R v C (CA395/2008)

[2009] NZCA 272

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ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSTION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

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

CA395/2008 [2009] NZCA 272

THE QUEEN

v

C (CA395/2008)

Hearing:         10 June 2009

Court:            Arnold, Priestley and Winkelmann JJ Counsel:           L Cordwell for Appellant

N P Chisnall for Crown

Judgment:      26 June 2009 at 10 am

JUDGMENT OF THE COURT

A        The appeal against convictions is allowed.

BThe nine convictions entered against the appellant in the District Court at Whangarei are quashed.

C        A retrial is ordered.

R V C (CA395/2008) CA CA395/2008 [26 June 2009]

DOrder prohibiting publication in news media or on internet or other publicly available database until final disposition of retrial.  Publication

in law report or law digest permitted.

REASONS OF THE COURT

(Given by Priestley J)

Introduction

[1]      The appellant was tried in the Whangarei District Court in May 2008.  The trial Judge was Judge K B de Ridder.

[2]      The jury convicted the appellant on all nine counts he faced.  These were six counts of sexual violation by rape (one being a representative count); two counts of sexual violation; and one count of indecent assault.   The alleged offending was against the appellant’s young step-daughter and had spanned a period of six and a half years from 1995.

[3]      In  June  2008,  the  Judge  sentenced  the  appellant  to  a  term  of  15  years imprisonment with a minimum term of nine years.

[4]      This appeal challenges both the convictions and the imposed sentence.

Appeal grounds

[5]      The appellant advances two points of appeal against his conviction:

(a)The Judge erred in his pre-trial decision on 9 May 2008 (the reasons for which were not given until 7 July 2008 some eight weeks after conviction and indeed 10 days after the appellant had been sentenced) refusing the defence application under s 44 of the Evidence Act 2006

to cross-examine the complainant on her previous sexual experience with another person.

(b)The Judge erred in failing to declare a mistrial once it was discovered that a supporter of the complainant had been talking to various members of the jury prior to their empanelment.

[6]      The  appeal  against  sentence  is  grounded  on  the  submission  that  it  is manifestly excessive.

[7]      Because we consider the second ground for the appeal against conviction is determinative we deal with it first.

Background of communication with jurors

[8]      The   trial   began   on   Monday  12   May  2008.      Defence   counsel   was

Mr N G Cooke.  Crown counsel were Mr P J Magee and Ms A L Patterson.

[9]      The risk of an irregularity was not drawn to the attention of the Judge until the afternoon of the fourth day of the trial, 15 May.  A security officer who had been on duty in the courtroom on the first day of the trial, and who had returned to security duties in the courtroom on 15 May after a two day absence, informed a member of the court staff of concerns which flowed from his observations.   As a result the Judge spoke to the security officer in his chambers.  No record was kept of that conversation.

[10]     The following morning, 16 May, which was to be the trial’s final day, the Judge  advised  counsel,  in  the  appellant’s  presence,  that  a  security  guard  had informed him he had seen one of the complainant’s supporters talking to people at the outset of the trial who had eventually been empanelled as jurors.   Mr Cooke immediately applied for a mistrial which was refused.

[11]     After counsel’s closing addresses and the Judge’s summing up, and whilst the jury was deliberating, Mr Cooke who in the interim had spoken to the security guard,

made a second application for a mistrial.  This application was in hand-written form. The Judge declined it.

[12]     No contemporaneous minutes appear to have been made by the Judge of these events.  If they were they did not form part of the court file.

[13]     Eight weeks after the trial the Judge issued a minute which was sent to counsel on 7 July 2008.  Because the minute indicates both what was done and what was not done, we replicate its relevant parts.

[1]       In the afternoon of the fourth day of this trial it was drawn to my attention that the Chubb security officer sitting behind the Accused as he was giving evidence had observed a woman sitting in the back of the Court in the company of friends and/or families of the Complainant who, in turn, was sitting alongside the Officer in Charge.

[2]       A message was passed to me that this Chubb officer recognised this woman as someone he had seen speaking with the assembled jury panel prior to Court commencing on Monday 12 May and prior to the commencement of empanelling of the jury for the trial.  He has observed this woman talking to waiting members of the jury panel.

[3]       When the jury was empanelled, three of the people that the Chubb officer had seen this woman speaking to were selected as jurors.

[4]       When  this  was  drawn  to  my  attention,  I had  the  Chubb  officer brought to my Chambers to have him confirm the message he had passed through my registrar.   He did so, and I understood that he had seen this woman speaking with the jury panel, but had not heard specifically what was said.

…

[6]       Before the trial resumed the next morning, Friday 16 May 2008, I

drew this to the attention of counsel in the presence of the Accused.

[7]       Mr  Cooke,  for the  Accused,  registered  his  objection  to  the  trial proceeding.   At that stage I considered there was insufficient evidence to justify me discontinuing the trial. In particular, I had given the jurors a clear direction before the Crown opened that they should consider only what they had heard in evidence during the course of the trial.  Furthermore, no juror had made any indication that they had been spoken to in an inappropriate way by anybody prior to the jury being empanelled.

[8]       The jury was sent out to deliberate at 1.20pm on Friday 16 May

2008.

[9]       At 7.00pm that evening, Mr Cooke, for the Accused, filed written submissions seeking to have the jury discharged.  He had been speaking with the Chubb officer after the jury had been sent out to deliberate and the

officer advised Mr Cooke that he had seen woman “A” speaking to members of the public in the gallery at the rear of the Court before the jury was empanelled.  He submitted that nothing was conclusively known of the exact statements and comments made by woman “A”, but it is “believed they concerned the guilt of the Accused of the charges yet to be tried”.

…

[11]      Belief  was  expressed  that  woman  “A”  was  a  friend  of  the

Complainant’s mother who also gave evidence in the course of the trial.

[12]     Mr Cooke submitted that as a result of this information the jury so empanelled was tainted as a result of the comments of woman “A” and the Accused would not receive a fair trial.

[14]     The Judge then referred to submissions which he had heard from counsel. Mr  Cooke,  for  his  part  stressed  there  was  no  doubt  over  the  security  officer’s (Mr Para)  ability  to  recognise  the  woman  because  of  the  likeness  she  bore  to Mr Para’s cousin.  Mr Magee, for the Crown, observed that the application made by Mr Cooke came at a time when the jury had been deliberating for over six hours.  He submitted the application was based on assertions rather than having any evidential basis.  He then followed with the surprising submission that “the accused’s position was protected by appellate rights”.

[15]     The  Judge’s  minute  finally  recorded  he  had  refused  the  application  to discharge the jury because he considered there was an insufficient evidential basis for that result.

[16]     From the Judge’s July minute the following unsatisfactory features emerged:

•   No attempt was made, either before or after the jury retired, to ascertain from the woman what she had been discussing with the jurors.

•   Neither  before  the  jury  retired  to  deliberate  nor  afterwards  was  any attempt made to ascertain from the three jurors (one quarter of the jury’s number) the nature of their discussion with the woman.

•   The assistance given to the Judge by both trial counsel was inadequate.

Neither suggested the obvious step that the Judge should make some inquiry.   Mr Cooke for his part sought the discharge of the entire jury

(both before and after they had retired to deliberate), there being no clear basis to seek that outcome.  Mr Magee for his part seems to have fallen back on the position that if anything was amiss it could be sorted out on appeal.

•   The information that the woman whom the security guard had discussed with the Judge the previous day was a supporter of the complainant, did not lead to any scrutiny of the situation.

•    There was no contemporaneous minuting.

[17]     We have received further affidavit evidence which amplifies the information available to the Judge.   The evidence fleshes out somewhat the bones of the information which the Judge had on 16 May.

[18]     Although the Crown initially opposed our receiving these affidavits, because of alleged non-compliance with r 12B with the Court of Appeal (Criminal) Rules

2001, we nonetheless, in the exercise of our discretion, consider that the affidavits ought to be received and read.

[19]     The first affidavit is from the appellant himself.   He states that the woman (whom he names) was a very good friend of his former wife, the complainant’s mother.  The former wife was a Crown witness.

