Fenemor v The Queen
[2011] NZCA 206
•20 May 2011
| NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA457/2010 [2011] NZCA 206 |
| BETWEEN WARREN BRUCE FENEMOR |
| AND THE QUEEN |
| Hearing: 21 February 2011 |
| Court: Arnold, Gendall and Allan JJ |
| Counsel: G J King for Appellant |
| Judgment: 20 May 2011 at 10 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed. The appellant is to report to the Community Probation Service by 2pm on Friday 27 May 2011 to commence the sentence of home detention imposed by Judge McKegg.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
Following a jury trial before Judge McKegg, the appellant was convicted on one count of sexually assaulting a girl under the age of 12. He was sentenced to five months home detention followed by post-detention conditions for six months.[1] He now appeals against both conviction and sentence.
Background
[1] R v Fenemor DC Nelson CRI-2008-042-2917, 7 July 2010.
The appellant is a music teacher. The victim, A, was a female student, aged seven at the time. A’s parents had engaged the appellant to teach A to play the guitar. The 30 minute lessons were held in the family room at their home. Initially A’s mother sat in on the lessons but, as A became more comfortable, she left A with the appellant and went about her daily chores.
After the lessons had been going for some time, A’s mother became suspicious of the appellant’s conduct with A. This came about because during the course of a lesson, A’s mother entered the family room quickly and noticed that the appellant was kneeling in front of A. The guitar was lying on top of A’s lap and the appellant was holding it from underneath, so that his right hand was between A’s legs and only his thumb on the front of the guitar was visible. As A’s mother approached, the appellant removed his hand.
A’s mother was concerned at what she had seen. However, she did not question either the appellant or A about it but rather, after discussion with her husband, decided to covertly record A’s next lesson with the appellant on their camcorder. A’s parents did this, but the recording (which we shall refer to as VR1) was inconclusive. It showed the appellant kneeling in front of A for a period holding the guitar on her lap but the position of his hand was obscured by a chair. Accordingly, A’s parents decided to record the appellant’s next lesson with A.
As Mr King for the appellant and Ms Feltham for the Crown agree that Dobson J gave an accurate account of what is depicted in that video recording (which we shall refer to as VR2), we set out his description in full:[2]
[16] Towards the end of the lesson, the respondent puts down his own guitar that he has been playing as an aid to teaching the child, and kneels on the floor in front of her. His position is similar to that adopted during the first recorded lesson. On this occasion, for the apparent purpose of assisting the child to form chords with her left hand on the neck of the guitar, and strumming in the usual place across the body of the guitar with her right hand, he supports the guitar as it is resting on her lap. His left hand remains clearly visible supporting the bottom of the guitar some distance away from the child’s body. The respondent’s right hand appears to be supporting the top of the body of the guitar, bringing his hand to a position where it appears to rest on the inside of the upper part of the child’s legs. The child is dressed in leggings cut off at or just below the knee, with a short skirt over the top of them.
[17] At one point, the four fingers of the respondent’s right hand slip underneath the short skirt and appear to rest on or near the inside of the top part of the child’s leg. At all times the thumb of the respondent’s right hand remains resting against the body of the guitar. The video does not reveal any movement of the balance of his hand consistent with stroking or attempting to move around on or near the top of the child’s legs. Mr Sandston argued that the video reveals the line of knuckles on the respondent’s right hand as curved or clenched, consistent with his hand doing no more than holding the guitar, and being inconsistent with movement of the fingers towards the child’s body. I did not observe this detail
[18] The respondent remains in this position on his knees with his hands outstretched around the bottom and top of the body of the guitar after he has finished coaching the child on chords she is attempting to play on the guitar, through a short discussion in which he is bringing the lesson to an end and anticipating a further lesson the following week.
[19] As the respondent is getting back to his feet, it becomes apparent that the child’s mother is in, or has entered, the room, and the Police would suggest there is some alteration in the respondent’s behaviour, speeding up his move away from the kneeling position in front of the child when he becomes aware of the mother’s presence. As with Mr Sandston’s point described in paragraph [17] above, that is a matter that might be inferred to the jury, but is not clearly made out.
[20] What the latter part of the video recording of the second lesson could convey to a jury is that the respondent’s position, ostensibly helping to hold the guitar on the child’s lap, is unnatural and unnecessary, or that it continues for longer than is necessary. When I put these possible impressions to Mr Sandston, he did not accept that they arose. However, I would treat them as potentially open to the jury.
[2] New Zealand Police v Fenemor HC Nelson CRI-2008-442-26, 10 February 2009.
Immediately following this lesson, A’s parents made a complaint to the police. It is not clear to what extent the police or anyone else questioned A about what occurred at the lesson, but there was no video interview and she was not a witness at trial.
Several days after this, the appellant gave a video interview to the police in which he admitted that his hand was under A’s skirt but denied that anything untoward had occurred.
The police charged the appellant with two counts of indecent assault, one based on the incident recorded in VR1 (incident 1) and the other based on the incident recorded in VR2 (incident 2). However the two Justices of the Peace who conducted the preliminary hearing considered that the evidence was insufficient to constitute prima facie evidence of an indecent act with an indecent intention in relation to either incident and discharged the appellant.
The Crown then applied to the High Court for consent to file an indictment.[3] This application was heard by Dobson J.[4] Having reviewed the evidence (including viewing VR1 and VR2), the Judge declined leave in respect of incident 1 but granted it in respect of incident 2.[5]
[3] Crimes Act 1961, s 345(3).
[4] See footnote 2 above.
[5] At [24]–[26].
The Crown then applied for leave to introduce at trial propensity evidence from two former students of the appellant, M and B:
(a)M’s evidence was that about 11 years before incident 2, she had taken keyboard lessons from the appellant at school. She was 11 years old at the time. She said that, in the course of a lesson, the appellant had placed his hand underneath a book that was open on her lap to hold it. Whilst his hand was there, she said, the appellant had rubbed her vagina with his thumb. M ceased lessons immediately after the incident.
(b)B’s evidence was that when she was seven (also around 11 years before incident 2) she took keyboard lessons from the appellant at school. She said that, as she stood at the keyboard with the appellant behind her, he would reach his hand in front of her body and rub her vagina through her clothes. B eventually told her mother about this. As a consequence, the appellant was prosecuted for indecent assault against B. The appellant was acquitted, M having been a propensity witness.
Judge McKegg ruled that the evidence of M and B was admissible as propensity evidence.[6]
[6] R v Fenemor DC Nelson CRI-2008-042-2917, 17 August 2009.
At trial both VR1 and VR2 were played to the jury. A did not give evidence. The appellant did give evidence, however. He denied the offending and said that he was simply assisting A to hold the guitar as guitar teachers commonly do. Despite this explanation, the jury convicted him.
Basis of conviction appeal
Mr King (who was not trial counsel) raised the following grounds of appeal in relation to the appellant’s conviction:
(a)VR1, M’s evidence and B’s evidence was wrongly admitted as propensity evidence.
(b)The Judge misdirected the jury in important respects.
(c)The jury’s verdict was unreasonable and cannot be supported by the evidence.
(d)A miscarriage of justice arose because the Judge had refused to allow the appellant to demonstrate to the jury how he held the guitar.[7]
Analysis
[7]As this ground of appeal was not included in the notice of appeal, the appellant sought leave to advance it. In the circumstances, we grant leave.
We will address each ground of appeal in turn.
Propensity evidence
As we have said, Mr King argued that VR1 and the evidence of M and B was wrongly admitted as propensity evidence. We will deal first with VR1 and then with the evidence of M and B.
VR1
We make two points at the outset:
(a)Sections 40 and 43 of the Evidence Act 2006 determine the admissibility of the propensity evidence in this case. Their terms are sufficiently well known that we need not record them here.
(b)We have viewed both VR1 and VR2, as counsel requested.
Mr King submitted that although there was no charge in relation to incident 1, the jury was shown VR1, observed the appellant’s reactions to it in his police interview and heard the appellant cross-examined about it. VR1 should not, he said, have been before the jury as it did not form the basis of any charge and was irrelevant. Further, the difficulty was compounded by the fact that prosecuting counsel in her closing address referred to VR1 and VR2 together several times and said at one point when discussing the evidence of M and B:
You may also consider that there was a similarity between [M’s] description of how [the appellant] held a music book and [VR1] where a music book was also utilised by [the appellant] in respect of [A].
Well, if you do accept those matters, as I urge you to, then I suggest that you can conclude that [the appellant] did have a certain pattern of conduct towards young female students.
Finally, Mr King submitted, the Judge gave no directions about VR1.
Dobson J ruled that VR1, even when taken with VR2 and any propensity evidence from M and B, did not amount to sufficient evidence from which a properly instructed jury could convict.[8] Having viewed VR1 ourselves we are satisfied that it did not constitute propensity evidence. VR1 was the only evidence of incident 1. As we have mentioned, a chair obscures any view of where the appellant’s hands were or what they were doing. VR1 does not show any unusual reaction by A or anything else that might enable a conclusion to be drawn about what was occurring. Accordingly, VR1 does not provide a sufficient foundation for a conclusion that incident 1 involved a sexual assault.
[8] At [24].
Rather, VR1 was relevant as part of the narrative of events leading up to incident 2, just as the initial incident which caused A’s mother to become suspicious as to what the appellant was doing was part of the sequence of events. Defence counsel did not object to the admission of VR1 and referred to it, along with VR2, in the course of his closing address to the jury. As Ms Feltham noted, he used both VR1 and VR2 in putting forward the appellant’s case that he was simply assisting A with the guitar in the course of incident 2 as music teachers frequently do. Moreover, the Judge did not treat VR1 as propensity evidence when he dealt with that issue in his summing up.
However, in the passage noted above,[9] prosecuting counsel did invite the jury to draw a link between what they observed on VR1 and M’s evidence as to the use of a book. Further, when summarising the Crown case, the Judge repeated the Crown’s point.[10] To this extent, then, the Crown did attempt to use VR1 as propensity evidence. We have considered whether the Judge, rather than repeating the Crown’s reference, should have warned the jury that VR1 was simply part of the narrative leading up to the offending rather than being propensity evidence, so that prosecuting counsel’s reference to the book should be ignored. While it would have been better had he done so, we do not think that the absence of such an instruction, created the risk of a miscarriage of justice. Prosecuting counsel’s reference to VR1 was very much in passing and, as we have said, defence counsel made much greater use of it as supporting the appellant’s version of events.
Evidence of M and B
[9] At [17].
[10] At [21].
Mr King submitted that the evidence of M and B should not have been admitted as propensity evidence. He argued that the probative value of their evidence was low but its prejudicial effect was high. Mr King pointed out that the appellant was not asked about the incidents involving M or B during his video interview. Accordingly, to put his side of the story to the jury he was effectively forced to give evidence. When cross-examined at trial, more time was spent on the propensity evidence than on the subject of the charge, incident 2. Mr King said that the admission of the propensity evidence compromised the appellant’s right to silence. It drew attention away from the critical issue (that is, whether VR2 showed criminal or innocent conduct), with the result that the jury was likely to have placed disproportionate weight on the propensity evidence.
Moreover, the tape of B’s video interview had disappeared after the appellant’s acquittal of any offending against her (although the transcript was apparently available). Accordingly, his ability to respond to her allegations at trial was compromised.
In view of the New Zealand authorities, Mr King did not argue that B’s evidence could not be admitted as propensity evidence on the ground that the appellant had been acquitted of any offending against her. The New Zealand cases establish that such evidence is admissible, subject to the overriding discretion of the trial judge to exclude it if its admission would be unfair or an abuse of process.[11] Accordingly, we will not address that issue, except to say that it is one in respect of which different jurisdictions have adopted different views and the arguments favouring admission are by no means self-evident.[12]
[11]See R v Degnan [2001] 1 NZLR 280 (CA) at [33]-[34]; Hague v R [2010] NZCA 79 at [11].
[12]For example, such evidence is admissible in England (see R v Z (Prior Acquittal) [2000] 2 AC 483 (HL)) but rarely in Australia (see R v Carroll (2002) 213 CLR 635 (HCA)). See also Lee Stuesser “Acquittals and Similar Fact Evidence” (2002) 45 Crim L Q 488, Richard Mahoney “Acquittals as Similar Fact Evidence: Another View” (2003) 47 Crim L Q 265; Elisabeth McDonald “The Admissibility of ‘Acquittal Evidence’ in Criminal Trials: Towards Reform” (2003) 34 VUWLR 639.
The issue in dispute at trial was whether the appellant had sexually assaulted A. The propensity evidence, if accepted, showed a number of similarities to what the Crown alleged in the present case – overall, the victims were young girls (in each case under the age of 12); the assaults occurred in the course of the appellant providing music lessons to the victims; the conduct was subtle, occurred while the appellant was in close physical proximity to the victims either in the presence of others or in circumstances where others were nearby and was similar in nature (contact with the genital area, through clothing). As Judge McKegg said:[13]
... [T]here was a strong sense of the unusual common to each of the three occasions described. The indecent assaults are said to have occurred within the framework of a physically close, one on one, music lesson between [the appellant] and young girls of the same or similar age. This sets the facts of all three circumstances well apart from other allegations of indecent assault.
Further, there was no suggestion of any collusion.
[13] At [18].
Mr King argued that the admission of this evidence resulted in unfairness as the appellant was effectively forced to give evidence to counter it. A similar argument was raised in R v Degnan and rejected.[14] We do not see how that alone can constitute unfairness to the appellant in the circumstances of this case. Moreover, Mr King said that evidence should not have been admitted given the lapse of time between the events relating to M and B and the present case. But the Court has accepted that much longer time gaps do not necessarily render propensity evidence inadmissible[15] and there is nothing that Mr King has pointed to which justifies a different conclusion in this case. Finally, it must be remembered that propensity evidence is by its nature prejudicial to an accused. What the courts are concerned about is illegitimate prejudice.[16]
[14] R v Degnan [2001] 1 NZLR 280 (CA) at [38].
[15]See, for example, O v R [2010] NZCA 194 (39 and 12 years) and Cooper v R [2010] NZCA 422 (17 years).
[16] R v Tui [2010] NZCA 243 [19]-[21].
Accordingly, we consider that the evidence of M and B was properly admitted as propensity evidence.
Misdirection
Mr King criticised the Judge’s summing up to the jury for numerous reasons. He submitted that:
(a) The Judge gave no directions about VR1.
(b) The Judge did not give a s 122 warning about certain evidence.
(c) The Judge did not give an “inferences” direction.
(d)The Judge did not direct the jury to ignore the “views, interpretations and opinions” of the police officer who interviewed the appellant.
(e)The Judge did not direct the jury concerning the approach to be taken to propensity evidence offered by the defence.
(f) The Judge unfairly criticised a defence submission to the jury.
We address each point in turn.
VR1
Mr King submitted that propensity directions should have been given in relation to VR1 and the jury should have been warned that they were not to have regard to the use of the music book in VR1 and in relation to M, given that incident 1 was not the subject of charges.
We have largely addressed this submission in the preceding discussion. In summary:
(a)VR1 was not presented as propensity evidence but as part of the background narrative. No propensity direction was accordingly required in respect of it.
(b)Prosecuting counsel did draw attention to the similarity between the use of the music book in relation to M and the use of the music book in incident 1. Given that there was no charge in relation to incident 1, that comparison was of no probative value from the Crown’s perspective.
(c)The Judge did not correct this but rather repeated the point in his summary of the Crown case.
(d)While the Judge should perhaps have addressed this, overall the point was a small one which was unlikely to have had any material influence on the jury.
Critical to the jury’s verdict were the assessment of incident 2 as portrayed in VR2 and the appellant’s explanation of it, coupled with the propensity evidence of M and B. We think it implausible that the jury did not understand this. We do not see how any deficiency in relation to VR1 could have caused a miscarriage of justice, particularly in light of the use made of VR1 by defence counsel.
Section 122 warning
Mr King submitted that the Judge should have given reliability warnings about VR1 and about M and B’s propensity evidence, given that the evidence related to incidents that had occurred more than 10 years previously when both witnesses were young.[17]
[17] Section 122(2)(e).
However, as Ms Feltham noted, immediately before M and B gave evidence, the Judge advised the jury about propensity evidence and the way to approach it. The Judge then gave a detailed propensity instruction in his summing up. Further, when outlining the defence case, the Judge summarised defence counsel’s submissions about M and B’s evidence, including that they were young when the incidents were alleged to have occurred, and concluded:
And [defence counsel] reminded you that witnesses that come across as very honest and compelling and nice people can also be witnesses who are mistaken, and that you must look at their evidence with great care.
As a consequence, we consider that the jury would have been well aware of the need for caution in assessing M and B’s evidence.
As to incident 1, as discussed at [29] – [31] above, we do not consider that any reliability warning was required. Incident 1 was not the subject of a charge and VR1’s limitations were self-evident.
No inferences direction
Mr King submitted that this was a case where an inferences direction was required. The jury was being asked to draw an inference from what they observed on VR2 as to what happened during incident 2. They should have been warned against speculation or guess work. By contrast, Ms Feltham argued that this was not a case in which different inferences could be drawn from the same facts. Rather, it was a case where the jury had to reach a view about what VR2 depicted. Accordingly, she submitted, no inferences direction was required. She relied on R v Patel.[18]
[18] R v Patel [2009] NZCA 102.
As we have said, VR2 was at the heart of the Crown’s case. The jury had the opportunity to view VR2 and to determine what it depicted. In reaching that determination, they were entitled to conclude that the appellant had a propensity for this type of behaviour, if they accepted M and B’s evidence. The jury was instructed that defence counsel accepted that there would be an indecent assault if they found that the appellant had intentionally touched A at or near her groin area. Accordingly, they were required to assess whether they were sure that the appellant had done so on the basis of all the evidence. From VR2 the jury saw that the appellant’s hand remained under A’s skirt for some four minutes, they were able to assess the appellant’s reaction when A’s mother entered the room and they were able to assess the explanations which the appellant gave in his video interview and in the witness box. (The explanation given at trial was that the appellant was simply supporting the guitar in a way that music teachers commonly do and he was not conscious of the precise position of his hand.) As Dobson J said, VR2 showed the four fingers of the appellant’s right hand slipping underneath A’s skirt and appearing to rest “on or near the inside of the top of the child’s leg”.[19]
[19] At [17].
The jury could not see what the appellant’s hand was doing, so had to draw a conclusion about that from all the evidence. Ultimately, the jury had to be instructed on two points. First, they had to be instructed that they could not convict unless they were satisfied beyond reasonable doubt that the indecent assault had occurred. The Judge so instructed them. He told the jury that they had to be “sure”, and that it was not sufficient that the Crown persuade them that the appellant was probably guilty or very likely to be guilty. Second, the appellant’s explanation had to be put squarely to the jury and they had to be told that, if they were left with a reasonable doubt, the appellant was entitled to be acquitted. The Judge did this also. In these circumstances, we do not consider that an inferences direction was necessary.
Need for direction concerning police interview of appellant
Mr King argued that the Judge should have instructed the jury that they should ignore any views, interpretations or opinions expressed by the police officer during the course of her interview of the appellant. The following extract from the interview illustrates his point:
OFFICER:the video clearly shows you with your hand resting on her thigh, right up into the top of her groin, her crotch area ... it’s clearly visible?
APP:(long pause) ... I know it is but I don’t ...
OFFICER:you end the music lesson with her and you keep your hand there, it’s only when the mother walks in you suddenly leap up looking reasonably shocked and ...
APP:Em ... the mother had walked in through the back there and um ... I didn’t think ... I dunno ...
In light of this, Mr King argued that the Judge needed to do more than give the conventional direction on an accused’s video interview by adding a sentence that the jury should ignore any views that the officer may have expressed.
Ms Feltham said that the officer interviewed the appellant for a period, then interrupted the interview to allow the appellant to watch VR2 (he refused the opportunity to watch VR1), after which the interview recommenced with the officer questioning the appellant about VR2 in particular. Ms Feltham said that the officer had to describe what she saw in order to get the appellant’s reaction to it. She said the questioning was not in the nature of cross-examination, nor was it oppressive. In no sense was it improper, she submitted.
The Judge gave the jury the conventional instruction that they were the triers of fact and that they had to determine the case solely on the basis of the evidence presented to them, uninfluenced by sympathy or prejudice. The Judge made it plain to the jury that they had to reach a view about what VR2 depicted and summarised clearly what the defence said about it. While the Judge might usefully have included a sentence to the effect suggested by Mr King when he instructed the jury about the appellant’s video interview, we do not consider that the failure to do so resulted in a miscarriage of justice.
Direction in relation to defence propensity evidence
The appellant called evidence of good character, which was the subject of a conventional direction by the Judge. Mr King said that the appellant also offered propensity evidence about himself.[20] This was to the effect that he had given thousands of lessons to hundreds of students without complaint and had no convictions. Mr King submitted that this should have been referred to in the Judge’s instruction to the jury about the propensity evidence offered by the Crown. He said that the jury should have been instructed that, when considering whether the Crown evidence established the relevant propensity, they should also consider the propensity evidence offered by the defence.
[20] See Evidence Act 2006, s 41.
Ms Feltham said that the Crown led evidence from a police officer that the appellant had no previous convictions. She noted that the Supreme Court said in Wi v R that it was not mandatory to give a direction where the propensity evidence offered by an accused is the absence of previous convictions.[21] As to the lack of previous complaint, Ms Feltham said that this was not true as both M and B, former pupils of the appellant, had complained. In any event, she submitted, when the Judge gave the good character direction he addressed both propensity and veracity.
[21] Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [37]–[38].
We accept Ms Feltham’s submissions on this point. We do not consider that a further propensity direction was necessary.
Judge’s criticism of defence submission
In the course of his closing address to the jury, defence counsel said:
[B] said that the offending happened very regularly and yet there is no evidence to support her, other than [M’s] evidence, but they didn’t know each other. They weren’t at the same school. They’re different ages. The point I’m making is that we don’t have a witness hauled along who said that they saw anything happen between [the appellant] and [B]. Now that’s not required, that is accepted, but it’s fair game for me to say, shouldn’t you be concerned that after all these multiple occasions when he’s meant to have touched her that there should have been someone who saw something out of order? Not one. And she said it happened on a virtually fortnightly-type basis.
In his summing up when he was addressing the propensity evidence the Judge said:
Now there is one other matter that I want to refer to about this and during the course of his address to you [defence counsel] criticised [B’s] evidence. When he asked you the question why has no evidence been called to support it, given that there were numerous occasions that she referred to, well I have to tell you that in law the Crown is precluded from calling such evidence. So you would not hear any evidence in any event and I suggest that you simply put aside [defence counsel’s] submission to you in that regard.
Then later he said:
Now immediately before I spoke to you, you heard from both counsel and, subject to that one comment, I have no objection to the ways in which the cases were put to you.
Mr King said that defence counsel’s submission was a proper one. It related to the absence of eye-witnesses to conduct that B had claimed occurred on numerous occasions in the presence of other people. He submitted that there was no rule of law that would prevent the Crown from calling eye-witness evidence if such evidence was available. Mr King said that the Judge’s observation might have left the jury speculating that there was in fact further evidence available.
Ms Feltham said that defence counsel’s submission suggested a need for corroboration of B’s evidence and the Judge was entitled to instruct the jury that such supporting evidence was not required. She submitted that there was no basis for speculating that the jury might have thought such evidence existed.
Although defence counsel’s submission to the jury did note that supporting evidence was not required, we accept that, overall, the submission might have left the jury with a false impression that some form of corroboration was necessary. The Judge was entitled to correct that impression.[22] However, he went rather further than was necessary to do that. While it is true that the Crown was prevented from calling evidence of previous consistent statements by B unless the conditions in s 35 of the Evidence Act were met, it was not prevented from calling eye-witness evidence if such was available. Yet that is what the Judge’s instruction appears to indicate. Defence counsel was attempting to make the point that, because B alleged that the offending occurred regularly in the presence of others, it was surprising that nobody else had noticed anything. While that may not have been a particularly powerful point in the circumstances, it was one which defence counsel was entitled to make. To that extent, the Judge’s direction may have been unfair to the appellant. But we do not consider that it created any risk of a miscarriage of justice given that defence counsel’s point was not a particularly strong one. Further, defence counsel did not take the matter up with the Judge at the conclusion of the summing up, which suggests that he did not regard it as being significant.
Unreasonable verdict
[22] Evidence Act 2006, s 121.
Mr King submitted that the jury’s verdict was unreasonable and could not be supported by the evidence. He noted that, if the Court accepted his submission that the propensity evidence of M and B should not have been admitted, his argument was all the stronger. The Court has, however, rejected that ground of appeal. Accordingly, the case turned on the jury’s assessment of VR2, the propensity evidence of M and B and the appellant’s video interview and evidence at trial.
As the Supreme Court has said, the question for this Court is whether, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the appellant was guilty.[23] We consider that the jury was entitled to be so satisfied. If the jury accepted the propensity evidence they were entitled to conclude that the appellant had a tendency to act in the way alleged. The jury had the unusual advantage of being able to view the videotape, VR2, which the Crown said depicted the offending. It shows the appellant’s fingers under A’s skirt towards her groin for several minutes. The appellant explained that as “instinctive” and the position of his hand under the guitar as part of the teaching process. The jury was required to assess that explanation. If they rejected it, they were thrown back to what was depicted on VR2 and the appellant’s propensity. We agree with Dobson J that there was sufficient evidence in that for the jury to convict.
[23] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
Accordingly, we reject this ground of appeal.
Judge’s refusal to allow demonstration
In the course of giving his evidence, the appellant asked the Judge if he could demonstrate how he held the guitar and notebook. The Judge refused, telling the appellant to describe it, which he proceeded to do.
Mr King submitted that the appellant should have been permitted to demonstrate how he held the guitar. He submitted that A’s mother had produced the guitar as an exhibit. Under cross-examination she effectively gave a demonstration of how the appellant had held it, and commented that the appellant’s hands were likely to be bigger than hers. In light of this, Mr King submitted, the appellant should have been given the opportunity to use the guitar to demonstrate what he was saying.
However, as Ms Feltham said, the appellant was able to describe what he would have demonstrated without any obvious difficulty and defence counsel did not seek to pursue the point with the Judge. In those circumstances, we see no possibility of a miscarriage of justice on this account.
Overall assessment
As we have said, we agree with Dobson J that what VR2 revealed, coupled with the propensity evidence, was sufficient to permit a properly instructed jury to convict. We have noted that several points were not dealt with as well as they might have been in the summing up. But, ultimately, none of them was of any particular significance and even in combination, we do not see them as giving rise to a miscarriage of justice.
Accordingly, we dismiss the conviction appeal.
Basis of sentence appeal
As we have said, Judge McKegg sentenced the appellant to five months home detention, followed by post-detention conditions for six months. The appellant has not yet served this sentence, having been on bail pending the determination of this appeal.
Mr King argued that the sentence was manifestly excessive. He accepted that the offending involved a breach of trust, but submitted that because it was at the lower end of scale for offending of this type and because of the many very positive testimonials filed by local people in support of the appellant, the imposition of a modest fine was all that was required.
Analysis
Judge McKegg accepted that this offending was at the lower end of the continuum, but considered that it had several aggravating features. These were the serious breach of trust involved, A’s youth and vulnerability and the fact that the offending took place in A’s home. The Judge acknowledged that a sentence of imprisonment would usually be imposed but considered that home detention with post-detention conditions would be appropriate in the circumstances.
We consider that a starting point involving a short period of imprisonment (around 12 months) was available to the Judge.[24] Against this background, we consider that the sentence was well within the range available to the Judge and that a fine would not have adequately reflected the seriousness of the offending.
Decision
[24]See R v S CA465/05, 11 April 2006 where a starting point of 18 months was adopted for similar conduct, although it occurred on about 10 occasions.
For these reasons, the appeal against sentence and conviction is dismissed. The appellant is to report to the Community Probation Service by 2 pm on Friday 27 May 2010 to commence the sentence of home detention imposed by Judge McKegg.
Solicitors:
Crown Solicitor, Wellington for Respondent
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