R v Toia
[2007] NZCA 331
•3 August 2007
PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA 310/06 [2007] NZCA 331
THE QUEEN
v
TE PAKI TOIA
Hearing: 17 April 2007
Court: Glazebrook, Randerson and Ronald Young JJ Counsel: Appellant in Person
J M Jelas for Crown
Judgment: 3 August 2007 at 4pm
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
REASONS OF THE COURT
(Given by Randerson J)
R V TOIA CA CA 310/06 3 August 2007
[1] The appellant appeals against his conviction and sentence on sexual violation and related charges arising from a series of incidents on 1 January 2005 involving two complainants. The convictions followed a jury trial in the District Court before Judge Kiernan which ended on 16 December 2005. The appellant was sent to the High Court for sentence and, on 10 August 2006, Williams J sentenced him on the sexual violation charges to preventive detention with a seven year minimum period of imprisonment. By a minute of 6 September 2006, Williams J clarified the sentence under s 372 of the Crimes Act 1961, imposing finite terms of imprisonment on the related counts of kidnapping, threatening to kill and assault. Those charges and the sentences imposed on them are not at issue in this appeal.
[2] The grounds for the appeal against conviction as clarified during the hearing of the appeal are:
(a) The Courts did not have jurisdiction to try and sentence the appellant. (b) The trial was unfair leading to a miscarriage of justice because:
(i)The appellant was not given proper facilities to prepare for trial while in custody;
(ii) The depositions process was invalid or unfair;
(iii) The jury was improperly reduced to 11 members; and
(iv)The jury was given a list of the appellant’s previous convictions.
(c) The verdict was unreasonable or cannot be supported by the evidence.
[3] The appellant made no submissions either in writing or orally in support of the sentence appeal but we nevertheless deal with the sentence issue later in these reasons.
[4] We will refer to the two complainants as A and M. A was 16 years of age at the time. The appellant was convicted in respect of A on one count of sexual violation by unlawful sexual connection (digital penetration) and one count of sexual violation by rape. He was also convicted in her case on separate counts of male assaults female, threatening to kill and kidnapping. In respect of the complainant M, the appellant was convicted on one count of male assaults female.
[5] Complainant A and the appellant were known to each other. They met on New Year’s Day along with other friends including M. Alcohol was consumed. Over the ensuing period, the group went to various addresses. The evidence adduced for the Crown was that the appellant punched A on a number of occasions and also punched M. Later, the appellant drove A to his home. A said she went under duress. The appellant punched her again according to the Crown evidence and also threatened to kill her. He pushed her through the doorway and told her to go to his room and to undress. According to A, the appellant sexually violated her by digital penetration and then rape.
[6] During sexual intercourse, two police officers arrived at the appellant’s home. One went inside and heard sounds consistent with sexual intercourse taking place. The other officer stayed outside the house but moved towards the rear. They each heard someone speaking in the house which we will mention again shortly. The first police officer decided to leave the house and they both then knocked on the front door. When they did so, the appellant came to the door with A standing a short distance behind him. According to the police officers she appeared distressed and mouthed to the police officers the words “help me”. After a short discussion she was taken from the address and made an immediate complaint of rape against the appellant.
[7] The appellant was unrepresented at trial and conducted his cross-examination of A through a solicitor appointed by the Court for the purpose. The appellant did not deny sexual intercourse had occurred. His defence was that A consented. The appellant did not give evidence. The jury plainly rejected his defence.
Jurisdiction issue
[8] The appellant’s main point in support of his conviction appeal related to the jurisdiction of the District Court and High Court to try his case and to sentence him. He maintained that the courts of New Zealand did not have jurisdiction over him and that he was entitled to be tried on a marae. He also submitted that he was a “sovereign being” and was not subject to any criminal statute enacted by the Parliament of New Zealand .
[9] The appellant supported his arguments by reference to the Constitution Acts of 1846, 1852 and 1986. His argument also embraced the Treaty of Waitangi (the Maori version), the Te Ture Whenua Maori Act 1993 and the Native Districts and Native Circuit Courts legislation enacted in the 1850s and 1860s. Finally, the appellant referred to s 36 of the Maori Community Development Act 1962, the Maori Community Development Regulations 1963 and the Maori Councils Act
1900.
[10] We are satisfied that the appellant’s argument on this point must be dismissed. In summary:
(a) The crimes with which the appellant was charged are all under the Crimes Act 1961 which, in terms of s 5, applies to all offences for which the offender may be proceeded against and tried in New Zealand and to all acts done or omitted in New Zealand.
(b)The Crimes Act 1961 was enacted by the New Zealand Parliament which has sovereign power to legislate: Berkett v Tauranga District Court [1992] 3 NZLR 206 at 212 – 213 (HC); R v Knowles CA146/98
12 October 1998; Nga Uri O Te Ngahue v Wellington City Council CA470/03 18 February 2004; R v McKinnon CA240/04 4 May 2005; and R v Harawira CA180/05 1 August 2005.
(c) This Court’s duty is to apply enactments of the legislature: Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC) and New Zealand Maori Council v Attorney-General [1987]
1 NZLR 641 at 690 (CA).
(d)The submission that the courts of New Zealand do not have jurisdiction over Maori incorporations, their members or lands vested in such incorporations has been rejected in New Zealand on a number of occasions: see, in particular, the decision of this Court in R v Miru CA65/01 26 July 2001 at [4] – [8] and [19].
(e) Arguments based on s 71 of the New Zealand Constitution Act 1852 (UK), the Native Districts Regulation Act 1858 and the Native Circuit Courts Act 1858 cannot aid the appellant. That legislation was repealed by Part 3 of the First Schedule of the Repeals Act 1891 and no longer have any force or effect: Barrett v Police HC HAM CRI 2003-419-64 14 June 2004.
(f) Finally, arguments based on s 36 of the Maori Community Development Act 1962, the Maori Community Development Regulations 1963 and the Maori Councils Act 1900 do not assist the appellant. Section 36 of the Maori Community Development Act empowers a Maori Committee established under the Act to impose penalties for certain minor offences but does not apply to the crimes at issue here. The Maori Councils Act 1900 has been repealed.
Unfair trial
[11] The appellant was in custody at all times after his arrest. The first issue raised under this heading related to access to computer facilities. The appellant complained to the authorities that he did not have adequate access to his laptop computer, particularly in the period leading up to the trial. He informed us that his computer had legislation stored on it which was relevant to support his jurisdiction/sovereignty argument. In the period between conviction and sentence he
had limited access to the relevant legislation and presented argument to Williams J on that point before sentencing. From our earlier remarks on the jurisdiction point, it is evident that the appellant has had extensive access to relevant material for the purposes of this appeal.
[12] It seems the appellant raised the issue of access to legal materials at an early stage. In a note dated 2 June 2005 contained in the case on appeal, the appellant states he applied for bail so he could obtain access to the relevant legal materials. This was denied. At the commencement of his trial on 12 December 2005, the appellant raised the jurisdictional issue, but Judge Kiernan dismissed it. In the period between his conviction and sentence, the appellant was in correspondence with the Office of the Ombudsmen. Reference was made to the regulations governing penal institutions and to the limited access the appellant was allowed to have to the prison’s computer suite. In a letter of 21 July 2006 the Ombudsmen’s office noted that the prison had agreed to extend the original access of two hours per week and had stated it was prepared to allow hard copy legal resources to assist the appellant if he arranged for them to be brought to the prison.
[13] While we have some reservations about the adequacy of facilities prior to the date of trial, we have no doubt the appellant was not disadvantaged in any way. As he explained to us, his concern was solely about access to legislative materials relating to the jurisdiction/sovereignty point. As we have already made clear, the appellant did not have any prospect of success on that issue and no amount of access to legislative or other relevant material on that issue could have assisted him.
[14] The second point raised by the appellant under this heading related to the depositions process. He submitted he had been denied the opportunity to cross-examine Crown witnesses at depositions and referred us to a document which purported to show that he had consented to hand-up statements for the purposes of depositions. We have examined the District Court file which shows that the appellant was committed for trial (initially in the High Court) on 5 May 2005. The committal was made solely on the basis of the hand-up deposition of complainant A pursuant to s 185C Summary Proceedings Act 1957. Under that provision, the complainant must not be examined or cross-examined on her statement unless she
wishes to give oral evidence or the court so orders. The appellant did not seek an order under this provision and none was made.
[15] Although the Crown had initially sought to hand up other briefs of evidence by consent, it seems no consent was forthcoming and the Crown relied on the evidence of A alone for the purposes of the committal. Nevertheless, copies of the briefs of the other Crown witnesses were delivered to the appellant on or about
29 March 2005. The appellant acknowledged he had copies of those briefs over the nine month period from that time until the commencement of his trial. At a later stage, the Crown indicated it wished to rely on the additional briefs, as it was entitled to do: R v Kerr CA70/91 7 February 1992.
[16] The appellant did not advance any detailed submissions suggesting he was prejudiced in any way by this procedure. Nor did he make any application under s 178 of the Summary Proceedings Act 1957 for an order that the evidence of any of the other witnesses be taken prior to trial.
[17] The next point taken under this heading is that the number of members of the jury was improperly reduced to 11. The appellant informed us that, at an early stage of the trial, the Court was informed that one of the jurors knew one of the complainants. The juror was discharged but not replaced as the appellant had expected. We sought a report from the trial Judge on this issue, which we then received on 31 May 2007 and provided to the appellant and counsel for the Crown for submissions. The report stated on this issue:
[3] A juror was discharged early in the trial and the trial proceeded with eleven jurors. The trial commenced on Monday 12 December 2005 and the accused was arraigned in the late morning of that day. A jury of twelve was empanelled and a foreman chosen and Mr Toia put in charge of the jury before lunch time. The Court then adjourned until after lunch on that day, and in the afternoon the Crown opened its case. The first witness was to be the principal complainant, and there were problems with the screen provided in the Courtroom pursuant to the mode of evidence order. Closed circuit television was organised as a substitute, and these arrangements meant that the evidence did not commence on the first day of trial. I sent the jury away to commence with hearing of evidence first thing on the Tuesday morning.
[4] On the morning of 13 December the evidence was to commence at
9.30 a.m. One juror was late attending Court and did not arrive until 10.15 a.m. After that juror had arrived but before the whole jury was invited into
the Courtroom, I received advice from the Crown Prosecutor that Crown witnesses recognised that late juror as he came from the same rural area as they did. I explained the issue that had arisen to Mr Toia in Court for Chambers, and then invited that juror into the Courtroom. I spoke to that juror in Court. He made it clear that he did not feel able to sit on the trial as he knew Crown witnesses. This was despite the Crown witness list having been read out in Court twice before the empanelling had proceeded the previous day. I advised Crown and Mr Toia that I intended to discharge this juror as being incapable of performing his duty. Mr Toia asked if the juror could be replaced. I explained to Mr Toia that since he had already been put in charge of the jury and the trial had commenced, it was not possible now to ballot another juror, and the law provided that the trial could proceed with eleven jurors, at my direction. Mr Toia appeared to be content with this position. The juror was formally discharged from service. Shortly afterwards the trial continued with eleven jurors.
[18] The appellant did not make any further submissions on this point. We are satisfied that the Judge properly exercised her power to discharge the juror in the circumstances she outlined. Since the appellant had already been put in charge of the jury at that point, there was no power to replace the juror. No unfairness or miscarriage of justice has been shown to have resulted from the reduction of the jury to 11 members.
[19] The final point taken under this heading is that the jury were given a list of the appellant’s previous convictions during the trial or during their deliberations. The trial Judge’s report states on this issue:
The record of the accused’s previous convictions was presented to me in Court in front of the jury. This occurred after the jury had delivered its verdicts, and before the sentencing date was set. No criminal history was given to the jury during the trial or during their deliberations, and there was no reference to any such history in any of the evidence. The first time the jurors would have been aware that Mr Toia had previous convictions was after their verdicts were delivered.
[20] The appellant made no further submissions on this point. We are satisfied his previous convictions were not before the jury at any point until after the verdict.
Verdict unreasonable or cannot be supported by the evidence
[21] Under this heading the appellant submitted there were serious issues about A’s credibility and significant discrepancies in the evidence of the two police officers who went to the appellant’s home at the time in question. We have put this
point under this heading to meet the grounds of appeal permitted by s 385 of the Crimes Act. The appellant’s first point arose from cross-examination of A about the number of times the appellant had asked her for sex. Initially she replied this had happened on only one occasion. Later, she accepted the appellant had asked her for sex on two occasions. She made it clear she was speaking of two separate occasions. On the first of these occasions she agreed she had told the appellant she did not wish to have sex and accepted he did not persist. She added she had made up a story at that time telling the appellant that her mother’s boyfriend had raped her. She accepted she had “honestly lied” to the appellant about that. As to the second occasion (on the date of the allegations before the Court) she denied in strong language that she had agreed to sex when it was suggested to her by the appellant. She also denied she had used the words “fuck me” overhead by the police officer who had entered the house. She maintained it was the appellant who used those words.
[22] That led to the appellant’s second point which related to a discrepancy in the evidence given by the two police officers. Constable Varton gave evidence that when he entered the house and heard sounds consistent with sexual intercourse he heard the words “fuck me, fuck me” in a muffled voice as he walked into the hallway. He was unable to say with any certainty whether the voice he heard was that of a female or a male. Because he was unsure of the situation and did not wish to make the mistake of interrupting what was taking place, he decided to retreat to the door and knock on it.
[23] Constable Davis was the second officer. As he walked outside past what he believed to be the bedroom, he heard a female voice say “fuck you”. He too was under the impression that the occupants in the room were engaged in sexual intercourse. Under cross-examination, he said he could not definitively say that it was a woman’s voice, but it sounded like a woman’s voice to him. He was sure that the words were “fuck you” not “fuck me”.
[24] The appellant submitted there were real doubts about A’s credibility, given the discrepancy in the evidence of the two constables about what they heard. The
appellant submitted that if the words the police heard were uttered by A and were
“fuck me”, this supported his defence that she consented to the sexual activity.
[25] In supplementary submissions we permitted after the oral hearing, the appellant referred to the absence of trauma to the complainant’s genital area. The expert medical evidence on this point was that this did not exclude the possibility of non-consensual sexual intercourse having occurred. Another point raised by the appellant in supplementary submissions was a discrepancy in the complainant’s evidence as to where her clothing was taken off. She could not explain why the clothing was found by the police in a different place than the bedroom where she said she removed them.
[26] We reject these submissions. The jury had all the evidence before them and plainly accepted A’s account of what occurred and, in particular, her evidence that she did not consent. The jury reached that conclusion notwithstanding the discrepancy in evidence between the two constables as to what they heard and any of the other discrepancies raised by the appellant. There was ample other evidence to support the complainant’s account that she was sexually violated without her consent. Apart from her own account (which the jury was entitled to accept), there was the evidence of the two police officers of A’s distressed state and her immediate complaint of rape; there was evidence from other witnesses of the violent assaults on A and M committed by the appellant before the alleged rape; there was medical evidence of bruising and other injuries sustained by A; and there was forensic evidence of A’s blood being found in the bedroom and in the appellant’s motor vehicle (supporting her evidence that she was assaulted before being forced to drive with the appellant to his home).
[27] Viewed overall, there was a substantial body of evidence which, if accepted, was capable of supporting the jury’s verdicts.
[28] We add that we sought a copy of the trial Judge’s summing up even though the appellant did not raise any complaint about the summing up. Although the Court did not record the summing up, the Judge kept very full notes, and we are grateful to her for supplying these to us along with the written issues statement she supplied to
the jury for the purpose of their deliberations. This material has also been supplied to the appellant and counsel for the Crown for comment. No further submissions have been received in respect of the summing up. We have examined it ourselves and are satisfied it was proper in all respects.
[29] We conclude there is no basis for the appeal against conviction and it is dismissed.
Sentence Appeal
[30] The appellant did not offer any submissions in support of his appeal against sentence, but we have reviewed the sentencing remarks of Williams J and the materials upon which he relied in imposing the sentence of preventive detention in respect of the two charges of sexual violation.
[31] One difficulty faced by the sentencing Judge was the appellant’s refusal to co-operate in reports required for the sentencing process. In particular, he refused to be interviewed by a probation officer and refused an interview with Ms S Visser, a clinical psychologist. The material before the sentencing Judge included the appellant’s long list of previous convictions; a brief report from the probation officer; a report dated 20 July 2005 from the psychiatrist, Dr G Galpin, prepared for the purpose of assessing the appellant’s fitness to stand trial; and a report dated
21 July 2006 from Ms Visser. The Judge also had the benefit of an amicus
appointed by the Court since the appellant was representing himself.
[32] The appellant was 47 years of age at the date of sentencing. He had an extensive list of previous convictions dating back to 1978 when he was 19 years of age. His most serious convictions were for rape and related charges on 2 July 1982 (resulting in a sentence of three and a half years imprisonment); a conviction for aggravated robbery involving a firearm in 1985 (for which he was sentenced to four and a half years imprisonment); and two convictions for aggravated robbery and related offences in 1996 (which resulted in two years imprisonment). Between these more serious charges there were a large number of other convictions involving dishonesty offences, alcohol and drug-related offending, and some more minor
assault charges. As the appellant stated to Dr Galpin he had, in consequence, spent substantial periods in jail.
[33] There is no question that the appellant was eligible for preventive detention, and the Judge carefully considered all the relevant factors under ss 86 and 87 of the Sentencing Act 2002. The Judge had available to him the sentencing notes from the rape conviction in 1982. He observed that the circumstances of that offending had similarities to the current offending. The appellant and another man saw a young woman on her own in the street, dragged her into a car and took her to a remote area where the appellant raped her while his associate looked on. As Williams J noted, the sentence of three and a half years on that occasion was a standard term for defended rape convictions at the time.
[34] The Judge considered that the protection of the community required a sentence of preventive detention, notwithstanding the relatively long period between the rape conviction in 1982 and the present offending. The Judge relied particularly on the following factors:
(a) The pattern of serious offending both sexual and violent; (b) The seriousness of the harm to the community;
(c) The “enormous” impact on the victim of the current offending;
(d)Ms Visser’s assessment that the appellant’s likelihood of reoffending was 39 percent over five years and 45 percent over 10 years;
(e) The appellant’s continuing denial of the offending;
(f) His lack of insight into the impacts of his conduct on others; and
(g) The complete absence of any efforts by the appellant to address the causes of his offending or to express any willingness to do so in the future.
[35] The Judge specifically addressed the issue whether a lengthy determinate sentence would provide adequate protection for the community. He was of the view that a finite term for the rape required, in the brutal circumstances in which it occurred, a sentence of the order of 12 years imprisonment. On our assessment, a higher sentence could well have been justified given the level of the violence, the holding of the victim against her will, the serious effects on her, and the appellant’s previous conviction for similar offending.
[36] Given the other factors identified by the Judge, we are satisfied the protection of the community required a sentence of preventive detention and that the seven year minimum period of imprisonment was justified. It follows that the appeal against sentence must be dismissed.
Solicitors:
Crown Law Office, Wellington
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