R v O CA9/04

[2004] NZCA 404

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA9/04

THE QUEEN

v

R N O

Hearing:         2 September 2004 Coram:  Anderson P

John Hansen J Randerson J

Appearances: H B Leabourn for Appellant

K J Glubb for Crown Judgment:  10 November 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]    The appellant was tried before District Court Judge Hobbs and a jury on eight counts, two of which were in the alternative, of sexual offences in respect of his stepdaughter, who was aged about 10 years. He was convicted on one count of sexual violation by unlawful sexual connection occasioned by the penetration of the girl’s genitalia with his finger, whilst the two were bathing together. He was also convicted on a representative count of sexual violation, also by digital penetration of the genitalia, and on two counts of inducing a girl under 12 years of age to do an indecent act upon him. The indecent acts were masturbation of him, once in a bath

R V O CA CA9/04 [10 November 2004]

and once in a shower. He was sentenced to five years imprisonment on each count, to be served concurrently.

[2]    The appellant appeals against conviction on three principal grounds and against sentence on the grounds of manifest excess.

[3]    The girl’s principal evidence in chief was by way of an evidential videotape. That was supplemented by oral examination, cross-examination and re-examination per medium of closed circuit television. After the jury had been in retirement for about 40 minutes they asked the Judge if they could have a replay of the evidential videotape. The following exchange occurred in Court.

Well Madam Foreman we have a question from you asking if you are able to view [her] video again. I have discussed the matter with counsel, can you  tell me why you want to see it?…..

MADAM FOREMAN: Your Honour because we saw it very early in the piece and now there’s just some recollections of the jury as to what was said and reactions etc and so we felt it would be appropriate or if it was acceptable that we could watch it again just to firm up our opinion.

THE COURT: What do you mean by reactions?…..

MADAM FOREMAN: Ah well we just wanted to see – listen to what [complainant] had to say and how she reacted to the various questions that were asked.

THE COURT: Well Mr [Crown counsel at trial] you seemed to have  hit  the bulls eye don’t you. It is just that – the reason I asked that question was that having discussed it with counsel the least time-consuming way of dealing with this would be to give you the typed transcript of the video interview plus the typed transcript of the evidence that was led from her and her cross examination, but if you want to actually see her on the screen we will have to play the video. Is that what you would prefer?…..

MADAM FOREMAN: Ah your Honour there certainly was a desire by some of the jurors to actually watch her. Certainly the transcript would be very helpful –

THE COURT: Well you are not going to get both.

MADAM FOREMAN: Well we’ll go for watching it, thank you.

THE COURT; All right, well that seems to solve the issue, are you happy with that Mr Leabourne. All right. Well the video is an hour and a quarter long is it not, so if we are going to do that though you will have to have the transcript of her evidence and her cross examination as well and you will have that in a typed form obviously.

MADAM FOREMAN: Just one other request. It was just the  portion  where the interviewer goes out of the room. A couple of members of the  jury would like to just see that in slow motion rather than sped up. (inaudible) I appreciate but it was important to them.

THE COURT: Oh all right. Well do you mind if we fast-forward all the  bits at the beginning about truths and lies and –

MADAM FOREMAN: No, that’s quite fine Your Honour,  we can recall  all that.

THE COURT: All right well where is the tape?…..

VIDEO TAPED INTERVIEW PLAYED

THE COURT: Thank you. Well Madam Foreman that is the whole of the video.

MADAM FOREMAN: Thank you.

THE COURT: Madam Crier would you please see that the jury are given three copies of the first 24 pages of the transcript. Ultimately you will have them and it is important that you do read that cross examination and the other evidence as well in conjunction with that, otherwise it is quite lopsided and we cannot have that. All right, thank you.

COURT ADJOURNS 12.56 P.M.

[4]    The jury returned with its verdicts, including two acquittals, approximately two hours 20 minutes later.

[5]    The essential nature of the defence was, unsurprisingly, an attempt to undermine the complainant’s credit. Of assistance to the defence was a conflict in  the evidence of the girl, on the one hand, and her mother and grandmother on the other hand, as to complaints by her about the appellant’s conduct. The girl said that she had told her mother about five or up to ten times and her grandmother two or three times about what the appellant had been doing. But the mother’s evidence was that she had only two complaints made to her, and the grandmother said that she had heard only once about the alleged conduct. The evidence for the defence comprised two character witnesses who also commented favourably on the apparent relationship between the appellant and the complainant. Another aspect of the defence was to raise doubts about the adequacy of evidence relating to penetration of the genitalia.

[6]    The discrepancy between the evidence of the girl and of her mother as to the number of complaints was adverted to by Judge Hobbs in his summing up in the following terms:

[She] told you that on several occasions when telling her mother about what the accused had done the accused had said to her ‘don’t tell mum’ and that she would tell her mother not to tell daddy because she didn’t want anybody to know about it either. [Her] evidence as you will no doubt remember was that she told her mother five or ten times about being touched by the accused but her mother says that it was only twice. Mr Leabourne says to you that conflict makes [her] evidence inconsistent and inaccurate and that she might even be lying because there is a conflict between what she says and what her mother says. Well that is something of course for you to consider, it is not for me but you might think that her mother might have found it difficult to admit that she had repeatedly been told about her husband’s behaviour and done nothing about it. So there is another way of looking at that conflict and that is a matter for you to decide, not me.

[7]    The Judge also adverted to the evidence of complaint to the grandmother, in the following terms.

Mr Leabourne also takes issue with [her] comment that she had told her grandmother two or three times about what had happened. Her grandmother you may remember said that there was only one occasion and that was when [she] told her that she wanted to speak to her mother. That was the grandmother’s evidence but I would remind you that [she] was re-examined about this issue by Mr Couchman and when she was re-examined she said that she had told her grandmother only once. So her evidence in re- examination was different from that which it was in examination in chief, and you need to bear that in mind in dealing with that issue if you think it is of any great significance.

Grounds of appeal

[8]The principal grounds of appeal against conviction are:

1.   The fact that the Judge did not, after the playing of the evidential videotape of the complainant, read the whole transcript of the viva voce evidence of the complainant as a counterbalance to the impact of the playing of the video.

2.   That there was no sufficient evidence of penetration of the genitalia to support a rational finding by the jury that such penetration had occurred.

3.   That the summing up was unfairly weighted towards the Crown and against the appellant, specifically in relation to the way the Judge dealt with  the  conflicting  evidence  over  alleged  complaints  to  the  girl’s

mother and grandmother, as indicated in the passages cited in paras [4] and [5] above.

Submissions on first ground of appeal

[9]    Mr Leabourn submitted that the failure by the Judge to read out the whole of the transcript of the complainant’s viva voce evidence resulted in unfairness to the appellant as there was no way to ensure that the transcript, particularly of the cross- examination, was ever considered by the jury. Because there was no way  of ensuring that the jury read the transcript there was a risk that the jury did not follow the Judge’s direction, in which case there would have been, unfairly, an unbalanced emphasis on the incriminatory evidence in chief.

[10]   In response, the Crown referred us to authorities such  as R v O   [1996] 3 NZLR 295 and R v S (CA215/00) 28 August 2000 which emphasised the need for  a balanced review of relevant evidence. In R v S, for example, this Court said at para [12]:

Certainly it is within the discretion of a trial judge to direct that a video tape forming part of Crown evidence be replayed. The jury asked for that course to be taken and it can generally be expected that it will enhance the quality  of a jury’s deliberations, when it so requests, to remind it of parts of the evidence. Nevertheless the trial judge in that situation always needs to be concerned to make sure that any likely reinforcement does not in the end give disproportionate impact to part of the evidence. The Judge must take steps to see any such effect is balanced. That is especially so with the replay of a video tape of the complainant’s evidence in a case such as this where impact may be due not only to the content of what is said but also from the manner in which it is said. As to how these matters are handled is very  much for the discretion of the trial judge. Assistance will be given by the judgment of this Court in R v O [1966] 3 NZLR 295. But in general if there is a reinforcement of significant evidence in chief from the Crown some balancing will be required.

[11]   But, submitted the Crown, what is required for a just balancing will be dependent upon the facts of any particular case. For example, in R v K CA294/03,  17 December 2003, this Court held that there was no risk of a miscarriage of justice where some but not all of the transcript of cross-examination was read back to the jury.

[12]   In this case the Judge informed the jury, before they saw the videotape, that they would have transcripts of the oral evidence of the complainant, ensured that three copies of the transcripts were made available to the jury and directed them that it was important that they read the cross-examination and the other evidence as well in conjunction with that, otherwise “it is quite lopsided and we cannot have that”. The Crown further submitted that as no transcript of the video evidence was provided to the jury there was, if anything, an advantage to the defence in the jury being able to read and reread the cross-examination.

[13]   Overall, submitted the Crown, the trial Judge considered the approach taken by him as providing the necessary balance. This was to some extent a matter of discretion and there was nothing to indicate that the discretion had been wrongly exercised.

Submissions on second ground of appeal

[14]   Counsel for the appellant submitted that in respect of the two alternative counts relating to an alleged incident in a bath, the one being sexual violation by digital penetration and the alternative being indecent assault, there was insufficient evidence on which the jury could be satisfied beyond reasonable doubt that penetration of the genitalia had occurred. Counsel referred to various passages in the evidence relating to the incident to persuade us that the complainant’s testimony was no better than equivocal. The same evidential material was discussed by counsel in relation to a similar submission about the alleged inadequacy of evidence to support a representative count of digital penetration.

[15]   The way in which the complainant described incidents throughout her videotaped interview justifies a consideration of the whole of the relevant evidence in respect of the specific and of the general counts relating to digital penetration to determine whether there is a sufficient evidential foundation or not in respect of both counts. The Crown’s response to the particular ground examines not only the oral descriptions given by the child but also the physical demonstrations she gave in respect of the manner of touching. On the Crown’s submission the combination of the demonstrations and the descriptions, along with a commonsense appreciation of

what the child was saying, provided a sufficient evidential foundation for the allegation of penetration.

Submissions on third ground of appeal

[16]   A third ground of appeal, as we have mentioned, complains that the Judge dealt unfairly with the conflict, relied on by the defence, between the number of times the child said she complained to her mother and to her grandmother and those adults’ testimony on the same issues. The evidence on those matters is set out in paras [5] – [7] of this judgment. The significance to the defence of any unfairness on this issue is identifiable by a sensible appreciation of the fact that in cases of this sort the crucial issue is the credit of the complainant. Matters such as the discrepancy are therefore of importance to the defence case and any unfair treatment by the Judge in respect of them must be seriously to undermine the defence position.

[17]   Under cross-examination the child’s mother was adamant she would have left the home if there had been 10 occasions and that she would not have allowed the child to have been put in any sort of danger. She said there were not 10 to 15 incidents but only two that were disclosed to her.

[18]   In counsel’s submission it was inappropriate for the Judge to depreciate the defence point by, in effect, suggesting that the mother’s credit was questionable with the position possibly being that the mother might have found it difficult to admit that she had been told repeatedly about her husband’s behaviour and done nothing.

[19]   The Crown’s response is that overall the summing up was fair and balanced and that, on the basis of such authorities as R v Watson CA507/99 8 May 2000, a trial Judge is not restricted to simply repeating points made by each counsel, but is entitled, in a balanced and fair way, to comment on the evidence or the submissions made. In the particular case the issue was a matter of fact which the Judge emphasised was for the jury and in commenting on the particular evidence, which the Crown says he was entitled to do, the Judge made it clear that this was simply another way of looking at the evidence and it was for them to decide.

Appeal against sentence

[20]   The pre-sentence report stated and the Judge acknowledged that the appellant had not previously appeared before a Court. The Judge considered the appellant was entitled to some credit for his good work record and generally useful contributions as a member of society. He observed that there is no sentencing tariff in relation to sexual violation by digital penetration but that the cases show sentences fixed against starting points ranging from two to five years upon conviction after trial and before allowing for mitigating features. He mentioned R v M CA247/01 1 October 2001, where an appeal against a sentence of six years imprisonment, following a guilty plea, in respect of sexual offending involving two adopted daughters and four representative charges spanning a period of 18 months resulted in a reduction to four years nine months imprisonment. The Judge referred to a Crown submission that there should be a minimum non-parole period pursuant to s 86 of the Sentencing Act 2002 but considered the case inappropriate for such an order. Looking at the matter in totality the Judge decided there should be a starting point of five years imprisonment to which aggravating features of breach of trust and repetition as well as the considerable age difference between perpetrator and victim, justified an additional twelve months but that was offset by the mitigating features of first offending and good community record.

[21]   Counsel for the appellant submitted that once the aggravating and mitigating features were taken into account the appropriate range would have been between two and five years. He submitted that R v M was a more serious case involving two complainants. Another case which resulted in a sentence of five years imprisonment, R v Heta CA186/97 31 July 1997, was also more serious than the present case involving representative charges in respect of two complainants. In that case the abuse was regular, up to four times a week, and took place over a two year period. On appeal, the five year sentence was reduced to four years three months.

[22]   In the result then, in terms of counsel’s submissions, two cases more serious by reason of there being multiple complainants and extended abuse ultimately resulted in sentences less than the five years imposed in the present case and that

considered overall the appropriate sentence should not have exceeded four years imprisonment.

[23]   The Crown’s response also made the point that there is no established tariff for offending involved in digital penetration but that the cases indicate a general range of two to five years imprisonment.

[24]   In Heta the abuse involved only two incidents of digital penetration. This Court considered that the six year starting point could not be criticised but that a one year discount for mitigating factors was inadequate, against the ultimate reduction to four years three months. In the Crown’s submission, in terms of totality, the present case which involved no discount for a guilty plea, could not be considered manifestly excessive.

Discussion

[25]   Whether and to what extent the repetition of some parts of the evidence in a trial without discussion or reference to counter-balancing parts will amount to unfairness will generally depend on the circumstances of the particular case. Considerations such as the length of the trial and the passage of time between the repeated evidence and the jury’s retirement may be relevant to the issue whether there is a risk that the jury will overlook unemphasised modifying evidence. The extent to which the emphasised evidence has featured as an issue in terms of counsel’s addresses and the consideration given to it and the Judge’s summing up will obviously be of relevance, also; so, too, any indication there might be in terms of the jury’s request, of the reasons why repetition is sought. In short, it is not to be assumed that testimony which has occurred relatively proximate to the jury’s deliberations will be generally forgotten by them, either in terms of particularity or impact, such that a repetition of some parts of the evidence, at their request, but not other parts, might present a risk of unfairness.

[26]   In the present case the complainant’s evidence, including the videotape interview, began shortly after 11.30 a.m. on Monday 3 November 2003. The whole of the evidence was concluded by about midday on Wednesday 5 November,

followed by counsel’s addresses. The Judge summed up on the morning  of  Thursday 6 November. The jury retired at 11.02 a.m. on 6 November and their question and revision of the videotape was concluded by 1 p.m. on that day. Thus, about 72 hours separated the giving of evidence by the complainant and the consideration of verdict by the jury.

[27]   It appears from the nature of the discussion between the foreman and the Judge that the jury’s interest in seeing the videotape again was not just what was said but what the complainant’s demeanour was in the course of the interview and that the jury wanted to watch again “just to firm up our opinion”. The foreman went on  to say further “Ah well, we just wanted to see – listen to what [she] had to say and how she reacted to the various questions that were asked”.

[28]   With that indication of the jury’s purpose in wanting to see the video again, it is difficult to appreciate how the reading out of the transcript of the oral evidence, by the Judge, could have been of much practical benefit to the appellant.

[29]   The objection on behalf of the appellant is not that the Judge agreed to the replaying of the video with its ability to convey demeanour but that the playing of it was not balanced by a reading out of the transcript of subsequent testimony. In the circumstances we are not persuaded that the Judge’s failure to read the transcript rather than provide it to the jury for checking by them resulted in any unfairness. In one sense the Crown may have had an advantage in the fact that the jury could actually review the complainant’s demeanour; but viewing the complainant again might have stimulated or confirmed doubts about her reliability. It is a matter of speculation and no more.

[30]   Nor are we prepared to assume that the jury would have ignored the Judge’s requirement that they consider the transcript of the oral hearing, the importance of which in terms of balance he made clear to them. We reject the first ground of  appeal against conviction.

[31]   As to the second ground, we consider it unnecessary to replicate the many references in the child’s evidence relevant to the issue of penetration of the genitalia.

The jury must be credited with at least an elementary knowledge of the female anatomy and a commonsense appreciation of what the appellant must have been doing when touching the girl the way she described both in words and  actions. There is a more than adequate basis for the jury to have been satisfied beyond reasonable doubt that there was genitalia penetration of the labial cleft and that is sufficient to meet the requirements of penetration.

[32]   As for the third ground of appeal against conviction we bear in mind that the Judge had the benefit of seeing the complainant’s mother, and the girl herself. The Judge’s indication of a possible synthesis between the girl’s evidence and that of her mother would fall to be assessed in light of the impressions each had made. In the result the Judge indicated a possible alternative approach, without over emphasising, and made it clear that all issues of fact were for the jury. We are not satisfied that there was any unfairness when the summing up is considered as a whole and this ground of appeal is also rejected.

[33]   As to the appeal against sentence, we repeat the view so frequently expressed by this Court that the resultant sentence rather than the manner of its construction is what must be examined for manifest excess or inadequacy. That is because in this case the process of taking a starting point of five years and adding on so called aggravating features, which were, in reality characteristics of the offence which properly defined the starting point, was not a particularly satisfactory method.  On the other hand, the features which the Judge saw as countervailing mitigating factors carry limited, if any, weight in this type of case. Those who come before the courts as sexual abusers often have no prior convictions. To some extent this is because the nature of the crime is secretive, albeit repetitive, as was the case here. Indications  for the appropriateness of the five years imposed are the repetition, the exploitation by the appellant of his position in the household and the familial breach of trust that involved. R v Heta has similarities in terms of seriousness and the guilty plea in that case is not present here. Nor are those other factors which influenced the court to leniency, such as the age and health of the offender.

[34]   Considered overall, although we would regard the sentence as stern, we are not persuaded that it is manifestly excessive.

[35]   For the above reasons the appeals against conviction and sentence are dismissed.

Solicitors:

Crown Solicitors, Auckland