CHURCH v NEW ZEALAND POLICE [2019] NZHC 38

CHURCH v NEW ZEALAND POLICE [2019] NZHC 38 [30 January 2019]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2018-406-9[2019] NZHC 38GRAHAM DONALD CHURCHvNEW ZEALAND POLICEHearing: 18 December 2018Appearances: F M Kelly for the AppellantJ W Cameron for the RespondentJudgment: 30 January 2019JUDGMENT OF CULL J[1] On 2 August 2018, Mr Church was convicted of one charge of assaultfollowing a judge-alone trial before Judge S J O'Driscoll.1 He was later sentenced on18 September 2018 by the Judge to a $400 fine and reparation of $800.2[2] Mr Church appeals his conviction on five grounds. Ms Kelly, counsel for MrChurch, broadly submits the Judge erred by rejecting Mr Church's testimony, unfairlyfavouring and not appropriately considering the inconsistencies in the prosecution'switnesses, displaying bias towards Mr Church and not following proper process duringthe trial. Mr Church argues these errors denied him a fair trial, led to a miscarriage of1 New Zealand Police v Church [2018] NZDC 16052 [Conviction decision].2 New Zealand Police v Church [2018] NZDC 19720 [Sentencing decision].justice and an unsafe conviction. Mr Church also applies for leave to appeal out oftime, having filed his notice to appeal four working days out of time.[3] The Crown opposes the appeal. Mr Cameron, for the Crown, submits the trialJudge was faced with a variety of disputed matters and rightly focused on the factualallegations that supported the elements of the offence. He found corroboration onthose matters and, the Crown submits, entered a safe conviction.[4] The key issue is whether any of the alleged errors pleaded by Mr Churchcaused a miscarriage of justice, namely, whether there was a real risk that the outcomewas affected or that there was an unfair trial.Factual background[5] The summary of facts alleges that on 23 April 2017 Mr Church assaulted thevictim, Mr Holmes. Both men were riding on their quad bikes and met as Mr Holmeswas coming up from the beach at Kekerengu South, in Marlborough. Mr Churchallegedly began abusing Mr Holmes over an existing neighbourhood dispute and thenpunched Mr Holmes once in the head while he had turned his head away. Mr Holmeswas knocked backwards onto his bike and then tried to defend himself when MrChurch allegedly punched him again in the head. The assault stopped when aneighbour intervened.[6] Mr Holmes suffered several loosened and knocked-out teeth, a black eye,swelling and redness to the left side of his face. Mr Church was charged with assaultwith intent to injure.[7] There was a history of animosity between Mr Church and Mr Holmes. Therehave been several previous incidents among Mr Church, Mr Holmes and Ms Ratter(Mr Holmes' girlfriend), who are all neighbours. As Mr Church describes it, theincidents have included Ms Ratter's dog attacking Mr Church's dog, Mr Churchallegedly being physically attacked by Ms Ratter, Ms Ratter presenting Mr Churchwith a trespass notice (and Mr Holmes filming this) and the police subsequentlygetting involved.[8] Mr Church is now 65 years old and has 14 previous convictions, the mostrecent of which is from 1984.District Court decision[9] The Judge set out the elements of the charge, burden of proof and the cases forthe prosecution and defence.3 The prosecution case is as set out above. The defencecase was that Mr Church was waved down by Mr Holmes and then Mr Holmesattempted to drag Mr Church off his bike. They then both fell backwards onto theground, got up and then when Mr Holmes went to punch Mr Church, Mr Churchpunched him twice in self-defence.[10] The Judge identified that the "real issue" was "who did what",4 and there wereconflicts in the evidence between the complainant and Mr Church. In terms of legalissues, the Judge identified he needed to consider whether the prosecution excludedself-defence beyond reasonable doubt and whether, if yes, the prosecution has provedthe elements of the charge beyond reasonable doubt.5[11] There were four prosecution witnesses: Mr Holmes, Mr and Mrs Abrams(eyewitnesses) and Constable Mackenzie (the officer in charge). The Judgesummarised their evidence. When cross-examined, Mr Holmes rejected Mr Church'sversion of events.[12] Mrs Abrams said she was in her house across the road from the incident whenshe saw Mr Church pull over, grab Mr Holmes and punch him on the left side of hisface. She grabbed the phone and called out to her husband. She saw Mr Church tryingto get Mr Holmes off his bike, then her husband arrived. She did not see either manon the ground.[13] Mr Abrams said his wife called out to him, then he put on his shoes and wentto the scene. He saw two men restraining each other. Mr Holmes was on his quad3 Conviction decision, above n 1.4 At [12].5 At [14].bike and Mr Church was standing over him. All he saw was mutual grabbing by bothparties and did not see any punches.[14] Constable Mackenzie said that Mr Church did not give a DVD or writtenstatement. He said Mr Church categorised the incident as a fight and the injuries werelikely caused when Mr Holmes fell off his bike.[15] In summarising Mr Church's evidence, the Judge observed that a number ofearlier incidents had occurred involving Mr and Mrs Abrams, Mr Holmes and MsRatter. Mr Church was intending to go to the store on the day of the incident. Hepulled in beside Mr Holmes who had waved to him and a yelling match occurred. Hesaid Mr Holmes grabbed him and they were wrestling with each other. Mr Holmestried to pull him off his bike, Mr Church fell on top of him and when Mr Holmeslanded on the ground he hit his head. Mr Holmes looked like he was going to punchMr Church so he hit him twice. They were standing. Then Mr Abrams arrived.[16] The Judge made several observations in relation to the competing evidence:(a) the timing of the incident was on 23 April 2017, and the evidence washeard over a year later on 1 August 2018;(b) not all witnesses saw and heard everything that occurred (the Abrams);(c) caution must be exercised over the evidence;(d) there were a number of conflicts in the evidence such as (what injurywas caused and the locations of the quad bikes) that are incidental towhat the Judge needed to decide;(e) there has been a background of a "long and deep-seated divisionbetween various parties who have lived in this small neighbour area";66 Conviction decision, above n 1, at [28].(f) there are usually two sides to every story and the Judge had heardsuggestions that some witnesses may have colluded in their evidence;(g) while the defence did cross-examine a number of prosecution witnesseson past events to attempt to establish a lack of credibility, this is also adouble-edged sword and those past events may reflect on the credibilityof the defendant; and(h) witnesses can reconstruct past events and the Judge considered thelikelihood and plausibility of events occurring in the way suggested bywitnesses.[17] The Judge rejected Mr Church's self-defence claim.7 He found that Mr Churchdid not honestly believe he was about to be hit by Mr Holmes; Mr Church used thischance encounter to vent his anger and frustration on Mr Holmes when he came acrosshim. The Judge did not accept Mr Church's version of events and observed that MrChurch has attempted to justify his actions, embellish Mr Holmes' role and minimisehis own. The Judge rejected Mr Church's evidence about the timing of the incident,how the punches occurred and whether they fell onto the ground.[18] The Judge accepted the evidence of Mrs and Mr Abrams and considered thisevidence was consistent with Mr Holmes' testimony and version of events. Nowitnesses saw Mr Church on top of Mr Holmes on the ground. Although the Judgeaccepted that none of the witnesses saw everything, Mrs Abrams was still watchingand saw her husband approach; she had every reason to watch and observe what tookplace. The Judge found there was no collusion by Mr and Mrs Abrams.[19] The Judge found Mr Holmes was a reliable, honest and credible witness. Hewas upset at times while being cross-examined because his version of events was beingchallenged. The Judge did not accept that Mr Holmes would have waved down MrChurch as he wanted nothing to do with him.7 Conviction decision, above n 1, at [49].[20] Although Mr Church was charged with assault with intent to injure, the Judgeamended this to a charge of common assault.8 He found Mr Church guilty of assaultbeyond reasonable doubt as he was satisfied there was an intentional application offorce by Mr Church to Mr Holmes. He could not, however, be satisfied Mr Churchhad an intent to injure. The Judge observed he suspected "that this occurred really outof frustration between the parties".9[21] On 18 September 2018, the Judge sentenced Mr Church to a $400 fine and$800 reparation, to be paid at a rate of $50 per week.10 The reparation was ordered tocover the remaining cost of Mr Holmes' dental treatment following the incident. TheJudge also ordered Mr Church to pay Court costs. As Mr Church had not received aconviction since 1984, the Judge treated him as a first-time offender.Leave to appeal out of time[22] Mr Church filed his appeal four working days late and seeks leave to appealout of time. Ms Kelly explains Mr Church has not received legal aid and he lives inthe South Island but has had to instruct a lawyer in the Wairarapa who is currentlyundertaking the work on a pro bono basis. She explains that the delay was causedbecause Mr Church was away post sentencing and she had difficulty obtaininginstructions in time.[23] A notice of appeal against sentence must be filed within 20 working days afterthe date of the sentence appealed against.11 The appeal Court may, at any time,however, extend the time allowed for filing a notice of appeal.12 The touchstone forgranting an application to extend time is the interests of justice in a particular case.13This requires the wider interests of society in the finality of decisions to be balancedagainst the interests of the individual applicant in having the conviction (and sentence)reviewed. There are a variety of considerations relevant to the interests of justice,8 Crimes Act 1961, s 196. Maximum penalty is one year's imprisonment.9 Conviction decision, above n 1, at [52].10 Sentencing decision, above n 2, at [13].11 Criminal Procedure Act 2011, s 248(2).12 Section 248(4).13 R v Knight [1998] 1 NZLR 583 (CA) at 587, which was confirmed in R v Lee [2006] 3 NZLR 42(CA) at [95]–[107].including the length and reason for the delay, the strength of the proposed appeal andthe public interest in the finality of decisions.14[24] I am granting leave to file a notice of appeal out of time because I consider itis in the interests of justice to do so in these circumstances. There was a very shortdelay in filing and Mr Church should not be barred from filing his appeal because ofminor delays in giving instructions to counsel and dealing with issues of funding.Approach to appeal[25] An appeal against conviction in a judge-alone trial is a general appeal. Thisappeal is governed by s 232 of the Criminal Procedure Act 2011. Therefore, theappellant must satisfy the Court that a miscarriage of justice has occurred, eitherbecause "the Judge erred in his or her assessment of the evidence to such an extentthat a miscarriage of justice has occurred" or for any other reason.15 A miscarriage ofjustice is "any error, irregularity, or occurrence" that "has created a real risk that theoutcome of the trial was affected" or "has resulted in an unfair trial or a trial that wasa nullity".16 As s 232 makes clear, not every "error or irregularity" causes amiscarriage of justice.17[26] An unfair trial exists when the errors are prejudicial or unacceptably give riseto the appearance of unfairness.18 In Condon v R, the Supreme Court stated that "it isnot every departure from good practice which renders a trial unfair."19 Instead, theerrors or irregularities must depart from good practice in a manner that is "so gross, orso persistent, or so prejudicial, or so irremediable" that the Court must quash thedecision.2014 Isherwood v R [2010] NZCA 347 at [16].15 Criminal Procedure Act 2011, s 232(2).16 Section 232(4).17 "A miscarriage is more than an inconsequential or immaterial mistake or irregularity": Matenga vR [2009] NZSC 18, [2009] 3 NZLR 145 at [30].18 Mann v New Zealand Police [2015] NZHC 588 at [9].19 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].20 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by theSupreme Court in Condon v R, above n 19, at [78].Grounds of appeal[27] Mr Church appeals his conviction on five grounds. He submits the Judge erredby:(a) finding Mr Church did not act in self-defence and rejecting histestimony on this point;(b) not considering the inconsistencies between the prosecution witnessesand failing to take a cautious view in respect of their credibility andreliability;(c) erred in law by making a negative inference from Mr Church's decisionto refrain from making a statement to police upon his arrest;(d) unfairly restricting defence counsel in cross-examination of thecomplainant and other witnesses; and(e) the Judge displayed bias against Mr Church.[28] These grounds, and the parties' positions in relation to each, are discussedbelow.Grounds 1 and 2: Competing cases and witness testimony[29] The first two appeal grounds allege the Judge erred in not preferring MrChurch's testimony and his self-defence claim over the prosecution witnesses.Mr Church's position[30] Mr Church submits that the Judge, having heard full and cogent testimony fromMr Church that he acted in self-defence, could not rightly convict him beyondreasonable doubt. Further, he submits that the Judge did not give proper attention tothe multiple inconsistencies among the four eyewitnesses' accounts of the allegedoffending. Given the history of animosity between Mr Church and these witnesses,he submits the Judge should have adopted a more cautious view of the credibility,reliability and veracity of the prosecution evidence.