Zainey v The King
[2023] NZHC 1649
•30 June 2023
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY PERSON(S) UNDER THE AGE OF 18 YEARS WHO IS A COMPLAINANT OR WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-209
[2023] NZHC 1649
BETWEEN LUKE ARTHUR FRANCIS ZAINEY
Appellant
AND
THE KING
Respondent
Hearing: 26 June 2023 Appearances:
G A Reid for Appellant
R McDonald for Respondent
Judgment:
30 June 2023
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 30 June 2023 at 2.00 pm.
………………………………
Registrar/Deputy Registrar
Solicitors:
Drury Law, Drury
Kayes Fletcher Walker, Auckland
ZAINEY v R [2023] NZHC 1649 [30 June 2023]
Introduction
[1] Following a judge alone trial before Judge Lovell-Smith in the District Court at Pukekohe, on 30 November 2022, Mr Luke Zainey was found guilty of assaulting a child, two charges of threatening to kill and one charge of assault with a weapon.1
[2] Mr Zainey appeals his convictions, alleging that a miscarriage of justice occurred. He contends that there has been a miscarriage of justice on the following grounds:
(a)the Judge erred in assessing the reliability and credibility of two police witnesses as the Judge was unable to hear portions of their evidence due to the poor quality of the audio-visual link (AVL) through which they each gave evidence from Australia;
(b)Mr Zainey was unfairly prejudiced as one police witness may have been able to hear what another police witness had said before giving their own evidence; and
(c)Mr Zainey was unfairly prejudiced by the prosecution’s failure to call a witness and failure to prevent her from watching the trial in advance of her then being called by the defence at the adjourned trial some two months later.
Conviction
[3] The below recounts the facts the Judge found occurred beyond reasonable doubt and which form the basis of Mr Zainey’s convictions.
[4] Mr Zainey’s convictions arose from incidents that occurred in March 2020. The complaint involved three family members: Mr Norris, Ms Wagner and their son, who was four years old at the time of the alleged offending.2 The complainants were staying with Ms Andrews, a person with whom Mr Zainey co-parented two children.
1 Police v Zainey [2022] NZDC 23748 [District Court Decision].
2 All names other than Mr Zainey’s have been anonymised to protect the identity of the child.
[5] On the evening of 15 March 2020, the complainants, Mr Zainey and others were at Ms Andrews’ address. Mr Norris had put his son to bed before going outside to see Ms Wagner. Upon hearing a “commotion” inside the house, Mr Norris walked inside to the children’s bedroom. There, Mr Norris saw Mr Zainey hitting his son in the head or eye area. Mr Norris intervened, preventing Mr Zainey from continuing the assault. Both Mr Norris and Mr Zainey left the room with Mr Zainey saying to Mr Norris that he was going to kill him in his sleep, cut his head off and stab his head. Ms Wagner went in after hearing the scream and loud noise. Mr Zainey continued similar threats for approximately 30 to 45 minutes before Ms Andrews removed Mr Zainey from the house.
[6] Early on 16 March 2020, Mr Norris was cooking breakfast when Mr Zainey emerged from Ms Andrews’ room and entered the kitchen. Mr Zainey pulled out a knife before threatening Mr Norris with it. Mr Zainey pushed Mr Norris against a benchtop so he could not go anywhere and the point of the knife was up against his throat. While keeping the knife pressed up against Mr Norris’ throat, Mr Zainey again threatened to kill him. Ms Wagner was in the kitchen next to Mr Norris throughout this incident.
[7] Both Mr Norris and Ms Wagner gave their evidence via AVL from Australia. In her decision, the Judge outlined the evidence of Mr Norris, Ms Wagner, Constable Blanchard (the officer in charge) and the conflicting evidence of Ms Andrews. As was his right, Mr Zainey chose not to give evidence. The Judge noted that the issue as to what happened was one of credibility.3 To assess credibility, the Judge considered the “reasonableness, coherence and probability of the evidence” as well as whether “the evidence is consistent with or supported by other evidence”.4
[8] Ultimately, the Judge found Mr Norris, Ms Wagner and Constable Blanchard to be credible and honest witnesses. Ms Andrews, however, was found to be neither credible nor honest but “deliberately evasive”.5 For the charges of threatening to kill Mr Norris, the Judge disregarded Ms Andrews’ evidence in its entirety. She was
3 District Court Decision, above n 1, at [30].
4 At [31].
5 At [32].
satisfied that Mr Zainey had threatened to kill Mr Norris after they had both exited the children’s bedroom.6 The Judge was also satisfied that Mr Zainey had threatened to kill Ms Wagner once she went inside to see what was happening. The prosecution was not required to prove that Mr Zainey actually intended to carry out his threats, just that the threats were made.
[9] The Judge was also satisfied beyond a reasonable doubt that Mr Zainey had assaulted Mr Norris’ son. She accepted the evidence of Mr Norris that he saw Mr Zainey hitting his son as he walked into the bedroom.7
[10] As to the charge of assault with a weapon, the Judge noted that it was not at issue that Mr Zainey had a knife. The question was what kind. Ms Wagner and Mr Norris said it was a large knife with a serrated edge, while Ms Andrews and Mr Zainey in his statement given to Constable Blanchard said it was a fruit knife. The Judge preferred the evidence of Mr Norris and Ms Wagner and was satisfied that it was not a fruit knife. She was satisfied that Mr Zainey had assaulted Mr Norris in the manner described above at [6].8
[11]The Judge therefore found Mr Zainey guilty on all four charges.
Principles on appeal
[12] The appeal is brought pursuant to s 229 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that a miscarriage of justice occurred that created a real risk the outcome of the trial was affected.9 A miscarriage of justice means any error, irregularity or occurrence in, or in relation to, or affecting the trial that either: creates a real risk that the outcome of the trial was affected; or resulted in an unfair trial or a trial that was a nullity.10 A Court must only find a miscarriage of justice occurred if an error or irregularity is such that the jury verdict (or Judge’s decision) can be deemed unsafe.11
6 At [33].
7 At [35].
8 At [36].
9 Criminal Procedure Act 2011, s 232.
10 Section 232(4).
11 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [6].
[13] Mr Zainey says a miscarriage of justice occurred and that his convictions should be set aside. I consider each of Mr Zainey’s grounds of appeal in turn.
Issue one – did the Judge err in her assessment of the credibility and reliability of the witnesses due to AVL issues?
The appellant’s submissions
[14] Mr Reid, counsel for Mr Zainey, submits that the sound quality of Mr Norris and Ms Wagner’s AVL evidence was “extremely poor, and it was often difficult to follow the answers given”. Further, there was allegedly a delay which further exacerbated the poor sound quality. Mr Reid points to “several stops” in the notes of evidence and parts of the evidence which were noted as inaudible. He submits that “crucial questions” around inconsistencies between police witness statements and evidence are recorded as inaudible. Therefore, because the matter went part heard, the Judge, through having to rely on the notes of evidence, erred in her assessment of the credibility and reliability of the witnesses.
[15] With reference to the inconsistencies between the prior statements and evidence, Mr Reid provided the Court with a copy of the statement Mr Norris made to the police. The written submissions did not identify the “crucial questions” referred to. In oral argument, Mr Reid relied on the following aspects:
(a)He pointed to a reference in Mr Norris’ statement to Mr Zainey having taken the knife out of his pocket “really quickly” whereas in the transcript the Court is recorded as saying to Mr Norris “[s]lowly, slowly, he pulled out [a] knife from his pocket” to which he answered “[y]es and then pretty much threatened me …”. In fact, there are no parts of this passage that are noted as “inaudible” in the transcript.
(b)He pointed to parts of the transcript where Mr Reid cross-examined Mr Norris on his earlier statement. As an aspect that should raise concern, he referred to the introduction of the statement. Mr Norris was asked whether he made the statement on a certain date, the response was that he did not remember the exact date because he had severe
PTSD so tried to blank it out. There is an inaudible reference when Mr Norris describes that “[e]very night I (inaudible 15:07:03) and that would keep coming and coming so for the last couple of years I have tried to just, to blank out the exact incident and the dates.”
(c)He referred to a passage of cross-examination of Mr Norris on his reference in his prior statement to Mr Zainey having a blue taser. In the passage it is evident that Mr Norris was asked to repeat aspects because he was speaking too fast. There are references to “inaudible” in several answers. Mr Reid submitted this was crucial evidence. He said the Judge would not know or remember what was answered where the transcript did not pick up the answer. He also said his cross- examination flow was impeded by the difficulty in hearing the responses and dealing with the AVL link.
(d)He referred to being shut down by the Judge from asking questions of whether Ms Wagner saw her son being assaulted. No issue of audibility arises in this passage. Mr Reid appears to be raising a different issue that the objection to the questioning should not have been sustained.
Analysis
[16] An appellate court must exercise caution where the challenge is to credibility findings based on contested oral evidence.12 This is because the trial judge has the advantage of being able to assess the witness’ character and the benefit of observing witness gestures, expressions and intonation not apparent on the written record nor available to the appellate court.13
[17] I do not accept that any error or miscarriage of justice has occurred in the Judge’s assessment of credibility and reliability of the two witnesses who gave evidence via AVL from Australia.
