IN THE Court of appeal OF new Zealand
	
CA739/2014
[2015] NZCA 252

BETWEEN	
SHANE JAMES OLD
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
10 June 2015	

Court:	
Wild, Venning and Williams JJ	

Counsel:	
R A Barnsdale for Appellant
M G Wilkinson for Respondent	

Judgment:	
17 June 2015 at 11 am	

JUDGMENT OF THE COURT

The appeal, both against conviction and sentence, is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)
Introduction
[1]	Following a trial in the Tauranga District Court in August 2014, the jury found Mr Old guilty on one charge of causing grievous bodily harm with intent to cause grievous bodily harm and one charge of assaulting a police officer with intent to obstruct him in the execution of his duty.
[2]	Mr Old appeals against the convictions subsequently entered by Judge Rollo on the basis:
(a)	Hearsay:  Pre-trial statements by the complainant were wrongly admitted.
(b)	Identification:  The complainant’s evidence identifying Mr Old as his assailant should have been excluded because the requirements of s 45 of the Evidence Act 2006 were not complied with.  Further, the Judge failed to give the jury the warning mandated by s 126 of the Evidence Act.
Both these grounds challenge the conviction only on the grievous bodily harm charge.
[3]	An appeal by Mr Old against the sentence of eight and a half years imprisonment with a minimum period of four years imposed on Mr Old by Judge Rollo on 12 November 2014 was not pursued.  Accordingly we will formally dismiss the appeal against sentence.
The facts
[4]	On the evening of 6 February 2014 Anthony Bourke and Allen Cooper were drinking and watching television in the home in Whangamata they had been sharing for about six months.  They had been doing this for some hours and had each drunk about four or five stubbies of beer.  They ran out of cigarettes.
[5]	At about 10 or 11 pm Mr Cooper left by car and drove into town to see if he could borrow some cigarettes from his friend Verrall Mayor.  He and Mr Mayor had been friends for some 25 years.  Mr Cooper found Mr Mayor in his bed, “horribly beaten”.  Mr Cooper returned home about 15 minutes later bringing Mr Mayor with him.  Mr Mayor was in a bad state.  He was covered in dry blood and his head was very swollen.  He had obviously been seriously injured.  An ambulance was called and took Mr Mayor to the local medical centre.  He was subsequently airlifted to Waikato Hospital.
[6]	At some point during these events Mr Mayor told Mr Cooper “it was Shane Old”.  But when Mr Bourke asked him who had done it, Mr Mayor said “I can’t remember anything”.  Constable Richards spoke to Mr Mayor in the ambulance outside the medical centre.  Mr Mayor told Constable Richards he had been beaten up by Shane Old who had been living at his address in Achilles Rd.  Mr Mayor added “I don’t want anything done about it”.
[7]	Detective Woodgate spoke to Mr Mayor at Waikato Hospital at 2.45 am on 7 February.  In his evidence the Detective described Mr Mayor’s condition as very agitated, obviously distressed and injured.  The Detective’s evidence was that Mr Mayor told him:
Shane Old did this to me.  He is living with me at the moment.  He did this with a broom, hitting me with the broom handle.
[8]	The Detective recorded Mr Mayor as telling him this happened at his house at 105 Achilles or similar in Whangamata.  Also that Mr Old had punched him, Mr Mayor describing this occurring in the kitchen, bathroom and dining room areas.  The Detective also recorded Mr Mayor telling him that he would prefer police not to examine his address as he had some illegal items there — he had drugs there, marijuana for personal use.  Mr Mayor then told the Detective he was hit more than once.  Mr Old had swung the end of the broom, hitting him with the bristle end into the head.  He described it as a kitchen broom, wooden, a smallish broom.  
[9]	Detective Woodgate subsequently took a written statement from Mr Mayor, starting at 12.30 pm on 7 February.  The first part of the statement reads:
Verrall Anthony Mayor states, “I have known Shane Old for years through his sister Tracey Old. I have known her for years as a friend. Shane and I were good mates. We are both into horse racing and that’s how he came to live with me. He has been living with me for about six months. I’ve never had any problems with Shane. We lived together but didn’t do much together socially. There’s been no issues since he’s been living with me. Things started going bad about 7.00 pm last night. Shane and I were drinking in his, in his sitting room, drinking Waikato beer. We’d had a couple each by that time so we weren't really that pissed. We had only been drinking about half an hour by then. Shane just attacked me. The first thing I remember him doing was kicking me in the head with his steel capped boots. We were both sitting and he stood up and kicked me while I was sitting. I didn’t get a chance to react. The kick went into the top left of my head. I went on the ground. I stayed conscious. He picked up a broom from the front door. I couldn't see how he was holding it. I just remember the bristle end hitting me in the face twice. …”
[10]	The statement then continued, Mr Mayor describing Mr Old’s assault on him in some detail.  The statement was completed and signed by Mr Mayor at 1.09 pm.  
[11]	In his evidence Mr Mayor said he had known Shane Old for possibly four or five years, and Mr Old had lived with him at 105 Achilles Avenue for some months.  Questioned about the events of the night of 6 February, he said he remembered waking up in hospital but nothing else.  Asked about how he got his injuries, he said he supposed he had been beaten up but did not remember it.  He did not remember talking to any police officers.  When he was shown the statement he had signed he recognised the signature as his, but could not remember making the statement.  Asked about the detail of what he had stated in the statement, he reiterated that he could not remember anything other than waking up in hospital.  In the course of cross-examination there was this exchange:
Q.	Is it your position today that you don’t actually believe that Shane Old assaulted you?
A.	No. We’d been, we’d been friends for too long for him to have done that.
Hearsay
[12]	Mr Barnsdale’s argument can be summarised thus:
(a)	As Mr Mayor’s evidence at the trial demonstrated, he could not remember the events of the night of 6 February 2014.  In particular, he could not remember being attacked, nor who had attacked him.
(b)	Consequently, although Mr Mayor was physically present at the trial as a witness, his physical and/or mental condition was such that he was not fit to be a witness.  Essentially, he was unavailable as a witness in the trial.  
(c)	That rendered Mr Mayor’s four successive statements on 6 and 7 February identifying Mr Old as his assailant hearsay.
(d)	In terms of s 18 of the Evidence Act, all four statements should have been ruled inadmissible as evidence in the trial because the circumstances relating to them did not provide reasonable assurance that they were reliable and Mr Mayor was unavailable as a witness.
[13]	Mr Barnsdale based his submission that the circumstances relating to the four statements did not provide reasonable assurance as to their reliability on these points:
(a)	When Mr Bourke asked Mr Mayor who had attacked him, Mr Mayor said he could not remember.
(b)	Mr Mayor’s detailed written statement to Detective Woodgate included Mr Mayor stating that he and Shane Old had been drinking cans of beer immediately prior to the assault, that Mr Old had kicked him in the head with steel capped boots and had hit him with a computer.  When the police searched Mr Mayor’s home they found none of those items.
(c)	Detective Woodward had begun his interview during which he took the signed statement from Mr Mayor by reviewing the comments he had obtained from Mr Mayor earlier that day.  There would thus be “an easy, but evidentially dangerous, tendency for [Mr Mayor] to adopt his earlier comments, whether he remembered or not”.
[14]	This ground of appeal is untenable.  Mr Mayor was available as a witness at the trial.  He was the first witness called by the Crown.  He was cross‑examined at some length by defence counsel.  Certainly, he could not remember being attacked or who had attacked him.  But he was able to answer other questions put to him, both in chief and in cross-examination.  In particular, defence counsel got the valuable answer we have set out at the end of [11] above.
[15]	Mr Barnsdale referred us to the decision of the District Court in R v Todorovic.  There, it was not in dispute that the witness’s Alzheimer’s Disease had deteriorated to the point where she was no longer able to give evidence in the trial.  The issue was the admissibility of a second statement she had made to the police, at a time when she was beginning to suffer from Alzheimer’s Disease.  The Court ruled the statement admissible.  
[16]	Coincidentally, this Court dealt recently with an almost identical situation in Nisha v R.  In that case, it was again common ground that the 80 year old complainant, who suffered from dementia, did not have the capacity to give evidence in the trial.  Having considered the evidence of a consultant geriatrician, this Court upheld the trial Court’s ruling that an evidentiary interview conducted with the complainant in January 2014 was admissible in evidence in the trial.  
[17]	Those two cases demonstrate that a potential witness’ deteriorating mental health can render them “unavailable as a witness” in terms of ss 16(2)(c) and 18(b)(i) of the Evidence Act.  But, for the reasons we have explained at [14], that was simply not the position with Mr Mayor in this case.  It is therefore not necessary to consider whether the circumstances provide reasonable assurance Mr Mayor’s statements were reliable.
[18]	Alternatively, if Mr Mayor’s four statements naming Mr Old as his assailant were admissible hearsay, Mr Barnsdale submitted the trial Judge:
(a)	needed to consider whether they should be excluded in terms of s 8 of the Evidence Act; and
(b)	whether to caution the jury, in terms of s 122 of the Evidence Act, that the statements may be unreliable.
[19]	Given that the statements were not hearsay, we deal with these two points only briefly.  The nub of Mr Barnsdale’s submission on s 8 was that Mr Mayor’s inability in evidence to remember being attacked or who had attacked him deprived Mr Old of his right to offer an effective defence (s 8(2)).
[20]	There is nothing in this point.  Mr McIvor, who represented Mr Old at trial, mounted an effective if unsuccessful defence along these lines:
•	Mr Old was not the person who had assaulted Mr Mayor.
•	The assailant may have been Mr Cooper.  Mr Cooper was clearly a troubled man.  The defence pointed to Mr Cooper’s sharp reaction when it was put to him in cross-examination that he was the offender.
•	Although a broken broom was found in the home Messrs Mayor and Old had shared, there were no beer cans, no steel boots and no computer.
•	How could the jury in all the circumstances be satisfied about the reliability of the identification evidence given by Mr Mayor?
[21]	In the circumstances, the Judge was right not to give a s 122 warning.  In particular, the jury had:
•	The benefit of seeing and hearing all the witnesses relevant to the reliability of Mr Mayor’s statements naming Mr Old as his assailant:  Mr Mayor himself, Mr Cooper, Mr Bourke, Constable Richards and Detective Woodgate.  Each was closely cross-examined.
•	The medical evidence of Dr Richard Seemann read by consent.  Dr Seemann described Mr Mayor’s injuries upon admission to Waikato Hospital.  He noted Mr Mayor had a past history of schizophrenia and was on fortnightly anti-psychotic medication injections.  He described Mr Mayor’s condition upon examination on 17 February 2014 and expressed the view “Mr Mayor is likely to have long term effects of such a severe brain injury”.  
•	The facts about Mr Mayor’s mental health, admitted pursuant to s 9 of the Evidence Act.  The admitted facts were that Mr Mayor had suffered post-traumatic amnesia as a result of the injuries he received on 6 February 2014.  That amnesia lasted for 36 days until 15 March 2014, when Mr Mayor was considered to be out of the post-traumatic amnesia period.  Based on the duration of that post-traumatic amnesia period, Mr Mayor’s brain injury “is rated as severe”.
[22]	In short, the jury, as the judges of the reliability of Mr Mayor’s four statements, had everything they needed.  A caution from the Judge would unnecessarily and unhelpfully have intruded upon the jury’s province of evaluating the evidence and determining guilt.
Identification
[23]	Mr Barnsdale had two points, one of which he essentially abandoned in the course of argument.
[24]	The abandoned point was that Mr Mayor’s statements naming Mr Old as his assailant should have been excluded because no formal procedure in terms of s 45 of the Evidence Act had been followed by the police.  Where, as here, a person has named as the offender someone he knows very well, there could be no useful purpose in the police undertaking a formal identification procedure.  That is good reason for not undertaking a formal procedure.  Mr Barnsdale ultimately accepted there would have been no utility in holding a formal identification procedure here.  Quite apart from that, there may have been a difficulty in doing so, given that Mr Old decamped following the incident and was not located and arrested until 24 February 2014 — some three weeks after the incident.
[25]	The second point is that the Judge did not warn the jury about Mr Mayor’s identification evidence, in terms of s 126 of the Evidence Act.  For the Crown, Ms Wilkinson very properly acknowledged that the Judge’s summing up does not contain a direction expressly according with s 126, in particular the mandatory requirements in s 126(2).  But she submitted the summing up, taken overall, did sufficiently warn and alert the jury to the need for vigilance when assessing Mr Mayor’s statements naming Mr Old as his assailant.  
[26]	We agree.  In summing up, the Judge said:
[11]	The defence case, of course, is to the contrary. Mr McIvor said that you have to be doubtful about the reliability you can place on Verrall Mayor's assertions that it was Mr Old, because of the extent of the injuries suffered and the difficulties with his memory, which were so evident when he gave his evidence in Court. He could not remember. We have heard medical evidence to the effect that his memory was adversely affected for some 36 days or so, where he could not remember new material from his day-to-day life.
[12]	The defence says that should ring significant alarm bells in your head as to the reliability of what he has said and, given the previous relationship between the two of them — they had been living in the same household together, flatting together effectively — they seemed to be good friends. Mr Mayor, in fact, asserted that from the witness box. He expressed the view, in his evidence, that Mr Old was not the perpetrator, at this stage, such that you have to doubt the authenticity and the reliability of what Mr Mayor said on the night.
[13]	Secondly, the defence says, “What about Allen Cooper?” who discovered the incident? Was it in fact him? Was it a third person who has gone into the address? Is that where the unexplained footprint comes from? We just do not know, the defence says, and that constitutes a reasonable doubt and you should find Mr Old not guilty on count 1.
…
[19]	Truthfulness or credibility can be different from reliability or accuracy, in that a witness may be entirely honest in what they say, but nevertheless may have made a genuine mistake. So care is required.
…
And, finally, while leading the jury through the question trail he had prepared for them:
[46]	Charge one, causing grievous bodily harm with intent to cause grievous bodily harm. One, "Has the Crown satisfied you beyond reasonable doubt the defendant caused the grievous bodily harm to the complainant?" I have underlined the critical part because that is what count 1 is about. Was it Mr Old? Has the Crown satisfied you beyond reasonable doubt that that is so? Or, is it possibly someone else?
[27]	Mr Mayor’s evidence was that he had known Shane Old for about four years and that he and Mr Old had been living together for about six months before the incident of 6 February 2014.  His account was that the two of them had been drinking and watching television when Mr Old suddenly attacked him.  No-one else was there.  In those circumstances, if the trial Judge had given a full s 126 compliant warning to the jury “the jury would rightly wonder whether he, the Judge, has taken leave of his senses because most of the [warning] would in those circumstances be quite unnecessary”.  That a s 126 warning was unnecessary in this trial, indeed positively inappropriate, doubtless explained why the Judge did not give one.  Yet, as this Court pointed out in R v Turaki, “even in such circumstances a full s 126 warning is required”.  We note this Court, in Turaki, expressly directed that a copy of its judgment be provided to the Ministry of Justice and the Law Commission, drawing their attention to the need for amendment to s 126 of the Evidence Act, so that it can be applied by trial judges in a practical and commonsense way.  In its recent review of the Evidence Act, the Law Commission did not recommend legislative change.  Rather, it considered a satisfactory position has been reached: a full s 126 warning is required (unless the case involves observation evidence where identity is not an issue).  If a s 126 warning is not given, the court must determine whether the failure to give such a warning has resulted in a miscarriage of justice.
[28]	Ultimately, the decision for us, in terms of s 232(2)(c) of the Criminal Procedure Act 2011, is whether the Judge’s failure to warn the jury expressly in terms of s 126 of the Evidence Act, caused justice to miscarry for Mr Old in his trial.  We are quite satisfied it did not.  First, and dealing particularly with the identification ground of appeal, counsel’s closing addresses and the Judge’s summing up, combined to drive home to the jury that assessing the reliability of Mr Mayor’s evidence, in particular in naming Mr Old as his assailant, was the key issue for them.
[29]	Secondly, and more generally, this was an overwhelmingly strong Crown case.  There was very little the defence could do in the face of Mr Mayor naming his housemate Mr Old as his assailant.  All the defence could really do was attempt to raise a doubt by implicating someone else, and the only other possible assailant was Mr Cooper.  The defence duly pointed the finger at Mr Cooper, suggesting to him in cross-examination it was he who had beaten up Mr Mayor.  The jury were able to observe and hear Mr Cooper’s sharp and emotional response to that suggestion.  There were other difficulties with the defence suggestion that Mr Cooper was the assailant.  On Mr Bourke’s account, Mr Cooper had only been gone about 15 minutes when he returned bringing the badly beaten up and injured Mr Mayor with him, telling Mr Bourke to call an ambulance.  Mr Bourke’s evidence was that Mr Mayor was covered in dried blood.  On the other hand, Mr Old was found by the police in bed at the home he and Mr Mayor shared.  Mr Old reacted violently to the police officer’s visit, first swearing at him and subsequently assaulting him.  Then, as we have said, Mr Old decamped and was unable to be located and arrested for almost three weeks. 
Result
[30]	The appeal against conviction is dismissed.  The appeal against sentence, which was not pursued, is also dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent