R v C Ca339/02
[2002] NZCA 347
•30 October 2002 1 November 2002
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| IN THE COURT OF APPEAL OF NEW ZEALAND | CA339/02 |
THE QUEEN
V
C
| Hearing: | 30 October 2002 |
| Coram: | Blanchard J Hammond ACJ William Young J |
| Appearances: | Appellant in Person J A Farish for Crown |
Judgment: Reasons for Judgment: | 30 October 2002 1 November 2002 |
| REASONS FOR THE JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
On 30 October 2002 we refused leave to Mr C to appeal against certain pre-trial decisions and indicated that we would give our reasons in due course, which we now do.
Mr C is facing trial in the High Court at Christchurch on five charges involving sexual violations or attempts thereat or detaining with intent to have sexual intercourse (“the sexual charges”). He also faces five charges of assault on a female or of injuring her with intent (“the assault charges”). All charges involve the same complainant and relate to events said to have occurred between 15 and 28 October 2001 during which period she says she was detained by him.
The appellant has disagreed with the approach taken to his case by four lawyers successively appointed to represent him. All have sought and received leave to withdraw, although the last of them has indicated a willingness to accept an appointment as amicus curiae and has been appointed in that capacity for the purposes of the trial.
There have been several pre-trial rulings. The application for leave to appeal is in respect of two of them, namely a ruling by a High Court Judge that evidence obtained following execution of a search warrant at the appellant’s residential premises is admissible at trial (s344A of the Crimes Act 1961) and a ruling by another High Court Judge, who is to preside over the trial, giving leave to the Crown to file an amended indictment which includes the assault charges (s345D).
The search warrant
On 29 October 2001 the police obtained a warrant to search 65B Kilmarnock Street which they understood to be the appellant’s address where it is alleged by the complainant she was detained and where the various offences allegedly occurred. According to her account, and as mentioned in the application for the search warrant, the appellant had held her against her will in those premises using at various times a padlock and plastic ties to restrain or bind her. She also said he had gagged her with a sock kept in place by tying a bandanna around her head. A warrant was sought to enter the address and search for and seize these items and to carry out forensic tests.
The appellant had been arrested before any search took place. On arrest he gave his address as 65 Kilmarnock Street. But when his particulars were recorded at the police station in a property record sheet his address was stated to be 65B. That was also the address given to the police by the complainant.
The warrant was executed during the hours of darkness. The police correctly understood that the relevant flat was the downstairs flat. When the police sought to gain entry to that flat they say there was nothing to indicate the flat number and they proceeded throughout in the belief that they were entering 65B, as nominated in the warrant. It was only in the course of the following day that the police became aware that in fact the downstairs flat was 65A. The Judge observed, however, that even two months later the appellant himself was still maintaining that the address was 65B, as demonstrated by a copy of a Tenancy Tribunal application produced to the Court and bearing his signature.
The Judge found that the mistake occurred because of information provided by the complainant and the accused and that any deficiency on the face of the warrant was cured by s204 of the Summary Proceedings Act 1957. He also determined that, even if the warrant had been invalid and unlawful, the evidence of what was discovered by the search should be admissible because execution of the warrant was in the circumstances reasonable.
In his submissions to us Mr C maintained that he had not supplied the incorrect address to the police. He said that although he had signed the Tenancy Tribunal form he had probably done so when it read “65 Kilmarnock Street” and that his parents must have amended the address to read “65b”. In the absence of any evidentiary confirmation of this assertion, which on a perusal of a copy of the document could be viewed skeptically, we are not persuaded to differ from the Judge’s finding that Mr C supplied the wrong address. In any event, Mr C did not dispute that the complainant had given the police the wrong number and that a genuine mistake had been made by the police in applying for the warrant.
Mr C also submitted that the layout of the letter boxes at the front of the property ought to have alerted the police to the error in the warrant. On the basis of photographs tendered to him the Judge was not persuaded. Nor are we. Mr C mentioned to us that a representative of the landlord and, as we understood him, the landlord himself were at the premises at a relevant time but he did not suggest to us that either of those persons pointed out the mistake in the address in the warrant.
The application for the search warrant gave no description of the premises other than the incorrect street address. It did not refer to the flat being downstairs. But the mistake in the address was not the fault of the police and they had not appreciated the error when they carried out the search. In these respects, and also in relation to the adequacy of the information in the application to justify a search, the present case differs from R v Kappely [2001] 1 NZLR 7. We uphold the Judge’s decision to admit the evidence found in the appellant’s premises on the basis that the search was not unreasonable in terms of s21 of the New Zealand Bill of Rights Act 1990.
