R v Wihongi Ca432/02

[2003] NZCA 341

IN THE COURT OF APPEAL OF NEW ZEALAND

CA432/02

THE QUEEN

v

CLIFFORD HARRY WIHONGI

Hearing:28 April 2003

Coram:Anderson J
Baragwanath J
Paterson J

Appearances:  J W Watson for Appellant

K Raftery for Crown

Judgment:6 May 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]       On his trial before a District Court Judge and jury the appellant was convicted of robbery, aggravated injury and kidnapping.  He now appeals against conviction on grounds relating to the manner in which the complainant’s evidence was given and the Judge’s directions to the jury in respect of lies and alibi evidence.

The offences

[2]       It was not an issue at trial that the complainant had been robbed, injured and unlawfully detained in the manner alleged by the Crown.  The central issue was whether the offender was this appellant. 

[3]       On 20 September 2001 the victim, a 54 year old woman, was attacked in the course of her duties as a night porter at a hotel in Whangarei.  The attack occurred at about 2.30 a.m. when the victim was responding to a spurious request, made by way of a cellular telephone call, for a room service meal.  She was confronted by a man wearing a dark balaclava, gloves and clothing.  The offender ran towards her, punched her in the side of the face, causing her head to strike the wall with sufficient force to damage the wall lining, and dragged her along the passage way into a room.  The offender then gagged the victim and bound her hands with duct tape.  He stole her keys and left the room for a short time before returning and forcing the victim to provide him with the combination for a lock on a door to the office area.  To enter the combination the offender removed a glove thereby revealing brown skin indicative of Maori or other Polynesian ethnicity.  Having stolen cash and documents from the till in the office area the offender returned to the victim, dragged her into the reception area and forced her into disclosing the keys to the safe.  The offender then stole money from the safe and absconded.

[4]       The evidence relied on by the Crown as proof that the appellant was the offender included the number of the cell phone and its location at the time of the spurious call, cash bags discovered at the home of the appellant’s partner and, significantly, a specific retail docket, also found at the home of the appellant’s partner and undoubtedly having been removed from the hotel at the time of the robbery. 

[5]       The appellant did not himself give evidence but a number of alibi witnesses were called on his behalf these being, in the main, members of his and his partner’s family.  The Crown’s response was that the alibi was founded on lies.

The mode of evidence

[6]       On 27 September 2002, ten days before the trial began, the Crown filed a formal application for an order that the complainant be screened from the appellant whilst giving her evidence.  The grounds relied on were that this would alleviate stress for the complainant and that the Court had an inherent power to make such an order.  Reference was made to attached written reports from a general practitioner and a psychologist.  The reports were dated 21 and 22 May 2002, thereby raising issues as to their relevance and freshness in respect of an application made four months later.  They did disclose that the victim had been severely traumatised by the attack and had been involved in literally dozens of counselling sessions for trauma recovery.  Her psychological vulnerability had been exacerbated by a subsequent anonymous threat and the consequential need for extra security at her isolated residence.  The psychological prognosis was for long-term, possibly permanent, vulnerability to stress triggers. 

[7]       Counsel for the appellant filed a written notice of opposition asserting there was no evidence that the complainant would be stressed while giving evidence and that the effect of an order would add to and promote prejudice to his client notwithstanding any warning the Judge might give to the jury.

[8]       The Crown’s application was dealt with, along with applications by the defence in respect of very late notices of alibi, on the morning of the trial, that is 7 October 2002.  Opposition to the Crown’s application was largely founded on concerns about inherent prejudice to an accused and on the staleness of the medical reports.  The Judge’s short written reasons for exercising his discretion in favour of the granting of a screen indicate that he was conscious of the stressful circumstances and consequences of the attack, including a long-term vulnerability to stress to be inferred, not merely from the contents of the medical reports but from the timing of the reports, which were written eight months after the incident.  The Judge was, of course, familiar with the circumstances from the deposition evidence.

[9]       Before the victim gave her evidence the Judge directed the jury appropriately and in the course of summing up he gave a further direction in the following terms:

In this instance you will recall I gave you a direction concerning a mode of evidence.  I have the power to make directions as to giving evidence and I made an order that the screen could be used.  If there was any complaint about that, that visits upon me.  It is a procedure that is available and it is quite clearly directed at reducing as much as possible the stress of people giving evidence in our Courts and I made that decision, but what I do stress to you, I made the decision, it is my decision, but nothing adverse to the accused should be inferred from the decision I made.  It had nothing to do with him, it was clearly directed at reducing the stress of the witness in giving her evidence.  I stress nothing adverse to the accused should be inferred from that.

Lies and alibi

[10]     The Judge’s directions in the course of summing up, on the question of lies and alibi are reproduced below:

[18]  The question of lies is obviously paramount in your mind.  Concerning lies if told they are only relevant to credibility of witnesses.  It is not evidence of guilt of the accused.

…

[26]  I said earlier that there is no requirement for an accused person to give evidence that should be emphasised.  He does not have to give evidence; the fact that he does not give evidence proves nothing.  Obviously you must not reason that he is guilty, because he has not gone into the witness box.  In assessing that position, it is often said that where an accused gives evidence, which is not the position here, or calls evidence, that three positions may arise.  You may think that the defence evidence is credible and reliable and a convincing answer to the Crown’s evidence, be that your view then of course the verdict would be not guilty.  You may think that although it is not entirely convincing, it leaves you unsure of just what the real position was, in other words it raises a reasonable doubt in your minds.  If that is so then it follows from what I have said that your verdict again will be not guilty.

[27]  You may think that the defence evidence, or part of it is entirely unconvincing and reject it as unworthy of belief.  If that is your view, you should be careful not to jump from that conclusion to an automatic conclusion of guilt or even regard that as adding to the case against the accused.  You should look back to the rest of the evidence and ask yourselves whether on the basis of that evidence you are satisfied about guilt.

The Defence Here is Alibi

[28]  An alibi is simply an assertion that the accused cannot be guilty of a crime because he was somewhere else at the time it was committed.  Where an alibi is raised by the defence as an issue, it does not have to prove positively that the accused was somewhere else at the time.  The Crown must satisfy you beyond reasonable doubt that the accused committed the crime.  If taking all the evidence into account you are left with the reasonable doubt about whether the accused was in the relevant place at the relevant time, then the Crown would not have proved its case beyond reasonable doubt.  If you reject the defence evidence in support of the alibi, that does not of itself mean that you should not [sic] convict, you must look at all of the evidence relating to all of the elements of the charges and be satisfied beyond reasonable doubt of guilt.

Appellant’s arguments

[11]     On this appeal Mr Watson submitted that there was no adequate evidential basis for making an order for screening, largely because the medical evidence was contained in reports and not formal affidavits.  Although candidly acknowledging that in all probability the affidavits would merely have produced or reproduced the reports themselves, Mr Watson was concerned that the discretionary exercise of an inherent power to depart from conventional procedure should be on a formally proven factual basis and not by way of informal medical certificates or reports.  His submissions emphasised the need for sparing use of the power, appreciation of potential prejudice to an accused and the right of an accused to confront an accuser.  In this respect attention was drawn to the observation of this Court in R v Daniels (1993) 10 CRNZ 165 at 168:

We wish to make it clear, however that it would only be in rare circumstances when such a procedure should be adopted in the case of a complainant of mature years.  Confrontation as it is sometimes called, can be important.

[12]     In relation to the alibi directions, counsel did not take issue with the inadvertent negative in the last sentence of paragraph [28] of the summing up.  This is understandable because the Judge’s meaning is quite clear from the transcript, as it would have been at the time the direction was given.  Rather, the complaint is that paragraph [28] does not introduce the possibility that the jury might believe the evidence or that it might raise in their minds a reasonable doubt as to the proof of guilt.

[13]     In respect of lies counsel submitted, in effect, that the directions fell between acceptable brevity and acceptable expatiation.  He submitted that if the circumstances called for a conventional short direction, what the Judge said was too elaborate, but if the circumstances called for a full direction, they were insufficient. 

Crown submissions on appeal

[14]     Mr Raftery submitted that when the mode of evidence application was heard the defence objection was not as to form but as to recency, whereas now the submission was the absence of formal affidavits.  He submitted that in all the circumstances the Court was entitled to infer a continuing vulnerability on the part of the victim.  No issue having arisen as to form at the original hearing and the appellant now, by counsel, appropriately acknowledging that the contents of formal affidavits would have been substantially the same, the point had no cogency on appeal.  In all the circumstances, including the evidence disclosed by depositions and a common-sense appreciation of the impact on a lone woman, in the early hours of the morning, of being confronted by a balaclava hooded, dark clothed assailant and dealt with in the way she was, there was a clear evidential basis and justification for the exercise of the discretionary inherent power.

[15]     This was not a “confrontation” type of witness because the victim was not accusing the appellant.  She could not identify any person and was simply giving evidence of what an offender had done to her.  In any event, the Judge’s directions both before the evidence was given and in the course of summing up, adequately met the situation, such that the appellant could not demonstrate a miscarriage of justice.

[16]     The Crown’s short answer to the complaints about directions in respect of lies and alibi is that these two issues were associated and the directions given were entirely adequate and appropriate. 

Discussion

[17]     A trial Court’s inherent power to regulate the way in which evidence is given has been acknowledged by this Court on many occasions and its existence is not in dispute.  But Mr Watson was right to emphasise that it is a power to be invoked sparingly.  As this Court warned in R v Daniels, it would be rare circumstances which justify a departure from an accused’s right to see and hear trial witnesses, in the case of a mature complainant.  Yet there is nothing in this case to give us concern.  The testimony of the witness was not confrontational, there was an adequate justification for the exercise of the discretion and nothing in the Judge’s reasons suggests an inappropriate want of restraint.  Were there evidence before this Court of a regional or national easing of restraint in relation to the power, an exemplary response might be called for, but those conditions have not been demonstrated.  Further, there is nothing to suggest a miscarriage of justice in the present case where the Judge’s careful directions and the evidential indications for them were obvious to the jury.

[18]     We agree with Mr Raftery’s submission to the effect that the issues of lies and alibi are integrated in the particular case.  The Crown’s response to the alibi was that it was founded on lies.  In these circumstances the Judge’s directions in paras [18], [26]-[28], reproduced earlier in this judgment, fall to be considered compendiously.  They are adequate in extent and appropriate in content.

Result

[19]     For these reasons the appeal against conviction must be and is dismissed.

Solicitors:

Crown Solicitors, Auckland