PHILLIP DALE JOHNSON v R [2021] NZCA 171

PHILLIP DALE JOHNSON v R [2021] NZCA 171 [7 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA520/2019[2021] NZCA 171BETWEEN PHILLIP DALE JOHNSONAppellantAND THE QUEENRespondentHearing: 23 March 2021Court: Miller, Brewer and Dunningham JJCounsel: Appellant in personR K Thomson for RespondentJudgment: 7 May 2021 at 2.00 pmJUDGMENT OF THE COURTA The application for leave to adduce fresh evidence is declined.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Johnson was found guilty by a jury of two charges of male assaults female.On 30 August 2019, he was sentenced by Judge R J Collins to 12 months' supervision,100 hours' community work and to make reparation for emotional harm in the sum of$1,000.1[2] Mr Johnson, who represents himself, now appeals his conviction and sentence.He appeals his conviction on the basis that justice miscarried because:(a) His trial counsel failed to follow instructions to call witnesses.(b) His trial counsel failed to put into evidence a video of the incidentrecorded by Mr Johnson on his cellphone which would have exoneratedhim.(c) Mr Johnson was denied his medication so that when he gave evidencehe was unable to do so effectively.[3] Mr Johnson did not address his appeal against sentence. We will considerwhether it was manifestly excessive if we dismiss the appeal against conviction.[4] Our task on the conviction appeal is to decide whether there has been amiscarriage of justice, which means whether there has been an error, irregularity, oroccurrence that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.2[5] Our task on the sentence appeal (if we get to it) is to decide whether there is anerror in the sentence such that a different sentence should be imposed.3Background[6] The nub of Mr Johnson's appeal against conviction is that what happened atthe trial was unfair to him because evidence going to his innocence was not called.We will first set out what happened at the trial and then analyse Mr Johnson'ssubmissions as to what went wrong.1 R v Johnson [2019] NZDC 21074.2 Criminal Procedure Act 2011, s 232(4).3 Criminal Procedure Act 2011, s 250(2).[7] The first Crown witness was the complainant, Ms Finny. Her evidence-in-chief was:(a) On 21 September 2018, she was driving her car along Ngunguru Road.(b) She saw a car being driven erratically. It tailgated her before overtakingher and several other cars.(c) Shortly afterwards, Ms Finny was driving directly behind the erraticallydriven vehicle. Ms Finny said the driver of the vehicle took exceptionto her being behind it and slammed on the brakes "which has sort ofcreated a bit of a disagreement between the two of us". Ms Finny saidshe reacted by "sort of giv[ing] him the fingers out the window andgo[ing], 'What are you doing?'"(d) Ms Finny went on to describe escalating road-rage which led to herturning left into Waiotoi Road and pulling over on o the grass verge tolet the other vehicle pass. Instead, "this person has then stopped rightnext to me and got out of the car".(e) Ms Finny said the other driver "stopped on the road preventing me toactually be able to drive away". Ms Finny accepted that the cars wereparallel.(f) Ms Finny then said that the driver of the other vehicle got out of it andthat was when she recognised the person. He was Mr Johnson.(g) Ms Finny gave evidence to the effect she also got out of her vehicle andwas "leant up against my car". There was then a "verbaldisagreement":Q. And what has occurred during this verbaldisagreement?A. This is where we have had a discussion that[Mr Johnson] said to me that, you know, I said, "Youcan't drive like that," you know, "Your driving isgoing to cause an accident," you know, "There's a lotof people on this road," he said that he'd lived outthere for 30-odd years he's never had an accident, Isaid, "Well there's more traffic on the road these daysthat," you know, "could still cause an accident," andthat's when he's come up and he said, you know,"This is my town," put his nose on my nose and I'vesort of put my hands up like this to say, you know,"Get out of my face" and that's when he has hit mearound the head.Q. And in terms of where you were, where were youpositioned –A. I was leaning, I was backed up against my car, so Ididn't have anywhere to move back to or anythinglike that.Q. And in terms of where the defendant was, he had –A. He had come forward –Q. Yes.A. – and put his nose on my nose.Q. And you said – and you've –A. I just did this motion here –Q. Yes.A. – as, you know, "Get out of my face,' and that's whenhe's hit me.Q. He's hit you. And so how many times has he hit you?A. Three or four times, it was sort of a bang, bang, bang.(h) Ms Finny gave evidence that she then heard a woman from across theroad say that she had called the police. Ms Finny picked up hersunglasses from the road and walked towards the woman "to say thankyou for calling the police". Ms Finny said that Mr Johnson was stillabusing her and the woman told them to leave her property and so theydid. She said that she and Mr Johnson walked back to their vehiclesand left.(i) Ms Finny gave evidence that she suffered a split lip as a result of theassaults. Photographs were produced taken "a couple of days" later atthe Whangarei Police Station.[8] Mr Johnson was represented at the trial by Mr John Day. Mr Day firstcross-examined Ms Finny on her evidence about the course of the driving which shehad described as occurring prior to the assaults. The point of the cross-examinationwas to portray Ms Finny as the erratic driver, not Mr Johnson. Mr Day told Ms Finnythat Mr Johnson was going to give evidence and he put Mr Johnson's version of thedriving incidents to her. Ms Finny did not accept it.[9] Ms Finny accepted that she knew that Mr Johnson lived in Waiotoi Road.She also accepted that Mr Johnson's vehicle was not blocking her from driving away.[10] Mr Day continued his cross-examination:Q. Now, you said that whilst trailing him going to Crawford Reserve, thatyou were concerned with the manner of his driving, you say he wasstaying on his brakes and you were giving him fingers and the birdand whatever. You were pretty worked up?A. I wouldn't say I was irate, but I was, you know, telling someone thattheir driving was unacceptable.Q. Frustrated, I mean that is my word.A. Yeah. I would say I was frustrated.Q. Annoyed?A. Not angry.Q. Annoyed?A. Not so much, maybe a little frustrated.[11] Mr Day watered down Ms Finny's evidence that she was hit by Mr Johnsonthree or four times by referring to her statement to the police in which she had said shewas hit between one and two times.[12] Mr Day put to Ms Finny that in fact she had pushed Mr Johnson. Ms Finnydenied it. Mr Day put to her that as a result of the push Mr Johnson stumbledbackwards and Ms Finny said "that's wrong". The cross-examination continued:Q. He will then say that having righted his balance, (inaudible 10:56:50)himself he pushed you back, pushed you back by way of his right palmto your left shoulder. That is what he will say.A. Okay, and so how did my lip get split then?Q. That's what he will say.A. Okay.Q. He will say that you stumbled backwards, did you?A. No, because I was already backed up against the vehicle.Q. He will say that you stumbled backwards and that your sunniessomehow came off your – you were wearing sunnies, weren't you?A. Yes.Q. Did you have them over your eyes or on your hair or on your forehead,do you know?A. If I remember rightly, they might – they were either on my eyes orsitting on top of my head, I can't quite remember at the time, I'm sorry.Q. But off they came.A. Yes.Q. And clattered onto the road.A. That's correct.Q. You're not normally asked, of me – how did you cut, how did yourbottom lip get cut but I'll turn it around.A. Okay.Q. We've seen the photographs?A. Mhm.Q. It does suggest that you did at the time have a cut lip. Was it the caseand during this — I'll call it, "altercation," my word, was it the case— did it happen then?A. Yes it did.Q. How did it happen?A. Well it all happened so quickly –Q. No, no, how, how did you – well –A. Oh, my tooth went through my lip.Q. Could that have been by – you say you didn't stumble backwards, butI'm suggesting you did, the shock of being pushed that you bit yourlip.A. No.Q. No? Okay. Could it have been caused by having been pushed to yourleft shoulder moving backwards, your glasses coming off, that maybeyour hand brushed your lip?A. No.Q. Do you wear rings? Wedding ring, engagement ring?A. No.[13] The next witness called by the Crown was Ms Glenda Warbrooke. She wasthe woman from across the road. She was asked:Q. And while you were in your house what have you – what have youseen?A. I saw the female pull up on the other side of the road in a car on thegrass, nobody lived in that house, I was a bit curious, and then themale pulled up very quickly, on the road blocking the lane, he got outof the car, went around, she got out of the car, so he was at the backof the car, she was at the back of her car at the rear but on the side,um, I couldn't hear anything because the door – window was closedbut they were obviously arguing, by their body language. Um, he –Q. And so you mentioned you've seen the car pull up and you've seenanother car drive behind her.A. No, he came a few seconds after.Q. A few seconds after.A. Yes.Q. And how as he – how was that car moving or what –A. Fast, he jammed his brakes on.Q. And, and was he – or, and a male has come out of that car?A. Yes.Q. And was he – what has he done when he's come out of the car?A. He's walked quickly to the back of the car and she had gotten out andwalked to the back.Q. And that's where they met?A. Yes.Q. And you've mentioned they were having a, an argument as – as youcouldn't hear it but you could see it?A. Yes.Q. What gave, what, what gave you that impression?A. Just gesturing I guess, with their hands, um, yeah, and it just didn'tlook right.Q. And while this argument's happened what have you then seen? Whathappened, what has happened next?A. Um, she started to smile and laugh a little bit and they seemed a bitmore relaxed. So I thought they might have been partners, they had abit of an argument, I didn't know what was going on really.Q. And has the argument stopped there or?A. I bent down and when I looked up he had moved, she hadn't moved,but he had moved right into her space. So I could not see her fully asI could have done before, I could just see down one side, so he wasright in her, right in her space.Q. Would you say you had a clear view of him in, in her face?A. Yes.Q. And what has that male then done?A. He then stepped back and then he raised his right arm up high andbrought it down on the female's face on the side of the head, hersunglasses came off and she dropped to the ground, before she got tothe ground he grabbed her by her upper arm, picked her back up againand hit her again in the side of the head, by this stage I was at thewindow yelling for him to leave her alone.Q. And once you intervened, what, what has happened?A. Um, he still had hold of her, and he looked around and then he lookedup and saw me, he quickly released her, he walked up the inside of hiscar, got his cellphone out and said, "I am recording this, I am recordinghis." He walked around the front of his car, down the side and that'swhen he yelled out, "She hit me first." The female came onto myproperty closely followed by him and I was a bit scared of him,I yelled out from the window to get off my property, they both left,I was concerned about her wellbeing, so I ran down the steps but shewas getting in her car and leaving. He was then talking to me again,I told him to leave and not to come onto my property and he then left.Q. And were you able to see Ms Finny assault the defendant or –A. I did not see her lay a hand on him.[14] In his cross-examination, Mr Day put it to Ms Warbrooke that Mr Johnson hadnot blocked Ms Finny's vehicle from leaving. Ms Warbrooke accepted that.He asked:Q. My friend asked you a question, "Did you see the female strike themale at all?"A. Yes.Q. And your response was?A. No I did not see her hit him.Q. Did you see the male stumble back at all?A. He stepped back with his left leg.Q. Not stumbled?A. No.[15] At this point Mr Day took Ms Warbrooke to her statement to the police:Q. Excellent. On the last paragraph, paragraph 10, page 1 you say, doyou not, "I did not see her hit him, she may have shoved him but Icould not see as he was in front of her." Is that what you said?A. Yes.Q. Okay, and over the page you say, "He stumbled back a bit."A. Yes.Q. That's the word I was asking you earlier, 'stumbled.' I know it was along time ago and it's hard to cast your mind back over a period oftime but this statement's made on 4 October, may I suggest it wouldbe more likely to be correct rather than your remembrance of the factnow?A. It may have been but when I say, 'stumbled' and what I call stumbledand what you may say stumble may be two different things as well, tome he moved back with his left leg.Q. But you do say the word 'stumbled,' that's what you say, it's not myword it's your word.A. Okay, he stumbled then.Q. He stumbled back a bit. In the preceding paragraph you say, "Shemay have shoved him."[16] Mr Day cross-examined Ms Warbrooke on her account of the assaults byMr Johnson:Q. When you say you saw two punches (inaudible 11:39:40), werethey punches or were they slaps? What were they? What did you see,what do you remember seeing?A. It was very quick, to me they looked like punches. But it was quick,it was very quick.Q. And looking at the photograph, photograph number 3, now you'vetold us where the vehicles are and you've said that they both wentaround to their respect, ends of their respective vehicles, and you'vementioned at one point in time it seemed to you that he got very closein her space?A. Yes.Q. Okay. When he stumbled, there was – to use the word in there, orstepped back, as you perhaps are now suggesting or saying now, howfar apart were the two parties, the male and female?A. They were still very close.Q. Right.A. Um, probably about that much distance between them.Q. Okay.A. He sort of stepped back and then to raise his arm.THE COURT:The witness estimated about 18 inches?MR DAY:Yes.THE COURT:Thank you.CROSS-EXAMINATION CONTINUES: MR DAYQ. Are you sure that way you saw wasn't him pushing her?A. No.Q. A push to her left shoulder?A. No.Q. What hand or arm do you say that he punched her with?A. His right.Q. His right, okay. Could you see if his hand was closed in a fist or anopen palm or –A. I did not take notice of that, no.Q. And why in part was that the reason?A. It just happened very quickly.Q. I put it to you that what you thought you saw, i.e. punches beingthrown, was in fact a push, a single push to her shoulder?A. Absolutely not.[17] In re-examination there was the following exchange:Q. It was put to you a few times the definition of "stumbled" andobviously you have a different definition, but if you could just confirmwhat you saw the actions of the defendant when, in relation to thatissue of the stumbling?A. It was a quick step back with his left leg, like to balance himself.[18] The third witness called by the prosecution was Constable Groves whointerviewed Mr Johnson at Mr Johnson's home in Waiotoi Road. He was asked:Q. In relation to the assault, we've heard from Ms Finny andMs Warbrooke that the defendant has applied two hits to Ms Finny'shead, what was his explanation in – in that?A. So Mr Johnson has denied assaulting Ms Finny. He did state a, nowmy brain is going to go blank, self-defence and that she first pushedhim. This is where he made a comment which sort of stuck in mymind which was his training kicked in and he sort of showed like apalm striking action.[19] In cross-examination, Mr Day had the Constable confirm that Mr Johnsoncomplained about Ms Finny's driving, and that Mr Johnson denied striking Ms Finnybut did admit to pushing her after Ms Finny had pushed him. Mr Johnson wanted tomake a complaint of assault against Ms Finny.[20] After the conclusion of the Crown case Mr Johnson elected to give evidenceon his own behalf. His evidence-in-chief was to the following effect:(a) It was Ms Finny who was driving erratically.(b) At one point Mr Johnson overtook Ms Finny but Ms Finny later"caught right up to me in no time". He said Ms Finny was still behindhim when they got to Ngunguru township, "yeah, she's pulling thefingers the whole way".(c) He turned into Waiotoi Road because that is where he lives.He stopped:A. 'cos I was worried about her driving, just it was, youknow.Q. Why not just carry on keeping driving, why not justbypass her and just go home?A. 'cos I was quite, well I wanted to know what it wasall about, I just couldn't understand why she wasdriving like that.(d) There was a conversation between the two of them about her driving.He denied that he invaded her personal space, saying that he stayed ata "good arm's length, easy".(e) Mr Johnson denied that he struck Ms Finny:Q. Tell the jury what happened?A. Um, after talking with her a while I touched asensitive subject with her and she stepped into me,you know, stepped in and pushed me, which –Q. How did she push you?A. Two hands, just shoved me.Q. And what did you do?A. I stumbled backwards, caught, yeah.Q. Why stumble, did you physically more stronger morerobust person?A. Ah, just caught me off guard that she just star – yeah,went from laughing all of a – and then just shovingher just caught me right off guard, didn't push meover but caught me off guard, I didn't expect.Q. Okay, now you're again your guard or pushing orwhatever, do you respond and if so how do yourespond to being pushed?A. Yes I pushed her sort of, I pushed her straight backwith this hand with my, on her left shoulder and she –A. Ah, she pushed me and I stumbled back and I justpushed her away, just did like, thing, keep yourdistance, it's all going like, I thought she was going tojust carry on attacking me, all I want to do is keep herat bay, you know.Q. So you essentially pushed her in response to beingpushed yourself?A. Yeah, she, yeah she pushed me and stuck me yeah, Ithought she was going to carry on spinning and hittingme so I just pushed her away like that, keep back.Q. Both she and Ms Warbrooke who's watching out herupstairs bedroom window.A. Yeah.Q. Says that Ms Finny stumbled backwards, that she, theforce of your push or whatever it was.A. Yeah she did stumble back and, um, yeah her handswent flying out she, yeah it was just dramat – and thenher glasses fell off she went over, picked those up andthen the neighbour yelled out, "Oi stop it you guys."And then I said, "I'm recording this don't worry." Andthen she went over to neighbouring, she goes, "Didyou see it, did you see it?" I said, "Yes she did see youpush me first," and then the neighbour said, "You guysjust go away I don't want your problems here, youknow," and so I left straight after that. That's, that's allit was.(f) Mr Johnson denied causing Ms Finny's split lip. The record is unclear,but Mr Johnson said that "when she went back" she could have"whacked it with her hands".[21] In cross-examination, Mr Johnson:(a) accepted he had an argument with Ms Finny;(b) denied he "put my nose into her nose";(c) denied he became angry and denied that he hit Ms Finny in the head.[22] Towards the end of the cross-examination, Mr Johnson confirmedMs Warbrooke's evidence that he had said he was recording the incident:Q. So you were recording this whole entire encounter?A. Yes.Q. But we haven't seen that have we?A. No, um, Mr Adam Groves, yeah he's seen it.THE COURT:Q. Sorry, who's seen it?A. Adam Groves, he come up to interview me.QUESTIONS ARISING CONTINUES: MR TAYLORQ. So he's seen the recording?A. Mhm.Q. And no one else?A. No one else that I know, oh my family.Q. That would explain quite a lot, wouldn't it, that recording?A. So it would.Q. But you saw – you heard Mrs Warbrooke –A. That's why I'm quite confident to sit here and say I did not push orattack her first.Q. But that recording would explain a lot.A. It would.Q. Where is it?A. At home.Q. Okay.A. Yeah.Q. Mrs Warbrooke that you've – after assaulting Ms Finny, you'vewalked to your car and then you have said, "Don't worry, I'mrecording," and you've grabbed your phone then?A. Ah, my phone was always in my pocket.Q. That's just because you have finally realised someone's watching youand seen what you have done and you panicked?A. No, it's because I do computers, I work with computers, phones andcomputer.THE COURT:Q. Okay – just, just pause. Let's just be clear. Are you saying that youhave video footage of what you say was the pushing at the rear of yourcar?A. I'm just saying I have a recording of the incident, the whole incidenttaking place.Q. Okay, we'll let's start – video recording or audio recording only?A. Video and video after the, the alleged assault.Q. Okay, and you're saying that you played the audio recording –A. Yes.Q. – to Constable Groves?A. Yes, yes. Adam Groves told me that she had admitted pushing firstbut he had to charge me based on what the neighbour independentwitness said.Q. Now don't worry, just, just confine yourself to what I have asked.A. Sorry, that's – I'm just doing that.[23] There was no re-examination and the defence case concluded. However,Judge Collins was sufficiently concerned by Mr Johnson's evidence that he hadrecorded the incident that the next day, 29 August 2019, he conducted a voir dire atwhich Constable Groves gave evidence.[24] Constable Groves said that Mr Johnson had briefly mentioned having a videorecording but that when the Constable asked to see it Mr Johnson said "it will comeup later". Accordingly, the Constable had not seen any video recording.Constable Groves was not cross-examined.[25] Judge Collins continued the trial. Counsel gave their addresses, the Judgesummed up and the jury eventually returned verdicts of guilty.[26] Judge Collins sentenced Mr Johnson the following day, 30 August 2019.The basis for Mr Johnson's appeal[27] Mr Johnson's grounds of appeal can be gleaned from the affidavits he filed inthis Court.[28] In his affidavit of 20 November 2019, Mr Johnson deposes he had asked hislawyer to play the video of the incident in Court but the lawyer did not. Mr Johnsonalso deposes that the lawyer "refused to bring in my witnesses as asked". Mr Johnsondeposes that the video shows there was no assault and also that Ms Finny lied "at leastsix times".[29] In a further affidavit sworn on 9 March 2020, Mr Johnson said he would likeMr Dale Johnson to be called to give evidence that Constable Groves did watch thevideo. He said Dale Johnson would also (we paraphrase) give evidence of alongstanding conflict between Ms Finny, her friends and family, and the Johnsonfamily. Mr Johnson deposed that on the day of the incident there was no mention thatMs Finny's friends helped her block the road "as seen and heard on the video".[30] Mr Johnson concludes his affidavit as follows:4All I wanted was a fair trial where I could take my medication and not be inpain and that the truth be told by police and so-called victims and that afterseeing my records you will see that I went from a few driving offences in41 years to having 21 callouts to our house by police in the last 3-4 years dueto our neighbours thinking our kids are there for their pleasure and to bephoto'd whenever they feel like it which is what really started this case. As4 We have used standard spelling.you could see there was no fingers being given by me before she pulled overlike she swore on the stand.Counsel's affidavits[31] Mr Johnson was represented by Mr Aaron Harvey prior to trial and by Mr Dayat trial. The Crown, following waiver of privilege, filed affidavits from both.[32] Mr Harvey deposed that Mr Johnson told him about his difficult history withthe complainant and her associates. He explained to Mr Johnson that this could beviewed in two ways. The first was supportive of Mr Johnson's narrative in that itwould provide an explanation for why Ms Finny would be the aggressor and why shewould make an inaccurate complaint. The second was that it provided a motive forMr Johnson to be the aggressor.[33] Prior to trial, Mr Harvey accepted employment in Christchurch and Legal Aidwas advised of this on 31 July 2019. Mr Day was assigned the case and Mr Harveyhad discussions with him. Mr Harvey provided Mr Day with his file, including adocument entitled "Working Notes".[34] Mr Day deposes he was assigned to the case by Legal Aid on 8 August 2019.He received Mr Harvey's file on 19 August 2019. Mr Day confirms that prior to thenhe discussed the case with Mr Harvey, and did so again after having received and readthe file. Mr Day deposes:4. IT was apparent from speaking with Mr Harvey and reading his filethat the trial had been well-prepared. Annexed hereto and markedwith the letter "A" is the witness brief of Mr Johnson, headed"Working Notes", as received by me from Mr Harvey's file (theunderlining of portions and other markings on those Notes have beendone by me and are in my hand).[35] The "Working Notes" referred to by Mr Day are a transcript of a recordedinterview Mr Harvey had with Mr Johnson on 30 January 2019. There is no referencein them to a video recording of the incident.[36] As to the recording made by Mr Johnson, Mr Day deposes:12. MR Johnson gave pretty good evidence and detailed, in my view, acredible and coherent narrative. When he said towards the end of hiscross-examination that he had taken a video of the whole incident, itwas the first time I had heard of it. Mr Johnson said he had nevershown anyone the video apart from his family and the officer in chargeof the case, Constable Groves. Constable Groves was recalled toestablish whether he had viewed the video in the course of hisinvestigation, and he said he had not; nor could he recollect anymention by Mr Johnson of it. I have still not seen the video thatMr Johnson has provided the Court.[37] One of Mr Johnson's complaints, developed in his evidence before us, is thatMr Day had very little to do with him before the trial and, he said, spent only10 minutes on the phone with him before trial. Mr Day, in his affidavit, denies that.He deposes he made initial contact with Mr Johnson by telephone on Thursday,22 August 2019, introduced himself, and went through the file in sufficient detail toassure Mr Johnson he was familiar with it. Mr Day deposes he told Mr Johnson hehad spoken with Mr Harvey on two occasions and suggested he meet Mr Johnson onMonday, 26 August 2019. Mr Day estimated the telephone call to have been of some10–15 minutes duration.[38] Prior to meeting Mr Johnson on 26 August 2019, Mr Day drove the routeMr Johnson and Ms Finny described to familiarise himself with it and to view thescene of the incident.[39] Mr Day deposes he met Mr Johnson during the luncheon adjournment at Courton 26 August 2019. He spent some three-quarters of an hour going through the fileand Mr Johnson's defence. Mr Day deposes:At no point during that discussion did Mr Johnson tell me that he hadrecorded or captured the incident as a video on his cellphone. Nor didhe suggest let alone instruct that he wanted any witnesses called. Thiswas consistent with the file I received from Mr Harvey, it being silentboth as to the existence of a cellphone video and to wanting anywitness or witnesses called.[40] Mr Day's file note, made later that day, is consistent with this account.[41] Mr Day attended Court with Mr Johnson on 27 August 2019 and 28 August2019. The first occasion was a callover to confirm the trial was ready to proceed laterin the week. The second occasion was to select and empanel the jury. Mr Day deposesthat he spoke with Mr Johnson about the trial on both occasions and that on neitherdid Mr Johnson raise with him his cellphone video or that he wanted any witnesses togive evidence in his defence.[42] Mr Day deposes:9. MR Johnson wanted to explain the backstory to this trial, that beingthe whole two-year history of his bad blood with the complainant andher family and circle of friends as part of his defence. I could see fromthe file that Mr Harvey had previously advised him that this would beunwise. I gave him the same advice: it could, probably would, providea motive for him to have begun the violence against the complainant.Mr Johnson accepted this advice.The evidence called on appeal[43] Mr Johnson gave evidence before us. Ms Thomson for the Crowncross-examined him on his relationship with his lawyers and about his medication.[44] Mr Johnson did not take real issue with Mr Harvey's representation of him.[45] On the issue of his video recording, Mr Johnson said that he did tell Mr Harveythat he "had a tape of the incident".[46] As to Mr Day, Mr Johnson was adamant that Mr Day telephoned him only thenight before the trial for five minutes.[47] Mr Johnson denied that he met Mr Day at the courthouse on Monday,26 August 2019 for about 45 minutes. He said he saw him for 10 minutes:That's it. That's all we had. There were no meetings at all. He didn't evenknow about any of the other people involved in the court case.[48] Later, there was this exchange:Q. When you spoke to Mr Day, you didn't tell him that you had acontemporaneous video of theA. Yes, I did. Yes, I did. I called for it to be played multiple times oncelocked up downstairs, along with asking for my witnesses to come in.As you'd seen if you watched the video, you can count I countedfive times she lied on the video. Why would I keep the video for twoyears and not ask it to be played if I picked up five lies that the victimsupposedly had said? You'd be mad. You've just watched someone liefive times, you have kept a tape for two years, would you not want itplayed? Would you honestly say no[49] Ms Thomson cross-examined Mr Johnson on the medication issue.Mr Johnson acknowledged he brought his pain medication to the Court but he said itwas taken from him when he was put into the cells.[50] Ms Thomson put to Mr Johnson the record made by Judge Collins that theJudge had been approached by the security guards because the guards were concernedabout how many medication pills Mr Johnson had taken throughout the day:Q. It was only at that point, after you had already given evidence andyour counsel had already closed to the jury, that the Judge directedthat your pain medication be taken away from you?A. Yeah.Q. Is that what happened?A. It's half of what happened and, like I said, it was taken away from mefirst thing in the morning. It wasn't in my hand to administer to myselfas I needed. It was given to me hourly, if that, by the security, orwhenever they thought I needed it, not when I needed it for my pain.Sitting on a concrete floor induced a lot more pain than I was used to,so I needed more and I wasn't receiving it.Q. But, to clarify, were you given access to your medication on a regularbasis throughout the day?A. No, I wasn't. I couldn't physically take it whenever I wanted, no.Q. But you were able to take some throughout the day?A. Yeah, I was able to take some when they seen fit. Not when I neededit, no.Q. You were able to give evidence in your own defence, weren't you,Mr Johnson?A. I'm able to do a lot of things without my pain meds but not veryefficiently.Q. And you didn't change your story when you were being cross-examined by the prosecutor?A. What do you mean?Q. You weren't confused by the questions that were being put to you andyou didn't change your account of what happened?A. I forgot a lot of things because I wasn't on my meds, yes. I forgot toinstruct the jury about the other people involved in blocking the roadwhich were clearly there on videotape. I forgot about a lot of things.I forgot about Adam Grove taking a videotape without a warrant orpermission or consent from me. I forgot about a lot. There's a lot ofthings I forgot. I was trying to focus on the back pain and the painI was in. That's all I was thinking about. I was even told by the Judgeto stop moving around. They kept telling me they were going to holdme in contempt if I kept moving. But I couldn't stop moving. I was sosore.[51] Mr Johnson maintained his position that he instructed Mr Day to call witnessesbut Mr Day did not do so. He said he wanted to call witnesses to proveConstable Groves did view the video recording before the trial and was therefore lyingwhen he said he had not.[52] We then allowed Mr Johnson to call his mother, Mrs Glenda Johnson, to giveevidence. Mrs Johnson was present in the courtroom in Whangārei and Mr Johnsonwas insistent that she could give evidence to corroborate his evidence on a number ofmatters not covered in her affidavit which was part of his evidence.[53] In the event, Mrs Johnson's oral evidence did not assist Mr Johnson's case.Mrs Johnson had no first-hand knowledge of anything relevant, save that she was inMr Johnson's presence when Mr Day telephoned to introduce himself.[54] Mr Day gave evidence and was cross-examined by Mr Johnson. Mr Day didnot depart from the evidence set out in his affidavit.Discussion[55] The issue for the jury was whether the Crown had proved beyond reasonabledoubt that Mr Johnson deliberately struck Ms Finny to the head. The two chargesreflected the Crown's case that at least two such blows were struck.[56] Judge Collins's directions to the jury succinctly focused it on the issues to bedecided. The Judge told the jury:[10] It does not matter whose driving was bad. It is clear that both themain participants, Ms Finny and Mr Johnson, think that the other drove badly.On the issues in this case is whether it was one push to the shoulder or whetherhe struck her twice to the head, it does not matter in the lead-up whose drivingwas at fault. It would not matter if her driving had been 100 percent at fault,that would not justify what has happened. And, it does not matter whether hisdriving had been 100 percent at fault, that does not make it necessarily morelikely that he did the things that she said he did in striking her to the head.[24] Right, now, I have explained to you that an assault is the intentionalapplication of force by one person to the person of another, and you might besaying to yourselves, "Well, hang on, the Crown case is two blows to the head,but Mr Johnson's admitted a push to the shoulder, so isn't that the intentionalapplication of force, wouldn't that be an assault?". In this case, if that was theview you came to, the Crown does not seek a conviction. The Crown hasnailed its case, or in each case, a blow to the head. So the Crown is saying,"Unless we have proved that to you beyond reasonable doubt, we don't seeka verdict of guilty."[25] Okay, now, pushing. If you are of the view that you think Ms Finnypushed Mr Johnson first, I am giving you a direction that this expression thatyou have heard of self-defence does not arise and you do not consider that.Self-defence and the direction I give you in this case is not an issue where apush would justify a male of Mr Johnson's size and build striking a female ofMs Finny's size and build in the head. So if you think that she did push him,that is no defence, if you like, in this case for him to have struck her in thehead. In any event, he says, "I didn't do that." He said, "All I did in responseto the push was a push to the shoulder," and as I have just explained to you, ifyou come to the view that all that he did was a push to the shoulder, then theCrown does not seek a conviction based on that.[57] We agree with those directions. Further, given the evidence of the eye-witness,Ms Warbrooke, it is quite clear the jury was entitled to find Mr Johnson guilty on bothof the charges on the evidence it heard.[58] The issue on appeal, therefore, is whether the matters raised by Mr Johnson, ifestablished, create a real risk that the outcome of the trial was affected; or the trial wasunfair.Failure to call witnesses[59] First, we do not accept that Mr Johnson instructed Mr Day to call witnessesand that Mr Day failed or refused to do so. We accept the evidence of Mr Harvey andMr Day that Mr Johnson accepted advice that calling evidence of the long-termanimosity between Mr Johnson, Ms Finny and people associated with them would notassist Mr Johnson's case. It was good advice.[60] Before us, Mr Johnson seemed most concerned about a failure to call witnessesto corroborate his account that Constable Groves had viewed his video recording ofthe incident. He submitted that Constable Groves's evidence on this point damagedhis credibility in the eyes of the jury.[61] We heard evidence from Mr Johnson's mother. She could give no evidence onthis point.[62] Mr Johnson's father, Mr Dale Johnson, filed an affidavit in which he deposesonly:I was in the shed and saw Constable Adam Grove turn up to our house and goin and see [Mr Johnson]. So I wandered over and stood outside on the deck.Adam Grove was looking at [Mr Johnson's] cellphone trying to find the videoon it.[63] This does not materially assist Mr Johnson. Mr Dale Johnson does not say hesaw the Constable viewing the video recording, nor how he knew the Constable was"trying to find the video on it". One inference is that this is what Mr Johnson told himlater.[64] In any event, Constable Groves was not asked any questions about the videorecording in front of the jury, either in evidence-in-chief or in cross-examination.There was no conflict between his evidence and that of Mr Johnson.[65] We accept Mr Day's evidence that Mr Johnson did not, prior to the trial, tellMr Day that he had made a video recording of the incident. Not only is Mr Day'sevidence consistent with Mr Harvey's evidence on this point, but had Mr Johnson toldMr Day about the video recording it is inherently incredible that Mr Day would nothave immediately asked to see it. It could potentially be decisive evidence for thedefence.[66] Nor do we accept Mr Johnson's criticisms of Mr Day's level of trialpreparation. It is clear that Mr Day discussed the case with Mr Harvey, familiarisedhimself with the scene of the incident, read Mr Harvey's file and met with Mr Johnsonmore than once before the trial. This was not a complicated case.Evidential value of the video record[67] A person who appeals a conviction cannot as of right refer the appellate courtto new evidence. For new evidence which was not presented at trial to be admitted onappeal, it must be:5(a) credible;(b) fresh (that is, the evidence could not, with reasonable diligence, havebeen produced at trial); and(c) cogent (that is, the evidence, in combination with the other evidence attrial, might reasonably have led to a finding of not guilty if it had beencalled at the trial).[68] It is difficult to conclude the video record is credible. It is a recording of arecording and the screen goes blank at the critical moment. However, for the sake ofargument, the Crown accepts the video recording shows the incident as it took place.We will adopt that position.[69] It is clear the video record is not fresh. It could have been produced at the trial.[70] However, as always, the interests of justice are paramount. The criterion ofcogency is the most important and so we will assess the evidential value of the videorecord.[71] We have viewed the video record. It is of poor quality and at times thecellphone screen appears to be obscured by static. It does not show anything ofsignificance because, during the confrontation between Mr Johnson and Ms Finny, thecellphone appears to have been carried by Mr Johnson at about waist level. It doesnot show any of the physical violence between the two. As we have said, at the criticalmoment, the screen goes blank.5 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].[72] The evidential value of the video record lies in the associated audio record.The cellphone appears to have recorded what was said between Mr Johnson andMs Finny during their confrontation. It does not assist Mr Johnson because it isapparent that he is the more verbally aggressive. Ms Finny does not shrink from theconfrontation but she largely responds to Mr Johnson's remarks.[73] It is not possible to infer from the audio record what happened during thephysical violence. Each accuses the other of violence. Mr Johnson is heard saying toMs Warbrooke to note that Ms Finny pushed him first. The most that can be takenfrom the audio record in favour of Mr Johnson is that it does not exclude the possibilitythat Ms Finny pushed him before he retaliated.[74] Having viewed the video record, we understand why Mr Johnson did not tellMr Harvey or Mr Day about it. The record does not exonerate Mr Johnson. It showshim to be the initiator of the confrontation with Ms Finny. It shows him to be verballyaggressive and it is consistent with the Crown case that Mr Johnson struck Ms Finny.[75] The video record is neither fresh nor cogent. Its absence from the trial evidencedid not create a real risk that the outcome of the trial was affected or that the trial wasunfair. We therefore decline to admit it as evidence in the appeal.Medication[76] We are satisfied there is nothing cogent in Mr Johnson's complaint about beingdeprived of his medication.[77] First, he was not deprived of his medication. As his answers incross-examination quoted above at [50] make clear, he was given his medication butwas not able to take it whenever he wanted it. The issue reported to Judge Collins bythe security guards was that they thought Mr Johnson was taking too much of themedication. Judge Collins recorded:6[2] Throughout the day Mr Johnson has presented as alert. He gaveevidence, he gave a coherent narrative, he had no difficulty understanding andanswering the questions. He was argumentative as a witness but not any more6 R v Johnson [2019] NZDC 16993 (Ruling 1 of Judge Collins).so than a number of witnesses. But after the jury had retired to consider theirverdicts, which they are still doing, I directed that he was not to take anyfurther medication until we knew what it was he was taking and what he wastaking was in the directional prescription provided by his doctor. I said thathe was to take no further medication until he had given authority to Mr Dayto speak to his doctors.[78] The transcript of Mr Johnson's evidence gives no indication that Mr Johnsonwas in any physical discomfort. There is no allegation that Mr Johnson complainedto Mr Day or to anyone else that he was being deprived of medication. Having seenand heard Mr Johnson, we have no doubt he would have complained vigorously ifthere had been a real problem.[79] We are not persuaded that Mr Johnson was deprived of medication and soaffected by that as to make his trial unfair.Outcome of appeal against conviction[80] We are satisfied that Mr Johnson received a fair trial. There is nothing in thegrounds of appeal which suggest a miscarriage of justice. The issues in the trial, asdirected by Judge Collins, were simple and clear. It came down to whether the Crowncould prove beyond reasonable doubt that Mr Johnson, at least twice, struck Ms Finnyin the head. The jury was entitled to find Mr Johnson guilty on the charges. Wedismiss the appeal against conviction.The appeal against sentence[81] As we have said, Mr Johnson did not address his appeal against his sentence.We will consider for ourselves whether it was manifestly excessive, in which case adifferent sentence should be imposed.[82] Judge Collins sentenced Mr Johnson the day after he was found guilty by thejury.7 It was a short hearing. The Judge said to Mr Johnson:[4] You have a history of violence. You obviously have a very poor abilityto control your temper. You have three convictions for violence and you havealcohol driven offending in your history. At some point, Mr Johnson, a Judgemight say, "Enough is enough and you can go to prison." Well, today is not7 R v Johnson, above n 1.that day. I am not threatening you, this is for your own benefit, you are gettingclose, but for today, you will be sentenced to 12 months' supervision and thatwill be on the following special conditions:(1) You are to undertake assessment for alcohol and other drugabuse. You, I suspect, are at real risk of becoming potentiallyaddicted to pain killers or prescription medication.(2) You are also to undertake assessment for anger managementand assessment for a Departmental programme and all of thatis as directed by a probation officer.(3) Thereafter, you are to undertake any programmes, counsellingor treatment as recommended by the assessments and asdirected by the probation officer and to the satisfaction of theprobation officer and treatment provider.[83] In addition to the sentence of supervision, the Judge sentenced Mr Johnson to100 hours' community work and ordered reparation of $1,000 for emotional harm tothe victim.8[84] The history of violence to which the Judge referred begins with convictions in2011 for assault with intent to injure and common assault for which Mr Johnson wassentenced to nine months' supervision and 160 hours' community work. In 2017 hewas convicted of making threats and of common assault. He was sentenced on thesecharges to 150 hours' community work and to make reparation of $200.[85] It is clear from the special conditions imposed by Judge Collins that he wasconcerned with rehabilitation. Given Mr Johnson's record, his initiation of theconfrontation with Ms Finny, and his lack of remorse, the Judge could well haveimposed a greater sentence. The sentence he did impose cannot be described asmanifestly excessive.Decision[86] The application for leave to adduce fresh evidence on appeal is declined.8 At [5].[87] The appeal against conviction is dismissed.[88] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent