CARHUAMACA v NEW ZEALAND POLICE [2018] NZHC 3206

CARHUAMACA v NEW ZEALAND POLICE [2018] NZHC 3206 [6 December 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2018-419-0052[2018] NZHC 3206BETWEEN JIMMY OMAR HUZCO CARHUAMACAAppellantAND NEW ZEALAND POLICERespondentHearing: 6 December 2018Appearances: MLA Wright for the AppellantL C Hann for the RespondentJudgment: 6 December 2018ORAL JUDGMENT OF JAGOSE JSolicitors:Rae & Wright Limited, MorrinsvilleAlmao Douch, Hamilton[1] On 22 June 2018 the appellant, Jimmy Huzco-Carhuamaca, was convicted offour charges of violence in a domestic setting, following a five-day judge-alone trialin the District Court in Hamilton.1 He has since been sentenced to six months' homedetention.[2] Jimmy now appeals against his conviction on those charges, essentially arguingthe Judge failed to give proper weight to inconsistencies in the complainant's account,and to the corroboration of Mr Huzco-Carhuamaca's account provided by audiorecordings of conversations between him and the complainant.The alleged incidents of domestic violence[3] The charges relate to four separate incidents of violent or threatening behaviouralleged to have occurred between January and October 2017.[4] Mr Huzco-Carhuamaca and the complainant are Peruvian, and emigrated toNew Zealand in October 2011 and January 2013 respectively. Shortly after thecomplainant's arrival, in January 2014, they married and had a child later that year.Their relationship quickly became dysfunctional. As the Judge found, it was:2 plainly deteriorating with neither able to emotionally support the otherwell. Arguments seem to have been regular and genuine communicationsbetween them seem absent other than about the day-to-day practicalities. Thispresumably was painful and sad for both of them.[5] Perhaps in strong illustration of this dysfunction, Mr Huzco-Carhuamaca hada habit of overtly and covertly recording the complainant, even covertly filming withinthe house. He was not alone in that. The complainant also recorded some of theirinteraction. This is how a number of audio recordings of the alleged incidents wereable to be provided to the Court.1 Police v Huzco-Carhuamaca [2018] NZDC 15727.2 At [11].—first charge: injuring with intent to injure[6] The first charge, injuring with intent to injure,3 related to offending which, ittranspired at trial, likely occurred in early January 2017. The complainant's evidencewas she was in a room with her daughter when Mr Huzco-Carhuamaca entered,annoyed, and asked her to give him her phone. He believed the complainant wastalking to someone else. When the complainant refused, Mr Huzco-Carhuamacakicked her wrist.[7] It was not disputed by the defence the complainant had an injury to her wrist.However, Mr Huzco-Carhuamaca's evidence was this incident did not happen, and thecomplainant had an underlying injury she had sustained in Peru which was aggravatedwhen her daughter kicked her wrist.[8] The Judge found this charge proven and entered a conviction.—second charge: injuring with intent to injure or male assaults female[9] The second charge, injuring with intent to injure or alternatively male assaultsfemale,4 arose out of an argument between the complainant and Mr Huzco-Carhuamaca on 10 April 2017. The complainant's evidence was that on the morningin question, she was preparing to take her daughter to playschool. Because Mr Huzco-Carhuamaca was at home that day, she asked if he wanted to come with her. He saidhe did not. An argument appears to have broken out about the keys to the car, and thecomplainant said Mr Huzco-Carhuamaca pushed her against the wall and startedchoking her. She said this lasted for about a minute. She said after this, she did notleave the house for 15 days because of bruising to her neck.[10] Mr Huzco-Carhuamaca acknowledged that there had been an argument overkeys about this time, but gave evidence it occurred in a very different context. Hisevidence was he wanted the car to go to the library on 10 April 2017, because he hada paper due in a course he was participating in. He said the complainant bit him,3 Crimes Act 1961, s 189(2).4 Section 194.grabbed his arm, and that he had merely fended her off. He said he eventually removedthe keys without touching her, and his efforts at reasoning with her were unsuccessful.[11] Because of an inconsistency between the complainant's evidence about leavingthe house, and evidence she had attended an Easter church service on 11 April 2017,the Judge did not accept the evidence choking had occurred. However, overall shepreferred the complainant's evidence that an assault had occurred and entered aconviction for male assaults female.—third charge: male assaults female[12] The third charge, male assaults female, related to an argument which occurredon 5 October 2017. The complainant found messages in Mr Huzco-Carhuamaca'sphone suggesting he had been communicating with another woman, named Melissa.The complainant contacted this woman, which according to the complainant made MrHuzco-Carhuamaca furious. He wanted to know why she had contacted Melissa, andshe wanted to know what his relationship with her was. The complainant said she waspushed to the floor by Mr Huzco-Carhuamaca, leaving her unconscious for a time. Shesaid the side of her face was bruised and swollen, and she felt a punch or kick to herback.[13] Mr Huzco-Carhuamaca also did not deny this argument occurred. However,his evidence was the complainant knocked his phone away, and during a struggle forthe phone she fell on the ground and hit her face. He denied hitting the complainant,and denied that she became unconscious.[14] The Judge accepted that the complainant's account was credible, and herevidence provided a cogent explanation for bruises observed by others and visible inphotographs taken the following day. She found Mr Huzco-Carhuamaca's evidencewas not accurate or cogent; neither did it raise a reasonable doubt.—fourth charge – threatening to kill[15] The final charge of threatening to kill,5 related to an interaction shortly after,on 8 October 2017. The complainant's evidence was Mr Huzco-Carhuamaca arrivedat the house with an associate who she had not met and offered her some cake whichhe had made to ask for forgiveness. She refused, because she was not prepared toforgive him. At that point, she said that Mr Huzco-Carhuamaca threatened to kill her.She believed Mr Huzco-Carhuamaca had brought his associate with him in order tointimidate her.[16] Mr Huzco-Carhuamaca also acknowledged this interaction took place.However, he denied there being any threat. His evidence was he simply baked a cakeand invited his friend over.[17] The Judge accepted the complainant's evidence this threat was made and, incontext, would have made the complainant feel very intimidated. She pointed out thatthe following day the complainant left the house to live with two close relatives whoalso gave evidence, Carlos Garces-Manoz and Yakson Garces. She also entered aconviction on this charge.Approach[18] Mr Huzco-Carhuamaca's counsel, Matthew Wright, points to a number oferrors in the Judge's approach which he submits have given rise to a miscarriage ofjustice. He painstakingly contends line-by-line for inconsistencies in the evidencewhich the Judge should have resolved in Mr Huzco-Carhuamaca's favour, andreinforces that by a paragraph-by-paragraph dissection of the Judge's decision.[19] By miscarriage of justice, Mr Wright means – if I am satisfied any of theseerrors are made out, and there is a "real risk" the outcome of the trial was affected: "areasonable possibility that a not guilty (or more favourable) verdict might have been5 Section 306.delivered if nothing had gone wrong" – I must allow the appeal.6 Otherwise I mustdismiss the appeal.7[20] I am to make my own assessment of the facts, independently of those found bythe Judge (with appropriate deference for her advantage in seeing and hearingwitnesses give evidence).8 But that is a review function: that I might disagree with theJudge's factual assessment is not enough – "[s]omething more is required to meet the'real risk' test".9[21] Last, Mr Huzco-Carhuamaca must persuade me a miscarriage of justiceoccurred.10Did the Judge err?—argument on appeal[22] As I have said, numerous specific errors in relation to the Judge's findings oneach charge are advanced.[23] I mean no disrespect for Mr Wright's industry by reducing his submissions tothese two central allegations:(a) the Judge placed insufficient weight on important inconsistencies in thecomplainant's evidence, which ought to have led her to the conclusionthe complainant's evidence was not reliable or credible; and(b) the Judge did not give proper weight to the transcripts of Mr Huzco-Carhuamaca's audio recordings, which corroborated important aspectsof his evidence.6 Criminal Procedure Act 2011, s 232(2); 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 730 at [110].7 Section 232(3).8 Austin Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].9 Sena v Police [2018] NZCA 203 at [9].10 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].—my analysis[24] The Judge delivered a comprehensive oral judgment which contained adetailed analysis of the vital evidence in respect of each charge.[25] There is little doubt the complainant and Mr Huzco-Carhuamaca were in afraught relationship, involving elements of domestic violence. That much is clear fromthe transcripts of recordings made by Mr Huzco-Carhuamaca, as well as the consensusbetween the complainant and Mr Huzco-Carhuamaca that many of the argumentspreceding the incidents of domestic violence did occur. There was also evidence fromMr Garces-Manoz and Mr Garces, who the Judge accepted were credible and reliablewitnesses, of an incident involving Mr Huzco-Carhuamaca pushing the complainanthard against a wall and letting air out of the tyres of the car she was using.[26] It was necessary for the Judge to assess the complainant's credibility in thatcontext. Plainly, she did so, and was satisfied the complainant was a credible victimof domestic violence. For example, she found:11 presenting normally can be behaviour which is not inconsistent with havingbeen a victim of an assault. Common knowledge is that victims of assaults,violence and domestic violence go to significant lengths to hide and deny theirsituation and so, whilst alive to the possibility, I do not conclude [thecomplainant's decision to leave the house following one attack] wasinconsistent with having been the subject of an assault.Later the Judge found there was nothing in the fact the complainant did not tell MrGarces-Manoz and Mr Garces of the assaults at the time, because it is not inconsistentfor victims of domestic violence to hide abuse from friends and family.12[27] These findings are unassailable. The Judge was right to view the challenges tothe complainant's evidence in light of the domestic violence context of the offending.Moreover, as the Judge concluded, the complainant presented as a largely accuratewitness in respect of the critical events, with one exception. She also found thecomplainant appeared distressed at having to recount certain events.13 Other than herinconsistency in relation to the choking event, which the Judge found did not reduce11 At [8].12 At [70].13 At [7].the value or credibility of her other evidence and which I deal with shortly, the Judgeconsidered the complainant's evidence to be cogent and reliable.14 In arriving at thisconclusion, I do not downplay the benefit the Judge had of hearing the evidence overfive days, including the two full days the complainant spent giving evidence.[28] The most significant inconsistency in the complainant's account was herevidence, after the choking incident, she did not leave the house for 15 days becauseof significant bruising. However, the Judge was alive to this inconsistency. It led herto find the alternative to charge two, male assaults female, proved, rather than the moreserious charge of injuring with intent to injure.15 She was not satisfied beyondreasonable doubt the choking occurred, but she was so satisfied of at least an assault.[29] I see no error in the Judge's conclusion this inconsistency did not affect thecomplainant's credibility more broadly. The complainant otherwise presenting as acredible and reliable witness, and her account was corroborated in a number of ways.Additionally to the evidence of Mr Garces-Manoz and Mr Garces, there was evidencefrom others in the complainant's social circle, including a Ms Dibble, who gaveevidence she had observed bruising on the complainant on earlier occasions. Thecomplainant's employer, Ms Voyce, also observed bruising, and it was she whoeventually called Women's Refuge at the end of November 2017. Ms Voycemaintained her observations under cross-examination. A number of prior consistentstatements of the complainant, alleging assaults by Mr Huzco-Carhuamaca, appear inthe transcripts of the audio recordings he made.[30] And, aside from the inconsistency just discussed, the inconsistencies pointedto by Mr Wright all concern peripheral matters which do not impugn the complainant'scredibility in a fundamental way. For example, in relation to the first charge, MrWright submitted the complainant retracted her statement in a police interview thather wrist was bruised black after the assault during her evidence in court. She also hadtold police the reason her wrist was not black by the time she visited the doctor, anumber of days later, was because Mr Huzco-Carhuamaca gave her bruising cream.Her evidence in court was her wrist was not black, and the cream was for pain not14 At [8].15 At [69]-, [71].bruising. Few conclusions can be drawn about the complainant's credibility from thisretraction, which may in any event be explicable by the fact all evidence given in courtwas through translators, and English is not the complainant's first language. Moreimportantly, it was not in dispute the complainant's wrist was injured, or the argumentdescribed by her occurred. Mr Garces-Manoz and Mr Garces gave evidence thecomplainant could not carry her child or cook meals for a time.[31] Another challenge made to the complainant's credibility relates to charge three.Mr Wright submits the audio recording reveals the complainant telling Mr Huzco-Carhuamaca she is "well advised" she could obtain residency if she reported MrHuzco-Carhuamaca, which she denied during cross-examination. This submission ismisconceived. As the Judge correctly noted, the complainant's claim she was welladvised related to advice she had received she was a victim of family violence. Sherejected trial counsel's assertion in cross-examination she told Mr Huzco-Carhuamacashe was "well advised and could obtain residency that way".[32] By contrast, the Judge found Mr Huzco-Carhuamaca was forceful and carefulas a witness, and failed to reveal any insight into his habit of covertly recording andfilming within the house.16 She commented his evidence was unsettling, oftenincluding self-serving positives and leaving out the negatives.17 The Judge had goodreason to reject the evidence of Mr Huzco-Carhuamaca. Particular explanations givenby him were implausible, such as his explanation their infant daughter kicked thecomplainant's wrist with sufficient strength to cause the injury described in theevidence. Moreover, his evidence was inconsistent with other evidence the Judgefound compelling.[33] The Judge also concluded, having admitted the transcripts of recordings madeby Mr Huzco-Carhuamaca into evidence, little weight could be placed on them. Asfact-finder, she was entitled to place whatever weight on them she considered wasappropriate. The Judge found the transcripts covered only portions of conversationsbetween the complainant and Mr Huzco-Carhuamaca. She noted, because Mr Huzco-Carhuamaca knew when conversations were being recorded, an inference was16 At [14].17 At [21].available he subconsciously or deliberately captured self-serving statements andbehaviour.18 She gave examples of that.19[34] Having reviewed the transcripts myself, I agree this inference is clearlyavailable. Moreover, the transcript of the conversation where Mr Huzco-Carhuamaca'sassociate is present in particular appears to be in two parts, as the Judge found, and thestart and end points of the transcript are not explained. Overall, I agree the recordingsare largely unhelpful, and at times appear contrived and incomplete.[35] For those reasons, I am not satisfied any of the contended 'errors' are madeout. Even if there was room for a different view on some facts, I cannot identify anyreal risk a different outcome might have resulted. Certainly there is no reasonablepossibility of not guilty verdicts. No miscarriage of justice has occurred.Result[36] The appeal against conviction is dismissed.—Jagose J18 At [15].19 Eg, at [44].