Leighton v Police [2018] NZHC 1319 (6 June 2018)

Last Updated: 10 July 2018

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2018-443-6 [2018] NZHC 1319

BETWEEN	JONATHAN RICHMOND LEIGHTON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	29 May 2018
Counsel:	N P Bourke for Appellant G N Milne for Respondent
Judgment:	6 June 2018

JUDGMENT OF THOMAS J

[1] On 21 October 2017, the appellant, Mr Leighton, was arguing with his then fiancé, Ms Robson, in the back yard of their property. A neighbour called the police. On arrival, the police could hear the sounds of yelling from inside the house. When they knocked on the door, Mr Leighton’s mother answered and told them her son and his girlfriend were fighting. Ms Robson came to the door, assured the police everything was fine but said she and Mr Leighton were breaking up and she was leaving. When the police left, another neighbour approached them and said she had seen Mr Leighton assault Ms Robson. The police returned to the house, put the allegation to Mr Leighton, who denied it, and he was then arrested.

[2] Mr Leighton was convicted of one charge of common assault by a District Court Judge following a Judge alone trial.¹ As well as the attending police officers,

1. Police v Leighton [2018] NZDC 6795; Crimes Act 1961, s 196, maximum sentence one year’s imprisonment.

LEIGHTON v POLICE [2018] NZHC 1319 [6 June 2018]

the prosecution called the neighbour who had approached the police, Ms Davis, to give evidence. They did not call Ms Robson.

[3] Mr Leighton now appeals his conviction on the basis the Judge drew impermissible inferences from the facts, the police erred in failing to call Ms Robson as a witness and the Judge’s approach resulted in a miscarriage of justice.

Factual background

[4] Ms Davis gave evidence that, from her deck at the neighbouring property, she could hear yelling. She saw Mr Leighton leave the house and approach the shed in the back yard of his property. Ms Robson followed him, yelling. She heard Ms Robson say, “fuck off”, and saw Mr Leighton turn and punch Ms Robson in the side of the head with sufficient force to turn Ms Robson’s body. She saw Ms Robson walk away, telling Mr Leighton to “get fucked”.

[5] Constable Frearson spoke to Ms Davis after Ms Robson had told him things were fine. He described Ms Davis as appearing to be very concerned for Ms Robson and confident about what she saw.

[6] Constable Aim’s evidence was that Mr Leighton said he was upset, having returned home to find Ms Robson packing her bags and telling him she was breaking up with him. Constable Aim saw packed suitcases in the house. Ms Robson also told her they were breaking up. Constable Aim said Mr Leighton had wounds and fresh blood on his wrist, consistent with self-harm, and had been crying. Both he and Ms Robson delayed answering the door to the police.

[7] As the defence had no contact details for Ms Robson, they prepared for trial by filing a notice of hearsay seeking to have what Ms Robson told the police admitted as evidence at the trial. Fortuitously for the defence, Ms Robson attended Court on the day of the trial and agreed to give evidence for the defence. She and Ms Davis gave differing evidence as to what had happened in the back yard that day only in respect of the central issue, which was whether or not Mr Leighton had punched Ms Robson.
[8] Ms Robson said she and Mr Leighton had a verbal dispute. She said they were in the rear of their property, Mr Leighton in the shed, facing away from her. She stood in the doorway of the shed, yelling at him. He turned and, in attempting to get past her through the doorway, raised his hands above his head. She told him to “fuck off”.

District Court decision

[9] The Judge referred to the evidence outlined above. She expressly asked herself about the inferences she could properly draw and concluded such inferences pointed to the charge being made out:

[12] What inferences or conclusions can I safely and properly draw from the evidence that I have heard today? There is evidence from the police statement of Constable Aim that the defendant told the police that he was upset. He had returned home that day to find his girlfriend packing her bags and breaking up with him. This leads to an argument, there is yelling and screaming. This corroborated the evidence that I have heard.

[13] Police Constable Aim, in her statement, says that she saw a couple of suitcases inside the front door in the lounge area and saw Ms Robson packing her bags. Ms Robson told the police constable that she and the defendant had had a fight and were breaking up.

[14] I conclude that their verbal argument went too far. The defendant has removed himself from the house. He has gone into the back yard, he is putting distance between himself and Ms Robson. He tells her to fuck off, and Ms Robson has come up behind him, yelling and screaming. In her evidence she said she blocked the entrance to the shed and that he has turned around. That he put his hands in the air to move past her does not hang together for me.

[15] These parties were in a volatile situation. I prefer the evidence of the witness that the defendant has reacted by turning around and punching her. The respondent is upset and she cries, and this is consistent with being assaulted and she is angry. She tells him to fuck off. She has reason to do so.

[16] In respect to the evidence that the defendant’s wrists had wounds with fresh blood consistent with self-harm that was seen when he has been placed in handcuffs, this provides a reasonable explanation for the occupants in delaying answering the door, in particular the second time when the police returned to the property. There is evidence that the defendant has been crying and this is consistent with his overall distress. It also provides a reasonable explanation for Ms Robson not disclosing that she had been hit by the defendant.

[17] In this case I am not left with a reasonable doubt. I find the defendant guilty of an assault against Toni Robson is proved.

Grounds of appeal

[10] Mr Bourke, for Mr Leighton, submitted the Judge erred by reaching her decision based on impermissible and inappropriate inferences which were not available on the facts, specifically that Mr Leighton self-harmed and that was an explanation for Ms Robson not disclosing an assault. In addition, he submitted the police breached their duty of fairness by failing to call Ms Robson as a witness. In light of the above, he submitted, the assessment of evidence on the whole meant a miscarriage of justice has occurred.

Law

[11] The Criminal Procedure Act 2011 requires an appellate court to allow an appeal where the trial judge erred in assessing the evidence such that a miscarriage of justice has occurred, or where a miscarriage of justice has occurred for any reason.² A miscarriage of justice is an error, irregularity or occurrence that has either created a real risk the outcome of the trial was affected, or has resulted in a trial that was either unfair or a nullity.³ Not every error or irregularity results in a miscarriage of justice.⁴ A real risk the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.⁵

[12] On appeal, a court will pay appropriate deference to findings made by a judge who had the opportunity to assess the credibility of witnesses in person but must nevertheless review the evidential basis for factual findings with care.⁶ In R v Slavich, the Court of Appeal tentatively suggested closer appellate scrutiny may be appropriate where a fully reasoned judgment was given following a judge alone trial.⁷

² Criminal Procedure Act 2011, s 232(2)(b) and (c).

³ Section 232(4).

⁴ Matenga v R [2009] NZSC 18 at [30].

⁵ R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

⁶ O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [5].

⁷ R v Slavich [2009] NZCA 188 at [33].

Analysis

Calling Ms Robson as a witness

[13] In Mr Bourke’s submission, the police breached their duty of fairness in failing to call Ms Robson as a witness. In her evidence, Ms Robson said she had told the police she would give a statement but the police chose not to interview her. It was only because Ms Robson was at Court on the day of the trial that the defence were able to ensure she gave evidence.

[14] Ms Milne, for the respondent, submitted the defence was not disadvantaged because the defence called Ms Robson as a witness. In any event, the police had sufficient evidence to charge Mr Leighton without Ms Robson’s evidence and were not otherwise obliged to do so. They also had grounds to consider Ms Robson would not make a credible witness. She had been evasive and uncooperative when the police attended the incident and did not inform them of the punch.

[15] I do not accept the police justification for their approach in this case, namely the allegation that Ms Robson had been uncooperative. Her alleged lack of cooperation was because she denied Mr Leighton had assaulted her. In other words, she was not giving the version of events which the police favoured. That she might have declined to make a statement on the night of the incident was understandable. The police knew she was upset and was in the process of leaving her fiancé.

[16] The police must ensure that they deal with allegations of domestic violence properly. That does not, however, mean they can avoid calling the “victim” of any alleged domestic violence in circumstances such as these. This was not a case of a victim refusing to talk to the police, maintaining no assault had taken place despite obvious injuries or recanting allegations.⁸

[17] The failure to call Ms Robson as a prosecution witness meant the police prosecutor cross-examined her, something which I consider to be highly undesirable in the circumstances of this case. At a minimum, what was required was that the

⁸ Instances such as these would not necessarily permit the prosecution to avoid calling the “victim”.

prosecution call her so the defence would have the opportunity to cross-examine her, an approach endorsed by the High Court of Australia in R v Apostilides.⁹ A defendant can apply to the court for an order that the prosecution call a witness in circumstances such as these.

[18] While the police have a wide discretion as to which witnesses they call, they are nevertheless required to exercise that discretion fairly.¹⁰ They must call witnesses whose narratives are essential to the case, irrespective of whether the evidence will help or hinder the prosecution’s case.¹¹ In this case, Ms Robson’s evidence was highly relevant and there was no reason, such as retraction of any allegations, which would indicate reliability concerns.

[19] I accept Ms Milne’s submission, however, that in this case there was no miscarriage of justice on this ground alone.

Miscarriage of justice due to assessment of the evidence

[20] Mr Bourke submitted the Judge failed to consider the following:

(a) Ms Davis’ account was inconsistent with the police informant who reported only a verbal altercation;

(b) Ms Davis was about 30 metres away, her view being obstructed by a
1.8 metre high fence;

(c) Ms Davis had consumed three to four beers when she witnessed the altercation; and

(d) neither Constable saw evidence of injury or marks indicating a physical assault on Ms Robson.

⁹ R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

¹⁰ R v Fuller [1966] NZLR 865 (CA).

¹¹ See Adams on Criminal Law (online ed, Thomson Reuters) at [TP24.06] citing Seneviratne v R

[1936] 3 All ER 36 (PC); and R v Gunthorp CA46/93, 6 September 1993.

[21] Mr Bourke submitted the Judge made much of Ms Davis’ reasons for informing the police, which is a matter of credibility, rather than focusing on whether Ms Davis was mistaken, which is a matter of reliability.

[22] Ms Milne submitted the Judge made it sufficiently clear that she preferred the evidence of Ms Davis when it came to whether a punch was thrown. The Judge also gave her reasons for doing so: for instance, Ms Davis’ evidence was largely consistent with Ms Robson’s despite the distance from which she observed the altercation, and that Constable Frearson considered Ms Davis was very sure and very confident about what she saw. Ms Milne notes that Constable Frearson also reported Ms Davis was steady on her feet, coherent, and not suffering from slurred speech when she gave her statement to police. Ms Milne therefore submitted the Judge was justified in the conclusion she came to.

[23] First of all, I have some concerns about the assessment of the witness’ credibility and reliability. The Judge does not appear to have considered the fact that a credible witness may nevertheless be mistaken. This is a consideration of particular importance in this case when the incident was seen from a distance, the witness had consumed alcohol to the extent she would “certainly not” be driving and in the face of the so-called victim denying from the outset, and on oath, that Mr Leighton punched her.

[24] I agree with Mr Bourke that, save for the challenged finding that Ms Robson had motive to deny the assault due to Mr Leighton’s self-harming addressed below, there were no articulated reasons why Ms Davis’ evidence was found more reliable than that of Ms Robson. The accounts diverged only on the question of a punch and there was no more to corroborate Ms Davis’ account than Ms Robson’s. It was therefore incumbent on the Judge to articulate why she preferred one person’s evidence over the other, particularly in terms of reliability, and the failure to do so indicates the Court ought to have been left with reasonable doubt.

[25] In addition, the Judge did not offer sufficient reasons as to why she rejected Ms Robson’s response that it was “definitely wrong and I’m sorry but that was really
hurtful” when asked if she did not disclose an assault to the police because Mr Leighton was really upset.

[26] Secondly, I have concerns about inferences. The Judge referred to the evidence that Mr Leighton told the police he was upset having returned home to find Ms Robson packing her bags and breaking up with him. That led to an argument, yelling and screaming. The Judge then referred to the evidence of Ms Robson’s suitcases being by the front door and what she had told the police. The Judge concluded the verbal argument went too far. She said Ms Robson’s evidence of Mr Leighton putting his hands in the air to move past her “does not hang together for me”. She referred to the volatile situation and then stated she preferred the evidence of Ms Davis. She referred to Ms Robson crying, which she considered consistent with being assaulted, and that she was angry.

[27] In respect of these conclusions, however, the evidence was equally available as inferences supporting Ms Robson’s version of events, namely that she and Mr Leighton were having an argument and both were angry and upset, which could hardly be considered a surprise given they were breaking up.

[28] Inferences are logical and rational conclusions drawn from reliable evidence. They must never be speculation or guesswork. If the evidence would support two conclusions of similar weight, then to choose between them would be to guess.

[29] Furthermore, the Judge did not refer to the lack of evidence of any physical injuries on Ms Robson notwithstanding Ms Davis went to see her immediately after she saw the alleged punch. The police did not observe any injuries on Ms Robson. At no stage did Ms Robson ever say she had been punched, even when Ms Davis put it to her that Mr Leighton had punched her. Indeed, Ms Robson’s evidence was that, in their three years together, Mr Leighton had never hit her. She also said she had been in an abusive relationship previously and had put her former partner in prison.

[30] These issues lead to concerns with the Judge’s conclusion given the standard of proof. The Judge acknowledged the onus was on the police to prove beyond reasonable doubt that Mr Leighton had assaulted Ms Robson. However, when
choosing between competing narratives, it is helpful to bear in mind the direction from

R v Wanhalla:¹²

It is not enough for the Crown to persuade you that the defendant is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.

[31] In summary, there was a failure to distinguish between credibility and reliability in circumstances where there were matters which potentially impacted on Ms Davis’ reliability. The choice between available inferences amounted to speculation. Other matters not addressed supported the defence. I acknowledge the benefit to the trial Judge of having the opportunity to assess the witnesses in person. However, a careful and impartial consideration of the evidence in this case must result in an honest and reasonable uncertainty of Mr Leighton’s guilt. There was, in my assessment, a miscarriage of justice.

Evidence of self-harm

[32] The difficulties are exacerbated when the use of the evidence about Mr Leighton’s alleged self-harm is considered.

[33] This evidence is comprised of observations from Constables Aim and Frearson. Constable Aim, who handcuffed Mr Leighton, said she saw cut marks on Mr Leighton’s wrists, possibly indicating self-harm. She asked him about them at the police station and he said he had cut his wrist accidentally on an iron fence. Constable Frearson’s evidence was that she saw what she thought were fresh cuts consistent with self-harm. She said that self-harm was a “red flag” because people who are looking to do so “don’t care about themselves or others and are not safe”. Counsel objected to this evidence on the basis there was no factual or medical basis for it and it was inappropriate and distasteful.

[34] Mr Bourke submitted the Judge erred in accepting this evidence, because:

¹² R v Wanhalla [2006] NZCA 229; [2007] 2 NZLR 573 (CA) at [49].

(a) the conclusion Mr Leighton self-harmed was speculative at best, given the Constables’ lack of medical knowledge and the explanation Mr Leighton gave;

(b) Mr Leighton was seen by an ABC Mental Health team, who apparently concluded there was no evidence to suggest Mr Leighton was at risk of self-harm or unsafe to return home;

(c) Constable Frearson’s comment regarding the safety of those who self-harm was inappropriate, without medical basis and plainly offensive; and

(d) no reasons were given as to why Mr Leighton’s explanation was rejected.

[35] Further, Mr Bourke submitted the Judge engaged in speculation when concluding that self-harm was an explanation for Ms Robson not disclosing an assault. He suggested this was made more egregious by the fact that neither the prosecutor nor the Judge put this proposition to Ms Robson for comment. He said this chain of reasoning amounted to pure speculation. In response, Ms Milne submitted the discussion around self-harm was not part of the factual findings about the assault itself and therefore cannot ground an appeal on the basis of a miscarriage of justice.

[36] I have concerns about this evidence and reliance on it, particularly when it was given by witnesses unqualified to speak expertly on mental health. It does not appear the mental health workers who met with Mr Leighton had any concerns. In those circumstances a judge would be ill advised to place weight on that evidence.

[37] The Judge used the alleged self-harm to support her decision to prefer Ms Davis’ evidence, saying it provided a reasonable explanation for Mr Leighton and Ms Robson delaying answering the door when the police arrived. She referred to the fact Mr Leighton had been crying and was distressed. However, the evidence would equally support an inference Mr Leighton was upset because his fiancé was leaving
him. As noted above, where the facts would equally support one of two conclusions, to choose between them is to guess.

[38] The Judge then said the evidence provided a reasonable explanation for Ms Robson not disclosing that she had been hit by Mr Leighton. In my view, the use of this evidence amounted to speculation in circumstances where that proposition was not put to Ms Robson.

Result

[39] For the reasons given, I am satisfied a miscarriage of justice occurred. I will not remit the matter back to the District Court for retrial. Given the evidence, a fact-finder could not be sure of Mr Leighton’s guilt and he should have been found not guilty. The appeal is allowed and the conviction is quashed.

Thomas J

Solicitors:

Crown Solicitor’s Office, New Plymouth