R v Cassidy

[2007] NZCA 573

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

1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA285/07 [2007] NZCA 573

THE QUEEN

v

ANDREW ROBERT CASSIDY

Hearing:         8 October 2007

Court:            Arnold, Ronald Young and Fogarty JJ Counsel:          P L Borich for Appellant

M D Downs for Crown

Judgment:      13 December 2007         at 11.30 am

JUDGMENT OF THE COURT

A        The appeal is allowed in part.

BWe quash the convictions on the three attempted sexual violation and six sexual violation counts and substitute convictions for indecent assault (s 140A(1)(a) of the Crimes Act 1961) for the sexual violation convictions

on counts 8, 9, 11 and 12.

R V CASSIDY CA CA285/07  13 December 2007

CWe direct that a further hearing as to sentence be scheduled as soon as possible in  this  Court.    The appellant  will  remain  in  custody  in  the meantime.

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

Para No.

Introduction  [1] Background  [3] Basis of appeal     [7] Good character direction  [8] Direction on motive to lie  [11] Treatment of evidence of complainant’s mother  [24] Directions on attempt  [30] Insufficient answer to jury’s question  [40] Failure to call potential witness  [43] Mode of evidence  [46] Conclusion  [51] Decision  [65]

Introduction

[1]      Following a jury trial in the High Court before Harrison J the appellant was convicted on three counts of indecent assault on a boy aged between 12 and 16, one count of committing an indecent act upon a young person, three counts of attempted sexual violation and six counts of sexual violation (three involving anal penetration and three involving oral sexual  activity).    All  counts  were  representative.    The complainant was the appellant’s second cousin and the offending was alleged to have taken place over a three year period (early 2003 – early 2006) when the complainant was between 13 and 15 years of age and the appellant was between 19 and 22.

Background

[3]      The complainant and the appellant lived for a period with the complainant’s aunt.  The complainant said that he awoke one night to find the appellant touching his “private parts” while masturbating himself.   The complainant pretended to be asleep.  This happened on four or five occasions.  According to the complainant, the appellant told him that this behaviour was acceptable because they were cousins.

[4]      The  complainant  then  returned  to  live  with  his  mother  but  often  spent weekends and other periods at his cousin X’s house.  (X is the appellant’s brother.) The complainant said that at X’s place the appellant tried to, and sometimes did, have anal intercourse with him, generally while they were “stoned” after taking drugs.   The drug involved was marijuana on all but one occasion, when it was methamphetamine.  The complainant also said that on some occasions the appellant made him suck the appellant’s testicles.

[5]      Eventually, the complainant said, he told the appellant to leave him alone. He said that the appellant constantly followed  him  and  said  that  he  would  kill himself if the complainant did not go away with him.  The appellant also wrote the complainant  a  letter  which  could  be  interpreted  as  a  love  letter,  although  the appellant  said  that  it  was  simply a letter  between  two  cousins  who  were  close friends.   According to the account which the appellant gave in his video interview with the police, this letter fell out of his pocket and was found by the complainant’s mother.

[6]      The  appellant  denied  that  any  sexual  conduct  occurred  between  the complainant and himself.   He said that the complainant had manufactured the allegations to deflect his mother’s attention from him in relation to his own use of drugs.

[7]      Mr  Borich,  who  was  not  trial  counsel,  argued  that  there  had  been  a miscarriage of justice on seven grounds:

(a)The Judge failed to give a “good character” direction in his summing up;

(b)The Judge had not given a sufficient direction on the question of motive to lie;

(c)       The  Judge  had  not  dealt  adequately  with  the  evidence  of  the complainant’s mother;

(d)The Judge’s directions in relation to the elements of attempted sexual violation were inadequate;

(e)       The Judge had not sufficiently answered a question from the jury; (f)           The fact that certain potential witnesses were not called;

(g)       The way in which the complainant gave evidence and the absence of judicial direction.

We deal with each ground in turn.

Good character direction

[8]      Mr Borich argued that the Judge should have given a good character direction because the appellant had no previous convictions.   He pointed out that the Judge had initially indicated in Minute No. 1 of 5 March 2007 that he would give a “firm” good  character  direction  but  had  later  changed  his  mind.    In  Minute  No.  6  of

6 March 2007 the Judge said:

[2]       [The appellant’s trial counsel] accepts that I cannot give a good character direction here because although [the appellant] has no previous convictions he has admitted to Detective Knowsley that he frequently used controlled drugs; indeed, he said that he had a habit.

[9]      Mr   Borich   argued   that   the   appellant’s   admitted   drug   use   did   not disentitle him to a good character direction.  He accepted that in R v Falealili [1996]

3 NZLR 664 this Court said (at 667) that the mere fact that an accused had no previous convictions did not mean that he or she was entitled to a good character direction. He said nevertheless that such a direction should have been given, and invited us to reconsider the decision in Falealili.

