R v Abdi CA22/03
[2003] NZCA 351
•22 October 2003
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA22/03
THE QUEEN
v
SHIRE ABDULKADIR ABDI
Hearing: 20 October 2003 Coram: Anderson J
Fisher J Salmon J
Appearances: J A Hope for Appellant
B J Horsley for Crown Judgment: 22 October 2003
JUDGMENT OF THE COURT DELIVERED BY SALMON J
[1] Mr Abdi was found guilty after trial before a Judge and jury in the District Court of one charge of sexual violation by digital penetration of the complainant’s genitalia. He was acquitted on a charge of indecent assault. This is an appeal against his conviction.
[2] The complainant accepted a lift in a vehicle in which the appellant was a passenger. She initially expected to be taken towards the place where she was staying in Stratford. In fact the car drove to Hawera, where the appellant and the
R V SHIRE ABDULKADIR ABDI CA CA22/03 [22 October 2003]
driver of the car went into a house. The complainant was later taken in another car, again with the appellant, back to Stratford. In the course of that journey she alleged that the appellant put his hand between her legs and digitally penetrated her. The complainant’s evidence was that she was crying and hitting the appellant to repel his advance.
[3] Eventually she was dropped off at her friend’s place in Stratford and made a complaint to the police and was examined by a doctor. The doctor prepared a report and gave evidence at the trial.
[4] The appeal concerns the manner in which the trial Judge dealt with the doctor’s evidence and the submissions of defence counsel in relation to it, in his summing up.
[5] In his report and his evidence the doctor referred to three abrasions in the genital area and a rash on the inner left and right buttocks. He said that the injuries were consistent with a hand being pushed into the complainant’s genital area while she resisted by pushing her thighs together. He said the injuries indicated a degree of force applied to the skin and that the injuries were not consistent with sexually transmitted disease.
[6] The doctor produced to the Court a page from his examination record. This page included a diagram with indications of the location of the abrasions. There were two comments below the diagram. The first, “fits with time of alleged assault”, and the second, “not characteristic of herpes ulcer”. The doctor’s record had been made available to defence counsel as part of pre-trial discovery.
[7] In the course of evidence-in-chief, Crown counsel elicited particulars from the doctor in elaboration of the comment, “not characteristic of herpes ulcer”. Defence counsel cross-examined extensively in relation to that additional evidence.
[8] In his final address defence counsel submitted that the jury could not discount the possibility that the abrasions noted by the doctor were due to genital herpes, rather than as a result of what is alleged to have been done by the appellant.
[9] The submissions in support of the appeal concentrated particularly on the following passage from the Judge’s summing up
But he is saying to you well, can you discount that what the doctor saw was genital herpes and not injuries from that. He says the doctor really should, in your minds, be questioned as to his competency, his objectivity, his impartiality and he put that argument to you very strongly and he says that really the doctor – I think in brief, members of the jury, he was saying the doctor was ‘being smart’ when he was questioned by the defence. He criticised the doctor for having no record of his notes about a discussion the doctor said took place between him and [the complainant] in terms of this business of herpes and I think that I need to say this to you only -–if it is the defence case, and I understand it is really argued that way by Mr Sutcliffe, that those injuries could have been herpes, I think what you have just got to bear in mind is that the one person who could have told us about that was the complainant and that is an issue that was not put to her for her to comment on and I would just ask you to weigh that up when you weigh up the argument that Mr Sutcliffe has put to you, that that is something that really should have been put squarely to the complainant if that is to be an aspect of the defence, but beyond that I don’t go, the argument is there for you to consider and it’s for you to weigh up in terms of what you make of that and what I have just told you.
[10] In particular, it is submitted on behalf of the appellant, that the criticism of counsel for failing to put the issue of herpes to the complainant undermined the defence case to the extent that there has been a miscarriage of justice.
[11] The defence case was not just that the possibility of genital herpes had not been excluded, but also that the questioning of the doctor raised questions as to his impartiality and his competence and thus, his credibility and that this aspect of the defence was also undermined by the criticism of defence counsel.
[12] Mr Hope, for the appellant, submitted that the doctor’s unequivocal view expressed in the examination record had become equivocal as a result of the examination-in-chief and cross-examination. Counsel submitted that it was apparent from the evidence that the doctor had not kept a complete record and had not undertaken a sufficient examination to be able to properly exclude the possibility of herpes. Mr Hope submitted that trial counsel was justified in not putting the issue of herpes to the complainant because that question did not really become an issue until the examination-in-chief by the Crown. He also criticised the Crown for not having
provided the evidence adduced in examination-in-chief prior to trial and submitted that the Crown, rather than the defence, had the obligation of questioning the complainant as to whether or not she had had herpes.
[13] For the Crown, Mr Horsley, submitted that there was no obligation on a trial Judge to refrain from commenting on the evidence or on counsels’ submissions, provided that his comments were balanced and fair. He submitted that the appellant’s claim that the comments referred to were not balanced and fair, was elevating a minor criticism of one aspect of the summing up to an inappropriate degree.
Discussion
[14] We have considered the record of the evidence of the doctor. We do not believe that the criticisms made by counsel for the appellant are justified. The doctor in questioning gave reasons for his conclusion that the abrasions were not characteristic of herpes ulcers. He gave general evidence of other symptoms associated with an on-set of herpes. He said in response to questions asked in cross- examination that he had asked the complainant whether she had herpes. He said there was no evidence that she had. Counsel submitted that these questions were asked after the doctor had reached the conclusion recorded in his examination notes. We do not accept that the evidence establishes this. In fact, herpes was never a live issue. The doctor maintained throughout that the abrasions were not consistent with herpes.
[15] Furthermore, we consider that the Judge’s comment relating to the question being put by defence counsel to the complainant, as to whether she had had herpes was an appropriate one to make. The doctor’s note raised the matter sufficiently to have justified such a question. Even had we accepted the submission that there had been inappropriate criticism of defence counsel, we would not conclude that this had undermined the defence case to the extent of causing a miscarriage of justice. In our view the defence case was in other respects, put fully and fairly. The criticism, if it be such, was a minor issue in an extensive and fair summing up.
[16]The appeal is dismissed.
Solicitors:
Till Henderson King, Hamilton for Appellant Crown Law Office, Wellington
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