interview on 15 April 2019 and produced in evidence.

[23]             Whilst the District Court Judge relied on the placement of the furniture as one of the reasons why he preferred the evidence of the children of Mr Wills’ partner to Mr Wills, it is ultimately only one part of the evidence relevant to the key assessment that the Judge was required to make. The key assessment was whether the complainant, and her brother were giving truthful and reliable evidence, and whether Mr Wills was giving truthful and reliable evidence. Witnesses, especially children, can be mistaken about matters of detail concerning circumstances surrounding alleged offending. Those surrounding circumstances will not have had the same memorable impact as the assault itself. They may also have been influenced by Police photographs shown to them. But even if they were mistaken about the layout of the couches, that does not mean that the Judge was wrong to accept their evidence that the assault happened essentially as they said.

[24]             The appellant says the new evidence on appeal demonstrates the Judge erred in his assessment of the evidence. The new photographs, taken on 3 October 2018, depict the black couch immediately behind the door to the kitchen. It also shows the rug Mr Wills referred to in his evidence. The appellant submits the photograph demonstrates that one of the couches was in a position the appellant maintained it was in at trial. I note, however, the photos only show one of the couches in the position that Mr Wills said they were positioned on the day of the offending. So this does not really confirm Mr Wills’ account.

[25]             While the new photographs were taken closer in time to the day of the offending than the Police photographs, both the children’s mother and Mr Wills himself noted the occupants of the house moved around the furniture often. It is quite plausible that the black couch was moved against the opposite wall after Mr Wills took the photographs. In a sense the new evidence provided on appeal confirms that the furniture was moved around. As I say, this is only a matter of detail concerning the

surrounding circumstances. The new evidence does not go to whether the assault occurred.

[26]             In terms of the evidence relevant to whether the assault occurred the following seems to me to be important.

(a)Mr Wills maintains he was sitting on the black couch with the younger children against the window, when J, who was standing in the dining room, started throwing steel cutlery and plates through the door aimed at him. Mr Wills described the plates and cutlery being thrown in a “curved fashion from the dining room”. This seems an unlikely initiation of the altercation. No reason for its initiation was provided by Mr Wills. Equally the cutlery and plates would be thrown not only towards Mr Wills, but also towards J’s younger siblings on this version of events. None of this sounds plausible.

(b)I agree with the District Court Judge that it is also implausible that J would then charge at Mr Wills’ hand and bounce off with such force as to fall backwards onto the vacuum cleaner.   When combined with   Mr Wills’ explanation for how the altercation commenced, a somewhat unbelievable set of circumstances is put forward. The reality was that Mr Wills was left with care of two children under three years old and a 9 year old. It is accepted that there was an altercation when J, aged 10, came home. The suggestion that J commenced the altercation and accidently harmed herself when then attempting to assault him by running at him seems unlikely.

(c)By contrast J provided an explanation for the commencement of the altercation, being that she was annoyed that he was looking after them, following which they argued when Mr Wills said he was going to take them away from their mother, and he then commenced the assault upon her in his anger.

(d)The evidence of the children had a degree of corroboration. Mr Wills himself did not recall picking up the thrown cutlery and the children’s

mother did not recall any kitchen utensils, knives, forks or plates on the ground in the lounge when she arrived home that evening. She also recalled Coke-like splatter on the walls when returning to the house consistent with the children’s description of the events.

[27]             As the Judge noted there were four key features that provided corroboration of the evidence of J and Z. First their mother observed the spray of liquid in the laundry consistent with their evidence about him throwing the can of drink. Secondly J complained to her mother soon after the event that she had a sore throat. Thirdly a neighbour confirmed that J had come over to her address afterwards and appeared upset. And finally there was Mr Wills’ acknowledgement to Constable Appleyard that there had been an altercation.

[28]             Mr Wills’ contention is that both J and Z have fabricated their evidence that he assaulted J. That seems unlikely. It is even more unlikely given that Mr Wills accepts that there was an altercation between him and J. He explains that on the basis that J, a 10 year old, initiated an assault of him, and hurt herself after she charged at him, and bounced off him and fell to the ground. This is an unlikely set of circumstances.

[29]             Mr Wills was given the benefit of the doubt in terms of the other allegations because there was no such confirming evidence, and there were inconsistencies in the evidence given. Those charges were not proved beyond reasonable doubt. I am satisfied, however, in common with the District Court Judge they were so proven in relation to this incident. The new evidence relating to the layout of the lounge, some six weeks before the events took place has only marginal relevance. It seems to me that the District Court Judge’s findings were sound, and for these reasons I dismiss the appeal.

Cooke J