R v Cavanagh CA493/05
[2006] NZCA 427
•6 July 2006
NOTE: ANY PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA493/05
THE QUEEN
v
ROSS JAMES CAVANAGH
Hearing: 28 June 2006
Court: Glazebrook, John Hansen and Potter JJ Counsel: O S Winter for Appellant
K J Beaton for Crown
Judgment: 6 July 2006
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1] Mr Cavanagh was convicted, following a jury trial, of one count of sexual violation by unlawful sexual connection. He was sentenced on 8 December 2005 to
R V CAVANAGH CA CA493/05 6 July 2006
four and a half years imprisonment. Mr Cavanagh originally appealed against both conviction and sentence. He has now abandoned his appeal against sentence and it is accordingly dismissed.
Facts
[2] The trial indictment against Mr Cavanagh contained four counts. The fourth count alleged sexual violation by unlawful sexual connection occasioned by contact between Mr Cavanagh’s genitalia and the complainant’s mouth. Mr Cavanagh was convicted on this count. The first three counts alleged indecent assault, sexual violation by unlawful sexual connection occasioned by digital penetration and sexual violation by rape. Those three allegations all arose from an earlier alleged incident, approximately two weeks prior to the alleged oral sexual connection. Mr Cavanagh was acquitted on these three counts.
[3] The complainant is a relative of Mr Cavanagh’s. At the time of the offending, she was 16 years old and was staying with her grandmother. The offending allegedly occurred at Mr Cavanagh’s home which he occupied with his wife and two young children. The count on which Mr Cavanagh was convicted (count four) was based on the allegation that, after babysitting for the Cavanaghs and watching a movie with them and a friend of Mrs Cavanagh’s, the complainant was to sleep on a couch in the lounge.
[4] Mr and Mrs Cavanagh went to bed but he returned to the lounge and turned on the television. He then placed the complainant’s hand on his erect penis, kissed her and then forced her to perform oral sex until he ejaculated into her mouth. She spat most of the ejaculate out on the couch. Afterwards he said “If you want a fuck all you have to do is ask”. She also said that he had, earlier in the evening, shown her some pornography and slapped her on the bottom.
Summary of grounds of appeal
[5] Mr Cavanagh appeals against his conviction on four grounds:
(a) That a miscarriage of justice has occurred because the trial Judge erred in refusing to order a view of Mr Cavanagh’s house where the offences were alleged to have happened;
(b) That a miscarriage of justice has occurred because the Judge granted the Crown’s application to amend the offence period in the indictment during the trial, thereby prejudicing Mr Cavanagh;
(c) That the verdict should be set aside on the ground that it is unreasonable and cannot be supported having regard to the complainant’s evidence as to the dates of the alleged offending; and
(d) That the jury’s verdicts were inconsistent and therefore unreasonable. [6] We will address each of Mr Cavanagh’s grounds in turn.
Refusal to allow a jury view
The authorities
[7] Section 28 of the Juries Act 1981 provides that the Court may order a view at any time during a trial:
28 Court may order view
At any time during a trial, whether or not the evidence for any or all of the parties has been closed, the Court may, on the application of any party or of its own motion, order a view if the Court considers that that course is proper or necessary in the interests of justice.
[8] Section 2 of the same Act defines “view”:
view means a visual inspection by jurors of any place or premises, a view of which is considered by the Court to be proper or necessary for the better understanding of the evidence that may be given at the trial before the jurors, or material to the proper determination of the question in dispute.
[9] Both parties referred to R v McGregor (1999) 16 CRNZ 606 where this Court held, at [24] – [25], that there are two purposes for which a Judge might order a view in a particular case. The first is to orient the jury within the overall framework of the
case so that they understand the issues in the trial, where the view itself does not form any part of the evidence. The second is to provide the jury with an opportunity to observe and assess a particular situation. The Court stated that, where this second aspect is considered necessary, it is essential that there be clear definition as to why the exercise is being undertaken and what it is intended to achieve.
Ruling of Judge Garland
[10] In an oral judgment dated 7 November 2005, Judge Garland refused Mr Cavanagh’s application for the jury to take a view at the house where the alleged offences were said to have occurred. The Judge’s impression looking at the photographs was of the smallness of the house and the interior. Further, additional photographs and measurements, which Mr Cavanagh’s counsel confirmed were available, would give the jury a proper perspective of the relative locations of where the offences allegedly occurred and where his wife was at the time. The Judge therefore refused to hold a view.
Submissions for Mr Cavanagh
[11] Mr Winter, for Mr Cavanagh, submitted that an important element of the defence was that the offending was alleged to have occurred in a very small house while Mrs Cavanagh and the children were at home. In the defence submission, had the offending happened as alleged, it would have been heard by Mrs Cavanagh as the ceiling vents allowed the easy passage of sound. Mr Winter had himself visited the house with a colleague and in his professional opinion the photographs and measurements presented to the jury did not give an accurate impression of just how small the house was. Mr Winter submitted that the Judge’s ruling denied the jury the opportunity to put that evidence into true perspective and that Mr Cavanagh was prejudiced as a result.
Submissions for the Crown
[12] Miss Beaton, for the Crown, submitted that, as the small size of the house was not disputed, there was no contested issue that a view would have assisted the
jury to determine. The complainant, Crown counsel and Detective Constable Allan all accepted that the house was small. In particular, the complainant acknowledged that, from her position on the couch in the lounge, she was no more than ten metres from Mrs Cavanagh, and that she could hear Mr Cavanagh talking to his wife in their bedroom.
Discussion
[13] There was abundant evidence (including photographic evidence) as to the fact the house was small, of the proximity of Mrs Cavanagh to the complainant and of the fact that the sound carried in the house. All of this evidence was uncontested. In addition, all members of the jury would have had experience of small spaces (for example motel rooms) and would be quite capable of assessing this evidence.
[14] While we accept Mr Winter’s submission that the evidence may not have given the members of the jury the same appreciation of the scene as would have been gained by personal observation, this is the case in any trial. There must be something more to require a view. There was nothing more in this case and, in the circumstances, Judge Garland’s decision cannot be faulted.
Amendment of the indictment
Ruling of Judge Garland
[15] The indictment against Mr Cavanagh originally alleged that the offending occurred between 10 April 2004 and 28 May 2004. At the conclusion of the evidence, Counsel for the Crown applied to amend the dates in the indictment by extending the end date.
[16] In a ruling dated 8 November 2005, Judge Garland noted that the complainant had given unchallenged evidence that she had left her grandmother’s house after the incidents in early June. This was supported by the evidence from her grandmother. The Judge considered that there was no specific prejudice to Mr Cavanagh if the amendment was made as it would not make a difference to the
way in which the defence ran its case. The defence that had been run up until that stage had been a denial that any activity occurred at all with the complainant, irrespective of alleged timeframe. Judge Garland therefore granted the Crown’s application and amended each of the counts in the indictment so as to allege that the offences occurred between 10 April 2004 and 15 June 2004.
The legislation
[17] Section 335 of the Crimes Act 1961 allows the Court to amend the indictment so as to make it conformable with the proof provided that the accused has not been misled or prejudiced in his defence by such an amendment. The section reads as follows:
335 Variance and amendment
(1) If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment either as filed or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.
(2) If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make the amendment.
Submissions for Mr Cavanagh
[18] Mr Winter submitted that the Judge was wrong to find there was no specific prejudice to Mr Cavanagh in making the amendment. In his submission, the amendment precluded Mr Cavanagh from advancing possible defences because part of his defence was that the offending could not have occurred within the timeframes in the original indictment. It was alleged the offending took place when his wife was working at McDonalds but she did not work at McDonalds in May (apart from one shift).
[19] Mr Winter acknowledged that a date specified in an indictment is generally not a material element of the offence. He submitted, however, that this case is an exception as virtually all the Crown evidence related to the original dates in the indictment and the Crown conducted the case on the footing that the dates specified
were the relevant dates. Mr Winter submitted that the amendments sought by the Crown were, therefore, inconsistent with the vast bulk of its own evidence. Mr Winter submitted further that there was a real risk that the jury would make allowances for difficulties in the Crown evidence because the Court had extended the time frame.
Submissions for the Crown
[20] Miss Beaton submitted that the amendment of the indictment did not result in specific prejudice to Mr Cavanagh. The evidence from the complainant, her grandmother and Mr Cavanagh himself established that there were occasions when the complainant had been babysitting for the Cavanaghs while Mrs Cavanagh was at work at McDonalds. Given the evidence led by the defence that she worked there between late May and early June 2004, no prejudice arose from an amendment to include that period. Rather, in Miss Beaton’s submission, this was a classic case for the exercise of the power under s 355 to amend charges to conform with the proof.
[21] Miss Beaton pointed out further that Mr Cavanagh did not rely upon a positive defence such as alibi for the original dates alleged, where issues of prejudice might arise. Instead, he completely denied the allegations, regardless of the dates the incidents allegedly occurred. She submitted that, in any event, the fact that an amendment to the dates was necessary if anything assisted Mr Cavanagh in his challenge to the complainant’s credibility and reliability.
Discussion
[22] The defence was that the offences did not happen and there is no suggestion of specific prejudice from the change in dates (for example as to possible alibi evidence). Even with the change in dates the defence was still able to make the submission that the evidence as to the dates Mrs Cavanagh worked at McDonalds showed the complainant to be unreliable and not credible. Indeed, as the Crown says, the fact that a change to the indictment was necessary can in fact be seen as strengthening this contention. This ground of appeal fails.
Verdict unreasonable and unsupported by the evidence
Submissions for Mr Cavanagh
[23] Mr Winter submitted that the verdict was unreasonable because evidence from witnesses, including the complainant and her grandmother, locked in the second incident as occurring before Mrs Cavanagh was working at McDonalds. In particular, the grandmother gave unequivocal evidence that she has not seen the Cavanagh family since May 2004. Further, the recent complaint evidence was that the complaint about the second incident occurred in late April or early May. Mr Winter submitted that the offending could not, therefore, have happened in the context alleged by the Crown.
[24] Mr Winter submitted further that the scientific evidence was at best neutral in terms of proof. Although Mr Cavanagh’s semen was found on the couch, the saliva was not the complainant’s. In Mr Winter’s submission, the small size of the house, coupled with the presence of Mrs Cavanagh who did not hear anything, would have compelled a jury acting reasonably to entertain doubt as to Mr Cavanagh’s guilt.
Submissions for the Crown
[25] In Miss Beaton’s submission, the grandmother’s evidence that she had not seen the family since May 2004 is not determinative of when the incidents occurred or of when the complainant left her grandmother’s house. It may simply be that the grandmother had not seen Mr Cavanagh or his wife in the early part of June 2004. Further, in the Crown’s submission, the evidence of other Crown witnesses regarding timing, while relevant to support the credibility and reliability or otherwise of the complainant, is not determinative of whether or not the second incident occurred.
[26] In addition, Mr Cavanagh accepted both that there were at least ten occasions when he was alone with the complainant in the lounge and the possibility that a couple of those occasions occurred after his wife had commenced work at McDonalds. Combined with the complainant’s evidence of what occurred, there
was, in the Crown’s submission, evidence before the jury establishing opportunity for the incidents in the context described by the complainant and supporting the guilty verdict reached.
Discussion
[27] There was clearly evidence from the complainant about the alleged offence and admitted opportunities for it to have taken place. The jury could properly accept the complainant’s evidence about what had occurred, despite her possible confusion over dates. Further, as discussed below, there was additional supporting evidence with regard to the fourth count. The jury was, in our view, entitled to consider that, taken overall, the Crown had proved its case to the requisite standard. This ground of appeal also fails.
Inconsistency of verdicts
Submissions for Mr Cavanagh
[28] Mr Winter submitted that, on the evidence before the jury, there is no reasonable explanation for the difference in verdicts between the first three counts and count four. Mr Winter submitted that the two alleged incidents had remarkable similarities, as both allegedly occurred on the couch in the lounge at Mr Cavanagh’s house, within minutes of Mrs Cavanagh going to bed and at a time when Mrs Cavanagh was working at McDonalds. Further, both incidents involved alleged serious sexual assaults carried out quickly and without verbal or physical response by the complainant. Mr Winter pointed out that the Crown ran its case squarely on the complainant’s credibility. In his submission, the jury were plainly not convinced that she had told the truth about the first incident.
[29] Mr Winter acknowledged that the second incident involved allegations of a different character, specifically forced oral sexual activity with Mr Cavanagh allegedly ejaculating into the complainant’s mouth. He noted that one point of difference in the evidence about the two incidents is that the second incident generated the complaint evidence of two witnesses. However, the complaints did not
involve an allegation of oral sex and neither witness treated the complaint seriously. Another point of difference is that, in relation to the second incident, the complainant’s grandmother gave evidence of the complainant returning home and having an unusually long shower. However, no behaviour specific to an act of oral sex was reported. Accordingly, in Mr Winter’s submission, the evidence about the two incidents is not sufficiently distinguishable to support a jury behaving reasonably concluding that they believed the complainant with respect to count four but not counts one to three.
Submissions for the Crown
[30] Miss Beaton submitted that there was a clear evidential basis for the jury to distinguish between the two incidents and return different verdicts. In her submission, it is not accurate to suggest that the jury must have rejected all of the complainant’s evidence simply because they acquitted Mr Cavanagh on the first three counts. The jury may well have considered that they could not be sufficiently sure about the first incident, without concluding that the complainant was untruthful.
[31] Miss Beaton noted that there was evidence that supported the complainant’s allegations on all counts, including, for example, evidence of opportunity and the complainant’s knowledge of Mr Cavanagh’s circumcision (combined with Mr Cavanagh’s unconvincing explanation for this). However, count four was a separate allegation, at a separate time, and was supported by other evidence including recent complaint evidence (despite difficulties with the date of those complaints), consistent forensic evidence and the grandmother’s evidence relating to the complainant’s demeanour.
[32] Further, the complainant’s credibility and account of the second incident were supported by Mr Cavanagh’s admission that he “might have” shown the complainant pornography, said “if you want a fuck all you have to do is ask” and slapped her on the bottom – cf at [4] above. By contrast, there was not the same additional supporting evidence on the three counts relating to the first incident. Accordingly, in the Crown’s submission, there was a clear, rational and logical basis for the jury’s verdicts.
Discussion
[33] We accept the Crown submission that the acquittal on the first three counts does not mean that the jury rejected the complainant’s evidence on the first three counts. It may just have meant that the jury was not able to reach the requisite level of satisfaction in the absence of other evidence. With regard to the fourth count, there was, as outlined by the Crown, additional evidence and admissions which may have enabled the jury to be sure that the Crown had proved its case – see in particular at [32]. The fourth count was, in any event, alleged to have occurred on a separate occasion from the other counts and there is thus no necessary connection between them.
[34] There being a rational basis for the jury to have reached its verdicts, this ground of appeal must also fail.
Result
[35] The appeals against conviction and sentence are dismissed.
Solicitors:
WinterWoods Lawyers, Palmerston North for Appellant
Crown Law Office, Wellington
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