R v K HC Hamilton CRI 2006-419-97

[2008] NZHC 2226

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-000097

THE QUEEN

v

K

Hearing:         13 March 2008

Appearances: T V Clark for Crown

T Sutcliffe and L Wilkins for Accused

Judgment:      13 March 2008

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

T V Clark, Almao Douch, P O Box 19173, Hamilton. Email: [email protected]

T Sutcliffe, P O Box 19021, Hamilton. Email: [email protected]

R V K HC HAM CRI 2006-419-000097  13 March 2008

Introduction

[1]      The Crown seeks leave under s 335(1) of the Crimes Act 1961 to amend various counts in its indictment.

[2]      The application is strongly opposed by the accused’s counsel.   The issues involved are both difficult and delicate.

Background

[3]      The  accused  was  arrested  in  2005  in  respect  of  alleged  historic  sexual offending against his niece in the 1980s.  Although he was originally to be tried in

2006, for various reasons, irrelevant to this application, the trial did not take place until July 2007 before Heath J.

[4]      The counts which the accused faced at his first trial were more numerous than he now faces.   Again I do not consider that the details of that now superseded indictment are relevant.  The jury in the July 2007 trial was unable to reach a verdict.

[5]      A retrial took place before me beginning on Monday 3 March 2008.  At that trial the accused faced an indictment of 10 counts.  Count 1 alleged rape at Hamilton between 18 April 1981 and 17 April 1984.  The complainant’s date of birth was 18

April  1967.     This  count  was  particularised  as  a  rape  in  a  bedroom  in  the complainant’s home.

[6]      The second count was a representative charge and alleged rape between the same dates as count 1 but being particularised as taking place in a fruit shop operated by the accused and his wife.

[7]      The next two counts allege indecent assault between 18 April 1981 and 17

April 1983, again particularised as being in the same fruit shop.   These and other charges of indecent assault were made under s 134(2)(a) which specifies as part of the actus reas an indecent assault on a girl over 12 and under 16.  Thus the second date in those two counts (17 April 1983) has significance.

[8]      Counts 4, 5, 6, 7, and 8 allege indecent assault between the same specified dates at various other venues.  One such venue is the toilet of the accused’s home. Another was in a police vehicle parked in a suburban street.  Two counts related to indecent assault in a Cortina station wagon being driven from Hamilton to Cambridge.  The final two counts under s 128(1)(b) allege sexual violation, on later dates in 1986 and 1987.

[9]      At this trial the complainant had completed her evidence in chief.  She made it very clear that the alleged sexual offending started with the incident she described comprised in count 1.  This took place in a bedroom of her own home.  It took place a few weeks after the birth of her cousin Tama (the accused’s youngest child) who, she said, was asleep on a bed in the room.   She initially thought the accused was summoning her into the bedroom to give her instructions on caring for Tama.  She says she was then raped.

[10]     The complainant went on to give evidence that the next offending (the three fruit shop counts) occurred shortly after what she described in count 1.  It took place at a fruit shop operated by the accused’s wife.

[11]     She was very clear in her evidence that the total duration of the offending was approximately six months; that she was 14 to 14½ at the time and that towards the end of that six month period, probably in the winter of 1981, she took avoiding action by committing herself to a number of sporting activities designed to ensure she was not available to baby sit the accused’s children on Fridays and Saturdays.

[12]     The trial was aborted by me shortly after lunch on Tuesday 4 March.  Again the reasons are irrelevant to this application.   In discussions with counsel that afternoon, particularly as it was apparent that we would be able to empanel a fresh jury to start a third trial on Wednesday 5 March, I suggested to Ms Clark, for the Crown, that given the very clear evidence of the complainant she might like to consider altering the time-frames specified in the indictment.  On the evidence from the complainant it seemed very clear the offending must have taken place during calander 1981 (the child Tama was born in January 1981) and that the indictment presented before the second trial with dates out as far as April 1983 and 1984 was,

even for representative charges, unnecessarily wide.   I also observed that count 3 which was particularised as digital penetration more than once should probably be framed as a representative charge.

[13]     Ms Clark accepts, and she is right so to do, that there was no pressure from the Court on her to amend the indictment in the way suggested.   Certainly my suggestion seemed sensible at the time and as I understand it Ms Clark indicated that had the issue not been raised she would probably have been content to embark upon the third trial with the same indictment.

[14]     In the event the indictment now before the Court has been tidied up.   The order of the counts has been altered slightly.  The specified dates for counts 1 to 8 (two of rape, and 6 of indecent assault) are 18 April 1981 (the complainant’s 14th birthday) to 31 December 1981.

[15]     The accused’s preparation for the trials of 3 and 5 March appears to have been more thorough and detailed than for the trial before Heath J last year.  It soon became apparent during cross-examination that the defence had available evidence that the composite title for the block of shops where the fruit shop sat was not issued until September 1982; that various shop leases ran from August 1982; and that on the basis of building permits and various health certificates required the fruit shop was probably not in existence before June 1982 and no food premises certificate had been issued until late October 1982.  Almost certainly the fruit shop did not become operational until January 1983.  There was clear evidence at trial too that the accused and his family stopped operating, or vacated the fruit shop in favour of a new owner on 28 May 1984.

[16]     Understandably  and  persistently  the  complainant  was  taxed  with  these matters during cross-examination.  The best she could do was to say that if the fruit shop was not in existence in 1981 then she could not have been sexually abused in those premises at that time.   She was adamant, however, that events which she described as taking place in the fruit shop did indeed happen.

[17]     With considerable force both in cross-examination and also in submissions to me Mr  Sutcliffe points  to  what  are close to  fundamental  inconsistencies  in  the complainant’s evidence.  If the counts 1 – 8 offending of which she complains began when Tama was but a few weeks old, and when she was only 14 to 14½, and if that offending was only of approximately six months’ duration, then offending in the fruit  shop  which  was  not  to  be  operational  until  January  1983  could  not  have occurred at the time the complainant stated.

[18]     The complainant, however, did not resile from her evidence relating to counts

2 – 4.  Clearly , however, there are huge questions here for the jury to consider so far as both her reliability and credibility are concerned.

[19]     In respect of the other counts (5 – 8) of alleged sexual offending in the same time frame but not in the fruit shop there was not the same degree of accuracy available in evidence so far as dates are concerned.   Again the complainant has nailed her colours to the six months post Tama birth mast.  Despite careful attempts by defence counsel to research the issue precise dates as to the ownership of the Cortina station wagon are not available (although there has been evidence from defence witnesses on that issue) nor of course is any precise evidence about the alleged indecent assaults in the accused’s toilet and in the police car.

[20]     The same difficulties occur with those counts although with less precision. The complainant’s evidence was this alleged offending all took place whilst she was baby sitting the accused’s children and was involved in tending the fruit shop with them and indeed being picked up for baby sitting purposes.  This phase of her life (baby sitting) if it occurred obviously could not have taken place before the fruit shop became operational on her evidence.

The Application

[21]     Although signalling before the close of evidence that an amendment to the indictment would probably be sought under s 345(d), on reflection over-night Ms Clark  decided,  and  rightly  so,  to  seek  an  amendment  to  the  indictment  under s 335(1).  That provision relevantly provides:

335      Variance and amendment

(1)       If  on  the  trial  of  an  indictment  there  appears  to  be  a  variance between the proof and the charge in any count of the indictment either as [filed] or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.

(2)       If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make the amendment.

[22]     I have considered the commentaries on the provision and Adams on Criminal Law.   I have also been referred to two Court of Appeal judgments of Moli v R CA117/05 5 July 2005 and P v R CA89/04 26 October 2004.

[23]     As was accepted in both those cases (and indeed in the earlier decisions of R v Stone [1920] NZLR 462 (CA) and R v Bovey [1964] NZLR 865 (CA)), the policy of the section, as is clear from ss (1), is to ensure that the indictment accords with the evidence which has been produced at trial. The safeguard, because clearly an accused person is entitled to know the specificity of the case he or she faces, is to be found in ss (2).

[24]     In this particular instance the “proof” which has led Ms Clark to make the application  is  the  evidence  produced  by  the  accused  at  trial  and  in  particular evidence which is unchallenged as to the operation dates of the fruit shop.

[25]     Relevant also is the fact that this is a trial operating in the context of alleged sexual offending.  As I have stated the complainant’s 16th birthday is an integral part of the charge in question.   Particularly with alleged historical offending stretching back decades it is not unusual to find broad time periods specified (usually birthday related) even for specific acts of sexual offending as opposed to continual acts which might properly form the basis of a representative charge.

[26]     On the issue of prejudice the Crown submits that the allegations made by the complainant, and in particular her evidence, have been known to the accused since September 2005; and there has been the evidence in chief she gave both in July 2007 and at trial beginning on 3 March:   Because the evidence which has led to the s 335(1)  application  has  been  defence  evidence  it cannot  be  contended  that  the

accused is taken by surprise.   The complainant in cross-examination certainly appeared to accept that she must be mistaken so far as 1981 being the fruit shop date was concerned but this, submits Ms Clark, is a matter which adversely affects the Crown rather than the accused.  The defence case has unfolded in its entirety.  The defence is not date specific.

[27]     The  defence  quite  simply  is  that  these  alleged  events  never  happened. Although there was indeed cross-examination on dates (to which I have referred) there is cross-examination and indeed conflicting evidence led by the defence which suggests that the complainant never babysat the accused’s family and indeed was never in the fruit shop or certainly never alone in the fruit shop with the accused.  In short, submits Ms Clark, this is precisely the situation which s 335(1) is designed to cover.   The evidence at trial discloses a variance between that evidence and the various counts of the indictment.

[28]     Initially Ms Clark sought to amend count 1 to dates from December 1982 to

January 1983 and counts 2 – 8 to the dates from January 1983 to December 1983.

[29]     Mr Sutcliffe’s major submission in opposition was that inevitably given the complainant’s  evidence  and  the  defence  evidence  there  would  always  be  a “variance” between the proof and the various counts.   The time suggested by the complainant of the first alleged rape in relation to Tama’s age, coupled with her insistence of ongoing abuse in the fruit shop and other places over a six month period, would not be cured by the amendment the Crown sought.  Although it might be possible to amend the fruit shop related counts so that the alleged offending was in accord with the dates of that shop’s operation, the inconsistency between those dates and the complainant’s evidence was still unaddressed.

[30]     There is force in that submission.  Ultimately, however, I think it is a matter for the jury although I agree with Mr Sutcliffe that were I to accede to the Crown’s application in toto there would be serious difficulties of the type he has outlined.

[31]     Importantly Mr Sutcliffe also submitted that in respect of any of the counts of indecent assault, to push the date out beyond the complainant’s 16th  birthday (18

April 1983) would require additional charges and would give rise to totally different legal factors so far as both actus reas and mens rea are concerned.  I accept the force of that submission and on reflection Ms Clark too did not pursue her request to amend any of the counts in question beyond the complainant’s 16th birthday.

Decision

[32]     Although I retain some uneasiness over the situation, particularly given my reluctance to allow the Crown in a criminal trial to shift significantly the goal posts in any way, I consider I should allow the application in part solely to retain some of the indecent assault charges where the alleged venue was the fruit shop.  This Court has to hold the balance between the Crown and the accused.  There is some force in Ms Clark’s submission that as a matter of fairness to the complainant the Crown ought not to be prevented from pursuing counts in  a situation where the accused has been fully aware of the allegations against him.   The complainant was insistent, despite the date discrepancies being pointed out to her, that offending in the fruit shop occurred.

[33]     The complainant when giving evidence (unsatisfactory though that may have been in many respects) had to cast her mind back a quarter of a century or thereabouts.  It seems to me her initial insistence that the fruit shop offending took place within a few months of her cousin Tama’s birth is an “obvious error” of the type the Court of Appeal was dealing with in Moli v R even though the complainant here is not subject to the intellectual disabilities as was the complainant in that case.

[34]     I do not, however, consider the interests of justice justify an amendment on any of the counts which do not relate to the fruit shop.  There, it seems to me, the complainant’s evidence has to be considered by the jury warts and all in its entirety. The alleged offending at the other three locations is not subject to clear evidence contrary to the complainant’s evidence of the type which the fruit shop evidence has thrown up.  I do not consider that there is a sufficient nexus between the proof and the other indecent assault counts to justify my exercising my discretion in respect of s 335.  There has been specific evidence relating to the two counts involving the trip to Cambridge.   To allow the change there, in my judgment would be unfair also

because the complainant was quite clear this had taken place in 1981 (noe pgs 45,

114, and 171).

[35]     Nor am I prepared to allow the amendment to count 1.  In any continuum of sexual offending a complainant’s memory (if the offending occurred) of the first offence is usually fairly vivid.  In this particular case there is no real challenge to the detail provided by the complainant rather the defence is it never happened at all. Count 1, as I have said before, is specifically linked to the age of the complainant’s cousin Tama.

[36]     Accordingly I allow the Crown to amend (in its indictment dated 5 March

2008) counts 2, 3, and 4 so that the alleged dates are from 1 January 1983 to 17 April

1983.

[37]     The application as it relates to counts 1, 5, 6, 7, and 8 is refused.

[38]     Counsel are fortunately in agreement in respect to count 10.  Count 10 relates to alleged offending some years later at a marae in Putaruru during the tangi of the complainant’s uncle Wayne Simmonds.  Exactly why this count was laid with a two year date (spanning 18 April 1986 to 17 April 1988) when it would have been easy for the police to have fixed the date of Wayne Simmonds and even obtain his death certificate, I know not.  Both counsel, however, are in agreement count 10 can be amended by deleting the current date shown and substituting “in or about April

1987”.

[39]     I intend on Monday morning when this trial resumes to explain to the jury that counts 2, 3, and 4 have been amended for legal reasons but in so doing the Court is not making any statements about the reliability or credibility of the complainant’s evidence in respect of those counts.

[40]     Out of an abundance of caution the dates specified in the remaining six counts will go to the jury in the form they are displayed in the 5 March indictment.

………………………

Priestley J