R v M (CA 174/01)

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA174/01

THE QUEEN

M (CA 174/01)

Hearing:	20 February 2002
Coram:	Anderson J Williams J Baragwanath J
Appearances:	F P Hogan for Appellant K Raftery for Crown
Judgment:	13 March 2002

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

On 14 November 2000 the appellant, Mr M, was convicted on the charges appearing in the following table. There were delays in sentencing while psychiatric reports were prepared but on 25 May 2001 Mr M was sentenced to the terms of imprisonment appearing hereunder :

*Charges*	*Sentence*
2 counts of sexually violating his wife by raping her in 1994	Imprisonment 3½ years
2 counts of doing an indecent act on his wife with intent to insult or offend during the same period	Imprisonment 1 year on each
1 count of male assaults female, the victim being his wife, in December 1996	Imprisonment 6 months
2 counts of sexually violating his wife by rape on 10 January 1997	Imprisonment 7 years on each.
1 count of unlawful sexual connection on his wife on 10 January 1997	Imprisonment 4½ years
1 count of male assaults female, again on his wife, on 27 January 1999.	Imprisonment 6 months

A further count of sexual violation by rape in 1995 was dismissed pursuant to the Crimes Act 1961 s 347 during the trial and the jury acquitted Mr M on two further 1997 charges of sexual violation by rape on his wife.

Mr M appeals to this Court on the grounds that the verdicts were against the weight of evidence and there was a miscarriage of justice. He has also appealed against the sentences imposed on all charges other than the assaults.
An additional ground of appeal against conviction was that counsel acting for him at trial, not Mr Hogan, failed to represent him adequately. In an affidavit Mr M filed in support of that allegation he set out his complaints about his then counsel in the following passage :
My principal concerns are.
(a)He failed to cross examine my wife adequately in respect of the sexual allegations made against me.
(b)He failed to call evidence (including leading such evidence from me) favourable to me as to the situation that prevailed in our marriage and my character.
The central point of my defence was that if there had been sexual activity at the time of the alleged incidents (I have no specific recollection years later as to whether intimacy had occurred on a particular night) then such intimacy was on a consenting basis.
While that defence was articulated the surrounding circumstances of our marriage relationship which would make that point more credible in the eyes of the jury was simply not explored. The bigger picture of the marriage relationship needed to be explained in evidence (both in cross examination and the leading of defence evidence). Without such a “big picture” context the jury were left with an inadequate evidential foundation to assess the credibility of the two principal witnesses, namely my wife and myself.
Mr M’s affidavit went on to allege that it was not put to the jury that Mrs M’s motive in laying the complaints was to gain the couple’s possessions and custody of their children and the evidence failed to deal adequately with his medical condition or to raise Mrs M’s claimed drug use, alcoholism and dishonesty.
At the hearing of this appeal, Mr Hogan endeavoured to submit that, in addition to the issues raised by Mr M, failure to cross-examine Mrs M in greater detail about the marriage effectively deprived the appellant of possible reliance on the defence of belief in consent on reasonable grounds. It must at once be observed that on numerous occasions during his evidence-in-chief Mr M responded to the various counts by saying either that the intercourse was consensual or that he could not remember the details but if what his wife said had in fact happened the intercourse would again have been consensual. At no time did he say in evidence that he was acting in the belief that his wife was consenting to what was occurring or set out the grounds for his belief. It is notable that Mr M did not refer to the belief in consent on reasonable grounds defence in his affidavit.
Mr M having waived privilege, the Court had the advantage of an affidavit from counsel at his trial. He made it clear that his instructions were that Mrs M’s evidence was fabricated in order to obtain the couple’s possessions. The instructions were to try and confine the Crown’s reliance on battered women’s syndrome as an explanation for Mrs M remaining in the relationship and to avoid evidence being called from the Ms’ general practitioner whose view was likely to favour the wife. The Court notes that Mr M nowhere asserts that counsel acted during the trial contrary to those instructions.
A further major concern was whether Mr M suffered from bipolar affective disorder. The Crown intended to rely on Mrs M’s evidence that her husband was suffering from this disorder, particularly at the times of the offences, whilst Mr M’s instructions, supported by a psychological report prepared in the run-up to trial, was that he did not and never had suffered from the disorder. The defence accordingly wished to avoid any medical evidence being called by the Crown which might have supported Mrs M’s expected evidence that her husband was suffering from the disorder at the time of the offences. That might have opened up the possibility, in the course of the medical evidence, of references to the effect on Mr M of drug use. Counsel was also concerned that if his client were seen to be putting character in issue there was a risk of leave being granted to cross-examine in respect of drug use and other matters. Also to be borne in mind in this context is that in Mr M’s generally exculpatory videotaped interview with the police in February 1999 he not only alleged that his wife was delusional and had a sexual problem but expressly said that he had a bipolar disorder.
Counsel made it clear that his instructions from Mr M were not to attack Mrs M’s character, to try to exclude evidence which would be contrary to Mr M’s interests, and to raise sufficient on the evidence to found a submission in closing as to Mrs M’s motives in laying the complaints. He said that he and Mr M agreed on these tactics and also agreed on changes and refinements in tactics as the trial progressed. He also had a psychologist present during the Crown case to assist.
Specifically as to the matters alleged by Mr M in his affidavit, counsel said that Mr M accepted that it was not in his interest to have the “big picture” of the marriage relationship explored before the jury and that not only did Mr M agree to that position after seeing his wife’s deposition but also raised no concerns or sought to vary his instructions on that score during her evidence.
Although there was psychiatric evidence about battered women’s syndrome and some corroborative witnesses were called about some of the incidents in the indictment, the principal issue throughout the trial was the respective credibilities of Mr and Mrs M. Her evidence, after giving background details of the marriage and locations where the family had lived, recounted in detail the instances where she said Mr M had forced her to have intercourse or on which he had performed the indecent acts alleged despite her specific refusal of consent. She tied the 1994 actions generally into what she said was Mr M’s hypomanic state characterised by wide mood swings and arising, she said, from his suffering from bipolar disorder. Once he was taking prescribed medication, his desire for sexual activity diminished. She made similar comments about the 1996/1997 period and detailed assaults which she said she suffered in January 1999 resulting in her losing consciousness. Both in her evidence-in-chief and in cross-examination she acknowledged that on many occasions she consented to normal marital intercourse, including initiating or consenting to intercourse in various positions and her possible contribution to episodes of violence by provoking or violently responding to the assaults. She acknowledged retaining the couple’s possessions and children. Towards the end of the cross-examination, fabrication, consent and self defence were all put to her and denied.
Counsel said Mrs M gave a very polished performance which led him to conclude that putting the agreed defence in detail such as her drug use and dishonesty was unlikely to undermine her evidence and ran the risk of introducing evidence the defence was at pains to exclude.
The appellant’s evidence-in-chief principally consisted of his saying he was unable to remember the specific incidents to which his wife had referred but that if intercourse had occurred it would have been consensual. However, on a number of occasions he was able to recall the particular incident and gave a detailed refutation of his wife’s evidence. In cross-examination, he acknowledged that it was thought that at the time of the 1994 incidents his mental state had deteriorated. He asserted that Mrs M had either fabricated or exaggerated the various incidents at that time and was able to give additional detail in support of his denials.
In the course of the Crown’s cross-examination of Mr M he was asked whether matters of conflict between Mrs M’s evidence and his own and not put to Mrs M had formed part of his instructions to counsel. For example, when asked why Mrs M’s suggested ingestion of drugs and alcohol had not been put to her, he said that was something “we just didn’t bring out, we didn’t see the necessity for it”. In another passage he was asked why she had not been cross-examined about leaving the house and sleeping in the car one night. The relevant passage reads:-
Do you recall her ever doing that? No.
So when she was giving that evidence did you say to your lawyer, oh that is rubbish, she has never done that? Well as I was not actually sitting directly with my lawyer I couldn’t actually say very much to them at all.
You know, we have had plenty of breaks in this trial you would agree wouldn’t you? I do. Yes.
So during one of those, did you say to [counsel] that is rubbish. She has never gone out and slept in the Viva? Well because there is quite a lot of the evidence that I just hadn’t heard of or knew of, no I didn’t. Otherwise we would have just been backlogged.
A lot of that evidence you hadn’t heard of, or knew of? That’s right.
Did you read her depositions statement? I did. And that was the first time that I heard everything.
That was a long time ago wasn’t it? That is correct. Yes.
You heard of it then? That’s right. That was the first I heard of it.
So why do you tell us now that you hadn’t heard of it in Court today or last week. You had heard of it, hadn’t you? I had. Yes.
In relation to the 1999 assault where three witnesses had corroborated Mrs M’s evidence, he said all were lying or suffered from defective memories despite his seeing their briefs before depositions and their not being cross-examined on those possibilities.
He said that he did not have a bipolar disorder and had not been taking Lithium for about 18 months. His view of not suffering from the disorder arose from medical examinations since his Police interview. He claimed being misdiagnosed with bipolar disorder in February 1994. He denied that his actions at the beginning of that year, in 1996/97 and in 1998/99, arose during periods of anger and irrational behaviour or from lack of control and inability to control his sexual drive due to his condition. He also claimed his denials of the incidents arose because of his then belief that he was not suffering from bipolar disorder.
No major attack is levelled against the summing-up but it is of assistance to note two matters.
The first is that as part of giving the standard direction about the Crown’s obligation to disprove belief on reasonable grounds of consent, the Judge, as an example of how the jury should treat that issue, both on one particular count and generally, referred to evidence where Mrs M seemed to have accepted that she consented to the intercourse charged. Mr M was acquitted on that count. Further, whilst giving the usual direction about an accused person giving evidence, the Judge said that “if you were to accept the accused’s evidence then, really, at all times he believed that his wife was consenting then that would be an answer” they should acquit.
The second point is to note that, while summarising the defence case, the Judge dealt specifically with defence counsel’s rejoinder to the cross-examination as to why certain matters had not been put to Mrs M. He also recorded defence counsel’s submission that it was reasonable that Mr M was unable to recall every event of intercourse during 16 years of marriage and his submission that Mrs M’s motive was to gain custody of their property and children.
Mr Hogan, in support of his submission that failure to cross-examine or call evidence on the topics mentioned deprived Mr M of advancing the second limb of the consent defence and amounted to serious error on the part of trial counsel, drew attention to passages in the evidence about the history of the relationship, a passing reference by Mrs M to her husband’s involvement with marijuana, her references to his suffering from a bipolar disorder and the effect on his libido compounded, Mr Hogan submitted, by Crown counsel’s comment in his final address as reflected in the summing-up that the appellant’s mental condition was irrelevant. He contrasted those passages with the much lesser amount of evidence about Mrs M’s health, alcohol and drug issues. He also submitted that the relative brevity of Mr M’s evidence-in-chief was insufficient to counterbalance the extensive evidence-in-chief given by his wife. Overall, Mr Hogan submitted, Mr M’s trial was unfair as a result of defence counsel’s error.
Having carefully considered the transcript in the light of Mr Hogan’s submissions, our view is that the criticisms now advanced by Mr M are without foundation.
In the first place, it is to be remembered that the sexual offences under appeal rested on allegations of spousal rape or similar within a lengthy marriage, so questions of consent in the broader sense would always arise. It is clear that in the usual way Mr M and counsel had briefs of the proposed evidence by Mrs M and the corroborative and psychiatric evidence from before depositions. It is reasonably clear from counsel’s affidavit and the transcript that Mr M decided to instruct counsel that the defences were only to be that the incidents described by his wife either did not occur or that, if they did, the actions complained of were consensual. It is equally clear that those instructions did not change during trial despite ample opportunity for Mr M so to do. He did not complain even in his affidavit that the defence of reasonable belief in consent was not put to the jury and it is too late to raise such a point now. Seen against all that background, the decision not to rely on the defence of belief on reasonable grounds of consent is entirely understandable. There is therefore no basis in the Court’s view for Mr Hogan’s submission that the way in which the trial was run wrongly deprived Mr M of that available defence. In any event, the Judge sufficiently directed on that issue.
In our view the other criticisms of the trial are also without sufficient substance to warrant our intervention. Counsel’s freedom of action was circumscribed by Mr M’s instructions to counsel to deny that he was affected by bipolar disorder or rely on it as an explanation for his actions despite his admission to the Police. It is not asserted that counsel contravened his instructions but that his failure to explore the areas mentioned without instructions amounted to serious error. However, a reading of the transcript shows sufficient marital history and enough of Mrs M’s participation in the events being put in evidence to enable counsel to raise issues such as fabrication and motive in his final address. In what cannot have been an easy trial for defence counsel to manage given his instructions, apart, perhaps, from the January 1999 assault, the main tactic of the defence to reduce the case to a credibility conflict between Mr and Mrs M was achieved. And up until the filing of his appeal, there is no suggestion on the material before this Court that in his numerous conferences with counsel during the trial Mr M ever expressed dissatisfaction with the way in which his trial was being conducted. Finally, there is weight in counsel’s concerns about putting character in issue. Character was not put in issue and the risk of cross-examination in respect of previous convictions was thereby averted.
In those circumstances, we decline to uphold the appeal against conviction. As our review of the evidence has shown, the cross-examination of Mrs M in respect of her allegations was adequate and in accordance with counsel’s instructions. Any decision not to call particular witnesses to give evidence was agreed between them. The defences of fabrication and consent were clearly put to the jury.
In so deciding, we have not overlooked the various additional criticisms of the summing-up on which Mr Hogan relied. Having carefully considered the points advanced, in our view a fair reading of the summing-up as a whole gives no cause for concern.

Appeal against sentence

A major change in Mr M’s instructions to counsel occurred between conviction and sentencing. Whereas, during the trial, he asserted that he was not suffering from bipolar affective disorder, by the time of sentencing the principal factor advanced in mitigation was that he was not only suffering from that disorder but that the mood swings associated with it when unmedicated were the reasons for his acting as the jury had found.
The Judge’s remarks on sentencing recorded the assistance he received from reports from a psychiatrist, Dr Drysdale, and the Judge’s conclusion that the jury’s verdict meant that it entirely rejected Mr M’s assertions of consent to the conduct charged. After referring to his lengthy list of previous convictions and Mr M’s personal circumstances – including reasonably lengthy periods of the marriage when it was happy – the Judge referred to a number of authorities relating to sentencing for rape in a marital or continuing de facto context. He referred to R v Nilsson CA552/99, 27 July 2000 where this Court held that in the particular case bipolar affective disorder could be taken into account to mitigate but not to extinguish culpability. Reference was also made to R v Power CA187/96, 26 October 1996. Reference might also have been made to R v Abraham (1993) 10 CRNZ 446, 449; R v C CA225/98, 3 September 1998; and R v Wright CA478/00, 2 May 2001, paras 20-26 p6-8. The Judge then observed :-
According to Dr Drysdale, you are hypomanic at the time when the offences occurred in February 1994 and it was only after medical treatment that you became more stable in your behaviour. It might be that that episode was drug induced but I am greatly assisted by the conclusion reached by Dr Drysdale when he states in his report: “In summary I think he was psychiatrically unwell suffering from a hypomanic episode in February 1994. He may have been psychiatrically unwell, hypomanic in December 1996. This is a much less definite possibility because the possible substance abuse and or disinhibition with alcohol at that particular time. I cannot comment on his mental state at other times of the other offences because there is no useable description of his behaviour for his mental state at that time”.
However, what I cannot accept is that that same bipolar affective disorder resulting in a hypomanic state can be relied upon by you in respect of the December 1996 to May 1997 offences. This is because of what must be regarded as your excessive use of cannabis during that period when you apparently were consuming on your own admission between 10 to 15 joints of cannabis per day. It may well have been that you, like other people who suffer from a bipolar affective disorder, continued to use cannabis or other elicit [sic] drugs as a form of self-medication in an attempt or mistaken belief that such consumption would decrease your symptoms.
Any discount that can be given in respect of your bipolar disorder in respect of the February 1994 offences must be regarded with extremely grave reservations in respect of the December ’96 to May ’97 offences.

Turning to the terms to be imposed, the Judge set a starting point of eight years for the two 1994 sexual violations by rape but reduced those terms to three and a half years because Mr M was suffering from bipolar affective disorder. But in relation to the two 1997 sexual violations by rape, the Judge, whilst again starting at eight years, held that the aggravating feature of repetition was “counterbalanced by what appears to have been a resurgence of the bipolar hypomanic disorder that you were suffering from but which seemingly was induced by your over consumption of cannabis”. He discounted the term in that instance to seven years.
The passage from Dr Drysdale’s report set out in paragraph [27] of this judgment came from a report dated 26 April 2001. But it is noteworthy that the report went on to say that cannabis abuse may destabilise the mood of a person suffering from a bipolar disorder but does not cause it and the mood stabilising effects of Lithium and similar medication are undermined by cannabis use or use of alcohol, both commonly taken by persons suffering from bipolar disorder as “self medication”. Dr Drysdale said that it can be “extraordinarily difficult to tease out whether the increased use has been a precipitating factor or a result of the person becoming unwell”. In a report dated 7 May 2001, Dr Drysdale noted that Mr M was prescribed Lithium from December 1994-August 1995, December 1996-October 1998, and Lithium and another mood stabilising drug between December 1998-January 1999.
Seen against that background, it was not correct, with respect, for the Judge to suggest that any resurgence of Mr M’s bipolar disorder was induced by over-consumption of cannabis. The Judge was, however, right to say that there may well have been a resurgence of Mr M’s bipolar disorder at the time the 1997 sexual violations occurred. And it would have been correct had he said that cannabis use destabilises the mood of a sufferer from that disorder and cannabis use undermines medication prescribed for it.
In those circumstances, the nub of the sentence appeal is whether, for the 1997 sexual violations, the Judge should have discounted from the starting point for sentence to a greater degree than he did, having regard to his discount for the effect of bipolar disorder on the 1994 offences.
In our view, the sentencing Judge was entitled to take account of the repetitious nature of the 1997 offences seen against the 1994 offending. Further, by 1997 Mr M knew that he had been diagnosed as suffering from bipolar affective disorder. Appropriate medication had been prescribed for him for some years. It may well be the case that he was aware of the effect of cannabis use on his medication but nonetheless persisted with heavy cannabis use. The Judge was also entitled, as he did, to take into account all the circumstances of the appellant’s offending as disclosed during the trial, and his personal circumstances as shown in the pre-sentence report.
Standing back and considering Mr M’s offending in its totality, we are of the view that the Judge’s discount for Mr M’s bipolar disorder for the 1994 offences could well be regarded as generous. Corroborative facts supporting proved resurgence of Mr M’s bipolar disorder in 1997 were fortuitously absent. Because of that, the Judge was unable to determine the cause of the affliction’s resurgence. In hypothesizing that it arose from Mr M’s over-indulgence in cannabis, the Judge went beyond the medical evidence. But Mr M’s considerable consumption of cannabis said to be on the basis of “self-medication”, was a factor the Judge was entitled to take into account. In those circumstances, we take the view that the discount for the probable resurgence of Mr M’s bipolar affective disorder should have been greater and the discount allowed for the illness in 1997 did not accurately reflect the totality of the offending. It follows that a greater discount than one year’s imprisonment should have been allowed. In our view in all the circumstances of the case the totality of Mr M’s offending will be met by doubling the discount for the 1997 offences to two years.
It accordingly follows that Mr M’s appeal against conviction is dismissed but his appeal against the sentence imposed on Counts 9 and 10 is allowed and sentences of six years imprisonment are substituted in each case for those of seven years. The appeals against the sentences imposed on the other offences are dismissed.

Solicitors:

Crown Solicitors, Auckland

[2002] NZCA 368

13 March 2002