R v J(CA360/06)
[2007] NZCA 141
•20 April 2007
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT OR ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR
OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA360/06 [2007] NZCA 141
THE QUEEN
v
J(CA360/06)
Hearing: 28 March 2007
Court: O’Regan, Ellen France and Wilson JJ Counsel: S W Hughes for Appellant
P K Feltham for Crown
Judgment: 29 March 2007
Reasons: 20 April 2007
JUDGMENT OF THE COURT
A The appeal against conviction is allowed.
R V J(CA360/06) CA CA360/06 29 March 2007
B The convictions are quashed. C A retrial is ordered.
DOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other publicly accessible database until final disposition of retrial. Publication in Law Report or Law Digest permitted.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] The appellant was convicted, after a District Court jury trial, of two representative charges of indecent assault on his daughter. We heard his appeal against conviction on 28 March 2007, and issued a judgment the following day allowing his appeal and ordering a retrial. In this judgment we give our reasons for that decision.
Grounds of appeal
[2] The case put to us by the appellant’s counsel, Ms Hughes, was substantially focused on allegations of trial counsel incompetence (the appellant’s trial counsel was not Ms Hughes). She argued that trial counsel had erred in the following respects:
(a)He advised the appellant not to make a statement to the police, did not brief him to give evidence, and advised him not to give evidence;
(b)He did not brief the appellant’s wife and son, and did not call either of them to give evidence;
(c) He did not object to the calling of evidence of past incidents involving the appellant and the complainant which put the appellant’s alleged character in contention.
[3] It was submitted that these matters, when taken individually and cumulatively, led to a miscarriage of justice at trial. It was argued that this Court should allow the appeal and direct the entry of an acquittal, rather than order a retrial.
Affidavit evidence
[4] We received in evidence affidavits from the appellant, his wife and son, and an affidavit in response from the appellant’s trial counsel. Neither party sought leave to cross-examine. There are a number of conflicts in the evidence which we are unable to resolve, but ultimately this has not posed a problem for the disposition of the appeal because of the approach which we have taken.
Evidence of extraneous matters
[5] The principal focus of the appellant’s case was on the evidence which was led by the Crown which related to events involving the appellant and the complainant other than those to which the charges related. That evidence painted the appellant in a poor light.
[6] To put this in context, we first set out briefly the factual background to the charges. The Crown case was that the indecent assaults occurred in 1978, when the complainant was 13. The complainant said that while she was having a shower after a sports game, the appellant climbed into the shower with her, and pressed his erect
penis against her bottom. She said that this was followed by other incidents in which the appellant made her wash his penis, another in which he made her kiss his penis, and another when he made her perform oral sex on him. She said that after these initial incidents the same type of abuse continued every week when she showered after playing sport. After she stopped playing sport it increased to two or three times a week.
[7] The Crown case was based primarily on the complainant’s own evidence. There was also evidence from the appellant’s niece, who had lived with the appellant’s family for a period in the late 1970s. She spoke of an incident when the appellant had told her he was preparing to shower with the complainant. She had commented that she did not consider it appropriate that they shower together, to which he responded that it was nothing to do with her. She believed that the appellant and the complainant had in fact showered together on that occasion, because she noticed they were both in the bathroom at the same time with the shower going, and could hear them talking to each other.
[8] Ms Hughes pointed to the following aspects of the Crown’s evidence at trial which ought not to have been admitted:
(a)Evidence of a sexual assault on the complainant by a neighbour, after which she said her parents took no steps to protect her when she raised the matter with them. She said that subsequent to this, the neighbour made her perform oral sex on him on a regular basis over a nine month period;
(b)When the family was on holiday, they would go to the private swimming area of a thermal pool complex, and all the family would swim naked;
(c) When the appellant’s and complainant’s family lived in Australia, some time after the alleged offending, the appellant attempted to rape the complainant in the caravan in which they were living at the time;
(d)Immediately following the attempted rape incident, the complainant attempted suicide. She said that the appellant’s response to this was to say that the world would be better off without her;
(e) Also, while in Australia (a few weeks before the alleged attempted rape by the appellant), a family friend raped the complainant. She did not complain to her parents because of the way they treated her complaint of sexual assault by the neighbour some years earlier;
(f)The complainant’s young daughter and young son were “extremely fearful” of the appellant (who is their grandfather). The other daughter of the complainant would stay with the appellant and his wife only if another sibling stayed there too. She also said that the appellant had threatened to hit one of the complainant’s daughters, and that this daughter was so afraid of him that she refused to attend school for 12 months;
(g)The appellant challenged the paternity of the complainant’s youngest child;
(h)The appellant was aggressive towards the complainant when she was pregnant;
(i)The appellant excluded the complainant from family holidays when she was younger, and she was “worthless” in the appellant’s eyes;
(j)The appellant said nasty things to the complainant at her wedding (“I want rid of you once and for all”). This was said in answer to a leading question in cross-examination.
[9] In addition, the evidence of the appellant’s niece who lived with the appellant’s family at the time of the alleged indecent assaults on the complainant was that the complainant was “a nothing in the house” and was “treated…like shit”.
[10] Ms Hughes accepted that at least some of this evidence was properly admitted as a description of the relationship between the appellant and the complainant as the complainant was growing up. For example, she accepted that the evidence about exclusion from family holidays and the evidence of swimming naked in the hot pools was properly admitted. In the latter case this was relevant because the complainant said that the appellant had referred to his penis as his “bugle” during the course of one of the indecent assaults, and that he had used the same term at the hot pools.
[11] However, that leaves considerable evidence which was, for the most part, led by the Crown in circumstances where it was not relevant to the matters at issue in the trial and was obviously prejudicial to the defence. Crown counsel accepted that, at least in respect of some of this evidence, there was no basis for its admission. However, she said that the evidence had been led by the Crown with the acquiescence of the appellant’s trial counsel. She said this was part of a reasoned decision, based on the overall theory of the defence case.
[12] In his affidavit, trial counsel did not refer to any agreement with the prosecutor about the leading of this evidence, and there is no reference to it in the Court file. Nevertheless, the fact that the Judge did not intervene supports the proposition that some form of agreement had been reached in relation to this evidence. In his affidavit, trial counsel says that he did not object to the Crown leading this evidence as it was relevant to his theory of the defence case. He considered that the evidence concerning the rape by the family friend in Australia, the attempted rape by the appellant in Australia and the attempted suicide by the complainant assisted the defence case. He said he wanted these matters in front of the jury to highlight the fact that, while the complainant had mentioned the rape by the neighbour in Australia and her suicide attempt to her counsellor and to a lawyer in August 2003, she had not at that time mentioned any incident of abuse by her father. Thus this information could be used to suggest that the complainant had fabricated the allegations against her father after the event.
[13] The case was advanced in this Court on the basis of counsel incompetence, relying on the decision of the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730.
Crown counsel argued that this was a case of the kind described in Sungsuwan at [66] (an act or omission of counsel which was deliberately judged at the time to be in the interests of the accused with which the accused agreed or acquiesced, only to complain after conviction). While it is true that trial counsel indicates that the strategy was deliberate, we must focus on the outcome of the admission of the evidence, in the context of the trial itself, and take a broader view of the possibility of a miscarriage of justice.
Our approach to the appeal
[14] Consistently with that approach, we consider the admission of the prejudicial evidence alongside two other important factors which affect its impact on the proceedings as a whole.
Appellant did not give evidence
[15] The first of these is that the appellant did not give evidence. Ms Hughes made much of the fact that the appellant was not adequately advised on the importance of giving evidence or calling evidence from his wife and son. In the absence of cross-examination, however, we have no reason to reject trial counsel’s evidence to the effect that the appellant appeared to him to be likely to be a very poor witness, that he explained the situation to the appellant clearly, and that the appellant signed a document which confirmed that the appellant chose not to give evidence and chose not to call evidence from his wife and son.
[16] That is not the end of the matter, however. The significance of the appellant not giving evidence in this case is that it compounded the flawed strategy of allowing significant prejudicial evidence to be adduced by the Crown, because if the appellant did not give evidence then there was no way in which the complainant’s evidence on a number of those matters could be contradicted. It was vigorously challenged in cross-examination, with some success, but that is quite a different thing from clear evidence being adduced to the effect that the statements made by the complainant about the extraneous matters was untrue or incorrect.
[17] The second matter is that there was no direction from the Judge as to how the jury should make use of the prejudicial evidence. Once this evidence was before the jury, it was necessary that the jury be given some guidance as to the use to which the evidence could be put. Some of the evidence may have been relevant as explaining the very lengthy delay in the complainant making her first complaint about the alleged sexual assaults by the appellant. But much of it was not relevant for any legitimate purpose, and its only use could have been as a basis of criticising the appellant’s account of the events in issue as exaggerated and untrue. However, in the absence of any evidence contradicting it, even that point could not be made. It may well be that the Judge needed to direct the jury to ignore much of this evidence, which of course simply highlights the fact that it should not have been admitted in the first place.
[18] As we noted earlier, the fact that the trial Judge did not make any directions of this kind and did not intervene to stop the adducing of this evidence tends to support Crown counsel’s submission that there was some agreement from defence counsel to its admission, and that the Judge was aware of that agreement. That may explain why no direction was given, and there was no intervention, but it does not prevent there having been a miscarriage of justice on the facts of the case.
Our conclusion
[19] Standing back and looking at matters in the round, we have reached the view that a miscarriage occurred in this case. The combined effect of significant inadmissible and prejudicial evidence being adduced, no evidence being adduced by the defence to contradict that prejudicial evidence and the lack of any direction to the jury on what to make of the evidence creates, in our view, a substantial risk that real prejudice arose in the present case and that the verdicts reached by the jury are unsafe as a result. It was for this reason that we allowed the appeal.
[20] Ms Hughes asked that we direct the entry of an acquittal if the appeal were allowed, and not direct a retrial. She said that the appellant had served six and a half months of his sentence of two years and three months imprisonment. He would be eligible for parole after nine months i.e. there were only two and a half months remaining before his first parole eligibility date. She said that, in those circumstances, it would be in the interests of justice not to order a retrial.
[21] Crown counsel strongly opposed that submission. She said that in circumstances where an appeal was being allowed at least in part because of the conduct of the appellant’s trial counsel, it was in the interests of justice, and in the interests of fairness to the complainant, that the final outcome of this matter be determined by a jury. We accept that submission.
[22] It was for these reasons that we allowed the appeal and ordered a retrial.
Solicitors:
Crown Law Office, Wellington
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