H v Police HC Hamilton CRI 2009-419-50 [2009] NZHC 2033 (2 November 2009)

Last Updated: 29 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI 2009-419-000050}

BETWEEN H

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 29 October 2009

Counsel: J Hamblett for the appellant

R Annandale for the respondent

Judgment: 2 November 2009

_{JUDGMENT OF POTTER J}

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 4 p.m. on 2 November 2009.

Solicitors: Crown Solicitor, P O Box 19-173, Hamilton

_{Copy to: H Hamblett, P O Box 15, Hamilton}

H V POLICE HC HAM CRI 2009-419-000050 2 November 2009

Introduction

[1] Following a trial before Judge H Simpson in the District Court at Hamilton on 8 June 2009 the appellant was convicted of one charge of assault on Mereana Byford a child aged thirteen years.

[2] On 14 July 2009 the appellant was sentenced to 120 hours community work and nine months supervision with the special condition to undertake the HAIP course. She was also ordered to pay $360 repartion to Ms Byford for the damaged caused to her cellphone.

[3] Ms H appeals against the conviction on the grounds:

a) The Police did not disclose the prior criminal conviction history of the witness Dean Rawiri who has convictions relevant to his reliability as a witness;

b) The Judge did not sufficiently take into account inconsistencies in the evidence of the prosecution witnesses and did not give proper weight to the evidence given by the alleged alibi witness for the defence, Ms Hilaire. On the evidence the charge could not be proved beyond a reasonable doubt.

[4] A further ground of appeal relating to the Police photo montage was not pursued.

Background facts

[5] At about 3.15 p.m. on 12 November 2008 the appellant was driving her motor vehicle on Yvonne Street, Hamilton. Ms Byford was walking home from school.

[6] The appellant knew Ms Byford and was known to Ms Byford as they had lived on the same street for a number of years. Ms Byford’s family had moved from the street as a result of a dispute that developed between the appellant and Ms Byford’s father which continued as at November 2008.

[7] On seeing Ms Byford the appellant stopped her motor vehicle, got out and started yelling at Ms Byford. Ms Byford kept walking. The appellant approached her and caught up to her. She placed her hands on Ms Byford’s arms and pushed Ms Byford on her shoulder. These actions caused Ms Byford to fall to the ground. As a consequence she suffered a sprained ankle and a damaged cellphone. The appellant then returned to her car and drove away from the scene.

[8] The appellant’s partner Mr Grant Matthews was in the car with her. Following trial, he was convicted of one charge of threatening to kill Mereana Byford.

The judgment appealed

[9] The Judge summarised the evidence of Mereana Byford. She said that notwithstanding some understandable nervousness she thought Ms Byford gave a clear account of what happened. Ms Byford denied being “put up” by her father to telling a story about what happened because of the “bad blood” that existed between her father and the appellant.

[10] The Judge summarised the evidence of the prosecution witness Dean Rawiri which essentially corroborated the evidence of Ms Byford in relation to the assault. Mr Rawiri had been riding his bike in the area. His attention was drawn to the incident when he heard yelling. He knew the appellant because he had previously worked in the same place as she had, and he recognised Ms Byford because they were living in the same area.

[11] The Judge said at [12] of Mr Rawiri:

... I thought [he] was a good witness and a credible witness and a person who made a strong effort to tell the truth and was very focused on the importance

of the oath to tell the truth. I am satisfied that he told a credible version of what happened. I accept his version of what happened. I accept that he saw Ms H push the child, such that she suffered an injury.

[12] The Judge acknowledged there was some conflict between Mr Rawiri’s account of where Ms H stopped the car and Ms Byford’s account about where the car was parked. She accepted the account of Mr Rawiri as an independent person able to see what was going on. She said that while Ms Byford remembered being pushed and being shouted at, she was a little unclear about where the motor car actually was: at[7].

[13] As to identification, the Judge said at [8]:

I am satisfied that her [Ms Byford’s] identification was clear and I accept that the persons that she saw on that day were the same persons seen by Mr Rawiri, and that it was Shona H who was driving the car, and Mr Matthews.

[14] The Judge then considered the evidence of Mr Matthews and Ms H that they were not in the area where the offences were alleged to have been committed and categorically denied the events as described by Ms Byford and Mr Rawiri. She referred to their evidence that they went to the Glenview Primary School to pick up their daughter at the end of school at 3 p.m, and that while there they had a discussion with another neighbour, Ms Joanne Hilaire, who was also picking up her children, for some five or six minutes.

[15] She summarised Ms Hilaire’s evidence that after they had picked up their respective children, Ms H drove off with Mr Matthews in the front seat and their child in the rear seat. She followed them along Lewis Street to their respective homes in Norrie Street where each entered their own driveways. Ms Hilaire gave evidence as to the precise time she said she left Glenview Primary School, 3.16 p.m. She said that when she returned home she focused on giving her children something to eat.

[16] The Judge at [10] had this to say about timing:

Nobody has been precise about timing. Nobody has been able to tell me exactly what occurred. The nearest I have to a precise timing is the evidence of Joanne Hilaire, who said that she left Glenview Primary School at 3.16

p.m. and she followed Ms H and Mr Matthews to their home. She said it took about seven minutes to get to her home. I understand that Ms H and Mr Matthews lived very close nearby, so it would have taken them about the same time to get to their place.

[17] She noted that Ms Hilaire was clear that Ms H was driving, Mr Matthews was in the front passenger’s seat and their child was in the rear seat. However, Mr Rawiri said that when he observed the car, Ms H was driving, Mr Matthews was in the rear seat and the child was in the front seat. The Judge then speculated that there might have been two separate journeys taken quite close in time between which the occupants changed places in the car.

[18] She concluded at [12]:

In any event, I am satisfied that when Mereana [said] that this happened about 3.15 p.m. she was not measuring time by a stop watch. She said specifically that she did not wear a watch and she could not be precise as to the time that this has happened. Mr Rawiri was asked about the incident and the description that he gave coincided in many respects with the description given by Mereana. He said it happened between 3 p.m. and 3.15 p.m. In my view it is likely that the incident happened, possibly a little later than 3.15.

[19] The Judge determined that she accepted the evidence of Mr Rawiri and found the charges proved.

Dean Rawiri’s criminal conviction history

[20] Mr Hamblett said he sought disclosure from the Police but was not provided with a copy of Mr Rawiri’s criminal record. Sergeant William Cronin filed an affidavit sworn 11 September 2009 in which he confirms he was the officer who prosecuted this matter at the defended hearing on 8 June 2009, that he had reviewed the Police file and the notes of evidence, that the disclosure receipt is missing from the front of the file and therefore he is unable to confirm whether or not the criminal history of Mr Rawiri was disclosed to defence counsel. However, he recalls that prior to the hearing on 8 June 2009 he mentioned to Mr Hamblett that the most recent convictions were for driving and there had been no dishonesty convictions for some time. He says he then told Mr Rawiri that he might possibly get queries from defence counsel about his conviction history, with which the witness did not have a

problem. He notes there was no request from Mr Hamblett to see the conviction history prior to the hearing proceeding.

[21] Mr Hamblett does not dispute that evidence. But he submits that had Mr Rawiri’s criminal record been put to him and if the presiding Judge had seen Mr Rawiri’s criminal record, the defended hearing could have resulted in a dismissal of the charge against Ms H .

[22] Mr Hamblett was alerted by Sergeant Cronin prior to the hearing proceeding about the existence of criminal convictions for Mr Rawiri. He could have called for a copy of the criminal history then, and could have sought an adjournment of the hearing if he considered there were relevant convictions which he needed time to consider and to take further instructions. Alternatively he could have simply sought an adjournment on the basis that full disclosure had not been made. However, the hearing proceeded.

[23] Mr Rawiri’s history includes a number of convictions, many of the more recent convictions associated with drink driving. Convictions for dishonesty offences which might have borne on Mr Rawiri’s credibility and reliability as a witness were more than twenty years ago:

• 1989 refusing name and address – giving false details

• 1988 obtaining other service through credit by fraud

• 1983 obtained money by fraud

• 1983 and 1979 burglary

• 1983 and 1990 unlawfully taking a motor vehicle

[24] Section 37 of the Evidence Act 2006 states that a party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.

[25] In deciding whether or not evidence proposed to be offered about the veracity of a person is substantially helpful the Judge may consider among other matters:

... that the person has been convicted of one or more offences that indicate a propensity for dishonesty or lack of veracity.

[26] It is extremely doubtful in my view that the Judge would have found substantially helpful in assessing the credibility of Mr Rawiri that he had the convictions referred to above, more than twenty years ago. She had the benefit of seeing him give evidence at trial, in assessing his evidence and the way he gave it and in making her credibility findings on that basis.

[27] Had counsel for the appellant decided to question Mr Rawiri about his previous convictions he would have needed to bear in mind s 38(2) of the Evidence Act because a challenge to the veracity of Mr Rawiri would have opened the way for the prosecution to seek leave of the Judge to offer evidence of previous convictions of Mrs H relevant to credibility. Those of her convictions which might be relevant in this context are limited, but are more recent than those of Mr Rawiri.

[28] As it was, the Judge appears to have been unaware of the criminal history of either Mr Rawiri or the appellant and made her own assessments of their credibility as witnesses in the case. I do not consider that any unfairness has resulted.

Inconsistent evidence of Ms Byford and Mr Rawiri

[29] There were inconsistencies as to some details in the evidence of these two prosecution witnesses: as to the side of the road on which the appellant’s car stopped; as to whether there were other children around at the time; as to whether Ms Byford had a cellphone (she did not mention one but Mr Rawiri did). Counsel also identified that in his statement to the Police Mr Rawiri said that there were two people in the appellant’s car but in evidence he said there were three. However, he was cross-examined about that and maintained his evidence at trial that there were three people in the appellant’s car. The evidence and the challenge to it, were clearly before the Judge.

[30] The Judge dealt with the inconsistencies between the evidence of Ms Byford and Mr Rawiri to which I have referred, at [7] of her judgment. Essentially the Judge accepted Mr Rawiri’s description of the events, acknowledging that Ms Byford was a little unclear about some of these details, while clearly remembering being pushed and shouted at by the appellant.

[31] That determination was open to the Judge. She heard the witnesses and was alert to the inconsistencies. These inconsistencies go to the credibility of the witnesses and were not directed to proof of the essential elements of the charge of assault.

Joanne Hilaire’s evidence

[32] Mr Hamblett submitted that the evidence of Mr Matthews and Ms Hilaire was consistent with the appellant’s version of events and deserving of more weight than the Judge attributed to it.

[33] Counsel described Ms Hilaire and Mr Matthews as alibi witnesses. In fact they could not fulfil that purpose because the evidence did not define precisely when the incident involving the assault of Ms Byford took place. As the Judge said, only Ms Hilaire was able to come up with a definite time for her activities; she was able to say that she looked at her watch at 3.16 p.m. when she left the Glenview Primary School and followed Ms H and Mr Matthews in her car to their home very close to her home. But she was not able to give any relevant evidence relating to any period after the approximately seven minutes she estimated it took for them to drive home. She was then concerned with feeding her children and was not engaged at all in any subsequent activities of the appellant and Mr Matthews.

[34] Mr Rawiri’s evidence was that the incident involving the appellant and Ms Byford took place at approximately 3 to 3.15 p.m. Ms Byford thought it would have been about quarter past three because school finished for her at 3.10 p.m. But as the Judge said at [10]:

Nobody has been precise about timing.

[35] The Judge considered at [12] that the incident possibly occurred a little later than 3.15 p.m, but she could not be certain about that.

[36] However, she was satisfied beyond a reasonable doubt on the evidence of Ms Byford and Mr Rawiri that the assault occurred; that Ms H pushed Ms Byford, such that she suffered an injury. It was unnecessary to proof of the offence charged that the precise time of the incident be established provided the Judge was satisfied that it did occur.

[37] The conclusion she reached on the basis of the evidence she accepted, that the assault of Ms Byford by the appellant was proved to the requisite standard, was open to her.

Result

[38] The appeal is dismissed.