W v NEW ZEALAND POLICE [2019] NZHC 894

W v NEW ZEALAND POLICE [2019] NZHC 894 [18 April 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlNOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF PERSONS UNDER THE AGE OF 18YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDUREACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2018-454-16[2019] NZHC 894WvNEW ZEALAND POLICEHearing: 16 April 2019 via AVLAppearances: Appellant in PersonS P Poulton for RespondentJudgment: 18 April 2019Reissued: 20 September 2019Reissued 20 September 2019 anonymised and with suppressionordersJUDGMENT OF CLARK J[1] Following a Judge alone trial before Judge Large on 6 July 2018 W wasconvicted on a charge of male assaults female.1 W appeals his conviction.Background[2] The events which led to the charge were set out in Judge Large's judgment.2The charge arose from an incident at W's mother's home in Feilding on 8 January2018. W's twin sons were staying with him. Their mother, the complainant, lived inAuckland. Although the twins resided with her they were staying with their father atthis time. W ran a lawn mowing business. He asked his sons to help out on thisoccasion so that the work could be completed and they could get on with their holiday.The boys rejected this suggestion and remained on their tablets. After a period of some30 minutes W decided to take the tablets from them. That decision caused somewhatof a scuffle as a consequence of which the boys left and went to their grandmother'shome.[3] During the scuffle, one of the twins, D, telephoned his mother in Auckland. Asa consequence, his mother, N, decided to drive from Auckland and return with D as hehad requested. She was accompanied by her oldest son S. W was mowing the lawnat the property next door to his mother's home when N and S arrived. When W sawthem, he turned off the lawnmower, hopped the fence and confronted N asking,"where's your warrant?". This comment it seems, was in reference to a Family Courthistory between the pair. W's mother was at her front door. Because she was standingin the doorway D was unable to leave the house and accompany N and S who werestanding at the entrance to the property.[4] The Judge then heard two conflicting versions of events. The prosecution casewas that when D succeeded in exiting the house past his grandmother W grabbed himby the scruff and punched N in the face. The prosecution witnesses, (N, D and S) gaveevidence to similar effect including that when he saw his mother being punched Spunched W and put him in a headlock.1 Crimes Act 1961, s 194(4).2 New Zealand Police v W [2018] NZDC 13951.[5] W said he went over the fence and asked N about a warrant because of theirFamily Court history. He said he did not punch N. Rather, he was grabbed in aheadlock by S. W acknowledged he was angry but said when D came out of the househe did not grab his son. He grabbed the railing so that D was unable to proceed pastW's outstretched arm.[6] Ultimately, the Judge was satisfied the evidence supported N's account. Aswell, there was "independent" evidence from photographs taken by N after the incidentshowing redness consistent with a blow of some description to her left cheek area.The Judge found the charge proved.Grounds of appeal[7] W challenges the photographic evidence produced on the day of trial. Wargued the photographs were not date stamped and could have been taken at any timebetween the day of the incident in January 2018 and the trial in July 2018. The policehad no record of the photos being sent to them, the photos were only shown to W'slawyer, not W himself, and he said N produced no medical certificate supporting herclaim of bruising to the face.[8] The other grounds of appeal specified in W's notice of appeal are that:(a) the witness police statements and evidence given in cross-examinationare not consistent; and(b) an earlier protection order was obtained through perjury.[9] In his written submissions W adds:(a) the summary of facts contained five false accusations;(b) full disclosure was not provided on W's request;(c) the officer-in-charge refused to interview all witnesses;(d) police refused to lay charges against S for assaulting W; and(e) the complainant had previously made false complaints to the police.Analysis[10] Having carefully considered W's written submissions and oral arguments I amnot persuaded the Judge erred in his assessment of the evidence at all, much less tosuch an extent that a miscarriage of justice has occurred. Nor, for any other reasonhas a miscarriage of justice occurred.3 In the remainder of this judgment I provide myreasons for reaching this conclusion.Photographs[11] During his cross-examination of N W's counsel, Mr Steedman, asked:When you left the police station was it on the basis of advice given to you bythe police that if any bruising did develop you should take photos?[12] N agreed she was told to take photos and when asked whether she had done so,said "Yes I have". Then Mr Steedman asked N if she had the photos with her. N saidshe did and Mr Steedman asked to see them. At that point N said they were on herphone.[13] An exchange followed between N and the Judge who asked to see thephotographs. The notes of evidence record Judge Large asking for an explanation asto how to view the photos. He was concerned not to delete them or to interfere withN's phone. The record shows there was a "legal" discussion about the use of the phonefor approximately one minute before the morning adjournment. After the adjournmentMr Steedman resumed his cross-examination of N about the bruising, the photographs,and why she had not taken any further photographs.[14] It was clearly open to W, through his counsel, to ask for an adjournment inorder to establish whether or not the police had received the photos which N said incross-examination she had texted to an officer. As well, having seen the photos on N's3 Criminal Procedure Act 2011, s 232.phone, it was open to Mr Steedman to query when they were taken. Presumably, asseems to be typically the case with digital photographs, the date they were taken wouldhave been ascertainable from the mobile phone itself.[15] Raised at this distance from the trial, W's objection to the admissibility of thephotographic evidence does not constitute a tenable ground of appeal. Going into thetrial, the prosecution did not rely on the photographic evidence. The prosecutionintended to discharge, and succeeded in discharging, the burden of proof on it toestablish the charge proved on the basis of witness testimony.[16] The Judge certainly took into account the photographs taken by N but lookingat the evidence overall, I agree with Ms Poulton's submission that it was open to theJudge to find the prosecution case proved on the basis of the witness testimony,without the photographs, whose existence was only established in the course of cross-examination.[17] W challenged D's account as being untrue. D's evidence was that his fatherhad grabbed him and pushed him against a wall and that when his mother tried to reachhim and pull him away his dad punched his mother in the face. D also said that hisbrother, S, then hit W and put him in a headlock. I asked W which aspect of D'sevidence he regarded as untrue. Unsurprisingly, W said D's account of W punchingN was fabricated.[18] While the Judge did not make specific credibility findings he clearly preferredoverall the evidence offered by the prosecution regarding the punch. Neither S nor Dwere other than open about S's participation in the fracas. In that regard I note that Sestimated he held W in a headlock for 10 to 20 seconds which is reasonably consistentwith the evidence W gave later in the trial, of a headlock being placed on him for 10 to15 seconds. The point is that having regard to the evidence of the prosecutionwitnesses, in particular D and S, there are several indicia of truthfulness (for exampleS giving evidence against himself).[19] I turn to the remaining heads of appeal which it is convenient to discuss undertwo categories: evidential concerns and pre-trial processes.Evidential concerns[20] W's first complaint is that N stated in evidence S was with her when D calledand they then talked to a nearby police officer. He says this evidence is inconsistentwith a police statement S gave in which he described being at work when he receiveda phone call from his mother who was upset.[21] The short point, which disposes of this argument, is that if there were anyinconsistency between statements given to the police by the prosecution witnesses andtheir evidence at trial, it was open to counsel to cross-examine those witnesses on theirinconsistencies. There was no such cross-examination on the point W raises.[22] W next argues that N has previously perjured herself and did so again duringthe trial before Judge Large. This point also can be met by the observation that it wasopen to counsel to cross-examine N about what W now alleges are inconsistenciesbetween her evidence and statements to the police. As to the contention that Nobtained a protection order as a result of perjury, the protection order was issued on16 December 2003 and the circumstances in which it was obtained are simply notrelevant to the trial of the charge W faced in 2018 for assault. It was open to W toinstruct his counsel about any concerns or evidence he had bearing on N's credibility.The concerns W now raises could have been raised at the appropriate time. That timewas during the trial process, not on appeal.Pre-trial processes[23] In relation to W's argument concerning the summary of facts, the summary offacts becomes irrelevant when a defendant does not plead guilty and the matterproceeds to trial. Accordingly, to the extent there were matters in the summary of factsrelevant to the charge against W, and with which W took issue, those matters couldhave been raised during trial for example by way of cross-examination of witnesses.[24] There is no merit in the argument that W was not provided with a disclosurepack. The disclosure index appended to the respondent's submissions lists the17 documents fully disclosed to W. I note in passing that W took issue with the finalparagraph in the summary of facts recording the explanation he had given to policeabout the incident. During the hearing of the appeal W said he had been able to verifythe error in the summary of facts when he checked the transcript of his interview. Thetranscript of the interview was one of the 17 documents listed in the disclosure index.The fact W had the transcript tends to undercut the claim he had not been givendisclosure.[25] As to the contention that the officer-in-charge did not interview all witnesses,any alleged inadequacies in the investigative process could, and should, have beenraised prior to, or during, the trial.[26] Finally, as to W's concern that S has not been charged with assault on W, thatis not a matter that bears on the trial of the charge against W.[27] W alleges N has previously made false statements to the police, essentiallyimputing she is not to be believed. Again, N and W's history in the Family Court wasknown at the point of trial and the matters which W now raises were available to beexplored by defence counsel. They were not.Result[28] The appellant has not established any error, irregularity or occurrence in or inrelation to or affecting the trial.4[29] The appeal must be dismissed._____________________________Karen Clark JSolicitors:BVA The Practice, Palmerston North for Respondent4 Criminal Procedure Act, s 232(4).