Police v F HC Nelson Cri-2008-442-26

[2009] NZHC 80

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2008-442-000026

NEW ZEALAND POLICE

Applicant

v

F

Respondent

Hearing:         4 February 2009 (Heard at Blenheim)

Counsel:         J C Bonifant for applicant

J C S Sandston for respondent

Judgment:      10 February 2009

RESERVED JUDGMENT OF DOBSON J

Context of the application

[1]      The applicant seeks consent to file an indictment against the respondent, in a form  that  has  been  submitted  in  draft  with  the  application.    The  application  is brought under s 345(3) of the Crimes Act 1961.  The criteria on which the Court’s discretion may be exercised under this section are not detailed in the statute.  There is, however, a  relatively consistent body of  case law providing guidance on  its

application.

NEW ZEALAND POLICE V F HC NEL CRI-2008-442-000026  10 February 2009

[2]      In the present case, the respondent was charged with two counts of indecent assault against a child aged under 12 years.   However, at the conclusion of a preliminary hearing in the Nelson District Court, the respondent was discharged by two Justices of the Peace who determined that they had not received prima facie evidence of an indecent act with an indecent intention.  Having recognised that the issue was whether a reasonable jury, properly instructed, could find an indecent act proven beyond reasonable doubt, the Justices concluded that they could not say a touch of the alleged victim by the respondent was proved beyond reasonable doubt.

Factual background

[3]      For some period up to July 2008, the respondent attended the family home of the alleged victim, a seven year old girl (“the child”), on a weekly basis to give the child guitar lessons.   After the child’s mother became concerned at what she considered to be the respondent leaning inappropriately over in front of her daughter, the child’s parents decided to covertly record a subsequent lesson or lessons, to see whether a video recording revealed any indecent conduct by the respondent.

[4]      After videoing lessons given to the child by the respondent on 31 July and

7 August 2008, the child’s parents took the video to the Police.   The Police then conducted a videotaped interview of the respondent, and two  charges were laid alleging indecent assault of the child on each of 31 July and 7 August 2008.

[5]      At  no  stage  have  the  parents  or  the  Police  raised  the  nature  of  the respondent’s conduct or any other matter in relation to the guitar lessons with the child.

The law

[6]      There is no argument as to the authorities guiding the exercise of the Court’s discretion in such applications.   The authorities are  accurately reviewed  in  R  v Edwards  HC  AK  CRI-2004-404-1265  4  August  2004  Hugh  Williams  J.    The

judgment adopted the approach suggested by Elias CJ in Wallace v Abbott (2002)

19 CRNZ 585 (HC) as being:

…whether on preliminary review there is evidence upon which a jury could properly convict.  If so, the respondent must be committed for trial.

The decision in Wallace continued with the following observation:

In considering whether the evidence is sufficient to put the defendant on trial, the committing Court is principally concerned with whether there is evidence of the elements essential to the Crown case.  Generally, questions of credibility of witnesses are the function of the jury.  In “extreme cases” it has been recognised by the Court of Appeal that the committal Court “may conclude on assessing all the evidence that it has heard that the likelihood of a jury bringing in a guilty verdict is so slight that the defendant ought not to be committed for trial” (W v A-G [1993] 1 NZLR 1; (1992) 8 CRNZ 427 (CA)). The case for the defence would have to be “unusually strong” because of the reluctance to usurp the function of the jury. Where the defence case turns on questions of credibility, a discharge would only be proper where the evidence is “incapable of belief by any reasonable person”:

If it is reasonably capable of belief, then it is for a jury, not the Judge or Justices, to decide whether it should be believed (Attorney- General v District Court at Christchurch (1994) 12 CRNZ 263 at

265). (para [10])

[7]      The earlier decision in R v Dixon and  Wright [1997] 1 NZLR 54 (HC)

suggests (at p 57) an additional caution where there has been a discharge:

Where there has been a committal process resulting in a discharge, an informant must show why the determination of the committal Court should be superseded.  Of course, s 345(3) does not envisage a reviewing, still less an appellate, jurisdiction to be invoked by a dissatisfied informant, but it is nevertheless relevant to the matter of consent that another Court which has had the advantage of seeing and hearing the witnesses and of assessing the evidence for sufficiency in a live rather than a narrated context, and which has had the initial responsibility of deciding the committal issue, has made its decision.

[8]      Accordingly, an informant applying under s 345(3) must provide good reason for overriding the discretion of the Justices, but a sufficient reason will be that the Justices evaluated the quality of the evidence rather than analysing its potential to secure a conviction.

[9]      Mr Sandston did not seek to support the reasoning process of the Justices, as challenged by the applicant.  With respect, I am satisfied that the Justices fell into

that error in the present case.  The terms of their decision suggest a thought process putting  themselves  in  the  shoes  of  the  jury,  rather  than  respecting  the  clear distinction that the authorities emphasise should be maintained.

[10]     However, error of that type does not automatically mean that the discretion ought to be exercised in favour of consenting to the filing of an indictment – see, for example, Thompson v R (Private Prosecution) [2007] NZAR 722. Accordingly, the critical issue is whether the evidence called for the Police is sufficient for a properly directed jury to rely upon to enter a conviction. This is not a case in which the Justices had the advantage of seeing and hearing evidence in respect of which credibility was important. The principal evidence is in the video recordings and there is no evidence from the child.

The Police evidence

[11]     At the depositions hearing, evidence was given by both parents, the arresting officer and a woman now aged 23 but who was aged 11 in 1997 when she was a student in form one at an intermediate school in the Nelson area.  That witness, who had been receiving keyboard lessons from the respondent, experienced an occasion on which he held a music book open in her lap with his hands underneath the book, leading to her feeling the respondent’s thumb rubbing against her vagina.   The contact was on top of her clothes and it felt like he was rolling his thumb.  When she moved to avoid that contact, he continued to rub his thumb against her vagina.  The witness did not protest at the time, but felt uncomfortable.   It  appears that her recollection subsequently became propensity evidence in relation to a charge brought against the respondent involving conduct with another young girl.   This witness’s recollection was that there was no separate charge brought in relation to the respondent’s conduct with her.

[12]     Counsel were agreed that this analysis rests primarily on what is revealed by the two covert video recordings of the music lessons on the days in question.   As Mr Sandston’s written submissions urged, I watched the whole of both videos in uninterrupted form before the hearing, as well as reviewing parts of both of them on more than one occasion.  Somewhat more than half way through the first video, the

respondent is shown kneeling in front of the sofa on which the child is sitting, with her practising playing the guitar, seated on the sofa facing the respondent.   She is facing the video recorder and accordingly his back is towards the video recorder. The guitar rests across her thighs in a normal position for someone playing the guitar.  For a relatively short period, the respondent has his arms outstretched, one at each end of the body of the guitar.   He appears to be supporting the guitar, presumably  to  relieve  the  child  of  the  weight  of  the  instrument  so  she  can concentrate on forming chords with her left hand, and strumming with her right hand.  At one point the child takes both hands off the guitar which does not move, consistent with it being held in that position by the respondent.   His left hand is mostly  obscured  by  his  back,  but  its  general  alignment  is  consistent  with  it supporting the bottom of the guitar at a point some distance away from the child’s body.

[13]     The respondent’s right hand appears to be resting on the top of the body of the guitar, possibly above but likely to be around the area between the child’s legs. The view of the respondent’s right arm and right hand is obstructed by a chair in line between the video and that part of the respondent’s body.  The video does not reveal any movement by the right arm or right hand that might found an allegation of an indecent assault or an attempt to indecently touch the child.  There is no discernible change in the demeanour of the child, or indeed the demeanour of the respondent, throughout.

[14]     Towards the end of the first videoed, the child puts aside the guitar and the respondent takes her through exercises in relation to reading music.   To do so, he kneels in front of her, holding a spiral-bound A4-sized book open so that it can be read by her, with his right hand at the bottom of the spine of the book.  That appears to have his right hand resting in or near the child’s lap.  However, the view of his hand at that time is obstructed by a chair placed between that part of his body and the video.

[15]     The second lesson was recorded from a slightly different angle, and with the chair that obstructed a view of the middle of the child’s body having been replaced by a low stool that does not create any similar obstruction.   The majority of that

lesson was conducted with the respondent sitting for the most part out of the range of the video recorder, to the left of the scene as recorded.  It appears he is on a chair or couch at right angles to the couch on which the child is seated on both occasions.

[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.

[21]     In   the   videotaped   interview   he   gave   to   the   Police,   the   respondent acknowledged that his hand went under the child’s skirt, but that he did not think it went into the groin area, and that the hand did not move.  He denied that his hand was doing anything there, but had no explanation as to why the officer timed him holding the guitar for a period of four minutes, continuing after the coaching of chords had finished.  Counsel took opposing views as to whether the transcript of the videotaped interview of the respondent added materially to the Police case.   More might be discerned from viewing the tape of that interview, but on the basis of its transcript I would not treat the interview as strengthening the Police case materially.

[22]     If I grant consent for an indictment to be laid, I anticipate there might well be an argument for the exclusion of the propensity evidence I have described in paragraph [11] above.   It is inappropriate to express a finite view about its admissibility at this stage, and rather I have regard to the prospect of its being admitted, tempered somewhat by the prospect that such evidence might ultimately not be put to the jury.  It is some evidence of a propensity by the respondent to use the course of music lessons as a pretext for bringing one of his hands into contact, in the 1997 incident, with the vagina of a young girl, and in the present case with the inner thigh at the top of a young girl’s leg.  It is some evidence that a jury might have regard to, both as to what is actually revealed by the video of the second lesson, and also in its deliberations as to the intentions of the respondent.

[23]     The elements required to establish these charges are:

•    an intentional application of force to the child or an attempt to do so;

•   that such assault is either by its nature or in the circumstances indecent, that the accused understood that the conduct would be regarded as indecent; and

•    that it was carried out in that knowledge.

[24]     Having heard careful argument, I consider that the first video, even taken together with the second video and the prospect of propensity evidence, does not amount to sufficient evidence on which a properly directed jury could convict.

[25]     I have come to the contrary conclusion in respect of the second video.   I consider there is enough in the evidence tendered on behalf of the Police on which a jury could, if all that evidence is accepted, be satisfied that the charge of indecent assault in respect of that conduct was made out.

[26]     I  accordingly  decline  consent  to  the  first  charge  in  the  draft  indictment attached to the submissions for the Police, namely in respect of the conduct on

31 July 2008.    I  do  consent  to  an  indictment  with  a  single  charge,  namely  as proposed in relation to the conduct on 7 August 2008.

[27]     I direct that such indictment be filed in the Nelson District Court.  In regard to  the jurisdiction  to  do so,  I acknowledge the  review  of  earlier  authorities  by Gendall J in R v Lister HC WN CRI-2005-485-53 31 May 2005, and accept the analysis in that decision as confirming the jurisdiction to do so.

Dobson J

Solicitors:

Crown Solicitor, Tasman for applicant

McFadden McMeedken Phillips, Nelson for respondent