R v Kingsbeer

[2007] NZCA 300

THE JUDGMENT AND REASONS THEREFOR ARE NOT TO BE PUBLISHED IN THE NEWS MEDIA OR ON THE INTERNET OR IN ANY OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA352/06 [2007] NZCA 300

THE QUEEN

v

ALWYN KINGSBEER

Hearing:         11 June 2007

Court:            Ellen France, Ronald Young and Keane JJ Counsel:    N Levy for Appellant

M F Laracy for Crown

Judgment:      11 July 2007

Reasons:        19 July 2007

JUDGMENT OF THE COURT

R V KINGSBEER CA CA352/06  11 July 2007

AThe appeal is allowed to the extent that the convictions on counts three and four are quashed.

B        A retrial is ordered on counts three and four.

CThe concurrent sentences of 18 months imprisonment on each of the assault charges (counts two, five and six) are affirmed.

E        Bail with respect to counts three and four is to be dealt with in the

District Court.

FThe judgment and reasons therefor are not to be published in the news media or on the internet or in any other publicly accessible database until final disposition of trial.   Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]      In a judgment delivered on 11 July 2007 we allowed the appeal in part and we now give our reasons.

[2]      The appellant was convicted after trial of various charges arising out of a number of injuries to a boy, J.  The incidents giving rise to the charges occurred over a one month period in June and July 2006 during which J’s mother and the appellant lived together with J.

[3]      The  most  serious  of  the  charges,  sexual  violation  by  unlawful  sexual connection, arose from one incident in which J was found with a pen inserted some three to  four  centimetres  into  his  anus  (count  four).    Counts  two,  five  and  six

involved a series of assaults on J in the course of which his head was flushed in the toilet, his face rubbed on a carpet, and his ears and face were bruised.  Count three, assault with a weapon, arose from an incident in which J had a map pin inserted into his penis.  The appellant was acquitted of a further charge of assault (count one).

[4]      The appellant appeals against his convictions.   There are two grounds of appeal, namely:

(a)The verdicts on the  counts of sexual violation and assault with a weapon are unsafe because relevant evidence was not called for the defence; and

(b)A propensity warning should have been given.  This ground affects all of the convictions.

The first issue: failure to call expert evidence

[5]      The issue under the first ground of appeal is whether a miscarriage has arisen because of trial counsel’s approach to the expert evidence.

[6]      Prior to the trial, the defence decided not to call its own expert.  Trial counsel obtained a report from an expert, Dr Teuila Percival, which said that it was possible for J to have inserted the pen himself.  Trial counsel advised the appellant against calling Dr Percival in part because she also said it was not likely J had caused the other injuries to himself.

[7]      There is no challenge to the approach taken prior to trial to this evidence. That is because the evidence of the  Crown’s expert Dr  Anuradha Langdana at depositions was that  it  was  technically possible  for  J  to  have  inserted  the  pen. However, the appellant says that when Dr Langdana changed her evidence on this issue at trial, his counsel should have revisited the question of calling Dr Percival.  It was the failure to do so, at that point, that the appellant submits has given rise to a miscarriage.

[8]      The Crown accepts that trial counsel should have sought instructions on this in the course of the trial.  But the Crown says the failure to do so has not given rise to any miscarriage.  That is primarily because Dr Percival’s evidence even now does not address the other evidence of Dr Langdana and the Crown’s other expert at trial, Dr Wills, that it was highly unlikely J would do this to himself.

Factual background

(i)       Depositions

[9]      We need to first describe what happened at depositions.  At depositions the Crown called one expert witness on the likely causes of J’s injuries, Dr Langdana. Dr Langdana is employed as a consultant paediatrician at Wellington Hospital and is a fellow of both the Royal College of Physicians in the United Kingdom and of the Royal Australasian College of Physicians in the specialty of paediatrics.

[10]     Dr Langdana explained at depositions that children do not insert objects into their anus “because it is extremely painful”.  She said she would find it “very hard to believe” that a child would do this.

[11]     In cross-examination at depositions, counsel for the appellant (counsel at trial), put to Dr Langdana the evidence in her brief that it was not only painful to insert a pen in the anus  for a  child but that was also “technically impossible”. Counsel asked Dr Langdana if she held to that view and she answered:

The history that I was given was that the pen was inserted much more than 3 or 4 centimetres and I believe in my opinion a 3 year old child would not be able to insert a pen high up into the rectum.

[12]     Dr Langdana, however, ultimately accepted that while “totally unusual”, it would be “technically possible” for a child to do this lying supine with his knees pointing towards his face.

(ii)      Discussions on evidence prior to trial

[13]     Against this background, trial counsel and the appellant, who was on bail pre- trial and over the course of the trial had a number of meetings prior to trial during which there was discussion about the desirability of obtaining expert medical evidence  to  support  the  defence.    Trial  counsel  made  a  number  of  attempts  in New Zealand and in Australia to obtain a suitable expert, and no complaint is made about the adequacy of the steps taken.

[14]     Dr Percival’s report was obtained on 15 August 2006, five days prior to the commencement of the trial on 21 August.

[15]     Dr   Percival   is   a   specialist   paediatrician   who   is   a   Fellow   of   the Royal Australasian   College   of   Physicians.      She   is   employed   as   a   general paediatrician at KidzFirst Children’s Hospital, Counties Manukau Health, and has practised as a paediatrician since 1993.

[16]     In the report she prepared for trial counsel prior to the trial, Dr Percival discussed in some detail the likely causes of J’s various injuries.  She described the insertion of the pen as “unusual behaviour for a child” but she said that in her opinion this could occur “as in this case when a child would seem to have a number of stressors and behavioural issues particularly around bowel and bladder control”. Dr Percival went on to refer to a “note” being made of “similar behaviour in Wellington hospital while an inpatient”.  It appears that the latter is a reference to a nurse’s note that J had inserted a finger into his anus.

[17]     Both trial counsel and the appellant filed affidavit evidence and both were cross-examined in this Court.   While there were differences between them over matters such as the extent of pre-trial discussion about the medical evidence, those differences were resolved in the course of cross-examination of the appellant.

[18]     We accept that trial counsel and the appellant discussed the advantages and disadvantages of calling Dr Percival and the appellant understood what was helpful in her evidence and what was not.  There was what trial counsel described as a joint process in which counsel and the appellant worked through the options, but, ultimately, the appellant accepted trial counsel’s advice that Dr Percival should not

be  called.    As  we  have  said,  that  advice  was  based  in  part  on  the  conclusion Dr Percival’s evidence was not helpful to the defence case on the assault charges. Essentially, Dr Percival doubted that the assaults were either accidentally or deliberately inflicted by J.   For example, she described one set of bruises on J as “highly suspicious” of non-accidental injury.

[19]   Counsel’s advice also reflected an assessment that Dr Percival’s report “generally lacked value”.  That was because it focused on whether it was physically possible for J to insert the pen whereas the Crown evidence dealt also with the likelihood  of  J  having  done  this  and  the  associated  pain.    Counsel  was  also concerned about the absence of any references to medical literature or studies supporting the opinion.

(iii)     The trial

[20]     We turn then to the trial.  The Crown case was that as the appellant became increasingly frustrated with J’s toileting problems, he resorted to increasingly cruel physical responses.

[21]     The defence response was that J was a very disturbed boy primarily as a result of earlier exposure to domestic violence and that J had caused all of the injuries himself either accidentally or deliberately.  The defence said J’s mother put the blame on the appellant in order to deflect criticism from the authorities about her role in these matters.

[22]     At trial, for the Crown, J’s mother gave evidence that J’s behaviour changed with the appellant’s arrival, and in particular his toileting regressed.  He also had a painful and ongoing infection in his penis.  J received medical attention and inquiries as to abuse were initiated after the last occasion on which J received medical treatment.

[23]     Dr Langdana said at trial that a three year old child would not have the motor skills to insert the pen into his anus.   When asked in cross-examination about her earlier evidence at depositions, Dr Langdana said she was now “firmly” of the belief

that it was not possible in terms of motor co-ordination for a child of this age to be able to do this.  At the end of cross-examination of Dr Langdana, at the suggestion of the trial Judge, Judge Davidson, trial counsel put to her the evidence at depositions on this point.  The Judge made this suggestion because, he said, “it is obviously a significant issue”.

[24]     Dr Wills also gave evidence for the Crown at trial.   As we have said, he had not   given   evidence   at   depositions.      Dr   Wills   is   a   Fellow   of   the Royal Australasian College and has expertise in cases of sexual abuse of children. His evidence was that inserting an object into a child’s rectum is “an exceptionally rare behaviour” and that inserting a finger into the anus was also “a very uncommon behaviour”.  He referred in this respect to a study that looked at over 400 children. His recollection was that none of the boys in the study inserted an object into their rectum.  Dr Wills also dealt with the capability of J to do this.  He said that J would not have had the manual dexterity to insert the pen.

[25]     Both of the Crown’s expert witnesses disputed the appellant’s claim that the child could have inflicted or caused his other injuries (bruises and abrasions on the buttocks, ear and forehead).

[26]     Trial counsel was “surprised” by Dr Langdana’s change of tack at trial but accepts he did not seek instructions as to whether Dr Percival should be called or an adjournment sought after that evidence was given.   (For all practical purposes, an adjournment  would  have  had  to  be  sought  because  trial  counsel  was  aware Dr Percival was not available to give evidence at the time of trial.)   Trial counsel accepts that it would have been preferable to discuss the matter with the appellant. But his position was that the situation had not changed especially as, in his view, Dr Langdana had not come across very well and given the various problems with Dr Percival’s report.

[27]     It is plain the appellant had some awareness, at least, of the shift in position because he asked trial counsel about how it was Dr Langdana was able to change her evidence.

(iv)      Dr Percival’s evidence in this Court

[28]     In her affidavit filed in this Court, Dr Percival opines that it is possible for a child of the complainant’s age to insert a pen into his anus.  She says she bases this opinion on her knowledge and experience of the ability of children of this age to hold a pen and to reach their anus while doing so.  Dr Percival otherwise confirmed her earlier report.

Discussion

[29]     The approach to be taken to the appeal is that set out by the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730. For the purposes of this case, the summary of that approach by this Court in R v Scurrah CA159/06 12 September 2006 at [17] and [18] highlights the critical questions for us in these terms:

[17]     The approach appears to be, then, to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe.  If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

[18]      On  the  other  hand,  where  counsel  has  made  a  tactical  or  other decision that was reasonable in the context of the trial, an appeal will not ordinarily be allowed even though there is a possibility that the decision affected the outcome of the trial.  This reflects the reality that trial counsel must make decisions before and during trial, exercising their best judgment in  the  circumstances  as  they  exist  at  the  time.    Simply  because,  with hindsight, such a decision is seen to have reduced the chance of the accused achieving a favourable outcome does not mean that there has been a miscarriage of justice.   Nor will there have been a miscarriage of justice simply  because  some  other  decision  is  thought,  with  hindsight,  to  have offered a better prospect of an outcome favourable to the accused than the decision made.

[30]     The Crown submission is, essentially, that the present case is an illustration of  the latter  category,  i.e.  a reasonable tactical  decision  that  the  appellant  with hindsight has reconsidered.

[31]     The matter turns on whether, after Dr Langdana’s evidence had changed, it was incumbent on trial counsel to reassess the matter and obtain fresh instructions and the effect of not doing so.

[32]     As this Court said at [28] in R v Matagi CA135/05 4 July 2006, “[m]any things can go wrong in a trial, and incidental errors or irregularities of counsel” will not lead to a successful appeal unless there is a risk of miscarriage of justice.  In this case,  in  our  view,  the  effect  of  the  change in  Dr  Langdana’s  evidence  was  so significant that the only course available was to re-evaluate the position, take up the matter  with  the  appellant  and,  depending  on  instructions,  seek  an  adjournment. We cannot be confident that the failure to do so has not led to a miscarriage of justice.  Our reasoning follows.

[33]     The response of Dr Langdana to the cross-examination at depositions gave the defence a window of opportunity on the sexual violation charge because:

(a)      It was physically possible for the child to insert a pen in its anus; (b)  It was very unlikely J had done so;

(c)      However, this was a very disturbed child who had been observed inserting a finger into his anus; and

(d)      The appellant denied it was him.

[34]     That  left  the  defence  able  to  make  the  submission  that  because  it  was physically possible for J to insert a pen then the jury could accept that this was one of those extremely rare cases where it had happened.  The pivotal point was being able to make the submission to the jury that it was physically possible for a three year old to do so.

[35]     Dr Percival’s evidence was, because of the above propositions, not required at trial.  This was so because she would do little more than agree with Dr Langdana on the insertion of the pen question, but would also confirm the Crown medical evidence as far as the assaults were concerned.   At trial, therefore, the key to the defence of the sexual violation charge was that the act was physically possible. Without that evidence there seemed to be no realistic chance of acquittal.

[36]     Given Dr Langdana’s evidence at trial, by the end of the Crown case the appellant had no defence to the sexual violation charge for all practical purposes. This was a case in which there were only two possibilities.  Either J had caused the injuries to himself; or the appellant was responsible for them.  While of course the jury did not have to accept the expert evidence, the appellant by then had nothing else.

[37]     It is accepted that trial counsel should have consulted the appellant.   What should counsel have said and how could this have affected the outcome?   In our view, counsel should have told the appellant that the only evidence giving him a realistic chance of defending the sexual violation charge had gone.  Further, that if Dr Percival was called then the defence on the sexual violation charge was still open but any defence on the assault charges was for practical purposes non-existent.

[38]     In evidence before us, trial counsel did not see the position as having changed as significantly especially given the impression Dr Langdana had given at trial.  In our view, that misunderstood how critical Dr Langdana’s evidence was for the defence of the sexual violation charge.

[39]     The rather stark choice the appellant then faced should have been put to him. If the appellant still chose not to call Dr Percival, then he could not have complained if ultimately convicted.  But he should have been given the opportunity to make this choice.

[40]     We acknowledge the points made by Ms Laracy which go to the cogency of Dr Percival’s  evidence.     Dr  Percival’s  evidence  is  focused  primarily  on  the possibility J inserted the pen and so does not go very far to rebut the evidence that such an activity, even if possible, is highly unlikely.   Nor is the discussion about feasibility referenced in any way to the literature and any relevant studies.   Her evidence also remains harmful to the issues of credibility and animus to J that could have affected the other counts.

[41]     It certainly is unfortunate that even with the opportunity provided by the process of preparing an affidavit for the appeal, Dr Percival still does not address

squarely the likelihood of this event occurring.   There is also merit in the other criticisms made by Crown counsel.   However, on balance we consider that in the context of the case the evidence has some cogency.  The appellant should have been given the opportunity to instruct his counsel to seek to call it given the importance it later assumed.

[42]     We accept that the appellant had been kept well-informed by his counsel and the  appellant  also  impressed   as  understanding  the  predicament  facing  him. However,   his   acceptance   of   the   approach   recommended   was   premised   on Dr Langdana’s evidence at depositions.  We consider it was expecting too much of him to have raised the matter of a different approach given his, appropriate, reliance on counsel’s advice.  We do wish to make it clear that trial counsel had otherwise prepared for and conducted the trial in an appropriate manner.

[43]     For completeness, we record that we accept Ms Levy’s submission that the evidence  of  Dr Percival  is  fresh  in  the  sense  discussed  in  R  v  Cassidy  [1995]

3 NZLR 184 (CA). Although not fresh in the orthodox sense of availability, the change in circumstances at trial was sufficient to meet the test for freshness.

[44]     Accordingly, we have concluded that what occurred did give rise to a risk of a miscarriage of justice.   The appellant’s position is that this necessitates a retrial only on count three (assault using the map pin) and count 4 (sexual violation effected by the pen).  The evidence in relation to those two counts was admitted on a similar fact basis.

[45]     For these reasons we ordered a retrial on counts three and four.

The second issue: propensity direction

[46]     In R v E W [2005] 2 NZLR 307 at [16] (CA), this Court said that the jury had to be directed that not only must each count be considered separately but must also be “alerted” to the danger of propensity reasoning and against allowing illegitimate prejudice from one incident to another. In reliance on E W, the appellant says the Judge’s summing up to the jury should have included a direction in these terms:

It would be wrong to bolster up the case on one charge by evidence that relates to another or to reason that if an accused is guilty of one charge then he must be guilty of another.

[47]     The Judge did not use the E W formula as set out above.  We note that E W involved a different situation from the present.   It dealt with unrelated charges of sexual offending by E W in relation to two different complaints.  The trial was not run on a similar fact basis.  In any event, especially when the summing up is viewed as a whole, it is plain that the jury in this case was adequately directed against propensity reasoning. Further, the directions were given in a manner readily understandable by the jury.

[48]     The Judge in the initial, general, part of the summing up directed the jury that each of the six counts was to be considered separately and cautioned against using evidence relating to one count in considering other counts.   There was a similar direction  at  the  end  of  the  summing  up.    Those  directions  repeated  an  earlier direction to consider each charge separately which was set out in the Judge’s preliminary memorandum for the jury.

[49]     In terms of the similar fact evidence, the Judge said:

[76]      You need to be very careful about two things in particular.  Firstly, do you think there is any reasonable possibility that [J’s mother] has made up false but matching allegations against the accused about his involvement in these two incidents to deflect blame from herself.  Secondly, if you think there was no feature or characteristic common to both of the offences, you must guard against the danger of thinking, well, although there is no pattern here, the accused is inclined to act in an unacceptable way, so he must be guilty.  That would be false logic and unfair.

[77]      I emphasise that this feature only applies in respect of Counts 3 and

4, the one with the other.  It has no application in respect of any of the other charges whatsoever.

[50]     We accept the Crown submissions that the direction in [77] is plain, that is, the  possibility  of  cross-pollination  applies  only  as  between  these  two  counts. Nothing further was necessary in the circumstances.

[51]     The  appellant  suggests  that  the  directions  about  circumstantial  evidence allowed propensity reasoning because they included the usual reference to being

satisfied about a “combination of facts or events”.    The directions in this respect were both orthodox and applicable to the case.  We see no merit in this argument.  In any event, the directions on the use of circumstantial evidence reinforced the need to look at each count separately. They concluded at [57]:

It is for you to say whether you are satisfied that there is such a combination of facts or events here, that you are satisfied beyond reasonable doubt, of guilt.  I have already explained to you in a summary way the essential points of circumstantial evidence relied upon by the Crown in relation to each of the counts, and the essential defence answers. (Emphasis added)

[52]     Finally, as the Crown submits, there is some support for the view the jury has done as it was directed given the different verdict on count one.

[53]     This  Court  took  a  similar  approach  in  R  v  S  (CA245/02)  CA245/02

24 July 2003 noting at [61] that it would have been preferable to use something like the “fuller” E W formula but the Court was not persuaded that the jury had been inadequately directed.  There the jury had been instructed several times to consider the charges individually and, reading the summing up as a whole, the jury could not have been left in doubt.  The Court in S also gave some weight to the way in which the jury had in fact behaved including the discriminating nature of the verdicts.

Effect on sentence

[54]     We need to consider the effect on sentence of our ordering a retrial on counts three and four.

[55]     The appellant was sentenced on 22 September 2006 to an effective sentence of six years nine months imprisonment.  That was the sentence imposed in relation to count four, the sexual violation charge.   On count three, assault with a weapon, a sentence of three and a half years imprisonment was imposed.  On each of the three charges of assault on a child, a term of one and a half years imprisonment was imposed.  All of the terms were concurrent.

[56]     We sought further written submissions from counsel as to the impact of quashing the convictions on counts three and four on sentence.

[57]     Both counsel agree that the 18 month sentences on the assault charges will have been served now because s 86 of the Parole Act 2002 mandates release after serving half such a sentence.

[58]     The appellant’s submissions deal with the position if the Court considers it is required to address the sentences on the assault charges.  In those circumstances, the appellant  does  not  oppose  those  sentences  being  affirmed  under  s 386  of  the Crimes Act 1961.  That position is without prejudice to the ground of appeal relating to the propensity direction.  Under that ground, the appellant seeks the quashing of all convictions.

[59]     Given the appellant’s approach, we considered it was appropriate to affirm the sentences on the three assault charges (counts two, five and six).

Result

[60]     The appeal was allowed to the extent that the convictions on counts three and four were quashed.   A retrial was ordered on these two counts.   The concurrent sentences of 18 months imprisonment on each of the assault charges (counts two, five and six) were affirmed.   As we understand it, the sentence on the remaining convictions has been served, and on that basis we ordered that bail (on counts three and four for which a retrial has been ordered) is to be dealt with in the District Court.

[61]     We made an order that the judgment and the reasons therefor are not to be published in the news media or on the Internet or in any other publicly accessible database until final disposition of trial.   Publication in Law Report or Law Digest permitted.

Solicitors:

Crown Law Office, Wellington