FIFITA v NZ POLICE [2021] NZHC 1031

FIFITA v NZ POLICE [2021] NZHC 1031 [10 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000118[2021] NZHC 1031BETWEEN NELSON FIFITAAppellantAND NEW ZEALAND POLICERespondentHearing: 3 May 2021Appearances: P Masani for AppellantOS Klinkum for RespondentJudgment: 10 May 2021JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 10 May 2021 at 3.00pmRegistrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandTo: P Masani, AucklandIntroduction[1] Nelson Fifita was charged with two charges of assault with intent to injure.1After a judge-alone trial on 15 January 2020 before Judge J M Jelas, he was convictedof both charges.2 He now appeals those convictions on the basis Judge Jelas drewunreasonable inferences that led to her dismissing Mr Fifita's evidence, and findingthat he was guilty beyond a reasonable doubt.The evidence at trial[2] Mr Fifita and the victim had been in a relationship for two to three years. Inearly October 2018, they discovered that the victim was pregnant with their first child.The charges related to two alleged incidents of violence that took place on theevening/early hours of the morning of 9 and 10 October 2018.The first incident[3] Mr Fifita's narrative was as follows. On the evening of 9 October 2018, he toldthe victim that he was going out. She became angry, and wanted him to stay at home,although Mr Fifita said that he would not call it an argument. There was no violence.He said that it was common for him to go out without his partner, and she got madwith him that night about it, but he just left.[4] The victim's narrative was that she and Mr Fifita had argued about Mr Fifitagoing out without her that evening. During the argument, she said he pushed her hard,causing her to land on the ground. Once on the ground, he punched her at least onceand kicked her twice. Neighbours heard the arguing and came to intervene (thoughevidently did not witness anything; they were not called to give evidence). Mr Fifitaleft the address, as did the victim, who walked to a friend's house to call her mother.The second incident[5] There was no dispute that the victim left Mr Fifita's house and made her wayto her mother's home. In the early hours of the morning of 10 October 2018, Mr Fifita1 Crimes Act 1961, s 193. Maximum penalty three years' imprisonment.2 Police v Fifita [2020] NZDC 11774.and the victim texted each other. Mr Fifita wanted to visit the victim to apologise. Hecame to her mother's house at about 3:30 am. Both the victim and her mother wereawake. The unchallenged evidence was that Mr Fifita and the victim were "lovey-dovey" towards each other.[6] Mr Fifita said that the reason for his apology was for going out at night withoutthe victim. The victim said that it was because of "what happened". Judge Jelas saidin her written reasons for verdicts that she inferred this was a reference to the allegedassault in the first incident.[7] When Mr Fifita got up to leave and left the house, the victim went with him.The victim said that outside the address there was a discussion about a phone thatMr Fifita refused to give her. She then saw a female friend of Mr Fifita's in the driver'sseat of the car in which Mr Fifita had arrived. The victim accepted she was angry andjealous. She took the keys from the ignition and ran back towards her mother's house,when she tripped. On the ground, she said that Mr Fifita kicked her once or twice. Shecalled out to her mother for help, and Mr Fifita left the address. Her mother did notsee the alleged second assault (Mr Fifita having left by the time she arrived outside).[8] In contrast to the victim's account, Mr Fifita says that the victim went ahead ofhim when he left the home. She took the keys from the car, and then an argumentensued. The victim, Mr Fifita says, told him to fuck off and that she was going to callthe cops. He then left the address. Again, he said there was no violence.The law[9] Section 232 of the Criminal Procedure Act 2011 provides that I must allow thisappeal if the Judge erred in her assessment of the evidence to such an extent that amiscarriage of justice has occurred, or in any case if a miscarriage of justice hasoccurred for any reason.[10] A miscarriage of justice means any error, irregularity, or occurrence in or inrelation to, or affecting, the trial has created a real risk the outcome of the trial wasaffected. In Haunui v R, the Supreme Court stated that:3The question under s 232(4)(a) is 'whether the error, irregularity or occurrencein or in relation to or affecting [the] trial has created a real risk the outcomewas affected'. That question 'requires consideration of whether there is areasonable possibility another verdict would have been reached'. If the answerto that question is 'no', that is the end of the matter and the appeal will bedismissed. If the answer to that question is 'yes', the appeal court then askswhether it is sure of guilt. If the answer is 'no', the appeal will be allowed. Ifthe answer is 'yes', the court determines the error did not in fact create a realrisk that the outcome was affected and the appeal will be dismissed.[11] The Supreme Court has clarified the approach to be taken to an appeal pursuantto s 232, in Sena v R.4 The appeal proceeds as a rehearing. I must come to my ownassessment of the evidence and determine the appeal accordingly.5 Nonetheless, theappellant must show some error in the trial judge's reasoning, and – importantly forthis case – I must exercise "customary caution" in overturning the Judge's credibilityfindings. 6 The trial Judge had the advantage of hearing all of the evidence and couldform a first-hand view as to the witness's credibility and reliability, and what sort ofpeople the different witnesses were. This cannot be easily duplicated by reading thenotes of evidence. As the Court in Sena put it:7More generally, the appellate process in which appellate judges are taken,sometimes rather selectively, to the aspects of the evidence on which counselrely does not replicate the advantages of a trial judge which we have justdescribed.The District Court decision[12] Judge Jelas first addressed the question of whether Mr Fifita's evidence wasplausible and/or reliable. If she accepted it, that necessarily meant he should be foundnot guilty. She correctly noted that even if it raised a reasonable doubt, again, heshould be found not guilty. If she did not find it plausible, the Judge (again correctly)3 Haunui v R [2020] NZSC 153 at [67].4 Sena v R [2019] NZSC 55.5 At [38]. This approach is similar to that in Austin, Nichols & Co Inc v Stichting Lodestar [2007]NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768 in respect of civil appeals conducted byway of rehearing.6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18PRNZ 768 at [13], cited in Sena v R [2019] NZSC 55 at [38].7 Sena v R [2019] NZSC 55 at [40].noted that she then needed to ask whether the Police evidence proved Mr Fifita's guiltbeyond a reasonable doubt.[13] Judge Jelas considered that there were two reasons why Mr Fifita's evidencewas not credible. First, she observed that even on Mr Fifita's own narrative, it wascommon in his relationship with the victim for him to go out without her and for herto be unhappy about this. The Judge considered that going to visit the victim'smother's house in the early hours of the morning constituted a special trip, whichwould require some special reason to apologise, over and beyond normal behaviour inthe context of their relationship. Second, Judge Jelas noted that Mr Fifita did not stayat the address and did not seem to ever have any intention of staying. Mr Fifita'snarrative was that he was apologising for behaviour (going out without his partner)that he was immediately and openly repeating.[14] For these reasons, Judge Jelas considered Mr Fifita's evidence implausible andput it aside. She then considered the remaining evidence, and found that the witnesseswere credible and consistent. She noted that the couple's home had been their homefor some years. It was not plausible, she considered, that the victim would have left itto stay with her mother if there had simply been an entirely ordinary argument.Judge Jelas therefore considered an apology for an assault to be more plausible thanan apology for simply going out. She also noted that in the context of the allegedsecond assault, the victim had called out for her mother to help, and told Mr Fifita thatshe would call the Police, which, again, was consistent with the victim's narrative.[15] Judge Jelas observed that the victim did not suffer any injuries as a result ofthe alleged assault. Mr Masani for Mr Fifita cross-examined the victim on that point.Judge Jelas did not consider that to be determinative, drawing on her expertise as aDistrict Court Judge. On her assessment of the evidence overall, she concluded thatshe was sure that Mr Fifita had assaulted the victim as alleged and found him guiltyaccordingly.The appellant's submissions[16] Mr Fifita submits that Judge Jelas drew unsubstantiated inferences that led toa miscarriage of justice. These were:(a) finding that the apology was for the alleged violence, and not simplyfor going out at night without the victim;(b) finding that the assault occurred on the basis that the appellant left afterthe victim threatened to call the Police;(c) finding that Mr Fifita's evidence was not credible for the above reasons;and(d) finding that it was proven beyond reasonable doubt that Mr Fifita wasguilty.[17] Mr Masani, counsel for Mr Fifita, submits that since Mr Fifita's family homeand that of the victim's mother were very close together, the trip to make the apologywas not a "special trip" as suggested by the Judge. Furthermore, he submits that it iscommon for partners to apologise to each other for going against one another's wishes.He submits that Mr Fifita's intention to go out again directly after the apology is notrelevant: as Mr Fifita said, that was a pattern in the couple's relationship. He notesthat the victim did not specify what the apology was for, and suggests that Judge Jelas'made an unjustified inference in assuming it was for an earlier assault.[18] Counsel submits that if the first assault had been as serious as suggested, thenthe victim would likely have called the Police. He submits that as she did not, thisundermines the credibility of her evidence. Similarly, Mr Fifita's submission is thatgiven the stated nature of the alleged assaults, there ought to have been at least somephysical injuries. That there was not also ought to count against the victim'scredibility.[19] Finally, Mr Fifita suggests that Judge Jelas' reasoning in relation to hercredibility findings was a "conclusory credibility preference" of the sort that the Courtin Sena considered inadequate. 88 Sena v R [2019] NZSC 55 at [36].The respondent's submissions[20] The respondent supports Judge Jelas' reasoning. It submits that the apologycould only have been for the alleged violence, i.e. something unusual that had occurredbetween the parties earlier in the evening. Consistent with this, the respondent submitsthat Mr Fifita's trip to the victim's mother's house was a distinct trip in the early hoursof the morning, and hence could be appropriately described as a "special trip". Itsubmits that the length of the visit and the nature of Mr Fifita's departure is ofrelevance to his credibility, though emphasise that this was not the sole considerationin the assessment of credibility in any event. Counsel further submit that adequatereasons were provided by the Judge for her credibility assessment, and remind theCourt of the customary caution of appellate courts in assessing the fact finder'sconclusions on credibility. The respondent notes that the fact that the victim did notinitially call the Police was not put to her in cross-examination, and in any case is notparticularly indicative; in a domestic violence situation there are many reasons avictim might not immediately go to the Police.Analysis[21] In my view, Mr Fifita's appeal must be dismissed.[22] In short, whether the Judge was satisfied beyond reasonable doubt thatMr Fifita had committed the offending in question ultimately turned on a credibilityassessment between him and the victim. As outlined earlier in this judgment, anappellate court will exercise customary caution when credibility findings arechallenged on appeal.[23] I cannot discern any proper basis for interfering with the Judge's credibilityassessment in this case. Rather, the basis for preferring the victim's evidence over thatof Mr Fifita was in my view open to the Judge on the evidence before her, includingthat immediately following the alleged first assault, the victim had left the propertyand gone to a friend's house in order to call her mother, and then gone to her mother'shome. This seems unlikely had the argument that evening simply been about Mr Fifitagoing out without the victim, which appeared to have been a common occurrence.Further, I accept that Mr Fifita's explanation for visiting the victim at her mother'shome later that evening, namely to apologise for the earlier argument, does not appearto have the ring of truth about it, again given it was not uncommon for the couple toargue when Mr Fifita went out without the victim. Rather, the factual narrative beforethe Judge provided a proper foundation for her to conclude that the reason Mr Fifitawent to the victim's mother's house in the early hours of the morning was to apologisefor the earlier assault. For that reason, I do not accept the submission that it was notopen to the Judge to infer from the victim's evidence that Mr Fifita had come toapologise for "what happened", namely an earlier assault. This is particularly so giventhe notes of evidence show that this reference to the apology being for "what hadhappened" immediately followed the victim's account of the assault a few hoursearlier.[24] I am also unpersuaded that the Judge erred in preferring the victim's accountof events which occurred at her mother's property. Again, this is a matter entirelywithin the domain of a trial Judge and there is nothing in the materials before me whichsuggests any error on the Judge's part. I am also satisfied that the Judge was able tocall on her general experience to conclude that the fact there were no visible physicalinjuries to the victim did not itself rule out the assaults as alleged having occurred.[25] Finally, I accept Mr Masani's submission that judges in judge alone trials mustprovide more than conclusory statements as to their credibility assessments. TheSupreme Court in Sena made that plain. However, in my view, the Judge's (oral)judgment provides ample reasoning for the credibility assessments she made. TheJudge's assessment of Mr Fifita's credibility is set out at [17] to [20] of her judgment.In my view, the Judge's reasoning for rejecting Mr Fifita's evidence was sufficientlyclear and detailed to understand the basis upon which she reached the conclusions shedid.[26] A number of other more minor points were raised on appeal, though not pressedto the same degree as the matters already discussed. As noted, Mr Fifita takes issuewith the Judge's description of Mr Fifita's visit to the victim's mother's house as a"special trip". There is no error in my view. It is plain even on Mr Fifita's evidencethat he made a "special trip" to the victim's mother's house in the early hours of themorning, to make an apology to the victim for what had occurred earlier in the evening.For the reasons articulated in her judgment, the Judge accepted that the apology relatedto an earlier assault and not simply going out against the victim's wishes.[27] I accept that the length of Mr Fifita's visit to the victim's mother's home doesnot have significant relevance to the events in issue, and in particular, to the competingcredibility assessments. But it was not wrong, in my view, for the Judge to take thisinto account. In effect, on Mr Fifita's narrative, he was apologising for going outwithout the victim, but then going out again without the victim (but with his femalefriend who was with him in the car at the time). And this was only one factorconsidered by the Judge in reaching her overall assessment of Mr Fifita's credibilityin any event. Accordingly, I am satisfied it does not (and did not) alter the overalloutcome of the Judge's decision. There is also nothing in the point made on Mr Fifita'sbehalf that if the first assault was as serious as the victim described, one would haveexpected her to have called the Police. Unfortunately, there are many reasons why avictim of domestic violence does not immediately complain to the Police. I note thatin any event, a 111 call was made following the second assault at the victim's mother'shouse.[28] I return to the point made at the outset of this section of my judgment, namelythat the outcome of the trial before the District Court Judge turned on the Judge'scredibility assessment of the witnesses involved. There is no error in the Judge'sapproach to that issue and the appeal must therefore be dismissed.____________________________Fitzgerald J