HURITU v NEW ZEALAND POLICE [2019] NZHC 2560

HURITU v NEW ZEALAND POLICE [2019] NZHC 2560 [8 October 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2019-463-84[2019] NZHC 2560BETWEEN CODY HURITUAppellantAND NEW ZEALAND POLICERespondentHearing: 8 October 2019Appearances: G R Tomlinson for T Braithwaite for the appellantG Banuelos for the respondentJudgment: 8 October 2019ORAL JUDGMENT OF JAGOSE JSolicitors/Counsel:Gowing & Co Limited, WhakataneBraithwaite Law Ltd, RotoruaGordon Pilditch, Rotorua[1] On 1 August 2019, Cody Huritu was found guilty of assaulting his partner1 andbreaching a protection order,2 following a judge-alone trial before Judge P W Cooperin the District Court at Rotorua.3 Mr Huritu pleaded guilty to a further charge ofbreaching release conditions when he failed to report to his probation officer.4 On 22August 2019, Mr Huritu received an end sentence of one year and six months'imprisonment.5[2] Mr Huritu appeals against a pre-trial decision admitting hearsay evidence.6 Hesays the introduction of that evidence resulted in his conviction and accordingly alsoappeals against conviction. The appeal against the pre-trial decision is out of time.7 Ideal with the appeal as an appeal against conviction.Background—the alleged incident[3] The complainant is Mr Huritu's sometime partner over 20 years, with whomhe has two children. There is extensive history of family violence recorded betweenthem, with her being the victim in more than a third of his 21 violent offences. Atemporary protection order was served on Mr Huritu on 17 June 2018. It became finalon 18 October 2018 but had not been served on Mr Huritu.[4] On 10 December 2018, the complainant and Mr Huritu were at their homeaddress in Rotorua. They argued over who was to clean a pot he had burned cookingfood. The complainant retreated to the sitting room and sat on the couch. Mr Huritufollowed her and became verbally abusive. He began punching her head. She rolledonto her side and raised her arms to protect herself. Mr Huritu paused his assault longenough for the complainant to sit up. After she demanded he leave, he hit her once to1 Crimes Act 1961, s 194A.2 Domestic Violence Act 1995, ss 19(1)(a) or (b), 49(1)(b) and 49(3).3 Police v Huritu [2019] NZDC 15221 [District Court decision].4 He received a concurrent sentence of two months' imprisonment.5 Police v Huritu [2019] NZDC 16816. A sentence of 12 months' imprisonment was imposed inrelation to the assault charge, with a cumulative six-month sentence imposed for the breach of aprotection order.6 Police v Huritu [2019] NZDC 15660 [Pre-trial ruling].7 Criminal Procedure Act 2011, s 220(2). A notice of application for leave to appeal a pre-trialdecision must be filed within 20 working days after the date of the decision to which the appealrelates.the right eye with enough force to cause immediate bruising. When she screamed andtried to move away, his nails dug in to her face. She then got up and left the address.She returned a short time later, she says so as not to leave their 19-month son alonewith Mr Huritu.[5] A police officer arrived at the complainant's address at approximately 2.40 pmthat day, to discuss an earlier family harm incident. When the complainant presentedwith visible injuries, the constable enquired as to what had happened. The complainantthen accompanied the officer to the police station to give a formal written statement.—District Court proceedings[6] Mr Huritu's judge-alone trial was scheduled for 18 July 2019. Thecomplainant was summoned to give evidence on that day. When she did not answer,she was arrested on warrant and bailed to appear on 1 August 2019 for the re-scheduledtrial. When she again failed to appear, the Judge heard argument if her formal writtenstatement to police should be admitted as a hearsay statement. Following that, anotherwarrant for her arrest was issued. Police unsuccessfully attempted – to locate her byvisiting her house and that of an associate, and by making repeated calls to her phone– to execute the warrant.[7] Later on 1 August 2019, the Judge granted the application to admit the formalwritten statement of the complainant. Following s 18(1) of the Evidence Act 2006, theJudge was satisfied the complainant was unavailable as a witness, given she could notwith reasonable diligence be identified or found.8 The fact she was unwilling to be awitness did not preclude her from being described as 'unavailable'. The Judge furtherwas satisfied the circumstances of the statement provided reasonable assurance it wasreliable. He had specific regard for the formal nature of the statement, the fact it wassigned with attestation to its truthfulness and correctness, its consistency with otherevidence, and its detailed nature.[8] In determining the "general admissibility question" under s 8, the Judge againconsidered the circumstances in which the statement was made and its consistency8 Referring to s 16(2) of the Evidence Act 2006 and the decision of Rameka v R [2019] NZCA 105.with other evidence. While acknowledging the defence would be unable to cross-examine the complainant, the Judge believed Mr Huritu would still be able to offer aneffective defence. He could give evidence himself or offer other evidence. Ultimately,the strong probative value of the statement was not outweighed by any prejudice, andit was admitted into evidence.[9] The Judge had express regard for s 122, which directs caution be exercisedwhen dealing with hearsay evidence. He again highlighted the reliability of thecircumstances in which the statement was made. The Judge ultimately was satisfiedbeyond reasonable doubt the statement was "the true position in relation to thisincident", and Mr Huritu did assault the complainant. Both charges – assault andbreach of a protection order – were proven.Grounds of appeal[10] Appearing for Mr Huritu's counsel, Tim Braithwaite, Gene Tomlinson directshis submissions toward the admission of the hearsay statement of the complainant,arguing its introduction resulted in Mr Huritu's conviction. Specifically, Mr Tomlinsonsays the Judge erred:(a) the complainant was not unavailable as a witness, as a higher thresholdof diligence applies to locate complainant witnesses in circumstances"where without the statement the defendant had no case to answer". Alesser threshold for complainant statements sets "a dangerous precedentand could open the floodgates for any complainant who does not turnup to court";(b) the reliability threshold was not met, as the complaint's statement wasgiven against "a background of deceit", and her "provenuntruthfulness" and the inadequacy of corroboration rendered herstatement unreliable; and(c) the probative value of the statement did not outweigh its prejudicialeffect in precluding the complainant's cross-examination.Approach on appeal[11] If I am satisfied any of these errors are made out, and there is a "real risk" theoutcome of the trial was affected – "a reasonable possibility that a not guilty (or morefavourable) verdict might have been delivered if nothing had gone wrong" – or thetrial was unfair or a nullity, I must allow the appeal on grounds of miscarriage ofjustice.9 Otherwise I must dismiss it.10[12] If my own view on that question differs from the Judge, the Judge will haveerred and the appeal must be allowed. But it is for Mr Huritu to show such an errorhad been made; I must take into account any advantages the trial judge may have had.11Discussion—was the complainant unavailable?[13] A person relevantly is unavailable as a witness in a proceeding if the person"cannot with reasonable diligence be identified or found".12 No different thresholdapplies for complainants as witnesses; what constitutes 'reasonable diligence' in anyparticular circumstance will depend on the facts.[14] Mr Tomlinson was critical that what constituted 'reasonable diligence' herewas defined by the timetable the Judge allowed. He said the complainant should notin effect be able to make herself unavailable, particularly as she was the only evidenceof identity. Mr Tomlinson draws an analogy with s 16(3), where a hearsay statementmay not be offered in evidence in circumstances in which its proponent has caused the[maker's] unavailability. Mr Tomlinson says the Court should be very slow to permitsingle witness unavailability to cross the threshold.[15] Material effort was made to locate the complainant here. Trial had beenpreviously adjourned to secure her attendance by arrest and bail, and the police made9 Criminal Procedure Act 2011, ss 232(2) and (4); Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at[27], adopting Tipping J's formulation in R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730at [110], and [37].10 Criminal Procedure Act 2011, s 232(3).11 Sena v Police [2019] NZSC 55 at [38].12 Evidence Act 2006, s 16(2)(d) (definition of 'unavailable as a witness').significant effort to locate her on that second occasion, before the Judge ruled thecomplainant was unavailable as a witness. To my mind the Judge justifiablyconsidered reasonable diligence had been exercised; as in R v Rameka, "the policemade every enquiry that could reasonably be expected".13 The Judge did not err in thisrespect.—was the hearsay statement reliable?[16] As will be appreciated, a 'hearsay statement' is a statement, made by a personother than a witness, offered in evidence as proof of the truth of its contents. Here, thehearsay statement is the complainant's formal written statement to police, offered inevidence by the police as proof of the truth of its contents.[17] The circumstances of a statement by a person who is not a witness – definedas including the nature and contents of the statement, and circumstances relating to thestatement's making, its maker's veracity, and the accuracy of their observation14 –must provide reasonable assurance the statement is reliable.15 That is a threshold testin which the judge plays a "gate-keeping role quite different from the jury's role inassessing the reliability of evidence".16[18] In connection with the statement's circumstances, the Judge explained it is "notthe veracity of the witness but the veracity of Constable Vedder" and "again notthe observation of the witness".17 The Judge's reference to Constable Vedder is amistake; she was the witness. The Judge's explanation only makes sense if he intended(correctly) to refer to the complainant.[19] Certainly there is evidence of circumstances going to the complainant'sveracity. When police attended the house earlier in the day to serve the final protectionorder on Mr Huritu, she told them he "wasn't here but he was". On the police's return,she told them her report the previous day (when police attended a family harm13 Rameka v R, above n 8, at [42]. The witness did not attend the trial as summoned and a warrantwas issued for her arrest. The police enquired with her family, telephoned and sent messages tothe witness, checked her home address as well as enquired with bus companies.14 Evidence Act 2006, s 16(1) (definition of 'circumstances').15 Section 18(1)(a).16 Adams v R [2012] NZCA 386 at [26].17 Pre-trial ruling, above n 6, at [9].incident) of an argument with her brother had in fact been with Mr Huritu. But neitherundermines the statement's reliability. Denials or retractions of allegations are notuncommon in cases involving allegations of family violence, and do not necessarilydetract from whether a statement is reliable.18 Here, in significant degree, thecomplainant's 'untruths' – seeking to distance herself from potential consequentialconflict with Mr Huritu – endorse the reliability of her formal written statement.[20] The Judge did not err in his assessment of the circumstances of that statement.It was made within five hours after the assault it records in specific detail. Thecomplainant signed the statement, attesting to its truth and accuracy with knowledgeit could be used in court proceedings. It was given in a formal environment, in a formaltranscribed document, witnessed by an independent person.19 Mr Tomlinson is criticalof its absence of corroboration but it is consistent with Mr Huritu's history ofoffending against her, the earlier reports of family harm, the existence of protectionorders against Mr Huritu, her concern for his response to the police's intended serviceof the final protection order, her oral statement at the house, and the photographicevidence of her injuries.20 The gateway threshold is crossed.[21] The Judge did not err in his conclusion the circumstances relating to thestatement provided reasonable assurance the complainant's statement is reliable.—did the statement's probative value outweigh its prejudicial effect?[22] Mr Tomlinson says the inability to cross-examine the complainant precludedMr Huritu from offering an effective defence. The inability to cross-examine shouldnot be understated, especially when the evidence sought to be relied on is crucial todetermination of the case. Mr Tomlinson says Mr Braithwaite was unable to questionthe complainant's veracity and the veracity of the statement, and unable explore the18 Nisha v R [2015] NZCA 178 at [27].19 See Adams v R, above n 16, at [35]. The Court of Appeal stated that if "an independent personinterviewed [the maker of the hearsay statement], and took a formal statementthere would havebeen little or no issue as to there being reasonable assurance as to the reliability of the statement".20 Wilson v R [2017] NZCA 455 at [29]; Reid v R [2015] NZCA 175 at [24]; and Nisha v R, above n18, at [20]. The photographs clearly show bruising under the complainant's right eye and a lumpon her forehead. Her written statement says she was "smackedin the right eye with the palm ofhis hand". She had a bruised index finger, which supports her statement she raised her arms toblock Mr Huritu's blows.lack of injuries to the complainant's arms (Mr Braithwaite arguing the lack of bruiseson her arms was inconsistent with her evidence that she used her arms to block MrHuritu's blows).[23] A hearsay statement that meets the s 18 test nevertheless may be excluded ifthe risk of an unfairly prejudicial effect on the proceeding outweighs its probativevalue.21 In assessing the risk of unfair prejudice, the interests of both the prosecutionand defence must be considered.22 The mere fact the complainant is "unavailable forcross-examination does not of itself necessarily create unfair prejudice".23[24] The formal written statement of the complainant is highly probative. It directlyimplicates Mr Huritu and contains a detailed account of the incident. The "exclusionof such highly relevant and important evidence would have an unfairly prejudicialeffect on the proceeding so far as the Crown is concerned".24 Without it, the Crownmay have been unable to prosecute its case.[25] By definition, the maker of a hearsay statement cannot be cross-examined.25The inability to cross-examine the complainant did not preclude Mr Huritu's counselfrom offering an effective defence (specifically, it was not Mr Huritu who assaultedthe complainant), as the identified 'inconsistencies' in the complainant's evidencewere still raised. The defence had its own challenges, even without the complainant'sstatement. Mr Huritu said it was the complainant's cousin who inflicted her injuries afew days earlier. But when Constable Vedder attended the address the day before theincident presently at issue, the complainant displayed no visible injuries.[26] It is speculative if cross-examination of the complainant would have yieldedconcessions favourable to Mr Huritu.26 As an aside, while the complainant did nothave any bruises on her arms, she had a bruised index finger said to be a result ofblocking Mr Huritu's blows. In Bishop v Police,27 Lang J set out an extended treatment21 Evidence Act 2006, s 8(1).22 Black v R [2012] NZCA 482 at [31], citing Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [20].23 Wilson v R, above n 20, at [38]; see also K (CA332/2014) v R [2014] NZCA 393 at [31].24 K (CA332/2014) v R, above n 23, at [30].25 TK v R [2012] NZCA 185 at [22].26 K (CA332/2014) v R, above n 23, at [32].27 Bishop v Police CRI 2008-416-0003 HC Gisborne, 28 February 2008, at [26]–[29], citing R v L[1994] 2 NZLR 54 (CA) at 63:of the prejudice or otherwise of an absence of cross-examination of an unavailablewitness:If the testimony appears to be inherently reliable and there is nothing in anyother evidence or in the surrounding circumstances casting any doubt on itstrustworthiness the Court may properly conclude on that material thatcross-examination would not have made any relevant difference.On balance, I consider the Judge was correct in concluding the probative value of thestatement outweighed its prejudicial effect.[27] I am not satisfied any miscarriage of justice has occurred. The Judge followedthe correct procedure for admission of hearsay evidence and exercised sufficientcaution in his consideration of the complainant's formal written statement. None ofthe alleged errors has been made out; no miscarriage of justice has been established.Result[28] The appeal is dismissed.—Jagose JIf the testimony appears to be inherently reliable and there is nothing in any other evidenceor in the surrounding circumstances casting any doubt on its trustworthiness the Court mayproperly conclude on that material that cross-examination would not have made any relevantdifference.