R v Horne CA184/06

[2006] NZCA 491

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

CA184/06

THE QUEEN

v

WILLIAM JOSEPH HORNE

Hearing:         24 October 2006

Court:            Ellen France, John Hansen and MacKenzie JJ Counsel:       E Forster for Appellant

M D Downs for Crown

Judgment:      14 November 2006         at 11 am

JUDGMENT OF THE COURT

A        An extension of time is granted.

B        The appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

R V HORNE CA CA184/06  14 November 2006

Introduction

[1]      The appellant was convicted after a jury trial of sexually violating the complainant.  He appeals against his conviction.

Factual background

[2]      The Crown case at trial was that the appellant stupefied the complainant and, while the complainant was unconscious, sodomised him.  The offending took place at the appellant’s flat after the complainant and the appellant had been to a party. The two of them shared cannabis before the appellant offered him some “speed”. The complainant took two pills from the appellant.   The complainant assumed the pills were  methamphetamine  but  they were  clonazepan,  a  medicine  with  strong sedative side effects.  The complainant said he woke to find the appellant penetrating his anus.

[3]      On returning home the next day, the complainant told his flatmate what had happened.  The flatmate gave evidence at trial in the course of which he described the complainant as “still stumbling around like he’d been drinking for a week”. The complainant made a complaint to the Police.   This led to a medical examination which showed the presence of the appellant’s semen on the complainant’s buttocks. Traces of clonazepan and the active ingredient of cannabis were found in the complainant’s bloodstream.

[4]      The appellant ultimately made a statement to the Police in which he admitted the sexual activity but said that it was consensual and initiated by the complainant. He denied giving or sharing drugs with the complainant.  The appellant did not give evidence.

Grounds of appeal

[5]      The appellant advances three grounds of appeal, namely:

(a)      He should have been able to question a witness, Ms Hirini, to refresh her memory about a statement she made to the Police.

(b)       A  mistrial  should  have  been  declared  following  the  disclosure  of prejudicial information.

(c)       There  were  inadequacies  in  the  trial  Judge’s  summing  up  of  the defence case.

Refreshing memory

[6]      Ms Hirini gave evidence for the Crown about the evening’s events.  She was out  with  the  appellant  and  the  complainant  that  night.     She  was  asked  in cross-examination whether the complainant had asked the appellant if he could stay the night at the appellant’s place. The appellant  in his statement  maintained the complainant had asked him this.

[7]      Ms Hirini was asked first whether it was the complainant’s idea that he stay at the appellant’s house to which Ms Hirini replied “well he got out of the car”.  She was then asked if she remembered if it was the complainant who asked if he could stay at the appellant’s house.  She said she could not remember.  Counsel asked if she remembered making a statement to the Police about this incident and she said she did.   While she could not  remember  exactly the date of the statement,  she accepted it was around the time of 22 August 2004.  Ms Hirini said she did not see the statement before coming back to Court.

[8]      Defence counsel asked her again whether, thinking back on it, she could recall whether it was the complainant who asked to stay at the appellant’s house. She said she could not remember because it was too long ago:   “my brain’s not thinking properly.”   She was questioned again about whether she remembered preparing her statement and then asked if she would look at her statement and in particular to a passage marked with an asterisk.  After she read the statement the trial Judge,  Judge Adeane,  said  she  should  put  the  statement  away  because  defence

counsel would now ask her “whether you’ve previously said anything any different from what you told the jury just a few minutes ago”.

[9]      Defence counsel did then ask her whether she had previously said that the complainant asked the appellant if he could stay the night in that statement.   The witness responded that she did not “get” what the questioner meant.  The following question was put:

Have you read the part of the statement with the asterisk next to it.  Can you confirm to us whether it’s correct?

[10]     The witness responded:

Yes it is true what I said that day but I couldn’t remember exactly what I

said because it’s been too long now and its like last year.

She accepted that she made this statement at the time.

[11]     There was then a discussion between counsel and the Judge in the absence of the jury. The Judge gave an oral ruling in the course of which he said that the witness had given evidence that whatever may be the contents of her prior statement she was at today’s date unable to recall whether any such thing was said.   The ruling continued:

[Defence counsel] wishes to take the matter further by treating this statement as an aide memoir, a document  made contemporaneously with events in question.  In my view it cannot qualify in that regard.  The witness has made it clear that her present position as to the true state of affairs is that she cannot now recall if any discussion of this kind took place.

[12]     The Judge went on to say that defence counsel could adduce the fact that the witness had previously said something rather different but the matter could not be taken further than that unless and until the witness adopted as true what she had said in the earlier statement.   The Judge said that on the evidence already given “quite clearly in my mind” the witness did not feel able to do that in the course of her testimony at trial.

[13]     The appellant says that if the Judge had taken the proper approach to the use of a document to refresh memory,  he would  have been able to  clarify with the

witness the correct position.  That is, to make it clear that she did say to the Police officer that the complainant asked if he could stay at the appellant’s place.

[14]     Mr Forster argues that the further evidence was important for four reasons:

(a)      Ms Hirini’s statement on this point was consistent with the appellant’s defence that this was consensual sexual activity.

(b)      The statement  was relevant to credibility because the complainant denied asking to stay at the appellant’s house.

(c)      The  statement  added  to  the  inconsistency  of  the  complainant’s account that he had not resisted the sexual activity once he “came to” because   of   a   concern   that   the   appellant   was   related   to   the Mongrel Mob.  That account did not fit with his asking to stay at the appellant’s house.

(d)      The statement corroborated the appellant’s statement on this point.

[15]     Ms Hirini’s evidence at trial can be read either as adopting the truth of her earlier statement or as agreeing with the proposition that she had made an earlier statement to that effect.  If the first, then the defence got the evidence they wanted and that would be the end of the matter.  If the second, the appellant’s argument is that he was unfairly stopped at having a further attempt to have the witness clarify the position.  On this, Mr Forster says that although Ms Hirini may appear to have accepted the truth of her statement on this aspect (the first option), that is not how the Judge saw the matter in his ruling.

[16]     Our view is that the Judge erred.   Mr Forster should have been allowed to clarify.   If he had, it  may have emerged that she was adopting the truth of her statement.  If not, it could have been clarified if she had some present memory of this aspect or none at all.  If the latter, then as long as contemporaneity is met, and the witness accepts what she said would have been true, the statement can be admitted in its own right.

[17]     However, here any further clarification of Ms Hirini’s position would have added only marginally to the defence position.  As the respondent submits, the main issue  at  trial  was  whether  the  complainant  was  unconscious  at  the  time  of penetration.   If he was, the appellant  could not  have had a reasonable belief in consent.  A request to stay at the appellant’s house was not central to this aspect.  In terms of credibility, Ms Hirini was described in evidence as the appellant’s ex- girlfriend and as remaining his friend, so her evidence is not likely to have added greatly on this point.  It was not a situation where clarifying Ms Hirini’s recall would have removed any doubt about what the appellant said in his statement.  There has been no miscarriage.

Disclosure of prejudicial information

[18]     There are two aspects to the complaint about prejudicial disclosure.  The first relates to evidence given by the complainant in cross-examination.   He was asked about what happened when he “came to” and realised what was being done to him. The question was “If you didn’t want it, why didn’t you resist?”  The complainant’s response was “I freaked out, froze and he’s related to Mongrel Mob so”.

[19]     The second piece of evidence came from the complainant’s flatmate who was called to give evidence of recent complaint.  He was asked by the prosecution in the following terms about the complaint:

Now I only want you to tell me what it is he said [had] happened to him, not anything else.  What did he tell you?

[20]     The witness responded:

He said to me you know what happened to you, I said yes and then he said well it happened with me but it went a bit further.

[21]     The prosecutor asked the witness to pause a second and then went on to ask another question.  In relation to the disclosure of both of these pieces of evidence, the defence sought a mistrial.  The Judge declined to declare a mistrial.

[22]     In terms of the statement about the Mongrel Mob, the Judge dealt with that in summing up in the context of the general standard direction the jury should decide matters free from feelings of prejudice or sympathy.  Following an orthodox general direction, the Judge said:

There have been some specific matters.  I think there was a passing reference to the Mongrel Mob somewhere in the evidence.  Nothing of that kind is to be construed as meaning that this accused is any more likely to commit this offence than anyone else, or indeed that he is likely to commit the offence. Those kind of prejudicial matters can pop up sometimes in a trial.  No one intends them.   It is important for a jury to recognise them and where they have got nothing to do with a case, put them aside.

[23]     Mr  Forster  for  the  appellant  properly  accepted  that,  given  the  Judge’s direction to the jury, he could not maintain a complaint based on the comment about the Mongrel Mob membership on its own.

[24]     However,  Mr  Forster  said,  in  combination  with  the  comments  from  the flatmate about a similar sexual experience, there was a real concern.  In this context, he submitted both comments were in the category of illegitimately prejudicial material gratuitously introduced by the witness and should have been treated as such.

[25]     The Supreme Court set out the approach to the disclosure of illegitimate prejudicial material to the jury in R v Thompson [2006] 2 NZLR 589 (SC), noting, first, that whether or not to discharge the jury was for the discretion of the trial Judge. Blanchard J in delivering the judgment of the Court at [16] continued:

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.

[26]     The Court (at [19]) contrasted cases of an unexpected inadvertent disclosure with those in which the prosecution witness had for his or her own purposes introduced “significant illegitimately prejudicial material”.

[27]     In terms of the flatmate’s comment, the appellant’s criticism is that the jury may have inferred he was referring to a similar experience with the appellant.  The first point to note about this part of the evidence is that it appears to have been

admissible, relevant and not gratuitous.  The flatmate is giving evidence of recent complaint and what he says is what he told the Police the complaint was.  There does not appear to have been any challenge to the admissibility of this recent complaint evidence or of its terms.  We were not told about any agreement between counsel as to the scope of this evidence.

[28]     In any event, we agree with the Crown that the evidence was not likely to have been taken as referring to the appellant.  Rather, it likely to have been taken as a description of the type of sexual activity.   The prosecutor promptly stopped the witness and the reference was so slight it cannot have affected the fairness of the trial.

[29]     There was evidence (not before the jury) that the flatmate did have a similar experience with the appellant.  However, the nature of the disclosure was such that it is speculative to attribute a deliberate intention on the flatmate’s part to take matters into his own hands.  In any event, what was said was not of the same character as the sorts of disclosures referred to by the Supreme Court in Thompson and which would give rise to a miscarriage.

[30]     As to the submission that the Mongrel Mob comment was gratuitous, there is nothing to support that suggestion.  The point we make earlier about the terms of the recent complaint evidence is equally relevant here.   The complainant is entitled to explain his reactions at the time.

Inadequacy of summing up

[31]     In  this  case  there  were  a  number  of  admitted  facts  under  s  369  of  the Crimes Act 1961.  These admitted facts related to the medical evidence including the source of the semen  from the buttocks of the complainant  and the  presence  of clonazepan in the complainant’s bloodstream.   For these purposes the relevant admitted fact is as follows:

A trace DNA profile from the complainant’s buttocks could have originated from the complainant but it is not possible to determine the sort of cell from which the trace profile originated.

[32]     In summing up, the Judge in describing the defence case, made no specific reference to that  evidence.    Earlier  in the  summing  up  the  Judge  described  the evidence in the context of directing the jury to reach their verdict solely on that evidence.   The Judge said that in this case the evidence included “some admitted facts which are quite important”.  He described these as “the distillate of a number of scientific investigations.  They have become evidence in the case.”

[33]     Mr Forster describes the absence of a reference to this evidence in summing up as “like a missing tooth”.  We agree with counsel for the Crown that the omission was not significant in the context of a fairly straightforward short trial.  The essence of the defence case was put quite clearly.  In any event, there is a level of speculation in the defence argument on this point – all the jury had was evidence the DNA might have come from the complainant.

Extension of time

[34]     The appeal is out of time.  No objection was taken by the Crown to granting and extension of time.  The delay is not great and is explained.  Leave to appeal is appropriate in the circumstances.

Result

[35]     For these reasons, an extension of time is granted but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington