NATHAN v THE NEW ZEALAND POLICE [2020] NZHC 3452

NATHAN v THE NEW ZEALAND POLICE [2020] NZHC 3452 [18 December 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-63[2020] NZHC 3452BETWEEN BARRY TAMATI TE HAU NATHANAppellantAND THE NEW ZEALAND POLICERespondentHearing: Wednesday 25 November 2020Counsel: N D F Bond for the AppellantR H De Silva for the RespondentJudgment: 18 December 2020JUDGMENT OF CULL J[1] On 18 October 2019,1 Mr Nathan was convicted in the District Court of assaultwith intent to injure,2 assault in a family relationship3 and strangulation.4 Mr Nathanappeals his conviction on the basis that a miscarriage of justice has occurred for threereasons:(a) the Judge failed to give adequate reasons for setting aside Mr Nathan'sevidence and preferring that of the victim;(b) the Judge erred in permitting the Police to adduce further evidence afterthe close of the Police case and that the circumstances in which thisoccurred created the appearance of partisanship; and1 New Zealand Police v Nathan [2019] NZDC 21214.2 Crimes Act 1961, s 193; maximum penalty three years' imprisonment.3 Section 194A; maximum penalty two years' imprisonment.4 Section 189A(b); maximum penalty seven years' imprisonment.(c) in respect of the conviction for strangulation, the victim was not cross-examined on her prior inconsistent statement that she was unsurewhether her normal breathing had been impeded.[2] The Police oppose the appeal on the ground there has been no miscarriage ofjustice.Background facts[3] At the relevant time, Mr Nathan and the victim had been in a relationship forapproximately six months. They have no children together but the victim has onethree year old child.[4] On Monday 25 February 2019, Mr Nathan and the victim were in the livingroom of the victim's house, following a birthday party for Mr Nathan attended by otherwhānau members. After the others had left and the victim's son was put to bed,Mr Nathan and the victim were in the lounge area together. At some point, Mr Nathanwent outside, possibly for a cigarette, and on his return the victim said she noticed achange in his behaviour, because he was irritated or angry at her for what he describedas "showing off". Without warning, he straddled her on the couch and, after verballyabusing her, punched her around the upper body area. The verbal argument continuedand when they were seated next to each other on the couch, he punched her severalmore times in her arm, this time harder. In trying to push him away the victim tried topunch him the chest when Mr Nathan leant back and her hand made contact with hisnose, causing it to bleed.[5] Mr Nathan went to the bathroom to get a towel for his bleeding nose and onhis return to the lounge the victim said he punched her in the face and upper bodyagain. Both then fell asleep on separate couches in the lounge. Some time later, thevictim asked Mr Nathan to come to bed but he assaulted her again, including a kickwith his bare foot to her ear area. A further argument ensued after which the victimdescribed how Mr Nathan threw a piece of firewood, described as a "good-sized log",at her, which missed. The victim said Mr Nathan accused her of being a "dramaqueen" when she said her head was throbbing and that she wanted to go to a hospital.She described how she put a hoodie on but he grabbed it and, either using it or herhair, dragged her into the lounge. Eventually the victim was able to go to bed with heryoung son in the early hours of the morning.[6] The following morning, after Mr Nathan had gone to work, the victim calledthe Police, who visited, interviewed her, took a statement from her, and then left,saying that they would be arranging to talk to Mr Nathan. It seems the Police phonedMr Nathan's work place and as a result he became aware that the Police wanted to talkto him. He said in his evidence that he thought it might be something to do with hislicence rather than any allegation of assault.[7] Mr Nathan then texted the victim, asking her whether she had been to thePolice. Assuming that she had, without her replying, he expressed his annoyance oranger that she had caused him to get arrested at his work so that his son would be leftstanding at school waiting to be picked up and he may lose both his job and his son.The victim says receiving those texts scared her so she went home to grab some gearintending to go to her mother's, but before she could leave again Mr Nathan arrivedhome in his work ute at about 1 pm.[8] The victim described that Mr Nathan came in really angry, calling her a narkand punched her in the face, then grabbed her by the throat and pushed her against awindow in the conservatory, abusing her and threatening her, saying he was going tolose his job. The victim described how she had difficulty breathing during the 20 to30 seconds or so that Mr Nathan held her around her throat but she eventually managedto push him off. They continued to argue about their relationship and the victim toldMr Nathan that it was over, at which point she says he picked up one or more of thedrinks that she had purchased for lunch from kitchen table and threw them at her. Shealso says that he threw a chair at her, which hit her with a glancing blow but mainlystruck a fish tank in the lounge.[9] The victim says Mr Nathan also brandished a hammer at her, striking his ownpalm with it before he tried to make it up to her by apologising and hugging her. Itwas at that point that the Police arrived.[10] The Police had been alerted to what was occurring inside the house becausemoments before Mr Nathan entered the house the victim dialled the Police emergencyline again (111). When Mr Nathan entered the house, she put her phone down on achair by the table so that Mr Nathan would not see it but she left the call open,recording what transpired.[11] The victim had a number of injuries as a result of the incident, includingmultiple injuries to her right shoulder and arms, facial bruising, torso injury andbruising, and neck and throat pain. The District Court decision also records that whenPolice initially attended the victim's address on their first visit on 26 February, one ofthe officers saw swelling above the victim's eye and when the Police returned for thesecond time, the victim was described as being visibly distressed, crying, shaking andhighly emotional.5[12] When Police searched Mr Nathan's address, two firearms and ammunitionwere located, for which Mr Nathan was charged with unlawful possession of firearms.He pleaded guilty to the firearms charges.District Court decision[13] The District Court heard the case in a Judge-alone trial over two days. Thefirst part of the trial occurred on 15 August 2019 and the victim gave evidence, alongwith attending police officers. It transpired during the latter part of the prosecutionevidence that there may have been a recorded 111 call relating to the events. This isthe call on the 26 February when the victim said she called 111 and left the call openwhile the events unfolded.[14] In the judgment, the Judge records that this call was "latterly disclosed to boththe prosecution and the defence",6 so the matter was adjourned part-heard to18 October 2019 so that the 111 call could be located, transcribed, and at theresumption of the hearing, could be played to the Court as the final part of the Policecase. That occurred and Mr Nathan then gave evidence.5 Police v Nathan, above n 1, at [23].6 At [2].[15] Judge Tompkins found Mr Nathan guilty of all three charges and convicted himaccordingly. He began by setting out the factual background outlined above. He thenassessed the evidence given by each party, including the 111 call. He recorded thatthe defendant denied ever punching or partially strangling the victim, althoughMr Nathan accepted that he whacked a cup of drink off the table as they argued.7 Heacknowledged that he did suffer a bleeding nose but asserted that that came aboutwhen the victim punched him in the nose, effectively for no reason. He deniedassaulting her in the way the victim and Police allege.[16] In assessing the Police evidence, the Judge found that there were a number ofmatters outside the interaction between the victim and the defendant which wererelevant. The first was the 111 call. The Judge commented that although theinteraction between the two is "largely indistinct", he concluded that "the overallimpression is left that the defendant is the aggressor, at least to a degree, and that theaudibly distressed victim complains of being hurt at instances during that call."8 TheJudge also concluded that the making of the call itself is corroborative of that aspectof the victim's account.[17] The Judge discussed the cross-examination of the victim, which attempted toshow that she was ambivalent about the relationship ending, and concluded that "it isnot unusual for persons involved in these kinds of events to have inconsistentresponses to them" and he did not find the evidence to undermine the victim'scredibility.9 He also accepted the Police evidence that when they visited the victimthat morning, one of the officers did see swelling above her eye, and when theyreturned for a second time she was visibly distressed.10[18] Taking these matters into account, the Judge concluded that the defendant'sevidence was unsatisfactory in the sense that he minimised or avoided takingresponsibility for what occurred that night and the following day, apart from when hewas unable to avoid doing so. He continued:117 At [20].8 At [21].9 At [22].10 At [23].11 At [24].Accordingly, I put his evidence entirely to one side and assess whether thecharges are proved beyond reasonable doubt on the basis, primarily, of thecomplainant's account, but also take into account that such external andunrelated evidence, outside of her own account, is consistent with the accountshe gave.[19] The Judge concluded:[25] I conclude that the case has been proved on all three charges. Thecomplainant's evidence and the sequential account she gave is consistent, asfar as it goes, with the photographs produced, with the 111 call that she made,and with the attending constables' evidence as to what was visible andapparent during both of their visits. Although the bruises to the complainantare difficult to discern in the relatively low quality photographs her swollenthumb is clearly apparent and I conclude that there are marks and swellingsconsistent with her account, particularly around her neck. [26] Accordingly, I conclude that all three charges are proved and thatevents unfolded, in respect to the essential elements of the offence, largely asthe complainant described.[Emphasis added][20] Mr Nathan was sentenced on 12 February 2020 to 20 months' imprisonmentfor the domestic violence charges, together with eight months' imprisonment to beserved cumulatively for the firearms offending.12 That resulted in an end sentence oftwo years, four months' imprisonment.13Principles on appeal[21] As noted, Mr Nathan appeals his convictions for strangulation, assault withintent to injure and assault in a family relationship.[22] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied that the trial Judge "erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.1412 Police v Nathan [2020] NZDC 2480.13 At [15].14 Criminal Procedure Act 2011, s 232(4).[23] Following Sena v Police, appeals are to proceed by way of rehearing, and theappeal court is required to form its own view of the facts and determine the appealaccordingly.15 If an appeal court comes to a different view than the trial Judge on theevidence, the trial Judge will necessarily have erred and the appeal must be allowed.16However, the appeal is not to be approached de novo: it is for the appellant to showthat an error has been made to such an extent that the process has miscarried.17[24] I propose to deal with the three grounds of appeal in this order:(a) the Judge erred in requesting and permitting the Police to adducefurther evidence after the close of the Police case;(b) in respect of the conviction for strangulation, the victim was not cross-examined on her prior inconsistent statement; and(c) the Judge failed to give adequate reasons for setting aside Mr Nathan'sevidence and preferring that of the victim.Did the Judge err in permitting the Police to adduce further evidence?[25] To address this ground, it is necessary to set out the sequence of events betweenthe first and resumed hearings in the District Court. In the initial defended hearing,the victim gave evidence that she had called 111 emergency services for a second timeon 26 February, when Mr Nathan had arrived at her address. On his arrival, followingPolice advice from earlier that morning, she left the phone call open on a chair, out ofthe sight of Mr Nathan.[26] Constable Morrison confirmed to the Court that before he left the victim thatmorning, he advised her that if Mr Nathan was to arrive back at the address, she shouldmake a phone call to 111 and put her phone in a place where it could not be seen byMr Nathan and leave the call open. He had already informed the Policecommunication centre of the victim's mobile phone number and her address, so that if15 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.16 At [38].17 At [38].any calls were received from that phone number or that address, any "policeattendance would have to be a priority one status and needed to be attended to reallyquickly". During the prosecution case, the transcript of the 111 call was not produced.[27] At the end of Constable Morrison's evidence, the Judge asked whether the 111call, referred to in the evidence, had resulted in a recording. Constable Morrisonresponded that he did not know, but assumed that it may have. He said as far as hewas aware, it was not available on that day. The Police prosecutor then closed the casefor the Police.[28] Immediately after the Police closed their case, the Judge further enquired as towhether the Police prosecutor knew anything about the 111 recording. The Judgeexpressed the view that such a recording appeared relevant, and asked trial Counsel ifthere was any objection to the Court requesting that the Police make enquiries about arecording over the lunch adjournment. After a brief adjournment to take instructions,Counsel for Mr Nathan advised his position on whether such a recording could beplayed would be advised once he had had the opportunity to listen to the tapes.[29] The recording was subsequently obtained over the lunch adjournment and theJudge issued a ruling on its admissibility. He concluded:18[4] Mr Luders objects to this recording's admissibility, pointing to thelateness of this potentially relevant evidence being disclosed, namely on theday of the Judge-alone trial and as a consequence of questions asked by meand secondly, he stresses that the inaudible sections of the call, together withextraneous noise from the 111 call operators and the like, may lead to theprobative value being lessened to an extent, that the prejudicial nature of theevidence outweighs the very reduced probative value. Given the way in whichthe complainant described making this call to the 111 number and thecircumstances in which it, at least in part appears, although I have not yetlistened to or heard the call, to record part of the factual narrative, which is ofor potentially could be of central importance to proof of the charges againstthe defendant, whilst acknowledging the lateness of disclosure, I am satisfiedthat it should be admitted.The Judge admitted the 111 tape evidence without having heard the recording himself,but both Counsel had heard the recording before making their submissions to theJudge.18 Police v Nathan [2020] NZDC 26719.[30] Mr Bond submits that at no point did the Judge acknowledge that the recordingwas to be admitted as evidence after the Police had closed their case, and nor did theJudge directly confront the defence objection that the disclosure had been obtainedonly in response to the Judge's own questioning and invitation to the Police to obtainit.[31] In the hearing before me, during the course of Counsels' submissions,Ms De Silva for the Police submitted that it was not clear whether the prosecution hadformally announced that the prosecution case had concluded before the trial judgesought the production of the victim's 111 call transcript. In light of its relevance tothis ground of appeal, I allowed Counsel the opportunity to address the notation atpage 41 of the notes of evidence, where the transcription service typed"PROSECUTION CASE CONCLUDES", instead of typing the words used by theprosecutor on the day, before the Judge questioned the Police prosecutor on hisknowledge of the 111 transcript. I arranged for a typed transcript of what was said atthe time to clarify.[32] The transcript of the recording was typed back and at 12.53.37 pm, the recordis as follows:Q. But as far as you're aware, it's not available today?A. As far as I am aware it's not available today, no.Sergeant Ford. Thank you Constable, and that's the case for the prosecution.Thank you Sir.It was only after that the Judge asked for more information about the 111 call.[33] No further memoranda were filed by Counsel, so I proceed on the basis thatthe Police prosecutor had closed his case when the Judge invited the Police to obtainthe 111 recording.[34] Section 98 of the Evidence Act 2006 governs the admission of further evidenceafter the closure of a case. Mr Bond submits first that the Police should not have beenpermitted under s 98 to lead that evidence after the close of their case, and second thatthe circumstances in which permission was given created the appearance ofpartisanship.Did the Judge err in allowing the Police to adduce the 111 call after the close of itscase?[35] The general principle is that all evidentiary material to be relied upon by theprosecution probative of guilt must be adduced before the close of its case.19 TheCourt of Appeal in R v Timutimu, prior to the introduction of the Evidence Act,explained:20 [The] rationale [for such a principle] is fairness to the accused, so that heor she has an adequate opportunity to know the Crown case and plan a defenceaccordingly: R v Chin (1985) 157 CLR 671. Nevertheless, the Court has aninherent jurisdiction to allow the Crown to call further evidence at a laterstage. The discretion is to be used sparingly and in such a way as to strike theappropriate balance of justice between the Crown and the defence. The tworecognised categories of exception are, first, situations involving purelyformal issues and, second, where issues have arisen unforeseeably or eximproviso. The discretion will be exercised rarely outside these twoexceptions: R v Francis (1990) 91 Cr App R 271 at 275-276.[36] As noted, s 98 of the Evidence Act now governs the circumstances in whichevidence may be adduced after the close of a party's case,21 and subsections (3)(a) and(b) essentially codify the two recognised categories of exception identified in thepassage above:98 Further evidence after closure of case(1) In any proceeding, a party may not offer further evidence after closingthat party's case, except with the permission of the Judge.(2) (3) In a criminal proceeding, the Judge may grant permission to theprosecution under subsection (1) if—(a) the further evidence relates to a purely formal matter; or(b) the further evidence relates to a matter arising out of the conductof the defence, the relevance of which could not reasonably havebeen foreseen; or(c) the further evidence was not available or admissible before the19 R v Timutimu CA23/6/06, 30 November 2006 at [12].20 At [12].21 See also Clutterbuck v R [2013] NZCA 373.prosecution's case was closed; or(d) for any other reason the interests of justice require the furtherevidence to be admitted.(4) In a criminal proceeding, the Judge may grant permission to adefendant under subsection (1) if the interests of justice require thefurther evidence to be admitted.(5) The Judge may grant permission under subsection (1),—(a) if there is a jury, at any time until the jury retires to consider itsverdict:(b) in any other proceeding, at any time until judgment is delivered.[37] Both parties accept that none of the grounds in s 98(3)(a)-(c) provide a groundfor the Judge to permit the Police to offer the recording as evidence in this instance.The question is whether the Judge was correct to allow the Police to adduce theevidence under s 98(3)(d) – "for any other reason the interests of justice require thefurther evidence to be admitted."[38] Mr Bond submits this was not evidence that was given in order to ensure thatMr Nathan received a fair trial, but rather it was produced solely because the Judgethought that it would be relevant. Mr Bond submits that the possibility that furtherevidence, which has not been led as part of the prosecution case, might be relevantdoes not meet the threshold for what is "required" in the interests of justice. Hesubmits, therefore, that it was not in the interests of justice to admit the 111 call,particularly as the call had not been disclosed, the prosecution did not intend to leadthe call, the call was inaudible or indistinct, the probative value was outweighed bythe illegitimate prejudice and the Judge had not heard the call and therefore could notform a view on defence Counsel's submission.[39] The commentary by the authors of Mahoney on Evidence on the interpretationof "interests of justice" under s 98(3)(d) states:22Notwithstanding the more specific circumstances set out in s 98(3)(a)-(c), s98(3)(d) gives judges the discretion to permit the prosecution to reopen itscase where "the interests of justice require the further evidence to beadmitted".22 Elizabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th ed,Thomson Reuters, Wellington, 2018) at 672-673 (footnotes excluded).Nonetheless, by comparison with defence applications to adduce furtherevidence pursuant to the same "interests of justice" test set out in s 98(4), theparticular circumstances listed in s 98(3)(a)-(c) suggest a more restrictivejudicial attitude toward prosecution requests under s 98(3)(d). Indeed,consistent with the approved outlined by the Court of Appeal in R vTimutimu the Law Commission has stated that s 98(3)(d) was added "toavoid injustice in exceptional circumstances that do not fit within paras (a)-(c)".[40] R v Timutimu provides an example of when judicial permission to reopen theprosecution case will be appropriate under s 98(3)(d).23 In that case, Mr Timutimuhad been stopped and searched by a police officer who located a number of smallsnaplock bags containing white crystal powder in his car. The bags were removed tothe Police station where they were recorded and labelled with Mr Timutimu's nameand weighing 6.6 grams. The bags were ultimately delivered to a scientist who issueda certificate confirming the existence of seven snaplock bags, each containing whitecrystal powder that was methamphetamine. The total weight, without the bags, was4.3 grams.[41] The Court of Appeal upheld the High Court decision, which allowed the Crownto call further witnesses after the close of the prosecution case.24 This was to remedythe defects in the "chain of custody" of methamphetamine evidence central to theprosecution. The High Court had found that the Crown's failure to call relevantevidence arose from a misunderstanding between Counsel for the parties. CrownCounsel had understood from her discussion with defence Counsel that chain ofcustody of the drugs was not at issue. In those circumstances, the Court was of theview that Crown Counsel could fairly have expected defence Counsel to raise withher, before the Crown closed its case, that chain of custody was at issue. The HighCourt Judge relied on two further issues – the Crown had only just closed its case, andthe subject evidence could hardly be characterised as relating to the central issue inthe case. The Court of Appeal upheld this view and added that there was no prejudiceto the accused in admitting the testimony, a step that would have been undertaken inthe Crown's case in chief but for the misunderstanding between the parties.2523 R v Timutimu, above n 19.24 R v Timutimu HC Auckland CRI-2004-092-14159, 4 May 2006.25 R v Timutimu, above n 19, at [20].[42] Another case where s 98(3)(d) has been considered, albeit briefly, isS (CA481/2018) v R.26 In that case, during the course of cross-examination of adefence witness, the prosecutor pursued an issue with some vigour and elicited anaccount of a conversation between the defence witness and a Crown witness, whomthe prosecutor sought to recall to put the alleged conversation to him. The Court ofAppeal accepted that the prosecutor would have been caught by surprise by thedefence witness's account: the Crown could not have reasonably expected to know ofthe alleged conversation.27 The defence witness's account was also consideredmaterial because it put another witness's reliability in issue. However, the Courtconcluded that in the particular circumstances of the case, it would not have been inthe interests of justice under s 98(3)(d) (or 98(3)(b), which was the primary focus) toallow the rebuttal evidence. The Court explained it was the prosecutor rather thandefence counsel who had made a major issue of the subject-matter, and the defencewitness did not volunteer the answer. In other words, the prosecutor asked the questionthat invited the response.28[43] The Police submit here that it was in the interests of justice to admit the 111call and say, further, that the "prosecution was not aware that the call existed until afterthe complainant and Constable Morrison had given evidence."[44] I am unable to uphold this submission. The Police were aware of the call,having advised the victim to make it, and the summary of facts records that as soon asMr Nathan arrived at the victim's address on 26 February 2019, the victim called 111immediately. Further, when the Judge questioned the Constable about whether heknew if the 111 call resulted in a recording, he responded:I'm not entirely sure. I would assume that any communication with ourcommunications centre via a phone call or anything like that may bedocumented by recording.[45] Applying s 98 of the Evidence Act, the transcript evidence of the 111 call wasnot a formal matter,29 but one which required disclosure before the hearing. The26 S (CA481/2018) v R [2019] NZCA 169.27 At [29].28 At [29]-[30].29 Section 98(3)(a).evidence was available before the prosecution's case was closed,30 but the Policeprosecutor, despite being asked by the Judge if it was available, closed the prosecutioncase and did not seek its admission.[46] In S v R, the Court of Appeal found that where the failure to call the evidenceearlier or the reason that the prosecution now needs to call further evidence is at thehands of the prosecution itself, as it was in that case, it may not be in the interests ofjustice to allow the evidence to be adduced.31 The same can be said in this instance.The Judge asked for the evidence after the prosecution case had closed, despite ithaving always been available for the prosecution to adduce, and then admitted it - overthe objection of defence Counsel and without having listened to it.[47] I find that the Judge erred in admitting the 111 call transcript in the followingways:(a) He admitted it contrary to s 98 of the Evidence Act and against theauthorities. It was not in the interests of justice to admit the evidence.(b) He admitted the evidence without listening to it and undertaking anassessment under ss 7 and 8 of the Evidence Act as to its reliability,relevance and/or prejudicial value.32 The Judge acknowledged thesounds were indistinct, yet ultimately relied on it as part of findingMr Nathan's guilt.(c) By admitting the evidence after the prosecution case, the defence neverhad an opportunity to seek a ruling on its admissibility before thedefended hearing and nor did defence Counsel have an opportunity tocross-examine on it.30 Section 98(3)(c).31 S v R, above n 26.32 See for example Bain v R [2009] NZSC 16, [2010] 1 NZLR 1.Is there an appearance of partisanship?[48] This point can be dealt with briefly. The relationship between the prosecutorand the Court requires that the Judge must avoid "descending into the arena" in aninquisitorial role, in which the Judge seeks to remedy the deficiencies in the case oneither side.33 The Judge should always remain, and appear to remain, impartial.[49] I accept Mr Bond's submission that the Police had chosen to prepare andpresent their case in a way that did not include the recording of the 111 call. At notime did the Police seek to obtain or produce that call as evidence prior to the trialJudge's invitation to do so. In inviting the Police to obtain and produce the 111 call,the Judge then "descended into the arena". He gave the appearance of attempting toassist the Police by calling further evidence to close gaps in the prosecution case,stating that the 111 call "potentially could be of central importance to proof of thecharges against the defendant".34 By describing it as potentially important inculpatoryevidence against Mr Nathan, I consider the Judge has given the appearance that hewished to obtain inculpatory evidence against Mr Nathan.[50] The statement quoted from Judge Tompkins deserves to be considered in itsentirety. The Judge said, and I repeat here for ease of reference:[4] Given the way in which the complainant described making this callto the 111 number and the circumstances in which it, at least in part appears,although I have not yet listened to or heard the call, to record part of the factualnarrative, which is of or potentially could be of central importance to proof ofthe charges against the defendant, whilst acknowledging the lateness ofdisclosure, I am satisfied that it should be admitted.[51] As noted above, the Judge had admitted the evidence without taking intoaccount that the defence has not had an opportunity to cross-examine the prosecutionwitnesses. It appears he has overlooked this because he focused on the evidence beingimportant to prove the charges against the defendant. This, in my view, has occurredbecause the Judge has descended into the arena by seeking to obtain further evidenceto support the prosecution case to prove Mr Nathan's guilt. I find that this too is anerror of law.33 R v Wilson (1996) 14 CRNZ 607 (HC) at 613-614.34 Police v Nathan, above n 18, at [4].Conclusion[52] The Judge erred in admitting the 111 tape transcript after the close of theprosecution case.The failure to cross-examine on a prior inconsistent statement[53] Although I have made the above findings, I consider briefly the other twogrounds, which may be of assistance to the parties in the future.[54] The offence of strangulation consists of "intentionally or recklessly imped[ing]another person's normal breathing" by "applying pressure on, or to, that other person'sthroat, neck, or both."35 To prove the charge, the onus is on the Police to prove beyondreasonable doubt that the victim's normal breathing had been impeded.[55] Mr Bond submits that a miscarriage of justice has occurred in respect ofMr Nathan's conviction for strangulation due to the lack of cross-examination by trialCounsel on the victim's evidence in chief that she could not breathe when Mr Nathanheld her by the throat. The victim had given a prior inconsistent statement that shewas unsure whether her normal breathing had been impeded. If the prior inconsistentstatement had been put to her in cross-examination, therefore, the defence argue thatthere was a real possibility that the trial Judge may have found there was a reasonabledoubt as to whether her breath had been impeded or not.[56] The relevant passage of the victim's evidence in chief was:Q. And what happened once you were in the conservatory area?A. He grabbed me by the throat and pushed me up against the window.Q. Now, just got to take this quietly and slowly. Can you show us howhe's grabbed you by the throat? So you're indicating the areasbetween the forefinger, sorry index finger and thumb is around thecentre area of your throat, just above the Adam's apple area that's –A. Yeah.Q. - because we have to record what you are saying?35 Crimes Act, s 189A.A. Yeah.Q. So that's a fair, okay and what did he do once he's grabbed you aroundthe throat?A. He was saying if I lose my son and my job, like, I'm going to kill youand just threatening me.Q. And how loose or tight was this grip around the throat?A. It was tight, I couldn't breathe.Q. And how long was he holding you around the throat area?A. Close to a minute, maybe 40 seconds or so.Q. And how were you feeling when he's been holding you like that?A. Oh, I couldn't breathe and I was in shock.Q. And after this 40 seconds or so, what happened then?A. I pushed him off me.[57] The victim's formal witness statement, completed on the day of the allegedoffending, contained no such allegation that she had been unable to breath. Itrelevantly states:[17] I managed to step into the conservatory and I was near the outersliding door.[18] I faced him and he grabbed me around the throat with his hand. I amnot sure what hand he grabbed me with.[19] He pushed me up against the window and held me by the throat forabout 40-50 second.[20] I am not sure how long or if my breathing was restricted as I was inshock.[21] My neck feels really tight and sore as a result of him choking me.[Emphasis added][58] The fundamental issue is whether a miscarriage of justice occurred. As theSupreme Court emphasised in R v Sungsuwan, the focus is therefore on outcome, withthe cause providing context.36 Trial counsel error is not a precondition of a miscarriage36 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [69].of justice. Rather, if the error is one that goes to the root of the trial process, it raisesa risk of a wrong verdict and so itself constitutes a miscarriage of justice.[59] The Supreme Court in R v Sungsuwan provided the appropriate approach toclaims that a miscarriage of justice has occurred as a result of trial counsel error.37First, there must in fact be an error or irregularity demonstrated on the part of trialcounsel. Second, there must be a real risk that the error affected the outcome of thetrial. The Court of Appeal has cautioned that simply because hindsight reflectionpoints to a better course of action this does not necessarily mean that the originaldecision was an error, nor that there has been a miscarriage.38 Both parties accept thatthe courts are typically "slow to second-guess" defence counsel's decisions in relationto cross-examination.39[60] Trial Counsel has provided an affidavit setting out his decision-making inrespect of choosing not to cross-examine the victim on the prior inconsistentstatement. As provided in the affidavit, trial Counsel considered whether to cross-examine on the inconsistency, but decided against it on the following bases:(a) It was not necessary to do so given the defence he was running, inaccordance with Mr Nathan's instructions, was that Mr Nathan neverput his hands to the victim's throat at all, not that he did so but neverimpeded her breathing.(b) He assessed the victim as a "robust" witness, in that she maintained acalm demeanour and was clearly thinking critically about the evidenceand answers she gave. He considered that if he cross-examined her onthe inconsistency it was likely she would use it as an opportunity toshore up her evidence, which could have the effect of bolstering herevidence and credibility, a situation trial Counsel had found himself inrecently to his and his client's detriment.37 At [70].38 McGeachin v R [2015] NZCA 558 at [6].39 W v R [2018] NZCA 11 at [15], citing S (CA361/2010) v R [2013] NZCA 179 at [60].(c) The "prior inconsistent statement" simply said she was not sure if herbreathing was restricted as she was in shock. It did not say herbreathing was not restricted, and the preceding sentence was that heheld her up against the window for about 40-50 seconds, and afterwardsher neck felt really tight and sore "as a result of him choking me". Heconsidered there was enough there without cross-examining her on thepoint.[61] As the Court of Appeal has noted, there must be "a degree of latitude accordedto counsel as to how to conduct cross-examination".40 Here, defence Counselconsidered the potential outcome for his client, genuinely believing that cross-examination of the victim may well adversely affect his client.[62] Although it is understandable that defence Counsel wished to limit the risks tohis client by cross-examining a "robust witness", the principal ingredient of the chargewas the restriction of her breathing. In order to prove the charge of strangulation, thePolice must prove beyond reasonable doubt that the victim's normal breathing hadbeen impeded. The victim was not sure that had happened when first interviewed.Her prior inconsistent statement was therefore highly relevant and should have beenput to her in cross-examination. It was critical that she was cross-examined on herprior inconsistent statement to impeach her credibility and raise a reasonable doubt thestrangulation occurred, particularly as his client was giving evidence to deny that heimpeded her breathing. There is, therefore, in my view a real risk that the failure tocross-examine on this point has resulted in a miscarriage of justice.[63] On this ground, I find that the failure to cross-examine the victim on her priorinconsistent statement risked a wrong finding of guilt on the charge of strangulationand constitutes a miscarriage of justice.Were adequate reasons given for preferring the evidence of the victim?[64] The final matter is whether a miscarriage of justice has occurred because thetrial Judge failed to give adequate reasons for rejecting Mr Nathan's evidence in its40 W v R, above n 39, at [15].entirety and preferring that of the victim. Mr Bond submits the Judge erred in hisassessment of the evidence to such an extent that a miscarriage has occurred. In lightof my findings above, I deal with this briefly.[65] After canvassing the prosecution and defence cases, the Judge concludedthat:41 the defendant's evidence is unsatisfactory in the sense that he minimisedor avoided taking responsibility for what occurred that night and the followingday, apart from when he was unable to avoid doing so, for example, withrespect to the spilled drinks shown in the photographs on the floor of thehouse.The Judge then put Mr Nathan's evidence "entirely to one side" and assessed whetherthe charges were proven based primarily on the victim's account and that otherevidence was consistent with the account she gave.42[66] In Sena v Police, the Supreme Court emphasised the importance of reasons inJudge-alone trials.43 The Court "broadly accept[ed]" Counsel's submission in thatcase that a Judge has to justify their findings. How a decision is reached and what wastaken into account (and what was not) is of importance. A global credibility findingis not enough, and if the analysis or reasons are deficient, the conclusion is flawed andunsubstantiated.44 In the Court's words:[36] We see s 232(2)(b) as premised on the assumption that the s 106(2)(and common law) requirement for reasons has been satisfied. Connell andEide indicate the kind of reasons which judges should provide. They shouldshow an engagement with the case, identify the critical issues in the case,explain how and why those issues are resolved, and generally provide arational and considered basis for the conclusion reached. Reasoning whichconsists of a conclusory credibility preference is unlikely to suffice. Thelanguage of s 232(2)(b) reflects an assumption that the reasons given by ajudge will reflect that judge's assessment of the evidence and why thatassessment resulted in a conviction. A failure to provide such an assessmentfrustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); thison the basis that a reasoned judgment is essential to a fair trial. A failure toprovide a reasoned resolution of a significant evidential dispute may,alternatively, suggest a misapprehension of the effect of the evidence, forinstance a misapprehension of the significance of the dispute. 41 Police v Nathan, above n 1, at [24].42 At [24].43 Sena v Police, above n 15, at [35]-[36].44 At [35], quoting Counsel's submissions for the appellant.[67] Both Counsel addressed this issue under a number of evidential headings.However, in light of my findings above, I do not propose to resolve those differences.[68] What is of concern is the absence of the Judge's reasoning in respect of eachcharge and why the defendant's explanation, in respect of each charge, was rejected.I am not satisfied that the Sena test was met by the Judge's blanket rejection ofMr Nathan's evidence in its entirety. The only reason given by the Judge is thatMr Nathan "minimised or avoided taking responsibility for what had occurred".45[69] There is no analysis of each of the charges, their ingredients, or whyMr Nathan's actual explanation was rejected in respect of each. I find therefore thatthe Judge erred by not giving adequate reasons for rejecting the defendant's evidencein its entirety, in respect of all three charges.Result[70] The appeal against conviction is upheld.[71] The convictions are set aside and I direct that a new trial be held.46Cull JSolicitors:Bond Legal, Wellington for the AppellantG J Burston, Wellington for the Respondent45 Police v Nathan, above n 1, at [24].46 Criminal Procedure Act, s 233(3)(b).