Tapp v The Queen
[2019] NZHC 2436
•26 September 2019
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT/PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2019-416-000002
[2019] NZHC 2436
BETWEEN LESLIE JOHN TAPP
Appellant
AND
THE QUEEN
Respondent
Hearing: 17 September 2019 Appearances:
E J Forster for the Appellant
R K Thomson for the Respondent
Judgment:
26 September 2019
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Leslie John Tapp, appeals his conviction1 and sentence2 following a Judge-alone trial before Judge Cathcart in the District Court at Gisborne. Mr Tapp was sentenced to concurrent terms of four years’ imprisonment and 18
1 R v Tapp [2018] NZDC 19516 [Conviction Decision].
2 R v Tapp [2018] NZDC 25471 [Sentencing Decision].
TAPP v R [2019] NZHC 2436 [26 September 2019]
months’ imprisonment for one charge each of assault with intent to commit sexual violation3 and doing an indecent act on a young person respectively.4 Mr Tapp chose to represent himself at trial.
[2] Mr Tapp now appeals his conviction on the basis his self-representation resulted in an unfair trial and, in consequence, a real possibility of acquittal was lost. He also appeals his sentence, saying it was manifestly excessive. In addition, Mr Tapp seeks leave to adduce fresh evidence on appeal.
Background
[3] At around 10 pm on 3 May 2017, Mr Tapp was at the complainant’s home in Gisborne where the complainant lived with her siblings and mother, who was a friend of Mr Tapp. The complainant was 13 years old at the time. Mr Tapp, the complainant’s mother and others were drinking alcohol. They drank into the early hours of the following morning.
[4] At around 2 am, the complainant went to bed. Shortly after, Mr Tapp went into the complainant’s bedroom and got into bed with her while she was sleeping. At some stage, Mr Tapp got up and shut the door slightly, leaving it ajar.
[5] Mr Tapp then returned to the complainant’s bed and began kissing her cheek. She woke up and tried to leave the room but was stopped by Mr Tapp. He then removed his pants and underwear, so that he was naked from the waist down, and pulled the complainant onto his torso. She resisted but could not overpower him. He then told her to remove her pants. When she refused, Mr Tapp attempted to remove her pants himself.
[6] The complainant repeatedly called out to Mr Tapp’s daughter who was also in the house. When Mr Tapp’s daughter entered the bedroom, she found Mr Tapp on the bed with the complainant who was crying. Mr Tapp’s daughter attempted to console the complainant before confronting Mr Tapp about what had happened. She then
3 Crimes Act 1961, s 129(2); maximum penalty of 10 years’ imprisonment.
4 Section 134(3); maximum penalty of seven years’ imprisonment.
called ‘111’ and reported what had happened. When spoken to by police, Mr Tapp declined to make a statement.
[7] The complainant was seen by a doctor a few hours later but did not consent to a medical examination, nor did she consent to a urine sample nor her underwear being taken for testing.
[8] Mr Tapp chose to represent himself. Mr Roger Philip was therefore appointed amicus curiae at Mr Tapp’s first appearance. At a case review hearing on 16 January 2018, the District Court Judge invited Mr Philip to submit on the proper scope of his role in light of the then-recent case of Fahey v R in which the Court of Appeal discussed the difference between the role of amicus curiae and standby counsel.5 As a result, Mr Philip’s role was characterised as standby counsel and involved the following:6
(a)advising Mr Tapp of the relevant law, trial processes and courtroom etiquette;
(b)assisting Mr Tapp with accessing resources and witnesses;
(c)assisting Mr Tapp by conducting any trial processes from plea to verdict, as and when requested;
(d)being prepared to assume the role of defence counsel if requested; and
(e)being prepared to perform any specific task during the trial, such as questioning witnesses or presenting an address, including assuming sole responsibility for cross-examining the complainant given the prohibition on a defendant to cross-examine a complainant in a sexual case.7
[9]Mr Tapp elected a Judge-alone trial which commenced on 25 July 2018.
5 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392.
