O'Brien v R [2020] NZCA 299 (20 July 2020)

Last Updated: 29 July 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA639/2019 [2020] NZCA 299

	BETWEEN	KORI ATAMA O’BRIEN Appellant
	AND	THE QUEEN Respondent

Hearing:	18 May 2020
Court:	Cooper, Duffy and Edwards JJ
Counsel:	S R Lack for Appellant B F Fenton for Respondent
Judgment:	20 July 2020 at 10 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

• [1] In the early hours of 15 October 2017, the appellant, Mr O’Brien, together with his associates cornered a man known to them in a bar. They punched him in the head and face several times. He was then taken to a hotel where he was allegedly assaulted further and forced to take drugs. From there he was taken to a property believed to be a gang headquarters. While left alone, the complainant called the police, who came to his aid on the pretence of arresting him.
• [2] Mr O’Brien pleaded guilty to assault with intent to injure and injuring with intent to injure in relation to the assault at the bar.^[1] He was acquitted of charges relating to the alleged assault at the hotel but was convicted of kidnapping following a trial before Judge Harding and a jury in the District Court at Tauranga.^[2] Mr O’Brien appeals that conviction on five separate grounds, each of which are addressed below.

The trial

• [3] The Crown case at trial was that the attack on the complainant was in retaliation to events that occurred in 2012. It was said that Mr O’Brien believed that the complainant had taken his car and propositioned his girlfriend at that time.
• [4] Later that year, both Mr O’Brien and the complainant were in the same prison. The complainant said he received a letter from Mr O’Brien poked under his cell door saying that the complainant “owe[d] him” because he had been “trying it on with his girlfriend” and his car was never returned. Subsequently, the two men were in a prison van together and Mr O’Brien allegedly told the complainant that he was “lucky he never saw [the complainant] in the yards or he would have smashed [the complainant]”.
• [5] The complainant was the first witness called by the Crown at trial. He gave his evidence by way of audio-visual link from prison. Early on in his testimony he said he could not recall certain events, and he was permitted to refresh his memory from his police statement. That did not assist. The prosecutor was granted leave to put a specific paragraph of the complainant’s police statement to him pursuant to s 90(7) of the Evidence Act 2006.^[3] That ruling is challenged as part of the first ground of appeal.
• [6] Soon after this ruling, and in the face of the complainant continuing to say he could not remember anything he said to police, the prosecutor’s application to have the complainant declared hostile was granted.^[4] This forms the other aspect of the first ground of appeal. That ruling was revisited when evidence regarding the illicit substances consumed by the complainant just prior to his interview with police was brought to the Judge’s attention. However, the hostility determination was confirmed.^[5]
• [7] The prosecutor continued his examination of the complainant into the second day of trial. The complainant continued to maintain that he could not recall what he had said to police, and at one point said he must have made everything up. The Judge conducted a voir dire on the admissibility of the police statement. Both the complainant and the police officer who interviewed him gave evidence. Following the voir dire, and after hearing submissions from all counsel, the Judge ruled that the entire statement was reliable and provided information which the complainant was unable to recall.^[6] It was admissible accordingly.^[7]
• [8] Three witnesses were interposed in the complainant’s evidence, and the complainant was recalled on the third day of trial. The prosecutor put to the complainant that his reluctance to give evidence was due to fear about what would happen to him if he gave evidence consistent with what he had told police. The complainant refused to answer those questions. The prosecutor then put each paragraph of the police statement to the complainant suggesting to him that what he said then was the truth and was consistent with other evidence adduced at trial.
• [9] Counsel for Mr O’Brien cross-examined the complainant on the incident in 2012 that the Crown said led to the assault and the kidnapping some five years later. It was suggested to the complainant that he was lying in his police statement when he claimed that a letter from Mr O’Brien had been poked under his cell door. The complainant responded that he could not recall. However, the complainant did accept that he had lied to police about the prison van discussion where Mr O’Brien had referred to the complainant as being lucky that he had not got smashed in the prison yard.
• [10] The cross-examination also covered an alleged lie the complainant told to obtain a loan of $200. There were also questions about the extent of the complainant’s drug taking on the night in question, and the complainant conceded that, on this aspect at least, he had lied to police. It was also put to the complainant that he knew that he could receive some assistance from police, and that this was why he had lied in his police statement. After initially stating he could not remember, and with apparent reluctance, the complainant accepted that this was true. In re-examination, the complainant confirmed that police assistance was not offered to him in exchange for making the statement, and he had not obtained any assistance at all.
• [11] The Judge declined counsel for Mr O’Brien’s application to cross-examine the complainant on his prior convictions.^[8] This ruling is challenged on appeal and is dealt with in that context. Prior to the release of the complainant, the Judge ruled that the entire police statement could be produced in evidence.^[9]
• [12] At the conclusion of the Crown case, counsel for Mr O’Brien sought dismissal of the charges under s 147 of the Criminal Procedure Act 2011 on the basis that the complainant’s testimony was so lacking in credibility that his evidence should not be left to the jury. It was contended that as the Crown case relied almost entirely on the complainant’s statement to police, there was no evidence to support the charges. That application was dismissed and the challenge to this ruling also forms one of the grounds of appeal.^[10]

First ground of appeal: prior consistent statement and hostility rulings

• [13] There are two parts to the first ground of appeal. First, it is said that the Judge erred in allowing the prosecutor to admit paragraph 16 of the complainant’s police statement into evidence. Second, it is said that the Judge erred in subsequently declaring the complainant hostile.

The prior consistent statement ruling

• [14] Early in his testimony the complainant gave the following evidence about Mr O’Brien’s approach to him in the hotel bar:
  17. So, the next time you see Mr O’Brien is at Flaunt Bar on the morning of the 15th of October?
  1. Yeah.
  17. And can you just talk to us about how Mr O’Brien was and what he said to you when he arrived at the Flaunt Bar?
  1. Oh, I think he was happy to see me.
  17. He was happy to see you?
  1. Yeah.
  17. What makes you say he was happy to see you?
  1. The way he was smiling.
  17. Okay, and so he was smiling when he came, when he saw you, then what happened?
  1. Um, then, um, then we sat down and, oh, I really can’t remember, really can’t remember what happened.
  17. Okay, we’ll just step through this [complainant] he’s arrived ... did you remain seated where you were when you went to sit down or did you go somewhere else?
  1. No I remember getting up and going to sit with Kori, yeah.
  17. Why did you go to sit with Kori?
  1. Well, catch up with him I suppose.
  17. And how was it – how [was] he when you sat down?
  1. Um, yeah he was just laughing.
  17. What was he laughing at?
  1. I don’t know I guess that he’s finally bumped into me.
  17. What did he say to you?
  1. I can’t remember what he said to me.
  17. Can’t remember. Did you talk to the police in your statement about what he said to you?
  1. I might of.
  17. Do you think it would help for you to have a look at your statement?
• [15] The prosecutor was permitted to refresh the complainant’s memory by having him read his police statement. The relevant parts of that statement were as follows:
  14. At about 1.30am this morning I went to the Flaunt Bar on the Strand. I was by myself and I sat at a table in the outside area of the Bar. I was sitting there just talking to a girl for about half an hour and Kori walked in and spotted me.

15. Kori came straight up to me and took me over to a table by the wall.

16. He was psychotic, he was right in my face saying, “you remember what you owe me”. He was holding his fists up showing his big rings on his fingers intimidating me. He kept saying “how much car do you owe me” and “what have you got for me”.

• [16] After refreshing his memory from reading the statement, the complainant had the following exchange with the prosecutor:

A. Yeah I don’t remember – I don’t remember saying this.

17. Do you not remember saying this or do you not remember this happening?

A. Yeah I don't remember this happening.

Q. You don’t remember it happening?

A. Nah.

Q. Is this what you said to the police officer?

A. I don't remember saying this to the police.

17. So it’s your position that you don’t remember saying to this – that to the police and you don’t remember it happening?

...

17. ... you just put the statement down we’re looking at paragraph 16. Is that what you said to the police?

A. Oh I honestly don’t know – remember saying that to the police.

• [17] The Crown applied to adduce paragraph 16 of the complainant’s police statement pursuant to s 90(7) of the Evidence Act. That section provides:

90 Use of documents in questioning witness or refreshing memory

...

(7) A previous statement of a witness that is consistent with a witness’s evidence is admissible if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) the statement provides the court with information that the witness is unable to recall.

• [18] The Judge did not consider the complainant had yet reached the point of hostility. He accepted that the statement was “consistent” with the complainant’s evidence in the sense of not being inconsistent. The Judge considered that the circumstances surrounding the police statement provided a reasonable assurance that the statement was reliable, and he accordingly ruled paragraph 16 was admissible.^[11]
• [19] Following that ruling, the prosecutor put paragraph 16 to the complainant as follows:

Q. And turn with me to paragraph 16?

A. Yeah.

17. And does that say, “He was psychotic, he was right in my face, saying, “you remember what you owe me” he was holding his fists up showing his big rings on his fingers intimidating me. He kept saying how much car do you owe me, and what have you got for me.”

A. Yeah, that’s what it says.

17. And is that part of the statement where you’re talking about what Mr O’Brien said to you after you went over to the table?

A. Yes.

• [20] Counsel for Mr O’Brien says that, contrary to the Judge’s ruling, the complainant’s evidence was inconsistent with his previous police statement and paragraph 16 should not have been admitted in evidence.
• [21] As referred to by the Judge, the requirement that the previous statement be “consistent” with the witness’s trial evidence has been recognised to mean simply that the previous statement is “not inconsistent” with that evidence.^[12] Thus, a statement not otherwise inconsistent with the evidence could be admissible under s 90(7) of the Evidence Act if it provides details that the witness cannot remember.^[13]
• [22] We accept that paragraph 16 of the statement contained evidence that was both inconsistent and consistent with the complainant’s testimony at trial. The complainant’s description of Mr O’Brien as laughing when he took him over to the table is at odds with the description of him as “psychotic” and “intimidating” in paragraph 16. However, those parts of paragraph 16 relating to what Mr O’Brien then said to the complainant were consistent (in the sense of not being inconsistent) with the complainant’s evidence at trial, because the complainant said he could not recall what was said and could not recall telling police what was said at the time.
• [23] It is clear from the prosecutor’s questions both prior to and following the Judge’s ruling that leave to adduce paragraph 16 was so that evidence could be elicited about what Mr O’Brien had said, and not how he presented. We do not consider the Judge to have erred in admitting paragraph 16 in those circumstances. More importantly, if it was an error it was not one that led to a miscarriage of justice. As the trial unfolded, the complainant was declared hostile, and the paragraphs of the police statement were put to him directly. The Judge subsequently ruled that the entire statement should be admitted in evidence.^[14] There is no challenge to this ruling on appeal and we are satisfied that none could properly be made. This ground of appeal cannot succeed.

The hostility ruling

• [24] The questioning of the complainant turned to what happened after the complainant and Mr O’Brien sat down at the table. The complainant described someone punching him from behind, but he denied it was Mr O’Brien. He was reminded that Mr O’Brien had pleaded guilty to punching him outside the bar, and he accepted that he had been punched in the face once or twice. He was then asked about what was said. There was the following exchange:
  17. Was anything being said?
  1. Um, what was that?
  17. Was anything being said?
  1. Ah, I can't remember.
  17. Did you talk to the police about this part of what had happened from the time you sat ... to the time you got hit from the side?
  1. Yeah.
  17. Would it help you to have a look at that part of your statement?
  1. Nah not really. A lot of what I said to the police I don’t even remember saying it.
  17. Which parts do you not remember saying?
  1. Most of it.
  17. Did you tell the truth to the police ... ?
  1. Pardon.
  17. Did you tell the truth to the police?
  1. I don’t know, I don’t know. I was so out of it on drugs how would I know, I don’t know.
• [25] In the absence of the jury, the prosecutor applied to have the complainant declared a hostile witness. The Judge granted that application.^[15]
• [26] We do not see any error in the Judge’s determination. The complainant was clearly reluctant to answer questions put to him by the prosecutor, and we accept the Judge’s observation that he was giving evidence in a manner that appeared to exhibit an intention to be unhelpful to the Crown. Indeed, the Judge observed that the complainant “appears to be deliberately withholding evidence and reluctant to provide even a fraction of the detail he provided earlier”.^[16] The fact that the complainant asserted that he would not be assisted by looking at his police statement was a key part of the Judge’s conclusion. We agree that this was significant. There was no error in declaring the witness hostile. This ground of appeal fails also.

Second ground of appeal: veracity ruling

• [27] Counsel for Mr O’Brien sought leave to cross-examine the complainant on his previous dishonesty convictions pursuant to s 37 of the Evidence Act. The touchstone for admissibility under s 37 is that the evidence must be “substantially helpful in assessing that person’s veracity”.^[17]
• [28] At the time, the complainant had 27 dishonesty convictions obtained over a 13‑year period when he was aged between 17 and 30 years old. These included convictions for unlawfully taking a motor vehicle, shoplifting, obtaining by deception, theft and receiving stolen property.
• [29] The Judge declined the application. He observed in his written ruling that:^[18]

Over the last day or so [the complainant] has been asked questions by both the Crown and defence which must beyond doubt establish in the minds of the jury that he is unreliable and untruthful in one or other ways.

• [30] Therefore, the key issue for the jury was whether the complainant had been dishonest in his evidence in Court or in his statement to the police.
• [31] The Judge ruled that the complainant’s lack of veracity was squarely before the jury and to that extent there was no need for further evidence about it. The Judge concluded that the evidence would not be substantially helpful because it would not help the jury decide whether to rely on the police statement or the evidence given in court.^[19]
• [32] Counsel for Mr O’Brien submits that the Judge’s focus was wrong. He says that s 37 of the Evidence Act does not require the veracity evidence to be substantially helpful in determining a specific issue in the trial, but just substantially helpful in determining the complainant’s veracity generally.
• [33] We are satisfied that the Judge’s focus was appropriately placed, and his ruling was correct. There was already ample evidence before the jury that the complainant had a disposition to lie. That was apparent from the contradictory accounts he gave in his police statement and in his evidence given under oath at trial.
• [34] In addition, there was other evidence before the jury from which inferences as to the complainant’s disposition to refrain from lying could be drawn. That included evidence that the complainant was detained in prison at the time of the trial and that he was awaiting sentence for some matters, and trial for others. There was also evidence that the complainant had been in prison in 2012, and that the police had been looking for him at the time he gave his police statement. It was common ground that the complainant had gang associations.
• [35] Against that background, we agree with the Judge that cross-examining the complainant further on his prior convictions would not have been substantially helpful in assessing the complainant’s veracity. This ground of appeal must be dismissed.

Third ground of appeal: refusal to dismiss charges

• [36] At the conclusion of the Crown’s case, Mr O’Brien applied for the charges to be dismissed on the grounds that the complainant’s evidence was so unreliable and had been so manifestly discredited that it would be unsafe to leave it to the jury. In the absence of that evidence, there was insufficient evidence to support the charges and it was submitted that they should be dismissed accordingly. The Judge declined the application.^[20]
• [37] This appeal ground was couched as an application for leave to appeal on a question of law under s 296 of the Criminal Procedure Act. However, the proper procedural route to challenge Mr O’Brien’s conviction is s 232(2)(a) of the Criminal Procedure Act. That section provides that an appeal must be allowed if the court is satisfied that, having regard to the evidence, the jury’s verdict was unreasonable. We approach this ground of appeal on that basis.
• [38] As this Court has observed, there is little scope to challenge a jury’s verdict for unreasonableness where the verdict is based largely on credibility findings. A verdict is likely to be overturned only where there is new evidence clearly contradicting the witness or in cases of glaring improbability.^[21] If there remains sufficient evidence on the elements of the offence for the jury to be legitimately sure of the defendant’s guilt, then the verdict is unlikely to be quashed.^[22]
• [39] We do not consider that high threshold can be met in this case. This was not a case of a single narrative being so thoroughly discredited that it was unsafe to leave it to the jury. Rather, the jury was faced with differing accounts given by a hostile witness. The task for the jury was to decide whether they accepted the complainant’s evidence as set out in his police statement, or the evidence he gave at trial.
• [40] It was open to the jury to conclude that the complainant’s evidence given to police was to be preferred, and to accept the key aspects of that account as both plausible and credible. Other evidence adduced at trial, such as the video footage from inside a taxi that the group took that night, a recording of the complainant’s emergency call to police, and text and call data recovered from the complainant’s mobile phone, was consistent with the complainant’s police statement. The Judge addressed the assessment of the complainant’s credibility in his summing up and summarised the cases for both the Crown and Mr O’Brien. The issue was squarely before the jury, and, as this Court has recently observed, the assessment of credibility is a quintessential jury function.^[23] This Court should be slow to interfere in that assessment.
• [41] There was no error in allowing the complainant’s evidence to go to the jury. This ground of appeal must be dismissed.

Fourth and fifth grounds of appeal: reasons for the complainant’s reluctance to give evidence

• [42] During his closing address, the prosecutor suggested to the jury that the reason for the complainant’s reluctance to give evidence in accordance with his police statement was because he feared what would happen to him if he did. Counsel for Mr O’Brien submits that there was no evidential foundation for this submission, and the Judge erred by failing to direct the jury to disregard it.
• [43] We are satisfied that there was an evidential foundation for the prosecutor’s submission. The proposition was put to the complainant by the prosecutor as follows:
  17. ... I want to start by asking you about the evidence you gave on Monday and for a little while yesterday. You are reluctant to talk about what happened at the Flaunt Bar and afterwards that night aren’t you?

A. Yeah.

17. And the reason you’re reluctant is because ... the things that were done to you were done by members of the Head Hunters gang, that’s correct isn’t it?
1. I’m reluctant ‘cos I was unwell and I, I don’t, I can’t recall what happened.
17. Come on ... we know that you used to be part of a gang and the people who were assaulting you and threatening you that night were gang members themselves. That’s the position isn’t it?

A. I don’t know.

17. The only reason you’re answering questions in the way you are is because you’re concerned what will happen to you if you give evidence consistent with the statement you gave to the police after the incident?

A. No I gave my reasons yesterday.

Q. You’re in prison aren’t you ...?

A. Yeah.

17. And you’re worried about what other prisoners might do to you if you tell the truth about what happened to you at the Flaunt Bar and afterwards?

A. How do you know that?

Q. Questions are for you ... what is your answer?

A. None.

• [44] After questioning the complainant further on his police statement, and threats that the complainant said had been made by Mr O’Brien and his associates, the prosecutor suggested to the complainant that the complainant believed those threats and that this is why he was not giving a truthful account. The complainant responded, “you’re telling the story”.
• [45] The jury did not have to accept the complainant’s answers at face value. As we have noted, the complainant’s veracity was already in issue. Propositions put by counsel to a witness which are rejected by the witness do not become evidence. But here, the answers given contained an admission that the complainant was reluctant to talk about what happened. His statement that he did not know whether this reluctance was based on what members of the Head Hunters gang had done to him, and his failure subsequently to deny directly that he was worried about what might happen if he told the truth were all matters for the jury to assess. We consider it was open to the jury to infer from the evidence that the fear of retribution from Mr O’Brien and his associates was the reason for the recantation of the statement made to the police.
• [46] We are satisfied that the prosecutor’s closing argument was properly put to the jury. It follows that the Judge did not err in failing to direct the jury to disregard it. The fourth and fifth grounds of appeal must be dismissed.

Result

• [47] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Crimes Act 1961, ss 193 and 189(2).

^[2] Section 209.

^[3] R v Christian [2019] NZDC 18670 [Ruling 1 of Judge Harding].

^[4] R v Christian [2019] NZDC 18595 [Ruling 2 of Judge Harding].

^[5] R v Christian [2020] NZDC 26476 [Ruling 3 of Judge Harding].

^[6] Evidence Act 2006, s 90(7).

^[7] R v Christian [2019] NZDC 18744 [Ruling 4 of Judge Harding].

^[8] R v Christian [2019] NZDC 18928 [Ruling 5 of Judge Harding].

^[9] R v Christian [2019] NZDC 18932 [Ruling 6 of Judge Harding].

^[10] R v Christian [2019] NZDC 19324 [Ruling 10 of Judge Harding].

^[11] Ruling 1 of Judge Harding, above n 3, at [8]–[9].

^[12] Body v R [2019] NZCA 378 at [22]. See also Simon France (ed) Adams on Criminal Law – Evidence (online ed, Thomson Reuters) at [EA90.11].

^[13] Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612 at [88], distinguishing Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23.

^[14] Ruling 6 of Judge Harding, above n 9.

^[15] Ruling 2 of Judge Harding, above n 4.

^[16] At [4].

^[17] Evidence Act, s 37(1).

^[18] Ruling 5 of Judge Harding, above n 8, at [1].

^[19] At [6]–[7].

^[20] Ruling 10 of Judge Harding, above n 10.

^[21] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [78] and [84]; Patel v R [2009] NZCA 102 at [27]; P (CA84/2017) v R [2017] NZCA 319 at [49]; and A (CA41/2017) v R [2018] NZCA 136 at [14].

^[22] Edwards v R [2018] NZCA 93 at [20]–[21].

^[23] Olsen v R [2020] NZCA 20 at [62].