R v Paul Ca409/05

[2006] NZCA 403

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 393/05

THE QUEEN

v

GRAHAM JOHN BELL

Hearing:         11 April 2006

Court:            Glazebrook, Williams and Ronald Young JJ Counsel: P E Dacre for Appellant

S C Holt for Crown

Judgment:      28 April 2006

JUDGMENT OF THE COURT

Appeal against conviction and sentence dismissed.

REASONS

(Given by Ronald Young J)

[1]      The appellant was found guilty after a jury trial on seven counts, two of sexual violation by unlawful sexual connection, two of indecent assault, two of an

indecent act and one count of attempted indecent act.

R V BELL CA CA 393/05  28 April 2006

[2]      The appellant appeals against his conviction submitting the Judge erred in failing to provide clear guidance on issues of credibility of the complainant given her inconsistent evidence on important matters and against his sentence of four and a half years imprisonment alleging it was manifestly excessive.

The facts

[3]      The appellant, the complainant and her mother and stepfather, lived as close neighbours near Turangi in 2003.  The complainant, who was then nine years of age, helped the appellant with cleaning his house for small amounts of money.   The Crown case was that when the complainant visited the appellant to do housekeeping he sexually assaulted her.   The sexual violations, both alleged on the same night, related to penetration of her genitalia with the appellant’s fingers and licking her genitalia.   The indecent assaults involved, on one  occasion,  rubbing her  vagina through her clothes and the other licking and sucking her breasts.   The charges relating to an indecent act involved photographing of the complainant.   On one occasion the appellant asked her to pose on the toilet with her pants down and on another had her lying down with her pants removed when he took a photograph of her exposed genitals.   The attempted indecent act  offending occurred  when  the appellant exposed his penis and asked the complainant to touch it which she refused.

Appeal against conviction

[4]      The sole ground of appeal against conviction was that the Judge failed to adequately direct the jury on the approach they should take relating to the credibility and reliability of the complainant as the crucial issue in the trial.  In particular the appellant says the complainant changed her evidence on two crucial areas; the time the sexual violations occurred and the number of occasions on which the appellant took photographs of her.  The appellant submitted these changes were such that the Judge should have given the jury a warning about the danger of relying upon her evidence.

[5]      Judge Harding in summing up said:

[18]     . . . There are no special rules to be applied when you consider the evidence of children.  As with any other witnesses, it is for you to decide using your collective common-sense, what you make of the credibility and the reliability of the child, of how much weight you give to the evidence.

[6]      And when summing up the Crown case he said:

[24]      The Crown accepts that it needs to do the proving and says to you the real issue is, did it happen.  We have talked about the particular counts and the Crown says to you, if you accept [C’s] evidence about these various things that she said happened, the charges are proved.  The Crown says to you, you should accept her evidence and that various things that might be criticised or commented on as she gave her evidence, do not make her unreliable.  The Crown says, the lack of structure in her interview does not make it unreliable.  That is just a young child talking about things.  A bit of confusion at times and a bit of contradictoryness does not make it untruthful, the Crown says.  The Crown says that if you use your common sense a child might be clear about what has happened, but much less clear about surrounding things like dates or times or things like that.   That does not make it unreliable.

[25]      The Crown says, bear in mind that she seems perhaps a bit behind for her age, and take that into account when you consider how she gave her evidence.  The Crown says that you should really expect some differences between what she said at her interview and what she said in response, in particular to Mr Dacre’s cross-examination, but that does not mean that she is not truthful.  The Crown says, you should expect her to remember the core events, not all the surrounding details.  The Crown reminds you that even on the accused’s evidence, there were numerous occasions when and she were cuddling on the couch together (sic).

[7]      In relation to the defence case the Judge said:

[29]      Mr  Dacre  for  the  Defence  predictably  of  course  has  a  different position.  In response to the Crown’s submissions, he points out that Mr Bell volunteered to speak to the Police and he gave what started off as a couple of hours or two and a half hour interview, that he was not evasive.  He said that if these sorts of allegations are made, the most that can be said is, no it did not happen repeatedly and that is exactly what he did.

[30]      Mr Dacre says to you, if [C] knows what happened, she was not clear about telling you.  She often said, I don’t know, and he says to you, that her evidence at best is unreliable.  He agrees with Ms Gordon that the issue for you is whether you are satisfied that  [C] was telling the truth about these events.  He says, well there were opportunities weren’t there, in cross- examination to check the accuracy of what she said.  Not a lot of them but there were some and when it was challenged, she was found wanting and he gave you some examples.   Things that had happened at night, no – well under cross-examination they really happened during the day.  She changed her mind.

[31]      Similarly he pointed out that initially there were only two photos and then no there were more than ten, lots of photos.  He does not invite you to

speculate about why those changes might be apparent, but he does say to you that given that those changes of position are there, her reliability is suspect.

[32]      Mr Dacre points out to you, that it seems clear on the evidence of the complainant and her mother and the accused, that there were only two occasions that she stayed overnight.   One was an occasion when she was unwell and the other when Mr Bell’s friend Shelly was there.   There is nothing untoward suggested to have occurred on either of those visits.  He says, that it is clear that on a number of occasions he[r] mother brought her around, but her mother was coming backwards and forwards during the day. When you use your common sense you will conclude that given the size of the house which was pretty small, there would of been a very large risk to Mr Bell behaving in the way that  [C] said, when her mum could be ducking in at any time.   There were no photos of any indecent sort found on the computer or at the house.

[33]      Mr Dacre points out that the accused straightforwardly simply says to you that he is a manufacturing jeweler with a real interest in fishing.  He was there for that purpose.  He made friends with this girl and her mother with no suggestion of any problems.  He was perfectly frank to the Police. He has clearly and repeatedly denied the allegations and he has not been demonstrated to be unreliable in any way, unlike the complainant.  Mr Dacre says, you have only got really two core pieces of evidence.  You have got his evidence and hers.  Hers he says to you, you should conclude as unreliable. He says to you, look at her demeanour, which seemed inappropriate for the subject matter.  He accepts the proposition that we have all been putting to you that the detail of the various counts but the issue is, whether it happened.

[8]      The  first  such  crucial  evidence  related  to  when  the  sexual  violation  by unlawful sexual connection charges had occurred.  The complainant said in her video interview that both sexual violations occurred on the same occasion on a Saturday night.   The appellant says the complainant, in cross-examination, changed her evidence, in a significant way, regarding the time of these events.

[9]      In cross-examination initially, the complainant confirmed the sexual violation had occurred at night.   In cross-examination there are several relevant passages dealing with this issue; for example:

And just so I’m clear, but, Graham Bell is going to say that first of all, there was only twice that you ever stayed at his place at night?  Yeah.

And you’ve agreed with that haven’t you?  Yeah.

And that the first time was when you were sick and you had to have some medicine?  Yep.

And the second time, forgetting her name, was when his friend Shelly was staying and Shelly also had a female friend with her?  Yep.

And  I  think  you’ve  agreed  that  nothing  happened  on  either  of  those occasions?  No.

I think you’ve also agreed and if I – that you didn’t stay any other nights except those two occasions?  Yep.

He’s also going to be saying he never ever licked or placed his tongue near your private parts?  Yep that was during the day.

When you first remember it was during the day?  Yep.

When did you first remember it was during the day?  Um, ah, now.

Is it just now that I’ve – I’ve shown you haven’t I that it couldn’t have happened at night could it?  Yep.

So you’re now changing your mind to say it happened during the day?  Yep, it happened during the day.

Now you’ve told us that at some stage he licked his finger and put his finger in your private parts? Yep that was the same day.

The  same  day  –  and  is  that  –  when  you  were  speaking  on  the  video interview?  Yep.

Did you say that happened at night?  I can’t remember.

When did you first remember that it happened during the day?  Um, earlier on.

Well what do you mean by earlier on, did you first remember the day or a few weeks ago, or - ?  Today.

Was that before I started asking you questions or after I started asking you questions?  Um before.

Did you tell anybody about the fact that you decided it was during the day? Yep.

[10]     The second category of evidence which the appellant says the complainant crucially changed related to the taking of photographs.  The complainant said during the course of her videotape interview that the appellant had taken photographs of her on  one  or  two  occasions.    During  cross-examination  there  were  a  number  of questions and answers regarding the photographs; for example:

Now how many different days did he take photographs on?   Every day I

went to the work – um to work.

And how many different times did he take photographs of you in the toilet? Um, one – um one day.

And how times did he take you when you were half – or getting dressed on in the lounge?  Once.

What are these other photographs about?  Um, those were in the lounge

Now what are of these other photographs about?   Um, those were in the lounge and the – and there was one in the room.

And   what   sort   of   photographs   were   they.      What   was   he   taking, photographing your head or what was he taking a photograph of?  My thing, my body.

And were you fully dressed?  No.

You’re saying, how many days do you say these days were taken on?  Every day it went to work.

Well was that 10 times, 20 times?  10 times. Could it be more than 10 times?  Yeah.

Well you didn’t tell Dianne Nielson about these did you?  No.

When did you first remember that he took photographs on 10 or 20 different times?   Um, Saturday.

Which Saturday?  This Saturday.

That – well today is Monday, do you agree with that?  Yeah. So not Sunday, but Saturday, two days ago?  Yeah.

So two days ago was the first time you remembered that he had taken photographs of you 20 times half dressed or partially dressed?  Yeah.

THE COURT: She never agreed with that Mr Dacre.

Sorry well I’ll go back to that.  When he took these photographs were you partially dressed, or were you half dressed or?  Half dressed.

Okay, now did you have clothes on your top half?  Yeah. Did you have clothes on your bottom half?  No.

And did he, Graham Bell take photographs of you?  Yeah. And would you – was it over ten times?  Yeah.

And was it during the day or night?  Day. And where was your mother?  At home.

No I think you’ve told us about two occasions in the video, do you agree with that?  Yeah.

Is your memory better on Saturday than it was at the time of the video? Yeah.

Has your memory improved since you went to the video?  Um, no.

Well how is it that you couldn’t remember the other nine times when you went to the video, the other eight times?   I don’t know.

What happened on Saturday that made you suddenly remember all of this? Um, my mum keeps reminding me about this day.

What did your mum say to you on Saturday about giving evidence?  That I

have to tell the truth, and don’t lie. Did she say anything else? No.

And did that suddenly make you remember about the other eight times did it? Yeah.

And did you ever see any of these photographs?  Um, no.

[11]   The appellant submitted, firstly, that these changes in evidence by the complainant were crucial to her  credibility and/or reliability as a witness.   The appellant says that it was the function of the Judge in such circumstances to warn the jury these changes in her evidence were such that it would be dangerous to rely upon her evidence.

[12]     In  the  alternative,  counsel  submitted  the  Judge  himself  should  have highlighted  the  inconsistent  evidence  and  advised  the  jury  of  its  relevance  in assessing the complainant’s credibility and/or reliability rather than simply repeating the submissions of Crown and defence.

[13]     As to the first of these submissions, we are satisfied that the Judge was under no obligation in law to give the jury any such direction on the facts of this case  This was not a situation where for example, a witness, called to establish an element of the  charge,  had  given  contradictory  evidence  relating  to  that  element.    In  that situation the Judge would be obliged to tell the jury that if they were not satisfied the witness’s evidence on this crucial point was credible and reliable then the Crown could not prove their case and the accused would be entitled to an acquittal (see for example R v Kiriona & Ors (CA 343/96, CA 321/96, CA 343/96, 10 April 1997)). Here, the evidence did not go directly to an element of the charge.   In those circumstances as we have said, we see no obligation on the Judge in law to provide

any specific warning in relation to this evidence and her credibility and/or reliability as a witness.

[14]     As to the alternative submission, the Judge made it clear in his summary of the Crown and defence cases that the inconsistencies in the complainant’s evidence were a matter of significance for them to assess in reaching their verdict.   The appellant’s position on these inconsistencies was clearly spelt out as no doubt it had been in defence counsel's closing address.   While there may be cases where more assistance is required from the Judge this was a short trial where the issues for the jury were clear.  The appeal against conviction is therefore dismissed.

Appeal against sentence

[15]     The trial Judge in sentencing took as a starting point four years imprisonment on the sexual violation charges, added a year for the aggravating features which he identified as the age of the complainant, the effective position of trust the appellant was in, and premeditation and repetition.   He increased the sentence, therefore, to five years imprisonment.   He then identified matters in mitigation, including the absence of relevant previous convictions and earlier substantial good character and reduced the sentence by six months imposing a total sentence of four and a half years imprisonment.

[16]     The appellant submitted the four year starting point adequately covered all the aggravating features and no increase to this starting point was required.   The appellant says the deduction for mitigating factors should have been from this four year starting point.

[17]     The sentence there was well within the range available to the Judge.   The starting point was unexceptional (see R v P (CA 246/02, 17 December 2002). The two  most  serious  charges  were  offences  of  sexual  violation.    In  R  v  Tranter (CA 486/03, CA 36/04, 14 June 2004) this Court accepted a Crown submission that the range of two to five years for similar offending did not properly reflect the increase in the maximum penalty for sexual violation which had then recently occurred from 14 to 20 years.  We said:

The range of two – five years referred to in R v M should not be seen as limiting the options available to the sentencing Judge, and both the low point and the high point are conservative.   In the light of the increase in the maximum penalty to 20 years for sexual violation involving digital penetration, it would be only in rare cases that a two year starting point would be appropriate, and a starting point in excess of five years may well be appropriate in more serious cases.

[18]     In this case there were two offences of digital penetration during one night. In addition, there was other offending over a period of six months.  The increase of one year from the four year starting point was justified by this aspect.  In addition, as we  have  pointed  out,  there  was  a  breach  of  trust.     The  appellant  had  the responsibility for the child when she was at his home.  There is also the young age of the complainant given she was nine years of age at the time of the assault.

[19]     No  complaint  could  be  made  about  the  six  month  reduction  for  good character.  It could be considered generous given the multiple offending against the complainant.  The sentence of four and a half years imprisonment in our view was well within the range open to the Judge and could not be said to be manifestly excessive.

[20]     The appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington