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Richmond v Police [2013] NZHC 356 (28 February 2013)

Last Updated: 2 April 2013

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT, PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS (OR NAMED WITNESS UNDER 18 YEARS OF AGE) PROBHIBITED BY S 204

_{OF THE CRIMINAL PROCEDURE ACT 2011.}

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-42 [2013] NZHC 356

BETWEEN KEITH ALAN RICHMOND Appellant

AND POLICE Respondent

CRI 2012-441-45 [2013] NZHC 356

AND BETWEEN CHRISTOPHER HOPE NGARONOA Appellant

AND POLICE Respondent

Hearing: 4 February 2013

Counsel: R A A Weir for Appellant Richmond S J Jefferson for Appellant Ngaronoa N M Graham for Respondent

Judgment: 28 February 2013

_{JUDGMENT OF THE HON JUSTICE KÓS}

[1] These appeals raise the same question: what approach should a trial Judge take to evidence of a complainant who resiles from her original complaint? They do so in a very similar context: an alleged assault by male against female where,

_{regardless of the complainant’s change of evidence, the evidence still demonstrated}

RICHMOND v POLICE HC NAP CRI 2012-441-42; NGARONOA v POLICE HC NAP CRI 2012-441-45 [28 February 2013]

beyond doubt an assault. Either the assault alleged originally, or another arguably lesser assault.

[2] Mr Richmond appeals against conviction, but not sentence. Mr Ngaronoa appealed originally against both, but the sentence appeal was not pursued.

The Richmond appeal

[3] Mr Richmond was convicted following a hearing before Judge Watson in the District Court at Napier on 29 October 2012. The charge he faced was that he had assaulted a girl aged 9 years of age on 29 July 2012. For the purposes of this judgment, I shall call her Elizabeth.

[4] Elizabeth made a complaint of assault in an evidential interview conducted on 7 August 2012. That interview was played as her evidence-in-chief at trial. Elizabeth had been practising poi for a kapa haka concert later in the week. Twice the poi slipped from her hand and struck Mr Richmond. Her evidence-in-chief was that Mr Richmond grabbed her by the hair the second time he was hit by the poi and marched her towards her room. And then that in doing so, he kicked her bottom with his foot. A hard kick, “force four out of five”.

[5] Mr Richmond was interviewed by police on 1 August 2012. That was after the complaint but before Elizabeth’s evidential interview. In the course of that interview he admitted it was possible that he had kicked Elizabeth with his foot. He did not suggest at that stage that he had thrown the poi at Elizabeth. Rather, he said Elizabeth had regathered the poi and put it up her jumper to prevent it being thrown in the rubbish. Which is what Mr Richmond wanted to do with it.

[6] In cross-examination, Elizabeth accepted that Mr Richmond may not actually have pulled her hair when he placed his hand at the back of her head and marched her towards her room. The Judge found that the hair-grabbing allegation fell away as a result. I agree, however, with counsel for the Crown, Ms Graham, that the Judge did not find Elizabeth’s evidence lacked credibility on this question. He found the initial discipline administered “could well have felt like a grabbing”. Discipline to

that limited extent fell within the parental discipline defence in s 59 of the Crimes

Act 1961.

[7] So the real question in the case concerned the second aspect of the incident, the alleged kick.

[8] In cross-examination Elizabeth was told that Mr Richmond would say that he did not kick her, but rather threw the poi at her. This was put to her on a number of occasions. Initially she said she did not know. She had not looked behind her when it happened. The next time Mr Richmond’s intended evidence was put to her she said, “okay”. The third time she said she accepted that version and that Mr Richmond had not kicked her.

[9] In re-examination however, Elizabeth reasserted that it had been a hard kick

with the flat side of Mr Richmond’s foot.

[10] Then, in questions from the Court, Elizabeth said she was now sure it was the poi rather than the foot that had struck her.

[11] Mr Richmond gave evidence at trial. He denied kicking her and said that what had happened was that he had picked up the poi, “tossed it and ... hit her on the bum” as Elizabeth was walking to her room. That was different to his unsworn statement to the police. There he had accepted it was possible he had kicked Elizabeth. He made no mention of throwing the poi. Rather, he said Elizabeth had stuffed it into her jumper.

[12] Ultimately the Judge found the alleged assault – in the form of a kick – had occurred. He found Elizabeth’s initial interview convincing as to veracity. Secondly, he considered her resiling from that evidence was not credible. He speculated she might have done so as a result of “pressures”. He made no formal finding to that effect, however. He simply preferred her evidence-in-chief over the later evidence given at trial. Thirdly, he noted that Mr Richmond had originally accepted that he might have kicked Elizabeth. Fourthly, he noted that the “poi toss” explanation was not offered by Mr Richmond at his police interview, which of

course took place just two days after the alleged assault. Fifthly, the “poi toss” was inconsistent with his original statement that Elizabeth had put the poi up her jumper. As the Judge put it, “the poi could not have been in two places at once”. Sixthly, Mr Richmond did not impress the Judge as a credible witness. His answers gave the Judge real concern as to the truthfulness of his evidence at trial.

