DICK v POLICE [2020] NZHC 1389

DICK v POLICE [2020] NZHC 1389 [19 June 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2019-412-000037[2020] NZHC 1389BETWEEN NIKKI JANE DICKAppellantAND NEW ZEALAND POLICERespondentHearing: 2 June 2020Appearances: C M Andersen for the AppellantR D Smith for the RespondentJudgment: 19 June 2020JUDGMENT OF NATION JIntroduction[1] On 15 October 2019, Nikki Dick was found guilty on three charges of assaultin a judge-alone trial before Judge Harding.1 On 16 October 2019 she was convicted,ordered to pay $200 emotional harm reparation, undertake 60 hours' community workand placed on supervision for 12 months.2 There was a special condition requiring herto attend assessment, counselling and courses to address anger management andpreventing violence as may be directed by the probation officer. Ms Dick appeals eachof these convictions.The trial[2] The trial began on 15 October 2019 with Ms Dick facing four charges, that:1 Police v Dick [2020] NZDC 4458.2 Police v Dick [2019] NZDC 23535.(a) between 1 March 2016 and 30 March 2016, she assaulted the complainant(the arm incident);(b) on 24 June 2016, she assaulted the complainant (the pushing incident);(c) on 16 March 2017, she injured the complainant in such circumstances that,if death had been caused, she would have been guilty of manslaughter (thepunching incident); and(d) between 1 August 2017 and 31 August 2017, she assaulted thecomplainant (the gate incident).[3] After the complainant had given her evidence at trial, the dates on charge (a)were amended to between 1 March 2016 and 31 April 2016. The dates on charge (b)were amended to between 1 July and 31 July 2016. Charge (c) was amended to anothercharge of assault. After the complainant gave evidence, the Judge dismissed charge(d), the complainant having given no evidence in support of that charge.Background[4] There was no dispute that Ms Dick and the complainant met and had thebeginnings of a relationship in Dunedin some years before the alleged offending. MsDick then went to the North Island and was in a relationship with another person.[5] In 2015, the complainant helped Ms Dick leave that relationship and return toDunedin. Ms Dick joined the complainant and the complainant's family in their homein Dunedin and said she became part of their family. The relationship at that time wasloving and nurturing. However, over time, there was fighting between the two partiesbut, as the complainant said, also "a lot of love". The difficulties became morepronounced after Ms Dick chose to spend Christmas 2015 away from the complainant.There were also recurring issues between the parties over Ms Dick's formerrelationship. It was often the subject of heated arguments.[6] The arguments often involved yelling and, on occasions, Ms Dick would justtry to leave the house. On some such occasions, the complainant would try to stop hergoing and would grab her, sometimes holding onto her clothes. There were timeswhen Ms Dick pushed the complainant out of the way as she was trying to leave thehouse. Often when they fought, Ms Dick would throw and damage her cell phone.[7] Both parties were also involved in incidents of self-harm. At the end of 2017,there was a particular incident when the complainant had surgical scissors and wastrying to hurt herself. Ms Dick tried to grab the scissors from the complainant. Thescissors were released suddenly and Ms Dick was injured. Both the complainant andMs Dick said the injury was accidental.[8] There were times when the parties were physically abusive towards each otherand times when the complainant slapped Ms Dick on the face. Both parties recognisedthat the relationship was not good for their mental wellbeing. Most of the argumentsand altercations occurred either when others in the complainant's family were not athome or when the parties were in the bedroom. The arguments were upsetting for thecomplainant's family, also for Ms Dick's mother. Members of both families did whatthey could to have the parties face up to the problems in their relationship and takesteps to stop the harm they were doing to themselves.[9] Tragically, the complainant's mother died unexpectedly in November 2016,after she was recovering from a minor operation. Her death was deeply distressing forall her family and for Ms Dick who lived as part of their family.[10] Ms Dick left the complainant's home around December 2017/January 2018.In evidence, the complainant said she kicked Ms Dick out of the house after thecomplainant was recovering from an appendix operation. Ms Dick said the last contactshe had with the complainant was after they had stopped living together. They werein a car and the complainant was trying to obtain an explanation as to why they couldnot be together, with Ms Dick saying this would be too harmful for them both.The complainant's evidence[11] As to the first charge (the arm incident), the complainant's evidence was thatthey had been arguing. The complainant put her arm up because Ms Dick had raisedher arm as if to hit the complainant. Ms Dick had used her arm in a "hammer motion"and "continuously hit" the complainant's arm. Ms Dick then took off. The prosecutorasked the complainant what had been "the result of being struck on the wrist?" Thecomplainant said it resulted in her arm swelling. The complainant said she contacteda friend and, after about two hours, was taken by her friend to the After Hours andthen to the hospital. She said she told the hospital she had "fallen down a bank or Ihad slipped on something". The prosecutor then asked her what the result had beenof her "wrist being struck numerous times". The complainant said her arm was X-rayed and put into a cast. She said she was in a white plaster cast for two weeks andthen she believed a fibreglass cast was put on for another four weeks, but she was notsure about that.[12] The second charge (the pushing incident) occurred in July 2016. Thecomplainant said they were yelling at one another and said "all of a sudden she pushedme, um, into an oil heater. I had fallen. The heater had fallen on me." She said MsDick had thrown a cup at the TV but she was not sure as to when this happened. Shesaid the glass cup smashed. She said this happened in "our bedroom". Thecomplainant said "she starting shoving me and ultimately I ended up being shovedinto the heater. The heater fell on top of my leg." She then said the heater was in thehallway but that either the complainant would have tried to walk away or Ms Dickwould have walked away because "we always ended up following each other inarguments". The complainant thought Ms Dick had ended up leaving after thisincident.[13] The complainant said friends took her to an appointment she had with herdoctor that day. After the appointment, they came back to the house and cleaned up.Her friends then took her to the hospital where she said people at the hospital tookphotos of her bruising and her leg was X-rayed. She did not remember which leg. Thecomplainant told people at the hospital she did not want the Police involved.[14] The punching incident was alleged to have occurred on 16 March 2017. Thecomplainant thought they had been arguing about her ex if she "remember[ed]rightly". She said, in all honesty, the day was "a bit of blur". She remembered beingpunched in the face, falling backwards and screaming a lot. She said it was a closedfist punch. She said she saw a doctor that afternoon and was very dizzy. She couldnot tell the doctor exactly what happened "cos it was a bit of a blur". She also saidshe told the doctor her partner had punched her in the face. She said she was sent foran appointment at the ENT department at the hospital but that was about all she couldremember. She said "I feel like I had an ACC form" but could not remember if thatwas given to her on the day or not. She said the result of that appointment was thather "septum was deviated". She was referred to a doctor at Fernbrae House. He dida lot of examinations to her nose and concluded that her septum was deviated as aresult of which she underwent surgery months later, possibly in October 2017.[15] The prosecutor then asked her to think about August 2017 and asked if therewas an event at the complainant's home. The question was obviously directed at thegate incident which Ms Dick was asked about in her Police interview. Thecomplainant said nothing about this incident. The only incident she mentioned was asto what happened with the scissors.Ms Dick's interview[16] Ms Dick was interviewed by Detective Henderson on 17 September 2018. Theinterview was recorded on DVD. In that interview, Ms Dick spoke of the backgroundand nature of her relationship with the complainant.[17] Ms Dick talked of the way she and the complainant would tussle, pulling eachother's clothes and grabbing each other, usually when they were arguing, butsometimes when she was trying to leave and the complainant was trying to stop her,or in connection with self-harm. She recalled an incident, after the death of thecomplainant's mother, when they were arguing in a car. Ms Dick had thrown keys atthe dashboard. They had bounced back and hit the complainant above one eye causingbruising. She said the complainant's father heard the argument and was most upset.In the end, Ms Dick called her mother who came to the home and calmed the situationdown. She said the worst thing that happened to her was when she was holding thecomplainant and the complainant bit her on the head but there were times she hadbruises on her face from what had happened between the two of them. She could notrecall an incident in April 2016 when she would have hit the complainant in the arm.She said all she could remember was "the key thing". On being told the complainantsaid her arm had to be put in a cast after being hit, Ms Dick said her arm had been putin a cast after the gate incident. Ms Dick said she had been trying to leave the property.The complainant followed and they were arguing at the gate. Ms Dick had slammedthe gate and the complainant's wrist had been hurt. She said she had not intended tohurt the complainant. She said the complainant had her arm or wrist in plaster afterthat incident. Ms Dick was adamant she had not intended to hurt the complainant andthe injury had been an accident.[18] When, at the end of the interview, the Detective put to Ms Dick the allegationof her hitting the complainant's arm, she denied this had happened.[19] As to the pushing incident, Ms Dick said she had never pushed the complainantinto a heater. She recalled a time when she had thrown a cup of coke across a roomand some had spilt on the heater. She spoke again of trying to leave after argumentsbut denied pushing the complainant in the way the complainant had described.[20] At the conclusion of the interview, the detective put it to Ms Dick that the pairof them had been arguing, she was angry, pushed the complainant into a wardrobedoor and shoulder barged the complainant into the walls. The result of that was herelbow crashed into the door, putting a hole in it. They had carried on arguing andmoved into the hallway. Ms Dick pushed the complainant. The complainant hadcareered backwards into the heater and her legs had struck it. As a result, thecomplainant ended up with a big bruise on her leg. Ms Dick denied all of that.[21] As to the punching incident, Ms Dick denied she had ever punched thecomplainant in the face. She said there had been a time, not immediately after anyincident, when the complainant told her she had hurt her nose falling from the bedonto a bedside table. Ms Dick had been with the complainant when the complainanthad an appointment with an anaesthetist prior to having nose surgery. She heard thecomplainant tell the anaesthetist this was how her nose had been hurt.[22] During the interview, the detective put to Ms Dick, as a separate allegation,what must have been a complaint as to the gate incident in August 2017. Ms Dickexplained again how the complainant had been chasing her after Ms Dick was tryingto leave the property and how there was an argument at the gate. Ms Dick hadslammed the gate shut but said she did not deliberately swing the gate at thecomplainant.Ms Dick's evidence at trial[23] Ms Dick gave evidence at the trial. She denied slapping the complainant onthe face before the arm incident. She said she had not repeatedly punched thecomplainant on the arm or wrist around March or April 2016. Her counsel put to herthe complainant's evidence about her arm being put in a cast as a result of those blows.Ms Dick said she recalled the complainant's arm being in a cast around that time butwas pretty sure it resulted from a work injury. She could recall drawing on a cast. Sherecalled the complainant being in a cast a few times over the relationship, casts onboth wrists.[24] As to the pushing incident, Ms Dick said she could not recall the exact occasionthe complainant was talking about but said she could recall many times trying to getpast that area where the heater was situated in the room and either the complainant orher hitting the heater. She denied intentionally pushing the complainant with one orboth hands and said the only reason either of them would have been in that situationwas because one of them was blocking the other from leaving.[25] As to the nose punching incident, Ms Dick said:3I completely deny raising a fist to her and like I said before I can think of aboutthree or four events that I can't actually define separately that were all to thepoint where they were so rough, yeah, it was either both of us falling over attimes, but I never ever punched, lifting a hand in the motion to punch.[26] Ms Dick referred to photographs taken of her and the complainant at aBulldogs rugby league game in Dunedin on 17 March 2017 and on 18 March 2017 ata function she and the complainant had attended with her nephew. She recalled themhaving a big argument around the time of the Bulldogs match, when she was trying toget out of the house. The complainant was pulling her back and they both ended upon the ground. She remembered them both getting hurt that day but said she had not3 His Honour's Notes of Evidence ["NOE"] at 46-47.punched the complainant on the nose. She said the injuries "either of us alwaysreceived were from one trying to get away or out from the other".District Court decision[27] The Judge said neither the complainant nor Ms Dick were "crystal clear" aboutdates and sequences in the evidence. However, he noted that the complainant wasstraightforward, acknowledged when she could not remember or was unsure, andappeared to make appropriate concessions. She remained firm in her view of all threeincidents.[28] Conversely, the Judge found Ms Dick's evidence to be unimpressive. Hementioned the significant pauses in her interview as she contemplated answers andsaid there were indications of reconstruction in those answers rather than relying onactual recall. He said his impression was that Ms Dick was genuinely unable todifferentiate between incidents and was endeavouring to reconstruct what must havebeen rather than to recall what actually was, particularly in relation to the heaterincident.[29] The Judge found himself satisfied beyond reasonable doubt that, as a result ofincidents between Ms Dick and the complainant, the complainant received an injuryto her nose requiring surgery and, at some points in their relationship, she receivedinjuries to her arms such as to require the installation of a cast. He found, on MsDick's own evidence, she clearly behaved in an uncontrolled manner involvingphysical violence at least to property.[30] The Judge explicitly said, where there was a material dispute between thecomplainant and Ms Dick, he preferred the complainant's evidence. Thecomplainant's evidence was more compelling and was given with greater clarity, andher memory was materially better than that of Ms Dick's.[31] Additionally, Ms Dick confirmed the complainant's evidence of her needingmedical treatment both to her nose and her arm. There is thus at least somecorroboration of the complainant's version of events in Ms Dick's evidence. On thisevidence, the Judge found Ms Dick was not dissembling her recall.[32] The Judge was thus satisfied that each of the charges of assault were proved,in that: there were repeated hits on an arm; there was a push into a heater which felland caused problems to the complainant's leg; and there was a punch or hit to the facewhich caused problems with the complainant's nose. He found proved each of thecharges still before the Court.Principles on appeal[33] Section 232(2)(b) Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied the trial judge "erred in his orher assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.4 In Sena v Police, the Supreme Court clarified the properapproach under s 232(2)(b) is for the appeal court to form its own view of the factsand determine the appeal accordingly.5 It follows that, if an appeal court comes to adifferent view than the trial judge on the evidence, the trial judge has erred and therehas been a miscarriage of justice, thus the appeal must be allowed.6 In s 232(2)(b), atrial includes a proceeding in which the appellant pleaded guilty.7Appellant's submissions[34] For Ms Dick, Ms Andersen submits the Judge erred in:(a) making credibility findings against Ms Dick when her evidence was notchallenged in cross-examination;(b) mistaking evidence relating to a charge no longer before the Court as beingrelevant to a live charge, and was cited as a basis for conviction;(c) failing to properly resolve evidential disputes in making findings againstMs Dick; and4 Criminal Procedure Act 2011, s 232(4).5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [25].6 At [38].7 Section 232(5).(d) not establishing the burden applied to establish the finding of Ms Dick'sguilt for each individual charge, and the basis for the finding.[35] Ms Andersen submitted Ms Dick was not cross-examined by SergeantSomerfield for the Police on any of the key allegations, in that none of thoseallegations were put to her.8 Therefore, the Police failed in its duty as prosecutor unders 92 Evidence Act 2006. Moreover, a failure to put to Ms Dick any matters at issuemeant it was unreasonable for the Judge to make adverse findings as to her credibility.9[36] Ms Anderson acknowledged the case law that states where a defendant hasbeen able to fully put their case, issues of fairness do not arise in the failure to cross-examine.10 However, she says these cases related to single instances of omission incross-examination, rather than a failure to cross-examine on matters at issue in theirentirety. Thus, the Judge was at error in making adverse findings of credibility againstMs Dick where the Police failed in its duties under s 92 Evidence Act to put the keyallegations to her.[37] Next, Ms Andersen referred to a passage of the Judge's decision where he citesevidence of Ms Dick swinging a gate into the complainant's arm. She said thisreferred to evidence relating to a withdrawn allegation of an incident occurringbetween 1 August and 31 August 2017. Yet, the Judge relied on the evidence to findguilt on the first (remaining) allegation of assault (multiple hits to the arm). Thisamounted to an error in the Judge's assessment of the evidence.[38] Ms Andersen submitted significant evidential disputes were not resolved bythe Judge in his assessment of the evidence. First, she cited the complainant'sconflicting evidence as to which side of the face she was punched. Moreover, whilethe Judge noted Ms Dick's production of photographs taken one or two days after thealleged punch to the face not appearing to show a seriously damaged nose, the Judgedid not resolve that evidential dispute. The complainant's allegations also shiftedthrough the course of the trial from a punch to the nose, to a punch to the left cheek,8 NOE at 49–51.9 Gutierrez v R [1997] 1 NZLR 192 (CA) at 199.10 Solomon v R [2019] NZCA 616; Cummings v Police [2018] NZCA 622; R v Soutar [2009] NZCA227; and R v Dewar [2008] NZCA 344.to allegations she was punched to the right side of her face (after photos produceddemonstrated no such injuries to the left side of her face).[39] Secondly, as to the heater incident, Ms Andersen said the Judge noted Ms Dickwas adamant there had been no direct application of force to the complainant but hefailed to note the concession by the complainant that it was possible the push had beenunintentional.[40] Ms Andersen submitted, in discussing the evidential disputes, the Judge simplynoted he found the evidence of the complainant more compelling as it had greaterclarity and she appeared to have a better memory than Ms Dick. The disputesthemselves were not specifically addressed or resolved in a reasoned manner, asrequired by the Supreme Court's decision in Sena.11 For those reasons, there was anerror in the Judge's assessment of the evidence to such an extent a miscarriage ofjustice occurred.[41] While the Judge stated he was satisfied beyond reasonable doubt of Ms Dick'sguilt on each of the charges, Ms Andersen submitted his actual findings amounted toa preference of the complainant's evidence to Ms Dick's. She inferred from this thathis reasoning is on the balance of probabilities, rather than to the criminal standard.In coming to his findings of guilt, the Judge failed to systematically address each ofthe charges, the evidence relating to those charges, resolve the evidential disputes ormake specific findings on each of the charges or specifying whether or not guilt wasestablished beyond reasonable doubt.Respondent's submissions[42] For the Police, Mr Smith referred to the Supreme Court's statements in Senaas to what was required of a Judge giving a decision after a judge-alone trial. Hesubmitted, with the way the case proceeded, the defendant was given the opportunityto give admissible evidence on the matters in conflict during evidence in chief. Hesubmitted there had been no failure to cross-examine to the extent required by s 92Evidence Act.11 Sena, above n 5, at [36].[43] Mr Smith submitted there had been evidence from Ms Dick at trial where shehad acknowledged the complainant being in a cast during the period encompassed bythe first charge, the arm incident. He said that was despite it being said in cross-examination of the complainant that Ms Dick would be giving evidence that thecomplainant's arm was not at all in a cast over that period.[44] As to the pushing, he suggested Ms Dick had acknowledged there was anincident in the hallway where the complainant was pushed over although denied it wasdeliberate. He said whether there had been a deliberate application of force was amatter for the Judge to determine on all the evidence.[45] As to the punching incident, Mr Smith submitted Ms Dick had seemed toacknowledge the complainant did receive an injury in a scuffle around 16 March 2016but denied a punching. He suggested there was an inconsistency in that, in herinterview, the defendant had remembered bruising on the complainant's face aroundthe incident of 16 March 2017, but the complainant was cross-examined on the basisthere had been no bruising as a result of a punching, as apparent from photographswhich were produced of her soon after that time.[46] He submitted Ms Dick, through counsel, had been given ample opportunity tocross-examine the complainant on the essential allegations so there had been nounfairness. Ms Dick had also given evidence as to certain matters which had not beenput to the complainant when they should have been.[47] As to the argument that the Judge had conflated Ms Dick's statements in herinterview about the complainant's wrist being injured in an incident with the gate withthe alleged incident where the complainant said her arm had been struck, Mr Smithsaid the Judge seemed to have relied upon that acknowledgement as an acceptance byMs Dick that she may well have caused the injury to the complainant's arm in the armincident. He submitted that, on the evidence at trial, it was open to the Judge to findthere were not two separate incidents. He submitted, relevantly, it had not been put tothe complainant in cross-examination that the injury the complainant had spoken of ashaving been suffered in the arm incident had been caused in a completely separateincident. Nevertheless, relevantly for the purpose of this appeal, Mr Smith told me heunderstood that the complainant, in her formal written statement to the Police, didcomplain of two separate incidents where she alleged Ms Dick had caused her injuriesrequiring the installation of a cast to her arm, the first from repeated blows to her armin the period 1 March 2016 to late April 2016 and the second about August 2017. Heacknowledged the complainant had given no evidence about the incident in August2017.[48] Mr Smith said the Judge had rejected the evidence as to the gate as some sortof concoction, there thus being no conflation of what Ms Dick had to say about twoseparate incidents and that being relied on by the Judge to explain his finding that therehad been blows to the arm in 2016 as the complainant claimed.[49] As to the alleged punch to the nose, Mr Smith referred to evidence given bythe complainant and evidence from Ms Dick at trial which he argued had provided areasonable basis for the finding the Judge came to, likewise with the pushing incident.He suggested the concession made by the complainant ultimately in cross-examination, that the pushing may have occurred while Ms Dick was attempting toleave the property, was only as to a possibility. He said the complainant had been firmin her evidence that she had been subjected to a purposeful push.[50] Although the Judge had said, where there was a conflict between the evidenceof Ms Dick and the complainant, he preferred the evidence of the complainant,ultimately in his determinations the Judge had considered whether or not the essentialallegations had been proved beyond reasonable doubt. He submitted the Judge hadgiven reasons for his determinations as to credibility in the manner required by theSupreme Court's judgment in Sena.12 He acknowledged the Judge's reference topreferring the evidence of the complainant was "unfortunate" but said it was clear theJudge adopted the correct approach to assessing the evidence and applied the correctstandard of proof.[51] Mr Smith submitted that, with the way the trial proceeded and with theexplanation the Judge gave for his determinations, there was no miscarriage of justice.12 Sena, above n 5.Discussion[52] I consider that, in his judgment, the Judge did engage with what was in issueas to the essential elements of the charges. Ultimately, he considered whether thecharges had been proved applying the correct standard of proof on each charge. Hegave reasons for his findings as to credibility to the extent required by the SupremeCourt in Sena.[53] However, given what had been put in issue through Ms Dick's statements inher interview, there were particular issues on which a determination was requiredrelevant to the overall assessment of credibility as to each charge. In certain significantrespects, which I discuss below, I consider the Judge failed to deal with those issues.[54] I do consider the Judge made a mistake in treating evidence from Ms Dick asto the gate incident as relating to the arm incident and drawing adverse inferences asto Ms Dick's credibility because of this. Mr Smith submitted the Judge could not haveconflated the two incidents because he had rejected the evidence of Ms Dick as to thegate incident. The Judge could not have reasonably rejected Ms Dick's evidence as towhat happened in the gate incident. She gave a clear description of such an incidentin her Police interview. She described how others in the complainant's family hadbeen aware of what happened. The Police charged her with an assault based on thatincident.[55] I also accept the Judge made an overall assessment as to the credibility of thecomplainant and then applied that assessment to determine all charges withoutsufficiently considering whether the Police had proved each charge separately andwhether the prosecution had discharged its burden of proof on each charge separately.[56] As stated earlier, on appeal, I am required to form my own view of the factsand determine the appeal accordingly.[57] I have considered all the evidence before me to arrive at my own conclusionon the facts. I have done this conscious of the responsibility an appeal court has toassess whether a miscarriage of justice has occurred. I am conscious I did not havethe advantage of seeing the complainant and Ms Dick give evidence in Court. It ishowever accepted that the demeanour a witness has in giving evidence may not be thebest indicator of their honesty or reliability as a witness. A trial Judge has theadvantage of hearing and seeing the context in which a question is put and answered.The transcript nevertheless accurately records what was asked of the witness and whatthe witness said in response. It is in that way the record assists an appellate court inreaching a view as to credibility of a witness.[58] Importantly, in this case there was a lengthy interview of Ms Dick. Thatinterview was recorded on DVD so that I am as well able to assess what Ms Dick saidin that interview and how she came to say it, as was the trial Judge.[59] The Judge said:13[Ms Dick's] evidence in interview was not impressive. There were significantpauses as she contemplated answers and she clearly did not recall a number ofmatters. In a number of situations of [sic] her evidence there were indicationsof reconstructive answers rather than answers relying on actual recall.[60] My assessment of the interview is different. Ms Dick participated willingly inthe interview. She did not hesitate over proceeding in the interview without benefit oflegal advice. She appeared to respond genuinely when asked to describe in generalterms the nature of her relationship with the complainant. In doing so, she for instancementioned the untimely death of the complainant's mother, the way it had affectedeveryone in the complainant's family and Ms Dick herself, and the pressures that arosefrom that, especially for the complainant. In talking about this, she seemed upset. Shetold the detective that it was the first time she had spoken of the mother's death in thisway.[61] Ms Dick spoke positively of the complainant, of her being a good person. Shedescribed how the complainant had rescued Ms Dick from the abusive relationship MsDick had been in for a number of years in the North Island.[62] Ms Dick acknowledged how, in the end, her relationship with the complainantwas harmful for them both. She talked about how others in both families recognisedthis and urged them to get help. She acknowledged there had been a time when she13 Police v Dick, above n 1, at [24].ceased taking medication needed for her epilepsy. This led to her having epilepticseizures which put her at risk and was not fair to the complainant's parents. Sheshowed no animosity towards the complainant's family and expressed considerablegratitude for the way they took her back into their home and treated her as part of thefamily, all this some years after their initial relationship had ended.[63] Even before the complainant's allegations were put to her, Ms Dick told thedetective they had a relationship where both were inclined to resort to self-harmingbehaviour and, on occasions, one or the other would seek to intervene to stop this fromhappening. She said, when their relationship deteriorated, there was often heatedverbal exchanges and physical tussles. She said these often occurred when, after suchan altercation, Ms Dick would try to leave the complainant's home. She said she knewthe home was the complainant's safe place and the complainant was entitled to thatsecurity. She however spoke of occasions when the complainant would try to stop herleaving, occasions when the complainant pursued her down the street and other peopleobserved what was happening.[64] The picture Ms Dick presented in her interview was of a relationship whichwas ultimately harmful for them both but, nevertheless, one from which she hadbenefited and was grateful for over a significant period.[65] In talking about her relationship generally, Ms Dick said the worst incidentoccurred when the complainant had taken surgical scissors from Ms Dick and wastrying to stab herself with them.[66] Without it having to be put to her, Ms Dick accepted she had on occasionsthrown cell phones when she was angry. She talked of an occasion when, during anargument, she threw an Xbox. She spoke of an occasion when the complainant bit heron the head but explained this was when Ms Dick had been holding onto thecomplainant in a way the complainant did not like.[67] Without it being put to her as an allegation, Ms Dick told of an occasion whenthey were in a vehicle and had an argument. Ms Dick had thrown the keys at thedashboard. The keys bounced back and hit the complainant above the eye causing acut. She said that incident led to others in the complainant's family and Ms Dick'smother intervening and telling them they needed to get help with their relationship.Ms Dick spoke of an occasion when the complainant needed surgery. She said thecomplainant told her she had fallen off the bed and hit a table. She said they spoke toan anaesthetist together in connection with the surgery. She heard the complainant saythis was how she had hurt her nose.[68] I have been able to carefully watch and listen to the interview of Ms Dick onseveral occasions in a way that would not have been possible for the Judge, inobserving the interview only during the trial, before having to give his decision. I donot accept there were significant pauses in the interview which adversely affect myassessment as to the honesty and reliability of the statements she made in thatinterview. There was some hesitation when Ms Dick was first asked about the armincident but that could be explained by her genuinely trying to recall whether therewas such an incident. The only other time I discerned hesitation was at the end of theinterview. By that time, she had already responded to the allegations. The detectivethen said he was obliged to put the allegations to her. He did that by making astatement as to what the allegation was. It was not put as a question. Ms Dick listenedto what he had to say. At one point she responded by saying "I am listening". It wasclear to me there was a delay in her response because she did not know what wasexpected of her. She did not appreciate she was being asked a question. When thedetective clarified with her that he wanted to know whether she accepted the truth ofthe allegation, she made it clear she did not.[69] I have had the advantage of being able to make my assessment away from thepressures of a trial. In that interview, it was clear Ms Dick denied hitting thecomplainant on the arm in an incident around March or April 2016 but recalled anincident where, as a result of an altercation, the complainant's wrist had been put in acast. That was the gate incident which occurred in August 2017. There was a chargerelating to that incident. She explained how she had not intended to hit thecomplainant with the gate. The charge related to that incident was dismissed becausethe complainant gave no evidence about it.[70] Ms Dick accepted there had been incidents where she and the complainantpushed or pulled at each other, on occasions when Ms Dick was trying to leave thehouse after an argument. She did not recall the incident where the complainant spokeof being pushed into a heater. In evidence, Ms Dick said she could recall many timestrying to get past that area with "her or I hitting the heater". The Judge was not correctin saying she:14 acknowledged that there could have been an incident with a heater duringwhich she was endeavouring to leave and may have accidentally in effecttripped or forced the complainant into the heater, perhaps with consequencessuch as those described by the complainant.[71] The Judge however did accurately recall the evidence in saying:15She was adamant that at no time had she deliberately applied any force to thecomplainant and she denied the pushing into the heater incident happened inthose terms at all.[72] Ms Dick firmly denied ever punching the complainant in the nose.[73] I consider Ms Dick was honestly describing what she remembered when shewas interviewed about the complainant's allegations. Consistent with this, I note theJudge observed in his decision that, in explaining why he preferred the evidence of thecomplainant, he considered Ms Dick had provided "some limited corroboration for thecomplainant's version of events. I do not think that the defendant was dissembling inher recall." The defendant's clearest recollection of events and most coherent accountwas in her interview. In saying that she had not dissembled, the Judge seemed to beobserving that she had been honestly recalling events. That coincides with myassessment.[74] I did not discern obvious indications of Ms Dick reconstructing a version ofprevious events when she was being asked about what she could recall during theinterview. She spoke of incidents she could remember with some detail but detail ofthe sort she might well have remembered even though those events had occurred someyears previous. There were other instances where she said she could not recall events.14 Police v Dick, above n 1, at [14].15 At [14].She did not provide detail as to a specific event differentiating that event from othersin a way that might have been indicative of a reconstruction.[75] In his decision, the Judge said the complainant's evidence of receivingtreatment to her nose and arm was confirmed by Ms Dick "although in differentterms". He nevertheless said, in this regard, Ms Dick's evidence provided "somelimited corroboration for the complainant's version of events. I do not think that thedefendant was dissembling in her recall".[76] I do not consider Ms Dick's evidence in speaking about the cast, either in herPolice interview or at the trial, in any way corroborated the complainant's evidence.[77] In her evidence, Ms Dick was clear that the complainant had her arm in a castas a result of the accidental injury suffered with the gate. At trial, she denied havinghit the complainant in the arm in the way the complainant had described. She did saythe complainant's arm could have been in a cast around March/April 2016, but in noway did she suggest or accept that the complainant's arm was put in a cast as a resultof Ms Dick hitting it. Ms Dick said, if the complainant's arm was in a cast around thattime, it could have been because of an injury she had suffered at work.[78] The Judge said he had to attach less weight to Ms Dick's evidence as to thatpossibility because it had not been put to the complainant in cross-examination. Therewas however evidence that the complainant had suffered from arm injuries unrelatedto any alleged assault. At one point in her interview, Ms Dick mentioned thecomplainant suffered from a scaphoid condition, a condition which she referred toagain when giving evidence as to how the complainant could have had her arm in acast around March/April 2016.[79] The complainant had talked about blows to her arm having been suffered inApril 2016. Under cross-examination, she said this was not the first time her arm hadbeen in a cast.[80] Ms Andersen endeavoured to lead evidence from Ms Dick as to a photographthat had been emailed or otherwise messaged to her during 2015 showing thecomplainant's arm in plaster. Associated with it were text messages that would haveshown the complainant had her arm in plaster earlier in 2015, at a time when Ms Dickwas still in the North Island. The transcript records that the Police prosecutor objected,saying the photograph was not date stamped. Ms Andersen then endeavoured toquestion Ms Dick as to the timing of the photograph through reference to theassociated messages. The transcript records there was then a legal discussion and thatline of questioning ceased.[81] I enquired of counsel as to what happened at that point. As a result, I receiveda copy of the photograph and the relevant associated messaging. That photograph andthe messages showed the complainant had her arm in a cast in 2015, probably at a timewhen Ms Dick was still in the North Island.[82] I have listened to the recording of what was said in the discussion. The Policeprosecutor referred to there being no time stamp on the photograph. The Judge saidto the prosecutor he would have to wait and see what came out but then added:There is nothing on this document that identifies the date. There is alreadyevidence from this witness that the complainant had casts quite a lot sowhether this can be tied into anything that we are concerned with I don't know.[83] Ms Andersen did not ask Ms Dick further questions as to the photograph or thetiming of it.[84] Ms Dick's case, clear from her interview, was that the complainant's arm orwrist was placed in a cast after an incident involving Ms Dick but this was as a resultof the gate incident. Ms Dick was not saying, as a defence, that the complainant's armwas never put in a cast around March/April 2016. Whether or not the complainantcould have suffered an injury in a manner not connected to any of Ms Dick's actionswas relevant in assessing the complainant's credibility as to whether she suffered aninjury in the way she described in the arm incident.[85] Ms Andersen did not, as she should have, cross-examine the complainant as towhether, if the complainant's arm was in a cast around April 2016, this could havebeen the result of a work-related injury. Despite that, Ms Dick's evidence was, if thecomplainant's arm or wrist was in a cast around that time, it would have been as aresult of an injury not connected with any assault. If that explanation was not to beaccepted by the prosecutor, in terms of s 92 Evidence Act, the prosecutor should havecross-examined Mr Dick, should have showed her the explanation was not acceptedand given her the opportunity to respond. He did not do so.[86] The way the trial proceeded may explain why I consider the Judge didunjustifiably treat what Ms Dick had to say about the complainant's wrist being put ina cast after the gate incident as, in some way, corroborating what the complainant hadsaid about injuries being suffered in the March/April 2016 incident. Mr Smith toldme that, according to the complainant's statement, there were two incidents when shewas in a cast. If that was the case, the prosecutor did nothing to clarify the situation,through further questioning of the complainant, or cross-examination of Ms Dick asto her explanation for the complainant having her arm in a cast as a result of an incidentinvolving Ms Dick, an explanation she had clearly given in her interview. This wasevidence on which, in terms of s 92 Evidence Act, she should have been cross-examined if that explanation was being challenged. The complainant's evidence attrial related to only one incident.[87] The potential for the Judge to unfairly conflate Ms Dick's evidence about thegate incident as a reconstruction of what happened in the arm incident also increasedbecause Ms Andersen did not put to the complainant Ms Dick's evidence from theinterview as to how the complainant's wrist was in a cast as a result of the gateincident. No doubt, this was because the complainant had said nothing about the gateincident when giving evidence, even though it was the subject of a charge and the gateincident figured in the allegations put to Ms Dick in her interview.[88] Ms Andersen probably did not want to give the complainant the opportunity toprovide evidence in support of a charge which she had not given when the prosecutorled evidence from the complainant. The complainant's evidence should not have beentreated as being of no weight on that basis. Through her evidence from the interview,the prosecutor was on notice as to Ms Dick's explanation for a wrist injury before trialso had the opportunity to cross-examine Ms Dick about it if it was to be suggested herexplanation was either a fabrication or a reconstruction as to the arm incident. MsDick's account of the gate incident in her interview seemed credible. The gate incidentwas the subject of a charge.[89] There was also potential for confusion because, in the gate incident, Ms Dickhad spoken of the complainant suffering a wrist and thumb injury as a result of whichher wrist was put in a cast. In the interview, the detective put it to Ms Dick that, as aresult of the blows Ms Dick had struck to the complainant's arm, the complainant'sthumb had been injured, necessitating the visit to the hospital and her arm being putin a cast. In the arm incident, the complainant spoke at trial of being struck on the armbut the prosecutor then questioned her as if she had been struck on the wrist.[90] It was put to the complainant in cross-examination that her arm was not in acast as a result of an April 2016 assault. The complainant said her arm was in a casttwice as a result of an assault but she had given no evidence as to a second such assaultwhen giving her evidence in chief. It was not an allegation the prosecutor put to MsDick when she gave evidence or asked the complainant about on re-examination.[91] At the trial, the complainant spoke of her arm swelling through being hit. Shegave no evidence of her thumb being injured, but this was the allegation put to MsDick in her interview to which Ms Dick responded by referring to the gate incident.[92] I do not consider there was any evidence from Ms Dick, either when she wasinterviewed or when she gave evidence, that could be taken as providing even limitedcorroboration of the complainant's evidence that the complainant's nose was injuredas a result of being punched by Ms Dick. In her interview, Ms Dick recalled a timewhen the complainant suffered minor injuries when Ms Dick threw keys at the cardashboard and they bounced back and hit the complainant above the eye. Ms Dicksaid she remembered the complainant having a bruise to her face but that was inrelation to the key incident.[93] Both the complainant and Ms Dick were involved in heated verbal and physicalarguments with each other. They were both involved in instances of self-harm. I donot consider the fact Ms Dick threw and damaged objects, such as a cell phone, madeit more likely that she participated in specific assaults in the way the complainantalleged.[94] In the context of this summary trial and the issue as to whether there has beena miscarriage of justice, I consider it also significant that there was no medicalevidence corroborating the complainant's evidence as to the treatment she says shereceived at the hospital and from other doctors. The prosecution took this matter totrial with Ms Dick facing a charge, amongst others, that Ms Dick had injured thecomplainant in such circumstances that, if death had been caused, she would have beenguilty of manslaughter.[95] It was put to the interviewing detective that, after what was referred to as thehammer allegation, he asked the hospital for relevant medical details. It was put tohim that nothing came back confirming the complainant's wrist had been X-rayed andthen placed in a plaster cast in the period between 1 March and 30 April 2016. Thedetective said he could not recall what information the hospital provided so he was notin a position to argue it through cross-examination.[96] Ms Andersen established that the detective had sought information relating tothe charging documents and thus for the period between 1 March 2016 and 31 August2017. After the detective said he could not recall what information the hospital gavehim, Ms Andersen asked the question "you don't recall receiving any information thatwould have related ". The Judge intervened and said "that is enough".[97] Fairness required, first, that the Police tell the Judge what information they hadreceived from the hospital or other medical people who had dealt with the complainantin connection with the alleged incidents. Detective Henderson had referred to theenquiries Police had made of medical specialists when interviewing Ms Dick as if theinformation obtained was supportive of the complainant's allegations. Ms Andersen'squestions of Detective Henderson and an earlier objection she made when thecomplainant referred to being X-rayed after the arm incident, suggests that, havingreceived disclosure from the Police, Ms Andersen knew the Police had not receivedany information from medical authorities which corroborated the complainant'sevidence, at least as to being X-rayed and having her arm in plaster after the armincident. Police evidence as to what they had been told by hospital authorities waslikely to have been hearsay. The Judge could have chosen to disregard it for thatreason. In a trial, the Judge could also, to ensure fairness to the defendant, have foundout what information had been provided to the Police and could then have decidedwhether, given the potential reliability of that information and the unavailability ofhospital witnesses, the hearsay evidence would nevertheless be admitted and takeninto account. I consider the peremptory way in which the Judge required Ms Andersento cease questioning Detective Henderson as to this was likely to have been unfair toMs Dick.[98] In the particular circumstances of this case, when there were significant issuesas to the credibility of both the complainant and the defendant, I do weigh in thebalance the fact there was no corroborative medical evidence presented consistent withwhat the complainant said as to how she had been assaulted, the particular injuries shesustained, X-rays and treatment.[99] As to the pushing incident, the complainant accepted under cross-examinationthat the pushing may have occurred in connection with Ms Dick attempting to leavethe house. The complainant's evidence was that Ms Dick pushed her and she fell ona heater that was up to about knee height. It would thus seem that she fell either againstor onto a heater. Inconsistent with that account, she also said the heater fell on her legcausing it to bruise and swell. Her account of what happened, in terms of how her legwas injured, seems somewhat improbable.[100] In the interview of Ms Dick, the detective had also put the complainant'saccount of that incident to Ms Dick. Included in it was detail as to Ms Dick pushingthe complainant into a bedroom door, shoulder barging her into walls and Ms Dickputting a hole in the door with her elbow. None of that detail was recorded as definitelypart of this incident when she gave evidence about it at trial. The detail included withthe allegations, as put to Ms Dick at interview, causes me to be concerned that, in thecomplainant's recollection of this incident, there was considerable potential forunreliable reconstruction.[101] At trial, the complainant said they had been yelling at each other in thebedroom. The complainant said, all of a sudden, Ms Dick picked up a cup and threwit at the TV, then started shoving the complainant and, ultimately, she ended up beingshoved into the heater. She said, when she was shoved into the heater, it was "just inthe hallway. So, it had moved, cos I would have tried to walk away or she would havewalked away and we always ended up following each other in arguments". She wasnot sure if that happened the day she said she was shoulder barged into a wardrobe.[102] The complainant was cross-examined to the effect that the pushing could haveoccurred as Ms Dick was trying to get past the complainant while attempting to leavethe house. The complainant accepted that was a possibility.[103] Ms Dick, in her evidence, denied ever intentionally pushing the complainantwith one or both hands. She said "the only reason I ever would have, either of uswould have been in that situation was because one of us was blocking the other fromleaving".[104] The prosecutor did not cross-examine Ms Dick over that evidence, as s 92required him to do if her evidence as to how a pushing could have occurred was notto be accepted.[105] The Judge said he was satisfied there was a push into a heater but did notdetermine whether this could have occurred as Ms Dick was attempting to leave thehouse and had her way blocked by the complainant.[106] The assault however related to the pushing. In the context of evidence boththe complainant and Ms Dick gave as to the way they argued, ended up tussling witheach other and the way the complainant, at times, sought to stop Ms Dick from leavingthe house, I accept it was reasonably possible that, whatever shoving or pushingoccurred, happened as Ms Dick was attempting to leave the house.[107] Both parties were attempting to recall an event which had occurred more thanthree years prior to their giving evidence at trial. It was just one incident in arelationship where they were often mutually involved in physical altercations. In allthe circumstances, as apparent from the evidence, I am left with a reasonable doubt asto whether an assault occurred in a way that would have justified either a guilty verdicton this charge or a conviction.[108] As to the punching incident, the complainant's evidence was that she waspunched in the face in a way that left her dizzy and her nose was injured in a way thatresulted in her having a deviated septum which required surgery. The operation didnot take place until a number of months after the alleged incident, an unusual delay.A deviated septum does not have to result from an injury, but it was the complainant'sevidence it was a punch from Ms Dick that caused the injury. When sentencing MsDick, the Judge said the complainant had suffered from what "is colloquially referredto as a broken nose".[109] The complainant was cross-examined extensively as to what she rememberedof exactly where she was punched and whether it was on the left or right side of herface. The complainant's answers about this were somewhat contradictory but she wasconsistent in that, whichever side the punch was to, she was hit on the nose and therewas swelling.[110] Under cross-examination, the complainant accepted that, on the day after thisalleged punching and serious assault, she attended a Warriors rugby league game withMs Dick and the next day she attended another event with her young nephew. On bothoccasions, close-up photographs were taken of the complainant's face. They clearlyshowed both sides of her nose. The complainant accepted that photographs taken ofher at that time showed no sign of bruising or swelling on her face.[111] Ms Dick gave evidence of going to the Warriors game and the next day to afunction with the complainant's nephew. She took photographs of the complainant atthe Warriors game on 17 March 2017 and also on 18 March 2017 when thecomplainant was with her nephew. She remembers that on one of the days before theWarriors game they had a huge argument. They were both at the back door. Thecomplainant was pulling clothes. Ms Dick tried to get out of the house. Thecomplainant blocked her way. She remembered them both getting hurt that day butshe said she did not punch her on the nose. She said the injuries they always receivedwere from one trying to get away or out from the other.[112] The complainant said her septum was deviated and she had surgery to fix it.She said, after being at the hospital, she was referred to a Dr Ryan at Fernbrae House.He did a lot of examinations of her nose and concluded that her septum was deviatedand she needed surgery to fix it. She thought the surgery might have happened inOctober 2017.[113] In his decision, the Judge noted that Ms Dick denied ever punching thecomplainant with a fist and, in the interview with the Police, Ms Dick said thecomplainant told her she had fallen off the bed and hit the side table, causing an injuryto her nose. He said that proposition had not been put to her in cross-examination.The Judge, I infer, gave less weight to that evidence on the basis it had not been put tothe complainant in cross-examination. It should have been, especially because MsDick had told the detective of how the complainant had talked of receiving this injurywhen she was interviewed by the Police about it.[114] The Judge accepted the photographs taken of the complainant a day or twoafter this occasion were full-frontal, in effect showed both profiles and did not appearto show the complainant as having a seriously damaged nose. The Judge neverthelesssaid he did not find the photographs particularly of assistance in determining mattersbefore him.[115] Reconsidering all the evidence, as I am required to do, I do not dismiss therelevance of the photographs in such peremptory fashion. There is no evidence in thephotographs of the complainant having suffered a broken nose. She also appears tohave posed willingly with Ms Dick for close-up photographs of them both without anyapparent unease or discomfort as to what the photographs might show.[116] The photographs leave me with a reasonable doubt as to whether thecomplainant was punched on the nose in the way she described.[117] The complainant had also made a complaint to the Police about an allegedassault occurring in August 2017 in which she must have complained that Ms Dickhad deliberately slammed a gate on her with the intention of hitting and hurting her.At trial it seems the complainant had no memory of that incident, despite the way shemust have complained to the Police she was injured through what happened and musthave complained the injury was a result of an assault.[118] On my review of all the evidence, I conclude that the evidence was notsufficient to prove each of the charges beyond reasonable doubt. For that reason, therehas been a miscarriage of justice. The appeal is allowed. The convictions and sentenceare quashed.Solicitors:C M Andersen, Barrister, DunedinRPB Law, Dunedin.