R v Parkinson Ca81/00
[2000] NZCA 427
•25 May 2000
| Publication of name or identifying particulars of complainant prohibited by s 139, Criminal Justice Act 1985 |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA81/00 |
THE QUEEN
V
AUSTIN DUDLEY PARKINSON
| Hearing: | 22 May 2000 |
| Coram: | Thomas J Anderson J Panckhurst J |
| Appearances: | S W Hughes for Appellant J C Pike for Crown |
| Judgment: | 25 May 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
Nature of the Appeal
On 16 December 1999 the appellant was convicted after trial before a Judge and jury of sexual offences against a young girl who was a frequent visitor to the appellant’s farm. The indictment alleged:-
(1)Sexual violation by unlawful sexual connection (digital penetration of the vagina).
(2)Attempted sexual violation by rape.
(3)Sexual violation by rape.
(4)Sexual intercourse over a period of some 10 months with a girl aged 16 years living with the appellant as a member of his family and under his care and protection (Crimes Act 1961, s 131(1)(b)).
On 2 March 2000 the appellant was sentenced to five years imprisonment for the rape and sexual intercourse contrary to s 131(1)(b) of the Crimes Act, and to two years imprisonment on the other two charges, all sentences being concurrent. The Judge then indicated an intention to consider financial reparation but required more financial information about the appellant. The issue was reserved to enable counsel to make written submissions.
Counsel for the appellant subsequently filed a memorandum to which the Crown responded by its own memorandum dated 17 April 2000. Annexed to the Crown’s memorandum was a letter from the complainant to the Judge seeking reparation and advancing medical reasons in support.
On 19 April the Judge issued a “memorandum” which discusses the issue of reparation and refers to the note from the complainant. The memorandum concludes:-
I therefore fix by way of reparation pursuant to s 22 of the Criminal Justice Act 1985 the sum of $5000 to be paid to the complainant named in the indictment.
The appellant now appeals against conviction on the grounds of misdirection by the trial Judge. He also appeals against the imposition of reparation on grounds which relate to the process of its imposition.
Evidence at trial
In 1988 the appellant was living with his wife and children on a farm. He became acquainted with the complainant’s parents through a calf leasing transaction. The appellant and his wife would often have young people visiting their farm and arrangements were made for the complainant to stay on the farm from time to time. She was only 15 years old when the visits began. Her own home life was difficult because of domestic tension related to her father’s deafness and his drinking habits. The complainant was by all accounts shy and naïve. She responded trustingly to the appellant’s attentions to her. He appeared to take an interest in her as a person and often expressed affection by hugging her. The appellant’s wife also treated her in a kindly way and the girl came to regard the middle aged farming couple as foster parents.
In July 1988 the complainant turned 16. Within a few weeks she was visiting the farm for the August school holidays. The appellant began to question her about her sexual experience. He asked her if she had ever had a boyfriend and whether she was a virgin. She said she was. He told her that if she would like a goodnight kiss from him she was to leave her bedroom door open, and in her naivety she thought this indicated something like paternal affection and went to bed that night leaving the door ajar. The appellant went into her room when his wife was asleep and kissed the complainant on the lips. In evidence the complainant described her response in this way:-
… I knew straight away that the kiss was wrong but I just froze. I was scared and then he got down on his knees and he put his hand under the sheet in the blankets. I felt his hand on my leg and I told him to stop, don’t do it. I told him that I would tell Mrs P and I screamed but no sound came out because I was scared stiff. He said don’t tell her as you’ll cause our family to break up … From there his hand went up to my virgin (sic) and again I said stop, don’t do it, but he didn’t listen. He started penetrating me with his finger into my vagina and his other hand was on my breast over the top of my nightie. I told him I wanted to stay a virgin until I got married but he said you are very tight and if you don’t have sex with me you will get badly hurt if you have sex with somebody else … He just kept penetrating … Again I said stop, don’t do it, and then he climbed on and I said don’t do it, stop, and he just started penetrating and then he just put his penis in. But I was too tight and he couldn’t get it all the way in. And he said he will come back tomorrow night … He just left and I just cried. I wiped my lips and then I just wanted to go home but he said if I told anyone that I would cause his family to break up and then I wanted to have a shower but I thought he would hear me so I didn’t do anything. I just cried, just sleep.
The complainant was then asked whether he came back later and she replied:-
He said he would come back the next night and he did. He came in and the same thing happened. This time he penetrated me with two fingers to loosen me up more and again I said stop, don’t do it, and then he ejaculated that night … He had full sexual intercourse with me.
When asked how many times she asked him to stop on that second night the complainant said:-
Quite a lot.
She then explained that he once more told her not to tell his wife because it would cause the family to break up. The incidents of these two nights found the first three counts in the indictment.
Over the next 10 months, when the complainant was visiting the farm, the appellant regularly had sexual intercourse with her. This conduct is envisaged by Count 4. The complainant’s evidence was to the effect that this induced a sense of guilt which had a serious effect on her life, and it was not until 10 years later that she realised the criminal nature of the appellant’s conduct. She had not thought of such conduct as rape because she thought a rapist was a person who used violence, and although she did not want sexual intercourse the appellant had not been violent towards her. Nevertheless she carried a burden of guilt over many years and had not disclosed the conduct out of concern for the appellant’s marriage and his wife.
The appellant gave a videotaped statement in which he admitted the sexual activity but maintained that the complainant had consented. He said that she had pulled back the bed clothes to let him in bed on the first occasion and the second, that there was cuddling and kissing and he was getting the come-on. He agreed that her saying she wanted to be a virgin when she got married might indicate that she did not want sexual intercourse, but said that her actions were contrary to what she was saying. He said that he never forced himself on to her except when she was a virgin and the actual intercourse was taking place for the first time but then she said stop too late because he had actually entered her.
The complainant’s mother was called to give evidence about the complainant’s date of birth, meeting with the appellant and his wife, making arrangements about school holidays, and the almost father and daughter relationship that had existed between the appellant and the complainant. In cross-examination the mother was asked about how she learned of the relationship between her daughter and the appellant. The evidence about this was:-
The first you knew of the relationship was when [she] rang you from Australia in 1995?…. Yes.
And she told you then that [the appellant] had had sexual intercourse with her and that the relationship had existed during the time she was staying there, that’s correct?…. Yes.
So she didn’t complain to you in 1995 that she had been raped?…. No.
You took from that conversation that she had had an affair which she now regretted didn’t you?…. Yes.
The appellant did not give evidence but his counsel opened to the jury and submitted a brief of evidence which was read by consent. The witness statement was by a Detective Sergeant who stated that the previous day he had checked the Wanganui computer for any criminal convictions of the appellant and found none.
The appeal against conviction is concerned with the Judge’s summing-up in three principal respects. The appellant complains first about the Judge’s remarks concerning his not giving evidence before the jury. Next he takes issue with the way the summing-up dealt with the question of consent. The third principal ground concerns the way the Judge dealt with the disclosure by the complainant to her mother in 1995.
Election by Appellant not to give evidence
There was a conflict between the complainant’s evidence as to consent and the appellant’s videotaped explanation to the effect that the complainant’s conduct indicated consent and that when she said no it was too late. In directing the jury on the burden of proof the Judge emphasised the Crown’s responsibility throughout the trial and said there was no responsibility on the accused to prove his innocence and that he was not required to give evidence. The Judge later remarked that in the trial no evidence had been heard from the accused but that the deposition statement had been read to show that he had no criminal convictions. The Judge regarded that, generously, as evidence of good character relevant primarily to credibility “that is, whether or not you can believe his evidence.” The Judge then went on to remark:-
Of course in this trial as he has chosen not to give evidence, you are unable to assess whether or not he is truthful in what he claimed in the interview, that the complainant consented to his sexual acts except on that one occasion when he mentioned that she told him to stop but it was too late. So as he has not given evidence in this trial, the evidence called on his behalf that he has no criminal convictions does not help you very much in establishing whether or not he was truthful. You can also take into account that evidence as part of all of the evidence as being relevant to the question of whether it is likely that a person like the accused who has no previous convictions would have committed this offence.
