Police v Pokaia

[2017] NZHC 1418

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2017-454-5 [2017] NZHC 1418

NEW ZEALAND POLICE

v

TERESSA POKAIA

Hearing:	20 June 2017
Counsel:	N Wynne and K van der plas for Crown A C Graham for Appellant
Judgment:	23 June 2017

JUDGMENT OF WILLIAMS J

Introduction

[1]      Following a judge-alone trial before Judge Large, Ms Pokaia was convicted of  common  assault  and  intentional  damage.1     Her  co-accused,  her  daughter Ms Haenga, was also convicted of common assault.  Ms Pokaia was sentenced to 80 hours community work and $150 reparation, plus $50 witness expenses.  She appeals against her conviction on the ground that the Judge erred in his assessment of the evidence such that a miscarriage of justice occurred.

Background

[2]      The parties involved are related through the relationship between Ms Haenga and her partner Jade, so for clarity, I include the following whakapapa:

1      Police v Pokaia [2017] NZDC 5293.

NEW ZEALAND POLICE v POKAIA [2017] NZHC 1418 [23 June 2017]

Teressa Pokaia  Adele Lawton

(Appellant)  (Witness)

(Partners)

Keita Haenga  Jade  Nicole Tipene

(Co-accused)  (Complainant)

Baby Tauwhiti

[3]      The incident that led to the charges occurred  on 15 August 2016  at  the address of Ms Lawton.   The complainant was Ms Lawton’s daughter, Ms Tipene. Ms Tipene’s brother, Jade, is co-accused, Ms Haenga’s partner.  Their baby Tauwhiti was 14 months old at the time. A verbal confrontation occurred between Ms Pokaia, Ms Haenga and Ms Tipene.   Ms Haenga said Ms Tipene had slashed a tyre on Ms Haenga’s  car.    Ms  Haenga’s  father  and  mother  (Ms  Pokaia)  went  to  pick Ms Haenga up because they were concerned about her safety.  The incident occurred as the three of them were leaving the address with Tauwhiti.

[4]      The police alleged  that  as Ms  Haenga and her parents were leaving  the address, the appellant Ms Pokaia ripped a wing mirror off Ms Tipene’s car.  It was also alleged that she used the mirror to score along the side of the car.  All of this was, it is said, in retaliation for the tyre slashing.  At that time, Ms Tipene said she heard a loud bang coming from the direction of her car and went outside to find out what  the  departing  group  had  done.    Once  outside  she  saw  the  damage  and demanded to know who had done this to her car.  She grabbed a rock and walked toward the group on the footpath.  But she had second thoughts and threw the rock to one side as she walked down the driveway.

[5]      The  police  say  as  Ms  Tipene  walked  towards  the  group,  Ms  Haenga challenged her to a fight, and threw a road cone at her, hitting her arm.  Ms Pokaia then walked towards Ms Tipene, holding Tauwhiti.   Ms Tipene pushed her away. Ms Tipene then found herself wrestling with Ms Haenga on the ground.  During the conflict, Ms Haenga admitted pulling Ms Tipene’s hair and striking her face and

head.  Ms Tipene was seven months pregnant at the time.  As a result of the attack, she received a relatively serious cut to the top of her right ear.

[6]      Meanwhile, Ms Lawton’s evidence was that she looked out the window and saw  Ms Pokaia  heading  down  the  footpath  with  the  wing  mirror  in  her  hands, although she did not see how she came to have it.  She went outside.  Once outside, she said she saw Ms Pokaia kick Ms Tipene twice while she was on the ground wrestling with Ms Haenga.  After the assault, Ms Lawton said she received a text message from Ms Haenga saying something to the effect of “ha ha good job you got a hiding”.

[7]      For her part, Ms Pokaia denied removing the wing mirror.  She said she had been holding Tauwhiti all the way from the house to the street so this feat was not possible.   Ms Pokaia denied causing any other damage to the car.   Ms Haenga admitted that it was her, not her mother, who tore the mirror off the car, although she denied scratching it.  She said further that Ms Tipene didn’t throw the stone down before reaching them.   In fact Ms Tipene was still holding it as she approached

them.2    Ms Pokaia said that while holding Tauwhiti, she knocked the stone out of

Ms Tipene’s hand to prevent her using it.   And Ms Pokaia and Ms Haenga both denied that Ms Pokaia had kicked Ms Tipene.

[8]      Ms Tipene said she did not see who damaged the car.   She denied that Ms Pokaia hit the rock out of her hand.   She did not know where Ms Pokaia was when this was happening and she had her hands by her face the majority of the time. She was not sure whether she was kicked in the head and did not remember seeing any feet come towards her head.

