R v Boskovic CA33/06

[2006] NZCA 519

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA33/06

THE QUEEN

v

EDIN BOZZ BOSKOVIC

Hearing:         19 October 2006

Court:            William Young P, John Hansen and Rodney Hansen JJ Counsel:       M A Lowe for Appellant

S N Haszard for Crown

Judgment:      12 December 2006         at 2.15 pm

JUDGMENT OF THE COURT

A          The appeal against conviction is dismissed.

B           The appeal against sentence is dismissed.

R V BOSKOVIC CA CA33/06  12 December 2006

REASONS OF THE COURT

(John Hansen J)

[1]      Following trial by jury in the High Court at Auckland, the appellant was convicted of sexual violation by rape.  He was found not guilty on two charges of unlawful sexual connection.  On 9 December 2005 he was sentenced by Courtney J to nine years’ imprisonment, with a four-year minimum non-parole period.

[2]      He appeals both conviction and sentence.

Background

[3]      At the time of the alleged offending the complainant was a girl aged 13 years. On 21 August 2003 she was approached by two men, one of whom, on the Crown case,  was  the  appellant.    She  travelled  to  Cornwall  Park  with  them  and  drank alcohol.  She made an arrangement to meet the men later that evening, and to effect this purpose she clandestinely left her home and met them after 10 pm.

[4]      It was then alleged that she was taken to business premises in Onehunga owned by Tuhin, the other of the two men.  There, she drank alcohol and consumed cannabis.  She alleged that she became heavily intoxicated and incoherent and was raped by both men.  She also alleged various other sexual acts.  The appellant was known to her by name, but Tuhin was not.  Her identification of Tuhin as one of the offenders was not as strong as her identification of the appellant.

[5]      At the first trial of the appellant and Tuhin, the latter led alibi evidence to the effect that he could not have been with the complainant at any stage on the evening of 21 August 2003.  He gave evidence himself.  We turn to that evidence.

[6]      A customer of Tuhin gave evidence of being in the shop with him at the time the complainant alleged she was with him and the appellant in the car on Mt Eden. There was further alibi evidence relating to the renting of videotapes from Video

Ezy.   This showed Tuhin used his account at 8 o’clock that evening, and that he would  needed  to  have  been  personally  present  at  the  premises  to  operate  that account.  There was also evidence that he had played PlayStation with his partner’s brother at his  home address  until  the early hours  of  the morning.    His  partner confirmed that she watched rented videos with Tuhin, and later saw him playing PlayStation.

[7]      At the conclusion of the first trial, Tuhin was found not guilty on all counts by the jury.  The jury was unable to reach a verdict in relation to the counts faced by the appellant.

[8]      At the second trial, counsel for the appellant sought leave to cross-examine the officer in charge of the case regarding the acquittal of  Tuhin  and  the alibi evidence adduced on his behalf.  It was the appellant’s contention that Tuhin must have been acquitted on the basis of alibi evidence notwithstanding some difficulties with the complainant’s identification of him.  Courtney J refused this application.

Grounds of appeal

[9]      Two grounds are advanced in support of the conviction appeal:

(a)The trial judge refused a defence application to cross-examine either the officer in charge or the complainant as regards Tuhin’s acquittal and the alibi evidence he led.  The defence alleged this was directly relevant to the credibility of the complainant.  (In fact, the appellant’s application at trial was limited to the officer in charge).

(b)The verdicts returned by the jury were inconsistent and show a compromised verdict.  No submissions were advanced in support of this ground and we do not need to address it.

[10]     In relation to sentence, it is said that the term of imprisonment was manifestly excessive, and the circumstances did not call for the imposition of any non-parole period.

The Judge’s ruling

[11]     The Judge’s ruling number 3 was given on 8 November 2005.  She refused leave to cross-examine the officer in charge of the case relating to the acquittal of Tuhin and the alibi evidence he called.  She found that the fact the co-accused was acquitted did not in itself bear directly on any issue in trial.   She noted it was impossible to say on what basis the jury acquitted Tuhin.   She acknowledged the alibi evidence, but said there were other differences between the respective defence cases, in particular the fact that Tuhin gave evidence.

[12]   The Judge was also critical that the application was brought after the complainant had completed her evidence.   However, she stated that even if it had been raised prior to the complainant giving evidence, her decision would have been the same.

Submissions

[13]     For the appellant Ms Lowe submitted that the critical factor in this case was the credibility and reliability of the complainant.  She submitted that the complainant had identified both the appellant and Tuhin as her assailants, and consequently the alibi evidence must have been accepted by the first jury.   She submitted this was highly relevant to the credibility and reliability of the complainant, and the second jury was entitled to have that evidence before it.

[14]     Ms Lowe submitted further that the complainant’s evidence was not accepted in its totality, leading to the accused being acquitted on two charges of unlawful sexual connection.  She submitted the jury must have had concerns about aspects of the  complainant’s  reliability  and  credibility.    She  described  the  case  as  finely

balanced, and submitted the defence was denied an opportunity to place before the jury a significant challenge to the credibility of the complainant which could have been decisive.   Ms Lowe submitted that, as a consequence, there had been a miscarriage of justice.

[15]     For the Crown, Mr Haszard submitted that the appellant’s submission was unsound  because  it  is  impossible  to  speculate  as  to  the  effect  of  Tuhin’s  alibi evidence on the verdict.  He submitted that the alibi evidence was part of the overall mix of evidence that went to the jury, and it was not possible to determine a sole reason for that verdict.  He said Tuhin had given evidence, and further, the victim had previously met the appellant and was certain of his name and identity.  She could give a detailed description of him and his clothing.    In contrast, she  could not remember, or did not know, Tuhin’s name, and could not describe him in detail. Mr Haszard submitted that although Tuhin was identified at trial by the complainant, it is possible that as a result of the vagueness of her evidence in describing him the jury considered her mistaken as to his identity.  The Crown, therefore, submitted it could not be concluded that credibility was the sole issue at the first trial.

[16]     In the course of oral submissions, the focus changed significantly.  Ms Lowe frankly conceded that she may have been in error in not attempting to cross-examine the complainant about her identification of Tuhin and what occurred at the first trial. Mr Haszard submitted that if such had occurred, the Crown would have been entitled to adduce the additional evidence relating to the identification of Tuhin, and the surrounding circumstances, effectively creating a re-run of Tuhin’s trial.   He submitted the collateral evidence rule prevented such evidence being admitted.

Discussion

[17]     The Judge said she would have refused the appellant’s application even if it had been made for the purpose of cross-examining the complainant in relation to Tuhin’s acquittal and the evidence he adduced.  The essential question in this appeal is whether or not the Judge was correct in this assessment.

[18]     While the appellant argues fairness requires that this evidence was before the jury, the Crown submits that it is collateral.  The Crown position is that essentially it is an attempt to re-litigate the Tuhin trial.   The issue of the admissibility of the evidence falls to be determined in the context of the collateral evidence rule.

[19]     As the learned editors of Cross on Evidence (looseleaf ed) note at [9.64]:

The answers given by a witness to questions put in cross-examination concerning collateral facts must be treated as final.  ‘Finality’ in this context does not mean that the cross-examination on the collateral facts must stop immediately the witness has refused to accept what is put to him or her, but rather that the calling of rebuttal or other evidence is prohibited.  A collateral fact is one that is not a fact in issue, nor relevant to a fact in issue. [Footnotes omitted.]

[20]     The rule is clearly based on the desirability of avoiding a multiplicity of issues.   While it is easy to state, it has been described as “notoriously difficult to apply” (R v H HC TIM T97/1747 14 September 1998, Young J).

[21]     In Attorney-General v Hitchcock (1847) 1 Exch 91 at 99 Pollock CB set forth a useful guide as to when a question is collateral for the purpose of the rule:

The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence – if it have such a connection with the issues, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him.

[22]     The appellant’s position relies heavily on the submission that the jury must have accepted Tuhin’s alibi evidence which, accordingly, goes to the credibility or reliability of the complainant.  With respect, we consider this significantly overstates the position.   Credibility was not the sole issue at the first trial, particularly in relation to Mr Tuhin.  There were significant differences between his position and that of the appellant, which Courtney J recognised in her ruling.

[23]     In relation to the appellant, the complainant had met him on a previous occasion and was certain of his name and clothing.  She had spent some time with him on that earlier occasion.  She was able to give a detailed description of him and

his clothing.   In contrast, she could not remember, or did not know, Mr Tuhin’s name, and could not describe him in detail.  There was also evidence of a form of admission by the appellant that sexual intercourse had occurred.  This occurred some time after the alleged offending.   The complainant and a witness, Ms Aislebie, travelled to a house where a Ms Heeps lived.  The appellant and a friend arrived.  At page 34 of the transcript, the following questions and answers are recorded:

What happened when you got to Newmarket?…. [J and M] got out of the car and were talking on the side of the road.  Edin got out of the car and then hopped in the front passenger seat and I think I said something along the lines of You cant do to 13 year olds and what he did to [the complainant]

Can you remember what you said?…. I was referring to [the complainant’s] age and… No I cant remember at all.  But what I do remember is Edin in reply said – she wanted it she opened her legs up to me

[24]     While there was some cross-examination surrounding this, it was not directly challenged by counsel.  This evidence can also be found in the complainant’s video statement at XXI of the appeal record.  The complainant was not cross-examined on this.

[25]     We consider Mr Tuhin’s acquittal takes the matter no further.  The acquittal of Mr Tuhin was not in itself relevant to the complainant’s credibility and thus could not properly be put to either the complainant or the police officer.  Furthermore, it is clear that if such questioning had been allowed of the complainant the Crown would have been entitled to address all other relevant issues pertaining to Mr Tuhin’s trial. As the Crown submitted, this would have had the tendency to lead to a re-run of Mr Tuhin’s trial even though his guilt or innocence was not an issue for the jury. What it would do is to lead to a multiplicity of irrelevant issues being placed before the jury, which the collateral evidence rule is designed to prevent.

[26]     On the other hand, a contention that the complainant had falsely identified Mr Tuhin would have been material to her credibility and could thus probably have been put.  So counsel may have been able to ask the complainant whether or not she had falsely identified Mr Tuhin on a previous occasion.   As well, the Judge may have allowed the appellant’s counsel to elicit from the complainant that there had

been a previous trial as being the occasion when this “false identification” had occurred.  If so it is likely enough that it would have come out that Mr Tuhin had been acquitted at that trial.  But the complainant would undoubtedly have denied that she had falsely identified Mr Tuhin.  And, because a challenge to her denial would, if taken to its logical conclusion, have required a re-run of the Tuhin trial, the collateral evidence rule would necessarily apply.   So, in the terms of cross-examination the matter could have gone no further.   However, even if such cross-examination had taken place it would necessarily have been the subject of a direction from the Judge in summing up.  The Judge would have been obliged to point out to the jury there had been a previous trial at which the appellant’s co-accused was acquitted.   The direction would have had to go further and say that there could well be a number of reasons for such an acquittal, and it was something the jury must not speculate about. They would have to be directed to put aside the fact of the acquittal of the co- accused at an early time and decide the guilt of the appellant only on the evidence adduced in the trial.  We have no doubt the jury would follow such a direction and ignore such evidence.  It could not assist the accused.

[27]     Accordingly, we are satisfied that the Judge was correct to rule that she would not allow cross-examination of the complainant on these issues.

[28]     It follows that the appeal against conviction must fail.

Sentence appeal submissions

[29]     By reference to R v A [1994] 2 NZLR 129, the Judge found the appropriate starting point to be one of eight years. She found the aggravating features were the age of the complainant, her level of intoxication and the effect of the offending upon her. The Judge accepted the appellant may not have known the complainant’s exact age, but was certainly aware she was still at school.

[30]     Ms Lowe submitted that nine years was manifestly excessive because the

Judge failed to take into account the fact the complainant had lied about her age and

gone willingly to meet the two men on the night in question.  She also said it was a relevant factor to take into account that the appellant had been troubled prior to this incident.  She submitted that the Judge overstated the effect of the offending on the complainant.  The appellant further submitted that the absence of serious aggravating features means a minimum non-parole period should not be imposed.

[31]     For the Crown, Mr Haszard submitted that the aggravating features identified by the Judge were significant and warranted an additional year from the starting point of eight years established by R v A.  Mr Haszard submitted that the matter at the time was governed by s 86 of the Sentencing Act 2002, and it was open to the sentencing Judge to order that the appellant serve a minimum non-parole period.  He submitted that the sentencing Judge had properly considered the relevant parameters before imposing the minimum non-parole period.

Appeal against sentence

[32]     The Judge, in reliance on R v A, took a conventional starting point of eight years’ imprisonment.  For a number of aggravating features she increased that by one year.

[33]     In reliance on the victim impact statements of the complainant, her mother, and her psychotherapist, the Judge considered that the effect of this offending on the victim was a significant aggravating feature.  Given the evidence of the difficulties faced by this complainant before this offending, we consider that this effect may well be overstated.  However, the other aggravating features of the age of the complainant and the plying with alcohol and cannabis, were such that a one-year increase was warranted.  Even although the appellant may not have been aware of her exact age, he  was  clearly  aware  she  was  a  schoolgirl.    Furthermore,  the  Judge  had  the advantage of seeing both the videotaped interview of the complainant and her evidence in Court.  She was entitled to consider the youth of the complainant as an aggravating feature in those circumstances.  The sentence imposed is not manifestly excessive.

[34]     In relation to the minimum non-parole period, the matter was governed by s 86 of the Sentencing Act 2002.  That reads:-

(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve  a  minimum  period  of  imprisonment  in  relation  to  that particular sentence.

(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a)      holding the offender accountable for the harm done to the victim and the community by the offending:

(b)      denouncing the conduct in which the offender was involved: (c)     deterring the offender or other persons from committing the

same or a similar offence:

(d)      protecting the community from the offender.

…

(4)A minimum period of imprisonment imposed under this section must not exceed the lesser of—

(a)      two-thirds of the full term of the sentence; or

(b)     10 years.

(5)For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under this section is a sentence.

[35]     In  R  v  Brown  [2002] 3 NZLR 670 at [34] this Court summarised the sentencing Judge’s tasks under the section as follows:

…  the  Judge  must  consider  whether  the  offending  itself  is  sufficiently serious so that for the offender to serve only the ordinary minimum period of one-third of the length of the sentence would not be enough to punish, deter and denounce the offending.

[36]     In R v Blackmore CA29/05 18 May 2005, this Court noted that it was a matter for judicial judgment whether the then statutory “sufficiently serious” threshold  was  crossed.    This  Court  held  there  were  two  main  parameters  in

determining the seriousness of the offence, being the culpability of the offender and the harm caused.  The test is one of culpability of an offender with the focus being on the circumstances of the offence rather than the offender.

[37]     At [15] of her sentencing notes, Her Honour considered these parameters before imposing the minimum non-parole period.  There was no error in principle in her approach to this issue, and we concur in it.

[38]     It follows that the appeal against sentence is also dismissed.

Solicitors

Crown Solicitor, Wellington