S v Police HC Rotorua CRI 2007-463-151 [2009] NZHC 99 (11 February 2009)

Last Updated: 26 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI 2007-463-151}

BETWEEN S

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 11 February 2009

Counsel: MJ Hine for Appellant

CA Harold for Respondent

Judgment: 11 February 2009

_{ORAL JUDGMENT OF RODNEY HANSEN J}

Solicitors: Families Matter Law Practise, P O Box 7426, Te Ngae, Rotorua for Appellant

Ronayne Hollister-Jones Lellman, P O Box 13063, Tauranga for Respondent

S V POLICE HC ROT CRI 2007-463-151 11 February 2009

[1] Following a defended hearing on 19 September 2007 in the District Court at Waihi, Judge R Johnson found Mr S guilty of breach of a protection order in that on 11 July 2007, while the protection order was in force, he remained, without reasonable excuse, in a building occupied by the protected person. He was acquitted of a second charge of breaching the same protection order between 8 and 12 July by, without reasonable excuse, engaging in behaviour which amounted to psychological abuse of the protected person.

[2] Mr S was sentenced to nine months supervision with special conditions that he not have contact with the complainant except by permission of the probation officer.

[3] He appeals against conviction and sentence.

Background

[4] The complainant is Mr S ’s wife, Gisella S . At the time of the hearing they had been married for seven years. They had three children; a fourth was due to be born the following month. On 10 August 2006, following what appears to have been a lengthy period of marital discord, a temporary protection order was granted which was made final on 20 September. Subsequently, the parties made attempts to reconcile and, over the ensuing nine months or so, Mr S often stayed at the family home in Whangamata with Mrs S ’s agreement.

[5] During the period covered by the two charges, Mr S stayed at the house. He had arrived, apparently uninvited, on Sunday 8 July. Mrs S had not expected to see him until the following Tuesday when she had an appointment for a scan in Thames and it had been arranged that Mr S would drive her there. However, in circumstances which were canvassed exhaustively at the hearing, Mr S remained in the house until the morning of Thursday, 12 July when Mrs S called the police.

[6] In the course of a hearing, which occupied a full day and generated a transcript of evidence amounting to 87 pages, both Mr and Mrs S gave evidence of what happened. There was also evidence given by a police sergeant, to whom Mr S had made a statement. Much of the evidence related to the alleged psychological abuse alleged to have taken place during the four days Mr S was at the house and which provided relevant context to the charge of refusing to leave. The evidence disclosed that throughout the period there was recurring friction between the parties. It ranged from bickering over minor matters to at least one physical exchange when Mrs S hit her husband.

[7] While the overall pattern of behaviour emerged clearly enough from the evidence, there was conflict between Mr and Mrs S on critical issues, a conflict which the Judge resolved in favour of Mrs S . He said that in the course of the hearing he had been able to draw conclusions about their veracity and their personalities and to understand, with some clarity, what their problems were. He commented that, in his view, Mrs S was exhibiting many of the symptoms of depression and that this accounted for her inability, on some occasions, to remember such details as dates and times. He described her as volatile but also compliant and, in short, the victim of psychological abuse.

[8] The Judge assessed Mr S as very demanding. He said he was particularly prone to, as he put it, “chip away about things of detail to do with domestic issues”. He did not think that Mr S was intentionally setting out to psychologically abuse his wife and, for that reason, found him not guilty on that charge. But he concluded that there had in fact been psychological abuse.

[9] The Judge preferred the evidence of Mrs S on the critical issue of whether or not she had withdrawn her consent to her husband remaining. Generally, he considered that Mr S had a tendency to reframe the facts to suit his position. He did not find him to be a dishonest witness but, it seems, one who was susceptible to reconstructing events to suit his own purposes.

Grounds of appeal – conviction

[10] The grounds of appeal against conviction fall into three broad categories:

a) Unfair trial. It is alleged that the hearing was unfair in two particular respects:

i) In failing to provide an interpreter for Mrs S ; and ii) The prosecutor’s use of leading questions.

b) The Judge’s conduct. Mr Hine submits that the Judge intervened inappropriately in the course of the hearing; was biased against his client; and made inappropriate and unwarranted findings as to the mental health of Mrs S .

c) Weight of evidence. There was insufficient evidence to support the conviction on the charge of remaining in the house without the consent of Mrs S and without reasonable excuse.

Fair trial issues

Use of interpreter

[11] Mrs S is Peruvian-born. English is her second language. Mr Hine submits that her limited ability, both to express herself and understand spoken English, required that an interpreter be made available and that the failure to do so rendered the trial unfair.

[12] By s 80(4) of the Evidence Act, “communication assistance” (as defined in s

4 of the Act) may be provided to a witness in a civil or criminal proceeding on the application of the witness or any party to the proceeding or on the initiative of the Judge. By s 81(2), however:

Communication assistance need not be provided to a witness in a civil or a criminal proceeding if the Judge considers that the witness can sufficiently understand questions put orally and adequately respond to them.

[13] It is common ground that neither the prosecution nor the defence sought to engage an interpreter to assist Mrs S and at no point in the hearing was the question raised either before or by the Judge. Mr Hine seeks to demonstrate, nevertheless, by reference to the transcript, that there were communication difficulties which showed that Mrs S struggled to understand and to clearly answer questions put to her, both in examination-in-chief and in cross-examination.

[14] I have carefully considered the passages referred to by Mr Hine and perused most of Mrs S ’s evidence. While it is apparent that she is not as fluent in her oral expression as a native English speaker, there is nothing to give rise to a concern that, on any significant factual issue, she was unable to understand the questions put to her and to accurately respond. She was giving evidence before a hugely experienced Judge. Mr S had the benefit of representation. Had there been any real cause for concern that Mrs S was not doing herself justice or that the absence of an interpreter was somehow compromising the fairness of the trial, I have no reason to think that counsel or the Judge, on his own motion, would have intervened.

Leading questions

[15] The informant was represented by a police officer. Mr Hine has identified a number of passages in the evidence where he led the evidence of Mrs S with leading questions, some of which, in his submission, bore on critical issues going to Mrs S ’s credibility. The use of leading questions is dealt with by s 89 of the Evidence Act, which provides:

(1) In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless—

(a) the question relates to introductory or undisputed matters; or

(b) the question is put with the consent of all other parties; or

(c) the Judge, in exercise of the Judge's discretion, allows the question.

(2) Subsection (1) does not prevent a Judge, if permitted by rules of court, from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.

[16] Many of the leading questions put to the witness fell into the category of introductory of undisputed matters. On no occasion was there any objection by counsel to the use of leading questions, although the transcript indicates that counsel at the hearing (not Mr Hine) was assiduous to intervene if she perceived any developments that were adverse to her client. The Judge did not intervene on the issue and was not invited to.

[17] I have considered the examples of improper use of leading questions relied on by Mr Hine. Some, as Ms Harold points out, are readily explicable. Some which, in isolation, may appear improper and prejudicial, when considered in the context of the evidence as a whole, are clearly unobjectionable. An example identified by Ms Harold is a question at page 17 of the transcript in which the prosecuting police officer put to the witness a question which suggested that on a particular occasion she had wanted her husband to leave the house. However, in answer to an earlier question, Mrs S had already given evidence to that effect and it is plain that the prosecutor was simply seeking to reintroduce evidence that had already been given.

[18] The use of leading questions is, of course, always a matter of judgment. The prosecutor relies on defence counsel to object if leading questions are asked in relation to controversial issues. Having considered the examples referred to by Mr Hine and the transcript of evidence overall, I can find no reason to differ from the assessment plainly made by defence counsel at the time that the leading questions were unobjectionable. They were put with the consent of the defence and without intervention by the Judge. There is, furthermore, nothing to indicate that they led to any miscarriage of justice.

Judge’s conduct at trial

[19] Mr Hine submits that on a number of occasions the Judge intervened inappropriately and, on one occasion in particular, made a comment which indicated that he had predetermined the case in favour of the prosecution. That intervention occurred in the course of Mrs S ’s evidence at page 49 of the notes of evidence where, after she had given evidence of slapping her husband on the morning of Wednesday, 11 July, following incidents on each of the two previous days, the Judge said:

Isn’t this a spectacular failure of the protection of a protection order when in her own house it gets to the point where she has to slap him because he won’t go away. Isn’t it a spectacular failure of compliance?

The following exchange then takes place:

[Defence counsel] Sir it’s defendant’s position that when asked to give his wife space, he did so. That he was not asked to leave the property. If he had of been [sic] he would have done so and that he was not abusive or intimidating his wife. That’s his position.

[The Court] Alright, I’ll hear it and I’ll hear it all day.

[20] The Judge’s comment was perhaps somewhat injudicious although, given the evidence then emerging, understandable. However, it does not indicate to me that, before even hearing from the defence, the Judge had come to a fixed view adverse to Mr S . Reading the transcript as a whole, I regard the Judge’s interventions as moderate, measured and appropriate. This could not possibly be characterised as a case of the Judge descending into the arena, with the risk of being blinded by the dust of the conflict. As Ms Harold submits, his decision itself demonstrates that he brought an open mind to bear on the evidence. Notwithstanding a finding of psychological abuse, he was not satisfied that Mr S had knowingly been responsible.

[21] There is criticism also of the Judge’s finding that Mrs S showed symptoms of depression and the view he later expressed that she was indeed a depressed person. Mr Hine submits that such observations and findings go beyond the proper province of a Judge. I disagree. I consider that, in a proper case, a Judge

taxed with the responsibility of making findings of fact and assessments of a witness’ credibility, is entitled to express a view as to the demeanour and conduct of a witness and the possible explanations for them. Seen in context, they were part of the Judge’s attempt to describe a complex and volatile relationship for the purpose of providing context to his findings on the specific issues raised by the charges.

The evidence

[22] The critical issues on the charge of which Mr S was convicted was whether Mrs S had withdrawn her consent to his remaining in the house and whether he had reasonable excuse to remain. Mr Hine argues that the evidence of Mrs S bearing on these issues was confused and equivocal, so much so that it could not provide a satisfactory foundation for a conviction.

[23] The gist of Mrs S ’s evidence was that she agreed with her husband that he could stay until after she had had the scan on Tuesday, 10 July and then would return to his home in Waihi. She said she asked him to leave on the Tuesday and reiterated her request the following morning. He left the house to attend a meeting and returned later in the afternoon. Having told him that she did not want him to come back, Mrs S said she had locked the door. However, when Mr S arrived, it was unlocked by one of the children. He entered and afterwards both parties agreed that she asked him to prepare the evening meal for the children while she rested.

[24] Mr Hine has sought leave to have admitted as evidence on appeal an affidavit sworn by Mrs S on 25 November 2008. In the affidavit Mrs S says that, in two respects, the evidence that she gave in Court is not accurate and she asserts that her husband has been wrongly convicted.

[25] There are two issues addressed in the affidavit. One is as to precisely what was said about Mr S getting the children’s evening meal on the Wednesday evening. The other relates to one aspect of Mrs S ’s evidence in relation to what she told her husband on the Wednesday morning. She deposes at paras 6 and 7 of the affidavit:

6. On the Wednesday morning I did not warn David that if he did not leave I would call the Police. There was no need as he was going to a meeting that day.

7. On page 51 of the transcript there is a question “You’ve said in evidence earlier that you told him when he came home from the meeting that you were going to call the police”. My answer in the transcript is “Yeah” but that was wrong. When he came home at

5.30 from the meeting I did not tell him that I was going to call the

Police. I think I was confused about that. It was the next day, Thursday, in the morning that I may have said that.

[26] The principles governing the admission of fresh evidence on appeal are well established: see R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 at [22] – [27] (CA). The Court is required to be satisfied that the evidence is fresh in the sense that it could not reasonably have been called at trial, that it is credible and, thirdly, whether it might have been such as to lead to a finding of not guilty if called at trial.

[27] When the fresh evidence involves the recantation of evidence given at trial, the broad principles are unaffected but special considerations arise. These were discussed in R v Toleafoa [2008] NZCA 447 at [31] – [33]. As the Court observes at [32], there is no doubt that recanted evidence which becomes available only after trial is likely to be treated as fresh and the real issue concerns its credibility. And, as observed in Q v M CA135/05 4 July 2006, quoted at [33] of Toleafoa:

Recantation may reflect human family pressures in a situation and a Court may reject new evidence where it differs from evidence at trial, in declining to treat a retraction as warranting disturbance of the jury’s verdict. ... The Court has to be alive to the allowing of the criminal justice system to be manipulated because a key or critical witness has regretted the consequence of giving truthful evidence.

[28] I accept the evidence is fresh but I am not convinced of its cogency or that the failure to give the evidence might have led to a miscarriage. The new evidence in relation to the evening meal is inconsequential. It is an issue of terminology. Mr S said himself in his statement to the police that he was asked to get the children dinner so there was no material conflict between the parties on this issue.

[29] The evidence in relation to what was said on the Wednesday morning is of much greater significance, although it is debatable whether it would have affected the outcome, given other evidence of Mrs S in relation to the withdrawal of

consent. However, the greater concern is as to the reliability of the evidence. Mrs S says her answer in the transcript was wrong but she gives no explanation for her error beyond saying she was confused. I have difficulty accepting that. The question was a simple one. It was a question put in cross-examination based on evidence given in examination-in-chief. I infer from the fact that the affidavit has been voluntarily provided and that Mrs S now believes her husband to have been wrongly convicted, that relations between the two have improved somewhat. That is both welcome and commendable, but it also gives rise to the concern that “human family pressures” may have been responsible for the change of heart. For these reasons, I am not prepared to admit the new evidence.

[30] In my view, the evidence given by Mrs S was sufficient to found a conviction. Mr S ’s return to the house on Wednesday evening occurred in the context of clear indications from his wife that her agreement to his remaining ended after he had taken her for the scan. Arguably, her consent may have been extended to Wednesday morning but she was clear in her evidence that she did not want him to return later that day. Her locking of the door is consistent with that. It may be that she eventually acquiesced in his remaining and asked him to cook the evening meal but, as Ms Harold submits, the breach of the protection order had by then occurred.

[31] I am satisfied there was sufficient evidence on which to found a conviction, but for the reasons set out in relation to the appeal against sentence, the appeal against conviction must be allowed.

Sentence

[32] At the end of what must have been a very long day, Judge Johnson delivered an oral judgment and went on immediately to impose sentence. He did not have the benefit of a pre-sentence report or, it would appear, submissions from counsel.

[33] Mr Hine submits that the sentence of nine months supervision was excessive, having regard to Mr S ’s previous good character and the nature of the offending.

He submits that the matter could properly have been dealt with by a discharge without conviction.

[34] Ms Harold’s position is that while the sentence was stern, it was not manifestly excessive. It properly took into account the interests of the victim and aimed to assist in the appellant’s rehabilitation. In terms of s 7(1)(c) and (h) of the Sentencing Act 2002, she said no sentence short of supervision would appropriately reflect the relevant sentencing principles. Accordingly, the sentence imposed was the least restrictive outcome in the circumstances. Ms Harold opposes the suggestion that a discharge without conviction should be granted on appeal as the appellant has failed to show that the conviction is out of all proportion to the gravity of the offending. She also points out that it would potentially impact on the operation of s 49(3) of the Domestic Violence Act 1995 which provides for an increased penalty for third and subsequent convictions for offences under the Act.

[35] These considerations notwithstanding, I have come to the view that in the unusual circumstances of this case, it is appropriate to allow the appeal against sentence and to discharge Mr S without conviction. This course is open to me where there has been an appeal against both conviction and sentence: see Hall’s Sentencing at SA106.4 and Gascoigne v Police HC Auckland AP304/93 11 February

1994 Robertson J and my judgment in Dickey v Police HC Auckland A112/02 3

September 2002.

[36] I am informed that Mr S has no previous convictions. During the period leading up to the hearing, he had established himself as a man of some standing in the Whangamata community. He had served as an elected member of the local community board for six years. A conviction would damage his hard-won reputation.

[37] The offence was committed in highly unusual circumstances and, on my assessment, may fairly be characterised as technical in nature. On my reading of the evidence and of the Judge’s findings, there was no deliberate attempt to flout the protection order. Rather, Mr S allowed himself to be blinded to the fact that, in

confused circumstances admittedly, his wife had withdrawn her consent to his remaining.

[38] The parties were undergoing counselling at the time and, as I understand it, continue to do so. It is apparent from the support now shown by Mrs S for her husband, that the counselling has been effective. As it happens, the sentence of supervision has been carried out and the relevant sentencing outcomes have been achieved.

[39] I am satisfied that, in the circumstances I have outlined, the effect of a conviction on Mr S is out of proportion to the gravity of the offending in this case. For these reasons, the appeal against conviction and sentence is allowed. The sentence is quashed. Mr S is discharged without conviction.