Spicer v Police
[2014] NZHC 861
•30 April 2014
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2013-412-000023 [2014] NZHC 861
JASON TIMOTHY SPICER
v
NEW ZEALAND POLICE
Hearing: 1 April 2014 Appearances:
J A Westgate for Appellant
R D Smith for RespondentJudgment:
30 April 2014
JUDGMENT OF DUNNINGHAM J
Introduction
[1] Following a defended hearing in the District Court at Dunedin, Mr Spicer was found guilty on one charge of indecent assault and was sentenced to 150 hours community work.
[2] Mr Spicer appeals against conviction and sentence.
Grounds of appeal
[3] The grounds of appeal have developed somewhat organically, as the facts of what occurred during the hearing have come to light.
[4] Mr Spicer lodged his own notice of appeal against conviction and sentence claiming simply that the District Court had erred in fact and law.
SPICER v NEW ZEALAND POLICE [2014] NZHC 861 [30 April 2014]
[5] He subsequently instructed new counsel, and the grounds of appeal as they emerged in counsel’s initial submissions, were as follows:
(a) there was a miscarriage of justice because the Judge, in rejecting the appellant’s evidence, wrongfully took into account a video transcript of an interview of the appellant by the police that was not legally before him, as it was never formally produced; and
(b)in respect of sentence, this was low level offending and the sentence of 150 hours community work was manifestly excessive.
[6] As the details of how the transcript came to be before the Judge were relevant to those asserted grounds of appeal, a full transcript of the hearing was produced, including legal discussion. That transcript revealed that counsel acting for Mr Spicer at the time, had consented to the Judge reading the transcript of the video interview, rather than viewing the video interview which was proposed to be produced by a police witness.
[7] As a consequence, the grounds of appeal shifted to focus on the appropriateness of the tactical decision to agree to the transcript being admitted by consent and, more importantly, the failure to review the appellant’s decision to give evidence in light of evidence of the video interview being introduced via a hand up of the transcript only.
Background
[8] The charge of indecent assault arises out of events taking place on the night of 23 January 2013 in the house that both Mr Spicer and the complainant were staying at.
[9] After the complainant had gone to bed, Mr Spicer asked to join her and she agreed. Although she was in bed naked, she got up and put underpants on and Mr Spicer gave her a top to put on. They then sat in bed for a number of hours discussing the fact that Mr Spicer had been betrayed by his then partner. There was some comforting of Mr Spicer, including cuddling.
[10] Mr Spicer at one stage took off his jeans so that he was then dressed in shorts and the complainant then told him she did not want any sexual contact and nothing further happened at that point. She then went to sleep and she understood that he had left the room. The complainant then says that she woke to him massaging her breast on the bare skin and he then put his hands down her pants and rubbed her bare buttocks. When she told him to “fuck off” he did not, but instead said “no it’s okay”, and massaged her bottom again, this time over her underpants. She then told him she would “chop his fucking hands off” and he left the room.
[11] Mr Spicer’s version is different. He categorically denies intentionally touching her bare breast, or touching her bare buttocks, or rubbing her buttocks over the top of her underpants. At most he said while he was rubbing her back he inadvertently may have touched her breast on the outside of her clothes and when she told him that, he apologised and said he did not mean it. However, he agrees she subsequently “changed” in character and threatened to cut his hands off.
[12] A complaint was laid by the complainant and the appellant was interviewed by Detective McLaughlan at the Dunedin Central Police Station on 12 March 2013. The interview lasted approximately three quarters of an hour. Detective McLaughlan cautioned Mr Spicer at the outset of the interview, reminding him he had the right to remain silent and not make a statement, that anything he said would be recorded and may be given in evidence in Court, and that he had a right to speak with a lawyer in private, without delay. Mr Spicer’s response was that he had “no problem with making a statement” and that he didn’t need a lawyer as he “hadn’t done anything”.
[13] Mr Spicer then embarked on a somewhat frenetic monologue about the events of that night, where, other than giving the complainant a cuddle, he says “I didn’t touch, touch any part of her” and “nothing sexual went on at all …”. However, when questioned further towards the end of the interview he moved from saying “definitely not” when asked if he touched any other part of her anatomy except for her back, to acknowledging that his hand might have “brushed past” her breast or her buttock, and that he “might have touched her … but I did not intentionally touch her breast or buttock in any way or sexual way whatsoever”.
The hearing
[14] The full transcript of the proceedings shed light on what occurred at the hearing which was not apparent at the time of the initial filing of submissions on appeal, when only the notes of evidence were available.
[15] At the outset of the hearing, Sergeant Hutton, the prosecutor, confirmed the following to the Court:
There are five witnesses, Sir: the complainant, two flatmates who were there, a friend of the complainant, a Declan Smith. His is by way of hand-up, Sir. That’s agreed upon. And the police witness who is the officer in charge.
The Court:
This was the interview of Mr Spicer, was it? Sergeant Evans (sic – Hutton)
Yes, Sir. The Court:
Okay. Is there a transcript of that? Sergeant Evans:
There is, Sir, yes. The Court:
Okay, I’ll have a look at that in due course.
[16] There was no dispute, therefore, that from the outset, the video interview was intended to form part of the police case at the hearing.
[17] However, at the conclusion of the complainant’s evidence, the Judge had an exchange with the prosecutor in order to fine tune the issues in dispute. He queried whether some of the other witnesses needed to be called if the real issue in dispute was whether the accused believed that the complainant was consenting. At that point, the Judge said:
I don’t know what his video tape interview thing he says but if that’s what the case is about, then it seems to me that the only other relevant witness I should be hearing from is Mr Spicer himself if he wants to give evidence.
Sergeant Evans: Yes, Sir.
The Court:
And that might cut to heart and cut to the chase. Now is that analysis – do you accept that analysis? The point we’re likely to be arguing about here is his state of mind, his belief?
His Honour went on to say:
… So if there’s a reasonable possibility that Mr Spicer genuinely believed that she was consenting, if that’s reasonably possible, he is to be acquitted. And that seems to be what we’re going to be exploring in this case. Okay. Now, Ms Turner, do you agree with that analysis? I mean, this is your case that I’m describing for you.
Ms Turner:
Yes, Sir, I do agree with that analysis and that is the issue that it comes down to. It’s about, in my view, a complete misunderstanding between these two people about what was okay that night.
The Court:
It’s a matter of what if anything Mr Spicer truly believed.
Ms Turner: Yes, Sir. The Court:
And I don’t know – he was interviewed? Ms Turner:
Yes, he was. The Court:
And I imagine that his interview is consistent with the defence you are running?
Ms Turner: Yes.
The Court:
I could read his – I could read the transcript if you like. Ms Turner:
Yes.
[18] Shortly after this exchange, the Judge says:
Why don’t I take the afternoon adjournment. I’ll read the transcript of the interview and see what’s in it. If I think I need to see it, I’ll let you know. If you really want me to see it, I guess I’ll have to. But it’s 50 minutes that we don’t really have. But nonetheless this case is important and it needs to take the time that’s required for it so I’ll take the adjournment now. And I’ll read that transcript. What I suggest is that when we come back, if Mr Spicer is going to give evidence, that he get in the witness box and give evidence and let’s get on with it.
[19] The Court then took the afternoon adjournment and the Judge, in that time, read the notes of the interview with Mr Spicer. When the hearing resumed at
4.00 pm he said to counsel that “it’s apparent from the interview of Mr Spicer that he
denies any sexual contact at all”.
[20] The appellant then took the stand and gave evidence. Again, it was a rather frenetic monologue. In describing the lead up to the events which gave rise to the charge he made a number of statements to the effect that he thought the complainant was going to be his girlfriend, he thought she liked him, and he thought he was “in”. However, on the critical issue of whether he touched her breast and with what understanding, he gave inconsistent accounts, for example:
… and then I think, I, I touched her breast but I didn’t actually, like, mean to, like, actually, like. I, I – I would – I didn’t say I actually touched it. I, my hand, like, I was trying to sleep like that and she said, oh, you’ve got your hand on my breast and I, oh, shit, sorry and then, and I said, no, no, no, I didn’t mean to, like, um, touch it.
Q.
So she – let-s go back on this. She said, “You’re touching my breast”.
A.
No, she didn’t say I touched my – yeah, yeah, yeah, yeah, sorry. Q.
Yeah, and you said sorry? A.
Yeah, I said, I said, oh, no, no, no, I didn’t mean it ‘cos I, I’d accident – you
know, oh, ‘cos, ‘cos I, like, she was, like, lying beside me like that.
…
Q.
And you’ve heard the allegation that you grabbed her breast and fondled her breast. What do you say to that?
A.
I say that’s, like, I say that’s not true.
[21] The Judge then intervened during cross-examination to clarify his understanding of the discrepancy between the appellant’s denial in his police interview that he touched her breast intentionally, with his apparent admission that he had in evidence on the stand. The appellant accepted that he might have brushed past it and that then led to the prosecutor saying:
Q.
So you acknowledge now that you did touch her breast in bed. A.
Well, no. I didn’t touch her breast. I, like, just was cuddling up to her and my hand was on that part of her body but not, I am not saying I touched her breast,
However a little further on, he says:
What, what happened was, um, I, I accidentally touched her breast and she said you touched my breast and I said Oh, sorry, didn’t mean it like that and she’s, like, that’s fine and she turned over and we went to sleep with my arm around her.
[22] When the grounds of appeal were first identified, they focused on the adverse inferences the Judge drew from the transcript of the video interview and the inconsistencies both within that, and between that and the evidence given at the hearing. The concern was on how the transcript of the interview came to be considered as evidence by the Judge, because there was no evidence it had been formally produced in the notes of evidence.
[23] Once the full transcript of hearing was produced, it became clear that the video interview was going to be produced in evidence, and the transcript of it was
admitted by consent. The focus then turned to whether trial counsel for the appellant made errors which led to a miscarriage of justice.
[24] The appellant filed an affidavit waiving legal privilege and advising that his lawyer:
Did not discuss nor advise me of the implications of the Judge reading the transcript prior to me giving evidence. In other words, she gave me no legal advice concerning the implications of the Judge reading the transcript before I gave evidence under oath. If Ms Turner had advised me that there was little or no advantage to me for the Judge to read the transcript prior to me giving evidence, or furthermore that it could possibly be to my disadvantage, I would have instructed her not to consent to that course of action. When she agreed, it was her agreement and not with my informed consent.
[25] The appellant’s trial counsel then filed an affidavit sworn on 1 April 2014. She explains that she told the appellant that the video interview did not cast him in a good light, but that the police were entitled to lead the interview as part of the prosecution evidence-in-chief. She says she did discuss with the appellant the fact that the Judge had indicated he was prepared to read the video interview transcript rather than watch the video, and if the appellant had not been content with that course then she would have insisted that the Judge watch the video interview. She says “I took from our discussion during the adjournment that he was content with the Judge’s approach”.
[26] She denies that the appellant was put to any disadvantage by virtue of the interview transcript being read by consent rather than the video interview itself being watched as, in her view, the video cast him in a far worse light than the written record portrays. She says that it was inevitable the Judge would have seen the video interview as the police prosecutor had made it clear he intended to lead the interview as evidence.
[27] Finally, she confirms that her instructions were to call the appellant to give evidence, notwithstanding the video interview (in whatever form) being admitted into evidence. She also says that she was instructed that the appellant’s defence was that there had been one inadvertent touch of the complainant’s breast, despite that being arguably inconsistent with the account given to police in the earlier video interview.
The District Court judgment
[28] The District Court judgment, briefly outlines the background to the charges and then sets out the elements of the charge of indecent assault, saying that there were really only two issues in dispute. The first was whether the police had proved beyond reasonable doubt that the appellant rubbed the complainant’s bare breast and bottom in the way that she described. The second is whether the police proved beyond reasonable doubt that Mr Spicer did not believe she was consenting.
[29] On the first issue, the Judge records that there is a “stark conflict of evidence”. He therefore has to decide who he believes. His decision to accept the complainant’s evidence over the appellant’s is because, in both his evidence and in the interview with the police, the appellant was “garrulous, discursive and frankly unconvincing” but “what is more to the point is that his evidence contained inconsistencies and his account of what went on is inherently unlikely”.
[30] The examples of inconsistencies given by the Judge were first, that in his police interview he denied he had deliberately touched the complainant’s breast, but said that he may have brushed past it inadvertently. However, when he came to give evidence he accepted he did touch her breast and that he apologised for it, saying he did not mean it. The second inconsistency, which came out in evidence, was that he thought the complainant fancied him and that he was “in”, but when he was cross- examined and it was put to him that the complainant had made it clear from the outset that she did not want sexual contact, he replied “nor did I”. The Judge held that that was inconsistent with the frame of mind he said he was in when he went into the bedroom. Those inconsistencies were held to tell against his credibility.
[31] Finally the Judge held that the appellant’s account of what when on was inherently unlikely, that is, that he went into her room thinking she fancied him, engaged in mutual cuddling and then, took his trousers off, but did not try it on.
[32] By contrast, the complainant’s evidence was plausible and the appellant’s acceptance that she had told him to “fuck off” and had said “I will cut your fucking hands off”, was evidence of a reaction that was entirely consistent with her version
of what he was doing to her. He was therefore satisfied beyond reasonable doubt that the appellant had touched her indecently in the way that she described.
[33] On the second issue of consent, the Judge was satisfied she was not consenting. Her evidence was that she made it clear she did not want sexual contact and the appellant’s evidence confirmed that she had done this. On that basis the appellant was convicted.
[34] However, the Court was satisfied this was a “fairly low grade indecent assault offence” which occurred in a context that it made it less serious than it might otherwise be. That was reflected in the sentence imposed of 150 hours community work.
Approach to appeal
[35] This appeal is governed by s 115 and 119 of the Summary Proceedings Act
1957. It is a general appeal, to be heard by way of rehearing. The onus lies on the appellant to satisfy the Court that the grounds of his appeal has been made out and that this Court should differ from the original District Court decision. The appellate Court must come to its own view on the merits.1
[36] As was discussed in Richmond v Police,2 “where an appeal is brought against conviction under s 119 of the Summary Proceedings Act 1957, the High Court will normally apply the principles developed in relation to s 385(1) of the Crimes Act 1961”. Section 385 provides, in summary, that an appeal should be allowed if:
(a) the verdict was unreasonable or could not be supported having regard to the evidence; or
(b) the judgment was based on a wrong decision on any question of law;
or
(c) there was a miscarriage of justice; or
(d) the trial was a nullity.
1 Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
2 Richmond v Police [2013] NZHC 356 at [44].
In the present case, the appellant argues that there was a miscarriage of justice.
[37] In that regard, as was said in R v Sungsuwan:3
Miscarriage of justice does not arise because of incidental errors or irregularities in the trial, unless they amount to a denial of the right to a fair trial contained in s 25(a) of the New Zealand Bill of Rights Act or unless they are significant enough in themselves to cause the appellate Court to consider the verdict to be unsafe.
Discussion
[38] As already alluded to, the grounds of appeal developed in an organic fashion as more information about what transpired at the hearing came to light.
[39] By the time of the appeal hearing, it was acknowledged that the video transcript had been admitted by consent, as is permissible under s 9 of the Evidence Act 2006. While it might have been somewhat irregular to handle it that way, it was not argued that it was an error of law by counsel or the Judge to permit this to happen.
[40] The issue then raised was whether there was failure by trial counsel to revisit the decision by the appellant to give evidence, given her view that the transcript was a less damaging way of admitting the video evidence, than playing the video in full.
[41] Unfortunately the affidavit evidence does not address this point head on, as at the time the appellant swore his affidavit, the focus was still on whether it was appropriate to have allowed the transcript in by consent, a ground which had fallen away by the appeal hearing.
[42] There is no evidence from the appellant as to what exactly his lawyer discussed with him in the adjournment after the Judge had offered to read the video transcript, potentially precluding the need to see the video interview in full. All he says is that she did not discuss the decision to allow the Judge to read the transcript. However, that was unsurprising, given the alternative was for the Judge to view the
video interview in full.
3 R v Sungsuwan [2005] NZSC 57, [2006] NZLR 730 at [6].
[43] While Mr Westgate, for the appellant, suggested this was a material change, and should have prompted trial counsel to revisit the appellant’s decision to give evidence, I do not see it as being as significant as Mr Westgate suggests. The Judge’s decision, was based on the verbal content of the transcript and would have been equally available to him no matter what form he received evidence of the police interview in. I do not consider that the opportunity to have the transcript go in by consent, rather than formal production of the video interview, was such a game changer, that it necessitated a review of the decision to give evidence.
[44] It can be assumed, (and there was no suggestion to the contrary), that the original decision to give evidence was an informed decision made by the appellant after discussion with trial counsel. It is clear that his trial counsel cross-examined the complainant on the basis that the appellant would give evidence and knowing that the interview would also form part of the evidence. It is also clear from the full transcript of proceedings that the police intended to produce the video interview and that the appellant’s counsel latched onto the opportunity to have the transcript go in, in written form, as opposed to viewing the video evidence itself.
[45] In any event, even if such a discussion had taken place, and the appellant had been persuaded not to give evidence, that still left the Judge with having to make decisions on two key issues; whether the complainant’s evidence of what touching occurred was more credible, and whether there was a basis for asserting that the appellant believed she was consenting.
[46] In my view, based on the video transcript evidence alone, it was reasonable to come to the same conclusions as the trial Judge did, on the totality of evidence. While the appellant denies touching her sexually in any way whatsoever, he at one stage acknowledges that he “possibly” touched her breast or her buttock and he accepts that she “freaked out” and threatened to “cut [his] fucken hand off”. That reaction, as the Judge concludes, was entirely consistent with her evidence of what he was doing to her. Equally, there could be no suggestion that the appellant understood she was consenting. In the video transcript the appellant repeats at a number of points that she said she did not want anything sexual and he clearly understood that.
[47] In the circumstances, it simply came down to which version was more credible. On the video transcript evidence alone, it would have been open to the Judge to have made the findings he did and I cannot say that because of his trial counsel’s actions, the appellant has been deprived of the reasonable possibility of a not guilty verdict, or has been the subject of a miscarriage of justice.
[48] The appeal against conviction is therefore dismissed.
Appeal against sentence
[49] A conviction on a charge of indecent assault is subject to a maximum sentence of seven years imprisonment which indicates the potential seriousness of the offence. However, the Judge correctly assessed this as a “fairly low grade” indecent assault offence which occurred in a context that made it less serious than it might otherwise be.
[50] While the Judge did not embark on a detailed assessment of the factors to be taken into account under the Sentencing Act 2002, it is apparent that even if such an exercise is undertaken, there is no error in the end sentence. There were no aggravating factors relevant to the offence and it is clear that as soon as the complainant made it known his advances were not welcome, he promptly left and did not pursue her any further. The complainant was not obviously vulnerable in any way and was well able to rebuff those advances. Despite a prison sentence being available, a starting point of a non-custodial sentence was obviously open to the sentencing Judge.
[51] While the appellant has previous offences, none are directly relevant to the offence in question, and there are no aggravating or mitigating factors relating to the appellant which justify moving or changing from a non-custodial sentence. There are also no reasons to discount the sentence for remorse or a guilty plea.
[52] A sentence of 150 hours community work is a substantial imposition on the appellant, but it does encompass a deterrent factor, both for him and for others in a similar situation. It is not an outcome which, in the circumstances, can said to be manifestly excessive or inappropriate.
[53] I am simply not persuaded that the sentence is outside the range that can be properly justified by applying accepted sentencing principles. Accordingly the appeal against sentence is dismissed.
Solicitors:
J A Westgate, Barrister, Dunedin
Wilkinson Adams, Dunedin
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