R v Green CA76/06

[2006] NZCA 413

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA76/06

THE QUEEN

v

BRUCE TREVOR GREEN

Court:            Glazebrook, Hammond and O'Regan JJ Counsel:      C D Savage for Appellant

S C Holt for Crown

Judgment:      22 May 2006

JUDGMENT OF THE COURT

The appeal is allowed and the conviction is quashed.  There is no order for a

retrial.

REASONS

(Given by Glazebrook J)

Introduction

[1]      Mr  Green  appeals  against  his  conviction  for  indecent   assault   (under s 133(1)(a)  of  the  Crimes  Act  1961)  on  the  grounds  that  the  complainant  has

R V GREEN CA CA76/06  22 May 2006

recanted her allegations. An extension of time to appeal was granted by Glazebrook J

on 27 April 2006.

[2]      This appeal has been heard on the papers under s 392B of the Crimes Act

1961.   The relevant materials have been considered by the members of the Court who have conferred and agreed upon this judgment.

Summary of facts

[3]      On the day his trial was to commence (4 August 2003), Mr Green pleaded guilty.   He   was   sentenced   to   12   months   supervision   and   ordered   to   pay

$500 reparation.

[4]      The summary of facts on which Mr Green was sentenced alleged that he was babysitting the young complainant at her home where he was a boarder.   While watching the news on television, it was alleged that Mr Green pulled the complainant onto his knee, slipped his hand under her top and squeezed her breasts.   He then allegedly slipped his hand inside her trousers and moved it towards her vagina.   It was accepted that he did not put his hand inside her underpants and did not actually touch her vagina.

Recantation

[5]      In August 2005 the complainant was interviewed in relation to a separate complaint of indecent assault by another man.  That man has subsequently admitted the offending and pleaded guilty to associated charges.   During the course of her video interview, however, the complainant said that she had not been truthful in relation to her earlier complaint against Mr Green.

[6]      As a result, the complainant was re-interviewed by the police and a written statement taken on 14 September 2005.  She said in that statement that Mr Green did not pull her onto his knee and that he did not touch her breasts or the front of her chest.  She said that Mr Green had asked her to sit on his knee but she had refused

and gone to get a drink of water.  When she came back Mr Green asked her again to sit on his knee.  She then left the room, going into the hallway and then to the toilet. She said that Mr Green did touch her under her top on her back while she was facing the door.  He did not put his hand in the area her underpants would cover.

Affidavits filed on behalf of Mr Green

[7]      Mr Green is intellectually disabled.  He has a friend and assistant who helps him with his finances.   She was present at all the appointments he had with his solicitor and she was also present on the day of the trial when Mr Green pleaded guilty.  In her affidavit dated 10 May 2006, she deposes that it is her recollection that Mr Green always maintained that he had not touched the complainant in the manner that she alleged.  Initially on the day of trial he had pleaded not guilty to the charge but, after some discussion between Mr Green’s counsel, Crown counsel and the presiding Judge in chambers, the appellant’s counsel had advised that, if Mr Green were to plead guilty, then he would not be imprisoned.  Mr Green expressed a desire to avoid being imprisoned.  After being given an explanation of the consequences of a guilty plea, such a plea was entered by him.

[8]      In his affidavit of 10 May 2006, Mr Green deposes that  his counsel had advised him on the day of his trial that, if he were to plead guilty to the charge, it was highly unlikely that he would be imprisoned.  He says that he did not want to go to prison “so I took the opportunity to avoid all risk of that happening and pleaded guilty on re-arraignment.”   He says that it was his recollection that he gave clear instructions to his solicitor throughout that he did not touch the complainant in the way that she had alleged.  He also says, with regard to the complainant’s amended allegations,   that   he   does   not   believe   that   he   touched   the   complainant   in circumstances that were indecent.

Discussion

[9]      By memorandum of 17 May 2006, the Crown advised that it does not oppose the appeal and that no order for a retrial is sought.  It is clearly appropriate that the

appeal be allowed, given the circumstances of his guilty plea and the fact that the complainant has now admitted that the events described in the summary of facts upon which Mr Green was convicted did not occur.

Result

[10]     The appeal is allowed and the conviction is quashed.  As the Crown does not seek a retrial, none is ordered.

Solicitors:

O’Driscoll & Marks, Dunedin for Appellant

Crown Law Office, Wellington