ROWLANDS v NEW ZEALAND POLICE [2019] NZHC 437

ROWLANDS v NEW ZEALAND POLICE [2019] NZHC 437 [13 March 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-441-000025[2019] NZHC 437BETWEEN TALLY RAYMOND ROWLANDSAppellantAND NEW ZEALAND POLICERespondentHearing: 13 March 2019 (via AVL at Wellington)Counsel: W R Hawkins for AppellantC R Stuart for RespondentJudgment: 13 March 2019JUDGMENT OF COLLINS JIntroduction[1] Mr Rowlands was convicted of two charges of male assaults female1 after aJudge-alone trial before Judge Adeane in the District Court at Hastings on 10 July2018.2 In relation to the main assault charge, Mr Rowlands was sentenced to ninemonths' supervision and directed to undertake counselling and education programmes.He was ordered to come up for sentence if called upon in relation to the other assaultcharge. A protection order was imposed by consent.3 Mr Rowlands appeals againsthis convictions on the basis that the Judge erred by failing to place any weight on theoral evidence of the complainant, who, when giving evidence, resiled from the signedstatement she provided the police.1 Crimes Act 1961, s 194; maximum penalty two years' imprisonment.2 New Zealand Police v Rowlands [2018] NZDC 17025.3 Sentencing Act 2002, s 123B.Background[2] On 21 February 2018, police were called to "an assault incident" at a residentialaddress in Hastings where the complainant's cousin resides. Mr Rowlands was at thataddress with his partner, the complainant. Mr Rowlands was arrested, and thecomplainant made a statement to police.[3] In her statement to Constable Codyre, one of the officers at the scene, thecomplainant said that when she arrived home Mr Rowlands was "really angry" thatshe had left their infant son with him for a couple of hours. She said that he "got upfrom where he was sitting and was abusing" her. She said he then "shoved [her] withone hand", that it was "pretty hard" and that she "got knocked to the ground". Shesaid that Mr Rowlands then went outside, so she "ran to the neighbours".[4] The complainant also explained in her statement to police that she had a blackeye, which she said "happened one afternoon last week" when Mr Rowlands was"laying into" her and "back handed" her. She said that she did not get knocked to theground on that occasion but that it hurt. The complainant said that Mr Rowlands was"always angry with" her and that she is "intimidated by him". She said that she "wasso scared [that day] that [she] locked [herself] in the bathroom at the neighbour'shouse." She said she wanted a protection order to keep her and her son safe.[5] The next day, the complainant spoke to Constable Codyre and expressed adesire to withdraw the charges because family members were "turning against her".[6] At trial, the complainant was called as a witness for the prosecution. However,when she was examined about the events of 21 February 2018, she gave a verydifferent account from that contained in her statement to the police. Initially, she saidthat police were called because she "had an argument" with Mr Rowlands about her"spending [their] money at the pokies". She then said that it was her cousin who calledthe police. Later, when questioned on why the police would be called for an argument,the complainant said that she asked her cousin to call them before she got homebecause she anticipated an argument and so she wanted Mr Rowlands removed fromthe property. When pressed by the prosecution on whether anything else happenedthat day, the complaint said: "That was it".[7] The complaint's signed statement to police was then put before her. Sheaccepted that she had made the statement but said that she had given "false details".She explained that she got the black eye during a fight with her sister about three daysprior to the events in question. Various details of her statement to police were then putto the complainant by the prosecution. The complainant accepted that she said someparts of the statement but denied saying other parts. She eventually accepted, however,that she signed the statement and that she was provided with the opportunity to read itbefore doing so, although she said she did not read it properly.[8] A photograph taken of the complainant by Constable Codyre on 21 February2018, which shows her black eye, was handed up as an exhibit.[9] Mr Hawkins, counsel for Mr Rowlands, cross-examined the complainantconcerning previous convictions she has for shoplifting.[10] Constable Codyre also gave evidence for the prosecution. She said that shefound the complainant "hiding in a locked bathroom". She also said the complainant"looked terrified and was very shaky". These statements were put to the complainantby the prosecution. The complainant denied all of them.4[11] Constable Palmer, who arrested Mr Rowlands, also gave evidence for theprosecution, although he did not give any evidence about the complainant.[12] Finally, the prosecution called the complainant's cousin as a witness. She wasalso hostile and corroborated the complainant's oral account of events. She acceptedthat the complainant was in a locked bathroom at her neighbour's address but deniedthat the complainant was shaky when she saw her.