Johansen v The Queen

[2004] NZCA 157

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA46/04

THE QUEEN

v

DUANE ASHLEY JOHANSEN

Hearing:19 July 2004

Coram:McGrath J
Goddard J
Heath J

Appearances:  F D Steedman for Appellant

A Markham for Crown

Judgment:26 July 2004 

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]       This is an appeal against a pre-trial ruling by Judge Connell in the District Court that certain evidence of a police constable is admissible at the trial of the appellant for rape.  The evidence concerns the constable’s observation of an incident some eleven months after the alleged offending which involved the mother of the complainant.

[2]       The appellant was tried in the District Court at Palmerston North during January 2004 on charges of sexual violation by rape, sexual violation by unlawful sexual connection (digital penetration) and indecent assault.  The complainant is the appellant’s stepdaughter who was aged 14 years at the time of the alleged offending.  The trial resulted in the jury disagreeing on all counts and they are to be the subject of a retrial. The ruling in issue in this appeal was given on the morning of the trial before it commenced.  On that basis we assume that we have jurisdiction to hear the appeal under s379A of the Crimes Act 1961.

Background facts

[3]       At the time of the alleged offending the appellant and the complainant’s mother were married, although the appellant was living apart from his family on his own in a room at a boarding establishment.

[4]       The alleged incident took place on 20 July 2002 when the complainant, her mother and the mother’s two younger infant sons spent the night with the appellant in his room.  The appellant and the mother drank beer during the evening.  Eventually the mother and the complainant’s brothers fell asleep on the sole bed in the room.  The complainant also lay on the bed, watching television, until she too fell asleep.  The Crown case is that the appellant, who had been sitting on a couch in the room, then got into the bed next to the complainant and sexually assaulted her.  The complainant alleged that he had digitally penetrated her and then raped her on the bed.  The Crown says that the complainant was resisting the appellant throughout the incident but that he had overpowered her. In the course of her resistance the complainant had attempted to kick her mother in an effort to get her to wake up, but that attempt had been unsuccessful.

The disputed evidence

[5]       The evidence which the Crown sought to call consisted of a brief from Constable Gillbanks in which he deposed that some 11 months after the alleged offending, while he was on night shift as a dog handler in Palmerston North, he had occasion to go to an address where he had been unable to raise any response when he knocked on the door.  He had entered the property and noticed a woman asleep on a mattress on the floor whom he knew to be the complainant’s mother.  The constable endeavoured in a number of ways to awaken her but when eventually he did so she immediately went back to sleep.  She smelt heavily of liquor.  A glass of water was poured over her head which partly revived her but she was still unable to comprehend the constable’s explanation of the reason for his visit, or what he and another officer who was with him were trying to say to her.  Constable Gillbanks said that it took him at least five minutes to rouse the complainant’s mother to enable him to speak with her to the extent that he did.

[6]       The Crown wished to call Constable Gillbanks’ evidence at the appellant’s trial to negative an anticipated defence contention that the complainant’s mother would have awoken if a sexual assault had taken place as alleged on 20 July 2002, at the latest at the point at which the complainant tried to kick her mother to call her attention to what was happening.  The defence is likely to contend that the alleged sexual assault could not have taken place without the mother being aware of it.

The District Court decision

[7]       The defence objected to the admissibility of the constable’s evidence and on the morning of the trial the District Court Judge delivered his ruling on the Crown’s application to admit it.  The Judge accepted that the additional evidence was not part of the events surrounding the conduct in issue.  He also said that although the two events involving the mother were distant in time, the observations of the constable did demonstrate a degree of alcohol abuse by the mother which could manifest itself in a deep sleep from which she would have difficulty waking.  He drew an analogy with the principles on which similar fact evidence is admitted at a criminal trial, although accepting that in the present case the evidence in question did not directly relate to the accused.  He said that if there was a sound factual basis for a comparison between the mother’s state at the time of the alleged offending and that when she was subsequently observed on another occasion by Constable Gillbanks then the evidence of the latter circumstances would have probative value.  The Judge found that there was a factual basis for fair comparison, in the depositions, of her state on the two occasions, given evidence that the mother had drunk some five Double Brown cans of beer during the course of the evening on which her daughter was allegedly assaulted and had smelt heavily of liquor on the second occasion when it had been very difficult to awaken her.  In his statement to the police the appellant said that:

Oh just she drinks during the day and she has, she’s drinking all the time when there’s something there she’ll drink.