[31] The key inconsistencies and issues that Mr Church points to in the evidence ofthe prosecution witnesses are:(a) Mrs Abrams stated she had not met Mr Holmes prior to the incident,when this was incorrect.(b) Mrs Abrams acknowledged she had less than perfect vision when shesaw the incident through a window of her house about 100 metres fromwhere the men were positioned. She was also vague in being able todescribe where the men or quad bikes were. Mrs Abrams said that MrChurch pulled up beside Mr Holmes on his left, but this is at odds withboth Mr Church's and Mr Holmes' evidence that Mr Church pulled upon the right side of Mr Holmes. Mr Church submits she may have,therefore, attributed the punch to the wrong man and her evidence isunreliable.(c) Mrs Abrams testified that Mr Holmes remained sitting on his bikethroughout the incident. This is contradicted by the evidence of MrChurch and Mr Holmes that the latter got off his bike at one point.(d) Mrs Abrams also incorrectly recalled the injuries Mr Holmes suffered.She described a cut to his foot, but she said he had not fallen off hisbike and nothing in her account could explain this injury.(e) After the incident, Mr and Mrs Abrams discussed the incident foraround two hours, following which they made separate statements. MrsAbrams, however, denies that her husband crafted her statement.(f) Mr Abrams admitted he had a negative view of Mr Church. Mr Churchsubmits that the transcript reveals Mr Abrams was a difficult, evasiveand argumentative witness.(g) Mr Abrams denied and contradicted the statement of his wife that hehad been trespassed from another neighbour's property previously.(h) Mr Abrams admitted he never saw the incident unfold and he did notsee Mr Church hit or punch Mr Holmes. Mr Abrams' evidence was thatwhen he approached the two men they were "grappling" each other,which contradicted his wife's evidence that Mr Holmes never engagedphysically with Mr Church.(i) Mr Abrams identified, consistently with his wife, where the bikes wereplaced. However, both their evidence contradicted that of Mr Churchand Mr Holmes.(j) Mr Abrams gave evidence that he had typed out his wife's statementbecause she is not a good typist, even though Mrs Abrams claims herhusband did not assist her to write her statement. When Mr Abramswas challenged that his and his wife's statements mirrored each other,he commented that he "wrote down what she told me to write down."Mr Church submits this raises concerns about the credibility of both oftheir statements.(k) Constable Mackenzie was the officer in charge and did not witness theincident. He gave evidence that after Mr Church freely accompaniedhim to the police station, Mr Church declined to give a statement anddid not make a complaint. Mr Church submits his evidence does notassist the Judge in determining whether Mr Church assaulted MrHolmes.(l) The evidence of Mr Holmes and Mr Church is contradictory andirreconcilable. Mr Holmes described turning his head to listen to thevoices of children at the beach. However, Mr Church submits that MrHolmes was unlikely to have seen part of the beach and unlikely to haveheard them. Despite these contradictions, and given the limitations ofthe other witnesses' testimonies, Mr Church submits the Judge shouldhave considered only the evidence of Mr Church and Mr Holmes whenassessing the facts and reaching his conclusion.[32] Mr Church submits these inconsistencies and issues mean that the Judge erredby failing to adopt a cautious approach to this evidence and in not preferring MrChurch's evidence. Mr Church submits the Judge's findings are unsustainable.Crown's position[33] The Crown argues the Judge did not err in assessing the evidence before him.The Crown submits these types of inconsistencies between the witnesses are notunusual when reconstructing past human events with human memories.Discussion[34] It is plain that there were evidential conflicts among the various witnesses asto what happened in the altercation between Mr Church and Mr Holmes. The Judgewas fully cognisant of the conflicts and observed that it is not unusual in court casesof this type to receive evidence that conflicts between prosecution and defencewitnesses. He also observed that there can be conflicts for a variety of reasons amongwitnesses called by the same party.21[35] Having made that observation, I consider the Judge took a cautious approachin assessing the evidence. First, the Judge considered whether the conflicts in theevidence were of significance and whether they were important to the issues he had todecide.22 The Judge was also careful to record that he took into account thebackground and relationships among the various parties who gave evidence, includingthe long and deep-seated division among various parties who have lived "in this smallneighbour area."23 The Judge traversed the evidence from Mr Church about some ofthe historical incidents that had occurred involving the complainant and his girlfriendas well as the Abrams. The Judge acknowledged that some of the past events mayreflect on the credibility of witnesses, but carefully stated that it was not his job to21 Conviction decision, above n 1, at [23].22 At [27].23 At [28].resolve past conflicts among the parties, and such evidence may have a double-edgedaspect to it, reflecting on the defendant as well.24[36] The Judge was mindful of the allegations that some of the witnesses may havecolluded and that witnesses can reconstruct past events, including witnessesattempting to minimise their role in an incident.25[37] Having reminded himself of these factors, the Judge rejected the defence ofself-defence, because he found that Mr Church did not honestly believe he was aboutto be hit by Mr Holmes. He stated that he did not accept Mr Church's version of eventsbecause he believed Mr Church attempted to justify his actions, embellishing the roleof Mr Holmes and minimising his own actions.26[38] His conclusion was based on his acceptance of Mr and Mrs Abrams' evidence,despite some inconsistencies. The Judge approached the evidence of both of thesewitnesses on the basis of their consistency with the evidence of Mr Holmes. The Judgethen measured that against Mr Church's evidence, noting that although Mr Abrams didnot see any punch, if Mr Church's evidence had been correct he would have been ableto see those punches as he approached both Mr Church and Mr Holmes. The Judgealso accepted Mr Abrams' evidence that Mr Holmes was still on his bike, not off hisbike as suggested by Mr Church, when he was punched by Mr Church.[39] The Judge found there was no collusion by Mr and Mrs Abrams, and his reasonfor doing so was that Mr Abrams could easily have embellished his evidence. TheJudge gave the example that Mr Abrams could have said that he did see Mr Churchpunch Mr Holmes, but Mr Abrams did not give that evidence. The Judge notes thepunching was over by the time Mr Abrams arrived, and that is consistent with theevidence of both Mr Holmes and Mrs Abrams.[40] Perhaps most pertinent to the Judge's assessment of the facts was his findingthat:2724 Conviction decision, above n 1, at [30]–[31].25 At [29] and [32].26 At [38].27 At [44].Mr Holmes was a reliable, honest and credible witness. He was upset at timeswhen he was cross-examined and a number of propositions were put to him.He was upset, I find, because his version of events was being challenged.[41] The Judge then dealt with the specifics of Mr Church's evidence, which herejected on a number of factual bases.28[42] In detailing the factual matrix of events, the Judge focused on specificelements. The matters that have been raised before me at this hearing were raised insubmissions carefully by Ms Kelly, counsel for Mr Church.[43] Although the Judge did not deal with the inconsistencies as set out in [31]above in detail or attempt to reconcile all the inconsistencies, it was open to the Judgeto make findings of credibility on the evidence he heard, assess whether theinconsistencies were important or incidental, and make a finding based on hisassessment of the evidence and the witnesses he heard, as he did here. The Judgecould make such a finding, basing his determination on his assessment of credibilityof the witnesses. It is the role of the trial Judge to make such findings of credibility.I do not consider this Court in its appellate jurisdiction should make an alternativefinding in this case, when the Judge was best placed to make the factual findings hedid.[44] The Supreme Court, in Matenga v R, observed that in considering a convictionappeal, the appeal court "must of course take full account of the disadvantage it maywell have in making an assessment of the honesty and reliability of witnesses on thesole basis of the transcript of the oral evidence."29 Appellate courts have repeatedlyheld that courts must be mindful of a trial Judge's advantage in having seen and heardthe witnesses give evidence, and being able to assess their reliability and credibility asa result.30 Without some good reason to depart from the Judge's factual findingsconcerning credibility of witnesses, this Court should be slow to disturb suchfindings.3128 Conviction decision, above n 1, at [45]–[50].29 Matenga v R, above n 17, at [32].30 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [83]–[84]; Sullivan v Police HC AucklandCRI-2008-404-152, 2 October 2008 at [30]; Ross v Police [2016] NZHC 2886 at [14]; andTafunaina v New Zealand Police [2015] NZHC 2144 at [15].31 Palmer v New Zealand Police [2016] NZHC 2633 at [16], citing Austin, Nichols & Co Inc v[45] It was open to the Judge to make his findings on the evidence and, in particular,to assess the differing versions from Mr Holmes and Mr Church of the sequence ofevents. I do not consider there is any good reason to depart from the Judge's findings.I am unable to find that there has been a miscarriage of justice.[46] This ground of appeal is dismissed.Ground 3: Refraining to comment to policeParties' positions[47] Mr Church submits the Judge erred in law by assigning a negative inference tothe fact Mr Church refrained from making a statement to the police upon his arrest.Mr Church was entitled to invoke his right under s 23(4) of the New Zealand Bill ofRights Act 1990 (NZBORA). This factor should not, he submits, have been heldagainst him or used to justify a finding of guilt.[48] The Crown submits Mr Church has mischaracterised the Judge's focus on hislawful decision not to make a statement. There was only one mention of this at trialand a single reference in the decision:32 neither of these references, when seen incontext, the Crown submits, can support the conclusion of a negative inference beingmade.Discussion[49] During the course of the evidence-in-chief from Mr Church, Ms Kelly clarifiedwith Mr Church whether he gave any explanation to police at the time of the incident.Specifically, Ms Kelly asked Mr Church whether he had told the police officer, whoarrived at his home, what had happened. Mr Church replied:Well I gave a bit of my version but I remember seeing something on TV yearsago, they don't say too much.Ms Kelly then clarified with him what he had admitted, including hisacknowledgement that he punched Mr Holmes twice.Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].32 Conviction decision, above n 1, at [20].[50] After the re-examination of Mr Church was concluded, the Judge asked forfurther clarification of Mr Church's evidence that he rang the police to make acomplaint. The Judge questioned Mr Church as to whether he followed through withany complaint to the police and asked him whether he gave the police a writtenstatement of his complaint or version of events.[51] In his decision, the Judge recorded the evidence of Constable Mackenzie, whowas called by the prosecution and was the officer in charge of the case. The Judgerecorded that the constable said the defendant did not give a DVD or written statement,but related what the defendant had told him. He said the defendant categorised theincident as a fight and that the injuries to Mr Holmes were likely to have been causedwhen he fell off his bike.[52] I am unable to uphold Mr Church's submission that the Judge drew a negativeinference by referring to the fact that Mr Church had not given a DVD or writtenstatement. The matter was before the Judge when Mr Church gave his evidence-in-chief, with Mr Church stating that he wanted to make a complaint to the police.Correctly, in my view, the Judge detailed the evidence of the officer in charge,clarifying that although there was not a DVD or written statement from Mr Church,Mr Church had made these comments to Constable Mackenzie. That is entirely properfor a trial Judge to take into account and to record it as part of his decision. It is amatter of fairness for the defendant to have his oral statements to the police recorded,as they formed part of his defence in the case.[53] I do not find that there has been any breach of NZBORA and nor do I find thatthe Judge drew a negative inference from his description at [20] of his decision.[54] This ground of appeal is dismissed.Ground 4: Restricting defence cross-examinationParties' positions[55] Mr Church submits the Judge unfairly restricted defence counsel in cross-examination at trial during the questioning of the complainant and other prosecutionwitnesses. At trial, counsel sought to establish motive for the prosecution witnessesto either deliberately or inadvertently wrongly accuse Mr Church of committing thisoffence. This included by establishing their hostility towards Mr Church. Mr Churchsubmits the Judge restricted counsel's questions on this, however. By limitingcounsel's cross-examination, the Judge undermined Mr Church's right to the minimumstandards of criminal procedure set out in s 25 of NZBORA, namely, his right topresent an effective defence. Mr Church argues that he was denied a fair and impartialtrial and his conviction was unjust.Discussion[56] Section 25 of NZBORA states:25 Minimum standards of criminal procedureEveryone who is charged with an offence has, in relation to thedetermination of the charge, the following minimum rights:(a) the right to a fair and public hearing by an independent andimpartial court:(e) the right to be present at the trial and to present a defence:(f) the right to examine the witnesses for the prosecution and toobtain the attendance and examination of witnesses for thedefence under the same conditions as the prosecution:[57] It is evident from the decision that the Judge took into account the backgroundand relationships among the various parties who gave evidence, but made it plain thatit was not his job or function to resolve past conflicts among the parties. The Judgeobserved specifically that the defence "attempted and did cross-examine a number ofprosecution witnesses to establish a lack of credibility on their part, due to the pastevents",33 but stopped Ms Kelly cross-examining about other persons who were notpresent at the hearing.33 Conviction decision, above n 1, at [31].[58] A Judge's function in managing a trial is to ensure that the evidence is relevantto the issues to be determined. This is reinforced by s 8 of the Evidence Act 2006. AJudge must also be alert to evidence involving other named people in a community,who do not have an opportunity to defend themselves if accusations are being madeabout their actions or have no part in the matter before the Court. The Judge was alertto ensuring, as he said, that he must "exercise caution over a number of aspects of theevidence" that he has heard.34[59] It is clear that the Judge did take into account the history of animosity amongthe neighbours in this community, but limited the questioning about others who werenot involved in the hearing and to matters that were relevant for determination. I donot consider there has been any breach of the minimum standards of criminalprocedure under s 25 NZBORA.[60] This ground of appeal is dismissed.Ground 5: Allegation of biasParties' positions[61] Mr Church submits the Judge displayed bias against him in breach of his rightunder s 25(a) of NZBORA. This was demonstrated, he submits, through his differentattitudes towards the defence and prosecution witnesses. The Judge consistentlyadopted positive interpretations of the prosecution witnesses, even when they wereevasive, aggressive or resistant to cross-examination. Mr Church submits that theJudge's bias is evident because he rejected Mr Church's detailed, consistent andplausible evidence. Further, the Judge got angry at Mr Church when delivering theend of his decision because of a comment he made to his wife.[62] The Crown submits there is no appearance of bias by the Judge. The Judgeappropriately took all matters into account in his decision.34 Conviction decision, above n 1, at [26].Discussion[63] It is a high standard to establish bias. The relevant principles were settled bythe Supreme Court in the leading decision of Saxmere Co Ltd v Wool BoardDisestablishment Co Ltd.35 Apparent bias will be established if a fair-minded andproperly-informed lay observer might reasonably apprehend that the Judge might notbring an impartial mind to the resolution of the question which the Judge is to decide.36This involves two stages:37(a) identifying the circumstances that may lead the Judge to decide a caseother than on its merits; and(b) the party alleging apparent bias must also articulate a logicalconnection between the matter complained of and the feared deviationfrom impartiality.[64] Ms Kelly, in advancing this ground of appeal, was doing so properly on herinstructions. However, I do not consider the Judge's conduct reached the high standardto establish bias. Clearly, the Judge ultimately had to prefer either Mr Church'sevidence or the complainant's, which he did in a reasoned manner, as I have set outabove.[65] There is one other factor which I consider shows the absence of bias on thepart of the Judge. At the end of the Judge's consideration of the evidence, he exercisedhis discretion in Mr Church's favour and amended the charge from assault with intentto injure to a charge of common assault. This reflects, in my view, an absence of bias,and although he rejected Mr Church's defence, he reduced the charge against MrChurch and imposed a fair sentence.[66] In submissions, Ms Kelly referred to the reference at the end of the Judge'soral conviction decision, where he heard Mr Church make a comment about hisfinding and told Mr Church off. For completeness, I find that this was not a display35 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.36 At [3].37 At [4], [20] and [86].of bias. It occurred after the Judge had made his decision and after the Judge hadreduced the charge in favour of Mr Church.[67] This ground of appeal is also dismissed.Result[68] The appeal is dismissed.Cull JSolicitors:O'Donoghue Webber, Nelson for Respondent