POMANA v NEW ZEALAND POLICE [2019] NZHC 2520

POMANA v NEW ZEALAND POLICE [2019] NZHC 2520 [4 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000274[2019] NZHC 2520BETWEEN RAHIRI POMANAAppellantAND NEW ZEALAND POLICERespondentHearing: 23 September 2019 (further submissions received 2 October 2019)Appearances: D Nairn for AppellantJ Bragg for RespondentJudgment: 4 October 2019JUDGMENT OF LANG J[on appeal against conviction and sentence]This judgment was delivered by me on 4 October 2019 at 11.30 am.Registrar/Deputy RegistrarDate[1] Mr Pomana faced charges of assaulting a female, threatening to kill and beingin possession of an offensive weapon. Following a Judge-alone trial before JudgeEarwaker, Mr Pomana was convicted in a written decision delivered on 8 April 2019.1On 11 June 2019 the Judge sentenced Mr Pomana to 22 months imprisonment on thecharges.2[2] Mr Pomana appeals against conviction and sentence. He contends amiscarriage of justice has occurred because the prosecution breached its obligation toprovide full and material disclosure to his counsel prior to the hearing in the DistrictCourt. He says this failure affected the outcome of the case and the convictions shouldbe set aside. In the alternative, he contends the sentence was manifestly excessive.The prosecution case[3] The complainant is Mr Pomana's former partner. In a videotaped interviewgiven at the time of the alleged offending she told the police that on 2 September 2018she was celebrating her birthday at a friend's house. She left that address to walk toanother friend's address. As she was doing so, she said Mr Pomana drove past andpulled into the driveway of her friend's house. She said he then told her to get into hisvehicle. When she refused, she said he dragged her into the vehicle forcibly.[4] The complainant said she then told Mr Pomana she had left her cellphoneinside the house and needed to retrieve it. This was a ruse to enable her to go backinto the address to ask the occupants to call the police. When the complainant wentback into the address, however, the occupants refused to call the police. Thecomplainant believed this was because Mr Pomana threatened the occupants when heaccompanied her into the address.[5] The complainant said she went back to Mr Pomana's vehicle because she didnot want to anything to happen to the occupants of the address. They then left theaddress and Mr Pomana drove towards Pakuranga Road. The complainant said thatduring the journey she was screaming and this caused Mr Pomana to threaten "to give1 Police v Pomana [2019] NZDC 6600.2 Police v Pomana [2019] NZDC 11040.her a hiding". As the vehicle travelled down Ti Rakau Drive, the complainant said shejumped out of the car. She landed in the middle of the road and tried to stop passingvehicles to get assistance. She said Mr Pomana stopped his car and parked on the lefthand side of the road. He then got out and ran towards her holding a screwdriver inhis hand. She said he threatened to kill her with the screwdriver. At this point thecomplainant said she was able to get up off the road and run towards a car parked in ashopping centre on the other side of the road. There she was able to get into the car ofa passing motorist, who had stopped to give her assistance. Once inside this person'svehicle she was able to call 111 for assistance.[6] When the police spoke to Mr Pomana about the incident he denied anyinvolvement in it.The hearing in the District Court[7] The prosecution called three witnesses at the hearing in the District Court. Thefirst was the complainant, who was clearly a reluctant witness. Her evidence in chiefwas effectively placed before the court in the form of her videotaped evidentialinterview. The prosecutor did not ask any supplementary questions. Mr Nairn thencross-examined the complainant on Mr Pomana's behalf.[8] At first the tenor of Mr Nairn's cross-examination suggested Mr Pomana wasdefending the case on the basis that he had been driving in the vehicle with thecomplainant but that none of the conduct she complained about had occurred. Inparticular, Mr Nairn suggested to the complainant that Mr Pomana did not have ascrewdriver in his hand and that he may have been yelling and waving his arms around.Mr Nairn then asked to speak to his client in private. After doing so Mr Nairn advisedthe Judge that Mr Pomana had clarified his instructions. Mr Pomana's position wasthat he was not the person driving the vehicle from which the complainant hademerged on Ti Räkau Drive and he had not been involved in any of the events thecomplainant had described.[9] Mr Nairn suggested that Mr Pomana needed new counsel, but the Judge wasclearly reluctant to put the matter off given the fact that the complainant was well intoher evidence. Mr Nairn did not formally seek to withdraw and did not seek to abortthe hearing. He then continued to cross-examine the complainant as follows:CROSS-EXAMINATION CONTINUES: MR NAIRNQ. Just going back to the start where you said this incident occurred I putit to you that it wasn't the defendant that came around to your addressor the address that you were at and picked you up in the car, that it wassomeone else. How do you respond to that?A. It was him.Q. Have you previously made allegations of a similar nature about hedefendant being responsible for similar type offending and thenbasically admit that it was someone else?A. What do you mean sorry.THE COURT:Is there any foundation for that question Mr Nairn?MR NAIRN:Yes from what the defendant has told me. It goes towards propensity.THE COURT:To what?MR NAIRN:To lying, to make up stories about a former partner.THE COURT:Q. Do you understand what the question is?A. No.Q. The question being asked of you is this, have you on another occasion,so not the time that we are talking about but another time said thatsomething has happened, said it was your partner the defendant but thatit was not true? Has there been any occasion like that? That is whatMr Nairn is asking you. Have you made a false allegation against thedefendant before? Do you understand the question?A. Yep.Q. What is the answer?A. I don't know.Q. You don't know?A. No.This concluded Mr Nairn's cross-examination of the complainant.[10] Neither the prosecutor nor the Judge sought to ask the complainant questionsabout whether she had made a previous false complaint against Mr Pomana.The omission to disclose the complainant's convictions[11] Following the hearing the police disclosed a redacted version of thecomplainant's previous convictions to Mr Nairn. One of these was a conviction formaking a false statement that an offence had been committed. The complainant hadbeen sentenced to one year's supervision for that offence on 26 September 2017. Thischarge related to an incident that had occurred on 11 December 2015. It was laid afterthe complainant and another female made a false complaint that a male (notMr Pomana) had grabbed the other female and dragged her away whilst carrying along butcher-type knife. This caused the police to arrest and question the personidentified by the complainant and her associate as having committed the offence. Itturned out that the complainant and her associate had spent the night with this personand he was able to satisfy the police he had not been involved in the incident the twofemales described. He was then released. The complainant and her associate admittedlater the same day that they had falsified their statements in order to have the maleperson arrested and charged.[12] This conviction should obviously have been disclosed to the defence prior tothe hearing, as should other convictions for offending involving dishonesty. Ms Braggaccepts on the respondent's behalf that this is so. The facts giving rise to theconviction for making a false complaint do not, however, tally with the question putto the complainant by Mr Nairn that she had previously made a false complaint aboutMr Pomana. Ms Bragg advised me during the hearing, however, that she had receivedinformation to suggest there may have been another proceeding in which thecomplainant had recanted her evidence during the defended hearing of a charge againstMr Pomana. I therefore adjourned the appeal to enable Ms Bragg to make furtherenquiries about this issue.[13] Ms Bragg has now ascertained that on 21 September 2017 Mr Pomana stoodtrial in the District Court at Auckland on a charge of injuring the complainant withintent to injure her. Prior to the trial Mr Pomana's counsel (not Mr Nairn) had obtaineda copy of diary notes that the defence contended were written by the complainant. Thenotes suggested the complaint was false and that another person had been responsiblefor the acts that led to the charge being laid against Mr Pomana. The defence calledevidence from an expert who said that the handwriting in the letter matched thecomplainant's handwriting. The defence had also been given disclosure of thecomplainant's conviction in 2015 for making a false statement that an offence hadbeen committed. These and other matters prompted the trial Judge to dismiss thecharge even though the complainant maintained in her evidence that Mr Pomana hadassaulted her.3 The complainant may therefore have been referring to this incidentwhen she was ambivalent at the hearing of the present charge in response toquestioning about making an earlier false complaint against Mr Pomana.[14] Ms Bragg now accepts on the respondent's behalf that the failure to discloserelevant matters has caused a miscarriage of justice because the Judge may well havetaken a different view of the complainant's evidence if he had been made aware of herprevious convictions and the issues that led to the other charge against Mr Pomanabeing dismissed on 21 September 2017. The respondent therefore accepts the appealmust be allowed.Result[15] The appeal is allowed. The convictions and sentence are quashed.[16] Ms Bragg contends the police should have a further opportunity to re-tryM Pomana given the seriousness of the charges. She therefore seeks an order unders 233(3)(b) of the Criminal Procedure Act 2011 directing a new trial in the DistrictCourt.[17] Mr Nairn submits on Mr Pomana's behalf that matters should be brought to anend at this point. He therefore opposes a re-trial being directed.3 Police v Pomana District Court Auckland CRI 2017-004-8117, 21 September 2017.[18] Several factors persuade me that I should not direct a new trial. First, thesituation that has arisen was caused by a serious failure on the part of the prosecutionto meet its disclosure obligations. It is difficult to see how the police could haveformed the view that the complainant's previous convictions were not relevant to thecharges that Mr Pomana faced.[19] Secondly, Ms Bragg's enquiries have revealed that the police did not speak toany of the persons who were at the house where the complainant said Mr Pomanathreatened the occupants. That is also a surprising omission because it would havebeen a simple matter for the police to have interviewed those persons to establish thatMr Pomana had been with the complainant shortly before the alleged offending.[20] Thirdly, the motorist who rendered assistance to the complainant after she gotout of the vehicle on Ti Rakau Drive did not identify Mr Pomana as being the maleperson who approached the complainant at that time. This leaves the complainant asthe only available witness who identifies Mr Pomana as being the person whoabducted and threatened her on 2 September 2018.[21] Fourthly, the complainant was clearly a reluctant witness at the hearing in theDistrict Court. If there is a re-trial the presiding Judge will also be required to assessher credibility taking into account not only her conviction for making a false complaintin 2015 but also her previous convictions for offending involving dishonesty and theissues that arose in relation to the charge Mr Pomana faced in 2017,[22] Fifthly, it appears unlikely that any re-trial would take place before early tomid-2020. This means a re-trail would cause a significant delay in bringing this matterto a conclusion given the fact that the incident giving rise to the charges occurred inSeptember 2018.[23] Finally, Mr Pomana has now been in prison since at least early November 2018.This means he has already served nearly the whole of the sentence he received on thepresent charges.[24] All of these factors persuade me it would be wrong to direct a re-trial. Itherefore make an order under s 233(3)(a) of the Criminal Procedure Act 2011 that ajudgment of acquittal be entered on all charges.[25] During a telephone conference this morning Ms Bragg advised me thatMr Pomana may presently be remanded in custody on another charge. Mr Nairnconfirmed he is not acting for Mr Pomana on that charge. The prison authorities willtherefore need to ensure they do not release Mr Pomana as a result of this judgmentunless he has already been granted bail on the other charge.Lang JSolicitors: