R v Panapa Ca89/04

[2004] NZCA 397

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 89/04

THE QUEEN

v

ANTHONY MARK PANAPA

Hearing:         20 October 2004 Coram:  Glazebrook J

Panckhurst J Gendall J

Appearances: F P Hogan for Appellant

J C Pike for Crown Judgment:  26 October 2004

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1]    In this appeal against conviction challenge is raised to a decision of the trial Judge to amend the indictment as to the dates of the offending, to the adequacy of  the summing-up in one respect and to the giving of a so-called Papadopoulos direction when the jury had been in retirement for only a few hours. The appellant was found guilty of sexual violation by unlawful sexual connection (anal intercourse), inducing an indecent act (masturbation) and indecent assault (rubbing

R V ANTHONY MARK PANAPA CA CA 89/04 [26 October 2004]

the complainant’s penis). The three convictions related to the same complainant  boy, who was aged nine or ten years at the time of the offending.

The background

[2]    The complainant, whom we shall also refer to as S, was born on 25 January 1992. He was the last child in a family of eight, being adopted at birth at a time  when his older siblings ranged in age from their early teens to their mid 20s. S’s oldest sister was in a relationship with the appellant before and at the time relevant to the offending. He was the father of her three younger children.

[3]    S resided at Pukekohe in a house occupied by his father and other members of the family. It was a communal household. From time to time he visited and  stayed with his oldest sister and the appellant. The Crown case was that on the occasion of one such visit the offences were committed, being anal penetration of S, induced masturbation by S of the appellant (to the point of ejaculation) and rubbing of S’s penis. A complaint was not made until some months after the event.

[4]    An evidential interview of S was recorded on 13 November 2002. He was then aged 10 years. The video recording of the interview, which was played to the jury, contained a reasonably detailed description of the sexual acts. S said that they occurred late at night while he was watching television with the appellant.  His  oldest sister was in the house but not present in the room.

[5]    With reference to when the abusive conduct occurred the complainant said that it was in about February or March of “last year” (2001) and therefore shortly after his ninth birthday. He thought that it was during a school holiday period and was on an occasion when his sister’s oldest daughter was staying in the family home at Pukekohe, while he visited his sister at Papakura. The two had swapped. S also told the interviewer that the incident occurred before his sister’s and the appellant’s youngest daughter was born. The evidence established that to have been in August 2002.

Dates contained in the indictment

[6]    The initial indictment contained 25 January 2001 to 31 March 2002 as the dates between which the offending was alleged to have occurred. The appellant was arraigned on such indictment in September 2003. Towards the end of the trial the Crown sought and obtained an amendment to the dates in that the termination date was brought back to 31 May 2001. Hence at that point the Crown case was that the abuse occurred within a period of about four months in the first half of 2001. At that trial a disagreement resulted. A retrial was ordered.

[7]    The dates in the indictment as amended at the first trial remained in place at the commencement of the new trial. This, despite the fact that prior to the retrial the Crown supplied a brief of evidence for a new witness, being another of the complainant’s sisters who was almost 20 years his senior. She was to give evidence concerning various relevant family relationships, but in addition her evidence included observations to the effect that S last stayed with their oldest sister and the appellant at the time of the death of a great uncle and while preparations were made for his funeral.

[8]    Inexplicably inquiry was not made by the Crown to establish the date of the great uncle’s death, at least not until the point was raised by Mr Hogan with the result that a death certificate was only obtained on the morning the retrial commenced in November 2003. The certificate showed that the great uncle died on 30 January 2002. That is to say about 12 months after the period identified by S in the course of his video interview and outside the date span identified in the indictment.

[9]    At the commencement of the trial and immediately after the complainant’s video interview was played, he was asked some supplementary questions. These included a question and answer to the effect that the relevant incident occurred on the occasion of his last visit to the Papakura house occupied by his sister and the appellant. Despite this development there was no application at that point to amend the dates in the indictment.

[10]   The new witness, S’s sister, gave evidence to like effect confirming that the complainant had stayed at Papakura at the time of the great uncle’s death and that this visit was the last occasion that he did so. She added “I didn’t know why at the time”. At the conclusion of the Crown case there was still no application to amend the dates, despite the fact that by then it was clear the emphasis had moved to January 2002 as the likely time of the offending.

[11]   The appellant gave evidence in his own defence. His evidence-in-chief was exceedingly brief. It consisted of a denial of the allegations. Mr Panapa said that  they were not true and that “nothing at all” had happened between himself and the complainant. At the conclusion of the defence evidence application to amend the indictment was finally made.

An amendment application

[12]   Such application was resisted. After hearing argument the Judge granted the amendment and advised the jury of it. Indeed he adopted a compromise to the extent that he disclosed to the jury the Crown’s various changes of heart. That is to say the jury were told that at the commencement of the first trial the dates specified were   25 January 2001 to 31 March 2002. These were amended to 25 January to 31 May 2001 during that trial. And finally that the January-May time span alleged at the commencement of the retrial  was  now  to  be  amended  to  25  January  2001  to  28 February 2002.

[13]   Later that day the Judge gave written reasons for the ruling. He noted at the outset that Mr Hogan objected to the amendment on the basis its lateness had occasioned prejudice in that he was “unable to cross-examine on a pivotal point”. After noting that s335(1) of the Crimes Act 1961 permitted amendment to an indictment where there was variance between the proof and the charge, the Judge recorded ss(2):

If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variation it shall make the amendment.

[14]   The balance of the reasons consisted of an examination of the issue of prejudice. The Judge was critical of the Crown. He said:

In this case, the application should have been made earlier. The Crown  knew of the possible problem before the trial began, but elected to see how the evidence panned out. It should have made the application before trial where it would have probably been granted without opposition, or certainly without any valid objection to it. The failure to do so placed the continuance of the trial at risk.

We agree with, and adopt, such criticism. Despite it the Judge proceeded on to hold that there was no prejudice to the defence which required refusal of the amendment.

[15]   In particular the Judge was influenced by the cross-examination of the complainant. He said this:

By the time Mr Hogan came to cross-examine the complainant, he was aware of the significance of the funeral date. His cross-examination effectively exposed the inconsistencies in the Crown’s evidence as to timing. He obtained confirmation that the alleged incidents occurred the last time the complainant visited the property. He obtained confirmation from the complainant that the youngest child of Mr Panapa was not born at the time  of the alleged events. This was inconsistent with the evidence  that  the events occurred on the complainant's last visit, (because) that occurred after the child was born.

And towards the end of the judgment Paterson J expressed the conclusion:

I do not see that he could have cross-examined further to expose the timing difficulties which the Crown has in its case.

Finally the Judge referred to the compromise he had struck, namely that the jury was made aware of the Crown’s vacillations and he also noted that defence counsel would be able to refer to the different date spans in his final address.

[16]   There was no request for an adjournment of the trial in light of the amendment ruling.

Was the amendment improper?

[17]   Mr Hogan argued that, despite the Judge’s ruling to the contrary, there was material prejudice which flowed from the amendment of the dates. In particular he

submitted that if the amendment was made at the commencement of the trial or as soon as S completed his evidence, his cross-examination of subsequent witnesses would have proceeded differently. In the former situation counsel would have cross- examined the complainant differently. He would also have cross-examined the new witness, the complainant’s sister and possibly his mother as well, in an endeavour to show that there had been “collusion” in that S was coached to amend his evidence to place the incident at the end of January 2002 rather than almost 12 months earlier, as in his video interview. It is the case that there was no cross-examination of these three witnesses to this effect.

[18]   Mr Pike submitted that time (the dates alleged in the indictment) was not a material ingredient of the offences, at least not in this case where the defence was a blanket denial rather than an explanation of some kind which was date specific. Section 335 of the Crimes Act conferred a wide discretion upon a trial Judge to amend an indictment and here that discretion had been exercised on a principled basis. An examination of the reasons given by the trial Judge revealed that no basis existed to disturb the exercise of discretion.

[19]   We agree. As the Judge noted in the amendment ruling, the complainant’s vagueness as to date was fully explored in the course of cross-examination of the complainant. Moreover, we note from the Judge’s summary of the defence case in summing-up that Mr Hogan’s challenge to the date variations was identified as a principal plank of the defence case. It was squarely before the jury that while the complainant said in his 2002 video interview that the abuse occurred the previous year when he was nine years of age, at the retrial his evidence was to the effect the incident occurred in January 2002 on the occasion of his last visit to Papakura. Whether this change affected the complainant’s honesty and reliability was clearly isolated as a question for the jury to consider.

[20]   We are unpersuaded that there is significant weight in the contention that had the amendment been made earlier, cross-examination of the complainant’s sister and mother would have taken a different course. In the first place there was nothing to prevent cross-examination of the kind suggested. It was on the cards that an amendment of the indictment was likely, once S gave evidence favouring early 2002

as the likely time of the incident. It was a trial decision or tactic not to cross- examine the witnesses in the manner suggested.

[21]   But in any event we doubt that any such cross-examination could be described as pertaining to “collusion”. The suggestion now is that S’s evidence as to the date of the incident changed because it was suggested to him by his sister and/or mother that the relevant visit occurred at about the time of the funeral in 2002. Questioning of a child by relatives as to the accuracy of a date hardly provides evidence of collusion. The essence of the matter was not when the event occurred, rather whether it occurred. And as to that crucial issue the timing of the incident was very much a secondary issue. Mr Panapa’s response, of course, was one of complete denial.

[22]   For these reasons we are satisfied that the amendment was a proper exercise of discretion and occasioned no risk of a miscarriage of justice.

A misdirection as to count one?

[23]   Mr Hogan’s second argument was that the trial Judge failed to adequately direct the jury with reference to count one that penetration of the complainant’s anus had to be by the appellant’s penis. The indictment simply charged sexual violation by unlawful sexual connection, but a particular which accompanied and explained the count specified that the Crown alleged the appellant “penetrated the anus of S with his penis”. This argument was presented with particular reference to the first of two questions asked by the jury during its retirement.

[24]   It is true that both in a hand-out supplied to the jury and in oral directions the trial Judge did not expressly mention that it was penetration of the anus by the appellant’s penis which must be established beyond reasonable doubt. Seizing on this Mr Hogan argued that the jury may have based its verdict on a digital penetration, which was not what was charged. Our reading of the record of the trial suggested a misunderstanding of this kind was highly unlikely, since the impression conveyed was it was common ground throughout the trial that the only issue in relation to count one was whether an act of anal penetration by penis had occurred.

In short there was no evidence to suggest anything else. This also presented as the obvious explanation for the terms of the summing-up. Although the Judge did not refer explicitly to penile penetration, both his hand-out and his oral directions assumed that focus.

[25]   This ground of appeal was rather lost when during the course of the appeal hearing the first of the jury’s questions (upon which Mr Hogan had until then relied in argument) was examined. The question was:

Does  touching  the  anus  with  the  penis constitute penetration?   Can you provide any further clarification on the word “penetration”?

(emphasis added)

In answer to this question the Judge said:

Touching itself is not penetration, there must be some actual penetration of the anus, no matter how slight.

It is beyond argument that the jury appreciated the need for penile penetration.  There is simply no scope for confusion on that score.

[26]This argument also fails.

An improper Papadopoulos direction?

[27]The jury retired during the mid morning of 19 November 2003. At about

1.50 pm, when the jury had been out for less than four hours, they returned and the Judge answered a further question, which Mr Hogan indicated, was not shown to counsel before the Judge dealt with it. His response to the question was to give a so- called Papadopoulos direction in the terms prescribed in R v Accused (CA78/88) [1988] 2 NZLR 46 (CA). Such direction was entirely conventional, save that the Judge noted he had a power to discharge the jury, “but not yet”.

[28]   Mr Hogan argued that it was premature to administer the model direction at this early stage of the jury’s deliberations and that, thereby, undue pressure was exerted. This argument likewise faltered once the terms of the question from  the  jury were ascertained from the trial record. The question was as follows:

We have a jury sitting 11 v 1. The 1 cannot make a decision based on the lack of information provided in the trial. What options do we have?

In our view in light of this question there can be no suggestion it was inappropriate for the trial Judge to then give a Papadopoulos direction.

[29]   Albeit the jury had only been in retirement for a few hours, the fact remained there was concern as to the potential for development of a deadlock. In these circumstances it was entirely within the discretion of the Judge to proceed as he did.

[30]This ground also fails.

Result

[31]The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington