R v Edwards CA94/04

[2004] NZCA 424

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA94/04

THE QUEEN

v

DOUGLAS VERNON EDWARDS

Hearing:         30 August 2004 Coram:  Anderson P

John Hansen J Randerson J

Appearances: A J Ryan for Appellant

M R Heron and J L S Shaw for Crown Judgment:  21 September 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

Nature of the appeal

[1]    The appellant was convicted on his trial in the District Court before Judge Wolff and a jury on one count of sexual violation of a young woman by unlawful sexual connection, for which he received a sentence of four years imprisonment. He now appeals against conviction and sentence.

R V DOUGLAS VERNON EDWARDS CA CA94/04 [21 September 2004]

[2]    The offence occurred in a house provided to the appellant, a stud manager, by his employer. He used to sleep in one of the three bedrooms. The complainant, a teenage employee of the stud, had another bedroom. At the time of the offence the third bedroom had been allocated to a casual visitor, a young man whom we shall call “B”. A young woman, whom we shall call “M”, was also visiting. She  had  been allocated a spare bed in the complainant’s bedroom.

[3]    One evening, a few days before Christmas 2002, the four occupants of the house went to the local town for some social entertainment. The appellant and complainant both drank to excess. M, who had not been drinking alcohol, drove the complainant back to the residence then returned to town. The complainant who was very much the worse for wear vomited as she made her way from her bedroom to the lavatory and then fell asleep on a bed in her room. Some time later the appellant drove himself back to the residence and retired to his room. Later again, M returned with B to the house and did what she could to clean up the vomit deposited by the complainant. She decided she would sleep that night with B, in his room, anticipating the resumption of sexual relations which had occurred between those two a few days previously.

[4]    At about 3 a.m. the complainant was awakened by the fact that someone had entered her bedroom, drawn down her underwear and was licking her genitalia. She began kicking out at the offender and then rolled over at which point the offender got up, went to the door about two metres away, and left the room. Although the bedroom was unlit, the hallway into which the door opened was reasonably well illuminated by lights from the immediately adjacent kitchen and dining area. The complainant said that as the person walked out the door the light in the dining room and kitchen was on and she saw the person from behind. Examination in chief proceeded at that point as follows:

Did you notice anything about the person at that stage?…A dressing gown, they were wearing a dressing gown.

What can you tell the jury about the dressing gown?…Um, it was short, very short.

Do you recall the colour or anything like that?…No it was dark, couldn’t see the colour.

[5]    The complainant was able to say that the person was of a solid build and not much taller than herself, she being 5 foot 7 inches she thought.

[6]    Understandably, the complainant’s descriptive testimony was challenged in cross-examination. It was suggested that when the door opened she would have been dazzled by the effect of two 150 watt light bulbs in the kitchen but she denied that. Relevant parts of the cross-examination were in the following terms:

There are two very powerful 150 watt bulbs in the kitchen aren’t there?…Yes.

I suggest to you that when that door opened you would have been dazzled by that light and you wouldn’t have seen anything, your answer to that is no is it?…I saw what I saw, what I have said.

You saw a person you thought was a guy?…Yes.

You knew that Doug and B were in the house at least?…Yes.

You weren’t sure whether it was Doug or B though were you?…I didn’t see their face.

Right. Now, the garment that the person was wearing could well have been just a shirt or a sweatshirt outside some other  clothing couldn’t it?…With big baggy arms?

Yes?…I guess so, bit of a difference. Well?…He had a tie on the dressing gown. Pardon?…There’s a tie on the dressing gown.

You didn’t see a tie, you couldn’t possibly have seen a tie in that situation could you?…Well you can see the shape that it gets pulled in.

[7]    Immediately after the offender had left the room the complainant telephoned her boyfriend in another city. He contacted her father and the Police were called in later in the morning. A search of the house disclosed a short dressing gown hanging on a robe hook inside the door of the appellant’s bedroom and no other dressing gown was found. There is no dispute that the particular garment found by the Police was owned and often used by the appellant.

[8]    The complainant underwent a genital swabbing procedure which disclosed male DNA obtained from sites on her labia. The DNA material was sufficient only

to indicate male DNA with a profile present in one out of twenty New Zealand males. This is not a high level of probability in terms of the DNA profiling science.

[9]    A suspect DNA sample was obtained from the appellant. Analysis showed him to be in the one in twenty suspect group. The Police also obtained a databank sample from B but due to oversight on the part of the Police this was never analysed. If it had been, it was twenty times more likely that B would be excluded from, rather than included in, the suspect sample group. If, against such odds, he should also be in the suspect group, the probative value of the appellant’s DNA conformity with the suspect group would be neutralised in terms of evidential weight.

[10]   M’s evidence showed that B could not be excluded from consideration for want of opportunity. He did not give evidence because he was overseas at the time  of the trial. M testified that while she was waiting for him to join her in his bedroom he was in another part of the house having a snack and a cigarette and at one stage apparently talking to the appellant in the appellant’s bedroom.

[11]   The defence at trial proceeded on two bases. The first is that there was a reasonable doubt whether the complainant had actually experienced or only dreamed the incident. Given the existence of male DNA on her labia and her underwear having been drawn down to her knees, the proposition is best described in terms of extreme optimism on the part of the defence. The second and more tenable proposition was that there was a reasonable doubt over the identity of the offender. On that issue the defence could exploit the complainant’s intoxicated and sleepy state, the understandable distress the complainant would have experienced on being awakened by the violation, the very short space of time the offender would have been illuminated in the doorway on leaving the room, the window of opportunity open to B by reason of M’s evidence, and the fact that the odds in relation to the DNA sample could not reasonably exclude the possibility that B may have been the offender.

Grounds of the appeal

[12]   One of the grounds of the appeal challenged the procedural propriety of the obtaining of the appellant’s suspect DNA sample, a point which does not seem to have emerged pre-trial. It was in any event excluded by the production for the purposes of the appeal of relevant documentation regular as to form. So that matter was not pursued.

[13]   There had been an application, made about four weeks before the scheduled date of the appeal, for this Court to order the analysis of B’s DNA sample. That application was dismissed ex parte, a process which counsel for the appellant noted with concern in his written submissions on the appeal. Acknowledging counsel’s concern the Court indicated its willingness to hear submissions in support on the appeal and to revisit the issue if persuaded that there was jurisdiction and reasonable justification for such a course. Given that the absence of analysis permitted the appellant both at trial and on the appeal to argue that B was not rationally excluded whereas, on analysis of the sample, B was twenty times more likely to be absolutely excluded than that he, along with the appellant were both included, it was obviously more tactically advantageous to exploit the possibility of possible inclusion than face the twenty times greater likelihood of unarguable proof, in all the circumstances, of the appellant’s guilt. The appellant’s counsel was, understandably in the circumstances, quite willing to drop the point on the appeal.

[14]   It was submitted that the behaviour of the complainant in the courtroom after she had given evidence was a factor contributing to an overall miscarriage of justice. That submission was founded on affidavits by two of the appellant’s supporters at trial. They deposed that whenever the complainant entered the courtroom after having given evidence she was crying and was helped by her mother and other people with her, particularly her boyfriend. They apparently took exception to the fact that the boyfriend supported the complainant by putting his arm around her and that the complainant evinced distress by weeping or, in the words of one of the deponents, “snivelling”. It was argued that this display of emotion and emotional support would have excited in the jury a sense of sympathy towards the complainant and antipathy towards an offender so as to interfere with the process of determining

whether the complainant had in fact been violated as she described and if so, who the identity of the attacker was.

[15]   Counsel for the appellant did not suggest that this particular ground carried much weight, in our view rightly so. In fact we think it has no weight at all. As we have indicated, it could not sensibly be questioned whether the incident actually occurred. The real issue was identity and the complainant did not purport to identify the appellant; she merely described the approximate build of the offender and the fact that such person was wearing a short dressing gown. Guilt on the part of the appellant could not rationally be founded on that fact alone. Nor was the Judge, or any counsel, moved to mention the complainant’s alleged behaviour or intervene in any way. This is no doubt because it was an irrelevancy, even if it had the character described by the two deponents. We see no proper basis for even admitting this evidence on the appeal.

[16]   The question of identity was examined in counsel’s submissions at two levels. The first is that there was no adequate evidential basis for a conclusion beyond reasonable doubt that the appellant was the offender. The second is that the Judge misdirected the jury on the issue of identity by failing adequately to emphasise the weaknesses of the appellant’s description.

[17]   As to the former, the submission was to the effect that in all the circumstances B could not rationally be excluded and that there must therefore have been a reasonable doubt on the crucial issue. In counsel’s submission the evidence  of identity was so tenuous as to have required the trial Judge to remove the issue from the jury. That of course is just another way of saying that the jury could not rationally have concluded that, beyond reasonable doubt, the offender was the appellant.

[18]   In what seems to have been a direction of a broadly generic rather than case specific nature the Judge directed as follows:

The next matter I intended to speak about I seem to have very unwittingly left off there, and it should be in capitals, and that is the issue of identification. If you have a pen there, please, could you write in write in capital letters, add in the word there, ‘Identification.’ This is a case where

the case against the accused depends wholly or substantially on the correctness of an identification (inaudible 10:16:00) identification of the accused, which the defence allege to be mistaken. I must therefore warn you of the special need for caution before convicting on the reliance of the correctness of identification. The reason for this is that it is quite possible  for an honest witness to make a mistaken identification, and notorious miscarriages of justice have occurred as a result. A mistaken witness can be a convincing one, and even a number of apparently convincing witnesses can be mistaken.  It is to be remembered that sometimes people make mistakes  in the recognition of others, even of relatives and close friends. You must therefore examine the circumstances in which the identification was made. How long did the complainant have the perpetrator under observation? At what distance? In what light? Was that observation impeded in any way? How familiar was she with the person that she says she was identifying? How often had they met? And so on. Has the complainant any special  reason for remembering the accused? Were the witnesses’ perceptions possibly impaired by drink or drugs? How long had elapsed between the original identification and the subsequent identification to the Police? Was there any material discrepancy between the description given to the Police by the witness when first seen by them, and his actual appearance?

[19]But the Judge went on further to say:

In this case, of course, while identification has been emphasised, the complainant really says that she did not see the person clearly, that all she purports to identify is that that person appeared to be wearing a dressing gown that was dark in colour and similar to that owned by the accused. She does not say at any point categorically that it was the accused. She appears  to believe that it was not the other occupant of the address, but she makes no positive identification. This case will depend on the other surrounding evidence, and it would be wrong to approach the identification evidence in any way as conclusive. You need to be most careful, as I have emphasised, with the evidence of identification, and I hope each of you have written it in very big capitals on that sheet that I have given you, because I have unwittingly left it off. I had it in capitals and I somehow seem to have  whited it out when I was trying to do my own typing, as sometimes happens.

[20]The Judge further addressed the issue of identification in the following terms:

If you are satisfied that something happened to her, you need next to ask yourself, was it the accused? In considering that question, you are going to have to apply your knowledge and experience of the world to the issue of whether the brief identification of a single item of clothing, when you couple the careful warning I gave you about identification evidence and the possibility of mistake, is sufficient to tie the accused in as responsible for this event. But added to that you will need to consider whether the Crown have eliminated the possibility that it was a total stranger, or whether the Crown has eliminated the possibility that it was Mr B, and you will need to consider whether what happened with the way in which the events happened, whether the Crown have established it was the accused. If you are not sure, then you would acquit the accused and you would not need to go on to deal with the next factual question.

[21]   We are satisfied that the Judge’s direction on identification were adequate. This was not a case of alleged eye witness identification of a person, where the general directions iterated by the Judge have a more obvious application, but it cannot reasonably be said that the appellant was prejudiced by the breadth of the Judge’s generic remarks. The question of identity in this case was as much a matter of circumstantial evidence as recognition or description of an identifying feature. That feature was of course the short dressing gown and the generic directions were sufficient to draw the jury’s attention to the lighting conditions, possible impairment by drink and the short time in which the dressing gown could be observed.

[22]   The Judge himself made it plain that the complainant’s perception of a dressing gown was not in any way conclusive and that the case depended on other surrounding evidence. He could not have emphasised the issues about identity more firmly, without risking the appearance of labouring the obvious.

[23]   The evidence capable of identifying the appellant as the offender included the complainant’s testimony about the short dressing gown, the fact that the appellant had and often wore such a dressing gown, and the fact that no other dressing gown was in the premises. Further, the likelihood of a complete stranger entering the  house and the complainant’s bedroom clothed in what was or might even appear to be a dressing gown is highly improbable. Realistically, the offender was either the appellant or B. There was the matter of the DNA profile where B could not be absolutely excluded although the probabilities of his exclusion were high. Also,  there was a window of opportunity for B to enter the bedroom, should he have been minded to do so. But the jury would have been entitled to think it highly unlikely  that B would detour into the complainant’s room to take indecent liberties with a sleeping woman before retiring to his own room where his recent paramour awaited. In light of the combined eye witness and circumstantial evidence it could not be said that the jury had no rational evidential basis for excluding B and concluding that the offender was the appellant.

[24]   Counsel for the appellant submitted that the Judge misdirected the jury in relation to the dressing gown by referring to it as “dark in colour”. This may have been a factual slip by him. As we mentioned in [4] when the complainant was asked

whether she recalled the colour, she replied, “No it was dark, couldn’t see the colour”. The answer is ambiguous. It may mean that she could not see the colour because the room was dark or, that she couldn’t see the colour but its tone was dark. Either way, it is impossible to accept that the appellant was in any way prejudiced by what may or may not have been a misinterpretation of the witness’s answer. The  way the matter was put by the Judge was capable, if anything, of slightly assisting the appellant because his dressing gown was not in fact dark.

[25]   The final point made in support of the appeal against conviction relates to the following directions by the Judge:

It is appropriate that I say a little bit more about the accused’s position because, as I have told you, there is no onus on him at any stage to prove his innocence. He is not bound to give evidence. He can sit back and see if the prosecution has proved its case, in the way that he has done. Where, as here, he has done that and sat back, that means you’ve not had the opportunity of hearing directly from him on oath in the witness box what his side of events is, but what you do have is the account that he gave to the Policeman on the video interview. You have not, however, had the benefit of hearing his account tested in any respect in cross-examination. It would be entirely a matter for you as to what parts of his statement you accept and what parts you reject. The truthfulness, accuracy and weight of that statement is  entirely a matter for you, but I should make it perfectly plain to you, the fact that the accused has not given evidence does not prove anything. You must not assume that the defendant is guilty because he has not gone into the witness box.

[26]   The submission in relation to that part of the summing up was that the jury would have been influenced into thinking that the prosecution had proved its case because the Judge had said so. With respect to counsel, we have difficulty in understanding how the direction could reasonably have conveyed to anyone that the Judge was of the view that the Crown had proved its case. The direction is pointed  at the quality of evidence in the nature of a video interview of an accused who has not given evidence. It is not inappropriate to point out to a jury, as the Judge did,  that the account has not been tested in any respect by cross-examination.

[27]   The directions recited above are in large measure a replication of directions  to the same effect given earlier in the summing up. So, at two points, the Judge emphasised that there was no obligation on the appellant to give evidence and that guilt is not to be assumed because he had not.

[28]   We are not persuaded that there was anything in the Judge’s directions about the quality of the video interview which could conceivably be characterised as wrong or unfair. We think it preferable however that trial Judges refrain from the use of the expression, hallowed more by time and repetition than by desirability, that an accused “can sit back”.

[29]For the above reasons the appeal against conviction must fail.

Appeal against sentence

[30]   The grounds of the appeal against sentence are that it was manifestly excessive. In the appellant’s favour it could be said that he had no previous offence history which might indicate a need to go to the upper end of an available range. His only prior convictions, many years before, were alcohol related driving matters. The Judge noted that the appellant’s history simply showed, for the purpose of sentencing, that he had a predilection for alcohol, which appears to have  played some part at least in his present offending. Counsel criticised that observation as representing an adverse inference but we cannot agree.

[31]   In support of the appeal against sentence counsel annexed the fairly extensive submissions he made to the District Court Judge. We do not find that technique helpful on an appeal where there is no dispute between counsel as to what may have been said at the time of sentencing. What an appellant must do is satisfy this Court that in all the circumstances of the offence and the offender the sentence was manifestly excessive.

[32]   Here the appellant can point to the offence being out of character and his own qualities as a loyal, hard-working and intelligent employee. He was spoken well of by his employer, by other people who knew of him and had made a contribution to the community generally, the industry in which he worked and his own family. All of these matter were noted and recognised by the sentencing Judge.

[33]   An offer of reparation in the sum of $5,000 was made on behalf of the appellant to the complainant but she rejected it. Nevertheless the Judge, as he said, took that into account as a genuine offer.

[34]   Mitigating features acknowledged by the Judge were the previous good record and the immediate decision to desist as soon as the complainant indicated that the advances were not wanted. Against this, however, is the significantly  aggravating feature of the breach of trust. The appellant was a middle aged man in a position of some seniority in respect of his young employee. The young woman had every right to feel safe in her own bedroom in her superior’s home. Notwithstanding that, the appellant took advantage of the complainant’s alcohol induced state and the fact of her being asleep in order to violate her.

[35]   In support of the appeal, counsel referred to a great number of cases involving sexual violation by unlawful sexual connection. He noted, correctly, that  in R v M this Court recorded at [9] that it had not attempted to set any tariff for cases involving sexual violation by digital penetration, but that the cases show sentences fixed against starting points ranging from two to five years on conviction after trial and before allowing for mitigating factors. Counsel urged us on this occasion to attempt to identify a tariff but we are not prepared to do so. In R v M this Court said that the appropriate sentencing level depends upon the circumstances of the offending. The implication is, of course, that as a generalisation, sentences in cases of sexual violation by unlawful sexual connection will tend to fall within a two to five year range, modified not only by the circumstances of the offending but by such factors as guilty pleas and personal mitigating characteristics.

[36]   It is the case that R v M referred to cases of digital penetration, not oral- genital contact. As such, it is a guide in the present case but not necessarily conclusive. Its tenor is apt, however, and indicative of a general range having regard to the circumstances, but subject of course to unusually mitigating or unusually aggravating features.

[37]   Mr Ryan referred us to R v Wheki CA387/02 24 July 2003 where one occasion of oral sex, in many respects comparable to the present case, resulted in a

sentence of three years imprisonment. There were similarities in the fact of a similar transitory occasion, and in the taking advantage of an intoxicated victim. On the other hand, the offender was only in his early twenties and a somewhat naïve young man who had not had the life experience and maturity of the appellant in this case. Moreover, Wheki had admitted the occasion of oral genital contact and his case had come before this Court in respect of his appeal against rape.

[38]   We think the sentence of four years imprisonment in this case was stern and should not be regarded as a precedential reference point for racheting up sentences for offending which, as a generalisation, have a sexual character. Notwithstanding which, we cannot say that in the case before us the sentence was manifestly excessive. We can only say that it was stern but within an available range.

Result

[39]   For the above reasons, the appeals against conviction and sentence are dismissed.

Solicitors:

Chartwell Law, Hamilton for Appellant Crown Solicitors, Auckland