FREW v POLICE [2022] NZHC 1961

FREW v POLICE [2022] NZHC 1961 [10 August 2022]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2022-463-54[2022] NZHC 1961BETWEEN MICHAELA-JO FREWAppellantAND NEW ZEALAND POLICERespondentHearing: 9 August 2022Counsel: E R Dyche for AppellantCA Bourke for RespondentJudgment: 10 August 2022JUDGMENT OF MUIR J[Re: appeal on conviction]This judgment was delivered by me on 10 August 2022 at 4.00 pm.Registrar/Deputy RegistrarDate: .Solicitors: Pollett Legal Ltd, TaurangaIntroduction[1] On 11 February 2022 Judge T R Ingram found the appellant, Michaela-Jo Frew,guilty of assault with a weapon,1 following a judge-alone trial in the Tauranga DistrictCourt.2[2] Judge Ingram sentenced Ms Frew to 80 hours' community work for the assault,and convicted and discharged her for breaching bail, apparently inadvertently.3[3] Ms Frew now appeals against her conviction. She submits the Judge erred bydisallowing the cross-examination of a witness on her own statements under s 21 ofthe Evidence Act 2006.Facts[4] The Police summary of facts records that on 27 July 2021 Ms Frew was at heraddress. She saw the victim, her neighbour, leaving home on her bicycle. Ms Frewwent to the rear gate of her property, waited for the victim to ride past, and struck heron the head with a coffee mug, causing her to fall from the bike.[5] The victim, in her evidence, explained the background to the assault. She saidtwo of Ms Frew's friends had moved into Ms Frew's address, with two "viciousdogs".4 On the day of the assault, as the victim was leaving her address, she wassurprised by one of the dogs running loose. She confronted Ms Frew's friends aboutthe dog. One of Ms Frew's friends picked up a fallen branch and attempted,unsuccessfully, to hit the victim with it. The victim got on her bicycle and left aroundthe corner, but as she passed the back of Ms Frew's address, Ms Frew stepped out ofher gate and struck the victim with the coffee mug.[6] The victim suffered a gash and bruising on her forehead, and was taken tohospital.1 Crimes Act 1961, s 202C.2 Police v Frew [2022] NZDC 14565.3 Police v Frew [2022] NZDC 8889.4 Notes of evidence at 4, line 30.Trial[7] The prosecution called two witnesses, the victim and Constable Redman, theofficer in charge. The victim referred to a single exhibit, a book of photographs of thescene and her head wound.[8] Mr Pawson, counsel for Ms Frew, put to the victim that in her originalstatement she described not knowing what had happened to her after she was hit withthe mug. The victim clarified that she was at least sure of who had hit her.[9] Mr Pawson also suggested the victim's wound appeared to have been causedby hitting a fence, not being hit with a coffee mug. The victim insisted the wound hadbeen caused by Ms Frew striking her with a coffee mug.[10] Constable Redman read a brief of evidence. On cross-examination, MrPawson suggested, and Constable Redman accepted, that he did not find the mug orinterview Ms Frew's friends. Constable Redman explained the victim's statementmade it clear Ms Frew was the suspect for the assault.5[11] Ms Frew elected not to give or call evidence.Decision under appeal[12] Constable Redman's brief of evidence stated "I went to the [sic] Frew's addressand spoke to her about the incident which she denied happening".6[13] On cross-examination, Mr Pawson asked Constable Redman to confirmMs Frew had denied the offending, which he did:7Q. And when you interviewed the defendant she denied it and she said that sheheard some of it and that she was on the toilet at the time?A. Yes.5 Notes of evidence at 21, lines 13–17.6 Statement of Matthew Charles Redman (annexed to appellant's submissions) at line 11. ThePolice SOF also records that Ms Frew denied the offending, and claimed the victim had fallen offher bicycle because she was drunk.7 Notes of evidence at 21, lines 9–11.[14] Judge Ingram declined to consider these statements:8[7] There was a discussion about whether or not I can and should takeinto account what the defendant said to the police. The police have not put inevidence the defendant's interview and I consider I am bound by theprovisions of s 21 of the Evidence Act 2006, which provides: "If the defendantin a criminal proceeding does not give evidence, the defendant may not offerher own hearsay statement in evidence in the proceeding".[8] Accordingly, I am simply left in a position it seems to me where theonly evidence about what happened on that day is the evidence that I haveheard from the complainant.[15] The Judge found the victim had insisted she was sure Ms Frew deliberately hither, and that she did not hit a fence, despite "considerable effort" on cross-examination.9[16] The Judge concluded he was left with only one version of events. The issuewas therefore whether the Judge could accept the victim's evidence as proof beyondreasonable doubt of the offending.10[17] The Judge concluded the victim was credible. Her statement was made shortlyafter the offending, when she was in hospital and still "shaken up". This explained theuncertainty in her initial statement.11[18] The photograph of the victim's injury appeared to the Judge to be "exactlyconsistent" with being hit by a coffee mug, and unlikely to be produced by hitting afence.12[19] Turning to the elements of the offence, the Judge was satisfied that a coffeemug could be a weapon, and that Ms Frew intentionally applied force to the victim'sbody using a coffee mug, and so found the charge proved.138 Police v Frew, above n 2.9 At [9] and [10].10 At [11].11 At [12].12 At [13].13 At [14] and [15].Approach on appeal[20] An appeal against conviction proceeds by way of rehearing.14 The Court mustallow the appeal if satisfied the Judge erred in his assessment of the evidence to suchan extent that a miscarriage of justice has occurred, or a miscarriage of justice hasoccurred for any reason.15[21] A miscarriage of justice means any error, irregularity, or occurrence in or inrelation to or affecting the trial that has created a real risk that the outcome of the trialwas affected; or has resulted in an unfair trial or a trial that was a nullity.16[22] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".17 This standard means that an appellant does not have toestablish a miscarriage in the sense that the verdict actually is unsafe, only that thereis a real possibility the verdict would be unsafe.18Appellant's submissions[23] Ms Dyche, for Ms Frew, submits Judge Ingram erred in law by deciding toexclude Ms Frew's denials of the offending under s 21 of the Evidence Act 2006.Section 21 provides:If a defendant in a criminal proceeding does not give evidence, the defendantmay not offer his or her own hearsay statement in evidence in the proceeding.[24] Ms Dyche points to an exception to this rule, as explained by Lang J in R vFelise.19 The exception provides that, where the prosecution has raised part of aconversation in its evidence, fairness dictates that the defence be able to cross-examinethose witnesses on the whole conversation, including exculpatory statements of thedefendant, so as to put the conversation in its context.14 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32]15 Criminal Procedure Act 2011, s 232(2)(b) and (c).16 Section 232(4).17 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].18 At [110].19 R v Felise HC Auckland CRI-2008-092-8864, 8 February 2010; and R v Felise (No 3) (2010) 24CRNZ 533 (HC).[25] Ms Dyche submits Ms Frew's denial of the offending to Constable Redmanwas raised in examination in chief, in the Constable's formal written statement. Asthe prosecution first raised the statement, the interests of justice required the Judge toallow the defence to explore it in cross-examination.[26] Alternatively, Ms Dyche submits Ms Frew's denials were admissible to provethey were made, rather than the truth of their contents.20 They were therefore nothearsay statements and not covered by s 21.Respondent's submissions[27] The Police submit the Judge's application of s 21 was orthodox, and thequestion Mr Pawson asked in cross-examination went beyond the scope of theexceptions in Felise and Harwood.[28] Unlike in Felise, the Police submit the prosecutor in the present case did notput the substance of Ms Frew's interview with Constable Redman into evidence, onlythe fact that she denied the offending.[29] By asking "she said that she heard some of it and that she was on the toilet atthe time?", the Police submit Mr Pawson attempted to put the substance of Ms Frew'sstatement into evidence, without requiring her to give evidence under oath or to besubject to cross-examination.[30] The Police point to this passage of Harwood:21 the inadmissibility of an accused's exculpatory hearsay statement arisesbecause of the content and nature of the statement. There may well beoccasions where exculpatory, non-hearsay, statements (obviously instances ofdenial of offending) can be given in evidence. It will all depend upon whetheran accused is endeavouring to have put before the jury, not on oath, his hearsayexculpatory statements or explanations as matters of direct evidence withouthaving to give them on oath or be subject to cross-examination.20 Harwood v R [2010] NZCA 545 at [42].21 At [42].[31] The Police again submit the "latter part of the question" to Constable Redmanwent beyond a mere denial of offending and was an attempt to offer Ms Frew'sexplanation as direct evidence.Discussion[32] In Felise, the prosecution led evidence of conversations between a witness andthe defendant, in which the defendant made inculpatory statements. Counsel for thedefence sought to question the witness on the conversations in more detail, includingon exculpatory statements made by the defendant but not raised by the Crown inevidence. Counsel also sought to question the witness on another conversation thedefendant alleged he had with the witness, but which was not covered in the witness'sformal written statement.[33] Lang J referred to R v King, a decision of the Court of Appeal, for the startingpoint that s 21 "means what it says", and that the exclusion of inadmissible evidencedoes not infringe fair trial rights.22[34] He considered the purpose of s 21 was to "prevent defence counsel fromplacing a factual scenario before the jury on the basis of what the accused said to otherpersons at or about the time of the events giving rise to the charge".23 But he went on:[14] It is equally clear, however, that the section must occasionally cedepriority to higher objectives. The interests of justice and the need to ensurethat the accused receives a fair trial must remain paramount. As the Court ofAppeal observed in King, the trial Judge retains the ability to ensure that theseobjectives are met through his or her ability to control the criminal trialprocess.[35] Lang J held that "principles of fairness and balance dictated that" the defencebe able to cross-examine witness on the full context and content of discussions alreadyplaced in evidence.24 But s 21 continued to prevent the defendant from raisingdiscussions not already mentioned in the Crown's evidence.2522 R v King [2009] NZCA 607, (2009) 24 CRNZ 527 at [14] and [15]; citing R v Frost [2008] NZCA406 at [13]–[17].23 R v Felise, above n 19, at [13].24 At [19] and [28].25 At [21].[36] In a later ruling, Lang J elaborated on his findings. He held that, where theCrown had "deliberately chosen to place one aspect" of a conversation before the jury,or had "elected to raise the issue of the meetings, and what was said by one accusedduring them", fairness dictated that the defence be able to explore the conversationsfully and put them in their context.26[37] The facts of Felise are quite different from the present case. In Felise, theCrown elicited evidence of inculpatory statements made to witnesses. The defencewas able to cross-examine those witnesses on exculpatory aspects of the sameconversations, in order to put the inculpatory statements into their proper context.[38] In this case, Constable Redman referred to a formal written brief of evidencewhich contained the exculpatory statement, "I went to the Frew's address and spoketo her about the incident which she denied happening". Mr Pawson cross-examinedthe Constable on the same statement, asking the Constable to confirm Ms Frew deniedthe offending, and eliciting more detail, namely that she said she had "heard some ofit and that she was on the toilet at the time".[39] The rationale for the exception in Felise was therefore not engaged. Theevidence of the interview offered by the prosecution supported the defence case andso fairness did not require a response from the defence. To allow cross-examinationby defence counsel on the statement would, as the Police submit, simply allowMs Frew to elaborate on her version of events without being subject to cross-examination.[40] In oral argument, Ms Dyche pivoted to argue that the District Court Judgeappeared not only to rule inadmissible the comment put to Constable Redman in cross-examination, but also the defendant's statement as recorded in his evidence in chief(in context a denial that the victim had been assaulted by the defendant with a coffeemug). She referred specifically to paragraph [7] of the judgment under appeal.2726 R v Felise (No 3), above n 19, at [23] and [24].27 Above at [14].[41] I accept there is an ambiguity in the first sentence of this paragraph in terms ofwhether the Judge was referring to everything the defendant said to Constable Redmanor simply the comment that she was inside and sitting on the lavatory. But in thebalance of the paragraph the experienced Judge went on to refer to s 21 of the EvidenceAct, noting its prohibition on the defendant offering her own hearsay statement.[42] The Judge then went on to undertake an orthodox analysis of the evidencebefore him, noting that the evidence of the complainant was "unchallenged in the sensethat no one is giving me a competing version of events". He did not suggest it wasunchallenged in the sense of undenied.[43] However, even if the exculpatory statement in the police evidence in chief wasexcluded in error, I am unable to identify any miscarriage of justice.[44] That Ms Frew denied the offending was obvious to the Judge. She pleaded notguilty. Her counsel made the case that the victim had fallen off her bicycle and hit herhead, and that the victim had not clearly identified Ms Frew as the person whoseactions precipitated that fall.[45] As the Judge said, there was no alternative "evidence about what happened onthat day".28 The response recorded in the constable's written statement did not providean alternative account of the events of 27 July 2021. It merely confirmed the self-evident fact that Ms Frew rejected the victim's account.[46] In respect of the further argument that the statement was admissible not for itscontents but as proof a statement was made, again no miscarriage of justice can, in myview, arise. If it could not be used to establish the truth of the fact that Ms Frew wasinside at the time of the assault and could not therefore have been the guilty party, itcould not have added in any way materially to her defence.28 At [8].Result[47] The appeal is dismissed._________________Muir J