[20]     The  appellant  also  deposes  that  from  where  he  was  seated  at  the  table provided for accused, he heard the woman making remarks.   These remarks were audible to the accused.  He deposes that on occasions he noticed jurors staring in her direction in the wake of the remarks.   Such remarks included “He is definitely guilty”, “He did it”, and on one occasion, in a loud whisper, a suggestion that a witness had lied in answer to a cross-examination question.

[21]     The  accused  also  deposes  that  on  one  occasion  the  Court’s  Registrar instructed the woman to be quiet whilst evidence was being given.   Whether the Judge was ever informed of this, we do not know.

[22]     Towards the end of the trial, deposes the appellant, Mr Para and another security guard, on their own initiative, asked the appellant whether he knew who the woman was, and whether she was the woman about whom Mr Para had concerns.

[23]     The appellant fails to cover in his affidavit whether he raised these matters with his counsel.  In all probability he did not.

[24]     Mr Para, the security officer who relayed his concerns to the Judge, gives evidence basically consistent with what he told the Judge on 15 May 2008.  He was sitting in the courtroom prior to the trial.  The jury panel were already sitting in the public gallery.  On that day he particularly noticed the woman sitting in the public gallery amongst the potential jurors.  He thought she must be a member of the jury panel.  Mr Para recognised this woman because of a distinct family resemblance.  He was initially under the belief the woman was in fact his cousin but later realised she was not.  Mr Para was unable to hear what the woman was saying.  He observed her, however, in deep conversation with the people sitting around her who were part of the  jury panel.    She  appeared  to  be  animated  and  the  people  around  her  were listening closely to what she had to say.  Mr Para has a distinct recollection that three of these people with whom the woman was talking were subsequently selected to serve on the appellant’s jury.  Mr Para deposes he clearly remembers that the woman continued to talk to the jurors when they were walking up to take their seat in the jury box.  Again Mr Para could not hear what she was saying but noticed that the jurors turned around to acknowledge her with a nod.

[25]     On Thursday 15 May, Mr Para returned to the Whangarei Court after escort duties elsewhere.   He noticed the same woman in the public gallery beside the accused’s former wife and the officer-in-charge of the case.  During the afternoon adjournment  Mr  Para  asked  the  appellant  to  look  at  the  woman  to  see  if  he recognised her.  He did.

[26]     As  a  result  of  his  concerns  about  what  he  had  observed  during  the empanelment process Mr Para wrote a note to the Registrar which led to him being interviewed by the Judge.

[27]     Mr Para’s recollection of the interview is that the Judge particularly asked whether he had heard anything the woman might have said to the jurors and how it was that he was able to remember her so clearly.   Mr Para does not state in his affidavit whether or not he told the Judge about his Thursday observations of the woman sitting with the complainant and the officer in charge.

[28]     Mr Para’s affidavit makes it clear that Mr Cooke did not speak to him until after  the  jury  had  retired  to  deliberate  on  16  May.     Mr  Para  describes  his conversation with Mr Cooke as occupying a limited time because he was about to escort a prisoner from Whangarei to Auckland.

[29]     Mr Cooke’s affidavit adds little information.  It appears he was unaware of the situation until the Judge informed counsel on the morning of the final day of the trial about his interview with Mr Para.  He states he immediately sought a mistrial. His second application, made whilst the jury was deliberating, was made “once I was fully aware of the seriousness of the situation having spoken briefly to the guard who the Judge had spoken to”.   Mr Cooke deposes that he was unaware of the detail contained in Mr Para’s affidavit.  Nor had the woman’s comments from the gallery during the course of the trial been brought to his attention.

Discussion

[30]     The situation facing this Court is highly unusual.  Counsel have been unable to find any authority directly related to a situation of this type.  The Judge did not have the advantage of all the information we now have.  But no inquiry was ever made of the woman or the three jurors.  As a result, what the woman said to the three jurors before they were empanelled, and what effect her words may have had on them (and possibly other members of the jury) during the jury’s deliberation, will never be known.

[31]     We have some sympathy with the Judge’s reluctance (if that is what it was) to make further inquiries once the jury had been put out to deliberate.   But well before that stage there was an opportunity to make inquiries of the woman, or the relevant jurors, or both.

[32]     Trial counsel for their part, at various stages, gave the Judge no assistance. Mr Cooke, instead of reflecting and suggesting to the Judge on the morning of

16 May that some inquiry could perhaps be made, instead immediately moved for the obliteration of the trial by discharge of the whole jury.  Mr Magee too failed to suggest that morning, as an experienced Crown Prosecutor well might, the wisdom of making appropriate inquiries.  Instead, at a later stage, he submitted that matters could be put to right on appeal.

[33]     Thus, although the Judge twice stated (see [13] above) there was insufficient evidence to justify discharging the jury, a correct assessment on the basis of what information he had, there was a failure to scrutinise the critical communications between the woman in the public gallery and the three jurors which had not been overheard and to which no one was privy other than the participants.

[34]     The communications may have been benign.  They may have been sinister. To decide between those two poles would be to speculate.   There is certainly uncontested evidence now available from both Mr Para and the appellant that the woman was partisan.   The combination of her conveying partisan views to three jurors in advance of them being empanelled, the evidence that the woman had made an impression on all three, and the possibly audible comments she had made during the course of the trial, would be more than enough to cast a shadow over the jury’s impartiality.

[35]     Mr Chisnall’s submissions referred to R v Tainui [2008] NZCA 119 and the High Court of Australia decision of Webb v The Queen (1994) 181 CLR 41. In Webb, as this Court observed in Tainui at [26] the High Court of Australia unanimously agreed that the test was the same subsequently approved by this Court in Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 in the context of bias in a civil proceeding. The test is quite simply whether a fair-minded and informed member of the public would have the reasonable apprehension or suspicion that a jury or juror would not discharge their task impartially.

[36]     On the basis of the information before the Judge and the extra information we have received, and in the absence of any evidence about what was discussed between

the woman and the three jurors, we are driven to the conclusion that a fair-minded member of the public, informed of the facts we have, would indeed entertain a reasonable apprehension that the jury could not discharge its task impartially.

[37]     We  are  fortified  in  that  conclusion  by  the  English  Court  of  Appeal’s judgment R v Blackwell [1995] 2 Cr App R 625. The test applied in that case, being that enunciated by the House of Lords in R v Gough [1993] AC 646, was the differently formulated test of whether there was a real danger of bias affecting the mind of the relevant juror or jurors. Nonetheless the critical failure in Blackwell was the same as here.  The trial judge failed to make inquiry.

[38]     The complaint in Blackwell involved a man who had been observed hovering around outside the courtroom during a drugs trial and possibly doing detective work. One of the appellants felt she had been followed by this man and that he was trying to overhear her telephone conversation.  The man had been observed walking into court with a woman juror.  Subsequently during the trial, the Judge was told that this man and the juror were going to get married.

[39]     The  trial  judge  refused  to  make  inquiries.    He  subsequently  refused  to discharge either the juror or the jury.  He was not prepared to “cross-examine” the jury.

[40]     The  Court  of  Appeal  allowed  the  appeal  on  the  ground  the  judge  had improperly exercised his discretion not to discharge the jury because he did not have the information required to make the decision.  The Court said (at 633-634):

The trial judge is the master of his court.   In our judgment if seemingly untoward events involving a member of the public occur he is entitled to question that member of the public which must almost always be in the absence of the jury, and to have the event investigated by court officials or the police.  It is important to nip such untoward events in the bud so as to prevent wasteful aborted trials and possible miscarriages of justice.

If there is any realistic suspicion that the jury or one or more members of it may have been approached or tampered with or pressurised, it is the duty of the judge to investigate the matter and probably, depending on the circumstances, the investigation will include questioning of individual jurors or even the jury as a whole.  Any such questioning must be directed to the possibility of the jury’s independence having been compromised and not the jury’s deliberations on the issues in the case.

When the judge has completed his investigations, whether relating to the activities of people outside the jury or the jury collectively or individually the judge is in a position to make an informed exercise of judicial discretion as to whether or not the trial should continue with all 12 jurors or continue after the discharge of an individual juror, or the whole jury may have to be discharged.

[41]     It was investigations of this type, necessary for the policy reasons clearly articulated by the English Court of Appeal, which did not take place here.

[42]     Had such investigations been made the Judge would have been able to make an informed decision, based on appropriate knowledge, as to whether the jurors had received communications from the woman which might have influenced them in their deliberative function.

[43]     Because  there  were  no  investigations  the  Judge  regrettably  relied  on incomplete information.  The end result is a fair minded member of the public would conclude, as have we, that there is a reasonable apprehension the jurors would not discharge their task impartially.

[44]    Additionally, without the full picture which an investigation might have provided, the perception of unfairness is strong.

[45]     In summing up to the jury, the Judge, at an early stage, reiterated a direction which he had given at the outset of the trial that they must consider only the evidence they had heard during the trial.  He gave them the standard direction that if they had heard  anything  about  “this  matter”  in  the  past  then  the  jury  had  to  put  that completely out of their minds.  The Judge, perhaps being mindful of his interview with Mr Para further directed the jury “…if you heard anything at all right up to the point where you entered the jury box, then you must completely disregard it.”  We consider that in the circumstances, however, without further inquiry of the jurors, this direction was not enough to cure the irregularity.

[46]     Thus, the appeal against conviction must be allowed on this ground and a retrial ordered.

Ground based on declining leave under s 44 of the Evidence Act 2006

[47]     It is, in the circumstances of allowing this appeal on the ground that we have, unnecessary for us to examine this ground in any detail or make a decision on it.

[48]     Leave under s 44 was sought on the understandable grounds that, during part of the period spanned by the appellant’s alleged offending against the complainant, she had also been sexually abused by another man Mr K.  This person had pleaded guilty to the offending (the complainant being one of his various victims).  The video evidential interviews given by the complainant in 2005 in respect of the offending by Mr K and the alleged offending by the appellant had taken place within a few days of each  other.    There  was  one  passage  in  the  evidential  interview  relating  to  the appellant which arguably might have related to Mr K.

[49]     Mr Cordwell prepared this ground of appeal carefully and thoroughly.   He had obtained an affidavit from a qualified clinical psychologist (Dr J M Rawls).  Her report (which we do not need to detail) dealt with aspects of memory.  The report concludes that it is quite possible the complainant’s memories incorporate “both true and false autobiographical memories and that there may be amalgamated memories of abuse by both men”.

[50]     The central issue, of course, is whether sexual abuse perpetrated by Mr K might have been mistakenly attributed by the complainant to the appellant, transference as it is sometimes called.  (See generally R v Duncan [1992] 1 NZLR

528, 535 (CA);  R v G CA62/98, 23 April 1998;  R v Brown CA394/05 22 November

2005; R v Clode [2007] NZCA 447; R v Morrice [2008] NZCA 261.)

[51]     Dr Rawls’ report was not available to the Judge.   It was prepared for this appeal.   The report was designed to lay some sort of evidential basis for the s 44 application which was lacking at trial.

[52]     Mr Cooke’s submissions, according to his affidavit, were designed to permit cross-examination of the complainant about Mr K on the very broad topics of testing

her motivation to give false evidence, testing her knowledge “of matters sexual” and to show she had quite possibly mistaken the appellant for Mr K.

[53]     It is hardly surprising, given the breadth of the leave sought, that the Judge declined the s 44 application.  His principal reason (again given on 7 July 2008, well after trial) was that from the Judge’s perception, far from there being “muddlement” between the two men, the complainant’s evidential interviews were quite specific.

[54]     In short, the Judge himself assessed the evidence, based on what he saw in the video evidential interview, in  a situation where the issue of transference or muddlement had not been put to the complainant.

[55]     Doubtless at the retrial, the basis on which any s 44 application is made and its scope can be reassessed.  For that reason we say no more on this aspect.

Appeal against sentence

[56]     The sentence imposed on the appellant falls with the convictions which will be quashed.

Result

[57]     The  appeal  against  conviction  is  allowed.    The  nine  convictions  entered against the appellant in the District Court at Whangarei are quashed.   A retrial is ordered.  There is an order prohibiting publication in news media or on the internet or other publicly available database until final disposition of retrial.  Publication in a law report or law digest is permitted.

Solicitors:

Crown Law Office, Wellington