R v O (CA342/06)

[2007] NZCA 87

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

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR PARTICULARS IDENTIFYING APPELLANT UNTIL THE FURTHER ORDER OF THE COURT IN WHICH APPELLANT IS TO BE TRIED

ON CERTAIN OTHER CHARGES.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA342/06 [2007] NZCA 87

THE QUEEN

v

O (CA342/06)

Hearing:         26 February 2007

Court:            Hammond, Chambers and Arnold JJ Counsel:  C P Brosnahan for Appellant

K B F Hastie and K E Salmond for Crown

Judgment:      21 March 2007         at 11 am

JUDGMENT OF THE COURT

A        The appeal against the convictions is dismissed.

BOrder    prohibiting    publication    of    name,    address    or    particulars identifying  appellant,  until  the  further  order  of  the  court  in  which

appellant is to be tried on certain other charges.   That order does not

R V O (CA342/06) CA CA342/06 21 March 2007

prevent, however, immediate publication of the judgment or the reasons therefor in any law report or law digest.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No

Introduction  [1] Verdicts against the weight of evidence  [3] Judicial misdirection

Introduction  [24]

Intoxication  [25] Lies  [29] The transcript  [39]

Prosecutorial misconduct

Introduction  [42]

Speech  [44] In-court movement  [52] Facts   [55] Prejudicial comment on the right to silence  [59] The cumulative effect  [64] Conclusion       [66]

Introduction

[1]      O   was   convicted   following   trial   before   a   jury,   presided   over   by Judge Hubble, on one count of sexual violation by rape and four counts of sexual violation by unlawful sexual connection.   He was subsequently sentenced to six years’ imprisonment.

[2]      O  now  appeals  against  his  convictions.    Several  grounds  of  appeal  are advanced.   For convenience they can be grouped into two categories.   First, the verdicts are said to be unreasonable having regard to the evidence.  Secondly, it is said that there has been a miscarriage of justice arising out of a lack of or inadequate directions by the trial Judge in several respects, alleged prosecutorial misconduct during Crown counsel’s address to the jury, or a combination of those things.

Verdicts against the weight of evidence

[3]      In 2005, O and the complainant, who we will designate as “Y”, were both students in the seventh form at boys’ and  girls’ high schools respectively, in a New Zealand provincial city.

[4]      O and Y had been friends for several years.  They each lived on the outskirts of this city.  They were intermittently in contact at school events, and local parties.

[5]      On 10 April 2005, O and Y were both out socialising with separate groups of friends.   O was at a pub in town.   Y was with her female friend “Z”.   She had arranged to stay at Z’s house that night.   Together, Y and Z went to a party in a residential street.

[6]      At 10.30 pm O sent a text message to Y.  He asked her where she was.  There were text messages backwards and forwards between O and Y, and O agreed to go to the party in this street.  By 11.40 pm he had not arrived.  Y sent him a text saying, “Where are you?”  At 12.15 am O replied, “Ill pick u up and we go home”.   Ten minutes later Y called O on his cell phone and they had two brief conversations. O said he was on his way.  O in fact arrived at the house in a taxi at 12.40 am to meet Y, and he paid the taxi off.

[7]      By this time Y had lost track of her friend, Z.  There was some dispute at trial between O and Y as to what took place over the next 40 minutes or so.  Y’s version of events was that she was looking for Z.   She maintained that she and O had an argument over whether he would walk back with her to Z’s house.  O’s account, on the other hand, is that he and Y were, “wandering aimlessly”.   During this period O was (unknown to Y) sending suggestive text messages to three other women, and O and Y walked down a road which passed a motel.

[8]      At around about 1.15 am O went into this motel.  He booked a room for one. Y remained out on the street.  There was a dispute at trial as to why she then went into the motel room, but undoubtedly she did so.  Y’s version was that she wanted to

use the bathroom and the telephone there.  O’s version was that he and Y had agreed to have sex, and that they went into the motel room for that purpose.

[9]      On Y’s account, once they had entered the motel room she sat on the bed to use the phone.  O asked to cuddle her.  She refused.  O then pulled Y’s clothes off her and forcibly restrained  her.    He  then  sexually violated  her  in  a  number  of different ways over the course of more than an hour.   The counts were that he performed oral sex on her; forced her to perform oral sex on him; penetrated her anus with his fingers; penetrated her anus with his penis; and raped her.  Y could not precisely remember the order of these violations, or how many times each occurred.

[10]     On Y’s account she escaped when O fell asleep.  She grabbed some of her clothes and ran naked out of the motel room at 1.45 am holding her top, pants and cell phone.   She left her underwear and her shoes behind.   She left the door ajar. Running down the road, she then hid behind a car in a driveway, where she put her pants on and called her parents.  She then ran – at this point topless – to a nearby petrol station.  She hid behind a ute there.

[11]     Two young men had observed Y running down the street looking “quite terrified” and looking back to see if somebody was after her.   These two men approached  Y  at  the  petrol  station  and  described  her  as  crying,  frightened  and indeed, struggling to breathe.   Their evidence was that she claimed to have been raped, by O.   These two young men stayed with Y until her parents arrived to comfort her.

[12]     When Y’s parents did arrive she described what had happened, and she and her parents drove to the police station and made a formal complaint.

[13]     At 4.45 am in the morning, Y underwent a medical examination.   She was found to have bruising on her upper arms and a tear to her anus that was still bleeding.

[14]     At 6.45 am the police went to the motel.   The door was still ajar.   O was asleep.  The bed was pushed well out of its usual position, there were spots of blood on the sheets and the duvet, and Y’s clothes and shoes were still on the floor.

[15]     O was given his rights, but declined to make a statement.  He got out of bed, dressed, and accompanied the officers to the local police station.   On the way, he sent a text to Y which read, “Im in cells what happen”.   The police also took photographs of the motel door that day.

[16]     At the police station O spoke to a lawyer.   He then gave the following statement:

I did have sex with her.  I’ve done nothing wrong.  She wanted to have sex with me.   She came to the motel to have sex with me.   I’ve got nothing further to say.

[17]     At the trial there was a contest as to whether O and Y had had consensual sexual activity on other occasions.  And O went even further at trial; he said there was a plan to have sex when he arrived at the party in the taxi, but the difficulty lay in finding a locale, and that was how it had come about that the parties had resorted to the motel room.

[18]     The central issues at trial were whether Y had consented to the admitted sexual activity – for O accepted at trial that it had occurred – or did he believe on reasonable grounds that Y was a consenting party.

[19]     There was a searching inquiry of both parties before the jury.  On any view of the matter (although Mr Brosnahan did not accept this), the Crown had a strong case which was going to be difficult to overcome in view of the admitted sex, the circumstances of Y’s departure from the motel, and the medical evidence.   In the result, the jury found against O.

[20]     On  appeal,  Mr Brosnahan  focused  particularly  on  certain  text  message evidence.  Y’s evidence was that she received a text from her boyfriend, who lived in another city, whilst she was in the motel room at 1.21 am and that O forced her to reply, as if nothing was wrong, at 1.27 am: “Hey babe just got back to [Z’s] going to

sleep now love u xxx”.  The defence strongly contended (given the timing of these two texts) that Y must have sent that reply before she went into the motel room.  The implication of course would be that Y had lied to her boyfriend, because she was about to have consensual sex with O.

[21]     The heart of this appeal point was that this text from Y to her boyfriend must have created a reasonable doubt.  The Crown submitted that the timing of the text is something  of  a  “red  herring”,  in  that  time  frames  based  on  recollection  are notoriously difficult to establish, and that the text may well have fitted within the relevant time frames to the events complained of.  Ms Hastie submitted that the text might even have been sent “pre-emptively” because Y thought that she was going to be at Z’s soon and was then mistaken in her recollection of events.

[22]     The law on the issue as to the supportability of jury verdicts has been well settled since R v Ramage [1985] 1 NZLR 392 (CA) and need not be re-traversed by us here. Put shortly, the question is whether the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to guilt.   It is insufficient that the reviewing Court may simply disagree with the verdict of the jury.   And further, if the jury has received evidence which, if accepted,  would support its verdict the verdict is not unreasonable: R v McDonald CA 142/04 29 July

2004.

[23]     It is sufficient to dispose of this appeal point by observing that Mr Brosnahan accepted, as he had to, that all the relevant evidence was before the jury.   It was closely traversed at trial.  There was the evidence which we have identified on which the jury could have convicted.  We are not disposed to interfere with the jury verdict. We cannot say that this text message must or should have created a reasonable doubt.  This was a paradigm jury case and, somewhat unsurprisingly in the particular circumstances, it clearly preferred Y’s account of what had occurred.

Judicial misdirection

Introduction

[24]     It was said that there was a miscarriage of justice which has occurred as a result of the alleged failure by the trial Judge to direct the jury on the relevance of intoxication;  to  give  an  adequate  direction  in  relation  to  lies;  and  to  give  any direction on the proper use of the trial transcript.

Intoxication

[25]     There was evidence before the jury that both these young people had been drinking on the night in question; both as to what they had been drinking, and broadly within  what  timeframes.    It  was  not  suggested  at  trial,  and  it  was  not suggested before us, that alcohol had had such an effect on O that he was quite unable to form the necessary intent to commit the acts in question in this case. Rather, the suggestion was that, at a lower level, a warning “to the jury on the effects of alcohol with regard to reliability of recollection” was necessary.

[26]     It is notorious that alcohol can have a disinhibiting effect on a person.  Hence people may do things when intoxicated that they would not do when sober.   But intoxication is not in itself a defence to any charge, instead it goes to the state of mind of the accused (see R v Kamipeli [1975] 2 NZLR 610 (CA), and R v Clarke [1992] 1 NZLR 147 (CA)). The law holds people responsible for their intentional acts, even if they are drunk at the time. Or as it is sometimes put, a drunken intent is still an intent for the purposes of the law. It is for a trial Judge to consider whether the evidence in the case requires a specific direction with respect to intoxication (R v Craig CA142/02 11 December 2002 at [42]).

[27]     Given that there was no defence of “lack of intent” or “ability to form an intent” in this case, all that the trial Judge could have done was to remind the jury that these two persons had been drinking to the extent established on the night in question, and that it was for the jury to assess how far that might have affected their recollections and reliability.  In other words, the Judge could only state the obvious.

Intoxication directions are normally given with caution in a jury trial because they can cause confusion in the mind of the jury.  We do not consider that any direction was required in this case.

[28]     We  also  note  that  no  issue  was  taken  on  this  point  at  the  close  of  the summing up.  Whilst that is not fatal, as Ms Hastie submitted it does rather suggest that on the evidence at trial it was not considered necessary.

Lies

[29]     The complaint in this case is that the Judge did not give a lies direction when it is said that he ought to have done so.

[30]     The Crown response is that in fact the Judge did so, albeit in the context of how the jury should go about assessing the witnesses.  We set out hereafter in full what the Judge said:

Gauging the witnesses … well of course you gauge the witnesses by the manner in which they gave their evidence.   Whether their statements are consistent with what they originally said to the police, or to other people, in this case.  And whether they have been caught out deliberately telling lies. And if they do that several times, you can assess their credibility based on that  sort  of  behaviour.    That  is  perfectly  fair.    I  suppose  you  have  to remember that people do tell lies for all sorts of reasons.   So you cannot place too much weight on the fact that people might be telling ‘porkies’ or white lies, as Mr Holt referred to of one of the texts.  But nevertheless if they show a propensity to tell untruths then you can take that into account in gauging their credibility.   That is why you heard Mr Brosnahan, for the defence, try to denigrate, if you like, [Y]’s credibility by raising some issues where she apparently has stretched the truth, or “gilded the lily” if you like. But it is entirely up to you, what you make of those witnesses and you can believe some of what they say and discard other parts of it.  You can believe as much of it as you wish.  Just use robust common sense.

It is very important in this case, of course, because you do have to assess the truth beyond reasonable doubt of [Y]’s evidence.  You will note, I did not say [O]’s evidence because he does not have to prove anything.  So it is not a competition between whether you believe [O] or whether you believe [Y].  It is really an issue of do you accept [Y]’s account beyond reasonable doubt, and I will return to that shortly.  You must take that approach in our legal system, and that is a legal issue which I ask you to bear in mind.

[31]     Lies – or alleged lies – do not exist in a vacuum.  The cases fall into three categories.

[32]     First, if the Crown maintains that the accused is guilty, but he or she says they are not, then the accused may very well be “lying”.  But in cases of that kind no lies direction at all is required (see R v Shepherd CA104/04 8 September 2004 at [12]).

[33]     Secondly, the Crown may be able to point to lies told by an accused that are independent of the guilt or innocence of the accused.   In these cases the initial lie may go to credibility, but would not normally be seen as affirmative evidence of guilt.

[34]     Thirdly, there are some (very few) cases where lies told by an accused may be regarded as affirmative evidence of guilt.

[35]     No lies direction is required in the first category, and this is not a case which fell into the third category.

[36]     The real concern of a lies direction in the more standard second category situation is to deflect the possibility that the jury will mistakenly think that, because an accused has lied, that person must be guilty.

[37]     The Judge’s summing up in this case was decidedly clumsy, and not entirely satisfactory.  This is because the example he chose was directed to the complainant and might be thought to have been “exculpatory” of any lies that she was found to have  told.    However,  whilst  choosing  as  a  thoroughly unfortunate  example  the complainant – rather than the accused, for whose benefit the direction arises – the Judge did manage to convey the central idea that people generally might lie for all sorts of reasons, but that did not necessarily mean that their overall position was wrong.  The jury cannot have been in any doubt as to the message the Judge was conveying.

[38]     We again affirm – as we have so often had to do – the importance of a trial Judge identifying with counsel the alleged lies, and what the relevance of those suggested  lies  is  to  guilt,  and  then  delivering  a  “tailored”  summing  up.    Lies directions in the abstract routinely cause difficulties.  But we do not think there was here a miscarriage.

The transcript

[39]     The complaint here is that the trial Judge allowed the trial transcript to go to the jury without: (a) warning counsel to check the transcript for accuracy; and (b) advising  the  jury  that,  in  considering  the  transcript,  they  should  consider  the evidence-in-chief, cross-examination and re-examination in order that a balanced view of the evidence could be formed.

[40]     There is, with all respect to the District Court Judge, no question but that this should have been done.  It is best practice, and it is hard to see why it was omitted from the Judge’s  checklist  in  this  case.   The  Judge  should  also  have  informed counsel and the jury right at the start of the trial of the fact that the jury would be supplied  with  a  transcript  of  the  evidence  before  they  retired  to  consider  their verdicts.

[41]     On  the  other  hand,  it  still  has  to  be  shown  that  this  failure  caused  or materially contributed to a miscarriage of justice.  This was not a particularly long or complex trial.  We have no record of any jury questions which might indicate any difficulties the jury was grappling with.  It could only be speculation that something went amiss in the jury room under this head.  We dismiss this appeal point.

Prosecutorial misconduct

Introduction

[42]     Mr Brosnahan’s concerns in this case fell under four heads: inflammatory language; intimidatory movements; and “misrepresentations” of facts; along with

what are said to have been inappropriate comments on the right to silence of the accused.

[43]     As to the position of Crown counsel, generally, it is unnecessary for the purposes  of  this  appeal  to  do  more  than  recite  the  recent  helpful  statement  by Tipping J  (for  himself,  Hammond  and  Paterson  JJ)  in  R  v  Hodges  CA435/02

19 August 2003 at [20]:

Counsel is entitled, indeed expected, to be firm, even forceful.  Counsel is not entitled to be emotive or inflammatory.  The Crown should lay the facts dispassionately before the jury and present the case for the guilt of the accused clearly and analytically.  Although different counsel will naturally and appropriately have different styles and different methods of addressing the jury, the Crown’s closing address should, at least at some stage, traverse the legal ingredients of the count or counts in the indictment, and call the jury’s attention to the evidence which the Crown says satisfies the onus and standard of proof in relation to each ingredient, and in particular those which are the subject of dispute.  Crown counsel are important participants in the dispassionate administration of criminal justice.  They are entitled to contend forcefully but fairly for a verdict of guilty; but they must not strive for such a verdict at all costs.

Speech

[44]     Mr Brosnahan complained about this sort of language in Crown counsel’s opening address:

The accused [O] subjected [Y] to repeated sexual indignities while she cried for him to stop, begged for him to stop and while she struggled against him. You will hear from her that he raped her, he tried to sodomise her, that he forced her to perform oral sex on him and that he violated her in other ways, including putting his fingers into her anus.   I say that immediately at the outset because you will appreciate that this is going to be an unpleasant trial.

[45]     And then in closing Crown counsel said:

Let’s actually reflect on what [Y] said happened.  That he made her lick his arse crack and his balls.   He penetrated her anus with his fingers and his penis hard enough to tear her anus and to make it bleed.  That he sat on her chest, and– I’m sorry I’m going to have to ask you to visualise it - he sat on her chest and masturbated in front of her face.

[46]     In dealing with issues of prejudice and sympathy in his summing up, the trial

Judge said:

Now again, this is a case where you really must be aware of the fact that you’re all going to have to have prejudice and sympathy in relation to, as Mr Holt calls it, rape, sodomy, violation and crack licking.  To be fair I do not think Mr Holt should have used that sort of emotive language.  We are not here as a court of morals and morally you might find much of what occurred here quite abhorrent.  But it has to be said that in New Zealand at least, none of the things, which occurred here, are criminal if consent is given.

[47]     This Court has had occasion to comment on the use of the word “sodomy” before.  Historically it apparently refers to an unnatural act.  But in everyday usage it appears to have come to mean more sexual congress via the anus between males. Whatever its current meaning, the word “sodomy” carries negative connotations with many.  It is best that counsel avoid the use of that term, using the straight-forward term “anal intercourse” instead.

[48]     As to the other expressions, that was what Y said the accused had said.  Of course counsel should put matters in the most discreet way possible, but Crown counsel was entitled to convey the enormity of what had happened, if indeed it had happened, in the terms Y said were used.   This is because the nature of the acts complained of, and how the accused actually expressed himself, were distinctly relevant to whether this woman, in these circumstances, consented to them.

[49]     We do not think this concern on its own gave rise to a miscarriage of justice.

[50]     Given the concerns that have been voiced against the Crown counsel, and in the interests of even-handedness, we have to note that the conduct of Mr Brosnahan as defence counsel was not beyond reproach.  For instance, he said in closing:

Well, I’ll tell you what simply doesn’t make sense, ladies and gentlemen, this bloody bullshit about walking four and a half k’s to [Z]’s place at 1.30 on a Sunday morning when you have got money for a taxi.   Where’s that from?  I mean, it needs to be part of her story cos otherwise her story doesn’t work.  But the chances – you assess logically these kids – money, booze, cell phones, credit cards he thought, eftpos.  He will walk four a half k’s at that time of the morning, just way the hell out at the beach, not a show in hell! Just not going to happen.

[51]     Rather to our surprise, when this was drawn to his attention, Mr Brosnahan suggested that this sort of thing “goes on all the time” in the District Court.  If that is so – we emphasise that we are not in a position to respond to such a suggestion –

then it should stop, and forthwith.  Further, trial Judges have a duty to intercede if necessary to see that justice is attended to in temperate language.

In-court movement

[52]     The complaint here is that at times Mr Holt (it is said) moved away from counsel’s podium and, while too close to the accused, pointed at him.   Affidavits were filed on this issue.

[53]     There are also references in the transcript to Crown counsel having remarked on Mr Brosnahan having waved his arms and “yelled” at Y.

[54]     The first point to be made here is that if those sorts of things were happening, then  they  should  not  have  occurred.    But  more  particularly,  the  trial  Judge  is entrusted with the control of his or her courtroom.   And in this instance an experienced District Court Judge did not – so far as we can detect from the record – see fit to intervene and if necessary, rebuke counsel.  The only inference we can take from that is that to the extent that there were untoward movements the Judge did not think they rose to a level which required his intervention.

Facts

[55]     It  is  unnecessary  to  traverse  this  aspect  in  detail.    The  essence  of  the complaint is that, in Mr Brosnahan’s view, the prosecutor got some facts wrong and wrongly conveyed them to the jury.

[56]     The first point to be made here is that we are satisfied that if the prosecutor did get them wrong, this was certainly not advertent.   It is somewhat obvious that prosecutors can make mistakes too.

[57]     Secondly, and that said, we are far from convinced that the principal matter which Mr Brosnahan complained of – the position of a spot of blood on a duvet – was incorrectly stated by Mr Holt.  At least on the basis of the photographs which were produced in evidence, it was entirely possible – or at least it was a reasonable

construction to be placed on the photograph – that the spot was on the top of the duvet.   This point had some importance because of a debate about whether the accused and complainant   had got into bed, or whether the complainant had been pushed on to the top of the bed and violated.

[58]     Mr Brosnahan was able to point to other evidence which suggested that it was difficult to tell where the spot was, and having drawn it to the attention of the jury, the Judge correctly left the issue to the jury to decide.   The Judge did not regard Mr Holt’s assertion that the blood was on the top of the duvet as necessarily wrong. Nor do we.

Prejudicial comment on the right to silence

[59]     Mr Brosnahan correctly submitted that this Court has consistently affirmed the importance of the Crown not improperly commenting on an accused’s silence prior to trial.   The point is so well established that we need not rehearse the authorities.  However, for the assistance of any counsel who is in any doubt about the  issue  we  refer  to  R  v  McCarthy  [1992] 2 NZLR 550 (CA) and R  v  T CA255/05 24 November 2005 where this Court said at [25], “There can be no room for  degrees  or  gradations  of  the  right  to  silence within  the  law  as  it  stands  in New Zealand.”

[60]     What prosecuting counsel said to the jury in his closing address in this case was as follows:

Now, you then know, members of the jury, that the accused in the morning elects at the motel room, as was absolutely his right, to speak to a lawyer. But I mention that because at the very opening of this trial, Mr Brosnahan said to you, “he immediately said it was consensual.”  He didn’t.  He said, as was absolutely his right, “I’m not saying anything until I speak to a lawyer.” Then back at the station, the shortest statement probably imaginable about what had happened.   A statement just that we had sex and it was with consent, leaving open as he has done the tailoring of evidence around it. (Emphasis added.)

[61]     What the trial Judge said in his summing up (under a heading “The burden of proof”), was this:

The burden of proof … the burden of course rests on the Crown.   They have got to prove the case beyond reasonable doubt.   [O] did not have to give evidence at all.  He made a very brief statement to the police certainly, but that was under legal advice.  He is not required to make any statement to the police and with his lawyer, that is what he said, and you have heard what he said.  But the fact that it was brief, he should not be judged for that at all because he was taking legal advice, and that is fairly standard legal advice – say nothing – and that is what happened.  So you should not take too much from the fact that he simply said “I didn’t do anything wrong, she consented and I’m saying nothing more.”   One can understand that he adopted the position he did.  So the burden of proof is on the Crown. [O] does not have to prove anything and that no doubt is somewhat annoying to [Y]’s side of the case. But that is the law.

[62]     Prosecuting counsel was entitled to take issue with what Mr Brosnahan had said in opening.  Nevertheless, the comments about “the shortest statement probably imaginable” and “leaving things open for the tailoring of evidence” were inappropriate, and an oblique attempt to undermine the accused’s right to silence.

[63]     That said, the Judge gave a direction which we think put the matter fairly and appropriately in his summing up.  The jury could have been in no doubt about how it should approach what was said by O.  We are not satisfied that what was said gave rise to a miscarriage of justice.   This case is clearly distinguishable from R v T CA255/05 24 November 2005.  The prosecutorial error here was far less significant than  that  which  occurred  in  that  case.    And  what  the  Judge  said  in  this  case reinforced O’s right not to make a statement at all.

The cumulative effect of the concerns

[64]     Mr Brosnahan submitted that if individually none of these points of appeal should attract a retrial, then the cumulative effect of the matters of which he complained about should nevertheless give rise to concern.

[65]     Some things were done wrongly in this trial, and there were things which could have been done better.  However, we remind ourselves that when individual facets of a trial or what was said are extracted from the whole, and put on paper, they not infrequently look worse than what they were.   In any event, we should have regard to the trial as a whole.  In the result, having perused the entire record, and all the various addresses by counsel, as well as the Judge’s summing up, we are not left

with  any  residual  concern  that  there  has  been  a  miscarriage  of  justice  in  this particular case.

Conclusion

[66]     The appeal against conviction is dismissed.

[67]     Apparently, O faces certain other charges which are still to come to trial.  We were asked to, and do, suppress his name until the further order of the trial Judge in that, or those, matters.

Solicitors:

Burnard Bull & Co, Gisborne for Appellant

Crown Law Office, Wellington