HARDY v POLICE [2019] NZHC 1838

HARDY v POLICE [2019] NZHC 1838 [31 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000399[2019] NZHC 1838BETWEEN RHETT DONALD HARDYAppellantAND NEW ZEALAND POLICERespondentHearing: 29 July 2019Appearances: P Heaslip for the AppellantY Y Wang for the RespondentJudgment: 31 July 2019JUDGMENT OF HINTON JThis judgment was delivered by me on 31 July 2019 at 2.30 pmRegistrar/Deputy RegistrarCounsel/Solicitors:Paul Heaslip, Barrister, AucklandMeredith Connell, Auckland[1] Mr Hardy was found guilty by Judge Grace on 22 August 2018 on one chargeof assault with intent to injure,1 and subsequently sentenced to six months' communitydetention from 8.00 pm to 6.00 am each day (so he could continue his currentemployment), 120 hours of community work, and 12 months' supervision.2[2] He appeals his conviction. The appeal as filed was as to conviction andsentence, but Mr Hardy does not pursue the sentence appeal because he has alreadyserved the sentence and because it is accepted on his behalf (I consider correctly) thatif the conviction were upheld, it would be difficult to argue the sentence wasmanifestly excessive.[3] The appeal against conviction proceeds only on the ground that a miscarriageof justice occurred because the Judge should have required the prosecution to call threewitnesses whose briefs had been provided, or at worst should have adjourned the trial.There were other points raised in written submissions, being that the charge of assaultwith intent to injure should have been split into two separate charges; that Judge Graceappeared to be biased in assessment of evidence; and that he erred in relation to hisfindings on the availability of self-defence. These points are not pursued, although Inote that Mr Hardy says the non-calling of witnesses impacted on the Judge's findingson self-defence, a point which I address.[4] The appeal therefore proceeds as an appeal against conviction on the groundof miscarriage arising out of the non-calling of the three witnesses. The appellant saysthat as a consequence the trial and verdict were unsafe.The test on appeal[5] For the appeal to succeed, the appellant must show that there has been amiscarriage of justice, which for the purposes of this case is any error or irregularitythat has created a real risk that the outcome of the trial was affected or has resulted inan unfair trial.31 New Zealand Police v Hardy [2018] NZDC 21627.2 New Zealand Police v Hardy [2018] NZDC 25884.3 Criminal Procedure Act 2011, s 232.The Judge's findings[6] The particulars of the charge are that Mr Hardy assaulted the complainant withintent to injure by headbutting and punching him.[7] There was no dispute over most of the facts at trial. In essence, Mr Hardy wentto an accountants' office (BDO) where the complainant worked. He understood thatan appointment had been made by a client of the complainant for him to sign somedocumentation to conclude a business transaction. Matters did not work out that wayand he became annoyed with the accountant, partly as a result of the background tothe transaction itself, and partly because what probably seemed like a straightforwardmatter to the appellant, was not being dealt with in that way.[8] The Judge found in terms of the key relevant events that what followed atBDO's premises was:(a) The appellant headbutted the complainant.(b) The complainant then pushed the appellant.(c) The appellant then punched the complainant in the right cheek, drawingblood.(d) The complainant then grabbed the appellant by the throat because theappellant had hit him. He said to the appellant, "I could punch you",but did not and the two were separated.[9] The Judge found that the punch coupled with the headbutt, overall constitutedan assault with intent to injure.[10] The Judge's findings mirrored the complainant's evidence and were consistentwith the evidence of the prosecution witnesses. That is not in dispute.[11] The Judge did not accept the appellant's evidence. The appellant had deniedthe headbutt. He admitted the punch, but said it was in self-defence because thecomplainant was holding him by the throat at the time; in other words, the appellant'sbeing grabbed by the throat preceded his punching the complainant.[12] The Judge having found there was both a headbutt and a punch and that thepunch preceded the complainant's holding the appellant by the throat, rejected theappellant's case and rejected his argument of self-defence.Mr Hardy's case and the relevant law[13] Mr Hardy submits that his fair trial rights under s 25 of the New Zealand Billof Rights Act 1990 were breached by the Police decision not to call three BDOwitnesses, being Ms Hubbard, Mr Patel and Ms McMeel. He says that had the threeextra witnesses been called, then, not so much would their briefs have been helpful tohim, but they may have given different evidence which would have been, or couldhave been, helpful to his case.[14] Section 25 of NZBORA provides for minimum standards of criminalprocedure, including the right to a fair hearing. The appellant refers in particular tosubs (f), "the right to examine the witnesses for the prosecution and to obtain theattendance and examination of witnesses for the defence under the same conditions asthe prosecution".[15] This situation is specifically covered by s 113 of the Criminal Procedure Act2011, which relates to adjourning a trial for a witness. Section 113(3) and (4) provide:113 Adjourning trial for witness(3) If the court is of the opinion that a witness who is not called for theprosecution ought to be called, it may—(a) require the prosecution to call the witness; and(b) if the witness is not present, make an order for the attendanceof the witness.(4) In the case described in subsection (3), the court may—(a) adjourn the trial; or(b) if it is of the opinion that it would be in the interests of justiceto do so, on the application of the defendant, discharge thejury and postpone the trial.[16] A prosecutor has an obligation under s 13 of the Criminal Disclosure Act 2008to provide full disclosure to a defendant, including a copy of any statement made by aprosecution witness, any brief of evidence prepared in relation to a prosecution witnessand any written account of any interview. Beyond that, at common law, theprosecution has a discretion with regard to which witnesses it calls. But under s 113of the Criminal Procedure Act, the Court can require the prosecution to call a witnesswho is not being called and "ought to be".[17] In R v Wilson, Eichelbaum CJ said that the Court should interfere with theprosecution case sparingly under the then-equivalent to s 113 of the CriminalProcedure Act, inter alia because a Judge lacks knowledge and information about anyparticular witness. He also said that the s 113 discretion is to be exercised in theinterests of justice, which of course includes, but is not limited to considerations offairness to the defence.4Does s 113 apply here?[18] The background to the witnesses not being called is that on 14 August 2018, aweek before the 21 August 2018 hearing, offered by the Court earlier that month, thePolice wrote to Mr Hardy and said they were seeking an adjournment on the groundssome of their witnesses were not available on 21 August 2018. It seems from theprosecutor's email that Mr Hardy had already told them the adjournment was opposed.On 17 August 2018, Mr Hardy wrote to the Police that he strongly opposed a furtheradjournment of the trial and that he wanted the trial to proceed on 21 August 2018,with the six civilian witnesses from BDO. Subsequently, on 20 August 2018, theCrown wrote to Mr Hardy and said that the Police would be ready to proceed. Theylisted four witnesses, including three of the civilian witnesses and excluding the threewitnesses to whom I have referred.4 R v Wilson [1997] 2 NZLR 500 (HC).[19] At the commencement of his oral judgment, dated 22 August 2018,Judge Grace records that there were six (civilian) witnesses and that the prosecutionhad elected to proceed on the basis of four, which caused some concern to thedefendant because he had clearly intended to cross-examine the two additionalwitnesses. The Judge says, "one of those witnesses is overseas and I am not sure wherethe other one is but because the matter has been outstanding for such a lengthy periodof time and also I think rightly so, Mr Hardy wanted the matter resolved, I directedthat the matter should go ahead yesterday".5[20] In his original appeal submissions, Mr Heaslip for Mr Hardy said that whenMr Hardy appeared before Judge Grace, he maintained essentially the same positionthat he had recorded in his 17 August 2018 email. In other words, he opposed anadjournment and wanted to proceed with all witnesses. In reply submissions dated28 July 2019 (but apparently filed on Friday, 26 July 2019), Mr Heaslip records thatMr Hardy asked the Judge on the morning of the trial for an adjournment because thethree excused witnesses were important. He says that an adjournment was never anavailable option.[21] I do not accept that there was any request for an adjournment by Mr Hardy.That would fly directly in the face of the opening paragraph of Judge Grace'sjudgment, Mr Hardy's email of 17 August 2018, and his lawyer's submissions on theappeal prior to the reply submission dated "28 July 2019". Further, Mr Hardy clearlyhad the opportunity to adjourn the trial on the face of the email exchange shortly beforetrial.[22] However, I do accept, in particular where someone is self-represented, it is notan answer to a case like this for the Crown to say simply that Mr Hardy had theopportunity to adjourn the trial.[23] It seems to me, especially where a defendant is unrepresented, and is saying hewishes to cross-examine missing witnesses, the Court needs to consider the nature of5 In fact the prosecution elected to proceed on the basis of three civilian witnesses (plus Policewitnesses) and there were three additional witnesses who were not called.that potential additional evidence. It may be an adjournment is necessary under s 113,even though a defendant is saying he wishes to proceed.[24] The key point in this context is whether the evidence of any one of the threewitnesses might have contradicted the prosecution case on a relevant issue. This isnot limited to a consideration of the witnesses' briefs, but also, without being fanciful,what more they might reasonably have said, considering their brief and all of thecircumstances.[25] The first "missing" witness, Ms Hubbard, said that the first thing she saw wasthe complainant holding Mr Hardy by the shoulder and/or neck area with his fistraised. She heard the complainant say to Mr Hardy, "I could punch you" but he didnot. He just continued to hold Mr Hardy at arm's length and Mr Hardy was standingwith a smirk on his face.[26] This statement of Ms Hubbard was entirely consistent with the evidence of thecomplainant himself and with the finding that the Judge made as to what happenedlast in the sequence of events recorded above.[27] Mr Patel's statement was that the first he saw was the complainant andMr Hardy pushing each other aggressively and he saw blood on the complainant'sface.[28] This again is consistent with, or at least not inconsistent with, the prosecutioncase and the Judge's findings. In any event, like Ms Hubbard, Mr Patel's writtenstatement was that he was not present and/or did not see any of the key events. I returnto the question of self-defence.[29] Ms McMeel's formal statement records that she saw a verbal altercationdevelop between the complainant and Mr Hardy; she went back to the lunchroom andwhen she looked out again, Mr Hardy was standing very close to the complainant andrefusing to leave. She says he then made contact with the complainant with force. Shesaid she did not see what exactly happened as the complainant's back was to her,partially obscuring her view of Mr Hardy. She said the complainant turned aroundand she could see blood on his right cheek. He looked shocked and Mr Hardy had abig grin on his face and was moving in a way that looked very provoking.[30] A reasonable interpretation of that evidence is that Ms McMeel saw either theheadbutt and the punch, or just the punch, the headbutt having preceded her lookingout from the lunchroom. Either way, this evidence again would have been quiteconsistent with the prosecution case and the Judge's findings.[31] In summary, I agree with the respondent that the proposed evidence ofMs Hubbard, Mr Patel and Ms McMeel, individually and in combination, wasconsistent with the evidence of the complainant and the prosecution case. At best(from a defence perspective) some of it may be described as neutral.[32] The crux of the matter is that the evidence of the three additional BDOwitnesses would have made no difference to the findings of fact and their absence didnot result in an unfair trial for Mr Hardy.[33] I should add for the sake of completeness that Mr Heaslip's main emphasiswas not on the actual evidence contained in their statements, but on what furtherevidence the three witnesses might have given. I agree that the inquiry can extend thatfar, but there would need to be something in the statements or in the circumstancesgenerally to point to further exculpatory evidence being a realistic possibility. Thismight arise, for example, if there were a large apparently relevant hole in a brief ofevidence. Here there is no such thing. Rather, their evidence is that, to the extent theyhave not commented, they were not in the room or they were in the room and couldnot see more than they did. There is nothing that would enable me to consider anyone of the three additional witnesses might have given different evidence that wouldor could be relevant. That would be pure speculation.[34] It follows that I also do not agree with the submission made for Mr Hardy thatthere were two factions of prosecution witnesses, one being those called, and the otherbeing those left out. None of the witnesses (including the three extras) said the samething. As the Judge observed, this led him to consider they had not colluded, althoughthey were all employees of the accounting practice. But everything they said wasnonetheless consistent overall, as to any relevant point, both with each other and withthe prosecution case.[35] In terms of self-defence, Mr Heaslip makes the submission that the additionalevidence of the three witnesses, particularly the evidence of Mr Patel, is relevant tothe defence of self-defence, (where of course the burden remains on the Crown).Mr Heaslip points to Mr Patel's evidence that both Mr Hardy and the complainantwere acting forcefully, which he says supports the argument of self-defence becausethe punch could have been in response to the complainant's pushing Mr Hardy, not inresponse to the complainant's holding Mr Hardy by the throat. On the latter argument,Mr Patel's evidence would not have been of any assistance to the defence because hisstatement records that at the same time as he saw Mr Hardy and the complainant beingaggressive with each other, he saw blood on the complainant's face (but did not knowhow it got there). But Mr Heaslip says Mr Patel's evidence is consistent, or notinconsistent, with the complainant pushing Mr Hardy and Mr Hardy punching him inself-defence.[36] Ms Wang, for the Police, responded to that argument by pointing out thatMr Hardy's case at trial was not that he was retaliating, or saw the need to retaliate, toa push from the complainant, but rather that he was retaliating as a result of thecomplainant's grabbing him by the throat. I accept this point. At page 21 of the notesof evidence, Mr Hardy puts to the complainant that if the complainant had him by thethroat because he wanted him to leave the office, would that be reason for him to lashout. In that same context, Mr Hardy advised the Court that he struck the complainantbecause he was manhandling him at the time. And at page 68 of the notes of evidence,Mr Hardy gave evidence that he hit the complainant after the complainant had him bythe throat for it seemed like a long time, and that was the time at which he retaliated.[37] The Judge, consistent with the appellant's cross-examination, advice to theCourt during the trial, and own evidence, recorded in his judgment that Mr Hardyargued that he was being held by his throat and therefore hit out at the complainantand that Mr Hardy did not claim he hit out because he was being pushed by thecomplainant.[38] Therefore, on the argument as run by the appellant at trial, Mr Patel's evidencewould have made no difference to the claim of self-defence.Conclusion[39] The appellant has not identified any error which would have affected theoutcome of the trial. The appeal against conviction is dismissed.------------------------------------------------------Hinton J