R v Shepherd CA104/04
[2004] NZCA 366
•8 September 2004
PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA104/04
THE QUEEN
v
MICHAEL SHEPHERD
Hearing: 17 August 2004 Coram: Anderson P
Baragwanath J Ronald Young J
Appearances: D R La Hood for Appellant
B M Stanaway for Crown Judgment: 8 September 2004
JUDGMENT OF THE COURT DELIVERED BY RONALD YOUNG J
[1] The appellant was convicted in the District Court at Wellington on four counts of indecent assault against young women. He was acquitted on two counts. The events occurred in the mid to late 1990’s and involved allegations of indecent touching of young women who were the appellant’s daughter’s friends. He appealed against conviction but later filed a purported Notice of Abandonment. The Notice was however defective and his appeal has never been validly abandoned. Although his present pursuit of the appeal is, to say the least, belated, we are prepared to examine its merits.
R V MICHAEL SHEPHERD CA CA104/04 [8 September 2004]
1.A misdirection by the Judge on the issue of indecent touching of complainant A.
2.A misdirection on lies.
3.A failure by the Judge to direct the jury on the use of prior statements of witnesses.
4.Inadequate directions by the Judge on alleged improper prosecutorial cross-examination and objectionable evidence by a police officer.
5.Inappropriate repetition by the Judge of Crown counsel’s erroneous submission that there was an onus of proof on the appellant.
6.Inappropriate repetition by the Judge of Crown counsel’s erroneous submissions relating to character evidence.
7.The Judge’s erroneous direction on the evidence of the complainant BW.
Factual background
[2] The appellant was tried in December 1998 on six counts of indecent assault on two young girls BW and HA between February 1984 and September 1987. Some counts (1, 2 and 5) related to girls under 12 years of age and count 4 related to a girl aged between 12 and 16 years.
[3] Counts 1, 2 and 4 related to one complainant and alleged touching of her breasts (counts 1 and 2) and on her stomach (count 4). Count 5 related to a separate complainant and involved “touching her skin underneath her top”.
[4] The appellant’s defence was that none of these events occurred. The two complainants gave evidence, as did NC a recent complaint witness in relation to
BW’s complaint. The appellant gave evidence, called his daughter, two of her friends, his wife and several character witnesses.
Indecency
[5] The appellant submitted that the Judge had wrongly advised the jury that if they concluded the events occurred they did not need to concern themselves whether the touching was indecent. This submission was based on two portions of the summing up. Firstly as to intention the Judge said:
The next matter of law is the question of intention. What did the accused intend? Because you may recall that I asked the question quite early whether this game HA called a game “cold fingers” or the “man was playing a game cold fingers” and I asked whether in fact there might have been some skylarking or joking that the girls might have misunderstood, but again the defence has been perfectly clear there is no suggestion of any misunderstandings about this at all. There is a total denial that there was any touching in the course of a game, and Mr Gill has made that very clear to you. That is not at all used as a defence in this case.
[6]And when summarising the defence case the Judge said:
Mr Gill then moving to the evidence of HA said that she had claimed this occurred when a lot of other girls were present and also claimed t[ha]t the accused had indecently assaulted, if it is interpreted as indecently assaulted, his own daughter in exactly the same way.
[7] The appellant submits that the later quote illustrates that no concession, at least as far as the complainant HA is concerned, was made by defence counsel. Without that concession the appellant says the summing up on intention was inadequate. The Judge did not make it clear, the appellant submits, that the Crown had to prove beyond reasonable doubt that the touching was indecent.
[8] The Judge in his summing up dealt with the elements of the indecent assault charges and said:
Those are the elements of the six charges that the Crown must prove. As I have said, in addition to that is the age element and that is not disputed because of the relevant dates in the charges, the birth certificates and the evidence you have been given has established that. So there has to be an assault, it has to be intentional and it has to be indecent. The law is really quite straightforward as far as these counts are concerned and Mr Gill made
a very frank acknowledgement that if in fact these events occurred it is not disputed that would have been indecent. Of course that is not in any way a concession that it is acknowledged that the events occurred.
[9] It is clear that defence counsel did explicitly concede that if the events occurred as the girls described then they would be indecent assaults. Given that concession the Judge’s summing up adequately dealt with the need to prove that this was an indecent assault. As the passage quoted illustrates the Judge told the jury what the prosecution had to prove before there could be a verdict of guilty. He made it clear in the course of his summing up that even if they rejected the appellant’s evidence as untrue they would need to go back, consider the evidence of the prosecution and be satisfied beyond reasonable doubt that it established all the elements of the charge. We are satisfied the Judge properly tailored his summing up to the concession by counsel and the facts of the case.
Lies direction
[10] The Judge said the Crown case was that the appellant lied when he denied touching the girls and the defence case was that the complainants had lied in saying that the appellant had touched them. The Judge gave a lies direction to the jury somewhat tailored to the respective cases of the prosecution and defence. In particular, he said:
The last matter really that I want to address you on is in relation to the allegation that these people have told lies. The Crown says that the accused has lied in his denials, and in giving evidence. The defence has submitted to you that the two young complainants have lied, and that there is no room for accident here, there is no room for any misunderstandings. The defence is that they have made it up and that for whatever reasons it is not for the accused to prove why they would make it up, but the defence is that these two young girls have lied in relation to the serious allegations that have been made.
The law in relation to lies is this. It is for you to make those findings of fact. You have heard the Crown say the accused has lied, and the defence say the two complainants have lied. The law is that you must make findings of fact on that, that is your task, but once you have made those findings you must not say, “Oh yes he has lied, he is guilty”. You must remember that people tell lies for different reasons and you have got to weigh all that. If at the end of all that you are not satisfied, you may say, “We do not accept his evidence”, it is important you then, as Mr Gill submitted to you, put that to one side and then go back and look at he evidence the Crown has adduced
and if you are satisfied beyond reasonable doubt on the Crown evidence that these charges are proved then you would find him guilty. If you are not so satisfied and you are simply left in an area of doubt then you would find him not guilty.
So that is the way in which you must approach your task. When it is all boiled down, for you to convict this man on any of the six counts, to be quite blunt about it, you must find he has lied in his denial, he has lied to you and you totally and unanimously agree and accept the truth of the evidence of the girls. That is really what it comes down to in this case, and unless you can be sure about that then you would find him not guilty. You will have to approach your task analytically, carefully, without sympathy or prejudice, and you just look at all other evidence and work your way through each of those counts. You look at credibility. The issue of lies, the issues of intention, the character evidence, the similar fact all really are important but they are side issues to the sole issue of credibility and that is why you have the important task, you make the findings of fact.
[11] The appellant says this lies direction was unnecessary and prejudicial to the to him. The appellant submits the summing up on lies was objectionable because both the appellant and the complainants were part of the lies direction and “an adverse inference of some sort might be open to the jury against the appellant that was not open to them in relation to the complainants”.
[12] This Court has previously said that a lies direction is not typically called for where the accused statement and/or evidence is a denial of guilt (see R v Nazif [1987] 2 NZLR 127 and R v Takiari & Anor (CA 273-98, CA 274-98, 22 July 1999). Sometimes such a direction can give rise to prejudice to an accused through an adverse inference open to the jury. There was no danger of such an adverse inference in this case. The Judge made it clear in the summing up that if the jury rejected the evidence of the appellant as untrue then they should consider the Crown evidence and only if satisfied beyond reasonable doubt that it established guilt could they find him guilty. While the lies direction was superfluous it was, if anything, potentially helpful to the appellant although apt to be confusing. The Judge’s summing up overall is clear. There was no significant error which results in a miscarriage of justice here.
Prior statements of witnesses
[13] This ground of appeal relates to the re-examination of NC who was a recent complaint witness with respect to BW’s complaint. NC was cross-examined with respect to a previous statement that she had made to the police. She said that the complainant BW had told her, when she first complained, that the appellant had touched her shirt and had put his hands up her top. The witness’s previous statement to the police was put to her in which she said the first complaint made to her had only related the touching of BW’s shirt. The witness accepted the difference and said it was the next day at the Jubilee Centre when she had met BW that BW had mentioned the appellant put his hands up her top. In re-examination Crown counsel had the witness read from her previous statement what she said in relation to the discussion at the Jubilee Centre. That passage from her previous statement confirmed what the witness had already said in cross-examination. The appellant submits that the Crown should not have been allowed to re-examine in this way and allowing the witness to read part of her statement to the jury was wrong and unfair because the passage read did not relate to the cross-examination.
[14] We consider that the re-examination did fairly arise from cross-examination. The relevant question and answer in cross-examination were:
q. and when she first spoke to you all [BW] said was, that something about her shift being untucked and that she didnt like it, thats what she first told you wasnt it
a.she told me he tucked her shift in put his hands up to her that she didnt like that
q.because thats not what you told the police is it, the first you spoke to them on the 29 sept 97
a. i think it is
q. i can show you that if you wish
a. okay
[15] The witness was shown her statement which she read. Counsel for the appellant then asked:
q.on the second page it says there that [BW]had said to you that he had tucked the shift in and she didnt like it
a. yep
q. nothing there about hands on the top or breasts is there
a. no but she told me that later behind the Jubilee Centre
q. but not then
a. no.
q.okay then you two had a bit of a chat about what [BW] said the next day, correct
a. i think it was the next day
q. a day or two later
a. yeah
q.and thats when she said to you that he put his hands up her top and touched her breasts
a. yeah
[16] In re-examination counsel for the Crown asked the witness to go to her statement and read out the relevant section. The witness did so and the passage reads:
a.[BW] said to [S] and I that Mr SHEPHERD had been walking in on her when she had been changing as well as tucking her shirt in for the last 2 years. She also said that he has been putting his hands up her top
[17] This question and answer was clearly relevant to the previous cross-examination. The issue raised by counsel for the accused was when the complaints about tucking the complainant’s shirt in and putting his hands up her top had occurred. This passage confirmed the complainant had complained to NC about both. These passages illustrate the re-examination did properly arise from cross- examination and was legitimately asked to counter the cross-examination that the witness had made a previous inconsistent statement.
Inadmissible evidence and inadequate directions
[18] The plaintiff’s fourth ground of appeal relates to a series of questions the prosecutor asked a defence witness and an alleged failure, arising from these questions, of the Judge to give adequate direction to the jury. The appellant’s counsel introduced the topic in cross-examination of complainant BW in this way:
Q.whn u made yr statement to the Police u also said in the statement [t]ht u thought [A] and [J] had been touched as well?
A. Yes
Q. and if they come to court and say tht thts not true are they lying?
A.No because they didn’t tell the Police tht he had touchd them t reason i k[n]ow is that they said how disgusting it is tht he touchs people all the time
Q. u overheard a conversation between thm have u is tht yr evidence?
A. Yes
Q. did they say theres no such conversation are they lying?
A. either theyre lying or they cant remember it
[19] The appellant called Ms A who was a friend of the appellant’s daughter. She gave evidence that she knew the appellant. Her evidence consisted of character evidence and a denial that she had seen any improper conduct by the appellant. As to the character evidence she said:
q. how do you feel about Mr SHEPHERD
a. h[e’s] a really nice guy, he can be really funny
q.how do you feel about Mr SHEPHERD now that these allegations have been made
a.i just feel the same attitudes towards him, he is a really a nice guy i dont think he cld have done this sort of stuff
[20] The witness confirmed she had been told about the allegations by the police. She was asked in evidence in chief as follows.
[BW] also said yesterday in her evidence that she overheard a conversation between you and [J] talking about how disgusting it was that Mr SHEPHERD touched girls, do you remember having any such conversation
a. no.
q. did you ever have any conversation like that
a. no.
[21] The young woman was then cross-examined. The following is the passage objected to by the appellant:
CROSS-EXAMINATION (Mr O’Donoghue)
q.when you were spoken to by the police on Monday 3 november 1997
a. yes
q.did you tell the police officer that you believed [BW] has no reason to make this up
a. i dont remember what i said then so
qdid you tell the Police Officer that you were rung one night by [BW] who told you she had been abused by Mr SHEPHERD
a. no.
q.who spoke to you what Police Officer was it mr georgantis, a big solid policeman, male
a. yeah
q.did you tell him after you mentioned that about [BW] that you had been approached by [HA] who had told you she had been abused by Mr SHEPHERD
a. sorry i dont get that
q.did you tell the policeman that you had been approached by [HA] and she had told you she had been abused by Shepherd
a. not that i can remember
q.but if the policeman had written down what you told him wld you accept that is what you had said
a. yeah
q.and the reason the police were talking to you and jacinta was becos [BW] recommended they do so, okay accept that from me
a. yep
q.and she recommended they should talk to you two becos she says she overheard you talking about how disgusting it was that Mr SHEPHERD touches people all the time, you and Jacinta saying that, does that ring any bells
a. no
[22] The appellant’s submission is that this evidence is objectionable in two ways. First, the Crown should not have been allowed to cross-examine in this way and, second, if they were to be allowed the Judge should have warned the jury that unless the proposition within a question is accepted by witnesses as truthful the question itself is not evidence.
[23] To return to the appellant’s first proposition that the Crown should not have been permitted to put these questions. The Crown were entitled to cross-examine the witness to challenge her evidence about the accused’s character. The first few questions are such a challenge. If the witness had said complainant BW “had no reason to make this up” then that could be inconsistent with her character evidence. The next series of questions concern suggestions that she had received telephone calls from the two complainants BW and HA and had been told by them that they had been sexually assaulted by Mr Shepherd. The witness denied she had received either call. The appellant submits these questions could be seen as objectionable as attempting to elicit complaint evidence without the complaint being the first and a recent complaint.
[24] The final question put the proposition that the witness had made remarks about the appellant touching people all the time. Again the witness denied she had said any such thing. This question had, in similar form, been asked in evidence in chief by counsel for the appellant (see paragraph [20] of this judgment).
[25] This was further explored in J’s evidence called by the appellant. J was a young girl who was friendly with the complainant and the appellant’s daughter. She was said to be the other girl with witness A whom BW maintained had made remarks about the appellant’s propensity for sexual assault. In evidence in chief she was asked:
q.you werent here yesterday but yesterday [BW] said that you and [W] had a conversation at school saying how disgusting it was that Mr SHEPHERD touched girls
a. no that didnt happen
[26] This evidence gives a proper perspective to the questions and answers in A’s cross-examination. The evidence that A and J had said they had been indecently touched came out in cross-examination of complainant BW. Counsel for the accused put to BW that A and J would give evidence that there was no such conversation. Then in turn both A and J were, as defence witnesses, asked in evidence in chief whether they had made such a statement. Both denied doing so. In that context the question in cross-examination from Crown counsel was hardly objectionable. The appellant had already led from both A and J that they had never had such a conversation. Crown counsel’s question was no more than an attempt to have A reconsider her denial. Overall, therefore, there was nothing objectionable in the question asked in cross-examination. There was no reason for any particular warning by the Judge because of the context of the cross-examination. The appellant had introduced with the complainant in cross-examination what A and J were going to say. The appellant led evidence from A and J that they had never said such a thing. The cross-examination was an attempt to show the complainant was mistaken.
[27] In cross-examination it was suggested that a police officer had recorded what A had said and what he had recorded was in conflict with A’s evidence. The statement apparently taken by the police officer was never put to the witness nor referred to in the police officer’s evidence. The question of whether there was a previous inconsistent statement should have been resolved by putting the statement to the witness for her comment. The topic had been introduced by the appellant himself and the Crown’s challenge to the witness unobjectionable.
[28] The witnesses A and J had both made it clear they denied saying the appellant had touched anyone or they were the recipients of any complaints. Given those denials and the fact the Detective made no mention of any statement when he gave evidence there was no need to give a direction to the jury regarding this cross- examination. The girls’ evidence was already clear.
[29] An associated complaint arises from the appellant’s submission that Detective Georgantis should not have been allowed to give his opinion about Mrs Shepherd’s reactions to the allegations of sexual assault by her husband. As the Crown said the fact Mrs Shepherd did not seem to react to the allegation is equivocal.
Onus of proof
[30] This complaint arises from the Judge’s repetition of Crown counsel’s submissions of the jury that the complainant BW should be believed. The Judge in his summing up as relevant said:
You have heard BW’s evidence and Mr O’Donoghue has made submissions to you and his submission in relation to her evidence is that she did not make it up, and he asked the question “Why would she tell the police to go around and speak to the other two girls, J and A, if she did not believe they would be able to tell the police something that would support what she had said”?
[31] The appellant says the Crown submission is essentially saying to the jury “Why would the complainant W tell the police to go and speak to J and A if she did not believe that they would be able to tell the police damaging evidence against the appellant”. This remark by the Crown counsel was no doubt in response to the defence evidence previously discussed in paragraph [20] of this judgment. While BW believed that J and A were aware of the assaults the two young women denied this. They said they had neither heard nor said anything objectionable about the appellant. The Crown response was to say why would BW tell the police to speak to J and A if she knew this was false. In the context of the case this was a legitimate response to the appellant’s case. We do not see the comments cast any onus on the appellant to prove anything. The summing up made it clear the onus was on the Crown from the beginning and throughout the case. There is nothing in this ground of appeal.
Character evidence
[32] The appellant submits that in providing a summary of the Crown submissions on character witness evidence to the jury the Judge repeated an erroneous proposition which should have been corrected. The appellant points to the following section in the summing up as support for this proposition:
As Mr O’Donoghue pointed out to you, you do not have a parade of the Crown witnesses saying, “yes he did it, we believe he did it” because this is not the way the system operates. He pointed to you that regrettably this type of case tends to polarise people, friends and others who know the person. So if you will just remember it is evidence, but it is simply to be weighed by you on the whole issue of credibility.
[33] Some background is necessary to understand the context of the statement by the prosecutor. Character evidence was introduced by several of the witnesses called by the appellant. JB was a friend of the appellant’s daughter. She gave evidence that she had been present when some of the alleged touching had occurred and had seen nothing. She said the appellant had never touched her. She was asked what she thought about complainant BW’s allegation of sexual assault by the appellant.
q. whats your view of that allegation
a. i dont believe it
And further
q. how do you feel around Mr SHEPHERD
a. fine, i dont have a problem with it at all
[34] A was also a friend of the appellant’s daughter. She also said she had not been touched and had not seen anyone else being improperly touched. As to character she said:
q. how do you feel about Mr SHEPHERD
a. hes a really nice guy, he can be really funny
. . .
q.how do you feel about Mr SHEPHERD now that these allegations have been made
a. im not too sure
[35] RM gave evidence. She was also a young woman although approximately two years older than the other young woman who gave evidence. She said she had known the appellant since she was 5 to 6 years old and that she had never been sexually assaulted by him. Two adult witnesses were also called to give good character evidence.
[36]The Judge said in his summing up as to character evidence as follows:
The next matter of law that has some importance is the character evidence that was referred to, and it is important that you understand that a person who has no previous convictions is entitled to have called in aid his good name. Two of the mothers of the girls came along and gave evidence that could be regarded as character evidence. But again, it is not evidence that the alleged offences did not occur, it is simply evidence that is put into the whole picture for you to consider and give such weight to it as you think is appropriate. All it does is to take it further, in that it tells you in the mind of those persons who give character evidence t hat they do not believe that this person is of such a character that he would have committed the offence.
[37] The appellant submits the repetition of Mr O’Donoghue’s remarks by the Judge undermined the effect of the summing up on character evidence. Mr O’Donoghue’s remarks and the Judge’s repetition of them no doubt arose because of the way in which some of the character witnesses’ evidence was led. Three of the defence witnesses gave evidence the appellant had not sexually assaulted them, and they had not seen him sexually assault anyone. One of the defence witnesses was inappropriately asked if she believed one of the complainants. We consider the Crown’s response was no more than a vigorous reply to some of the character evidence led by the appellant. We do not consider the repetition of it by the Judge was inappropriate or unfair or resulted in any miscarriage of justice.
[38] The Judges’ direction of character evidence, however, could have been clearer. This may have been contributed to by the way in which the character evidence was introduced by the appellant.
[39] The character evidence in this case involved expressions of belief about safety, expressions of subjective belief about the truthfulness of the complainant’s evidence and only very limited direct “good character” evidence. This Court in R v Faleailii [1996] 3 NZLR 664 gave directions as to how Judges should direct a jury on character evidence. At 667 it said:
When such evidence is adduced, an appropriate direction should be given as to its use. Generally that will cover both limbs of credibility and propensity. No particular form of words is necessary, and because of the variety in the circumstances in which the need will arise, the direction will no doubt be tailored to meet those circumstances. In general such evidence may be used in the overall determination of whether guilt has been proved, and to that end it may assist in assessing the credibility of an accused's pretrial exculpatory statements, evidence at trial, or both. It may also assist in diminishing the likelihood that the accused has committed the offence charged. As with any other evidence its weight will be a matter for the jury. The trial Judge may comment on the good character evidence (and any rebutting evidence) in a fair and balanced way, including its significance or lack of significance in the particular case.
[40] When the Judge first dealt with character evidence he gave no indication how such evidence could be used by the jury. The Judge did mention at the end of the passage on character evidence that it was relevant to credibility. And as to propensity, the Judge said the evidence was that particular witnesses did not believe the appellant was of such a character that he would have committed the offence. The Judge, however, did not assist the jury by telling them that this evidence was relevant to their deliberations on this point and that its weight would be for them.
[41] Although the summing up was less than adequate on character evidence we do not consider that this was an important failure in this case. The character evidence itself was uneven and partly inadmissible (especially the comments by a defence witness as to whether they believed a complainant). Some of the character evidence was little more than an assertion that the witness had not seen anything untoward and had not themselves been sexually assaulted. This has little weight in a case such as this. There was no evidence given by any witness of the appellant’s reputation for honesty in the community. The direct character evidence was mostly about the appellant’s generosity, friendliness and how he enjoyed being with young girls. This evidence was of marginal relevance. It was hardly good character evidence relevant to honesty (and therefore credibility and propensity). Some
witnesses said they continued to let their children go to the appellant’s place and they trusted the appellant. This was nearer traditional good character evidence but again did not mention the appellant’s reputation at all other than their view of his trustworthiness. In the circumstances, therefore, we consider the modest inadequacy in the summing up and the repetition of Crown counsel’s response to the particular character evidence called here has not led to any miscarriage of justice.
Complaint evidence
[42] The appellant submits that the Judge erred in directing the jury with respect to the evidence relating to the complaints by the complainant BW to the school counsellor and chaplain. As to this the Judge said:
The next day, as you will recall, BW told her a little more what she alleged had occurred, the matter was reported to a counsellor and then to the chaplain and the matter went from there as far as BW’s complaint was concerned.
[43] The appellant submits that this was essentially a series of complaint evidence that should not have been admitted. The only evidence which should have been allowed is the recent complaint evidence. We consider this evidence was innocuous and simply indicating the chain of events that gave rise to police involvement. The evidence was not tendered by the Crown as recent complaint evidence and was not used by them to support the Crown case at all. It was simply evidence given as to the context of which these complaints came to be before the Court. We consider there is nothing in this complaint.
[44] Having considered each of the grounds of appeal we consider that none resulted in the miscarriage of justice and the appeal will therefore be dismissed.
Solicitors:
Sladden Cochrane & Co, Wellington, for Appellant Crown Solicitors, Wellington
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