Paul James Page v The Queen
[2000] NZCA 75
•6 June 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 4/00 |
PAUL JAMES PAGE
V
THE QUEEN
| Hearing: | 30 May 2000 |
| Coram: | Gault J Doogue J Robertson J |
| Appearances: | R M Lithgow for appellant M J Thomas for respondent |
| Judgment: | 6 June 2000 |
| JUDGMENT OF THE COURT DELIVERED BY DOOGUE J |
Introduction
This is an appeal against conviction. An appeal against sentence is not pursued for practical reasons relating to the release date of the appellant. The appellant sought an adjournment and for Mr Lithgow to be no longer assigned as his counsel. The Court declined these requests and directed the assignment of Mr Lithgow as counsel continue.
The appellant was convicted by a jury in the District Court at Dunedin on 13 December 1999 of indecently assaulting a 24 year old woman on 17 April 1999. He was sentenced to 12 months’ imprisonment on 22 December 1999.
The appellant conducted the trial on his own behalf but independent counsel as an amicus curiae was appointed to cross-examine the complainant on his behalf. The amicus has lodged a report to the Court. The appellant disputes it. We have put it to one side.
The central issue in the trial was one of identification. There is no dispute that the Judge in his summing-up gave the appropriate direction on the special need for caution before convicting on the correctness of identification evidence.
The Evidence at Trial
The complainant, a 24 year old graduate student, said she was walking home to her flat in Dunedin at around 5.55 a.m. on 17 April 1999 after visiting some night clubs. She said that she met the appellant, whom she did not know, walking in the opposite direction and that he turned around and started to walk with her. When they got to her flat she said that she was going in and that the man wasn’t. The complainant did not have her key and first rang the door bell but as there was no response from her flatmates she went around to the back of the flat down an alleyway and yelled out to her flatmates who apparently heard her. Then she returned along the alleyway to the front of the flat. She was met by the same man, who grabbed her with both hands around her left thigh by the crotch. The complainant pushed the man away and was let into the flat by her flatmates. She said she had been touched in the genital area. She said that the time the man was with her was approximately 15 minutes. She said that on the first part of the walk in company with the man the lighting was good, being in Princes Street, Dunedin. She thought the shape of the man’s face and the texture of his skin were unusual and not like the average person. She could not recall the man’s clothing but she could recall the man’s hair, which she originally thought was short, spiky and blond.
The complainant called the police and described generally what the man looked like. Of importance to the trial was the difference between that description and the appellant, particularly in respect of hair, colour and appearance.
The complainant said she again saw the same man, first in the street about a week later and then in a bar called the Arc Café between two and three weeks after the incident. She saw him there at about 9.00 p.m. on a Friday night. She said that she went up to the man and talked to him and asked him a few questions. She asked him about things that the man had told her on the night of the incident. As the answers were the same, she was sure it was definitely the same person. She said that the man recognised her. She had the man write down his name, address and telephone number for her. She then confronted the man with what she said he had done to her and he denied doing anything to her. She said she was going to go to the Police. Another friend of the complainant’s spoke to the man in the Arc Café who left shortly afterwards.
The complainant made a dock identification of the appellant as being the man she had met on each occasion.
In cross-examination the complainant acknowledged that she had told the Police that the man who assaulted her was about 40 years old, a Caucasian male with tanned, wrinkly face, with short, spiky, blondy white hair, approximately 5’9-5’10 inches with an average build, not muscly looking. She acknowledged that after the incident in the Arc Café she described a man with wrinkly skin, aged about thirties or forties, with really light eyebrows and quite a big nose, the same height as herself, and of average build, with short, curly, orange hair. She acknowledged her first description was not an accurate description of the appellant but said the second one was. She said that she was with other women at the Arc Café. The complainant was asked whether one of her friends and not her had the conversation with the appellant at the Arc Café but she denied that. In re-examination the complainant said she was sure it was the same man she had seen in the café as the one who assaulted her.
A constable gave evidence of being given a note by the complainant with a name and address upon it and that, on following it up, it led him to the appellant. The appellant acknowledged in a statement to the constable that he had spoken to a woman called “Wendy” at the Arc Café. He said that on the night of the incident he walked with her but had not gone to her flat with her or assaulted her. He admitted giving a woman called “Wendy” the note with his particulars upon it at the Arc Café as alleged by the complainant.
The appellant gave evidence. He said the woman “Wendy” he had met in the street and at the café was not the complainant but one of her friends. He denied meeting or accosting the complainant on the night of the incident of which she complained. His case was the two women must have conspired to bring a false allegation against him.
The Appeal
The appellant raised a number of points of appeal on his own behalf. A primary complaint by the appellant is that the cross-examination of the complainant by counsel at the trial was inadequate, as it should have demonstrated that her evidence was untrue and fabricated and seriously inconsistent with earlier statements. A secondary complaint is that the Crown failed to supply a crucial name and address of a potential defence witness, “Anita”, to the appellant. A third ground of complaint is that the complainant’s husband who was reportedly living in Auckland was not called to give evidence. A fourth ground of complaint is that a newspaper story during the trial could have wrongly influenced the jury.
Other points of appeal are also advanced on behalf of the appellant by counsel. They include: the appellant was denied an identification parade; the appellant needed legal representation (he had refused to continue with three different assigned counsel); the appellant was not permitted to cross-examine the complainant but was not heard on that issue (instead the appellant had an amicus curiae forced upon him); the Crown prosecutor’s final address was unfair; the Judge in his summing up did not put the defence case properly.
Mr Lithgow has presented full argument in respect of the points of appeal raised by the appellant himself and on the additional points raised on his behalf. We address them under the headings conveniently adopted by Mr Lithgow.
The Complainant’s Evidence
The appellant’s submission is that the complainant is demonstrated by the record to be untruthful and incapable of belief. A number of points are made, including:
[a]In the original description the complainant described her attacker (immediately following the event) as follows:
He looked about 40 years old, Caucasian male with a tanned, wrinkly face, with short spiky blondy-white hair, approx 5 ft 9 in - 5 ft 10 in with an average build, not muscly looking.
It was accepted that this was not a description that fitted the accused.
[b]The complainant was evasive in accepting that the first description was wrong and sought to rationalise the differences.
[c]The complainant was evasive about the circumstances of the second exchange in the Arc Café as to who was there and what was said.
[d]The complainant’s account of the assault expanded. The original complaint was of grabbing the upper leg. As a result, the appellant was charged with male assaults female. This was later expanded to grabbing hands onto her crotch area. It is alleged that some time between the arrest of the appellant in July 1999 the police told the complainant and her husband that they were aware of sexual offences in Australia. Further, that the police were very keen to get a conviction on him because of his conviction overseas. At trial the complainant made her description fit both forms of assault.
[e]The complainant’s description of where the assault took place changed. First account: “As I was walking back to the street he appeared in the alley. He was halfway from the street to the back of the alley”. At depositions: “only about a metre into the alleyway”. At trial: “He met me at the front of the alleyway”. This later developed into a moving assault in various parts of the alleyway.
However, all these points were firmly before the jury in one way or another. Notwithstanding them and the Judge’s warning for caution in respect of identification evidence, the jury accepted the complainant’s evidence. While there were undoubtedly certain inconsistencies between the different accounts of the complainant, the jury had the benefit of seeing and hearing her and the appellant and the opportunity of determining whether they rejected the appellant’s evidence and accepted the complainant’s evidence, as they had to do to find the appellant guilty.
Identification Parade
The appellant submits that it is his right to have an identification parade or identification otherwise established prior to arrest. However, here the police were relying upon the complainant’s evidence, which, if accepted, was that the appellant identified himself at the Arc Café. There was no basis thereafter for any identification parade as the issue was simply whether the complainant was telling the truth, both about the assault and whether she had spoken to her assailant at the Arc Café.
It should also be noted that the appellant acknowledged talking to a woman called “Wendy” at the Arc Café and walking with her on the night of the incident, but denied assaulting her.
In R v Taite (1998) 16 CRNZ 10, this Court stated at p 14:
There is no requirement that an identification parade be held or a photo montage used in all cases. Here the identification evidence cumulatively was so strong as to justify the police in taking no further step in that direction.
Given the evidence of the complainant and the statement of the appellant, there was no reason for the police in the present case to take any further steps in relation to identification.
Disclosure of Potential Defence Witness “Anita”
The essence of the case for the appellant was that the complainant and a friend had played a trick on him at the Arc Café by pretending to be each other. He said he remembered the complainant coming forward towards the end of the confrontation in the café and saying, “I believe Wendy not you”. He said that this was an indication that, although he did walk along a road with a young woman on the night of the incident, it was not the complainant but the friend. The appellant asked the whereabouts of “Anita”, because a job sheet of the police indicated that a police officer had spoken to “Anita” on 2 June 1999 and that she had said that she remembered the night at the Arc Café. The job sheet recorded that the appellant did not admit anything to “Anita” about what occurred. The appellant repeatedly asked the Crown to provide the name and address of “Anita”. The Crown advised the amicus curiae of this but told him that they had no address and that she had only been contacted at a telephone number, which the appellant had. The appellant asserts that no letter or information was ever passed to him.
It is submitted for the appellant that the Crown has still not stated unambiguously whether a police officer knew exactly who “Anita” was and how she could be contacted.
There is clear evidence before the Court from the officer in charge of the case that the only information the police had about the woman “Anita” was her given name and telephone number. The evidence is that the job sheet containing that information was disclosed to the appellant’s initial counsel.
There is nothing to indicate any possible impropriety on the part of the police. Nor is there any evidence to indicate any injustice has arisen to the appellant in respect of the way in which this matter was handled. If, as is alleged by the appellant, it is possible “Anita” conspired with the complainant to cause his unjust conviction, she is hardly likely to help him. It is entirely speculative supposition that “Anita” could assist in any respect.
The Complainant’s Husband
The complainant’s husband let the complainant into the flat after the assault upon her. It is therefore submitted for the appellant that he could obviously have been questioned about any attacker. No written statement from the husband had been disclosed. If his particulars had been made available, it is said the appellant could have had him interviewed to see whether his evidence was helpful to the appellant.
The evidence of the Crown is that the officer in charge of the case did not know that the person who let the complainant into the flat after the assault upon her was her husband until some time later in the police investigation. The evidence is that the police were unaware that he knew anything of the assault before the complainant gave evidence at depositions. The officer in charge of the case says that he had no contact with the complainant’s husband and at no time had any details relating to him.
The appellant has subsequently obtained an unsworn statement from the husband. It is unhelpful to him and consistent with the complainant’s evidence.
Once again there is nothing to indicate any impropriety on the part of the police or any possible miscarriage of justice resulting from what occurred.
Newspaper Story
The local newspaper published two reports in respect of the trial before the jury retired to consider its verdict. The appellant submits that they were misleading as to the true facts (though inaccuracies were not specified) and, in his submission, could have influenced jurors over the weekend. We have to note, however, that the Judge gave a clear and express direction to the jury in respect of this matter which had been raised by the appellant. He made clear they were to ignore the reports and reach their verdict on the evidence they had heard given in court.
This point cannot give rise to a trial error where there could be any possible miscarriage of justice.
Right to Counsel
The Registrar of the High Court at Dunedin assigned three different counsel to the appellant prior to the deposition hearing. The appellant had dismissed all of them by the time of committal, giving reasons for doing so . The Registrar was not prepared to assign any further counsel for trial, although the third of such counsel remained available to the appellant. The appellant did not seek to be represented by that counsel at trial.
The appellant relies in part on s 24(f) New Zealand Bill of Rights Act 1990, which reads:
24. Rights of persons charged -
Everyone who is charged with an offence -
….
(f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance
…
It is submitted on behalf of the appellant the following extracts from the decision of Penlington J in R v Royal (1993) 10 CRNZ 4 are apposite:
In New Zealand everyone has the right to a lawyer whether they have money or not. This in conjunction with the right to documents and evidence safeguards an individual's right to legal facilities. Their access to the law through lawyers can be either by way of private engagement or under the Legal Services Act 1991 provided the requirements of that Act are satisfied. A democratic society can require no more. Even if the right to "facilities'' includes access to legal authorities and materials which I expressly do not need to decide in this case, this is not an absolute right. It must depend on the circumstances of the particular case. The scope of the right must be determined by the yardstick of reasonableness in the particular circumstances. [p 7]
Manu Royal's present situation exists because he has unilaterally elected to dispense with Mr Laybourn's services, having earlier dispensed with the services of two previous counsel. There is no allegation of incompetence against Mr Laybourn, and in any event as I have pointed out earlier, Mr Laybourn's competence is judged to be such that his name is included in the list of counsel available for assignment in the Waikato district. Mr Laybourn's conduct as counsel likewise has not been impugned. At the most there has been a criticism of his attitudes.
In considering whether there has been a breach of s 24(f) I must take into account that Manu Royal has had four counsel and even if I put aside the first counsel because of the change in policy arising from the introduction of the Legal Services Act, he has had three counsel, all senior and experienced practitioners, assigned to him successively in this Court. He has dispensed with the services of each and all of them. Mr Laybourn's services were dispensed with at a time when the trial was imminent. Of course, Manu Royal, like any litigant, has the right to dispense with the services of his counsel and elect to conduct his own case but it does not necessarily follow that because he does so the right under s 24(f) New Zealand Bill of Rights Act 1990 continues to be available. It is only, to use the words of the relevant provision, if the "interests of justice so require''. [p 9]
It is submitted that upon the completion of depositions it would not be unusual for a new legal aid application and new counsel to be appointed for trial. Here it is said factors which arose in Royal did not exist.
In addition, it is submitted that s 10 of the Criminal Justice Act 1985 applies. It provides:
10. No full-time custodial sentence to be imposed without opportunity for legal representation -
(1) No court shall impose a full-time custodial sentence on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, unless the court is satisfied that the offender,-
(a) Having been informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for criminal legal aid under Part I of the Legal Services Act 1991; and
(b) Having fully understood those rights; and
(c) Having had the opportunity to exercise those rights, -
has refused or failed to do so, or engaged counsel but subsequently dismissed him or her.
(2) Where, on any appeal against sentence, a court finds that any sentence was imposed in contravention of subsection (1) of this section, the court shall either-
(a) Quash the sentence imposed and impose in substitution for it such other lawful sentence as the court thinks ought to have been imposed; or
(b) Quash the conviction and direct a new hearing or trial, or make such other order as justice requires.
(3) For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation where the offender-
(a) Refuses or fails to apply for criminal legal aid under Part I of the Legal Services Act 1991 or applies for such aid unsuccessfully; and
(b) Refuses or fails to engage counsel by other means.
It is submitted that the advice of the right to counsel needs to be reasonably proximate to the time of risk of conviction and not simply the pre-committal for trial period.
For the Crown it is submitted that the decision of Penlington J in Royal is supportive of the Crown’s position as in Royal the Judge decided it would be unreasonable to expect a further assignment given the background circumstances. It is submitted that the present case is comparable. It is submitted that in R v Heemi (1998) 16 CRNZ 221 this Court confirmed the principle that a legally aided person does not have a right to the lawyer of his or her choice. While it is recognised that that is not the submission in the present case, it is submitted for the Crown that the dismissal of three assigned counsel without good reason, accompanied by a demand for a further assignment, comes close to a claim for counsel of choice. It is further submitted for the Crown that the provisions of s 10 of the Criminal Justice Act 1985 were adequately met in the present case as there was no doubt that the appellant had had legal aid, or the opportunity of it, at the relevant times, and that there is no evidence to the contrary.
We are satisfied in the circumstances of this case that the appellant had ample opportunity to avail himself of legal assistance without cost and that no breach of s 24(f) of the New Zealand Bill of Rights Act 1990 has been made out. Counsel offered to him was an experienced trial counsel and he remained available to the appellant. The appellant chose not to accept him.
On the other hand, there is no evidence of compliance with s 10 of the Criminal Justice Act 1985. It is essential that trial Judges ensure compliance with that section wherever an accused is unrepresented at trial and that a record of such compliance be kept. That is the time when the section bites as that is the time when the offender is at the risk of conviction. We return to the consequences of this error and other possible trial errors later.
Appointment of Amicus Curiae
An experienced barrister was appointed on 19 November 1999 to ask questions of the complainant. There was no apparent application or submission in respect of the appointment or the issues involved. It is submitted for the appellant that there is nothing to suggest the complainant was a “vulnerable witness” requiring protection from cross-examination by the appellant, particularly given that she felt able, on her account, to stand up to him at the Arc Café. It is acknowledged that there may be an inherent jurisdiction in the High Court to prevent an accused asking questions of the complainant and to have counsel assigned for that purpose. However, even then it is submitted the inherent jurisdiction has only been used where the vulnerability of the witness has been founded on evidence. Here it is submitted that did not arise and nor did the issue of whether the District Court had any inherent jurisdiction to take the course adopted arise.
It is submitted for the appellant that the amicus also took it upon himself to seek to set aside witness subpoenas which the appellant had sought but took no steps to help the appellant ensure that his evidence was relevant and focussed.
It is said for the Crown that there is no evidence from the appellant that he was prevented from cross-examining the complainant.
Here the appellant was aware of his need for legal assistance but refused to accept the counsel offered by the Registrar of the District Court. The trial was undoubtedly going to be difficult if the appellant’s interests were not represented in some way.
While the decision of the District Court Judge to appoint an amicus curiae is understandable, it would have been better if the matter had been approached in a different way so that the accused was given a clear election as to the manner in which he sought to have the complainant cross-examined, either by himself or by counsel assigned to him or by counsel assisting, as occurred, or by the method contemplated by s 23F Evidence Act 1908 in respect of persons under the age of 17 years or intellectually handicapped. Here the Court offered the appellant neither counsel nor the right to cross-examine the complainant himself. Nor was the appellant given any election in respect of the appointment of the amicus. In circumstances such as those which arose, a Court should endeavour to ensure due process is followed and hear from the accused and counsel for the Crown on the course the accused wishes to follow.
In the present case we are satisfied the amicus put all questions asked of him and that the appellant had ample opportunity to frame all questions he wanted put. Two adjournments were specifically taken to enable and ensure this, both at the end of the complainant’s evidence and at the end of the amicus’s questioning. While in itself the course adopted could have caused no miscarriage of justice, there was a deficiency of process. We will return to this point later.
Crown’s Final Address
It is submitted for the appellant that the Crown Prosecutor said words to the effect: “A person who acts as his own lawyer has a fool for a client”. It is submitted that the Crown accepts these words were used but that they were accompanied by words negating the sting to the effect that that was not the case here and that the appellant was an intelligent man.
It is submitted for the appellant that to even introduce such language into the trial was insulting and derogatory of a lay litigant and that it should never have occurred.
For the Crown it is submitted that what was said by the Crown Prosecutor had to be put into context as it was also said that the jury might think that the appellant had done a reasonable job in the circumstances and that it was important that the jury did not under-estimate the appellant’s faculties. Thus it is submitted that in context the comment complained of was anything but derogatory as it was being used to indicate that the appellant did not come within that language rather than that he did. It was further submitted that the Crown conducted the prosecution in a conservative manner in that it did not seek leave to cross-examine the appellant in respect of prior convictions as it might have been entitled to do, and nor did it oppose an application that the complainant be called at depositions regarding the issue of identification.
Although the language used was unfortunate in the context of the particular trial and unnecessary, it cannot possibly give rise to any miscarriage of justice relating to the trial.
The Summing Up
It is submitted for the appellant that his case was that the complainant was telling lies, that she was not assaulted in the way alleged and, in any event, not by the appellant. It is submitted that the identification issue was obviously very important but that so also were the surrounding circumstances of the identification. The submission is that the trial Judge in summing up put the case for the appellant in respect of the original identification but did not fairly put the case for the appellant in respect of what occurred at the Arc Café, which was categorised as “peripheral detail”. That was compared with the appellant’s admissions. What it is submitted was not put for the appellant was that his admissions were a result of a trick by the complainant and the friend so that they were not true admissions and that the original identification was of someone else but later made to fit him upon a friend’s story.
We do not intend to cite from the summing up. Generally it was fair and balanced and fairly presented the case for the appellant. It is certainly not a case where the trial Judge unduly emphasised the Crown case or failed to fairly put the defence case. The trial Judge may not have put every point for the appellant that he may have wished, but that is almost invariably the case in any trial. The Judge may have referred to “peripheral detail” in a way which was unnecessary. Overall, however, what was important was that the substance of the case for the appellant be fairly put, and it was.
Miscellaneous
Mr Lithgow has very properly raised with us various other matters mentioned by the appellant. They include matters relating to the complainant’s deposition evidence being unavailable to the jury, the failure of the Minister of Justice to act upon a request by the appellant, the reliance by the Crown solicitor at sentencing upon an Australian conviction and a matter relating to the appellant’s bail. We are satisfied that while all those matters might be of concern to the appellant they could have no bearing upon whether he was entitled to a new trial or not.
There is one other point which has not been touched upon, and that is that there is nothing in the record to show that there was any compliance with the requirements of ss 364 and 365 of the Crimes Act 1961, being the caution to the accused when undefended at the commencement of the trial before the evidence for the prosecution is heard and the question to him before he gives evidence as to whether he wishes to give or call evidence. The appellant in this case did give evidence, but whether he was aware of his position is not clear from the record. We note that it is preferable that in all cases where the accused represents himself or herself there should be a reference in the record to the matters raised in those sections. There is, however, nothing before the Court to indicate that any possible breach in the present case has given rise to any injustice, particularly when the appellant had had substantial legal advice and assistance and always intended to call and give evidence.
Decision
We have identified three areas where there was either breach of process or possible breach of process in respect of the appellant’s trial. They are the non-compliance with s 10 Criminal Justice Act 1985, the process by which the amicus was appointed and the appellant denied his rights to cross-examine the complainant, and the apparent failure to advise the appellant of his statutory rights under ss 364 and 365 Crimes Act 1961. As we have already noted, the last two matters could not by themselves have caused any miscarriage of justice. We have, however, considered with care the forceful submission by Mr Lithgow that because of the failures of process relied upon by him the appellant did not receive a fair trial. If the appellant had the semblance of a defence which may have been rendered ineffective by the errors of process, we would not hesitate in quashing the conviction and ordering a new trial. Here we are not so satisfied.
As already noted, the primary issue at trial was one of identification. The complainant was extensively cross-examined by experienced counsel in an effective fashion. In addition, the appellant in his statement had indicated that he had met a woman at the Arc Café with the name of the complainant. What his case really added up to was that he was saying that two women who did not know him, the complainant and another, deliberately conspired on the night of the incident and at the Arc Café to bring about his false conviction. There is no evidence whatever to support that supposition, which could only be said to be extremely far-fetched and incredible in the circumstances of this case. We are satisfied therefore that no possible credible defence was denied the appellant by the errors of process which occurred or appear to have occurred.
There is thus no ground for quashing the conviction of the appellant as there is nothing to indicate any likelihood of a miscarriage of justice in respect of his conviction. The errors of process involved do not by themselves justify a new trial.
However, the Court is obliged by s 10(2) Criminal Justice Act 1984 to quash the sentence imposed and substitute another or quash the conviction or make such other order as justice requires. When the appellant is due for release, any alteration of sentence would be pointless. The only relief we consider proper and appropriate is to make an order by way of declaration that there was a breach of s 10(1) Criminal Justice Act 1985 in respect of the trial of the appellant.
In all other respects the appeal is dismissed.
Solicitors
Crown Law Office, Wellington, for respondent
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