NISHANT v NEW ZEALAND POLICE [2019] NZHC 18

NISHANT v NEW ZEALAND POLICE [2019] NZHC 18 [21 January 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF THE CHILD COMPLAINANTPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-463-31[2019] NZHC 18BETWEEN NISHANTAppellantAND NEW ZEALAND POLICERespondentHearing: 13 December 2018Counsel: C Horsley for appellantA J Pollett for respondentJudgment: 21 January 2019JUDGMENT OF KATZ JThis judgment was delivered by me on 21 January 2019 at 4.30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Pollett Legal Limited, Office of the Crown Solicitor, TaurangaCounsel: C Horsley, Barrister, TaurangaIntroduction[1] On 2 March 2018 the appellant, who goes by the single name Nishant, wastried in a Judge-alone trial at the Tauranga District Court before Judge T R Ingram.He was acquitted of two charges of assault on a child and found guilty of one chargeof male assaults female and one charge of assault on a child.1 Nishant now appealsagainst his convictions.Background[2] Nishant faced one charge of male assaults female, relating to Ms A, and threecharges of assault on a child – Ms A's child (referred to as "the child" to protect heridentity). The child was aged eight at the time of the offending, and nine when shegave evidence at trial.[3] Nishant was in a relationship with Ms A for several years. It came to an endin early July 2017. During the course of the relationship, Nishant applied for and wasgranted a temporary residence permit, based on his relationship status. Ms A'sevidence was that once Nishant had obtained New Zealand residence status, hisattitude to her and her daughter changed to one of indifference. He no longer playeda meaningful part in family life. He wanted the child to leave the household and to goand live with her father.[4] Nishant faced four charges, arising out of two incidents of alleged offending,on 20 and 21 March 2016. The Judge summarised the evidence of Ms A and the childrelating to the 20 March 2016 incident as follows:2The evidence was that both the defendant and [Ms A] were seated on acouchThe essence of the allegation is that the defendant lost his temper with[Ms A], as a result of which he put his hands around her neck and began tochoke her. Thereupon the child came across the room and hit the defendant,who then used one hand to slap her about the head, which caused her to bleedfrom the mouth and blood was left on the carpet.[The child] also alleged that the defendant gave her what are known asChinese burns, which in New Zealand is widely understood to mean two hands1 New Zealand Police v Nishant [2018] NZDC 21250.2 At [3] and [4].being placed on a limb and the limb twisted forcefully in opposite directions,stretching the skin, reddening and hurting the skin in that location.[5] As for the 21 March 2016 incident, the Judge summarised the evidence ofMs A and the child as follows:[5] The events of 21 March are said to involve the defendant shaking [thechild's] head to the point where on her description she fell asleep and I imagineshe was describing a state in which she lost consciousness somehow. There isa dispute between [the child] and the mother as to when that was said to haveoccurred. In [the child's] evidence it was in the morning before school and themother's evidence it was in the evening after school. They were sure that ithappened on 21 March.[6] The Judge noted that Nishant denied every one of the allegations and said thatnone of this ever happened.[7] In relation to the allegation that Nishant had shaken the child's head, the Judgefound that the discrepancies between Ms A and the child's evidence were sufficient toraise a doubt in his mind as to what occurred, if anything, and when and where itoccurred. The Judge was accordingly not satisfied beyond reasonable doubt that theevents in relation to the head-shaking occurred as outlined. Nishant was accordinglyacquitted on that charge.[8] Similarly, in relation to the alleged Chinese burns, the Judge noted that therewas a dispute between Ms A and the child as to when that had happened. The childwas sure she received the Chinese burns on the evening that Ms A was choked. Ms Asaid that it definitely did not happen on that occasion. Given this conflict in theevidence, the Judge was not satisfied beyond reasonable doubt that those eventsoccurred in the manner or at the time alleged by the child. That charge was accordinglyalso dismissed.[9] As for the alleged slap to the child's face, the Judge observed that Ms A andthe child were adamant that the slap occurred and that Nishant was equally adamantthat the slap did not occur. The Judge then stated:3I can conceive of no reason why the child of that age would make up anallegation of this kind. On the other hand, the mother did not disclose any3 At [8].aspect of this when she made applications to the Family Court for a protectionorder. That was done mid-July 2017 and nothing in that application wasadvanced in connection with this incident.[10] The Judge concluded that:[9] The short question is whether or not the child was assaulted in the wayalleged, namely slapped in the face. Having seen and heard [the child giveevidence], I am satisfied that she is not lying about this matter. I am satisfiedthat she was indeed slapped in the face by the defendant and I do not acceptthe defendant's evidence that none of this happened. Had it been simplybetween the defendant and the child's mother, the child's mother's evidencewould probably not have been sufficient to persuade me, but the mothermaterially corroborates [the child's] allegation in every material respect. I,accordingly, accept her evidence and reject the defendant's evidence on thatparticular point and I find that charge proved.[11] Judge Ingram next turned to the charge of male assaults female, relating to thealleged choking of Ms A. Judge Ingram found that Ms A's evidence was materiallycorroborated by the child. The Judge acknowledged the criticism levelled at Ms A thatshe had not specifically referred to this incident in an affidavit she had filed in theFamily Court on 24 July 2017, when seeking a protection order (although he raisedthe possibility that she may have indirectly referred to the incident in that affidavit).Ultimately, the Judge concluded that:4Be all that as it may, I am quite satisfied that [the child] was telling me thetruth as to what she observed, passed between her mother and the defendant,and I accept her evidence as being accurate and reliable in relation to whatpassed between them on 20 March in the lounge. I am satisfied beyondreasonable doubt that the assault, as [the child] described it, occurred.[12] In summary, Nishant was acquitted on two of the four charges he faced, andconvicted in respect of the other two.Grounds of appeal[13] The notice of appeal identifies three grounds of appeal:(a) the Judge failed to give proper weight and consideration to all of theevidence;4 At [10].(b) the verdicts are inconsistent with the evidence; and(c) the Judge inappropriately posed the rhetorical question of why the childwould make up allegations of this kind.Approach on appeal[14] The appeal is brought pursuant to s 232 of the Criminal Procedure Act 2011.Section 232(2) relevantly provides that the Court must allow the appeal if it is satisfiedthat, in the case of a Judge-alone trial, the Judge erred in his or her assessment of theevidence to such an extent that a miscarriage of justice has occurred,5 or that amiscarriage of justice has occurred for any reason.6 A "miscarriage of justice" isdefined in s 232(4) as:any error, irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[15] A "real risk" that the outcome of the trial was affected will arise if there is areasonable possibility that a not guilty (or a more favourable) verdict might have beendelivered if nothing had gone wrong.7 Irregularities which "plainly could not, eithersingly or collectively, have affected the result of the trial" are not miscarriages ofjustice and the appellate court must disregard them.8 However, a finding that therehas been an unfair trial in terms of s 232(4)(b) means that it is unnecessary to considerwhether this may have affected the outcome of the trial because s 232(4)(b) assumesthat if an accused person has not received a fair trial then any resulting conviction mustbe set aside.95 Criminal Procedure Act 2011, s 232(2)(b).6 Section 232(2)(c).7 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110]; Wiley v R [2016] NZCA 28, [2016]3 NZLR 1 at [27].8 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; Wiley v R, above n 7, at [28].9 Wiley v R, above n 7, at [37].[16] The prevailing approach of the authorities when addressing an appeal under s232(2)(b) is to treat the findings as the equivalent of a jury verdict.10 To this effect,the Court of Appeal in Sena v Police has recently reiterated the summary of that Courtin the 2017 decision of Gotty v R:11[13] This appeal essentially attacks the factual findings made by a Judgesitting alone in accordance with the appeal ground set out in s 232(2)(b) of theCriminal Procedure Act 2011. The appellant must therefore demonstrate thatthe Judge's assessment of the evidence was attended by such error that thereis 'a real risk' the outcome of the trial was affected.[14] As this Court has noted in Roest v R factual findings that form thebasis of a verdict reached by a judge sitting alone are to be treated on appealas the equivalent of a jury verdict. So where an appeal amounts to a challengeto those findings, the principles in R v Owen will apply accordingly. It is wellto repeat those:(a) The appellate court is performing a review function, not oneof substituting its own view of the evidence.(b) Appellate review of the evidence must give appropriateweight to such advantages as the jury may have had over theappellate court. Assessment of honesty and reliability of thewitnesses is a classic example.(c) The weight to be given to individual pieces of evidence isessentially a jury function.(d) Reasonable minds may disagree on matters of fact.(e) Under our judicial system the body charged with finding thefacts is the jury. Appellate courts should not lightly interferein this area.(f) An appellant who invokes s 385(1)(a) [now s 232 of theCriminal Procedure Act] must recognise that the appellatecourt is not conducting a retrial on the written record. Theappellant must articulate clearly and precisely in what respector respects the verdict is said to be unreasonable and why,after making proper allowances for the points made above, theverdict should nevertheless be set aside. [15] It is not for thisCourt to set aside a verdict on the basis that we disagree withthe Judge's factual assessment. Something more is required tomeet the 'real risk' test."10 Gotty v R [2017] NZCA 528 at [14] and [15]; and Ahmad v R [2017] NZCA 320 at [59].11 Sena v New Zealand Police [2018] NZCA 203 at [9]; Gotty v R [2017] NZCA 528 at [13]-[15](footnotes omitted). I note that the Supreme Court granted leave on 10 October 2018 to hear afurther appeal from Sena v Police because the correct approach on appeal under s 232(2)(b) is aquestion of general and public importance: Sena v New Zealand Police [2018] NZSC 92.[17] I follow that approach in this appeal.Did the Judge err in his assessment of the evidence to such an extent that amiscarriage of justice has occurred?[18] The first two grounds of appeal both amount to the same essential challenge –that the Judge erred in his assessment of the evidence and as a consequence amiscarriage of justice occurred. However, as two different (but related) argumentswere advanced under this head, I will consider each in turn.Were the verdicts inconsistent with the evidence?[19] Mr Horsley submitted that the two conviction verdicts are inconsistent with theevidence. In particular, he submitted that the Judge's uncritical acceptance of thechild's evidence on the two proved charges is inconsistent with his rejection of herevidence on the dismissed charges.[20] The Judge's essential findings can be summarised as:(a) the discrepancies between Ms A and the child as to the time and placeof the head-shaking and the Chinese burns raised a reasonable doubt;and(b) there were no material discrepancies between the evidence of Ms A andthe child on the choking and the slap charges, each account materiallycorroborated the other, leaving no reasonable doubt.[21] The overall effect of the evidence from the child and Ms A was, in summary:(a) The child thought she had been shaken by Nishant in the morningbefore school, while Ms A said that the child had been shaken byNishant in the evening after school, leaving doubt as to when and if ithappened. They both agreed she had her school uniform on.(b) The child's evidence was that she received the Chinese burns on theevening that Ms A was choked. Ms A's evidence under cross-examination was that she did not see Nishant give the child a Chineseburn that night. This raised a doubt as to if and when it happened.(c) There were no such discrepancies as to the timing of the choking or theslapping charges. Both the child and Ms A agreed that they were in thelounge, that Nishant was choking Ms A, that the child slapped him, andthat he then slapped the child. Their accounts were consistent with oneanother in all material aspects.[22] In summary, there were important differences between the evidence of Ms Aand the child regarding the first two charges, but in regard to the choking and theslapping, they materially corroborated one another. This was a sufficient basis for theJudge to distinguish between the two sets of charges and find two proven, and two notproven. If anything, the distinction drawn demonstrates a careful and analyticalassessment of the evidence by the Judge, and shows that he carefully considered theapplication of the standard of proof in relation to each charge separately.Did the Judge fail to give proper weight and consideration to all the evidence?[23] Mr Horsley submitted that the Judge failed to properly analyse the evidence intwo key respects, namely:(a) he failed to address the inconsistencies in the Ms A's evidence and herearlier statements regarding the occurrence and location of the allegedchoking; and(b) he erred by relying on the child's corroboration in evidencenotwithstanding that the child did not mention strangling or choking inher evidential video interview, given there was the possibility ofcoaching.[24] On the first point, Mr Horsley submitted that at trial Ms A gave evidence thatthe assault on her occurred in the lounge, which differed from her Family Courtaffidavit, in which she stated that the choking took place in the bedroom. He submittedthat the Judge's observation that "it was at least possible" the incident "may have"occurred in the lounge is not consistent with the prosecution onus to prove the chargesbeyond a reasonable doubt.[25] Where the assault occurred is not an element of the offence, and accordingly itwas not a matter the Crown was required to prove beyond reasonable doubt. Rather,the key issue is whether the inconsistencies in the evidence on the issue of where theassault occurred were such that the Judge could not have been satisfied that Nishantchoked Ms A, beyond reasonable doubt.[26] Ms A's affidavit in support of her application for a protection order in theFamily Court stated at [12] that Nishant had choked her on two occasions. She statedthat the first time they were in the bedroom and the child was in the lounge and afteran argument he grabbed her by the throat. At [13] she stated that the second time"started in much the same way". There is no mention of where the second incidentoccurred.[27] The fact that the first incident was in February 2017 and the second was inMarch 2017 supports the inference that the second incident referred to is likely areference to the incident that gave rise to the male assaults female charge. However,neither paragraph [12] nor [13] mention that the child was also allegedly assaultedduring that incident. The Judge considered this apparent lack of disclosure whenassessing when the charge was proven. He found that while that affidavit does notexpressly refer to an incident that occurred in the lounge, it is at least possible that thereference at [13], referring to the second time, was a reference to the incident in thelounge.[28] His Honour found the evidence of the child, which underpins both convictions,to be both credible and reliable. The Judge preferred the evidence of the child andMs A over that of Nishant in relation to the two proven charges. He was satisfied thatthe child was not lying about being slapped in the face "having seen and heard" hergive evidence.12 He also found the child's evidence in relation to Ms A being chokedwas "accurate and reliable".13 Both of these are findings of credibility by a Judge who12 New Zealand Police v Nishant, above n 1, at [9].13 At [10].had the advantage of making the assessment after seeing the child complainant giveevidence and be cross-examined. It involves an assessment of honesty and reliabilitywhich is a classic example of an advantage the trial judge has over an appellate courton review and ought not to be interfered with lightly.[29] This is also directly relevant to the second point – that the child did not mentionstrangling or choking in her evidential video interview. Mr Horsley submitted that theJudge erred by relying on the child's corroboration in evidence, given this evidentialgap.[30] In the child's evidence in chief she gave the following information about thestrangling allegation at page 3 of the Notes of Evidence:Q. Now just about that, when that happened can you remember or do youremember where Mummy was?A. She was being strangled by Nishant so she was right next to Nishant.Q. Can you tell me a little bit more about that is that what you saw?A. Yes.Q. So what did you see?A. I saw Nishant attempt to strangle my mum.[31] The child then describes and demonstrates how Nishant was using one handand that he used "his left-hand to slap [her] in the right jaw" after she slapped him.[32] In examination in chief, the prosecuting sergeant asked the child whether shehad said anything about seeing Ms A being strangled in her evidential interview. Thechild responded:A. I don't think so but I know that she was - I don't know why I didn't sayit but I know that I said it when I - I remember when I was at OrangaTamariki I remember I said that but ...Q. Okay so that's something that you saw?A. Yes.Q. It's not something that mummy's told you?A. No.[33] In cross-examination Mr Horsley put it to the child several times that she wastold to say these things by Ms A. For example:Q. You told me just before that the day before you had your interviewyou and Mummy talked about the things that Nishant had done?A. Yes.Q. And you told me that it was Mummy who told you about Nishanthurting her finger?A. Mhm.Q. And it was Mummy who told you to talk about the Chinese burns inthe interview is that right?A. Yes.Q. And it was Mummy who told you to talk about Nishant shaking yourhead?A. No.Q. Nishant – and it was Mummy who told you to talk about Nishantslapping you and making your mouth bleed?A. She didn't tell me to say that she just told me to say what I thoughtwas right to say.[34] This evidence falls significantly short of establishing that the child wascoached and that the Judge's failure to expressly engage with this issue has arguablygiven rise to a miscarriage of justice. While the child accepted that Ms A told her totalk about the Chinese burns in the interview it is speculation as to whether that wasin the nature of coaching or of a more innocent nature. The child subsequently deniedthat she had been told to talk about the head-shaking or slapping, and stated that shehad only been told to say what she herself thought was right to say. In re-examination,the child stated again "[s]he did not tell me what to say she just told me to say what Ithought was right to say."[35] I have not been persuaded that the Judge, who had the benefit of hearing andseeing both Ms A and the child give evidence, has materially erred in his assessmentof their evidence. There are often inconsistencies between witnesses, and between awitness's evidence in court and their previous out of court statements. Suchinconsistencies provide fertile ground for cross-examination (as occurred in this case)and may impact on the assessment of a witness's credibility and reliability. They areonly one factor to be considered, however, in an overall assessment of the evidence.In this case I have not been persuaded that the inconsistencies relied on by Mr Horsleyare of such magnitude as to give rise to a real possibility that a miscarriage of justicehas occurred.[36] Ultimately, the two guilty verdicts resulted from Judge Ingram's assessment ofthe honesty and reliability of Ms A and the child, and what weight could be given totheir evidence. The factual findings made by the Judge were appropriate and open tohim on the evidence. He had the opportunity to see all three witnesses give evidenceand be cross-examined. He rejected the evidence of Nishant that the relevant eventssimply never happened, and preferred the evidence of Ms A and the child. There wasno apparent error in his assessment of the evidence, or in his resulting factual findings,let alone an error of such magnitude as to give rise to a real risk the outcome of thetrial was affected.Did the Judge's statement that the child had no known motive to lie amount toan error that resulted in a miscarriage of justice?[37] Judge Ingram stated in his judgment that:[8] In relation to the slap to the child, mother and child were adamant thatthe slap occurred. The defendant was equally adamant that the slap did notoccur. I can conceive of no reason why the child of that age would make upan allegation of this kind.[38] Mr Horsley submitted that it is inappropriate for the finder of fact to askhimself whether a witness had a motive to lie. He submitted that the danger of such acourse is apparent in the requirement in a jury trial to give a lies direction inappropriate cases.[39] It is not, however, unusual in trials for a prosecutor to suggest that acomplainant had no motive to lie, or to ask a defendant if he or she knows of anyreason why the complainant would lie. Such a course is permissible. It may beundesirable in many cases, however. In particular, it can give rise to potential dangersthat, in a jury trial, might require a direction by the Judge in summing up. The keyrisks are that such statements risk shifting the onus, or may suggest that the defendantis required to give a reason as to why a complainant is lying or mistaken. As theSupreme Court observed in Parker v R:14[3] The principal authorities on such directions emphasise the necessityto direct that, regardless of the state of the evidence about motive, the onus ofproof remains on the Crown through and it is not for an accused to provemotive.(Footnotes omitted.)[40] The Supreme Court further observed in Parker that "[t]he apparent absence ofmotive is of course a matter which a jury may properly take into account whenassessing a complainant's credibility but it is only one factor."15[41] In this case it was open to the Judge to conclude that the complainant had nomotive to lie, and to take that into account in assessing her credibility. Indeed, thedefence had squarely put whether the complainant had a motive to lie in issue bysuggesting in cross-examination that Ms A had told the child what to say.[42] There is nothing to suggest that the Judge somehow fell into error as a resultof concluding that the complainant had no motive to lie, for example by shifting theonus to the defence. The Judge was clearly aware that the prosecution bore the onusof proving the charges beyond reasonable doubt.[43] Mr Horsley's suggestion that a lies direction would have been required if thishad been a jury trial is misplaced. Lies directions under s 124 of the Evidence Act2006 are limited to lies by the defendant. Lies by other witnesses are addressed insumming up under the heading of credibility and reliability (as are any issues of awitnesses' motive to lie). It is in that context that the Judge considered the issue ofmotive to lie here.[44] In conclusion, it was open to the Judge on the evidence before him to concludethat the child had no motive to lie. There is nothing to suggest that, as a result of thisfinding, the Judge fell into error in his analysis, for example by reversing the onus ofproof. This ground of appeal therefore also fails.14 Parker v R [2008] NZSC 25.15 At [6].Result[45] The appeal is dismissed.__________________________Katz J