NGAWEKETUHIMATA v NEW ZEALAND POLICE [2019] NZHC 3176

NGAWEKETUHIMATA v NEW ZEALAND POLICE [2019] NZHC 3176 [4 December 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-7[2019] NZHC 3176BETWEEN SHYAN NGAWEKETUHIMATAAppellantAND NEW ZEALAND POLICERespondentHearing: 19 November 2019Appearances: C Tennet for AppellantF E Cleary for RespondentJudgment: 4 December 2019JUDGMENT OF GRICE JIntroduction[1] Mr Ngaweketuhimata was charged with 17 different offences, most of whichrelated to family violence. These included six charges of breaching a protection order,1two charges of male assaults female,2 one charge of threatening to kill,3 one charge ofthreatening to kill while using a firearm,4 two charges of assault with a weapon,5 onecharge of assault with intent to injure,6 one charge of carrying a firearm withoutsufficient purpose,7 one charge of unlawfully discharging a firearm,8 one charge of1 Domestic Violence Act 1995, ss 19(1)(a)–(b), 49(1)(b) and 49(3); maximum penalty of three years'imprisonment.2 Crimes Act 1961, s 194(b); maximum penalty of two years' imprisonment.3 Section 306; maximum penalty of seven years' imprisonment.4 Section 198B(a); maximum penalty of 10 years' imprisonment.5 Section 202C; maximum penalty of five years' imprisonment.6 Section 193; maximum penalty of three years' imprisonment.7 Arms Act 1983, s 45(1); maximum penalty of four years' imprisonment or $5,000 fine.8 Section 49; maximum penalty of three months' imprisonment or $1,000 fine.unlawful possession of a firearm9 and one charge of unlawful possession ofammunition.10[2] On 17 August 2017 a District Court Judge gave a sentence indication toMr Ngaweketuhimata on the above charges, with the exception of the charges forthreatening to kill and threatening to kill while using a firearm.11Mr Ngaweketuhimata rejected the indication of a four-year starting point, insteadelecting a judge alone trial. Mr Ngaweketuhimata entered a plea of guilty to onecharge of breaching a protection order, unlawful possession of a firearm and unlawfulpossession of ammunition on 17 December 2017.[3] Mr Ngaweketuhimata went to a judge alone trial on the remaining charges. Itwas held over two days, 19 and 20 April 2018, in the Napier District Court before thesame Judge that had given the sentence indication. The Judge delivered his decisionon 23 April 2018, finding Mr Ngaweketuhimata guilty on all charges.12Mr Ngaweketuhimata was later sentenced to six years' imprisonment on the chargesset out above, together with two additional charges of assaulting police officers.13[4] Mr Ngaweketuhimata appeals his convictions on four main grounds. They are:(a) Judicial bias or inappropriate consideration of inadmissible evidence;(b) Fair trial issues;(c) Procedural errors relating to the trial; and(d) Insufficient reasons given for the findings at trial.9 Section 45(1) maximum penalty of four years' imprisonment or $5,000 fine.10 Section 45(1) maximum penalty of four years' imprisonment or $5,000 fine.11 Police v Ngaweketuhimata DC Hastings CRI-2017-020-001270, 17 August 2017 [SentenceIndication].12 Police v Ngaweketuhimata [2018] NZDC 7821 [Conviction Decision].13 Police v Ngaweketuhimata [2018] NZDC 22452 [Sentence Decision].Factual background[5] On 27 September 2016 a final protection order was issued by the HastingsDistrict Court in favour of the first complainant, Mr Ngaweketuhimata's formerpartner, and the two children, the second and third complainants. The second and thirdcomplainants were aged three and five years old.[6] Four separate incidents gave rise to the charges.4 April 2017[7] The following charges arose from an incident on 4 April 2017: male assaultsfemale; breach of a protection order against the second complainant; breach of aprotection order against the third complainant; threatening to kill; threatening to killwhile using a firearm; carrying a firearm without sufficient purpose; unlawfuldischarge of a firearm; assault with intent to injure; two charges of breach of aprotection order against the first complainant; and assault with a weapon.[8] On that day, all three complainants and Mr Ngaweketuhimata were travellingby car to Auckland for the unveiling of a family member's headstone. During the tripto Auckland, Mr Ngaweketuhimata assaulted the first complainant repeatedly bypunching her in the head. This gave rise to the charges of male assaults female andbreach of a protection order.[9] Mr Ngaweketuhimata was again the passenger in the car as they drove backfrom Auckland to Hastings. During that ride Mr Ngaweketuhimata's behaviourbecame increasingly threatening and bizarre toward the first complainant. He askedher how she wanted to die and said that he was going to make her shoot herself. Thechildren, in the back of the car heard this.[10] The first complainant then pulled over at a petrol station in Taupō to buy oilfor the car. As they left the petrol station Mr Ngaweketuhimata pulled out a screwdriver which he held to the back of the first complainant's head, hard enough to causea cut. That screwdriver was held in that position until they reached the Waipunga Fallslookout. When the first complainant pulled up there she ran from the vehicle to getaway from Mr Ngaweketuhimata. He chased her with the screwdriver and told her hewas going to make her jump off the falls. The children were hysterical in the car.[11] Mr Ngaweketuhimata then returned to the car and opened the boot. Heremoved a shot gun, which he began to load with shells from an ammunition belt. Thefirst complainant ran off screaming in fear. Mr Ngaweketuhimata caught her nearbyand ordered her to remove her clothes. She returned to the car and took them off.Mr Ngaweketuhimata then pointed the shotgun at the victim. She heard a clickingnoise, but the gun did not go off. Mr Ngaweketuhimata then pointed the gun in theair, pulling the trigger and causing the gun to discharge. She put her clothes back onand they returned home to Hastings.[12] When they arrived home Mr Ngaweketuhimata became irritated with the firstcomplainant. He punched her in the head a few times, until she fell to the ground. Shecurled up in foetal position and Mr Ngaweketuhimata kicked her in the head as shelay on the ground. The children were in the room at the time of the assault. Theintervention of Mr Ngaweketuhimata's sister was said to have stopped the assault.13 or 14 April 2017[13] The charging documents indicate this incident occurred around 13 or 14 April2017. This offending gave rise to a charge of male assaults female and a charge ofbreaching a protection order.[14] The first complainant and Mr Ngaweketuhimata were at home whenMr Ngaweketuhimata became frustrated and threw his cup of tea at her. This causedredness on her body.17 April 2017[15] The final set of offending occurred on 17 April 2017. It is not necessary to gointo this offending for the purposes of this conviction appeal as Mr Ngaweketuhimatapleaded guilty to the relevant charges on 11 December 2017.District Court decisionsSentence indication[16] The Judge gave Mr Ngaweketuhimata a sentence indication on the charges heinitially faced. The starting point was four years' imprisonment.14 The indication didnot take into account other aggravating or mitigating factors the Judge might haveneeded to consider at sentencing. The Judge only had before him submissions frompolice and counsel for Mr Ngaweketuhimata, the police summary of facts and thevictim impact statement from the first complainant.[17] During that indication the Judge made the following statement:[7] The defendant is certainly fortunate that he was not also chargedwith threatening to kill or do grievous bodily harm which would have alloweda higher maximum, but that is beside the point for present purposes. In myview, as an assault with a weapon, and even though there was no actualphysical contact, the case may have come with a hair's breadth of being ahomicide and is properly categorised as close to the worst of its kind for thepurposes of s 8 Sentencing Act 2002. In my view on that basis alone, thepolice starting point of four years' imprisonment is justified and it is thatstarting point which I adopt.Procedure before the trial[18] On or about 12 April 2018 the prosecution laid two new charges relating to thesame events. These were for threatening to kill and threatening to kill while using afirearm. These offences have higher maximum penalties with starting points of sevenand ten years' imprisonment respectively, compared to the lower five year maximumterm of imprisonment available on the existing charges. No case review hearingoccurred following the laying of the more serious charges.[19] The trial related to all the charges, including the new ones.[20] On the first day, 19 April 2018, the trial was set to begin at 10 am. The firstcomplainant, however, was not in Court. After the matter was stood down, she waslocated brought to court and the trial began in the afternoon. The hearing wascompleted comfortably within the two days allocated despite the late start.14 Sentence Indication, above n 11.Conviction decision[21] Mr Ngaweketuhimata was convicted by the District Court Judge on 23 April2018. 15 Mr Ngaweketuhimata specifically challenges procedural aspects of thehearing as well as the findings of credibility made by the Judge.[22] Both Mr Ngaweketuhimata and the first complainant gave evidence at the trial.The Judge noted the first complainant's credibility had been challenged based on thelateness of her complaint. In explanation, she had said she had needed time to considerher situation. The Judge said he needed to weigh her evidence against that given byMr Ngaweketuhimata.[23] Ms Letitia Ngaweketuhimata, the defendant's sister, also gave evidence. Thecomplainant had said Ms Ngaweketuhimata was present and intervened in the incidenton 4 April 2017 at the home. In her evidence Ms Ngaweketuhimata said she was notthere and claimed that the offending did not occur.[24] Mr Ngaweketuhimata agreed that the times and places of the events describedby the first complainant were otherwise correct, but says the alleged criminal actsagainst her did not occur.[25] The Judge noted Mr Ngaweketuhimata's defence was that none of the allegedcriminal acts occurred. Mr Ngaweketuhimata further submitted that the delay betweenthe alleged incidents and their reporting compromised the first complainant'scredibility. He said the allegations were an easy way for the first complainant to getrid of a socially inconvenient partner. In addition, he said that the conduct alleged wasso brazen someone must have noticed it. Finally, he argued as he had pleaded guiltyto a number of charges already, he should be believed when he said he was not guiltyof the rest.[26] The Judge rejected Mr Ngaweketuhimata's argument that because he hadacknowledged some offending he was truthful in his denials here. The Judge said thatwas not a reliable indicator of veracity. He also rejected the argument that the lateness15 Conviction Decision, above n 12.of the complaints undermined the complainant's credibility. The Judge said therecould have been good reasons for the delay in reporting. He noted the complainantwas reluctant even to give evidence, as shown by the difficulty in getting her to attendcourt.[27] The Judge turned to the demeanour of the complainant. He said she appearedstoic, sad, and unshaken although showed occasional hesitancy. The Judge said hehad the impression that she had realised that it was now or never for her and her family.The Judge noted the consistency with the statements she made to the police. Whilethe Judge reminded himself that repetition did not strengthen evidence, he did say itshowed consistency.[28] The Judge said the sister of Mr Ngaweketuhimata gave "bald" evidence.16 Hefurther noted that Mr Ngaweketuhimata appeared angry when giving evidence andwas often non-responsive or evasive. The Judge also said it was important that thefactual narrative had been confirmed by Mr Ngaweketuhimata, although the criminalactions were denied. The Judge particularly said aspects of his evidence wereimplausible.[29] The Judge concluded there was nothing before him that led him to form areasonable doubt about the charges based on evidence of the first complainant. Hefound all charges proved.Law on conviction appeal[30] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the HighCourt must allow an appeal if the Court is satisfied that a "miscarriage of justice hasoccurred for any reason".[31] A "miscarriage of justice" is defined in s 232(4) as "any error, irregularity, oroccurrence in or in relation to or affecting the trial that [either] has created a real riskthat the outcome of the trial was affected; or has resulted in an unfair trial or a trialthat was a nullity". The Supreme Court has reiterated that not every error or16 At [36].irregularity causes a miscarriage of justice. Importantly, "a miscarriage is more thanan inconsequential or immaterial mistake or irregularity".17[32] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".18 This standard means that "an appellant does not have toestablish a miscarriage in the sense that the verdict is actually unsafe" but that there isa real possibility the verdict would be unsafe.19[33] I now turn to consider the heads of appeal.Grounds of conviction appeal[34] As I have already noted, Mr Ngaweketuhimata appeals his convictions on fourmain grounds:(a) Judicial bias or inappropriate consideration of inadmissible evidence;(b) Fair trial issues;(c) Procedural errors relating to the trial; and(d) Insufficient reasons given for the findings at trial.[35] I will address each of those grounds.Judicial bias or inappropriate consideration of inadmissible matters[36] Mr Tennet, for Mr Ngaweketuhimata, argues that the Judge should haverecused himself from the trial as he had already presided over the sentence indication.Mr Tennet says that this was both as a matter of general policy and in light of thespecific circumstances of this case. He submits that because the Judge had previouslyhad to assess the allegations, consider the summary of facts and the victim impact17 Matenga v R [2009] NZSC 18 at [30].18 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].19 At [110].statement he should not have later heard the case. The risk, he argues, is that the Judgemay have inappropriately considered matters, or appeared to have inappropriatelyconsidered matters, that were not before him at the trial.[37] Mr Tennet raises a concern about comments the Judge made in his sentencingindication. The Judge said that a charge of threatening to kill would not be out of placebased on the facts then before him.20 Mr Tennet notes that that very charge was thenlaid by the police less than a week before Mr Ngaweketuhimata went to trial beforethe same Judge in April 2018.[38] Mr Tennet relies on R v Smail.21 That case involved a defendant who pleadedguilty based on an informal sentencing indication. The Crown successfully thenappealed the sentence and a new sentence was imposed. The defendant then appealedsaying that he had been led to believe he would receive a much lower sentence. Thecase turned on whether or not there had been a sentencing indication. The Courtreferred to the dangers of providing a sentence indication. However, that case wasdecided before the sentencing indication process was recognised in the legislation.There is no dispute that a formal sentence indication was given here. I consider thatSmail is of limited assistance.[39] Ms Cleary, for the police, says that the laying of more serious charges wasalready in contemplation by the police. She says there is nothing to suggest theadditional charges were due to the Judge's comments. There is no prohibition on ajudge sitting on both the sentencing indication and the relevant trial.[40] The crux of the issue here is whether the circumstances are such as to supportan allegation of judicial bias. The recent High Court decision W v R is of someassistance.22 In that case the District Court Judge had reviewed materials prejudicialto the appellant and had expressed views in the lead up to trial. The relevant test forjudicial bias was there summarised as follows:[46] In Saxmere Co v Wool Board Disestablishment Co Ltd the SupremeCourt authoritatively stated the test for apparent bias within the judicial20 Sentence Indication, above n 11, at [7].21 R v Smail [2008] NZCA 6, [2008] 2 NZLR 448.22 W v R [2019] NZHC 2740.system:23 whether a fair-minded lay observer might reasonably apprehend thatthe judge might not bring an impartial mind to the resolution of the questionthe judge is required to decide. The possibility — not probability — must be"real and not remote".24 Further:[5] The fair-minded lay observer is presumed to be intelligent and toview matters objectively. He or she is neither unduly sensitive orsuspicious nor complacent about what may influence the judge'sdecision. He or she must be taken to be a non-lawyer but reasonablyinformed about the workings of our judicial system, as well as aboutthe nature of the issues in the case and about the facts pertaining tothe situation which is said to give rise to an appearance orapprehension of bias. Lord Hope of Craighead commented in Helowv Secretary of State for the Home Department that:[3] before she takes a balanced approach to anyinformation she is given, she will take the trouble to informherself on all matters that are relevant. She is the sort ofperson who takes the trouble to read the text of an article aswell as the headlines. She is able to put whatever she has reador seen into its overall social, political or geographicalcontext. She is fair-minded, so she will appreciate that thecontext forms an important part of the material which shemust consider before passing judgment.[47] The observer is assumed to understand three matters relating to theconduct of judges:25(a) A judge is expected to be independent in decision-making andhas taken an oath to "do right to all manner of people after thelaws and usages of New Zealand without fear or favour,affection or ill-will".(b) A judge has an obligation to sit on any case allocated to thejudge unless grounds for disqualification exist. It is regardedas important that judicial officers discharge their duty to sitand do not accede too readily to suggestions of apparent biasbecause that might encourage parties to believe they can seekdisqualification of the judge in favour of one thought to bemore likely to decide the case in the party's favour.(c) Judges are a trusted element of the judicial system whichfunctions on the basis of decisions made as between litigantsirrespective of the merits or demerits of their counsel.[48] The issue of apparent bias is not to be tested by reference to the viewsof the particular litigant who has made the allegations and who endeavours tohave a result overturned on that basis. That individual is likely to be "the least23 Saxmere Co v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 [Saxmere(No 1)] at [3].24 At [4].25 At [8].objective observer of all".26 Equally, the issue is not tested by reference tojudicial statements as to what did or did not influence the judge.[41] Ms Cleary says there can be no credible suggestion of judicial bias here. Thesentencing indication was given over seven months before the Judge alone trial andthe Judge assessed the evidence carefully before he reached his decision to convict.[42] Mr Phelps, who acted for Mr Ngaweketuhimata in the District Court, said inhis evidence before me that he had not asked the Judge to recuse himself. Mr Phelpssaid that was not because of any concern about upsetting the Judge but because heconsidered it was a serious matter to raise. He said it would challenge the Judge'sability to put the information from the sentence indication to one side. He also saidthere were a limited number of Judges sitting in criminal matters locally which mightmake recusal difficult. However, Mr Phelps also pointed out he had had a number ofrobust exchanges with the Judge in the course of the trial. This showed that he wasnot reticent, nor slow to take up appropriate matters with the Judge.[43] For completeness, I note there are no allegations of trial counsel error in thiscase.[44] Mr Tennet pointed to the following matters as support for the apparent biasground:(a) the Judge had said at the sentence indication it was fortunate thedefendant was not facing more serious charges. Later, after those moreserious charges were laid, the Judge commented at the commencementof the trial it was "entirely predictable that sooner or later this was goingto be contemplated by the prosecutor, so we will enter the not guiltypleas for both matters now, Sergeant are you in a position to go today?".Mr Tennet says the Judge made these comments based on theinformation he had gleaned at the sentence indication.(b) the Judge asked the prosecutor about whether the complainant's priorconsistent statement, being her first statement to the police, should be26 At [10].produced. The transcript shows an exchange between the Court, theprosecution and Mr Phelps. It was not formally produced.(c) the prosecutor asked Mr Ngaweketuhimata about when he had spokento his counsel about what questions should be put to the firstcomplainant. The defence objected to this question based on a recentCourt of Appeal decision in Hazelwood v R which dealt with questionswhich might result in an answer breaching legal privilege.27 The Judgeexpressed some doubt as to the effect and ambit of Hazelwood in thecourse of dealing with the objection. Apparently, the Judge andMr Phelps had been involved in Hazelwood at some stage. Theobjection was resolved by the prosecutor reframing the question.(d) when questioning Ms Letitia Ngaweketuhimata the Judge asked her ifshe had Mongrel Mob connections. He then used colloquial languageto put the proposition that it might be acceptable in gang circles for awoman to be hit by her partner but it would not be acceptable if thechildren watched. Ms Ngaweketuhimata denied she was present duringthe offending on 4 April. She maintained that in her responses to theJudge.[45] Mr Tennet summarised the interventions described as the Judge behaving in away, that in the circumstances, gave rise to apparent bias. This was particularly sowhere the Judge had knowledge of the allegations from presiding in the sentenceindication. Mr Tennet said that counsel should not be put in the position of accusinga judge of bias. This was particularly so in a locality where there were a limitednumber of judges sitting on criminal matters. He said it was the Judge's obligation torecuse himself even if counsel did not take up the point. He also noted that counselmay be reluctant to make bias allegations particularly if they regularly appear beforethe Judge.27 Hazelwood v R [2018] NZCA 44 at [41].[46] Ms Cleary says that there was nothing in the exchanges referred to whichindicated apparent bias. They were no more than might be expected in a defendedjudge alone hearing.[47] I now consider each of these matters in turn.[48] First, the Judge's comments about the amended charges might have beenunnecessary but do not support an allegation of apparent bias. The sentence indicationhad been given seven months earlier and Mr Ngaweketuhimata faced firearms chargesat that stage. The fact of the involvement of the firearms charges pointed to thepossibility of more serious charges being laid. This was apparent from the chargingdocuments. I also note no objection was raised by counsel at the time. The Judge'spassing the comment was unexceptional in the circumstances and did not indicate anyview on Mr Ngaweketuhimata's innocence. It was merely a comment about thecharges. If counsel had had any concerns about the Judge's familiarity with the factshe would have expressed them to the Judge.[49] Turning to the two evidential interventions, I do not consider they support theground of apparent bias. A Judge often takes a more active role in a judge alone trialthan in a jury trial. This is particularly so if the Judge is seeking clarification of afactual matter which he will be required to determine. The exchanges between theJudge and Mr Phelps here were not out of the ordinary in that context. Mr Phelps wasclearly experienced and familiar with the issues that were raised. He was able toengage appropriately with the judge on the points. Mr Phelps' points were apparentlyaccepted by the Judge on both occasions.[50] Finally, I turn to the questions directed by the Judge to Ms Ngaweketuhimata.The fact the Judge put his questions to her in colloquial language may look strange inthe transcript, but it is apparent the Judge was attempting to put the issue of why shemight have intervened clearly to the witness. His questions do not go beyond what isacceptable. Ms Ngaweketuhimata did not show any signs of intimidation.[51] In my view, the matters pointed to here either separately or together do not giverise to an appearance of judicial bias in this context. A fair minded lay observer witha reasonable understanding of Court process would not believe that the Judge wouldfail to bring an impartial mind to the case. A Judge in a judge alone case will oftenintervene to clarify as factual issues which he considers may assist him reaching hisconclusion. Mr Phelps was experienced and he engaged appropriately with the Judge.He was not concerned about possible or apparent bias and denied that he felt concernedabout confronting the Judge where appropriate. The legal points were notstraightforward and the issues raised in the Judge's interventions were resolved largelyin favour of Mr Ngaweketuhimata. The ability to put to one side evidence that shouldnot be considered during a trial is part and parcel of a Judge's role.[52] As I noted the legislation does not prohibit the same Judge sitting on asentencing indication and trial on the same matters. In my view this ground is notmade out. No error giving rise to a miscarriage of justice has occurred on the basis ofapparent bias or judicial bias.Fair trial rights[53] Mr Ngaweketuhimata was not present in the Court for about half an hour whensome expert evidence was given and an application for adjournment was granted.28Mr Phelps was present representing Mr Ngaweketuhimata at the relevant time. Thenotes of evidence record Mr Ngaweketuhimata was absent from about 11.30 am to11.49 am. Mr Tennet says this was an error as a defendant should always be presentthroughout his trial.[54] Mr Ngaweketuhimata said he was in the holding cells outside the court room.The Judge had returned after the matter had been stood down because the complainanthad not shown up. The Judge returned, as was expected, at about 11.30 am.Mr Ngaweketuhimata was not taken into the court room when the Judge returned. Itis not clear why this occurred. Mr Phelps said the Judge's return was not sudden. TheJudge was properly announced and counsel had been expecting his return. It appearsto have been an oversight as none of the Court participants, including Mr Phelps,noticed that Mr Ngaweketuhimata was not present for a short period.28 I note the adjournment did not occur in the end.[55] The police arms expert gave evidence during that period. The evidence wasgiven in an iterative manner, with the Court asking questions and counsel addingcomments. It appears that before the Judge returned the prosecutor and defencecounsel had been discussing an issue with the expert. This led to an indication thatcommon ground could be found which would shorten the evidence. Overall theevidence was favourable to Mr Ngaweketuhimata. It related to whether the firearmhad jammed or the safety mechanism was intentionally engaged when the gun wasfired at the first complainant.[56] Mr Tennet accepted that the evidence was favourable but said that asMr Ngaweketuhimata was not present to hear it was an error which gave rise to amiscarriage of justice.[57] I turn now to the ruling given during that time. The complainant had failed toappear at 10 am so Judge had stood the matter down for police to locate her. He cameback into Court at about 11.30 am. Following the exchange with the arms expert,counsel and the Judge discussed options if the case could not proceed that day.Mr Phelps said that any adjournment application should be declined and the chargesdismissed. The Judge responded that the complainant not turning up was not unusualand given the seriousness of the charges and the involvement of domestic violence, hewas satisfied the case should proceed and that any adjournment sought should begranted. The adjournment was not needed as the first complainant arrived in time forthe case to begin at 2.15 pm.[58] In my view, while it was irregular that Mr Ngaweketuhimata was not presentfor 20 minutes, there was nothing which occurred in the period of his absence whichwould result in a miscarriage of justice. The expert evidence favoured him in somerespects and in any event was not relevant as his defence as he said that the shot gunfiring had never occurred. The adjournment ruling never became relevant as thecomplainant was found in time for the case to proceed. In addition Mr Phelps ascounsel was present representing Mr Ngaweketuhimata throughout.[59] In the circumstances there was an irregularity but no miscarriage of justice.These matters would not have impacted the outcome of the trial.Procedural errors[60] Several procedural errors have also been pointed to as creating difficulties inthe trial that might give rise to a miscarriage of justice.[61] The first of these is that new charges were laid only a week beforeMr Ngaweketuhimata was to go to trial. There was no adjournment to permit time fora case review hearing to occur. Mr Tennet says this was an oddity and particularlyproblematic here. There was no opportunity to seek a sentence indication based onthe new charges nor take other steps that might have been possible if a case reviewhearing had occurred.[62] I note, however, where charges have already been laid, the adding of newcharges does not always require a case review hearing or case review memoranda.29In circumstances where a defendant pleads not guilty to a new charge that is added toan existing proceeding where a case management memorandum has already been filed,the normal case management rules do not apply.30 In any event, no adjournment wassought. The charges were laid almost a week before trial and the facts upon whichthey were based were the same as those on which the original charges had been laid.Mr Ngaweketuhimata had already had a sentence indication hearing, albeit on lessserious charges, which he had rejected. There was no miscarriage of justice in relationto the laying of new charges. No errors occurred here.[63] Next, Mr Tennet argues evidence, being transcripts of Mr Ngaweketuhimata'sphone conversations from prison, were inappropriately adduced at trial. This isbecause at the case review hearing the prosecution indicated it did not intend to adducethem. However, before the hearing, apparently when a new prosecutor took over, thedecision was made to adduce the evidence. Mr Phelps was not notified untilapproximately a week before the trial. The relevant evidence had been disclosedearlier and well in advance of trial.29 Criminal Procedure Act, s 14030 Section 140(1)–(3).[64] The initial thrust of this ground was that the delay in notifying Mr Phelps ofthe evidence being called had prejudiced Mr Ngaweketuhimata. In the course of oralsubmissions, however, the argument became that the transcripts were illegallyobtained evidence and the Judge had not undertaken the required consideration fortheir admission under the Evidence Act 2006. Mr Phelps indicated that his concernabout the transcripts was that the evidence was produced late without a productionorder or a search warrant.[65] In response the Crown said, in relation to any delay, that while it was irregularfor the prosecution to initially say that the transcripts would not be produced and thenproduce them, nevertheless, any prejudice could have been dealt with by adjourningthe matter. No such application was made. It is difficult to see how any prejudice didaccrue. If delay had been a cause for the concern an application for an adjournmentwould have been the appropriate course for the defence to take. None was made.[66] Turning to the argument that the evidence was illegally obtained, Mr Phelpsindicated the usual practice was either for an order to produce to be made or a searchwarrant executed to obtain the transcripts for production.[67] Ms Cleary pointed to ss 112 and 117 of the Corrections Act 2004. Thesesections authorise the recording of a prisoner's phone calls and disclosure concerningthose calls by the Department of Corrections (the Department). In particular, s 117allows disclosure of a prisoner's calls if there is belief, on reasonable grounds, that thedisclosure is necessary "to avoid prejudice to the maintenance of the law by a publicsector agency including the prevention, detection, investigation, prosecution andpunishment of offences".31 A further ground for disclosure is that the authorisedperson believes on reasonable grounds that the disclosure is necessary for the conductof proceedings before a Court or Tribunal.32[68] Mr Tennet responded to this submission that nevertheless the production wasa breach of privacy.31 Section 117(2)(a).32 Section 117(2)(b).[69] The submissions on the transcripts being unlawfully obtained evidence werenot developed in any depth before the oral submissions were made and it appears thatno objection was raised to the evidence being unlawfully obtained at the time it wasadduced.[70] However, I am of the view that, in any event, the evidence was able to beadduced through s 117 of the Corrections Act. It was not unlawfully obtained evidenceand did not require an evidential ruling.[71] The defence was given late notice of the adducing of the evidence. This wasnot best practice but there was no prejudice to Mr Ngaweketuhimata as sufficientnotice had been given to enable the defence to prepare for the evidence. Notice hadbeen given nearly a week before trial and the evidence had been disclosed some timeearlier.[72] I do not consider any error was made in relation to the admission of thetranscripts. In any event no miscarriage occurred on the basis of procedural errors asoutlined.Insufficient reasons[73] Mr Tennet argues the Judge gave insufficient reasons for rejectingMr Ngaweketuhimata's evidence and accepting that of the complainant. He says theJudge relied on demeanour and was influenced by what he had previously read andheard at the sentence indication. The Judge said:33[33] I can have regard to the demeanour of the complainant whoseevidence in Court, when she finally was persuaded to come along, had a stoiccharacter about it. She was sad and downcast, but nevertheless unshaken inwhat she had to say and one formed the distinct impression that thecomplainant had realised, because of the nature of the allegations being made,that it was probably now or never for herself and her family.[74] In my view the Judge correctly considered the evidence. He referred to whyhe preferred the evidence of the complainant and not that of Mr Ngaweketuhimata. Inaddition to the comments about demeanour the Judge pointed to other reasons for33 Conviction decision, above n 12.believing her over the appellant. The Judge was also alive to the need for carefulweighing of the evidence when he said:[25] Having recounted those allegations in some detail, it is obviouslyimportant to weigh against them the evidence given by the defendant who haschosen to give an account of matters and has also called his sister to the oneparticular point to which I have already referred. The defendant's evidence islargely to the effect that none of the episodes of violence claimed by thecomplainant, in fact, took place.[28] Many questions thereby go unanswered, but the bottom line in all ofthis is that the matters alleged by the complainant, so far as domestic violenceare concerned, are entirely denied. So, too, are any threats, even though theframework within which she says the offending took place is agreed. Thespecific ingredients of each of the offences is denied and, of course, the onusis on the prosecutor to prove those beyond reasonable doubt. I repeat, thedefendant is not obliged to give or call evidence and he takes on no onus ofproving anything.[75] In relation to the complainant's credibility he noted the domestic violencecontext and background. He said:[31] So far as the first and second platforms of the defence are concerned,fabrication and delay, there is an obvious tension between them. Why, forexample, would an accuser bent on making self-serving false allegations forulterior reasons delay in making those allegations? Why would the samecomplainant fail to attend at Court to give evidence except hours late and thenunder threat of arrest and with much support and encouragement from thepolice and officials if the complaint she was bent on making was false and forher purposes? Both questions must arise in the context of this case.[32] We know, too, that psychologists and sociologists have finallypersuaded the Law that 18th century notions of "hue and cry" are unsound andthat there can be good reasons for delay in making a complaint. I have toconsider whether those good reasons exist here and in doing that I am entitledto draw on the not inconsiderable information I now have about therelationship and the background of the people involved in it. I have also seenand heard the protagonists.[34] The statement that [the complainant] made to the police was referredto in cross-examination. It has to be said that that is largely consistent withthe evidence given in Court in material respects, particularly considering theviolence which she alleges. Her evidence was occasionally hesitant. She wasoccasionally in a position of having to say, "I don't remember." In context, Ido not take any such admission as amounting to a capitulation or resiling fromthe complaints made and it is to be borne in mind that the complainant in thismatter was highly conflicted, not only by Māori family loyalty, but also byMāori gang affiliation with all the implications that those have when givingevidence in the Court environment.[35] I remind myself that the repetition of allegations does not strengthenor add to them, but it is a matter that can be taken into account whereconsistency is in issue.[39] Other mundane domestic matters about time and place, expenditureen route, accommodation en route, et cetera, as recounted by the complainantare all effectively common ground, so that there are many shreds ofcorroborative detail that coincide convincingly with the complainant'saccount of matters, except of course for the violence to which she refers.[40] So, the question becomes, has the complainant introduced into amundane and undisputed domestic travel arrangement a series of bizarre,terrifying, humiliating and quite degrading fabrications in order to falselyaccuse the defendant and has she made use of her children as props in thatsame fabrication and to that same end?[42] I return to the complainant's narrative which is convincing and inmany respects rather too horrible, too degrading to her, to have been thesubject of invention. Likewise, it seems to me highly improbable that such anarrative would be dreamed up and incorporating the children by a motherpresenting the demeanour of this complainant.[76] On the other hand the Judge pointed to the reasons he did not believeMr Ngaweketuhimata's denials. He said:[36] But of course, his is the only evidence save that of his sister thatthe complainant is untruthful and I think it is fair to say that his sister'sevidence was bald and not, in my view, conclusive of the propositions forwhich it was led.[37] The defendant in giving evidence was impulsive and angry, as indeedother documents in the case demonstrate that his conduct may be from time totime. His answers were frequently either non-responsive or evasive, but thecontent of his evidence, of course, largely confirms the factual backgroundaccount also given by the complainant: the journey to Auckland, its purposesand its events from beginning to end.[38] The defendant, of course, denies the violence and denies the use of thegun, but the existence of a gun is confirmed by him, albeit with a number ofimplausible surrounding matters of detail which incidentally were not put tothe complainant while she was giving evidence, particularly any connectionbetween her family and this particular gun, let alone any suggestion thatmembers of her family concealed it at the defendant's home.[41] Having seen and heard all the evidence in the case, there is nothinghere that causes me reasonable doubts about the evidence given by thecomplainant. So far as the defendant's evidence is concerned where he deniesthe violence, I do not accept it and I put it to one side.[77] The Judge gave appropriate reasons for preferring the complainant's overMr Ngaweketuhimata or his sister. There is no miscarriage of justice. The Judge'sreasons were sufficient.Conclusion[78] I have found while there were some procedural irregularities in the conduct ofthe proceedings, however, they do not support a finding on appeal that there has beena miscarriage of justice either separately or taken together in this case.[79] The appeal against conviction is dismissed.Appeal against sentence[80] The focus of this appeal was Mr Ngaweketuhimata's conviction. However,Mr Tennet also made submissions on the sentence. These submissions were based onthe fact that the sentence indication gave a starting point of four years, whereasMr Ngaweketuhimata's final sentence was six years' imprisonment with a startingpoint of five years' imprisonment being uplifted to recognise other offending.34[81] An appeal against sentence is brought under s 250 of the Criminal ProcedureAct 2011. It is an appeal against a discretion and must only be allowed if the Court issatisfied that there has been an intrinsic error in the sentence imposed and a differentsentence should be imposed.35 The focus is on the final sentence and whether that wasin the available range, rather than the exact process by which it was reached.[82] Mr Tennet acknowledged there were two further assault charges relating topolice officers which were not before the Judge at the time of the sentence indication.Nevertheless, he said they would only have justified a further six month uplift.Mr Tennet said the facts at the indication were essentially the same as dealt with by34 Sentence Decision, above n 13.35 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.the Judge in the final sentencing,36 and thus the substantially higher starting point wasnot justified. He said, despite the charges being more serious, when the Judge raisedthe starting point from four to five years on unchanged facts, he was unfair toMr Ngaweketuhimata.[83] Mr Tennet suggested that in the circumstances it was open to this Court toallow the appeal and immediately re-sentence Mr Ngaweketuhimata. He accepted thatthere were serious domestic assaults involved. He said this Court should resentenceMr Ngaweketuhimata at the level contemplated by the sentence indication. Thiswould avoid a retrial which would mean the complainant would need to give evidenceagain.[84] This submission ignores the fact that the sentencing judge was facing adifferent situation to that before him when he gave the sentence indication. For a starteven though the facts were similar, or as Mr Tennet has it more favourable to thedefendant, the Judge had to take into account the more serious charges and theincreased maximum penalties involved. Similarly, there were a further two assaultswhich appear to have been reasonably serious. The Judge had also seen and heard theevidence on the series of domestic violence incidents. He was not just relying on asummary of facts and so was in a better position to assess its seriousness. It is thewhole of the offending that needs to be taken into account by the sentencing Judge.His sentence was not out of the expected range.[85] Apart from pointing out the one-year difference between the sentencingindication and the final sentence, nothing was put before me which suggested the levelof the sentence was out of the appropriate range.[86] In my view the Judge made no error in the sentence.[87] For those reasons the appeal against sentence is dismissed._________________Grice J36 He said it could even be possibly better as there was no suggestion of attempted murder, given theexpert arms evidence.