The Queen v Toia [2008] NZCA 343 (4 September 2008)

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The Queen v Toia [2008] NZCA 343 (4 September 2008)

Last Updated: 12 September 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA236/2008

[2008] NZCA 343

THE QUEEN

v

JAMES LEONARD TOIA

Hearing: 27 August 2008

Court: Chambers, Potter and Miller JJ

Counsel: S D Patel for Appellant
M D Downs for Crown

Judgment: 4 September 2008 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Male assaults female

[1] In February 2007, there was a domestic fracas between Jaewyn Williams and her then partner, James (Hemi) Toia, the appellant. Ms Williams later complained to the police. The police interviewed Mr Toia. In his statement, Mr Toia accepted there had been a domestic incident, but claimed Ms Williams started it. His actions were, he said, in self-defence. The police charged Mr Toia with, being a male, assaulting Ms Williams, a female, contrary to s 194(b) of the Crimes Act 1961. He was tried before Judge Bouchier and a jury. They found him guilty.
[2] Mr Toia now appeals against his conviction.

Issue on the appeal

[3] Mr Patel, for Mr Toia, advanced, as the principal ground of appeal, that inadmissible evidence had come in during the trial. Ms Williams, under cross-examination, referred in some of her answers to previous assaults she said Mr Toia had committed against her. Mr Patel submitted that this evidence was inadmissible and had led to a miscarriage of justice.
[4] Mr Downs, for the Crown, submitted that the evidence of previous assaults was admissible. For reasons we shall give, we agree with him.
[5] Our finding on this issue renders irrelevant Mr Patel’s other ground of appeal, namely the trial judge’s allegedly inadequate direction as to how the jury should “approach the inadmissible comments made by the complainant”. Even though that issue is off the table, we nonetheless intend to make brief comment on it.

Was the evidence of previous assaults inadmissible?

The law

[6] The prosecutor, as is the custom, called the complainant first. Ms Williams’s evidence-in-chief contained no reference to previous domestic incidents. The prosecutor’s stance in that regard was fair. Obviously, if the trial could fairly be conducted without reference to prior incidents, so much the better. Whether those prior incidents would be relevant and thus admissible would turn on the nature of the defence and how the defence was run. The prosecutor had, of course, Mr Toia’s statement, but she did not know for sure that that statement would be the bedrock of the defence. After all, Mr Toia might elect to give evidence.
[7] The fact the prosecutor chose not to call evidence of previous domestic incidents did not mean, however, that such evidence would have been inadmissible if led. Where there is a fracas between two people who know each other well and there is a dispute between them as to who did what, it is often the case that a jury can make sense of the evidence and reach appropriate and just conclusions on it only if they know the nature of the relationship up to that time. That was the point made by this court in cases like R v MacDonald CA166/04 8 April 2005 and R v Patel CA426/05 12 April 2006. We can do no better than quote the following summary from MacDonald:

[14] It is not uncommon for the prosecution to lead evidence of background (or relationship evidence as it is sometimes called) from a complainant which discloses offending by the defendant going beyond what is alleged in the charges the defendant faces. Such evidence does not usually have an independent probative value which buttresses the credibility of the complainant’s core allegations – the usual reason why “true” similar fact evidence is admitted. Indeed, commonly the credibility or otherwise of such evidence is no more or less than the credibility of the complainant’s core allegations which are the subject of charges. Judges allow such evidence to be given not because of the similarity between what is alleged by way of background and the actual offending (although, of course, usually there are similarities) but rather because otherwise the complainant’s evidence as to the alleged offending which is the subject of charges will necessarily be incomplete and perhaps not comprehensible from the point of view of the jury. This is essentially why Judge Lance QC ruled in favour for the admissibility of the evidence.

[15] The approach taken by Judge Lance QC is very orthodox, see for instance a note by Professor Birch in [1995] Crim LR 651, the decision of the English Court of Appeal in R v M [2000] 1 All ER 148 at 152-153, the judgment of Panckhurst J in Attorney-General v Tutty [1998] NZAR 110 at 113 and the decision of this Court upholding Panckhurst J, T v Attorney-General (CA175/97, 27 August 1997).

[16] New Zealand Judges do not usually use the similar fact label to refer to background or relationship evidence. But obviously there is not a bright line distinction between such evidence and orthodox similar fact evidence. Indeed there is a scope for the view that the admissibility or otherwise of background or relationship evidence should be assessed in accordance with similar fact principles, see for instance the approach of the majority in the High Court of Australia in Gipp v R (1998) 155 ALR 15. Whether relationship evidence should be referred to as similar fact evidence may, in the end, be a matter of semantics. We say this because, whatever the label, there can be no doubt that such evidence is subject to exclusion if its illegitimate prejudicial effect exceeds its probative value.

[8] Ms Williams was subjected to a very extensive and gruelling cross-examination, covering over 50 pages of transcript. It was put to her that she had lied about the incident, that she had been the aggressor, that she had acted very oddly if truly a victim of the incident, that she had failed to contact the police immediately afterwards (as she would have done if truly a victim) and that she did not leave the relationship until some time later. It was in the course of that cross-examination that some evidence of previous assaults emerged.
[9] Faced with the authorities referred to at [7] above, Mr Patel was forced to argue that the relationship evidence in this case was inadmissible either because it was non-responsive or because its unfairly prejudicial effect exceeded its probative value: Evidence Act 2006, s 8(1)(a). By “non-responsive”, we mean that the witness referred to past assaults in circumstances where the question she was asked did not call for such reference. Mr Patel used the term “gratuitous references to past assaults”.
[10] Mr Patel highlighted for us seven instances where he said Ms Williams had referred to previous assaults. In all cases but one, he submitted the reference was inadmissible on one or other or both of the above grounds. We turn to consider the evidence in question.

Instance 1

[11] We begin with a reference which Mr Patel in the end accepted was admissible. Mr Patel had asked Ms Williams, “So, in the middle of this altercation, you’re saying you went and got the baby?” Ms Williams answered: “I thought it had finished. In the past, when he has done this before, it’s finished. He does it once. He doesn’t come back for more.”
[12] We need to put that question and answer in context. Ms Williams had given evidence that she was, late at night on 7 February 2007, working downstairs on the computer. Mr Toia’s and Ms Williams’s three children were upstairs, asleep. Baby Charlotte, aged six months, was in her bassinet in the master bedroom. Mr Toia went to bed and woke Charlotte up. Ms Williams could hear Charlotte crying over a baby monitor. Eventually, when the crying did not cease, she went upstairs to see to Charlotte. When she went into the bedroom, Mr Toia grabbed her and threw her across the room. She landed against a dresser. She said she “was a bit stunned” and her side was hurting, but she got up and went to pick up Charlotte, who was still screaming. She cuddled Charlotte and tried to calm her. When that did not work, she decided to change Charlotte’s nappy and breastfeed her. As she was doing that, Mr Toia came at her again and this time threw her against the bassinet. She continued to try to hold on to Charlotte, but in the end, with Mr Toia’s continued attacks, Charlotte flew out of her arms and landed on the head of the bed. Mr Toia then threw Ms Williams out of the bedroom door. Throughout the incident, he was swearing profusely at Ms Williams.
[13] The defence version of the incident was quite different. In essence, the defence contended Ms Williams had attacked Mr Toia because she was annoyed he had woken up Charlotte and done nothing to get her back to sleep. Mr Toia’s actions were all done in self-defence.
[14] The question set out at [11] arose in part of the cross-examination where Mr Patel was challenging Ms Williams’s contention that Mr Toia had been the aggressor. The point of the specific question was to throw doubt on Ms Williams’s account, for how likely would it be that, in the middle of an altercation of this sort, Ms Williams would stay around and start dealing with the baby? Ms Williams provided an explanation for her actions, namely that, when Mr Toia had attacked her in the past, he had done it only once and, as she explained in her next answer, then calmed down. Based on that experience, she thought the incident was over.
[15] Mr Patel correctly accepted this answer was responsive and relevant. So we already have in some evidence that the 7 February incident was not an isolated one.

Instance 2

[16] Ms Williams left the family home on 1 March 2007. Mr Patel asked Ms Williams whether she had left home “because of this incident”, referring to the 7 February incident. Ms Williams replied as follows:

I left home on 1 March. No, there’s many reasons. I knew that the time would come where I had to. I couldn’t keep doing this. Somebody had talked to me quite strongly and told me that I had to stop thinking about myself and I had to start thinking about the children and somebody, I had been having counselling since 2006. To try and get, understand why things were happening, why Hemi was doing what he was doing. And why he was doing what he was doing to the children. And I knew the time, I knew I was going to have to leave one day. I just couldn’t do it, I just, but that incident when he involved Charlotte, that really was like to involve a little baby. That frightened me, really, really, really frightened me, and he was getting worse and worse and worse. His behaviour, his aggression, his violence was getting worse and worse. Every week it was getting worse.

[17] Mr Patel accepted that this answer was responsive. He submitted that, notwithstanding its relevance, it was “inadmissible” because it referred to past violence. How could that possibly be right? He asked why she had left; she gave him an answer. She did not leave solely because of this incident. She left because his violence had been getting “worse and worse”. There is no possible basis on which that answer could be said to be inadmissible.
[18] So now we have two pieces of evidence which make clear that the 7 February incident was not isolated but was simply the worst incident in a series.
[19] We now turn to the remaining instances. We can deal with these rather briefly as Ms Williams’s references to previous assaults in them really added nothing to what she had already said in instances 1 and 2.

Instance 3

[20] Ms Williams had given evidence that, after Mr Toia had thrown her out the bedroom door, she had returned to the bedroom to get Charlotte. She had then spent the night in the lounge with Charlotte. Mr Patel asked her to confirm that she had “woken up in bed with Hemi and Charlotte that morning”, (ie on 8 February). The implication was obvious: the incident could not have happened as she had outlined, because here she was getting back into bed with Mr Toia. In her answer, Ms Williams explained that she had not woken up in bed with Mr Toia. Rather, she had spent the night in the lounge. But she was conscious that 8 February was a very special day in the life of her daughter, Sam: it was Sam’s fifth birthday. She said:

My mistake was I always covered up for sort of behaviour with him and like, what I did is, I sat in the lounge all night with Charlotte and then, as soon as I heard the children rousing, because it was Sam’s birthday, and that’s the one reason, the main reason, one of the main reasons I didn’t want to do anything. I knew I had to but I didn’t want to because it was her birthday and there was no way I was going to have my five year old wake up and see the police there on her birthday to talk to dad, and so what I did is, when I heard them stirring and get up, and she was so excited it was her birthday, and she knew she was going to school, she was five, and she had been talking about it for weeks and weeks and weeks, her birthday, and what I did is I went into the bedroom where Hemi was, I lay down on the bed with Charlotte and acted like everything was okay.

[21] The reference to “always covering up” for Mr Toia was a legitimate part of her explanation as to why she got into bed with Mr Toia that morning. Further, it told the jury nothing more than what they learned from instances 1 and 2.

Instance 4

[22] Ms Williams gave evidence that she first approached the police about a week after 7 February. She then received a call from Officer Dudley to return to the Henderson Police Station, which she did on 24 February. Mr Patel challenged this account. He put to Ms Williams that she had never made a complaint about a week after 7 February; she insisted she had. He then put to her that it was untrue that Officer Dudley had rung her to come back in. The point of the cross-examination was this. It was the defence case that Ms Williams had not complained immediately because, in truth, she had nothing to complain about. But, as her plans to leave Mr Toia solidified over the February, she resolved to make a false complaint, in the hope that, when she left, this would assist her case to have custody of the three children of the relationship. The defence case was she did not complain until 24 February.
[23] Mr Patel challenged Ms Williams no fewer than three times that she was lying about Officer Dudley asking her to come in. Eventually she responded:

No, that’s not true. I don’t know why you’re saying that. The police would have a record of that call. If you spoke to Officer Dudley’s sergeant-in-charge at the time, he was the man who told Officer Dudley that he wouldn’t let it lie there. He said he was afraid that Hemi would go further, because his violence had increased over a period of time and he was frightened that he would turn on to the kids. And he wanted something done about it, that’s why Officer Dudley made that extra call to me and told me I needed to come down and do something about it. So, whoever is in charge of Officer Dudley, he is the sergeant, I think is the next one up, he is the one who read my report when I first went in, and he is the one who told Officer Dudley to call me, and bring me back down.

[24] Again, that was an entirely legitimate explanation by way of refutation of the proposition put to her. Mr Patel submitted the report of what the sergeant had said was hearsay and was used illegitimately to bolster the case that Mr Toia had been violent. But that was not the purpose for which the evidence was being tendered. It could not be evidence that Mr Toia had been violent for, as the answer made clear, the sergeant’s concern was based solely on what Ms Williams had reported on the first occasion she had seen the police – roughly, one week after the incident. There is no suggestion that the police officers had any independent knowledge of what Mr Toia had been doing, as February 2007 was the first time Ms Williams had formally complained. The jury would have realised that.
[25] In any event, a party can scarcely complain if his counsel challenges a witness to the effect that X (a non-witness) said or did not say something and the witness then responds with her recollection of what X said. Even if the answer did contain hearsay (which, in our view, the answer here did not), it would be admissible under s 9.

Instance 5

[26] Ms Williams had given evidence that she suffered injuries from the 7 February incident but she had covered them up with clothes. In cross-examination, the following exchange took place:

17. The question was, you’re saying that the injuries weren’t readily apparent, by looking at you because they were covered with clothes – yeah?
1. Yep, I always did that, always covered them up – I never walked around showing them.

[27] Mr Patel submitted that this was a reference to injuries on other occasions. We are not at all sure that is what Ms Williams meant; in context, it seems she meant no more than that, when she went out after this incident, she always covered up the injuries.

Instance 6

[28] In answer to another question, Ms Williams said she had lived her life with Mr Toia “covering up stuff he did all the time for years”, because she loved him. It is unclear what exactly she meant by “covering up stuff”, but that comment told the jury nothing they would not already have gleaned from other admissible evidence.

Instance 7

[29] Mr Patel put to Ms Williams that she had made a false complaint of assault because she thought that would make it easier for her to get custody of the children. She refuted that as follows:

No, if you know, that’s not right. I have never ever made a complaint about him before, and he’s done a lot of things. I’ve never gone to the police before and made a complaint and done this.

[30] In our view, that was a legitimate refutation of the proposition that had been put to her. Again, it told the jury nothing more than they already knew through other admissible evidence.

Conclusion

[31] In our view, all the evidence now complained about was admissible. It was descriptive of the partners’ relationship. The comments about past incidents were at all times relevant to the questions Ms Williams was asked. The references to past conduct were inevitable given the nature of the defence and the way in which the defence was being run. As well, what did come in about past incidents was in fairly general terms. Ms Williams at no stage went into specifics about the earlier incidents. What one could infer was that the 7 February incident was probably the worst of them. In our view, the judge was right not to exclude this evidence under s 8(1)(a) or on any other basis. That disposes of the ground of appeal.

Four other points

[32] We wish to make four other points. First, at no time during the trial did the experienced defence counsel seek a ruling from the judge that evidence of past assaults was inadmissible. Mr Patel told us that he had raised “some concern” with the judge at the end of day 1 (when he was still cross-examining Ms Williams), but he sought no ruling and made no application. He accepts he did not press the point. We should make clear that this court will be very reluctant to rule evidence inadmissible when no complaint has been formally made at trial. It is hard for an appellate court accurately to gauge the dynamics of a trial from a transcript. If application is made at trial, then we get the benefit of the trial judge’s assessment of the evidence in the context of the dynamics of the trial. Points are not to be saved up for appeal, should the trial end badly from the defendant’s point of view.
[33] Secondly, Mr Patel suggested that most of the references to past incidents were gratuitous and non-responsive. For the reasons we have given, we do not agree. But, even if some of the answers were non-responsive, that would not render them inadmissible, provided the evidence was relevant: see Chadbourn Wigmore on Evidence (Chadbourn Rev 1970) at [785]. Ms Williams’s evidence was relevant.
[34] Thirdly, we remarked earlier – at [5] – that the judge did give a direction about some “inadmissible comments made by the complainant”. Mr Patel submitted to us, as his secondary argument, that the direction was inadequate. This argument falls to the ground as we have held the evidence as to past conduct was admissible, but, for completeness, we want to explain what did happen in this regard.
[35] The judge summed up. She made no reference to the evidence relating to past assaults. At the end, she asked counsel, in the conventional way, whether they had any comments. Mr Patel indicated he had “one small matter”. The judge discussed that “matter” with counsel and then summoned the jury back. She then addressed the jury as follows:

Right, members of the jury. I am sorry to call you back when you’ve just started your deliberations but Mr Patel raised a matter which he’s entirely justified in doing and so there’s another little direction that I am just going to add here.

It’s clear to you and it’s already been said that this alleged assault arises out of a failed relationship. Other incidents were mentioned in evidence. Put those entirely out of your mind and focus on the evidence in relation to the alleged assault on 7th February 2007 which is in the indictment and that alone.

[36] Mr Patel argued that that direction did not go far enough. Our view is quite to the contrary. Mr Patel persuaded the judge to make a direction which was inaccurate, as the “other incidents” were relevant to the case, as we have explained. As it turns out, this additional direction was unduly favourable to the defence, just as the rather similar direction given in R v Thompson [2006] 2 NZLR 577 was held by the Supreme Court to be unduly favourable to the defence: at [20].
[37] Fourthly, the trial ended up being unduly favourable to the defence in another respect as well. Mr Patel called two character witnesses. Their evidence was to the effect that Mr Toia was very honest and trustworthy. Mr Patel accepts that he did not seek the judge’s consent to such evidence under s 37(1) of the Evidence Act. Had he applied for leave to call this evidence, we doubt the judge would have granted the application as the proposed evidence in the context of this case would have not met the “substantially helpful” threshold in s 37(1). As it happens, neither counsel turned their minds to s 37 and the evidence came in regardless. Since Mr Toia got the benefit of this favourable evidence as to his character, any lingering scintilla of concern we may have had about the potential unfairness of the jury hearing evidence of past assaults evaporates.

Result

[38] We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington