R v Paterson CA10/06

[2006] NZCA 447

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA10/06

THE QUEEN

v

BRUCE JASON PATERSON

Hearing:         10 August 2006

Court:            Ellen France, Gendall and Heath JJ Counsel: C J Tennet for Appellant

P K Hamlin for the Crown

Judgment:      31 August 2006          at 2.15 pm

JUDGMENT OF THE COURT

A        Leave to appeal out of time is granted.

BThe appeal is allowed to the extent the conviction of sexual violation by object is quashed.   The sentence of six years imprisonment on the two sexual violation charges is set aside.   We substitute a sentence of five years imprisonment on the charge of sexual violation by digital penetration.   All other sentences remain as fixed by the District Court

Judge.

R V PATERSON CA CA10/06  31 August 2006

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]      The appellant was found guilty after trial of one count of sexual violation by digital penetration and one count of sexual violation by object, a bottle.  He pleaded guilty to  six charges of male assaults female.   All of the charges relate to  one complainant.

[2]      The appellant appeals against his convictions in relation to the two sexual violation charges.  The issue on the appeal is whether there has been a miscarriage of justice.   In particular, in relation to both sexual violation charges, the question is whether new evidence from the complainant gives rise to a miscarriage or a risk of that.

[3]      As we have decided  that  the  conviction  relating  to  the  bottle  should  be quashed, it is also necessary for us to consider the appellant’s sentence.

Factual background

[4]      The appellant and the complainant have been in a relationship for some time, although they were not living together when this offending occurred.  The incidents giving rise to the two sexual violation charges arose in the context of the appellant’s allegations that the complainant had been “sleeping around”.   In the two to three days before these incidents, the appellant had assaulted the complainant on a number of occasions.  This gave rise to the assault charges.

[5]      The complainant’s evidence was that over the course of their relationship, when the appellant got drunk he would accuse her of sleeping around.  This would lead on to him “checking her” by inserting his fingers into her vagina, in an attempt to determine if she had had sexual intercourse.

[6]      At trial the complainant said that on this occasion she did not consent to the appellant checking her out by digital penetration, nor did she consent to penetration by a bottle.   She described starting to undo her trousers to enable the appellant to check her out because he was trying to force the trousers off and in the process hurting her.  She told him not to do it but he continued and forced off her underwear. The complainant said he “shoved” his fingers up, that it was painful, and that he squeezed her clitoris so that it later bled.

[7]      After the digital penetration, the complainant said she felt something cold and sore in her vagina.  She surmised that the appellant had “stuck his bottle up her”.

[8]      Other evidence came from the doctor who had examined the complainant after these incidents.   The doctor said that what she saw was consistent with the squeezing which the complainant had described.  The doctor identified some trauma to the vagina and said that what she saw was consistent with the insertion of an object  although that  could  include  a  finger.    The  only  other  evidence  we  need mention came from an ESR scientist.  The scientist confirmed that there was female DNA on the bottle but could not tell if this originated from vaginal cells or from skin cells through handling the bottle.

[9]      After trial the complainant prepared an affidavit in which she says that she did let the appellant insert his fingers but did not consent to the use of the bottle. The complainant was cross-examined on this affidavit in this Court.   She said she had been angry with the appellant because he had not kept his promise to stop hitting her.

[10]     In the course of cross-examination, the complainant also reiterated that she had let the appellant check her by using his fingers.  She said, however, that she did not have any choice in the matter “because he wasn’t going to believe [her] word for it” when she said she had not slept with someone else.

[11]     Finally, she said in cross-examination that no bottle was inserted, rather, what she felt was the appellant’s cold fingers.

Grounds of appeal

[12]     There are two grounds of appeal:

(a)      The verdict  on the count  relating  to  sexual violation by object  is unreasonable or cannot be supported having regard to the evidence. In particular, it is said that evidence of penetration by a bottle was equivocal.  If there was penetration it may have been accidental.

(b)      The complainant consented or the appellant held a reasonable belief in consent in respect of the count of sexual violation by digital penetration.

Sexual violation by object – the bottle

[13]     In written submissions,  Mr  Tennet  for the appellant  focused  on what  he described as the equivocal nature of the evidence of penetration by a bottle.   The complainant had only said it felt like a bottle and that, in contrast to the fingers, it felt cold.

[14]     At the hearing of the appeal, the complainant was clear in her evidence that there  was  no  bottle.    In  light  of that,  Mr  Hamlin  for  the  Crown  accepted  the conviction for sexual violation by object could not stand.  The best he could contend for was that what was now described as penetration by cold fingers amounted to a second, separate, incident of sexual violation by digital penetration.

[15]     We do not accept that this incident can be regarded as separate, so as to comprise a second charge.  At its highest, the evidence to support this at trial was when  the  complainant  was  asked  “after  [he]  put  his  fingers  inside  you  what happened after that”.  She replied:  “I felt whatever it was, but it felt like he stuck his bottle up me.  I don’t know whether he did or not, …”  The complainant said she felt the cold feeling for “maybe five seconds”.

[16]     Given what she now says, we cannot be sure the outcome at trial on this charge would have been the same.   It is artificial now to try to compartmentalise what could plainly have been one incident of digital penetration into two separate incidents.   Further, as Mr Tennet submitted, the charge involving the object was there to differentiate the bottle incident from the other.  If there was no bottle, there is in fact no feature to distinguish the two.

[17]     For these reasons, the conviction relating  to  the bottle  must  be quashed. Mr Hamlin accepted that if this conviction was quashed, the Court would have to consider the implications of that for the sentence.  We come back to that.

Sexual violation – digital penetration

[18]     The appellant’s case is put on the basis the complainant has recanted her evidence given at trial.  The appellant says the new evidence shows either there was consent or that the appellant had a reasonable belief in consent.

[19]     The  position  in  New  Zealand   on  recanting   witnesses   is   set   out   in R v Barr (Alistair) [1973] 2 NZLR 95 at 98 (CA). This Court in that case adopted the approach of the English Court of Criminal Appeal in R   v   Flower [1966] 1 QB 146. In Flower at 150, it was said:

If the witness’s new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at  the trial.    Witnesses  may  have second  thoughts  for  a variety of different reasons. … others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth.  It is the witness’s state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at that time. … there is no general requirement for a new trial merely because the witness’s account in this court differs from that given in the court below.  So much depends in every case upon the reason, if any, given by the witness for having changed his or her testimony.

[20]     This Court at 98 also adopted a further passage from Flower (at 149):

Having heard the fresh evidence and considered the reliability of the witness, this court may take one of three views with regard to it.   First, if satisfied that the fresh evidence is true and that it is conclusive of the appeal, the court can, and no doubt ordinarily would, quash the conviction.  Alternatively, if

not satisfied that the evidence is conclusive, the court may order a new trial so that a jury can consider the fresh evidence alongside that given at the original trial.  The second possibility is that the court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the court would no doubt be inclined to order a new trial so that that evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course.  Then there is a third possibility, namely, that this court having heard the evidence, positively disbelieves it and is satisfied that the witness is not speaking the truth.   In that event, and speaking generally again, no new trial is called for because the fresh evidence is treated as worthless, and the court will then proceed to deal with the appeal as though the fresh evidence had not been tendered.

[21]     The complainant in her affidavit and in cross-examination before us no doubt wanted to do her best by the appellant whom she continues to visit in prison.   We accept though that  her  evidence was  mostly truthful.    The  issue  is whether  the position as it was a trial has really changed in light of this evidence.

[22]     We  do  not  consider  the  position  has  changed  to  any  significant  degree. While the complainant says she consented, plainly, in law what she did was not consent.  Objectively,  her  conduct  was  submission  to  a  man  she  described  as “clumsy” drunk in the context of a two to three day period in which he had assaulted her.  She felt she had no choice in the matter and submitted to what occurred.

[23]     The only issue remaining is whether there was a basis for reasonable belief in consent.  Again, there has been no significant change to matters as they were before the jury.  The nature of the relationship between the appellant and the complainant was a matter before the jury.  The jury were aware of his guilty pleas to the assaults. Further,  in  describing  the  defence  case  in  summing  up  the  Judge  recorded Mr Tennet’s  observation  that  the  couple  had  a  “strange”  relationship  “with  this concept of the [appellant] checking the complainant …”.   The defence also put in evidence letters the complainant had written to the appellant in which she said she was angry with him because of the hurt he had caused but still loved him.  Finally, in re-examination, the complainant was asked about a telephone call she had made to Mr Tennet before the trial.  In answer to questions about this, she said she had rung because she was “having doubts about testifying” and she “didn’t want to do this … because [she was] still in love” with the appellant.

[24]     We do  not  consider there is any risk of a miscarriage in relation to this conviction.

Sentence

[25]     Both counsel accept that if the conviction relating to the bottle was quashed, we should reconstitute as High Court judges in order to consider the appropriate sentence.  Mr Hamlin also accepted a lesser sentence would then be warranted.  He was content to leave the re-adjustment to this Court.

[26]     Judge Rollo, who also presided at trial, in sentencing proceeded on the basis the use of the bottle increased the seriousness of the offending.  It follows that some reduction in sentence is necessary now that conviction has been quashed.

[27]     In determining the ultimate sentence, the other aggravating features identified by the sentencing Judge remain.  These were a recent earlier conviction for assault on the complainant (which occurred one week before this offending); the violation of a domestic protection order in place in relation to the complainant; the extent of harm and abuse of trust.  The Judge did place some emphasis on the trial evidence that the appellant had twisted the complainant’s clitoris.  The complainant now says her bleeding was the onset  of her  period.   However, there was no  doubt  some roughness which was painful for the complainant.

[28]     The Judge took a starting point of six and a half years imprisonment.   He reached that by a combination of around four and a half to five years for the two acts of sexual violation and around 18 months to two years for the combination of six acts of male assaults female.  Six months discount was given for the late guilty pleas on the assault charges.  The end result was a sentence of six years imprisonment on the two  charges  of sexual  violation  and  18  months  (concurrent)  on  the  assault charges.

[29]     We consider a reduction of one year  from the six year  term reflects the appellant’s reduced culpability.  The bottle incident was appropriately treated as an

aggravating feature.  There need be no change to the 18 month term imposed on a concurrent basis for the assault charge.

Leave to appeal out of time

[30]     The appeal is out of time.

[31]     The reason for lateness is not very clear but appears to relate to the fact there was an appeal against sentence by the Solicitor-General.   In any event, given the merits, leave to appeal out of time should be granted.  There is no objection to that course by the Crown.

Result

[32]     Leave to appeal out of time is granted.  The appeal is allowed to the extent the conviction of sexual violation by object is quashed.   The sentence of six years imprisonment on the two sexual violation charges is set  aside.   We substitute a sentence of five years imprisonment on the charge of sexual violation by digital penetration.  All other sentences remain as fixed by the District Court Judge.

Solicitors:

Crown Law Office, Wellington