Kidd v Police [2014] NZHC 153 (13 February 2014)

High Court of New Zealand

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Kidd v Police [2014] NZHC 153 (13 February 2014)

Last Updated: 25 February 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-425-40 [2014] NZHC 153

RITCHIE HAMILTON ALEXANDER KIDD Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 5 February 2014

Appearances: J Ross for Appellant

M J Thomas for Defendant

Judgment: 13 February 2014

_{RESERVED JUDGMENT OF MANDER J}

Background

[1] After a defended hearing the appellant was convicted by Judge Holderness of assaulting his former partner on the night of 5 June 2013. The learned Judge heard competing accounts of the events of that night.

[2] The complainant’s evidence was that in response to an email she visited the appellant’s address and there made her way to the appellant’s bedroom. The complainant had understood that there was some urgency or importance in speaking with the appellant. When it became apparent that this was not the case she went to leave the property. As she left the bedroom she was followed by the appellant. When she went down the hallway she described how she was pulled back by the appellant. She lost balance and fell through an adjacent door into the garage and onto a couch. Her evidence was that when she attempted to recover and get up the

_{defendant pushed her down and then struck her just below her right eye with the base}

KIDD v NEW ZEALAND POLICE [2014] NZHC 153 [13 February 2014]

of his hand. The appellant was saying repeatedly that he wished to talk to her and would not let her get up from the couch. At that point the complainant said she kicked out at the appellant striking the appellant’s leg. Finally the appellant left the garage and she was able to get up and leave.

[3] A point of some importance to the conflicting accounts was the evidence relating to the complainant’s keys. The complainant gave evidence that while lying on the couch her keys were prised from her hand by the appellant. After leaving the house she called the police. The complainant presented with a small cut to a finger and with some swelling beneath her right eye. Photographs confirmed these injuries.

[4] The appellant’s account was adduced by way of a videotaped interview. He denied hitting the complainant in the face. On his account he had pushed or manhandled the complainant to the backdoor and pushed her out of the house before closing the door behind her. Judge Holderness observed that the appellant’s account was in stark contrast to that provided by the complainant in her evidence.

[5] In relation to the issue of the keys the appellant indicated to the police officer who attended at his address that he did not know where the complainant’s car key was. During the course of his interview he denied wrenching the keys from her grip. Later however, when the police officer returned with the appellant to his house, the car key was found behind the head of his bed.

[6] The appellant elected not to give evidence himself, relying on the narrative he had given police at interview. Judge Holderness clearly preferred the oral evidence of the complainant over the account given by the appellant. The Judge found the complainant to be a truthful witness and accepted her account. No complaint is made of Judge Holderness’ assessment as to the credibility and reliability of the complainant on the basis of the evidence that was adduced before him. The Court was satisfied that the appellant had struck the complainant in the face and that at some point the complainant had kicked the appellant after she had been pushed onto the couch. Further, that with some significant force the appellant had prised the keys from her grasp.

[7] The appeal is based on two claimed errors which it is submitted have given rise to a miscarriage of justice. The first is that the prosecutor failed to disclose relevant criminal convictions of the complainant. Secondly, that the District Court Judge erred in preventing the appellant’s counsel from pursuing a line of questioning relating to the propensity of the complainant to act in a violent way towards the appellant.

Non disclosure of the complainant’s convictions

[8] The convictions the subject of complaint are two convictions for assault on police which occurred in 2009. The appellant through his counsel was advised by the police prosecutor that there were no previous convictions tending to affect the credibility of the witnesses. Subsequent to the appellant’s conviction however counsel became aware of the convictions in question. The appellant argues that the relevance of these convictions would have been apparent to the prosecution from the appellant’s interview, which alleged that the complainant kicked him prior to him initiating any physical contact with the complainant and that in effect the complainant was the aggressor. The appellant argues that it was therefore apparent that self defence was a relevant and potential issue for trial and that the omission is material to the appellant’s theory of the case.

[9] The Criminal Disclosure Act 2008 prescribes material which is required to be disclosed by the prosecution. This includes any convictions of a prosecution witness that are known to the prosecutor and that may affect the credibility of that witness.¹

[10] This statutory requirement reflected the existing common law duty of the prosecution in New Zealand to notify the defence of any known conviction of a proposed witness whose credibility was likely to be in issue, if that conviction could reasonably be seen to affect credibility.² Where a decision was made not to disclose a conviction the obligation on the prosecution was to notify the defence in general terms that there was a conviction which it was not considered necessary or

appropriate to disclose. The defence could then apply to the Court for a ruling as to

_{whether or not the details of the conviction should be disclosed having regard to the}

¹ _{Criminal Disclosure Act 2008, s 13(3)(d).}

² Wilson v Police [1992] 2 NZLR 533, at p542.

issues expected to arise at trial.³ The Court of Appeal in R v Marshall summarised the prosecutor's duty at common law in the following terms:⁴

[41] There is, however, a common law duty on the Crown to disclose to an accused person who is facing a criminal charge any significant material which may affect the credibility of a prosecution witness. The principle was summarised in those terms in a judgment of the English Court of Appeal delivered by Steyn LJ in R v Brown (Winston) [1994] 1 WLR 1599, 1607, his approach subsequently being upheld in the House of Lords: [1997] UKHL 33; [1998] AC 367,

377. His judgment cited, as an illustration of the principle, the rule that the prosecution is obliged to disclose previous convictions of a prosecution

witness, as articulated by Cooke P in delivering the judgment of this Court in

Wilson v Police [1992] 2 NZLR 533. Steyn LJ referred with approval to this passage of that judgment:

As to the kind of conviction within the scope of the duty, the test must be whether a reasonable jury or other tribunal of fact could regard it as tending to shake the confidence in the reliability of the witness. (p537)

[11] In Wilson it was also stated:

(ii) In the event of a decision not to disclose any conviction on the grounds, for instance, that it does not bear on credibility likely to be in issue or that interference with the witness is feared, the prosecution should notify the defence in general terms that there is a conviction which it is not considered necessary or appropriate to disclose. Thus the defence, if desirous of testing the point, will have an opportunity of applying for a ruling to a Judge in chambers, in the court where the trial is pending. For the purposes of such a ruling, the Judge will be entitled to peruse details of any convictions in question after hearing the prosecution and the defence as to the issues expected to arise at the trial and as to any other relevant matters. Specific information about the convictions in question need not be supplied to the defence unless the Judge so directs.

It has been observed that the, “broad scope of the duty articulated in R v Marshall, above, beyond its application to previous convictions of prosecution witnesses, survives the Criminal Disclosure Act’s enactment”.⁵

[12] Mr Higbee who appeared for the Crown accepted for the purposes of this appeal that the complainant’s prior convictions should have been disclosed. As a matter of prudence I believe that is a responsible concession notwithstanding whether ultimately the convictions were capable of affecting the credibility of the

_{complainant. Be that as it may, a further issue is whether the prosecution should}

³ _{Above at p542; Para 9.6 Solicitor General’s Prosecution Guidelines, (1 July 2013), para 16.9.}

⁴ _{R v Marshall [2004] 1 NZLR 793; (2003) CRNZ (CA) at [41].}

⁵ Adams on Criminal Law (online looseleaf ed, Brookers) at CD13.05

have disclosed the existence of the convictions as contemplated in Wilson v Police. It would appear under the Criminal Disclosure Act that the obligation to inform only arises when a request for additional disclosure has been made by the defence.⁶ The Act is silent about whether there is any obligation to inform the defence of the existence of material, including convictions, which is not considered by the prosecution to be subject to the statutory duty of disclosure or is withheld for some reason. The Solicitor-General’s Guidelines would indicate that the Wilson procedure still applies, if only as a matter of good practice. For the purposes of the appeal I

will proceed on the basis of the Crown’s concession.

Cross-examination on propensity

[13] The complaint relating to the non-disclosure of the complainant’s previous convictions is related to the second ground of appeal regarding the appellant being prohibited from a line of cross-examination about the complainant’s propensity to act in a violent way towards the appellant. Counsel for the appellant, Mr Ross, commenced questioning the complainant about an incident in 2009, when it was alleged that the complainant acted in a violent manner towards the appellant. There was a second example that Mr Ross was intending to put to the complainant before Judge Holderness intervened. Judge Holderness questioned Mr Ross as to the relevance of questions relating to an incident in 2009 or on other occasions other than what had happened on the night of 5 June 2013. Mr Ross advised the Court that the questioning related to the propensity of the complainant to respond violently towards the appellant when she is met with a stressful or argumentative situation. In disallowing the line of questioning Judge Holderness did not think the line of enquiry was appropriate. It is apparent that Judge Holderness did not consider the evidence relevant to what he had to decide, namely what had occurred on the night in question and that it was “not strictly speaking propensity type evidence”.

[14] It is of some significance, and is acknowledged by Mr Ross on the appeal, that Judge Holderness was not expressly informed of any intention on the part of the appellant to justify his actions on the basis of self defence. In particular it was not suggested to the Judge or on appeal that the act of punching the complainant, prising

the key from her hand, or indeed any further physical acts on the part of the appellant beyond those admitted at interview were to be relied upon as acting in self defence.

[15] The appellant argued on the appeal that the appellant’s theory of the case was that the complainant had a tendency to act violently towards him. This it was submitted was relevant to issues concerning the complainant’s conduct and the appellant acting in self defence.

[16] Mr Ross argued that the proposed propensity evidence was relevant to the subjective element of self defence, being the “circumstances as the defendant believed them to be”. Mr Ross argued that the effect of Judge Holderness’ ruling was not only to curtail the cross-examination but that it also affected the appellant’s decision not to give evidence as, so it was submitted, the Judge would have objected to the appellant giving evidence of the actions of the complainant towards him on previous occasions.

Analysis

[17] In order for the appellant to succeed on the appeal he must establish that either alone or in combination the irregularities the subject of complaint could have affected the result of the hearing. A miscarriage is more than an inconsequential or immaterial mistake or irregularity. A true miscarriage is something which has gone

wrong and which was capable of affecting the result.⁷

[18] The difficulty for the appellant is that the position which he takes in respect of the incident the subject of the charge is that he did not punch the complainant, prise the keys from her grasp or do anything more than he admitted at interview. Equally, the violent act relied upon by the appellant which he claims required him to use force in self defence was the complainant’s kick which she had already acknowledged in her evidence. Mr Ross responsibly accepted that the punch of the type described by the complainant would not have been a proportionate response to the complainant’s kick. This kick is the only force identified by the appellant as necessitating him taking the physical action that he admits taking.

[19] The appellant’s position on appeal was the same as that adopted before Judge Holderness. The appellant denied that he struck the complainant in the face. In order for the District Court to find the charge of assault proved it would have to have been satisfied that the complainant was telling the truth about what she claimed occurred. In particular that the appellant had punched her in the face, and indeed her account about the key and the additional physical acts by the appellant towards her which he had denied to the police. It is unrealistic to suggest that Judge Holderness would have rejected the most serious parts of the allegation which the appellant denied yet still have found the assault charge proved. Equally, what the appellant was prepared to admit to in terms of the level of force he applied to the complainant, even if committed in self defence, was no answer to the charge of assault in terms of what the complainant maintained in evidence the appellant had done to her. The appellant’s account as given to the police was in stark contrast to that of the complainant. The only force he conceded using was that necessary to push her to the door and out of the house. On appeal no other narrative of the incident was put forward which the appellant may have wished to have advanced but felt unable to do so in the wake of Judge Holderness’ ruling.

[20] It therefore follows that notwithstanding the appellant’s complaint relating to the non-disclosure of the previous conviction and the ruling of Judge Holderness preventing the appellant from progressing some type of propensity argument about the complainant, self defence as an issue did not realistically arise having regard to the respective and contrasting accounts given by the protagonists. It was that direct conflict in the evidence which Judge Holderness was required to resolve.

[21] The narrative which the appellant gave to the police and which he continued to rely upon for the purposes of the appeal, whether considered by him as acts of self defence or not, did not provide an answer to the charge having regard to the completely different account provided by the complainant, and in particular her account of having been struck deliberately in the face and of the way her keys were prised from her hand by the appellant using some significant force.

[22] Essentially the appellant’s complaints brought on appeal about the trial

process do not alter the fact that the case stood to be determined on the credibility

and the reliability of the complainant and whether the Court could safely accept her evidence to the requisite standard as the truth of what had occurred. Mr Ross responsibly acknowledged that the undisclosed previous convictions which did not relate to past dishonesty were not relevant to that assessment.

[23] In my view Judge Holderness did not err in limiting the cross-examination of the complainant. If the appellant when addressing the District Court had referred to the basis upon which he asserted the relevance of the “propensity” questioning, namely in furtherance of an argument of self defence, the disconnect between the appellant’s account providing such a defence in answer to the complainant’s evidence would have become immediately apparent, as it did on the hearing of the appeal. The result would have been the same.

[24] I am satisfied that if the non-disclosure of the complainant’s previous convictions was considered an irregularity and even if the limitation placed on the propensity questioning was capable of being considered an irregularity, which as previously stated I am not convinced it was, neither singularly or collectively could they have affected the result of the hearing. Therefore neither in combination or separately are capable of constituting a miscarriage. The appeal is therefore dismissed.

Solicitors:

AWS Legal, Invercargill

Preston Russell, Invercargill