R v Darryl Craig Eastwood

[2003] NZCA 107

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA70/03

THE QUEEN

v

DARRYL CRAIG EASTWOOD

Hearing:11 June 2003

Coram:Anderson  J
Baragwanath J
Doogue J

Appearances:  J A Hope for Appellant

J C Pike for Crown

Judgment:16 June 2003 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1]       This is an application for leave to appeal out of time against conviction in respect of rape and unlawful sexual connection offences.  As the application is not opposed and the delay is explained and excusable, leave is granted to appeal and we deal with the matter on appeal.

[2]       The appellant faced six counts of rape, five of unlawful sexual connection and one of assault with intent to commit sexual violation.  All related to the same complainant.  He was found guilty by a jury on all counts after a second trial.

[3]       The appeal relates to the first five counts, three of rape and two of unlawful sexual connection.  The appellant complains that the trial Judge should not have permitted an amendment to the indictment in respect of those counts and that a miscarriage of justice resulted.

[4]       The appellant at trial faced an indictment which had as its first count a charge of rape “between the 1st day of June and the 31st day of December 1989 at Cambridge”.  Particulars alleged it was the first occasion of rape.

[5]       The complainant said she had told a neighbour and the Police about this alleged rape.  There was no contemporaneous Police file relating to such a complaint.  However, between the first and second trials the Police found a file relating to a 7 May 1992 complaint, which alleged three periods of abuse, two prior to the time of the complaint.

[6]       The second, third, fourth and fifth counts all referred to alleged offences at Hamilton in the first half of 1990.

[7]       There was no dispute that the complainant and the appellant lived together at Cambridge in 1989 and in Hamilton in 1990.

[8]       During the second trial the complainant gave evidence supportive of the first count as it stood, as did the neighbour to whom she complained.  Both said the Police had been informed of the complaint.

[9]       Evidence as to the 1992 complaint became important to the appellant’s case as the complainant could only recall complaining after the alleged 1989 offence.  The 1992 complaint could not relate to the first count in the indictment as it was a complaint about a third occasion of sexual offending, not the first, and by that time the complainant and the appellant were no longer living in Cambridge.

[10]     At the end of the Crown case the Crown applied to amend the first five counts in the indictment to extend the period in which the offences may have occurred to 1992 dates seemingly consistent with the 1992 complaint.  In respect of count 1, the critical count, the period of the alleged offence became between June 1989 and 7 May 1992 as opposed to the 1989 period in the indictment.

[11]     The appellant’s counsel opposed the application.

[12]     The trial Judge upheld the application.  The Judge expressed the view that there was some confusion about the time frame involved.  She recorded that the appellant’s counsel at trial had complained of prejudice of an unspecific kind.

[13]     The Judge said:

I am going to allow the amendment.  I do not consider that the issues of reliability, accuracy and credibility are changed in any way and those are matters that will be submitted upon in final addresses, as would only be proper.  I am not of the view that any prejudice has been shown as such in that there has been a denial in total of offending.

[14]     It is effectively from that ruling the appellant seeks to appeal upon the basis a miscarriage of justice resulted from the amended indictment.

Appellant’s case

[15]     It is submitted that prior to the second trial the Crown had known the indictment was seemingly inconsistent with the particulars of the May 1992 complaint but had elected not to seek an amendment until the end of the Crown case.

[16]     The appellant submits he was inevitably prejudiced by that as his case had been based on the indictment as charged.  It was not a case of dates being changed to reflect any new evidence but an attempt to enable the Crown to support a conviction on a basis contrary to the complainant’s evidence.  It is said the evidence did not support the amendment.

[17]     Specifically it is submitted that there was no possible basis for extending the alleged period of offending in the first five counts to 1992, when on the evidence the offences could not have occurred in that year.  That was the case in respect of all of the five counts as the period when the couple were in Hamilton was pre-1992 and not in dispute.

[18]     The appellant claims he was prejudiced by what occurred, as issues of credibility and reliability related directly to the manner in which the counts in the indictment were framed.  The Crown case and evidence was in accord with the indictment until cross-examination created possible doubts about that.  The amendments did not reflect the Crown evidence but sought to meet the appellant’s case.  When the amendments were made at the end of the Crown case there was no opportunity for the appellant’s counsel to cross-examine on the very different basis then presented.  It is said the appellant was deprived of the opportunity to meet the case as then put forward or ask for particulars of it.

The Crown case

[19]     The Crown says that the complainant was not confused about the substance of what occurred but only when it occurred, and therefore the amendments to the indictment were justified even if unnecessary.  There was no evidence sufficient to prove the 1989 date was wrong.  Rather the complainant was confused about how often she had seen the Police.  She was consistent in saying sexual violence occurred from soon after she and the appellant lived together in 1989.  She accepted that she complained to the Police in 1992 but in her statement then made clear, and her evidence confirmed, there was earlier offending.  Specifically her evidence confirmed the two Hamilton rapes as well as the earlier Cambridge one.  In addition there was also a later complaint in Te Kuiti to the Police.  The jury had to know the complainant went to the Police more than once.  There was the confirmation by her Cambridge neighbour of the first complaint, the 1992 complaint and the Te Kuiti one.  The complainant had to be confused when she said she had made just one complaint to the Police.

[20]     Count 1 required the jury to be satisfied the rape occurred at Cambridge and was the first occasion of rape.  The amendment to the indictment did not change that.  It merely extended the outside limit to the time frame.  The complainant was consistent that the first rape, reported to her neighbour, occurred in Cambridge.  She was equally consistent that two representative counts relating to Hamilton happened later.  The sequence of allegations related to place, which along with other key life events, fixed the time.  The 1992 complaint did not alter that sequence.

Discussion

[21]     The appellant is seeking to establish the amendments to the dates relating to the first five counts in the indictment led to a miscarriage of justice.  Trial counsel for the appellant could not specify at trial how the appellant was prejudiced by the amended dates.  Nor has appellant’s counsel on the appeal been able to do so.  As is accepted for the Crown the amendments to the indictment were unnecessary but that does not mean a miscarriage of justice occurred.

[22]     The appellant seizes on the 1992 complaint to the Police and says that as the complainant said she made only one complaint to the Police that had to be it and her story relating to the first five counts was thus inevitably wrong.

[23]     However, as already noted there was evidence from which it can be construed the complainant complained three times to the Police, not once, and the jury was entitled to accept such evidence.  The report to the Police in 1992 referred to one recent and two retrospective episodes.  The Te Kuiti report was later and distinct.  The earlier Cambridge report was the subject matter of the neighbour’s evidence as well as the complainant.  There was nothing to link the Cambridge neighbour with the 1992 report to the Police.  The inconsistencies in the complainant’s evidence did not mean she was a liar or that the jury’s verdict on the first five counts cannot be justified.

[24]     The amendments to the indictment did not and could not change the evidentiary basis upon which the Crown case rested.  All it did was extend the possible time frame in which the alleged offending occurred.  To the extent that was clearly inconsistent with the evidence it assisted the appellant to throw doubt upon the Crown’s case rather than assist the Crown.  At no time did the complainant say the offending the subject matter of the first five counts was later than 1990.

[25]     There has been no attack on the summing up.  It can safely be assumed the issues were properly put to the jury.  They had to be satisfied on all five counts to find as they did.  Therefore there is nothing unreasonable in the jury’s verdict that could cause a miscarriage of justice.

[26]     Further, there is nothing to indicate how the appellant was prejudiced by the amendments to the indictment to the extent that a miscarriage of justice eventuated.  The amendments, as already noted, made no difference to the evidentiary case the appellant had to meet.  The challenges to the complainant’s evidence remained the same.  They relied on the illogical postulate that because the complainant said she made only one complaint to the Police and the Police had the 1992 complaint the complainant had to be lying and her evidence on the first five counts rejected.  As already noted the Cambridge neighbour had confirmed a complaint to the Police, which could not be the 1992 complaint.  In addition there was the later Te Kuiti complaint to the Police so that the complainant was plainly wrong in saying she had made only one complaint to the Police.  Thus the appellant’s reliance on the 1992 complaint was misplaced.  The dates in the indictment neither advantaged nor disadvantaged the appellant in that respect.

[27]     It is suggested that with the change in dates the appellant’s case would have turned to the location of the alleged offences.  However, there was no suggestion at trial that the complainant’s evidence as to where the couple lived together at different times was wrong.  The amendments to the indictment did not change the case to be met.  It merely gave it a greater uncertainty than it previously had.  That had to benefit the appellant rather than the Crown.

[28]     We are not persuaded that any miscarriage of justice possibly arose from the misplaced amendments to the indictment.

[29]     We note, without elaboration or emphasis, that the practicality of this appeal is questionable.  The appellant was in any event found guilty on the other counts, including the worst of the offending, and there is no challenge to those verdicts or to the sentences imposed.  We make clear this has not influenced our views on the appeal in any way as if upheld it may have led to other steps.

Decision

[30]     The appeal is dismissed.

Solicitors:
Till Henderson King, New Plymouth for Appellant
Crown Law Office, Wellington for Crown