District Court decision

[9]      The Judge found:

(a)       It was Ms Pokaia who damaged the car.  Ms Lawton’s evidence was

credible, there was no reason for her to lie, it was not embellished,

2      In cross-examination, however, she accepted that Ms Tipene had thrown the rock away.

and it was convincing.  Ms Haenga’s evidence on the other hand was

unreliable, not credible, inconsistent and unconvincing.

(b)Ms Tipene’s evidence was convincing as there was “no guilding of the lily”.  She would have been aware of the allegations, and she could have given evidence that Ms Haenga kicked her.   He found her explanation that she threw the rock on to the grass to be credible.

(c)       Ms Lawton’s evidence that Ms Pokaia had kicked Ms Tipene was

credible.

(d)Ms  Pokaia’s  evidence  in  respect  of  slapping  the  rock  out  of Ms Tipene’s hand was not convincing or credible.   The downward movement that would have been required would have meant involving her grandchild in the altercation.  That “defies credibility”.  If she had really been concerned about her grandchild, she would have put him immediately into the car.

(e)      The text message indicated an aggressive attitude from Ms Haenga, and this was consistent with her behaviour.

[10]     The Judge found that the joint assault charge was proved.  Ms Haenga had applied force in pulling hair and punching, and Ms Pokaia by low-level kicking.  He also found Ms Pokaia guilty of intentional damage in respect of the wing mirror but not the scratch.

Appellant’s submissions

Insufficient reasons

[11]     Ms Graham submits that because the case turned on the Judge’s assessment of credibility and reliability, he was required to give further reasons for accepting one narrative over the other.   While the Judge reminded himself of the onus and standard of proof he made no mention of the substance of the tripartite direction.

[12]     In  particular,  the  Judge  said  that  it  “defies  credibility”  that  Ms Pokaia dislodged the rock from Ms Tipene’s hand while holding her grandson, because that would have involved the child in the altercation.   But, Ms Graham submits, it is equally as unlikely that she would have kicked Ms Tipene in the head while holding her grandson.

[13]     The Judge did not explain why he rejected Ms Pokaia’s evidence on the key issues – denying breaking the wing mirror and kicking Ms Tipene.  It was submitted that even if the Judge rejected her evidence about the rock that does not necessarily explain why he effectively rejected all her evidence.  The authorities, she submitted, required the Judge to give reasons for rejecting the evidence of witnesses where the evidence is material to the outcome.

[14]     In relation to the wilful damage charge, the Judge rejected the evidence of Ms Haenga and accepted that of Ms Lawton.   He said that Ms Haenga’s evidence was inconsistent in respect of the time the rock was knocked out of Ms Tipene’s hand, who was holding the baby and who did the damage to the car.  It is unclear whether  he  meant  the  evidence  was  internally  inconsistent  or  inconsistent  with Ms Lawton’s  evidence.    Counsel  submits  there  were  no  internal  inconsistencies regarding the baby or the car.  As to the rock, she agreed (“yeah”) that Ms Tipene had thrown the rock away before Ms Haenga threw the road cone, but in evidence in chief, re-examination, and in response to questions from the Judge, she consistently said Ms Pokaia had knocked the rock out of Ms Tipene’s hand.

Verdicts not supported by the evidence

[15]     Ms Haenga and Ms Pokaia both gave evidence that Ms Haenga broke the wing mirror.  To find Ms Pokaia guilty, the Judge had to reject this, and then return to the prosecution evidence to  consider whether the charge was proven beyond reasonable  doubt.     Ms  Graham  submits  that  the  prosecution  evidence  was insufficient.   Neither Ms Tipene nor Ms Lawton saw Ms Pokaia break the wing mirror off the car.  Ms Lawton only saw her holding it after the event.  Even if her evidence is accepted, an inference must still be drawn that Ms Pokaia was the one who broke the mirror off the car.  The Judge did not explicitly consider whether such

an inference could be drawn.  And if it could, this was not enough on its own to reach the required standard of proof, given the absence of any other evidence and the contrary evidence of both Ms Haenga and Ms Pokaia.

[16]     Similarly on the common assault, the Judge had to reject Ms Pokaia and Ms Haenga’s  evidence  as  true  or  reasonably  possible,  and  then  accept  that Ms Lawton was telling the truth about Ms Pokaia kicking Ms Tipene in the head while holding her grandson.  Ms Tipene’s evidence supported the defence case: she was not sure if she was kicked in the head and could not remember seeing any feet come towards her.  The injury to her ear can also be explained by reasons other than kicks, for example by striking the footpath.   The text message did not implicate Ms Pokaia, and was consistent with Ms Haenga’s evidence.   There was, it was argued, therefore insufficient evidence to support the verdict.

Appeal standard

[17]     Section 232 of the CPA applies to an appeal against the assessment by the Judge at first instance of the evidence.  A miscarriage of justice must be made out. The appellant must point to an error sufficient to create “a real risk” that it affected the outcome of the trial or rendered it either unfair or a nullity.  A real risk simply requires  a  reasonable  possibility of  a  verdict  more  favourable  to  the  appellant.

Inevitable acquittal is not the standard.3

[18]     Of course this Court is entitled to substitute its own view of the facts if in disagreement with that of the trial Judge – in that sense the appeal is a general one – but as always due deference must be given to the decider of fact who saw the witnesses and heard them give their evidence; and the disadvantage of the appellate courts necessary reliance on the written record.

[19]     The applicable principle, widely applied, is that in evidence-based appeals, an

appellate court will only interfere with a trial Judge’s findings of fact in “exceptional circumstances”.4

3      Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.

4      Counsel for the appellant cited Selwyn v Police [2015] NZHC 3185 at [28].

Insufficient reasons

[20]     The applicable principles in this area were not contested.  The best exposition on the subject is that of the Court of Appeal in R v Awatere:5

… we have concluded that it would be both undesirable and impracticable to lay down an inflexible rule of universal application that would result in what Laskin CJC has described as an “indiscriminate requirement of reasons”. Nonetheless, Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate  to  the  occasion.    Indeed  failure  to follow that  normal judicial practice might well jeopardise the decision on appeal.

[21]     Counsel for the appellant cited R v Connell to like effect:6

To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated.  There are cases where a point or argument is of such importance that a Judge’s failure to deal expressly with it in his reasons will lead this Court to hold there has been a miscarriage of justice.   A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay.   Careful consideration is an elementary need, but not long exposition.

[22]     In my view, the Judge’s reasons were sufficient to the occasion.

[23]     On  the  intentional  damage  charge,  the  Judge  relied  on  the  evidence  of Ms Lawton who saw Ms Pokaia running down the path with the wing mirror in her right hand.  He believed Ms Lawton because:7

There is no need for her or any reason for her to lie.  [Ms Lawton’s] evidence was credible; it was given without embellishment and was convincing evidence.

[24]     By  contrast,  the  Judge  found  Ms  Haenga’s  evidence  that  she  was  the

perpetrator unreliable and lacking credibility.  It was inconsistent and unconvincing, he said.

5      R v Awatere [1982] 1 NZLR 644 (CA) at [649].

6      R v Connell [1985] 2 NZLR 233 (CA) at [237].

7      Police v Pokaia, above n 1, at [11].

[25]     It is true that the Judge did not articulate the detail of his reasoning.  He did not say, for example, that on the basis of Ms Lawton’s evidence of what she saw in Ms Pokaia’s hand, he was entitled to infer that she was the one that tore the wing mirror off the car.  But it was unnecessary for the Judge to say so, even if it would have been better if he did.  The inference was the only and obvious inference to be drawn from the conclusion of primary fact that the Judge articulated.  What other inference could he have drawn?

[26]     I conclude that there is no risk that the failure to articulate this reasoning reflected the possibility that the Judge had engaged in different impermissible reasoning.

[27]     In respect of the common assault charge, Ms Lawton (who, as the Judge said, was the believable witness) saw the kicks being landed.   That was enough.   The Judge had already indicated he did not believe Ms Pokaia or Ms Haenga.  And the fact that Ms Tipene did not recall being struck in that manner could not undermine her mother’s evidence.  In fact, as the Judge indicated, it rather enhanced it.  Those involved directly in altercations of this nature often miss detail that close observers do not.

[28]     There is no reason to require more of the Judge than this brief assessment on both charges, in my view.  He could have picked through the detail of the evidence comparing and contrasting before reaching the same conclusion but that would have been more than was necessary to the occasion.  This was a short summary trial and the reasons needed only to be sufficient to that context.

[29]     This ground of appeal is dismissed.

Insufficient evidence

[30]     For the same reasons, the insufficient evidence ground must also fail.  The evidence of Ms Lawton in the end must be seen as sufficient to found an inference that Ms Pokaia both removed the wing mirror and to prove she kicked Ms Tipene while on the ground.   The former was a permissible inference from the primary evidence already referred to and the latter was the subject of direct evidence.

[31]     As to the wing mirror charge, the Judge was entitled to combine Ms Lawton’s observation with his own conclusion that Ms Haenga and Ms Pokaia had lied when they said Ms Haenga had done it.  If it was not Ms Haenga who removed the wing mirror, it had to be Ms Pokaia, as she was the only other possibility.

[32]     The Judge could have articulated in more detail why he did not believe Ms Pokaia  or  Ms  Haenga  but  the  short  point  was  having  seen  and  heard  their evidence, he found them to be unreliable and non-credible while Ms Lawton and Ms Tipene were found to be reliable and credible.

Conclusion

[33]     The appeal is dismissed.

Williams J

Solicitors:

Crown Solicitor, Palmerston North for Crown

Paul Murray, Barrister & Solicitor, Palmerston North for Appellant