R v Matagi CA135/05

[2006] NZCA 426

NOTE:  PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139, CRIMINAL JUSTICE ACT

1985

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA135/05

THE QUEEN

v

LALOPUA MATAGI

Hearing:         27 June 2006

Court:            Robertson, Gendall and Harrison JJ Counsel: P J Kaye for Appellant

A R Burns for Crown

Judgment:      4 July 2006

JUDGMENT OF THE COURT

A        Appeal against conviction in respect of the four counts involving R is

allowed and the convictions quashed.

R V MATAGI CA CA135/05  4 July 2006

BAppeal against conviction in respect of the four counts involving M is allowed and the convictions quashed.

C        A new trial in respect of all counts is ordered.

DOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other publicly accessible database until final disposition of trial.  Publication in

Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by Gendall J)

[1]      After a jury trial in the District Court at Hamilton the appellant was convicted of two  counts of rape, five counts of indecent  assault, and one count of sexual violation by unlawful sexual connection in respect of two young complainants.  He was sentenced to an effective term of 14 years imprisonment with a minimum non- parole period of seven years.  He appeals against his convictions and sentence.  The original grounds of appeal advanced on his behalf were that a miscarriage of justice has arisen because:

(a)    One complainant  R has recanted her  evidence stating now that  her complaints of sexual abuse given at trial were false so that the guilty verdicts in respect of four counts (three of indecent assault and one of sexual violation by unlawful sexual connection) are unsafe.

(b)    Consequently, the verdicts in respect of the other complainant M (two counts of indecent  assault  and two  counts of rape) are also  unsafe, because of the critical role of similar fact evidence in the trial.

(c)     Serious errors in the conduct of the trial by defence counsel occurred.

(d)     The Judge erred in allowing an amendment to the particulars contained in one count of indecent assault.

(e)     The Judge failed in his summing-up to properly place before the jury the essence of the defence case.

The latter two grounds have not been pursued.

Background

[2]      The two  complainants were the stepdaughters of the appellant.    He  was charged with ten counts alleging sexual crimes against them.  He was acquitted on two counts of indecent assault in respect of M and convicted of the eight counts outlined above.

[3]      The  allegations  in  relation  to  M  were  that  between  January  2001  and April 2002 the appellant indecently assaulted her through touching her in the upper thigh region over her clothing.  Thereafter, when she was aged about 15 and 16 it was alleged that  he raped M between 1 January 2002  and  31  January 2003  on multiple occasions.

[4]      In early January 2003 M moved from the family home in Hamilton to live with an aunt at Kaiwaka and her allegations came to light in mid-2004 after her sister R had made her complaints to another aunt in Auckland.  R was then aged 10 and 11 years and her evidence at trial was that after M had moved to Kaiwaka, the appellant indecently assaulted her on discrete occasions.  They involved first indecent touching of her whilst having a shower;  second, that the appellant lay on top of her whilst in her bedroom;   and thirdly, on multiple occasions he removed her shorts.   Those allegations spanned a period between 22 March 2002 and 2 May 2003.  Between the same period the evidence from R was that the appellant had unlawful sexual connection with her through licking her vaginal area.

[5]      At the trial before a jury in the District Court at Hamilton the defence as presented by counsel in her closing was that the Crown had not discharged the

burden of proof, the evidence of both girls should not be believed and that none of the alleged events occurred.  The appellant gave evidence denying all the allegations and the mother of both girls also gave evidence for the defence.  A further defence witness was a Sunday School teacher who said that at a school camp in 2002 M had complained to  her  when  in  a  distressed  state that  she  had  been  inappropriately touched by a man but said that it was not her stepfather (the appellant) but a friend of his whose name she never gave.

[6]      The Crown’s case and the evidence of M was that at no stage did M tell anyone that the appellant was sexually abusing her.  There was an event in October

2001 where M made a complaint to a nurse at her then school, Fairfield College, about sexual abuse by a man who was not the appellant and she thereafter was spoken to at the Hamilton Police Station and made a statement or complaint to that effect.   Whether such statement  was correct or not it  did not relate to the rape allegations made by her against the appellant which encompassed a later time period commencing 1 January 2002.

The recanting of R

[7]      An affidavit of R was filed on behalf of the appellant.  Its essence was that she lied when she gave evidence in Court as to the actions of the appellant indecently assaulting her and having unlawful sexual connection with her.   To some extent it marries  with  a  statement  sent  to  the  District  Court  sentencing  judge  before sentencing.  In that statement she said that the appellant “never sexually abused me but has physically abused but that wasn’t that much he only punched is [sic] some places.”

[8]      The Judge in imposing sentence said at [11]:

A jury has found you guilty of these offences and it is important that I do not attempt to go behind the convictions that have now been entered in accordance with the jury’s verdicts.  Even more to the point, I can tell you that I am concerned, to a significant level, that there has been some form of undue influence or  pressure  exerted  on  the  younger  complainant  [R]  to recant her allegations of sexual abuse.  I am sure that this pressure has come from her mother.

[9]      In her affidavit R said that at the end of 2004 she went to Kaiwaka to spend her holidays with M:

I remember telling her that I was lying about [the appellant] touching me and he never came into the room or anything.   He never stuck his hands down my pants or never tried to.  She didn’t say anything.

….

The reason why I have come forward is because of the guilt that I feel seeing an innocent man go to prison for something he didn’t do.  It was all a lie that I told because I didn’t want to get smacked any more for being naughty or not listening.   But what’s happened to him is pretty serious compared to what my intention was in telling the lies.  The truth is [the appellant] did not do any of the lies that I had told in Court.  He never used to come and tell me to take my clothes off, never came into my room while I was changing or sleeping.  I never woke up with my pants off or woke up with him licking my vagina.  It was just all made up stories from what I had heard my sister [M] tell me many times and what I made up myself.

[10]     R was cross-examined before this Court in the course of which she said that she felt that she was to blame for the appellant going to prison.  She said that she had told her aunt in Auckland of the allegations because she was taking the “stories” of M and changing them to her own.   R confirmed that the appellant had come and washed her in the shower but that “I didn’t take it as in rape though”.  She said it did not involve any indecent touching.  She was adamant that there had been no sexually inappropriate conduct at all.

[11]     Before hearing submissions in relation to convictions against M, we advised counsel that the appeal in respect of the R convictions would be allowed and a retrial ordered.  We now set out our reasons.

Discussion

[12]     As to the question of the recanting by R.   An appeal against conviction in situations where a crucial witness recants after trial can only be on the basis that there was a miscarriage of justice, or a risk of that, in terms of s 385(1)(c). Recantation may reflect human family pressures in a situation and a Court may reject new evidence where it differs from evidence at trial, in declining to treat a retraction as warranting disturbance of the jury’s verdict.  An example is In re O’Connor and Aitken (No. 2) [1953] NZLR 776. The Court has to be alive to the allowing of the

criminal justice system to  be manipulated because a key or  critical witness has regretted the consequence of giving truthful evidence.

[13]     The position in New Zealand is encapsulated in R v Barr (Alistair) [1973]

2 NZLR 95, 98 (CA) where the approach of the English Court of Criminal Appeal in

R v Flower [1966] 1 QB 146 was adopted. In Flower it was said (at 150):

If the witness’s new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at  the trial.    Witnesses  may  have second  thoughts  for  a variety  of  different  reasons.    Some  may  become  emotionally  disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth.  It is the witness’s state of mind at the trial which matters and this  ought  to be judged by reference to the circumstances prevailing at that time.  It is trite to say that every case depends on its own facts but in our view there is no general requirement for a new trial merely because the witness’s account in this court differs from that given in the court below.  So much depends in every case upon the reason, if any, given by the witness for having changed his or her testimony.

[14]     This Court also adopted a further passage from Flower (at 98):

Having heard the fresh evidence and considered the reliability of the witness, this court may take one of three views with regard to it. First, if satisfied that the fresh evidence is true and that it is conclusive of the appeal, the court can, and no doubt ordinarily would, quash the conviction. Alternatively, if not satisfied that the evidence is conclusive, the court may order a new trial so that a jury can consider the fresh evidence alongside that given at the original trial. The second possibility is that the court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the court would no doubt be inclined to order a new trial so that that evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course. Then there is a third possibility, namely, that this court having heard the evidence, positively disbelieves it and is satisfied that the witness is not speaking the truth. In that event, and speaking generally again, no new trial is called for because the fresh evidence is treated as worthless, and the court will then proceed to deal with the appeal as though the fresh evidence had not been tendered. ([1966] 1 QB 146,149-150).

[15]     We cannot say that the affidavit evidence and that which we heard from R is true so as to adopt the first alternative.  But we cannot exclude the possibility that, although not satisfied what R now says is true, nevertheless if her evidence was presented to a jury in its present form, true or not, conviction would not follow.  If what R now says could reasonably be true, obviously it could not lead to a jury

convicting.  It must follow, as we advised counsel, that the convictions in respect of the four counts (Counts 7, 8, 9 and 10) involving R must be quashed and a retrial ordered.  What her evidence might be at a retrial remains to be seen.

The convictions in respect of M

[16]     Counsel tendered to this Court several affidavits on behalf of the appellant from nurses, a doctor, a friend of M and a police officer, in relation to actions or statements made by M in October 2001.  The purpose of this was to seek to persuade the Court that M’s credibility ought to have been tested by either this evidence being properly put to M or later called by defence counsel.   Indeed, defence counsel’s affidavit suggests that she had believed that these witnesses were to be called for the Crown to give evidence and was handicapped when in fact that did not occur.

[17]     All of this highlights, however, a misunderstanding as to the relevance of that evidence.  The allegations of rape made against the appellant related to a timeframe after January 2002.   They did not relate to the events that M spoke of in October

2001.   In any event she was able to confirm in her evidence that she made those statements or took such actions and told the witnesses that the alleged abuser on that occasion was not the appellant.  None of the prior statements were inconsistent with her testimony at trial.  The jury knew that she accepted that she had previously said things which were different to what she was saying before them.

[18]     For completeness we add that a further proposed affidavit, from Nurse Reid, referred to M seeing her in 2002 over a sexual abuse allegation.  M confirmed this in her evidence, so that evidence likewise was not significant.

[19]     To a large extent these matters fell by the wayside and were not seriously pursued by Mr Kaye.  This was evidence which in fact could not have been called. The belief by counsel and her wish to do so, to some extent highlighted her inexperience or uncertainty.

[20]     Mr Kaye on behalf of the appellant confined his argument to two grounds. First, that the cross-examination of M (and  R also)  by defence counsel was so

ineffective and inept that it left the jury without any proper understanding of the defence, and claimed inconsistencies in M’s evidence, as to out of Court statements, so as to reflect adversely on her credibility.  The Crown says that although there was some deficiencies in the cross-examination of defence counsel they were not so as to lead to any possible miscarriage of justice.  Secondly, Mr Kaye contended that the similar fact element of the evidence of R providing support for the evidence of M, had become “tainted”.

[21]     There is some force in the submission that trial counsel’s ineptness in coming to grips with the real issues of credibility of M and R, whether in cross-examination or in her final address, left the jury with very little from the defence point of view. There were a significant number of interventions by the trial judge, and comments about defence counsel which were inappropriate in the presence of a jury and which did not assist counsel and would have made her task more difficult.

[22]     So, too, parts of the summing-up appeared to convey to the jury the Judge’s view of the evidence in an inappropriate way.  Strong language was used such as:

…You  might  well  think  that  it  is  inescapable that  the charge  has  been proved.

if the jury found proved beyond reasonable doubt the touching of the girls as they alleged was deliberate;  and

…even though you have reservations about his evidence, you might say, the evidence of the complainant on that case is overwhelming…

[23]     Although Mr Kaye did not pursue that matter at hearing as a separate ground, it gives rise to a concern about the fairness of the process.

[24]     As to the second point, the Crown’s case involved the invitation to the jury to accept as an important part of the assessment of M’s credibility, the evidence of R. It  was  clearly  of a  “similar  fact”  nature.    For  example,  Crown  counsel  at  the commencement of a closing address emphasised the heart of the Crown case was the reliability and credibility of M and R:

…the Crown say there’s a striking similarity about their evidence, and the

Crown say their evidence shares what I call the “ring of truth”….

And as powerful as each of their evidence was in isolation, the Crown say that when viewed together their evidence was overwhelming….

you would see a pattern develop…..I suggest to you that the pattern that clearly comes through that evidence is not coincidence.  It’s not the result of fabrication.  It’s not the result of collaboration.  The pattern is there because it exists and it exists because that’s the way the accused chose to act.

[25]     Likewise,  the  Judge  in  summing-up  gave  the  conventional  direction  in relation to similar fact evidence emphasising that:

The Crown said that there are some similarities here that enable you to look at the evidence of one complainant as supportive of the other.

[26]     The question mark which now arises over the evidence of R (that is, what she might say at a retrial) must inevitably affect the use of her evidence at trial by way of “similar fact” to enhance the credibility of M.  There remains some support from a small part of R’s present evidence, namely she confirmed that the appellant came to wash her in the shower, and M’s evidence at trial.   Although M said no indecent assaults occurred in the shower there were unwarranted intrusions by the appellant while she was showering.

[27]     If it be the case that R’s evidence is that nothing at all happened to her then it is not possible for this Court to say that the jury might not have taken into account other allegations, now said by R to be false, as supporting the credibility of M.  A real risk  exists that  the jury may  have  relied  on  R’s  evidence  in  assessing  the credibility of M.

[28]     Many things can go wrong in a trial, and incidental errors or irregularities of counsel or the Judge of themselves will not lead to a successful appeal unless there is a risk of a miscarriage of justice whether or not arising from a denial of the right to fair trial.

[29]     As Tipping J said in Sungsuwan v The Queen [2005] NZSC 57 at [110]- [112]:

[110]    Before an appellant can succeed in an appeal involving a complaint about counsel’s conduct, the appellant must demonstrate a miscarriage of justice.   What then are the ingredients of a miscarriage of justice for this purpose?  Ordinarily two things must be shown.  First, something must have gone wrong with the trial or in some other relevant way.  Second, what has gone wrong must have led to a real risk of an unsafe verdict.  That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.  It is, of course, trite law that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe.  The presence of a real risk that this is so will suffice.  (see Tuia v R [1994] 3 NZLR 553, 555 (CA) and the case there cited.)

[111]    I  have said  ordinarily  two  things  must  be  shown  to  establish  a miscarriage of justice.   The reservation implicit in the word “ordinarily” is necessary because sometimes, albeit rarely, things may have gone so badly wrong that a miscarriage of justice will have occurred without reference to whether there is a real risk of an unsafe verdict….

[112]    Cases of the former (so badly wrong) kind arise when the problem or problems with the trial are so fundamental that the minimum standard of a fair trial has not been reached.  The lack of a fair trial in itself represents a miscarriage  of  justice  without  any  need  to  consider  the  impact  of  the problem or problems on the verdict.

[30]     In the present case there are some matters which give us concerns, namely the significant shortcomings of defence counsel in putting the issue of credibility squarely before the jury through proper cross-examination and a final address;  and the trial judge’s interventions and comments, but these might not alone have led to the possibility that a miscarriage of justice arose.   But the pivotal point that must arise from the fact that the R allegations are to be the subject of a retrial, and because of her retraction, is that there may be no probative “recent complaint” evidence to assist in assessing M’s credibility, apart perhaps for the showering evidence.   That feature tips the balance, and although it does not follow that a miscarriage of justice in fact occurred, a real risk of such cannot be discounted.

Result

[31]     Accordingly, the appeal against conviction on the four counts involving M is allowed and the convictions are quashed.  Likewise, the appeal against conviction on the four counts involving R is allowed and the convictions are quashed.  We direct that there be a new joint trial in respect of all counts.

[32]     It is unnecessary to deal with the appeal against sentence.

Solicitors:
Crown Law Office, Wellington