R v Chase [2016] NZHC 1509 (4 July 2016)

Last Updated: 23 May 2018

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-087-001073 [2016] NZHC 1509

BETWEEN	THE QUEEN ﷢﷢﷢﷢﷢
AND	HOANI JOHN CHASE Defendant

Hearing:	29 June 2016
Counsel:	H A Wrigley for Crown R O Gowing for defendant
Judgment:	4 July 2016

_{JUDGMENT OF KATZ J}

This judgment was delivered by me on 4 July 2016 2016 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

_{Registrar/Deputy Registrar}

R v CHASE [2016] NZHC 1509 [4 July 2016]

Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga

Gowing & Co Lawyers Limited, Whakatane

Introduction

[1] Hoani Chase faces 35 charges arising out of what the Crown alleges was a sustained campaign of violent and sexual offending against the first complainant over a period of 18 years. The charges include assault, threatening to kill, kidnapping and sexual violation. He also faces three charges of threatening to kill the second complainant, who is the first complainant’s son. Both complainants will be witnesses at trial, as will the first complainant’s mother.

[2] The Crown has filed a mode of evidence application, seeking directions that:

(a) the first complainant’s video interviews be played as her evidence in chief;

(b) the first complainant be seated in court behind a screen during the playing of the video, cross-examination and re-examination;

(c) the second complainant’s video interview be played as his evidence in chief;

(d) the second complainant be seated outside the court during the playing of the video, cross-examination and re-examination, but connected to the court throughout by CCTV;

(e) the first complainant’s mother give evidence via CCTV from outside of the courtroom.

[3] During the course of the hearing Mr Gowing, counsel for Mr Chase, withdrew his opposition to the complainants’ video interviews being played as their evidence in chief and advised that those directions could accordingly be made by consent. I am satisfied that jurisdiction exists to make the relevant orders and I exercise the Court’s discretion accordingly. I will consider each of the other alternative evidence directions sought below, after briefly outlining the relevant law.

Giving evidence in an “alternative” way – the law

[4] In seeking directions that the relevant witnesses give evidence in an alternative way the Crown relies upon ss 103, 105 and 106 of the Evidence Act 2006 (“Act”). Section 103(3) provides the jurisdictional basis for the making of an alternative mode of evidence direction. It identifies 10 grounds upon which such a direction may be made. It is not disputed that jurisdiction exists in this case to make each of the orders sought.

[5] If jurisdiction exists under s 103(3), then the Court has a wide ranging discretion to assist vulnerable witnesses by directing that their evidence be given in an alternative way. In exercising that discretion the Court must have regard to the mandatory considerations in s 103(4), namely:

(a) the need to ensure the fairness of the proceeding (this includes fairness to all involved, including the Crown, the defendant, the witnesses and society generally);

(b) the need to ensure, in a criminal proceeding, that there is a fair trial;

(c) the views of the witness;

(d) the need to minimise the stress on the witness; and

(e) in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence.

[6] In addition, the Court must have regard to “any other factor that is relevant to the just determination of the proceeding”.¹ The just determination of the proceeding

_{is therefore the overarching consideration.}

¹ Evidence Act 2006, s 103(4)(c).

[7] There is no presumption that evidence is to be given in the ordinary way (orally in open court) or that giving evidence in an alternative way is the exception to that general rule.² Rather, the Court of Appeal stated in R v O that:³

Section 103 allows a broad fact-specific inquiry. It appears to signal a distinctive shift in legislative policy to extend the scope for the mode of giving evidence by alternative means beyond the previous limitations to young and mentally impaired complainants in sexual cases. The provision vests a broad and unfettered discretion in the trial Judge once the jurisdiction to make an order is established. As this Court has previously observed, there is now no default position or presumption in favour of giving evidence in the ordinary way.

(footnotes omitted)

[8] Accordingly, if jurisdiction exists in terms of s 103(3) to make an alternative evidence direction, then all evidence options (ordinary or alternative) are equally on the table.

Should the first complainant be able to give evidence from behind a screen?

[9] The first complainant is the principal complainant. The Crown seeks a direction that she give evidence from behind a screen due to:

(a) Her fear of intimidation.⁴ The officer-in-charge, Detective Anderson, deposes that the first complainant feels “extremely intimidated” by

Mr Chase. Her fear is said to reflect the extremely serious and prolific nature of the alleged offending and Mr Chase’s gang connections.

(b) The nature of the evidence she is expected to give, namely evidence of physical and sexual violence in a domestic context over a period of approximately 18 years.⁵

(c) The trauma she has suffered by virtue of the prolonged physical and sexual violence to which she was allegedly subjected.⁶

_{Detective Anderson reports that, during her relationship with}

² R v Shone [2008] NZCA 313 at [28].

³ R v O (CA433/2012) [2012] NZCA 475 at [37].

⁴ Evidence Act, s 103(3)(d).

⁵ Section 103(3)(g).

⁶ Section 103(3)(b) and (c).

Mr Chase, the first complainant suffered from depression and suicidal ideation.

(d) Her relationship with Mr Chase, in that she is his former wife.⁷

[10] Mr Gowing submitted, in essence, that the first complainant’s fear of Mr Chase is overstated, and that there is no evidence of any threats or intimidation of the first complainant since Mr Chase’s arrest and remand in custody. Further, she has “stood up” to Mr Chase by complaining to the police about him, resulting in the current charges. She has also previously obtained a protection order against him and given evidence in open Court against him, without the use of a screen. She has also attended Family Court proceedings that were also attended by Mr Chase.

[11] Detective Anderson filed a further affidavit recording the first complainant’s response to a number of these assertions. This includes, for example, that extensive security arrangements were put in place for the Family Court hearing. Further, she was not given the option of using a screen when she previously appeared in Court to give evidence against Mr Chase.

[12] The Court is required to have regard to the first complainant’s preference to give evidence from behind a screen.⁸ Given her fear of Mr Chase and the trauma that she says that she has suffered, I am satisfied that the use of a screen will assist to minimise the stress of the Court proceedings for her⁹ and promote her recovery from the alleged offending.¹⁰ Minimising the first complainant’s stress is more likely to result in accurate evidence and therefore a fair trial.¹¹ Mr Gowing did not point to any particular prejudice that would be caused to Mr Chase by the use of a screen. In my view there will be no such prejudice, particularly given that the trial will be a Judge alone trial. Taking all of these matters into account I am satisfied that it is appropriate

_{to make the order sought.}

⁷ Section 103(3)(h).

⁸ Section 103(4)(b).

⁹ Section 103(4)(b)(i).

¹⁰ Section 103(4)(b)(ii).

¹¹ Section 103(4)(a)(ii).

Should the second complainant and the first complainant’s mother be able to give evidence via a CCTV link?

[13] The second complainant and the first complainant’s mother are both protected persons under a final protection order issued against Mr Chase in 2001.

[14] The second complainant is 24 years old. He was five years old when Mr Chase began living with him and his mother. The Crown seeks a direction that the second complainant be able to give evidence via CCTV on the grounds of:

(a) His fear of intimidation. Detective Anderson reports that the second complainant feels “extremely intimidated” by Mr Chase. This fear is supported by the nature of the alleged offending against both him and his mother and Mr Chase’s gang connections.

(b) The nature of the evidence he is expected to give, namely physical intimidation towards him and physical violence against his mother in a domestic context over a period of approximately 18 years.

(c) The trauma he has suffered by virtue of the alleged ongoing serious domestic violence against his mother.

(d) His previous relationship with the defendant, who was his step-father.

[15] The second complainant believes that giving evidence via CCTV will reduce the stress on him from the court process significantly. This will enable him to focus on the detail of his account and provide the court with the best possible evidence.

[16] Mr Gowing submitted that the second complainant is a mature 24 year old man. In his police interview he stated that Mr Chase had never physically harmed him personally. Further, there have been no threats against the second complainant since Mr Chase has been arrested and remanded in custody. Additionally, given that it is a Judge alone trial, there will be a limited number of people in the Courtroom.

Mr Gowing submitted that the use of a screen would be sufficient to meet the second complainant’s concerns.

[17] In respect of the first complainant’s mother, Detective Anderson’s evidence is that:

(a) She is extremely intimidated by Mr Chase. She says that Mr Chase has previously threatened to burn her house down and assault her. Further, she says that she is aware that Mr Chase has a propensity to use violence and that he has gang connections.

(b) The first complainant’s mother is a reluctant witness who does not want to be in the same room as Mr Chase. She is anxious and stressed about giving evidence.

(c) The use of CCTV will help the first complainant’s mother focus on the detail of her account and assist her to provide the court with the best possible evidence.

[18] Mr Gowing submitted that the first complainant’s mother is a mature woman who has previously stood up to Mr Chase by obtaining a protection order against him. Her fears and concerns can be adequately addressed through the use of a screen.

[19] The Court is required to have regard to the preference of both witnesses to give evidence via CCTV. I accept that both witnesses are genuinely fearful of Mr Chase and that the use of a CCTV link will assist to minimise the stress of the Court proceedings on them. One of the key rationales identified by the Law Commission for allowing vulnerable witnesses to give evidence in an alternative way is that more witness friendly courtroom processes are likely to significantly reduce the stress of giving evidence for such witnesses.¹²

[20] Further, in the case of the second complainant, giving evidence via CCTV is more likely to promote his recovery from the alleged offending, given his fear of the defendant. Reducing the stress of the court proceedings on the witnesses is more likely

_{to result in accurate evidence and therefore a fair trial.}

¹² Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at [11.69].

[21] Mr Gowing did not point to any particular prejudice that would be caused to Mr Chase by the use of a CCTV link for either witness. I note that, from Mr Chase’s perspective, he will be viewing the witnesses via a monitor regardless of whether they give evidence from behind a screen (as Mr Gowing proposes) or via CCTV. Allowing the witnesses to give evidence via CCTV will not, in my view, prejudice Mr Chase’s fair trial rights. He will still have a full opportunity to seek to undermine their evidence, adduce evidence favourable to him or attack the witnesses’ credibility and veracity. Given that the trial will be a Judge alone trial, there is no risk of the fact finder drawing an adverse inference from the use of a CCTV link. Further, modern CCTV technology is of a high quality and the use of such technology will not materially reduce the impact of cross-examination or detrimentally impact the Judge’s ability to assess credibility.¹³

[22] As I have already noted, once jurisdiction to make an alternative evidence direction has been established, all evidence options are equally on the table. There is no hierarchy of modes of evidence, with oral evidence in Court being the preferred option and evidence by way of CCTV being the least preferred option. Rather, the Court must undertake a broad fact specific inquiry to determine which mode of evidence is most appropriate, in light of the s 103(4) factors and the overall interests of justice.

[23] Society has a legitimate interest in seeing that justice is done and that the fact- finder has the best evidence available to them to assist in the truth finding process. Parliament has recognised that the use of traditional criminal justice processes can sometimes result in unfairness, particularly where vulnerable witnesses are involved. In such cases the giving of evidence in an alternative way may improve the overall

_{fairness of the trial process.}

¹³ R v Wong HC Auckland CRI-2005-004-15296, 17 May 2006 at [55]–[56]; R v Simi [2008] NZCA

515 at [26]; R v Raj [2007] NZCA 10 at [44]; R v Williams HC Auckland CRI-2009-092-10225,

16 December 2009 at [30]; R v Check [2009] NZCA 548 at [78];R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [76]; Deutsche Finance NZ Ltd v Commission of Inland Revenue (2007) 18

PRNZ 710 (HC) at [14]; Omni Marketing Group, Asia Pte Ltd v Transactor Technologies Ltd [2008] NZHC 792; [2008] 3 NZLR 252 (HC) at [15]; Yang v Chen HC Auckland CIV-2007-404-1751, 13 May 2010 at [52]; and R v Ming HC Auckland CRI-2009-092-10550, 26 August 2010 at [36].

[24] Taking all of these matters into account I am satisfied that it is appropriate to direct that both the second complainant and the first complainant’s mother give their evidence by way of CCTV link.

Result

[25] I direct that:

(a) the first complainant’s video interviews be played as her evidence in chief;

(b) the first complainant be seated in court behind a screen during the playing of the video, cross-examination and re-examination;

(c) the second complainant’s video interview be played as his evidence in chief;

(d) the second complainant be seated outside the court during the playing of the video, cross-examination and re-examination but connected to the court throughout by CCTV;

(e) the first complainant’s mother give evidence via CCTV from outside of the courtroom.

(f) That publication of this judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database is prohibited until final disposition of the trial. Publication in Law Report or Law Digest permitted. This is to protect

_{Mr Chase’s fair trial rights.}

Katz J