WILLS v NEW ZEALAND POLICE [2020] NZHC 2171

WILLS v NEW ZEALAND POLICE [2020] NZHC 2171 [25 August 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [ORNAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-43[2020] NZHC 2171CHRISTOPHER WILLSvNEW ZEALAND POLICEHearing: 25 August 2020Appearances: J A Dean and L R Smith for the AppellantM A Heslip for the RespondentJudgment: 25 August 2020JUDGMENT OF COOKE J[1] Mr Wills faced three charges of child assault before Judge Davidson in a judgealone trial in the District Court.1 The three charges arose from three separate events:(a) An alleged assault between 5 June 2018 and 17 November 2018 ofMr Wills' 10 year old de facto stepdaughter, J, whereby Mr Wills is saidto have grabbed J and threw her down a hallway. He was found notguilty of this charge.1 New Zealand Police v Wills [2020] NZDC 9784; and Crimes Act 1961, s 194(a), maximum penaltytwo years' imprisonment.(b) An alleged assault of the same complainant on 17 November 2018where Mr Wills is said to have grabbed J around the neck and pushedher onto a vacuum cleaner. He was found guilty of this charge.(c) An alleged assault of Mr Wills' nine year old de facto stepson, Z,between 1 September 2018 and 16 November 2018 where Mr Wills issaid to have struck his stomach with a garden hose. He was found notguilty of this charge.[2] Mr Wills appeals his conviction on the second charge on the grounds there isfresh evidence which proves that the offending did not occur in the manner theprosecution witness said it did.[3] The Crown opposes the appeal. It submits that the evidence should not beadmitted, and that even if it is admitted it would not have any effect upon the outcomeof the trial.Factual background[4] The complainants in this matter are siblings and the eldest children of theMr Wills' ex-partner. Mr Wills and the complainants' mother were in a relationshipfrom 2014 to 2015 and have one child together, born April 2016. From 2016 until thetime of the alleged offending Mr Wills would see the complainants and their motherduring contact arrangements, which usually took place at the mother's home.[5] The three incidents giving rise to the charges are said to have occurred between5 June 2018 and 17 November 2018. The charge at the centre of this appeal concernsthe incident on 17 November 2018 where Mr Wills is said to have assaulted the femalecomplainant.[6] The prosecution's case was that on the day of the incident, Mr Wills had goneto his ex-partner's house to see his daughter. His ex-partner left the house shortly afterto go to the supermarket and then to a friend's house. Mr Wills then fell asleep in abed with his daughter and woke some time later and went into the lounge. J's accountof events is that she arrived at the house later that afternoon to find Mr Wills there,looking after the other children. She was angry and upset about this and says Mr Willstold her he was going to take J and the other children away from their mother. As shewent to walk away from him, he grabbed her by her neck and pushed her down, ontoa vacuum cleaner on the floor. This incident was witnessed by Z, who was standingin the stairway. J then got up from the floor and ran out through the back of the housethrough the laundry, followed by Mr Wills. Mr Wills threw or sprayed liquid from acan in her direction. Mr Wills then left the address shortly after with Z and the twoyounger children. J then left the house later that afternoon and went to a neighbour's,where she stayed the night.[7] Mr Wills' version of events was that he was sitting on a couch in the loungewith the two youngest children, facing the dining area. He says J started actingaggressively towards him by throwing cutlery at him from the dining room. He triedto shut the door but a rug jammed underneath the door which he tried to remove. Whilehe was bent down J then charged into his outstretched hand and bounced off it, fallingonto a vacuum cleaner. J continued to act aggressively so he decided to take the otherchildren from the house in his car.[8] Police were called to the address at 9 pm after a report that J was home alone.Upon arriving, the police could not locate J but contacted Mr Wills who arrived backat the address soon after with Z and the other younger children. He told the police thathe had been looking after the children, including J, after the mother had gone outearlier in the day. He said there had been an altercation with J during which she hadthrown items at him, and he had left the address as a result. Police contacted themother and soon after received information that J had been found at a neighbour'saddress.District Court decision[9] At the outset of the decision the Judge noted the case for each side. Theprosecution's case in respect of the second charge was that J's account of events wastruthful, supported by the following circumstantial evidence:2(a) The defendant's opportunity to commit the offences,2 At [2].(b) Z's observation of the vacuum incident involving his sister,(c) J's behaviour after the alleged incident,(d) Mr Wills' acknowledgement to Detective Appleyard that evening thatthere had been an altercation between him and J,(e) The mother's evidence that J had complained to her of a sore throat.[10] The defendant's case was that the prosecution could not prove the essentialtruthfulness of J's account beyond reasonable doubt and that there was no reasonedbasis to reject Mr Wills' evidence. The vacuum cleaner incident was accidental andthere were significant differences between the accounts given by J and Z. It wasunlikely that Z was even in a position to observe the incident and there was a risk thatJ and Z colluded to make up a broadly matching version of events.[11] The Judge summarised the evidence relevant to the incident:3(a) In cross-examination J had rejected the defendant's explanation that shehad become hysterical and had thrown cutlery. She rejected thedefendant's suggestion that the layout of the lounge was different thanthat in the exhibit photographs.(b) Z in his evidence said he observed the incident and was comingdownstairs when he heard a noise. He saw Mr Wills punch J in herstomach, pick her up off the ground by holding her around the throatand pushed her back down on the vacuum cleaner. He said J then ranoff and Mr Wills threw a can at her. He rejected Mr Wills suggestionthat the couches were set out differently as depicted in a sketchproduced by the defendant.(c) J and Z's mother in her evidence said she observed sprayed Coca-Cola-type marks in the laundry area and saw empty bourbon cans when shereturned to the address later that evening. When she spoke to Mr Wills3 At [6]–[9].on arriving back at the address he denied hitting J in any way. She alsosaid J had complained to her the next day of a sore throat.[12] The Judge further observed that, while there were differences in the accountsgiven by the children there was a broad consistency between the two accounts thatMr Wills grabbed J in the throat area and pushed her forcefully down.4 The differencescould be explained by their respective ages, degrees of involvement and perspective,and respective positions of observation. Their accounts were supported by themother's observation of sprayed liquid in the laundry, J's later complaint to her of asore throat, Mr Wills' acknowledgement to police of an "altercation" and J's behaviourafterwards.[13] As to the Judge's view of Mr Wills' evidence, he found him a "whollyunimpressive witness". He said that much of his evidence was long-winded and hewould often go off-topic. The Judge noted that there was some evidence, however,that Mr Wills suffered from ADHD and some allowance had to be made for that.[14] Ultimately the Judge rejected Mr Wills' explanation for the following reasons:5(a) No cutlery or crockery was seen lying in the lounge area consistent withthe defendant's account of J throwing items at him.(b) Mr Wills' account was based on a different layout of the couches notsupported by the evidence from J, Z and the mother. The Judgeconsidered the evidence was designed to persuade the Judge that Zcould not have seen the incident.(c) It was implausible that a slightly built 10 year old girl would charge atthe defendant at a time when he was on the floor trying to free thecaught rug.(d) The defendant's account that J reacted as aggressively as she did,without warning or reason, was implausible. More plausible was J's4 At [10].5 At [31].version of events that she was upset by Mr Wills' comment that hewould remove the children.(e) The defendant accepted that he had some memory blank and confusionabout the order of events and acknowledged in cross examination thathe was prone to embellishment and exaggeration.(f) It was unlikely that J and Z colluded to come up with a similar story asthe strength of their account lies in the differences indicating that theywere not coached or rehearsed in their answers. Collusion or rehearsalof their evidence was also not put to either of them in cross-examination.Relevant law[15] An appeal against conviction in a Judge-alone trial is governed by s 232 of theCriminal Procedure Act 2011. This appeal is brought under s 232(2)(b).[16] The Supreme Court re-examined the approach to assessment of evidence forconviction appeals in Sena v New Zealand Police.6 The Court held that appeals insuch cases should proceed by way of rehearing in accordance with the well-establishedprinciples canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.7 The Courtsummarised the approach under s 232:8appellate judges dealing with a case on the basis of a written record of whathappened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based oncontested oral evidence. For instance, what a witness means may beconveyed, at least in part, by gesture or intonation, something which will notbe apparent on the written record. More generally, the appellate process inwhich appellate judges are taken, sometimes rather selectively, to the aspectsof the evidence on which counsel rely does not replicate the advantages of atrial judge which we have just described.6 Sena v New Zealand Police [2019] NZSC 55.7 At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR141.8 Sena, above n 6, at [40] (footnotes omitted).Application to adduce new evidence[17] The appellant seeks to file further evidence by way of affidavit. The evidencecomprises photographs taken by the appellant in October 2018. The photographs areof the interior of the house where the assault took place.[18] The High Court may admit further evidence on appeal pursuant to s 335 of theCriminal Procedure Act or in its inherent jurisdiction.9 The discretion should beexercised sparingly and "only admitted where it can properly be said that the interestsof justice require the admission, and the proposed evidence satisfies the principles foradmission of fresh evidence".10 The evidence should be sufficiently fresh andsufficiently credible.11[19] The Police accept the evidence is credible as it shows that on 3 October 2018,one and a half months before the offending, that one of the couches in a position theappellant maintained it was in at trial. The main dispute concerns whether theevidence is sufficiently fresh. Evidence must be fresh in the sense that it could not,with reasonable diligence, be produced at trial. The appellant says the photographswere held on his Google Drive but he could not access them at the time of the trialbecause his laptop was broken. Since the trial his laptop has been repaired and he isnow able to produce the photos. Mr Heslip for the Police submits that the evidence isnot sufficiently fresh as there is no explanation as to how his laptop came to be broken.[20] I accept that there is reason to be sceptical on whether this is really freshevidence, but in the circumstances I have decided to admit it. The issue as toplacement of the couch seems to be at the centre of the appeal and the evidence soughtto be adduced on appeal is relevant to that. It is important that the appellant is notdeprived of his argument on appeal on its merits.Discussion[21] The essence of the appeal is that the Judge was wrong to refuse to acceptMr Wills' version of events and the new evidence corroborates his account.9 R v Ratu [2013] NZHC 3085 at [24].10 At [24].11 R v Bain [2004] 1 NZLR 638 (CA), approved by Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71at [34]; and Lundy v R [2013] UKPC 28.[22] At trial there were several discrepancies between the evidence of Mr Wills andthe children as to the layout of the living room. The children maintained the layout ofthe room was consistent with the police photographs taken on 4 June 2019 andproduced in evidence. Mr Wills disputed this and said the couches were positioned asdepicted of his sketch drawn at the police interview on 15 April 2019 and produced inevidence.[23] Whilst the District Court Judge relied on the placement of the furniture as oneof the reasons why he preferred the evidence of the children of Mr Wills' partner toMr Wills, it is ultimately only one part of the evidence relevant to the key assessmentthat the Judge was required to make. The key assessment was whether thecomplainant, and her brother were giving truthful and reliable evidence, and whetherMr Wills was giving truthful and reliable evidence. Witnesses, especially children,can be mistaken about matters of detail concerning circumstances surrounding allegedoffending. Those surrounding circumstances will not have had the same memorableimpact as the assault itself. They may also have been influenced by Policephotographs shown to them. But even if they were mistaken about the layout of thecouches, that does not mean that the Judge was wrong to accept their evidence that theassault happened essentially as they said.[24] The appellant says the new evidence on appeal demonstrates the Judge erredin his assessment of the evidence. The new photographs, taken on 3 October 2018,depict the black couch immediately behind the door to the kitchen. It also shows therug Mr Wills referred to in his evidence. The appellant submits the photographdemonstrates that one of the couches was in a position the appellant maintained it wasin at trial. I note, however, the photos only show one of the couches in the positionthat Mr Wills said they were positioned on the day of the offending. So this does notreally confirm Mr Wills' account.[25] While the new photographs were taken closer in time to the day of theoffending than the Police photographs, both the children's mother and Mr Willshimself noted the occupants of the house moved around the furniture often. It is quiteplausible that the black couch was moved against the opposite wall after Mr Wills tookthe photographs. In a sense the new evidence provided on appeal confirms that thefurniture was moved around. As I say, this is only a matter of detail concerning thesurrounding circumstances. The new evidence does not go to whether the assaultoccurred.[26] In terms of the evidence relevant to whether the assault occurred the followingseems to me to be important.(a) Mr Wills maintains he was sitting on the black couch with the youngerchildren against the window, when J, who was standing in the diningroom, started throwing steel cutlery and plates through the door aimedat him. Mr Wills described the plates and cutlery being thrown in a"curved fashion from the dining room". This seems an unlikelyinitiation of the altercation. No reason for its initiation was providedby Mr Wills. Equally the cutlery and plates would be thrown not onlytowards Mr Wills, but also towards J's younger siblings on this versionof events. None of this sounds plausible.(b) I agree with the District Court Judge that it is also implausible that Jwould then charge at Mr Wills' hand and bounce off with such force asto fall backwards onto the vacuum cleaner. When combined withMr Wills' explanation for how the altercation commenced, a somewhatunbelievable set of circumstances is put forward. The reality was thatMr Wills was left with care of two children under three years old and a9 year old. It is accepted that there was an altercation when J, aged 10,came home. The suggestion that J commenced the altercation andaccidently harmed herself when then attempting to assault him byrunning at him seems unlikely.(c) By contrast J provided an explanation for the commencement of thealtercation, being that she was annoyed that he was looking after them,following which they argued when Mr Wills said he was going to takethem away from their mother, and he then commenced the assault uponher in his anger.(d) The evidence of the children had a degree of corroboration. Mr Willshimself did not recall picking up the thrown cutlery and the children'smother did not recall any kitchen utensils, knives, forks or plates on theground in the lounge when she arrived home that evening. She alsorecalled Coke-like splatter on the walls when returning to the houseconsistent with the children's description of the events.[27] As the Judge noted there were four key features that provided corroboration ofthe evidence of J and Z. First their mother observed the spray of liquid in the laundryconsistent with their evidence about him throwing the can of drink. Secondly Jcomplained to her mother soon after the event that she had a sore throat. Thirdly aneighbour confirmed that J had come over to her address afterwards and appearedupset. And finally there was Mr Wills' acknowledgement to Constable Appleyard thatthere had been an altercation.[28] Mr Wills' contention is that both J and Z have fabricated their evidence that heassaulted J. That seems unlikely. It is even more unlikely given that Mr Wills acceptsthat there was an altercation between him and J. He explains that on the basis that J,a 10 year old, initiated an assault of him, and hurt herself after she charged at him, andbounced off him and fell to the ground. This is an unlikely set of circumstances.[29] Mr Wills was given the benefit of the doubt in terms of the other allegationsbecause there was no such confirming evidence, and there were inconsistencies in theevidence given. Those charges were not proved beyond reasonable doubt. I amsatisfied, however, in common with the District Court Judge they were so proven inrelation to this incident. The new evidence relating to the layout of the lounge, somesix weeks before the events took place has only marginal relevance. It seems to methat the District Court Judge's findings were sound, and for these reasons I dismiss theappeal.Cooke J