Cant v The Queen
[2012] NZCA 494
•30 October 2012
| NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA250/2010 [2012] NZCA 494 |
| BETWEEN LARRY GORDON CANT |
| AND THE QUEEN |
| Hearing: 8 October 2012 |
| Court: Ellen France, Ronald Young and Andrews JJ |
| Counsel: P V Paino for Appellant |
| Judgment: 30 October 2012 at 2 pm |
JUDGMENT OF THE COURT
AThe applications for further disclosure are granted only as follows: Immigration New Zealand will, if readily available, disclose to counsel for the appellant any border and investigation reports of anonymous calls 3, 10, 13, 16 and 17 relating to the complainant.
BThe application for further disclosure in relation to ESR is refused as recorded at [45].
CThe application for further disclosure against police is refused based on the agreements recorded in this judgment at [46](a) and (b).
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REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
The appellant, Mr Cant, was convicted at trial in the District Court of assault with intent to commit sexual violation. He was ultimately sentenced in the High Court by Hugh Williams J in May 2010 to preventive detention.[1]
[1] R v Cant HC Auckland CRI-2006-004-26731, 20 May 2010.
The appellant has appealed his conviction. His appeal involves the following issues: legal representation at trial; evidence of the complainant’s previous sexual experience; an allegation the Crown prosecutor at trial breached s 33 of the Evidence Act 2006; the circumstances of a Papadopoulos direction by the trial Judge; and a challenge to the DNA evidence.[2]
[2] R v Papadopoulos [1979] 1 NZLR 621 (CA).
This judgment is concerned with several applications for disclosure by the appellant.
Background facts
The Crown at trial alleged that the complainant left a central city Auckland bar early in the morning of 13 December 2006. The appellant, who was seated nearby, followed the complainant as she walked home. As she was walking along Mayoral Drive she was attacked by the appellant who pushed her into a garden, placed a hand around her throat and one on her knee. He kissed her and tried to undo the top button of her jeans. He then fondled her breasts on the outside of her clothing and tried to put his hands down her jeans. The complainant’s evidence was that the appellant said he wanted to have sex with her.
Two passersby heard the complainant yelling. They went to intervene and the appellant then ran away. An immediate complaint to the police was made. Some 16 days later the complainant coincidentally saw the appellant. She told the police and the appellant was arrested. The appellant told the police that they had arrested the wrong person.
There were difficulties with the appellant’s representation before and at trial and eventually the appellant represented himself during the trial. An amicus curiae was appointed to assist him.
In his opening statement to the jury the appellant said that he had been with the complainant at Mayoral Drive (contrary to his police statement). However, he said the complainant who was a Brazilian national had targeted him to lay a false complaint because she wanted to stay in New Zealand. In cross‑examination of the complainant it was suggested that she had assaulted the appellant and had demanded drugs and money.
The appellant did not give evidence at trial.
The disclosure applications
The appellant now seeks non‑party disclosure with respect to, Immigration New Zealand, the Office of the Minister of Immigration (relating to immigration matters and the complainant), ESR (regarding DNA evidence) and disclosure from the police to support his appeal.
We heard cross‑examination of Ms Bentley who is a technical advisor at the Immigration Department and Detective Mark Ronald Greaves who was the detective assigned to the police investigation of the sexual assault on the complainant to assist us in the disclosure applications. Both gave evidence at the appellant’s trial and filed affidavits in this Court relating to disclosure.
The Crown agrees that the current requests by the appellant for disclosure included requests previously made by the appellant.
We heard no argument on the question of jurisdiction of this Court to order disclosure particularly non-party disclosure on an appeal. The Crown accepted that if we concluded that there was material which was relevant and should have been disclosed then the Crown took the view an order for its disclosure should be made by this Court.[3]
Non-party disclosure: Immigration New Zealand and Office of the Minister of Immigration
Background
[3]Crimes Act 1961, s 389(a) appears to give this Court wide powers to order production of documents, where it is necessary or expedient in the interests of justice.
The complainant in this case was a Brazilian citizen who had come to live in New Zealand. At the time of the assault she was illegally in New Zealand. After the assault and before the appellant’s trial Immigration New Zealand proposed to remove her. There was a delay in removal so that she could give evidence at trial. The appellant was aware of this at trial. As it turned out the complainant was absent from New Zealand, on holiday, at the time the trial was to commence. There had been a number of delays and changes of trial dates. The Ministry of Justice paid for the complainant to return to New Zealand to give evidence and then for her to return to her holiday destination.
At trial the complainant’s immigration status was the subject of considerable cross‑examination. The essential point for the appellant was the claim that the complainant had made a false complaint of sexual assault against him in the hope that this would advantage her immigration status.
Prior to trial the Crown had obtained the complainant’s Immigration file after she gave a “privacy” waiver. The prosecutor then decided what documents should be disclosed to the appellant from that file and provided those documents to him.
Prior to this appeal Crown counsel had sent the appellant’s previous appellate counsel (Mr Lawry) a letter which explained why some documents on the Immigration file had not been disclosed. Current counsel for the appellant was provided with a copy of this letter at the hearing before us and an opportunity (which he took) to comment on the letter.
The disclosure now sought by the appellant from Immigration and the Minister’s Office has as its rationale the same essential point; that the complainant made a false complaint against the appellant motivated by her desire to obtain an immigration advantage to enable her to stay in New Zealand. The disclosure sought is hoped to establish that in fact the complainant did obtain some form of immigration advantage arising from her complaint. This, it is said, is information that should have been provided to the appellant before trial. The alleged failure is said to support the appellant’s appeal.
The appellant, therefore, seeks the following material from Immigration New Zealand:
(a)the review branch file;
(b)the investigation file;
(c)Officer Katarina Jamieson’s file;
(d)Officer Kay Mitchell’s file;
(e)copies of all border and investigation reports relevant to the complainant;
(f)file notes from Immigration between December 2006 and June 2007 relating to the complainant;
(g)all emails, correspondence and file notes of phone calls between police and Immigration regarding the complainant;
(h)all emails and file notes of phone calls between the Crown and Immigration officers in regard to the complainant.
As to (a) above, the appellant also sought disclosure of the complainant’s review file held at the Office of the Minister of Immigration.
Review branch file (a)
Immigration, about seven months after her complaint and before trial, decided the complainant should be deported. She was arrested. The complainant, through her lawyer, sought a review of that decision by the Minister of Immigration. The Minister granted the review and decided that the complainant should be able to remain in New Zealand at least in the short term. He granted her a work permit for two years.
The appellant sought disclosure of what he identified as “the review branch file”. This was disclosure of the Immigration review file relating to the review of Immigration’s decision by the Minister of the complainant’s immigration status. The appellant also sought disclosure of the equivalent Minister’s review file. This request is relevant, therefore, to the Office of the Minister of Immigration and to Immigration New Zealand.
Ms Bentley’s evidence was that Immigration’s review file consisted of the application by the complainant for review of Immigration’s decision, a letter by her lawyer supporting the application for review, a summary of the case provided by Immigration to the Minister, and finally, the Minister’s decision. The appellant has had disclosure of these documents.
Counsel for the appellant expressed doubt as to whether these documents constituted the whole of the review file. He said he had expected correspondence and other documentation relating to the Minister’s review.
We have no reason to doubt Ms Bentley’s evidence that this is the total extent of the review file. Counsel for the appellant suggested that he should be provided with some reassurance from someone in the Minister’s office that there was nothing further on any ministerial file. We do not consider that such reassurance is required. We do not know whether the Minister has a review file relating to the complainant. The uncontradicted evidence of Ms Bentley is that the four documents mentioned are the review file. There is no evidence to say there is or should be anything else on any ministerial file or on the Immigration file. The application, therefore, for further disclosure relating to the “review file” is refused.
Items requested (b), (c), (d), (f), (g) and (h)[4]
[4] At [18] above.
The Crown says that all relevant material from the Immigration files in the above categories has already been provided to the appellant. Further, the Crown has told the appellant why they say the documents that were not disclosed should not be disclosed.[5] The appellant has had the opportunity to review that list. No further disclosure issues have been raised arising from that list. The application for further disclosure in these categories is, therefore, refused.
Border and investigation reports[6]
[5] At [16] above.
[6] At [18](e) above.
To understand what is being sought here it is necessary to understand how Immigration deals with information received by them relating to overstayers.
When there is a call to Immigration about an immigration matter, a call centre operator makes a notation on an AMS system by electronically recording the details of the call and a summary of the content. In addition, on some occasions, the call centre operator will also fill out a border and investigation report. This is an electronic pre‑formatted document with blank fields to be completed. Once complete that report is electronically sent to an Immigration officer who will check the report and decide whether further action is required.
It seems that the complainant’s immigration file records, on approximately 35 occasions, that Immigration was rung to report information about the complainant. All contacts were anonymous. The appellant has received, as part of disclosure, all of the Immigration AMS reports relating to these anonymous contacts. It seems on at least five occasions there is reference to a border and investigation report having been prepared by the call centre operator arising from these calls. However, no copies of these reports are on the paper Immigration file. Ms Bentley advised that that may be because the border and investigation reports have never been printed from their electronic state.
Ms Bentley said typically that border and investigation reports contain the same basic information as the AMS report with sometimes a little more detail. The appellant seeks copies of the border and investigation reports.
Without deciding the relevance of these reports to the appeal we think it is expedient in the interests of justice to require Immigration to search their electronic records to see if any border and investigation reports relating to the complainant (being reports from anonymous calls numbered 3, 10, 13, 16 and 17 in the schedule of such calls prepared by Immigration) are readily available electronically. If the reports are readily available they should be provided to the appellant. The Crown concluded that the AMS reports relating to these 35 anonymous calls were sufficiently relevant to be provided to the appellant. The border and investigation reports should be similarly relevant. Thus, if the border and investigation reports are readily available then they should be disclosed to the appellant’s counsel.
In summary, therefore, Immigration will search their electronic records for border and investigation reports relating to call centre contacts numbered 3, 10, 13, 16 and 17 regarding the complainant. If these reports are readily available they should be disclosed to the appellant.
ESR disclosure
Background
Up until the appellant opened his case (immediately after the Crown had opened at trial), the Crown believed that the issue at trial was the identification of the complainant’s assailant. This was based on the appellant’s interview with the police where he denied he had any contact with the complainant on the night of the assault. However, when the appellant opened he said he had accepted he was with the complainant on Mayoral Drive that night. The appellant said he had not assaulted the complainant. Later in cross‑examination it was suggested the complainant had assaulted him and had tried to take his money.
During the trial the appellant told the Judge that he could not understand why evidence was being led about his DNA being found on the complainant’s face given identity was no longer an issue.
When the Crown opened their case at trial, as we have noted,[7] they assumed, given the appellant’s police interview, that the trial issue would be identification of the attacker. That is, could they prove the complainant’s assailant was the appellant? Thus, when counsel for the Crown opened to the jury they were told there would be scientific evidence which would prove that the appellant was the person who had assaulted the complainant. The prosecutor briefly outlined the DNA evidence and said with respect to the complainant “after speaking to Police she underwent a routine medical examination during which swabs were taken from around her mouth where she said she had been kissed by this strange person”. It was the material from these swabs which was analysed and said to point to the accused.
[7] At [32].
The appellant now wishes to challenge the accuracy of the DNA evidence given at his trial. This challenge is because the appellant submits the jury may have thought the presence of his DNA on the complainant’s mouth supported her version of what happened that night. The complainant had given evidence that her assailant had tried to kiss her. If the appellant’s DNA was found on or near the complainant’s mouth this would support the complainant’s version of events that night and support the claim the assault was with a sexual intent.
The appellant, through his previous counsel, had instructed the Tasmanian Forensic Science Service (TFSS) to review the ESR’s DNA analysis. The ESR’s analysis was said to show that a swab analysed from the complainant’s mouth was six thousand million times more likely to be from the appellant than any other male in New Zealand.
The TFSS, after analysis, accepted that the appellant could not be excluded as a contributor to the DNA found but disagreed with the ESR as to the likelihood of him being a contributor.
The expert witnesses from the ESR and the TFSS met and were able to reach an agreed position on the DNA evidence. The agreement as recorded by Judge Gittos in the District Court was:[8]
... that the experts agree that the minor portion of the DNA must have originated from somebody who was either the accused or a paternal relative of his to a degree of probability of one in sixty six when analysed against the known data base of 790 male New Zealanders held by the ESR. That may be seen as being perhaps a more favourable outcome from the accused’s point of view than the original statistical calculation made by the ESR based upon the short tandem repeat profiling process they originally adopted ... .
[8]R v Cant DC Auckland CRI 2006‑004‑26731, 22 January 2009 at [13] (ruling on s 344A application).
The Judge after pre‑trial challenge concluded the joint statement of the scientists should be placed before the jury as this had been the process agreed to by the appellant’s then counsel and in any event had been ordered by the Court. However, he said this did not preclude the appellant from calling any witnesses to challenge this analysis.
The information now sought to be disclosed by the appellant are, the communications between the ESR and TFSS relating to the way in which the DNA was analysed, particularly in relation to a method of DNA profiling called Y‑STR, and what was said to be the agreement to present a joint report to the Court.
We are satisfied that no order needs to be made with regard to the disclosure sought regarding the two forensic services. TFSS was instructed by the appellant. The appellant, therefore, has had or is entitled to access all of the correspondence between that service and the ESR.
As to the agreement to present the evidence in this way, Judge Gittos said:[9]
I am told by Mr Dixon that the only objection taken is that his client objects upon the basis that, firstly, he did not consent to this process of joint analysis and agreed outcome being embarked upon and, secondly, that he did not agree to the results of it being put before the Court.
As to the first matter, it is evident that Mr Wells (who was then acting for the accused) not only agreed to this but appears to have suggested it as a proper process and certainly, agreement or not, it was directed to be done by the Court. It was, in my judgment, a proper direction to have been made and one that appears to have been made at the instigation of defence counsel and certainly not without the accused’s knowledge or agreement – that at a time when Mr Wells was currently favoured with the accused’s instructions. That disposes of his objection that he did not agree to this happening and the fact that the results of the enquiry have been put before the Court in the form of a signed statement authenticated by both scientists involved is not of any forensic significance at this stage. The fact that I have it and that counsel has it matters not. The issue is whether the jury should have it.
In my view it is a perfectly proper matter to be put in evidence through the expert witness that the ESR propose to call. It is, of course, perfectly open to the accused to call Mr Sarbo (or any other expert that he (the accused) wishes to call) to comment upon the material but inasmuch as what is contained in that statement is something that is unchallenged by the foreign experts sought and consulted by the defence, it seems to me to be material that is really uncontentious in that sense. Certainly it is proper material for the ESR to address in evidence and I rule it to be admissible.
[9] At [13]–[16], see also at [38] above.
This answers the appellant’s enquiry.
We do not consider that this information in any event is relevant to any appeal point and therefore (in the language of s 389(a)) “necessary for the determination of the case”. The relevance was said to be that the prosecutor had relied upon the evidence of the appellant’s DNA around the mouth of the complainant as evidence which showed he had been kissing her. We have explained the context to the one reference to this in the material before the jury.[10] After the appellant made it clear that he was not contesting he was with the complainant at Mayoral Drive, no further reference was made by the Crown to the forensic evidence as in any way corroborating the complainant’s evidence or as evidence of an intention to sexually assault the complainant.
[10] At [34]–[35] above.
We cannot see, therefore, that there is any appeal issue relating to the ESR analysis of the appellant’s DNA material. The appellant accepted he was involved in a scuffle with the complainant. Importantly, the complainant agreed the appellant had spat at her. This provided an alternative explanation for the appellant’s DNA on the complainant’s face. The Crown did not pursue at trial any claim that the DNA from the complainant’s mouth corroborated her evidence that the appellant had kissed her nor did they attempt to use the evidence in any other way. We refuse this application for disclosure for the reasons given.
Police disclosure
The appellant sought three further items of evidence from the police which were alleged to be relevant to the appeal. They were:
(a)A copy of the police job sheet when the complainant was arrested as an overstayer on 8 June 2007. It is said that there may be information at the time of the complainant’s arrest as to what she did or said. The Crown agreed that they will obtain, if they can, a copy of the police job sheet of the discussion between the police officer and the complainant at her arrest. If there is anything relevant to this case they will provide a copy to the appellant. If counsel cannot agree then this Court will decide whether the police job sheet should be disclosed.
(b)The appellant sought copies of those pages of the complainant’s passport relating to the period around the trial. This was designed to establish where the complainant resided at trial and whether she was out of New Zealand when the trial began. We see no need for this material to be provided. The Crown accepted before us that, as the appellant claimed, at the time of the trial the complainant was not a resident of Brazil and was living in New Zealand on a work permit. Secondly, the Crown accepted that at the time of the trial the complainant was on holiday overseas (a trip that she had paid for). The trial had been adjourned or delayed on a number of occasions and the ultimate date clashed with a prearranged holiday paid for by the complainant. The Ministry of Justice, therefore, paid the complainant’s return airfare from her holiday destination to New Zealand so that she could give evidence at trial. The purpose of obtaining portions of the complainant’s passport had been for the appellant to establish what the Crown have now accepted; that at the time of the trial the complainant was living in New Zealand and at the time of the trial she was overseas on holiday and returned to New Zealand for the trial. Given those concessions, copies of pages of the complainant’s passport is not required.
(c)A witness at trial gave evidence that the complainant had said to her that she had done bad things in Brazil and could not return there. The appellant asked to see any documentary evidence that the police might hold with respect to this comment. We can see no relevance of this material to any appeal issue and its production is, therefore, not necessary to determine this case.
Result
The applications for further disclosure are granted only as follows. Immigration New Zealand will, if readily available, disclose to counsel for the appellant any border and investigation reports of anonymous calls 3, 10, 13, 16 and 17 relating to the complainant.
The application for further disclosure in relation to ESR is refused as recorded at [45].
The application for further disclosure against police is refused based on the agreements recorded in this judgment at [46](a) and (b).
Solicitors:
Paino & Robinson, Upper Hutt for Appellant
Crown Solicitor, Napier for Respondent
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