R v Thompson CA445/04

[2005] NZCA 441

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ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR PARTICULARS IDENTIFYING COMPLAINANTS

IN THE COURT OF APPEAL OF NEW ZEALAND

CA445/04

THE QUEEN

v

SCOTT SIMEON THOMPSON

Hearing:         13 June 2005

Court:            Hammond, Baragwanath and Potter JJ Counsel:         C J Tennet for Applicant

H D M Lawry for Crown

Judgment:      16 June 2005

JUDGMENT OF THE COURT

A        The application for leave to appeal against conviction out of time is

granted.

B        The appeal is dismissed.

REASONS

(Given by Baragwanath J)

R V THOMPSON CA CA445/04 [16 June 2005]

Table of Contents

Para No Introduction   [1] The indictment  [4] Ground (1): verdicts cannot be supported having regard to the evidence  [7] Count 7          [9]

Count 8  [14] Count 11  [15] Count 9  [17] Conclusion  [23]

Ground (2): severance of counts 13 and 14  [24] Ground (3): miscarriage of justice by reason of the complainant’s conduct             [35] Allegation of assault with which the accused had not been charged  [36]

Suggestion that complainant was required by applicant to work at an

escort agency  [38]

Volunteering that applicant had been in prison for a long term and

was a drug addict  [40] Volunteering misconduct affecting the daughter  [41] Disclosing that the applicant had been in prison in Australia                   [42] Demeaning counsel (1)  [43] Volunteering that the applicant was “high on P”  [44] Association with a gang  [45] The applicant had been in jail for seven years  [46] Demeaning counsel (2)  [47] Shooting up $2000 of P  [48]

Discussion  [50]
Decision  [72]

Introduction

[1]      Scott  Simeon  Thompson  applies  for  leave  to appeal  out  of  time  against conviction  in  the  District  Court  at  Hamilton  on  15  August  2003  following jury verdicts of guilty on ten counts.  Three were of assault of a male on a female (counts 3, 8 and 12), three of injuring with intent to injure (counts 5, 7 and 11), one of assault with a weapon (count 9), and one of threatening to kill (count 10), all relating to his partner; one of indecent assault of a girl under 12 (count 13) and one of sexual violation by unlawful sexual connection (count 14)  concerned his partner’s daughter.

[2]      The District Court declined jurisdiction on sentence to allow the High Court to consider preventive detention.  On 2 December 2003 that Court imposed a term of

14½  years  imprisonment  with  a  minimum  non-parole  period  of  9½   years. On 15 November 2004 there was lodged notice of appeal against conviction and on

29 March 2005 an affidavit in support of an application for leave to appeal out of time.

[3]      We will discuss the application for leave after considering the merits.

The indictment

[4]      The allegations followed the applicant’s meeting the first complainant in

1998   when   she   visited   the   Linton   prison   where   he   was   an   inmate. In September 1999 he was moved to Waikeria prison.   The complainant shifted to Otorohanga in September 1999 in order to be able to visit him each weekend.  After the applicant’s release from prison he and the complainant lived together in Otorohanga together with the complainant’s three daughters.

[5]      The indictment contained 14 counts:

a)       The first three counts were of allegations relating to three visits to the Waikeria prison between 1 September 1999  and 29 February 2002 and each alleged that being a male the applicant assaulted the first complainant, a female.   The jury acquitted the applicant of the first two counts and convicted him on the third.

b)He was also acquitted on two counts that at Otorohanga being a male he assaulted the first complainant, a female.

c)       Count 5 alleged that on 8 August 2002 when the first complainant visited the applicant  to  celebrate his  birthday he injured  her  with intent to injure.

d)Count 7 was that on 20 September 2002 at Morrinsville when the first complainant visited the applicant at Morrinsville he injured with her with intent to injure, the injury including a broken finger.

e)       Count 8 was that in October 2002 at Otorohanga being a male he assaulted the first complainant, a female.

f)        Count 9 was that on 29 October 2002 at Otorohanga he assaulted the first complainant using a motor vehicle as a weapon.

g)       Count 10 was that on the same date at Otorohanga he threatened to kill the first complainant.

h)Count 11 was that on the same date with intention to injure the first complainant he injured her, assaulting her and breaking her ribs.

i)        Count 12 alleged that on the same date at Otorohanga being a male he assaulted the first complainant, a female, by trying to strangle her after she returned from hospital.

j)        Count 13 alleged that between 28 February 2002 and 30 October 2002 at Otorohanga he indecently assaulted the second complainant, a daughter  of  the  first  complainant  then  under  the  age  of  12,  by touching her genitals.

k)Count 14 alleged that on the same occasion the applicant sexually violated   the   second   complainant   by   having   unlawful   sexual connection with her entailing connection between her mouth and tongue and his genitalia.

[6]      The challenge to the convictions is on three grounds:

a)       The verdicts in respect of counts 7, 8, 9 and 11 cannot be supported having regard to the evidence.

b)        Counts 13 and 14 should have been severed before trial.

c)       The conduct of the first complainant during the trial was unfairly prejudicial to the applicant and Her Honour, Judge Maze, erred in failing to discharge the jury so there has been miscarriage of justice.

Ground (1): verdicts cannot be supported having regard to the evidence

[7]      In R v McDonald  CA142/40  29  July  2004  this  Court  at  paras  [17]-[18]

summarised the approach to be taken:

[17]      It is trite that the Court on appeal does not look at the evidence and see what conclusion it would have come to so as to set aside a verdict if it does not correspond with such conclusion. It is not enough that an appellate Court might simply disagree with the verdict of the jury (R v Ramage [1985]

1 NZLR 392 (CA); R v H (CA200/98, 28 October 1998). The ground advanced, namely that the verdict is unreasonable and cannot be supported

having regard to the evidence is contained in s 385(1)(a) Crimes Act 1961,

but this can only succeed if this Court is of the view that a jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of an appellant.

[18]  A  decision  as  to  whether  a  verdict  is  unreasonable  or  cannot  be supported having regard to the evidence is not one which lends itself put in extensive elaboration of reasons as Somers J observes in R v Ramaga (supra) at 395. If there is evidence available to a jury which, if accepted, would support its verdict, then such verdict would not be impugned on the ground of “unreasonableness”.

[8]      Counts 7, 9 and 11 were the subject of an unsuccessful s 347 application to the trial Judge.

Count 7

[9]      The complainant’s evidence on count 7 was that the applicant:

…started yelling at me… he… hit me about twice… like punches… about the body… he pushed me as hard as he could.  A big shove and I fell and I had to catch my fall and I grabbed the duchess [a set of drawers]… Then he threw me – slammed me down on the ground… He kicked me a few times. He was kicking me and that but then he grabbed me by the hair and got me back up again and started punching me and just beating me up… He said “Come on, you’re going home now.  We’re going.” And he pushed me and marched me into the car… He hopped into the driver’s seat.  I was in the passenger’s seat.  All the way back to Otorohanga he was yelling at me…

Asked “What [was] the result of the blows you received?” the complainant replied “Oh I had bruising and that but I broke [the little finger on the right hand].”  Asked about bruising she said she had bruising:

…to a lot of parts of my body ‘cos when I was on the ground he was really putting the boot in and he did have his work boots on.

[10]     She said that she noticed her finger was broken as she was walking out to the car because it was starting to hurt.  She said to him “You know, I’ve got a broken finger.  I think my finger’s broken.”  Asked his reaction she said:

He just looked at me real shitty.  Grabbed my little finger, pulled at it and was saying that it was my fault and all that.

[11]    Injuring with intent to injure consists in deliberately causing more than transitory and trifling bodily harm.

[12]     Mr Tennet submitted that count 7 was an overcharge because it cannot be said that the finger was not broken in a fall rather than while the complainant was being kicked.  Mr Lawry submitted that it was open to the jury to conclude that there was a prolonged assault involving punching, kicking and grabbing to the hair of the type that could give rise to an inference of an intent to injure.  He emphasised the repetition of punching and kicking.

[13]     On  the  s 347  application  the  Judge  accepted  the  Crown’s  submission. We also agree, and in oral argument Mr Tennet accepted that it was open to the jury on the evidence taken as a whole to find the elements proved.

Count 8

[14]     In  count 8  the  complainant’s  evidence  was  that  the  applicant  had  been threatening  the  complainant’s  children  that  he  was  going  to  burn  all  their  toys because their room was in a mess.  The complainant started to clean the room but he dropped the box of toys and started hitting her.  Every time she would pack a box and get it tidy he would come in and boot them out and start hitting her.  He pushed her into a corner of the toy box which was made of hard plastic.  She was struck by

the corner of the toy box and while she was still down on the ground he booted her and was kicking her.  One kick went to the side of her head because she had dodged but it got her on the side.  She said:

He kicked my buttocks heaps, I had like large bruises there… He called me a slut and a whore and he spat in my face… My buttocks were so bruised and sore… I had… a lump… on this side where I hit the toy box… I had lumps in my head [and] booted on my legs.

That is abundant evidence to justify the assault conviction; indeed a more serious charge would have been justified.

Count 11

[15]     The complainant’s evidence is that the applicant returned from dropping the complainant’s daughter at work.  He came into the lounge and asked the complainant what she had said to her daughter.  She told him that she had not said anything to her daughter, but her daughter could probably see that the complainant had been crying because her eyes would have been inflamed and bloodshot and her daughter would probably see the cut on her nose.  She said that the applicant’s response was to get up off the coffee table and give her one big blow which struck her low in her ribs.  She said there was a crunch and she heard a snap.  Her ribs cracked.  He asked her “Got punctured lungs…?”   She said it was excruciating “Like absolute pain, like real discomfort”.   He said he would kill her; that he had only two more months of probation left, that if he was going to go back and serve two more years he might as well kill her and do ten.

[16]     The Judge was right to leave the count to the jury which was fully entitled to reach its verdict of injuring with intent.

Count 9

[17]     The count charged assault within the extended definition of that term by using a motor car.  Section 2(1) defines assault:

assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose;…

[18]     The first complainant described having been struck by the applicant.   She said that she ran out of the door and headed down the road in the hope that he would calm down.  She saw he had got into her car.  He was coming towards her.  She said:

I saw he was coming after me.  I ran as fast as I could at that time.  He was coming down speeding fast.   He was coming down that quick that I just made it over the cattle stop.

Asked how close the car had come to her she said:

Oh quite close because he was… there’s a big distance before you go in… I thought that if I hadn’t made it to the cattle stop in time he would have run me over… He was chasing really fast… I only got to the long grass there… I had to just jump quickly out of the way or he would have run me over, he only missed me by not much.

[19]     The long grass was on the right side of the road in the parties’ direction of travel immediately before a driveway branching off to the right containing a traffic stop with a wooden fence extending to meet it on each side.  It was open to the jury to find that the first complainant was running to cross the cattle stop and get behind the fence.  On her evidence the appellant just missed her:

He… slammed the brakes on and just went like a screech and a sudden stop but a skid stop… He come running out that way so I was running this way trying to get away kind of and he was so wild… He grabbed me and he threw me down into the grass and I actually wet my pants because I was so scared and all that… He grabbed me and I got back in the car ‘cos I was really scared and knew I couldn’t run from him or do anything so I had no choice.

[20]     Asked what happened when she got into the car she said that he struck her on the chin and throat and that:

I had a huge big lump come up on my chin… I was sore there… ended up getting a yellow bruise there, yellowy bruise.

[21]     She said that when she got home he was right on her heels, he was hitting her a few times.  He grabbed her.  He threw her into the wall so that her face and hair hit

the wall.  She got a cut on the bridge of her nose and a sore lip.  He punched her to the upper part of her body.  When she was sitting on the toilet he punched her and he stomped on her foot and she received several blows.

[22]     Again we fully agree with the trial Judge’s decision to leave the count to the jury.  There was ample evidence to justify a conviction.

Conclusion

[23]     The first ground fails.

Ground (2): severance of counts 13 and 14

[24]     On  17 July  2003  Judge  Callander  dismissed  a  pre-trial  application  for severance of counts 13 and 14 which was not challenged in this Court before the trial which began on 11 August 2003.    So the issue is whether in terms of s 385 of the Crimes Act 1961 a miscarriage of justice has resulted.

[25]     The second complainant was aged seven at the time she gave an evidential video taped interview which was played before the jury. In the course of describing the applicant’s alleged offending against her she was asked “So what after he asked you to suck his diddle?”  She replied:

Don’t tell mum or I’ll give you a big hiding… If you don’t tell Mum I’ll give you  some  lollies  and  some  money  and  he  gave  me  a  dollar  and  some two dollars.

[26]     She had earlier stated that the appellant “keeps on hitting Mum and stuff and he yells and he hurt Mum’s ribs…”  Asked “Have you see any of the hitting that happened to Mum?” she replied:

Only some, about slapping her or punching her and he told us to go in our room and we heard Mum crying because he had punch her ribs and that’s all… When he punched her ribs Mum told him to take her to the hospital and then he said a swear word…

Who went to the hospital?

…Mum he just dropped her off.

Asked:

You said you have seen sometimes when Scotty’s done some hitting to Mum tell me some of what you’ve seen?

She replied “Some slapping and punching.”  Asked what part she replied:

Around here or somewhere (indicates chest and stomach with hand) and around on her arms and some punching.

Punching where?

Around here on the neck and Mum got some bruises on her arms and legs.

[27]     It was put to her in cross-examination “These things didn’t happen did they?” She replied “They did.”

[28]     The first complainant recounted her daughter’s complaint.  Shortly after the applicant’s arrest as they were returning home she said “Mum… is Scotty going to jail?”  She replied “Yes.  He’s going to jail and we never have to see him again.” Then the child asked “Mum are we gonna visit him, will we be going to visit him?” Her mother replied “No.  We never have to see him again.”  The child said “Mum can I tell you something that’s really really really really really rude?”  Her mother responded “What?” and the child replied “I have sucked Scotty’s dick.”  As a result the child’s complaint was reported to the police.

[29]     Mr  Tennet  submitted  that  there  was  no  sufficient  nexus  between  the allegations of the two complainants to justify the joint trial and that the evidential value to the daughter’s case of the evidence in the mother’s case outweighed its probative value: DPP v P [1991] 2 AC 447, 460. We do not agree.

[30]     In  his  ruling that  the  counts  relating to  the  child  should  not  be  severed Judge Callander cited R v R CA261/02 4 December 2002.   There the evidence of sustained violence by an appellant was held to be admissible to provide the context both of the sexual offending alleged against a child and the reason for the delay of her complaint.

[31]     The Judge considered that the evidence in the present case of the violence to the mother provided the context of the sexual abuse allegation in the counts affecting the daughter and that the threat to her of a physical beating or hiding was especially significant.  He considered that it explained the applicant’s attitudes and behaviour in terms of his self-assurance and assertiveness, his power and control, his quite dominant confidence and why the daughter made her complaint the very day the applicant was taken into custody.   He said that in short he was satisfied that the circumstances of violence gave the jury a legitimate overview of the circumstances in which the alleged indecent assault and unlawful sexual connection were said to have taken place.

[32]     We respectfully agree. There is some difference as to the test to be applied. In R v M [2000] 1 All ER 148, 152 the Court of Appeal stated:

As Professor Birch pointed out in a useful note in [1995] Crim LR 651, it is important to distinguish evidence of background, which is normally admissible, from ‘similar facts’ evidence. Her note continues:

‘Similar fact evidence  is  employed  as  evidence  which tends  strongly to prove a particular fact (identity, intent, causal connection or whatever) which could be proved by other means but which the prosecution has chosen to establish by reference to other misconduct of the accused. As such, the evidence may need to be possessed of a high degree of probative value in order to buy its ticket to admissibility, for it involves “dragging up” material which  is  by  definition  prejudicial  and  which  might  have  been  left  out. Thus it has been said that such evidence should be admitted in circumstances where   it   would   be   an   “affront   to   common   sense”   to   exclude   it (per Lord Cross in Director of Public Prosecutions v. Boardman ([1974]

3 All ER 887 at 908, [1975] AC 421 at 456). Background evidence, on the other hand, has a far less dramatic but no less important claim to be received. It is admitted in order to put the jury in the general picture about the characters involved in the action and the run-up to the alleged offence. It may or may not involve prior offences; if it does so this is because the account would be, as Purchas L.J. says in R v Pettman (2 May 1985, unreported, “incomplete or incoherent” without them. It is not so much that it would be an affront to common sense to exclude the evidence, rather that it is helpful to have it and difficult for the jury to do their job if events are viewed in total isolation from their history.’

[33]     In Australia, Pfennig v R (1995) 182 CLR 461, 464-5 suggests that such evidence has been treated as within the ambit of the rules as to propensity evidence. Flatman and Bagaric Non-similar fact propensity evidence: admissibility, dangers and jury directions (2001) 75 ALR 190, 194 propose a separate test for relationship

evidence to dilute the exacting Pfennig test.  In Conway v R (2000) 172 ALR 181,

212-3 paras 97 and 101-2 the Federal Court of Australia has held that “relationship evidence” does not fall within the strict rule applied by Pfennig to “similar fact” evidence and that the test for its admission is that of relevance, coupled with the statutory requirement under s 137 of the Commonwealth Evidence Act 1995 that its probative value outweigh its prejudicial effect.

[34]     The contested evidence would satisfy the English “background evidence” and the Australian “relationship evidence” tests.  New Zealand law has to date found it unnecessary to multiply categories of what are simply types of discrete evidence. We are satisfied that to sever the evidence of the applicant’s conduct towards the mother   would   deprive   the   jury   of   important   information   concerning   the circumstances of the offending, touching on such vital questions as why the child was vulnerable to such offending and why delay in reporting it could be explained. Its probative value is significant.  That coupled with a suitable direction concerning wrongly prejudicial effect, the terms of which were not challenged, justifies the admission of the evidence in New Zealand.

Ground (3): miscarriage of justice by reason of the complainant’s conduct

[35]     This ground at first sight is the strongest.   On the second day of the trial defence counsel applied for an order discharging the jury on the grounds that various statements by the complainant, all except one in cross-examination, had led to the admission of information that was unfairly prejudicial so that if the trial continued there would be a miscarriage of justice.   The trial Judge declined the application. It is now submitted that a miscarriage resulted.  We refer to the passages relied upon by Mr Tennet, with one exception in the order in which the evidence was given. The allegations are summarised in the following headings.

Allegation of assault with which the accused had not been charged

[36]     Asked in chief as to the first occasion of violence the complainant said:

There was one time when he… was angry with me, ‘cos I was upset to him, and I wasn’t talking, and I was in a real quite upset mood and he put his finger in my mouth, and really ripped it, a cut, and scrape, and he was going like that…[T5]

[37]     The allegation was one with which the accused had not been charged and was repeated in later cross-examination [T59].

Suggestion that complainant was required by applicant to work at an escort agency

[38]     The next passage was at pp 40-41:

You were working at, was it, Courtney’s [an escort agency]?… That’s right. And you’d been working before that at another place in Hamilton, wasn’t

it?… Do I have to answer this?   I’ve never worked in any other place in

Hamilton… Ever.

Apollo One?… I’ve never, ever worked at Apollo One, ever.

…

Now, you said you didn’t have to work in a parlour ‘cos you were no longer with him.   I take it you mean the accused?… Well, our relationship had ended.  I didn’t need to get money for him to buy tattoo gears, to buy leather jackets, his hope to get a Commodore and all that, you know, I didn’t need to.

But when you met him and he was in prison, you were doing the same trade, weren’t you?… No. A month after I met him yes I did.  I wasn’t in a parlour though.  I was a private escort.

Oh.  Same diff?… Yeah.  And I did that for ten months. Yeah. Okay.  Now, presumably, you didn’t enjoy all the work –

THE COURT: Just pause…

[39]     It is convenient to take out of sequence a later passage.  At pp 68-9 counsel asked the complainant about the bruises she had shown a friend.  He asked:

…you didn’t get any or all of those bruises at work?… No, none.  None at all.

Okay.  The nature of the job was such that you got – didn’t get bruised?… No I did not receive bruising from my job.

I suggest to you that that’s where that bruising, that you showed [the friend]

came from?… Oh I doubt it.  If I was treated like that about a client, my boss

and the other girls would have done something.   We have alarms in the rooms.   No way I’d be having someone else up for that.   If I was getting bruising like that you would think that Scott would not allow me to continue working there.

Volunteering that applicant had been in prison for a long term and was a drug addict

[40]     Defence counsel asked a very broad question:

Do you see your relationship with this accused as a mistake in hindsight?… Um, yes.

And did you form that view at any time before the 1st  of November last year?… I was beginning to realise he was violent and it wasn’t going to stop and that I’d wasted three years and five months waiting for someone who was totally violent and a drug addict. [T 43]

Volunteering misconduct affecting the daughter

[41]     The passage reads:

Before or at his release you were given the opportunity to be able to contact the

Parole Officer at any time weren’t you?… Yes.

And you had all those…? And I did as soon as I knew things weren’t gonna change and it was escalating to the point that I probably would have been dead if I come home that day, course I went to her.  Just as well after what happened to [her daughter] a week prior. [T54]

It recounts the escalating violence and the conduct towards the second complainant, each of which was properly the subject of more pointed evidence.

Disclosing that the applicant had been in prison in Australia

[42]     The complainant was asked about her injuries:

…two days later those injuries were still quite visible weren’t they?… Yes. A lot of people commented on them at the party.

Now, there was a friend of yours from Wellington, was that right?… Yes…

And  there  were,  they  weren’t just  friends  of  Scotty’s,  were  they,  other people, mutual friends… You only met them, what three or four months ago, is that right?… I met them when he started working there.

The party wasn’t like his mates that he has known since the age of 10 or 15 or something?… Oh, Timmy he’d known well, he’d known him from being in prison in Australia. [T64-5]

Demeaning counsel (1)

[43]     The first episode of the witness making a remark demeaning counsel was:

You’ve got a lot wrong, haven’t you?… No, I haven’t got a lot wrong, you’re just grabbing for straws, trying to confuse me and make it a joke.

It’s no joke, it’s a serious trial, isn’t it?… Yeah, but that’s all you’ve got to go on. [T67]

…try just listening to the question because I just want to – you complain…?… Your questions are jokes.

Well?… They’re boring.  You’re going on and on and on.

…

THE COURT: [Ms A] just pause. Just be patient. Thank you. CROSS-EXAMINATION CONTINUES BY MR TENNET

Leaving aside the critique of my cross-examination, can we just deal with the pain you felt from the finger.  Still hurting two weeks later ‘cos you go to the doctor.  Right?… Yeah.

And he breaks it or relocates it or does some medical treatment to it?… Yes.

…And how long did the effects of that medical procedure or whatever it was last for after that?… I can’t remember how long it ached.   What I remember is the broken ribs and that took eight, ten weeks.  I couldn’t get comfortable no matter how I slept –

No, let’s just – ?… That’s more relevant in my mind.

Ms [A], stop, stop, stop.  Listen to the question please.  Answer it?… Do I

have to keep answering to him?

THE COURT: Just be patient Ms [A].  She did answer it Mr Tennet.  She says she can’t remember how long it ached for.  That the broken rib then intervened. [T 76]

Volunteering that the applicant was “high on P”

[44]     Next was the toy box incident:

…he started stamping toys, is that right?… He stomped in a toy box full of

Barbie doll furniture.

You told us yesterday how much that meant to you?… Yes.

And he burnt?… All the broken toys he burnt in our incinerator outside. And during that he violently assaulted you, is that right?… Yes.

That didn’t happen either did it?… Yes it did, he was high on P. [T80]

Association with a gang

[45]     Complaint was made of the answer to the following question:

Now you went off to Hamilton to look at a car.  Why Hamilton and why not Otorohanga?… ‘Cos also we were going to Hamilton ‘cos he wanted some things for his Tribesman top.  He wanted some yellow felt and some suede and that, to make a number 13 to put on his jacket… [T76:]

The applicant had been in jail for seven years

[46]     The  passage  complained  of  was  in  response  to  a  question  about  the complainant’s entitlement to take a motor bike:

He had tattoo gear?… Yes, which I purchased, I paid for.

Is that why you kept it after the relationship broke up?… Well, what does he need that for in jail?  I had to pay for it.

And figuring he didn’t need his bike in jail?… Was not his bike.  That was not his bike.  He wrote a letter to me saying for me to keep everything, that was my money that, that bike came from.  That bike was purchased for us.

He paid for it through his earnings at work, hadn’t he, the bike?… Nah, the bike was for, before he even went to work.  You’re just talking a whole lot of rubbish.  The bike, he put the deposit down for the bike the day after he got out of jail.  It was my savings.  He slapped it all down on a bike.  How could someone who has been in jail for seven years get out of jail and have money to go purchase a motorbike?  He took all my savings and put it on that bike.  He wrote a letter saying I could keep that bike, so it’s mine. [T83]

Demeaning counsel (2)

[47]     The second passage relied on as demeaning counsel commenced:

…you had to start at six o’clock at night, or you were fired?… I’m not even answering to you any more all right?  I’m not answering to that any more. Any more.

…

THE COURT

Pause please?…  What’s all this got to do with it.

…

Pause please.  All right.  Now.  Ms [A] Mr Tennet has a job he has to do. He’s got to put questions to you.   It is important that you answer those questions, and the sooner you answer the sooner you will be finished – giving your evidence.  All right?… Yeah.

So just listen carefully?… Yeah.

No matter how frustrating you might find it?… Yeah. Mr Tennet has to ask you some questions?… Yeah. All right?… Yeah.

Mr Tennet next question please. [T84]

Shooting up $2000 of P

[48]     The context of the “Shooting up $2000 of P” was:

Apart from your ribs getting broken, it was no different at the end of October as the beginning of October, was it?… Oh, what’s your question again, sorry, what was that?

THE COURT: Just pause please.  I don’t understand the question. WITNESS: Neither do I.

THE COURT: Just pause please.

MR TENNET: If Your Honour doesn’t understand – WITNESS:  Don’t know what your points are.

THE COURT: Pause please.  Now, Ms [A], you’re not answering questions or your commenting is slowing the process and that will only prolong your

having to sit in that witness box.   Now would you please rephrase  the question so that I can understand it.

CROSS-EXAMINATION CONTINUES BY MR TENNET

I suggest to you there is no difference in his attitude between the beginning of October while he was still working and the end of October?… Yes, the three weeks he was off work he had shot up in his arm $2,000.00 worth of P… [T96]

[49]     Mr  Tennet  submitted  that  the  disclosure  of  these  matters  affecting  the applicant’s character, coupled with the comments demeaning counsel, was unfairly prejudicial and that the trial miscarried as a result.

Discussion

[50]     In his written submissions Mr Lawry for the Crown cited the following cases:

R v Weaver [1968] 1 QBD 353; R v Yeates [1992] 1 NZLR 421; R v Gray CA361/96

20 February 1997; R v Hughes CA425/97 26 February 1998; R v McLean [2001]

3 NZLR 794; and Arthurton v R [2005] 1 WLR 949 (PC).

[51]     He submitted that they established the following propositions:

The admission of prejudicial evidence through inadvertence does not of itself require the discharge of a jury.  It depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted, and the circumstances of the case as a whole (Weaver);

The test is whether there is a real danger, or a reasonable suspicion, that the accused was or might have been prejudiced by what took place (Gray);

The decision to discharge a jury is a matter of discretion for the trial judge.  An appellate court will not interfere with such a decision lightly. Where the trial judge has not fallen into any error in principle, it is necessary for the appellate court to form the view that there has been unfairness, which, if not corrected, would amount to a miscarriage of justice (Arthurton);

It is to be expected that juries will conscientiously apply the directions given by a trial judge (Arthurton);

In cases where the credibility of the accused is critical, the Courts will be particularly scrupulous to ensure that the prejudice can be adequately addressed by directions to the jury (Arthurton; McLean).

[52]     In  oral  argument  attention  focused  on  the  context  of  the  questions  and responses and the character of the cross-examination.

[53]     The first complainant had met the applicant in Linton prison where he was an inmate and moved to Otorohanga to be able to visit him regularly when he was at Waikeria.   Such prejudice as might result from the applicant’s being a convicted prisoner was inherent in the case.

[54]     A further contextual aspect is that apart from the complainant’s response in chief to an enquiry about the first occasion of violence when she referred to the applicant’s putting his finger in her mouth and ripping it, the passages complained of occurred in the course of cross-examination.  We do not regard the initial allegation as of particular significance in the overall perspective of the case.   The first complainant’s evidence in chief extended for thirty pages; her cross-examination for

76 pages and her re-examination a further five.   The theme throughout was of a sustained pattern of violence described in considerable detail.  The addition of this further episode to what had been elicited at depositions cannot be said to have trapped the defence in a manner risking miscarriage.

[55]     In considering the passages in the cross-examination it is material that, in her ruling  on  the  mistrial  application  on  day two  in  responding  to  Mr Tennet’s complaints that directions to the jury would not cover the matters, the Judge said:

[11]     Mr Tennet complains that directions to the jury would not cover all the matters.   I should confirm that early in cross-examination yesterday afternoon, I did indicate caution to Mr Tennet when there were then, already, signs that this particular witness was well able to withstand significant attack in the witness box.   While it was a matter entirely for counsel as to what style he adopted, I did alert him to the possibility that his questions put opinions as propositions to the complainant and invited opinions in reply, opinions which would not ordinarily be admissible as evidence and which would not assist the jury.

[12]      In saying that, I am conscious that, in any event, some latitude must be required because sometimes it is necessary to put a proposition as to motive and in this case, the defence from the cross-examination thus far, is a significant challenge to the credibility and reliability of the complainant. The cross-examination has been a firm and, at times very aggressive attack, on credibility as is indeed the accused’s right.  To the extent that it relates to a motive to lie or to manufacture a complaint, then such matters as have been

put which have contained opinion, whether in question or answer, may be relevant.

[56]     There are many ways to cross-examine and one of counsel’s responsibilities is to select the approach that will be most effective with the particular witness in the eyes of the particular jury.  In the course of Mr Tennet’s argument we reviewed in detail the cross-examination, which is most simply described as a slugfest, defined by Merriam-Webster as “A fight marked by the exchange of heavy blows; also: a heated dispute.”  The Judge at p 36 had found it necessary to indicate the caution to counsel referred to at para 11 of her ruling of 12 August.  The passage at p 41 about the  complainant’s  enjoyment  of  her  work  as  an  escort  (para [38]  above)  was followed by the suggestion that:

The job involves, I was going to say faking it… pretending to be interested in men that you wouldn’t really care about, unless they are paying for your time and your favours.

At p 42 the Judge expressed concern with relevance and sent the jury away, to allow her to confer with counsel.   There followed the open question at p 43 (para [40] above) that received the answer that the complainant had waited for three years and five months for someone who was totally violent and a drug addict.  The answer was directly responsive to the question.   At p 46 defence counsel cross-examined the complainant about having had an abortion and enquired whether she had told the applicant at any stage that the baby was his.  The Judge decided to let the jury go for the day and wished to discuss one or two matters with counsel.   The theme was resumed in the morning.

[57]     At p 53 counsel suggested that the complainant had been given some support systems so she could go and approach the probation officer.  She responded that no such systems existed and had said:

He was recommended to go to anger management, non-violence… drug counselling and all these things…

when the Judge intervened.   Then followed the passage reproduced at para [41] which  included  the  comment  about  what  had  happened  to  the  complainant’s daughter.  Seen in context we do not regard the comment as a gratuitous attempt to demean the applicant in the eyes of the jury.

[58]     On the next page when defence counsel cross-examined the  complainant about an alleged pinch on the thigh in the visiting area of the prison the complainant said:

It’s easy to squeeze a pinch in.  That’s why it was a pinch and not a punch in the head ‘cos that would have been seen and there would have been a mark or something.

Counsel asked:

A pinch not a punch?… Yeah a pinch on my thigh. Was it the first… was it the first of the month…

Crown counsel complained of the comment and was supported by the Judge.  Then at p 58 counsel put to the complainant:

…there’s big dramas, violence happening to you, you have the escape, we covered that yesterday, seen the police, seen the lawyer, going home, more dramatic news, then on Monday you were speaking, making a big statement to Detective Sergeant Burgess right?…

[59]     The combination of facetiousness with heavy personal attacks courted the very kind of responses of which the Judge had warned and which occurred.   That tone provides explanation for the witness’s displeasure with counsel in the passages reproduced under the heading “Demeaning counsel”.

[60]     Read in context, the knowledge of “Timmy” from being in prison in Australia is directly responsive to the preceding question which challenged the extent of the applicant’s knowledge of the people present.

[61]     The answers to questions about the complainant’s work (pp 40-41; 68-69) are responsive and contain no suggestion of gratuitous allegations made to demean the applicant.

[62]     The passage (para [44]) including the statement at p 80 “he was high on P”, is the complainant’s explanation for the reason for the violent assault upon her.  There is  nothing contrived  or  gratuitous  about  the  answer  that  might  suggest  she  has fabricated it to demean the applicant in the jury’s eyes.  The same may be said of the

reference (para [48]) to the applicant’s having “shot up in his arm $2,000.00 worth of

P” (p 96).

[63]   We have referred at several points to our assessment that the answers complained of as introducing damaging material were made in responsive reply to questions  in  cross-examination.    The  same  may  be  said  of  the  comments  on counsel’s performance.  The complainant was in a humiliating position being called to recount demeaning and brutal treatment. The defence had elected to embark upon a bruising cross-examination which would inevitably irritate the complainant.

[64]     As the House of Lords has recently emphasised in R v A (No 2) [2002] 1 AC

45, the fairness of a trial is non-negotiable.   But in an adversarial contest a party which elects to play hard cannot complain at a vehement response. Generally speaking,    cross-examining   counsel    and    the    client    on    whose    instruction the cross-examination  is  undertaken  must  accept  its  foreseeable  consequences. The experience with New Zealand juries, including the work of Professor Young and his colleagues NZLC R69 Juries in Criminal Trials (2001), is that they are fair minded and will comply with to a clear direction as to how they are to treat material that is potentially prejudicial.  To a large extent counsel’s conduct of the case affects both what evidence is admitted and whether in the light of responses to the way the case is conducted by counsel the trial may be assessed as fair.

[65]     Had the passages complained of been introduced by the prosecution in chief there would be great force in Mr Tennet’s submissions.   But the defence having elected to make the allegations in the way they were advanced has courted the responses.  We do not doubt that, if in any case trial counsel acted irresponsibly and then elected to appear on appeal, the Court would consider making of its own motion an order for a new trial to avoid injustice: cf R v Pointon [1985] 1 NZLR 109. When this point was mentioned in the course of argument, Mr Tennet raised the possibility of another counsel taking over the brief.

[66]     But robust cross-examination is one of the many options open to counsel, who must be accorded wide discretion.   The matter was put as  follows by the High Court of Australia in R v Wakeley (1990) 93 ALR 79, 86:

It is the duty of counsel to ensure that the discretion to cross-examine is not misused. That duty is the more onerous because counsel's discretion cannot be fully supervised by the presiding judge. Of course, there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case. But until that stage is reached

— and it is for the judge to ensure that the stage is not passed — the court is, to an extent, in the hands of cross-examining counsel.

[67]     The  limits  of  aggressive  cross-examination  are  suggested  by  s 14  of  the

Evidence Act 1908:

14       Indecent or scandalous questions

The Court shall forbid any question it regards as—

(a)       Indecent  or  scandalous,  although  such  question  may  have  some bearing on the case before the Court, unless the question relates to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed; or

(b)      Intended to insult or annoy, or needlessly offensive in form, notwithstanding that such question may be proper in itself.

[68]     Aggressive cross-examination will become improper when it is calculated to humiliate, belittle and break the witness: Peter Brauti “Improper Cross-Examination” (1997) 40 Criminal Law Quarterly 69 at 95.  So in R v Bouhsass (2002) 169 CCC (3d) 444 the Ontario Court of Appeal was troubled by Crown counsel’s cross-examination of the accused:

11       In this case, the tone of the cross-examination was often sarcastic, personally abusive  and  derisive. The language  used  was  emotive  and  it measured the appellant against a severe moralistic standard. The appellant was  attacked  for his lifestyle, including  his  relationship  with  women  in general,  his  sexual  activities,  his  supposed  heroin  addiction  and  his “thievery”. While some of these matters (the thefts and the heroin addiction) were  held  by  the  trial  judge  to  have  probative  value,  as  indicated,  the Crown’s questions focused largely on the prejudicial content of the evidence, rather than its probative content.

A new trial was ordered.

[69]     Generally,  counsel  find  it  politic  to  conduct  cross-examination  with  a “measure  of  courtesy”:  Mechanical  and  General  Inventions  Co  and  Lehwess  v Austin  and  the  Austin  Motor  Co  [1935] AC 346, 359. An overly aggressive

approach even within the bounds of propriety will frequently see the jury sympathise with the witness and possibly influence the outcome of the case.

[70]     We have stood back and considered whether the addition of the specific term of imprisonment to the jury’s knowledge of the fact of the applicant’s being in prison in New Zealand, the reference to his knowing Timmy in prison in Australia, to his gang  link  and  to  his  use  of  P  could,  despite  the  defence  contribution  to  its emergence, could be said to have caused the trial to miscarry.  We are not of that view.   All were the consequence of the conduct of the case; it would be a very unusual case for an appellant who repents of a hard line taken at trial to be permitted to try again before another jury.

[71]     We are satisfied that the introduction of the evidence when understood in context and balanced by a strong direction to which no exception was taken did not entail miscarriage.  Nor, we add for completeness, is there any Pointon argument, that is an argument based on counsel incompetence, which could have any prospect of success.

Decision

[72]     Because of the need to discuss the challenges to the complainant’s evidence we give leave to appeal.  But the appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland