R v Arneman

[2007] NZCA 428

NOTE:  PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA290/07 [2007] NZCA 428

THE QUEEN

v

CRAIG ROBERT ARNEMAN

Hearing:         20 September 2007

Court:            Ellen France, John Hansen  and Wild JJ Counsel:       S A Saunderson-Warner for Appellant

D R La Hood and C A Patterson for Crown

Judgment:      4 October 2007         at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by John Hansen J)

[1]      The appellant faced two charges of indecent assault.  The first involved A, a boy then aged five.   The second involved his sister B, then aged nine.   The trial,

R V ARNEMAN CA CA290/07  4 October 2007

which commenced on 21 May 2007, was before Judge Spear and a jury in the District Court.  The evidence occupied only a day and a half.  After deliberating for nearly ten hours the jury found the appellant not guilty in relation to A, but guilty in relation to B.  He was sentenced to 200 hours community work with supervision for two years, with special conditions relating to attending counselling and receiving mental health treatment.

[2]      He  appeals  against  conviction  on  two  grounds.    The  first  relates  to  the Judge’s refusal of a jury request to view the evidential video of B again.  The second relates to the failure of the Judge to give what is now the standard direction as to the use the jury may make of the trial transcript.

Background

[3]      The appellant was in a relationship with A and B’s aunt.  B awoke on a fold- out bed in front of the television to find the appellant sitting between her and her cousin.  B saw that the defendant’s boxer shorts were pulled down, his penis was visible and he was masturbating himself.  The appellant asked for a cuddle, which B gave him.

Events giving rise to appeal

[4]      Following the evidence, addresses to the jury were concluded on 22 May. After   the   conclusion   of   the   addresses,   senior   counsel   for   the   appellant, Ms Saunderson-Warner was required to travel to Timaru to take part in another trial. She arranged for an experienced local criminal practitioner, Mr Savage, to appear on her  behalf  the  following  morning  when  the  Judge  summed  up.     However, Ms Murphy, who also appeared, had been junior counsel for the appellant throughout the trial.

[5]      In this case the jury were given the transcript of the evidential video, as well as the transcript of evidence-in-chief, cross-examination and re-examination. It is conceded by the appellant that before the video was shown the Judge gave the standard direction in relation to it, and the use the jury could make of the transcript.

At the conclusion of the summing up, counsel raised with the Judge his failure to give any direction to the jury as to the use they could make of the trial transcripts. Counsel for the Crown also raised with the Judge whether or not he should direct the jury they could see the video again if they so requested it.  The Judge stated he was not prepared to do that, and the appellant’s counsel raised no objection.  In relation to  the  trial  transcript  the  Judge  considered  that  the  trial  was  so  short,  and  the evidence so brief, there was no point in recalling the jury for a specific direction.

[6]      Relatively early on in their deliberations the jury had a number of questions. One of these questions was a request to see the video again.  The Judge discussed this matter with counsel in which he made it plain he was not going to have the video replayed for the jury.   He said he was concerned that it would be helpful to the prosecution and detrimental to the appellant.  The following exchange took place:

THE COURT TO MR POWER: Well? … But I'm just saying that …

You can’t assume that.  Don’t speculate, just can’t assume anything?  … Oh

I'm just saying that would be the obvious reason.

It’s the answers he gives that are of evidential value, nothing else? … Yes. Can we please see her video again.  No.  It’s like asking for a witness to be

recalled so that we can see them.   In my view they’ve seen her, they’ve

watched the video and I don’t know why they want to watch it again but if they have it again, I’d feel obliged to read out the rest of her evidence to the jury to make sure that it’s balanced.   They have all of her evidence but I don’t want to have, it’s effectively recalling a witness just for part of her evidence which is her evidence-in-chief and I think that could potentially be prejudicial to the accused.  Mr Power.

MR POWER: It’s a difficult issue.   I must confess I'm used to in other jurisdictions, the video being played and the relevant evidence being read. I'm unclear as to what the situation is here.  In fact I'm just going to look that up further, but it’s a matter for Your Honour at the end of the day.

THE COURT TO MR POWER: I think it’s a witness, you know it’s different to a suspect interview which can of course be replayed but here you're effectively asking for a Crown witness to be recalled and I just think that that’s unfair to the accused? … I must admit I'll have to look at that issue a bit closer.  I'm just unclear on that.

THE COURT TO MR SAVAGE: Mr Savage or Ms  Murphy?  …  I'm happy with that Sir.

I'm sure you would be.  Have the jury in please Mr Cryer.

[7]      It is apparent that counsel appearing for the appellant that day, Mr Savage, accepted and agreed with the decision that the video should not be replayed to the jury.

Submissions

[8]      Ms Saunderson-Warner submitted there could only have been two reasons for the jury to request to view the video again.  The first would be to check against the transcript to clarify possible errors.   The second related to the complainant’s demeanour.  She submitted that the second reason was particularly important in this case.   She said the defence case was built around the contradictions in the complainant’s evidence and a submission to the jury that it consisted of lies.

[9]      In relation to the trial transcript, she submitted that the failure of the Judge to give the standard direction relating to the necessity for  a balanced  view  of the evidence caused a miscarriage of justice to occur.

[10]     Mr La Hood for the Crown accepted that there were only two bases upon which the jury may have wished to see the video again.  However, he submitted the defence did not submit to the jury that the demeanour of the complainant indicated whether or not she was telling the truth.  He said that it is clear from the Judge’s answer to the jury he was concerned with potential unfairness to the appellant if the video were replayed.   He stated the Judge’s decision was open to him in the circumstances of the case.  He said that given there was no evidence to suggest the playing of the video would have been of more assistance to the defence than the Crown, it was not capable of giving rise to a miscarriage of justice.

[11]     In relation to the trial transcript, he accepted that a preferable course would have been to give a standard direction, but the ultimate question was whether the failure to give the direction has led to any miscarriage.   He submitted that the appellant’s submissions on the impact of the non-direction are no more than speculation.   He said the request to view the video came at 11.25 a.m., following which the jury deliberated well into the evening.  He said it was fanciful to suggest

that during that time the jury would have only read the complainant’s evidence-in- chief and ignored the cross-examination.

[12]     Finally, Mr La Hood submitted that the suggestion of a miscarriage in this case was no more than speculation.

Discussion

[13]   While Ms Saunderson-Warner referred to errors in the transcript of the evidential video, she accepted she did not raise any of these with the Judge.  She was also unable to point to any of these errors as being capable of misleading the jury and causing a miscarriage of justice.

[14]     It is also clear that the central thrust of the defence submission to the jury was that the many inconsistencies in the complainant’s evidence showed she was lying. We do not accept Ms Saunderson-Warner’s submission that [44] of her closing address placed the demeanour of the complainant on the video directly in issue.  At most it made it peripheral.  The effect of that submission was that B was calm while giving recent complaint evidence, but was often tearful in the video and in Court. The submission goes on to focus on the evidence in Court by suggesting to the jury that when she spoke to the recent complaint witness she was not being challenged as she was in Court.  But neither was B being challenged in the evidential video.  We are not satisfied on the closing submissions that B’s demeanour was central to the defence case.  This approach is consistent with the approach taken by the Judge in his summing up.

[15]     There is discretion for a Judge to allow a jury to see the whole or part of a videotape of a complainant’s evidence during their deliberations if they make such a request (eg R v O [1996] 3 NZLR 295 at 298-300 (CA)). However this Court noted in R v E [2007] NZCA 404:

[46] … However, it has always been recognised that replaying the videotape can give undue emphasis to the complainant’s evidence and that it must be balanced by reading the relevant portions of the cross-examination (or replaying that evidence if it has been recorded).  It may also be necessary to read (or replay) parts of the defence evidence to achieve balance – see R v S (CA215/00) CA215/00 28 August 2000 at [12].  It is preferable also that the

Judge give a warning to the jury not to give disproportionate weight to the complainant’s evidence because of seeing it again some time after the rest of the evidence has been completed – see T v R [2006] NZSC 27 at [4]. What is necessary in the way of balancing will depend on the circumstances of the particular case – see R v S at [12].

[47]     In this case, the videotape was replayed but none of the cross- examination or defence evidence was read or replayed.  No directions were given by the Judge.  This was a major error and, by itself, would have led to the appeal being allowed.  It is true that the jury had been provided with the transcript of evidence given at the trial.  As the videotape is treated as viva voce evidence-in-chief, this should have included the transcript of the complainant’s video interview (and we are assuming it did).  The mere fact that the jury had access to the written record of the defence evidence and the cross-examination of the complainant, however, does not cure the lack of balancing material after the replaying of the video interview, particularly as the jury were not even reminded to refer to any such balancing material after seeing the complainant’s video interview again.   It would, in any event, rarely be sufficient to achieve a proper balance merely to refer the jury to the written transcript of the cross-examination.

[48]     There might even be a question as to whether the jury should have been allowed to see the videotape again at all as they had in the jury room the written record of all of the evidence given at trial (presumably, as noted above, including the transcript of the complainant’s evidential video)…

[16]     There is nothing to suggest the failure to play the video again to the jury has caused a miscarriage of justice.  In the context of a very short trial where little time has elapsed between the jury hearing the evidence in issue and the jury’s retirement, we are satisfied there is no risk of a miscarriage.

[17]     But in any event, there is another important point.  The experienced criminal counsel present during the summing up and the jury’s questions acceded to the course that the Judge took.   This factor was recognised as relevant in a similar context in R v O CA364/94 3 July 1995 at 10. While we accept senior counsel for the trial was absent for the summing up, we have no doubt that if demeanour on the evidential videotape had been central to the appellant’s case, the junior would have alerted Mr Savage to this. Another counsel may have taken a different view. But it is important to bear in mind the statement of Tipping J in the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730 (SC) at [116]:

It is appropriate to emphasise that this approach should not be regarded as giving the appellant the ability to speculate on what the outcome might have been if different tactical or other decisions had  been  made,  or different advice had been given by counsel as to the content or presentation of the defence. Nor should the appellant be able to rely on speculative points to

impugn counsel’s advice which he has accepted or acquiesced in at the time. The appellant must establish a real as opposed to a speculative risk of an unsafe verdict and must show that the impugned conduct of counsel has clearly caused that risk. If, as in this case, there was potential for both advantage and disadvantage to the appellant in a course which he claims counsel should have taken, the reality of the risk to the verdict must be assessed with both those aspects in mind.

[18]     The appellant has pointed to nothing to suggest there is any risk of an unsafe verdict from the failure to play the videotape.

[19]     In  relation  to  the  trial  transcript,  we  accept  that  it  would  have  been appropriate for the Judge to give the standard direction.   In R v Turner CA511/05

11 August 2006 this Court held:

[23] In this case the jury had been given the notes of evidence.   Counsel argued that the Judge erred in failing to direct the jury as to how they should use those notes when deliberating.

[24] A jury may or may not have regard to the notes of evidence when deliberating. It is usual that they be told, or reminded, to check cross- examination  and  re-examination  when  seeing  if  a  witness  said  anything about an issue on which the jury are interested.   The jury are told that looking at all portions of the transcript is necessary because what may be said in evidence in chief can be qualified or contradicted by what was said later, they are also told to be conscious that other witnesses may have said something about the same issue.  Desirable as this may be, it is not, however, a legal requirement.   It is a matter of practice. If there is a real risk a miscarriage of justice has occurred through an omission to remind or advise the jury along those lines then a verdict will be set aside.

[25] It would have been better for the Judge to have adopted the usual approach in directing the jury, but no miscarriage of justice could, in the circumstances of this case, possibly have arisen through him not doing so. The central issue was narrow, namely whether the Crown had proved the necessary dishonest intent on the part of the appellant.

[20]     As with Turner, this case had a narrow compass, ie was B telling the truth or not?  The evidence was extremely short, and given the length of deliberation, it is almost inevitable the entire transcript was read by the jury.

[21]     In any event, at [46] of his summing up the Judge stressed to the jury the need to balance the evidence of the complainants against the accused’s protestations of innocence in his statement (this was reinforced in answer to the jury’s request to see the video).  These were the two critical parts of evidence for them to consider.

As well, he pointed out to them the inconsistencies relied on by the defence.   In relation to the transcript, no miscarriage has been demonstrated.

[22]     Ms Saunderson-Warner submitted the cumulative effect of these two issues rendered the verdict unsafe.    Singularly, or in combination, neither point demonstrates that the verdict was unsafe.

[23]     It follows this appeal against conviction is dismissed.

Solicitors:

Aspinall Joel, Dunedin for Appellant

Crown Law Office, Wellington