CODY HURITU v NEW ZEALAND POLICE [2021] NZSC 126

CODY HURITU v NEW ZEALAND POLICE [2021] NZSC 126 [24 September 2021]NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 87/2021[2021] NZSC 126BETWEEN CODY HURITUApplicantAND NEW ZEALAND POLICERespondentCourt: William Young, Ellen France and Williams JJCounsel: N P Chisnall and N T C Batts for ApplicantM L Wong for RespondentJudgment: 24 September 2021JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is granted.B The application for leave to appeal is dismissed.C The applications for leave to intervene by the AucklandDistrict Law Society Inc and the Criminal Bar Associationof New Zealand are dismissed.____________________________________________________________________REASONSIntroduction[1] The applicant, Mr Huritu, was convicted after a judge-alone trial of assault andbreach of a protection order.1 Following an unsuccessful appeal against conviction inthe High Court,2 Mr Huritu obtained leave to appeal to the Court of Appeal.3 TheCourt of Appeal subsequently dismissed the appeal.4 He now seeks leave to appeal tothis Court.Background[2] The charges related to incidents involving Mr Huritu's partner. The two werein a long-term relationship, although on and off in nature.5 The incident giving rise tothe assault charge took place on 10 December 2018. When police visited Mr Huritu'saddress, the complainant reported an assault. An officer took photographs of herinjuries and she made a formal written statement to the police.[3] The matter was to proceed to trial on 18 July 2019 but the trial was adjournedafter the complainant did not answer her witness summons and attend court. A warrantwas issued leading to her arrest. She was bailed to attend the new trial date of1 August 2019.[4] On 1 August 2019, the complainant did not attend court. A warrant was issuedand the matter set down to the afternoon so that the warrant could be executed. Effortsby the police to locate her were unsuccessful. The trial Judge heard evidence from theconstable who had made those inquiries including two visits to her home. On theafternoon of 1 August, Judge Cooper granted an application by the police to admit herformal statement as hearsay evidence, on the basis she could not be found.6 The trial1 New Zealand Police v Huritu [2019] NZDC 15221 (Judge Cooper).2 Huritu v New Zealand Police [2019] NZHC 2560 (Jagose J) [HC judgment].3 Huritu v New Zealand Police [2020] NZCA 208. The matter was referred to the Permanent Courtfor hearing.4 Huritu v New Zealand Police [2021] NZCA 15 (Cooper, Courtney and Collins JJ) [CA judgment].5 The relationship was characterised by an extensive history of family violence: HC judgment,above n 2, at [3].6 New Zealand Police v Huritu [2019] NZDC 15660.proceeded. The applicant elected not to call or give evidence. The Judge found thecharges proved.7The proposed appeal[5] The proposed appeal is directed primarily to two grounds.8 First, whether theCourt of Appeal was correct to conclude that the complainant was "unavailable as awitness" on the basis that she could not "with reasonable diligence be found" ascontemplated by s 16(2)(d) of the Evidence Act 2006 so that her formal writtenstatement to police could be admissible. Second, whether the Court erred indetermining that the requirements in s 22(5) of the Evidence Act for dispensing witha hearsay notice applied.9 The applicant submits that both issues raise questions ofgeneral or public importance.10[6] On the first ground, the applicant submits that his right to a fair trial wasimpinged by the decision that the reasonable diligence test was met. The mainarguments the applicant wishes to make in support of this submission are as follows:(a) Reasonable diligence is a case-specific inquiry but one which meansthe doing of that which an ordinary prudent police officer would dohaving regard to all of the circumstances. In this respect the applicantseeks to rely on English authorities which he says, broadly speaking,place a positive obligation on police to maintain contact withwitnesses.11(b) The applicant says the Court was wrong to effectively prioritiseresourcing concerns for the police.7 Huritu, above n 1.8 Two other matters (reliability under s 18(1)(a) and the test under s 8 of the Evidence Act 2006) arereferred to in the notice of application but not discussed in the submissions.9 The Court of Appeal said that matter was raised for the first time in that Court: CA judgment,above n 4, at [54].10 Senior Courts Act 2016, s 74(2)(a).11 The applicant refers to R v Adams [2007] EWCA Crim 3025; R v DT [2009] EWCA Crim 1213;R v Murphy [2014] EWCA Crim 1457; and Ranking v Ipswich Magistrates' Court [2016] EWHC2851 (Admin).(c) The Court of Appeal's decision reflects a departure from the necessitytest underlying the admission of hearsay evidence.(d) The relative importance of the evidence of the proposed witness shouldbe a relevant factor in assessing whether the steps taken to locate thewitness are reasonable.(e) There is a divergence in the (limited) authorities on this issue such thatthis Court's guidance is required.