Faleapa v The Queen
[2011] NZCA 606
•2 December 2011
| NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA193/2011 [2011] NZCA 606 |
| BETWEEN TUPUTAU FALEAPA |
| AND THE QUEEN |
| Hearing: 21 November 2011 |
| Court: Harrison, Heath and Allan JJ |
| Counsel: J Fuimaono-Sapolu for Appellant |
| Judgment: 2 December 2011 at 10 am |
JUDGMENT OF THE COURT
A Leave to appeal is granted.
B The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Allan J)
Introduction
The appellant was convicted of one count of sexual violation by unlawful connection after a jury trial in the Manukau District Court. On 22 February 2011, he was sentenced to four years imprisonment by Judge Andrée Wiltens. The appellant now seeks to appeal against his conviction only. His notice of appeal specified two grounds:
(a)That the trial Judge erred in ruling that the appellant’s statement to the police was admissible. This ground of appeal has been abandoned.
(b)That the trial Judge’s summing up was heavily and unfairly weighted in favour of the Crown case to the extent that the thrust of the defence was not adequately put to the jury.
The appeal is out of time. The appellant applies for leave, which the respondent does not oppose. Accordingly, we grant an extension of time under s 388(2) of the Crimes Act 1961.
Factual background
The circumstances of the offending were succinctly summarised by Judge Andrèe Wiltens in his sentencing notes:[1]
[2] The facts of the matter are that on 24 February last year you and a number of other young males ended up drinking at the victim’s home, at her invitation. Towards the end of the evening when all the alcohol had been consumed most people left. The victim and an associate of yours, Mr Solomona Wright, then went indoors to bed where they had sex and fell asleep. You were left outside with your co-accused, Mr Ene.
[3] Apparently you and Mr Ene then decided that you wished to smoke and realised that Mr Solomona Wright had your pouch of tobacco. You therefore decided to try and wake him up. Initially it seems that was done by calling out to him, with no success. Secondly by using a broom handle to hit him, poke him through a window, which also led to no success and eventually your entering the home of the complainant and again attempting to wake Mr Wright by hitting and poking him with the handle.
[4] At some stage in the course of that endeavour it seems that Mr Ene was leading this enterprise and he used the broomstick to insert it into the victim’s vagina. You took over the broomstick and copied that and also inserted it, poked it into her vagina. When the complainant woke up she felt something cold and hard inside her vagina and she realised what was going on. At that time you were at the doorway of the bedroom and Mr Ene was at the foot of the bed. She said words to the effect of “What the fuck” and that caused you and Mr Ene to run off.
[1] R v Faleapa DC Manukau CRI-2010-092-6580, 24 January 2011 at [2]–[4].
Mr Ene was also charged, but he was discharged by the trial Judge pursuant to s 347 of the Crimes Act 1961 during the Crown case.
Trial Judge obligations
The nature and extent of the duty of a trial Judge to outline the respective cases of the parties during summing up has been considered on a number of occasions. A useful summary appears in the decision of this Court in R v Howard.[2] There, Keith J, delivering the judgment of the Court, described the trial Judge’s obligations in this way:
(a)the Judge must put the contentions of the two sides clearly and fairly before the jury;
(b)the contentions will usually involve the legal elements of the offence, the evidence bearing on them and the relationship between the two;
(c)the amount of detail to be included in the elaboration of the contentions must depend on the circumstances of the trial;
(d)accordingly, where the case is a difficult, lengthy one, for instance with many charges and different complainants, or the evidence is technical or involved, the task of the trial Judge is more onerous;
(e)but where the issues are confined and the trial brief, very little may be required.
[2] R v Howard (2003) 20 CRNZ 319 (CA) at [13].
A similar analysis was undertaken in R v Keremete:[3]
[18] … A judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. Rival contentions with respect to the factual issues will normally be summarised (R v Miratana, 4 December 2002 CA 102/02) but there is a wide discretion as to the level of detail to which the judge descends in carrying out that task. Treatment of matters affecting the cogency of evidence is not required as a matter of law: R v Foss (1996) 14 CRNZ 1 (CA) at p 4.
[19] The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other: R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact (R v Hall, supra, at p 625). Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms: R v Daly (1989) 4 CRNZ 628 (CA). Inevitably these are ultimately matters of degree and judgment.