[8]       The Judge’s assessment on the whole of the depositions evidence was that the complainant’s mother had an ongoing drinking problem and that there was sufficient evidence of her drinking at the time of the alleged offending by the appellant to give probative value to the circumstances the subject of the constable’s evidence.  He considered that notwithstanding any prejudicial effect there might be in the evidence the matter should go to the jury.  It would be for the jury to decide what weight to give to the evidence.

Submissions

[9]       In this Court Mr Steedman, who appeared for the appellant, submitted that the constable’s evidence was of limited probative value and unfairly prejudicial to the defence case.  He analysed the evidence at depositions and the trial earlier this year.  The complainant’s mother made it plain that in her opinion after consuming five cans of beer she would not be drunk and had said at the trial that was all she consumed that evening.  She also gave evidence that later during the night, after the offending, she had been able to wake up and feed her son when he was crying.  The latter evidence will be relied on by the defence to say that if there had been a sexual assault on the complainant in the bed that evening the mother would have awoken and become aware of it.  In her evidence the complainant referred to giving her mother a nudge, but doing nothing else to attract her attention.  It had been difficult for her to kick her mother awake because she had to lean over her two brothers in the bed to do so.  Neither of them woke up.

[10]     Ms Markham for the Crown acknowledged that the probative value of the evidence was slight.  She said that the Crown was not presently minded to lead it at trial but wished to be able to apply to the Judge in the event that circumstances emerged giving the evidence a different complexion.

Decision

[11]     Clearly there will be a prejudicial effect if the jury, at the forthcoming trial, hears the constable’s evidence.  The Crown will be able to point to that evidence as indicating that the mother was in a state of alcohol induced deep sleep on the night of the offending like that she was apparently in eleven months later when the constable had difficulty awakening her.   If the evidence of the two occasions were seen in that light by the jury this would be likely to give rise to an inference that the appellant believed he could offend against the complainant on the night in question with little risk of her mother becoming aware of what was happening even though she was sleeping in the same bed.

[12]     On the other hand there is little evidence to indicate that the factual situation was the same on the two occasions.  Little is known of the amount of alcohol that the mother had consumed during the day that the appellant allegedly offended.  In evidence she said she had five cans of beer during the evening while drinking with the appellant before she decided to put the children to bed.  She was firm in her opinion that this amount of liquor was not enough to make her sleep heavily.  It is clear she was fatigued on this occasion.  As indicated, she also gave evidence of awaking later that night when one of the infant children started crying, wanting a bottle, which she got up and gave him.

[13]     The probative value of the evidence, on the later occasion, is primarily dependent on the Crown being able to show that the mother was on the later occasion in a like alcohol induced state of sleep that she is said to have been on the former one.  Nothing however is known of how much she had drunk, or her then state of health.  The two events are nearly a year apart and their remoteness in time diminishes the force of inferences the Crown might invite the jury to draw from the comparison.  There is very little evidence in either the depositions or in what was said at the trial that on either occasion the complainant’s mother had consumed a substantial amount of liquor which resulted in a semi comatose state. 

[14]     Overall, we are of the view that the evidence of what the constable observed does not carry a probative value that outweighs its illegitimate prejudicial effect on the defence and that on general principles it would be accordingly unfair to admit it at the appellant’s retrial.  Accordingly the appeal is allowed and the intended evidence of Constable Gillbanks ruled inadmissible.

Solicitors:
Fergus Steedman, Palmerston North for Appellant
Crown Law Office, Wellington