R v Wira

[2015] NZHC 2712

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PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-088-002907

[2015] NZHC 2712

THE QUEEN

v

DAVID DENNIS KARANGA WIRA

Hearing:	3 November 2015
Appearances:	B O'Connor for the Crown A Fairley for the Defendant
Judgment:	3 November 2015

JUDGMENT OF WOOLFORD J

[On application for severance]

Solicitors:           Crown Solicitor, Whangarei

R v WIRA [2015] NZHC 2712 [3 November 2015]

Thomson Wilson, Whangarei

[1]    The defendant is charged with offences against two different complainants. On 4 September 2014, it is alleged that Mr Wira indecently assaulted and sexually violated a 55 year old woman, as well as assaulting her with intent to rob her. Mr Wira is also charged with sexual violation of a 26 year old woman between 16 and 18 September 2014.

[2]    I have, this afternoon, granted the Crown’s application to amend the charges to appropriately reflect the alleged offending as contained in the evidence now filed. The charge list now contains 11 charges – four against the first complainant and seven against the second complainant.

[3]    Mr Wira now applies for severance of the charges in relation to the two separate complainants.

Factual background

[4]    As to the first complainant, the summary of facts alleges that the 55 year old complainant suffers from an intellectual disability. There is an expert report to that effect from a clinical psychologist.

[5]    The summary of facts alleges that on 4 September 2014, the complainant was walking her two small dogs around a suburb of Whangarei. The defendant and an associate approached the complainant. The defendant picked up one of her dogs and led the complainant into an alleyway. The defendant’s associate distanced himself from the pair. Once in the alleyway and out of sight of the general public, the defendant asked the complainant if she wanted to see his penis, to which the complainant responded “no”. He then grabbed the complainant and pulled her close to him. He then pulled his penis out of his pants, took hold of the complainant’s hand and put it on his penis. He held her hand on his penis for some time and used her hand to masturbate himself. He then ejaculated onto the ground before using her jersey to wipe his penis.

[6]    The defendant then again pulled the complainant towards him and thrust his tongue into her mouth. The defendant then demanded that the complainant remove her pants. When she refused and tried to push him away, the defendant forced his hand

down the front of her pants and thrust two of his fingers into her vagina. During the ensuring struggle, the complainant’s pants were ripped.

[7]    The defendant then forced his hand under the complainant’s top and grabbed her breasts, while asking the complainant for money. When the complainant stated she had none, the defendant asked for her watch. When the complainant said “no”, the defendant said he would take one of her dogs. The complainant bent over to pick up her dog, at which time the defendant advised his associate to move on and he would catch up in five minutes. As the defendant turned to communicate with his associate, the complainant took the opportunity to escape and ran off.

[8]    The second complainant is 26 years old and also suffers from an intellectual disability. There is also a report on file from a clinical psychologist in respect of her disability. The second complainant has a self-contained flat in an accommodation complex in a suburb of Whangarei, run by a subsidiary of IHC, and receives regular assistance from social workers.

[9]    The summary of facts alleges that on 16 September 2014, the defendant went to the complainant’s flat. He invited himself into the flat and shortly after encouraged the complainant to sit next to him on her couch. The defendant asked the complainant if she had been kissed before, to which the victim responded by saying no, she was still a virgin. The defendant then tried to thrust his tongue into her mouth, following which he asked her to close the flat curtains, stating that it was “so nobody would see”. The defendant took the complainant and led her to her bedroom. He directed the complainant to get into her bed. The defendant removed his own clothing and entered the bed next to the complainant. The defendant then undressed the complainant and digitally penetrated her vagina. He then asked the complainant to touch his penis, stating “put your hand on my dick”. When the complainant failed to do so, the defendant took her hand and forced it onto his penis. The defendant continued to hug and kiss the complainant before progressing to sexual intercourse by inserting his penis into her vagina.

[10]   The summary of facts further alleges that the defendant slept the night in the complainant’s bed before leaving the following day. Sometime in the afternoon of the

following day, the defendant returned to the complainant’s flat. He demanded that the complainant prepare him some kai before taking a shower. After he had finished showering, he demanded that the complainant look at his naked body. When the complainant retreated to her bedroom, the defendant followed her and climbed into bed. The defendant then attempted to get the complainant to participate in oral sex. When she declined, he attempted to force his penis into her mouth. He again sexually violated the complainant before leaving the address the following morning. When leaving, the defendant took a number of the complainant’s personal items including shampoo and a set of headphones.

Legal principles

[11]   The principles of severance developed before the Criminal Procedure Act 2011 remain applicable to decisions under s 138 of the Criminal Procedure Act, which provides as follows:1

138     Trial of different charges together

(1)The prosecutor may—

(a)notify the court before which a proceeding is being conducted proposing that—

(i)2 or more charges be heard together; or

(ii)the charges against 1 defendant be heard with charges against 1 or more other defendants:

(b)amend a notification given under paragraph (a).

(2)Despite subsection (1), if the prosecutor seeks to give or amend a notification involving a charge in respect of which the proceeding has been adjourned after the entry of a not guilty plea, the prosecutor must seek the leave of the court.

(3)Charges must be heard together in accordance with any notification given under subsection (1)(a) or amended under subsection (1)(b) unless the court—

(a)does not grant leave where the prosecutor seeks leave under subsection (2); or

(b)makes an order under subsection (4).

(4)If the court before which the proceeding is being conducted thinks it is in the interests of justice to do so, it may, on its own motion or on the application of a defendant, order that 1 or more charges against the defendant be heard separately.

1      Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Westlaw) at [CPA138.03].

(5)An order under subsection (4) may be made either before or during the trial, and,—

(a)if it is made during the course of a Judge-alone trial, the court must adjourn the trial of the charges in respect of which the trial is not to proceed; and

(b)if it is made during the course of a jury trial, the jury must be discharged from giving a verdict on the charges on which the trial is not to proceed.

[12]   There is a wide discretion to join charges and defendants and an equally wide discretion for the Court to order charges be heard separately in the interests of justice. The Court of Appeal has summarised the principles of joinder and severance as follows:2

Offending that is unrelated in time or circumstance should not be tried together unless the evidence of one incident is relevant to another to an extent that its probative value outweighs its prejudicial effect. That relevance may arise in a variety of circumstances, such as where the facts are so similar or the allegations interconnected to a point that it would be artificial to present them separately.

[13]   Adams on Criminal Law also states that prejudice to a defendant is a factor to be taken into account.3 The fact that a defendant may be obliged to give evidence is irrelevant, but not a decisive consideration. The discretion is wide. In the end, what  is required is a balancing between the legitimate interests of a defendant and the public interest in the fair and efficient dispatch of the Court’s business.4

Discussion

[14]   It is the Crown’s position that the evidence of each complainant is admissible in respect of the charges in relation to the other complainant.

[15]   Counsel for the defendant acknowledges that a pivotal issue will be the nature of the intellectual disability, if any, suffered by the first complainant. It is clear that the second complainant is intellectually disabled. In his written submissions, counsel acknowledges that if the Crown puts forward an argument that the defendant has intentionally approached women known to him to have an intellectual disability, this

2      Churchis v R [2014] NZCA 281, (2014) 27 CRNZ 257 at [28].

3      Bruce Robertson (ed) Adams on Criminal Law (online looseleaf edition, Westlaw) at [CPA138.03].

4      Anderson CA144/01, 1 August 2001 at [10].

would be highly relevant in considering whether the complainants’ evidence is cross admissible and also whether the defendant’s behaviour is unusual.

[16]   Counsel submits that it is unclear what, if any, disability is suffered by the first complainant. I am of the view, however, that the nature of her disability is made quite clear by an expert report from a clinical psychologist dated 10 September 2015. In her report, the psychologist has assessed the first complainant as having a full-scale intelligence score of 63 and is categorised as “extremely low in intellect”. This can be compared to the assessment of the second complainant, who has a full-scale intelligence score of 45, and is also categorised as “extremely low in intellect”. A full- scale intelligence score of 69 and below is categorised as “extremely low”.

[17]   The first complainant is assessed as being extremely low in intellect in most areas of functioning. The index scores that have particular reference are verbal comprehension and working memory. The verbal comprehension clearly demonstrated in testing and in interview with the first complainant, that she is limited in her understanding of words. The first complainant’s working memory is also limited. For example, her ability to sustain attention, concentration and exert mental control over information she has acquired is difficult for her. The first complainant has difficulty with the tasks that demand mental control, that is, holding information and short-term memory while performing some manipulation of the information. The first complainant also scored in the extremely low range for a verbal comprehension sub-test, which measures verbal concept formation and reasoning. She also made errors in certain aspects of receptive and expressive language. Her errors were mainly in lexical/semantic meaning and syntactic. Her overall language composite score showed that she was significantly below average and corresponded to a percentile rank of 0.1 per cent.

[18]   In summary, the psychologist assesses the first complainant as functioning at a very low level in all areas of cognitive functioning. In particular, her verbal comprehension and her expressive and receptive language are very limited.

[19]   I acknowledge that the second complainant is a little more disabled in all areas of functioning, but nonetheless, the first complainant is also extremely low in intellect in most areas of functioning.

[20]   In my view, I am able to infer that this would be evident when both complainants are approached by another person. When allegedly first approached by the defendant, direct questions of a sexual nature were asked of both complainants and, in my view, it would have been obvious to the defendant, both by the nature and the manner in which they replied that both complainants were significantly disabled. In addition to her intellectual disability, the first complainant has also been assessed as suffering from post-traumatic stress disorder, chronic dysthymic mood disorder, anger regulation problems, chronic suicide ideation and parasuicidal behaviours.

[21]   Defence counsel submits that there are vast differences between the two sets of offending. One set of offending took place in the presence of a third party, in public, was directed towards a significantly older female, took place between strangers and was directed towards a female not known to have an intellectual disability. The other set of offending did not contain such factors. Counsel, therefore, submits that the threshold for propensity evidence has not been met.

[22]   As noted above, I do not accept the last factor, but I am also of the view that the other factors either singly or together do not conclusively point to severance. The third party was a look out some distance away, the offending occurred in an alleyway with no members of the public present, the offending was not directed at a certain age group, but, in my view, at disabled women in general and the defendant, in my view, had contact with the first complainant long enough to establish that she was disabled. The most important factor, in my view, is that both complainants were obviously disabled.

[23]   I am, accordingly, of the view that there are the following similarities between the two sets of offending, which mean that the complainants are mutually supportive:

(a)Both complainants are single woman with obvious and significant intellectual disabilities;

(b)The offending happened ten days apart in suburbs of Whangarei.

(c)Both sets of offending commenced with the defendant asking the complainant a sexual question. He asked the first complainant if she wanted to see his penis. He asked the second complainant if she had been kissed before;

(d)In both cases the defendant thrust his tongue into the complainant’s mouth;

(e)In both cases the defendant took the complainant’s hand and held it on his penis;

(f)In both cases, the defendant told the complainant to open her legs; and

(g)In both cases, personal items of value were demanded or taken.

[24]   In those circumstances, it is my view that it would be artificial to present the cases separately. The jury should have the advantage of the full picture.

[25]In those circumstances, the application for severance is declined.

……………………………….

Woolford J