R v Creamer CA178/06
[2006] NZCA 464
•16 October 2006
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
PUBLICATION OF THE REASONS FOR JUDGMENT IN THE NEWS MEDIA OR ON THE INTERNET OR IN ANY OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED UNTIL FINAL DISPOSITION OF THE NEW TRIAL. PUBLICATION OF THE REASONS FOR JUDGMENT IN A LAW REPORT OR LAW DIGEST IS PERMITTED, HOWEVER.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA178/06
THE QUEEN
v
GRAHAM TERRENCE CREAMER
Hearing: 28 August 2006
Court: Robertson, Arnold and Ellen France JJ Counsel: D P H Jones QC for Appellant
E M Thomas and E A Gambrill for Crown
Judgment: 16 October 2006 at 11 am
JUDGMENT OF THE COURT
A Leave to file the further affidavit evidence is granted.
BThe appeal is allowed. The convictions are quashed and a retrial is ordered.
R V GRAHAM TERRENCE CREAMER CA CA178/06 16 October 2006
CPublication of the reasons for judgment in the news media or on the internet or in any other publicly accessible database is prohibited until final disposition of the new trial. Publication of the reasons for judgment in a law report or law digest is permitted, however.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1] The appellant was tried on indictment before Judge Bouchier, sitting alone, on three counts of indecent assault on a boy aged between 12 and 16 and one representative count of indecent assault on a (different) boy over the age of 16. He was convicted on two counts of indecent assault on a boy aged between 12 and 16 and was discharged on the other two counts, including the representative count. He was sentenced to 250 hours community service.
[2] The appellant appeals against his conviction on three grounds:
(a) The guilty verdicts were unreasonable and unable to be supported by the evidence;
(b) Late amendments to the indictment unfairly prejudiced the defence and resulted in a miscarriage of justice;
(c) The Judge gave insufficient reasons to justify the verdicts, with the result that there has been a miscarriage of justice.
Background
[3] The complainant was a family friend of the appellant. In the late 1980s, he attended secondary school as a boarder in the city where the appellant and his family lived. While at secondary school he stayed occasionally at the appellant’s house when he was on weekend leave from school.
[4] The complainant said that the offending occurred during some of these visits. He said that the offending was progressive over several visits, beginning with the appellant massaging him and later touching his penis over his clothes. The complainant said that later the appellant sat him on his lap, where the complainant could feel his erection, and then touched the complainant’s penis under his clothes. He said that the visits began when he was in the third form (in 1987) and that the indecent assaults occurred possibly then, but more likely when he was in the fourth form (in 1988).
[5] For his part, the appellant accepted that the complainant had stayed at his home on two or perhaps three occasions while he was at boarding school. He said these visits occurred in late 1989 and early 1990. He also said that on one occasion the complainant had jumped up onto his knees unexpectedly but that he had removed him immediately. He denied that any indecent assaults had occurred.
[6] As filed, the indictment alleged that the appellant had indecently assaulted the complainant on three occasions between 17 December 1988 and
16 December 1989 (ie, from the date on which the complainant turned 15 and during his fifth form year). After the evidence had concluded and the Crown had made closing submissions, the defence in its closing drew attention to the fact that the timeframe set out in the indictment did not conform to the evidence. In particular, the complainant’s evidence had been that the offending occurred while he was in the third, or more likely the fourth form.
[7] The Judge then asked the Crown if it sought to amend the indictment. The Crown indicated that it did. The defence opposed the Crown’s application on the basis that:
(a) The indictment should not be amended as the evidence had been completed and the defence would be prejudiced;
(b) If an amendment were granted, the trial should be adjourned to enable the defence to adduce further evidence to show that the complainant had not stayed at the appellant’s address over the amended time period.
[8] The Judge granted the amendment and declined to allow the defence time to call further evidence. Accordingly, the dates in each of the three counts were amended to read “between 17th December 1986 and 16th December 1988” (ie, following the complainant’s 13th birthday and during his third and fourth form years).
[9] The Judge delivered her verdicts several days later. In her judgment, the
Judge:
(a) Set out the amended counts;
(b) Cited the following extract from the judgment of this Court in
R v Connell [1985] 2 NZLR 233 at 237:
Further, what the Judge sitting alone delivers is intended to be a verdict. It need not be supported by elaborate reasons. To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge’s failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay. Careful consideration is an elementary need, but not long exposition.
(c) Set out the ingredients of the charges;
(d) Discussed the complainant’s delay in complaining;
(e) Addressed the burden of proof;
(f) Identified the central issue as being one of credibility; (g) Summarised the closings of both Crown and defence;
(h) Reached the following conclusion:
[27] My view of the matter is this: I have specifically reminded myself of the factors which one commonly directs juries for. I am not required to give lengthy reasoning for my decision as in the case I have quoted of R v Connell according to Cooke J. I consider the evidence – and I have considered all of the evidence – and I did take the further opportunity of considering this matter over the weekend as the case finished at a time when I considered it unsafe to give a decision having not enough time to consider the matter.
[28] Therefore, my view of the evidence is this. In terms of the credibility here, I accept the evidence of [the complainant] in this way – I accept that there was a touching of him in the following fashions: a massaging of his back, a touching of his penis over his clothes, then being put on the accused’s knee where he could feel the accused’s erection, being erect himself, and then a touching of his penis under his clothes on two occasions. I accept his evidence on this matter and I reject the evidence of the defence on this matter. I am satisfied to the necessary standard of beyond reasonable doubt that touchings in the fashion I have accepted have happened on two occasions and two occasions only.
Discussion
[10] We begin with the second of the three grounds of appeal, that the defence suffered unfair prejudice from the late amendments and that resulted in a miscarriage of justice.
[11] The appellant sought leave to file further evidence relevant to this ground of appeal, in the form of an affidavit from a close associate of the appellant’s wife. The Crown opposed this application, on the basis that the evidence was not new and the interests of justice did not require that it be received.
[12] As the Judge refused to adjourn the trial to allow the appellant to call further evidence after the amendment was made, we consider that we should admit the further affidavit evidence, so that we can determine whether it could have made any difference to the outcome had it been adduced at trial. Accordingly we grant leave to do so.
[13] The deponent says that she worked closely with the appellant’s wife on the production of a number of textbooks. She says that she spent a great deal of time at the appellant’s home, particularly during the November 1987 – January 1988 period, but also throughout 1988, 1989 and 1990, and came to know the appellant’s family very well. Throughout that entire period she says she never met the complainant or heard the family talk about him.
[14] We consider that this evidence would not have assisted the appellant. The appellant accepted that the complainant had stayed at his house on two or three occasions. The essential question was whether the indecent assaults occurred, as alleged by the complainant. The additional evidence would not have assisted in resolving that question. There was an issue as to timing, but again, this evidence would not have advanced matters in that respect. Accordingly, we see nothing in this ground of appeal.
[15] That leaves the first and third grounds of appeal, namely that the guilty verdicts were unreasonable and unable to be supported by the evidence and that there was a miscarriage of justice because the Judge gave insufficient reasons to justify the verdicts. We deal with these grounds together.
[16] In relation to the provision of reasons by a Judge conducting a criminal trial without a jury, the Judge cited a passage from the judgment of this Court in R v Connell (see [9](b) above). There is, however, a further relevant passage from the judgment in that case (at 237 – 238):
Only in most exceptional cases, if ever, is it likely to be consistent with the judicial role in trying an indictment to give no reasons for the verdict. If the verdict is not guilty, however, occasionally a very brief statement of reasons is best. In other cases, whether the verdict is guilty or not guilty, it is obviously impossible to work out a formula covering all circumstances. But
in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge’s essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond a reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.
At this stage in the history of Judge-alone jurisdiction in trials on indictment in New Zealand we will not add to these general observations. They are of course not meant to be exhaustive or the last word on the subject. What we stress now most is that a long and careful trial, as this one was, need not mean an extensive judgment.
[17] The Court had addressed the question of giving reasons in the summary jurisdiction in an earlier decision, R v Awatere [1982] 1 NZLR 644. There, delivering the judgment of the Court, Woodhouse P considered Australian, Canadian and New Zealand authorities. The President noted that there were differing views among High Court Judges in New Zealand on the question whether a judge sitting alone should give reasons where the ultimate issue was one of credibility (ie, which of two competing versions of events the Judge accepted). The President concluded that while it was good judicial practice to give reasons, there was no inflexible rule of universal application requiring reasons. However he went on to say at 649:
Nonetheless, Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion. Indeed failure to follow that normal judicial practice might well jeopardise the decision on appeal. It could do so because a potential appellant might seem to be unduly prejudiced or it could do so by leaving it open for the appellate Court to infer that there are in fact no adequate reasons to support it and so in either case act more readily than otherwise it would have done to order a rehearing or to rehear the case itself or to make an order that proper and adequate reasons are to be supplied or even to quash the verdict outright.
[18] More recently, the Court has returned to the matter. In R v Eide [2005]
2 NZLR 504 (CA) William Young J, delivering the judgment of the Court cited part of the passage from R v Connell quoted at [16] above and said (at [20]):
Those remarks were made, as the Court recognised at p 238, at an early stage “in the history of Judge-alone jurisdiction in trials on indictment in New Zealand” and were not “meant to be exhaustive or the last word on the subject.” Underpinning the approach then taken were two inter-related considerations: first, a Judge’s decision in such a case is technically a
verdict; and secondly, the rights of appeal in relation to such a decision are the same as those which apply to jury verdicts. It may be that these considerations do not justify current practice and this Court may have to consider whether the Connell approach continues to be appropriate.
[19] William Young J then went on to point out that the problems with “short form” judgments are particularly acute in fraud cases (at [21]). This Court in R v Hawken CA307/05 5 May 2006 at [49]-[52] emphasised the need for the Judge in cases where an intention to defraud was alleged to identify, in summary form, the facts from which the Judge has inferred the necessary intention to defraud.
[20] The judgment in the present case was not, in one sense, a short form judgment. It canvassed at some length the various matters set out at [9] above. But it was a short form judgment in the sense that on the critical issue of credibility, it said simply that the Judge accepted the complainant’s evidence and rejected that of the defence, and that the Judge was satisfied beyond a reasonable doubt that some indecent touching had occurred (see [9](h) above).
[21] In the particular circumstances of this case, this approach creates a difficulty for this Court. Mr Jones QC for the appellant argued that the evidence was that the complainant could not have stayed at the appellant’s house prior to 11 November
1988 (Armistice Day) because up until then there was no spare bedroom for the complainant to occupy. The appellant gave evidence that one of his daughters, who was intellectually disabled, moved out of the family home on Armistice Day, 1988, and into sheltered accommodation. Obviously, this was a major change in the family’s life. The appellant said that his daughter’s move led to some rearrangements within the house over the following months, but that from about mid
1989 there was a spare room for visitors. He said that the complainant had stayed in the spare bedroom on several occasions in late 1989 and early 1990. The appellant’s other two daughters also gave evidence. They could not remember the date on which their sister had moved out of the family home, but confirmed that the complainant could not have stayed with them until after their sister had gone. This was a key element of the appellant’s defence to the amended charges.
[22] In convicting the appellant, the Judge must have rejected this evidence. It is not clear on what basis she did so. The Judge must have considered either that the
appellant was wrong about the date on which his daughter moved out, or that the complainant did stay at the appellant’s house while all three daughters were still at home.
[23] However, there was no effective challenge by the Crown to the evidence as to the date on which the daughter moved out, nor was there any effective challenge to the evidence that the complainant could not have stayed at the appellant’s home until after the daughter had moved out, and, indeed, until sometime after that, given the subsequent rearrangement of bedrooms.
[24] It seems from her oral ruling on the Crown’s application to amend the indictment that the Judge understood the significance of the defence evidence about dates. Moreover, the Judge did refer to that evidence, albeit briefly, in summarising the defence case when giving judgment (at [15]). But we are unable to identify how the Judge dealt with what was a key element of the appellant’s defence to the amended charges because she has not set out the basis for her findings. Accordingly, we find ourselves in the position identified by Woodhouse P in the extract from Awatere quoted at [17] above. In those circumstances we have no alternative but to quash the convictions and order a retrial.
[25] Mr Jones argued that, if the appeal succeeded, there should be no retrial, given the nature of the allegations. However, what is ultimately at issue in this case is credibility. Guilty verdicts are open. Accordingly there should be a retrial.
[26] The Crown suggested, somewhat faintly, that this Court might amend the indictment again to conform to the evidence. Although this Court does have the power to amend (s 335 of the Crimes Act 1961), we do not consider that such a course is appropriate, particularly given the late amendment already made at the Crown’s request.
[27] We should make it clear that we are not in this judgment seeking to impose more onerous obligations as to the giving of reasons on judges determining criminal charges alone than the authorities currently impose. As was said in Eide, the Court may decide that it should reconsider these authorities at some point. Any such
reconsideration will need to take a variety of factors into account, including the need not to overburden busy trial judges unduly. This decision is based on the authorities as they stand. It is reached because the Judge must have rejected what was a key plank of the defence case but gave no explanation of her reasons for doing so, in circumstances where the Court cannot otherwise discern the basis for the rejection of what was effectively unchallenged evidence.
Decision
[28] The appeal is allowed. The appellant’s convictions are quashed and a retrial is ordered. We make an order prohibiting publication of the reasons for judgment in news media or on the internet or in any other publicly accessible database until final disposition of the new trial. Publication of the reasons for judgment in a law report or law digest is permitted, however.
Solicitors:
Crown Law Office, Wellington
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