R v Daniels
[2007] NZCA 183
•8 May 2007
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA305/06 [2007] NZCA 183
THE QUEEN
v
PAUL JAMES DANIELS
Hearing: 8 March 2007
Court: Chambers, Gendall and Heath JJ Counsel: H E Juran for Appellant
K Raftery for Crown
Judgment: 8 May 2007 at 3 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Appeal against 1992 conviction
[1] Back in 1992 Paul Daniels was convicted on two charges of sexual violation and on charges of abduction, burglary, and injuring with intent.
R V DANIELS CA CA305/06 8 May 2007
[2] He appealed against both his convictions and the sentences subsequently imposed on him. Legal aid was declined in respect of the appeal against conviction, but seems to have been granted with respect to the appeal against sentence. A hearing took place on 22 March 1993. Mr Levett appeared for Mr Daniels, but seems to have made submissions only with respect to the appeal against sentence.
[3] On 31 March 1993 this court delivered its decision: 10 CRNZ 165. So far as the appeal against conviction was concerned, the court considered a written submission prepared by Mr Subritzky. There were five grounds of appeal. None was found to have merit. The sentence appeal advanced by Mr Levett was also dismissed.
[4] Last year, Mr Daniels appealed afresh, relying on this court’s decision in R v Smith [2003] 3 NZLR 617. The Crown took no point on whether Mr Daniels came within the category entitled to a rehearing under that decision: he had, after all, been accorded an oral hearing at which counsel appeared on his behalf. It is inconceivable that this court would not have permitted Mr Levett to address on matters relating to the conviction appeal, had he sought to do so.
[5] Whatever the strict legal position may be, we have heard this new conviction appeal. In doing so, we have ignored the conclusions reached by the panel which determined the first conviction appeal back in 1993.
Issues on the appeal
[6] Three issues arise on this appeal.
[7] The first stems from a decision made by the trial judge, Hillyer J, to permit the complainant to give evidence from behind a screen, even though she was not under 17 years of age. (For the significance of that age, see the Evidence Act 1908, s 23C.) The issue is: did a miscarriage of justice arise from the judge’s decision to permit the complainant to give evidence from behind a screen?
[8] The second issue arises from the way in which the prosecutor dealt with some letters which Mr Daniels had written to the complainant. The prosecutor had put these letters to Mr Daniels in cross-examination. Mr Juran, for Mr Daniels, submits that the Crown should have alerted defence counsel to the existence of these letters before Mr Daniels gave evidence. The second issue is therefore: did a miscarriage of justice arise from the way in which the Crown deals with Mr Daniels’s letters?
[9] On the final morning of the trial, after the Crown’s final address, Mr Daniels’s then counsel, Mr Reece, advised the judge that Mr Daniels no longer wanted Mr Reece to represent him. Hillyer J refused to release Mr Reece in the circumstances, but gave him the option of discontinuing with the matter, which Mr Reece declined. Mr Juran submits the trial should have been aborted. The third issue is therefore: did a miscarriage of justice arise from the way in which the judge dealt with Mr Daniels’s sacking of his lawyer on the final day of the trial?
[10] We should add that Mr Juran argued that, even if the matters raised did not individually give rise to concern, cumulatively they did.
[11] We shall consider the issues in turn.
Did a miscarriage of justice arise from the judge’s decision to permit the complainant to give evidence from behind a screen?
[12] There is no dispute that Hillyer J had jurisdiction to make the order he did. The issue is whether he exercised his discretion correctly.
[13] Hillyer J, before making his decision, considered an affidavit from a sexual abuse counsellor employed by the Auckland Help Foundation. That counsellor was also cross-examined. The counsellor strongly recommended that screens be used. In her affidavit, she referred to the history of the relationship between Mr Daniels and the complainant. She referred to the complainant’s anxiety and fear of giving evidence in the presence of Mr Daniels. The counsellor said in her affidavit:
[The complainant] is extremely stressed and believes that if she has direct eye contact with Daniels, she will be unable to stay centred and clear in the
giving of her evidence. I am of the belief that direct eye contact with Daniels will be absolutely to the detriment of her evidence and I strongly recommend that screens be used in this case.
[14] The judge also interviewed the complainant in the presence of counsel but the absence of Mr Daniels. According to the judge, the complainant “was quite adamant that she would be unable to [give evidence] if she could see [the] accused, because of her fear of him”.
[15] In light of the counsellor’s opinion and his own assessment of the complainant, the judge considered “it would be proper in this case for an order to be made that screens be used”. He added:
My impression of the complainant was that she was extremely nervous and I accept her statement that in her view she would be unable to give evidence [except from behind a screen].
[16] Mr Juran submitted the judge had exercised his discretion wrongly. He submitted that, at the date of trial, the complainant was a mature woman of 30 years of age. She knew Mr Daniels. Indeed, since his arrest, she had not only written to him but also visited him in prison.
