KAHUKIWA V NEW ZEALAND POLICE HC ROT CRI-2008-463-80 [2009] NZHC 195 (23 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                                   CRI-2008-463-80



                            PETER RAWIRI KAHUKIWA
                                    Appellant



                          
               v



                              NEW ZEALAND POLICE
                                   Respondent



Hearing:  
     23 February 2009

Appearances: Mr P T Birks for Appellant
             Mr R Bird for Respondent

Judgment:       23 February
2009


                           (ORAL) JUDGMENT OF LANG J
                             [on appeal against conviction]




Solicitors:
Crown Solicitor, Rotorua
Counsel:
Mr P T Birks, Rotorua




KAHUKIWA V NEW ZEALAND POLICE HC ROT CRI-2008-463-80 23 February 2009

[1]    Mr Kahukiwa faced a charge in the District Court of assaulting his partner.
After a defended hearing on 20 May 2008, His
Honour Judge McGuire found the
charge proved and convicted Mr Kahukiwa.


[2]    There was then a delay before he was able to sentence
Mr Kahukiwa.
During that period Mr Kahukiwa spent some time in custody on remand. When the
Judge ultimately came to sentence Mr Kahukiwa
on 29 September 2008, he
concluded that an appropriate sentence was the time that Mr Kahukiwa had already
spent in custody.     
  He therefore sentenced Mr Kahukiwa to two months
imprisonment, which meant that he was eligible for immediate release.
Notwithstanding
that Mr Kahukiwa has now effectively served his sentence, he now
appeals to this Court against his conviction.


Factual background


[3]    The circumstances in which Mr Kahukiwa came to be charged have, not
surprisingly, a domestic background.


[4]    The prosecution
alleged that an incident occurred in which Mr Kahukiwa
physically assaulted his partner by punching her on the arm and leg on the
evening
of 27 February 2008. He and his partner had, at that stage, been in a relationship for
about eight years.


[5]    On the
following day the police took a written statement from the
complainant in which she gave details of the assaults that Mr Kahukiwa
was alleged
to have committed upon her the previous day.


The hearing in the District Court


[6]    When the complainant came to
give evidence at trial, she did not repeat any
of the evidence that was contained in her statement. Instead, she told the police
that
she had been drinking heavily on the day of the alleged incident and that Mr
Kahukiwa had not assaulted her at all. Although
photographic evidence showed that

she had recent bruising, she said that this had occurred as a result of the fact that she
had
slipped on a beer can and struck her arm and head against a pole on a verandah.


[7]    She was adamant that Mr Kahukiwa had not
struck her on 27 February 2008.
She said, in fact, that she had been aggressive towards him and that she had attacked
him. She also
said that he did not retaliate against her for this attack.


[8]    During the course of her evidence the prosecutor obtained the
leave of the
Judge to cross-examine the complainant on the basis that she was a hostile witness.
When the prosecutor put her written
statement to her, the complainant said that she
did not remember what she had told the police on 28 February. She maintained that
her evidence at trial was correct and that Mr Kahukiwa had not struck her at all.


The Judge's conclusion


[9]    The Judge expressed
his conclusion that the charge had been proved in the
following way:

       [10]    If one puts her statement to the Police, saying
she doesn't know how
       many times she was punched in the arm, alongside his statement about that,
       simply that, "I don't
need to punch her in the arm", I draw a conclusion that
       I consider I am entitled to that he did punch her in the arm. Self
defence,
       although hinted at possibly, does not reach an evidential threshold where I
       must consider it. So although
an ordinary case of self defence is to be
       negatived by the prosecution in this case, in an evidential sense, it does not
       arise.

       [11]    Although the evidence
is somewhat sparse, if one follows the
       analysis that I have attempted to make of the evidence, I am driven to the
       conclusion
that the defendant did punch the complainant in the arm and that
       therefore the charge is proved beyond reasonable doubt.

Decision


[10]   The problem with the approach that the Judge adopted is that it relied entirely
for the evidence of the physical
assault upon the material contained in the
complainant's statement to the police. The complainant did not, however, confirm
that
that statement was correct when the statement was put to her at trial. She said,
in fact, that she had no memory of what she told
the police and she said that the
contents of the statement were incorrect.

[11]     In those circumstances, I am satisfied that
the Judge was not entitled to place
any weight at all on the evidence in the statement. For that reason alone, as counsel
for the
Crown responsibly accepts, the appeal must be allowed.


[12]     In allowing the appeal I express sympathy for the position in which
the
prosecutor and Judge found themselves.        This is a case in which it is more than
likely that a domestic assault of the kind
referred to in the statement probably
occurred. This is, therefore, an example of a case, no doubt commonly seen in the
District
Court, where a complainant in a domestic assault gives detailed allegations
at the time of the assault and then, for whatever reason,
is unwilling to back that up
with evidence at trial. This is obviously completely unsatisfactory and amounts to a
complete waste
of the police's resources and that of the Court.       Nevertheless, the
Judge was bound to reach his conclusions based solely on
the basis of the admissible
evidence that was before him.


Result


[13]     For the reasons that I have given, I am satisfied that
it was not open to the
Judge to find that the prosecution had proved that the assault occurred in the present
case.    The appeal
must therefore be allowed and the conviction and sentence are
quashed.




Lang J