12 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
13 At [39]-[40].
[18] Although there were many “inaudible” notations in the notes of evidence of Mr Norris and Ms Wagner, the Judge and counsel were alive to this issue. The following extracts of the evidence (both examination-in-chief and cross-examination) are sufficiently clear to make out the elements of the charges and, in the context of all the evidence, for the Judge to form the basis of a credibility and reliability assessment.
[19]Evidence relating to the assault on a child charge:
(a)Mr Norris:
I heard a commotion, after the commotion I stood up and I walked inside, I went to the bedroom where the children were sleeping, I witnessed Luke Zainey hitting my son …, I don't know exactly if he hit him in the eyes or the head but I saw him doing this motion and then I walked in there, I grabbed Luke, I (inaudible 14:54:50).
…
I could see the hands it was, it was open like it was up but I couldn’t see past – I couldn’t see past his body from where he held the child whether it was a fist or a hand I could hear a very (clap sound) slap.
…
As far as I could see he hit him in that area, I couldn’t tell if it was the head or the face.
…
Q. I put it to you you didn’t see his hand actually hit [him]?
A. I saw him strike [my son] yes.
Q. I put it to you you don't know where he struck [him]?
A.I could see that he struck his body because you could see his body …
(b)Ms Wagner:
… [Mr Norris] was trying to keep himself as a barrier between Luke and our children.
[20]Evidence relating to the threating to kill charges:
(a)Mr Norris’ evidence-in-chief:
After he exited the room he basically started saying he’s gonna to kill me, he’s gonna kill me in my sleep, he was going to cut my throat, cut my head off, yeah, he just – he kept swearing at me, he just said he’s gonna to kill me, he’s gonna kill me, he’s gonna cut my head off and cut (inaudible 14:57:54) my sleep.
(b)This evidence was then clarified by the Judge:
Q. He would what, cut?
A. Cut me out in my sleep and cut my head off basically, he’s threatening the knife, the knife (inaudible 14:58:08).
Q. What would he cut, he would cut?
A. Cut my head, like he was threatening to stab my head and (inaudible 14:58:09) and that.
Q. So he would cut your head?
…
(c)During cross-examination of Mr Norris:
Q. Mr Zainey then went outside the house?
A. After he was screaming that he’s gonna kill me and threatening me yes.
(d)Evidence of Ms Wagner:
… And then there was just lots of screaming and death threats and [Ms Andrews] ended up getting Luke outside at which point he smashed my phone and my vape (inaudible 15:36:37) at that point.
[21]Evidence relating to the assault with a weapon (knife) charge:
(a)Mr Norris:
A.…he had said something to me so I replied to him and then he pulled out a knife from his pocket.
Q. Slowly, slowly, he pulled out [a] knife from his pocket?
A.Yes and then pretty much threatened me and then like pushed me against the, against the benchtop and so I couldn’t go anywhere, [Ms Wagner] was next to me as well when he had pushed the knife up into my throat to a point where I could barely (inaudible 15:02:56) how sharp.
Q. Just pause, pushed the knife up to my throat, yes?
A. To the point where I could feel how sharp the tip was on the knife. It was obviously hurting (inaudible 15:03:16) as well.
…
… there was a knife to my throat that was very sharp holding, he was holding it into my throat.
(b)Ms Wagner:
Q.So [Mr Norris] came into the kitchen, sorry Luke came into the kitchen?
A.And [Mr Norris]asked him to replace or repair my phone. At that point Luke then turned around and pulled a knife to [Mr Norris’] throat, like literally right here and –
Q. Just pause there, where did the knife come from?
A. I’m not sure, I didn’t see it come I just saw it (inaudible 15:39:27).
…
Q. So there’s you, there’s [Mr Norris] and there’s Luke in the kitchen and Luke’s got a knife to [Mr Norris’] throat, is that right?
A. Yes that's correct.
[22] The Judge was best placed to assess the credibility and reliability of this evidence in the context of all the evidence given. It is clear from the transcript that the Judge was taking her own handwritten notes14 and she intervened for the purposes of slowing the witness down when she was unable to understand or hear as necessary or appropriate. The passage Mr Reid relies on to say Mr Norris gave inconsistent evidence of the knife being taken out “[s]lowly, slowly” as opposed to “quickly” in his prior statement, is one such instance of this. It is the Judge that uses the words “[s]lowly, slowly”. In context it is clear to me that this was the Court again asking Mr Norris to proceed more slowly. It was not intended by the Judge or taken by the witness as the Judge putting to him that this was how the knife movement
14 Her Honour pauses the witness because he is speaking too fast “because I have to write everything down although it’s being recorded anyway but I have to make a handwritten record of it, I can’t keep up”.
occurred. This passage does not advance the appellant’s case on appeal for that reason as well because nothing is identified as inaudible in it.
[23] I have considered Mr Reid’s questioning of Mr Norris on his previous statement that Mr Zainey held a taser which had not been an issue raised with him in evidence-in-chief. Mr Norris was cross-examined by Mr Reid to the effect that there was no taser. The questions put were referenced in the Judge’s narrative of the evidence. The presence or use of a taser did not form part of the summary of facts on which the charges were laid. Accordingly, this issue went only to credibility. No specific finding was made. In my view from the flow in the transcript there was sufficient evidence for the Judge to form a view on Mr Norris’ credibility on this issue. In any event it forms only one aspect of the evidence.
[24] Mr Norris was speaking fast and while accepting for present purposes that the quality of the AVL increased difficulties associated with this, I do not accept the appellant’s contention that it created such difficulty for cross-examination of Mr Norris as to give rise to an error or miscarriage of justice. The fact that the witness needed to be stopped to speak more slowly and to allow questions to be put is not unusual. I do not regard the transcript as indicating it was unmanageable nor that it impacted in a material way on the Judge being in a position to assess the key aspects of the evidence.
[25] Finally, Mr Reid referred to Mr Norris’ responses on questioning on his previous statement that he could not remember when he gave it due to PTSD and to Mr Reid’s questioning being shut down by the Judge on objection by the prosecution when he was asking questions of Ms Wagner about the assault of her son. The content of the objection was not explained to me. These matters did not seem to me to be relied upon because of the quality of the AVL link but more generally affecting the Judge’s credibility findings. I do not consider that they have been shown to give rise to an issue of concern affecting the decision either individually or in combination with other matters. The Judge was well entitled to prefer the evidence of Mr Norris and Ms Wagner to that of Ms Andrews.
Issue two – Ms Wagner entering the room while Mr Norris gave evidence
The appellant’s submissions
[26] A witness exclusion order was made at the beginning of the trial. Mr Reid submits that a miscarriage of justice arose because Ms Wagner chased a small child into the room where Mr Norris was giving his evidence. Ms Wagner was to give evidence subsequent to Mr Norris. Mr Reid submits that by Ms Wagner entering the room, the Court can have “no faith that [Ms Wagner] did not listen to [Mr Norris] give evidence” or alternatively that Mr Norris listened to Ms Wagner give evidence. The appellant is critical of a lack of supervision of the AVL facility in Australia. This, according to Mr Reid resulted in Mr Zainey being “unfairly prejudiced”.
Analysis
[27] In Smith v R the Court of Appeal held that the purpose of witness exclusion orders “is to ensure the fair trial of an accused person”.15 Such orders minimise the risk that witnesses will modify his or her testimony in response to that given by a prior witness. However, there is no sufficient factual basis for suggesting that Ms Wagner in fact remained in the room as opposed to simply entering to retrieve a child who had gone inside and then leaving. No issue was raised at the time with the Court or in cross-examination of Ms Wagner. No error or miscarriage of justice is demonstrated. I do not accept that the incident is sufficient to find that the appellant was unfairly prejudiced as Mr Reid submitted.
[28]This ground of appeal fails.
Issue three – failure by the prosecution to call or supervise Ms Andrews
The appellant’s submissions
[29] Mr Reid submits that the prosecution’s failure to “supervise” and call Ms Andrews resulted in a miscarriage of justice. Ms Andrews was summonsed as a witness for Mr Zainey’s trial. She arrived at court at that date and waited to give evidence in the court foyer. In her affidavit on the appeal, she said that every so often
15 Smith v R [2015] NZCA 217 at [38].
she observed the hearing from the foyer in the gap between the court doors to see what was happening. Ms Andrews was not called as a prosecution witness. She was, however, called by the defence at the resumed trial over two months later.
[30] Although Mr Reid acknowledges that the prosecution was entitled not to call Ms Andrews, he submits that their conduct is in breach of r 13.12 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and the duty for prosecuting lawyers to act fairly and impartially. He submits that the prosecution’s decision not to call Ms Andrews enabled the prosecution to concentrate only on the parts of Ms Andrews’ testimony that supported their case rather than having to deal with “exculpatory evidence” which Mr Reid submits would have likely emerged when questions were asked. Therefore, Mr Reid submits that there was at least a “good faith obligation” on the prosecution to “preserve the witness for the use of the defence” by supervising Ms Andrews and by ensuring she did not observe or watch the hearing.
[31] In oral submissions Mr Reid also raised unfairness as to the several times the trial had been deferred and the fact that in the meantime, Ms Andrews was maintained as a police witness, which had effects on the ability of Mr Zainey to see his sons.
[32] The principles on the prosecution’s right not to call a witness are settled.16 Generally, the prosecution “must call witnesses whose narratives are essential to the case, irrespective of whether the evidence will help or hinder the prosecution’s case”.17 This principle however is subject to the qualification that the prosecution is not obliged to call a witness whom they deem untrustworthy.18 Mr McDonald for the Crown referred me to R v Bishop where the Court of Appeal stated (although in relation to the predecessor to s 113 of the Criminal Procedure Act) that it is:19
… in accordance with proper practice for the Crown to decline to call such a witness who it is reasonably thought will not be a witness of the truth …
16 Crook v R [2020] NZSC 86 at [19] approving of the principles applied in Crook v R [2020] NZCA 148.
17 Leighton v Police [2018] NZHC 1319 at [18] as cited in Crook v R (CA), above n 15, at [11].
18 Crook v R (CA), above n 15, at [11].
19 R v Bishop (CA125/96) [1996] 3 NZLR 399 (CA) at 401.
[33] I accept the Crown’s submission that the police were entitled to conclude that Ms Andrews’ evidence was of this character. There were significant inconsistencies between her evidence and that of the prosecution witnesses. The Judge’s ultimate conclusions that were critical of Ms Andrews’ credibility and reliability give force to the submission that the prosecution’s decision not to call Ms Andrews was sound.
[34] In some situations, it can be argued that by not calling a particular witness the prosecution is able to take advantage in the presentation of its case of the absence of the witness.20 There is no potential advantage or issue of prejudice to Mr Zainey here. While Mr Zainey’s counsel was advised only on the day of the hearing that Ms Andrews was not required for the prosecution, there was more than ample time available for Mr Zainey’s counsel to make the decision whether he wanted to call Ms Andrews and to brief her evidence between the first day of the hearing on 22 August 2022 and the resumed trial on 28 October 2022.
[35] Mr Reid did not contest this. His proposition was a broader one of principle and of prosecuting counsel’s obligations under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. As noted above, Mr Reid also raised issues about the impact on Mr Zainey and his life arising out of Ms Andrews having been a potential police witness up until that point in time following several prior deferrals of the trial. I am not in a position to form any views on these issues on the evidence before me. Nor do I need to, as they are collateral to the issue of whether there has been a miscarriage of justice that would justify granting the appeal within s 229 of the Criminal Procedure Act. The matters relied upon are not occurrences in relation to or affecting the trial that have resulted in an unfair trial. Nor are they matters that have created a real risk that the outcome of the trial was affected.
[36] The only trial-related issue raised by Mr Zainey is that Ms Andrews was not properly supervised by the police on the day of the hearing when she was waiting to
20 Crook v R (CA), above n 16, at [13]. The appellant pointed to some potential issues unfavourable to the Crown that would have arisen had the witness been called. However, the Court of Appeal was unwilling to engage in speculation as to what a witness would or would not have said and held that the absence of the witness caused no unfairness. In that case no unfairness was found despite the fact that the witness was not called at all (by prosecution or defence).
be called. Ms Andrews says she watched some of the evidence from outside the court through the gap between the Court doors on several occasions.
[37] I do not need to investigate whether there was any police duty to supervise or whether it was breached. Ms Andrews does not say she heard any of the evidence, and I am not prepared to infer that she did. No issue was raised by Mr Zainey’s counsel at any point on the first day of the trial. Nor was any issue raised at, or in advance of, the resumed trial about Ms Andrews having been present outside at the prior hearing. Mr Zainey does not even now point to any effect of Ms Andrews’ presence outside the Court on Ms Andrews’ subsequent evidence or on the Judge’s findings. The issue is a more general complaint. There has been no miscarriage of justice on this account. This ground of appeal fails.
Conclusion
[38] I am not satisfied that a miscarriage of justice has occurred on any of the above issues individually or in combination.
[39] In my view, the Judge’s decision was thorough and well-reasoned. She justified her credibility findings and engaged with the evidence. In all therefore, I am satisfied that no miscarriage of justice occurred. Any irregularity or error was minor and did not risk the convictions being deemed unsafe.
[40]The appeal is dismissed.
Anderson J
0
3
0