Burrows v Police

[2014] NZHC 2594

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS,  OF THE COMPLAINANT/PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-31 [2014] NZHC 2594

BETWEEN

MAURICE LEONARD BURROWS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 October 2014
Appearances:	T J Darby for Appellant E Woolley for Respondent
Judgment:	22 October 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

22 October 2014 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Auckland

Copy to:

T J Darby, Auckland

BURROWS v NEW ZEALAND POLICE [2014] NZHC 2594 [22 October 2014]

[1]      This is an appeal against conviction and against the subsequent decision to refuse to grant the appellant a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.

[2]      The appellant was found guilty of indecent assault (pursuant to s 135 of the

Crimes Act 1961) in a reserve judgment delivered by Judge Aitken on 17 September

2013, after a trial that took place on 18 June.

[3]      The prosecution had alleged that the defendant had indecently assaulted the complainant on two occasions, on 29 March 2013 — by touching her on her upper right thigh while she was seated in his car, and by kissing her prior to leaving her at school.

[4]      The defendant denied touching the complainant at all in the car.  He admitted kissing her, but claimed, in effect, that in the context that did not amount to an indecent assault.

[5]      There is no dispute that on 29 March 2013, the defendant, who is a 66 year old, offered the complainant, then a 16 year old school girl, and unknown to him at the time, a lift from her bus stop to school.

[6]      The journey was a brief one — a matter of less than or around five minutes. During that time the defendant offered to take the complainant for a ride to Pukekohe on another day, suggesting that she miss school to do this with him.

[7]      As the defendant’s car approached the complainant’s school, the complainant asked the defendant to come into the school office to “sign me in”.  The defendant was then described by the girl at the school office as her father.  It is not clear orally by whom, anyway he signed her in as her father.  She was late for school and needed an excuse.

[8]      They both then left the school office and walked back to his car.  Before he left her he said words to the effect that she owed him a kiss and kissed her on the right cheek.

[9]      None of these matters are in dispute.

[10]     The material factual dispute is whether or not, during the ride to the school, the defendant put his hand in the region of her upper right inner thigh.

[11]     The other matter in issue is that when he went to kiss her she says he was aiming for her mouth.  He says he kissed her on the cheek only, but she says only because she turned her face away.

[12]     Later that morning the girl appeared upset at school and when asked, told her teacher she was nearly raped.  Thereafter she gave a brief version of events to the school counsellor who called the police.

[13]     Both the complainant and the defendant were interviewed and the interviews recorded.

[14]     The  question  of  whether  or  not  the  defendant  put  his  hand  on  the complainant’s thigh depended primarily on assessment of credibility.   The Judge began by observing the defendant carried no burden of proof, but if his account might reasonably be true, she would be left in a reasonable doubt.  She put it this way:

[15]      As observed, the defendant carried no burden of proof.  If, however, his account might reasonably be true then I would be left with a reasonable doubt as to whether he put his hand on the complainant’s thigh in his car and as to whether he kissed her in an act that right-minded members of the community  would  regard  as  indecent  or,  as  relevantly,  in  circumstances which he intended to be indecent.

[15]     Therefore she started by assessing first of all whether his account might reasonably be true.  She set her conclusion out first:

[16]      … In this regard I did not find him to be a plausible witness and reject his evidence where it conflicts with that of the complainant.

[16]     The Judge gave weight to the disparity of ages between the two persons. And also, to the defendant’s suggestion that she miss a day of school and go instead with him to Pukekohe.  He indicated she could possibly bring a friend along and he would buy them lunch.  The Judge found in total that the defendant was unable to offer any plausible or comprehensive explanation for his offer to the complainant to in effect wag school.  She found his conduct in this regard to be a relevant contextual factor when assessing the defendant’s subsequent words or actions.  She went through other details that it is not necessary to mention, of a lesser order.

[17]     On the question of the kiss, he acknowledged to the officer in charge of the interview that he did say, “you owe me a kiss”.  He described this as something he said jokingly.

[18]     In the evidence at trial he introduced the evidence that before he left he shook

her hand and said all the best, wishing her a pleasant day and said “I normally charge

$50 a ride, but on this occasion I’ll let you off with a peck on the cheek”.  He denied he was aiming for her lips.

[19]     The Judge thought that his evidence as a whole, on his own evidence, went well beyond the boundaries of Good Samaritan conduct.

[20]     She then turned to his account of the car journey.  She described it as quite extraordinary and ultimately unpersuasive.   This was because of the enormous amount of detail that he went into of the description of the journey and to the movements of the bag.   Detail which he did not give to the police when he was interviewed on the same day.   She thought his evidence had “an air of gross embellishment about it”.  She found it highly unlikely that anyone would remember that sort of detail 15 months after the event.  She found he was making up evidence as he went along.

[21]    Turning then to the prosecution evidence, her overall assessment of the complainant’s evidence was that she was consistent and plausible.   However, she does record that the complainant did not mention the touching of a leg to either the

school counsellor or a teacher, but did raise it when first spoken to by the officer in charge later in the day and when she was interviewed in detail several weeks later.

[22]   The girl was cross-examined thoroughly.   In the course of the cross- examination, on one occasion she said she was “pretty sure” the defendant touched her thigh. The Judge found:

[84]     While on one occasion under cross-examination she said she was “pretty sure” the defendant touched her thigh, this does not create a doubt in my mind as to this part of her evidence. As noted, it was clear to me that, in the course of persistent cross-examination, this young witness was doing her best to be helpful and, to some extent, agreeable.  This one instance of self- expressed doubt does not cause me to doubt the accuracy and veracity of her original statement to the police, which she maintained throughout her evidence with this one exception.

[23]     Then comes a paragraph which was closely examined in the oral argument:

[86]     In  light  of  those  findings  I  have  reached  the  view  that  the complainant has provided a consistent and plausible account of what happened to her on that day. Against this account, and given my concerns as to the defendant’s evidence, I do [not] find that his account might reasonably be true.   On the contrary, I am satisfied beyond reasonable doubt that the defendant did touch her on the upper right thigh area while in the car and that he did attempt to kiss her on her lips in the school ground, landing the kiss on her cheek only because of her swift reaction.

[24]     Mr Darby submitted, obviously, that that finding in the second sentence is inconsistent with justifying a conviction on proof.

[25]     I am satisfied that there is a typographical error in the second sentence which has simply left out “not”.  I have no doubt about this because of the earlier finding in paragraph [16] set out above which was justified by lengthy and detailed analysis which I have also summarised above in paragraphs [15]-[20].

[26] That brings me to the self-expressed doubt by the defendant on whether the defendant touched her thigh when she said she was “pretty sure”, see [22] above. The trial Judge had to assess whether or not this qualification of the girl’s evidence created a reasonable doubt as to whether the defendant had touched her thigh. The Judge’s critical finding was in the last sentence of paragraph [86]. I have already noted that this is a reserved decision and was reserved for some time.

[27]     I can find no error of principle in the way in which the Judge has reached her conclusion notwithstanding this possible qualification to her evidence.   The trial Judge had all the advantages of hearing the evidence directly from the defendant and the girl.  The deciders of fact, be they the Judge or a jury, frequently have to make judgments as to the discharge of the onus of proof.

[28]     In this case the trial Judge has given weight to the complainant’s original complaints on the very day the incident took place.  There is no reason why the girl should have made these complaints.  She made these complaints after a teacher had intervened because she was clearly out of sorts.

[29]     I have read the cross-examination of the girl on this point.  At the start of the cross-examination she reaffirms her evidence with detail.  Here is her first answer:

Q.       So I want to put it to you that Mr Burrows did not touch your leg,

that’s correct isn’t it?

A.       No, it’s not correct, he actually put his hand between – on top of my lap and moved it down and then took it back, took his arm back.

Q.       So all of this while he’s driving, you say that he’s driving, because he’s driving, isn’t he?

A.       Um, no, he put his hand on my lap when we were at a red light at the top of White Swan and yeah.

[30]     Later she agreed that that detail, that it was at the lights, was something she had missed and was something new today.

[31]     Cross-examination then proceeded on detail as to what clothing Mr Burrows was wearing and questions about the bag she was carrying and where the bag was on her lap and the size of the bag, which led to the question:

Q.       And you were carrying it on your lap for convenience were’t you?

A.       Um, I think it was on the floor, ‘cos I’m pretty sure he did put his

hand on my lap.

Q.       So I’m going to put it to you that the bag was…

A.       Sorry?

And the questions went on about the bag.

[32]     While still asking questions about the bag, it was put to her that the bag was on her lap (one of the questions has a typo in it) leading to the question:

Q.        That’s where the bag was wasn’t it?

A.        No it wasn’t, he actually did touch my lap.

Questions continued on the position of the bag in the car.

[33]     Although counsel who conducted cross-examination said she would get to the touching on the lap, she did not pursue it further beyond pursuing the theory that it did not happen because the bag was on her lap.

[34]     I am satisfied from this reading of the transcript that the Judge was fully entitled to disregard the “pretty sure” as a qualification.  That finding brings me to the conclusion, that the trial Judge’s findings of fact cannot be disturbed.

[35]     That finding of fact being left intact as to the touching on the complainant’s leg there could be no answer to a conviction of indecent assault, and nor was it argued by Mr Darby.

[36]     That brings me to the second limb of the appeal, namely that the Judge erred in not discharging Mr Burrows without conviction under s 106 of the Sentencing Act.  Such a discharge may only be entered if the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, s 107 of the Sentencing Act.

[37]     In the Judge’s sentencing decision she reviews the facts found to support the conviction, leading to these paragraphs:

[11]      Part of that context of course was that you were 65 years old at the time.  She was 15 years old. You were total strangers. You clearly knew she was a school girl.  You were taking her to school and in her [sic] car you offered to take her for a drive on another occasion and suggested that she could miss school for that event and I found that to be a relevant finding of fact and added to the context in which I found your conduct to be indecent.

[12]      Stepping back from the actual facts I am satisfied that this was a one-off incident.  You have no prior history of this sort of conduct.   I am satisfied that the victim did ask you to come into the school grounds as I

have already indicated.   However, the aggravating factors are the obvious age disparity.  Secondly and separately but related of course is her age and the impact on her.   And a finding, in my view, that she was reasonably vulnerable in the sense that she was in your car and of course that is linked with the age disparity.

[13]     As to the effects on her they are set out in some detail in the victim impact statement dated 13 November last year.   She talks about abnormal sleeping patterns, nightmares, she felt very unsupported, she finished her school prematurely, could not concentrate on her nursing course, began drinking excessively and began to doubt everyone she came into contact with.

[14]      She says two years on she has changed a lot.  She often finds herself on alert.  She has cut herself off from friends and watches with envy while others enjoy close relationships.  She is angry that you were older, that you should have known better than to try and take advantage of her and she concludes by saying you, “Abused my sense of trust but all I have is pity for him.”

[38]     The Judge went on to say that she had tempered some of the comments of the victim, she took into account that he had pleaded not guilty and she doubted his remorse because of a belief that he had done nothing wrong.  She noted the support of his wife and his acknowledgement of a need to be in his words, more mindful of how he conducted himself around women.  She also accepted that the process had been salutary and it was likely because of that process he would not re-offend.

[39]      She did take into account that this is a three-strike offence under s 135 of the

Crimes Act 1961.

[40]     The Judge agreed that this is offending at the lower end of the spectrum for indecent assault.

[41]     She considered the impact on his employment and the possible impact on his wife and family and on travel internationally and other impacts flowing on for his wife and family.  She took into account potential loss of his job as a self-employed sales agent for a local company.  Having had regard to his terms of employment she considered that his employer in any event had the ability to terminate his contract on seven days’ notice without any reason.  The Judge also took some comfort that there is no evidence as to how they would become aware of this conviction.

[42]     As to the affect on his wife on stress on her if he lost income and her health issues,  she  observed  this  was  a  normal  and  inevitably consequence  of  criminal behaviour.   She rejected the issue of travel, saying there was no evidence that a conviction would act as a bar to any travel plans and again difficulties in travel are a normal consequence of the entry of a conviction.  She reiterated that while he might have to apply for a visa there is no evidence that a conviction of the sort would provide an absolute bar for the sort of travel he was trying to take in the future, even if that is a relevant consideration.   I agree with Mr Darby, that no such detailed

evidence is required.  See R v Hughes.1

[43]     She  distinguished  another  indecent  assault  decision  in   Dickens  v  R2 particularly on the grounds of the facts that the victim was 15, the appellant was 18, and the Court of Appeal’s words were that the touching on the skin of her breasts was consensual, fleeting and between teenagers.  She also distinguished the case of Brown v R3 on the facts.

[44]     She concluded she was not persuaded there was a real appreciable risk he would lose his employment.   She discounted his claim of working overseas and regarded the impact on the family and possible adverse impact on travel as a normal consequence of Court proceedings and a conviction.

[45]     It is important to keep in mind that s 107 requires a positive satisfaction by the Judge that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[46]     I  accept  Mr  Darby’s  submissions  that  the  penalty the  Judge  imposed  of paying emotional harm and reparation to the victim of $700 together with the Court costs of $130 demonstrates that she regarded this indecent assault conviction very

much towards the lower end of the “spectrum”, a phrase she used.

1      R v Hughes [2009] 3 NZLR 222, at [53].

2      Dickens v R HC Auckland CRI-2011-404-000165, 8 November 2011.

3      Brown v R [2012] NZCA 197.

[47]     There can be no doubt that the Judge undertook a detailed assessment of the criteria for applying ss 106 and 107 of the Sentencing Act. The trial Judge was in the best position to evaluate and apply the criteria in s 107.

[48]     After hearing argument I see no basis for reversing her decision.

[49]     For  these  reasons  the  appeal  against  conviction  and  the  appeal  against sentence are both dismissed.