R v Lewis
[2014] NZHC 2331
•24 September 2014
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-055-2751 [2014] NZHC 2331
THE QUEEN
v
JUNIOR LEWIS
Hearing: 22, 23 and 24 September 2014 Counsel:
AM McClintock and MJ Hammer for Crown
PE Dacre QC for DefendantJudgment:
24 September 2014
JUDGMENT OF BREWER J
Solicitors/Counsel: Meredith Connell (Auckland) for Crown
Paul Dacre QC (Auckland) for Defendant
R v LEWIS [2014] NZHC 2331 [24 September 2014]
[1] On 29 July 2013, the complainant, P, was home in bed, sick with the chickenpox. P was five years old.
[2] P lived in a four bedroom home which was occupied by nine people, including the defendant, Mr Junior Lewis. P shared a room and a bed with her grandmother, H. H was her guardian following the death of P’s mother. On this day, H had a doctor’s appointment. The appointment time was 10:45 am. It was about a five to 10 minutes drive to the doctor.
[3] Mr Lewis, who is a member of P’s extended family, had been staying at the house off and on for the previous two months. His mother and sister had recently obtained another house and he was in the process of shifting there. Nevertheless, he spent the night of 28 July 2013 at P’s house.
[4] On the morning of the 29th, Mr Lewis went to a bottle store and, when it opened at 9:00 am, bought alcohol. He returned to the house having, he said, consumed two cans of “Codys”. H had not yet left for her doctor’s appointment when he arrived. He spoke to H and knew that she was on her way to the doctor.
[5] Sometime after H left the house, Mr Lewis went into the bedroom H shared with P. P was in the bed. P’s evidence is that Mr Lewis got into the bed with her and sexually assaulted her. I will come to the detail of the allegations shortly.
[6] Mr Lewis, in his interview with the Police and in evidence before me, said he went into P’s room to get clothing he had left there. While he was there he sat on the bed so as to better reach his shoes which were under another bed in the room. He chose to sit because he had a sore leg. He spoke briefly to P. Mr Lewis denied any sexual contact with P or, indeed, touching her at all.
[7] Mr Lewis said, and this is corroborated by P, that while he was in the room P’s adult brother, R, came in and challenged him by asking if he had done anything to his sister. Mr Lewis replied “no” and at once left the house, never to return. There is no evidence that there was any prior discord between Mr Lewis and the
other occupants of the address, and his own evidence was that he got on well with all of them.
[8] There are four charges against Mr Lewis which I must decide. They all relate to this occasion:
(a) Charge 1 is that Mr Lewis did an indecent act on P by touching her genitalia.
(b)Charge 2 is that Mr Lewis did an indecent act on P by inducing her to touch his penis.
(c) Charge 3 is that Mr Lewis sexually violated P by raping her.
(d)Charge 4 is that Mr Lewis sexually violated P by introducing his penis into her anus.
[9] The onus of proof is, of course, on the Crown. The standard of proof is proof beyond reasonable doubt. The fact that Mr Lewis gave evidence does not change the onus of proof. It just means there is more evidence than the Crown case for me to consider. Mr Lewis’s evidence amounts to a flat denial of any sort of contact with P. If, on consideration of all the evidence, I find there is a reasonable possibility that he told the truth about that then I will acquit him. However, before I can convict him of any of the charges, I must be sure that the Crown has proven guilt.
[10] The Crown called the evidence of P, H, P’s half-brother, R, R’s partner, K,
and Detective Norton, the officer who interviewed Mr Lewis.
[11] On the evidence of H, R and K, I find that several days after 29 July 2013 P complained that Mr Lewis had touched her body. There are inconsistencies in their evidence as to who P told first, and when. I do not think that matters. The point is that, within days of 29 July 2013, P told members of her family that Junior had touched her body. I accept that, when she spoke to H, she referred to his “bollo”, a term she had been taught by H to apply to both the male and female genitals. She
told H that “he put his bollo”, and pointed to her genitals and to her bottom. She
said he put his bollo “on my body”.
[12] I am also satisfied that P repeated her allegations on a number of occasions to members of her extended family but that the Police were not contacted until family members had been able to discuss what to do. It is common ground that H telephoned the Police to make the complaint on 9 August 2013. P was interviewed by the Police on 4 September 2013.
[13] I observed P, both on the DVD recording of her interview with the Police and when she gave evidence before me via CCTV. She is quite an outgoing and articulate child. She is, of course, a young child and her evidence was given accordingly. But I found her to be quite clear on her broad description of what happened.
[14] I am satisfied that P described Mr Lewis coming into the room and getting into bed with her. He put his hand on her genitalia and he took her hand and put it on his penis. He lay on top of her and, as she put it, “humped” her. That is to say, there was contact between his penis and her genitalia. He turned her on her side and there was contact between his penis and her anal area. That is what P described. She did so with a degree of detail and consistency which was impressive.
[15] Ms McClintock referred me to reg 49 of the Evidence Regulations 2007 which sets out a direction which a Judge may give to a jury where a witness is a child under the age of six years. It was useful to be reminded of the principles contained in that direction, and I bear them in mind.
[16] P demonstrated with dolls the touching of her genitalia, the placing of her hand on Mr Lewis’s penis, and the “humping”. When the interviewer asked her which part of his hand he put on her body, P demonstrated by holding up a finger. She said it was moving, “it was all shaking”.
[17] P was not as clear in describing whether Mr Lewis’s hand touched her
genitalia on the skin or whether his penis was exposed when he put her hand on it.
Mostly, she says her clothes were on. However, H reported that P told her that her undies were off. When he “humped” her, P says she was wearing a black t-shirt and a hoodie and shook her head when asked if she was wearing anything else. She says that when he put her hand to his bollo his clothes were off, and he was not wearing anything when he was “humping” her except a hoodie. I note that she described his underwear as being a “slippery undie”. So far as where his hand went, on one occasion she said it was “inside”.
[18] Mr Lewis’s evidence was one of denial. In the circumstances, there was nothing more he could say. I could not make a subjective assessment of his veracity based on his affect, and it would be dangerous for me to do so. I must look at all the evidence to decide what is proved.
[19] R is a witness I treat with caution. In his oral evidence he went further than he did in his statement to the Police. He said that when he entered the room Mr Lewis was on the bed with the bedclothes up to his waist. Mr Lewis had his phone in his hand and he jerked upright (a guilty start, I inferred) when R entered. Mr Lewis left the room immediately (which means he was fully dressed). R said that P made an immediate complaint. As a result, R went after Mr Lewis, who fled. He went out the back of the house, jumped a fence and fled.
[20] R struck me as an angry young man, trying to be “staunch”. He became irritated quickly with what he considered repetitive questioning. He was quick to quarrel with counsel. He obviously – and perhaps understandably – was hostile to Mr Lewis. H gave evidence that R did not attend the family meetings held to discuss P’s allegations because he was too upset. Detective Norton told me that when he interviewed R, he had to persuade him to get involved. He did not really want to talk to the Detective about the incident.
[21] I have doubts about R’s reliability. I will, therefore, put him in the proved matrix to the extent that he entered P’s room, saw Mr Lewis, Mr Lewis had his phone (Mr Lewis confirms that), something he saw or sensed triggered the challenge, “did you do anything to my sister?”, Mr Lewis replied “no”, and then Mr Lewis at once left the room and the house. P herself says that R asked her if
Mr Lewis had done anything to her, and she replied “nothing”. That was because
she was scared.
[22] On the evidence, I am sure that charge 1 is proved. I find that Mr Lewis did an indecent act on P, a child of five years, by touching her genitalia. I am not sure whether he touched her on her skin or over her underwear. Accordingly, I must give him the benefit of the doubt on this point.
[23] I find charge 2 to be proved. I am sure that Mr Lewis did an indecent act on P, a child then aged five years, by grabbing her hand and putting it on his penis. I am sure that the contact was on his naked penis.
[24] For charges 3 and 4, I am sure that there was contact between Mr Lewis’s penis and P’s genitalia and between Mr Lewis’s penis and her anal area. However, I am not sure of penetration. I accept that Mr Lewis had lowered his trousers, but P was not sufficiently clear on where the penis went to make me sure of penetration. It is true that on occasion P told the interviewer that the bollo was “inside”. But that is not what she told H, and initially she used words like “against” or “to my body”. She also said initially that he put his bollo “around it”.
[25] Unfortunately, it was the interviewer who introduced the concept of the bollo
being “in” P’s bum:
Q. So did you have undies on or off when he put his bollo in your bum? A. Undies on.
Q. Undies on. Okay. And I am just wondering did he put his bollo in or outside your bum?
A. Outside your, outside my bum.
[26] Later the interviewer asked:
Q. Yeah. And how many times did he put his bollo in your bum? A. Six times.
[27] It was later in the interview that the interviewer asked:
Q. And so, [P], when he put his bollo on your bum, was it inside, outside or something else?
A. Inside.
Q. Inside, mm. A. All inside.
[28] P was asked when his bollo was inside her bum was it moving or still or something else and she replied “still”. She was then asked whether, when he put his bollo “over here” (indicating the genital area on a diagram), was it inside, outside or something else and P replied it was “inside”. When asked whether it was moving or still or something else, her answer was “moving”, and when asked how that felt, she said it was “hurting” and that it was hurting for “three weeks”.
[29] Mr Dacre QC submitted that this evidence is insufficient, in the circumstances, for me to be sure of penetration. Among the circumstances to which Mr Dacre refers is the lack of any complaint of soreness and no observation by H of any physical consequences such as bleeding. Mr Dacre submits that given the presence of others in this small house, it is inherently unlikely that Mr Lewis would have effected penetration of the vagina or anus of this five year old girl. If he had, and it had hurt, she would not only have cried out but she would certainly have reported that to her family when she reported the indecencies inflicted on her by Mr Lewis. It was not a single report, nor a report to a single person. The evidence is that she told a number of family members on a number of occasions what had happened to her. But her choice of words was always consistent with external contact rather than penetrative contact.
[30] On the basis of P’s description, I am sure that Mr Lewis brought his penis into contact with P’s genitalia and her anal area. I think it very likely that, to some small degree, there was penetration. But I cannot be sure. Accordingly, I find for charges 3 and 4 a variance between the proof and the charges.
[31] Section 133 of the Criminal Procedure Act 2011 provides that the Court may at any stage in a proceeding before the delivery of the verdict amend a charge. Such an amendment may be made on the Court’s own motion.
[32] Section 136 of the Act provides that despite s 133, during the trial a charge may be amended to substitute one offence for another offence only if there appears to be a variance between the proof and the charge and the amendment will make the charge fit with the proof.
[33] By virtue of s 136(2) if, in the Court’s opinion, the defendant will not or has not been misled or prejudiced in his defence by the amendment then the charge must be amended.
[34] Yesterday, by Minute, I alerted counsel to this matter. I invited counsel to address me on whether I may or should amend the charges as I had indicated. Both Ms McClintock and Mr Dacre accept that I have the power to amend charges 3 and 4 by substituting charges of doing an indecent act on a girl under 12 years. The issue is whether such amendment will mean Mr Lewis was misled or prejudiced in his defence.
[35] Mr Dacre submits there is prejudice. He explained that his trial tactic was to concentrate on raising a reasonable doubt on the issue of penetration in charges 3 and
4, those being by far the most serious charges his client faced. This was a sufficiency of evidence defence. Accordingly, he limited his cross-examination, particularly of the complainant, to the circumstances surrounding the genesis of the complaint and the form of the complaint. Mr Dacre submitted to me that he did not want to open up the case to an extent which might result in further evidence of penetration.
[36] Mr Dacre told me that if Mr Lewis had always faced four charges of doing an indecent act then he might have obtained instructions to mount a wholesale attack on the veracity of the complainant and the members of her family who gave evidence. As Mr Dacre put it, Mr Lewis would have “nothing to lose” by doing that. I should, therefore, simply acquit Mr Lewis on charges 3 and 4.
[37] Ms McClintock submits that there is no prejudice. Mr Lewis faced two charges of sexual violation. There was a clear evidential foundation for those charges. The defence was a complete denial of any sexual contact. Mr Lewis gave a
statement of denial to the Police, and repeated that denial in evidence. All that has happened is that a Judge, as trier of fact, has decided there is a variance between the proof and the charges.
[38] In my view, ss 133 and 136 were enacted to prevent proved criminal conduct going unrecognised because the conduct does not fit the charges brought. I have decided that there is proof of indecencies on a child, but I am not sure whether there was the penetration which would elevate the conduct to the sexual violations charged. If I simply acquit Mr Lewis on charges 3 and 4 then this proved criminal conduct will go unrecognised.
[39] However, fair trial rights demand that I look at doing just that if I consider that amending the charges would mean Mr Lewis was misled or prejudiced in his defence. If I did reach that view then an option, if requested, would be to adjourn the trial.1
[40] I do not find that amending the charges would mean Mr Lewis was misled or prejudiced in his defence:
(a) The charges were sexual violation. I propose to substitute lesser charges.
(b)The trial tactic adopted by Mr Dacre was aimed at an end result of insufficiency of evidence on the element of penetration. The tactic succeeded.
(c) The overall defence was a complete denial that any sexual contact occurred. Mr Lewis gave evidence to that effect. This is not a case where it can be claimed that if the serious charges had not been brought the defendant would have given evidence in a bid to inject doubt on the lesser charges because the cross-examination risk was
less.
1 Criminal Procedure Act 2011, s 136(4).
(d)It might be that if Mr Lewis had faced from the beginning only the lesser charges then a more aggressive defence might have been mounted. But, in this case, the defence was not acceptance of some sexual contact but a denial of sexual violation. The defence was a total denial of contact. I do not see prejudice in this case which is material to the decision I have to make.
[41] I note that s 136(2) is mandatory if in my opinion Mr Lewis has not been misled or prejudiced. I must amend the charges.
[42] I amend charges 3 and 4 to read:
Charge 3
Sexual conduct with child under 12
Section 132(3) Crimes Act 1961
That JUNIOR LEWIS on or about 29 July 2013, at Auckland, did an indecent act on [P], a child under the age of 12 years.
Particulars: Placing his penis on her genitalia.
Charge 4
Sexual conduct with child under 12
Section 132(3) Crimes Act 1961
That JUNIOR LEWIS on or about 29 July 2013, at Auckland, did an indecent act on [P], a child under the age of 12 years.
Particulars: Placing his penis in the area of her anus.
[43] I find the amended charges proved on the evidence.
[44] Mr Lewis, I find you guilty on charges 1, 2, 3 and 4 (the latter two as amended). I enter convictions accordingly.
[45] I set your sentencing date as 6 November 2014 at 9:00 am. I call for a pre- sentence report and a home detention annex.
[46] The Crown is to file and serve its sentencing submissions by 23 October
2014. Defence counsel by 30 October 2014.
[47] Mr Dacre, on instructions from Mr Lewis, has applied for bail pending sentence. The law puts the onus on Mr Lewis to justify the further grant of bail. On charges such as these, a sentence of imprisonment is inevitable. It might be that Mr Dacre will be able to persuade me that home detention is available, although I have to say that it would be unusual on charges such as these for home detention to be granted. Under these circumstances, it is almost invariable that a convicted person has to await sentencing while in custody, and that will be the situation now.
[48] Mr Lewis, I remand you in custody to appear for your sentencing at 9:00 am on 6 November 2014.
Brewer J
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