R v Davison [2016] NZDC 9842 (2 June 2016)

Last Updated: 19 February 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT GISBORNE

CRI-2015-082-000288

[2016] NZDC 9842

THE QUEEN

v

[PETERA DAVISON]

Hearing:	2 May 2016
Appearances:	J E Rielly for the Crown N H Wright for the Defendant
Judgment:	2 June 2016

JUDGMENT (REASONS) OF JUDGE W P CATHCART

Application to close the Court

t the commencement of the hearing on 2 May 2016, I granted an application under s 197 Criminal Procedure Act 2011 ordering that the Court be closed during the evidence of the witnesses, [Witness 1], [Witness 2] and [Witness 3].

nder s 197(1) Criminal Procedure Act, the Court may make an order excluding all persons from the whole, or any part, of any proceedings apart from those specifically listed as being entitled to be present. An order under s 197(1) may only be made if the Court is satisfied that the order is necessary to relevantly avoid endangering the safety of any person and that a suppression order is not sufficient to avoid that risk.

R v [PETERA DAVISON] [2016] NZDC 9842 [30 May 2016]

t is settled law that where there have been threats made to a witness in the context of an ongoing gang confrontation, an order may be necessary to prevent the intimidation of a witness while giving evidence.1

Perverting the course of justice

n 1 May 2016 the officer in charge of the case, Detective Kirk, visited the home address of the witness, [Witness 3]. She is the defendant’s sister. [Witness 1’s] father is [details of gang affiliation deleted]. Whilst Detective Kirk was discussing matters relating to her evidence in the upcoming trial, the defendant’s father, in strong language, directed Detective Kirk to leave.

t is then alleged that [Witness 1]’s father directed her that she was not to be a Crown witness and that she was not going to Court the next day. Detective Kirk reacted to that comment as required and he advised the father that he would not tolerate any witness being threatened in that manner. The father apparently repeated his direction to his daughter that she would not be giving evidence. The father was arrested on a charge of perverting the course of justice. He was remanded into custody during the course of this hearing.

Detective Kirk’s evidence

he detective informed the Court that from the time the complainant made her statement he had had significant difficulty in contacting her. He said that she never answered his calls and rarely responded to text messages. The detective said the complainant had expressed fears that there may be retribution from [name of gang deleted] in the area. The detective said the complainant had intimated thoughts along that line. It is accepted that the defendant has an affiliation to that group.

lso, as matters now stood, the complainant had moved out of her previous address and she was now residing at an address which was the residence of another

AAA

1 R v Tihi (No 3) HC Tauranga CRI–2003–047–415, 15 June 2004, R v Mangnus HC Auckland CRI-2006–004–7577, 16 August 2007 at [58]. The Crown also relied on s 197(2) that the order was necessary to avoid undue disruption to the conduct of the proceedings.

[gang member]. The detective said that prior to the commencement of the case this morning, the complainant was extremely nervous about giving evidence.

ith respect to the witness, [Witness 2], the detective said that she was extremely evasive. He said that he had made 15 to 20 telephone calls but he got no response. Also, he was unable to locate her at the address previously given. By chance, he had a meeting with her in the [location deleted] shopping area. He was then able to serve the warrant upon her compelling her attendance at Court.

he detective said that [Witness 2] informed him that she had been approached by a male family member, who made a comment to her that her involvement as a Crown witness was “not what family do to each other”. Also, [Witness 2] expressly asked the detective if the Court could be closed because she was very concerned about her safety.

ith respect to the witness, [Witness 3], the detective relied on the evidence relating to the attempt to dissuade her from giving evidence. According to the detective, this witness expressed disappointment that her brother had got everyone into this situation.

rs Wright cross–examined Detective Sergeant Kirk. He accepted that he had no discussion with the witnesses about the possibility of having screens whilst they give evidence. He acknowledged that Mrs [Davison] and her daughter, [Witness 2], were directly connected to [name of gang deleted].

ith respect to Mrs [Davison] Snr, he said that she had been obstructive when a search warrant was executed in relation to this case on 24 September 2015. During that search, she continued to disobey the detective’s instructions to remain in the room whilst the place was searched.

iven the evidence relating to the conduct of [Witness 3]’s father towards his daughter, I was satisfied that there was sufficient evidence that there has been an attempt to dissuade her from giving evidence. This conduct occurred in a familial atmosphere marked by gang associations. I formed the view that it was necessary to

close the Court to prevent any further intimidation of this witness whilst she gave her evidence.

ith respect to the complainant, I was satisfied on the evidence that she had expressed fears that there may be retribution from gang associates in relation to her decision to give evidence in the trial.

ith respect to the witness, [Witness 2], I was satisfied that there was evidence to suggest that a family member had possibly intimidated the witness to not give evidence in the case.

n short, all three witnesses have been subject to intimidatory tactics by family members, including those who are directly or indirectly associated with [name of gang and location deleted]. I was satisfied that the order closing the Court during the evidence of all three witnesses was necessary to prevent intimidation of those witnesses whilst giving evidence. In my view, such intimidatory tactics constitute an endangerment to the witnesses’ safety under s 197(2)(iv) Criminal Procedure Act.

lso, I was satisfied that a suppression order in relation to each of those witnesses would not be sufficient to avoid that risk of intimidation.

Application to declare complainant hostile

s noted in my ruling 2, I granted the Crown’s application to declare the complainant, [Witness 1], hostile pursuant to s 4 Evidence Act 2006.

he complainant had signed a police statement on 17 September 2015. The Crown sought to cross-examine the complainant on the following paragraph in that statement:

At the same time [the defendant] rushed forward in front of me. I saw [the defendant] holding a long baton–type object. I then held up my left hand to protect my face and nose and then I saw him hit me again with the object. This time it hit me on my hand. I then saw him hit me again three times but this time it hit me in the jaw just under where I was holding my left hand over my nose to protect it. He then hit me again in my right temple and then again on my right shoulder. I saw him swing the object at me with one hand for each time he hit [me].

ith respect to a witness, s 4 defines that “hostile” means in relation to that witness:

xhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or

ives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or

efuses to answer questions or deliberately withholds evidence

he Crown relied on paras (a) and (b) of that definition. In Penney v Police,2 Priestly J dealt with a prosecution witness’ evidence that was spectacularly inconsistent with her pre–trial statement. Priestly J said at [32]:

In my judgement, although ‘manner’ clearly covers such matters as the witness demeanour, the word has a wider ambit. The nature of the inconsistencies is relevant to an assessment of manner. Relevant too would be the frequency of inconsistencies and their centrality to a party’s case.3

n this case, the passage relied upon by the Crown is diametrically at odds with the evidence that the complainant gave in evidence–in–chief. In that evidence the complainant maintained that the attack was from behind and that she did not see who inflicted the blows. She maintained that when she turned around the defendant and her friend were standing nearby. The complainant maintained that she did not see the defendant strike her with the blunt instrument.

he Crown submitted that this evidence was so starkly inconsistent with the previous statement such that the degree of inconsistency was relevant to the assessment of the manner in which the witness appeared to exhibit a lack of veracity or an intention to be unhelpful to the Crown.

lso, the application was made against a background where the complainant in evidence-in-chief consciously refused the offer to refresh her memory from the earlier statement.

AAA

2 HC Auckland, CRI-2008-404-307, 4 December 2008 at [35]

3 At [32]

or the defence, Mrs Wright maintained that there was no obvious animus towards the Crown. Mrs Wright submitted that the complainant seemed to be confident about her ability to recall events. With respect to the degree of departure from the earlier police statement, Mrs Wright maintained that it was not a sufficiently significant departure. Mrs Wright invited the Court to simply direct the witness to refresh her memory before answering questions. I pointed out to Mrs Wright that the witness had already refused that invitation by the Crown.

n my view, s 4(b) Evidence Act has been satisfied. The evidence–in–chief was patently inconsistent with the version in the written statement. In her evidence, she maintains the theme that she never witnessed the defendant strike her with a blunt instrument. However, the police statement records a clear account in which the complainant identified the defendant as the perpetrator with respect to each of the blows she suffered.

formed the view that for reasons not fully explained, but possibly relating to a fear of retribution, the complainant appeared to exhibit an intention to be unhelpful to the Crown by not wanting to point the finger at the defendant.

he application was satisfied on ground 4(b) alone. Given that view, I did not consider it necessary to deal with the ground relied upon under s 4(a).

W P Cathcart District Court Judge
TIIFTITrgeWTAAIWWGWMWTWTIOIUA