The amended indictment
The application for the filing of an amended indictment came about in the following circumstances. The appellant, through counsel, had made application under s185C(1)(b)(ii) of the Summary Proceedings Act that the complainant be required to give oral evidence and to be cross-examined at the depositions hearing then due to take place for all charges. The relevant provisions are in Part VA of the Act:
185A Application
Except as provided in section 185B of this Act, this Part of this Act applies to preliminary hearings of any of the following offences:
(a) Any offence against any of the provisions of sections 128 to 142A of the Crimes Act 1961:
(aa) Any offence against section 144A of the Crimes Act 1961:
(b) Any other offence against the person of a sexual nature:
(c) Being a party to the commission of any offence referred to in paragraph (a) or paragraph (aa) or paragraph (b) of this section:
(d) Conspiring with any person to commit any such offence.
185C Evidence of complainant
(1)Notwithstanding anything in Part 5 of this Act, at any preliminary hearing to which this Part of this Act applies, the complainant's evidence shall be given in the form of a written statement, and the complainant shall not be examined or cross-examined on that statement unless—
(a) The Court is satisfied that the complainant has been advised of the right to give evidence in the form of a written statement but nevertheless wishes to give evidence orally; or
(b)The Court orders, either of its own motion or on the application of the defendant, that the complainant's evidence be given orally on the ground—
(i) That the written statement of the complainant, together with any other evidence tendered, is not sufficient to justify putting the defendant on trial; or
(ii)That it is necessary in the interests of justice that the evidence be given orally.
The District Court declined to make the order sought by the appellant but indicated some reservation about whether s185C could apply to the assault charges. The depositions hearing was fixed for 21 March 2001. On that date it proceeded only in respect of the sexual charges. The appellant was committed for trial in the High Court on those charges. The complainant did not attend the hearing. In a judgment delivered on the same day the District Court Judge made a determination that the assault charges were not, for the purposes of s185C, offences of a sexual nature and that at a depositions hearing the complainant would need to give oral evidence in respect of them. As the prosecution had indicated a desire to judicially review his decision the Judge rejected the then defence counsel’s application for a discharge of Mr C on those charges and, instead, adjourned them.
There was then a judicial review application to the High Court. The Crown argued that the District Court Judge had erred in law or misdirected himself as to the proper interpretation and effect of ss185A and 185C(1), and in particular as to what was meant by the phrase “at any preliminary hearing to which this Part of this Act applies”. The Crown’s argument was that the Judge had erred because he had failed to appreciate that the focus of s185C(1) was on the “preliminary hearing” rather than on applying the protection given to a complainant on a charge by charge basis.
The High Court Judge considered that s185C must be given a purposive interpretation. He took the view in his reserved judgment delivered on 16 August 2002 that it meant that at any preliminary hearing where there was sexual offending, Part VA of the Act [Special Provisions Relating to Preliminary Hearings In Cases of Sexual Nature] applied notwithstanding that the preliminary hearing might also deal with some offences of a non-sexual nature. To rule otherwise would in many cases, such as the present, be artificial and defeat the very purpose that s185C was intended to ameliorate. It could not have been intended by Parliament, he said, that where an accused faced sexual and non-sexual offences in the course of a single prosecution, that two preliminary hearings should be held. The allegations in this case consisted of an ongoing series of events where a confinement for the purposes of sexual gratification was achieved by way of the violence inherent in the second series of offences. To require the complainant to give evidence on the latter at a preliminary hearing would artificially split up “the overall transaction”. Any abuse by the Crown of the provision could be safeguarded against by exercise of the discretion contained in s185C(1). The High Court made a declaration that the refusal to commit the appellant on the non-sexual charges was unlawful and invalid and a further declaration ordering that he be committed on those additional charges.
