R v P

[2009] NZCA 368

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA303/2009 [2009] NZCA 368

THE QUEEN

v

P 

Hearing:         10 August 2009

Court:            Baragwanath, Randerson and Panckhurst JJ Counsel:  R A Harrison for Appellant

N P Chisnall for Crown

Judgment:      21 August 2009 at 9.30am

JUDGMENT OF THE COURT

The appeal is allowed.  The convictions are quashed.

REASONS OF THE COURT

(Given by Panckhurst J)

Introduction

[1]      Following a trial in the High Court at Auckland, the appellant was found guilty of offences of unlawful sexual connection by digital penetration and sexual

P V R CA CA303/2009 [21 August 2009]

violation by rape.  These crimes were committed on 5 July 1996 against the same complainant, M, a close relative of the appellant.   Subsequently, the trial Judge, Salmon J, sentenced the appellant to preventive detention.  This sentence followed earlier sentences of imprisonment imposed for sexual offending against other young girls, which the appellant was still serving when he was convicted and sentenced for the instant offending.   We shall need to refer further to one of these prior cases, shortly.

[2]      This  appeal  is  based  solely  upon  a  recantation  by  M  in  relation  to  the evidence she gave in support of the two charges.  The essential issue for the Court to decide is whether the recantation is true, or may be true and, if so, whether or not a retrial should be ordered.

Some further background

[3]      At trial M gave evidence that on or about 5 July 1996 she was sleeping in the same room as the appellant and her step-brother.  During the night M went to the kitchen for a drink of water.  On returning to the room where she was sleeping, the appellant was awake.  He proceeded to kiss her, digitally penetrate her vagina and to have sexual intercourse with her.  M was aged 13 years at the time.  The appellant was aged 36 years.

[4]      Approximately one month later M complained to her mother.  A complaint to the police ensued.  When interviewed the appellant denied the allegations.

[5]      Following the High Court trial in July 1998, at which the jury obviously believed  M’s  evidence,  the  sentence  of  preventive  detention  was  imposed  in February 1999.   Later that  year an  appeal  to  this  Court  against  conviction  and sentence was dismissed.

[6]      Previously,   in   1997,   the   appellant   had   been   sentenced   to   11   years imprisonment in relation to sexual offending against another female family member. We shall refer  to  that  victim  as  complainant  A.    These  convictions  were upon

representative charges of sexually abusing complainant A in the period 1993 to 1996 when she was between 9 and 12 years of age.

[7]      And, two months later, in November 1997, the appellant was sentenced to five months imprisonment, cumulative upon the 11 year term, for an offence of indecent assault upon a 15 year old female committed in late 1994.  Hence, by the time the appellant appeared for sentence in February 1999 in relation to the convictions pertaining to M, he was already serving a sentence of 11 years five months imprisonment.  A sentence of preventive detention, of course, resulted.

[8]      The next development was in August 2005 when, as a result of a retraction by complainant  A,  this   Court   quashed   the   convictions   pertaining  to   her.      In consequence, it was necessary to re-examine the sentence of preventive detention.  It too was quashed, and a sentence of nine and a half years substituted (CA140/05,

24 August 2005).

The retraction by M

[9]      In  a  letter  to  the  appellant  dated  5  July  2005  (coincidentally  the  ninth anniversary of the date of the original charges), M retracted the 1996 allegations. The gist of the letter was that the false accusations were made at the behest of M’s mother and in an endeavour to obtain “revenge” for the fact that M’s older sister was believed to have been raped by the appellant in 1990 when she was 9 years of age. The appellant was charged with sexual violation by rape.  However, at trial he was acquitted.

[10]     M, who was only 7 or 8 years of age at the time of these events, was not told of the trial or its outcome.  However, in July 1996, when M expressed a wish to have increased contact with the appellant, her sister told M of the past events.  An aspect of the discussion was that the sister had not resisted the appellant’s attentions for fear that M would become the victim, if she did not.

[11]     Despite the letter sent by M to the appellant in July 2005, no steps were taken in light of the retraction at that point.   It was not until September 2007 that this

occurred.    At  that  time  the  appellant  was  the  subject  of  an  application  for  an extended supervision order.  Mr Harrison was counsel for the appellant in relation to that application.  He learned of the retraction.  Counsel set in train a process whereby M was interviewed by an independent barrister.  In the result M signed a statement dated 7 September 2007 which confirmed her retraction and briefly explained the reasons why the allegations were made in 1996.

[12]     An application was filed seeking the exercise of the Royal Prerogative of Mercy under s 406 of the Crimes Act 1961.   Officers of the Ministry of Justice retained Queen’s Counsel, Ms K P McDonald, to meet with M and carry out an assessment of the reliability of her retraction.   In due course, counsel provided a report dated 20 January 2009.   This detailed the background to which we have referred and explained the steps taken by counsel in order to test the veracity of the retraction.  The conclusion to the report contained this:

[M’s] explanation for her retraction impressed me as cogent and credible.  I questioned her extensively about these matters and her answers were consistent and sensible.  There is no evidence to suggest that [M] has been prompted or coerced into making her retraction.

[13]     The appellant’s  case was referred back  to  this  Court  for  it  to  determine whether a miscarriage of justice had occurred.   On 22 June 2009 the Court heard argument on the matter but ultimately determined that in the exceptional circumstances of this case it was desirable for us to hear evidence from M.

[14]     At the resumed hearing M was cross-examined.   Generally, she gave an account which was consistent with that relayed to Ms McDonald, and foreshadowed in the earlier letter and written statement.  Both members of the Court, and Crown counsel, questioned M concerning the circumstances in which the allegations were made in the first place, and retracted some nine years later.

Conclusion

[15]     In R v Barr (Alistair) [1973] 2 NZLR 95 at 98 (CA) this Court cited the principles articulated by the Court of Criminal Appeal in R v Flower [1966] 1 QB

146 in relation to the proper approach to fresh evidence, such as a recantation.

Broadly, three options are open.   If the evidence is considered to be true and necessarily decisive, the Court will quash the conviction.  The second possibility is that although the Court may not be satisfied the fresh evidence is true, it may be sufficiently credible as to give rise to a risk of a miscarriage, in which case the Court will ordinarily direct a retrial.   The third possibility is that having heard the fresh evidence, the Court positively disbelieves it, in which case the appeal will fall for determination with the fresh evidence put to one side.

[16]     Mr Chisnall for the Crown, while having reservations as to the truthfulness of the  retraction,  candidly  acknowledged  that  it  would  be  unsafe  to  allow  the convictions to stand.   The Crown’s case at trial in 1998 was dependent upon acceptance of M’s testimony.   In light of the recantation the convictions must be viewed as unsafe.  An order for a retrial is not sought.

[17]     We agree with the position taken by Crown counsel.  M’s retraction cannot be rejected as untruthful.   The convictions, therefore, are unsafe.   A retrial is not feasible, nor sought.   That said, the case is a worrying one, in that the appellant, following convictions and the imposition of a sentence of preventive detention, is the beneficiary of  two  recantations,  both  of  which  occurred  several  years  after  the respective trials.

[18]     For  these  reasons, however,  the  appeal  is allowed.    The  convictions  are quashed.

Solicitors:

Crown Law Office, Wellington