Green v The Queen
[2015] NZCA 324
•23 July 2015 at 3.00 pm
| NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. NOTE: PERMANENT SUPPRESSION ORDER OF NAME OF WITNESS MADE IN THE DISTRICT COURT REMAINS IN FORCE |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA283/2014 [2015] NZCA 324 |
| BETWEEN | RODNEY JOHN GREEN |
| AND | THE QUEEN |
| Hearing: | 7 July 2015 |
Court: | White, Keane and Kós JJ |
Counsel: | E R Fairbrother QC for Appellant |
Judgment: | 23 July 2015 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application for leave to adduce the evidence of Dr D F Garavan is declined.
BThe appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
Following a jury trial in the Napier District Court, the appellant, Mr Green, was convicted on two charges of indecent assault and sentenced to 175 hours community work and ordered to pay the complainant $3,000 in emotional harm reparation.[1] He was acquitted on four other charges of indecent assault, including one involving another complainant.
[1]R v Green DC Napier CRI-2013-041-770, 9 May 2014.
Mr Green appeals against his convictions on the ground that there was a miscarriage of justice at his trial because relevant medical evidence was not called to address the “key” issue of the complainant’s bruising which she claimed resulted from one of the assaults.[2] He has abandoned an appeal against sentence.
[2]Crimes Act 1961, s 385(1)(c).
The incidents giving rise to the charges allegedly occurred when the complainants drove Mr Green and others in a limousine to and from a sporting event. It is unnecessary to refer further to the first incident involving complainant A, who drove the vehicle to the event, because Mr Green was acquitted on that charge.
The five other incidents involved complainant B who picked up Mr Green and the others after the event and drove Mr Green home. Complainant B’s evidence was that Mr Green: grabbed her bottom before getting into the vehicle; placed his hand between her legs when in the front seat of the vehicle beside her; kissed her on the mouth; squeezed her left breast; and placed her hand on his exposed penis.
In addition to describing these incidents, complainant B gave evidence that she told a number of people about aspects of Mr Green’s behaviour over the following 24 hours, including her then partner, and that she had showed him bruising to her left breast and left arm which she said had been caused by Mr Green grabbing her. She was not cross-examined about this aspect of her evidence.
Complainant B’s partner gave evidence confirming what complainant B said she had told him and that he had seen the bruising. He also said the complainant B might have told him Mr Green stuck his tongue down her throat, but his evidence under cross‑examination was that she did not tell him that Mr Green had grabbed her bottom, put his hand between her legs or put her hand on his exposed penis. He was not cross‑examined about the evidence relating to complainant B’s bruising.
Mr Green, who gave evidence in his defence, denied engaging in any of the behaviour alleged by complainant B, but the jury found him guilty of the charges relating to the breast squeezing and kissing incidents.
The sole ground of appeal is a challenge to the reliability of the bruising evidence which it is claimed was crucial at the trial because it is the only basis on which the different verdicts can be reconciled.
For Mr Green, Mr Fairbrother QC supports this challenge by reference to the prosecutor’s description in closing of the bruising evidence as “a key to this case” and the expert evidence of Dr D F Garavan who deposes that the evidence did not provide reliable support for the evidence describing the grabbing of complainant B’s breast because bruising “can take several days to come out”. Mr Fairbrother submits that in these circumstances Dr Garavan’s evidence should be admitted now to show that Mr Green’s trial counsel, the prosecutor and the trial Judge erred in accepting the bruising evidence as corroborating complainant B’s evidence. Her partner’s evidence was an unreliable casual observation.
To support the application for leave to adduce Dr Garavan’s evidence, Mr Fairbrother relies on decisions of the Supreme Court that expert evidence of this nature, counter-intuitive to common perceptions, is admissible.[3]
[3]DH (SC9/2014) v R [2015] NZSC 35; and Kohai v R [2015] NZSC 36.
There is also affidavit evidence from Mr Green and his trial counsel, Mr Mabey QC, filed in accordance with r 12A(2) and (3) of the Court of Appeal (Criminal) Rules 2001. Mr Green deposes that he was not advised of the bruising allegations or their significance at trial. Mr Mabey refutes Mr Green’s evidence and explains the trial strategy not to focus on the cause of the bruising. Neither Mr Green nor Mr Mabey was called for cross-examination on their affidavits.
There are a number of difficulties with Mr Green’s appeal and application for leave to adduce Dr Garavan’s evidence.
First, as Mr Lillico for the Crown points out, the bruising evidence was not in fact as crucial to the prosecution as Mr Green claims.
(a)It was not relevant to the kissing charge because there was no suggestion in the evidence that Mr Green had squeezed or grabbed complainant B’s arm or breast when he leaned across to kiss her.
(b)There was also no necessary connection between the bruising evidence and the guilty verdict on the breast squeezing charge because, like the kissing charge, both can be corroborated independently on the basis of complainant B’s complaints made within 24 hours of the incidents, particularly her complaint to her then partner.
Second, the jury’s different verdicts may therefore be reconciled not on the basis of the bruising evidence but rather on the basis of the partner’s evidence which only corroborated the two charges on which Mr Green was convicted.
Third, the unchallenged affidavit evidence of Mr Mabey answers the suggestion that the decision not to contest or focus on the causality of the bruising amounted to trial counsel error. It was reasonable for Mr Mabey to adopt this course when there was no suggestion of other incidents which might have caused the bruising and when complainant B’s evidence was corroborated by her former partner. Mr Mabey adopted a reasonable strategy of focussing on other evidence that could undermine complainant B’s evidence which proved to be partially successful. The approach adopted by Mr Mabey did not therefore constitute trial counsel error leading to a miscarriage of justice.[4]
[4]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [66], [70] and [73]; R v Scurrah CA 159/06, 12 September 2006 at [17]–[20]; S(CA88/2014) v R [2014] NZCA 583 at [16]–[18]; and Tranter v R [2014] NZCA 602 at [49]–[60].
Fourth, the prosecutor’s references in closing to the bruising were not inappropriate. The prosecutor raised 13 points which he suggested to the jury made complainant B’s evidence credible and reliable. The bruising was not one of these points. Rather it formed part of one of them, namely complainant B’s complaint to her partner the following morning. It was in that context the prosecutor suggested to the jury they “may think those bruises are in fact a key to this case”.
Fifth, as Mr Lillico submits, that suggestion was not improper because:
(a)there was a clear evidential foundation for it as there had been no challenge to the bruising evidence;
(b)there was nothing on the record which could be pointed to as an alternative cause of the bruising; and
(c)the jury would have had extensive collective experience of bruising which the prosecutor could properly have invited them to apply.
Finally, the evidence of Dr Garavan does not meet the requirements for the admissibility on appeal of expert opinion evidence which are that it be substantially helpful, fresh, credible and affect the safety of the conviction:[5]
(a)Dr Garavan’s evidence is not substantially helpful because he did not examine the bruises. He only reviewed the trial transcript and provided no alternative explanation for how the bruises appeared on complainant B’s breast and arm at about the same time. Without an alternative hypothesis, his evidence is simply a general statement about how and when bruises can arise which is something within the jury’s collective experience.
(b)The evidence is not cogent because it is irrelevant to the kissing charge and of little assistance in respect of the breast squeezing charge. There is insufficient information for Dr Garavan to reach an expert opinion as to the cause of the bruises.
(c)The evidence is not fresh because it could have been obtained for the trial with reasonable diligence. There is nothing to suggest that Dr Garavan could not have given evidence at trial.
(d)The evidence does not affect the safety of the convictions because even if it had been called the situation would have been the same: Mr Green’s actions could not be ruled out as having caused the bruising and the prosecutor could have made the points noted at [17] above and invited the jury to conclude that the bruising lent support to complainant B’s account.
[5]Evidence Act 2006, s 25(1) and R v Bain [2004] 1 NZLR 638 (CA) at [26]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
There was therefore no error by Mr Mabey in not calling Dr Garavan. In our view Mr Mabey’s unchallenged evidence on this issue is decisive. After referring to advice from Mr Fairbrother that a pathologist would be called on appeal to address the dangers of drawing conclusions from observed bruising, Mr Mabey deposed:
I have called similar evidence in the past myself but this was not that type of case. The issues at trial did not involve conclusions to be drawn from bruising. The issue was how the bruising occurred. [Complainant B] said she was bruised by Mr Green’s actions in grabbing her. [Her partner] observed bruising that was not there the night before. It was not a matter of drawing conclusions from bruises. Mr Green denied he caused the bruising. I did not, and would not, have called expert evidence on this point.
The decisions of the Supreme Court relating to counter-intuitive evidence may be distinguished.[6] Those decisions relate to expert evidence from psychologists concerning the credibility of child complainants of sexual abuse, which may be a matter on which erroneous assumptions are held and should be corrected. By contrast, there is no suggestion here that there are widely held misconceptions on the causality of bruising.
[6]DH (SC9/2014) v R, above n 3; and Kohai v R, above n 3.
For these reasons, we conclude that Mr Green’s ground of appeal has not been established and there was no miscarriage of justice.[7]
Result
[7]Gosnell v R [2014] NZCA 217, [2014] 3 NZLR 168 at [14]–[16].
Accordingly, the application for leave to adduce the evidence of Dr Garavan is declined and the appeal against conviction is dismissed.
Solicitors:
L P Lafferty, Napier for Appellant
Crown Law Office, Wellington for Respondent
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