HWANG v NEW ZEALAND POLICE [2019] NZCA 553

HWANG v NEW ZEALAND POLICE [2019] NZCA 553 [13 November 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA687/2017[2019] NZCA 553BETWEEN JIMIN HWANGAppellantAND NEW ZEALAND POLICERespondentHearing: 5 September 2019Court: Kós P, Duffy and Woolford JJCounsel: I M Brookie and C G Farquhar for AppellantA J Ewing for RespondentJudgment: 13 November 2019 at 2.30 pmJUDGMENT OF THE COURTA The application to admit further evidence on appeal is declined.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] Following a Judge-alone trial heard on two separate days, 20 January 2017 and8 May 2017, Judge Maude found Jimin Hwang guilty of stealing a Compaq laptopcomputer valued at $290.1 He was subsequently sentenced to 70 hours'1 Police v Hwang [2017] NZDC 12372 [District Court judgment].community work and ordered to pay $290 in reparation.2 Mr Hwang appealed againstconviction to the High Court at Auckland.[2] He was not present in the courtroom on 31 October 2017 when his appeal wascalled for hearing in the High Court and so it was dealt with on the papers. In a writtenjudgment delivered the same day, Brewer J stated he was satisfied from his reading ofthe evidence and the written submissions available to him that there was no merit inMr Hwang's appeal, and so the appeal was dismissed.3[3] Mr Hwang then applied to this Court for leave to bring a second appeal againstconviction. For reasons given in its judgment dated 27 September 2018,4 this Courtgranted leave for Mr Hwang to bring a second appeal against conviction, which weheard on 5 September 2019.Summary of facts[4] Mr Hwang met the complainant, Mr Leang Kang, through a Facebook groupthat Mr Hwang had established as a forum for new migrants to connect.When Mr Hwang needed a place to stay, Mr Kang invited him to stay with his familyin their apartment. Mr Hwang moved in around 19 April 2016 and was given a key.Around the same time, Mr Kang purchased a Compaq laptop computer on Trade Mefor $290.[5] On 22 April 2016, Mr Kang's partner was at home in bed. At 10.30 pm sheobserved Mr Hwang walking along an exterior corridor and unlocking the door tothe apartment. She observed him take the laptop computer from the lounge and placeit in his bag. She did not speak to or confront Mr Hwang as she assumed he hadreached an agreement with her husband about it. But, as Mr Kang explained, he hadnot given permission for him to take the laptop computer away. Mr Hwang did notreturn to the apartment after taking the laptop, which was never recovered.2 Police v Hwang [2017] NZDC 15059.3 Hwang v Police [2017] NZHC 1171.4 Hwang v Police [2018] NZCA 391.[6] When Mr Kang posted about the theft on Facebook, Mr Hwang's first response(by Facebook message to Mr Kang) was "I thought you already know". Mr Kangreplied "I never let you take my laptop". After a few days Mr Hwang replied "I don'thave it".Grounds of appeal[7] Mr Hwang advances three grounds of appeal:(a) Material fresh evidence has come to light since the District Court trialthat casts considerable doubt on the complainant's account.(b) The trial Judge erred in his treatment of Mr Hwang's evidence whichresulted in a reversal of the onus of proof.(c) The trial Judge erred in his assessment of the evidence given bythe complainant's wife who identified Mr Hwang as the offender whounlocked the door to the apartment. The Judge should have entertaineda reasonable doubt about the totality of her evidence.Fresh evidence[8] Mr Hwang filed two affidavits in support of his appeal which form the basisfor the fresh evidence ground of appeal. The first was filed on 23 July 2018 when hewas self-represented and the second on 3 May 2019 following instruction of counsel.The respondent filed an affidavit in response from the complainant dated11 August 2018. Both parties filed notices of cross-examination for the hearing.We heard oral evidence from both Mr Hwang and the complainant.[9] Mr Hwang's first affidavit dated 23 July 2018 attached a USB stick containinga range of documents, photos and videos, including messages allegedly sent andreceived on 20 June 2017 via an application called Kakao Talk. Both of Mr Hwang'saffidavits attached screenshots of the Kakao Talk messages taken on his phone.The complainant's affidavit attached text messages of a conversation, he says, whichoccurred with Mr Hwang between 10 and 27 April 2016. The complainant denies thathe sent or received messages from Mr Hwang on an application called Kakao Talk.He has never heard of, or used, Kakao Talk.[10] The range of documents, photos and videos contained in the USB stickincluded photos of social gatherings, photos of a child and house, text messagesbetween Mr Hwang and the complainant, a video dated 18 April 2016, photos takenon a trip to Tauranga, a video dated 4 May 2016, a letter from the complainant dated27 June 2016, 111 calls dated 21 July 2016, screenshots of the complainant's Facebookpage, as well as the disputed Kakao Talk messages.[11] With the exception of the Kakao Talk messages, all the remaining material wasavailable at the time of Mr Hwang's trial ending in May 2017. Mr Hwang's counselchose, however, not to produce it. It is, in that sense, not fresh.[12] Failure by trial counsel to follow instructions is not alleged and without awaiver of privilege and sworn evidence from Mr Hwang and trial counsel, we cannotsay that counsel was wrong not to produce the evidence at trial. It also does not appearto us to be of specific relevance to the issue of identification, the sole issue at trial.[13] In the end, appellant counsel only pursued the application for fresh evidenceto be admitted in respect of the Kakao Talk messages. Although they may be fresh inthat they are dated 20 June 2017, some six weeks after the Judge's decision, we havereal doubts about their credibility and cogency. Firstly, it is not clear why Mr Hwangand the complainant would be communicating about rent for the few days Mr Hwangstayed, 14 months after the theft of the laptop computer and six weeks after the Judge'sdecision. Secondly, the writing style and tone of the messages is quite different tothe text messages which the complainant accepted he sent and received between10 and 27 April 2016, around the time of the theft.[14] Thirdly, having listened carefully to the complainant's evidence, we wereunable to conclude that he was lying when he told us that he had never heard of orused Kakao Talk. As a result, we are left with real doubt as to the authenticity andreliability of the Kakao text messages.[15] In the end, we are not satisfied that the test for admission of fresh evidence ismet. It is not fresh (with the possible exception of the Kakao Talk messages) nor is itcredible and cogent. The application to admit fresh evidence is therefore declined.Reversal of onus of proof[16] In the District Court decision, the Judge made reference to Mr Hwang's lackof clarity about when he made arrangements to move into the complainant'sapartment. Mr Hwang initially said he believed that he moved into the apartment inMarch 2016, but later could not recall what date or month he had done so. As the dateof the alleged offending was 22 April 2016, and his evidence was that he had stayedthere for less than a week, the Judge observed that his uncertainty on the earlier datewas "surprising".5 Counsel submits that the Judge then went on to hold thatMr Hwang's vagueness supported the police case and the identification of him bythe complainant's wife as entering the apartment that night. The Judge stated:6The real doubt as to why Mr Hwang was vague as to when he moved intothe complainant's house but at the same time sure about his travel on 22 Aprilto Tauranga, he not, when questioned about it, suggesting that it was not theday after he said that he ceased living in the complainant's house. Indeed hehad not returned to their home at night he said, because there was no bed.[17] Counsel submits that it was unfair for the trial Judge to treat this issue as oneaffecting Mr Hwang's credibility. Further, Mr Hwang's equivocation as to when hemoved into the apartment was not logically germane to the key issue of identity.Finally, counsel submits the trial Judge was wrong to use the adverse finding as to hiscredibility as a factor that assisted the police in proving its case. This amounted toa reversal of the onus of proof.[18] With respect, the Judge's comments are somewhat difficult to understand.There are at least two available interpretations. On one view, the Judge was notsuggesting that Mr Hwang's vagueness about dates added to the Crown case, rather hewas explaining why he regarded Mr Hwang's evidence as to his alibi lackedcredibility. This was necessary to find the element of identity proved beyondreasonable doubt. Alternatively, the Judge was pointing to the implausible5 District Court judgment, above n 1, at [18].6 At [19(e)].coincidence that Mr Hwang had decided to move out of the complainant's apartmentthe very night the laptop computer was stolen. On this view the timing of his stay atthe address did legitimately add to the Crown case.[19] On appeal, under s 232(2)(b) of the Criminal Procedure Act 2011, the appealcourt must allow the appeal if it reaches a different finding on the available evidence.As usual, it is for the appellant to establish error and this Court must take account ofthe trial Judge's advantage in assessing witness credibility.[20] The Judge had an obvious advantage when assessing Mr Hwang's credibility,being able to form a view as to what sort of person he was.7 Even assuming the Judge'sreliance on his vague answers was wrong, it could lead to miscarriage only if thisCourt considered his rejection of Mr Hwang's evidence was unjustified.The assessment this Court must undertake relates to the Judge's reasons overall,keeping in mind this was an oral judgment about a low-level theft. As theSupreme Court said in Sena v Police:8 imperfection of expression is practically unavoidable, particularly in oraljudgments. Accordingly, appellate courts should assess reasons contextually,in light of the evidence given and allowing for the burden for judges ofbalancing the need for prompt determination of criminal cases with otherworkload requirements. The adequacy (or not) of reasons must be assessed inlight of the type of case (including seriousness) and the issues involved.[21] We accept the Crown's submission that, read as a whole, Mr Hwang's vagueanswers were not the Judge's sole reason for rejecting his evidence. The real difficultywith Mr Hwang's account was the weight of the Crown evidence contradicting it.The Judge did not, in those circumstances, reverse the onus of proof on the police.Complainant's wife's evidence[22] Counsel for Mr Hwang notes that the Judge stated there was doubt aboutthe evidence of the complainant's wife, who was the sole witness identifyingMr Hwang as the person who took the laptop computer. The Judge described herclaimed ability to identify him in the lounge as questionable because of the poor7 Sena v Police [2019] NZSC 55 at [38]–[40].8 At [37].lighting in the room at the time.9 The only light was from a computer modem screen.The Judge also noted that the complainant disagreed with his wife as to the curtainingin the living room, saying that they were a thicker cloth and would not allow lightthrough them.10[23] Despite these issues, the Judge relied on the complainant's wife's evidenceregarding her initial view of Mr Hwang in the exterior corridor. She said she was ableto identify Mr Hwang through the lace curtains which covered the bedroom window.His opinion was that that view assisted in overcoming any doubts aboutthe identification.11[24] Counsel submits, however, that a review of the wife's evidence revealsa number of inconsistencies in respect of her view of the alleged offender fromthe bedroom to the exterior corridor:(a) At the start of her evidence-in-chief she states that she saw Mr Hwangwalk along and unlock the door.(b) She then says that she was not really watching him at the time, but onlyrealised it was him when he unlocked the door.(c) When she heard a noise in the corridor, she initially thought it was herhusband. She identified Mr Hwang a bit later.(d) When the door was unlocked, she looked up and saw him from the sideand referred to the upper half of his body.(e) However, she later clarifies that she could not see the front door fromthe bed that she was sitting on at the time.(f) Counsel for the prosecutor then went on to ask her a number of leadingquestions in re-examination, including the following exchange:9 District Court judgment, above n 1, at [19].10 At [14]–[15].11 At [19(a)].Q. You said you heard footsteps you thought it was yourhusband, is that correct?A. Yeah, the steps along the corridor — she thought it was herhusband.Q. But you saw Mr Hwang through your bedroom at your frontdoor?A. Yeah I saw him.Q. Was the person at your front door the same person that enteredyour apartment?A. Yes.[25] When examined carefully, counsel for the appellant submits that the effect ofthis evidence is that the complainant's wife would have only had a brief glance of theperson as he (or she) passed the bedroom window before unlocking the door andentering the apartment. She describes herself how she thought it was her husband.The inference to be drawn is that she had no reason to look up and check who it was.[26] Counsel submits that the appropriate caution as required by s 126 ofthe Evidence Act 2006 is absent from the judgment. The complainant's wife isthe only witness that can identify the offender and therefore Mr Hwang's guilt restsentirely on her evidence. Although this comes within the recognition evidence sub-set of identification evidence, counsel notes that the complainant's wife had only metMr Hwang two or three times since he had been living there.[27] Further, counsel submits that it is inappropriate for the Judge to rely onthe evidence of the complainant's wife in circumstances where he had already reachedthe view that her evidence regarding identification in the living room was in doubt.This was particularly so given that the thrust of her evidence was that she identifiedMr Hwang once he was inside.[28] Further, the evidence about the identification of Mr Hwang in the exteriorcorridor is similarly inconsistent and unreliable. The overall effect of her evidence isthat she would have been unable to identify a person in the exterior corridor becauseof the limited view that she had of the person from her bed.[29] Counsel, therefore, submits that the evidence of the complainant's wife shouldnot have been relied upon by the Judge, even in part. He did not exercisethe appropriate caution in assessing evidence of this type and ought to have entertaineda doubt about the entirety of her evidence. It follows that this Court should reacha different conclusion on whether the charge has been proved beyond reasonabledoubt.[30] Section 126(3) of the Evidence Act refers to the need for caution if evidenceof identification is disputed. It provides:126 Judicial warnings about identification evidence(3) If evidence of identity is given against the defendant in any criminalproceeding and the defendant disputes that evidence, the court mustbear in mind the need for caution before convicting the defendant inreliance on the correctness of any such identification and, inparticular, must bear in mind the possibility that the witness may bemistaken.[31] The Judge was not required to refer to s 126 in his judgment. In any event,he did exercise caution when he referred to the difficulty with identification ofMr Hwang when he was in the darkened lounge.[32] There was, however, sufficient direct and circumstantial evidence ofidentification for the Judge to find identity proved beyond reasonable doubt.This included:(a) There was no evidence of break-in. The evidence was that Mr Hwangwas the only person, apart from the complainant and his wife, who hada key to the apartment.(b) Although Mr Hwang had travelled to Tauranga that day to look forwork, he arrived back in Auckland Central by bus at around 9.20 pm.It was about half an hour walk from the bus terminal tothe complainant's apartment. Mr Hwang therefore had the opportunityto commit the theft as the offender entered the apartment at about10.30 pm. Mr Hwang denied he was the offender and said he had spentall night at an internet café before going to the Tepid Baths when itopened the next morning.(c) Her initial identification was confirmed when the offender openedthe front door to the apartment with a key and walked to Mr Hwang'sbedroom before returning to the lounge, where he put the laptopcomputer into a black sports bag with a logo. Mr Hwang acknowledgedowning a black Puma bag. There was some light in the lounge froma computer modem screen.[33] There were other factors as well which pointed to Mr Hwang as the offender.Mr Hwang said he had decided not to stay in the apartment that night becausethe complainant has not provided him with a bed and he had to sleep on the floor.When confronted on Facebook by the complainant, Mr Hwang replied "I thought youalready know [I had taken it]". Based on all the evidence, the Judge did not err infinding identity proved beyond reasonable doubt.Result[34] The application to admit further evidence on appeal is declined.[35] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent