Rangitonga v Parker
[2017] NZCA 47
•20 February 2017 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA21/2017 [2017] NZCA 47 |
| BETWEEN | NEIHANA JEREMY RANGITONGA |
| AND | SHANNON LAING PARKER |
| Hearing: | 16 February 2017 |
Court: | Miller, Mallon and Peters JJ |
Counsel: | W T Nabney for Appellant |
Judgment: | 20 February 2017 at 10.00 am |
Reasons: | 7 March 2017 |
JUDGMENT OF THE COURT
A Leave to appeal is granted.
BThe appeal is dismissed.
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REASONS OF THE COURT
(Given by Miller J)
Introduction
This judgment gives our reasons for granting leave to bring, but then dismissing,[1] an appeal against a pre-trial judgment of Judge Mabey QC in the District Court at Tauranga in which the Judge refused to stay a private prosecution brought by the respondent.[2]
[1]R(CA21/2017) v P(CA21/2017) [2017] NZCA 14.
[2]Parker v Rangitonga [2016] NZDC 12960 [DC Judgment].
The Crown previously prosecuted the appellant for raping a woman, T, and injuring her with intent to injure, but chose of its own volition not to pursue the latter charge at trial in May 2012. The appellant gave evidence claiming that sex was consensual and attributing her injuries to blows that he inflicted when she stole his wallet. He was acquitted of rape. The respondent, acting on behalf of T, then brought this prosecution, which rests on the same narrative and again charges him with the offence of injury with intent to injure. The appellant says the prosecution is an abuse of process because he would not have given evidence at the first trial had he known what would happen and is now unfairly circumscribed in his defence.
The narrative
The matter has a substantial history. When the private prosecution was brought the District Court was satisfied that there was prima facie evidence available to support a charge and accordingly accepted the charging document. The appellant then sought a discharge based on a plea of previous acquittal, but failed in the District Court, the High Court,[3] and the Court of Appeal.[4] In its judgment, this Court offered the observation that:
[51] Notwithstanding our finding that the special plea is not available to Mr [R], we have some concerns about the propriety of a private prosecution now proceeding in circumstances where the Crown deliberately withdrew the wounding charge prior to his trial for rape. It has not been suggested there was any indication this charge or any similar charge would or might be re-laid. In these circumstances, Mr [R] may have had grounds to believe he was no longer in jeopardy on any charge related to his assault on the complainant.
[3]Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73.
[4]Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768.
The appellant then sought a stay, supported by his own affidavit evidence and that of his trial counsel. The evidence is that the Crown chose for its own reasons to focus on the rape charge and withdraw the injuring charge. There was no agreement between counsel to that effect. On being informed of it, trial counsel secured an adjournment on the grounds that he had been recently instructed and the indictment had changed. In the course of his submissions trial counsel told the trial judge that the defence was consent and the appellant would “very likely” have to give evidence. Counsel also assured the appellant privately that he could now give evidence without being exposed to conviction for injury with intent to injure. The appellant now claims that he would not have given evidence had he known he might still be in jeopardy on the abandoned charge.
The respondent is represented by Mr Tuck. She met the appellant’s complaint that he was unfairly induced to give evidence by assuring the District Court that she will not make use of his evidence at the first trial, neither adducing it in her own case nor using it as a prior inconsistent statement should he give evidence. Judge Mabey accepted that assurance, noting that the Court can enforce it or entertain a fresh stay application should she change her mind.
The Judge noted that the jurisdiction to stay is deployed on an exceptional basis. An agreement between the Crown and defence not to pursue a given charge might well justify a stay for abuse of process were the Crown to violate that agreement, but that is not what happened here. Further, the respondent’s promise not to use the appellant’s evidence from the first trial addressed any unfairness resulting from his belief, when giving evidence, that he was no longer in jeopardy of prosecution for injuring T.
The Judge also found that the appellant had no real option but to give evidence at the first trial, for T had undoubtedly been injured, allegedly when raped, and he needed to account for those injuries. The Judge drew attention to what trial counsel had told the trial Judge, and rejected the appellant’s claim that he went into the witness box because he was no longer at risk of prosecution for the injury charge; he would have given evidence anyway, to avert the greater jeopardy that he faced from the rape charge.[5]
The appeal
[5]DC Judgment at [21] and [51].
On appeal, Mr Nabney argued that the Judge was wrong to find that the appellant would have had to give evidence at the first trial whether or not the present charge remained. We agree with the Judge, and for the same reasons. That being so, and there being no question of prosecutorial misconduct, there is prima facie no abuse of process.[6]
[6]Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [37] and [39].
Mr Nabney sought to meet this difficulty by arguing that counsel would be hamstrung by ethical constraints in the conduct of a defence, submitting that he could not properly put a proposition that he knew from the appellant’s evidence at the first trial to be untrue, which would amount to an injustice. He argued that for its part the trial court would tarnish its integrity through complicity in misleading the jury.
This proposition depends for such force as it has on the premise that the appellant wants to present a different case at the second trial. But there is no evidence of that. For example, we were not told that he now denies injuring T. There was forensic evidence linking him to her and unequivocal medical and photographic evidence that she had been assaulted. It would be consistent with his defence on the first occasion to deny having the specific intent required by the charge and seek to justify himself, for what it may be worth, by alleging provocation.
In any event the proposition is flawed. Counsel could point to no authority for it. This Court was faced with a not dissimilar argument in R v de Bruin, in which counsel, whom this Court called Mr X, apparently withdrew at a retrial because the defendant now intended to give evidence inconsistent with what he had said at his first trial, where Mr X had also appeared.[7] The Court observed that counsel could not know which account was true and it was not his duty to decide; rather, he ought to conduct the trial in accordance with his new instructions, having warned his client that the first account could be used in cross-examination.[8]
Decision
[7]R v De Bruin CA168/04, 7 March 2005.
[8]At [27].
We grant leave to appeal. The appeal is dismissed.
Ordinarily this judgment would carry a pre-trial suppression order. However, the appellant pleaded guilty after the results judgment. Counsel advise that suppression orders affecting T, who has been identified in the media, were set aside in the District Court. Accordingly, no suppression orders attach to this judgment.
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