New Zealand Police v Mayadev [2017] NZDC 23702 (19 October 2017)

Last Updated: 21 June 2018

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

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-014014 [2017] NZDC 23702

NEW ZEALAND POLICE

Prosecutor v

[ABHI MAYADEV]

_Defendant

Hearing:	4 October 2017
Appearances:	Mr Hita for the Defendant
Judgment:	19 October 2017

RESERVED DECISION OF JUDGE A J JOHNS

_{Written reasons for dismissing application to admit hearsay statement}

Introduction

[1] Mr [Mayadev] is charged that on [date deleted] December 2016 with intent to injure [the complainant] assaulted [the complainant]. He first appeared on 12

December 2016 and pleaded not guilty to the charge on 26 January 2017.

[2] On 15 March 2017 the matter was remanded through to [ date deleted] June

2017 for a three hour Judge Alone trial. On that date the police sought an adjournment because the complainant was unwell with endometriosis and was apparently in

_{hospital. This application was opposed because prior to the hearing the complainant}

NEW ZEALAND POLICE v [ABHI MAYADEV] [2017] NZDC 23702 [19 October 2017]

had approached an independent lawyer indicating that the statement made to the police was not true and asking that the police not proceed with the prosecution.

[3] The application for an adjournment was granted, reasons were given and the matter was adjourned to 6 September 2017 for a Judge Alone trial. On 6 September

2017 the Court was advised the complainant was again unwell and would not be available to give evidence. The police sought another adjournment to apply to have the complainant’s formal written statement admitted as a hearsay statement. The matter was further remanded to 4 October 2017 for this application to be heard and determined and if allowed for the matter to proceed to hearing.

[4] The prosecution case is that on the morning of [date deleted] December 2016 the defendant and the complainant were at their home. The defendant indicated that he wished to separate from the complainant and then there was discussion between the two. There was an argument between the two as to who should leave the home. When they were together in a spare room, the defendant is alleged to have slapped the complainant on the cheek and when she said that his father did not give him the right to hit her, the violence escalated and she alleged he held her and pushed her to the ground. She alleged that she hit the back of her head and back on the floor and that the defendant took a belt that was hanging on a weights machine and wrapped it round her neck. She alleges he tried to choke her and she managed to push him away and the defendant stopped. She ran out of the spare room and called the police. The defendant came back in and sat on the couch and she went back into the bedroom and locked herself in.

[5] A statement was taken from the complainant on 9 December 2016 and signed by her and witnessed by the police officer that took the statement. Photographs were taken of the complainant but the quality is not good, though one photo indicates possible redness to one side of her neck.

[6] On 5 May 2017, Rachael Treloar, solicitor acting for the complainant, emailed the Prosecution Service indicating she acted for the complainant and that the complainant was not able to give evidence in the Judge Alone Trial on [date deleted] June 2017 because she is very unwell and unable to perform even basic tasks such as

housekeeping. She suggested the complainant’s condition would not change, that she has a long term disability which will prevent her from any activities, and that stress can exacerbate her condition. Ms Treloar concluded by saying that in short the complainant is physically incapable of attending Court and she did not wish to continue with the prosecution.

[7] In a document dated 2 September 2017 prepared by and signed by the complainant, the complainant states the allegations against the defendant were baseless and that she made them because she was angry. She said they did have a heated argument and a little scuffle, but that the defendant never strangled or hurt her. She said she made the police complaint because she was angry at her husband because he wanted a separation, because of her medical condition and because she was forced to by people at the Women’s Refuge.

[8] The complainant went on to say that she had asked the police to drop the case a number of times and had relayed this through Ms Treloar. She indicated she has no evidence to give and nor will she appear in Court because of her ongoing medical condition.

The Law

[9] Section 18 of the Evidence Act provides:

18 General admissibility of hearsay

(1) A hearsay statement is admissible in any proceeding if—

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

(b) either—

(i) the maker of the statement is unavailable as a witness;

or

(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

(2) This section is subject to sections 20 and 22.

Questions for the Court

(i) Is the Court satisfied of the reliability of a hearsay statement?; and

(ii) Is the maker of this statement unavailable as a witness?

Question 1

[10] The prosecution submit that the circumstances relating to the taking of the statement provides reasonable assurance that the statement is reliable because:

(i) She made the statement to a police employee three days after the alleged offending and the signed statement as true and correct.

(ii) There is corroboration of the statement taken by photos showing a belt that is alleged to have been used in the assault and red marks on her neck and cheek area which is consistent with the complainant’s account.

(iii) The Constable that went to the scene on 6 December 2016 describes the complainant as very upset, hardly able to speak and appeared to the officer to be very afraid of the defendant because she flinched and would not look at the defendant when he walked past her.

(iv) Another attending officer who took photos of the complainant described her as being very upset and crying and noticed red marks on her neck.

[11] The defence submit the statement is not reliable in the circumstances because:

(i) When the complainant was spoken to by [Constable 1] on 6 December

2016 he noted she was unsure if she wanted to make a statement about what had occurred.

(ii) The statement taken by the police employee was three days after the alleged offending and that the delay gave the complainant time and

opportunity to fabricate or exaggerate what had occurred between herself and the defendant.

(iii) The observation made by [Constable 2] that the complainant flinched when the defendant walked past her and would not look at him can be attributed to the tension between the couple over the state of their relationship.

(iv) The photos taken by [Constable 1] are unremarkable and show slight redness which is not conclusive either way. There does not appear to be any other injuries which would support an allegation of strangulation and the police employee that took the complainant’s statement on 9

December 2016 noted that she did not see visible injuries on the complainant’s neck.

(v) The complainant has provided a statement of retraction to the police through her counsel Ms Treloar and independently herself. She says that she made false allegations in an angry response to the defendant’s request for separation.

Decision

[12] The focus of s 18(1)(a) of the Act is the reliability of the hearsay statement, not the reliability of the evidence through which the hearsay evidence is offered in evidence. The assessment of reliability should not be concerned with the potential problems with the evidence of the complainant, and the reliability of the witness’s testimony in the hearsay statement is not part of the inquiry under s 18. The Court needs to be satisfied that the evidence is reliable enough for the fact finder to consider it and draw conclusions as to its weight, in other words, as threshold reliability as opposed to ultimate reliability.

[13] In the Court of Appeal case of Adams v R [2012] NZCA 386 at para [26] the

Court said:

A Judge must determine as a matter of law, whether the threshold is met. This gate-keeping role is quite different from the Jury’s role in assessing the credibility of witnesses and the reliability of the evidence given at trial. The distinct constitutional functions of the Judge and Jury must not be conflated.

[14] Having considered the threshold required, I am satisfied that the Court can be reasonably assured that the statement is reliable. It was taken shortly after the alleged offending and it was signed by the complainant as being true and correct, and there was some corroboration of the statement at the time.

Question 2

Is the maker of this statement unavailable?

[15] Section 16(2) of the Act states:

For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person—

. . .

(c) is unfit to be a witness because of age or physical or mental condition;

. . .

[16] The prosecution submit that the evidence provided to the Court for the Judge Alone Trial on 1 June and 6 September demonstrate that the complainant is too unwell to physically attend Court to give evidence because of her endometriosis.

[17] The defence counsel submit that the physical condition of endometriosis does not make her unavailable in accordance with s 16(2)(c) of the Act.

[18] Counsel referred the Court to R v Alovili High Court, Auckland CRI-2007-404-

162, 27 June 2008 paragraph [26]:

There must be a high threshold before it can be said that a person is unavailable as a witness because of mental condition. Mental condition can embrace a wide range of conditions on somebody who is simply distressed or depressed, to somebody who is a catatonic stupor. The former would not render a person

unavailable; the latter would clearly do so. Of itself mental condition does not suffice to render a person unavailable as a witness.

[19] Further, the Judge held that the fact that the stresses of giving evidence may lead to detrimental effects on the witness was not of itself a reason to conclude that the witness was unfit to be a witness under s 16(20(c).

[20] Counsel submit that the same threshold should be applied here in relation to the physical fitness of the complainant to give evidence before the Court.

Decision

[21] The prosecution cannot provide the Court with any updated medical evidence that the complainant’s medical condition is such that she is unable to give evidence in Court. The most update information on the Court file is a letter from [details deleted] Gynaecological Service, [hospital name deleted] dated 23 August 2017 and a letter from the complainant’s GP dated 29 August 2017.

[22] Dealing with the letter from the specialist dated 23 August 2017, whilst detailing a number of issues the complainant has, he does not support the view that the complainant is suffering from endometriosis. He concluded that there may be some psychological issue in relation to chronic pain complex.

[23] In the letter from the complainant’s GP dated 29 August, he simply says that the complainant has been suffering from [pain – medical details deleted] for the last two months making her unable to work or care for her house and children.

[24] I accept the defence submission that to find somebody medically unfit to appear in Court is a high threshold and the Court has not been provided with any updated information supporting the prosecution claim that the complainant is unable

to attend Court.

[25] I have formed the view that in light of the retraction made by the complainant and the lack of any credible medical evidence that she is unable to attend Court, that she has for reasons best known to herself, decided that she does not want to come to Court and give evidence in this matter.

[26] I am not satisfied she is unavailable in terms of s 16(2) of the Act and the application to admit her hearsay statement is declined.

A J Johns

District Court Judge