R v A (CA194/07 and CA271/07)
[2007] NZCA 448
•17 October 2007
AN ORDER SUPPRESSING THE NAME OF A IS STILL ON FOOT
˝ IN THE DISTRICT COURT.
˝
˝ PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA194/07
CA271/07 [2007] NZCA 448
THE QUEEN
v
A (CA194/07 AND CA271/07)
Hearing: 9 October 2007
Court: Hammond, Baragwanath and Keane JJ Counsel: M Starling and S G Bailey for Appellant
D R La Hood and M E Ball for Crown
Judgment: 17 October 2007 at 3.30 pm
JUDGMENT OF THE COURT
A Leave to appeal against conviction granted.
B The appeals against conviction and sentence are both dismissed.
REASONS OF THE COURT
(Given by Hammond J)
R V A (CA194/07 AND CA271/07) CA CA194/07 17 October 2007
Introduction
[1] A, a female, was convicted by a jury in the District Court at Invercargill of six counts of unlawful sexual connection against two male complainants, one (B) aged 15 and the other (C) aged 14, contrary to s 134(1) of the Crimes Act 1961. A was 40 years old at the time. On 5 April 2007, Judge Phillips sentenced A to three years imprisonment. She now appeals against her convictions, and the sentence imposed.
[2] The conviction appeal is based on two grounds arising out of the Judge’s summing up. It is said that the Judge’s directions to the jury on intoxication and the use of “similar fact” evidence were both in error, and have given rise to a miscarriage of justice.
[3] The appeal against conviction was filed out of time. The Crown does not oppose leave being granted. A sentence appeal was filed within time, and there is no prejudice to the Crown given the length of the delay. Leave is accordingly given for the conviction appeal.
[4] The appeal against sentence is on the ground that it is manifestly excessive.
[5] There is an existing order for the suppression of A’s name, which was made by the trial Judge. There has been no application to vary or amend that order; it is accordingly still extant.
Background
[6] A moved from Australia to the South Island of New Zealand after a business belonging to her and her husband ran into financial difficulty. In New Zealand at all relevant times she lived in a house with her sister-in-law, brother-in-law, and their
family. One complainant, B, was the son of A’s sister-in-law and brother-in-law. The second complainant, C, was a close friend of B’s.
[7] On 1 August 2005, A, her hosts, B, and C were all drinking alcohol. A supplied B and C with vodka throughout the evening. A, B, and C all became heavily intoxicated.
[8] Late into the evening, after B’s parents had gone to bed, A and the two boys proceeded to a farming shed on the property. Further alcohol was consumed. C eventually vomited from his consumption of liquor.
[9] A proceeded to remove her clothing and have sexual intercourse with B. She also allowed C to sexually fondle her at that time. The three then returned to the family home. In a lounge directly adjacent to B’s parents’ bedroom, A proceeded to perform oral sex on both B and C. Sexual intercourse then occurred between A and B, and A and C.
[10] For something like a month thereafter A continued to have a sexual relationship with B, knowing he was under 16 years of age. She engaged in acts of oral sex and sexual intercourse. This formed the basis of the two representative counts (counts 5 and 6), which encompass the month of August 2005.
The conviction appeal
Introduction
[11] Although the appeal as filed was with respect to all the counts on which A was convicted, before us Mr Starling responsibly recognised that appeals could not be supported on counts 5 and 6. With respect, he was entirely right to do so. The matters about which complaint is made in relation to the summing up do not go to those counts. And further, in a letter she sent to the Judge prior to her sentencing, A expressly acknowledged that those acts had taken place. Even assuming therefore that a retrial was directed, she could be taxed about the statements in her letter, as
admissions against her own interest. Before us therefore, the appeal against conviction was confined to the four counts going to the events of the night of
1 August.
[12] To appreciate the context of the grounds of appeal on those four counts it is necessary to appreciate the defence, as it was run at trial.
[13] A first argued at trial that the events on the night of 1 August 2005 simply did not happen. Alternatively, she contended that she had consumed so much alcohol that she was quite unaware of what was then happening. She argued that either she was acting as an automaton, or was so intoxicated as to be “insensible”. As the Judge noted, in consequence the defence was really arguing that B and C both took advantage of a comatose A. The most that A was prepared to concede at trial was what she described as having “a flash memory” that included seeing C vomiting, and possibly someone having sex with her near or on a tractor.
The summing up: intoxication
[14] The jury had the evidence of the parties and also the benefit of expert evidence on the issue of automatism. No issue is taken with the directions of the Judge in that respect. Clearly that defence was rejected by the jury. We say no more about it.
[15] As to intoxication, the Judge gave a perfectly orthodox direction, in terms of
R v Kamipeli [1975] 2 NZLR 610 (CA). He said:
Alcohol sometimes has a disinhibiting effect, so people may do things when intoxicated that they would not do so when sober. But our law holds people responsible for their intentional acts even if they were drunk at the time. Ms Thomas [Crown counsel at trial] was right. A drunken intent is still an intent for the purposes of our law. So intoxication in itself is not a defence. But it may be relevant to the state of mind of the accused in particular as to her intentions. Alcohol can cloud judgment and something that would be obvious to someone who is sober, might not be seen in the same way by the same person when drunk. …
[16] The Judge rightly did not leave this direction in a vacuum. He said:
In respect of Counts 1, 2, 3 and 4, if you accept what the accused says as to her condition, due to a combination of alcohol and drugs, then you would be able to use her evidence in deciding whether the alleged sexual conduct as described as occurring in the cowshed and [B’s] house by the complainant did or did not occur.
[17] Plainly, the jury rejected A’s contention that she was insensible, or more colloquially, completely “out of it”. Whether that was so was a matter for the jury. There was evidence available to the jury that she was not in an insensible state. There was some evidence that this was a pre-meditated event, or, alternatively, evidence which is at least inconsistent with the insensibility argument. There was, for instance, evidence from the complainants that A had said that they would need to douse the lights in the shed, so that they could not be seen from B’s house. In any event, A’s claim that she was completely insensible was squarely before the jury, along with all the evidence of the parties in that respect. The jury patently rejected it. This appeal point is dismissed.
Similar fact evidence
[18] Complaint is made about the way the Judge directed the jury with regard to what has heretofore been referred to in the law as “similar fact” evidence. We say “heretofore” because that was the terminology employed up until the enactment of the Evidence Act 2006. Evidence of this character is now referred to as “propensity” evidence in s 43 of the new statute.
[19] It was common ground before us that this trial was conducted under the “old” law relating to “similar fact” evidence, and that on appeal this point falls to be determined under that law. It is therefore unnecessary for the purposes of this appeal to say anything about what, if any, differences there might be between the old law and the position under the new statute.
[20] Under the law as it stood prior to the Evidence Act 2006, the admissibility of similar fact evidence rested on the probative value of the particular evidence exceeding its illegitimate prejudicial effect (see R v Holtz [2003] 1 NZLR 667 (CA)).
At least from the time of Director of Public Prosecutions v Boardman [1975] AC
421 (HL) it was the degree of relevance which made similar fact evidence admissible. To be admissible the evidence (a) must have had some relevance other than showing the defendant’s propensity to commit the type of crime charged; and (b) must have had strong probative force. The question in each case was whether, on the facts of the particular case, the evidence had a sufficient degree of probative force to make it admissible.
[21] Whether or not it had such a sufficient force was a matter of law to be decided by the Judge who had to determine, first, whether the evidence was sufficiently relevant (in the sense that it was probative of an issue in the case). If that was so, the Judge then had to determine whether it had the necessary probative force to outweigh its prejudicial effect. As we will shortly describe, functionally that was done in this case.
[22] There was some considerable debate in the cases as to how the necessary probative force was to be described; for instance, whether the degree of connection had to have a “striking similarity”, or show “an underlying unity”, or have what some called a “positive probative value”. Eventually, the law came to be that there is no single formula or manner in which probative force can be achieved. Whether the evidence has sufficient probative force to outweigh its prejudicial effect is in each case a question of degree. There is no formulaic test or single way in which the requisite of probative force could be derived; it all depends on the circumstances.
[23] In this case there seems to have been, initially at least, some concern by defence counsel at trial (not her present counsel) as to how the jury might appropriately utilise the evidence, or some of it, from counts 5 and 6, in relation to the events of the night of 1 August. It appears that counsel for A was endeavouring to take the position that what was involved here were two quite discrete incidents – what happened in the farm shed and at B’s house, and what happened subsequently, at least as between A and B, in the month of August. It would appear that counsel made a specific suggestion to the trial Judge, prior to his summing up, that matters should be so regarded. However, the trial Judge recorded that, after discussion, the objection was “no longer pursued”. It is not necessarily fatal on a miscarriage appeal
that counsel has abandoned a concern that might later be found on an appeal to have some force, but clearly it becomes a long bow to draw on appeal.
[24] Mr Starling suggested that it was wrong for the Judge to have said to the jury that if the jury found the Crown allegations in counts 5 and 6 proved beyond reasonable doubt (as to B) then the jury “[could] use your decision on those counts when you consider Counts 1 and 2 relating to [C]”, because “that supports what [C] says occurred at [B’s home]” on the night in question.
[25] In so doing, there is no question that the Judge told the jury that before it could adopt that line of reasoning it had to be sure “that there is a clear and discernible pattern between your findings in relation to Counts 5 and 6 but [sic] logically supports and reinforces the allegations in Counts 1 and 2 and that there have [sic] been no collaboration between the two complainants”. In short, the Judge gave the appropriate warnings which should be delivered in a so-called similar fact situation.
[26] We should add that the Crown also led evidence from another witness, CB, to the effect that A had behaved in a somewhat similar manner in front of CB, a person under 16. The evidence was that A had undressed in front of B and CB in a way in which the complainants say occurred in the farm shed on 1 August 2005. The Judge gave similar directions in that respect.
[27] In the end however, the point before us is a narrow one. As Mr Starling acknowledged, the gravamen of his complaint is that the impugned evidence did not come up to the necessary requirements for similar fact evidence. In other words, that the Judge should simply not have allowed it to be treated in that manner, although if he was correct in so categorising the relevant evidence, Mr Starling acknowledged that the Judge did give all the correct warnings.
[28] The Crown case was that there was a distinct sameness between what happened in the farm shed incident, and what occurred later in August:
•All the counts in the indictment, as well as the incident relating to CB, involved A instigating sexual conduct in relation to under-age boys;
•These incidents occurred when A and the boys had been drinking together;
•The first incident and the incident with CB involved situations of high risk while others were present at the property;
• These incidents involved the introduction of a vibrator by A;
•The events all occurred during a period when A admitted to having a severe drinking problem;
• These events all occurred within a matter of weeks;
• All three boys were known to one another, and were close in age; and
•The boys were post-pubescent and sexually developed but not yet legally able to have sex.
Whether that was all “just a coincidence” was for the jury.
[29] Mr Starling suggested, with it has to be said a surprising degree of optimism, that “it could be argued that severance might even have been appropriate” in this case. In fact, trial counsel made no such application, and we do not see how it could possibly have been sustained.
[30] We think this appeal point must fail. There was a very strong case for the high degree of sameness and “non-coincidence” as to the various events which had occurred. It would be entirely artificial to separate them into two water-tight compartments. This was the same woman, behaving in the same way, with the same under-age boys, and in distinctly similar circumstances, on different occasions. The Judge gave all the usual and appropriate warnings as to the use of that evidence.
The sentence appeal
[31] In a careful sentencing, the Judge adopted a starting point of three and a half years imprisonment. He deducted six months in relation to A’s previous good character, and imposed the resultant sentence of three years imprisonment.
[32] In her written submissions Ms Bailey listed a large number of cases, with only short particulars, and little analysis, as to what precisely was wrong with the sentencing Judge’s approach. Mr Starling did not fare a great deal better in his oral submissions. We repeat, as this Court has so often had to do, that although other decisions as to actual sentences can sometimes, and in some respects, be helpful (not least because disparity is unfair and inappropriate) fundamentally sentencing involves an approach by way of principle.
[33] In R v Boyd (2004) 21 CRNZ 169 this Court had occasion to note (at [40])
that legislation of the character against which A has offended:
… is prophylactic. It is protective legislation, and it was quite deliberately put into place by our Parliament to protect young [persons] against precisely the sort of thing which occurred in this particular case. In such circumstances, the fact that the conduct could in a sense be described as “consensual” is of no moment.
[34] Reference was also made in Boyd to the psychological damage inflicted on young girls by incidents of under-age sex, and the observations of the English Court of Appeal in A-G’s Reference (No 39 of 2003) (Wheeler) [2004] 1 Cr App R (S) 79 were referred to in that respect. The evidence relating to young boys is not so well documented, perhaps because incidents involving older women and under-age boys are not so common, or at least not so often reported. But the Victim Impact Reports in this case are clear enough that, even now, these incidents have had a marked impact on these young men.
[35] The concerns expressed in Boyd were repeated by this Court in R v PEC
CA157/05 17 November 2005.
[36] Mr Starling said that the sentence should not have been more than two years, perhaps as little as 18 months. That was a distinctly optimistic submission in view of the Judge’s very thorough and accurate assessment of the offending in this instance.
[37] Mr La Hood responsibly acknowledged that the present case is not as serious as Boyd. He did however contend, we consider rightly, that the sentence actually
imposed was well within the range available to the sentencing Judge in this particular instance, having regard to its aggravating features. In particular there was the predatory nature of the behaviour as found by the Judge; the breach of trust within the family; and the continuing course of conduct.
[38] The sentence appeal will also be dismissed.
Solicitors:
Crown Law Office, Wellington
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