R v Primrose CA499/05

[2006] NZCA 435

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

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT AND ANY PART OF THE PROCEEDING (EXCEPT THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA499/05

THE QUEEN

v

DERROL PRIMROSE

Hearing:         9 August 2006

Court:            Glazebrook, Rodney Hansen and Ronald Young JJ Counsel: P L Borich for Appellant

M A Corlett for Crown

Judgment:      9 August 2006

Reasons:        6 September 2006

JUDGMENT OF THE COURT

A        On 9 August 2006 the appeal was allowed and a retrial ordered.

R V PRIMROSE CA CA499/05  9 August 2006

BOrder prohibiting publication of the reasons for judgment and any part of the proceedings (except the result) in news media or on internet or other  publicly   accessible   database   until  final  disposition   of   trial.

Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1]      The appellant was convicted of one count of sexual violation following trial in the District Court at Manukau before Judge A S Epati and a jury.  The jury was not required to consider an alternative charge of indecent assault.  The appellant was acquitted of charges of attempting to induce the same complainant to do an indecent act upon him and indecently assaulting her in separate incidents.  He was sentenced to  three  and  a  half  years  imprisonment.    He  appealed  against  conviction  and sentence.

[2]      After hearing argument, we decided the appeal against conviction should be allowed and a retrial ordered.   As the appellant had begun his sentence of imprisonment, we gave our decision immediately.  Our reasons follow.

[3]      The appeal against conviction was based on claimed errors in the Judge’s summing up.   After preparation of the Case on Appeal, counsel for the appellant expressed  concern  about  the  accuracy  of  the  transcript  of  the  summing  up. Hammond J  made  orders  pursuant  to  s  389(a) of the  Crimes  Act  1961  for  the preparation of a fresh transcript of the summing up from the appropriate hard drive and to make copies (on CD) of the summing up, as it was recorded, available to counsel and the Court.

[4]      The fresh transcript was used for the purpose of the appeal.

The evidence

[5]      The complainant  is now 21.   She said in evidence that  she was sexually violated by the appellant when she was ten or eleven.  The appellant had formed a relationship with her mother.  The complainant said at one stage she and her mother lived in a small central North Island town and the appellant moved to Auckland to find  work.    He  lived  in  a  caravan  at  a  property  owned  by  his  mother.    The complainant said she stayed with him there for most of a two-week mid-year school holiday.  They both slept in the caravan, sharing a bed.

[6]      The complainant said that during the time she stayed with the appellant he would pull her pyjama pants down and tell her to open her legs.  He would touch her clitoris and tell her that people got pleasure from it.   Sometimes he would put his finger into her vagina and move it around.   He told her of a particularly sensitive place (which she said she now knows as the G-spot).  She said she sometimes asked him to stop and sometimes he did.  On other occasions she was too scared to ask him to stop.

[7]      The appellant did not give evidence.   He had given a video  interview  in which he admitted touching the complainant’s genitalia when she stayed with him in the caravan.   He said they had got into a conversation about the female body in which there was reference to the clitoris.  He suggested she remove her clothing so he could show her what her clitoris was.  He touched her genitalia in the vicinity of the clitoris but was adamant he did not penetrate her labia.  He said this occurred on one occasion only.  He denied inserting his finger into her vagina.

Defence at trial

[8]      The defence put forward at trial to the charge of sexual violation was that the Crown had failed to prove beyond reasonable doubt that there had been penetration of the complainant’s genitalia by the finger of the appellant.  If there had been such

penetration, it was contended that it was for non-sexual purposes, in response to a request by the complainant to have the appellant identify her clitoris.  In relation to that  limb  of the defence,  it  was argued the Crown had  failed  to  prove  beyond reasonable doubt an absence of consent by the complainant and/or the absence of a reasonably based belief by the appellant that the complainant was consenting.

Grounds of appeal

[9]      In support of the appeal Mr Borich submitted that the Judge failed to give adequate directions to the jury of the precise nature of the defence and that he gave positively misleading directions as to the onus of proof.

[10] The first part of the summing up with which Mr Borich took issue is para [4]. After commenting on the concepts of credibility and reliability and how, in general terms, the evidence of witnesses should be approached, the Judge said:

… There is no simple one step formula I can give you to apply to the process of assessing the evidence.  I can remind you of the two-way process that I have explained to you in the beginning.  It is a matter of the context of what they have said, as well as the way and the demeanour of the witnesses.  In this case it is important because as put directly to you by both counsel, either you believe the complainant or you believe the accused.

(We have emphasised the passage particularly relied on by the appellant and will continue to do so when quoting from the summing up.)

