Ropiha v R [2018] NZHC 3204 (6 December 2018)

Last Updated: 8 April 2019

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2018-419-0046 [2018] NZHC 3204

BETWEEN	WILLIAM ROBERT ROPIHA Appellant
AND	THE QUEEN Respondent

Hearing:	6 December 2018
Appearances:	J E Tarrant for the Appellant B T Vaili for the Respondent
Judgment:	6 December 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

Jessica Tarrant, Barrister, Hamilton Almao Douch, Hamilton.

ROPIHA v R [2018] NZHC 3204 [6 December 2018]

Introduction

[1] On 9 August 2018, Mr Ropiha was convicted in the District Court at Huntly on a charge of male assaults female,¹ following a defended Judge-alone trial before Judge Saunders. Her Honour sentenced him to come up for sentence if called within nine months.²

[2] Mr Ropiha appeals his conviction on grounds a miscarriage of justice occurred because the victim, contended to be the key witness to the alleged offending, was not called as a witness for either prosecution or defence. Although he also formally appeals his sentence, no submissions are directed at challenging his sentence. Neither do I see any reasonable ground for doing so. The sentence is clearly within range, and I do not address it further.

Approach

[3] This is a first appeal against conviction.³ As such, I must allow the appeal if I am satisfied the Judge erred in her assessment of the evidence to such an extent a miscarriage of justice has occurred, or because a miscarriage has occurred for any reason.⁴ Miscarriage of justice is defined to mean:⁵

... any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

A ‘real risk’ exists if “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.⁶ Even if a conviction was inevitable, it cannot be sustained if resulting from an unfair trial.⁷

¹ Crimes Act 1961, s 194(b).

² New Zealand Police v Ropiha [2018] NZDC 16825.

³ Criminal Procedure Act 2011, ss 229-230.

⁴ Section 232(2).

⁵ Subsection (4).

⁶ R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

⁷ Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [37].

[4] Further, I am required to make my own assessment of and form my own opinion on the facts, independently of those found by the District Court Judge.⁸ In coming to that view, I must pay appropriate deference to those findings as made with the benefit of seeing and hearing witnesses giving evidence. Still, mine is a review function: that I might disagree with the Judge’s factual assessment is not enough – “[s]omething more is required to meet the ‘real risk’ test”.⁹ And, the appellant, Mr Ropiha, bears the onus of persuading me the judgment under appeal is wrong.¹⁰

Discussion

[5] At trial, the prosecution called evidence from four witnesses: the arresting officer, and three other people present in the home when the assault took place, aside from Mr Ropiha and the complainant. Mr Ropiha elected to give evidence himself for the defence.

[6] It appears the prosecution elected not to call the complainant because no formal statement was taken from her, as she was reluctant to speak to police the day after the offending. Mr Ropiha’s counsel, Jessica Tarrant, also seeks to draw an inference from a statutory declaration dated 2 May 2018 by which the complainant solemnly and sincerely declares never to have been assaulted physically or verbally by Mr Ropiha. Obviously, whether she has been assaulted is a question for the Judge, and not to be determined by her denial of it.

[7] Nonetheless, Ms Tarrant submits the upshot is:

... the most important witness, the complainant, was not given an opportunity to provide evidence which would have enabled the Judge to have a clearer view about all events and then determine whose evidence was more credible.

She submits this created a real a risk the outcome of the trial was affected or otherwise resulted in an unfair trial, in terms of the definition of ‘miscarriage of justice’.

⁸ Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

⁹ Sena v Police [2018] NZCA 203 at [9].

¹⁰ Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].

[8] This case is in many respects analogous to Thomas J’s decision in Leighton v Police.¹¹ Mr Leighton was convicted of one charge of common assault against his partner following a Judge-alone trial, during which the attending police officers, and a neighbour who had witnessed some of the incident, gave evidence for the prosecution. But the complainant was not called. One difference, however, is the complainant did in the end give evidence but Thomas J found:¹²

... only because [the complainant] was at Court on the day of the trial that the defence were able to ensure she gave evidence.

The failure to call the complainant as a prosecution witness meant the police prosecutor cross- examined her, which Thomas J considered highly undesirable.¹³

[9] Thomas J rejected the police justification,¹⁴ finding there was no evidence she was uncooperative (only that her evidence was unfavourable), and it was “understandable” she declined to make a statement on the night of the incident.¹⁵ These circumstances did not excuse the police from calling the complainant:¹⁶

At a minimum, what was required was that the 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.

[10] I find similarly here. In Mr Leighton’s case, there also was evidence from a neighbour and the attending police officers. Nonetheless, Thomas J found the complainant’s evidence was “highly relevant” and should have been called.¹⁷ Here too, the fact there were four other witnesses did not release the police from their obligations. As Her Honour went on to say:¹⁸

While the police have a wide discretion as to which witnesses they call, they are nevertheless required to exercise that discretion fairly. 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 Leighton v Police [2018] NZHC 1319.

¹² At [13].

¹³ At [17].

¹⁴ At [14].

¹⁵ At [15].

¹⁶ At [17] citing R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

¹⁷ At [18].

18. At [18] citing R v Fuller [1966] NZLR 865 (CA); Seneviratne v R [1936] 3 All ER 36 (PC); and R v Gunthorp CA46/93, 6 September 1993.

However, ultimately, Thomas J did not consider the irregularity, by itself, constituted a miscarriage of justice.

[11] I conclude likewise here. After evidence was given for both sides, Judge Saunders was left in a position where, as she describes it, “I must decide between the two quite conflicting versions”.¹⁹ She considered the evidence of the three witnesses present in the home adequately compelling,²⁰ and dismissed Mr Ropiha’s starkly contrasting account as lacking credibility.

[12] I make three points about Her Honour’s assessment of the evidence:

(a) first, she was aware of inconsistencies in the prosecution case, as she reasoned:²¹

... that is entirely explicable because of the fact that witnesses do not all concentrate on the same thing when they are recalling an event. There is also the fact that a witness, although honest and sincere, may be genuinely mistaken about events, and a witness needs to be not only honest and sincere, but also reliable and credible. As I have said, witnesses do not see all the same thing, and they do not place the same weight on what they see, [so] ultimately, the inconsistencies in the prosecution evidence is not particularly determinative of whether the charge is proven or not.

(b) next, Her Honour was careful in her treatment of that evidence. She found the evidence established an assault only to a limited extent, that there was an assault as the complainant was trying to get out of the window; and

(c) last, I recognise the advantages Judge Saunders had in having the witnesses give evidence before her, observing for example:²²

[Mr Ropiha] was forceful in giving evidence and I take from the manner in which he gave evidence that he can have a controlling manner about him.

¹⁹ New Zealand Police v Ropiha, above n 2, at [18].

²⁰ At [6], [9] and [11].

²¹ At [18].

²² At [17].

[13] In the final analysis, there is no reasonable possibility a not guilty verdict might have been delivered if the victim had given evidence. Neither do I see the irregularity as occurred as so gross, persistent, prejudicial, or irremediable as to require me to condemn the trial as unfair.

Result

[14] The appeals against conviction and sentence are dismissed.




—Jagose J