IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA608/2021
 [2022] NZCA 303

	
BETWEEN	
KYLE ASHLEY KOTZE
Applicant	
	
AND	
NEW ZEALAND POLICE
Respondent	

Court:	
Courtney, Thomas and Duffy JJ	

Counsel:	
C Mitchell for Applicant
H S Cunningham for Respondent	

Judgment
(On the papers)	
8 July 2022 at 11.30 am	

JUDGMENT OF THE COURT

The application for leave to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)
Introduction
[1]	The applicant, Kyle Kotze, seeks leave to bring a second appeal against his conviction on one charge of assault with intent to injure and one charge of strangulation.  Mr Kotze was found guilty of those charges following a judge-alone trial in the North Shore District Court before Judge Field.  
[2]	The Criminal Procedure Act 2011 provides that a court must not give leave for a second appeal unless satisfied that either the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.  
Facts
[3]	The complainant has an acknowledged history of self-harm.  At the time of the offending she and Mr Kotze were in a relationship.  The offending occurred while the couple were at a party.  On the way to the party the vehicle Mr Kotze was driving was stopped by police and he was breath tested; he returned a positive test and was taken away for further testing.  The couple later arrived at the party.  He consumed more alcohol there.  She also consumed alcohol at the party.  They planned to spend the night outside the party address in his van.  
[4]	During the party Mr Kotze became annoyed with the complainant and questioned her interactions with other men at the party.  When the couple retired to the van for the night Mr Kotze was angry.  As the complainant entered the van he allegedly struck her on the face with an open palm.  There were other alleged facial injuries involving a scratch to either her eye or the bridge of her nose.  The complainant also said Mr Kotze bit her on the cheek.  He denied this.  The complainant later photographed her injuries.  
[5]	The complainant returned to the house where the party was to use the bathroom.  Mr Kotze followed her and tried to enter the bathroom.  She screamed; he grabbed her throat.  There were other partygoers in the vicinity but other than a young female who knocked on the bathroom door no one came to the complainant’s aid.  She tried to get away from him but he continued holding her by the throat.  She says she lost her vision and could not breathe.  Judge Field’s view was that if he accepted the complainant’s evidence there had clearly been an intentional impeding of her normal breathing process.  
[6]	Shortly after the bathroom incident the complainant returned to the van, where she found Mr Kotze asleep.  She returned to the house and went to sleep in another room with other partygoers.  Later, Mr Kotze did so as well. 
[7]	The next morning the complainant went down to breakfast; no one noticed any bite mark on her cheek or injury to her neck.  She says she kept those matters quiet because she was surrounded by Mr Kotze’s friends.
[8]	After breakfast, the couple parted. Mr Kotze messaged the complainant saying he had “fucked up”, he would fix things and he loved her.  Then Mr Kotze arrived at her home; he told her he was devastated, very sorry and remorseful.  Later that day she went to the police to make a complaint.  
Lower Court hearings
District Court
[9]	Mr Kotze’s defence was that none of the violence occurred and any injuries the complainant suffered were self-inflicted, as she had done this before.
[10]	Judge Field accepted the complainant’s account of the incidents.  Regarding the bathroom incident, which was the more serious charge, the Judge found the complainant had screamed and that Mr Kotze had impeded her breathing.  The fact none of the other witnesses had heard the screaming was not surprising because it was a party with a marquee, a DJ playing music and people coming and going.  The Judge considered the young woman who knocked on the bathroom door (who was not a witness and not identified at trial) may have been responding to the screams.  
[11]	The Judge found Mr Kotze would have been affected by alcohol given the breath-alcohol level he had shown earlier when breath tested and the fact he had consumed more alcohol at the party.  The Judge properly reminded himself of the burden of proof.  He considered the evidence of the complainant supported the charges.  
[12]	The Judge found there was clear injury to the bridge of the complainant’s nose and he was satisfied that Mr Kotze had struck her face with an open palm.  He also considered the photographs of the marks on her cheek were consistent with a bite mark.  Therefore, looking at the evidence as a whole he was satisfied she had been assaulted, at the least by the open palm strike to her face.  The Judge was also satisfied with the detailed evidence the complainant gave about the strangulation charge.  Accordingly, Mr Kotze was convicted on both charges.
High Court 
[13]	Mr Kotze appealed against his convictions to the High Court.  Edwards J’s judgment sets out the events that led up to the assault in the van and the strangulation in the bathroom.  Edwards J considered the findings of Judge Field and correctly identified the approach for a first instance appeal.  
[14]	In the District Court Mr Kotze had sought to call evidence from a witness about the complainant’s history of self-harm, which Judge Field did not allow.  Edwards J considered this evidence had very little probative value.  The self-harm incidents involved scratches to the complainant’s face, digging into her arms and legs and hitting herself in the body and head.  The complainant had acknowledged self-harm and in Edwards J’s view calling another witness to confirm the tendency to self-harm would have added very little to the evidential picture.  The Judge was satisfied Judge Field was right to exclude the defence evidence of self-harm from that witness; and in any event had it been admitted the excluded evidence was not likely to have altered the verdict.  Thus, even if this evidence was erroneously excluded there was no miscarriage of justice.
[15]	Edwards J carefully analysed Judge Field’s findings regarding the screaming in the bathroom, the evidence of a bite on the complainant’s face, the evidence of self-harm and other matters going to the complainant’s credibility.  She found Judge Field had provided a clear evidential foundation for his findings.  She viewed the photograph of the bite mark herself and whilst agreeing the mark was faint she considered the photograph was consistent with a bite mark.  The fact one of the police witnesses, Paula Gibbs, who occupied the house where the party was, noticed a scratch on the complainant’s nose but not the bite mark did not mean the mark was not there.  In this regard Edwards J found that it was open to Judge Field to accept the complainant’s evidence regarding the bite mark, which was corroborated by the photographic evidence.
[16]	Edwards J found that Judge Field was aware of the complainant’s history of self-harm and the defence case that any injuries were the result of self-harm.  However, he had been satisfied the injuries were caused by Mr Kotze, there was a clear evidential foundation to support those findings and Edwards J could see no error in Judge Field’s approach.  
[17]	Mr Kotze made various criticisms about the complainant’s credibility, but Edwards J was not persuaded by these.  She referred to what she described as reasonable and plausible explanations given by the complainant for why she did not seek help or tell Mrs Gibbs the following morning at breakfast how her nose had come to be injured, and found that such explanations were open to Judge Field to accept.  
[18]	Regarding other credibility issues, the Judge listed 13 key findings which supported the evidence from the complainant being credible and reliable.  Edwards J concluded the evidence at trial was carefully considered by Judge Field.  The reasons for preferring the complainant’s evidence were fully set out in the decision, and there was no discernible error in Judge Field’s approach, certainly none that could give rise to a miscarriage of justice.  
[19]	Regarding Mr Kotze’s arguments criticising the police investigation and lack of evidence to support the charges, Edwards J found this ground of appeal must also fail; there was ample evidence to support the conclusions reached by Judge Field, and she agreed with them.
Submissions in this Court
[20]	Mr Kotze contends a serious miscarriage of justice has occurred.  He argues that the available independent evidence supported his defence.  Further, he argues that the prosecution case was lacking in an essential ingredient, namely forensic evidence to substantiate the injuries of the complainant.  He is critical of both the District Court and the High Court for failing to recognise the importance of the absence of support for the complainant’s allegations. 
[21]	The prosecution evidence relied on the complainant’s testimony and a photograph taken by the complainant of an alleged injury, the origin of which Mr Kotze contends is in doubt. 
[22]	Mr Kotze is critical of what he says are serious failings of the police investigation into the alleged offending, in particular the police failure to identify a young female witness who is said to have been outside a room where the alleged assault on the complainant by Mr Kotze occurred.  He contends the Crown should have directed the police prior to the first appeal to make enquires to locate her. 
[23]	Mr Kotze emphasises the fact that an independent witness, Mrs Gibbs, saw the complainant within a few hours of the alleged attack but in her evidence states she saw no sign of any bite marks on the complainant’s face.  Mr Kotze contends the police should have had a medical and forensic examination of the alleged bite mark taken at the time the complaint was made.    
[24]	In short, Mr Kotze is critical of the police investigation on the basis it failed to gather crucial evidence.  He is particularly critical that some evidence (the young woman outside the bathroom door) came to light when the complainant gave her evidence in the District Court, and he contends this should have prompted the police to make further enquires. 
Discussion
[25]	The arguments that Mr Kotze raises are essentially factual.  It was open to Judge Field to find the charges proven on the evidence before him.  A complainant’s evidence does not require corroboration before it can be accepted.  In Sena v Police the Supreme Court recognised the need for a trial judge sitting alone to provide a reasoned explanation for his or her factual findings.  However the Supreme Court also recognised the beneficial insight the trial process gives to the trial judge: namely, the opportunity to evaluate the strengths and weaknesses of a case, to assess the plausibility of the witnesses’ evidence and to form a view as to what sort of people they are.  Those benefits were available to Judge Field.  He has chosen to reject the defence evidence and to accept the prosecution evidence.  He has provided a fully reasoned explanation for why he preferred the prosecution evidence to that of the defence.  We can see no basis to disturb his factual findings.  They logically lead to the guilty verdicts he reached.  
[26]	The guilty verdict was carefully assessed by Edwards J on appeal.  We see no basis for departing from the views reached by the Judges in the Courts below.  No miscarriage of justice has occurred.  No matter of general or public importance arises from the proposed appeal.  
[27]	Accordingly, leave to appeal is declined.

Solicitors: 
Crown Law Office, Wellington for Respondent