IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE	
CRI-2018-441-000025
[2019] NZHC 437	

BETWEEN	TALLY RAYMOND ROWLANDS
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	13 March 2019 (via AVL at Wellington)	
Counsel:	W R Hawkins for Appellant C R Stuart for Respondent	
Judgment:	13 March 2019	

JUDGMENT OF COLLINS J

Introduction

[1]	Mr Rowlands was convicted of two charges of male assaults female1 after a Judge-alone trial before Judge Adeane in the District Court at Hastings on 10 July 2018.2 In relation to the main assault charge, Mr Rowlands was sentenced to nine months’ 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 assault charge. A protection order was imposed by consent.3 Mr Rowlands appeals against his convictions on the basis that the Judge erred by failing to place any weight on the oral evidence of the complainant, who, when giving evidence, resiled from the signed statement 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.

ROWLANDS v NEW ZEALAND POLICE [2019] NZHC 437 [13 March 2019]

Background

[2]	On 21 February 2018, police were called to “an assault incident” at a residential address in Hastings where the complainant’s cousin resides. Mr Rowlands was at that address with his partner, the complainant. Mr Rowlands was arrested, and the complainant made a statement to police.

[3]	In her statement to Constable Codyre, one of the officers at the scene, the complainant said that when she arrived home Mr Rowlands was “really angry” that she had left their infant son with him for a couple of hours. She said that he “got up from where he was sitting and was abusing” her. She said he then “shoved [her] with one hand”, that it was “pretty hard” and that she “got knocked to the ground”. She said 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 black eye, 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 the ground 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 “was so scared [that day] that [she] locked [herself] in the bathroom at the neighbour’s house.” 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 a desire 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 very different account from that contained in her statement to the police. Initially, she said that 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 called the 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 home because she anticipated an argument and so she wanted Mr Rowlands removed from the property. When pressed by the prosecution on whether anything else happened that day, the complaint said: “That was it”.

[7]	The complaint’s signed statement to police was then put before her. She accepted 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 days prior to the events in question. Various details of her statement to police were then put to the complainant by the prosecution. The complainant accepted that she said some parts 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 it before doing so, although she said she did not read it properly.

[8]	A photograph taken of the complainant by Constable Codyre on 21 February 2018, which shows her black eye, was handed up as an exhibit.

[9]	Mr Hawkins, counsel for Mr Rowlands, cross-examined the complainant concerning previous convictions she has for shoplifting.

[10]	Constable Codyre also gave evidence for the prosecution. She said that she found the complainant “hiding in a locked bathroom”. She also said the complainant “looked terrified and was very shaky”. These statements were put to the complainant by the prosecution. The complainant denied all of them.4

[11]	Constable Palmer, who arrested Mr Rowlands, also gave evidence for the prosecution, although he did not give any evidence about the complainant.

[12]	Finally, the prosecution called the complainant’s cousin as a witness. She was also hostile and corroborated the complainant’s oral account of events. She accepted that the complainant was in a locked bathroom at her neighbour’s address but denied that 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 complainant had been declared hostile and her previous inconsistent statement had been put to her;

(3)	dismissed Mr Hawkin’s submission that the complainant’s original statement could not be trusted because she had previous convictions for dishonesty offending, noting “there is an element of disconnection between dishonestly stealing on the one hand and making false complaints to the police about domestic violence on the other”;

(4)	canvassed the legal position in relation to the admissibility of previous inconsistent statements;

(5)	concluded that the complainant’s statement should be treated as the truth because it was “entirely consistent” with the circumstances in which 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 against conviction if it is satisfied that the trial judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred, or if it is satisfied that a miscarriage of justice has occurred for any other reason.5 A miscarriage of justice is defined as any error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial or a trial that

5	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 to challenging a jury’s verdict.8 Accordingly, the appellate court is exercising a review function rather than substituting its own view of the evidence. Appropriate weight must be given to advantages the trial judge may have had in assessing matters such as the honesty and reliability of witnesses.9 The Court will only interfere with the factual findings of a trial judge “in exceptional circumstances”.10

Submissions

For Mr Rowlands

[17]	Mr Hawkins focused his submissions on the fact the Judge had entirely disregarded the complainant’s oral evidence. He submitted that some weight should have 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 was not.

[18]	Mr Hawkins also criticised the Judge for not making any reference to the complainant’s evidence that she received the black eye from her sister and not from Mr Rowlands.

[19]	Mr Hawkins submitted that there was a real risk that the outcome of the trial was 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 to reject 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 and signed as true and correct by the complainant immediately after the events occurred. Mr Stuart submitted that the complainant’s earlier statement was more consistent with Constable Codyre’s evidence, and that the complainant’s oral evidence was inconsistent and unrealistic.

Legal principles

[21]	The Supreme Court’s decision in Hannigan v R makes it clear that it is permissible to admit previous inconsistent statements at trial under the Evidence Act 2006 and to rely on those statements to prove the charge in appropriate cases.11 It will be a matter for the fact finder to allocate appropriate weight to the inconsistent evidence, keeping in mind at all times that the burden of proof lies with the prosecution to prove a charge beyond reasonable doubt.

[22]	The position was neatly summarised by Kós J in Richmond v Police, which also concerned victims of assault resiling from their allegations:12

It is a not infrequent experience in summary trials that a complainant resiles from his or her original statement. That original statement may be evidence- in-chief (introduced in the form of an evidential interview), it may be introduced through another witness (such as a police officer) or it may be put to 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 summary context, a Judge) whether, in the face of this internal conflict, any part of the evidence given by the complainant remains credible and reliable. The fact of conflict, just as with inconsistencies, does not prevent a jury or Judge from relying on part, and rejecting the rest. The weight to be given to a witness’s evidence, and to the warring parts of a witness’s evidence, is essentially a question for the fact finder. Having performed that weighing and screening function, then so long as there is sufficient evidence available on which the fact 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].

Analysis

Assault on 21 February 2018

[23]	In the present case, I am satisfied that the Judge did not err by preferring the complainant’s statement to police over her oral evidence. My reasons for this can be distilled to the following points:

(1)	The statement to police was made immediately following the events and before any third parties might have had the opportunity to place pressure 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 witness stand can be explained by the comment she made to Constable Codyre the day after the assault about members of her family “turning against her”.

(4)	The statement to police was more consistent with Constable Codyre’s evidence that she found the complainant “hiding in a locked bathroom” at the neighbour’s address and that the complainant “looked terrified and was very shaky”.

(5)	The transcript of evidence suggests that the complainant was not confident in her oral evidence. She was not clear on the details of her new account, and they changed as she gave evidence. The following exchange with the Judge concerning what the complainant said to Constable Codyre is telling:

Q So what did you say to her about where the black eye came from?

A        She asked me if I had got it from [Mr Rowlands] and I lied to her and – I actually I didn’t I don’t remember saying anything I don’t remember saying where I got it 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 provide a coherent account of events.

(7)	In their oral evidence, the complainant and her cousin took contradictory positions on whether the complainant was found in a locked bathroom at the neighbour’s address.

[24]	The points outlined at [23](6) and (7), in particular, turn on matters of credibility that are difficult to resolve from the transcript alone. The Judge would have had a far better appreciation of those matters, which further demonstrates why it would be inappropriate for this Court to overturn his decision on appeal.

[25]	I also note that, to the extent the complainant’s previous convictions for dishonesty offending are relevant, there is no logical reason to doubt her honesty when making her statement to police but not to also doubt her honesty when giving evidence at trial. That submission, therefore, cannot advance the case for Mr Rowlands. In any event, I agree with the Judge on the limited relevance of those convictions.

[26]	In those circumstances, the Judge cannot fairly be criticised for placing no weight on the complainant’s oral evidence. That evidence was in many ways irreconcilable with her statement to police. Accepting the evidence in the police statement necessarily entailed rejecting much of the oral evidence. It was essentially an all-or-nothing exercise. Accordingly, Mr Rowlands’ appeal against conviction on this charge fails.

Assault resulting in the black eye

[27]	It is clear from the photograph produced as an exhibit that the complainant sustained the injury in the days prior to 21 February 2018. The only evidence that  Mr Rowlands inflicted that injury is the  statement  of  the  complainant  to  Constable Codyre, which is contrary to her later evidence that her sister inflicted the injury. Unlike the assault that took place on 21 February 2018, there is no corroborating circumstantial evidence from the police officers about this earlier assault.

[28]	Nevertheless, once it has been accepted that the complainant’s oral evidence should be rejected in favour of her statement to police, then the Judge was legitimately able to rely on what the complainant told the police about how she came to receive her black eye. There is no other reason to doubt that the complainant was telling the truth about who gave her the black eye when she spoke to Constable Codyre on 21 February 2018. It was therefore open to the Judge to also find this charge proven beyond reasonable doubt. Accordingly, the appeal against conviction in relation to this charge also fails.

Result

[29]	The appeal is dismissed.

D B Collins J

Solicitors:
Bramwell Bate, Hastings for Appellant Crown Solicitor, Napier for Respondent