R v S (CA510/05)

[2006] NZCA 452

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/05

THE QUEEN

v

S (CA510/05)

Hearing:         23 August 2006

Court:            Chambers, Randerson and John Hansen JJ Counsel:  J J Corby for Appellant

M A Corlett for Respondent

Judgment:      6 September 2006         at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed

REASONS OF THE COURT

(Given by John Hansen J)

[1]      Following a trial in the Auckland District Court before Judge Field and a jury, the appellant was convicted of one count of sexual violation by unlawful sexual connection of A and one representative count of sexual violation by rape of B.  He

was found not guilty of a specific count of rape involving B.

R V S (CA510/05) CA CA510/05  6 September 2006

[2]      On the charge of sexual violation by rape he was sentenced to 12 years imprisonment,   and   on   the   sexual   violation   count   involving   A,   two   years imprisonment to be served concurrently.

Background

[3]      The complainants  were  both  step-daughters of the  appellant.    One  night during 2001 the first complainant A awoke to find a man kneeling beside the bed she normally slept in.   This was a single bed in her parents’ bedroom.   He digitally penetrated her vagina.  She identified the perpetrator as her step-father.

[4]      Some time during 2003, the appellant starting having sexual intercourse with

B.   At the time she was aged 12 to 13 years.   This offending came to light on

11 May 2004  when  B  unexpectedly  gave  birth  to  a  baby,  which  the  appellant acknowledged was his.

[5]      In her evidential video, B initially maintained that sexual intercourse had occurred on only two occasions.   When confronted with admissions made by the appellant that intercourse had occurred on numerous occasions (which he maintained occurred with her consent), she agreed that intercourse had occurred at least once a week.   She also gave evidence of a specific incident that occurred in a car.   The appellant denied digitally penetrating A.

[6]      Prior to trial the appellant applied for severance of the charge involving A from those relating to B.  In a reserved decision dated 24 March 2005 Judge Gittos dismissed the application for severance.

The appeal

[7]      The appellant appealed originally against both conviction and sentence but the grounds of appeal were extensively modified by concessions made by Mr Corby in argument for the appellant.  In the end, he abandoned all grounds of appeal bar two:

(a)    He persisted with his submission that, as events unfolded at the trial, a joint trial became unfair.  The Judge should have aborted the trial and directed that the offending relating to A be tried separately from the offending relating to B.  Mr Corby submitted that we should now allow the appeal on this ground and direct two new trials.

(b)    If he failed on that first ground, then he continued with the submission that the verdict relating to the A offending was unreasonable.   If this submission were upheld, the  conviction relating  to  the A offending would be quashed.  The sentence on the B offending would need to be reduced, as that sentence was a “totality” sentence which embraced the A offending.

First ground of appeal - severance

[8]      Mr Corby did not take issue with the pre-trial ruling of Judge Gittos.  Rather, he argued that the circumstances were so changed by evidence given by A that it meant the joint trial became unfair.

[9]      He  said  it  had  been  assumed  before  trial  that  A  had  made  a  visual identification of the appellant.   But he submitted that in re-examination A made it clear for the first time that it was voice identification that she relied on.  The relevant question and answer were:

Q.  Why are you so sure it was him? A.  Because I can recognise his voice.

Mr Corby submitted that because of the inherent unreliability of voice evidence, a miscarriage  of  justice  had  resulted,  relying  on  the  decision  of  this  Court  in R v Dougherty [1996] 3 NZLR 257 at 259.

[10]     Mr Corby also submitted that had the purported method of identification been known prior to trial, there would have been an application to have it excluded.  He

also said there was a danger that the evidence of admitted sexual behaviour with complainant B would influence the jury’s decision in relation to complainant A.

[11]     For the Crown, Mr Corlett said this was not a case where severance should have  been  granted,  even  if  the  identification  relied  on  voice  recognition.    He submitted there were some grounds to suggest that a similar fact direction could have been given which meant that the Judge’s summing up (which directed the jury to consider each charge and the relevant evidence separately) was unnecessarily favourable to the appellant.

[12]     He further submitted that the voice identification was sufficiently reliable to go before a jury.   In addition to the voice identification, he submitted there was circumstantial evidence that the appellant was the offender.  He referred particularly to evidence that there was no one else present at the house that night, other than two younger sisters.

[13]     We  do  not  accept  that  the  evidence  which  emerged  during  A’s  re- examination meant it was not open to the jury to conclude that the offender had been identified by other means as well.   If one considers the totality of the evidence contained in her evidential video and at trial, it was entirely open for the jury to accept that A identified the appellant both visually and by voice.

[14]     As well, there was circumstantial evidence to support the identification as Mr Corlett submitted.   The elder sister said  that  when she  lived at  the address, friends of the appellant visited regularly.  The appellant and the visitors drank and were very noisy.  A’s evidence was that she was home alone with her sisters on the night in question.  While she accepted she was a heavy sleeper she also stated she would have been woken by noise.  In cross-examination she was asked:

So he may well have brought some of his friends back, you wouldn’t know whether they were there or not unless they made a lot of noise?…No cos I wake up like if there’s noises and stuff, or if I feel something.

THE  COURT:    I’m sorry,  I  didn’t  hear  that  last  answer  what  did  you say?…Oh, there was no noise because I would have woken up if I heard any noise or if something was happening.

[15]     There was only one unspecific question in cross-examination to suggest the perpetrator might have been someone other than the appellant.  It was never directly put to A that the offender could have been one of the appellant’s friends, and it was not further explored in cross-examination.  And at no time did counsel seek leave to cross-examine on the new evidence.  Nor did he seek a discharge under s 347 of the Crimes Act 1961 as a consequence of this evidence or apply for a new trial in the light of the alleged changed circumstances.

[16]     Even if we were to accept that the complainant identified the perpetrator by voice alone, it does not follow that the trial became unfair.   We accept that this would have weakened the Crown case in respect  of A.   But it  would not have rendered a joint trial unfair given the Judge’s standard direction in summing up that the jury were to consider the evidence on each charge separately and his warning under s 344D of the Crimes Act in relation to identification evidence.

[17]     We add for completeness that we do not accept Mr Corby’s submission that the jury failed to give due weight to the presumption of innocence or that the verdict on  the  count  involving  A  was  somehow  tainted  by  a  joint  trial.    It  is  purely speculative to suggest that the jury did not follow the Judge’s clear directions as to onus and burden of proof and his direction to approach each count separately.

[18]     This ground of appeal fails.

Second ground of appeal – unreasonable verdict

[19]     This Court said in R v Allandale & Dennett (1905) 25 NZLR 507 (CA) at

508:

Briefly put, I understand that principle to be that this Court cannot interfere with the verdict of a jury in a criminal case unless it is satisfied that the verdict is such as 12 reasonable men, giving due weight to the presumption of law in favour of the prisoner’s innocence, could not properly have found. All questions of the credibility of witnesses, and within the above limits, of the weight to be attached to their evidence are for the determination of the jury and must be held to have been determined by their verdict.

[20]     This Court stated in R v Ramage [1985] 1 NZLR 392 at 393 that the statutory test that a verdict is unreasonable or cannot be supported having regard to the evidence will be satisfied:

… if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant.   It is not enough that this Court might simply disagree with the verdict of the jury.

[21]     In  the  light  of  our  examination  of  the  evidence,  we  reject  Mr  Corby’s submission  that  the  verdict  was  unreasonable.    There  was  evidence  which,  if accepted by the jury, would support the verdict at issue.  Matters of credibility and reliability were entirely matters for the jury and we see no basis to interfere with the jury’s verdict.

[22]     This second ground of appeal must also fail. [23]     We dismiss the appeal.

Solicitors

Crown Law Office, Wellington