RAYMOND ARANUI v R [2022] NZCA 25

RAYMOND ARANUI v R [2022] NZCA 25 [22 February 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA394/2021[2022] NZCA 25BETWEEN RAYMOND ARANUIAppellantAND THE QUEENRespondentHearing: 9 November 2021Court: Miller, Goddard and Katz JJCounsel: DHP Schellenberg for AppellantB D Tantrum and DMA Wiseman for RespondentJudgment: 22 February 2022 at 3.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Raymond Aranui was found guilty by a jury of one charge of wounding withintent to injure.1 He was sentenced by Judge B A Gibson to six months' communitydetention and one year of intensive supervision.2[2] Mr Aranui appeals against his conviction on the basis that:1 Crimes Act 1961, s 188(2). Maximum penalty of seven years' imprisonment.2 R v Aranui [2021] NZDC 16235.(a) the trial Judge erred by ruling that hearsay statements of thecomplainant were admissible;(b) the trial Judge's summing-up was unbalanced, because it failed toadequately summarise the defence case; and(c) the jury's verdict was unreasonable and went against the weight of theevidence.[3] The Court must allow the appeal if it is satisfied that a miscarriage of justicehas occurred for any reason.3 A miscarriage of justice includes any error, irregularity,or occurrence in or in relation to or affecting the trial that:4(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.The trial[4] Mr Aranui had been in a relationship with the complainant for about threemonths at the time of the offending.The prosecution case at trial[5] The prosecution case was that at around 3.15 am on 27 January 2020,Mr Aranui and the complainant were together on a street in Grey Lynn, Auckland.They were having a loud verbal altercation. Mr Aranui yelled at the complainant to"fucking shut up" and then grabbed her by the back of the neck and forced her to walkalong the street.[6] After a short time, the complainant struggled free of Mr Aranui's grip andattempted to flee. Mr Aranui chased after her. When he caught up, he picked her upby the waist, lifted her up off the ground, and then tipped her whole body over,3 Criminal Procedure Act 2011, s 232(2)(c).4 Section 232(4).slamming her headfirst onto the ground with her full bodyweight on her shoulder andneck. While the complainant was on the ground, Mr Aranui struggled briefly with her.The complainant began kicking out at him in an attempt to defend herself. Mr Aranuimanaged to grab hold of the complainant's ankles and dragged her by her feet alongthe concrete towards the footpath on the side of the street.[7] At some stage during this incident, Mr Aranui allegedly punched thecomplainant repeatedly to the face. A member of the public called 111 and policearrived at the scene shortly afterwards.[8] The complainant suffered a swollen black eye, swelling to the left front of herhead, multiple abrasions and grazes to her back and knees, nasal bone fractures andloose teeth. She was later diagnosed with a minor traumatic brain injury.The defence case at trial[9] The defence case at trial was that Mr Aranui did not cause the injuries to thecomplainant. Rather, she had been assaulted by her cousin's ex-partner earlier in theevening, prior to meeting with Mr Aranui. The complainant was therefore alreadyinjured, as well as being highly intoxicated, when Mr Aranui met up with her.[10] Mr Aranui was locked out of his apartment. Given that the complainant wasdistressed, Mr Aranui escorted her to a nearby park to calm her down and assist her.Along the way, the complainant continued to fall down and hurt herself, due to herlevel of intoxication. Those falls caused the remainder of her injuries.Did the Judge err by admitting hearsay statements of the complainant?The hearsay statements[11] Constable Insia Abdullali was one of the police officers who found Mr Aranuiand the complainant lying under a tree in a park. Due to the complainant's injuries,she was taken to hospital. Constable Abdullali accompanied the complainant in thepolice vehicle.[12] During the journey to the hospital, the complainant made several statements toConstable Abdullali. The officer's notebook records the following:Taking [the complainant] to the hospital to check her injuries; found[the complainant] at Western Park under a tree lying down.States that her friend/boyfriend gave her a hiding. She stated that she knewthe male since last September and met him through someone called Gordon.She stated that when the male punched her she peed her pants and didn't [hit]him back. She said she started drinking because of the pain in her head. Shealso stated that she was okay when he punched her on one side of the head butshe became dizzy after the 2nd punch to the other side of the head. She statedthat the male tried to punch her teeth out.Doctors at Auckland hospital states that she's out of it and requires a head scandue to the severity of [the] injuries.[13] The complainant could not subsequently be located to give evidence.The Crown therefore filed a pre-trial application to lead the statements she hadallegedly made to Constable Abdullali as hearsay evidence.5 Mr Aranui opposed theapplication.The District Court decision[14] Judge Gibson found that the complainant's statements, as recorded byConstable Abdullali, were admissible.6 The Judge considered that the circumstancesrelating to the statements provided reasonable assurance that the statements weresufficiently reliable. This was because the statements were made shortly after theincident; the contents of the statement were coherent; the fact the complainant had"peed her pants" was corroborated by the Constable's evidence that the complainantsmelled of urine and was later found washing her underwear at the hospital; and thecomplainant did not deny that she had been drinking alcohol.7[15] The Judge noted that the complainant had recently suffered a head injury, sowhile she appeared intoxicated to other persons, that does not mean she was notcoherent (as the Constable deposed).8 Judge Gibson concluded that the jury would be5 Evidence Act 2006, s 18.6 R v Aranui [2021] NZDC 2110 at [10]–[11].7 At [10].8 At [10].able to determine the weight to be given to the complainant's hearsay statements inthe context of Mr Aranui's evidence and the evidence of medical staff.9Submissions on appeal[16] Mr Schellenberg, counsel for the appellant, submitted that the Judge shouldhave found the hearsay statements to be unreliable, and therefore inadmissible, for thefollowing reasons:(a) The statements are simply Constable Abdullali's account of what thecomplainant said. They were not read back to or signed by thecomplainant.(b) Constable Abdullali had an incentive to record statements favourablytowards the prosecution.(c) Constable Abdullali would have been prioritising obtaining medicalcare for the complainant, rather than focusing on what was being said.(d) The Judge erred by finding that the statement was corroborated by theConstable's own evidence (regarding the complainant having "peed"herself).(e) Constable Abdullali's questioning of the complainant was contrary tothe principles set out in the Chief Justice's Practice Note – PoliceQuestion (s 30(6) of the Evidence Act 2006) (the "Practice Note"), andfell short of the standard described in the Police Investigativeinterviewing witness guide (the "Interviewing Guide").10(f) The complainant gave her statement in the early hours of the morningwhile she was injured and intoxicated. The medical staff described her9 At [11].10 Practice Note — Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297; andNew Zealand Police "Investigative interviewing witness guide" (14 June 2012) (obtained underOfficial Information Act 1982). The Interviewing Guide appears to be an internal police documentthat was obtained by request under the Official Information Act 1982.as "out of it" and she scored 13 out of 15 on the Glasgow Coma Scale.The Judge should not, therefore, have accepted Constable Abdullali'sassertion that the complainant was coherent when she spoke to her.Discussion[17] Constable Abdullali recorded the complainant's statements in her notebookshortly after they were made. The officer would no doubt have been aware of theimportance of accuracy, and that she may later be cross-examined on her notes inCourt. She had no incentive to falsely implicate Mr Aranui, as opposed to any otherpossible offender, such as the complainant's cousin's ex-partner. Her role was simplyto impartially investigate an alleged crime. There is nothing to suggest that she didnot do so.[18] There is evidence that the complainant was intoxicated and may have suffereda head injury. On arrival at hospital she was assessed at 13 out of 15 on the GlasgowComa Scale (with 15 being normal). This tends to suggest that while there may havebeen a degree of impairment, it was not at the severe end of the spectrum. Further, itcannot automatically be assumed that an intoxicated person will give a statement thatis untruthful or unreliable. There may well be a greater risk of a person who is notintoxicated fabricating a story. Here, the officer gave evidence in a voir dire that, giventhe circumstances, the complainant answered her questions in a coherent manner.Further, the officer noted that the statements made by the complainant were elicited inresponse to open ended questions.[19] The officer was also entitled to give evidence, based on her personalobservations, that corroborated one aspect of the complainant's statement(namely, that she had "peed" herself). There was nothing improper or unfair aboutthis.[20] The suggestion that the complainant should have been asked to sign theofficer's notes, despite being in distress, injured and in transit to hospital, ignores thepractical realities of policing. The hearsay statement is not inherently unreliablesimply because the complainant did not sign it. Rather, this is a further factor thatgoes to weight, which was a matter for the jury.[21] The Interviewing Guide contains non-prescriptive guidelines to assist police inthe interviewing of witnesses. There was little or no scope, however, for the variousformalities set out in that document to apply to a conversation that took place in apolice car on the way to hospital between a police officer and an injured victim of anapparent crime. In any event, the Interviewing Guide provides for officers to takestatements in their notebook in "exceptional" circumstances, such as when it isimpractical to conduct a formal interview. That clearly applied in the circumstances.[22] As for the Practice Note, the purpose of that document is to protect the rightsof suspects during police questioning. It has little or no relevance to the discussionthat took place between the complainant and Constable Abdullali in the police car.[23] Constable Abdullali is a law enforcement professional who was investigatinga possible crime. While she may have been concerned about the complainant'sinjuries, we do not accept that this would have distracted her to the extent that shewould have recorded statements in her notebook that the complainant did not make,and which falsely implicated Mr Aranui.[24] Ultimately it was for the jury to decide what weight to give the statement inthe context of the overall evidence, including evidence about the complainant's mentalstate at the time she spoke to Constable Abdullali. We are satisfied that the Judge didnot err in finding that the circumstances relating to the statement provided reasonableassurance that the statement is reliable. It follows that it was properly admitted ashearsay evidence at trial.Was the Judge's summing up unbalanced and/or unfair?[25] Mr Aranui's second ground of appeal is that there were several failings in theJudge's summing-up, namely:(a) The Judge failed to mention that the defence case was that thecomplainant was already injured when Mr Aranui met her that night,and that any subsequent injuries were caused by multiple falls, not justthe one fall that the Judge noted.(b) The Judge improperly expressed his own views that two of the Crown'switnesses were honest and reliable. The Judge did not provideMr Aranui's evidence with such support.(c) The Judge comprehensively outlined the medical documents referredto by the Crown, but only mentioned the medical evidence referred toby the defence in the context of discrediting it with respect to thecontradictory Crown evidence.Did the Judge fairly summarise the defence case?[26] The defence case at trial was that someone else, namely the complainant'scousin's ex-partner, had assaulted the complainant, causing some of her injuries, andthat this occurred prior to her meeting with Mr Aranui. Further injuries were likelycaused by the complainant falling over onto the pavement, due to her level ofintoxication.[27] The key evidence in support of the "alternative assailant" scenario was ahearsay statement that the complainant made to an occupational therapist shortlybefore she was discharged from hospital. The complainant told the occupationaltherapist that her cousin's ex-partner had assaulted her.[28] Some additional support for this scenario was provided by Mr Aranui'sevidence. Although he did not witness the purported earlier assault, he said that whenhe first saw the complainant that evening, he noticed that she had a "cut or a grazing just under her eye". He further stated that he did not notice any other marks orinjuries on her. This is consistent with Mr Aranui's contemporaneous police statementin which he said that he had not seen any bruises or injuries to the complainant's faceprior to her falling over that evening, but he did see "a scratch".[29] The police photographs showed the complainant with much more extensivefacial injuries than those described by Mr Aranui, including a black eye and significantfacial grazing. The defence case was that most of the complainant's injuries werecaused by accidental falls onto the pavement.[30] In closing, defence counsel summarised the "alternative assailant" scenario asfollows:Mr Aranui didn't wound [the complainant]. He had no intention to injure her.He found his partner disorientated, beaten up and bleeding. He's concernedand he's trying to help her. She's hysterical She's intoxicated on drugs andalcohol. She's unsteady on her feet. She's falling over. This is how she's hurtherself Mr Aranui is trying to help her.[31] When summing up, the Judge did not expressly refer to Mr Aranui's evidencethat the complainant had a cut, graze or scratch under her eye when he first saw her.Ideally, the Judge should have referred to this aspect of the evidence. However,relatively little turns on this omission, given that this aspect of Mr Aranui's evidencewas referred to in both the prosecution and defence closings. Further, Mr Aranui'sevidence as to a very minor pre-existing injury (a scratch or graze) could not explainthe bulk of the complainant's injuries. The only alternative explanation for those wasthat the complainant had accidentally fallen onto the pavement one or more times.Mr Aranui referred to one such fall in his police interview, and several falls in hisevidence in Court.[32] It is also of note that the practical impact of the Judge's failure to refer to the"scratch" evidence was that defence counsel's statement in closing that Mr Aranui hadfound the complainant "beaten up and bleeding", was the last word to the jury on thetopic. This was to Mr Aranui's benefit as it significantly over-stated what Mr Aranui'sevidence actually was.[33] Further, and importantly, it would have been very clear to the jury that thedefence case was that the complainant's injuries were caused by a combination of anearlier assailant and an accidental fall, or falls, onto the pavement. In particular:(a) When describing the elements of the offence, the Judge informed thejury that they must be sure that the relevant injury (a wounding) wasinflicted by Mr Aranui: because if it was caused by someone else, then obviously he wouldnot be responsible. You would have to be satisfied that he caused aninjury that led to a flow of blood, either internally or externally.(emphasis added)(b) The Judge summarised Mr Aranui's evidence that the complainant wasupset, angry and intoxicated when he first saw her. Mr Aranui wastrying to assist her, but she was punching and kicking at him and he waspulled over in the process. He denied inflicting any blows or slappingher.(c) The Judge initially summarised the defence case as being:[33] simply that it did not happen; that the defendant cameacross the complainant, he was concerned at how she presented. Shedid not appear sober, she seemed to be on drugs He deniedpunching her, denied slapping her. He said she stumbled, he tried toget her up. In the course of trying to get her up, he himself trippedover her, but he did not inflict any injuries on her. And that when thepolice turned up at the park, they were both lying there, he with hisarm around her, and she was asleep.[34] That is how the defence put it, and what the defendant said isconsistent with what he said to Constable Middleton when he wasasked about what had been going on that night. The defendant simplysays to you: well, that's what happened, so the Crown has not provedthe case against him beyond reasonable doubt. He had an explanationfor these things, and the injuries that she did have may well haveoccurred when he was trying to get her off the middle of the road andhe dragged her to the pavement, and perhaps she did suffer lacerationsand cuts as a result of that process, but it certainly was not donedeliberately, he was getting her off the middle of the road for her ownsafety's sake and they then, when he got her onto the pavement, theythen got up and proceeded on their way and turned down intoCrummer Street and then made their way to the park, and that waswhere they were found. That is the defendant's case.(d) The Judge later expanded on this, with reference to the defence closing,stating that:[47] [Defence counsel] reminded you again of the content ofexhibit 7; that is, the account given to the occupational therapist as towhat happened to her, given [by] her later in the morning just beforeshe was released. She refers to her cousin's ex-partner as being theassailant, not to Mr Aranui, and he said there is no basis to assumethat the defendant caused the injuries, and no evidence against him,but of course there is the evidence of Mr Geno and Mr Insley, and theaccount given to a constable, Constable Abdullali. What you make ofthose are matters for you.[48] [Defence counsel] commented on Mr Insley's evidence. Hesuggested to you that he was unreliable, and he suggested to you, if he[Mr Aranui] was the assailant, why would he run back to her whenshe called for help?(emphasis added)[34] The Judge accordingly identified the fundamentals of the defence case. Theproposition that the complainant's injuries were caused by a prior assault, and thecomplainant subsequently falling onto the pavement and being dragged to safety byMr Aranui, was squarely before the jury.Did the Judge improperly express his views as to the honesty of Crown witnesses?[35] Mr Schellenberg submitted that the Judge improperly expressed viewsregarding the credibility of two Crown witnesses in the following passages of hissumming-up:[24] In this case, we have two witnesses who were in effect eyewitnessesto be called by the Crown. That is Mr Insley and Mr Geno, and of course wehave Mr Aranui's account himself, so you have to consider all of thoseaccounts. As for Mr Insley and Mr Geno, I suggest to you they were honestwitnesses doing the very best they could to try and remember events a year orso ago. Mr Insley was in fact accused of lying or exaggerating his evidencefor the benefit of the police. It is a matter for you, not for me, but there didnot, in my view, seem to have been any basis for that, but there is always thepossibility that an honest witness can be a mistaken witness, and you alwayshave to take that into account, especially when you are being asked aboutsomething you saw over a year ago.[32] You will recall that comment made in response to a question by me,and it was: "You were asked many times as to whether you were mistaken asto what you saw." Then he said: "Possibly." But what he then said is: "Thisis wrong, this is wrong, I swore on the Bible." So you might think that he wasa person not really familiar with the way we go about things in court. He wassomewhat surprised to find the account he gave as an eyewitness challenged,but nevertheless, the defence is entitled to challenge it. They are entitled toput other evidence to witnesses and they are entitled to invite the witness andinvite you to consider that Mr Geno may be giving his evidence honestly, buthe is simply mistaken about what in fact it was that happened.[36] Mr Wiseman, for the Crown, submitted that these comments by the Judge wereentirely consistent with, and reflected, the defence closing. We accept that submission.The relevant passages of the defence closing are as follows:(a) In relation to Mr Insley, Mr Schellenberg said in closing that: I'm not suggesting that he's dishonest. You can be an honestwitness, but you could be mistaken. There's a difference there.(b) In relation to Mr Geno, Mr Schellenberg said in closing that:Mr Geno's mistaken about this and he's exaggerated what he's seen.Now he might believe what he saw is correct and he may, he may beswearing to God and saying that he honestly believes that's what hesaw. But the fact is he's mistaken. You can think that you've seensomething and believe that, but you can be wrong.[37] Given that the defence did not take issue with the honesty of the eyewitnesses,but rather submitted to the jury that they were honest, but mistaken, the Judge canhardly be criticised for doing the same. The Judge did not therefore err in focusingthe jury's attention on the fact that even honest witnesses can be mistaken.[38] Further, there was no risk that the jury would prefer the Judge's views overtheir own, given that the Judge's comments were expressly framed as a "suggestion".It was made clear to the jury on more than one occasion in the summing-up that it wasa matter for the jury what they made of the witnesses' evidence (including thosespecific witnesses). For example, the Judge unequivocally stated to the jury at theoutset of his summing-up that it was not his role to make conclusions as to fact norweight:The sole responsibility for deciding all questions of fact rests with you. It isfor you to decide what evidence you will accept or reject, and what weightyou will give to any part of the evidence. Should I indicate any view of theevidence or of any witness, and that view does not accord with your own, thendisregard what it is that I have said.Did the Judge improperly discredit the medical evidence relied upon by the defence?[39] Mr Schellenberg submitted that the Judge's summing-up of the medicalevidence relied upon by the defence improperly discredited that evidence.The relevant passage of the summing-up is as follows:He reminded you again of the content of exhibit 7; that is, the account givento the occupational therapist as to what happened to her, given [by] her laterin the morning just before she was released. She refers to her cousin's ex-partner as being the assailant, not to Mr Aranui, and he said there is no basisto assume that the defendant caused the injuries, and no evidence against him,but of course there is the evidence of Mr Geno and Mr Insley, and the accountgiven to a constable, Constable Abdullali. What you make of those are mattersfor you.(emphasis added)[40] This passage of the summing-up appears to respond to the following passagein the defence closing:So when she's first admitted to hospital she's highly intoxicated. The medicalevidence is clear on that. After she's had the opportunity to rest up and soberup she reports her cousin's ex-partner has caused her injuries and notMr Aranui. Her cousin's ex-partner. And no there's never been in any of theevidence that we've heard from the Crown about saying who assaulted her etcetera, not once has it ever been named Raymond Aranui, or Ray, or Raymond."He's the person who beat me up." The Crown are asking you to infer thatwhen in my submission there's really no basis and no fair basis to do it. Thismedical page document here, that gives you a reliable and credible statementfrom [the complainant] about what's happened to her.(emphasis added)[41] This passage in the defence closing is somewhat ambiguous. The Judgeappears to have interpreted it as defence counsel asserting that the only evidence as tothe identity of the assailant was that contained in exhibit 7, the occupational therapist'snotes. Obviously, that was incorrect. There was clear evidence pointing to Mr Aranuias the assailant, even if the relevant witnesses did not refer to him by name.[42] The Judge was entitled, in our view, to correct any impression that there wasno evidence against the defendant, by mentioning the names of the three key witnessesrelied on by the Crown. The Judge did not repeat, summarise or endorse theirevidence, but appears to have simply intended to correct any impression that there wasno evidence that Mr Aranui was the assailant. This was not improper.Was the jury's verdict unreasonable?[43] If Constable Abdullali's record of the complainant's hearsay statements wereexcluded, then it would necessarily follow that the jury's verdict was against theweight of the evidence, and therefore unreasonable. The evidence of the twoeyewitnesses alone would not have been sufficient to prove the charge.[44] We have found, however, that the complainant's hearsay statements werecorrectly admitted. On that basis there was clearly sufficient evidence to meet the"beyond reasonable doubt" threshold, and the jury's verdict was not unreasonable.Result[45] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent