R v Ross
[2020] NZHC 2779
•22 October 2020
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-092-2113
[2020] NZHC 2779
THE QUEEN v
LESLIE PETER ROSS
Hearing: 21 October 2020 Appearances:
J J Rhodes and H Watts for the Crown
R Mansfield and H Smith for the Defendant
Judgment:
22 October 2020
Reasons:
22 October 2020
JUDGMENT OF GAULT J
(Section 147 application)
This judgment was delivered by me on 22 October 2020 at 3:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr J J Rhodes and Ms H Watts, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City Mr R Mansfield and Mr H Smith, Barristers, Auckland
R v ROSS [2020] NZHC 2779 [22 October 2020]
[1] Following my ruling yesterday declining to dismiss charges on the Crown’s s 147 application based on a proposed plea arrangement,1 Mr Mansfield has made an application under s 147(4)(c) of the Criminal Procedure Act 2011 to dismiss charges 3, 7, 9, 10, 12 and 15.
[2]The relevant charges are:
Charge 3: Between 3 February and 20 February 2019 at Wiri, unlawfully detained [A] without her consent or with her consent obtained by duress, with intent to cause her to be confined or imprisoned
– a representative charge.
Charge 7: Between 3 February and 20 February 2019 at Wiri, assaulted
[B] with intent to injure her – namely punching her – a representative charge.
Charge 9: Between 3 February and 20 February 2019 at Wiri, intentionally impeded the normal breathing of [B] by applying pressure to her throat or neck – a representative charge.
Charge 10: Between 3 February and 20 February 2019 at Wiri, sexually violated [B] by raping her – a representative charge.
Charge 12: Between 3 February and 20 February 2019 at Wiri, sexually violated [B] by unlawful sexual connection – namely the insertion of his finger(s) into her vagina – a representative charge.
Charge 15: Between 3 February and 20 February 2019 at Wiri, sexually violated [B] by unlawful sexual connection – namely connection between the complainant’s mouth and the defendant’s penis – a representative charge.
1 R v Ross HC Auckland CRI-2019-092-2113, Trial Minute / Ruling (No. 5) 21 October 2020. My earlier ruling indicated that charges 8, 11, 13, 14 and 17 to 19 should be dismissed on the basis that there is no evidence upon which a properly directed jury could reasonably convict.
Test for dismissal under s 147(4)(c)
[3]As the Court of Appeal said in R v Hong:2
The test for dismissal of a charge under s 147(4)(c) is whether, as a matter of law, a properly directed jury could reasonably convict. It effectively continues the test from the now repealed s 347(3) of the Crimes Act 1961. The law developed under that provision continues to be relevant. In R v Flyger it was held:3
“[13] … In a trial before a Judge and jury a Judge must respect the jury's responsibility to decide the facts. Accordingly a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case. The Judge's function in these circumstances is not to attempt to predict the outcome but to examine the evidence in terms of adequacy of proof, if accepted.
…
[15] … It is not a question of what a jury would be likely or unlikely to do but what a jury may properly do. The evidence in support of a charge may be barely adequate and so tenuous as to lead a Judge to the view that the jury could not properly convict and accordingly the interests of justice require an order for discharge. The evidence in a case may be adequate, if accepted, but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. It may be that in such circumstances a jury would be unlikely to convict, but the rationale for an order for discharge is not the likelihood of acquittal but the unsafeness of a conviction having regard to the evidence.”
The test was further described in Parris v Attorney-General as follows:4
“[13] … There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.
[14] It is vital, however, to appreciate the proper compass of the word ‘reasonably’ in this context. The test must be administered pre- trial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The
2 R v Hong [2018] NZCA 97 at [28]-[30].
3 R v Flyger [2001] 2 NZLR 721 (CA).
4 Parris v Attorney-General [2004] 1 NZLR 519 (CA).
constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence … ”
Also helpful is the discussion in R v Adams of the proper approach where the Crown case is circumstantial, as it is here, on the issue of consent:5
“Where, as here, the Crown case is dependent, in whole or in part, on inferences, the credible evidence must establish facts capable of supporting the inference. The court should not decide on such an application or submission whether the relevant inference should be drawn.”
Mr Mansfield’s submissions
[4] In relation to the relevant charges Mr Mansfield accepted there is evidence but only from the primary complainant (B) and submitted this case comes within the exception in Flyger to the principle that credibility and reliability are classic jury questions. Mr Mansfield also referred to R v Lua,6 where Baragwanath J referred to evidence that is “inherently incredible”, and R v Yang.7
[5] Mr Mansfield submitted that B’s evidence is inherently incredible, whether the explanation is lies or the head injury B has claimed affected her memory. B referred to her brain injury and problem with her memory during her evidence, and not merely in relation to difficulty with dates and times. In her earlier EVI, despite referring to the head injury, B went on to make assertions that were then not repeated in her evidence at trial. Mr Mansfield submitted that the fact that her evidence at trial did not support a number of the charges is also relevant to the assessment in relation to the remaining charges.
[6] Mr Mansfield relied on a number of material inconsistencies in the evidence, including between B’s evidence and that of the second complainant (A) who was with B and the defendant through the relevant period:
5 R v Adams HC Auckland T240/91, 8 October 1992 at 4.
6 R v Lua HC Auckland CRI-2006-092-4336, 24 April 2007 at [2]. The Court also said that the judge must accept the responsibility for deciding whether the evidence may be so unreliable that any conviction would be unsafe because a reasonable jury could not be sure of guilt.
7 R v Yang HC Auckland CRI-2008-004-17744, 26 February 2010. See also R v Tulloch
HC Wellington CRI-2008-091-1598, 26 March 2009.
(a)B acknowledged to police on 10 August 2020 that she knew K but denied knowing him in evidence. The evidence indicated K had introduced B to her landlord in Hamilton and paid her bond. The text messages indicated a close relationship and referred to K paying B
$164,000 and mentioning her cancer treatment. Although B said these were not her messages, there is also evidence that the defendant did not have access to B’s bank account and that K already had the account number.
(b)Contrary to B’s evidence about her limited connection with the defendant prior to the events in issue, a lawyer acting for the defendant in 2018 will give evidence that, in the context of arranging the defendant’s EM bail to B’s address, the lawyer spoke to B who said she had cancer. Also, the EM bail record indicates that B was interviewed.
(c)Contrary to B’s evidence, A knew that the defendant was going with them from Hamilton to Grey Lynn in January 2019.
(d)B’s evidence that the defendant took her phone before they arrived in Auckland is inconsistent with A’s evidence that all three of them used the phone and with the text messages indicating that A used the phone during the relevant period.
(e)B’s evidence that at Rata Vine Drive they stayed in bedroom two throughout is inconsistent with A’s evidence that they initially stayed in the lounge, and with A’s evidence that there were two other people staying in bedroom two when they were staying in the lounge.
(f)B’s inconsistent evidence about which side of the bed she always used in bedroom two.
(g)A said they could go elsewhere in the house whereas B said she could not leave the bedroom except to go to the bathroom with the defendant.
(h)Indeed, A said they went out of the house each payday to get food. A said that she went out to the neighbour’s house to get videos.
(i)The inconsistencies between B’s statement to police that there was non- consensual sex nine or ten times a day and her evidence at trial (three, four, five or six times a day) and particularly the inconsistency between her evidence that it was a number of times a day when A was in the room whereas A’s evidence was that she only heard what may have been sex once.
(j)A’s evidence that there were no assaults at Rata Vine Drive.
(k)B’s evidence that they only ate noodles, milk powder and stale bread throughout the period at Rata Vine Drive, whereas A referred to other food.
(l)Bank account transactions indicating withdrawals for food during the period and B’s bank card being used through the period for withdrawals or balance enquiries – when B’s evidence was that she never left the house and hid her bank card which the defendant only found on 20 February 2019, the afternoon they went out and were approached by police.
(m)The doctor’s evidence that B said she had been drinking a 12 pack of Cody’s on each of 18 and 19 February 2019 and some more on 20 February 2019, despite B’s evidence denying any drinking during the period.
(n)B’s evidence about the visit to the ATM on 20 February 2019 was inconsistent with A’s evidence and her statement to police.
(o)A’s own evidence that she could leave the house but did not want to leave B.
[7] Mr Mansfield accepted the position would be different if there were corroboration of B’s evidence. He submitted this is not a case where there is a contest between two witnesses (complainant and defendant).
[8] In relation to the sexual offending, Mr Mansfield submitted that B’s evidence is so inconsistent with A’s evidence that B’s evidence about lack of consent is manifestly discredited. There are direct inconsistencies in relation to that evidence, and in combination, looking at the whole of the evidence, the case is clearly within the exception in Flyger.
The Crown’s position
[9] Mr Rhodes, for the Crown, was prepared to make a number of concessions that B is wrong and/or has lied, albeit he did not ultimately concede that a properly directed jury could not reasonably convict the defendant and instead indicated the Crown would abide. In any event, and consistent with my ruling yesterday in relation to the proposed plea arrangement, it is for the Judge to be satisfied that, as a matter of law, a properly directed jury could not reasonably convict.
[10]In particular, in terms of untruths, Mr Rhodes conceded that:
(a)B knows K and was not telling the truth when she denied that. Mr Rhodes conceded that B had told the lawyer she had cancer, whereas she denied doing so, but said she does not have cancer. Mr Rhodes acknowledged that this has become relevant as a significant veracity issue. The evidence indicates that K was paying B money on the understanding she had cancer.
(b)B’s initial denial that she has a man’s name tattooed on her back was untrue.
[11]Mr Rhodes also accepted that B is wrong about the following matters:
(a)Her early relationship with the defendant and that she was willing to have him stay with her, indeed sought to have him there, and that things were good between them.
(b)In Auckland, that A texted the defendant from hospital on B’s behalf. I note this included a text:
Where back now we outside AUNTY LOVES YOU SO MUCH YOUS ARE AND WILL BE TOGETHER NO MATTER WHAT
(c)At Rata Vine Drive, that they did not stay in bedroom two from the beginning and that they left the house at times to go to the shops et cetera.
[12] Accordingly, Mr Rhodes accepted that in the initial period the relationship was fine, and the kidnapping had not started, and that consequently there are problems with B’s reliability as to when the relationship became non-consensual. Mr Rhodes acknowledged there was extremely limited evidence about the defendant’s reasonable belief in relation to consent. In particular, only when pushed, B said that she told the defendant she did not want sex and that there was sex after that. Mr Rhodes conceded that the Crown could not suggest that evidence is reliable. He acknowledged there may be insufficient evidence in relation to actual consent or reasonable belief, saying the Crown’s best submission would be that the Crown cannot say when there was non- consensual sex (having earlier acknowledged there is evidence to come that there was a consensual sexual relationship while at the address). Mr Rhodes also acknowledged that the difficulties with B’s evidence have specific application in relation to the sexual offending charges.
[13]In relation to other inconsistencies, Mr Rhodes also conceded that:
(a)B’s evidence that she had no access to her phone during the entire period is not credible or reliable, acknowledging the text messages.
(b)B’s evidence is unreliable in relation to the use of her bank card during the period, acknowledging the bank account transaction evidence.
(c)B’s evidence about not drinking alcohol during the period is unreliable, and inconsistent with her EVI and the evidence to be given by the doctor who examined her.
[14] Finally, Mr Rhodes also acknowledged the inconsistency in B’s evidence relating to which side of the bed she always slept on.
Analysis
[15] I adopt the approach in Flyger that I should only dismiss the relevant charges if B’s evidence is so manifestly discredited or unreliable that it would be unjust for the trial to continue.
[16] I consider the Crown’s concessions were all properly made. Indeed, the Crown could have gone further. I accept there were other material inconsistencies identified by Mr Mansfield, including B’s evidence:
(a)about what they ate for the whole period at Rata Vine Drive, which was inconsistent with A’s evidence.
(b)about there being non-consensual sex multiple times a day when A was in the room, which was inconsistent with A’s evidence.
[17] It is an understatement to say there are significant issues in relation to B’s credibility and reliability. While some of the inconsistencies may be explained by the head injury B referred to, the Crown rightly conceded that B was not telling the truth when she denied knowing K. This is of particular concern when taken together with the concession that B had told the lawyer in 2018 she had cancer, when she does not, and that K was paying her money on the understanding she had cancer.
[18] In this respect, I note the case of Tulloch,8 where in a rape trial Ronald Young J considered that taking into account the complainant’s evidence about what happened together with the other evidence available the complainant’s credibility and reliability
8 R v Tulloch HC Wellington CRI-2008-091-1598, 26 March 2009.
was severely undermined, but would probably have left the assessment to the jury but for evidence of other complaints of criminal conduct which appeared to be false. Here, the evidence relating to K is both directly relevant to, and discrediting of, B’s evidence in relation to use of her phone during the relevant period and also significant veracity evidence that B has lied to obtain money and to assist the defendant to get EM bail prior to the period of the alleged offending and the head injury.
[19] Even if the other inconsistencies are explained by the head injury, they are significant in number and materiality. Many of the inconsistencies are with reliable evidence from A, an independent witness (the doctor) or documents such as bank transaction records and text messages.
[20] I accept Mr Mansfield’s submission that the fact that B’s evidence at trial did not support a number of the charges, that is charges 8, 11, 13, 14 and 17 to 19 for which there is no evidence (even after B was asked to refresh her memory), is also relevant to the assessment in relation to the remaining charges.
[21] In relation to the charge of kidnapping A (charge 3), A’s own evidence was that she could leave the house but did not want to leave B. Although technically there remains B’s evidence that A was also detained, taking the inconsistencies referred to together, I am satisfied that B’s evidence in this regard is so manifestly discredited or unreliable that it would be unjust for the trial to continue on this charge. I have no doubt that A’s evidence is to be preferred in relation to her own detention.
[22] In relation to the remaining violence charges (7 and 9), for essentially the same reasons in relation to the inconsistencies, A’s evidence that there was no violence at Rata Vine Drive is clearly to be preferred, particularly given B did not suggest violence occurred only when A was out of bedroom two. B’s evidence in relation to these charges is so manifestly discredited or unreliable that it would be unjust for the trial to continue on them.
[23] In relation to the remaining sexual offending charges (10, 12 and 15), while the same credibility and reliability concerns arise, I am even more cautious given the issues of consent and reasonable belief are necessarily ones where the evidence of A
or other evidence is of limited relevance. But, as indicated, there is a material inconsistency between B’s claim of sexual intercourse multiple times a day (over a 17 day period) when A was in the room and A’s evidence that she was aware of only one instance of what may have been sexual activity. The significance of this inconsistency, together with the Crown’s appropriate concessions as to both B’s unreliability and credibility/veracity, lead to the conclusion that B’s evidence is so manifestly discredited or unreliable that it would be unjust for the trial to continue in relation to these charges as well.
[24] For these reasons, I accept this is an exceptional case where the evidence against the defendant in relation to these charges is so manifestly discredited or unreliable that it would be unsafe to convict on them, unjust for the trial to continue on these charges, and the Court has a duty to intervene.
Result
[25] Charges 3, 7, 9, 10, 12 and 15 are dismissed, together with charges 8, 11, 13, 14 and 17 to 19 addressed in my ruling yesterday.
Gault J
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