R v WILLIAMS
[2003] NZCA 91
•12 June 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA 448/02
THE QUEEN
v
CAMERON WILLIAMS
Hearing:11 June 2003
Coram:Anderson J
Baragwanath J
Doogue JAppearances: J H Wiles for Appellant
J C Pike for Crown
Judgment:12 June 2003
JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J
[1] The appellant was convicted by a jury in the District Court at Auckland on 24 October 2002 on counts of indecent assault on a boy aged between 12 and 16 years and sexual violation by sodomy and was sentenced to 7½ years imprisonment. He seeks leave to appeal out of time against his convictions. The Crown does not oppose the application and we are satisfied that the delay is excusable. We accordingly give leave and proceed to consider the appeal on its merits.
[2] On 14 June 2001 the complainant, then aged 15, visited a house in Auckland where a 16 year old friend of his was being fostered. The appellant, who was adult, was also visiting the house that evening. The appellant gave the two youths alcohol to drink.
[3] The complainant’s evidence was that the appellant, who was sitting on a couch with him, opened the fly of the complainant’s jeans and began to masturbate him. The complainant said that the appellant then took him into the bedroom, removed his jeans and, after further masturbation, sodomised him.
[4] The appellant advanced five grounds of appeal, each of which we are satisfied is without merit.
[5] The first requires leave to be granted to have it considered. It is based on what was said to be fresh evidence of the complainant’s friend which it is submitted:
… is cogent and… would have materially affected the verdict of the jury.
[6] The principles were stated by this Court in Crime Appeal CA 60/88 (1988) 3 CRNZ 512, 513:
The jurisdiction to allow an appeal on the ground of discovery of fresh evidence is derived from s 385(1)(c) Crimes Act which provides that the Court shall allow an appeal against conviction if it is of opinion that on any ground there was a miscarriage of justice. This Court has refrained from attempting to set any exclusive test which should be applied in order to determine whether the fresh evidence is of a nature sufficient to establish that there was a miscarriage of justice (R v Arnold [1985] 1 NZLR 193, 196). In general the evidence must be new or fresh in the sense that it was not available at the trial and be relevantly credible and of a nature that, if given with the evidence adduced, might reasonably have led the jury to return a different verdict.
[7] In the appellant’s notice of appeal the reason why the friend was not called by the defence at trial was stated:
Counsel advised against calling the witness on the basis of perceived unreliability.
[8] The friend’s account was deposed to in his affidavit of 22 May 2003:
…
3)I was a good friend of the complainant at the time he says [the appellant] violated him.
4)I was present at the… house on the night in question. At this time I was a visitor at the house along with [the appellant]. On this day I had invited [the complainant] to come and visit me at the house. When he arrived we decided to get some wine and [the appellant] went to buy this with [the complainant]. I had a few glasses of wine then went to visit my girlfriend. I arrived back at the house at about 10pm. When I got back [the appellant] and [the complainant] were sitting in the kitchen. We all started drinking and were quite drunk. [The complainant] was falling over.
5)The house is a two bedroom house with two single beds in one bedroom and a double bed in the other.
6)After I got home [the complainant] went into the bedroom with the double bed to lie down. At one stage I went into the bedroom to see if he was ok. I then went back to watch TV. [The appellant] stayed on the couch all this time. [The complainant] woke up and came back out to watch TV with us. We stayed up until about 12 pm then we all went to sleep.
7)I was present in the house during the entire time [the complainant] says this incident occurred. I never saw [the appellant] trying to put his penis in [the complainant’s] backside at any time. It would have been impossible for this to have happened without my having see such an incident.
…
9)I know [the complainant] tells lies to get what he wants. I originally made a false complaint myself to police saying [the appellant] had raped me. But I knew it was wrong and stopped it going any further. I wanted money from ACC at the time. But I also told [the complainant] that I went to the police and made a complaint about [the appellant]. I told him about the ACC letter that had been received in the letterboxes recently and that if you could get someone convicted you could get ten grand. A few days later [the complainant] made a complaint about [the appellant] raping him as well.
[9] The proposed new witness is a self-confessed liar. Defence counsel made a deliberate election not to call him at trial. We have no reason to believe that the recent affidavit is any more truthful than the false complaint the proposed witness said he made to the police. It is to be noted that Mr Wiles appeared at the trial and was in a position to advise whether or not the friend should be called. Having accepted his advice not to do so, the appellant may not now alter his election and have the trial re-run on another basis. Leave to have that evidence considered on the substantive appeal is refused.
[10] The next ground was expressed in the notice of appeal and in the appellant’s written submission as that “the verdict of the jury was against the weight of evidence”. That is not a ground of appeal; the nearest statutory ground is that the verdict is unreasonable or could not be supported having regard to the evidence (Crimes Act 1961 s 385(1)(a)). When that point was made to Mr Wiles during oral argument he acknowledged that he could not advance any argument in support of the ground. We set out briefly our reasons for agreeing with that concession.
[11] The written submission was based upon an alleged absence of any indication by the complainant that he did not consent to the alleged offending.
[12] In relation to the episode on the couch, we reproduce a passage from the complainant’s evidence-in-chief:
The accused started kissing you?… Yes.
What did you do when he began kissing you?… Oh tried moving away but I didn’t say anything cos he was pretty drunk and I didn’t know what he was gonna do.
Then what happened next?… Then he started masturbating me.
What were you wearing?… Um, pants, t-shirt – but he took my pants off – I was just wearing boxers and a t-shirt.
What sort of pants were they?… Jeans.
What did you do when he was masturbating you?… Um, like I said I couldn’t do much cos he was drunk and I didn’t know what he would’ve done if I told him to stop.
How were you feeling when this was occurring?… Scared and frightened.
[13] In relation to the episode in the bedroom, the evidence-in-chief included:
Tell Her Honour and the jury what happened once you were in the bedroom?…Then – um, when I got into the bedroom, tried putting my jeans back on and he just pushed me on to the bed, started masturbating me again, then he rolled me over and stuck his penis in my bum.
When he was masturbating you, did you say anything to him?… I told him to stop and he didn’t.
How many times did you tell him to stop?… Two or three times.
Did he say anything to you at all in the bedroom?… No.
What did he do when he put his penis in your bum?… Just pressed down with his hands on my shoulders.
What occurred then?… I think he just kept doing it and I kept telling him to stop.
How long did he do that for?… About ten minutes.
How did you feel when this was occurring?… Scared and sore.
[14] In cross-examination defence counsel referred to the complainant’s statement to the police:
I put it to you that you told the police then that you were
“on the couch with [the appellant] and [the friend] was on the couch also, and [the appellant] leaned over and started to kiss my neck. He then tried to give me a love bite. He didn’t say anything as he did this, and I didn’t say anything. He then began to undo my pants. I was wearing jeans with a belt and boxer shorts. He undid my fly and took my pants down, leaving my boxers on. At about this time [the friend] left the room.”
That’s what you told the police then wasn’t it?… No.
In fact the passage put correctly recorded the statement.
[15] Defence counsel later asked:
So while you say the accused was masturbating you – you said nothing and made no show of resistance or unwillingness did you?
The complainant answered:
No.
He was further questioned:
…you told this Court that anal intercourse took place is that right?… Yes.
And went on for about ten minutes?… Yes.
And whilst this was going on you said nothing, made no protest, did nothing at all to indicate lack of consent did you?… I did tell him to stop.
You told this Court you asked him to stop when he, as you say, took down your pants, while entering the bedroom but whilst anal intercourse was occurring you did not tell him to stop did you?… No.
You didn’t protest, didn’t cry out or ask for [the friend], call out for [the friend]?… No.
Nothing like that at all you’re telling us? Then I assume you’re telling this Court this was the first time you even been anally penetrated is that right?… Yes.
Must have been very painful?… Yes.
But you didn’t cry out or call for [the friend] or try and push the accused off?… No.
That’s what you’re telling this Court isn’t it?… Yes.
So you just lay there and let it happen, is that right?… Yes.
This did not happen at all did it?… Yes it did.
[16] There was some variation in the complainant’s accounts. But inconsistencies in a witness’s evidence do not of themselves require its rejection; the experience of giving evidence itself can be a burdensome one and regard must be had to human sensibilities at that stage as well as in relation to the events deposed to. The inconsistencies are matters which were no doubt the subject of submissions to the jury. A fifteen year old was faced with conduct by a mature man who had been drinking. In appraising the appellant’s conduct and belief its members were entitled to take into account the surrounding circumstances including the relative ages of the appellant and the complainant and the complainant’s account that he was “scared and frightened… scared and sore”.
[17] It is to be noted that experienced defence counsel made no application under s347 of the Crimes Act to discharge the jury before verdict. We agree with counsel’s contemporary assessment, endorsed by his concession in oral argument, that taken as a whole the evidence was sufficient for all counts to be left to the jury. The second ground also fails.
[18] The third ground was of alleged misdirection in relation to the issue of consent on count 2. In considering this ground it is necessary to identify how the parties’ cases were put by them to the jury.
[19] There were three counts in the indictment, the first of indecent assault on a boy between 12 and 16 years (s140A), the second of sexual violation by sodomy (S128B) and the third, by way of alternative to the second, of anal intercourse with a boy under the age of 16 years (s142).
[20] The primary defence argument was that there was no sexual activity whatever between the appellant and the complainant.
[21] The Judge first directed on the indecent assault. She correctly stated in relation to the first count that:
…consent is not an issue.
She moved immediately to her direction on count 2, continuing:
It is, however, in the next one of sexual violation…
[22] Having directed on other elements of that count, the Judge then directed on the issue of consent in relation to the alleged sexual violation in a manner which Mr Wiles acknowledged was correct.
[23] She then moved to count 3, the alternative to count 2. After dealing with the other elements she said:
And again, consent is not a defence, it’s not an issue in this case.
[24] Finally in her summary of the defence case, the Judge said
…the defence put it to you that count one – it just simply didn’t happen. Count two – you do need to look at consent but of course the defence say that it didn’t happen at all and count three, again they say that did not happen.
[25] While Mr Wiles accepted that the Judge directed the jury correctly as far as she went in discussing the element of consent in relation to count 2, he submitted (1) that the Judge misdirected the jury by her reference (para [23] above) to “this case”, arguing that the jury might have taken that as a reference to the whole of the proceedings rather than to the particular count; and (2) that the direction as to consent did not substantially address the evidence that might be relied on to support an alternative argument that if there was sexual touching it might have been consensual.
[26] As to (1), we are satisfied that, read in context, the Judge’s reference to “this case” is plainly to count 3. There is nothing in the verbal point that the jury would have taken “case” to mean “the whole proceeding including count 2”. Mr Wiles acknowledged that hearing the summing up it did not occur to him to challenge the direction. The verbal point emerged only when the written transcript was read. The jury could not possibly have gained the erroneous impression that the Judge was giving a retrospective direction in relation to count 2 inconsistent with the terms of the earlier correct direction upon it.
[27] As to (2), while it was the duty of the Judge to direct the jury as to all elements of each count, she was not required to emphasise the evidence potentially pointing to consensual activity when the primary defence case was that no sexual activity occurred. To have done so might itself have caused problems of balance by distracting attention from the defence actually advanced.
[28] The third ground is accordingly not made out.
[29] The fourth ground is an allegation of bias. In referring to the delay in complaint, the Judge said:
Now it’s also been spoken about some delay in this, that it was some time before he’s told his mother, some possibly seven months. Now, as the Crown prosecutor pointed out, there may be very good reasons why the complainant – the victim of this offence – delayed in making any complaint and you shouldn’t speculate about what they are. Delay in making a complaint is not an issue in our law.
[30] The appellant’s submission is that to describe the complainant as a victim begged an essential question. Moreover to do so in recounting the Crown’s submission displayed bias on the part of the Judge by suggesting that the complaint was justified; taken with the two pages of the summing up dedicated to the Crown case as against one to the defence case the appellant was not fairly treated.
[31] It was inevitable that the discussion of the Crown case required longer than the single point taken by the defence. The summing-up, recounting the defence submission about “glaring inconsistencies which dent the complainant’s credibility”, changes in the complaint’s account, and contradiction by his mother as “a piece of crucial evidence in the defence submission that goes to the heart of the Crown case”, put that point effectively, and no less cogently by not labouring it.
[32] The use of the term “victim” was wrong. But we are satisfied that read in context it is not calculated to occasion a miscarriage of justice. So read, the direction was a fairly clinical invitation to the jury to consider the logical option of a delayed complaint as to which, by s 23AC of the Evidence Act 1908:
The Judge may tell the jury that there may be good reasons why the victim of such an offence may refrain from or delay in making such complaint.
[33] Overall we do not regard the direction as entailing the kind of alteration in the centre of gravity of the summing up as would risk miscarriage. The ground fails.
[34] The fifth ground was that the Judge ought not to have permitted the Crown to cross-examine a witness called by the defence as to her previous convictions. She deposed in chief to the conversation between her son, the complainant’s friend, and the complainant about compensation they could receive by way of Accident Compensation as a result of alleged sexual abuse of at least one of them by the appellant. But it has long been settled, as is stated in Cross on Evidence paragraph 9.49, that:
A party against whom a witness is called may impeach that witness in various ways… The party may cross-examine with regard to the witness’ discreditable conduct in the past, with abuse showing bad character. The witness may also be asked about his or her previous convictions or the existence of bias…
Indeed, s 12 of the Evidence Act provides:
12 Proof of previous conviction of witness
(1) A witness may be questioned as to whether he has been convicted of any indictable offence, and, upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, the cross-examining party may prove such conviction.
As the Cross passage suggests that provision is no more that an expression of the common law right to cross-examine, which is not limited to indictable offences.
There is nothing in the point.
[35] Being satisfied that all grounds are without substance we dismiss the appeal.
Solicitors:
Crown Law Office, Wellington
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