ALEFAIO v NEW ZEALAND POLICE [2021] NZHC 846

ALEFAIO v NEW ZEALAND POLICE [2021] NZHC 846 [21 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-42[2021] NZHC 846BETWEEN ALANI TAUI ALEFAIOAppellantAND NEW ZEALAND POLICERespondentHearing: 13 April 2021Counsel: G E Minchin for appellantH T Reid for respondentJudgment: 21 April 2021JUDGMENT OF TOOGOOD J[Conviction appeal]This judgment was delivered by me on 21 April 2021 at 9.00amRegistrar/Deputy RegistrarDate:Solicitors:Thomas & Co, AucklandCrown Solicitor, Auckland[1] Alani Taui Alefaio was found guilty of one charge of assault with intent toinjure following a judge-alone trial before Judge Jelas in the District Court atWaitakere on 3 September 2020.1[2] Mr Alefaio appeals his conviction on the ground he did not get a fair trial dueto the Police's failure to disclose the transcript of the 111 call made by a neighbour,Ms Moore, who was the principal prosecution witness. It is said on his behalf thatdisclosure of that transcript prior to the trial would have assisted defence counsel tocross-examine Ms Moore on the key issue of her ability to see what she said she hadseen taking place.Background[3] On 31 January 2020, Police went to the home of Mr Alefaio, his partner Ms Sand their children, after several neighbours called the Police and reported screamingcoming from the house. When the Police officers arrived, they heard screaming andyelling inside the property.[4] The Police arrested Mr Alefaio and charged him with assaulting Ms S. Ms Sdid not give evidence at the trial. There was no evidence that she had suffered anyinjury. The prosecution case rested on Ms Moore's evidence of what she saw andheard, supported by an arguably incriminating injury to Mr Alefaio's hand that mighthave been caused in an assault of the kind Ms Moore described.The case in the District Court[5] In her evidence,2 Ms Moore said she saw and heard Mr Alefaio and Ms Sarguing and that Mr Alefaio assaulted Ms S.[6] It was put to Ms Moore in cross-examination that it was not possible for her tosee the deck area, where the alleged assault happened, as her view from the windowwas obscured by foliage. She said she could see the deck through a gap in the foliage,assisted by her window being elevated relative to the deck. Despite challenges to the1 Police v Alefaio [2020] NZDC 7590.2 Discussed in more detail, below at [25].reliability of her evidence, Ms Moore was adamant she had a clear view down ontothe deck.[7] The evidence of the attending Police officer was read to the court by consent.He said that, as he approached the house on foot, he could hear screaming and yellingfrom inside the property. The constable recorded in his notebook that Mr Alefaio hada laceration on his hand, photographs of which were produced in evidence.[8] Mr Alefaio gave evidence. He denied the assault. He said that Ms S and heargued after he declined to drive her to the airport, so she could meet a family member,because he was tired. He said Ms S became angry and raised her voice when herefused to take her; she started calling him names. Mr Alefaio said he got angry,walked away, and took out his anger on the toilet door.[9] Mr Alefaio said Ms S told him she would drive herself to the airport with theirthree children (aged four, three and one). He said he was concerned about her drivingwhile she was in such an aggressive mood and he followed her out onto the deck areawhere they continued to scream at each other. Ms S was holding their youngest child.Mr Alefaio said she calmed down eventually, they both went inside, and she handedhim the child. Mr Alefaio said Ms S went to her room and was there when the Policearrived a short time later.The District Court's decision[10] Judge Jelas recorded in her decision that the prosecution was required to satisfyher beyond reasonable doubt that Mr Alefaio had assaulted Ms S as alleged byMs Moore. She also recorded correctly how she should treat the evidence of adefendant who gave evidence, including that, if she found Mr Alefaio's evidence didnot answer the charge nor raise a doubt about the prosecution case, she should notautomatically conclude that the charge had been proved. The Judge said that, in thosecircumstances, she must consider the evidence called by the Police to determinewhether on that evidence she was satisfied (to the required standard) that the assaultalleged took place. No criticism is made of the Judge's statements about the legalposition.[11] The Judge said there were two aspects of Mr Alefaio's evidence that sheconsidered relevant to determining his credibility and reliability. The first was hisdescription of Ms S having calmed down and gone into her room. That evidence wasin direct conflict with the unchallenged evidence of the attending constable. JudgeJelas held that, in the circumstances of the case, the change in Mr Alefaio's positionabout the constable's account, by disputing it in his own evidence, was an attempt tobetter his position that was not credible.[12] The second factor in the Judge's adverse finding on Mr Alefaio's credibilitywas his evidence about his hand injury. Mr Alefaio acknowledged he damaged thetoilet door but denied causing the damage by punching it. Under cross-examinationhe said that he used his knee and that his hand injury was the result of an old woundopening-up.[13] No other direct evidence explaining how Mr Alefaio damaged the door wasoffered, but the Police officer gave evidence that he thought the damage to the doorwas consistent with a punch. The possibility of Mr Alefaio's knee causing the damagewas not put to him. No medical evidence about the likely cause of Mr Alefaio'sinjuries was offered and the Judge held they appeared to be recent. She noted that noevidence had been given about what might have caused the "old" wounds to open up.She concluded that, if they were existing wounds, they would have only re-opened asa result of force applied to them; either by Mr Alefaio striking the door with his fist,which he denied, or by the use of force when punching Ms S in the way Ms Mooredescribed. The Judge found the hand injury and the lack of evidence from Mr Alefaioas to its cause were also relevant to her assessment of his credibility. Although sheconsidered an explanation about the cause of the hand injury was called for in thecircumstances of the case, there was none.[14] Having regard to those factors, the Judge reached the view that Mr Alefaio'sevidence should be put to one side on the critical parts she did not accept as credible.She held it did not answer the Police case, nor did it raise doubt. The Judge's findingson Mr Alefaio's credibility were available to her on the evidence and no attempt ismade to overturn them. That meant that, in the Judge's view, the case turned on theevidence of Ms Moore.[15] The Judge held that the primary issue was whether Ms Moore's evidence thatMr Alefaio assaulted Ms S was credible and reliable. As she put it succinctly at thestart of her decision, the question for the Court was whether Ms Moore had asufficiently clear view of the deck area of Mr Alefaio's home on 31 January 2020 tobe able to reliably describe what she saw.[16] Judge Jelas referred to photographs taken by the Police and determined thatMs Moore had a sufficient view of the deck. She accepted Ms Moore's evidence ascredible and reliable and found Mr Alefaio guilty of assaulting with intent to injure.3[17] Whether the Judge was right in concluding that Ms Moore had a sufficient viewof the deck is the central question raised in the appeal.Approach to appeals against conviction[18] Section 229 of the Criminal Procedure Act 2011 provides that a person has ageneral right of appeal against conviction.[19] Under s 232(2), the Court must allow the appeal if it is satisfied that, in thecase of a judge-alone trial, the judge erred in his or her assessment of the evidence tosuch an extent that a miscarriage of justice has occurred, or if a miscarriage of justicehas occurred for any other reason. A "miscarriage of justice" is defined in s 232(4) asan error, irregularity, or occurrence in or in relation to or affecting the trial that hascreated a real risk that the outcome of the trial was affected or resulted in an unfairtrial.[20] An appeal against conviction proceeds by way of rehearing.4 If the appellatecourt comes to a different view on the evidence, the trial judge necessarily will haveerred and the appeal must be allowed. But the appellant must show that an error hasbeen made; the appellate court is not to consider the evidence afresh. The appeal courtmust remember the advantages a trial judge has, especially where the challenge is tocredibility findings based on contested oral evidence.53 Crimes Act 1961, s 193; maximum penalty three years' imprisonment.4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].5 At [38].Submissions for the appellant[21] Acknowledging that Ms Moore's account of the assault was the principalevidence on which Judge Jelas founded her decision, Mr Minchin focused hisargument on two principal and related points.[22] First, he submitted that the Judge erred in accepting that Ms Moore could see,from the vantage point she described, the events which she said occurred on the deckof Mr Alefaio's house. He says that it is apparent from a careful examination ofseveral photographs showing the neighbouring properties and depicting views ofMr Alefaio's house as seen from Ms Moore's property that Ms Moore could notpossibly have seen what she claims to have seen. Although the views fromMs Moore's house through the windows on the side facing Mr Alefaio's house wouldbe elevated, the fence and foliage along the boundary of the properties and the line ofsight would not have enabled Ms Moore to see what was occurring, particularlyanything that she said had happened while Ms S was lying on the deck.[23] Second, and in support of that proposition, he refers to a passage in thetranscript of the 111 call, obtained by counsel after the trial and not previouslydisclosed, in which Ms Moore said, in answer to a question about whether Ms Slooked injured and whether she needed an ambulance:I can't see her exactly. I can just see through the trees like him whacking her.[24] Mr Minchin says that if the evidence of Ms Moore's statement in the 111 callhad been available to defence counsel at trial, it would have been possible to challengeMs Moore's evidence-in-chief that, despite the fence and the foliage between the twoproperties, she could see down onto the deck.The evidence[25] In her evidence-in-chief, Ms Moore said she heard screaming from theproperty next door and that it became so loud that she moved away from the noise.She said that when the screaming got louder, she stood up and looked out the windowsand saw a male punching a female. She identified Ms S from the photograph she wasshown and said that she could see Ms S being punched with a closed fist, quite hard,to her face and upper body. She said that the male then grabbed the female by her hairwith his left hand, pulled her to the ground and then proceeded to kick her. Ms Mooresaid it was quite easy to see that from her window because of the open area lookingdown onto the deck. She saw the male kicking the female three or four times aroundher back while she was on the ground. She said that, although there were trees around,there was nothing obstructing the view from where she was standing.[26] In those circumstances, it became important to know Ms Moore's vantagepoint at the time she made those observations. She estimated that she was more thanfive, but less than eight, metres away from what she saw occurring on the deck.[27] To assist with Ms Moore's explanation of what she had seen, the prosecutionproduced at the trial photographs taken by a Police officer who attended the scene.They were said to have shown the view from where Ms Moore was standing at thetime of her observations. For the purposes of cross-examination, however, defencecounsel produced photographs, one of which was sourced from Google Maps. Itshows a street view of both houses, the driveways alongside the properties and theboundary fence. That photograph has the advantage over the prosecution exhibit ofshowing three windows on the side of Ms Moore's house facing Mr Alefaio's property.The window nearest the street was marked "Window #1" and was identified byMs Moore as being the bedroom window from which she made her observations. Thesecond defence photograph was taken from the deck on Mr Alefaio's property, lookingup to Ms Moore's property with partially obscured windows seen in the top right-handcorner. It is unclear from that photograph how much of the deck can be seen; theremay have been more deck area (not depicted) off to the right of the photograph.[28] It appears that there was some confusion between the Judge, the witness andcounsel cross-examining Ms Moore about which of the windows was depicted in thesecond defence photograph. Mr Minchin's point on appeal was that the windowshown in the defence photograph, which the Judge accepted was the window identifiedby Ms Moore in cross-examination as being the one from which she viewed the scenebelow, could not have provided her with a view of what was taking place on the deck.[29] In explaining that she accepted Ms Moore's account and was able to rely uponit to find beyond reasonable doubt that Mr Alefaio had assaulted Ms S as alleged, theJudge referred to the assistance she had received from the defence photograph.Nevertheless, the Judge acknowledged that Ms Moore did not always have anunobstructed view but concluded that Ms Moore had a sufficient view to determinewhat was taking place on the deck.[30] Mr Minchin argues that the error of Ms Moore and the Judge in identifying theposition of Ms Moore at the time she says she observed the assault casts real doubt onthe evidence about whether she could see what was happening on the deck. In turn,that undermines the reliability of her evidence and renders the conviction unsafe.[31] Mr Minchin seeks orders quashing the conviction and ordering a new trial.Failure to disclose the content of the 111 call[32] Mr Minchin says the Police are required to disclose to defence counsel allrelevant material in their possession and that, as a matter of routine disclosure, thePolice should disclose, at least, the existence of a recording of a relevant 111 call. Hesubmits that Ms Moore's 111 call was relevant as it was contemporaneous evidence ofthe alleged assault and it was not identical to Ms Moore's evidential statement.[33] Mr Minchin argues that in the 111 call Ms Moore mostly refers to hearing Ms Sscream; the only time she reports seeing violence is in response to a leading questionby the 111 dispatcher, as follows:Dispatcher: so is he physically punching her?Ms Moore: "Yeah.[34] He submits this is materially different from her evidence where she said shesaw Mr Alefaio punch Ms S multiple times and drag her down by her hair. He alsosubmits that Ms Moore's statement to the operator that "I can't see her exactly I canjust see through the trees..." contradicts Ms Moore's evidence at trial that she had aclear view of the events, unimpeded by trees and the fence.[35] Mr Minchin argues that it was a prosecutorial failure to not properly evaluatethe evidence in their possession and disclose the content of the call to defence counseland that the trial was unfair. He refers to T v R,6 where it was held Police should havedone more to properly investigate allegations. He submits that the conviction shouldbe set aside and a new trial ordered.The 111 call[36] To assist with the hearing of the appeal, without objection from Mr Minchin,counsel for the Police provided a recording and a transcript of the 111 call. I havelistened to the recording and verified the accuracy of the transcript, except in onerespect, but the error is not relevant to the matters at issue.[37] The conversation between Ms Moore and the dispatcher lasts just over fiveminutes in total. It is clear that Ms Moore is describing to the dispatcher events thatshe is both hearing and seeing at the time of the call. She first reports domesticviolence and says that the female is "actually screaming her head off reallyscreaming she's really screaming, she's really, really screaming".[38] After Ms Moore gives a brief description of the male involved in the incident,the following exchange is recorded:Ms Moore: They're actually known for violence over there.Dispatcher: Okay.Ms Moore: But this is the worst we've seen it over here.Dispatcher: Yeah, what's – what's – does the female look injured,does she need an ambulance?Ms Moore: I can't see her exactly. I can just see through the treelike him whacking her.Dispatcher: Okay. So he's physically punching her?Ms Moore: Yep.6 T v R HC Christchurch CRI-2007-009-6270, 10 October 2008.[39] Mr Minchin argues that the transcript shows that Ms Moore's account wasbased on what she could hear rather than what she could see and that the first exchangeabout whether she could see anything was the result of an enquiry about whether thefemale looked injured. Ms Moore responded to that question with a statement that shecould not see her "exactly" and that what she could see was "like" Mr Alefaiowhacking the female. The confirmation that he was punching her, therefore, camefrom a leading question from the dispatcher. Mr Minchin says that if the transcriptand the recording had been made available to him in discovery as it should have been,he would have been able to cross-examine Ms Moore on her ability to see and tochallenge her account at trial, in which she gave detailed evidence of the allegedassault. Ms Moore said that it was quite easy to see from her window because of theopen area which looked down onto the deck. She said that, while this was happening,Ms S was screaming and saying she was not scared of him any more, and that hekicked her "easily three or four times" around her back while she was on the ground.She said there were trees but there was nothing obstructing her view from where shewas standing.[40] It is apparent from the transcript that Mr Alefaio and Ms S went inside theirhouse while Ms Moore was speaking to the dispatcher; Ms Moore said she could hearthem yelling and screaming inside. The Police arrived during the call, as Ms Moorereported.[41] Mr Minchin argued that the Police should routinely disclose the existence of111 recordings as part of their disclosure obligations in criminal matters. Ms Moorereferred to the 111 call in her statement to the Police; Mr Minchin franklyacknowledges that he was aware of the recording and that he could have asked for atranscript to be provided.[42] The Police practice, however, is not to transcribe all 111 calls related to aprosecution unless requested to do so or unless it is deemed to be relevant to a matterin issue in the case, in which event it may be provided as part of the prosecutionevidence. But the Police do not routinely examine the contents of a 111 call and checkit against witness statements or other evidence.[43] In Polyblank v R, the Court of Appeal noted that the contents of 111 calls arenot routinely disclosed because it is not Police practice to download the recordings.7The Court made no observation about whether that was a reasonable practice. It foundthat the pre-trial disclosure of the contents of the 111 call in that case could not havemade any material difference to the ability of defence counsel to cross-examine or tothe outcome of the case.Discussion[44] I do not think this is a case in which I should make a finding about whether thePolice should routinely disclose transcripts of all 111 calls that may be relevant to aprosecution. It is well understood by criminal defence lawyers that 111 calls arerecorded and that the recordings and transcripts will be made available to a defendanton request. Reaching a considered view on whether there is, or ought to be, a generalobligation of disclosure of the content of calls would require evidence and fullersubmissions. But, in any event, I am not persuaded that Mr Alefaio's defence wouldhave been advanced by cross-examination on the transcript.[45] It is clear that Ms Moore's exchanges with the dispatcher werecontemporaneous with her observations. The recording of the call has the hallmarksof an authentic account in which she was observing an assault and demonstrating thatshe was distressed by it.[46] Mr Minchin argued that the account given to the dispatcher that simplyrevealed that Mr Alefaio was punching Ms S was not consistent with Ms Moore's moredetailed account of the blows to the face and upper body and then the description ofMr Alefaio dragging Ms S to the ground and kicking her. I do not see any merit inthat point. Ms Moore's more detailed Police statement and her evidence were basedon inquiries in which she was asked to describe precisely what she saw. In questioningher at the time of the 111 call, the dispatcher would have been interested only in gettingsufficient details to know in general terms what was taking place so that she couldrelay the information to the attending Police officers.7 Polyblank v R [2013] NZCA 621.[47] If the Judge had heard the 111 recording as part of the evidence, she wouldhave been entitled to conclude that Ms Moore was genuinely upset by what she sawand that she was not fabricating her account. The evidence would not have assistedMr Alefaio.[48] I am not persuaded either that there was a material error by the Judge andMs Moore in identifying which window of Ms Moore's house could be seen in thedefence photograph taken from the deck area of Mr Alefaio's house. The photographwas not authenticated in that it was not produced by a witness who could explain thecircumstances in which it was taken, including when. Two witnesses gave evidencethat the shrubbery in the defence photograph appears thicker than it was at the time ofthe assault. Moreover, it appears that only part of the deck area is shown. If thephotograph had been properly proved, questions could have been asked of thephotographer about his or her position on the deck and whether moving to thephotographer's right would have provided a clearer view from the deck to the windowat which Ms Moore was standing and vice versa.[49] As Ms Reid submits on behalf of the respondent, the proper interpretation ofthe Supreme Court's judgment in Sena v Police is that appeals under s 232(2)(b) ofthe Criminal Procedure Act 2011 proceed by way of rehearing.8 The Supreme Court'sreference to Herewini v Ministry of Transport does not mean that, for the purposes ofan appeal under s 232(2)(b), any factual error in the trial judge's assessment of theevidence necessarily means that the conviction must be quashed.9[50] Even accepting there was an irregularity in Ms Moore's evidence concerningthe window from which she observed the assault, the principal issue was not whetherMs Moore correctly identified the window at which she was standing but whether shegave a credible account of seeing the assault. The 111 call tends to confirm that shedid.8 Sena v Police, above n 4.9 Herewini v Ministry of Transport [1992] 3 NZLR 482 (HC).Conclusions and result[51] Having rejected Mr Alefaio's denial that there was any assault, Judge Jelasproperly directed herself that she was required to be satisfied beyond reasonable doubtby Ms Moore's evidence that Mr Alefaio was guilty of assaulting Ms S with intent toinjure her. On the evidence, she was entitled to conclude that the charge was provedand I am not persuaded that cross-examination on the transcript of the 111 call mighthave altered that finding. There was no miscarriage of justice.[52] I dismiss the appeal.Toogood J