[17] Secondly, he complained that the expert Hillyer J relied on was not a medical practitioner or a registered psychologist but merely a sexual abuse counsellor. He submitted she lacked appropriate qualification and experience and was not objective.
[18] Thirdly, Mr Juran referred to the fact that there was considerable evidence at trial of Mr Daniels’s prior violence towards the complainant. Given that, he submitted, the jury would have easily inferred that the screens were being used because the complainant required protection from Mr Daniels rather than for the purpose of making the giving of evidence less embarrassing for her.
[19] We do not accept the judge did exercise his discretion wrongly. We accept that, in the case of mature complainants, the court’s inherent power to regulate the way in which evidence is given, including the use of a screen, will be invoked sparingly: R v Accused (CA494/97) (1998) 16 CRNZ 149 at 155 (CA) and R v Wihongi CA432/02 6 May 2003 at [17]. The judge recognised that, but was satisfied
that this complainant’s professed inability to give evidence if she had to face the accused was genuine. The fact the complainant may have visited Mr Daniels in prison was not decisive. In R v L (1990) 6 CRNZ 383, Eichelbaum CJ dealt with a submission that screens should not be ordered because, it was said, the complainant had been “able to face the accused for a lengthy period after the abuse commenced, in that she continued to live in the same house”. The Chief Justice said at 385: “However, it is difficult to equate that with a Court situation, where the complainant has to make allegations and do so in a public or semi-public setting.” We agree.
[20] Hillyer J was entitled to rely on the views of a sexual abuse counsellor when making his decision: there is no requirement that only the views of medical practitioners or registered psychologists can be taken into account. Although this application was not strictly within the regime set out in ss 23D-23I of the Evidence Act, we accept that the broad thrust of those sections should be followed when determining like applications made under the inherent jurisdiction. It is not a requirement of a statutory application as to the mode by which a complainant’s evidence is to be given that the judge is limited to considering reports only from expert witnesses as defined in s 23G. On the contrary, the judge is entitled to “call for and receive any reports from any persons whom the Judge considers to be qualified to advise on the effect on the complainant of giving evidence in person in the ordinary way or in any particular mode described in section 23E”: see s 23D(3). As Tompkins J said in R v Hauiti (1990) 6 CRNZ 599, s 23D(3) “does not call for formal qualifications”. Applying that subsection by analogy to this application, we are quite satisfied that Hillyer J was entitled to take into account the sexual abuse counsellor’s report and opinion. This was particularly appropriate in circumstances where the judge’s own interview of the complainant led him to the same conclusion as the counsellor as to the undesirability of this complainant having to face the accused as she gave evidence of an intimate nature.
[21] As to Mr Juran’s third point, we note that Hillyer J gave the standard direction concerning the use of screens immediately before the complainant gave evidence. We have not been given a copy of the judge’s summing up: no ground of appeal related to the summing up, with the consequence that it has not been transcribed (even if available after this lengthy period of time). There is no reason to
suppose, however, that Hillyer J did not repeat the standard warning concerning screens in the course of that summing up. Those warnings, assuming they were given, deal with Mr Juran’s third concern. It is not to be presumed that juries ignore those warnings. If Mr Juran’s argument were to be given credence, it would mean screens could not be used in cases where accused had been violent towards complainants. But those are usually the very cases where the use of screens is most justified.
[22] We accordingly reject the three grounds on which Mr Juran challenged the judge’s decision. In our view, the judge was entitled to make the order he did and no miscarriage of justice resulted from the use of the screen. This first ground of appeal fails.
Did a miscarriage of justice arise from the way in which the Crown dealt with
Mr Daniels’s letters?
[23] During the course of the complainant’s cross-examination, Mr Reece put to her a Christmas card which she had sent to Mr Daniels in prison. It read:
To Paul, thank you for your Christmas card. Lots of dreams, but lots of broken dreams, and I have no answers to any questions. Just have to make the best of what I have (my kids). Merry Christmas. All my love, [complainant’s name]. PS I’m keeping my eye on you like the picture on the front.
[24] This was the first Crown counsel knew about this Christmas card. The first question the complainant was asked in re-examination was this:
While referring to the card, why did you send it to the accused?…Paul had been writing frequently, sending me mail all the time, telling me this was going to be his last road in life. He just wrote that sort of letters all the time.
[25] The fact Mr Daniels had been writing to the complainant was a revelation to Crown counsel. After the complainant had finished giving her evidence, the Crown asked her to locate the letters Mr Daniels had written to her. She did that overnight; the letters were given to Crown counsel the next morning. That was the morning on which Mr Daniels started giving his evidence. Crown counsel put to Mr Daniels in cross-examination that he had previously made admissions to the complainant with
respect to the charges he faced. After he denied ever making such admissions, letters he had written to the complainant were put to him.
[26] Mr Reece had not previously seen these letters. He sought an adjournment to give him time to consider the matter. The judge granted that. Mr Reece then applied to the judge to have the trial aborted. This application appears to have been based on “the failure of the police to find the letters” earlier. The judge declined that application. He set out his reasons in the following section of his ruling:
I do not consider anything turns on the failure of the Police to find the letters; if anybody who knew they had been written it was the accused, who should have told his counsel. Mr Reece says that at least he should have been told before he opened this morning and called his client. In my view he was committed to call his client as a result of the number of times he had put to different witnesses what his client would say.
I have endeavoured to redress any harm that may have been done by his not being told about the letters until cross-examination of the accused, by permitting Mr Reece to discuss the matter with his client. He has done so at length over the adjournment. Normally of course, when an accused is under cross-examination, his counsel will not discuss matters with him, particularly those raised in the cross-examination. In this case however, I decided it was proper.
[27] On this appeal, Mr Juran raised a similar argument to that advanced by Mr Reece at trial. He said “the interests of justice required the trial to be aborted notwithstanding the attendant inconvenience to all concerned”.
[28] We do not agree with that submission. We consider the way in which
Hillyer J dealt with this issue to have been appropriate.
[29] The police were under no obligation to find these letters earlier. The fact that correspondence had passed between the complainant and Mr Daniels became known to the Crown only after Mr Reece had raised the issue in cross-examination of the complainant. Crown counsel did not see Mr Daniels’s letters until the morning he was due to give evidence. The prosecution was not under a duty to disclose those letters to the defence at that stage; the prosecution was entitled to assume that Mr Daniels would have disclosed this fact to his counsel: R v Hitchings [2007] NZSC 15 at [7]-[8]. In any event, his counsel would have known there was such correspondence from the answer given by the complainant in re-examination.
Crown counsel was entitled to wait until cross-examination to put Mr Daniels’s letters to him.
[30] If Mr Daniels made admissions in letters to the complainant and failed to tell his lawyer about that, that was his look-out. The way the judge dealt with this matter was eminently fair. There is nothing in this ground of appeal.
Did a miscarriage of justice arise from the way in which the judge dealt with
Mr Daniels’s sacking of his lawyer on the final day of the trial?
[31] The final matter of which Mr Daniels complains is what happened on the final day of trial. What happened is set out in a ruling (the third) of the trial judge:
During the course of Ms Gordon’s final address this morning I noticed the accused handing a note to Mr Reece. This apparently was the second note passed this morning.
At the close of Ms Gordon’s address, Mr Reece asked for an adjournment so he could confer with the accused. I retired at 11.10 am and he and Ms Gordon have just seen me in chambers. Mr Reece says that when he saw accused during the adjournment I had granted, he was distraught and said he did not wish Mr Reece to continue with the case, that he had no faith in him, he wanted all sorts of other evidence called and threatened Mr Reece with legal action for failing to represent him properly. Clearly the accused is in a highly emotional state.
I have indicated to Mr Reece that I would not be prepared to release him in these circumstances. He could refuse to continue with the matter, but he says he does not wish to go that far. At this stage of the trial, when the Crown has completed its summing up, I do not consider that I should re- open the matter or release Mr Reece as counsel. What action he takes is up to him to decide, but the trial is to continue.
[32] Following that ruling, Mr Reece gave his final address.
[33] Mr Juran makes no complaint about the content of that address. But he makes the following submission:
It is quite clear from the third ruling that by the end of the trial the relationship between the appellant and his trial lawyer had deteriorated to the point where it was no longer tenable. Counsel accepts for the purpose of argument that the appellant may have been better served by having his trial counsel close to the jury rather than requiring the accused to undertake that task or to adjourn the trial to unable other counsel to be appointed, however it is submitted that this was another signal to the trial judge that the
accused’s trial had run off the tracks and ought to have started again on another day.
[34] We do not accept that submission. This trial had not “run off the tracks”. It is true Mr Daniels had been caught out by the letters he had written to the complainant, although the Crown case even without those admissions was strong. Mr Daniels had no right to expect he should get a new trial simply because he decided to sack his lawyer on the final day of trial. It would appear from the judge’s ruling that Mr Daniels said he had many complaints about Mr Reece’s representation of him. It is noteworthy that fresh counsel have not raised those complaints on this appeal. So far as we can determine, Mr Reece’s representation was satisfactory.
[35] The judge’s ruling was appropriate. No miscarriage of justice arose on this score.
Conclusion
[36] None of the grounds of appeal gives rise to concern, either individually or cumulatively. We dismiss the appeal.
Solicitors:
Crown Law Office, Wellington
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