R v Matheson

[2007] NZCA 100

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA250/06

CA282/06 [2007] NZCA 100

THE QUEEN

v

KENNETH JOHN MATHESON

Hearing:         14 March 2007

Court:            Robertson, Baragwanath and Venning JJ Counsel:      D G Slater for Appellant

E M Thomas for Crown

Judgment:      28 March 2007         at 3 pm

JUDGMENT OF THE COURT

A        In CA250/06 the appeal is dismissed.

B        In CA282/06 there is leave to appeal but the appeal is dismissed.

REASONS OF THE COURT

(Given by Baragwanath J)

R V MATHESON CA CA250/06  28 March 2007

[1]      We heard in succession two appeals by Mr Matheson against convictions on charges of indecency.  It is convenient to deliver a single judgment.

CA250/06

[2]      The   appellant   was   tried   in   the   Invercargill   District Court   before Judge Phillips on seven counts of indecent assault on a boy under the age of 16. All counts  related  to  a  single  complainant.    The  offences  were  alleged  to  have occurred between 25 November 1989 and 25 November 1993.  At the conclusion of the Crown case the appellant was discharged pursuant to s 347 of the Crimes Act

1961 on five of the counts he faced because the Crown was unable to prove that the complainant was between the ages of 12 and 16 years at the material time.  He was convicted on the two remaining counts and was sentenced to imprisonment.

First ground

[3]      Mr Matheson appeals against his convictions on the ground that a miscarriage of justice has occurred because the trial was not aborted following his discharge on the five counts at the conclusion of the Crown case.   Mr Slater submitted that the jury was aware of the allegations from those discharged counts of allegations that the appellant had indecently assaulted the complainant on five other occasions when under the supervision of the appellant as a Scout leader.

[4]      The short answer to the submission is that the appellant was fortunate in having the five counts discharged rather than being amended by deletion of the element of age.  In his helpful and responsible submissions Mr Slater was unable to dispute  the  obvious  response  that  the  evidence  on  the  five counts  was  of  such similarity as to have been admissible as propensity evidence.

[5]      The first ground fails.

Second ground

[6]      The second ground is related.  In summing up, the Judge directed the jury:

You must consider the whole of th[e] evidence.  All of the evidence…

The two counts that you are to decide upon relate to alleged incidents at Waihola and Wellington. You will need to assess all of the evidence you have heard and come to decisions on what is credible and reliable.

[7]      The Judge directed the jury that the indictment now contained two counts and that separate verdicts were required.  He said:

You may reach a different verdict on each of the counts, that is a matter for you.    You  see  for  convenience  the  counts  are  being  heard  together  at one trial and what you have here really is two trials taking place at the same time.  What you have to be very careful about is that where there is evidence that relates to only one count you must not use that evidence when considering the other count.  You should isolate the evidence and the issues of law that are relevant to one count and make a decision about it before moving on to the second count.  I direct you that you are not to use evidence that is only relevant to one count when considering the other count.

[8]      The Judge had alluded to the dismissal of other counts but gave the jury no direction in relation to them or the evidence upon them.   That is a defect in the summing up.    But  a  legally correct  summing up  would  have  been  much  more damaging to the appellant, spelling out how recourse could be had both between the evidence on the two remaining counts and the evidence on the dismissed counts when considering each of the remaining counts.  The application of the proviso is inevitable.

Third ground

[9]      A final ground was that in the final address by Crown counsel reference was made to the evidence of a witness who spoke of a camp at Easter 1991 by which time the complainant had left the Scouts.  The point of complaint was the evidence that one Easter morning the witness had woken to discover that he had been given Easter eggs, one of which he had crushed in his sleep.  The Crown relied upon the point as showing how someone could come into a tent unnoticed, leave an object and depart.

[10]     We are satisfied that the point is wholly insignificant, making nothing more than the obvious point that there may be an unnoticed entry into a tent while its occupants are asleep.

[11]     The other grounds originally contained in the appellant’s points on appeal were abandoned and can be disregarded.

Result

[12]     The appeal in CA250/06 is dismissed.

CA282/06

[13]     In  this  case  the  appellant  was  convicted  by  an  Invercargill  jury  before Judge Butler on two of five counts of indecent assault involving three complainants and was sentenced to imprisonment.   The acquittals were on counts one and two involving complainants A and B and on count four involving a third complainant C. Count four was a representative count alleging indecent assault on a motorbike.  The verdicts of guilty were on counts three and five, each relating to C.  The former was a representative count of sexual violation by unlawful sexual connection in the form of oral sex and the latter a representative count of indecent assault on a boy under 12. The offending was alleged in each case to have occurred in the complainant’s bedroom.  The grounds of appeal were:

(a)      delay between C’s allegations first being reported to the police in

1992  and  the  trial  in  November  2005  and  the  loss  of  relevant evidence;

(b)      the jury were pressured to return their verdicts;

(c)the guilty verdicts on counts three and five were inconsistent with the not guilty verdict on count four.

Other intimated grounds of appeal were abandoned.

[14]     The appeal was filed more than seven months out of time.  The Crown does not consent to extension of time but accepts that the Court should assess the merits of the appeal.

Chronology of complaints

[15]     In October 1992 one of complainant C’s sisters told him that a cousin had sexually abused her.  C then told her what he said had happened with the appellant. His mother was informed and a complaint was made to the police a few days later.

[16]     The matter was then investigated and an approach was apparently made to complainant B, although he made no allegation at the time.  The police interviewed the appellant on videotape on 19 December 1992 and wrote to C and his mother two days  later  to  say  that  there  would  be  no  prosecution.     In  August  2002 complainant A  complained  to  the  police.     A  further  approach  was  made  to complainant B in October 2002 but again he did not want the police to be involved. The appellant was interviewed on video about complainant A’s complaint on 14 May

2003.  At that stage the interviewing detective was unaware of the earlier complaint by complainant C and a decision was made not to prosecute the appellant on the complaint of complainant A.  In September 2004 complainant B complained to the police and a decision was made to proceed with three complaints.  The appellant was spoken to on 10 November 2004 concerning complainants B and C but declined a formal interview.

First ground: delay and loss of evidence

[17]     The  appellant  argues  that  the  delay  from  1992  when  complainant C complained through to 2005 when he faced trial prejudiced his defence.  He relies on the fact that the tape of his 1992 interview no longer exists and that two witnesses, said to be crucial, namely the police officer who conducted that interview, and his mother, a Justice of the Peace who is said to have been able to supply him with an alibi, have died.  The Crown denies that any unfairness has resulted.

[18]     The appellant accepted at trial that complainant C and his mother had gone to Invercargill  during  the   1986   Christmas   holidays   and   that   the   reference   to “Christmas” meant the December/January school holidays.   C could not recall the date on which he arrived at his grandmother’s home or the period of time he had spent there but accepted that it was unlikely he would have been there until after school finished in mid to late December 1986.

[19]     C also accepted that the appellant was out of Invercargill at a Scout jamboree from about 29 December 1986 to 10 January 1987 and that he had spent a few days before and after Christmas 1986 with his mother in Otatara.

[20]     The agreed statement of facts recorded that the appellant was at a Scout jamboree at Rangiora between 31 December 1986 and 8 January 1987.

[21]     It was therefore common ground at trial that the appellant had a partial alibi for the period covered by counts three to five.

Submissions

[22]     For  the  Crown,  Mr  Thomas  contended  that  since  there  was  never  any suggestion on the part of the appellant at trial that he was away from Invercargill for the entire December/January period.   He submitted that it is pure speculation to suggest that loss of the tape of the 1992 interview and the deaths of the interviewing officer and of the appellant’s mother have deprived the appellant of a fair trial.

[23]     Mr Slater  submitted  that  the  videotape  interview  made  in  response  to allegations at an early stage was of crucial evidential relevance.   Made when the appellant’s memory of events was fresher it would have shown a consistency of evidence and have been an available yardstick against which to gauge credibility after a gap of some 13 years.

[24]     After 12 hours of deliberation the jury was undecided on four out of its five verdicts and notified the Judge at 10.15 pm.   Twentyfive minutes later they returned having reached their verdicts on all counts.   Mr Slater submitted that the ability of the jury to agree after such a long period should have led the Judge to take a verdict on the count on which they were agreed and he should have ordered a new trial in relation to the remainder.   He submitted that the prospect of an overnight retirement presented such pressure on the jury as to invalidate the verdicts that resulted 25 minutes later.

Third ground: inconsistency of verdicts

[25]     Mr Slater submitted that the verdicts in relation to the complaints by C must have been based upon his credibility and the acquittal on count four is inconsistent with the convictions on counts three and five and is evidence of a decision made under pressure after long deliberation.

Discussion

Pressure on jury

[26]     We can deal briefly with the second and third grounds.  While 12 hours is a lengthy deliberation, in the experience of the members of this Court there is nothing uncommon about a jury intimation of absence of agreement followed by an ability to agree.    Trial  by a  jury  composed  of  12 people  likely  to  have  had  no  previous experience of performing the onerous task of sitting in judgment on a fellow citizen must commonly entail evolution and change of the opinion formed by any juror. The fact of change of itself provides no basis for concern that any juror has felt under unacceptable pressure.  Nor is the time of the ultimate verdict at 10.40 pm evidence justifying any such concern.  The jury will have had a break for their normal evening meal and resumed their deliberation refreshed.  This is not a case where the jury has

been  permitted  to  work  so  late  that  the  time  of  the  verdicts  gives  rise  to apprehension.

Inconsistency of verdicts

[27]     Nor is there ground for concern that the verdicts in relation to complainant C

are inconsistent.

[28]     The principles were discussed in R v H [2000] 2 NZLR 581 (CA). In R v A & Ors CA301/05 CA295/05 CA310/05 11 April 2006, this Court noted:

[77]      Time after time in appeals to this Court it is argued, as counsel argued here, that because the jury must have “disbelieved” a witness to acquit on one count, it was inconsistent to rely on her to convict on another count. The argument is utterly fallacious; there may be all sorts of valid reasons why the jury may be convinced by a witness on one count but not on another. To put this another way, there is no reason why credibility must be static. As was said in R v G [1998] Crim LR 483, “A person’s credibility is not a seamless robe, any more than is their reliability.” It is not necessarily illogical for a jury to be convinced as to the credibility of some aspects of one person’s story, but not as to others, a fortiori where it is convinced, but not beyond a reasonable doubt.

[29]     Count four related to alleged touching by the accused of C’s penis while they were riding a small motorbike.  The appellant was a well-built man, the motorbike small and reasonably flimsy with room for only one person on the motorbike seat and it would be extremely difficult for the appellant to have ridden the motorbike and touched the complainant at the same time.   The jury was provided with  a photograph of the bike.  A similar model was brought into the courtroom for them to view.  Counts three and five (on which the jury convicted) involved allegations of touching and oral sex committed by the appellant on C when they were alone in the bedroom.  The Judge gave the standard direction that each count must be considered separately and that a separate decision was required on each.  A further direction was given that the jury was not required to accept everything the witness said.

[30]     It is not illogical for the jury to have felt that the evidence on count four was more difficult to believe than that on counts three and five and, applying the criminal onus of proof, to have acquitted on count four without rejecting the basic credibility of C which resulted in the convictions on counts three and five.

Delay and loss of evidence

[32]     The  common  law  principles  were  stated  by  this  Court  in  R v O  [1999]

1 NZLR 347, 350-351:

Some prejudice to an accused is always likely when a prosecution is brought long after the event. There is an obvious inherent problem of memory for witnesses and accused alike. There will be very occasional cases where the lapse of time is so exceptionally long that it will clearly be impossible to have a fair trial. But ordinarily passage of time alone will not be sufficient to found a successful application to have a prosecution stopped. Avoidance of prosecution for a period does not diminish the criminal nature of the act alleged against an accused, though the advanced age of a defendant may have to be taken into account in sentencing if there is a conviction. As the Judge observed, there is no limitation period and no presumption that after a particular time memories will be too unreliable for the purposes of a criminal trial. Whatever the length and cause of delay, the central question is whether a fair trial can still take place in the particular circumstances. Are important defence witnesses no longer available? Have relevant documents been lost or disposed of? Has the accused’s physical or mental condition deteriorated to a point where it would be unfair to expect him to defend himself? Is the complainant’s evidence so fraught with memory problems that the accused is unfairly faced with trying to defend himself against accusations which are insufficiently specific in relation to place or circumstances? Concerns about pinpointing the exact time and place at which an incident has occurred may be greater when an isolated act of offending is alleged than they will be if a representative charge has been laid.

An absence of adequate explanation for lengthy complainant delay will not be good reason for stopping a prosecution if a fair trial is possible, except perhaps where the alleged offending is minor. Serious crime should normally be the subject of prosecution notwithstanding that a victim has chosen to delay making a complaint. That dilatoriness may, of course, assume significance as a matter of weight of evidence but, if there is a proper basis for a prosecution and a trial can be conducted fairly, mere absence of justification for the delay will not be a sound basis for a stay.

[33]     In M v R CA187/95 13 November 1995, this Court stated:

Of course it is well recognised that prejudice to an accused can arise from the very fact of the passage of time since the alleged offending.  In a case where it is considered that the period is not such that, in the circumstances, the prosecution should be stayed it will be necessary for the Judge to be vigilant to ensure that the difficulties are properly brought to the attention of the jury to be borne in mind in the assessment of the evidence.  That should be done in the manner appropriate to the circumstances of the case.   No particular  form  of  words  can  have  general  application.    On  appeal  the

enquiry will be whether, in the circumstances, the trial was unfair such that there has been a miscarriage of justice.

[34]     That  formulation  was  adopted  by  the  full  Federal  Court  of  Australia  in New Zealand  v  Maloney  [2006]  FCAFC  143  (5 October  2006)  from  which  the High Court of Australia declined leave to appeal.

[35]     There is nothing uncommon in historical sex cases about the kind of delay in this case which, by itself, would afford no grounds for concern in terms of s 385 of the Crimes Act 1961 that there has been a wrong or miscarriage of justice.  We do not doubt that had there been no reference of the matter to the police in 1992 and the police interview at that point, the record of which has been lost, there would be insufficient grounds to infer such prejudice resulting from the passing of time as to justify a stay of proceedings.  The death of the appellant’s mother deprived him of only a partial alibi which could not refute allegations as to what occurred during the balance of the relevant period.  The question is whether the intervention of the police and its aftermath makes any difference.

[36]     Section 25(b)  of  the  New Zealand  Bill  of  Rights  Act  1990  accords  to everyone  charged  with  an  offence  the  right  to  be  tried  without  undue  delay. The question whether that provision is violated by lengthy delay between the date of offending and the date of laying charges has not been determined by this Court which has resisted committing itself to a firm view on the issue: R v Coghill [1995]

3 NZLR 651, 660. There has been a series of decisions of the High Court holding that s 25(b) is not violated by such delay.

[37]     Since the right to be tried in reasonable time is possessed by one who is “charged with an offence” the Supreme Court of Canada has inferred that the reasonable  time  is  to  be  measured  from  the  time  when  a  person  is  charged: R v Kalanj [1989] 1 SCR 1594. Two accused persons were arrested and told that charges would be laid against them. They were released without being charged. Eight months later an information was sworn laying charges of theft against them. A majority of the Supreme Court of Canada held that the accused were not charged with an offence until the swearing of the information that formally laid the charges against them and so the delay from charge to trial was to be measured from the date

of the information not the date of the prior arrest.  Sitting as a divisional court we make no comment on this point on which the Supreme Court of Canada was divided.

[38]     Butler & Butler The New Zealand Bill of Rights Act (2005) observe:

23.3.19 In  a  number  of  cases  the  Courts  have  emphasised  that,  in determining whether or not s 25 of BORA has been violated, it is not sufficient to concentrate on any period of delay simpliciter; rather it is necessary to go on to consider the extent to which a governmental official can be held responsible for the delay.   In such cases the Courts have consistently emphasised that by dint of s 3 of BORA (application),  s 25(b)  is  only  applicable  in  respect  of  acts  of government officials or persons performing public functions, duties, or obligations conferred by or pursuant to law.

[39]     In  R v Drew  (1998) 4 HRNZ 614 (CA) the appellant was arrested and charged on 6 August 1993 on allegations of sexual offending committed on 5 August

1993.  He was brought before the District Court on 7 August 1993.  On 25 August the charges were withdrawn, the complainant having indicated to the police that she did not wish to proceed.  On 2 May 1994 there was a shooting incident in which the complainant had shot the appellant in the chest.  She was interviewed by the police the next day and charged with attempting to murder him.  In her interview with the police she alleged that the appellant had raped her twice on 2 May prior to the shooting incident.  The police conducted further interviews with the complainant and the appellant in relation to the two May incidents but no charges were brought against the appellant regarding the rape allegations.  In March 1995 the complainant was acquitted of attempted murder of the appellant.

[40]     After hearing her give evidence at trial the police in consultation with the Crown solicitor re-evaluated their files relating to the sexual offending allegations made against the appellant in March 1993 and those made at the time of the shooting in May 1994.  The matters were further investigated and witnesses were interviewed. In October 1995 the police re-interviewed the appellant in relation to both the 1993 and 1994 matters and on 18 October he was recharged in respect of the four charges withdrawn in 1993 and charged with two counts of sexual violation relating to the May 1994 complaints.  The appellant was convicted on 11 September 1997 on such counts and appealed against his conviction.  This Court dismissed the appeal.

[41]     The Court noted the observation in R v Ihaka CA442/92 22 June 1993 that the laying of the complaint and an initial deliberate decision by the police not to prosecute would not automatically give rise to a stay on the grounds of abuse of process.   Rather, the reasons for the delay and its consequences on the accused’s ability to receive a fair trial should be examined in order to ensure that the delay did not result in a miscarriage of justice: R v B(T54/93) (1993) 11 CRNZ 174 (HC) .  In Drew the Court reasoned at 623:

…the decision to relay the charges did not stem from any misuse of authority by the police but from a legitimate reappraisal of the evidence based on the complainant’s  subsequent  trial  for  attempted  murder.    Initial  doubts  the police  had  concerning  the  complainant’s  credibility  were  altered  after hearing her give evidence at trial.  And further investigations by the police following the trial elicited new testimony from other sources.  As a result, the trial judge concluded that the decision by the police to relay the 1993 charges were made in good faith.

We are satisfied that the trial Judge’s findings were correctly made on the evidence he heard and that there is no evidence to suggest the police were dilatory in their investigations or in the laying and relaying of the charges in October 1995, or that they manipulated or abused the Court’s processes.

The appeal was dismissed.

[42]     There is no basis in the present case to suspect any impropriety on the part of the police in the successive decisions that were made.   The ultimate decision to prosecute followed the appreciation by the police that C’s allegations had  been followed by similar allegations on the part of A and B.

[43]     We do  not  categorise  the  misplacing of  the  videotape  as  police  conduct infringing the Bill of Rights when there can be no substantial basis for assuming that it would truly have assisted the appellant’s case at trial.

Decision

[44]     The appellant has failed to establish any wrong or miscarriage of justice. In CA282/06 we give leave to appeal but the appeal is dismissed.

[45]     The jury was fully aware of the police letter in December 1992 stating that there would be no prosecution and was able to take that factor into account in determining whether the allegations had been proved beyond reasonable doubt.

Solicitors:

David G Slater, Invercargill for Appellant

Crown Law Office, Wellington