R v S (CA484/03)

[2004] NZCA 374

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 484/03

THE QUEEN

v

S(CA484/03)

Hearing:         17 June 2004

Coram:McGrath J Goddard J Chisholm J

Appearances: H E Juran for Appellant

HDM Lawry for Crown Judgment:      29 June 2004

JUDGMENT OF THE COURT DELIVERED BY CHISHOLM J

[1]    Having been found guilty by a District Court jury on one count of indecently assaulting his 11 year old daughter the appellant was sentenced to two and a half years imprisonment. Three other counts alleging that he had indecently assaulted the same child and two counts alleging that he had threatened to kill her produced verdicts of not guilty. The appellant appeals against his conviction on the ground  that the Judge misdirected the jury and against sentence on the ground that the sentence is manifestly excessive.

R V S(CA484/03) CA CA 484/03 [29 June 2004]

Background

[2]    It was alleged by the Crown that during the course of access arrangements the appellant indecently assaulted his daughter on four separate occasions and threatened to kill her on two of those occasions. Count one (indecent assault) and count two (threatening to kill) arose from the same incident which is alleged to have occurred between 1 June 1996 and 31 July 1996. The remaining counts (three of indecent assault and one of threatening to kill) arose from alleged events between 1 August 1996 and 28 February 1997.

[3]    When the appellant was interviewed by a detective on 17 December 2002 he signed a statement comprising questions and answers recorded by the detective. In that statement he admitted indecently touching his daughter’s private parts in a bedroom on two occasions. His answers indicated that he did not remember any further assaults but that such assaults were a possibility. Likewise he could not remember saying to his daughter not to tell anyone but that it was possible that he had done so.

[4]    Before trial the admissibility of this statement was challenged by the appellant, first, on the ground that it was not a voluntary statement and, secondly, on the basis that he had not been adequately informed of his rights. At the pre-trial hearing both the appellant and the detective who took the statement gave evidence. The Judge rejected the appellant’s evidence and ruled that the statement was admissible.

[5]    A further challenge to the statement was mounted at trial. During cross- examination of the detective, counsel for the appellant put to the detective that she had not disclosed to the appellant the reason that she needed to speak to him, had not cautioned him, had not responded to his request to see a lawyer and had pressured him into making the statement. When he gave evidence the appellant supported  these allegations. These issues also featured in the closing addresses of counsel.

[6]    During summing-up the Judge also covered the matter. He noted that while the Crown relied on the appellant’s statement it was challenged by the defence who

maintained that the police officer had written down things that had not been said by the appellant. After discussing the circumstances surrounding the taking of the statement the Judge said:

You have seen and heard Detective Constable Lupi give her evidence about how this statement was taken. And the Crown says to you well what the accused is saying to you about that is, that she has deliberately and dishonestly taken and prepared a false statement and persuaded him to sign it. Well how likely is that, the Crown suggests to you, that is quite a grave allegation and a preposterous suggestion which is of course a matter for you. But the Crown says why would a police officer put her reputation and her career on the line by committing criminal and dishonest acts of that kind in relation to a perfect stranger that she was interviewing and if she was going to do that well why wouldn’t she make it an even stronger statement. The Crown says that does not make sense.

The appeal against conviction revolves around the underlined words which Mr Juran submitted had not been used by the prosecutor.

[7]    Mr Juran claimed that the Judge’s comments may well have left the jury with the impression that if they rejected the statement taken by the detective her career would be on the line. On that basis the jury might have arrived at a compromise verdict whereby they found the appellant guilty on one count which involved a rejection of some but not all of the statement thereby saving the detective’s job.     Mr Juran noted that there was no evidential foundation for the Judge’s comment and observed that if such a comment been made by the prosecutor he would have responded during his closing address. Counsel submitted that an analysis of the six verdicts reinforced the impression that the jury had arrived at a compromise verdict to save the detective’s job. He submitted that in all the circumstances the guilty verdict on count one is unsafe.

[8]    We were informed by Mr Lawry that while the trial prosecutor cannot recall the precise words that were used during the course of his closing address, he considers that the Judge’s comments captured the thrust of what he was endeavouring to say to the jury. It was put to the jury by the prosecutor that the defence stance amounted to an allegation that the detective had engaged in a systemic abuse of the legal system and had committed perjury. The prosecutor confirmed that he described this allegation as “preposterous” during the course of his

address to the jury. Any suggestion that the verdict arrived at by the jury reflected a compromise or that it was unsafe was rejected by Mr Lawry.

The appeal against conviction

[9]    While it seems to be clear that the words used by the Judge were not the actual words used by the prosecutor, we nevertheless accept that the Judge’s comments captured the thrust of the proposition being advanced by the Crown. Obviously there was a vigorous response by the Crown to the defence suggestion that the detective had concocted the appellant’s statement. While the Judge used his own words to explain the Crown’s response we do not accept that the jury would have been misled. In our view there is no foundation for the suggestion that the jury was prepared to convict an innocent man to protect the career of a police officer.

[10]   We also reject any suggestion that an analysis of the six verdicts returned by the jury illustrates that the jury arrived at a compromise verdict designed to save the detective’s career. The Judge made it clear to the jury that they needed to examine the evidence in relation to each count separately and arrive at separate verdicts. Our analysis of the six counts and the evidence presented to the jury has led us to the conclusion that it was open to the jury to find count one had been proved beyond reasonable doubt but that there was a reasonable doubt about the remaining counts.

[11]   With reference to count one the complainant gave evidence that she had been indecently assaulted by her father in June 1996 when she was 11 years of age. She also gave evidence that at the time of that assault her father told her not to tell her mother or he would kill her, such evidence being applicable to count two. Mr Juran suggested that the verdict of guilty on count one and not guilty on count two are only explicable on the basis of a compromise verdict. We disagree. While the accused’s statement corroborated the complainant’s evidence in relation to count one, it did not corroborate her evidence about count two. Under those circumstances, and given the age of the complainant, the jury may well have reached the view that count one had been proved beyond reasonable doubt but that they were not satisfied that count two had been proved to the requisite standard.

[12]   Not guilty verdicts on the remaining counts are also explicable. As already mentioned, these counts span a period from 1 August 1996 to 28 February 1997, with the third count  alleging  an  indecent  assault  between  1  August  1996  and  31 October 1996 and the remaining counts alleging offending after 31 October 1996. With reference to count three the complainant gave evidence that her father had indecently assaulted her in late August 1996. Once this timing is linked to evidence about a protection order obtained by the complainant’s mother it is not difficult to accept that the jury may have been left with a reasonable doubt in relation to counts three to six.

[13]   Under cross-examination by defence counsel it was elicited from the complainant’s mother that she had obtained a temporary protection order against the appellant on 19 August 1996. That order was produced as an exhibit during the course of the appellant’s evidence. He told the jury that after the order was obtained access to his children, including the complainant, ceased for nearly two years.  In  this respect the appellant’s evidence was corroborated by evidence from the appellant’s partner. Given that evidence it would not be surprising if the jury was  left with a reasonable doubt about counts three to six.

[14]We have not been persuaded that the jury’s verdict on count one is unsafe.

The appeal against sentence

[15]   The appellant is 39 years of age. Although he has two previous convictions neither were relevant for sentencing purposes. The Judge sentenced the appellant on the basis that he had handled the complainant’s genital area for “quite an extended period” after having required her to remove her clothes while he was exercising access.

[16]   Aggravating features were identified as the “gross and total dereliction of parental responsibility, duty and trust”, the age of the victim and the fact that she was warned not to tell anyone about the assault. On the mitigation side the Judge accepted that there had been no offending of this kind in the past, but noted that there had been no genuine expression of remorse or concern. He also commented that the

complainant had been put through a trial in a way which called into question her sexual orientation. Although R v Frost (CA242/89, 27 October 1989), R v Meredith- Blyde (CA245/95, 19 July 1995) and R v Barnes (CA404/99, 14 February 2002) were cited by the Crown, the Judge considered those decisions to be of limited assistance.

[17]   Mr Juran suggested that the sentencing remarks indicate that the Judge sentenced the appellant as though he had been found guilty on all counts. We do not accept that submission. In the passages highlighted by Mr Juran the Judge was responding to Mr Juran’s suggestion that the Judge should be cautious about accepting the complainant’s evidence because it had been impliedly rejected by the overall verdict of the jury. In response the Judge indicated that he was entitled to form his own view of the evidence and that he had no difficulty in accepting the complainant’s evidence. While it is true that he made a number of general observations, it is important to note that he specifically returned to count one when describing the offending for which the appellant was to be sentenced.

[18]   We also reject Mr Juran’s submission that the Judge treated the appellant’s stance of maintaining his innocence as an aggravating factor. On our reading of the sentencing remarks the Judge was simply observing that he had no helpful information by way of insights as to why the offending had taken  place. Significantly the Judge specifically mentioned that the appellant was entitled to adopt that attitude. It was also suggested by Mr Juran that the Judge had effectively sentenced the appellant by taking into account that the appellant had told the complainant not to tell anyone about the offending. We do not accept that proposition. In all the circumstances the Judge was entitled to take into account that the appellant had told his daughter not to tell anyone.

[19]   As the Judge observed, this indecent assault represented a gross breach of trust by a parent against his young child. It is difficult to imagine a greater breach of trust. The Judge carefully traversed all relevant factors before arriving at the  sentence of two and a half years imprisonment. Clearly that sentence was within the available range. The appeal against sentence must also fail.

Result

[20]The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington