R v Oliver
[2007] NZCA 326
•31 July 2007
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
ORDER PROHIBITING PUBLICATION OF THE COURT’S REASONS FOR JUDGMENT (BUT NOT THE RESULT) IN THE NEWS MEDIA OR ON THE INTERNET OR IN
ANY OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA487/05 [2007] NZCA 326
THE QUEEN
v
KRISTINA RACHAEL OLIVER
Hearing: 14 November 2006 and 20 July 2007
Court: O’Regan, Potter and Miller JJ Counsel: R B Squire QC for Appellant
P K Feltham for Crown
Judgment: 31 July 2007 at 10 am
JUDGMENT OF THE COURT
A The appeal against conviction is allowed and the convictions on counts 1,
2 and 4 are quashed.
B We order a retrial on counts 1, 2 and 4.
R V KRISTINA RACHAEL OLIVER CA CA487/05 31 July 2007
C Any issues relating to bail are to be dealt with in the District Court.
DWe make an order prohibiting publication of the Court’s reasons for judgment (but not the result) in the news media or on the internet or in any other publicly accessible database until final disposition of retrial. Publication in Law Report or Law Digest permitted.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] Ms Oliver appeals against conviction and sentence on one charge of sexual violation and two charges of assault.
Issues
[2] The appeal against conviction is brought on the basis that there was a miscarriage of justice: s 385(1)(c) of the Crimes Act 1961. The miscarriage is said to have arisen because of the failure of Ms Oliver’s trial counsel to obtain and lead at the trial expert evidence contradicting that of the medical expert called by the prosecution, Dr Middleton. Counsel for Ms Oliver sought leave to adduce in this Court evidence from an obstetrician and gynaecologist, Dr Wilde, which took issue with aspects of the evidence given at trial by Dr Middleton. This is the sole ground of appeal: others that were initially identified were abandoned. No issue is taken with the way in which the trial was conducted by the trial Judge, Judge Davidson.
[3] The issues for determination are whether Dr Wilde’s evidence should be admitted on appeal and whether a miscarriage of justice arose because of the failure of trial counsel to lead such evidence at trial. These issues overlap to a considerable extent.
[4] The evaluation of these issues requires a reasonably detailed consideration of the factual background and the course of the trial, especially the medical evidence led by the Crown at trial. We begin with those topics, before turning to a consideration of the admissibility of the evidence of Dr Wilde.
The Crown case
[5] The complainant, C, and her female partner, P, took up residence at a Women’s Refuge in October 2003. C suffers from depression and epilepsy, and attended a mental health drop-in centre, where Ms Oliver became her case worker.
[6] On 6 December, Ms Oliver invited C and P to her home for an evening meal. There they met Ms Oliver’s partner, Lynette Stewart. It was suggested that there was some form of play fighting.
[7] On 7 December, C was invited back to the home on her own. She arrived about 7.30 pm, and remained overnight. The Crown’s case was that she became upset in the early hours of the following morning because she was missing her partner’s children. Ms Oliver lay next to her and comforted her, but then tried to touch her breasts inappropriately, and when C resisted the sexual advance, Ms Oliver assaulted her by pushing her across the lounge and causing her to fall backwards onto a coffee table. C went to a bathroom to calm down, and there suffered an epileptic seizure. Afterwards she felt unwell, tired, and confused, and returned to the lounge where she lay down.
[8] C’s evidence was that Ms Oliver then kicked, scratched, and bit her before removing her lower body clothing. The Crown also alleged that she threatened to kill C, but there was only a passing reference to that in C’s evidence.
[9] C said that Ms Oliver pushed her fingers into C’s vagina. Ms Stewart was nearby on the lounge floor, and C said that Ms Stewart encouraged Ms Oliver, saying “go for it, go”. Ms Oliver then forced her fist into C’s vagina repeatedly. This assault was the subject of count 4, which alleged that Ms Oliver and Ms Stewart were parties to sexual violation by unlawful sexual connection of C by Ms Oliver. The charge did not distinguish between digital penetration and the use of a fist.
[10] C’s evidence was that, just prior to the fisting incident, Ms Oliver had knelt on C’s knees while C was lying on her back. C said that Ms Oliver then pulled down C’s pants and underwear, which indicates that Ms Oliver must have stopped kneeling on C’s knees. She was not asked in evidence-in-chief what position she was in when the fisting occurred. However, in cross-examination, C said that when Ms Oliver pulled down her pants, “my legs of course opened”. Later she said Ms Oliver was “in the middle of me” when the fisting occurred. When C was asked whether her legs were apart when Ms Oliver penetrated her vagina with her fist, she said “well they were apart but I’m not saying that they were, like, wide open”.
[11] The Crown next contended that when Ms Oliver stopped, Ms Stewart knelt between C’s legs and put her fist inside C’s vagina, moving it in and out for some time. C said her legs were on the floor but apart when this happened – she did not know how far apart. She accepted that she had earlier told the police that Ms Stewart’s knees were on the outside of her (C’s) knees at the time, which if correct, would indicate that her legs were not significantly apart.
[12] The Crown contended that after Ms Stewart stopped the fisting activity, she ran a cold bath. Ms Oliver and Ms Stewart told C to get up and remove her top, threatening to kill her when she refused. Ms Stewart pulled C into the bathroom by her arm and told her to get into the bath. When she did so Ms Stewart pushed her head underneath the water repeatedly, hitting the back of her head on the bottom of the bath. Eventually Ms Oliver told Ms Stewart to stop, and C was ordered out of the bath. It appears that C complained that Ms Stewart sexually violated her again after she got out of the bath, but C did not give any evidence of this at the trial.
[13] By the time all of this had occurred, it was about 7.30 am, and P phoned the house. After threatening to kill C if she told anyone what had happened, Ms Oliver and Ms Stewart allowed her to speak to P, who asked C to come home. Before allowing her to leave, they insisted that she drink a cup of coffee and repeated the threat to kill her if she told anyone. This threat was said to extend to two other people who were support persons for C.
[14] C did not tell P what had happened on her return to the Refuge, but she did tell one of her support people at about 2 pm, and a complaint to the police was made that day. That complaint was confined to Ms Oliver. Not until July 2004 did C complain that Ms Stewart also violated her; she expanded on these complaints in further interviews in July and August 2004.
The medical evidence at the trial
[15] The trial was held between 31 October and 3 November 2005. Apart from C and P, the Crown led evidence from two women who deposed to C’s distress and complaint of violation, police officers, and Dr Middleton, an experienced general practitioner and a co-ordinator for an organisation known as Doctors for Sexual Abuse Care (DSAC).
[16] Dr Middleton’s evidence was that she examined C on 9 December, noting a large swollen tender area on the back of her head, and an area of tenderness and swelling over the centre of her forehead and another extending down her neck. There were small abrasions in her mouth and marked tenderness in her trunk, and multiple bruises on her arms. There were faint teeth marks in a web space on her right hand, and a considerable number of bruises and swollen areas on her legs. By their colouration, some of these bruises were more than 18 hours old, but the doctor considered that they had all been caused at the same time: they were showing different colours because of the amount of blood present in the bruises. It appears that there were about 18 areas of bodily injury, excluding the genitalia. Dr Middleton thought that all of the injuries were inflicted between 18 and 72 hours before her examination; that is, between 12 noon on 6 November and 6 pm on
8 November.
[17] The genital examination revealed that the outer area of the vaginal entrance was normal, but on the inner surface of the left labia minora was a very small superficial abrasion. The entrance to the vagina was very red and was swollen and tender, as was the hymen, at the base of which she found a bruise. Just inside the hymen was a small superficial abrasion. The areas between the vaginal opening and the anus and around the anus were red, swollen and tender.
[18] The doctor concluded that the bruises were indicative of recent blunt force trauma, while tenderness in the trunk was indicative of straining of the joints and direct pressure over the ribcage. The superficial abrasions in the mouth were most likely to have been caused by a sharp object such as a fingernail, and the injuries to the vaginal area were likely to have been caused by some form of blunt force trauma. The abrasion inside the hymen suggested that a sharp object such as a fingernail had been inserted there. She concluded that the findings supported the alleged assault as C described it to her.
[19] It was put to Dr Middleton that more severe injuries would be expected had a fist been inserted in the vagina on two separate occasions, forcibly and without any form of lubricant. She responded that although she had never examined a patient where fisting was reported, she had examined well over 100 patients who had been sexually assaulted and the findings on this examination were probably among the top
5% worst physical findings that she had made, if not the worst. She had heard fisting described in peer review meetings with other DSAC doctors, and believed her findings were consistent with fisting having occurred.
[20] The Crown naturally emphasised the physical injuries, and suggested that no one else could have inflicted them in the period of 18 – 72 hours before Dr Middleton’s examination. In particular, it contended that P had no opportunity to do so at the Refuge.
[21] The importance of the evidence of Dr Middleton at the trial is demonstrated by the way in which it was dealt with in the Judge’s summing up. His summary of the Crown case, reciting the prosecutor’s closing submissions on this topic,
emphasised the importance of the medical evidence to the Crown case, particularly its consistency with C’s account.
The defence at the trial
[22] The defence, for both accused, was that there were no assaults, sexual or otherwise. They accounted for the injuries by suggesting that P might have inflicted them, or that some of them might have happened during the play fighting on
6 December, and that Dr Middleton overstated them. It was suggested that the doctor had an “inherent bias” in favour of complainants. C had been seen moving freely on the Monday morning.
[23] Leave was given for defence counsel to cross-examine C about three aspects of her sexual history: the possibility that P might have inflicted injuries described by Dr Middleton; a complaint that C made to the police in November 2003, the gist of which is that P’s former husband had raped C on a number of occasions, one of which involved three men wearing wolf masks, and others stupefaction by drugs; and a July 2004 complaint that a man who took C to the movies put his fingers down her pants and violated her. The appellants had been given leave on 18 November
2004 to cross-examine C only about the possibility that P had assaulted her, and their appeal to this Court was allowed in part, the Court permitting cross-examination as to the fact, generic nature, and outcome of the November 2003 and July 2004 complaints. Judge Davidson granted leave to cross-examine about details of the November 2003 complaint. The cross-examination was allowed to extend, in particular, to the allegations that C had been raped after been drugged, and had been raped by a group of men wearing wolf masks.
[24] The appellant gave evidence. She admitted to playing games, including a water fight and “knuckles” on 6 November, and admitted that C had stayed at the house overnight on 7 November, but denied any wrongdoing. She said that C had complained to her of violence by P in the relationship. She called another witness who deposed to the turbulent relationship between C and P, and an argument between them after C returned to the Refuge on 8 November.
Verdicts
[25] The charges and verdicts can be summarised as follows:
Counts Facts alleged by Crown Result Count 1: assault. Assault by Ms Oliver and
Ms Stewart in pulling and pushing C.
Ms Oliver: guilty.
Ms Stewart discharged under s 347.
Count 2: assault. Assault by Ms Oliver by
kicking C in the ribs and knees while C lying on the floor.
Guilty. Count 3: threatening to
kill.
Ms Oliver threatening to
kill C at the time of the count 2 assault, and prior to the alleged sexual violation.
Not guilty. Count 4: sexual violation
by unlawful sexual connection.
Ms Oliver penetrating C’s
genitalia with her fingers and fist. Ms Stewart alleged to have encouraged Ms Oliver by saying “Go for it, go”.
Ms Oliver: guilty (as
principal offender).
Ms Stewart: guilty (as party).
Count 5: sexual violation. Ms Stewart sexually
violating C with fist. Ms
Oliver charged as party.Ms Stewart: not guilty.
Ms Oliver: discharged under s 347.
Count 6: assault. Ms Stewart alleged to have
assaulted C in bathroom, forcing her into bath and then dunking her head.
Not guilty. Count 7: sexual violation. Ms Stewart alleged to have
again sexually violated C with fist following the assault in the bathroom.
Discharged under s 347.
(C gave no evidence about this at the trial.)
[26] It can be seen that Ms Stewart was convicted on count 4 only. She was sentenced to two years imprisonment and granted leave to apply for home detention.
Sentence
[27] Ms Oliver was sentenced to six years imprisonment on count 4, and nine months imprisonment on each of the assault charges (counts 1 and 2), to be served concurrently. In relation to the sexual violation Judge Davidson recorded that
Ms Oliver had not only digitally penetrated C but also rammed her fist into C’s vagina on a number of occasions.
Ms Stewart’s appeal dismissed
[28] Ms Stewart appealed to this Court against her conviction and sentence but the appeal was dismissed: R v Stewart CA515/05 15 August 2006. Ms Stewart did not attempt to introduce new evidence on appeal. Rather, the appeal was brought, as to conviction, on the ground that the verdicts were inconsistent, and C’s evidence unreliable. The Court rejected the submission of inconsistency, noting that it was necessary to point to verdicts that are so inexplicably inconsistent that interference by the appellate Court is called for: R v H [2000] 2 NZLR 581 (CA). The jury’s decision to find Ms Stewart guilty on count 4 but not guilty on the remaining counts was explicable when examined against the evidence that the jury heard, including the medical evidence. Whereas C had complained promptly that Ms Oliver had violated her, she did not complain about Ms Stewart until July 2004. Apart from the delayed complaint, C’s account in evidence at the trial about Ms Stewart’s body position differed from that given in her description to the police; she had told the police that Ms Stewart sat on her, straddling her, but at trial she said that Ms Stewart knelt between her legs.
[29] In dismissing the sentence appeal, the Court noted that on the evidence the Judge was entitled to find that Ms Stewart actively encouraged Ms Oliver to violate C, first digitally and then by ramming her fist repeatedly into C’s vagina. The Judge’s starting point of four years was available to him in the circumstances.
Trial counsel’s affidavit
[30] Ms Croft, who appeared for Ms Oliver at the trial, has sworn an affidavit which was filed in support of the appeal. There was no dispute about its admissibility. In the affidavit she explained that she recognised that the medical evidence relating to C’s injuries was directly linked to her credibility, and that it was necessary to discuss the medical evidence with another suitably qualified doctor.
She said she was familiar with DSAC and chose to consult another DSAC practitioner, Dr Jill Shepherd, who Ms Croft considered to be of impeccable professional integrity and knew to be experienced in examining rape complainants. They discussed Dr Middleton’s deposition and the photographs of C, but Dr Shepherd “felt unable to challenge any of the views and findings” of Dr Middleton. Because she had no reason to doubt the advice she had been given, it did not occur to Ms Croft to seek another medical opinion. After the trial, however, Ms Croft consulted a Queens Counsel (not Mr Squire QC) who advised her that she erred by consulting a DSAC doctor; she ought to have consulted a gynaecologist who was not a member of DSAC. She then took advice from Dr Wilde, an obstetrician and gynaecologist of 30 years experience.
Dr Wilde’s affidavit
[31] Dr Wilde prepared a report based on the evidence given at the trial, including police photographs of C’s non-genital injuries, and attached it to a brief affidavit. Understandably enough, he did not present his report in the form of a brief confined strictly to admissible evidence. It did not set out his qualifications in full, and contained some apparently inadmissible evidence. Its informal nature hindered our assessment of the cogency of his evidence.
[32] Accordingly, after the initial hearing, the Court directed that counsel file an affidavit by Dr Wilde setting out his qualifications and confined to matters within his professional expertise. This affidavit was filed and served just before Christmas
2006. We gave Crown counsel the opportunity to file a memorandum advising whether the Crown wished to challenge the evidence for the purposes of the test outlined in R v Bain [2004] 1 NZLR 638 (Bain CA) at [22] – [25] and, if so, whether the Crown was content to rely on submissions or wished to adduce affidavit evidence or cross-examine. The Crown sought leave to adduce affidavit evidence from another medical expert, Dr Macdonald. The affidavit was filed and served in early March 2007. Crown counsel then sought leave to cross-examine Dr Wilde. This was initially opposed by Ms Oliver’s counsel, but ultimately there was agreement that both Dr Wilde and Dr Macdonald would be cross-examined. This necessitated a
further hearing which, because of the difficulty in finding a date on which both doctors, both counsel and the three Judges were all available, could not be scheduled until 20 July 2007.
[33] In his affidavit, Doctor Wilde set out his qualifications in detail. He graduated MB Ch B from Otago University in 1966. He undertook specialist training in obstetrics and gynaecology in Auckland and the United Kingdom between 1970 and 1975. He commenced practice as an obstetrician and gynaecologist in Palmerston North in 1976 and has practised continuously in the 31 years since then. He became a Member of the Royal College of Obstetricians and Gynaecologists in 1975 and a Fellow of that College in 1988. He became a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists in 1982. His speciality involves care and treatment of women during pregnancy and treatment of women with disorders of the reproductive system. However, he noted that he has no recent experience of examining patients who are victims of sexual assault, though he has on occasion treated women who have suffered genital injuries and he is widely experienced in carrying out pelvic examinations. He said that, as a result of his professional training and accumulated experience, he has a good understanding and knowledge of the female genitalia and the effects of blunt force trauma in that area.
[34] Dr Wilde noted that C’s evidence was that both Ms Oliver and Ms Stewart had penetrated her vagina with their fists. He noted C’s evidence as to the position of her legs when this occurred (see [10] – [11] above). Dr Wilde expressed his disagreement with the evidence of Dr Middleton that her findings were consistent with C’s having been violated by a fist in the manner C described. He said:
In my view it would be impossible for the vagina of a nulliparous woman (as the Complainant acknowledged she was) to accommodate a fist used repeatedly in the fashion detailed by the Complainant in her evidence, without there being evidence of much more significant trauma than Dr Middleton found. The insertion of a fist into the vagina of a nulliparous woman such as the Complainant without the use of a lubricant and in the non-compliant situation she described could not, in my view, be effected without the use of significant force. If her legs were pinned by Ms Oliver kneeling on the Complainant’s knees as it appears may have been the case, even more force would have been required. In those circumstances, the absence of trauma to the labia majora and injuries of a tearing or disruptive kind to the hymen are significant. I do not believe the Complainant could
have been penetrated by a fist as she described it in evidence without there being gross trauma to the labia majora, tearing or disruptive injury to the hymen and much more significant trauma to the vaginal introitus and the vaginal canal than Dr Middleton found on her examination. The fact that Dr Middleton had no record of bleeding from the vagina is also in my view quite inconsistent with the Complainant having been violated with a fist as she claimed.
[35] In cross-examination Dr Wilde was challenged on a number of aspects of his evidence. He accepted that he did not have experience in seeing patients who had suffered sexual assault, and had never examined a woman who had alleged penetration of her vagina by a fist. However, based on his experience, he had a clear view that a woman who had suffered penetration of her vagina by a fist which was thrust violently, in circumstances where she had her legs apart but straight, would have suffered much more extensive injuries than those observed by Dr Middleton. In particular he said he would have expected to find evidence of bruising and possible contusions of the labia majora and also would have expected significant disruption to the hymen and trauma to the vaginal canal. He accepted, however, that the injuries as described by Dr Middleton were consistent with digital penetration. He agreed that some healing of injuries to the vaginal area would have occurred in the 30 hours between the alleged fisting incidents and the medical examination by Dr Middleton, but said this would not have prevented significant injuries of the kind he described from being identifiable.
Dr Macdonald’s affidavit
[36] The Crown filed an affidavit by Dr Macdonald, in response to that of Dr Wilde. She is the clinical director of the Wellington Sexual Health Clinic and is senior lecturer in sexual and reproductive health at the Otago Medical School. She has over 15 years experience in women’s reproductive health and sexual health medicine. She has examined more than 200 cases of alleged sexual assaults in adolescents and adults over the last ten years and has also examined, in the course of her clinical work, many hundreds of women of reproductive health age in the pregnant and non-pregnant state after consensual and non-consensual sexual activity, including occasionally after the sexual activity of fisting. She is an accredited DSAC
doctor and has appeared as witness for the prosecution in numerous cases and given opinions for the defence in other cases.
[37] Dr Macdonald expressed an expert opinion similar to that of Dr Middleton in the following terms:
In a previously sexually active woman the findings some 30 hours after an alleged penetrative sexual assault of an abrasion on the inside of the labium minorum, (inner lips at the vaginal entrance, before the hymen), superficial bruising on the hymen and an abrasion on the inside of the vagina would be consistent with penetration, including blunt force trauma and a sharp object such as finger nail as Dr Middleton has reported.
[38] She took issue with Dr Wilde’s key conclusion in the following terms:
I disagree with Dr Wilde’s statement on page 5 paragraph 10 of his affidavit that it would be “impossible for the vagina of a nulliparous woman to accommodate a fist without there being evidence of much more significant trauma” for the reasons I have outlined. 30 hours or so had passed since the alleged assault and the genital tissue in a mature, post-pubertal, pre- menopausal, previously sexually active woman would heal quickly.
[39] In cross-examination, she queried whether the action of “fisting” could include an insertion of an open palm with the fingers outstretched into the vagina, following by the making of a fist, rather than the closed fist being inserted in the vagina. However, there is nothing in the evidence given by C at trial which clarifies that point, and C’s police statement talked of a “punching” and “ramming” motion, at least in relation to the alleged fisting incident involving Ms Stewart, which would indicate that her experience was of a closed fist being pushed into her vagina..
[40] Dr Macdonald accepted in cross-examination that, if the position of C at the time of the fisting incident was that her legs were apart but straight, that would make penetration more difficult than if she had her legs apart and her knees bent.
Admission of Dr Wilde’s affidavit
[41] There is a very clear conflict between the evidence of Dr Wilde on the one hand, and that of Dr Middleton and Dr Macdonald on the other. The third doctor
consulted by Ms Croft prior to the trial apparently also agreed with the assessment of Dr Middleton. It is not for us to resolve that conflict. Rather, we must determine whether the evidence of Dr Wilde meets the test for the admission of new evidence on appeal and, if it does, whether the fact that it was not heard by the jury creates a miscarriage of justice. We turn to the first of those issues now.
Test for admission
[42] The test for the admission of new evidence on appeal was restated in the decision of this Court in Bain CA. Although that decision was overturned on appeal to the Privy Council (Bain v R (2007) 23 CRNZ 71 (Bain PC)), Their Lordships described this Court’s decision on this aspect of the case as the application of well- settled principles. This is what this Court said:
[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.
[23] Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract. Both inherent and contextual credibility will usually need consideration. Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary. The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s 389 of the Crimes Act. The freshness and credibility criteria are the standard measures which guide the exercise of the discretion. In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.
[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.
[25] The Court is therefore engaged in considering what effect the new evidence might reasonably have had on the jury. This focus on the effect of the new evidence on the jury is consistent with the jurisprudence relating to the proviso to s 385(1): see R v McI [1998] 1 NZLR 696 (CA), and the recent decision of this Court in R v Howse [2003] 3 NZLR 767. In that field the Court is concerned with whether the jury (not the Court: see McI at p 711) would nevertheless have convicted had the posited miscarriage of justice not occurred. The need for the appellate Court in a new evidence case to consider its effect on the jury is also consistent with the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate Court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result.
[43] In the present case, there is a real issue as to whether the evidence of Dr Wilde is fresh. We will deal with that later. However, as Bain CA makes clear, even evidence which is not fresh may, if sufficiently cogent and credible, be admitted if that is required in the interests of justice. The strength of the evidence (in the sense of its possible influence on the outcome of the case if it had been heard at trial) is an important consideration. What that means in the present case is that the two issues, namely whether the evidence should be admitted, and whether a substantial miscarriage has occurred, are inter-related to a considerable extent.
[44] It is for that reason that, in cases like this one, Bain CA must be read with the decision of the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730. In that case, the Supreme Court emphasised that the statutory ground of appeal justifying intervention is that there was a miscarriage of justice; the focus is on outcome, with the cause of the miscarriage supplying context. The question for the Supreme Court was whether a serious error by trial counsel was a precondition to appellate intervention. But the Court also examined the necessary relationship between error and verdict. Gault, Keith and Blanchard JJ held at [70] that it will generally be appropriate to consider whether there was in fact an error or irregularity by counsel,
and whether “there is a real risk it affected the outcome”. Tipping J held at [110] that what has gone wrong must have led to a real risk of an unsafe verdict, and that a real risk arises “if there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”. Elias CJ held at [7] that:
Where, as here, the basis of the ground of appeal is that relevant and admissible evidence was not called (whether because it was not reasonably available at trial or because counsel did not choose to call it), the effect of its absence will have to be assessed. The context may include the cogency of the evidence not called, the other evidence at trial, any additional evidence likely to have been elicited in response had the evidence been called, and any risk to the defence in calling the evidence.
[45] Mr Squire advanced his case on grounds of counsel error, but for the reasons outlined below we do not accept that there was an error. In the alternative, he contended simply that the new evidence, although not fresh, was of such cogency that the verdict on count 4 is unsafe and, because the case turned on C’s credibility, so by extension were the verdicts on counts 1 and 2.
[46] In such a case the new evidence is to be evaluated following Bain CA. The ultimate question is whether a miscarriage of justice has occurred. The inquiry is approached by first evaluating the evidence for freshness. The reasons why it was not called at trial must be explained; an accused is expected to put up his or her best case at trial, after diligent preparation, and must ordinarily live with the consequences of choices made there. The new evidence is next evaluated for credibility or cogency against the evidence actually called at trial and any evidence that the Crown proposes to call in rebuttal. These considerations of freshness and cogency guide the exercise of the discretion to admit new evidence under s 389. The Court must then consider what effect the new evidence might reasonably have had on the verdict, bearing in mind that the ultimate issue is for the jury. It inquires whether there is a real risk that the verdict is unsafe, in the sense that there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered had the evidence been called.
Counsel error
[47] We accept Ms Feltham’s submission that Ms Croft’s decision to consult a DSAC doctor cannot amount to an error, still less a serious one. She satisfied herself of Dr Shepherd’s integrity, and sensibly sought out a practitioner experienced in forensic examination of victims of sexual violence. There is no foundation in the evidence before us for a conclusion that DSAC members are unsuited as defence witnesses by reason of sympathy to victims. On the contrary, it appears from the evidence of Dr Macdonald that they are on occasion consulted by defence counsel.
Freshness
[48] The evidence could have been called at trial, and we accept that it would have been called had Ms Croft known of it. That it was not called is attributable to Ms Croft’s belief, following diligent inquiry, that no useful challenge could be made to the Crown’s medical evidence about fisting. It is not a case of a trial tactic that counsel now regrets, nor of insufficient diligence in preparation. Something has nonetheless gone wrong, in the sense that relevant evidence was not led on an issue that went to the heart of the defence at trial.
Cogency of the new evidence
[49] Ms Feltham questioned Dr Wilde’s qualification to give evidence on the likely injuries that would be suffered by a victim of non-consensual fisting. She pointed out that he is not accredited to examine sexual abuse victims by a professional organisation (such as DSAC), does not attend peer review meetings and does not appear to be acquainted with the literature in the area. She noted that he had not had the opportunity to examine C clinically, unlike Dr Middleton. She noted that in his initial report, he made comments about the credibility of C’s account and questioned his independence in the light of those comments.
[50] While we accept that members of DSAC have particular expertise in dealing with victims of sexual assault, we do not accept that Dr Wilde is unqualified to give
the evidence he gave. His expertise and experience as a gynaecologist qualify him to give the evidence he did. He was not deflected from his views in cross-examination. We also see no basis to question his independence.
[51] As Mr Squire submitted, the task of an appellate court in assessing the cogency and credibility of new evidence is not to accept or reject it, but rather to assess whether it has sufficient cogency and credibility: Mr Squire suggested that the test was that the evidence was “not incredible”. We accept that our role is not the overall evaluation of the evidence: that would be for a jury at a new trial, if one is ordered. We are satisfied that Dr Wilde’s evidence is within his area of expertise and that it has sufficient cogency to be admitted on the appeal.
[52] Ms Feltham also challenged the credibility of Dr Wilde’s evidence on the basis that his view that the incident as described by C was “impossible” without much more severe injury having resulted was based on an incorrect understanding of the evidence which C gave at trial about the fisting incident. In fact, C complained of two different fisting incidents, but Ms Stewart was acquitted in relation to the second fisting allegation. There is room for doubt about the correctness of Dr Wilde’s understanding of the positioning of C’s legs when the fisting incident occurred, because this was an aspect of the evidence of C which was left rather unclear at the trial. Dr Wilde was cross-examined about this aspect of his evidence, and we are satisfied that its cogency is not undermined by a misunderstanding on Dr Wilde’s part about the factual circumstances of the fisting incident.
[53] Overall we are satisfied that Dr Wilde’s evidence meets the test of cogency and credibility outlined in Bain CA. It relates to an aspect of the trial which was hotly contested, and in respect of which the medical evidence of Dr Middleton was likely to have been a significant factor in the jury’s decision. His opinion is so strongly at odds with that of Dr Middleton that it may well have influenced the jury’s view if his evidence had been before the jury. The fact that his opinion appears to be at odds with that of Dr Middleton and Dr Macdonald provides scope for challenge to its correctness, but our assessment is of its cogency, not its correctness.
[54] Taking all these matters into account, we have concluded that it is in the interests of justice that Dr Wilde’s evidence be admitted, and we rule accordingly. Obviously, Dr Macdonald’s evidence is also admitted, given that it is a necessary component of our evaluation of the cogency and credibility of Dr Wilde’s evidence.
Was there a miscarriage of justice?
[55] Delivering the judgment of himself, Keith and Blanchard JJ in Sungsuwan, Gault J said at [67] – [68]:
[67] …[T]here will be cases, rare cases, as was recognised in Pointon, where the conduct of counsel, although reasonable in the circumstances in which it occurred, nevertheless can be shown to have given rise to an irregularity in the trial that prejudiced the accused’s chance of acquittal (or conviction of a lesser offence) such that the appeal Court is satisfied there was a miscarriage of justice. The Court will always reserve the flexibility to identify and intervene to prevent a miscarriage of justice however caused.
[68] Often these cases will be able to be analysed without examining the quality of counsel’s conduct. For example, where the effect was that vital evidence was not placed before the jury it might be appropriate to inquire directly whether that gave rise to a miscarriage of justice, although that will need to be considered in light of principles governing the admission of further evidence on appeal, including any explanation for its absence from the trial.
[56] Mr Squire submitted that this was one of the “rare cases” identified by Gault J because the fact that the jury did not hear Dr Wilde’s evidence prejudiced Ms Oliver’s chance of acquittal. In evaluating that submission, we are mindful of the limits of the task before us. As this Court said in R v McI [1998] 1 NZLR 696 at
711:
But it is important to recognise that the Court is not thereby invited to come to its own view about whether the appellant was in fact guilty of the crime or crimes alleged. Rather, the Court is required to assess whether, without the error or deficiencies of process, the jury would still have convicted. It is what the jury would have done without the errors or deficiencies which is the issue, not what the Court thinks of the ultimate merits of the conviction.
[57] This was endorsed in Bain CA at [25] (see [42] above) and, more recently, in
R v Haig (2006) 22 CRNZ 814 at [55] (CA).
[58] In Bain PC at [115] the Privy Council emphasised the limitations of an appellate Court’s role in the following terms:
First, the issue of guilt is one for a properly informed and directed jury, not for an appellate Court. Secondly, the issue is not whether there is or was evidence on which a jury could reasonably convict but whether there is or was evidence on which it might reasonably decline to do so. And, thirdly, a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading. Even a guilty defendant is entitled to such trial.
[59] We evaluate the potential significance of Dr Wilde’s evidence in the light of those principles.
[60] As we have highlighted earlier, the Crown’s case relied substantially on the credibility of C’s account, supported by the evidence of opportunity (the presence of C at the home of Ms Oliver and Ms Stewart at the time at which the medical evidence showed the injuries were likely to have been suffered) and the medical evidence which supported C’s evidence. Dr Middleton’s evaluation that C’s genital injuries were consistent with the fisting incident as C described it was clearly a significant factor. C’s credibility was challenged on a number of bases at trial, including in particular by reference to the earlier complaints about which the Judge gave the defence leave to cross-examine C (see [23] above). The fact that the jury did not convict on some of the counts, particularly the fisting allegation against Ms Stewart (see [28] above) indicates that the jury was left with a reasonable doubt about the correctness of some aspects of C’s account of events.
[61] Ms Feltham suggested that this factor counted against the allowing of the appeal, on the basis that the jury already had some doubts about C’s credibility, and Dr Wilde’s evidence would at most have added to that doubt. We disagree: C’s credibility was a key issue and the unchallenged evidence of Dr Middleton may have been seen as bolstering it considerably. Dr Middleton described C’s genital injuries in terms which indicated they were among the worst she had ever seen. Against that background, Dr Wilde’s evidence that it would be “impossible” for the fisting activity as described by C to have occurred without there being evidence of much more significant trauma than Dr Middleton found may well have had a significant impact on the jury.
[62] Ms Feltham pointed out that the primary focus of Ms Oliver’s defence at trial was that nothing had happened. The Crown relied on Dr Middleton’s evidence to support its case that C had been assaulted and sexually violated at a time when she was in Ms Oliver’s presence. The new evidence of Dr Wilde did not change this. While that is true, it does not take account of the alternative basis of the defence (that C was assaulted but by P or another person) and the fact that C’s credibility remained the cornerstone of the Crown case.
[63] Ms Feltham also pointed out that Dr Wilde’s evidence was an assessment of the likely injuries which C would have suffered if she had been subjected to fisting by both Ms Oliver and Ms Stewart. Ms Stewart was acquitted, which means only the incident involving the alleged fisting by Ms Oliver remains in issue. We do not see that as decisive, because the issue of the credibility of C’s evidence is assessed by reference to C’s version of events, not the jury’s verdict.
[64] In summary, there are a number of significant matters which lead us to conclude that this is one of the rare cases of the kind identified by Gault J in Sungsuwan at [67] and that a miscarriage of justice has occurred. These are the unusual degree to which the credibility of C was in issue at the trial, the likelihood that the unchallenged medical evidence at trial would have bolstered C’s credibility in the minds of jurors, the importance of C’s credibility to the Crown case, the unequivocal nature of Dr Wilde’s opinion, which directly contradicts the medical evidence heard by the jury and provides a basis for challenging C’s account of the fisting allegation against Ms Oliver, and the likely impact that that evidence could have on the jury’s assessment of C’s credibility overall.
Consequences of finding of miscarriage
[65] We now turn to the consequences of our conclusion that a miscarriage of justice occurred.
[66] Ms Feltham pointed out, correctly, that Dr Wilde’s evidence did not suggest that sexual violation by digital penetration was inconsistent with the injuries suffered by C. She noted that count 4 did not differentiate between the digital penetration and
the penetration with a fist. She therefore argued that we should conclude that a jury would still have convicted Ms Oliver of sexual violation, even if that involved a conclusion that the violation was by digital penetration only. She accepted that an adjustment would be required to the sentence imposed on Ms Oliver, which was clearly set at a higher level than would have been the case if the conviction was for digital penetration only, but she said that would be an appropriate response to the circumstances of this case which were, at their highest, that Ms Oliver had been convicted of a more serious sexual violation than may otherwise have been the case.
[67] We are unable to accept that submission. In our view, C’s account of the fisting incident was a significant component of the Crown case, and if Dr Wilde’s evidence had led the jury to doubt it, that may have affected the jury’s assessment of the credibility of other aspects of C’s evidence. In our view, the nature of the miscarriage in this case leads to the inevitable conclusion that the conviction on the sexual violation count is unsafe, and should be set aside.
[68] Ms Feltham also argued that the assault charges are unaffected by Dr Wilde’s evidence, and should stand even if the sexual violation conviction is set aside. We agree with Ms Feltham that Dr Wilde’s affidavit evidence does not challenge the evidence of Dr Middleton in relation to the non-genital injuries. But in the circumstances of this case we consider that the potential impact of Dr Wilde’s evidence on the jury’s assessment of C’s credibility may well have affected the outcome on the assault counts as well, and that this compromises the safety of those verdicts also. In the circumstances, we consider that the appropriate action is to set aside the convictions on all counts and order a retrial. This will allow a jury to consider all of the counts afresh, taking into account Dr Wilde’s evidence.
Result
[69] We allow Ms Oliver’s appeal against conviction on all counts on which she was convicted (counts 1, 2 and 4) and set aside those convictions. We order a new trial on those counts. Any issues relating to bail should be dealt with in the District Court.
Sentence appeal
[70] It is unnecessary for us to deal with the appeal against sentence.
Impact on Ms Stewart
[71] Ms Stewart was convicted on count 4 as a party; Ms Oliver was convicted as principal offender. The outcome of Ms Oliver’s appeal may obviously affect the position of Ms Stewart, whose appeal to this Court on other grounds has been dismissed. We therefore direct the Registrar to provide a copy of this judgment to Ms Stewart’s counsel.
Solicitors:
Helen Croft, Wellington for Appellant
Crown Law Office, Wellington
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