JOHNSON v R [2020] NZCA 559

JOHNSON v R [2020] NZCA 559 [12 November 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA520/2019[2020] NZCA 559BETWEEN PHILLIP JOHNSONAppellantAND THE QUEENRespondentCourt: French, Gilbert and Collins JJCounsel: Appellant in PersonR K Thomson for RespondentJudgment:(On the papers)12 November 2020 at 9 amJUDGMENT OF THE COURTThe judgment issued on 15 October 2020 is recalled and reissued and ordersmade as set out at [6].____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] On 15 October 2020, we delivered a judgment declining Mr Johnson'sapplication for an order requiring Constable Grove to attend the appeal hearing and beexamined.[2] Very shortly thereafter, the Crown filed a memorandum pointing out there wasan error in the judgment. The judgment stated that the jury did not hear any evidencefrom Constable Grove about a recording made by Mr Johnson. That was incorrect.The correct position was that while Constable Grove did not initially give any evidenceon that subject, he was recalled later in the hearing at the close of the defence case andasked about the recording.[3] We regret the error. Unfortunately, the notes of evidence did not containthe evidence given by Constable Grove when he was recalled. There was an additionalfolder containing a transcript of the recall evidence, but it was wrongly headed as beingevidence given at a voir dire hearing, that is to say in the absence of the jury.[4] In light of the error in the judgment, we advised the parties by minute thatthe judgment would be recalled and Mr Johnson's application would be consideredafresh on the correct factual basis.1 The parties were also given an opportunity tomake any further submissions if they so wished. They have not done so.[5] We have now considered the matter afresh but have concluded thatthe evidence given by Constable Grove after being recalled does not alter the outcomeof Mr Johnson's application to have him attend the appeal hearing.[6] We therefore formally recall the judgment of 15 October 2020 of our ownmotion. The judgment is amended and reissued as follows:(a) The addition of three new paragraphs after the current paragraph [4]which read as follows:At trial, the existence of a recording was first raised by Mr Johnson whenhe gave evidence, that is to say it was first raised after the Crown casehad closed. Mr Johnson testified that when a bystander called out to himand the complainant to "stop it", he told the bystander not to worry, thathe was recording it.2 In cross-examination and also in response toa question from the Judge, Mr Johnson testified that he had recordedthe entire encounter. He also stated there was both an audio and a videorecording. He had not however brought either with him to Court.1 Johnson v R CA520/2019, 19 October 2020.2 We note for completion that this bystander gave evidence and in her evidence had noted thatMr Johnson had got his cellphone out during the incident and said "I am recording this, I amrecording this". However, this was not explored further in her evidence or in cross-examination.When it was put to Mr Johnson that "we haven't seen that", he repliedthat he had shown it to Constable Grove.The existence of the recording had never been put to Constable Grovewhen he was being cross-examined. There is a dispute betweenMr Johnson and his trial counsel as to why that happened. That will bea matter for consideration at the appeal hearing but for present purposeswhat matters is that as a result of Mr Johnson's evidenceConstable Grove was recalled and asked about the recording.When recalled, Constable Grove testified that Mr Johnson hadmentioned a video recording to him but said that when he asked to seethe recording Mr Johnson had replied that it "will come up later".Constable Grove went on to say that when Mr Johnson would not play itto him, he just thought it was probably falsehoods. Constable Groveconfirmed, in response to the question "at no point in time were you evershown a video or audio recording?", "At no time at all".(b) The deletion of the current paragraph [6].(c) The addition of two new paragraphs after the current paragraph [5] whichread as follows:We accept that Constable Grove's denial of ever seeing the recordingwhen combined with Mr Johnson's failure to produce the recordingwould likely have damaged Mr Johnson's credibility with the jury.However, Mr Johnson has provided this Court with the recordings thathe says he showed Constable Grove and they will be available tothe panel hearing the appeal. As mentioned, Mr Johnson contendsthe recordings will prove there was no assault. It follows that whetherConstable Grove did or did not view the recording is not material tothe outcome of the appeal.(d) The amendment of the current paragraph [7] by deleting the last twosentences.Solicitors:Crown Law Office, Wellington for Respondent