R v G(CA179/06)

[2007] NZCA 518

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA179/06 [2007] NZCA 518

THE QUEEN

v

G(CA179/06)

Hearing:         17 September 2007

Court:            O'Regan, Potter and Keane JJ Counsel:  Appellant in person

W C Pyke as Amicus Curiae
P K Hamlin

Judgment:      20 November 2007          2.30 pm

Reissued 7 May 2008 at 4. 00 pm : see recall judgment of 7 May 2008

Effective date of judgment: 20 November 2007

JUDGMENT OF THE COURT

The appeal is dismissed.

R V G(CA179/06) CA CA179/06  20 November 2007

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]      The appellant was charged with a number of sexual offences against his stepdaughter (whom we will call A) and his daughter (whom we will call B) between the years 1988 – 1998.   Following a jury trial in 2004, he was convicted on ten counts.  Details of the charges and the jury’s verdicts are as follows:

Count	Description	Verdict
Count 1	Indecent assault on A; 10/1/88 – 9/7/90; touching hips, buttocks, genitalia.	Guilty
Count 2	Indecent  assault  on  A;  10/7/93  –  9/7/94;  rubbing  and  touching genitalia with ice.	Guilty
Count 2A Alternative	Indecent  assault  on  A;  10/7/94  –  9/7/96;  rubbing  and  touching genitalia with ice.	N/A
Count 3	Indecent assault on B; 24/1/97 – 27/1/97; touching genitalia.	Guilty
Count 4	Sexual violation of B; 24/1/97 – 27/1/97; penetration of genitalia with finger.	Guilty
Count 5	Indecent assault on B; 20/3/97 – 23/3/97; touching genitalia.	Guilty
Count 6	Sexual violation of B; 20/3/97 – 23/3/97; penetration of genitalia with finger.	Guilty

Count 7	Indecent assault on B; 13/2/98 – 15/2/98; touching genitalia.	Guilty
Count 8	Sexual violation of B; 13/2/98 – 15/2/98; penetration of genitalia with finger.	Discharged s 347
Count 9	Sexual violation of B; 13/2/98 – 15/2/98; penetration of genitalia by mouth and tongue.	Guilty
Count 10 Representative	Indecent assault on B; 1/6/96 – 30/6/98; touching genitalia.	Guilty
Count 11	Indecent assault on B; 1/6/96 – 30/6/98; touching genitalia with food.	Not guilty
Count 12 Representative	Sexual violation of B; 1/6/96 – 30/6/98; penetration of genitalia with finger.	Guilty

[2]      On 14 July 2004, Judge C N Tuohy sentenced the appellant to a total term of seven years imprisonment.

[3]      The appellant sought to appeal against these convictions. In a minute of

25 May 2006, this Court ruled that the appeal should be treated as having been filed, together with an application for leave to appeal out of time, on 18 August 2004.

[4]      The Court was assisted by an amicus curiae, Mr Pyke, who made both written and oral submissions.

[5]      The appellant represented himself on the appeal, but chose not to make oral submissions at the hearing, other than to claim he had had insufficient time and facilities  to  prepare  and  that  the  Court  had  not  addressed  his  applications  for discovery and disclosure.  Both of those issues have been dealt with by this Court in a minute dated 16 May 2007 issued after an oral hearing at which both the appellant and the amicus were heard.  We do not intend to revisit those issues.

[6]      The issues on the appeal which were raised in the written submissions of the amicus were as follows:

(a)      Whether evidence of statements made by the appellant in the course of a discussion between him, the mother of the complainants (whom we will call K) and the complainants themselves during a visit to the appellant in prison were properly admitted as evidence at the appellant’s trial;

(b)Whether the fact that the above evidence revealed to the jury that the appellant was in prison meant the prejudicial effect of the evidence outweighed its probative value;

(c)      Whether the use in evidence of derogatory nicknames of the appellant caused a miscarriage of justice;

(d)Whether the verdicts on counts 4, 6, 9 and 12 were unreasonable or could not be supported having regard to the evidence; and

(e)      Whether the verdicts on counts 2 and 11 are inconsistent, meaning that the conviction on count 2 should be set aside.

[7]      We will deal with these grounds in the above order.

Exclusion of admissions made in the presence of the complainants and their mother

[8]      The evidence in issue concerns comments made by the appellant to K and the complainants.   When A told K about the sexual abuse committed against the complainants by the appellant, K made telephone calls to the appellant, who at the time was serving a sentence of imprisonment for a cannabis offence.  This led to a prison visit on 7 September 1998, attended by K and both complainants, which was instigated by the appellant.  K gave her account of the visit in evidence.  She said that when A confronted the appellant as to what he had done, he responded that it

was not the complainants’ fault, that it should not have happened, and that the whole family would get help for it when the appellant was released from prison.  K said the appellant was tearful, emotional and uncharacteristically remorseful.  B’s description of the appellant’s demeanour was in similar terms.  However, A said the appellant appeared “normal” and “truthful”.   The complainants’ evidence as to what the appellant said was to a similar effect to that of K.

[9]      K and A’s evidence had been ruled admissible on 4 May 2004 by Judge Tuohy following a voir dire.  Judge Tuohy found that the appellant’s statements had been voluntary, but was more troubled by the issue as to whether it would be unfair to admit them given that the state of the appellant’s mental health at the time the statements were made was equivocal.  The Judge concluded however that there was no evidential basis for a conclusion that the state of the appellant’s mental health made it unfair to admit the prison visit statements, and accordingly the Judge ruled the evidence admissible.

[10]     In summing up to the jury, Judge Tuohy commented on the prison visit evidence as follows:

… there was no admission of any specific misconduct, merely evidence which you might consider amounts to a general acknowledgement of some wrongdoing in the family.  Certainly you could not use that to support any specific charge and the Crown overtly does not put it before you on that basis.

In relation to the prison visit, are you satisfied that anything the accused may have said or done even indicated an acknowledgement of offending of this general nature in relation to [A] or [B]?  Could he have misunderstood what they were talking about in the absence of specific accusations, something you need to keep in mind.

Remember also his vulnerable position at that time, in a prison separated from his family and no doubt very concerned about retaining their emotional support and his bonds with them.  Keep those things in mind.

[11]     Mr Pyke accepted there would be no basis to dispute the admission of this evidence in the absence of any indication of mental illness.  However, he points to evidence that was not available to the Judge about the appellant’s mental state.

[12]     Mr Pyke referred to nine psychiatric reports on the appellant which were prepared between March 2001 and May 2004.   The opinions in these reports are divergent, but forensic psychiatrists have variously determined that the appellant suffers from a personality disorder, paranoid psychosis of a low grade delusional state, delusional beliefs of conspiracies, and schizophrenia with symptoms of grandiose and persecutory delusions and auditory hallucinations.   None of these assist in determining the appellant’s mental state at the time of the prison visit because they all post-dated the prison visit by at least two and a half years.  He also referred to a 1999 report which referred to the possibility that the appellant had developed persecutory and grandiose delusions over a one to two year period.

[13] Mr Hamlin pointed out that the fact of the appellant’s paranoid and delusional behaviour was already before the jury as a result of evidence given by K. K described the appellant’s behaviour from 30 June 1998 onwards as “bizarre”, saying the police had “broken him”. She said that on the day of the prison visit, the appellant’s behaviour was not bizarre, but “paranoid”. Accordingly, and in the light of Judge Tuohy’s direction set out at [10] above, the jury had sufficient material to determine whether the appellant’s statements were the product of mental illness or a remorseful conscience.

[14]     Mr Pyke cited the decision of the Full Court of this Court in R v Cooney [1994] 1 NZLR 38. In that case, Holland J for the Court referred to the Privy Council’s advice in Wong Kam-ming v R [1980] AC 247, in which Their Lordships confirmed that on a voir dire, the task of the Judge is not to decide whether the confessional evidence is true, but whether it is reliable. In Cooney, this Court said that in weighing the probative value of the admissions against their prejudicial effect, the court needed to take account of the degree of risk that the admissions were made as a result of a delusion.

[15]     In this regard Mr Pyke noted that the appellant was in prison, confronted with serious allegations, possibly labouring under a mental illness, and subsequently disavowed the admissions.    Further, they were not recorded in writing contemporaneously.  He also emphasised that there was no expert evidence before

the jury as to the mental state of the appellant at the time of the prison visit.  He said this meant the jury did not have the full picture.

[16]     We are satisfied that there was no unfairness in admitting this evidence.  As the Judge concluded, there was no evidential basis for a conclusion that the state of the appellant’s mental health made it unfair to admit the statements he made during the prison visit.  We accept Mr Pyke’s submission that subsequent assessments of the appellant's mental heath have indicated a variety of mental health problems, but all of these relate to a period long after the prison visit.  The evidence of K was that the appellant’s behaviour during the prison visit was emotional, and that he was “paranoid” which she  explained as  meaning that  he  considered  the  police  were persecuting him.  That does not provide any basis for a finding that the appellant’s mental state may have led him to make statements during the prison visit which were untrue or unreliable due to mental illness.

[17]     We do not see that there is any real parallel between this case and Cooney.  In Cooney, the evidence before the Court was that the appellant had suffered a severe or major depressive illness, and there was evidence that the illness which he suffered could lead to delusional beliefs of worthlessness and guilt, involving some risk that the confessions which he made were delusional.   Notwithstanding this, the Court concluded that the evidence had been properly admitted in that case.   In this case there is no evidential basis for the proposition that the appellant suffered a mental illness at a particular time, and, perhaps more tellingly, no evidence that any illness which he did suffer may have lead to a risk that he would make statements that were delusional, falsely attributing guilt to himself.

[18]     It is also notable that, unlike the situation in Cooney, in this case the evidence was not led as evidence of a confession or admission, but rather as conduct in the face of accusations from the complainants which supported their version of events. It is also notable that the prison visit, which inevitably involved the appellant’s being confronted with the complainants’ accusations, was something which he instigated and, indeed, insisted on.

[19]     We are satisfied that the Judge’s conclusion as to the admissibility of this evidence following the voir dire was correct, and that the way in which the matter was dealt with at trial was fair.

Evidence of the appellant’s imprisonment

[20]   It is contended, as an alternative to the submissions summarised above concerning the prison visit evidence, that the fact the jury knew of the appellant’s imprisonment meant the prejudicial effect of the evidence outweighed its probative value.

[21]     This was the subject of two rulings by Judge Tuohy.   On 4 May 2004, the Judge ruled that evidence of the prison visit should be given naturally, including evidence of where the visit occurred.  However the Judge said, “as little as possible should be led or said about the issue, and in particular, the length of imprisonment or the offence”.  In an addendum to this ruling given two days later, the Judge said that the evidence should be led on the basis that the appellant was in prison for a cannabis offence unrelated to the charges in issue.  This was to avoid the possibility that the jury might otherwise assume he was in prison for similar offences to those for which he was being tried.

[22]     In  summing  up,  Judge  Tuohy  directed  the  jury  clearly  that  the  fact  the appellant was imprisoned on a cannabis charge was irrelevant to its deliberations: the appellant’s previous conviction was irrelevant to the present charges and the jury could draw no adverse inference from it.

[23]     In  our  view  the  Judge’s  direction  adequately  dealt  with  the  potential prejudice.  We are also satisfied that the fact the jury became aware the appellant was a serving prisoner did not have a prejudicial effect which outweighed the probative value of the prison visit evidence.

[24]     Mr Pyke contends that references to the appellant by a nickname, (we will abbreviate this to “G”), and as a “kid f***er”, “scumbag” and “dirty scum” were pejorative, unnecessary, and had an unacceptably prejudicial effect on the appellant’s defence.   The trial Judge failed to address the jury in his summing up as to these particular appellations.

[25]     The phrases “kid f***er”, “scumbag” and “dirty scum” were used by K in her evidence.  She was describing a conversation she had with the appellant after having learned of the sexual abuse that the complainants said he had committed against them.  K was describing the phrases she used in that conversation in response to a request by the appellant to visit him in prison.   Mr Pyke argued that these were illegitimate expressions of opinion.   We disagree.   In our view, K was giving a factual  narrative  of a  conversation  she  had  had  and  that  narrative  was  relevant background to the prison visit evidence to which we have already referred.   The phrases were not repeated in any other context.

[26]     The phrase “G” is a nickname for the appellant that was used by his family. It was not intended to be pejorative or insulting.  It was used in both the evidence of K and, more extensively, in that of A.  When K first used the phrase, Judge Tuohy interrupted the evidence to clarify that the appellant’s nickname was “G” and that K knew  him  by  that  name.    Similarly,  in  leading  evidence  from  A,  the  Crown prosecutor clarified that “G” was a reference to the appellant.

[27]     Mr Pyke suggested that Judge Tuohy ought to have given specific directions to the jury to counter the prejudice caused by this evidence.  We disagree.  In our view  the  evidence  which  K  gave  of  the  names  she  called  the  appellant  after disclosure of the offending added little in terms of prejudice to the nature of the actual complaints.  We do not consider that any specific direction was required.

[28]     Mr  Pyke  submitted  that  the  verdicts  on  counts  4,  6,  9  and  12  were unreasonable and could not be supported having regard to the evidence.  These were the charges of sexual violation against B by digital and oral penetration of B’s genitalia.   This ground was based on the imprecise language used by B in her evidence on these counts.

[29]     After reconsidering the Crown’s submissions, the videotaped evidence of B and the transcript of her evidence at trial and the direction the Judge gave on this issue, Mr Pyke accepted he could not sustain the proposition that the verdict on counts 4, 6, 9 and 12 were unreasonable.  That was a realistic assessment.  There was clearly evidence  which, if the  jury accepted  it,  provided  a  proper  basis  for  the verdicts on those counts.   The evidence of B was expressed in somewhat vague terms in places, but the Judge gave a clear and fair direction on that in the following terms:

You will  remember that [B] was somewhat vague in her language, which was probably understandable with a girl of this age in relation to such an embarrassing issue.  You remember the language that she used was “mostly on the inside”, and you remember hearing her evidence on the closed circuit TV, given of course yesterday, and given at the age of 16 and you may have thought that there was some hesitation by her in her oral evidence on the closed circuit TV on this point.  It is for you to judge whether you consider that has been proven.

[30]     We consider Mr Pyke’s assessment of the lack of strength of this ground of appeal was realistic.  We formally reject it.

Inconsistent verdicts

[31]     Mr Pyke submitted that the verdicts on counts 2 and 11 were inconsistent and therefore the verdict on count 2 cannot stand.  Count 2 arose from an allegation made by A in evidence that the appellant stuck ice down the complainants’ necks and backs, and that he put it in their underwear and “smashed” it against their genitals. Although A said this happened to both complainants, B gave no evidence as to this matter.

[32]     Count 11 arose from evidence B gave in her video interview to the effect that the appellant would squash bananas on the complainants, put the bananas in their pants, and rub them around.  A also adverted to the use of a banana in her evidence, although she did say that she never saw a banana being used on anyone other than herself.

[33]     The   specific   substance   of   these   counts   was   not   explored   in   cross- examination.

[34]     In  R  v  Shipton  [2007] 2 NZLR 218 this Court set out the criteria for determining inconsistent verdicts. This Court said that if there is any rational explanation for the differing verdicts, the court should assume that is the reason for which the jury rendered them. Prima facie inconsistency is never enough to set aside a verdict and there is a curial reluctance to interfere with a jury’s verdict: R v H [2000] 2 NZLR 581 at 589 (CA). This Court said at [77]:

[T]here is no reason why credibility must be static. As was said in R v G [1998] Crim LR 483, “A person’s credibility is not a seamless robe, any more than is their reliability”. It is not necessarily illogical for a jury to be convinced as to the credibility of some aspects of one person’s story, but not as to others, a fortiori where it is convinced, but not beyond a reasonable doubt.

[35]     More recently, in R v Stewart CA515/05 15 August 2006 at [25], this Court said that the verdicts must be “irrational”, “perverse” and “so inexplicably inconsistent that interference by the appellate Court is called for”.  It is notable that in the present case the verdicts said to be inconsistent are in respect of different complainants, in contrast to the situations in Stewart and Shipton, in each of which there was only one complainant.

[36]     The Judge dealt with counts 2 and 11 together in his summing up, telling the jury that there was an issue as to whether the food and ice incidents were indecent in the light of the jury’s assessment of community standards.   He rightly left that assessment to the jury.

[37]     In  our  view,  there  are  a  number  of  possible  explanations  for  the  jury’s verdicts on these counts.  We reject Mr Pyke’s contention that the only real issue at

trial relating to these allegations was the jury’s assessment as to whether the appellant’s conduct in each case was indecent.

[38]     A’s evidence in relation to count 2 (the offence involving the use of ice) was specific and detailed.  She gave her evidence in court.  She was the older of the two complainants.   Her evidence on this count was supported by B’s evidence.    In contrast, B’s evidence on count 11 (relating to the use of a banana) was sparse.  A did not give evidence of having seen the use of a banana on B.  A did give evidence of seeing the use of a fish finger on B, but B gave no detailed evidence of that occurring.

[39]     In our view the verdict on count 2 reflected the jury’s assessment that A’s clear evidence, supported by B’s evidence established guilt beyond reasonable doubt. The jury may have found the evidence on count 11 did not reach that standard.  That is not inconsistency, but rather appropriate discrimination between counts where the evidence was qualitatively different.

[40]     We therefore reject this ground of appeal too. [41]     The appeal against conviction fails.

Sentence appeal

[42]     The appellant’s notice of appeal stated that he wished to appeal against both conviction and sentence.  However, the points on appeal filed by Mr Pyke did not raise any issue relating to sentence and we did not receive any submissions  in relation to the sentence appeal, either written or oral, from the appellant, Mr Pyke or Mr Hamlin at the hearing of the appeal.   For that reason we did not specifically address the appellant’s sentence appeal in this judgment as originally issued.   We subsequently provided the appellant with an opportunity to make submissions on the sentence appeal.  He did not avail himself of that opportunity.   We therefore deal with the sentence appeal without the benefit of submissions in support of it.

[43]     Judge Tuohy imposed sentences of seven years imprisonment on each of the three  counts  of  sexual  violation  and  three  years  imprisonment  on  each  of  the indecent assault charges.   All of the sentences were concurrent, so the overall sentence for all ten counts was seven years imprisonment.

[44]     At sentencing, the Judge was asked by the Crown to remand the appellant to the High Court for consideration of a sentence of preventive detention.  He declined that request, on the basis that he considered that a lengthy determinate sentence would provide adequate protection to society.

[45]     As to the sentence itself, the Judge considered the offending on a totality basis.  He took as a starting point seven years imprisonment, but made it clear that his reference to “starting point” included an allowance for the aggravating factors which he identified as:

(a)      The use of a degree of force in relation to the oral sexual violation count (though the Judge noted that in relation to the other sexual violation charges the use of force was at a level which was intrinsic to the offences themselves);

(b)       The age of the complainants, varying between eight years old and

12 years old, depending on the individual count;

(c)      The gross breach of trust which the offences involved in that the victims were the appellant’s daughter and step daughter;

(d)The severe effect on the victims.   The Judge said that it was clear from  the  victim  impact  statements  that  the  victims  had  suffered serious  emotional  effects,  though  he  found  it  difficult  to  identify which of those related solely to the offending, and those resulting from the appellant’s manipulation of the victims and their fear of him;

(e)      The complete lack of acknowledgement or remorse on the appellant’s part, at least in the public sense.  The Judge perceived that the public

position taken by the appellant may not be entirely in accordance with what the appellant might sometimes acknowledge privately.   He referred to the conduct of the appellant at the time the offending was first disclosed (see [8] above) and also to the appellant’s conduct after the complainants had given evidence, which the Judge thought amounted to “a sort of acknowledgement by you of the offending”. However he noted that for public purposes the appellant completely denied the offending at the time of sentencing, and did not acknowledge it;

(f)       The  appellant’s  previous  convictions.    The  Judge  noted  that  the previous convictions did not related to sexual offending, but nevertheless considered that the fact that the appellant had a long list of previous convictions of one sort or another over many years, including offences of violence, was an aggravating feature.

[46]     The Judge could identify no mitigating factors.

[47]     In setting the starting point of seven years imprisonment, the Judge referred to the decision of this Court in R v Tranter CA406/03, CA36/04 14 June 2004.  In that case this Court said that there was no tariff for cases of sexual violation by digital penetration.   It added that it would be only in rare cases that a two year starting point would be appropriate and that a starting point in excess of five years may well be appropriate in more serious cases: at [9].

[48]     As the Judge noted, the reference to “starting point” in the judgment of this Court  in Tranter referred to a starting point before any allowance for aggravating factors.    In  the  present  case  the  starting  point  of  seven  years  incorporated  an allowance for the very significant and numerous aggravating factors, which means that the starting point in the sense in which that term is used in Tranter would have been in the region of four – five years.

[49]     Given that the appellant was convicted of three counts of sexual violation

(two  involving  digital  violation  and  one  involving  oral  sex),  as  well  as  seven

indecent assault counts, that starting point can be considered to be well within the range envisaged by this Court’s decision in Tranter.  In our view a sentence of seven years imprisonment, once the multiplicity of offending and the aggravating features are brought into the equation, is unexceptional.

[50]     For these reasons the appeal against sentence fails.

[51]     We dismiss the appellant’s appeal against conviction and sentence.

Solicitors:

Crown Law Office, Wellington