Mitchell v The Queen
[2011] NZCA 289
•22 June 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA782/2010 [2011] NZCA 289 |
| BETWEEN KATHLEEN IVY MITCHELL |
| AND THE QUEEN |
| Hearing: 16 June 2011 |
| Court: Wild, Keane and Miller JJ |
| Counsel: C M Ruane for Appellant |
| Judgment: 22 June 2011 at 11.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
Ms Mitchell was found guilty of attempting to pervert the course of justice by seeking to deter a complainant from giving evidence against Ms Mitchell’s husband-to-be, who faces a charge of indecent assault. The charge was laid under s 117(e) of the Crimes Act 1961. She admits that she told the 73-year old complainant that she must go to court to give evidence, that she would be cross-examined, and that the charge carried a maximum sentence of seven years imprisonment.
On appeal, she contends that the jury’s verdict is unsafe, for her statements were factually correct and did not amount to threats or other improper pressure. Accordingly, they lacked the necessary tendency to pervert the course of justice. Further, they were not made with the necessary specific intent to do so.
The appeal may have been filed a day late. If it is needed, leave to appeal is granted.
The narrative
The charge against Ms Mitchell’s husband has yet to reach trial. It is alleged that in December 2008 the complainant approached the police, saying that a week earlier he had indecently assaulted her while treating her at a clinic where he was employed as a physiotherapist. On 24 June 2009 depositions were about a month away.
On that date Ms Mitchell telephoned the complainant and spoke for a little less than 21 minutes. She did not identify herself. The complainant’s account was that Ms Mitchell said she was conducting a survey and wanted to know whether the complainant was satisfied with her overall treatment by the police. She inquired why the complainant had waited so long before going to the police. The complainant responded that she had not waited at all, but had gone to the police within a week. Ms Mitchell then inquired into the complaint. The complainant felt that she had probably gone into quite a lot of detail about it.
The complainant deposed that Ms Mitchell told her that if she went to Court as a witness and he was found guilty then he could get seven years in jail. The complainant interpreted the mention of court and the penalty as an attempt “to scare me”, to “[P]ut me off going to court.” She added that Ms Mitchell told her that if she went to court she would be cross-examined.
Although the tenor of the conversation was initially friendly, the complainant came to gather from Ms Mitchell’s anxious tone that she was “personally affected”. The complainant felt intimidated; she was “shaking like anything”. At the end she asked who she was speaking to. Ms Mitchell was reluctant to give her name but did reply “it’s Kath”. When asked for her phone number she replied “021” and hung up.
In cross-examination, it was put to the complainant that Ms Mitchell was merely inquiring whether she knew that she had to go to court, and not attempting to put pressure on her one way or the other. It appears from the transcript that the complainant was somewhat confused, but nonetheless quite definite about what was said and her understanding of the caller’s purpose.
On 26 June 2009, two days after the call to the complainant, Ms Mitchell texted her fiance’s employer, stating:
Feeling like we are stuck in limbo with a delusional old lady holding our lives 2 ransom. She could ruin both [the accused] and your business name if she succeeds which doesn’t seem fair.
Ms Mitchell was interviewed by the police a month after the call, with counsel in attendance. She admitted calling the complainant, saying that she did so “just to see if she had, was making an informed choice”. She wished to make sure that the police had told her of the consequences of her actions, such as the maximum prison sentence, that she would have to turn up in court if it got that far, and that she would have to be cross-examined. She maintained that it was part of her mindset or training, as a physiotherapist herself, to insist on people having informed consent. She admitted that she had not introduced herself when she called the complainant and said that she was not intending to mislead the complainant in any way. She did state that she was a close friend of the accused. She admitted that she failed to tell the complainant that she was his fiancé, although the complainant herself mentioned during the call that she had heard that he was due to be married shortly. She also maintained that her husband had told her not to get in touch with the complainant, but she had done so of her own volition. (That fact appears to have been accepted for purposes of her trial.)
Ms Mitchell did not give evidence at the trial, which was held in October 2010, but the jury saw the video interview.
The summing up
Judge Callaghan directed the jury that it was common ground that the phone call occurred while there was in place “a course of justice”, meaning that Ms Mitchell’s husband had been charged and the court process was underway. The Crown must prove beyond reasonable doubt that Ms Mitchell deliberately spoke by telephone to the complainant about the indecent assault charge, including her complaint to the police, her having to give evidence and be cross-examined, and the possible sentence consequences. The Crown must further prove that this was done deliberately with the intention of perverting the course of justice, and lastly that the act complained of had the tendency to affect the proper course of justice, whether or not it did in fact have that effect. He explained that to pervert the course of justice is to adversely influence or interfere with the proper finalisation of court proceedings:
To pervert is to adversely influence or interfere with the course of justice – that is to adversely influence or interfere with the proper finalisation of Court proceedings. Justice must take its own course, and to attempt to influence or interfere with it can amount to perverting it.
No complaint is made about the summing up.
The appeal
On appeal, Mr Ruane contends that having regard to the confused nature of the complainant’s evidence, Ms Mitchell’s account in the video interview should be preferred where there is conflict. It is apparent that no threats were made, although he concedes that the complainant said she felt intimidated. The statements made were all factually correct, and could not amount to threats or improper pressure not to give evidence. He drew an analogy with a victims’ rights advisor, who might well give a complainant the same information. There is no room for an inference that Ms Mitchell intended to interfere with the course of justice.
Discussion
Section 117(e) provides that everyone commits an offence who:
wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice....
The phrase “in any other way” must be read with the preceding subsections, which speak inter alia of attempting to dissuade a witness by threats, bribes or other corrupt means.
The essential requirements of the s 117(e) offence for present purposes are that the act had a tendency to pervert or obstruct the course of justice by dissuading the complainant from giving evidence at the pending trial and that the accused intended her act would have that effect.[1]
[1] McMahon v R [2009] NZCA 472 at [87].
The question whether an act has the tendency to pervert the course of justice must be answered in all the circumstances of the case, including the nature of the proceeding, the method and timing of the interference, and the relationship between the witness and the person interfering:[2]
The decision will depend on all the circumstances of the case, including not merely the method of interfering, but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is being given. Pressure which may be permissible at one stage of the particular proceedings may be improper at another. What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority.
For these reasons the question is answered by the jury, although the Judge may be called upon to decide whether there is evidence on which a properly directed jury might convict.
[2] R v Kellett [1976] QB 372.
Mr Ruane drew our attention to R v Taffs, in which this Court held that it is lawful to try to dissuade a witness from committing perjury by reasoned arguments supported by material facts and documents, but “threats or other improper pressure take the interference across the line and into criminality”.[3] That case, however, concerned a barrister who genuinely believed a complainant was about to perjure himself. Counsel in that case crossed the line by threatening in a conversation with the complainant’s mother to destroy his reputation should he give the relevant evidence. Ms Mitchell is in a different position. She may have believed the complainant’s account to be false, but on her own account her statements did not aim to avert potential perjury. Rather, she inquired whether the complainant had given informed consent to the proceedings, meaning that the complainant knew both that she would be examined and cross-examined and the potential consequences for the accused.
[3] R v Taffs [1991] 1 NZLR 69 at 72 (CA).
When reviewing the evidence, which is not much in dispute for present purposes, we bear in mind that it is not this Court’s function to substitute its view of the evidence for that of the jury. In particular, the jury were in a position to evaluate the complainant’s reliability.[4]
[4] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13].
We are satisfied that it was open to the jury to conclude that Ms Mitchell’s statements might obstruct and divert the course of justice in the particular circumstances of this case. She failed to disclose her interest in the matter but, on the complainant’s account, represented herself either as an agent of the police or as independent. Depositions were imminent (although it is common ground that the complainant would not have been required to give oral evidence there). She emphasised the obligation to appear and face cross-examination. She spoke of the maximum penalty without giving any information which might allow the complainant to assess whether that penalty was likely. She said these things to an elderly complainant in a sexual case. Ms Mitchell’s questions and manner eventually led the complainant to suspect that she had an interest in the matter and to become fearful. Collectively these features of her conduct are capable of deterring the central witness from giving evidence at all, so bringing the proceedings to a premature end.
That Ms Mitchell intended to dissuade the complainant can scarcely be doubted. On her own account she wanted to ensure that the complainant had given “informed consent” to the trial process, in the knowledge that she would have to participate as a witness and that her evidence exposed the accused to the maximum penalty. She must logically have had it in mind that the complainant might not know those things and, on being told, might withdraw her complaint. It is a short step indeed from that to a jury finding that she made the call intending to persuade the complainant to do that very thing. Her ostensible purpose did not require that she disguise her interest in the matter, and her statement might have, as we have noted, a tendency to dissuade the complainant from giving evidence at all. Lastly, the complainant was clear that pressure was being brought to bear.
Decision
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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