R v Campbell CA82/04

[2004] NZCA 422

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA82/04

THE QUEEN

v

JIM CAMPBELL

Hearing:         29 July 2004

Coram:William Young J John Hansen J Doogue J

Appearances: Appellant in person

B H Dickey for Crown Judgment:       5 August 2004

JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J

[1]    The appellant was convicted by a jury in the Gisborne High Court of one representative charge of raping V. He pleaded guilty to representative charges of indecent assault and inducing a girl to do an indecent act involving V, and one charge of indecent assault against K and two charges of inducing K to do an indecent act.

[2]    The appellant appeals his conviction for rape. He did not prosecute the sentence appeal.

R V CAMPBELL CA CA82/04 [5 August 2004]

Background

[3]    V and K were cousins of the appellant’s de facto partner. He was a close friend of their father often working and hunting with him. There were frequent visits between  the  two   families.   The  rapes  were  said  to  have  occurred  between    18 November 1979 and 18 November 1984 at a remote Wairoa farm where the appellant, his partner and their children lived. The complainant gave evidence of being left alone with the appellant when the indecencies and rape occurred. He would enter the bedroom, indecently assault and then rape her. This was said  to  have occurred on a number of occasions.

[4]    Ultimately she revealed the offending to her  mother  and  there  was  a family meeting involving the appellant, although V was not present. Many years later when they attended their mother’s funeral, both V and K confronted the appellant. Ultimately they made complaints that led to the charges.

The notice of appeal

[5]    The appellant lodged the notice of appeal in person. In it he indicated that he wished to call witnesses to support his appeal although he did not reveal their names and stated at that time their addresses were unknown. His grounds of appeal are contained in a long handwritten statement. The effect of that is to deny that the rape ever occurred. The thrust of the statement is to the effect that he was never alone with V as she described and that there were always so many people present in the various properties he lived in that the offending could not have occurred.

The appeal

[6]    Initially Mr Pyke, barrister of Hamilton, was assigned to the appeal. In a memorandum dated 20 July last, he stated that he had considered the matters raised by the appellant, had taken instructions from the appellant in person, by phone and by letter. He reviewed the case on appeal and the files from trial counsel. He stated that he was unable to advance any argument in support of the appeal. On 21 July,

Young J issued a Minute releasing Mr Pyke from attendance. The minute also made arrangements for the appellant to be in attendance to prosecute his appeal.

[7]    The appellant’s submission were directed only at the conviction. Essentially, his submissions consisted of a history of where he resided over the relevant period. He said he was at Wairoa between January of 1980 and November of 1983. He accepted V had stayed once. However, he submitted V never stayed with him on her own and he gave details of other people who resided with him over the relevant period.

[8]    After leaving Wairoa he went to Hamilton then to South East of Te Awamutu and returned in late November to Hamilton. He said during that time a cousin was staying with the family. In August of 1984 three of his relatives stayed and he recalled this because of an accident with pet dogs. In September the house burnt down and they stayed at a motel for three weeks.  He said in 1985 there was a  family gathering and a birthday of the two children born to his partner and another relative in January of 1980.

[9]    He submitted V’s timings were wrong and that she never went to school when she stayed with the appellant and his family. He said he had no recall of her going to school, only her brother. He said in the course of the trial none of the  people that he detailed in his submissions were mentioned. He said he had no knowledge of where the rape was alleged to have occurred. In any event, he submitted there were always too many people present for the offence to pass unnoticed.

Crown submissions

[10]   The Crown relied on written submissions filed by Mr Dickey in circumstances where it was unclear to him exactly what the appellant may submit.  In any event, the Crown submitted that the evidence that could be given by the persons referred to by the appellant was not fresh as it was available and could properly have been called at trial.

Discussion

[11]   We discern from the notice of appeal and the submissions that the appellant is advancing two grounds of appeal. Firstly, an application to adduce fresh evidence to show this offence could not have passed unnoticed. Secondly, that the verdict was unreasonable and unsupported by the evidence.

[12]   Before turning to consider these two grounds, it is appropriate to address one significant difficulty confronting the appellant’s submission. The jury saw the video interview conducted with the appellant by Detective Ingoe on 2 October 2002. In that interview the appellant admits that V was left alone with him on at least one occasion and that touching and romping occurred. He admitted that he got her to perform oral sex on him. It is also apparent from a close reading of the transcript  that in relation to a number of details relating to dates and venues the appellant himself was unclear. That is not supportive of the position he now advances. We note also that the rape count was representative. The Crown had to prove only one incident of rape between the dates set out in the indictment.

[13]   For new evidence to be considered by this Court on appeal it must be new or fresh in the sense that it was not available at trial, R v Crime Appeal (CA60/88) (1988) 3 CRNZ 512, 513. Nothing has been put before us by the appellant to establish that the evidence he seeks to adduce to support the history he gave us was not available at trial. Indeed, many of the people referred to are relatives of the accused and one can only presume he would have been able to locate them. It is apparent he would have had ample time to do so as the police interview took place in October 2002 and the trial did not take place until December of 2003.

[14]   In R v Ramage [1985] 1 NZLR 392 (CA) this Court stated at p 393 that the statutory test that a verdict is unreasonable or cannot be supported having regard to the evidence is satisfied:

… if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury …

[15]   In R v H (28/10/98) CA200/98, the Court reaffirmed the Ramage test and approved the dictum of Edwards J in R v Allendale and Bennett [1905] 25 NZLR 507 at 508:

This Court cannot interfere with the verdict of a jury in a criminal case unless it is satisfied that the verdict is such as twelve reasonable men, giving due weight to the presumption of law in favour of the prisoner’s innocent, could not properly have found. All questions of the credibility of witnesses, and, within the above limits, of the weight to be attached to their evidence, are for the determination of the jury and must be held to have been determined by their verdict.

[16]   A close reading of the evidence makes it plain that this ground is unsubstantiated. It could not possibly be said that this jury, acting reasonably, must have had a reasonable doubt as to the appellant’s guilt in the light of the evidence before it, which included the video statement we have referred to.

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

Conclusion

[18]   The notice of appeal was filed three days out of time. Leave to appeal is granted but the appeals against both conviction and sentence are dismissed.

Solicitors:

Crown Solicitor, Auckland