Discussion
[3] R v Keremete CA247/03, 23 October 2003.18]–[19.
The appellant says that the learned Judge’s summing up was heavily and unfairly weighted in favour of the Crown case, to the extent that it may have unduly influenced the jury in reaching a verdict of guilty. The Judge identified six particular factual issues which he regarded as central to the Crown case, and endeavoured to summarise the evidence concerning those six quite discrete matters. In doing so, he reminded the jury more than once that matters of fact were for them and not for the Judge. No issue is taken by the appellant with the manner in which the Judge outlined to the jury their fact-finding role. Rather, the argument is that in discussing each of the six items of evidence, the Judge unfairly tended to emphasise aspects of the factual material that favoured the Crown case. We turn, therefore, to a brief consideration of each of the six items of evidence concerned.
The complainant’s evidence
During the course of cross-examination of the complainant, trial counsel for the appellant engaged in a course of cross-examination aimed at establishing either uncertainty on the complainant’s part as to events surrounding the offence itself or alternatively, inconsistencies between the complainant’s evidence and her prior statement to the police. The complainant was somewhat vague about some peripheral matters but her statement to the police was not formally put to her and no specific inconsistency was acknowledged. These peripheral matters included such issues as whether or not she tried to chase the two intruders, whether she had turned on a light, whether she had locked the door and what, if anything, she did with a mop which was found in the vicinity along with the broom.
The Judge dealt in a broad fashion with the question of alleged inconsistencies in the complainant’s evidence as to surrounding factual material. He said:
[40] What she actually did afterwards – the significance of that really I think is twofold. Firstly, she told you that she picked up the broom handle and she used it to try and wake up Mr Solomona and she’d also picked up the mop, which she moved from her bedroom and threw so that it ended up in the entrance to the bathroom where the police found it later, and where we’ve seen photographs of it. More than that, I suggest to you doesn’t really matter. Whether she ran out to the sleepout to look or not, how does that help you to work out whether or not her vagina was penetrated and if it was, who it was done by, and in particular, was it done by Mr Faleapa. I wouldn’t go into too much concern regarding that.
The argument for the appellant is that this passage would have given the jury the impression that what the complainant did immediately after the alleged offending was irrelevant. We do not consider that the passage is capable of being regarded in that way, although it does suggest that the jury ought to concentrate on the evidence central to the claimed offending. The complainant herself accepted that she did not remember the whole of the detail of what occurred immediately following the offence. That is perhaps not surprising, given that she was asleep at the time of the violation and under the influence of alcohol and possibly other substances. So her evidence was vulnerable to attack to some degree, a point made by defence counsel during the course of his closing address.
We consider that, although it would have been better had the Judge not suggested that surrounding evidence “... doesn’t really matter” what was said, read overall, would not have diverted the jury from the centrality of their task. At various points throughout the summing up, the Judge reminded the jury that fact-finding was a matter for them and not for him. For example, he said:
My role is not to persuade you one way or the other, because I have no interest in it quite frankly. It’s your job to decide what the facts are and how you look at the evidence, not mine.
A little later, in the same vein, he said:
Now, I’m going to give you some assistance in terms of the facts, not all, because I’m very conscious of the fact that I’m trampling on your ground and I don’t want to do that.
We think that the Judge was entitled to suggest to the jury that they remain focussed upon factual issues that were central to their task, particularly in circumstances where the complainant might well be uncertain about the detail of subsequent events of secondary importance, and especially where she had been woken suddenly. But we accept that the Judge was obliged (as contended by counsel for the appellant) to remind the jury that they would need to be sure about the correctness of her allegation of sexual violation. And that is what he did. He said:
[36] ... What did she feel at the time? Well, she woke up and she said what caused her to wake up was feeling something hard and cold inside her vagina, moving in and out. Whether or not she’s consistent as to what she told you about what caused her to wake up and how she recognised what it might have been, is a subject for your deliberations. You’re going to have to work that one out, because if she’s consistent about that you might think that it’s more likely to be correct. If you think that she’s vacillating, she’s changing her mind, then you might think she’s less likely to be correct. The essential question for you is, is she right? Is that what caused her to wake up, her vagina being penetrated by a broomstick?
We consider also that the Judge was right to suggest that the jury should focus in particular upon the complainant’s subsequent involvement with the broom handle. That was because the complainant’s DNA was found on the broom handle, consistent with her allegation that it had been used to penetrate her vagina. The appellant’s case was that the complainant’s DNA was transferred to the broom handle because she subsequently touched it. That was a central factual issue which the Judge correctly drew to the jury’s attention. It was entirely proper, in our view, to distinguish an important factual matter such as that from other factual material not directly related to the alleged offending but relevant only, if at all, to a challenge to the complainant’s reliability. We are not persuaded that there is anything in the appellant’s criticism of this aspect of the summing up.
E’s evidence
E was the complainant’s sister. A few nights after the alleged offending she was socialising with the appellant. She and the appellant had a discussion which assumed some importance at the trial. The Judge dealt with it in his summing up as follows:
[43] The second piece of evidence I want to deal with is [E’s] evidence. [E] also was in drink. I think having consumed cannabis on the night in question, really did nothing to enhance her appreciation of what happened that night. The value of her evidence is in relation to what she said happened a few nights afterwards, when there was this next drinking session and when she had this conversation if you like, with Mr Faleapa. It appears to be a one way conversation in which she asked him some questions. Without any lead up, without any clear indication of what was being discussed simply she says she asked if he did it. He apparently nodded. She then pointed around the toilet block corner to where Mr Ene was and she said, “Did he do it too?” And again there was a nodding. Well how can you be sure that in fact what’s being discussed is whether the issue is penetration of [the complainant’s] vagina with the broomstick, as opposed to anything else. That’s the question mark over [E].
[44] ... So in the DVD interview it’s whether or not he hurt [the complainant] and he denied that. Whereas we have two other versions, one from [E], did he penetrate [the complainant’s] vagina and he nodded and we have Mr Faleapa’s evidence itself, was he one of the last there, and he nodded. So we’ve got two different aspects to that. How you see that, that’s your problem I’m afraid. You need to resolve that. That’s an important issue of fact that you need to work through, and remember, you need to be sure if you’re going to place any reliance on this, that the question was, “Did you penetrate [the complainant’s] vagina with the broom handle?” And you need to be sure that Mr Faleapa realised that was the question and that that was the question that he was nodding his agreement to. If you’re not sure about that, then you can’t place any weight on that evidence.
The first point to be made about this passage is that it was, if anything, favourable to the appellant in that the Judge asked the jury whether it could be sure that the subject matter of the discussion between E and the appellant was in fact the penetration of the complainant’s vagina with the broom stick.
The appellant has no quarrel with the contents of [43] but says that the direction in [44] tended to steer the jury towards an answer adverse to the appellant. The argument, as we apprehend it, is that the mere repetition of the reference to the alleged penetration of the complainant’s vagina with a broom handle, in the context of what was allegedly said by the appellant to E, unfairly reinforced the Crown case. We reject that contention. We are satisfied that no jury would fall into error simply by reason of what the Judge said on the topic. The overall thrust of the direction was, if anything, favourable to the appellant.
The mop
The complainant found a mop in her bedroom following the alleged offence. She tossed it into the hallway. The role of the mop (or, alternatively, the mop handle) in the alleged offending is uncertain. The complainant’s DNA was not found on the mop handle but the appellant’s fingerprints were. The Judge suggested to the jury that they might consider the mop to be relevant only if it was used by the appellant to penetrate the complainant’s vagina. The appellant himself gave varying explanations for the presence of his fingerprints on the mop handle. He initially denied to the police that he had ever touched it, but later contended that he must have done so as he went through the hallway into the complainant’s bedroom. Finally, at trial, he said that he had touched the mop handle during the course of a war game played out in the complainant’s house on a previous occasion.
The Judge suggested to the jury that the war game explanation was “... just a complete nonsense”. The appellant complains about that and says that the Judge unfairly linked the mop handle (bearing the appellant’s fingerprints) with the alleged sexual violation.
We are satisfied that there is nothing in this point either. The Judge went to considerable pains to point out to the jury that the mop handle was irrelevant unless the jury was satisfied that it had played some part in the sexual violation. Of course, the jury was entitled to consider whether the mop had been brought into the complainant’s bedroom for the same purpose as the broom. In considering that possibility, the jury was entitled to take into account the appellant’s explanation for the presence of his fingerprints on the mop handle. In that context, the Judge was entitled to suggest to the jury that they might find that explanation difficult to accept. But in doing so, the Judge made it quite clear to the jury that the mop became relevant only if the jury considered that it had been brought into the bedroom for a purpose associated with the alleged offending. Otherwise, the jury was simply to put the evidence about the mop to one side.
There is an associated point. The appellant complains of the use of the word “attempt” at one point in the summing up at a time when the Judge was discussing the possibility that the mop had been deployed during the course of the offending. The appellant was, of course, charged with actual sexual violation so the word “attempt” was, perhaps, not particularly apt. The Judge’s intention was to ensure that the jury satisfied itself that the mop was directly associated with the offending before according any weight to the evidence surrounding the fingerprints. It was in that context that the word “attempt” was used. Overall, the jury could have been left in no doubt as to the offence charged. It is correctly identified at other points in the summing up and the complainant’s evidence was of a completed act of sexual violation.
Hairs
The complainant was medically examined following the alleged offending. Examination disclosed the presence of eight hairs high up in the vagina near the cervix. The medical evidence was that the hairs could have reached that position either as a result of the use of the broom handle or for some other reason. The Judge directed the jury that the hairs were significant only if the jury was satisfied that they were in the vagina as the result of the use of the broom handle.
He said:
[47] ... This evidence can be significant if you’re sure that the hairs got to that particular place as a result of the broom handle being inserted into [the complainant’s] vagina. If not, if it’s got nothing to do with the broom handle, then what does it matter that the hairs are there. Whatever the explanation then is really doesn’t help you very much, I would suggest. It is of significance if you’re sure that the hairs got there as a result of the broom handle being used in that way because a finding such as this, according to Dr Laking is unusual. Not only because of where the hairs were found, but because of the numbers involved.
The appellant’s complaint, as we understand it, is that the repeated mention of the broom handle in the context of the complainant’s vagina was likely to have suggested to the jury that the broom was indeed likely to have been placed in the vagina. We consider this argument to be over-analytical. The jury was well aware that their task was to determine whether or not the complainant had been sexually violated with a broom handle and, if so, by whom.
There is no prospect that the jury could have been unfairly influenced by the Judge simply by pointing out to the jury, as was appropriate, that the hairs were of significance only if they were satisfied that they were in the vagina because they had been pushed there by the broom handle. There is nothing in this point.
DNA on the broom handle
The appellant complains of the manner in which the Judge directed the jury in respect of the presence of the complainant’s DNA on the broom handle. The defence case was that the DNA could have been transferred to the broom handle by the complainant when she handled it after the alleged offending. The Judge correctly directed the jury to the effect that the presence of the complainant’s DNA on the broom handle “... can be significant if you are sure the broom handle was inserted into the vagina”.
Immediately following that direction, the Judge dealt with the alternative defence submission, namely, that there was a possibility of subsequent “contamination” of the broom handle when subsequently touched by the complainant. Again, the complaint is that the Judge, in the course of directing on these issues, twice referred to the insertion of the broom handle into the complainant’s vagina. As we have earlier remarked, we do not consider the necessary repetition of certain important aspects of the Crown case amounts to unfairness.
The appellant also complains that the Judge failed to direct adequately as to the fact that the broom handle was not wet. The defence case was that, had the broom handle been inserted into the complainant’s vagina shortly after the complainant had (as was common ground) engaged in sexual intercourse, then some of the moisture inherent in an act of sexual intercourse would have found its way onto the end of the broom handle.
The jury was not explicitly reminded of that point by the Judge. But, of course, he was not obliged to direct on each and every aspect of the Crown and defence cases. It is sufficient if the thrust of the case was properly put. We are satisfied that occurred here.
The appellant’s statement
Following his apprehension, the appellant gave a recorded DVD interview to a police officer. During latter stages of the interview the appellant made what appeared to be a frank and complete confession. The defence case was that the confession was false, that the appellant was suggestible and that the confession had been extracted unprofessionally or improperly by the interviewing police officer.
The Judge advised the jury that, in determining whether the appellant’s statement was accurate or not, the best way was to look at all of the other evidence and see if it tied in, “... if it dove-tails with that other evidence”.
There is no criticism of that direction but the appellant says that the Judge “could have suggested that the jury look at the DVD interview itself”, the appellant’s demeanour and the approach of the interviewing officer. But that is exactly what the trial Judge did. He said:
[51] The other thing you need to have regard to is the credibility of DC Wakelin. He took the interview and gave evidence before you, and you also observed his demeanour while he was asking the questions. Was he a persistent police officer simply doing his job, putting to a suspect, possibly a prosecution witness, all the evidence available to him at the time to try and get to the bottom of matters, or was he being over zealous, over the top, putting pressure on simply to get the suspect to say things that he wanted to hear? That’s the analysis that you need to adopt in relation to DC Wakelin’s position and to see whether or not he has extracted an untrue confession or not, because that’s what the defence say. They say that even though it is a confession, it’s an untruthful one. That’s a matter that you need to have regard to and I’m not going to go through the various considerations. Mr Faleauto has certainly highlighted some of them, you can probably think of others, but that’s a matter of evidence for you.
The appellant suggests that there is a degree of unfairness embedded within the paragraph in that the Judge implied that the defence case was that the interviewing officer was not a “persistent police officer simply doing his job”. The appellant says that his case was tainted by a suggestion in the summing up that the defence was portraying the interview officer as someone who had gone “over the top”, when the defence contention was that the officer was simply doing his job, but in doing so he had placed too much pressure on the appellant.
This argument must fail. It is the product of an approach to the summing up that is altogether too analytical. The overall thrust of the summing up on this point is that the jury was to be careful in scrutinising the appellant’s videotaped statement to ensure that the confession obtained by the officer was ultimately freely given, without unfair pressure. We do not consider that there was any risk that the jury might have been improperly influenced against the accused because the Judge had misrepresented the attitude of the defence towards the interviewing officer.
Likewise, we reject the contention that the Judge was required to repeat a lies direction given earlier in his summing up when he came to speak to the jury about the appellant’s statement. To do so would have been to run the risk of imperilling the jury’s impartial consideration of what was said by the appellant during the course of his long statement.
The next point concerns the Judge’s direction to the jury to disregard various statements made by the interviewing officer during the course of the interview to the effect that he did not believe the answers he was getting from the appellant. The Judge said:
Well what he believed or thought might have been the truth is utterly irrelevant. Disregard all of that type of statement. Simply have regard to his questions and his answers, not his comments.
The argument for the appellant is that it was simply impossible for the jury to set aside the interviewing officer’s comments, which included observations that the appellant was “getting closer to the truth”. There is nothing in this point. No objection was taken at the time. The direction was orthodox and necessary.
Then there is a complaint that in reviewing the appellant’s evidential statement, the Judge gave the impression that only certain pages or passages were relevant to the jury’s consideration. The appellant contends in the alternative that the Judge’s references to particular pages might have suggested to the jury that pages not specifically identified were of less relevance. The argument is that the Judge ought not to have referred to particular aspects of the interview. Rather, it is asserted, he ought simply to have left the jury to assess the interview as a whole.
We reject this argument also. The Judge made it perfectly plain that the jury were the judges of fact and that he himself had no view of the appropriate outcome. Moreover, he had at an earlier point in his summing up mentioned the interview and directed the jury that if they wished to consider a particular point arising from it, then they would need to view the whole of the interview in order to ensure that they gained a complete picture.
Finally, there is criticism of the manner in which the Judge concluded his review of the six items of evidence which he considered to be of particular interest. Having done so, the Judge said that the most important question was “was she sexually violated?”[4] and if the jury concluded that she was, then they could build on that. The criticism here, as we understand it, is that the Judge did not go on to indicate to the jury what the result would be if they concluded that the complainant was not sexually violated. This point is completely lacking in merit. The summing up, read as a whole, makes it perfectly plain to the jury that if they were not satisfied that the complainant had been sexually violated then the verdict must be not guilty. We emphasise once again that the inquiry is as to the overall thrust of the Judge’s summing up and its likely impact on the jury.
Conclusion
[4] At [62].
We are satisfied that the Judge’s summing up was both balanced and fair. None of the points taken by the appellant is of substance. In particular, we are satisfied that the jury can have been left in no doubt that all matters of fact were entirely for their decision. Nothing said by the Judge would have deflected them from their task.
Result
For the foregoing reasons the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington, for Respondent
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