[10]     We reject Mr Borich’s submission for three reasons:

(a)      Falealili was a decision of a Full Bench of this Court given 11 years ago.     In  light  of  this  Court’s  decision  in  R  v  Chilton  [2006]

2 NZLR 341, there is no proper basis on which we, as a

Divisional Court, could reconsider it;

(b)In any event, we agree with Harrison J that the appellant’s admission that  he  was  an  habitual  user  of  controlled  drugs,  contrary  to  the Misuse of Drugs Act 1975, meant that a good character direction could not properly be given;

(c)      As is recorded in Minute No. 6, the appellant’s trial counsel accepted that a good character direction could not properly be given.

Direction on motive to lie

[11]     During his video interview with the police, the appellant was questioned about what motive the complainant might have for making a false allegation against him.   The questioning on this topic covered two pages of the video interview transcript, which is slightly over 34 pages in total.

[12]     Counsel for the Crown also referred to motive to lie in closing.   She said, after referring to aspects of the complainant’s evidence:

It’s a matter for you members of the jury, but hardly the type of answers you would expect from a boy who has made up the allegations contained in the indictment.   [The appellant] denies any wrongdoing members of the jury, and so by analogy [the complainant] must have made them all up – in other words he is lying.  He went to the police station and made a video interview and now he has come along to this Court and put himself through all this, for what, for the sole purpose of lying to you?  Ask yourselves, what point is there in that?  [The appellant] may suggest to you he is lying because he got busted by his mother for taking drugs….

[13]     Given the police questioning and  Crown  counsel’s  comments  in  closing, Mr Borich submitted that a firm direction from the Judge in relation to motive to lie was required.   He relied in particular on this Court’s decision in R v T [1998]

2 NZLR 257.

[14]     In that case, this Court accepted that questioning of an accused about whether he knew of  any reason why the  complainant would lie was acceptable, as was comment by prosecuting counsel on the  absence of  any credible reason for the complainant to lie.  However, the Court went on to say (at 265-6):

We accept that the proposition “Why would the complainant lie?” should not be presented in a way which would deflect or distract the jury from the central issue, whether the Crown had proved the charge and each element of the charge beyond reasonable doubt.  Nor should any suggestion be allowed that there was an onus on the accused to advance a credible answer. Generally, the trial Judge would be required to intervene firmly if these principles were infringed.  And without wishing to burden Judges with yet another topic which must be covered in summing up, in any case where the prosecution had sought to bolster the complainant’s credibility by reference to the absence of a motive to lie, the charge to the jury needs to be clear that regardless of the absence of evidence of motive, the onus of proof remains on the Crown throughout.

[15]     To evaluate this ground of appeal, we need to say more about the appellant’s case at trial.  The appellant did not give evidence but relied on his video interview with  the  police.    His  case  was  that  none  of  the  sexual  activity  alleged  by the complainant took place and that the complainant had fabricated the story when his mother had confronted him over his drug use as means of deflecting her attention from that.  The appellant’s trial counsel put these contentions to the complainant in cross-examination.

[16]     In summarising the appellant’s case, the Judge referred to various factors which the appellant said showed that the complainant was not a truthful or reliable witness.  The Judge said (at [38]):

[Trial counsel] says that [the complainant] had a motive to lie.   It arose because his mother confronted him over the use of methamphetamine. Essentially [the appellant] became a convenient stool pigeon and he was able to use that to deflect blame from himself for his own serious misconduct.

Later the Judge said:

[42]     Second,   [trial   counsel]   validly   makes   the   point   that   [the complainant] did not complain at any stage after the alleged offending occurred from 2003 to 2006.  It only arose in answer to a question from his mother in March 2006.   As I have said, [trial counsel] portrays that as an attempt to fabricate a story and extricate himself from serious trouble.  Well, again the fact that he did not complain over those three years is a factor for you to take into account.

[17]     The present case is unlike R v T in that here the appellant contended strongly that the complainant had a motive to lie.  In other words, at trial the defence pursued the issue of the complainant’s motive to lie more strongly than the Crown (to the extent that the Crown pursued it at all).  The question is whether, in the face of this, the Judge should have given a specific direction in his summing up.

[18]     This Court addressed this issue in R v Prattley CA42/04 3 August 2004. Mr Prattley had been convicted on one count of sexual violation and five counts of indecent assault.   When he was interviewed by the police, Mr Prattley was asked why the complainant would make false allegations about him.  Mr Prattley gave a lengthy answer to the question and the police interviewer moved on.   At trial, the question of the complainant’s motivation was pursued by the defence rather than the Crown.  When addressing the question of the complainant’s credibility in summing up the Judge said:

[52]      As to this question of motive, there is no obligation on the defence to prove motive nor indeed is there an obligation on the Crown to show that there is not any motive but you are entitled to consider whether there is a motive for [the complainant] to make up such a long detailed account of sexual  abuse.    The  motive  suggested  there  is  a  growing  hatred  of  Mr Prattley.  She did not welcome him at first, then she tolerated him, then her mother’s relationship with him broke up and that made her cross because it made her mother unhappy, then the police seemed to side with Mr Prattley and she was told off for abusing him but nothing much happened to him

when she complained of him hitting her.  This, [trial counsel] said, made her, and I use his words, “hopping mad” and so she goes for the “big hit” of an allegation of sexual abuse.

[53]      Well you should consider whether those circumstances provide any or sufficient credible motive to lie about abuse and the details she described.

[19]     It was argued for the appellant on appeal that the Judge was required to “clearly and explicitly remind the jury that regardless of the evidence of motive, the onus of proof remained on the Crown throughout.”

[20]     This Court did not accept that submission.  The Court said:

[24]     We have considered whether anything arose in the present trial to deflect the jury from the central question whether the Crown had proved its case. The Crown did not focus on an absence of motive as can sometimes be the case.   Rather, the defence pursued the theme that a motive to lie did exist.  It seems to us that [the appellant’s counsel], in effect, contended for an extension to the principle in R v T, namely, that if an accused through counsel asserts that a complainant did have a motive to lie, the jury should be  warned  that  its  rejection  of  that  proposition  does  not  affect  the fundamental onus of proof resting on the Crown.

[25]     We  do  not  read  the  judgment  in  R  v  T  as  authority  for  that proposition.   It is not necessary for the purposes of this case to consider whether circumstances could arise in which such a direction was necessary. Here, the Judge began by instructing the jury that there was no obligation on the defence to establish its contention of a motive to lie.   That direction, coupled with the earlier standard directions concerning the onus of proof, in our view, was as much as was required in the present case.

[21]     Returning to this case, as we have said, when summarising the appellant’s case Harrison J said that the appellant contended that the complainant had a motive to lie.   The Judge did not say in  that  context  that  the  appellant  was  under  no obligation to establish such a motive and that the burden remained on the Crown throughout to prove, beyond a reasonable doubt, that the appellant had committed the conduct alleged against him.

[22]     However, it is clear that through the course of the trial the Judge repeatedly emphasised  to  the  jury  that  the  burden  of  proof  remained  on  the  Crown.    In particular:

(a)       In his opening remarks to the jury prior to the commencement of the case the Judge said:

[12]     …. There is one thing I want to emphasise to you now.  An accused person, like [the appellant], is not under any obligation in law to go into the witness box and give evidence.  He does not have to say anything at all.   Nor does he have to call witnesses in his defence.

[13]      Some of you may think that is unusual but on reflection there is a very good reason for it.  It is because the Crown has the burden, as we call it, of proving a charge or charges beyond reasonable doubt.   [The appellant] does not have to prove his innocence.  The Crown brings the charges.  The Crown must prove them.    So  there  would  be  nothing  unusual  or  adverse  if  [the appellant] elected not to give evidence or call witnesses.  That is his right in law….

(b)When the Crown case concluded, the appellant elected not to give or call evidence.  At that point, the Judge said:

Mr Foreman members of the jury I remind you of what I told you yesterday morning.  An accused person such as [the appellant] has no  obligation  to  give  evidence  in  his  own  defence  or  to  call witnesses.  That is because the Crown has the burden of proving its case  against  him;  by  that  I  mean  every  element  of  a  particular charge.  He has acted in accordance with his legal rights.  You must not read anything adverse into his decision.

(c)       When he summed up to the jury the Judge said at the outset that:

(i)The Crown case depended on whether the jury considered that the complainant was a credible and reliable witness.   If the jury were left in a reasonable doubt about his truthfulness or reliability, they had to acquit.

(ii)The burden of proof was on the Crown and remained on the Crown throughout.   The appellant did not have to prove his innocence.  He said that the existence of that burden was the reason he had “… emphasised to you twice in the last two days [that the appellant] was under no obligation to give evidence or call witnesses in his defence”.

(iii)The standard of proof was a high one.  The Judge said that the jury had to be sure that the appellant was guilty and went on to describe the concept of reasonable doubt.  He said:

A reasonable doubt is an honest and reasonable uncertainty left in your minds about [the appellant’s] guilt after you have given fair, careful and objective consideration to all the evidence.

(d)In addressing the jury on the ingredients of the charges and on their representative nature, the Judge again emphasised the need for the Crown to establish its case beyond a reasonable doubt.

(e)       Finally, at the conclusion of the summing up, the Judge said:

[46]     …. I repeat what I emphasised time and again during this summing-up.  The Crown has the burden of proof on a charge.   It must prove beyond reasonable doubt – that is, leave you sure – all the elements of a charge before you can convict [the appellant].  If it satisfies that threshold then you have a duty to bring back verdicts of guilty.   If it does not, if you are left in a state of reasonable uncertainty, then you must acquit [the appellant].

[23]     As this Court recognised in R v T, the question of motive to lie can be a powerful influence on the assessment of credibility especially in cases where there is little evidence other than the complainant’s word against that of the accused.   We consider that it would have been desirable for the Judge to direct the jury that although the appellant had alleged the complainant had a strong motive to lie, that did not affect the burden of proof.   Despite that, given the Judge’s repeated and strongly worded directions that the appellant had no obligation to prove anything and that the burden remained on the Crown throughout, we do not consider that there is any risk that the jury would have misunderstood the position.  Accordingly we reject this ground of appeal.

Treatment of evidence of complainant’s mother

[24]   The complainant’s mother gave evidence that in January 2006 she had confronted the complainant over his drug use and then, a few days later, about whether he was having a sexual relationship with the appellant.   She said that the complainant responded on the first occasion that the appellant had provided him with methamphetamine and admitted on the second that they were having a sexual relationship.   She said that the complainant had said that the appellant would not

leave  him  alone  and  threatened  suicide  if  he  told  anyone  what  was  occurring between them.  She said that she complained to the police and arranged for a trespass notice and then a restraining order against the appellant.

[25]     The Crown had opened on the basis that it would be leading the evidence of the complainant’s mother about what the complainant had said to her as recent complaint evidence.  The Judge ruled that this was not recent complaint evidence. He said:

In opening [counsel for the Crown] introduced [the complainant’s mother’s] evidence as that of recent complaint.   I am not satisfied that it meets that legal requirement.  Accordingly, I will not be giving the standard direction of consistency between an earlier statement and what was said in evidence- in-chief.   However, given that [the appellant’s counsel] will rely on [the complainant’s mother’s] evidence to support the defence of motive for fabrication, it will be a relevant factor for the jury when considering the various reasons for [the complainant’s] failure to complain at the earliest opportunity; that is, sometime early in 2003.

[26]     Mr Borich accepted that the appellant’s trial counsel did not object to the mother’s evidence for tactical reasons.  It was an important plank of the defence’s “motive to lie” submission.  But Mr Borich complained that the Judge did not direct the jury that the complainant’s statements to his mother were not evidence of the truth of what he said.   He also said that the Judge had failed to put the defence position in relation to these discussions correctly (ie, that the complainant fabricated the allegations to deflect attention from himself).

[27]     As to the first of these complaints, the Judge did, in our view, sufficiently address the position.  He said:

[44]     I also emphasise that what [the complainant] said to his mother in March 2006 is not evidence.  It does not prove the truthfulness or otherwise of what he says happened in the previous three years.   All it is, from the defence point of view, is evidence of a convenient explanation for his drug use.

[28]     Mr Borich said that this was misleading because the Judge referred to a discussion in March 2006 whereas the evidence was that the discussion occurred in January 2006.  There is nothing in this point.  The only evidence of any discussion between the complainant and his mother about what had happened with the appellant

over the preceding three years was the discussion in January 2006.  The precise date of the discussion was not the focus of attention.  The jury could not possibly have misunderstood what the Judge was saying.

[29]     As to the second of these complaints, the Judge did explicitly summarise for the  jury  the  appellant’s  submission  that  the  complainant  had  fabricated  the allegations to deflect his mother’s attention from his own position (at [38] and [42] of the summing up).  So there is nothing in this complaint either.

Directions on attempt

[30]     Mr Borich argued that the Judge’s directions in relation to the three counts of attempted sexual violation were inadequate.   Mr Borich said that there were three things which the Crown had to prove to succeed on the attempt counts.  They were:

(a)       An    attempted   placement    of    the    appellant’s    penis    into    the complainant’s anus;

(b)       Without the complainant’s consent;

(c)In circumstances where the appellant did not believe on reasonable grounds that the complainant was consenting.

Mr Borich said that the Judge’s directions did not address the second and third points.  He relied on the decision of the Supreme Court in R v L [2006] 3 NZLR 291.

[31]     In addition to the summing up, the Judge provided the jury with several issues sheets.  Issues sheet 2 dealt with attempted sexual violation and issues sheet 3 with sexual violation.  They read:

ISSUES SHEET 2

Counts 5, 6 & 7 : Attempted Sexual Violation

Has the Crown proven beyond reasonable doubt that:

(1)      [The appellant] formed an intention to commit the crime of sexual violation?

If so Æ (2)  If not = acquit

(2)        [The appellant] did the acts alleged (attempting to place his penis in [the complainant’s] rectum)?

If so Æ (3)  If not = acquit

(3)      The act was for the purpose of carrying that intention into effect?

If so = convict  If not = acquit

ISSUES SHEET 3

Counts 8-13 : Sexual Violation

Has the Crown proven beyond reasonable doubt that:

(1)[The appellant] had sexual connection with [the complainant] in that he introduced his penis into [the complainant’s] anus (counts 8, 9 and  10)  or  by  connecting  his  genitalia  with  [the  complainant’s] mouth (counts 11, 12 and 13)?

If so Æ (2)  If not = acquit

(2)       The  introduction occurred without [the  complainant’s] consent (that  is, without his agreement, given on a free, informed and voluntary basis)?

If not Æ (3)  If so = acquit

(3)The  introduction  occurred  without  a  reasonable  belief  on  [the appellant’s] part that [the complainant] was consenting?

If so = convict  If not = acquit

[32]     The Judge addressed the issues sheets in the summing up.  He said

[30]     Issues sheet 2 – this covers the counts of attempted sexual violation,

5, 6 and 7. You ask yourselves these three questions.  First, has the Crown

proven beyond reasonable doubt that [the appellant] formed an intention to commit the crime of sexual violation on a particular occasion, again if you find that it occurred?  If so, you go to question 2; if not, you acquit.  Second, has the Crown proven beyond reasonable doubt that [the appellant] did the acts alleged in this case, in fact all three counts - attempting to place his penis in [the complainant’s] anus?  If you find that, you go to 3; if not, you acquit.  Third, you inquire was the act for the purpose of carrying out that intention?   Again straightforward.   If it was, if you are sure it was, you convict; if not, you must acquit.

[31]     Issues sheet 3 – these are counts 8 to 13 of sexual violation.  Again you ask yourselves three questions.   First, has the Crown proven beyond reasonable doubt that [the appellant] had sexual connection with [the complainant] in that he introduced his penis into [the complainant’s] anus – that is counts 8, 9 and 10 – or by connecting his genitalia with [the complainant’s] mouth – that is counts 11, 12 and 13?  If so, if you find that as a fact, you go to question 2; if not, if you are satisfied the fact did not occur, that is if you are not satisfied beyond reasonable doubt it did occur, then you acquit.

[32]     Second, has the Crown proven beyond reasonable doubt that the introduction occurred without [the complainant’s] consent; that is, without his agreement given on a free, informed and voluntary basis?  He said that he was not consenting.   Again you would have to find that the act occurred before you got to this stage.  If not, you go to 3; if so, you acquit.  A slightly different order from other questions.

[33]     Third,   are   you   satisfied   beyond   reasonable   doubt   that   the introduction occurred without a reasonable belief on [the appellant’s] part that [the complainant] was consenting?  If so, you convict; if not, you must acquit.

[33]     Later in the summing up the Judge said that he wished to draw the jury’s attention to some important factors.  Among them was the following:

[45]      Fourth  and  finally,  and  this  relates  to  counts  1  to  4  [the  three indecent assault on a person between 12 and 16 counts and the indecent assault on a young person count], the fact that [the complainant] may have gone back willingly to an address and may have on that account consented to some of the conduct is not a defence to counts 1-4.  Consent does not arise when you are considering charges against a man who allegedly indecently assaulted another male under 16 years of age.

[34]     In referring to “an intention to commit the crime of sexual violation” in the first requirement identified in issues sheet 2, the Judge followed the language of s 72 of the Crimes Act 1961.  It may be that the Judge considered that the elements of lack of consent and lack of reasonable belief in consent in relation to the attempts were incorporated by means of that requirement.

[35]     However, the Supreme Court held in L that the jury should be instructed on the need for the Crown to establish a lack of consent and of reasonable belief in consent on an attempted sexual violation charge, even though the primary defence was that the conduct alleged had not occurred.  Tipping J, delivering the judgment of himself, Elias CJ, Blanchard and McGrath JJ, said:

[25]      Using a conventional case of attempted sexual violation by rape as an example, the Crown must prove: (1) that the accused tried to penetrate the complainant’s genitalia with his penis; (2) that the complainant did not consent to the intended penetration; and (3) that the accused did not believe on reasonable grounds that the complainant consented to the intended penetration.

[36]     Tipping J went on to say:

[40]      …. The appellant’s conduct, as it must have been found by the jury, was in law sufficiently proximate.  The problem is that the jury could well have been left with the impression that a sufficiently proximate act was enough to constitute guilt of an attempt.  Although the focus at trial was not on the mental ingredients, the jury still had to be satisfied they were established, and the Judge could have been understood by the jury as telling them either that they were established or that they did not arise.

[41]      This is unfortunately an example of an unnecessarily complicated and elaborate summing-up.   If proximity was not established [the attempt] count should have been withdrawn from the jury on the basis that there was not enough evidence to convict.  If, as here, proximity was established as a matter of law, the Judge need not have mentioned the issue to the jury at all. The only issue for them on that aspect would then have been whether the conduct alleged did in fact occur.   But, in addition, the jury had to be satisfied that the Crown had established lack of consent on the part of the complainant and, perhaps more importantly in this case, lack of belief in consent on reasonable grounds on the part of the appellant.   That latter point was still a necessary matter for the jury’s consideration, and for their determination, even though the primary defence was that the conduct alleged had not occurred.  All in all we are not satisfied that a conviction entered following this summing-up can properly stand.

(Emphasis added.)

[37]     In the present case, the Judge did not direct the jury that the Crown had to show (in relation to the attempt counts) that the complainant did not consent to the intended penetration and the accused did not believe on reasonable grounds that the complainant consented.  At best, what the Judge said at [45] of his summing up (see [33] above) may have carried the inference that, in respect of the attempt and full offence counts, lack of consent and lack of reasonable belief in consent had to be

established.  Even though lack of consent or reasonable belief in consent played no part in the trial given that the defence was that the complainant had fabricated the allegations, the jury had to be satisfied as to those aspects before they could convict and should have been so instructed.

[38]     This problem is compounded by an error in the issue sheet and in the Judge’s instructions in relation to the sexual violation offences.  This error was not noticed by trial counsel or by counsel on the appeal.  The decision options at point (2) of issues sheet 3 are the wrong way round.  This error is repeated at [32] of the Judge’s instructions to the jury (see [32] above).  The literal effect of the issues sheet and of the Judge’s instructions was that if there was a reasonable doubt about whether the sexual connection had occurred without the complainant’s consent, the jury should not acquit but go on to consider whether the appellant had a reasonable belief that the complainant had consented.  If they were satisfied that he had no such reasonable belief, they could convict.  By contrast, if the jury was satisfied that the Crown had proved beyond a reasonable doubt that the complainant did not consent, they should acquit.  Manifestly, this is an error of law.

[39]     We consider the effect of these errors below at [51] and following.

Insufficient answer to jury’s question

[40]     After  they  had  been  deliberating  for  some  time,  the  jury  asked  some questions of the Judge.  The Judge dealt with them as follows:

[47]Mr Foreman, members of the jury, you have sent me three questions: [a]    We would like to know when the letter was found in relation

to  [the  complainant’s]  mother  confronting  him  about  the relationship?

[b]Did  the  letter lead  to  the  mother  bringing up  the  sexual relationship?

[c]      Was it found before or after the trespass notice?

[48]     I have discussed these questions with counsel.  With respect to you, they are utterly irrelevant to your inquiry.  The only relevant facts are that the letter was sent by [the appellant] to [the complainant] and that it was produced for his commentary during the interview.   Otherwise it has no

materiality in this case at all.   It does not matter, for example, when the mother came into possession.  There is no evidence on that point at all.  I repeat it is irrelevant to your considerations.   I suggest that you confine yourselves to the evidence in the case.  Speculation outside of that will not assist you. Thank you very much.

[41]     Mr Borich submitted that, contrary to  the Judge’s  statement,  the matters raised by the jury were relevant and important to the appellant’s case.  He said that the matters were relevant given the appellant’s argument that the complainant’s allegations arose out of his confrontation with his mother about his drug use.   He said that the jury should have been told that the letter was capable of supporting the defence whether it was found before or after the complainant’s initial disclosure to his mother.

[42]     We reject this submission.  First, the evidence at trial did not establish exactly when the complainant’s mother found the letter.  She was not cross-examined on this topic.   Accordingly, it is difficult to see that the Judge could have said anything about the timing.  Second, trial counsel does not seem to have felt any concern about this point.   In particular, he did not express any concern to the Judge about his answer to the jury.  As there is no claim that he acted incompetently or in breach of his instructions, we see no basis on which this submission can succeed.

Failure to call potential witnesses

[43]     In his evidence the complainant referred to several people who did not give evidence at trial but who seemed to have been present during some of the alleged offending.   Counsel for the Crown sought to lead evidence from a detective as to interviews he had conducted with potential witnesses.  The Judge became concerned about this and asked to see counsel in chambers.   As a result he issued a minute which said in part:

[3]       [The appellant’s trial counsel] confirms that in closing he intends to refer in support of [the appellant’s] defence to the Crown’s failure to call witnesses of these events.  On this basis he does not object to the evidence being lead from [the detective] of his inquiries of [the potential witnesses]. However, the questioning is to be no wider and is not to refer to other individuals.

The Judge later  enforced the limitation referred to in this minute, following an objection from the appellant’s trial counsel.

[44]      Mr Borich submitted that the overall effect of the evidence was confusing and may have led the jury to speculate as to why witnesses were not called and what they might say if they had been called.  He said that the Judge should have given a clear and firm direction to the jury to counter this.

[45]     We reject these submissions for two reasons.  First, the Judge made it clear in his opening remarks to the jury that they should not reach any judgment until they had heard all the evidence and the addresses of counsel.  He then emphasised that the jury should  make  its  decision  solely on  the  basis  of  the  evidence  heard  in  the courtroom.  In his summing up the Judge reminded the jury of this by saying that they were “the sole judges of fact based on the evidence [they had] heard in [the] Court”.  Second, the appellant’s trial counsel did not object to the references to the other potential witnesses although he did object when the Crown sought to go further and elicit evidence from the detective about what the potential witnesses had said to him.   Trial counsel took this approach because he considered that, tactically, it assisted the defence if he could submit that there were other potential witnesses whom the Crown had not called.   There is no allegation that trial counsel was incompetent in making this assessment or that he failed to follow instructions. Accordingly we see no merit in this ground.

Mode of evidence

[46]     Prior to trial the Crown applied for orders that the complainant give his evidence-in-chief by way of a videotaped interview  which was produced  at  the preliminary hearing and that his cross-examination take place from behind a screen so that the appellant could see him but he could not see the appellant.  The appellant objected  to  the  first  order  but  consented  to  the  second.    In  a  judgment  dated

27 February 2007, the Judge made both orders.

[47]     During the playing of the video interview, the complainant became distressed and counsel for the Crown sought a short adjournment.   The Judge addressed the position in Minute No. 2 of 5 March 2007.  He said:

[1]       At 12.50pm [Crown counsel] sought a break in the playing of the video interview which had started 20 minutes earlier.  As she anticipated, the complainant’s support person indicated to [Crown counsel] that the complainant was in a state of distress, bordering on dissociation, and needed an adjournment.

[2]       [The appellant’s trial counsel] has expressed his concern if there is a future break or adjournment pattern dictated by the support person and the complainant.  He fears it will create an impression with the jury that playing the video is simply overwhelming for the complainant, conveying an additional message that the interview should be believed in its entirety.

[3]       I understand [counsel’s] concern.  In future, with [Crown counsel’s] consent, I will call a break either in the videoed evidence-in-chief or in cross-examination every 15 minutes.

[48]     The complainant’s evidence then proceeded, with five minute breaks being taken initially at 15 minute intervals and later, as the complainant became more familiar with the court setting, at slightly longer intervals.

[49]     Mr Borich submitted that this process was unfair to the appellant because it exposed the jury to emotional displays by the complainant and that closed circuit television should have been used for the cross-examination.  Mr Borich accepted that this would not be sufficient on its own to create a miscarriage of justice, but said that, taken in conjunction with the other matters which he had raised, it meant that there had been a miscarriage of justice.

[50]     We reject this submission.   The appellant did not object to the use of the screen.   His counsel did express concern about the taking of breaks when the complainant became distressed.  The Judge shared that concern and put in place the system of automatic breaks every 15 minutes to combat that.  In his report under r 17 of the Court of Appeal (Criminal) Rules 2001, the Judge said that after the first break, the complainant did not show “positive signs of emotion or hang his head unduly”.   He said that the complainant “looked subdued, nervous and serious throughout, and avoided eye contact (a standard reaction from young Maori and Pacific Island males), but did not appear distressed”.   The Judge said that he was

satisfied that the process adopted “ensured that [the complainant’s] appearance in the witness box did not deteriorate to a state where it might unfairly influence the jury”.

Conclusion

[51]     We have found that the Judge erred in failing to instruct the jury on the attempt charges in accordance with the requirements set out in L and that he inadvertently transposed the decision options at point (2) of issues sheet 3.   Both errors concerned the need for the Crown to establish absence of consent on the part of the complainant and of a reasonable belief in consent on the part of the appellant (the consent issues).   The question now arises as to whether, as a consequence of these errors, there has been a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act.

[52]     On that the Court is divided.  In summary, we all agree that the convictions for attempted sexual violation should be quashed.  The majority (Arnold and Ronald Young JJ) consider that the sexual violation convictions should also be quashed. The  minority  (Fogarty  J)  considers  that  there  was  no  miscarriage  of  justice  in relation to the sexual violation convictions and that they should stand.  Further, we all agree that the convictions on the three indecent assault counts and the indecent act count are not affected and must stand.

[53]   The indecent assault/indecent act, attempted sexual violation and sexual violation charges in this case were all representative.   They covered three distinct periods   –   1 January   2003   to   31   December   2003,   1   January   2004   to

31 December 2004 and 1 January 2005 to 28 February 2006.  In relation to the first two of those periods there was one count of indecent assault on a young person between 12 and 16, one count of attempted sexual violation involving anal intercourse, one count of sexual violation involving anal intercourse and one count of sexual violation involving oral sex.   The same was true in relation to the third period, except that, in order to reflect a legislative change, there was one indecent assault count covering the period 1 January 2005 to 19 May 2005 and one count of doing  indecent  act  on  a  young  person  covering  the  period  20  May  2005  to

28 February 2006.

[54]     The case was defended on the basis that the allegations were not true and had been fabricated by the complainant to deflect his mother’s attention from his drug use.  The jury clearly rejected that defence when they found the appellant guilty on the indecent assault/act charges (to which consent was not a defence).  The question is whether it is possible that the jury would have acquitted the appellant on some or all of the attempt and sexual violation counts if they had been properly instructed on the need for lack of consent and lack of reasonable belief in consent.

[55]     All members of the Court agree that, given the Supreme Court’s decision in L, the convictions for attempted sexual violation are unsafe and must be quashed. In relation to the sexual violation convictions, the majority consider that, while it is unlikely that the jury would have acquitted on those counts, it would be unsafe to allow the convictions to stand.  In order to convict, the jury had to be satisfied that the Crown had proved beyond a reasonable doubt that there was no consent on the part of the complainant and  no  reasonable belief  in  consent  on  the part  of  the appellant.  In view of the errors in the instructions to the jury and in issues sheet 3 the majority consider that the jury may not have understood this, although they consider it likely that they did.  The majority’s concern is heightened by the Judge’s indecent assault/indecent act instruction.  The Judge correctly noted that consent was irrelevant  to those  counts  (see  [33]  above).    He  concluded  his  instruction  with these words: “Consent does not arise when you are considering charges against a man who allegedly indecently assaulted another male under 16 years of age”.  While the Judge intended to limit this to the indecent assault/indecent act counts, it is stated generally.  Without a reminder that the consent issues did arise on the attempt and sexual violation counts, the majority consider that the risk that the jury might have been  confused  about  the  position  in  relation  to  consent  on  those  counts  was enhanced.

[56]     The majority accept that the defence was not run on the basis of the presence of consent or reasonable belief in consent, but note that there was material in the record that would  have  provided  some support  for  such  arguments.    Given  the combined effect of the matters discussed above, the majority consider that the sexual violation convictions must also be quashed.

[57]     The minority does not agree.   He does not consider that there is any real likelihood that the jury was misled by the transposition in issues sheet 3 or the Judge’s instructions reflecting that transposition.   The minority considers that the jury would have been well aware of the true position in relation to consent, and is reinforced in that view by the fact that neither trial counsel nor counsel on the appeal drew attention to the errors.

[58]     The result is that, in accordance with the views of the majority, the sexual violation convictions will also be quashed.

[59]     In the normal course, we would have ordered a new trial on the attempted sexual violation and sexual violation counts.  However, we do not propose to follow that course in this case.  Rather, we propose to exercise our power under s 386(2) of the Crimes Act to substitute convictions for indecent assault under s 140A(1)(a) for the convictions on the sexual violations charged in counts 8, 9, 11, and 12.

[60]     The Court may exercise this power where the substituted offence is open on the indictment.   Convictions for indecent assault were open on the indictment, as indecent assault was an included offence on those sexual violation counts that related to events occurring before 20 May 2005 (while s 140A was still in force).  Given that consent was irrelevant to a charge under s 140A(1)(a), the jury must have been satisfied that the ingredients necessary to constitute that offence were present.  (We make no substitution in respect of the sexual violations charged in counts 10 and 13 as the relevant legislative change occurred with effect from 20 May 2005, which is in  the  middle  of  the  period  covered  by  those  counts  (1  January  2005  to

28 February 2006)).

[61]     We  are  conscious  of  what  this  Court  said  in  R  v  Hagen  CA162/02

4 December 2002 at [53], to the effect that where there is an evidential basis for a verdict on the greater charge, the normal course is to order a retrial.  This recognises that it is the prerogative of the State as prosecutor to decide what charges are to be brought, rather than the courts.  However, the present case is an unusual one in that all the charges were representative within certain time periods (see [53] above) and we have allowed the appeal in respect of only some of the convictions.  Accordingly

if there were to be a retrial there would be a risk of inconsistent verdicts.   This, together with the interests of the complainant for whom the first trial was plainly a great ordeal, have persuaded us that it is appropriate to depart from what would be the normal course and substitute convictions for indecent assault.

[62]     The appellant must now be re-sentenced.   As we do not have the power to remit the matter to the High Court for re-sentencing, there will be a further hearing before this Court.  That should be arranged as soon as possible.

[63]     We make one final comment.  As will be apparent from our discussion of the issues, many of the grounds raised on the appeal concerned matters which occurred at trial with the agreement of, or at least without any objection from, the appellant’s trial counsel.  They involved matters about which counsel are frequently required to make tactical decisions at trial.   There was no challenge to what occurred on the basis of incompetence of counsel, and such a challenge could not sensibly have been mounted.  In those circumstances, as Condon v R [2007] 1 NZLR 300 (SC) indicates, there is little prospect of an appellant establishing a miscarriage of justice. Accordingly many of the grounds of appeal were futile.

[64]     Where an appellant raises unarguable grounds of appeal not only is time wasted but there is also a risk that the force of arguable grounds will be diluted.  In the present case there were grounds that were clearly arguable, specifically those concerning motive to lie and the Judge’s directions on the attempt charges.   They should have been the focus of the appeal.

Decision

[65]     Accordingly, we allow the appeal in part.  The convictions on the attempted sexual violation and the sexual violation counts are quashed.   Convictions for indecent assault contrary to s 140A(1)(a) of the Crimes Act 1961 are substituted for the sexual violation convictions on counts 8, 9, 11 and 12.  We direct that a further hearing be scheduled in this Court as soon as possible to determine sentence in light of this.  The appellant will remain in custody in the meantime.

Solicitors:

Rice Craig, Papakura for the Appellant

Crown Law Office, Wellington