[13] Mr Rowlands did not give evidence.4 There is one line in the transcript that suggests the complainant accepted she was shaky, however,from the surrounding context this appears to be a typographical error.District Court decision[14] In his judgment, the Judge:(1) began by emphasising the burden and standard of proof;(2) set out the two versions of events and explained that the complainanthad been declared hostile and her previous inconsistent statement hadbeen put to her;(3) dismissed Mr Hawkin's submission that the complainant's originalstatement could not be trusted because she had previous convictions fordishonesty offending, noting "there is an element of disconnectionbetween dishonestly stealing on the one hand and making falsecomplaints to the police about domestic violence on the other";(4) canvassed the legal position in relation to the admissibility of previousinconsistent statements;(5) concluded that the complainant's statement should be treated as thetruth because it was "entirely consistent" with the circumstances inwhich Constable Codyre described finding the complainant; and(6) accepted that the charge in relation to the black eye was proved,referring to her "conspicuous aged black eye" on 21 February 2018.Appeals against conviction[15] In the case of a judge-alone trial, the appeal court must allow an appeal againstconviction if it is satisfied that the trial judge erred in his or her assessment of theevidence to such an extent that a miscarriage of justice occurred, or if it is satisfiedthat a miscarriage of justice has occurred for any other reason.5 A miscarriage ofjustice is defined as any error, irregularity, or occurrence that created a real risk thatthe outcome of the trial was affected, or that resulted in an unfair trial or a trial that5 Criminal Procedure Act 2011, s 232(2).was a nullity.6 A "real risk" is where "there is a reasonable possibility that a not guilty(or more favourable) verdict might have been delivered if nothing had gone wrong".7[16] A challenge to a trial judge's assessment of the evidence is equivalent tochallenging a jury's verdict.8 Accordingly, the appellate court is exercising a reviewfunction rather than substituting its own view of the evidence. Appropriate weightmust be given to advantages the trial judge may have had in assessing matters such asthe honesty and reliability of witnesses.9 The Court will only interfere with the factualfindings of a trial judge "in exceptional circumstances".10SubmissionsFor Mr Rowlands[17] Mr Hawkins focused his submissions on the fact the Judge had entirelydisregarded the complainant's oral evidence. He submitted that some weight shouldhave been placed on the complainant's oral evidence because:(1) the complainant has a history of dishonesty; and(2) the oral evidence was given on oath, whereas the police statement wasnot.[18] Mr Hawkins also criticised the Judge for not making any reference to thecomplainant's evidence that she received the black eye from her sister and not fromMr Rowlands.[19] Mr Hawkins submitted that there was a real risk that the outcome of the trialwas affected by these errors and that therefore a miscarriage of justice had occurred.6 Criminal Procedure Act 2011, s 232(4).7 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].8 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].9 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].10 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38]; affirmed in McLean v R [2017]NZHC 3127 at [10].For the police[20] Mr Stuart submitted on behalf of the police that it was open to the Judge toreject the complainant's oral evidence in favour of her statement to Constable Codyre.He submitted that statement was reliable because it was recorded by an officer andsigned as true and correct by the complainant immediately after the events occurred.Mr Stuart submitted that the complainant's earlier statement was more consistent withConstable Codyre's evidence, and that the complainant's oral evidence wasinconsistent and unrealistic.Legal principles[21] The Supreme Court's decision in Hannigan v R makes it clear that it ispermissible to admit previous inconsistent statements at trial under the Evidence Act2006 and to rely on those statements to prove the charge in appropriate cases.11 It willbe a matter for the fact finder to allocate appropriate weight to the inconsistentevidence, keeping in mind at all times that the burden of proof lies with the prosecutionto prove a charge beyond reasonable doubt.[22] The position was neatly summarised by Kós J in Richmond v Police, whichalso concerned victims of assault resiling from their allegations:12It is a not infrequent experience in summary trials that a complainant resilesfrom his or her original statement. That original statement may be evidence-in-chief (introduced in the form of an evidential interview), it may beintroduced through another witness (such as a police officer) or it may be putto the tergiversating witness as a previous inconsistent statement. Sometimes,but certainly not always, the complainant may be hostile to the prosecution.It remains a question for the fact finder (whether a jury, or in the summarycontext, a Judge) whether, in the face of this internal conflict, any part of theevidence given by the complainant remains credible and reliable. The fact ofconflict, just as with inconsistencies, does not prevent a jury or Judge fromrelying on part, and rejecting the rest. The weight to be given to a witness'sevidence, and to the warring parts of a witness's evidence, is essentially aquestion for the fact finder. Having performed that weighing and screeningfunction, then so long as there is sufficient evidence available on which thefact finder could reasonably be satisfied to the required standard as to guilt,then there is no basis in law to reverse that finding.11 Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612.12 Richmond v Police [2013] NZHC 356 at [27]–[28].AnalysisAssault on 21 February 2018[23] In the present case, I am satisfied that the Judge did not err by preferring thecomplainant's statement to police over her oral evidence. My reasons for this can bedistilled to the following points:(1) The statement to police was made immediately following the eventsand before any third parties might have had the opportunity to placepressure upon the complainant to resile from her allegations.(2) The complainant was given the opportunity to read over her statement,and she signed it confirming it was true and accurate.(3) The fact the complainant resiled from her allegations on the witnessstand can be explained by the comment she made to Constable Codyrethe day after the assault about members of her family "turning againsther".(4) The statement to police was more consistent with Constable Codyre'sevidence that she found the complainant "hiding in a locked bathroom"at the neighbour's address and that the complainant "looked terrifiedand was very shaky".(5) The transcript of evidence suggests that the complainant was notconfident in her oral evidence. She was not clear on the details of hernew account, and they changed as she gave evidence. The followingexchange with the Judge concerning what the complainant said toConstable Codyre is telling:Q So what did you say to her about where the black eyecame from?A She asked me if I had got it from [Mr Rowlands] andI lied to her and – I actually I didn't I don't remembersaying anything I don't remember saying where I gotit from.(6) The complainant's cousin, who confirmed the complaint's oral account,also appears to have been a very unhelpful witness and did not providea coherent account of events.(7) In their oral evidence, the complainant and her cousin tookcontradictory positions on whether the complainant was found in alocked bathroom at the neighbour's address.[24] The points outlined at [23](6) and (7), in particular, turn on matters ofcredibility that are difficult to resolve from the transcript alone. The Judge would havehad a far better appreciation of those matters, which further demonstrates why it wouldbe inappropriate for this Court to overturn his decision on appeal.[25] I also note that, to the extent the complainant's previous convictions fordishonesty offending are relevant, there is no logical reason to doubt her honesty whenmaking her statement to police but not to also doubt her honesty when giving evidenceat trial. That submission, therefore, cannot advance the case for Mr Rowlands. In anyevent, I agree with the Judge on the limited relevance of those convictions.[26] In those circumstances, the Judge cannot fairly be criticised for placing noweight on the complainant's oral evidence. That evidence was in many waysirreconcilable with her statement to police. Accepting the evidence in the policestatement necessarily entailed rejecting much of the oral evidence. It was essentiallyan all-or-nothing exercise. Accordingly, Mr Rowlands' appeal against conviction onthis charge fails.Assault resulting in the black eye[27] It is clear from the photograph produced as an exhibit that the complainantsustained the injury in the days prior to 21 February 2018. The only evidence thatMr Rowlands inflicted that injury is the statement of the complainant toConstable Codyre, which is contrary to her later evidence that her sister inflicted theinjury. Unlike the assault that took place on 21 February 2018, there is nocorroborating circumstantial evidence from the police officers about this earlierassault.[28] Nevertheless, once it has been accepted that the complainant's oral evidenceshould be rejected in favour of her statement to police, then the Judge was legitimatelyable to rely on what the complainant told the police about how she came to receive herblack eye. There is no other reason to doubt that the complainant was telling the truthabout who gave her the black eye when she spoke to Constable Codyre on 21 February2018. It was therefore open to the Judge to also find this charge proven beyondreasonable doubt. Accordingly, the appeal against conviction in relation to this chargealso fails.Result[29] The appeal is dismissed._______________________D B Collins JSolicitors:Bramwell Bate, Hastings for AppellantCrown Solicitor, Napier for Respondent