That decision was of course made in a civil proceeding under the Judicature Amendment Act 1972. It was not appealed by way of civil appeal. Mr C , however, seeks to have us, in effect, review it and we have been prepared to consider it in relation to the s345D order which followed on 27 September. (Such an order is amenable to an application to this Court by way of pre-trial appeal – see s379A(1)(cc).) On 27 September the trial Judge granted the Crown’s application for leave to file an amended indictment. In considering whether, in terms of s345D, that would be “conducive to the ends of justice” the trial Judge said that there were good reasons, referred to in the judicial review judgment, why the abbreviated indictment had been filed in the first place. Secondly, justice required that the additional counts be before the jury. They were obviously different in nature. They were discrete counts of assault, albeit of various kinds where the issue of consent would not arise. It was conceivable that a jury could take one view in relation to the earlier (sexual) counts in the indictment, where the fundamental issue would be consent, and a different view in relation to the specific assaults. There was evidence in the witness statement of the complainant to support the charges which were the subject of the further counts. We have treated Mr C ’s submissions as an application to appeal against the s345D order on the ground that the Crown should instead have been required to proceed by way of a further committal hearing on the assault charges with oral evidence from the complainant.
We are bound to say that Mr C was, understandably, rather out of his depth in endeavouring to obtain reversal of the rulings which have led to his now facing the amended indictment. He emphasised that the complainant had been required to turn up for the committal hearing and had failed to attend for cross-examination. He seemed to be unaware that the committal hearing had proceeded only in respect of the sexual charges. He would not accept that the District Court Judge had adjourned the assault charges for a further committal hearing at a later date - but subject to the result of the judicial review application - even when a passage in the judgment of 21 March 2002 making that plain was drawn by the Bench to his attention.
In agreement with the High Court, we consider that the District Court was wrong to require the complainant to give oral evidence at a depositions hearing on the assault charges. There is no doubt that the sexual charges and the assault charges arose out of a connected series of incidents. The case against the appellant is that he detained the complainant for sexual purposes over a period of almost a fortnight and that one of the means whereby he subjected her to his will was by assaulting her.
Where a single incident or series of incidents gives rise to some charges falling within s185A and some which do not, it would be extraordinary – and most unlikely to have been within the contemplation of Parliament – if either all charges were dealt with at one hearing but cross-examination was permitted only in respect of the non-sexual charges or there had to be two separate deposition hearings essentially traversing the same facts. Both courses would be entirely artificial because of the restraints which would be placed on the cross-examiner, who might not be able to put questions about non-sexual charges in their proper context. And further difficulties might well arise if the complainant did not observe the artificial separation in giving her answers. Yet the existence of the charges of a non-sexual nature would not be a proper basis for allowing the complainant to be cross-examined about the charges which did fall within s185A unless the case was one of the truly exceptional character, rarely encountered in practice, in which there was a substantial doubt about whether the complainant’s evidence on s185A matters was creditable, i.e. capable of belief (Attorney-General v District Court at Christchurch (1994) 12 CRNZ 263). To allow cross-examination generally about the incident or series of incidents where that threshold test was not met would be inconsistent with the obvious purpose of s185C, namely removing the added strain and distress which a complainant will endure if she has to give her evidence at the preliminary hearing and repeat it at the trial.
We are of the view that Parliament must be understood as intending that s185C is to apply wherever it is proper that one depositions hearing cover both matters falling within s185A and matters that do not – where, as in the present case, those matters are so connected in time and place or by other circumstances that it would not be appropriate to try to deal with them separately.
Our view is confirmed by reference to s345(1) which applies where a person is committed for trial. It permits an indictment to be filed for any charge or charges founded on the evidence disclosed in any depositions taken against that person. If therefore, in a situation such as the present, the complainant’s written statement includes reference to matters which constitute offences accompanying or having a relationship to the alleged sexual offending, it will be open to the Crown to frame an indictment which includes those offences. There will be evidence of them disclosed in the depositions which have resulted in the committal for trial on the sexual charges. The Crown could therefore file an indictment including counts framed in relation to them. Proceedings after committal are not limited or restricted by a decision under s185C(1), any more than they would be by a decision at a preliminary hearing dismissing a charge (R v Carberry [1992] 2 NZLR 184).
If there were any question that the use of the s345 procedure in a particular case was or could lead to an abuse of process, that could be addressed by an application for a stay of proceedings or under s347(1).
There is no abuse of process in the present case and no reason to suppose that the appellant has been unfairly disadvantaged by the denial of an opportunity to cross examine the complainant at a depositions hearing in relation to the assault charges. The Crown had good reason not to file an indictment including the assault charges until the High Court had determined the judicial review application. It follows that the trial Judge could therefore properly take the view that it was conducive to the ends of justice to give leave for the filing of the amended indictment.
Solicitors:
Crown Solicitor, Christchurch
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