The Judge then returned to the appellant’s election not to give evidence and in this context repeated that there was no responsibility on him at any time to prove his innocence and that he was entitled to require the Crown to prove the case. The Judge added:-
You have not had the benefit of hearing his account of events as he described them to the police officers tested in any respect by cross-examination as you watched [the complainant’s] evidence being tested … Where, as here, the sole issue in the first three counts is whether [the complainant] consented or not or whether the accused believed on reasonable grounds that she did consent, you may well have found it helpful to hear him give evidence and be cross-examined on that issue in the same way that [the complainant] was. After all, it is a matter of his word against hers when she says that often she told him to ‘stop and don’t do it”. But bear in mind he was not obliged to give evidence. In summary it may well have been helpful if he had done so, so you could have watched his evidence relating to consent, in particular, being tested.
The Judge then directed in relation to the appellant’s interview in these terms:-
Turning to the videotaped interview. That interview with the accused is not sworn evidence, it is not evidence as if he had come into Court sworn or promised to tell the truth, sat in the witness box and had been cross-examined. You have seen and heard him on the screen answering the questions put to him by the two Police Officers and that is an excellent way for you to assess his demeanour, the way in which he answered the questions and how he answered them and it is properly part of the material that you can take into account. The truthfulness, the accuracy and what weight you place on what he said during that videotaped interview is a matter for you to decide. You might put more weight on certain parts of that interview than on others; it is entirely a matter for you. But just bear in mind that it is not sworn evidence as if he had come into Court as [the complainant] did and given evidence in the witness box.
Counsel for the appellant submits that the effect of the observations about the failure to give evidence, taken together, amount to an unfair criticism of the appellant, implying that his failure to give evidence was improper and that his videotaped statement was valueless because it had not been tested by cross-examination. Counsel submitted that reference to the failure to give evidence should have been balanced by a direction, such as that given in R v Andrews [1992] 3 NZLR 62, that not giving evidence itself had no evidential value and proved nothing; that the jury must not assume that an accused is guilty because he has not gone into the witness box. Counsel also submitted that in comparing the nature of the complainant’s evidence and the unsworn and untested statement of the appellant, there was a risk that the jury would regard the appellant and the complainant as starting on an equal footing as to persuasiveness in derogation of the Crown’s burden of proof.
The response on behalf of the Crown was that in the circumstances of the case the Judge’s observations did not exceed the bounds of fairness. The defence evidence bearing, albeit marginally, on character justified a character direction pursuant to Falealili (1996) 14 CRNZ 157, and in such circumstances reference to the effect of good character on the assessment of the appellant’s credit in his videotaped statement was not unjustified. It was then a matter of putting the videotaped statement in some perspective for evaluation and the perspective included its unsworn and untested nature. The direction that the appellant was not obliged to give evidence displaced any real risk that the jury might infer guilt from the absence of sworn evidence, and the Judge directed the jury that they could take into account the demeanour of the appellant in the course of the video interview.
There may be cases where notwithstanding the discretion accorded by s 366 of the Crimes Act 1961 judicial comment, by reason of emphasis, repetition or tenor, may affect the fairness of the trial. We initially had some concern whether that stage had been reached in the present case. The unsworn and uncross-examined nature of the videotaped statement was emphasised by the Judge. Although those features were proper matters for the jury to bear in mind when evaluating it, it does not follow that because he did not give evidence the jury could not assess whether he was truthful in what he claimed. The Judge’s direction at that point might suggest otherwise. The limitations of the interview arise from its own nature and not because the appellant had elected not to give evidence. Ultimately, however, considering the summing-up as a whole, we do not think the emphasis given by the Judge unfairly depreciated the evidential value of the appellant’s statement. Nor, having regard to the direction that the appellant was not required to give evidence, which the Judge repeated, are we satisfied that there was any real risk in this case that the jury might take an inference of guilt from the exercise of the right not to testify.
The question of consent
In dealing with the Crown case on the matter of consent the Judge referred to the age difference between the appellant and the complainant and the improbability that a middle aged man might believe that a young, immature, innocent girl, younger than the man’s youngest child, would freely give her consent to an act she knew very little of. Counsel for the appellant submitted that the Judge’s treatment of this issue implied that the complainant was incapable of giving consent because of her naivety and that the appellant could not reasonably have believed that she was consenting because of the age difference. That submission incorrectly imputes to the Judge the argument of counsel for the Crown which the Judge was summarising.
Counsel further submitted that the summing-up was defective in failing to inform the jury that a consent reluctantly or tearfully given can nevertheless be consent. That general proposition is not a legal principle which the Judge must direct upon. It is an observation about human behaviour which may be pertinent in some cases of alleged rape. There was no suggestion by the appellant in this case that consent was extracted with reluctance or tears. His explanation was that the complainant was patently willing.
Counsel for the appellant further submits that, in effect, the Judge gave insufficient attention in summing-up to the behavioural pattern of the complainant during the period of which she later complained. It is to be recalled, however, that the counts of sexual violation and attempted sexual violation relate to two specific nights at the very commencement of the sexual exploitation of the complainant. The delay in disclosing what had happened was explained by the complainant’s evidence, if accepted, that she said nothing out of concern to preserve the appellant’s marriage. In this case, involving a naïve young girl under the care and influence of a much older man, the subsequent sexual activity casts little light on whether the complainant was generally suborned into such behaviour by an initial rape. It is understandable that the defence should have relied on the subsequent conduct but we find no unfairness or misdirection in the summing-up on that issue. The second main ground is also unpersuasive.
Recent Complaint
Counsel for the appellant submits that the jury should have been directed that the complainant’s mother’s evidence concerning the delayed disclosure was relevant to consistency. That submission assumes that the mother’s evidence was in the nature of recent complaint evidence and plainly it was not. No reference was made to the disclosure in the evidence-in-chief. The effect of cross-examination was to elicit evidence of a failure to complain of rape. There was no call for a recent complaint direction. There was no complaint and that was a matter which the defence could allude to. There was certainly no recency. We think, with respect, that the nature and significance of the answers in cross-examination have been over-estimated by counsel for the appellant.
None of the grounds and arguments on behalf of the appellant persuade us that there has been any misdirection nor that for any reason there has been a miscarriage of justice.
Reparation
Section 11 of the Criminal Justice Act 1985 requires a Court to consider imposing a sentence of reparation in every case, and subject to s 22 of the Act to impose such sentence unless it is satisfied that it would be clearly inappropriate to do so. Section 22 of that Act stipulates the procedures that may be followed for the purpose of imposing a sentence of reparation. In the present case counsel for the appellant submits that the Judge took into account the Crown’s memorandum, including the letter to the Judge from the complainant, without according the appellant the opportunity of replying. When reserving leave to file submissions the Judge had indicated that any memorandum on behalf of the Crown ought be confined to legal issues and issues of policy and principle. The annexure went beyond those limits. Counsel for the appellant informed this Court that as best she recalled she received the memorandum of the Crown and the Judge at about the same time. The letter was influential in the Judge’s decision to sentence the appellant to make reparation, remarking that although there was insufficient medical evidence to support comments made by the complainant in that letter about her physical condition, nevertheless the statements represented the complainant’s belief about her medical condition which she ascribed to the appellant’s actions when she was young. In the circumstances the appellant was not accorded an opportunity to respond, with the result that the process was unfair.
In addition there is cause for concern about the manner in which the sentence of reparation was imposed. Sections 11 and 22 of the Criminal Justice Act refer to reparation as a “sentence” and we think, with all respect to the Judge, that a sentence imposed at first instance should be pronounced in Court and not imposed by way of a written memorandum. Issues both of natural justice and public judicial process lead us to the view that the sentence of reparation should be set aside and the matter remitted to the sentencing Judge for re-determination according to the merits of the case, in open Court, when the appellant will have and have had the opportunity to be heard in relation to the Crown’s memorandum, including the letter addressed to the Judge from the complainant. Whether there should be reparation, and if so whether it should be more or less than $5000, will of course be at large in the further hearing.
For the above reasons the appeal against conviction is dismissed. The appeal against the sentence of reparation is allowed, that sentence is quashed and the matter is remitted to the trial Judge for re-consideration of the issue of reparation in Court.
Solicitors:
Govett Quilliam, New Plymouth, for Appellant
Crown Law Office, Wellington
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