R v Thompson
[2002] NZCA 401
•16 October 2002
PUBLICATION OF NAMES OR ANY IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY s139, CRIMINAL JUSTICE ACT 1985.
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 255/02 |
THE QUEEN
V
NATHANAEL THOMPSON
| Hearing: | 26 September 2002 |
| Coram: | Blanchard J Morris J Williams J |
| Appearances: | C J Tennet for Appellant F E Guy for Crown |
| Judgment: | 16 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J |
Issues
At the conclusion of the Crown case, half way through a six day trial, the appellant, Mr Thompson, was discharged under the Crimes Act 1961 s347 on three of the nineteen counts in the indictment against him. The jury convicted him on eleven of the remainder and acquitted him on the balance. Those on which he was convicted included six counts of sexual violation by unlawful sexual connection by anal penetration, both digital and penile, of two young boys, AT and ST, four counts of indecent assault on the same complainants and a third, LT, and one count of inducing LT to commit an indecent act on him. On 25 July 2002 Mr Thompson was sentenced to 10 years imprisonment on each of the sexual violation charges and two years imprisonment on the remainder, with all sentences to be served concurrently.
He has appealed to this Court against his convictions. If the Court found in his favour in relation to any of the convictions he submitted that should affect the length of the sentence.
The grounds of appeal were :
[a]that it had been wrongly decided in a pretrial ruling delivered on 17 May 2002 that the evidence of two witnesses in relation to finding items at their dwellinghouse was admissible and the prejudicial effect of that evidence outweighed any probative value and extended not just to the count to which those items related but to all counts;
[b]that the verdicts on three of the counts relating to AT could not be supported having regard to the evidence (Crimes Act 1961 s385(1)(a));
[c]that the manner and timing of the trial Judge’s direction to the jury in terms of R v Accused (CA87/88) [1988] 2 NZLR 46 (a Papadopoulos direction) placed undue pressure on the jury and resulted in unsafe verdicts;
[d]that the trial Judge misdirected on recent complaint evidence thus giving rise to miscarriage of justice; and
[e]that the trial Judge misdirected the jury as to how they should deal with the appellant’s statement to the Police.
Ground [a] Admissibility of evidence
The offending took place over a three year period up to September 2001. The appellant was aged 17-21 at the time and was a youth leader of a small church in Auckland led by his cousin. He lived at a number of addresses during that period and met the complainants through his church membership.
One of the addresses at which he lived was that occupied by a husband and wife (who may have been de facto partners) who were the witnesses whose evidence was the subject of the pretrial ruling. The appellant lived with them for a few weeks in 1999. O’Regan J, not the trial Judge, in summarizing the evidence, said that during the time the appellant was living with them the husband, in the presence of his wife, discovered items under Mr Thompson’s bed which included gay pornographic magazines depicting anal sex, a pair of boy’s underpants estimated to fit a boy 8-10 years with what appeared to be blood and faecal staining on them, some tissues from a toilet roll and a used condom. The Crown case was that the appellant was seeing a lot of the complainants, AT and LT at the time, and on one occasion the husband had seen Mr Thompson and AT coming out of the former’s bedroom.
Despite the Crown’s initial view that the underpants belonged to ST, at the pretrial hearing it was submitted that it was a reasonable inference that the underpants belonged to AT and supported his evidence of sexual connection with the appellant. AT was aged about nine at the time and alleged the offences took place at the various addresses at which the appellant was staying. O’Regan J noted the objection of counsel for the appellant, Mr Tennet, on the conventional ground that the prejudicial effect of the evidence outweighed its probative value: R v Te One [1976] 2 NZLR 510, 514. Probative value, it was argued, was limited and there was nothing to connect the underpants to any complainant because of the presence of the magazines and unexplained staining.
The Judge concluded that the inferences for which the Crown contended were open to the jury and were jury issues. The evidence was accordingly ruled admissible.
Mr Tennet’s submission on appeal was that his pre-trial submissions as to prejudice had not only been made out at trial but the prejudicial effect had been magnified by the evidence given orally as contrasted with that appearing in the depositions. The trial evidence, he submitted, highlighted the incorrectness of the pretrial decision.
We did not have the depositions for comparison but the evidence of the male witness was that he tried to pull a vacuum cleaner out from underneath the appellant’s bed, the aperture was too small, the bed came with it, and he found a plastic shopping bag containing a “pretty small kid’s underwear”, a tissue and a used condom. He estimated the underwear as perhaps fitting a child aged nine. Picking it up he found faeces and some blood on the underwear together with a one-page pornographic photograph and, later, a couple of gay pornographic magazines.
In cross-examination, he acknowledged his being disliked by his partners’ family and the reason, and disagreement with the appellant about his telephone account. But he disputed suggestions that the vacuum cleaner was too large to fit under the bed and that he disliked the appellant. The notes of evidence suggest the witness’s first language was not English.
His partner was the appellant’s cousin and described the terms on which he boarded with them for some two months and said the children, two of the complainants, visited him in his bedroom including sleeping in the room. She supported her partners’ evidence that she went into the appellant’s room to uplift the vacuum cleaner - though at one stage she said it was in her partner’s absence - then immediately went on to say that he found a plastic bag under the bed, opened it and showed her a little of its contents. But, as he said, she declined to look further though she noticed “little boy’s underwear”.
There was minimal cross-examination on the topic.
Mr Tennet drew our attention to what he said were a number of contradictions between the two witnesses. The difference as to which of them went for the vacuum cleaner was an example. There were other aspects of the evidence such as whether both were present when the appellant was confronted or both spoke to the pastor and whether the telephone bill was a matter of discussion. That led Mr Tennet to submit that the male witness was unreliable, which, he said, affected all counts concerning AT and, in turn, affected all convictions.
For the Crown, Ms Guy’s submissions were that the evidence was probative as to whether sexual offending had occurred against the accused’s denial in his interview of spending more time with one boy than another and AT’s evidence as to the locations of his abuse. The mother of the complainant ST also gave evidence of her son missing underpants and other items of clothing on return from weekends away with the appellant.
We take the view that this ground of appeal is not made out. While there may have been some differences between the two witnesses, their evidence was clearly of probative value in relation to the issues raised by Ms Guy. Mr Tennet accepted that he drew the jury’s attention to the contradictions which he submitted were to be found in the evidence of the two witnesses. Assessment of the evidence and the weight to be given to it was clearly a matter for the jury.
We accordingly take the view that O’Regan J’s pretrial ruling was correct. The probative value of the evidence outweighed its prejudicial effect. Even had we concluded otherwise, there would have been no basis for holding the evidence affected all convictions concerning AT, still less that it affected all the counts on which the appellant was found guilty.
Ground [b] Verdicts on three counts unsupported having regard to the evidence
This ground of appeal related to counts 1, 5 and 6 which were of unlawful sexual connection by penile penetration of AT’s anus “on the first occasion” between 16 October 1998-15 October 2000, a representative charge in the same terms between 16 October 1998-20 September 2001, and a representative indecent assault charge relating to AT by touching his genitalia between the same dates.
Mr Tennet submitted that the verdict on count 1 could not stand since count 5 was brought on a representative basis and accordingly there must be a first time. The evidence was that it was not count 1. He submitted that the “first time” was not described in any great detail in the complainant’s videotaped evidence, most of which dealt with an allegation relating to KFC which is said to have occurred only a week or thereabouts before the interview.
The evidence which pertained to count 1 was :
Q.You know how you told me that this stuff has been happening since you met him?
A.Yes.
Q.About how may times has ---
A.Lots of times.
Q.Yeah. And when he’s been touching your bottom –
A.Mmmm.
Q.--- okay, with his private, has it always been inside it, like ---
A.Yes.
Q.--- like what you said the last time?
A.Yes, inside it.
Q.Mmm. Okay.
A.Not right in.
Q. Uh - huh
A. Only sometimes.Q. Only sometimes?
A. With his private part, that’s all.Q. So what places has that happened at?
A.His house, my house, my old house, K’s house, the health centre, the --- (inaudible), in the van, in the KFC, and that’s all.
Ms Guy drew our attention not only to that passage but to evidence by ST of seeing the appellant “doing it with other boys” and the evidence of AT staying with the appellant on occasions.
The complainant having given his age when the “first time” occurred in another passage in the videotape, it is clear there was evidence available to the jury from which it could logically conclude that there was both a “first time” and a sufficient number of subsequent occasions to form a proper basis for conviction on both the specific count 1 and the representative count 5.
As far as count 6 was concerned, Mr Tennet submitted there was an inconsistency between the appellant being convicted on that count of indecent assault on AT by touching his genitalia between 16 October 1998-20 September 2001 and his acquittal on count 7 alleging inducing an indecent act by AT touching the accused’s genitalia over the same period.
A perusal of the transcript of AT’s videotaped interview demonstrates there was ample material on which the jury could convict the appellant on the indecent assault count. The passages which might have supported the count of inducing an indecent act were much less clear. The jury’s verdict on count 6 is accordingly explicable.
No justifiable basis has been made out for this Court to intervene as far as the verdicts on count 1, 5 and 6 were concerned.
Ground [c] Papadopoulos direction
The chronology was that the jury retired at 11:55am on day 6 of the trial. At 3:15pm the same day they advised the Judge they were unable to reach a verdict on any count. The Judge directed they be taken outdoors for fresh air and then, at 4:00pm, directed them in a form which followed the model in R v Accused (CA87/88) effectively verbatim.
Between that point and the jury’s return with its verdicts at 10:20pm, they asked on three occasions for a videotape to be re-played and, of course, were taken for an evening meal.
Mr Tennet submitted that the trial Judge should not have given the standard direction at 4:00pm and that the chronology of events suggests the jury reached compromise verdicts.
Ms Guy submitted the jury’s convictions and acquittals were explicable by reference to the evidence through which she took us, and submitted that the chronology of events was unexceptionable. We agree.
The Judge may perhaps have been sceptical that the jury had conscientiously applied their minds to the issues when they informed him after a retirement of just 3¼ hours (including lunch) that they were unable to reach verdicts on any of the sixteen counts in the indictment after hearing four days of evidence. So, after giving the jury an opportunity for reflection, he gave the standard direction regarded as appropriate in the circumstances. The chronology indicates that the jury then re-applied itself to its task, sought appropriate assistance on several occasions and ultimately delivered verdicts which were approximately equally divided between convictions and acquittals.
There is no basis to infer that any of the jury’s verdicts were unsound or compromised verdicts or were improperly influenced by the Papadopoulos direction many hours beforehand. This ground of appeal also fails.
Ground [d] Recent complaint direction
With detailed reference to the evidence, Mr Tennet submitted there were inconsistencies and weaknesses in the complainants’ evidence as to when they disclosed the appellant’s actions to others. Some of the complaint evidence, he submitted, was not recent and on the videotape, the so-called complaint evidence was elicited by leading questions. He submitted that ST’s nomination of the appellant arose through questions which should not have been put, there were inconsistencies between the versions given by AT and LT which should have been delineated by the Judge and the evidence was unclear as to what ST may have said in his complaint to his mother who, Mr Tennet submitted, lied.
In summing-up, the Judge briefly summarised what the boys said to others before their interviews, gave the standard direction as to the proper use of complaint evidence, summarised the complaints and concluded that passage of his directions by giving the standard direction as to delayed complaints. Mr Tennet did not contend that the directions were incorrect in any way but submitted they should have gone further and covered the other issues mentioned.
However, when the Judge summarised the defence case, he noted counsel’s submission that AT, LT and SE had been browbeaten or schooled by their mothers. He carefully and fully summarised counsel’s submissions as to omissions from the evidence, lack of disclosures, the implausibility of events occurring as the complainants said, lack of evidence, lack of immediate disclosure and complaints emerging in response to leading questions. He also recorded Mr Tennet’s reading to the jury a passage of evidence.
Mr Tennet accepted that he had not endeavoured to exclude the complainant’s complaint evidence either pretrial or during the hearing, and that he raised no issue about the complaints directions when asked by the Judge at the conclusion of the summing-up if he had anything to raise.
Given the fullness of the Judge’s treatment and that counsel had no criticism of the legal content of the recent complaint and delayed complaint directions, we take the view that there is nothing in this ground which assists the appellant.
Ground [e] Appellant’s statement
The nub of Mr Tennet’s submission on this topic was that the summing-up only dealt with the question of the appellant’s statement in an unconnected way, not co-ordinating directions as to burden of proof, the accused’s videotaped statement and the character evidence called on his behalf. The appellant did not give evidence. In particular, counsel submitted the direction on the appellant’s statement should have given when dealing with the evidence called by the appellant and the standard direction as to the three ways in which the jury should approach defence evidence in context of the onus of proof. Mr Tennet submitted it was confusing for the appellant’s statement to be dealt with in the context of a direction as to lies.
Ms Guy submitted the suggested direction was unnecessary and unsupported by authority. She referred to Tuiloma v R (CA222/99, 8 December 1999 paras [29]-[30], [32] pp9-10) where this Court held :
[29] As already noted, the appellant gave evidence at trial and was cross-examined and re-examined. A complaint is made on behalf of the appellant that the trial Judge did not directly refer to the appellant giving evidence and that the trial Judge should have given a direction in accordance with a logically correct form identified and approved in R v McI [1998] 1 NZLR 708 :
Ideally, the direction should have followed the logically correct form, that is, if you accept the accused’s evidence on the key issues, you should acquit; if you consider there is a reasonable possibility the accused’s evidence on the key issues might be true, you should acquit; if you reject the accused’s evidence on the key issues, you must not automatically conclude he is guilty, you must still examine all the evidence which you do accept and decide whether it establishes the accused’s guilt beyond reasonable doubt.
[30] However, that case was dealing with a misdirection by a trial Judge as to the consequences of the accused giving evidence. The decision does not suggest that in every case it is obligatory upon a trial Judge, where an accused has given evidence, to advise the jury of the logical consequences open to the jury in respect of the weight … which it puts upon the accused’s evidence.
…
[32] While some trial Judges may commonly direct along the lines of the discussion in R v McI, that decision does not require such a direction in all cases. It is merely that if a trial Judge is intending to comment in any respect upon the consequences of the accused giving evidence it should be in the proper form discussed in that case and not in the incorrect form used by the trial Judge in that case.
Here, the Judge correctly directed the jury (para [69]) as to their approach to the appellant’s statement to the Police and referred to the Crown’s submission that he had lied in two significant respects in the course of the interview.
Without identifying the suggested lies, the Judge then gave the jury the standard “lies” direction (para [71]). He then emphasised the right to silence, the privilege against self-incrimination, the lack of onus on an accused who chooses to call evidence and the three possible approaches to such evidence (para [73]). He then summarised the defence evidence, particularly that which had been suggested as undermining the credibility of the evidence ruled admissible pretrial (para [74]) and the character evidence (para [75]-[76]).
In that context, we do not see the Judge’s dealing in one paragraph in the typescript with the direction as to the appellant’s statement, and the Crown’s reliance on passages in it as lies, as impugning the correctness of the summing-up.
The Judge directed the jury they could accept or reject the whole or parts of the interview. An accused’s Police statement is not the equivalent of giving evidence. The standard direction as to a jury’s approach to defence evidence is not required in relation to an unsworn statement. While it can be given (R v Reihana CA350, 371/00, 22 March 2001, para [22]) there is no requirement for such a direction. In our view the Judge’s direction correctly identified the issues for the jury as far as the appellant’s statement and the defence evidence is concerned.
This ground of appeal is also not made out.
Result
None of the grounds of appeal having been made out, the appeal against conviction is dismissed.
In those circumstances, it is unnecessary for the Court to consider the question of sentence.
Solicitors:
Crown Law Office, Wellington
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