R v F (CA399/06)

[2006] NZCA 492

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA399/06

THE QUEEN

v

F (CA399/06)

Hearing:         16 November 2006

Court:            Chambers, Goddard and Gendall JJ Counsel:   J Sutton for Applicant

H D M Lawry for Crown

Judgment:      17 November 2006

Reasons:        17 November 2006

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

B        The appeal is dismissed.

R V F (CA399/06) CA CA399/06  17 November 2006

CAn  order  is  made  prohibiting  publication  of  the  judgment  and  the reasons therefor in the news media or on the internet or in any other publicly   available   database   until   final   disposition   of   the   trial. Publication of the reasons for judgment in the law report or law digest is, however, permitted.

REASONS OF THE COURT

(Given by Chambers J)

Joinder of trials

[1]      The applicant (“the mother”) has been charged with six offences against her daughter (“the complainant”).  Three of the counts (counts 1 to 3) relate to assaults she  allegedly  committed  on  specific  occasions.    There  are  three  representative charges relating to the period between 1 January 2002 and 27 July 2005: threatening to kill (count 4); assault (count 5); and, having custody of the complainant, a girl then aged under 16, wilfully causing or permitting her to be ill-treated, in a manner likely to cause her unnecessary suffering, actual bodily harm, injury to health, or any mental disorder or disability (count 6).

[2]      The complainant’s stepfather (“the stepfather”) has also been charged.   He faces 11 charges.  Five are counts of sexual violation by rape, four involve assaults with a weapon, one alleges indecent assault, and one assault on a child.  Some of this offending is alleged to have been committed on the complainant, some on her sister. That alleged offending covers a similar period to the mother’s.

[3]      The  Crown  applied  pursuant  to  the  court’s  inherent  jurisdiction  for  the charges against the mother and the stepfather to be heard together.   The mother opposed  that  application.    Judge  McAuslan  granted  the  application:  DC  MAN CRI 2005-092-10461 26 October 2006.

[4]      From that decision the mother has sought leave to appeal.  The joint trial is due to start next week.

Issues on the appeal

[5]      A decision to order joinder is discretionary.   This court has held that the criteria on joinder or severance applications are the same, whether the case concerns joinder or severance of counts or trials: R v Humphries [1982] 1 NZLR 353 at 355. Ultimately, the court is seeking to make an order “conducive to justice” (ibid). This involves a balancing of any prejudice which may flow to an accused from joinder against the “substantial public interest in having a joint trial” where there is a sufficient nexus between instances of offending alleged against different offenders: R v Fenton CA223/00, 14 September 2000 at [25].

[6]      In this case, Judge McAuslan undertook that balancing exercise.  In order to upset that decision, based on broad discretionary considerations as it was, the mother must show that the judge’s decision was “contrary to principle, or that the judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong”: B v Police (No 2) [2000] 1 NZLR 31 at [6] (CA). Has that been shown here?

Discussion

[7]      Mr Sutton, for the applicant, did not argue that Judge McAuslan had applied the wrong principles.  The judge had referred to the relevant appellate authorities and correctly identified the principles to be drawn from them.  Mr Sutton was not able to show any relevant facts or matters she had overlooked.  Nor could he point to any irrelevant facts or matters she had taken into account.

[8]      At the end of the day, Mr Sutton’s complaint really amounted to no more than a challenge to the weight the judge had given to some matters compared with others.      But   how   judges   weigh   factors   is   the   essence   of   discretionary decision-making; it is not the role of an appellate court to reweigh relevant factors,

unless the ultimate decision is plainly wrong.  Mr Sutton has not demonstrated that

Judge McAuslan’s decision was plainly wrong.

[9]      That is sufficient to dispose of the appeal.  But we go further, if only briefly. We think Her Honour’s decision, far from being plainly wrong, was plainly right. Mr Sutton’s principal concern was that the mother’s trial would be prejudiced by the jury hearing very damaging evidence against the stepfather.  He submitted that the association  of  the  mother’s  alleged  non-sexual  offending  with  the  stepfather’s alleged sexual offending were so prejudicial that there was a real risk that even the most focused and well-directed jury might fail to properly separate the two.

[10]     That overlooks, however, the fact that the father’s alleged sexual offending against the complainant is an integral part of the Crown’s case against the mother. The essence of count 6, as Mr Sutton confirmed to us, is that the mother is alleged to have stood by between January 2002 and July 2005 while, to her knowledge, her husband was sexually abusing and otherwise assaulting the complainant.  Her jury will, therefore, inevitably hear all the details of the stepfather’s alleged offending, as the Crown will be attempting to prove that she knew very well what was happening and did nothing to prevent it or to protect the complainant.

[11]     What the stepfather was allegedly doing is also of relevance to the other charges.  The gist of the Crown case against the mother is that, from the very first time the complainant was sexually and physically abused by her stepfather, the complainant sought the help and assistance of her mother.  The Crown case is that she told her mother what the stepfather had done, but the mother’s response, far from protecting her, had been to assault the complainant physically, while expressing her disgust and blaming the complainant for the incidents.   Clearly, therefore, the complainant’s allegations as to what her stepfather had been doing to her are highly relevant to the other counts that have been brought against the mother.

[12]     Mr Sutton, when we put this to him, accepted that it would be inevitable that the jury in the mother’s trial would be bound to hear in detail the complainant’s allegations against the stepfather.

[13]     This is a classic case for joinder.  It does not even give rise to the potential difficulties which arose in a case like Fenton.  There three girls were charged with murder.  Each had given to the police differing accounts of what had happened, and some of those accounts implicated co-accused.  The trial judge had to carefully direct as  to  the  admissibility  of  those  out  of  court  statements,  explaining  that  each statement was not evidence against the statement-maker’s co-accused.   This court held that a joint trial had been properly ordered and that the directions given by the trial judge had been adequate to prevent undue prejudice.   In the present case, we have no equivalent concern because evidence of the stepfather’s wrongdoing is not only admissible evidence in the mother’s trial but an essential feature of the case against her.

[14]     We have not overlooked Mr Sutton’s point that the stepfather is alleged to have abused not only the complainant but also her sister and that the mother faces no charges relating to that sister.  But that does not affect the issue, in our view.  The undeniable fact in this case is that there is a very close nexus between the mother’s alleged offending and the stepfather’s alleged offending.  Such extraneous offending on the stepfather’s part as may come to the jury’s notice on the mother’s trial can be adequately dealt with by way of judicial direction.

Solicitors:

Tucker and Co, Takapuna, for Applicant

Crown Law Office, Wellington