[7] The applicant says the second point is interlinked with the first point on theproposed appeal. In this respect, it is said that the proposed appeal would provide anopportunity to reinforce the requirement that hearsay evidence will only be admittedwhere necessity dictates.Our assessment[8] As the Court of Appeal said, whether the reasonable diligence test was metrequired a factual inquiry. In reaching the view that the reasonable diligence test wasmet in this case, the Court of Appeal considered that the relevant circumstancesincluded the fact that the complainant had not appeared at the initial trial date and hadbeen located, arrested and released on bail to appear on the new trial date. The Courtsaid there was "justification in the circumstances for the Judge to conclude that thecomplainant had deliberately failed to appear on the second occasion".12 The Court'sapproach is captured in the following excerpt:[36] We accept [the submission for the Crown] that on a straightforwardreading of the statutory test, the unavailability requirement had been met. Thecomplainant's whereabouts were unknown. Reasonable efforts were made tolocate her, all of which proved unsuccessful. The question of whether therewas reasonable diligence was properly to be assessed on the basis not only ofwhat took place on the day but also on the basis of the steps previously takenin connection with the first trial date. Further, in the overall circumstances,we do not consider it was necessary for there to be a further adjournment sothat more time could be spent endeavouring to locate the complainant.[37] We do not consider it either necessary or desirable for this Court toestablish a set of principles such as those suggested by [counsel for the12 CA judgment, above n 4, at [34].appellant] to guide trial judges in the application of the straightforwardstatutory language in s 16(2)(d) of the Act. The question of whether a witnessis or is not able to be found is a simple question of fact.[9] The Court also accepted the Crown's submission that in determining whetherreasonable diligence test was met, a court should not be "influenced by a considerationof what role the witness will play in the trial" if they are located and give evidence.13The Court made the point that, where a witness is unavailable, it does not followautomatically that the hearsay statement of that person will be admissible. There areother aspects to the test for admissibility, including reliability14 and whether theprobative value of the statement is outweighed by the risk the statement would havean unfairly prejudicial effect on the proceeding.15 The latter issue encompassesconsideration of the right of a defendant to offer an effective defence.16[10] The Court also considered all of the bases in the statute for dispensing with thehearsay notice applied.17[11] While the applicant seeks to attach various riders to the factual assessmentundertaken by the Court of Appeal, the challenge on appeal would ultimately requirecase-specific consideration, as is accepted. There may be room for differing viewsabout the reasonableness of the steps taken by the police in this case in light of theirresponsibilities, the complainant's earlier non-appearance and the history of therelationship between the applicant and complainant. That possibility does not,however, detract from the factual nature of inquiry to be undertaken. Further, theassessment made here is one which, on the face of it, comes within the policy of thelegislative scheme.18 The second point concerning dispensation with notice, largelyfalls away if leave is not granted on the first point, but again the ultimate inquiry wouldbe a factual one. In the circumstances, we do not consider the criteria for leave toappeal are met.1913 At [38].14 Evidence Act, s 18(1)(a).15 Section 8(1)(a).16 Section 8(2).17 Under s 22(5), the judge may dispense with a hearsay notice, broadly speaking, where no party issubstantially prejudiced by non-compliance, or compliance was not reasonably practicable, orwhere the interests of justice so require.18 Singh v R [2010] NZSC 161, [2011] 2 NZLR 322 at [23].19 Senior Courts Act, s 74(2). The other two matters referred to in the notice of application areroutine, case-specific issues.Prospective interveners[12] We add that applications for intervention in relation to this matter werereceived from the Auckland District Law Society Inc and the Criminal Bar Associationof New Zealand. To the extent these applications are directed to intervention on theleave application, we note that the question of whether leave should be granted is alegal question involving the application of settled criteria. That legal question hasbeen fully canvassed in the submissions of the existing parties. The applicationsotherwise fall away and are formally dismissed.Extension of time[13] The application is out of time, but the delay is explained and there is noobjection made to our granting an extension of time.Result[14] The application for an extension of time to apply for leave to appeal is granted.The application for leave to appeal is dismissed. The applications for leave tointervene by the Auckland District Law Society and the Criminal Bar Association aredismissed.Solicitors:Haigh Lyon, Auckland for ApplicantCrown Law Office, Wellington for Respondent