R v Sami Ca126/01

Publication of name or identifying particulars of complainant prohibited by s139 Criminal Justice Act 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/01

THE QUEEN

LATCHMAN SAMI

Hearing:	1 May 2001
Coram:	Thomas J Keith J Blanchard J
Appearances:	C Harder, N M Baruch for the Appellant J C Pike for the Crown
Judgment: Reasons:	1 May 2001 4 May 2001

REASONS FOR JUDGMENT OF THE COURT
DELIVERED BY KEITH J

Mr Sami was convicted of rape following a second trial. He appealed against his conviction. At the end of the hearing this Court announced that it was allowing the appeal, setting aside the conviction and ordering a new trial. Reasons were to be given later.
The appellant was originally charged with three offences relating to the same complainant : sexual violation and indecent assault between 1 September and 7 November 1998 and sexual violation by rape on 8 November 1998. At his first trial the jury acquitted him on the first and second counts but could not agree on the third, the subject of the conviction under appeal.
Before the second trial, the appellant applied to be discharged under s347 of the Crimes Act 1961 on the sole remaining count, on the grounds that it would be unjust for him to face a further trial on that count alone. A discharge was warranted, he argued, (i), to achieve consistency with the verdicts of not guilty on the first counts; and, (ii), to avoid, conversely, a miscarriage of justice by a jury reaching a verdict on the third count inconsistent with that of the initial jury on the first two. That application was dismissed. Part of the argument was that the appellant could be given a fair trial on the remaining count only if the jury were made aware of the earlier occasions on which consent was an issue :
Had the accused been convicted of the first two counts, [counsel for the accused] argues, the Crown might have been able, under the similar fact rule, to lead evidence as to what had happened, and to tell the jury the outcome. It would not be open to the defence, he says, to disclose to the jury that the accused was acquitted. But it could, and would have to, lead evidence that relations were consensual from the first, identifying those earlier occasions as instances. [On evidence being led about acquittals see now R v Degnan CA347/00 13 November 2000].
In ruling against that submission, the Judge recorded the confirmation by the Crown that the evidence it intended to lead on the count would be confined largely to the incident and the aftermath. Any evidence about what went before would be general and the Crown would not lead any evidence about either of the incidents reflected in the first two counts. “The jury will only become aware of them if the defence elects, and if that misfires, the defence cannot easily complain.” He concluded with this paragraph:
The accused may well do better if the jury became aware of the full ambit of the first trial and the acquittals. But the Crown’s response will be the same; and the Judge will likely have to direct the jury not to speculate about why the first jury found as it did, and, as before, to focus on the evidence directly related to the single count it is considering.
The complainant was employed by the appellant on a regular part time basis, working as a waitress in a restaurant which he owned. She said that the work began satisfactorily but a week after she started work the appellant “made a pass at me”. She said that she rejected his approaches and although she felt really uncomfortable and wanted to leave the job, she continued to work for him because she could not find another job and she needed the money. The first two counts related to events that occurred when the appellant was driving the complainant home after work late in the evening. The defence was that the activity was consensual and, as mentioned, the appellant was acquitted on those two counts.
At the second trial the complainant testified that on the night of the alleged rape, following a big party at the restaurant for customers, the complainant, the appellant and two other members of the staff had a meal and consumed some alcohol. After they had cleaned up the complainant and the appellant left so that she could go home in the appellant’s van. They returned to the restaurant since he said he had forgotten something and he had to do something at the restaurant. It was following their return that the rape allegedly occurred. She went to the restaurant later on the Sunday afternoon to collect her wages. She returned for the same purpose on the Monday morning since she said she had not been fully paid. She did not want to go to work she said. She spoke to Mr Sami who acted as if nothing had happened. She did not say a word to him, she just ignored him. She did in fact work the usual hours that morning. On the Tuesday morning, she went again to collect the wages which she claimed he still had not paid her. He did not, however, give her any money and she said that she walked away in disgust. It was on the next day that she spoke to the police and a further day later that she saw her doctor for a medical examination.
In cross-examination defence counsel asked the complainant about the records kept in a red wages book. When she was shown the book she was asked whether there were any pages with writing on them left in it. She confirmed that there were not. In answer to the question “did you tear those pages out”, she said that on the Monday she went to work for two reasons - the first was to collect wages and the second was to have a look at the roster in the book because she believed that she needed proof for the police at some stage about wages and the calculations. “So I did tear the pages out and I kept them with me but I did lose them finally.” Counsel then recalled that when he had asked her that question at the last trial she had told the court and the jury that she did not rip those pages from the book. The complainant responded, first, by asking whether she had said that and, second, by saying that she could not remember. Counsel repeated the question and received no reply. He asked again, “might you have told the jury that you did not rip the pages from the book”. “Maybe I did” was the answer. Counsel then read out part of the record of the previous trial and asked the complainant to confirm that that was what she had said at the last trial. She did so confirm. We note that the defence did not really “elect” to refer to the earlier trial. That reference arose directly from the contradiction in the complainant’s evidence.
That exchange between the complainant and counsel, occurring on the first morning of the trial, led to a question from the jury and the following response from the Judge:
Madam Foreman members of the jury before we resume the evidence this afternoon I understand you have raised a question about why we have a retrial which obviously we have. At this stage I would simply ask you not to speculate about the reasons, I will direct you on the issue of retrial later on, but at this stage if you would simply concentrate on the evidence in this trial and we will come back to the issue later.
In the afternoon defence counsel’s cross-examination continued with a question whether there was an occasion other than the one in issue when she had arranged to stay back at the restaurant for the purposes of having a sexual relationship with the appellant. She denied that there was such an occasion. Were there, however, two other occasions on which she had had sexual relations with Mr Sami? She at first denied that, we understand because the Crown prosecutor had directed her not to mention the two events that were the subject of the earlier acquittals. She did in the end accept that the incidents had occurred and said:
A.Sami forced sex with me before he raped me on two occasions when he drove me to Island Bay and Lyall Bay.
Q.Island Bay and Lyall Bay, correct?
A.Yes, that was already done in the last trial, yes.
Counsel at that point apparently considered that he was unable to tax the complainant with the fact that what had been “done” at the previous trial was that the appellant had in fact been acquitted. There is a real danger, we think, that at this point the jury would assume that there had been convictions on the earlier charges. We cannot, for instance, assume, as Mr Pike for the Crown urged on us, that the jury would understand the ethical obligations of counsel not to question along the lines that he did if there had been convictions.
At the end of the cross-examination defence counsel asked for a brief adjournment to see the Judge in chambers. We understand that in that discussion the Crown opposed any mention to the jury of the earlier acquittals and that the Judge was not advised by either counsel of the statement made at the end of the earlier s347 ruling (para [4] above). The next step, immediately following the discussion in chambers, was just one question in re-examination by the Crown prosecutor and the firm answer given to it by the complainant:
Q.In regard to the Island Bay and Lyall Bay incidents my friend just raised with you, did you want that contact to happen?
A.No, I did not.
In direct contradiction to the complainant’s testimony, the appellant gave evidence of a consensual sexual relationship, referring to the three incidents which were the subject of the counts and related circumstances. He said that, so far as he was concerned, after the consensual sex on the evening in question he still had a loving relationship with the complainant.
In his summing up the Judge returned, as she had said she would, to the question of the retrial:
It is no secret that there was a retrial in this case, but I simply say to you in that regard do not speculate about what may have happened at the earlier trial or why there was a retrial. Your task is to focus on the evidence that you have heard in this trial and make your decision on the basis of that evidence.
In summarising the Crown’s case, the Judge repeated the answers given by the complainant that she did not consent to the previous two incidents at Island Bay and Lyall Bay.
We agree with Mr Pike that the fact of an acquittal is not in general admissible evidence. But that is not the point. The real danger in this case was that the jury were left with a clear impression that the appellant had been convicted at the earlier trial of the counts relating to the other two incidents. The Judge’s direction did not remove that danger. In the circumstances of this case, the jury should have been told of the actual result of the earlier trial while being directed that they were to decide the present count on the evidence before them. Because they may well have had the wrong – and wrongly prejudicial – impression about what had happened, we find that there was a miscarriage of justice.
It was for the above reasons that the appeal was allowed, the conviction quashed and a new trial ordered.

Solicitors:
Crown Law Office, Wellington.

[2001] NZCA 417

1 May 2001 4 May 2001