RICHTER v THE NEW ZEALAND POLICE [2021] NZHC 1165

RICHTER v THE NEW ZEALAND POLICE [2021] NZHC 1165 [24 May 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-7[2021] NZHC 1165BETWEEN BENCE BALAZS RICHTERAppellantAND THE NEW ZEALAND POLICERespondentHearing: 12 May 2021Appearances: L C Ord and E T Blincoe for Appellant D P Neild for RespondentJudgment: 24 May 2021JUDGMENT OF ISAC JSummary[1] Mr Richter was convicted in the District Court on one charge of breaching a protection order following a judge alone trial.1 Due to his behaviour after a break-up, his former partner, the complainant, obtained a temporary protection order. At trial it was alleged Mr Richter entered a mezzanine area at the Freyberg Pool one evening when he knew or expected the complainant would be there. He stood for a short time watching the pool area where the complainant was undertaking a kayaking lesson. She found his conduct disturbing and called the Police.[2] Mr Richter appeals against conviction on three grounds:1 Police v Richter [2020] NZDC 14117. Mr Richter was acquitted of a separate charge relating to an encounter with the complainant on Oriental Parade said to have occurred a month after the events in issue under appeal.(a) First, he says the Judge erred by failing to set out the elements of the charge and the burden and standard of proof. 2 This led to an error of application when assessing the evidence against the elements of the offence.(b) Second, he says there was no proper evidential foundation for a finding that he had seen the complainant enter the Pool one week earlier, which was central to the District Court's finding that he was guilty of breach of the protection order when he entered the pool on the day of the offence. A key element of this challenge was the submission that Mr Richter was never cross-examined about the complainant's version of the earlier encounter at the Pool in breach of s 92 of the Evidence Act 2006.(c) Third, the Judge erred in rejecting his evidence as implausible when he had provided explanations for his activities on the evening in question.[3] At the hearing of the appeal Ms Ord accepted that the first and second grounds are related, and I propose to deal with them together in this judgment.[4] I have concluded there was no error in the trial that may have resulted in a miscarriage of justice. First, while the oral judgment of the District Court does not record the elements of the offence or the burden and standard of proof, it is clear from the judgment as a whole that the Judge was aware where the burden of proof lay, and the standard of proof required. He correctly identified the issue(s) he had to determine, and his reasons supported the conclusion he reached. 3[5] Second, it was clearly open to the Judge to prefer the complainant's evidence and reject Mr Richter's on the key issues.[6] Finally, I can see no error in the Judge's approach to the evidence or the inferences he drew. Indeed, I agree with his factual conclusions.2 Including the need for a tripartite direction, given the appellant gave evidence on a key issue which the Judge ultimately rejected.3 There is one exception to this, dealt with below at [44].Background[7] Mr Richter and the complainant separated in March 2018. That was not a happy outcome for the appellant. In the words of Ms Ord, he sought to rekindle the relationship. That behaviour led the complainant to obtain a temporary protection order on the basis that Mr Richter's conduct amounted to psychological abuse. In essence, the complainant's position was that Mr Richter was stalking her.[8] The protection order was served on Mr Richter on 19 February 2019, a month prior to the events in issue.[9] In the evening of 14 March, the complainant was on her way to a kayaking lesson at Freyberg Pool. She ran into the appellant on Oriental Bay as she came up a set of steps from the sea. Her evidence and that of the appellant about the location and significance of this chance encounter were at odds. While they agreed they had run into each other on this particular evening, the complainant's evidence was that she ran into the defendant at a set of steps very close to the Pool's entrance. She said that Mr Richter walked a couple of metres behind her, and could not have failed to see that she turned into the Pool.[10] In contrast, Mr Richter said in evidence that the set of stairs where they met was further to the west on Oriental Parade. He said as soon as he saw the complainant he stopped for four or five minutes, sent an email from his phone to his lawyer about the chance encounter (because he was concerned about it), and only proceeded along Oriental Parade after that. He said he did not watch the complainant or see her go into the Pool and had no idea she had done so. Accordingly, he had no reason to believe she might be at the Pool when he went in there a week later on the day of the alleged offence.[11] It was not in dispute that Freyberg Pool closed to the public at 9 pm on 21 March 2019. This was the evening of the alleged offence.[12] The complainant's account was that having seen Mr Richter so close to the Pool on 14 March, given his past conduct she was expecting to see him again at the Pool on 21 March. During the kayaking lesson, at 8.40 or 8.45pm, she saw Mr Richterenter the reception area through windows that separate the reception area from the pool. From there she saw Mr Richter go up onto a mezzanine floor that sits well above the pool. He came out to a railing and began looking at the pool and the people in it. While she said she did not make eye-contact with the appellant, she said he stood watching her. She estimated the appellant was on the mezzanine for up to a minute. She immediately pointed out the appellant to a fellow kayaker so there would be another witness to his presence at the Pool. She then got off her kayak and went to the bathroom where she called the Police.[13] When he gave evidence, Mr Richter claimed he had gone into the Pool at 8.40 pm to see if the spa was free. He said he had no reason to believe the complainant would be there. She had cancelled her gym membership and he had not seen her enter the Pool the week before.[14] He agreed he had gone up onto the mezzanine area and looked down into the pool area, but he said he did not see the complainant there, and left after about 30 seconds having seen the spa was occupied. He was arrested shortly after 9.05 pm on Oriental Parade, 10-15 metres away from the Pool entrance, walking away from his car which was parked in the Pool carpark.[15] The officer who spoke to Mr Richter put to him that he did not have his togs or a towel with him, which he would need if he was going to have a spa. According to the officer's evidence, Mr Richter said he did not realise he did not have those items with him. But when he gave evidence, Mr Richter said his togs and towel were in his car, and he intended to go back and retrieve them before getting changed and using the spa.Events of 14 March in more detail[16] Given the importance of the events of 14 March to the Judge's decision, and the disposition of the appeal, I now turn to the evidence on that issue in greater detail. Before doing so, I also note that a recording error resulted in approximately five minutes of relevant evidence being lost from the transcript available on appeal. Important aspects of the "missing" evidence are nevertheless captured in the judgmentof the District Court (delivered following hearing the evidence), and in questions and answers by the appellant himself.[17] In her evidence in chief the complainant gave a brief description of what occurred:Q So what made you notice Mr Richter coming in?A Well first of all I was expecting him because he's been stalking me for like two years and a week before I saw him, that he saw me coming into the pools so I was 100% sure that he would turn up again and just stalk me and I was just on alert and I was in the pools facing the doors and I saw him coming in.THE COURT:Q So the week before youd seen him?A Yes.Q That would have been the 14 th?A Yes, so that's because the question was that why I noticed him and I said that I was expecting him because I saw him a week before, that he saw me coming to the pools so I thought okay, he's going to be there next week, which is the 21 st.[18] It was during cross-examination that a relevant part of the evidence was not recorded. The available transcript indicates that the complainant did not resile from her claim that Mr Richter must have seen her enter the Pool on 14 March. The reason for her view was that, on her account, he was walking in the same direction she was and only a couple of metres behind when she entered the Pool:MISSING AUDIO FROM 11:44:50 TO 11:49:50A we made eye contact. He was walking towards the pools and he must have seen me to go in, like, theres no way that he didnt unless he suddenly turned around and ran away, which I believe he didnt do, so he couldn't miss me going in, seeing me going into the pools.Q So I take it that youve just presumed that he must have seen you but you never saw him yourself?A He was walking right behind me, like, two metres behind me. Like, he couldn't not see me going into the pools.[19] In re-examination, the complainant was asked why she had cancelled her pool and gym membership. Her explanation was that before she obtained the protection order, the defendant had stalked her at another pool:Q And in relation to the gym membership, it's correct that you mainly went to Freyberg when you had a gym membership?A First, yes and then there was a – like, it always varied, like, first I always went to the Freyberg then I always went to the Kilbirnie Pool.Q What was the reason for choosing one over the other?A Well, he stalked me in the Freyberg Pool so once he came in and, oh no, sorry, he was actually up in the gym when I arrived at Freyberg and he never went to the gym, like, he always went swimming and one day he was just up on one of the machines and I was, like, what is he doing here so I went to the Kilbirnie gym which is not so good as the Freyberg gym and then he came after me, like, 15 or 20 minutes he just came to the Kilbirnie gym and just came upstairs and then I left the Kilbirnie gym and it was just always confusing what was going on so that's why I cancelled my membership after a while because it was just impossible to know where he would turn up and what he would do.[20] A key issue in the trial, and a point of difference between the complainant and Mr Richter, was the identification of the set of steps the complainant had used before running into Mr Richter on 14 March. The issue was important because if, as Mr Richter said, the encounter happened at a set of steps on Oriental Parade some distance to the west, it would be unlikely he could have observed the complainant enter the Pool if he had stopped walking as he claimed. However, if the steps were virtually adjacent to the Pool as the complainant appears to have suggested, it would be highly likely that he would have seen her enter the Pool.[21] The likely passage of cross-examination during which it was put to the complainant that Mr Richter would give evidence that the relevant stairs were some distance away from the pool was not recorded. But the essence of the complainant's missing evidence is evident from the following passage from Mr Richter's evidence in chief, where he responded to the complainant's evidence about 14 March:Q On that occasion [the complainant] says she had been using the stairs and come up on, obviously to Oriental Parade there. Can you look at photograph 1 and tell us where you believe that you bumped into her?A All right, so that's right in the middle. So l'm looking at the picture where the red car is driving on the road and where she was coming out from the steps is right in the middle of that picture and I was approximately three to five metres towards the city direction, almost which area that parking machine is covering, yeah.Q So did you see where she went after you bumped into her?A No, no I did not. I stopped right there and I sent an email to my family lawyer because at that time I didnt have you, saying that: " [the complainant] would just jump in front of me, we had eye contact, she headed to the eastern direction. I waited here four or five minutes and then I continued my walk. I didnt know where she was going."Q Why did you decide to email your lawyer at the time about just seeing her in the fashion you've described?A Because I had a protection order under me, for me, yeah.Q She said in evidence, if I understand her correctly, that she came out of the steps not by Coene's Bar or what I call the Port Nicholson Yacht Club there,4 but further down by the Freyberg Pool. What do you say about that?A I'm surprised that she said that because we met right here on these stairs.Q So in which direction did you head after you bumped into her?A Um, to the Oriental Bay direction.THE COURT:Q Which way?A The Oriental – so the eastern direction.EXAMINATION CONTINUES: MS ORDQ And why did you go in that direction?A Because originally I wanted to go for a walk on that night as well, as many nights, and I just wanted to continue my walk.Q Did you follow [the complainant] and see her go into the pool?A No I did not and I did not see her going into the pool.(emphasis added)[22] It will be evident from this passage that there were two different accounts of the chance meeting on 14 March, and its relationship to what unfolded a week later.4 This is the location of the stairs Mr Richter said he used when he ran into the complainant.Mr Richter's case was that he had no reason to expect to find the complainant in the swimming pool on 21 March and did not even see she was there. The complainant's evidence was that he came looking for her on 21 March because he had seen her go into the Pool at precisely the same time a week earlier, and he did so to harass her.The District Court's decision[23] The Judge rejected Mr Richter's account to the extent it was materially at odds with that of the complainant.5 He did so due to what he described as its inherent implausibilities and coincidences.[24] First, the Judge found that it was implausible that Mr Richter would not have looked where the complainant went on 14 March as he claimed. 6 He accepted the complainant's evidence that the appellant must have seen where she was going, and that was into the Pool at 8.30 pm on a Thursday night.7[25] The Judge also considered it implausible that the defendant would decide, as he claimed, to have a spa, or at least check that the spa was free, at 8.40 pm when the Pool normally closed at 9 pm.8[26] It was also implausible that the defendant would go into the Pool so close to closing for an innocent purpose without his togs and towel, even if they were in his car as Mr Richter had claimed. 9 And it was also implausible that he would tell the officer he did not realise he did not have his togs and towel if they were in fact in his car, as he claimed in his evidence at trial. 10[27] A further implausible aspect of Mr Richter's account was the claim that after he left the Pool he continued to walk away from his car and towards town when his car was in the carpark at the Pool and he had, according to his own account, already been for a long walk. 115 Police v Richter, above n 1, at [26].6 At [26].7 At [27].8 At [28].9 At [29].10 At [29].11 At [30].[28] The Judge also found that in addition to the identified implausibilities were some very unlikely coincidences. 12 First, there was the coincidence that on Mr Richter's account he went to the Pool at the very same time the complainant was also there. 13 Second, he was still very close to the Pool's entrance 20-25 minutes after Mr Richter said he left to go for a walk.14[29] The Judge concluded: 15So, in all, I find there is too much implausibility and too many coincidences altogether [that] make me doubt his evidence and so, first of all, I do accept [the complainant's] evidence in preference to his, that he knew that she was going there on Thursday nights, or was likely to be there.In those circumstances, and particularly given the other implausibilities of his explanation for being there, my view is that I am satisfied that he went there, either to check she was there, knowing that if he did that, and the way that he did it, the likelihood was that she would see him, or indeed to make his presence known to her, as a means of psychological control.Approach on appeal[30] An appeal against conviction entered following a Judge-alone trial will only be successful if the appeal court finds that the trial court erred in its assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that "a miscarriage of justice has occurred for any reason".16 A miscarriage of justice means any error, irregularity, or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected, or which resulted in an unfair trial.17[31] In Sena v New Zealand Police the Supreme Court examined the role ofs 232(2)(b) and the general function of an appellate court. 18 The Court held that if an appeal court comes to a different view from that of the trial judge on the evidence, it follows that the lower court has erred and the appeal must to be allowed.19 This12 At [31].13 At [32]. The Judge also noted, however, that this was not a "huge coincidence" because Mr Richter produced evidence that he was going to the pool regularly in the evening, although not quite as late as 8.40 pm.14 At [33].15 At [34]–[35].16 Criminal Procedure Act 2011, s 232(2)(b) and (c).17 Section 232(4).18 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.19 At [38].approach does not mean the role of the appellate court is to consider the issues de novo as if there had been no hearing at first instance. It remains for the appellant to show that an error has been made, and in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. 20Appeal grounds one and two — did the Judge fail to correctly identify the elements of the offence and did the evidence permit the inferences he drew?[32] The key arguments advanced for Mr Richter were that that the Judge failed to direct himself to the need to critically examine the complainant's evidence having rejected his own, consistent with the tripartite direction. Had the Judge done so he ought to have been left in a reasonable doubt about two of the four ingredients of the offence. Counsel submitted those ingredients were:(a) First, a protection order was in place against Mr Richter;(b) Second, Mr Richter had knowledge a protection order was in place;(c) Third, he engaged in behaviour (such as intimidation or harassment) which amounted to psychological abuse of the complainant; and(d) Fourth, he intended to engage in that behaviour (that is, the sighting in the pool was not accidental).[33] It is said the complainant did not give direct evidence that she saw the appellant watching her enter the Pool. Accordingly, there was no evidential basis on which the Judge could infer that Mr Richter had. And it followed there was no basis on which to conclude his entry into the Pool on 21 March, when the complainant was there, was anything but accidental. At the very least, the Judge ought to have been left with a reasonable doubt as to the possibility that Mr Richter's presence at the Pool was accidental. This engaged the third and fourth elements of the offence identified by Mr Richter's counsel.20 At [38].[34] Finally, it was submitted that these errors were compounded by procedural unfairness arising by the failure of the prosecutor to cross-examine Mr Richter on the complainant's account of the chance meeting on 14 March.[35] For the reasons which follow, I do not accept the appellant's submissions on the first two grounds.What are the elements of the offence and did the Judge get them wrong?[36] Mr Richter's prosecution took place under the Domestic Violence Act 1995 as it was still in force at the date of the conduct in issue. Section 49 of the Act provided:49 Offence to breach protection order(1) Every person commits an offence who breaches a protection order by—(a) doing any act in contravention of the protection order; or(b) failing to comply with any condition of the protection order.(2) It is a defence in a prosecution for an offence under subsection (1) if the defendant proves that he or she had a reasonable excuse for breaching the protection order.[37] This is what is commonly called a reverse-onus offence. The prosecution need only prove the act of contravention of the order and knowledge by the defendant of the order and its terms.21 Once that has been established, it is for the defendant to prove the existence of a "reasonable excuse" on the balance of probabilities.[38] In Harding v Police, Mr Harding challenged his conviction for breach of a protection order using essentially the same argument advanced by Mr Richter in this appeal. 2221 Hargrave v Police (1998) 17 FRNZ 124 (HC) at 132; A v Police [1999] 2 NZLR 501 (HC) at 505- 506; R v Easton [2007] NZFLR 70 at [23]; Mitchell v Police [2019] NZHC 3264 at [12]; Harding v Police [2009] NZFLR 61 at [13]–[25]. The early High Court decisions that considered the elements of the s 49 offence were at a time when s 67(8) of the Summary Proceedings Act 1957 placed the onus of proof in summary cases on a defendant to establish a reasonable excuse. On 7 October 2009, s 49 was amended to introduce the reverse onus defence directly into the offence provision, in subs (2). As a result, the repeal of the Summary Proceedings Act in 2013 by the Criminal Procedure Act has not altered the legal ingredients of the offence, and the pre-2009 decisions remain good law.22 Harding v Police, above n 21.[39] Mr Harding was seen by the complainant driving repeatedly past her address with a truck and trailer over a period of two days. He would often slow down and stare at the complainant's driveway. When charged with breach of a protection order, he gave evidence that he did not know where the complainant lived and the only reason he was in her street was because he was working on a contract delivering gravel. It was pure accident that he had chosen a route which took him past the complainant's address.[40] On appeal, Mr Harding argued that in addition to his knowledge of the existence of the protection order, the prosecution was required to prove beyond reasonable doubt that the appellant knew the address was that of the protected person. French J rejected that proposition:23[19] Reliance for this proposition was placed on a dictum in A v Police[1999] 2 NZLR 501 where Baragwanath J stated at 505-506:24It follows that no mental element is required to be established beyond awareness of the existence of the protection order and the knowledge of engaging in conduct, which distinguishes the case from one of automatism.[20] In my view, correctly interpreted, the dictum is not authority for the proposition argued by Mr James. Applied to the factual situation in this case, what the dictum means is that the prosecution had to prove beyond reasonable doubt that the appellant knew he was driving, slowing down and staring up the driveway.[21] It is true the appellant must have knowledge of the existence of the order and its terms but the content of the term about which he must have knowledge is the term I have quoted above. The term does not specify a particular address.[22] That is not to say, a person against whom a protection order has been made could be found guilty of breaching it if they were loitering outside an address without any idea who lived there. However, that is because in those circumstances they would be able to invoke the special statutory defence of reasonable excuse provided by s 49 of the Domestic Violence Act 1995. The correct analysis is that they would still be loitering but with a reasonable excuse. Conversely, as demonstrated in Hargrave v Police (1998) 17 FRNZ 124, if a person is not loitering, but had no legitimate reason to be near the complainant's address, the absence of a legitimate reason does not convert their conduct into loitering.23 At [19]–[23].24 This very passage from A v Police, above n 21, was also identified in Mr Richter's written submissions as authority for the proposition that the prosecution is required to prove knowledge of the complainant's presence.[23] To a certain extent, in this case the Judge tended at times to conflate the two issues of loitering and reasonable excuse. However, that was to the advantage of the appellant.[41] In my view, Mr Richter's submission that there are four ingredients of the offence which must be established by the prosecution is incorrect. As the authorities indicate, there are only two: the act of contravention of the order, and knowledge by the defendant of the order and its terms.[42] I agree with the Judge that Mr Richter's entry into the Pool complex and watching the pool, with the complainant in it, for at least 30 seconds from the mezzanine area was conduct amounting to a breach of the protection order. As the Judge noted, it was deliberate conduct that would make his presence known to the complainant as a form of psychological control. And Mr Richter conceded the existence of the protection order and knowledge of its terms. It followed that the prosecution had established beyond reasonable doubt the two elements of the offence. It was unnecessary for the prosecution to establish, as the appellant submitted, that Mr Richter deliberately entered the Pool knowing the complainant would be there or was likely to be there, or that he intended his conduct to amount to psychological abuse.[43] If Mr Richter wished to argue at trial that his encounter with the complainant at the Pool was simply accidental and, therefore, that there was a reasonable excuse, he had the burden of establishing that defence on the balance of probabilities.[44] In this case, it does not appear that the relevance of the reverse onus defence was brought to the Judge's attention. It appears he proceeded on the basis that it was for the prosecution to exclude the reasonable possibility of accident by establishing that the defendant entered the pool knowing there was a good likelihood the complainant would be there, and would see him. As in Harding, the result of this error in approach was not a miscarriage of justice. 25 It was to Mr Richter's advantage.25 Harding v Police, above n 21.[45] In this instance, as the Judge found the possibility of accident could be rejected, there is no basis on which Mr Richter could discharge the burden on him to establish reasonable excuse on the balance of probabilities.[46] This conclusion disposes of the appeal. But even if the onus had remained on the prosecution to prove an absence of reasonable excuse, I consider the Judge was correct to find the prosecution evidence met the criminal standard of proof on that question.Did the evidence permit the Judge to infer that Mr Richter had observed the complainant enter the pool on 14 March 2019?[47] The short answer to this question is yes.[48] When taken altogether, the complainant's evidence — set out at [17]–[18]above — establishes that:(a) Mr Richter happened upon the complainant as she came up a set of stairs on Oriental Parade virtually adjacent to the Pool;(b) He clearly recognised who she was (his own evidence established that proposition);(c) He walked in the same direction as the complainant and only a couple of metres behind her;(d) She was adamant that he must have then seen her enter the Pool in the circumstances of the encounter as she recalled them.[49] On appeal, Mr Richter approached the complainant's evidence inductively. He argued that because she did not see Mr Richter watch her entering the Pool, there was no evidence that he had seen the complainant enter the Pool. There are three difficulties with this approach.[50] First, as the respondent argued on appeal, quite apart from the complainant's evidence about what she perceived, there was a further compelling fact that supportedthe Judge's conclusion that Mr Richter had seen the complainant enter the Pool on 14 March. That is the evidence of what he did on 21 March. The fact the appellant entered the Pool at almost precisely the same time and day one week later and when the complainant was again at the Pool is a strong circumstantial fact suggesting his reason for entry on the day of the offence was not at all accidental. That was because he had seen the complainant enter the Pool one week earlier.[51] Second, the appellant's argument appears to elevate the events of 14 March to an element of the offence requiring proof beyond reasonable doubt. However, as noted, the events of 14 March are circumstantial facts which, if accepted by the tribunal of fact (as they were), are relevant to the issue of whether the encounter on 21 March was an accident. And as I have noted, all that was necessary for the prosecution to establish the offence was the act of contravention and knowledge of the protection order. It follows that the events of 14 March went to prove, or disprove, Mr Richter's defence of reasonable excuse rather than the elements the respondent was required to prove.[52] Finally, Mr Richter's argument on appeal overlooks the substance of the complainant's evidence about the encounter on 14 March. Her evidence amounted to an inference she had drawn — or a statement of her opinion — that Mr Richter had seen her enter the pool based on her perception of the encounter.[53] This is the sort of admissible opinion evidence that courts routinely receive and rely on under s 24 of the Evidence Act. The section provides that a witness may express an opinion in evidence if it is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.[54] The complainant's statement that the appellant saw her enter the Pool, based on her observations and the circumstances she perceived, was no different from opinion evidence from a witness about topics such as identity, speed, emotional state, weather or age. The evidence was admissible, and the Judge was entitled to rely on it as part of the evidence going to the question of accident. The degree of weight to be attached to the evidence was of course a matter for the Judge.Was there a failure to cross-examine the appellant on the events on 14 March and if so does that result in a miscarriage?[55] The next criticism of the trial Mr Richter makes is that he was never questioned by the prosecutor or the Judge on the complainant's account of the 14 March encounter. It is said that is a breach of the obligation to put the case contrary to s 92 of the Evidence Act.[56] The applicable principles on the scope of the duty of a prosecutor to cross- examine a defendant who elects to give evidence are clear. The duty captured in s 92 is principally about fairness: a witness ought to be given the opportunity to respond to evidence which might be contradictory. But as the Court of Appeal has observed, the duty is not absolute:26The general purpose of the duty reflected in s 92 was commented on by this Court in R v Dewar [2008] NZCA 344 as being one of fairness. It relates to the challenge and confrontation of opposing witnesses under the adversarial system. It is not, however, absolute. Nor does it need to be slavishly followed where the witness is perfectly well aware if his or her evidence is not accepted on a particular point.[57] In this case, Mr Richter was well aware that the complainant did not accept his explanation. The Police had called the complainant as a witness, and she had given evidence at odds with what Mr Richter had to say about the critical issues. She was cross-examined about the differences in the two accounts, so the Judge was clearly aware of the credibility contest between the two. In my view, there was no obligation to slavishly put to Mr Richter the complainant's evidence so that he could deny it. His denial of it was clear from his evidence in chief, and from his plea. He had heard the complainant's evidence, and gave his account in evidence in chief. There could not be any unfairness that arose accordingly.Was the Judge's credibility findings on Mr Richter's account wrong?[58] It will be apparent from the conclusions I have reached already that I do not accept this ground of appeal.26 R v Soutar [2009] NZCA 227 at [27]. See also Manukau v R [2013] NZCA 217 at [24]–[26].[59] I agree with the Judge's factual conclusion in relation to Mr Richter's account. Given the complainant's evidence, and the circumstances around the time, location and explanation for entry to the Pool 20 minutes before closing time and with no togs or a towel, and his presence near the entrance to the Pool some 25 minutes after he left to go for a "long walk", it seems to me the rejection of Mr Richter's account as a truthful narrative was inevitable.Failure to set out burden and standard of proof or the tripartite direction[60] The remaining appeal point is the failure of the Judge to clearly recognise and apply the onus on the prosecution to prove the charge beyond reasonable doubt, or to articulate (and therefore apply) the tripartite direction. This can be dealt with briefly.[61] As Clifford J held in Tekira v Police: 27Where the fact-finder is a Judge alone, moreover, it is not necessary for the fact-finder to remind themself about the criminal onus. Where a trial judge has clearly recognised this it will not be an error to fail to adopt a triparte process of reasoning.(footnote omitted)[62] Although the Judge did not explicitly adopt the triparte reasoning process, it is inherent in the decision that the Judge followed the process by assessing the complainant's evidence against the charges and was satisfied the charge had been proved. There were essentially two conflicting accounts of the events. The Judge assessed both accounts and found the charge proved on the complainant's evidence, which he saw as more plausible.[63] The same conclusion applies to the absence of an explicit record of the tripartite direction.28 It is clear from the Judge's decision that he appreciated where the burden of proof remained, even after he had rejected the appellant's account.27 Tekira v Police [2014] NZHC 700 at [23].28 See Tekira v Police, above n 27, at [27] where Clifford J said "the absence of an explicit tripartite direction does not, in my view, raise any prospect of a miscarriage of justice."Result[64] I dismiss the appeal against conviction.[65] I note Mr Richter has also appealed against his sentence. A hearing of that appeal will proceed on 15 June 2021.Isac JSolicitors:Crown Law Office, Wellington for Respondent