R v Stephens CA75/06
[2006] NZCA 454
•12 September 2006
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA75/06
THE QUEEN
v
KIM STEPHENS
Hearing: 31 August 2006
Court: William Young P, Panckhurst and Ronald Young JJ Counsel: A S P Tobeck for Appellant
C J Lange for Crown
Judgment: 12 September 2006 at 4.30 pm
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence of four years imprisonment is quashed and on each count, the appellant is sentenced to two years imprisonment, such sentences being concurrent with each other but cumulative on the nine year sentence the appellant is serving.
R V STEPHENS CA CA75/06 12 September 2006
REASONS OF THE COURT
(Given by William Young P)
[1] The appellant was tried in the District Court at Palmerston North on two charges of indecent assault involving a young girl. One of the counts was representative and covered the period between 1 July 2000 and 30 September 2003. The other referred to a specific incident which was observed by another person. The appellant was found guilty on both counts and subsequently sentenced to four years imprisonment to be served cumulatively with a sentence of nine years imprisonment previously imposed on the appellant for the rape and kidnapping of another person.
[2] The appellant now appeals against conviction and sentence.
Conviction appeal
Overview
[3] The appellant lived for some time in the same household as the complainant. [4] The offending alleged by her involved the appellant removing his lower
clothing, taking the complainant’s clothes off, lying on top of her, placing his penis on her genitalia and then moving.
[5] At the commencement of the period covered by the representative charge (1 July 2000), the complainant was just under three and she was six at the end of that period (30 September 2003). The complainant was six when she gave an evidential interview and eight when she gave evidence at trial.
[6] The conviction appeal gives rise to the following questions:
(a) Was the Judge’s explanation to the jury of the concept of proof beyond reasonable doubt erroneous?
(b) Was there an irregularity as to the way that the complainant’s evidence was taken?
(c) Was the accused inappropriately cross-examined by the prosecutor?
(d) Should the two counts have been severed?.
Was the Judge’s explanation to the jury of the concept of proof beyond reasonable doubt erroneous?
[7] In his summing up the Judge said
[19] Now as to the standard of proof, the law is that the Crown must prove each element of a charge beyond reasonable doubt before you could bring in a verdict of guilty on that charge. The words “beyond reasonable doubt” mean exactly what they say, and you will be familiar with them. To be satisfied beyond reasonable doubt means that you feel sure that something has been proved. That is a high standard of proof. Now clearly the law doesn’t require proof to a mathematical certainty, which is impossible when dealing with human affairs, but proof beyond reasonable doubt means a high standard of proof, meaning you must be made to feel sure and each element of an offence must be proved to that standard.
[8] In the end, the appellant’s challenge to the direction came down to a complaint about the use of the words “feel sure”. This complaint is misconceived. The use of these words when explaining the standard of proof is consistent with authority, see for instance R v Harmer CA324/02 26 June 2003 at [122] and R v Wanhalla and Court CA321/05 and 324/05 24 August 2006.
Was there an irregularity as to the way that the complainant’s evidence was taken?
[9] The complainant gave evidence by way of closed circuit television. She was accompanied by her aunt as a support person. Also in the room was Ms Marilyn Brown, a victim advisor. Ms Brown has supervised the giving of evidence by closed circuit television for some ten years.
[10] When the complainant commenced her evidence, she was asked where she had stayed the night before and she responded that she had stayed with her aunt. She
was then asked where her aunt lived and she gave a not completely correct response which her aunt corrected. This resulted in the prosecutor asking the complainant to tell the other people in the room with her not to help her with questions. She complied with that request.
[11] The complainant’s evidence was reasonably vague and the flavour of it is captured by the following passage from re-examination (which forms the focus of this aspect of the appeal):
Can you see me again … … Yeah
Cool. Nearly done. All right. Now … what did Kim do with his toilet part
… He did this thing that other people aren’t allowed to do. What’s that … I have no idea.
We will try it a different way. You said that Kim did something with his toilet part to you … Yeah.
What did he do to you with his toilet parts … He did this act what adults do. What did that actually mean he did to you … He did it. I forgot.
Try it a different way. OBJECTION: TOBECK LEGAL DISCUSSION HOLT (continues)
Hi … . I’m sorry we got interrupted. Now what did Kim do to you … He did the thing what bad people do.
And what part of his body did he do that with … the toilet part. And what part of your body did he do that to … the toilet bit. Thank you.
At the point where there the objection is recorded, the closed circuit television was switched off. There is no recording of what, if anything, was said in the room in which the complainant was waiting.
[12] The argument advanced by Mr Tobeck for the appellant was that the complainant’s aunt may have prompted the complainant and thus contributed to the
answers which the complainant gave when the proceedings were resumed - answers which Mr Tobeck claimed were more specific than previously.
[13] We see nothing in this appeal point. We accept that the complainant had stalled in her evidence just before the break but this was always likely to be addressed by further questions. As well, looking at her evidence generally, the answers she gave after the hearing resumed were broadly consistent with what she said before the break in proceedings. Further, Ms Brown has sworn an affidavit in which she maintains that, while she has no specific recall of what happened after the CCTV system was turned off, she would not have permitted the complainant’s aunt to coach or assist the complainant and that if there had been any attempt to do so she would have reported this immediately to the Judge. Mr Tobeck initially sought to cross-examine Ms Brown on this affidavit but, in the end, he did not persist with his application.
[14] In the circumstances there is no evidential basis for any concern.
Was the accused appropriately cross-examined by the prosecutor?
[15] A significant part of the appellant’s evidence was addressed to the second count in the indictment – that is the count which related to the alleged indecent assault, which was witnessed by another person. There were comparatively few occasions when that other person could have observed such an incident and the appellant, in his evidence, sought to show that during those periods of time he was not living in the same town as the complainant. In relation to one of these periods he claimed to have been living with a friend, Lance.
[16] In cross-examination there was the following exchange:
Q You went and stayed with your mate Lance? A That’s correct
Q Are we hearing from him? A Not that I’m aware of.
[17] Mr Tobeck, for the appellant, maintained that the question was inappropriate as it suggested to the jury that there was some burden on the accused to prove something.
[18] We disagree. This was, in substance, an alibi defence. If the defence were true, it could have been supported by the appellant’s friend Lance. That Lance did not give evidence was a material consideration for the jury’s evaluation of that defence. The prosecutor’s question was perfectly legitimate.
Should the two counts have been severed?
[19] The complainant was not able to give specific evidence in relation to the incident which was the subject of a second count, that is the incident which was witnessed by the other person.
[20] Somewhat optimistically, the appellant applied before trial for an order seeking separate trials in relation to the two counts. This application was dismissed but the issue was resurrected before us in support of the conviction appeal as Mr Tobeck sought to argue that there were insufficient similarities between the incidents which the complainant did describe and the incident which the other person witnessed to warrant cross-admissibility on similar fact principles.
[21] Most New Zealand judges would probably not regard similar fact principles as having a role to play in a case of alleged multiple sexual offending against a single complainant. It is entirely orthodox for such cases to be the subject of a single trial and without any direction as to similar fact principles, see for instance the judgment of Panckhurst J in Attorney-General v Tutty [1998] NZAR 110 (HC) and the decision of this Court upholding that judgment, T v Attorney-General CA175/97 27
August 1997. Further, it is not uncommon for a complainant to give evidence of the nature of the relationship between him or her and the accused and in this way to refer to offending which is not the subject of specific charges. Such evidence is usually seen as simply part of the narrative, is sometimes described as relationship evidence and will not usually evoke similar fact directions from the Judge. On the other hand, there are some cases in which such evidence will require orthodox similar fact
considerations. All of this is discussed in the judgment of this Court in
R v MacDonald CA166/04 8 April 2005.
[22] In this case the Crown was entitled to rely on similar fact reasoning. The evidence from the other witness which formed the basis of the second count provided support for the complainant’s general evidence of having been sexually abused over a time period which encompassed this particular incident. And likewise, the complainant’s general evidence of sexual abuse over that period provided some support for the evidence of the other witness and thus for count two.
[23] That essentially is the way the trial Judge directed the jury and he was entitled to do so.
[24] More importantly, for present purposes, the suggestion that there should have been separate trials is completely misconceived. All the alleged offending occurred between the appellant and the complainant in the same house and as part of a single course of conduct. On any common-sense application of similar fact principles, the evidence as to counts one and two was, as we have just explained, cross-admissible.
The sentence appeal
[25] The primary difficulty confronting the Judge on sentence was that after the alleged offending involving the complainant, the appellant kidnapped and raped a
16 year old girl. For these offences he was tried, convicted and sentenced to nine years imprisonment prior to his trial in relation to the present complaint. We record that we have read the summary of facts and the Judge’s sentencing remarks in relation to the rape and kidnapping charges. The kidnapping was very much part and parcel of the rape and the nine year sentence was not a lenient one.
[26] In his sentencing remarks in relation to the indecent assault charges, the Judge indicated that he might have been prepared to sentence the appellant to five years imprisonment (as the Crown had sought) had the indecent assault charges stood alone. But, allowing for the other sentence the appellant was serving, he imposed a sentence of four years imprisonment. In approaching the matter in this way, the Judge invoked the totality principle,
[27] The offending was serious. On the Judge’s assessment, it had occurred approximately ten times. The appellant has some previous convictions and thus did not come before the Court as a man of good character. Against that background, the offending against the complainant might have warranted a sentence as long as five years. So to that point we have no difficulty with the approach taken by the Judge. We likewise agree with the Judge that the totality principle applied. Where we have some difficulty with sentence relates to the Judge’s application of that principle in the circumstances of this case.
[28] If there had been a single sentencing exercise for the appellant in relation to all offending, the Judge would probably have taken the rape charge as the lead offence and imposed a sentence on that charge which would have encompassed the appellant’s total culpability in relation to all offending and concurrent sentences on the other counts appropriate to their culpability. An alternative approach would have been to impose cumulative sentences for the two separate sets of offending but with downwards adjustments to reflect the totality principle. This alternative approach would not have been ideal in such circumstances as the particular sentences imposed would not have reflected the seriousness of the offending in relation to each individual count. But either way, we think it unlikely that a single sentencing exercise would have produced a total sentence as long as 13 years imprisonment. Our impression is that if there had been a single sentencing exercise a total sentence of around 11 years would have been arrived at. If what we have described as the alternative approach had been adopted we are of the view that this would have been made up of sentences of around seven to seven and a half years for the rape and kidnapping and three and a half to four years for the indecent assaults.
[29] Because of the way in which the different charges against the appellant were dealt with, the only way in which a comparable result can now be arrived at is by imposing sentences on the indecent assault charges which are woefully inadequate to mark the appellant’s culpability in relation to them. We are satisfied, nonetheless, that a fair application of the totality principle requires us to take that course.
[30] Accordingly, we reduce the sentences imposed upon the appellant on the indecent assault counts to two years imprisonment.
Conclusion
[31] The appeal against conviction is dismissed. We allow the sentence appeal. The sentences of four years imprisonment are quashed and on each count, the appellant is sentenced to two years imprisonment, such sentences being concurrent with each other but cumulative on the nine year sentence the appellant is serving.
Solicitors:
Webb Farry & Co, Dunedin for Appellant
Raymond Donnelly, Christchurch for Crown.
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