R v G (CA272/06)

[2007] NZCA 62

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA272/06 [2007] NZCA 62

THE QUEEN

v

G(CA272/06)

Hearing:         21 February 2007

Court:            O’Regan, Chisholm and Rodney Hansen JJ Counsel:   E J Forster and S M Beacham for Appellant

M D Downs for Crown

Judgment:      12 March 2007         2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

R V G(CA272/06) CA CA272/06  12 March 2007

Introduction

[1]      The appellant was charged with three counts of sexual offending against two young complainants.  At trial, he was discharged on two out of three counts because the young complainant in relation to those counts was unable to give evidence.  The appellant sought an order declaring a mistrial owing to the fact that the jury had already heard both evidence and submissions in relation to the counts on which he was discharged, and that the resulting prejudice could not be overcome by a direction to the jury to ignore the prejudicial material.  No mistrial was granted, the appellant was convicted on the remaining count, and he now appeals to this Court against that conviction on the basis that a miscarriage of justice arose from the failure of the Judge to order a mistrial.

Background

[2]      The complainants are sisters.  The appellant is their cousin.  At the time of the offending, A, the younger of the complainants, was four years old.  B, the older complainant, was five.  The Crown alleged that the appellant, who was staying with A and B’s mother, committed sexual offences against A and B on the same day and that each of the sisters was a witness to the offending against the other.

[3]      A and B complained to their mother some hours after the alleged offending. Their mother alerted police.   Both complainants completed video interviews with police the following day.   In her interview with police, A said that the appellant had got into bed with her, B and their brother in A and B’s bedroom.  He had touched and licked her “flower” and had done the same thing to B.  It was established that both girls used the word “flower” for “vagina”.

[4]      B’s video interview with police was to a similar effect albeit with some variations.  B said that the appellant, in addition to touching and licking A and B’s vaginas, also licked the inside of their ears.  B said that this occurred in the sitting room, when A and B were lying on the couch.   B said that A and B’s sister was present.

[5]      The  appellant  was  charged  with  sexual  violation  by  unlawful  sexual connection  against  B (count  1),  sexual  violation  by unlawful  sexual  connection against A (count 2) and doing an indecent act on A, a child under 12 years of age (count 3).

The course of the trial

[6]      In   the   Crown’s   opening   address,   the   prosecutor   referred   to   both complainants,  describing  the  circumstances  in  which  the  Crown  said  that  the appellant had sexually violated each of them in the other’s presence.  He summarised the content of the police video interviews of A and B.  He referred throughout to the two complainants collectively.

[7]      Counsel for the defence also made some brief opening remarks.  He too made references to both complainants and referred to them collectively.  He asked the jury to keep a watch out for any inconsistencies between the complainants’ accounts.

[8]      B’s evidence-in-chief comprised her video interview with police (a direction to this effect had been given in respect of both complainants’ evidence-in-chief, pursuant to s 23E of the Evidence Act 1908).   The video was played to the jury. Following this, defence counsel cross-examined B briefly.  Defence counsel asked B about the period in which the alleged offending had taken place in the sitting room. He then asked her a question about the name of her sister and the diminutive form of that name.   B had said that the sister was present during the offending, although counsel did not ask her about that.  He put it to B that she was lying.  The question about lying was complex and, in defence counsel’s submission, her answer was an acceptance that she was lying.  But that was by no means clear.  In re-examination she said she was telling the truth.

[9]      Following B’s evidence, A’s video interview was played to the jury as A’s evidence-in-chief.  At the conclusion of the video the trial Judge, Judge Wilson QC, endeavoured to explain to A the difference between telling the truth and telling lies. A did not confirm she would tell the truth and became distressed and upset.  Court was adjourned briefly.  Following the adjournment, counsel for the Crown advised

the Judge that, in the interests of A’s welfare, the Crown would not be calling any further evidence from A. This, of course, rendered cross-examination of A an impossibility.

[10]     Counsel for the defence then applied for a discharge on counts 2 and 3 pursuant to s 347 of the Crimes Act 1961.   The Crown prosecutor submitted that there was sufficient evidence in B’s video, namely the confirmation that B had seen the appellant violating A, to provide an adequate basis for conviction on counts 2 and 3 without A’s evidence in chief.    The  Judge  disagreed  and  discharged  the appellant on counts 2 and 3.

[11]     Counsel for the defence then applied for a mistrial in relation to count 1 on the grounds that the jury would have difficulty in excluding from its collective mind the corroborative effect of A’s video evidence and an “incurable sympathy” for A. The Judge refused the application, saying that it was not in the interests of justice to grant it.  He promised that he would adequately direct the jury so as to minimise the prejudicial effect of the evidence it had already heard in relation to A.

[12]     Judge Wilson then gave a direction to the jury in which he told them of the s 347 discharge and said:

It would be quite wrong for you as the jury to take into account in any way the video-taped evidence for the reason that, since it has not been the subject of cross-examination, you do not have the advantage of that balancing exercise.  You must, of course, at the end of the day come to your decision on the remaining count solely on the evidence, which is relevant to that count.   I direct you that you may not take into account, in reaching that decision, anything that you saw in [A’s] video tape.  That is to be excluded. Decide it on other evidence that you find supports the charge, if you do.

[13]     The Judge also noted to the jury the importance of putting aside sympathy or prejudice and deciding the case in a “clinical” way.

[14] In his summing up, the Judge repeated almost verbatim the direction he had given to the jury when informing them of the discharge (reproduced at [12] above).

Issue on appeal

[15]     The appellant now submits that his conviction is unsafe in a number of respects:

(a)      The jury heard the Crown and defence opening statements refer to both complainants;

(b)The jury heard A’s unsworn, untested evidence, which corroborated B’s evidence and essentially constituted propensity evidence with respect to count 1;

(c)      The opportunity to cross-examine B in a way suited to a trial solely on count 1 was lost.   If the trial were confined to count 1 from the outset, the focus  of  the  cross-examination  of  B would  have  been different;

(d)The  discharge  produced  an  emotional  response  in  the  jury to  the appellant’s  detriment.    It  highlighted  the  vulnerability  of  young persons such as A.

[16]     The issue before us is whether, in light of these matters, and taking into account the directions given by the Judge, a miscarriage of justice occurred.

Authorities

[17]     Our starting point is R v Thompson [2006] 2 NZLR 577 at [16] (SC) where

Blanchard J for the Supreme Court said:

Whether or  not to  discharge  a jury which  has heard  a  witness  disclose illegitimate prejudicial material is for the discretion of the trial Judge on the particular  facts.    An  appellate  Court  will  not  lightly  interfere  with  the exercise  of that  discretion.    It  depends  on the  nature  of  what  has  been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course.

[18]     In that case there had been an illegitimate revelation in cross-examination that the accused was serving a lengthy term of imprisonment at the time of the alleged offending, that the accused had previously been in prison outside of New Zealand, that he had gang connections and that he used methamphetamine.  The case in part concerned assaults that were alleged to have occurred in a prison.  In the light of information the jury legitimately possessed or inferences it could legitimately draw, the Supreme Court was satisfied that the direction by the trial Judge to the jury to disregard the illegitimate material was sufficient to avoid the risk of a miscarriage of justice.

[19]     Two cases at the other end of the spectrum are the decisions of this Court in R v McLean (Colin) [2001] 3 NZLR 794 and R v Ford CA466/05 23 May 2006.  In McLean, the accused, a policeman, had been tried and acquitted of sexually violating his ex-wife. The details of that trial were subject to a non-publication order that continued in force until the end of a series of trials in relation to other complainants. There was publicity of the trial within the limits of that order. Four weeks after that acquittal, the accused was tried again on charges of rape and assault against a different complainant. The trial took place in the same provincial town. Under cross-examination, the complainant revealed that the accused’s ex-wife had previously accused him of rape. The trial was stopped and the jury retired at 12:40 pm. When the jurors return to Court at 3 pm, the Judge said:

You will recall the last answer the complainant gave where she referred to a complaint of rape having been made by the accused’s former wife.  That is irrelevant  to  the  matters  you  have  to  consider.    You  must  completely disregard it.

[20]     Nothing  was  said  in  the  Judge’s  summing  up  about  the  complainant’s comment.

[21]     In quashing the conviction and ordering a new trial, Richardson P for the Full Court said he doubted whether, had an appropriate direction been given immediately, it would have countered the prejudice resulting from the disclosure.  In any event, the direction at 3 pm was insufficient to avoid a miscarriage of justice.   The jury needed to be told of the previous trial, the accused’s acquittal, the necessity of disregarding the complainant’s comment when considering the present charges, the

danger of speculation or drawing inferences against the accused and the importance of deciding the present counts solely on the legitimate evidence before them.

[22]     In Ford, there were nine counts in the indictment.   The events leading to counts 1 - 7 were witnessed by a Mr Wade.  A search of the accused’s car, four days later and in Mr Wade’s absence, led to counts 8 and 9.   At trial, when the Crown called Mr Wade, he refused to answer questions.  When the trial Judge asked him why, he said: “For my safety, for my family’s safety.  What are the cops gonna do? They can’t do anything.  I may as well dig my own grave.”  As a result, the accused was discharged on counts 1 - 7.  The Judge refused an application for a mistrial and continued the trial in relation to counts 8 and 9.  The Judge did not give a direction to the jury to disregard Mr Wade’s remark until his summing up, where he said:

You know that [Mr Wade] did not give evidence and you heard him say at one stage why.  You know that of the nine charges in the indictment only two have proceeded before you.  Your decisions on these two counts must not – must not be influenced by that knowledge.   It would be wrong and unjust for you to allow your knowledge of these things to weigh against the accused.

[23]     Of this direction, Panckhurst J for this Court said (at [31]):

We  are  satisfied  that  the  direction  was  in  suitably  emphatic  terms  and tailored to the situation of this case.   Many Judges would have chosen to give such a direction before the trial continued in relation to counts 8 and

9…   This approach would have preserved the opportunity to return to the issue   in  summing-up   and   repeat   the   direction,   in   terms   considered

appropriate at that late point in the trial.   But, that said, the issue of the timing of the directions was something about which opinions may differ.

[24]     This Court nevertheless said that there was a miscarriage of justice.   The Crown  opening  contained  information  which  was  illegitimately  prejudicial  and Mr Wade’s refusal to  give  evidence  and  reasons  for  doing so  had  a  significant impact.   After the discharge on counts 1 - 7, the Judge should have ordered  a mistrial.

Evaluation

[25]     We agree in principle with the general submission by Crown counsel in this

Court that juries comply with directions and are not easily affected by prejudice.  But

each case turns on its own facts.  The ultimate question is whether a miscarriage of justice has occurred: Thompson at [14].

[26]     In our view, the direction the trial Judge gave to the jury when he informed it of the discharge, and again in his summing up, was sufficiently emphatic and appropriate in the circumstances.   The appellant does not take issue with it.   The Judge gave the requisite direction twice: at the time the problem first arose, and again in his summing up.  That conformed with the approach endorsed in Ford (see above at [23]).

[27]     Crown counsel, Mr Downs, sought to distinguish Ford.  He said that, in the present case, A and B were describing the same event, so no additional information was placed before the jury as a result of B’s video statement being played.  In Ford, the proposed evidence of Mr Wade was about different offending at a different time. And there was obvious additional prejudice from the jury seeing the witness express his fear of Mr Ford and his concern about reprisals if he gave evidence against Mr Ford.

[28]     We now turn to the issues raised by Mr Forster, which we have identified at

[15] above.

Issues (a) and (b): Evidence of, and references to, A

[29]     The jury had before them an indictment referring to the alleged offending against A, heard opening addresses from both counsel which referred to those allegations, and then saw and heard A’s evidential video.   We accept that some prejudice arises from that, but, even in a trial dealing with only the allegations against B, it was inevitable that the alleged offending against A would be referred to. The fact that the offending had occurred against the girls at essentially the same time and in each other’s presence was an essential aspect of the narrative of events.  B refers to A’s presence during her video interview. It would not have been possible to place B’s account of the offending before the jury without referring to the alleged offending against A as well.

[30]     We agree therefore with the submission of Crown counsel that the prejudice in  this  case  must  be  judged  against  the  inevitability  that  a  jury  considering allegations relating to B would have known about the allegations relating to A.  In our view that means that the prejudice arising from the references to the alleged offending against A in the opening addresses and from the playing of A’s evidential videotape is less serious than might have otherwise have been the case.   We are satisfied that the direction given by the Judge was sufficient to cure this prejudice.

Issue (c): Cross-examination of B

[31]     Of course, no direction could compensate for a lost opportunity to cross- examine B.  Counsel for the appellant said that the focus of the cross-examination of B was on aspects of inconsistency between her evidence and that of A.  He referred in particular to the inconsistency as to the location of the offending (the sitting room or the bedroom) and as to the other person present (whether it was the complainants’ younger  brother  or  their  older  sister).    He  said  that  if  B  had  been  the  only complainant at the trial, his  cross-examination  would  have  focused  on  different aspects of the case.

[32]     This is the aspect of the case which has concerned us most.  If the defence counsel had been unable to challenge B’s evidence adequately, we accept that the Judge’s direction could not have cured that.

[33]   Mr Forster said that his cross-examination of B had highlighted the inconsistency between A and B as to the location of the offending and as to the other person present.   Having read the record, we do not accept that there was cross- examination of B about any inconsistency between her and A as to the identity of the other person present.   All that B was asked was the name of her sister, and what diminutive version of that name she was known by.  She was not asked to confirm the older sister’s presence, and the possibility of the brother being present was not put to her.  On this aspect, therefore, we are satisfied that the way events transpired did  not  divert  counsel  into  pursuing  cross-examination  on  an  issue  which  then became unimportant after A’s evidence was discounted.

[34]     Counsel did ask B questions about the sitting room.   However, that cross- examination did not lose its value when A was unable to testify.   It is true that counsel  could  no  longer  seek  to  exploit  an  inconsistency  between  B’s  account (sitting room) and A’s account (bedroom).  But B herself had also said at one stage that the offending was in the bedroom.  So the same inconsistency arose from B’s own evidence, without the need to refer to A.  We have a transcript of the closing addresses of counsel, and it is clear that Mr Forster strongly emphasised to the jury the inconsistency in B’s evidence in this regard.  Again, therefore, we do not accept that any particular prejudice has arisen in this case.

[35]     The most significant aspect of the cross-examination was the questioning which led to what Mr Forster said was an acceptance by B that she was lying (see above at [8]).  That was obviously unaffected by the later events in relation to A.

[36]     Mr Forster did not indicate to us what questions he would have asked in cross-examination if the trial had involved the allegations relating to B alone.  Nor did  he  ask  the  Judge  to  recall  B  for  further  cross-examination  after  the  Judge declined to order a mistrial.

[37]     Overall, we are satisfied that there has not been unfair prejudice in relation to the cross-examination.

Issue (d): Distress of A

[38]     That leaves the last aspect raised by Mr Forster, namely the prejudice arising from the jury seeing the distress of A which led to the discharge of the counts relating to her.  That must be measured, of course, against a background that any trial involving allegations of offending against a young child could lead to some prejudice against the accused if the Judge does not properly manage the position.   But the Judge did so in this case, and gave the conventional directions to the jury about the need to put aside sympathy or prejudice.  We are satisfied that those directions were sufficient to meet the situation in this case.

Result

[39]     Overall, we are satisfied that no miscarriage of justice arose in this case.  We therefore dismiss the appeal.

Solicitors:
Crown Law Office, Wellington