R v K CA15/03

[2003] NZCA 412

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA15/03

THE QUEEN

v

K(15/03)

Hearing:         19 June 2003

Coram:           Keith J Fisher J

Rodney Hansen J

Appearances: S D Cullen for the Appellant

H Lawry for the Crown

Judgment:      23 June 2003

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

[1]      The  appellant  appeals  against  his  conviction  in  the  District  Court  at Whangarei on a charge of indecent assault of his daughter.  He claims a miscarriage of justice resulted from a misdirection in the trial Judge’s summing up to the jury.

Facts and evidence

[2]      The complainant, T, was eight years old at the time of the offending.   Her parents had separated the previous year.  She was living with her mother.  Her father,

R V K(15/03) CA CA15/03 [23 June 2003]

the  appellant,  saw  her  from  time  to  time.    On  17  December  2001,  she  stayed overnight with him.  She slept in the same room as him.  She said she woke in the night to find that her father had pulled her pyjama pants down and, to use her words, “put his diddle up my bum”.  Her evidence was that the appellant approached her from behind and that his penis rubbed against her bottom and genitalia.   On her account, his penis  would  appear  to  have been  pushed  between  her  thighs  from behind.  There is, however, no evidence of anal or vaginal penetration.

[3]      The complainant’s mother said that several days after the complainant stayed with the appellant, he told her he had “done something really bad”.  He went on to explain that he had hopped into bed with T, thinking it was the witness, and gave her a cuddle before realising he was mistaken.  The witness did not pursue the matter with T but a month or so later T told her about the incident.

[4]      Evidence was also given by a young woman, A, who was present in the house on the night in question.  She and the appellant drank alcohol together before she went to sleep on a sofa in the lounge.  The appellant had fallen asleep at the table where they had been drinking.   A awoke to find the appellant kissing her.   She rebuffed him and went back to sleep.   She then awoke to find the appellant lying behind her thrusting his pelvis into her back.   She again rejected him and, after checking on T, left the house and walked home.  A’s evidence was admitted because of the similarity between the nature of the appellant’s advances to her and what T said he later did to her.  No issue is taken with that ruling.

[5]      The appellant gave a video interview and also gave evidence in his defence. In both the interview and at trial he denied that the incident had taken place.  He also denied having made any advances to A.  He rejected his former wife’s evidence that he had told her he had done something bad by embracing his daughter in bed in the mistaken belief it was his wife.

[6]      The defence also called the appellant’s sister.   She spoke of a discussion involving both T and her mother at which she and her husband were present.  She said the mother commenced an account of what T had told her had happened.  In the

course of this account, T interrupted to correct her version of what happened.  The witness said she gained the impression that T was being coached by her mother.

Misdirection

[7]      The sole ground of appeal is that the Judge failed to direct the jury as to the possibility that the assault on T occurred because the appellant mistakenly believed her to be his wife.  This derives from the evidence of the appellant’s wife as to what the appellant told her soon after the incident.  Mr Cullen submitted that the evidence provided the basis for an alternative defence based on lack of mens rea which should have been put to the jury.  He said the Judge erred in advising the jury that it was a one-issue trial, namely, whether the evidence of the complainant or the accused was to be accepted.  In his submission, the Judge should have left it open to the jury to reject the appellant’s account but still bring in a verdict of not guilty based on what he had said to his wife.

[8]      In our view, the argument is without merit.  The appellant was emphatic in his interview and in cross-examination that the incident had not occurred.   His evidence on the issue given in cross-examination was as follows:

“Now  I just  want  to  clear  this  up,  there’s  no  chance  that  she  has  just misunderstood something that you have done to her that night?…..Well it didn’t happen.

Is it possible that she did get into your bed and you did cuddle her?…..No it’s not.”

In light of this denial and the appellant’s denial of the conversation with his wife, the possibility of mistake by the appellant could never have been in issue.

[9]      The precise legal basis of a defence based on mistaken identity is not clear to us; it could not be consent as consent is not a defence to a charge of indecent assault on a girl under twelve years of age (s 133(2) Crimes Act).  Regardless, however, of how the issue might have been formulated, the appellant’s express disavowal of a defence based on mistaken identity precluded the need for any direction from the Judge on the subject.

Result

[10]     We are satisfied that the omission of the Judge to make reference to the issue of mistaken identity cannot be criticised.  The appeal is accordingly dismissed.

Solicitors:

S J Eisdell Moore, Auckland for the Crown