R v W(CA222/06)

[2007] NZCA 34

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985. ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA222/06 [2007] NZCA 34

THE QUEEN

v

W(CA222/06)

Hearing:         20 February 2007

Court:            O'Regan, Chisholm and Rodney Hansen  JJ Counsel:  N J Sainsbury for Appellant

M F Laracy for Crown

Judgment:      1 March 2007         at 11 am

JUDGMENT OF THE COURT

A        The appeals against conviction and sentence are dismissed.

BOrder prohibiting publication of the name or identifying particulars of the appellant.

R V W(CA222/06) CA CA222/06  1 March 2007

REASONS OF THE COURT

(Given by Chisholm J)

[1]      Following trial in the District Court the appellant was found guilty by a jury on one count of rape and one count of sexual violation by digital penetration.   He was found not guilty on a third count of sexual violation by anal penetration.  The appellant was sentenced to 15 years imprisonment.   Although he appealed against both conviction and sentence, his appeal against sentence was later abandoned.

[2]      The appeal against conviction relies on alleged errors in the trial process which fall into three broad categories:   interventions by the trial Judge;  recall of a prosecution witness after counsel had presented their closing addresses;  and errors in the  Judge’s  summing-up.    It  is  alleged  by  the  appellant  that  individually or cumulatively these errors render the guilty verdicts unsafe.

Background

[3]      The appellant and complainant are close relatives.   As a result of concerns raised  by  the  complainant’s  mother  in  December  2003  the  police  investigated whether the complainant had been sexually abused by the appellant.  At that time the complainant denied that there had been any sexual misconduct and the allegations were not pursued.  A further investigation was undertaken by the police in December

2004 after the complainant had made a disclosure to a friend.   This time charges were laid.

[4]      Count one alleged that the appellant sexually violated the complainant by digital penetration between January 2001 and November 2004.   During the period spanned by this count the complainant was aged between nine and 12 years.  Count two alleged that the appellant raped the complainant between December 2003 and November 2004.   The complainant was aged between 11 and 12 years during this period.  Both counts were representative.   The third count alleged unlawful sexual connection by anal penetration between November 2003 and January 2004.

[5]      The trial was held in Christchurch from 15 to 17 May 2006 before Judge MacAskill and a jury.  By this time the complainant was 14 years of age.  She gave evidence which, if accepted by the jury, was capable of satisfying the ingredients of each of the charges and was cross-examined  at  length by  defence  counsel  (not Mr Sainsbury) who  is experienced in the conduct of criminal trials.   During the course of cross-examination the Judge intervened, initially when counsel was cross- examining the complainant about letters she had written, and later when he was cross-examining her about her disclosure interview.  The first two grounds of appeal arise from those interventions.

[6]      The  next  witness  for  the  Crown  was  Dr  Healy,  a  medical  practitioner. Dr Healy examined the complainant on 30 June 2005 and gave evidence that she had located a healed split to the base of the complainant’s hymen.   She expressed the view that this would have been caused by penetrative trauma.   Although Dr Healy was cross-examined, she was not questioned about whether the injury to the hymen could have been caused by inserting a tampon, a point that was to later assume some prominence.

[7]      Four  other  witnesses  gave  evidence  for  the  Crown.    The  complainant’s mother described the relationship between the appellant and complainant with particular reference to a number of incidents.   She confirmed, however, that the complainant had not made any disclosures to her about any inappropriate conduct by the appellant.  Recent complaint evidence was given by the complainant’s friend to whom she had spoken shortly before the charges were laid.  Evidence was also given by a person that the complainant had stayed with during the period of the alleged offending.   Finally, the police officer who had conducted a video interview of the appellant played the video to the jury.  During that interview the appellant denied the offending.

[8]      No evidence was called on behalf of the accused and counsel delivered their closing addresses to the jury.  Then the trial took an unusual twist.

[9]      After defence counsel had completed his address, counsel for  the  Crown raised in Chambers her concern that during his closing address defence counsel had

suggested to the jury that the injury to the complainant’s hymen could have been caused by the insertion of a tampon.  It was contended by counsel for the Crown that there was no evidential basis for that proposition and that under those circumstances the appropriate course was to allow Dr Healy to be recalled.

[10]     Defence counsel opposed the recall of Dr Healy.  He explained that the point he was  making to  the jury was that  the  injury  could  have  been  caused  by  the complainant’s finger when inserting the tampon and that it was unnecessary to recall the doctor because the jury would know that a tampon could not have caused the injury.

[11]     The Judge granted the Crown’s application for Dr Healy to be recalled.   In his ruling the Judge said that he was not satisfied that anything would be necessarily gained by refusing the Crown’s application to recall the doctor and he noted that in R v Flynn (1957) 42 Cr App R 15 the Crown had been permitted to call rebuttal evidence very late in a trial. The Judge said that despite defence counsel’s confidence that the jury would be knowledgeable about the tampon issue, there was a risk that there might be one or more jurors who were not so fully informed and who, in the absence of appropriate medical evidence, might go “quite wrong with respect to that point”.

[12]   Having been recalled Dr Healy gave evidence that there was a “small possibility” that the injury to the complainant’s hymen could have been caused by the insertion of a tampon but that it was “not a high probability”.  She also said that an injury of this nature would “not usually” be caused by a person inserting her own finger into her vagina “because it would be a painful process and most people do not do that sort of thing”.  Dr Healy was briefly cross-examined by defence counsel.

[13]     After Dr Healy’s evidence concluded there were no  further  addresses by either counsel and the Judge summed up.  In due course the jury returned the verdicts mentioned earlier.   Both the recall of Dr Healy and the Judge’s summing-up have given rise to several grounds of appeal.

Interventions by the Judge

[14]     As already mentioned, two interventions have featured in this appeal.   We will consider them in the same order as they arose in the trial.

Intervention concerning letters

[15]     During cross-examination of the complainant, defence counsel attempted to emphasise the positive relationship between the complainant and the appellant and the negative relationship between the complainant and her mother.  The complainant was referred to letters that she had written to her mother and a social worker and two letters were produced as exhibits.  Later defence counsel indicated that he had some further documents and that rather than go through them one by one he would give them to the witness, prosecutor and Judge “in one go” and that they would then “go through them”.

[16]     According to the transcript the Judge pointed out that the letters “are not inconsistent with what the witness has said today” and that the jury then retired briefly while there was further discussion between the Judge and counsel.  After the jury  returned  there  was  no  effort  by  defence  counsel  to  produce  any  of  the documents  as  exhibits.     But  he  continued  his  line  of  cross-examination  with reference to two letters and an internet diary.

[17]     Mr  Sainsbury submitted  that  counsel for  the  appellant  should  have  been allowed to pursue his cross-examination without intervention from the Bench.   He complained  that  by intervening  the  Judge  had  interfered  with the  “dynamic”  of defence counsel’s cross-examination.   Mr Sainsbury also claimed that the Judge’s unnecessary  intervention  would  have  left  the  jury  with  the  impression  that  the defence  was  improperly  trying  to  put  documents to  the  witness  and  had  to  be prevented from doing so by the Judge.

[18]     We do not think that there is anything in this ground of appeal.   In all the circumstances,   including  the  earlier  production  of  two  letters  and  counsel’s indication that he wanted to take the complainant through further documents (which

appear to have been handed to the Judge), there was nothing untoward in the Judge pointing out that the letters were not inconsistent with what the witness had already said.  There is no indication that defence counsel was prevented from pursuing his line of cross-examination.   Indeed, he did so with reference to two letters and the internet diary.

Intervention concerning disclosure interview

[19]     In her disclosure interview the complainant said that the appellant had poked his finger  into  her  vagina  “through”  her  clothing.    This  issue  was taken up  by defence  counsel  during  cross-examination.     However,  when  he  began  to  put questions and answers from the disclosure interview to the complainant the Judge asked him to put the whole passage rather than reading line by line.  No exception was taken to that intervention.

[20]     Once the whole of the relevant part of the disclosure transcript had been read to the complainant,  defence counsel put  to  her that  it  was not  possible  for  the appellant to have poked her vagina through her clothing.  The Judge then intervened:

I am a bit concerned about this because you have skipped over the bit that is about underneath, and the word “through” is ambiguous and I think clarified in the interview.   “Through” could mean, with the material in front of the finger, or it could mean “between parts of clothing or underneath” as the witness goes on to say.

After further discussion, which is not recorded in the transcript, counsel for the appellant continued to cross-examine the complainant about her earlier statement that the appellant had poked his finger into her vagina through her clothing.

[21]     Mr  Sainsbury submitted that  there  were  a  number  of problems  with  the Judge’s  intervention.    First,  because  the  jury  were  not  privy  to  the  disclosure interview transcript they were being invited to take at face value the Judge’s position on what the passages in the interview actually meant.  Second, it was inappropriate for the Judge to express his view that the word “through” was ambiguous.  Third, the Judge’s intervention would leave the jury with the impression that there was not really any serious issue in the point being raised on behalf of the accused.  Fourth,

there was a risk that the jury might  perceive the Judge as  being critical of the defence.

[22]     Again, we do not think that there is any merit in this ground of appeal.  The Judge  was  obliged  to  ensure  that  counsel’s  propositions  were  fairly  put  to  the witness,  especially having  regard  to  her  age.   The  Judge’s  observation  that  the complainant  had raised the possibility of something happening “underneath” her clothing was accurate as were his comments about the word “through”.  In any event it is clear that defence counsel was not prevented from pursuing his line of cross- examination.

Recall of Dr Healy

[23]     For the appellant it was submitted that the recall of Dr Healy reflected several errors in the trial process:  allowing her recall;  the manner in which it had been dealt with in front of the jury;  failure to give counsel an opportunity to re-address;  and lack of cross-examination of the complainant about her use of tampons.   We will consider these issues in a slightly different order.

Failure of defence counsel to cross-examine

[24]     Mr Sainsbury claimed that the prosecution’s real complaint should have been that defence counsel had not elicited from the complainant that she used tampons. He said that it did not matter whether this reflected a tactical decision, oversight or error because the crucial importance of the evidence about the injury to the complainant’s hymen meant that counsel’s omission represented a serious flaw in the conduct of the defence case which rendered the convictions unsafe.   Mr Sainsbury contended that when the problem arising from the lack of cross-examination was identified the remedies available to ensure a fair trial to the appellant would have been to recall the complainant and possibly the doctor, or to direct a retrial.

[25]     We are unable to accept Mr Sainsbury’s analysis.   As defence counsel said during the Chambers discussion with the Judge, there was evidence before the jury about the complainant’s menstruation.  Her evidence was that she had her period just

before she turned 11 and that thereafter it occurred on a regular basis.   On her evidence it was “just after” her first period that the appellant started having sexual intercourse with her.   Thus there was some evidential foundation for the inference that defence counsel was inviting the jury to draw and in his summing-up the Judge simply commented that the defence proposition was not founded upon any question to the complainant about whether she used tampons.  He did not state that there was no evidence to support the inference.  As we see it the failure of defence counsel to question the complainant about her use of tampons was not anywhere near as critical to the defence case as Mr Sainsbury contended.

[26]   We should add that the problem of how to explain the injury to the complainant’s  hymen  to  the  jury  must  have  been  at  the  forefront  of  defence counsel’s thinking from the outset.  At some stage he was going to have to suggest an explanation other than intercourse for the transection.   The risks of cross- examining the complainant on the issue would have been obvious.  He would have foreseen the improbability of her conceding that it occurred as a result of accident or other cause (including the insertion of a tampon).  In the course of exchanges with the Judge, counsel acknowledged as much when he said  he had not  “gone  into masturbation and all those sorts of things”.  His response to the Crown’s application to recall Dr Healy strongly suggested a deliberate (and justified) decision not to cross-examine the complainant on the likely cause of the injury.

[27]     It  appears  to  us,  therefore,  that  however  the  matter  is  viewed  defence counsel’s approach did not carry any adverse consequence for the appellant because of the evidence given by Dr Healy when she was recalled.  Thus we do not accept that defence counsel’s conduct caused or contributed to a miscarriage of justice.

Decision to allow the recall of Dr Healy

[28]     As this Court observed in R v Lee [1976] 2 NZLR 171 at 174, the basic consideration when deciding whether to exercise the Court’s discretion in favour of allowing a witness to be recalled must always be what is right and proper to serve the interests of justice. While the circumstances under consideration are unusual to the extent that the witness was recalled after closing addresses, recall of a witness at that

late stage is not without precedent: Flynn.  As already mentioned, that decision had been cited to the Judge.

[29]     Mr Sainsbury accepted that as a matter of principle it was open to the Judge to  allow  Dr  Healy  to  be  recalled.     His  complaint  is  that  in  the  particular circumstances of this case the doctor should not have been recalled.   On the other hand, he responsibly conceded that on recall the evidence of Dr Healy was of more value to the defence than to the prosecution.

[30]     The recall of a witness at such a late stage of the trial is an extreme step and one fraught with risk.   While we appreciate that we have the benefit of hindsight which was not available to the trial Judge, we consider that the better course would have been for the Judge to point out to the jury during the course of his summing-up (as he in fact did) that the defence proposition that the injury had been caused by a tampon was not founded upon any question put to the complainant about whether she used tampons.  Having said that, we are satisfied that the recall of Dr Healy did not result in a miscarriage of justice in this particular case.

Manner in which recall dealt with

[31]     Once the Judge decided that Dr Healy should be recalled he explained the situation to the jury.   There is no official record of his remarks but trial defence counsel recorded:

… a matter arising with respect to remarks raised by Mr Rapley [defence counsel] in his address to you.  The Crown made an application to recall Dr Healy, it is an exceptional thing to do.   He [sic] was persuaded that you should have this.   I will be some time delivering my summing-up.   I am concerned that you may deliberate overnight.  So I propose that Dr Healy be called back to Court.  Should be here within 30 minutes or so.  Then you will hear the doctor’s evidence.  I don’t imagine it will be very long.  Then I will let you come back here tomorrow at 10 o’clock and give you a summing-up. I would like to start at 9am but unfortunately it will have to start at 10am as Mr Rapley has another sentencing matter to attend to.

The complaint on behalf of the appellant is that the explanation puts the blame for the problem on trial counsel, with the added bite as to timing of the start in the morning.  It is claimed that this unnecessarily and unfairly tarnished the defence.

[32]     We do not agree.   It was, of course, necessary for the Judge to explain the unexpected development to the jury and his explanation was entirely factual.  We do not accept that the Judge’s explanation unfairly put the blame on trial counsel or otherwise unnecessarily or unfairly tarnished the defence case.

Absence of opportunity to re-address

[33]     There is no indication that either counsel sought the opportunity to further address the jury after Dr Healy’s evidence had been completed.   Possibly no-one turned their minds to that aspect.

[34]     Having noted that this Court is obliged to focus on the substantive fairness of the trial process, Mr Sainsbury submitted that the absence of a further address from defence counsel was detrimental to the conduct of the defence case.  He noted that in terms of s 367(2) and (3) of the Crimes Act 1961 defence counsel was entitled to a further  right  of address  after  rebuttal evidence  has  been  presented  and  that  the situation  under  consideration  was  covered  by  these  provisions.    Mr  Sainsbury claimed  that  the  absence  of  a  further  address  was  detrimental  to  the  appellant because defence counsel had missed an opportunity to take advantage of the two matters mentioned by Dr Healy (possibility of the injury having arisen from the insertion  of  a  tampon  and  the  reference  to  pain)  and  had  thereby  missed  an opportunity to advance the defence case.

[35]     Section 367 of the Crimes Act relevantly provides:

…

(2)      When all the evidence (including any evidence given in cross- examination, re-examination or in rebuttal) is concluded, counsel for the prosecution may make a closing address to the jury.

(3)       After the closing address (if any) on behalf of the prosecution the accused or his counsel may make a closing address to the jury and the prosecution shall have no right of reply in any case.

Given these provisions we agree with Mr Sainsbury that it would have been appropriate for the Judge to have provided defence counsel (and the prosecution) with an opportunity to further address the jury after Dr Healy’s evidence on recall

had been completed.  The issue is, however, whether the absence of a further address by defence counsel has caused or contributed to a miscarriage of justice on this occasion.

[36]     It  is  by  no  means  clear  that  defence  counsel,  who  as  we  have  already mentioned is experienced in the conduct of criminal trials, failed to turn his mind to the issue of whether he should further address the jury.  It is entirely possible that he decided that it was better to leave the matter with the doctor’s recall evidence fresh in the jury’s mind.  He might also have taken into account that if there were to be further addresses the Crown would almost certainly attempt to neutralise any advantage that the defence gained from Dr Healy’s evidence.  In any event, as will be discussed shortly, the Judge repeated the two matters of importance to the defence case during the course of his summing-up.

[37]     Having reflected on these matters we have concluded that the absence of a further address by defence counsel did not cause or contribute to any miscarriage of justice.

Summing-up

[38]     Five  grounds  of  appeal  arise  from  the  summing-up.    They  concern  the Judge’s directions on a number of topics:  circumstantial evidence/inferences, the use of screens, the use of prior inconsistent statements, defence submissions regarding the injury to the complainant’s hymen and the Judge’s final remarks about how the jury might approach it task.

Directions as to circumstantial evidence/inferences

[39]     The  appellant’s  primary complaint  is  that  when  directing  the  jury  about circumstantial evidence and inferences the Judge said:

… there is no defence evidence to be considered in this regard.  I am not able to identify any evidence that emanated from the Crown’s  witnesses  that might fall into either category, inference or circumstantial evidence, except, perhaps, that you may think that the facts that you find to be proved justify an inference as to some reason why the complainant may not have told the truth.

Mr Sainsbury argued that the direction was unbalanced and carried the danger that the Judge’s comments could be  taken  as  a  judicial direction  that  there  was  no evidence to support the defence case.

[40]     Once  the  summing-up  is  read  as  a  whole  we  are  unable  to  accept  the appellant’s concerns.   The Judge was literally correct in saying that there was no defence evidence.   None had been called.   He correctly raised the possibility that there might be facts supporting inferences about whether the complainant had told the truth.  And later in the summing-up there was a comprehensive summary of the defence case including reference to inferences that the complainant was not credible which the defence asked the jury to draw.

Direction as to the use of a screen

[41]     Having reminded the jury that he had given earlier directions on this topic, the Judge traversed the reasons for using a screen and reminded them that they were not to draw any inference adverse to the accused.  Mr Sainsbury’s complaint is that the Judge did not tell the jury that the use of a screen is provided for in law or by statute and is a common feature of trials of this nature.

[42]     The transcript does not record the earlier direction given by the Judge.  We do not know whether that direction covered the matter raised by Mr Sainsbury which is, of course, a common and desirable component of such direction.  However, the direction given  by the  Judge  in  his  summing-up  comprehensively explained  the reasons for the use of a screen and reminded the jury that they were not to draw any inferences adverse to the accused.  Even if the matter raised by Mr Sainsbury was not mentioned at an earlier stage in the trial, we do not believe that such omission, either by itself or in combination with any other matters, has given rise to a miscarriage of justice in this case.

Directions as to prior inconsistent statements

[43]     The Judge discussed this topic with reference to letters that had been sent by the complainant.  While Mr Sainsbury accepts the direction was technically accurate

he claims that it was unbalanced.   We do not agree.   In the context of the overall summing-up the Judge’s remarks are balanced and appropriate.

Judge’s remarks about the injury to the hymen

[44]     When he was summarising the defence case the Judge referred to the defence response to the allegation that the complainant’s hymen had been damaged.   He repeated various points made by defence counsel: “who knows how it happened”; the injury could not be dated;   there had been no medical examination when the allegation of abuse had arisen;  and that there could have been another explanation for the injury to the hymen.

[45]     Having repeated those matters the Judge indicated that he should make some comments about those submissions.  He continued:

[106]    First, if the complainant’s evidence as to the events of the preceding three years is correct then the examination on December 2004 is unlikely to have revealed anything about the tear to the hymen.  Second, the reference to an injury caused by a tampon was not founded upon any question to the complainant about whether she used tampons.  When recalled Dr Healy said there was only a small possibility that a hymenal transection could be caused by the insertion of a tampon, that it was not a high probability.  Third, as to the suggestion that the injury might have been caused by the complainant’s finger, Dr Healey said that this kind of injury would not usually be caused by a person putting her own finger into her vagina, because it would be painful. Fourth, the hint that the injury might have been caused by injury caused by sex with another was not supported by any evidence.   All you have is [the complainant’s] unchallenged evidence that she had not had sex with any person other than her father.

It is contended for the appellant that the first three points made by the Judge are unbalanced and logically flawed.   Those propositions were developed in detail by Mr Sainsbury.

[46]     The Judge was, of course, entitled  to  make  observations about the  cases presented to the jury so long as his observations were balanced and accurate.  In our view his observations met both those requirements.  Given the underlying premise of the first observation (if the complainant’s evidence as to the events of the preceding three years is correct) we consider it to be fair and accurate.  The second and third observations are entirely factual.  When the second point is read as a whole it is clear

that the Judge was leaving the matter entirely over to the jury.  To the extent that the third point raises the question of pain it was not entirely unfavourable to the defence case.  And there is no criticism of the fourth point.

Final directions

[47]     Having completed his summary of the Crown and defence cases the Judge made some observations:

[117]    …   In  the   end,   you   may  find  that   your   assessment   of   the complainant’s credibility and reliability is a matter of broad judgment, rather than a close analysis of the evidence.  That is entirely a matter for you.

[118]    However, there are two points I suggest you consider with care.  The first is the lack of detail on [the complainant’s] account and the second is the credibility of her description of the alleged sexual intercourse.  The women amongst you, members of the jury, may be able to make a valuable contribution to your deliberation.

[119]    Now if, for the purposes of discussion, you assume that the alleged sexual contact in fact took place I invite you to consider how you would expect a complainant of [the complainant’s] age to report it now, with the lapse of time since it happened.  Just how much detail would you expect her to remember?  You might consider these questions…

The Judge then posed a series of questions that the jury might like to consider.

[48]     In Mr Sainsbury’s submission paragraphs [117] and [119] are unbalanced and unfair.  He claimed that when they are read as a whole these directions would have the effect  of directing the  jury away  from a  close  analysis  of the  evidence,  as requested by the defence, and would also suggest that the jury should adopt the approach of assuming that  the complainant  is  correct.    He  also  claimed  that  it provided the jury with rationalisations to get around the lack of detail and credibility in her account.

[49] We do not find anything untoward in the Judge’s comments in [117]. He was simply saying that in the end the jury might find that their assessment of the complainant’s credibility and reliability turned on a broad judgment.   He was not deflecting them from a close analysis of the evidence.  To the contrary, earlier in his summing-up he had told the jury that they would need to have regard to the whole of the evidence in forming their judgment about witnesses.

[50] Nor do we find anything untoward in his comments in [119]. The Judge was asking the jury to assume for the  purpose  of  his  later  discussion  about  how a complainant of that age would react that the alleged sexual contact in fact took place.   We do not think for a moment that the jury would have misconstrued this direction.  Given the age of the complainant the issue raised by the Judge and the questions posed by him were entirely appropriate.

Outcome

[51]     None of the grounds of appeal have been made out and the appeal against conviction is dismissed accordingly.  Given that the appeal against sentence has been abandoned, it is also dismissed.

[52]     In view of the close relationship between the appellant  and  complainant, there will be an order prohibiting publication of the name or identifying particulars of the appellant.

Solicitors:

Crown Law Office, Wellington