[11]     Mr Borich submitted that the case had not been put by counsel to the jury on the basis that either the complainant or the accused should be believed and that the last sentence of para [4], in any event, misrepresented the process which the jury was required to undertake.

[12]     The Judge went on to deal with the indictment.  He gave jurors a note setting out the elements of each charge which the Crown was required to prove.   As it related to the charge of sexual violation, the note read:

SEXUAL VIOLATION – Count 1

Crown must prove:

1.        Penetration of complainant’s genitalia by the finger of the Accused

2.         The penetration was intentional

3.         It occurred without the complainant’s freely given consent

4.It occurred without the Accused believing on reasonable grounds that the complainant consented

NB:  On Count 1, if ‘Guilty’, ignore Count 2; if ‘Not Guilty’, then consider

Count 2.

[13]     After commenting on the first two elements of the charge of sexual violation, the Judge went on to deal with the issue of consent at paras [20] and [21].  He said:

[20]      Third, that the sexual connection was done without the consent of the complainant.  That requires me to explain to you what ‘consent’ means. Consent in this context means a consent given by a person who is able to understand the significance of what is to happen, and who is able to make an informed and rational decision as to whether to consent or not.   This is an important statement here because you are required to take into account all of the circumstances that you find would assist you in considering whether there was consent.  That includes what the Defence says, if you believe that, that the complainant asked the question and you should also weigh that against what the Crown has asked you, that you consider whether a 10, 11, whatever age you find at the time, would be able to consent to her being touched.

[21]      Any consent must be a freely given one.  The fact that a person does not protest or physically resist is not of itself to be taken as consent.  Consent may be conveyed by words, by conduct, or by a combination of both.  You consider the surrounding circumstances and you consider whether or not within what I  have said to  you  about  consent,  that  you can  be satisfied  beyond  a  reasonable  doubt  that  there  is  or  there  was  no consent.  The relevant time of course for you to consider that, whether there was consent, was the time of the penetration, the time of the act.  You can take the surrounding circumstances either before or after the act where you find relevant, and take all of those circumstances, whether you can be satisfied beyond a reasonable doubt that there was  consent.    Or whether you are satisfied that the young complainant at the age you find her in, consented to her being touched.  (Emphasis added.)

[14]     Mr  Borich  submitted  that  the  emphasised  passages  in  both  paragraphs conveyed to the jury that it was required to consider whether there was consent at the time  of  penetration,  not  whether  there  was  an  absence  of  consent.     He  also complained that the final sentence in para [20] reinforced the erroneous direction in para [4] of the summing up suggesting the jury was required to choose between the competing accounts of the complainant and the appellant.

[15]     Mr  Borich  contended  that  the  misdirection  on  the  issue  of  consent  was repeated in para [26] of the summing up which dealt with the fourth element of sexual violation.  It concluded:

The true point is where – was there true consent, or a reasonably based belief in consent at the time the act took place.

[16]     Counsel submitted that the risk of the  jury perceiving that the  issue was simply whether to believe the complainant or the accused, was heightened by the following passage in para [43] of the summing up which dealt with Crown counsel’s address to the jury:

… And he said in total of the evidence you can come to the conclusion that someone, someone, is lying to you, and brought the issue simply down to the accused or the complainant.  He then says believe the complainant.  He listed things  and  submitted  to  you,  remember  her  demeanour  on  the  stand, remember her body language as she was telling you what she went through, and ask yourselves “is she lying?”

[17]     Finally, Mr Borich took issue with para [56] of the summing up which reads as follows:

Well I can direct you that if you are satisfied that there was no penetration within the  definition I  have  told  you,  then  your  verdict should be not guilty.  But furthermore, even if you find that there was some penetration, that  there is  the matter  of consent  and that  the touching or penetration was because the accused was answering a question and that  [the complainant] consented.  Well, if you are satisfied that that – that there was consent within the definition I  have said to you, of course your verdict should be not guilty.   But I should, as I have said to you, you consider the surrounding circumstances, the ages or the difference in, and the status of the difference.   In other words that the accused is her albeit step- father but in locus parentis power and that  [the complainant] was 10, 11, or whatever age.  Those are matters for you.  (Emphasis added.)

Both emphasised passages were said by Mr Borich to convey a subtle but important reversal of the onus of proof, the first in relation to penetration and the second in relation to the absence of consent and of a reasonably based belief in consent.

[18] Mr Borich submitted that taken together, the misdirections reinforced the initial direction to the jury in para [4] (at [10] above) of the summing up to believe either the complainant or the appellant and involved a reversal of the onus of proof

in relation to  the three critical elements of penetration,  absence  of consent  and absence of reasonably based belief in consent.

[19]     Further directions were made by the Judge following representations from counsel at the conclusion of the summing up.  Mr Corlett, who was also trial counsel for the Crown, invited the Judge to correct the impression which might have been left by the direction in para [4] that the jury could either believe the complainant or the accused.  He and Mr Borich agreed that it would be appropriate for the Judge to give the tripartite direction routinely given when an accused gives evidence.

[20]     The  Judge  agreed  to  the  suggestion,  recalled  the  jury  and  gave  further directions.  They included references to the evidence of a Detective Sergeant Love. He was the only witness called by the defence.   He gave evidence of allegations made orally to him by the complainant which were not the subject of charges and which she denied making when cross-examined.  The relevant section of the further directions is as follows:

[78]      The second aspect is also equally important and that is with regard to the evidence of Detective Sergeant Love.  The – you may recall that was the evidence called by the accused, by the Defence.  Now the way you consider that evidence is also with regard to what I may have said to you, that you either believe the accused, or you believe the complainant.  There is more to it than that.

[79]      When, as in this case, the Defence calls evidence then there are three scenarios and possibilities that you can arrive at.

[80]      The first is you might believe the evidence called by the defence. You might believe the accused.  If that is your – if you are satisfied, or if that is the way that you find the evidence, then of course that is the end of the matter.  You take that evidence and you consider that to be the case, and then you should find him not guilty on all the charges because that explains what had happened.  Scenario number one.

[81]      Scenario number two is this.  You might find you do not believe the evidence for the accused, and the evidence of Love.  Well if you are satisfied that that is not the case then you do not automatically find the accused guilty. What you do in that situation is you just put the evidence of the defence to one side.  You still have to be satisfied with the rest of the evidence put to you by the Crown, that the charges are substantiated beyond a reasonable doubt.  Okay?

[82]      And the third scenario is, you come to the conclusion that you really are not sure what happened.  Whether the evidence by the defence is correct or not, or you are satisfied or not.  If that is the case then your verdict must

be not guilty.  Why?  Because you have a reasonable doubt.  That is the way you  consider  the  evidence,  you  consider  from  the  Defence  and  by  the accused.

[21]     Mr Borich submitted that the further directions were inadequate to correct the errors in the main part of the summing up.  He said there could be no confidence that the jury adopted the correct test.  He said he agreed to the Crown’s suggestion of a tripartite direction as a means of correcting the direction to believe either the complainant  or  the  accused.    He  did  not  accept  that  the  further  direction  had achieved its purpose.

Crown’s response

[22]     Mr Corlett acknowledged that the directions in paras [21] and [56] of the summing up in particular would have at least given rise to some uncertainty as to the burden of proof.   However, he submitted that taken as a whole, the summing up would not have misled the jury.

[23]     Mr Corlett pointed out that the Judge’s directions in paras [21] and [56] were not specifically directed to the burden of proof but to the specific issues of consent and penetration.  He argued that in using the word “satisfied” in both paragraphs, the Judge did not say by whom the jury had to be satisfied; the burden was not placed explicitly on the defence.

[24]     Moreover, Mr Corlett  pointed to  passages  in the  summing  up  where  the burden of proof was correctly dealt with.  In para [5] the Judge gave the following direction:

I will come down to that some more in detail when I come to consider the evidence as put to you by both counsel, but for the meantime the most useful thing I could say to you about it is that at the end of the day what is required is the application of your robust common sense.   Working collectively I suggest as a team you should sift out the evidence you think you can rely upon.  At the end of that task you then ask yourselves this simple question. Are we satisfied applying our collective common sense to everything we have heard, that the Crown has proved guilt?  You ask that question because the onus is on the Crown.   As I have indicated there is no onus on the accused to prove his innocence.   There is no onus on him at all to prove anything.

[25]     In para [8] the Judge returned to the topic and said:

Now some important matters of law.  Most important of all in every criminal trial the onus of proving a charge rests on the Crown.  That onus rests on the Crown from the beginning of the trial until the end of it.  It does not shift. There is no onus on an accused person to prove that he is innocent, there is no requirement or expectation that an accused person should give evidence or even call other people as witnesses.  In this trial the accused has not given evidence.   He has called a witness but that does not add anything to the Crown case.   That is his right in law.   You consider all of the evidence, equally, when you come to consider your verdict.

[26]     In  para  [9]  the  Judge  repeated  that  “the  Crown  must  prove  all  of  the necessary elements of the charges beyond a reasonable doubt”.   And, Mr Corlett relied on the handout given to the jury which stated that the “Crown must prove” each of the elements.  The Judge then introduced his discussion of the four elements by saying:

To establish a charge of unlawful sexual connection the Crown must prove 4 elements.

Mr Corlett contended the directions which followed in this part of the summing up were unobjectionable apart from para [21] and the issue of consent.  He did not agree that the final sentence of para [26] was erroneous as it was directed to the timing of consent, not the burden of proof in relation to consent.  He submitted that, apart from paras [21] and [56], the trial Judge dealt with the burden of proof in a number of places and did so in an unobjectionable way.  He maintained that, read as a whole, the summing up was adequate.

Discussion

[27]     An issue as fundamental as the onus of proof obviously requires clear and unequivocal direction from a trial Judge.  The jury should be left in no doubt as to the way in which key issues should be determined.  The responsibility of the Crown must be clearly articulated.  As it is common ground that there were material errors in some parts of the summing up, the key issue is whether what was said in other parts was sufficient to nullify the risk of the jury being misled.

[28] The direction in para [4] (set out at [10] above) of the summing up casting the case as a simple contest between the credibility of the complainant and of the appellant was plainly wrong. That mischaracterisation was reinforced in para [43] (at [16] above). We are not persuaded that the impact of these comments was negated by the otherwise conventional general directions given on the onus of proof.

[29]   The tripartite direction given in response to counsel’s concerns was inappropriate and could only have caused further confusion in the minds of jurors. Sergeant Love’s evidence called for a direction as to the use which may properly be made of a prior inconsistent statement.   That was never given.   Nor was the jury directed as to the way in which the appellant’s video statement could be used.  These omissions were aggravated by incorporating references to that evidence into a direction intended for use when an accused is called to give evidence at trial.  The directions,  particularly  at  paras  [80]  and  [81]  (set  out  at  [20]  above)  treat  the accused’s  statement  as  if  it  were  evidence  given  viva  voce  while  the  Judge’s comments  in para  [81]  attribute  a  significance  to  Sergeant  Love’s  evidence  far beyond its relevance to the credibility of the complainant.

[30]     The directions given in relation to particular elements of the charge of sexual violation provided a further dimension to the risk of confusion.  On two occasions (at paras [21] and [56] of the summing up) jurors were told that they had to be satisfied the complainant  consented.   They were told  (in para  [56])  that  they  had  to  be satisfied there was no penetration.  There was at least the impression conveyed (at paras [26] and [56]) that the Crown was required to prove the accused had a reasonably based belief in consent instead of an obligation to prove the absence of such a belief.   These misdirections covered all of the elements of the offence that were critically in issue.

[31]     It is true that in other passages of the summing up the jury was properly directed on the onus applying to the individual elements of sexual violation.   The handout to the jury was correct as far as it went, although it was deficient in not following the preferred practice of incorporating the standard of proof – see the comments  in  R  v  Wanhalla  CA321/05  CA324/05  24  August  2006  at  [51]  per William Young P and at [117] per Glazebrook J.   However, there is no basis for

concluding   that   the   jury   preferred   these   directions   to   those   which   have misrepresented the onus of proof.

[32]     Any case of sexual violation in which consent is an issue calls for careful directions.  Two of the elements require the Crown to prove a negative.  The Crown must  prove the absence of consent  and the absence of any reasonable  belief in consent.  (For a suggested direction where consent is in issue see Wanhalla at [50].) In R v Gutuama CA275/01 13 December 2001, this Court discussed the approach required when consent is in issue and concluded at para [40]:

Almost invariably [the concept of consent] is correctly explained when outlining the elements of sexual violation.  More care is needed, however, if it is to be adhered to when discussing the evidence and argument later.

[33]     That observation has particular application to this case.  Generally, the Judge correctly outlined the elements of sexual  violation.    He fell  into  error  when he endeavoured to apply them to the evidence.   Indeed, it is fair to say that he never adequately put the defence to the jury.   The defence maintained that the touching was non-sexual and occurred in response to a request from the complainant.  It was therefore said to be consensual.  Although an unusual defence, and not without risks to the accused, he was entitled to have it put fairly and clearly to the jury.

[34] The closest the Judge came to summarising the defence position was in para [56] (at [17] above) of the summing up which, as already discussed, included misdirections on two critical issues. His failure to explain the defence to the jury was an omission which by itself would have warranted a finding that the verdict was unsafe.

[35]     The Judge’s directions to the jury were seriously misleading in a number of important respects.  The verdict is unsafe and cannot stand.

Result

[36]     For these reasons, we allowed the appeal.

[37]     Order prohibiting publication of the reasons for judgment and any part of the proceedings (except the result) in news media or on internet or other publicly accessible database until final disposition of trial.  Publication in law report or law digest permitted.

Solicitors:

Rice Craig, Auckland for Appellant

Crown Law Office, Wellington