R v Goodwin CA62/06

[2006] NZCA 511

NOTE: 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

CA62/06

THE QUEEN

v

LEO DARIN GOODWIN

Hearing:         21 November 2006

Court:            Arnold, Baragwanath and Ronald Young JJ Counsel:  P K Feltham for Crown

C J Nicholls for Appellant

Judgment:      4 December 2006         at 12.30 pm

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed.

B        The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Ronald Young J)

R V GOODWIN CA CA62/06  4 December 2006

[1]      The appellant was convicted by a jury in the District Court at Hamilton on charges of abduction for sexual intercourse, sexual violation by unlawful sexual connection and threatening to kill.  After the verdict, Judge Burnett, who presided at the trial, remanded the appellant to the High Court for sentence on 17 February 2006. Justice Cooper sentenced the appellant  to  preventive detention with a  minimum period of imprisonment  of nine  years on the  charge  of sexual violation,  on the abduction charge to five years imprisonment, and on the threatening to kill charge, two years imprisonment.  The appellant appeals both conviction and sentence.

Appeal against conviction

[2]      The appellant alleges:

(i)       The trial Judge failed to correct a prosecutorial error, an inaccurate assertion that a DNA analysis of semen on the complainant’s T-shirt exactly corresponded with the appellant’s DNA on six DNA sites.

(ii)      The Judge unfairly dealt with an evidential objection in front of the jury and improperly admitted the evidence.

(iii)      The   Judge   allowed   inappropriate   sympathy   to   be   created   by permitting the prosecutor to call the complainant by her first (or christian) name and also referring to her by her first name.

(iv)      The ESR evidence from Ms Petricevic was inadmissible because she was not qualified as an expert in computer analysis and statistics.

(v)      References by Ms Petricevic to peer review of the ESR laboratory were inadmissible hearsay.

(vi)      The   Judge   erred   in  ruling   that   the   complainant   was   not   an identification witness.

(vii)     The  Judge  erred  in criticising  trial counsel  for  not  putting  to  the complainant she may have been mistaken in her description of the attacker.

(viii)    The  Judge  inadequately  dealt  with  the  defence  case  as  to  the reliability of the DNA analysis.

(ix)    The Judge inadequately put the defence case because of an unconventional structure of her summing up.

Background

[3]      At about 4.40 p.m., on 21 December 2004 the complainant was in Huntly having returned from a trip to Hamilton.  She was walking down a track behind the Plunket Centre heading home.  She heard footsteps and turned to see a man running towards her.  He grabbed her and pulled a pillow case over her head.  She struggled and screamed.  He threatened to kill her.  She struggled free for a moment, however was caught again and had a sock or similar pushed into her mouth.  She was dragged to a nearby car, pushed into the foot well of the front passenger’s seat and had a blanket thrown over her.  A further threat to kill was made in response to her crying. Shortly afterwards the car stopped and the complainant was forced to suck the man’s penis until ejaculation.  The complainant gagged, spat on her hand and wiped it on the passenger’s seat of the car.

[4]      The complainant was driven back to and dropped off near the Plunket Centre. She was found shortly afterwards in a distressed state.  She could not identify her attacker but gave a description of him.

[5]      The appellant, at interview, denied he had been involved in the sexual assault. He said he had not lent his distinctive Mazda Autozam AZ3 car to anyone that day. As the Crown said, the central issue at trial was identification; whether the Crown could prove beyond reasonable doubt the appellant was the perpetrator of the crimes. There did not seem to be any challenge to the complainant’s evidence that the events had occurred as she described.

[6]      The Crown evidence which it said proved the appellant was the perpetrator was:

(a)       The complainant’s description of her attacker was consistent with the appellant’s description.

(b)       The appellant’s distinctive Mazda motor vehicle was seen near where the crime occurred at about the time of the abduction and assault.

(c)       The appellant was seen cleaning the passenger’s side of his car shortly after the crime.

(d)      The DNA evidence from the appellant’s car.  This consisted of both the complainant's and the appellant's DNA on the front seat of the car.

(i) DNA on T-shirt

[7]      The appellant says the prosecutor in her final address to the jury “appeared to overstate and/or misrepresent” the strength of the DNA analysis of sperm found on the complainant’s T-shirt.   Counsel submitted the Judge failed to correct this misstatement.

[8]      The issue of a semen stain on the complainant’s T-shirt was first raised in cross-examination   of   Gillian   O’Boyle,   a   forensic   scientist   with   ESR.      In cross-examination she was asked:

Okay.  Do you have, did you carry out any testing on anything else in this case?....Yes, I did.

And none of which was positive, is that right?....Positive in what sense.

Well in terms of you not giving evidence about anything else apart from -

?.....

There was no semen found.

Is that all you were looking for?....There, sorry, there was semen found on a t-shirt.

And in re-examination:

You’ve   referred   to   some   semen   or   seminal   fluid   found   on   a t-shirt?....Correct.

Could you  tell us  please where that  t-shirt  was  received  from?....It  was labelled as coming from [the complainant].

[9]      When Ms Petricevic gave evidence the Crown introduced the topic of the

T-shirt and the semen stain;

Were you able to undertake a DNA analysis that stain?....DNA profiling was carried  out  on  the sample,  however  a  partial  DNA profiling  result  was obtained.  By this I mean that DNA results were obtained from fewer than the 10 sites examined.  Where results were obtained, Mr Goodwin could not be excluded as being a possible donor of the trace of DNA in the sample. However, due to the very partial nature of the results obtained from this sample, being that there were fewer than the 10 DNA results available for comparison, the scientific weight of this finding was much lowered, and was not suitable for a full statistical evaluation.

[10]     In cross-examination Ms Petricevic accepted, because of the limited number of sites for comparison (six) compared with the standard set (10), all that could be safely said was that the appellant could not be excluded as the source of the semen.

[11]     In her final address to the jury counsel for the Crown said in relation to

Ms Petricevic’s analysis:

She told you that the semen stain on the t-shirt provided only a partial result. So instead of obtaining 10 DNA site results, she was only able to obtain six. In respect of those six sites the results corresponded exactly with the accused profile.

. . .

My learned friend suggested to the scientist, during the course of the examination, that that evidence is irrelevant.   Of course it’s not irrelevant. At six DNA sites it corresponded with the accused profile.

[12]     The Judge did not mention the DNA analysis of the semen on the T-shirt when  summarising   the   Crown  case.      She   did   repeat   appellant’s   counsel’s observations that the jury should put the scientific evidence with respect to the T- shirt to one side.

Discussion

[13]     As the Crown submitted, it seems probable the prosecution did not intend to call evidence with respect to the T-shirt.   Once the jury knew there were semen stains on the complainant’s T-shirt the Crown was entitled to call ESR evidence relating to it. The jury were entitled to know that the ESR analysis could not exclude the appellant nor could it give a statistical probability or likelihood that it was him.

[14]     As to the prosecutor’s comment in closing about the result of the six sites corresponding  “exactly”  with  the  appellant  this,  presumably,  came  from  the scientist’s observations, expressed as a double negative, that there were no DNA sites which did not correspond to the appellant’s DNA profile.  It would have been preferable for the prosecutor to use the words used by the scientist.   However, the prosecutor did not try to exaggerate what the analysis meant, that the appellant could not be eliminated as the source of the DNA.

[15]     This evidence was neutral.   It did not help the Crown prove its case nor, however, could the defence claim it was evidence that supported the contention that the appellant was not the perpetrator.  It would have been preferable for the Judge to explain the effect of this evidence to the jury.   However, she did not repeat the Crown’s claim in  her  summing  up.    She  did  repeat  counsel  for  the  appellant’s submission that the evidence was neutral.  Given the other powerful DNA evidence available to the jury, we do not think this error by the Crown would have had any influence on the jury.  The ESR found seminal fluid and saliva on the front seat of the appellant’s Mazda Autozam AZ3 car.   The saliva stain was 10 million-million times more likely to come from the complainant than an unrelated female.   The semen stain was 5 million-million times more likely to have originated from the appellant than an unrelated male.  This evidence effectively established that a mixed sample of fluid from the passenger’s seat of the appellant’s car contained semen from the appellant and saliva from the complainant.   For that reason we see no miscarriage of justice here.

(ii) Evidence objections in front of the jury and admissibility of evidence

[16]     The Crown called evidence from a police constable regarding his enquiries whether the Plunket rooms, where the complainant was abducted from, were open

that day.   Counsel for the appellant objected to the evidence on the basis that it would inevitably be hearsay.

[17]     The discussion between counsel and the Judge as to admissibility was held in front of the jury.   Counsel for the appellant, after some discussion with the Judge said:

I’m happy to argue a point in front of the jury or away from the jury but it does need arguing.

The Judge then said:

Well he can tell us what he understand[s] the situation to be and the, what he understood the situation to be and if the matter needs to be taken further then I can direct the jury accordingly.

[18]     Clearly the evidence proposed to be called was hearsay.   However, neither counsel could identify why it was relevant.  As we have said, the complainant was not challenged about her evidence that these events occurred.  This was not evidence referred to by either counsel or the Judge when they finally addressed the  jury. Although it was hearsay its admission was of no importance and no miscarriage of justice has been shown to have occurred as a result of the statement being given in evidence.

(iii) Use of complainant’s christian name

[19]     The appellant submits that the prosecutor’s references to the complainant by her christian name and the Judge’s adoption of this in her summing up could have meant there was unfair sympathy towards the complainant.   We consider there is nothing in this complaint.  At the time of the attack the complainant was a 15 year old school pupil and would have ordinarily been called by her christian name rather than her surname.  We see nothing wrong with the prosecutor doing so.  Nor in any event do we accept that because the prosecutor referred to her by her christian name the jury would have been inappropriately sympathetic to her.   While  it  may  be preferable  for  a  Judge  to  use  a  witness’  surname,  it  cannot  be  said  that  any

inappropriate  sympathy would  have  resulted  from the  use  of  the  complainant’s christian name.  No miscarriage of justice is shown to have occurred.

(iv) Expert witness giving evidence outside her expertise

[20]     Counsel for the appellant’s submissions accepted that  Ms Petricevic gave evidence within her expertise.  We agree.  There was no miscarriage of justice.

(v) Peer review references were inadmissible

[21]     During  her  cross-examination  Ms Petricevic  was  asked  about  the  ESR’s laboratory accreditation.  She told the Court about the standards the ESR laboratory had to achieve to be accredited to the American Society of Crime Laboratory Directors.  Counsel for the appellant accepted that no objection had been raised to the admissibility of this evidence during the trial.   Counsel accepted that he had “difficulties in maintaining this as a ground of appeal”.   We agree.   The evidence may have included hearsay, however it was of no real significance in this case and no miscarriage of justice has occurred.

(vi) Was the complainant an identification witness such that the warning in s 344D Crimes Act was required?

[22]     The appellant submits the complainant was an identification witness because “she did claim to see her attacker (whom the Crown allege was the offender) in the circumstances  of  the  offence  and  gave  evidence  about  his  description”.    The appellant says because of the detail of the description and the degree of similarity to the appellant the identification warning in s 344D should have been given.

[23]     The complainant did not identify the appellant.  She did describe a number of features of her attacker which were similar to or the same as those possessed by the appellant.

[24]     Section 344D provides as relevant:

344DJury   to   be   warned   where   principal   evidence   relates   to identification

(1)       Where in any proceedings before a jury the case against the accused depends wholly or substantially on the correctness of one or more visual identifications of him, the Judge shall warn the jury of the special need for caution before finding the accused guilty in reliance on the correctness of any such identification.

[25]     Given the complainant did not visually identify the appellant she was not an identification witness and the s 344D warning was not required.  In her summing up the Judge summarised the defence criticisms of the complainant’s description.  She also  gave  the  jury the  standard  direction  regarding  credibility and  reliability  of witnesses.   There was no challenge in cross-examination to the complainant’s description of her attacker. In our view there is no miscarriage of justice here.

(vii) Trial Judge’s criticism of counsel

[26]     The Judge said to the jury in summing up;

Although, Mr Tennett said to you that [the complainant] may have been mistaken in her observations of her attacker I do point out to you that the accuracy of her description was not challenged by Mr Tennett.

[27]     The Judge correctly told the jury that trial counsel had not challenged the complainant’s description of the attacker.  This was relevant to the jury in assessing trial counsel’s criticisms of the complainant’s description.  The Judge was entitled to make this comment.  There was no miscarriage of justice here.

(viii)  & (ix) The Judge did not adequately deal with the reliability of  the DNA

analysis nor did she adequately put the defence case to the jury

[28]     We are satisfied the Judge adequately explained the defence challenge to the DNA evidence and put the defence case fairly to the jury.  We do not accept the criticism  of  the  appellant  that  the  structure of  the  Judge’s  summing  up  meant inadequate explanation of the appellant’s case was given to the jury.  There is no rule which specifies how a summing up is to be structured.   The question is whether,

looked  at  overall,  the  summing  up  fairly  put  the  defence  case  to  the  jury. See R v Savelio (CAZ34/96, 5 August 2005).

[29]     After  the  standard  introduction  by  the  Judge  in  her  summing  up,  which included appropriate comments about the jury considering all of the evidence and deciding what if any evidence they accepted, she moved to the elements of the charges.   After detailing the legal ingredients, the Judge identified the competing Crown and defence contentions.  After some evidential matters the Judge turned to the Crown and defence cases.  The summary of the defence case was detailed.  The Judge mentioned the dispute about the reliability of the complainant’s description of the offender, and the criticism of evidence that the appellant’s distinctive car had been seen in the area of the attack.   The Judge then gave a detailed summary of counsel for the appellant’s criticism of the scientific evidence.

[30]     The final part of the summing up went  back to the essential trial issues, whether it had been established beyond reasonable doubt that it was the appellant who  attacked the complainant.   The Judge went  through the  ESR evidence  and reminded the jury this was not trial by experts and they should exercise their own independent judgment with respect to the scientific evidence.  The Judge identified for the jury the pages in the notes of evidence containing trial counsel’s cross- examination of the main scientific witness, Ms Petricevic, and again summarised the defence criticisms.  At the end of the summing up the Judge stressed the jury should consider all the evidence and that it was up to them to decide what evidence they accepted and what they rejected.

[31]     The Judge therefore thoroughly summarised both the defence case generally and the defence criticisms of the ESR evidence.  In our view there is no miscarriage of justice here.  It must also be kept in mind that this was a very strong Crown case. The complainant’s description of her attacker matched the appellant.  A description of a car matching the appellant’s unusual vehicle near the scene of the crime at the relevant time was also given.   There was the scientific evidence which established there was DNA material from the appellant and the complainant on the front passenger’s  seat  of the  car  exactly as  the  complainant  had  described.    We  are

satisfied, therefore, there has been no miscarriage of justice and the appeal against conviction will be dismissed.

Appeal against sentence

[32]     The appellant says:

(i)       Justice Cooper took an “incorrect” approach in deciding whether to impose a sentence of preventive detention and thereby inappropriately concluded preventive detention was the correct sentence; and

(ii)      There was insufficient evidence to justify the imposition of preventive detention.

[33]     The Judge’s approach to sentencing was summarised in para [22] of his notes on sentencing when he said:

The focus of the submissions of both counsel this  morning has been on whether or not preventive detention should be imposed. If such a sentence is passed, it is necessary to go on to impose a minimum term of imprisonment which  in  no  case  may  be  less  than  five  years.  Under  s  89(2)  of  the Sentencing Act, the minimum period of imprisonment imposed must be the longer of (a) the minimum period of imprisonment required to reflect the gravity of the offence; or (b) the minimum period of imprisonment required for the purposes of the safety of the community in the light of your age and the risks that you pose to that safety at the time of sentencing. Because of the need to impose that minimum term, it is, I think, helpful to begin by considering the minimum period  of imprisonment  required to reflect  the gravity of the offence, an exercise which itself necessarily involves considering  the  likely  sentence  were  a  sentence  of  a  finite  term  to  be imposed instead of preventive detention.

[34]     The Judge concluded a starting point of around eight years imprisonment was appropriate and, taking account of the aggravating factors, (there being no mitigating factors) concluded that a finite sentence of 10 years was justified for the offending and the appellant’s circumstances.   The Judge said, therefore, that the greatest minimum term of imprisonment that  could be  imposed was six  years and  eight months for this offending.   The Judge then turned to preventive detention and considered the relevant factors in s 87(4).  Having surveyed these factors the Judge concluded that preventive detention was the appropriate outcome.  While the Judge

may have adopted a somewhat unorthodox approach both grounds of appeal are essentially based on the same proposition, that preventive detention was not justified on the facts of this case.

[35]     It was common ground that the offender had committed a qualifying offence (s 87(5)) being sexual violation, and was over 18 years of age (s 87(2)(b)).   The Court had also complied with the s 88 requirements.   The third precondition to a sentence of preventive detention was the likelihood of the appellant committing a further  qualifying  offence  upon  release.    The  Judge  said  he  was  satisfied  the appellant was likely to commit a further qualifying offence upon release.  We agree.

[36]     Overall the two reports from Dr Seth and Mr Els assessed the appellant at high risk of re-offending.  Dr Seth expressed reservations generally about long-term risk prediction.   However, he identified a number of factors which he considered would put the appellant at increased risk of re-offending upon release including, previous violence, re-offending very shortly after release from prison, lack of response to previous treatment and his refusal to accept responsibility for the current offending.  Dr Seth also identified some factors which he considered could reduce the likelihood of further offending for the appellant including a stable relationship, discontinued  use  of  illicit  substances  and  the  absence  of  any  major  psychiatric illness.

[37]     Mr Els, a clinical psychologist, considered that the appellant had a high risk of re-offending based on an actuarial assessment.   In addition,  Mr  Els said  the appellant’s  denial  of  offending  precluded  any  rehabilitative  treatment  for  him. He also pointed to the appellant’s previous treatment and his lack of responsiveness given his “rapid re-offending on release”.

[38]     Mr  Goodwin  now  has  three  sets  of  very  serious  convictions  for  sexual offending.  In 1994 he was convicted in Australia of threatening with a weapon with intent to have sexual intercourse, and threatening to inflict actual bodily harm with an offensive weapon.  The attack was apparently against a woman whom he did not know.  He was imprisoned in Australia.  He returned to New Zealand in 1996 and four months later pleaded guilty to rape and aggravated wounding.  He was then still

on  parole  for  the  Australian  offending.    At sentencing  he  was  considered  for preventive detention but was sentenced to a finite term of 12 years imprisonment. The appellant was released on parole from the 1996 offending in September 2004. He committed these offences within two months of his release fully aware of the fact that preventive detention must be in prospect if he were caught.

[39]     Also relevant to the likelihood of future offending is the prospect of future successful treatment.   Mr Els’ report  details the appellant  had a broad range of treatment while in prison from 1996 to 2004 without any apparent effect on his conduct.  Mr Els reported the appellant had unsuccessful attempts at group treatment sessions in 1998 and then individual sessions with a psychologist  in 1998.   He attended and completed a substance abuse programme in 1998 and a six month sex offenders  programme  in  1999/2000.      He  attended  and  completed  the Montgomery House programme from July to September 2004 and further individual sessions with a psychologist were provided immediately before and after release from prison in 2004.

[40]     The reports on his attendance and responsiveness to these programmes have a similar theme.   His attendance was uneven and reports on his progress question whether the programme contributed to  significant  behavioural changes.    Finally, Mr Els stressed that the appellant’s refusal to accept responsibility for the current attack meant no treatment recommendations could be made.

[41]     Also relevant to assessing the appellant’s response to treatment is the fact that he has now, on two occasions, offended within a short time after release from prison. The reports of the psychiatrist and psychologist, the appellant’s previous convictions and the treatment prognosis all illustrate a high likelihood of re-offending on release. The third prerequisite for a sentence of preventive detention pursuant to s 87(4) was therefore clearly established in this case.

[42]     Turning then to the s 87(4) matters and the Court’s discretion.   We have already  detailed  the  serious  previous  convictions  of  the  appellant  for  similar offending (subs (a)).  The seriousness of harm to the community, and particularly to the complainant, has inevitably been very high given the acts of serious sexual

violence committed by the appellant (subs (b)).   We have already detailed future prospects   of   treatment   and   the   likelihood   of   their   succeeding   with   this appellant (subs (c)).  The appellant has participated, although not enthusiastically, in a number of programmes while in prison.  He has had individual counselling with a psychologist without success (subs (d)).  Finally, we agree with the sentencing Judge that a probable finite sentence of approximately nine years imprisonment would not provide adequate protection for society.   As we have observed, the appellant is a high risk serial sex offender for whom successful treatment seems unlikely.  Given these  conclusions  a  lengthy  finite  term  of  imprisonment  would  not  adequately protect the public (subs (c)).

[43]     We are satisfied there was ample evidence to justify a sentence of preventive detention and indeed such a sentence was clearly correct.

[44]     The appellant submits that a nine year minimum period of imprisonment was manifestly excessive.  The Judge concluded a sentence of six years and eight months imprisonment, able to be imposed on the accused, was sufficient to mark the gravity of the offending.  The Judge concluded, however, this was insufficient to protect the community  and   increased  the   minimum  period  to  nine   years   imprisonment (s 89(2)(b)).    We  are  satisfied  this  period  was  within  the  Judge’s  sentencing discretion and has not been shown to be manifestly excessive.

[45]     The appeal against sentence is therefore dismissed.

Solicitors:

Crown Law Office, Wellington