[13] Judge Watson concluded:

I am quite satisfied from the evidence that I have heard that [Elizabeth’s] explanation is the more appropriate explanation as to what happened. I am satisfied that she was given a kick in her bottom as she entered the bedroom. I reject Mr Richmond’s evidence that he says it did not happen. I find him to be unreliable in relation to that particular part of the events as it unfolded on that Sunday. I am satisfied that the kick in the circumstances it occurred was an assault. He does not have the protection of s 59 and he will accordingly be convicted.

The Ngaronoa appeal

[14] Mr Ngaronoa was convicted following a hearing before Judge Adeane in the District Court at Napier on 4 October 2012. The charge he faced was that he had assaulted his partner, Santana Biddle, on 28 June 2012.

[15] The evidence at that trial was more limited than in the Richmond appeal. The complainant, Ms Biddle, gave evidence. Formal written statements by two police officers, Constables Warren and Southwick, were adduced by consent. They were not cross-examined. Unlike Mr Richmond, Mr Ngaronoa did not give evidence.

[16] The evidence shows that the police officers were called to the Shell service station in Durham Avenue, Tamatea on the evening of Thursday, 28 June 2012. There they located Ms Biddle. She was distressed and had a swollen lip. Constable Warren took a statement from Ms Biddle. In it she said that Mr Ngaronoa had been arguing with his mother in a motor car. His mother told him to get out of the car. In order to bring the argument to a close, Ms Biddle tried to pull him out of the car. Her statement continues:

I pulled him outside of the car, then he gave me the meanest smack. I don’t

know how many times. He hit my [sic] closed fist in the face. He hit pretty

hard. About 8 or 9 out of 10 for power. He was yelling at me and my [sic]

mum while this was happening.

[17] But when Ms Biddle gave evidence at trial she denied that she had been hit by Mr Ngaronoa with his fist. She said that her statement had been “sort of juiced up”. Meaning, I gather, exaggerated. But on the other hand, she still said that in the course of pulling Mr Ngaronoa out of the car “he got angry and shoved me back and I fell over.” The shove was with his right hand, right arm or elbow, and administered to her chest. The result was she fell over and hit the kerb. So whichever course of events was true, an assault had occurred.

[18] Judge Adeane noted that Ms Biddle’s original statement to the police officers was to an extent corroborated by the circumstances in which they came upon her at the Shell service station. She had then resiled to some degree from that statement in her oral evidence. The Judge said:1

At the end of the day I am satisfied that this damage to Ms Biddle’s lip was caused by no less than one unjustified punch from Mr Ngaronoa to her face as her original statement clearly establishes and which she acknowledges, despite some typographical questions surrounding the content of the statement as transcribed. It is clear that she recalls telling the police that she was punched in the face and that her recollection of such an event today is favourably stimulated by reference to the earlier statement.

I am entitled to accept such parts of her evidence as I consider to be reliable in the circumstances and reject other parts which I do not. I, on that basis, accept that a punch was the cause of this injury. There could be no justification for a punch in the circumstances and the charge is proved accordingly.

[19] Subsequently a different judge, Judge Watson, sentenced Mr Ngaronoa to 12 months’ imprisonment. He noted a number of prior assaults by Mr Ngaronoa against women. He suggested that “insofar as women are concerned, you should come with a health and safety warning”. Although Mr Ngaronoa appealed originally against both conviction and sentence, the sentence appeal was not pursued.

Approach on appeal

[20] These appeals are governed by ss 115 and 119 of the Summary Proceedings Act 1957. It is a general appeal, to be heard by way of rehearing. The onus lies on the appellants to satisfy the Court that the grounds of their appeals have been made out and that this Court should differ from the original District Court decisions. The appellate Court must come to its own view on the merits.2

[21] On the face of things, an appeal under s 119 gives the High Court on appeal broader jurisdiction than the Court of Appeal from the High Court under s 385(1) of the Crimes Act. That provision is in specific terms:

Determination of appeals in ordinary cases

...

(1) On any appeal to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—

(a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(b) that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) that on any ground there was a miscarriage of justice; or

(d) that the trial was a nullity—

and in any other case shall dismiss the appeal:

provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[22] The principal evidential appeal ground under s 385(1) is that set out in paragraph (a) – that the jury verdict should be set aside on the ground it was “unreasonable and cannot be supported having regard to the evidence”. There is a substantial body of authority in relation to the meaning of that paragraph. The

essential question is whether a jury, having regard to all the evidence and properly directed upon it, could not reasonably have been satisfied beyond reasonable doubt that the accused was guilty of the offence charged.

[23] The decision of the Supreme Court in Owen v R3 makes clear that, under s

385(1)(a), the appellate court is undertaking a review function, rather than substituting its own view of the evidence. Appropriate weight must be given to the advantages of the jury in assessing the honesty and reliability of witnesses, the weight to be given to individual pieces of evidence being essentially a jury function. Appellate courts should not interfere lightly with a jury verdict.

[24] These principles apply also where trial in the High Court was conducted by

Judge alone.4

[25] The question whether this same general approach should then apply also in summary conviction appeals from the District Court was considered by Heath J in CAC v New Zealand Police.5 There the Judge said:6

While the High Court’s powers appear wider than those of the Court of Appeal when it considers appeals arising out of jury verdicts, I am satisfied that the same principles should apply.

[26] With that approach I agree. It lends logical flesh to the skeletal statutory appellate jurisdiction set forth in ss 115 and 119. A court dealing with a summary conviction appeal under s 119 would normally expect grounds to be advanced and articulated that fall within one or more of paragraphs (a) to (d) of s 385(1) of the Crimes Act 1961. The authorities concerning that provision offer useful guidance on a s 119 appeal. Counsel in the present appeals did not dissent from these

_{propositions.}

3 _{Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].}

4 _{R v Connell [1985] 2 NZLR 233 (CA) and R v Eide [2004] NZCA 215; (2004) 21 CRNZ 212 (CA).}

5 _{CAC v New Zealand Police [2012] NZHC 3023.}

6 At [17].

Discussion

[27] It is a not infrequent experience in summary trials that a complainant resiles from his or her original statement. That original statement may be evidence-in-chief (introduced in the form of an evidential interview), it may be introduced through another witness (such as a police officer) or it may be put to the tergiversating witness as a previous inconsistent statement. Sometimes, but certainly not always, the complainant may be hostile to the prosecution.

[28] It remains a question for the fact finder (whether a jury, or in the summary context, a Judge) whether, in the face of this internal conflict, any part of the evidence given by the complainant remains credible and reliable. The fact of conflict, just as with inconsistencies, does not prevent a jury or Judge from relying on part, and rejecting the rest. The weight to be given to a witness’s evidence, and to the warring parts of a witness’s evidence, is essentially a question for the fact finder. Having performed that weighing and screening function, then so long as there is sufficient evidence available on which the fact finder could reasonably be satisfied to the required standard as to guilt, then there is no basis in law to reverse that finding.

[29] In Varma v Police,7 Mr Varma had been convicted in the District Court of assaulting his partner. He appealed against his conviction to the High Court. The basis of the appeal was that there was insufficient evidence on which the Judge could find the charge proved. The complainant had made a statement describing the offending. Thereafter she travelled overseas. She did not give viva voce evidence. Her statement to the police was admitted under s 22 of the Evidence Act 2006. She made a further statement saying there were serious inaccuracies in the original statement. She did not say what they were, but she said her injuries “were not the result of him slapping me”. She asked for the charges to be withdrawn. That statement too was admitted in evidence at the trial.

[30] The District Court Judge found that the complainant’s first statement was

credible and reliable. He did not accept the second statement as either. The accused

gave evidence. He said he was simply trying to restrain the complainant while she was acting hysterically. The Judge rejected his account of events.

[31] As to all this, Potter J said:8

Having rejected the appellant’s evidence about how the injuries were caused, it was open to the Judge to convict the appellant on the basis of the statement made by the complainant immediately after the events occurred and the photographic evidence that was part of the prosecution case. It was open to the Judge to prefer the account given by the complainant to the Police immediately after the events occurred and to reject the two subsequent attempts by the complainant to resile from her initial statement to the Police. Neither of the subsequent statements provided an explanation as to how the injuries she clearly received, were incurred or in what respects “there were serious inaccuracies in my statement to the Police”.

Further, I agree with the submission for the Crown, that on the appellant’s own evidence the offence charged of male assaults female was established. The appellant’s evidence was the intentional application of force. As I discussed with Mr Mohamed in the course of oral submissions, the reasons advanced by the appellant for applying the force, namely the hysterical state of the complainant, may well have been a mitigating factor on sentencing, but does not detract from the fact that here there was clear evidence to prove the offence charged including the intention to apply force.

[32] I agree with that approach.

Mr Richmond’s appeal

[33] Mr Richmond’s counsel, Mr Weir, submits that the complainant, Elizabeth, had resiled from her evidence as to being grabbed by the hair and being kicked on the bottom. It is not correct, however, to say that she resiled from the hair-grabbing accusation. That had been her perception, but the Judge found that her hair had not been grabbed. Her head had been held firmly, but not unlawfully. It could have felt like hair-grabbing, but it was not. No issue as to her credibility arose in relation to that differing conclusion.

[34] Mr Weir is right in his submission that Elizabeth resiled in her later evidence from the allegation of kicking. However I am satisfied that this appeal nonetheless cannot succeed.

[35] First, the Judge was entitled to weigh the evidence of Elizabeth, variable as it was, and to find either some of it credible, or none of it credible. In this case he found some of it to be credible. His analysis was thoughtful and cogent, and he had the advantage of seeing her give evidence.

[36] Secondly, he was entitled to reject the evidence of the appellant, Mr Richmond, as incredible. I have set out in [12] and [13] the Judge’s reasons for that finding. In particular, the third, fourth, fifth and sixth reasons set out in [12]. That reasoning seems impeccable to me.

[37] Thirdly, as in Varma, so too here Mr Richmond’s subsequent account of events still involved an admission of assault, albeit of a different kind. The degree of difference would not be such as to trigger a s 59 defence. Any difference in degree was then a matter for consideration in relation to sentencing. That does not arise here; the appeal is as to conviction only. Regardless, the Judge was right to reject Mr Richmond’s account of events.

Mr Ngaronoa’s appeal

[38] In the case of Mr Ngaronoa, many of the same considerations apply.

[39] First, the Judge weighed the differing accounts given by Ms Biddle. He found some parts credible and some parts incredible. He was entitled to do that, having seen and heard her.

[40] Secondly, even the diluted allegation persisted with by Ms Biddle in the witness box involved an assault committed on her by Mr Ngaronoa. Conviction was inevitable unless self-defence applied.

[41] Thirdly, the Judge was entitled to reject self-defence. Mr Ngaronoa did not give evidence before the Judge. The circumstances as he perceived them to be necessarily had to be inferred from the evidence given by the complainant. That evidence was of force applied to her ranging from a very hard punch to the face (at one end of the spectrum) to elbowing her in the chest and causing her to fall to the

kerb (on the other). The Judge found the punch evidence the more credible. And he was entitled to do so, as I have already said.

[42] The Judge had the advantage of seeing the complainant when she gave evidence. He also had the advantage of seeing the accused standing before him in the dock. He was in as good a position as possible to decide: (1) what the circumstances were preceding delivery of the punch, (2) whether the accused then threw the punch to defend himself (as opposed to retaliating against the unwanted efforts of Ms Biddle to get him out of the car); and (3) whether in all those circumstances the force used was unreasonable. It does not follow from the fact that Ms Biddle was trying to pull Mr Ngaronoa out of the car that his physical response must have been either defensive or reasonable. To engage the defence, Ms Biddle’s intrusion must have transcended mere nuisance or irritation, even of a physical kind, to represent (in the eyes of the accused) a threat requiring a defensive response. That response must then have been a justifiable one, in the sense that the punch was a reasonable response to the perceived threat.

[43] In the circumstances, and on the evidence before him, the Judge’s conclusion that Mr Ngaronoa’s punch to Ms Biddle was retaliatory (rather than defensive), and an unreasonable use of force, cannot be criticised.

Conclusion

[44] For the reasons given above I conclude:

(a) Where an appeal is brought against conviction under s 119 of the Summary Proceedings Act 1957, the High Court will normally apply the principles developed in relation to s 385(1) of the Crimes Act

1961.

(b) Where the appellant contends that the trial Judge’s finding of fact cannot be sustained, the principles set out by the Court of Appeal in R v Munro9 and the Supreme Court in R v Owen10 ordinarily will apply.

(c) Where a complainant resiles from his or her original statement to the police, or from his or her evidence-in-chief, it is a matter for the fact finder to weigh the whole of the evidence and discern whether any part of the complainant’s evidence remains credible and reliable. The fact of conflict, just as with inconsistency, does not mean the complainant’s evidence in its entirety must be disregarded.

(d) In each of the present appeals the trial Judge was entitled to prefer the original statement made by the complainant, and to reject as incredible or unreliable that witness’s later evidence. The convictions accordingly were reasonably entered on the basis of the evidence.

(e) Even if that were not so, the diluted versions attested to by the complainants (and in the case of Mr Richmond, admitted by him in evidence) constituted a completed offence in the form charged. The difference in degree was not so substantial as to give rise to any question as to the soundness of the conviction entered on the basis of acceptance of the original complaint evidence. Rather its relevance

_{related, if at all, to sentence.}

Result

_{[45] Appeals dismissed.}

_{Stephen Kós J}

Solicitors:

Public Defender, Napier for Appellant Richmond (rob.weir@justice.govt.nz)

Crown Law Office, Wellington for Respondent (ngraham@elvidges.co.nz)

9 _{R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.}

10 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.