R v D Ca202/03

[2003] NZCA 401

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 202/03

THE QUEEN

v

D (CA202/03)

Hearing:         20 October 2003

Coram:Anderson J Fisher J Salmon J

Appearances: J Bioletti for Appellant

B J Horsley for Crown

Judgment:      21 October 2003

JUDGMENT OF THE COURT DELIVERED BY FISHER J

[1]      Following a District Court jury trial, the appellant was convicted on two counts of sexual violation by unlawful sexual connection and one of indecent assault. He was sentenced to imprisonment for two years and three months. He appeals against conviction and sentence.

[2]      The appellant lived in [X] with his partner and two daughters. Their house was adjacent to the local school. The appellant encouraged school-age children to

R V D CA CA 202/03 [21 October 2003]

congregate at his address and stay there overnight. The visitors included three girls aged 12 and 13 years, the complainants M, R and T.

[3]      The complainant M gave evidence that she stayed overnight at the appellant’s house at around Christmas 2001. The appellant placed his hands on her shoulders in the hallway and attempted to kiss her face. When she returned to the living room and sat on the couch he followed her, put his hand under her T-shirt, rubbed her on the stomach area, and tried to touch her breast. Other people were staying in the house at the time but they were asleep.

[4]      The complainant R gave evidence that in the third week of January 2002 she was in the living-room alone with the appellant at a time when other people who were present in the house had left that particular room. The appellant put a pillow over her lap, unzipped her pants, inserted a finger into her vagina, and moved his finger for about two minutes. This stopped when another girl entered the room.

[5]      The complainant T said that in early March 2002 she was play-fighting with the appellant while staying overnight at his house. He put his hand down her pants and put his finger into her vagina. He stopped when the complainant R came over to ask whether she could play on the computer. In her own evidence the complainant R confirmed that in early March 2002 she had seen the appellant pulling down T’s pants and putting his fingers into her pants.

[6]      The appellant did not give evidence but called five witnesses including his partner W and his sister H. W agreed that a large  number  of  girls  would  stay  at  the  house,  that  she  was  working  nights throughout the period of the alleged offending, and that the appellant was often alone with the girls. H said that her children stayed with the appellant between 19 December 2001 and 29 January 2002. Initially she limited this to her three younger children. In answer to a later question she said that all five children were involved. Her children were aged six, ten, eleven, twelve and fourteen at the time. Although it was not suggested that she had been present in the house while her children were sleeping there, the Crown Solicitor elicited from her in cross-examination that they

had slept in the “lounge”. The “lounge” was presumably the “living room” where the complainant R alleged the offending against her had occurred.

[7]      The  appellant  represented  himself  at  the  trial  with  the  assistance  of  a McKenzie friend. Counsel for the Crown gave the usual closing address. The appellant elected not to give any closing other than to deny the jurisdiction of the Court.

[8]      In his summing up the Judge’s summary of the cases for the Crown and the defence was as follows:

In this case the Crown says that you focus on what the three young girls did, apply your common-sense. Keep focused on what this trial is all about and Mr McDonald read out from each of their evidence and he basically said “no these girls haven’t got together and cooked up this story. Each of them used to enjoy going around there and then this happened and basically spoiled everything”.  So  you  can  rely,  you  can  accept  what  each  of  these  girls basically have said. They had no motive for cooking up this and if you believe them, the proper verdict is one of guilty. As I understand where the questions from the Accused were coming from, the defence appears to be these girls are lying. They’re lying in that the incidents didn’t happen and there are other aspects about their behaviours at times that help you decide that they weren’t telling the truth about this.

[9]      On appeal the principal complaint was that the trial Judge did not adequately put the defence case to the jury. Mr Bioletti submitted that the Judge ought to have drawn H’s evidence to the jury’s attention. He should have suggested that the presence of her children in the appellant’s home during the period alleged was inconsistent with the account given by the complainant R. Mr Bioletti argued that H’s evidence refuted R’s evidence of the offence against her and also, by its challenge to her credibility, reduced the strength of the Crown case in respect of the complainant T. That omission is said to have been aggravated by the fact that in his own cross-examination the prosecutor had impliedly criticised the defence for failing to put H’s evidence to the complainant R in her cross-examination.

[10]     A judge’s summing up must include an explanation of the relevant law and the elements to be proved by the Crown. The facts in issue in the trial will normally be revealed in that process. The summing up will normally go on to summarise the

rival contentions with respect to those factual issues: R v Miratana 4/12/02, CA

102/02)

[11]     The rival contentions with respect to factual issues are normally taken from counsels’ closing addresses: R v Foss (1996) 14 CRNZ 1 (CA), at p 4. The process is rendered more difficult where, as here, there is no real address to the jury from the defence. In those circumstances we think it still incumbent on the Judge to ensure that the jury understand what fundamental facts are in issue and the competing positions taken by the two parties with respect to those issues. However, there is no obligation  on  the judge  to  direct  the  jury as  to  all  possible  views  of  the  facts independently of the contentions of the parties: R v Palmer 8/3/01 CA 80/00. Judges will usually deal with significant matters affecting the cogency of evidence but this is not required as a matter of law: R v Foss, supra. The three critical requirements are merely that the fundamental facts in issue be identified, that the summing up be balanced in its treatment of opposing contentions with respect to those facts, and that the jury be left in no doubt that those facts are for them and not for the judge.

[12]     In the present case, those three requirements were clearly satisfied. The Judge correctly identified the legal elements required to be proved for each of the offences charged,  reminded  the  jury  that  the  facts  were  for  them  and  not  for  him,  and preserved a proper balance in his treatment of the opposing Crown and defence cases. The fact that his summary of the opposing cases was terse may well have been prompted by the absence of any effective closing address for the defence. If the Judge  had  entered  into  any  greater  detail  in  summarising  the  Crown’s  closing address there would have been nothing with which to counter-balance it from the defence.

[13]     Mr Bioletti submitted that on behalf of the defence the Judge ought to have advanced the argument that H’s evidence negated an opportunity to commit the offence alleged by the complainant R. We do not think that there was any obvious or compelling defence argument arising from H’s evidence. If the Judge had embarked upon that topic at all, he would no doubt have also felt compelled to point to its inherent weaknesses. Even if the H children had been staying in the house at the relevant time, it scarcely excluded all opportunity for the

appellant to offend in the way alleged. The argument was not consistent with the evidence of the appellant’s partner, W, as to opportunity. H was inconsistent over the number of children involved. The assertion that the children slept in the living room over the period in question was hearsay. It emerged only as in response to an indiscreet question in cross-examination. The appellant himself did not elect to advance this argument to the jury. In all the circumstances we are satisfied that it was not incumbent upon the Judge to raise the argument on behalf of the defence.

[14]     The appeal against conviction is dismissed. The appeal against sentence was not pursued and is also formally dismissed.

Solicitors

J N Bioletti, Auckland for Appellant

Crown Law Office, Wellington for Crown