R v Harrison

[2009] NZCA 162

IN THE COURT OF APPEAL OF NEW ZEALAND

CA778/2008
[2009] NZCA 162

THE QUEEN

v

JOHN MATIU HARRISON

Hearing:12 March 2009

Court:Glazebrook, Rodney Hansen and MacKenzie JJ

Counsel:P J Mooney for Appellant

G H Allan for Crown

Judgment:1 May 2009 at 3.00 pm

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

B        The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

[1]       The appellant was convicted after trial before Judge Roberts and a jury in the District Court at New Plymouth in September 2008 on a count of attempted kidnapping.  He appeals against conviction and sentence. 

[2]       The Crown case was that the appellant stopped his car opposite a bus shelter where three young children, aged 5, 7 and 8, were awaiting their school bus.  The Crown case was that the appellant left his vehicle and approached the children;  that he took hold of the youngest child E by the arm;  that he and the other children, B and G, resisted, and that the appellant returned to his car and drove off.  The defence case was that if anything happened it was not the appellant who was involved.  He admitted stopping to roll himself a cigarette, but said that he never left his car.

[3]       Four grounds were initially advanced in support of the appeal against conviction:

(a)The Judge failed to give an adequate direction to the jury as to the time of kidnapping and did not make reference to conflict in the evidence;

(b)There was insufficient evidence as to the identification of the offender;

(c)The Judge was wrong not to allow cross-examination of one of the children as to her inability to identify the appellant from a photo montage;  and

(d)The Judge failed to put the appellant’s case to the jury adequately.

The third of those grounds is no longer pursued. 

The direction as to the elements of the offence

[4]       Mr Mooney, for the appellant, submits that there were significant differences within the evidence of the three children, and that the Judge should have drawn the jury’s attention to those differences, because, in counsel’s submission, the view that what occurred amounted to no more than an assault was open on the evidence.  Counsel also submits that the Judge failed to give an adequate direction with respect to the elements of the crime of kidnapping.  Counsel submits that the Judge focussed the jury on the issue of whether the accused was involved, and that in approaching the matter in that way the Judge deflected the jury’s attention from what may be a more fundamental issue:  was there sufficient evidence of an actual alleged kidnapping.

[5]       We have summarised counsel’s submissions in the terms in which they were framed.  We observe, however, that what was alleged was not a kidnapping, but an attempted kidnapping.

[6]       The essential evidence as the actions of the person who approached the children was that of the three children involved.  Their evidence was given by evidential video interview, supplemented, in each case, by oral evidence including cross-examination.  In his interview E described the relevant events in these terms:

Q.Yeah, was there any, anyone that came to the bus stop while you were waiting.

A.Yes a man and, and he got hold of my arm and gave me a Chinese burn and I didn’t like it.

Q.Oh can you show me what he did.

A.He went like this (demonstrates).  Like that to me, I didn’t even like it.

Q.What did he say when he did that.

A.He said, he said how do you do and I said I just go to school and that’s, and then he went back into his car and drove off happily.

Q.         Oh, so why did he go and hop back in his car.

A.Cos, cos I just told him what I did.  Yeah.

Q.What did you tell him.

A.I, I, I told him that I go, go to school.

Q.Oh, and what did um, what did [B] and [G] do when the man grabbed you by the arm.

A.Um, they, they tugged me out of his hand.

Q.Oh, what did they say.  What did [B] say.

A.She said get away and he just went into his car and I just scratched him on the face, he just went away.

[7]       The oldest child, B, described relevant events in these terms in her video interview:

Q.You’re on the other side of the road.

A.Yeah.  Yeah and he stopped on the other side and we were behind the pole.

Q.And what happened then.

A.He just holded on to [E].

Q.So if he stopped on the opposite side to you.

A.Yeah.

Q.Where was [E].

A.He was behind um me.

Q.Mm.

A.And [G].  But I was like beside him just standing beside him with my bag on the ground.

Q.Okay.  So what did the man.  When he got out of his car.  What did he do.

A.He like just walked on the other side and he.  Um he just like grabbed [E] and.  And yeah.  And he tried to pull him but I pulled him back me and [G] pulled him back.

Q.So when he grabbed him.  Show me with you how he grabbed him.

A.(Demonstrates).  Like that.

Q.On the arm.

A.Yeah.  There.

Q.With one hand or both his hands.

A.Um both oh it was just like one hand.

Q.Okay.

A.Yeah.

Q.Alright and what did you.  You and [G] do.  Show me what you did.

A.We like.  You know how he was like holding there (demonstrates) we holded one hand and I holded the.  I holded the hand which um the man was holding on and I holded it up here (demonstrates) when he was holding there (demonstrates) and I pulled him and [G] was holding the free hand (indicates).

Q.Oh okay.  So you pulled the man.

A.Um no I pulled [E] but like he was holding here (demonstrates).

Q.Oh okay so.

A.       And I pulled his [E’s] hand.

[8]       The evidence of the third child, G, in her video interview, was in these terms:

Q.Oh, okay and has anything happened while you’ve been waiting for the bus.

A.Yes, yesterday our bus broken down and a car stopped and a man got out, and he pinched my brother in the arm (demonstrates).

Q.Mmm.

A.And he said ‘no’ really loud.

Q.Who said that.

A.[E]

…

Q.So what did this man do.

A.Did E tell you all about it.

Q.Mmm and [B] but I need you to tell me what happened.

A.Um, he, he was trying to um, we, I, he was um, trying to, we were trying to hide.  Mmm but um, but um, but, but, but then the man wouldn’t know where we were and we hid from people we didn’t know.

[9]       Cross-examination of all three children was focussed on the identity of the offender, and their respective accounts of what occurred were not materially challenged.

[10]     It is important, in considering this ground of appeal, to bear in mind the point noted earlier, namely that the charge faced was attempted kidnapping, not kidnapping.  It was not necessary for the Crown to prove that the actions of the offender amounted to a detention or taking away so as to constitute the completed offence of kidnapping.  The relevant issues were whether the offender intended to commit that offence, and whether his actions were sufficiently proximate to constitute an attempt.  An action which, in itself, constituted no more than an assault might, if the requisite intent were present, be sufficiently proximate to constitute an attempted kidnapping.  The Judge did address that issue in summing up.  He said:

You can only find this man guilty of attempted kidnapping if you are satisfied beyond reasonable doubt:

1.That he had the intention ultimately of kidnapping [E];  and

2.That he had done an act in furtherance of that purpose.  The act of course is the laying on of hands.

[11]     The evidence of B, who said that she and G pulled E while the man was holding him, went further than evidence of a simple assault.  Mr Mooney submits that the evidence of the younger children did not.  We do not consider that the differences between B’s account and those of the two younger children are as significant as counsel for the appellant submits.  E said that B and G “tugged me out of his hand”.  G said that E “said no really loud”.  Further, any differences between what they said, apparent from the written transcript, are diminished when the video interview is viewed.  All three children demonstrated how the offender touched E.  Their demonstrations are all consistent.  Those of E and B, in particular, are very similar.  It is significant that trial counsel for the defence did not seek to cross-examine the children on the detail of their accounts, in such a way as to highlight differences between them.

[12]     The next issue is whether the Judge focussed on the issue of identity to the exclusion of the elements of the offence.  The Judge at the outset of the summing up suggested that there were two available issues:

(a)Did it happen;  and

(b)Was the accused involved to the extent the Crown says that he was involved.

It is unfortunate that he then went on to suggest that the case had narrowed to the issue:  was the accused involved.  However, we consider that when the summing up is viewed in its entirety, the issue whether the elements of the offence were made out was clearly left to the jury.  The Judge in summing up gave the direction to which we have referred at paragraph [10], and, in summarising the Crown case, said:

The two real issues [counsel for the Crown] focussed on:

1.Was it this accused?

2.Did the accused intend to kidnap?

The jury asked a question during deliberation seeking further direction on the definition of kidnapping.  Counsel for the appellant notes that as potentially significant but submits that though in answering it the Judge referred to the “deprivation of liberty” he did not refer to the factual conflict.  We consider that the asking of the question by the jury demonstrates that the jury did consider whether the elements of the offence were established.  The jury clearly did not, as Mr Mooney submits, proceed on the basis that the only issue was the identity of the offender.  We do not consider that it was incumbent on the Judge, in answering the question, to draw to the attention of the jury any aspect of the evidence as to the elements of the offence. 

[13]     For these reasons, this ground of appeal must fail.

Identification

[14]     The second ground of appeal is that there was insufficient evidence to identify the appellant as the offender.  This aspect had been the subject of a s 347(1) application during the course of the trial, and counsel submits that the Judge was wrong to dismiss that application.  He submits that the issue arises because there is no direct identification of the appellant as the offender at all.  He submits that no witnesses identified the appellant either in Court or elsewhere, and no witnesses identified his car as being the car from which the offender alighted.  He submits that the Crown was relying upon circumstantial evidence and that the Crown needed to show that there was no reasonable possibility that someone else other than the appellant may have stopped there.  He submits that there are a number of matters that do not allow such a conclusion to be drawn namely:  the time the children were at the bus stop (at least 20 minutes);  that the bus stop is at an intersection with a main highway (a busy road);  a conflict between the evidence from the appellant’s statement and from his employer, that he had driven down the side road on which the bus shelter was located to his employment, and B’s evidence in her video interview that the offender had turned around and gone back to the highway.  Counsel also submits that another witness, Mr Luke, described a vehicle in the area at the relevant time and that this was not positively identified as the appellant’s vehicle. 

[15]     Counsel for the Crown submits that the evidence establishing the appellant as the offender comprised not only identification evidence but other circumstantial evidence, namely:  the appellant admitted to having stopped directly opposite the bus shelter, as described by the three child witnesses, on the morning of the incident;  the appellant had admitted that he had been there and had paid attention to the children;  the evidence was that only two cars had stopped at the bus shelter while the children were there (the appellant’s and that of the mother of another child being dropped off).  Mr Allan refers to the evidence of E and B that the offender was smoking, and to the appellant’s evidence that he had stopped in order to roll a cigarette, that he had wound down the window to flick out the ash, and to the finding of an empty packet of cigarette filters in the vicinity.  Counsel for the Crown refers to the evidence of erratic driving immediately prior to this incident, noticed by one witness, Ms Hopkins, who was sufficiently concerned to note the registration number (which was the appellant’s) and that the driver was wearing “a red knitted beanie”.  Counsel refers to B’s description of the offender as wearing an orange hat with a black stripe around it, and refers to the appellant’s initial denial of owning such a hat but of a hat meeting that description being found on execution of a search warrant.  Counsel for the Crown also draws attention to similarities between the descriptions of the vehicle given by the children and the appellant’s vehicle.  Counsel also refers to Mr Luke’s evidence that he noticed a vehicle driving very unusually into the side road where the children and the bus shelter were located and submits that his description of the vehicle was consistent with that of the appellant.  Counsel also points out that B in her evidence in chief said that she did not see which way the offender drove off.  In cross-examination, she acknowledged that she had said in her interview that the car turned, but said “that’s where I thought it went but I’m not really sure if it did”.

[16]     We consider that there was ample evidence to support the jury’s verdict.  There was strong circumstantial and other evidence to support the proposition that the offender was the appellant.  There was no evidence to support the proposition that a third car may have stopped at the same bus shelter.  B’s evidence that only two cars (the appellant’s and that of the other mother) stopped would, if accepted by the jury, have excluded that possibility.  This ground of appeal must also fail.

Putting the appellant’s case

[17]     The final ground of appeal is that the Judge failed adequately to put the defence case to the jury, in that while he made reference to the defence submission that the children’s evidence was inconsistent and that the accused’s physical features did not match with the children’s description, that did not address what Mr Mooney describes as the fundamental identification problem “which is that the issue is not so much the unreliability or inconsistency of the children’s descriptions but rather that they may have been describing a different man”.  Counsel submits that the direction does not adequately refer the jury to the need to consider the possibility that someone else other than the appellant was also at the bus stop that morning. 

[18]     We have discussed the circumstantial and other evidence linking the appellant to the offender in dealing with the second ground of appeal.  The Judge was not required to direct the jury that they must consider the possibility that a third vehicle may have stopped.  It was implicit in his direction.

[19]     For these reasons, the appeal against conviction is dismissed.

Appeal against sentence

[20]     The appellant was sentenced to a term of two years imprisonment.  Mr Mooney, for the appellant, submits that this sentence was excessive when the Judge in sentencing accepted that the appellant did no more than lay his hands on the five year old boy.  He submits that a sentence short of imprisonment ought to have been imposed.

[21]     During the course of the hearing, the Court considered that it would be of assistance to have further submissions.  Further written submissions have now been received from both counsel.

[22]     The sentencing Judge in his remarks noted the dearth of authority for comparable offending.  He was referred to two cases (McCauley v Police HC DUN AP33/99 20 August 1999, R v Robertson HC TAU CRI-2005-070-453 4 October 2006) which defence counsel submitted were very different from this situation.  The Judge said that the reasons for the appellant approaching E and laying hands on him remained unclear, and that the appellant continued to deny the offending.  He described the appellant as “an enigma”.  He noted the lack of any previous relevant convictions, the appellant’s youth (19 years), and difficulties in life which the appellant had encountered.  He also noted a number of aggravating features relied on by the Crown, of which he regarded three as having an impact on sentence.  These were the vulnerability of the victim, the degree of violence involved in grabbing a young boy, and the impact of the offending on E, as described in the Victim Impact Statement.  He noted the need for deterrence of both the appellant and others, and the protection of vulnerable people in society.  He said: 

The problem for all parents of school children in rural areas is one that would really shake a family.  In the ordinary course of events parents should be entitled to leave children at rural bus stops without the possibility of interference.  The need to protect and ensure our children are free from assaults such as yours, and I use that in the loose sense, is something that the Courts will always strive to achieve.

The Judge adopted a starting point of two years, and found no personal mitigating factors requiring a reduction.  He considered home detention, but this was refused, principally on account of the risk involved because the appellant would be sharing a bedroom with a five year old boy.

[23]     In his further submissions, Mr Mooney has endeavoured to locate cases of kidnapping where there is no other related offending.  He refers to R v Takao HC ROT T030733 19 September 2003, R v Hill HC ROT CRI-2005-063-3096 27 October 2006, and R v Borland HC Wellington CRI-2006-032-1663 17 August 2007.  Each of these involves circumstances quite different from the present, and we consider that they provide little assistance here.  Counsel also refers to cases of assault on a child.  He notes the maximum penalty of two years for that offence.  He acknowledges that circumstances vary significantly in such cases.  Mr Mooney submits that there is a wide range of sentences, from, at one extreme, two years imprisonment (Thompson v Police HC AK AP277/88 19 December 1988) to, at the other end of the scale, discharge without conviction and conviction and discharge.

[24]     Counsel for the respondent submits that it was proper for the Judge to consider imprisonment appropriate in the light of the risks and the inevitable psychological impact on the victims from a less restrictive outcome.  In his further submissions, Mr Allan notes the need for protection, and provision for the interests of the victim.  He submits that the most relevant comparable case is R v Robertson, where an offender had pulled up alongside three young children of similar age to these here and invited them into his car.  He was sentenced to two and a half years for attempted kidnapping, concurrent with a sentence of seven and a half years for a separate incident the following day of abduction and indecent assault of a five year old.

[25]     This case presented a difficult sentencing exercise, particularly in assessing the seriousness of the offending.  The Judge expressly proceeded on the basis that the appellant did no more than approach E and lay hands on him.  There was not the further more serious conduct which was involved in the total offending in Robertson.  This was, however, serious offending, even without evidence of the possibility of more sinister sexual offending.  The potentially sinister implications of the appellant’s conduct were however a relevant consideration.  An approach of this sort to young children at a bus stop may raise justifiable concerns on the part of parents as to safety, even when the conduct goes no further than that here.  The Judge’s remarks at para [16] (set out above) were appropriate.  A deterrent sentence was required.  These considerations justified the adoption of imprisonment as an appropriate sentence, and of the two year starting point.  The risks involved in the proposed home detention environment and the need to have regard to the effect on the victims if the appellant were released, supported the Judge’s conclusion that home detention was inappropriate.

[26]     For these reasons, the sentence imposed was not manifestly excessive.  The appeal against sentence is dismissed.

Result

[27]     The appeal against conviction and sentence are dismissed.

Solicitors:
Crown Law, Wellington