6 R v Tapp [2018] NZDC 4977 at [6].
7 Evidence Act 2006, 95(1).
District Court decision on conviction
[10]In his conviction decision, the Judge first outlined the issues in dispute:
[8] Mr Tapp elected to give evidence. Thus, the issues in dispute were considerably narrowed. The complainant's narrative is that Mr Tapp entered a room in which she had gone to sleep in her mother's home and laid down on the bed with her. She says he kissed her and continued to do so, had taken his pants off, pulled her on top of his torso and tried to pull her pants off. She physically resisted after which he told her to take her pants off but she refused. She then called out for Mr Tapp's daughter who entered the room to find them on the bed. The complainant was 13 years of age at the time.
[9] Mr Tapp's narrative is that he went into the bedroom for the sole purpose of sleeping after a night of heavy drinking. He lay down on the bed beside the complainant. He told me she kissed him on his lips and put her left leg on his leg. He says that she deliberately pulled down his pants with her left foot until they were completely off. He then pushed her away and she moved to the side of the wall.
[10] In short, the complainant's narrative is Mr Tapp made sexual advances towards her and carried out the acts noted above. Mr Tapp paints the reverse picture. His evidence suggests the complainant made unwanted sexual advances towards him and the complainant has fabricated her narrative to make it appear to "look good". Physical contact between the two thus is not in dispute. Nor is the fact kissing took place.
(Footnotes omitted.)
[11] The Judge’s conclusions on Mr Tapp’s guilt therefore depended on whose version of events was better supported by the evidence.
[12] The Judge first assessed the complainant’s evidence. He found the complainant to be an honest witness on the basis of both the content and delivery of her cross-examination.8 The Judge noted the complainant did not embellish the essential allegations, and that her evidence in respect of the physical acts in the bedroom was consistent with other evidence, in particular:
(a)Mr Tapp’s daughter gave evidence about the complainant repeatedly calling her name and finding her crying upon entering the room.9 Mr Tapp’s daughter also found her father lying on the bed naked from the waist down.
8 Conviction Decision, above n 1, at [21].
9 At [39].
(b)The complainant’s mother gave evidence of hearing Mr Tapp’s daughter confronting her father and asking him where his pants were and why the complainant was crying.10
(c)The accounts of Mr Tapp’s daughter and the complainant’s mother were also corroborated by what could be heard in the ‘111’ call.11
[13] The Judge acknowledged the complainant had been challenged on aspects of her account but did not find the challenges to be “inherently inconsistent” with her account. In particular, the complainant’s account of when Mr Tapp closed the door of her bedroom in relation to the kissing beginning was questioned, along with the inconsistency between her evidential video interview and the brief note made by one of the attending police officers about the degree to which Mr Tapp’s hand may have gone down her pants. Overall, the Judge did not consider these inconsistencies to be material. He accepted the physical acts in the bedroom occurred after the door had been left ajar and that Mr Tapp’s hand may have slightly gone down the complainant’s pants when he attempted to take them off.12
[14] The Judge also accepted that Mr Tapp, through Mr Philip, put to the complainant the theory that she had transferred previous allegations of sexual conduct made against other men to him, but noted the complainant did not stray from the core aspects of her allegations.13 In any case, the Judge concluded that Mr Tapp’s version of the events that occurred in the bedroom was “simply implausible”.14 In this regard, the Judge said:
[54] Under sustained cross-examination, Mr Tapp acknowledged his narrative was based on the notion that this young girl had made sexual advances towards him and not the reverse. When asked, what was going through his mind at the various points the complainant was apparently making such advances, he could offer no explanation as to his thought processes. He simply said he thought nothing.
[55] Also, Mr Tapp accepted that on narrative there would be no legitimate reason for the complainant to: call out for [Mr Tapp’s daughter], cry or; be heard during the 111 call in distress. When pressed on these points, Mr Tapp
10 At [42].
11 At [43]–[45].
12 At [47]–[50].
13 At [31]–[33].
14 At [51].
suggested the complainant was crying et cetera, because she was "putting it on" and trying to make it "look good" to others.
[56] Significantly, however, Mr Tapp never mentioned his now clearly remembered narrative of a 13-year-old girl making sexual advances towards him to his daughter when she came into the room. He never mentioned to his daughter, who he acknowledged had angrily confronted him in the room, that the complainant had taken his pants off and had made sexual advances to him. Nor, in the presence of his angry daughter, did he ever ask the complainant why she had made unwanted sexual advances towards him.
[57] Having heard Mr Tapp's account, I was left in no doubt that it was so implausible that it must have been and was fabricated. I therefore excluded Mr Tapp's narrative on the key issues as a reasonable possibility and placed his evidence on those issues to one side.
(Footnotes omitted.)
[15] Having rejected Mr Tapp’s version of events, the Judge concluded that the act of kissing the complainant was an indecent act and that Mr Tapp ought to have appreciated this at the time.15 Further, the act of placing the complainant on his torso and not letting her get off despite her resistance, trying to take her pants off, and the fact he had no pants on were all factors consistent with an intent to have sexual intercourse.16
[16]The Judge accordingly found Mr Tapp guilty of the two charges against him.
District Court decision on sentence
[17] Mr Tapp was sentenced on 4 December 2018. The Judge began by recapping the history of his case and his trial. The Judge also repeated the version of events he found more likely have occurred and on which Mr Tapp’s conviction was based.
[18] The Judge then turned to the cases to which Mr Phillip and the Crown had referred.17 Based on these authorities, the Judge adopted a starting point of four years’ imprisonment for the totality of Mr Tapp’s offending.18 The Judge noted that this starting point was lower than those suggested by Mr Philip and the Crown because
15 At [61].
16 At [62].
17 R v AM [2010] NZCA 114, [2010] 2 NZLR 750; R v Hassan [1999] 1 NZLR 14 (CA); R v Falaoa CA96/03, 15 July 2003; Mukoko v R [2012] NZCA 390; Batick v R [2016] NZCA 307; Pesefea v R [2016] NZCA 35.
18 Sentencing Decision, above n 2, at [17].
Mr Tapp was “not an offender who had a premeditated sexual desire towards a child victim.”19 Rather the primary reason for his offending was his extensive issues with alcohol.20
[19] The Judge found no mitigating or aggravating factors personal to Mr Tapp that warranted an adjustment to the starting point.21 The Judge therefore sentenced Mr Tapp to four years’ imprisonment on the charge of assault with the intent to commit sexual violation, and 18 months’ imprisonment on the charge of doing an indecent act on a young person, to be served concurrently.
Approach on appeal
[20] Mr Tapp appeals both his conviction and his sentence under ss 229 and 244 respectively of the Criminal Procedure Act 2011.
[21] The Court must allow Mr Tapp’s conviction appeal if it is satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.22 A miscarriage of justice is defined as an error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.23
[22] An appeal against conviction proceeds by way of rehearing.24 If an appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred and the appeal must be allowed.25 However, the appellant must show that an error has been made.26 Further, the appellate court must remember the advantages a trial Judge has especially where the challenge is to credibility findings based on contested oral evidence.27
19 At [19].
20 At [19]–[20].
21 At [21].
22 Criminal Procedure Act 2011, s 232(2)(b)-(c).
23 Section 234(4).
24 Sena v Police [2019] NZSC 55 at [32].
25 At [38].
26 At [38].
27 At [38].
[23] In respect of Mr Tapp’s sentence appeal, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.28
[24] A sentence appeal is an appeal against a discretion and only if the sentence is manifestly excessive or contains an error in principle should the appellate court re- exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.29 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.30
Fresh evidence on appeal
[25] As a preliminary matter, Mr Tapp seeks to adduce fresh evidence on appeal. The proposed evidence is an affidavit sworn by Mr Victor Soeterik, a consulting and registered clinical psychologist, annexed to which is a report prepared by Mr Soeterik. This report was prepared following a consultation with Mr Tapp on 23 August 2019 in Hawke’s Bay Regional Prison for the purposes of assessing Mr Tapp’s cognitive function.
[26] During his consultation with Mr Tapp, Mr Soeterik administered what is known as a Shipley-2 test, which measures cognitive function and impairment. The Shipley-2 test comprises two parts: a vocabulary section and an abstract reasoning section. Together, the results for each section provide a composite score. Mr Tapp scored in the ninth percentile in the vocabulary section, equating to an operating level of a 14-year-old. In the abstract reasoning section, Mr Tapp scored in the third percentile, equating to an operating level of a nine-year-old. Mr Tapp’s composite score was in the first percentile.
[27] In Mr Soeterik’s opinion, Mr Tapp’s mental ability is “well below 1 standard deviation of the mean for cognitive functioning”. Further, Mr Soeterik states Mr Tapp’s “IQ is likely to be between 64 – 76”.
28 Criminal Procedure Act 2011, s 250(2).
29 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]–[35].
30 Ripia v R [2011] NZCA 101 at [15].
[28] Mr Soeterik’s report also outlines Mr Tapp’s history of “sacking lawyers” and reasons why he did this at his trial.
Relevant law
[29] The High Court retains an inherent jurisdiction to admit further evidence on appeal.31 The discretion should be exercised sparingly and “only admitted where it can properly be said that the interests of justice require the admission, and the proposed evidence satisfies the principles for admission of fresh evidence”.32 The evidence should be sufficiently fresh and sufficiently credible.33 The Privy Council in Lundy v R put the test as follows:
[120] The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[30] In addition to satisfying the test for fresh evidence set out in Lundy, as proposed expert evidence, Mr Soeterik’s report is only admissible if I consider I am likely to obtain substantial help from his opinion in understanding either the evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.34 It has been held that the phrase “substantial help” requires consideration of an amalgam of relevance, reliability and probative value.35
[31] However, in R v Hurihanganui, the Court of Appeal stated that evidence of the “existence of a mental disorder which reduces the capacity of a witness to give reliable
31 R v Ratu [2013] NZHC 3085 at [24].
32 At [24].
33 R v Bain [2004] 1 NZLR 638 (CA); approved by Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
34 Evidence Act 2006, s 25(1).
35 Lundy v R [2014] NZCA 576 at [75]; Mahomed v R [2010] NZCA 419 at [35]; and R v Gwaze
[2010] NZSC 52, [2010] 3 NZLR 734 at [47].
evidence will generally be admissible.”36 The proposed fresh evidence in that case was a psychiatric report assessing the respondent’s mental capacity and how it may have affected the reliability of his confession. The Court went on to say that mental disorders and their effect are likely to be outside of a fact-finder’s ordinary experience.37 However, before such evidence can be given the credibility and/or reliability of the witness (or confession) must be an issue in the trial.38
[32] While Hurihanganui focuses on confessions, the Court of Appeal phrased the ratio of its decision more broadly.
Analysis
[33] Mr Soeterik’s evidence is fresh in the sense it stems from a consultation with and assessment of Mr Tapp which occurred after his trial. It is also relevant to an issue on appeal in that it purports to show Mr Tapp has diminished intellectual capability and, if accepted, goes to the issue of whether he was so severely disadvantaged by not being represented that he was unable to effectively conduct his own defence. In this regard and for the purposes of s 25 of the Evidence Act 2006, I consider the report to be substantially helpful.
[34] The biggest issue, however, is the credibility of Mr Soeterik’s evidence in respect of both his credentials or qualifications to proffer such conclusions, as well as the scope of the testing used in assessing Mr Tapp. Putting his qualifications to one side (as at the very least, Mr Soeterik’s qualifications are in the letterhead of his report), Mr Soeterik has only used one test to assess Mr Tapp. This is unusual in that it is unlikely to provide a strong foundation for conclusions on Mr Tapp’s cognitive function.
[35] Nevertheless, given the broad principle of general application in Hurihanganui and in the interests of justice, I grant leave for Mr Soeterik’s affidavit and report to be adduced as fresh evidence on appeal.
36 R v Hurihanganui [2004] 2 NZLR 1, (2003) 20 CRNZ 547 (CA) at [25].
37 At [26].
38 At [26].
The conviction appeal
Submissions
[36] Mr Forster for Mr Tapp submits the trial was substantially unfair as a result of Mr Tapp’s self-representation and that the conviction should be overturned. He submits that despite Mr Tapp’s right and choice to be self-represented, his defence could not have been adequately put without the assistance of counsel. This is based on the following grounds:
(a)Mr Tapp’s diminished cognitive function meant that he could not adequately process the information he received during the trial, nor could he adequately adjust his line of questioning or his strategic choices when interrupted by the Judge.
(b)The seriousness and the complexity of the case were such that Mr Tapp required the assistance of counsel. This is because the trial involved:
(i)prior inconsistent statements;
(ii)leave to cross-examine the complainant on previous sexual experiences;
(iii)DNA evidence; and
(iv)medical evidence.
(c)Mr Tapp’s prospects “may not have been so hopeless” had he not dispensed with the services of his previous counsel.
[37] Alternatively, Mr Forster submits a real possibility of acquittal was lost because the Judge favoured the complainant’s evidence in part due to her demeanour and despite it being internally inconsistent. Further, it was not put to the complainant that despite any initial unwillingness to engage in sexual activity, she had had a change of heart.
[38] Ms Thomson for the Crown submits that Mr Tapp’s defence was adequately put and presented to the Court with the assistance of Mr Philip as standby counsel. Further, any complexity was neutralised by this assistance, given Mr Philip:
(a)conducted the cross-examination of the complainant and the ESR forensic scientist;
(b)raised the issue of cross-examining the complainant on her previous allegations of sexual offending made against other men; and
(c)the lack of medical evidence as the complainant had refused to undergo a medical examination or give a urine sample.
[39] Ms Thomson further submits any difficulties Mr Tapp may have had in respect of his cross-examination of witnesses were immaterial to the Judge’s findings and therefore his conviction.
[40] In the alternative, Ms Thomson submits that no real possibility of acquittal was lost because Mr Tapp’s version of events was implausible, the Crown’s case was strong and there was corroboration between the witnesses’ accounts.
Relevant law
[41] The Court of Appeal’s decision in Fahey comprehensively traversed the principles relating to the right to self-representation and issues that may follow from trials involving self-represented litigants. The starting point is that every person has the right to defend themselves in criminal proceedings.39 That right is “not limited to defendants who are well equipped by ability, education and temperament, nor is it denied to those whose trials are serious or complex.”40 In other words, it is not the Court’s role to question whether self-representation is in a defendant’s best interests.41
39 Fahey v R, above n 5, at [42].
40 At [45]; citing R v Cumming [2006] 2 NZLR 597 (CA) at [43].
41 R v Cumming, above n 40, at [44], citing R v Power CA187/96, 22 October 1996) at pp 7–8 per Richardson P.
As the Court of Appeal held in R v Cumming, this does not, of itself, make a trial unfair:42
[44] A self-represented lay defendant lacks the knowledge of rules of procedure and evidence, and experience and skill in their application in the trial context. Litigants in person do not often give evidence or cross-examine in an orderly way that focuses on what is relevant and avoids repetition. Nor do they generally have the advantage of the detachment of counsel in conducting the defence. The right to self-representation exists despite these features, and they cannot be advanced to gainsay it.
[42] Nevertheless, it is possible for a defendant who was self-represented at trial to argue and establish on appeal that the defence could not have been put adequately without counsel’s assistance and in consequence, a real possibility of acquittal was lost.43 This is because an appellate court has an obligation to determine whether a miscarriage of justice has occurred, however occasioned.44
[43] Whether the defence could not have been adequately put without counsel is answered by “carefully considering the seriousness and complexity of the case and the circumstances of the defendant.”45 In this respect, the Court in Fahey relevantly outlined the following principles:46
(a)The onus is on the appellant to show that the trial was unfair notwithstanding the appellant’s decision to represent him or herself.
(b)The trial is not unfair merely because counsel would have conducted the defence more skilfully.
(c)The circumstances in which the appellant came to be self-represented may affect the assessment of fairness. An informed choice to be unrepresented at trial will normally be respected.
42 At [44].
43 Fahey v R, above n 5, at [47]; citing R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 [80]; R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [58]; R v Scurrah CA159/06, 7 August 2006 at [17]; and McKay v R [2009] NZCA 378, [2009] 1 NZLR 441 at [80]–[82].
44 At [46].
45 At [47].
46 At [48].
(d)Cases in which an appellant can discharge the burden of showing that the trial was unfair are likely to be rare.
Defence could not have been adequately put without counsel
[44] Having considered the notes of evidence at trial as well as the fresh evidence on appeal, I am not satisfied that Mr Tapp’s trial was unfair by virtue of the fact his defence could not have been adequately put without the assistance of counsel.
[45] Turning first to the circumstances in which Mr Tapp came to be self- represented, I note that he dispensed with the services of two counsel prior to trial. This must, however, be understood in the context of Mr Tapp’s extensive criminal history dating back to 1985. He was therefore familiar with the criminal justice system and the concept, if not importance, of legal representation. In this respect, I am satisfied Mr Tapp made an informed decision to represent himself. As already discussed, this was his right and unless there are factors to suggest otherwise, ought to be respected.47 It is not this Court’s role to enquire into whether that choice was in his best interests.
[46] Nevertheless, Mr Tapp’s right to self-representation must be balanced against the seriousness and complexity of the case as well as his circumstances. I do not agree with Mr Forster’s submission that the seriousness and complexity of the case were such that Mr Tapp could not adequately defend himself without the assistance of counsel. While Mr Tapp was self-represented, he nonetheless had the assistance — when required or requested — of Mr Philip as standby counsel. As Ms Thomson rightly submits, Mr Tapp was able to raise the complainant’s previous allegations of sexual abuse with Mr Philip prior to trial, and Mr Philip was able to seek leave of the Court to cross-examine the complaint on these matters. Any added complexity inherent in this aspect of the trial was therefore neutralised by Mr Philip’s assistance. Further, because of Mr Tapp’s inability to cross-examine the complainant, this task was also undertaken by Mr Philip. While this was by operation of law rather than choice, it ensured Mr Tapp’s core defence and his own version of events were put to
47 The same course of action was taken by the Court of Appeal when faced with a defendant who had dismissed multiple counsel: Cant v R [2013] NZCA 513 at [26].
the complainant. In fact, the nature and content of Mr Philip’s cross-examination of the complainant clearly reflected Mr Tapp’s instructions.
[47] I note that a similar set of circumstances in Cant v R — where amicus curiae was appointed, including for the purpose of cross-examining the complainant given the charges were of a sexual nature — satisfied the Court of Appeal that any argument the appellant’s defence could not have been adequately conducted without counsel’s assistance was sufficiently negated.48
[48] In addition, any complexity that may have existed by virtue of the presence of medical and DNA evidence was also neutralised by Mr Philip’s assistance. In this regard, I note the District Court Judge’s observation that because the complainant declined to consent to a medical examination and because physical contact with the complainant was not denied by Mr Tapp, any “ESR evidence linking [his] DNA to a swab taken from the complainant's face, and the possibilities of how his DNA may have been transferred to her, fell away as issues in the case.”49 Still, it is relevant that the cross-examination of the ESR forensic scientist on the presence of Mr Tapp’s DNA around the waistband of the complainant’s pants, insofar as it was relevant to the credibility of Mr Tapp’s version of events, was conducted by Mr Philip.
[49] Further, I agree with Ms Thomson that Mr Tapp was able to understand and identify the inconsistencies which existed between the complainant’s statements to the police and the examining doctor. These were put to the complainant by Mr Philip and also raised with the appropriate witnesses by Mr Tapp. I am satisfied that these inconsistencies were adequately raised and the inferences that could be made were before the District Court Judge.
[50] Turning to Mr Tapp’s ability to cross-examine witnesses, I do not consider that Mr Tapp’s difficulties in this regard amounted to an inability to adequately put his defence without counsel. I acknowledge there were many instances in which Mr Tapp was asked to stop interrupting or arguing with witnesses, told to move on, warned for being too aggressive, and stopped from asking questions based on relevance or
48 At [32]–[33].
49 Conviction Decision, above n 1, at [11].
appropriateness. Having reviewed the trial transcript, I agree with Mr Forster’s suggestion that Mr Tapp was fixated on the blue cap that was photographed by the police, along with the colour of the mattress (whether it was pink or red). The Judge’s interruptions frequently occurred in respect of Mr Tapp’s persistence in asking questions on these topics. However, I do not accept that this demonstrated an “absolute failure” of logic and advocacy as submitted by Mr Forster. Nor do I necessarily agree with Mr Soeterik’s conclusion in his report that Mr Tapp displayed an element of “role playing” as a cross-examining lawyer. Mr Tapp’s difficulties in cross-examination are shared by many who are unfamiliar with court procedure and advocacy. The proper focus of my review is the information elicited by his questions. In my view, while Mr Tapp extracted irrelevant information which did not advance his case, he ultimately managed to extract the necessary information which supported his version of events or undermined the complainant’s version.
[51] In any case, I agree with Ms Thomson that the Judge carried out his role well aware of Mr Tapp’s abilities, evidenced by the fact Mr Tapp’s difficulties in cross- examination did not feature in the Judge’s conviction decision. In other words, they were immaterial to the Judge’s conclusion on the strength of Mr Tapp’s defence. In contrast, the evidence Mr Tapp did manage to elicit such as the aforementioned inconsistencies in the complainant’s statements did feature in the Judge’s decision, though ultimately proved unpersuasive. In my view, the District Court Judge presided over the trial in a careful and fair manner, giving Mr Tapp considerable leeway in conducting his defence. He also explained court procedures to Mr Tapp in addition to the guidance provided by Mr Philip. The Judge issued five minutes over the course of the two-day trial, documenting important interactions with Mr Tapp as well as formally recording procedural understandings between Mr Tapp, Mr Philip and the Crown. Further, despite the presence of an objectively large number of interruptions, the Judge did not immediately shut down irrelevant lines of questioning. Mr Tapp was afforded the benefit of the doubt on numerous occasions and permitted to explore what would ordinarily be considered irrelevant topics.
[52] Finally, I turn to Mr Forster’s submission on Mr Tapp’s intellectual disability and the findings of Mr Soeterik’s report. The report is of concern given its findings in respect of Mr Tapp’s vocabulary and abstract reasoning. Based on this “low mental
ability”, Mr Soeterik’s conclusion is that Mr Tapp was “ill suited to the complex task of representing himself.” In Cant, the Court of Appeal noted the following in respect of trial fairness and self-representation (referring to the Supreme Court decision of R v Condon50):
[31] In Condon the Court presumably had in mind the rare type of case where a defendant’s personal circumstances, such as an intellectual disability, leading to the election of self-representation, deprived him or her of the ability to take fundamental steps like conducting cross-examination or making submissions. And the Court’s statement does not appear to require a detailed investigation into whether the actual conduct of the defence was adequate; rather the inquiry is into whether, in the particular circumstances, the defence could have been adequately conducted without counsel.
[53] In light of this observation, I consider Mr Tapp’s diminished intellectual ability to have been sufficiently mitigated by the assistance of Mr Philip and the leeway granted to Mr Tapp by the District Court Judge. To use the Court of Appeal’s phrasing, I am satisfied that in these particular circumstances, Mr Tapp’s defence could have been adequately conducted without counsel.
A real possibility of acquittal was lost
[54] Even if I am wrong and Mr Tapp’s defence could not have been adequately put without counsel, I do not consider that a real possibility of acquittal was lost. In this respect Mr Forster’s sole submission is that “the only case theory that could have worked” was that the complainant had “changed her mind” once Mr Tapp rejected her sexual advances. This is because of the implausibility of a young girl making sexual advances towards a man who had strayed into the room where she was sleeping and, despite being the invitee of sexual conduct, subsequently raising the alarm.
[55] In light of the strength of the Crown’s case, the corroboration between different witness accounts, the fact the complainant was adequately cross-examined by Mr Philip and had any inconsistencies between her version and Mr Tapp’s version of events put to her, and the Judge’s finding that Mr Tapp’s version of events was “simply implausible”,51 I not satisfied there is a real possibility that Mr Forster’s suggested theory would have altered the verdict.
50 R v Condon, above n 43.
51 Conviction Decision, above n 1, at [51].
Conclusion on conviction appeal
[56] For these reasons, I do not consider Mr Tapp’s trial to have been unfair. Accordingly, the appeal against conviction must be dismissed.
The sentence appeal
Submissions
[57] Mr Forster has referred to a number of cases in support of his submission that Mr Tapp’s sentence was manifestly excessive. With particular reference to R v Batick,52 which Mr Forster says was “probably a more serious case”, he submits that a more appropriate starting point (and therefore end sentence given no mitigating factors personal to Mr Tapp have been advanced) is between two years and six months, and three years’ imprisonment.
[58] Ms Thomson submits that Mr Tapp’s sentence was not manifestly excessive. He too refers to Batick but, in contrast to Mr Forster, submits that case was less serious than the present circumstances, thereby justifying the four-year starting point adopted by the District Court Judge. Ms Thomson also refers to Pesefea v R which, although more serious than the current circumstances, shares some features with Mr Tapp’s offending.53
[59] Ms Thomson further submits that while there is no tariff case for attempted sexual violation, the culpability factors and sentencing bands in R v AM (the tariff case for sexual violation by rape and unlawful sexual connection) are of relevance.54 With reference to these culpability factors as well as to Batick and Pesefea, Ms Thomson submits a starting point of four years was within range.
Analysis
[60] Given the absence of a tariff case for the lead charge of assault with intent to commit sexual violation, I agree that at the very least, the culpability factors and
52 Batick v R, above n 17
53 Pesefea v R, above n 17.
54 R v AM, above n 17.
sentencing bands in R v AM are relevant.55 As the Court of Appeal in Bowman v R observed, the most appropriate comparator is with “rape band one” in R v AM (which attracts a starting point of six to eight years’ imprisonment). In this regard, the following culpability factors were present in Mr Tapp’s offending:
(a)the complainant was young;
(b)there was a large age disparity between the complainant and Mr Tapp;
(c)the complainant was vulnerable given she had been asleep in her own bedroom;
(d)Mr Tapp was a friend of the complainant’s mother and therefore his offending involved a breach of trust; and
(e)the emotional impact on the complainant was significant, evidenced by her distress in the ‘111’ call.
[61] I agree with Ms Thomson that had AM applied, a starting point at the upper end of “rape band one” would have been appropriate. Bearing that in mind, I turn to the relevant cases to which I have been referred.
[62] Batick v R concerned an appeal against conviction and sentence for one charge each of assault with intent to commit sexual violation and indecent assault. Under the guise of offering to help an intoxicated woman to a taxi late one night, the appellant pulled the woman into an alleyway. A passing police officer found the appellant standing over the woman with his trousers around his ankles but still wearing his underwear. The sentencing Judge adopted a starting point of three years’ imprisonment, which was upheld on appeal.56
[63] In Pesefea v R, the Court of Appeal upheld a starting point of six years’ imprisonment for attempted sexual violation (which carries the same maximum
55 Bowman v R [2014] NZCA 92 at [17]; Pesefea v R, above n 17, at [9].
56 Batick v R, above n 17, at [26].
penalty as the lead charge in Mr Tapp’s circumstances) against a 14-year-old girl.57 The appellant in that case sent other children out of the house so he could offend against the victim. He pushed her onto a bed, tried to remove her shorts and when he was unable to do so, simulated intercourse until ejaculation. The Court of Appeal noted the victim was young, the offending was premeditated and the appellant’s actions before and after the attempted rape all elevated the gravity of the offending.58
[64] I note two further cases referred to in Batick and Pesefea. In Bowman, the appellant was found guilty by a jury of two counts of attempted sexual violation; one by rape and the other by unlawful sexual connection. He was acquitted of four other charges including three of sexual violation. The appellant and the complainant had been drinking heavily and subsequently went to bed. At trial, the appellant claimed they had consensual sex, after which he went to have a cigarette. When he returned, the complainant was asleep. The appellant attempted to digitally penetrate the complainant’s vagina but mistakenly penetrated her anus, waking her. He then attempted to penetrate her vagina with his penis but again, penetrated her anus. The complainant refuted the suggestion there was any consensual sex but confirmed she was woken by the pain of the appellant putting his finger and penis into her anus. The Court of Appeal upheld the sentencing Judge’s starting point of five years’ imprisonment, intimating that a six-year starting point (as was initially considered by the Judge) may have been appropriate given the offending represented the fine line between an attempt and a completed act.59
[65] Finally, Ross v R concerned an appellant who followed a woman home in the early hours of the morning.60 When the woman began running, the appellant grabbed her and pulled her to a dark area away from the footpath. He got on top of the victim, straddling her, and told her to be quiet. The appellant had his pants down at this point. When she continued to scream, he placed his hand over her mouth, which she resisted. The appellant attempted to force her legs apart despite the woman’s screams. He then punched her in the head before getting off her and fleeing. The sentencing Judge
57 Pesefea v R, above n 17, at [11].
58 At [11].
59 Bowman v R, above n 55, at [17]–[18].
60 Ross v R [2013] NZCA 263.
adopted a starting point of five years and six months’ imprisonment which was unchallenged on appeal (and in fact endorsed by the Court of Appeal).61
[66] Taking into account the culpability factors from R v AM which are present in Mr Tapp’s offending as well as the authorities above, I consider a starting point of four years’ imprisonment was within range. Mr Tapp’s offending is clearly more serious than that in Batick. While that offending was perhaps more violent, Mr Tapp’s offending was not absent a degree of force in that the complainant struggled to get free. Further, the complainant’s youth, vulnerability and the breach of trust inherent in Mr Tapp’s offending elevates its gravity beyond that in Batick.
[67] Conversely, I consider the offending in Pesefea, Bowman and Ross to be considerably more serious than in the present circumstances. In those cases, there were either more culpability factors which elevated the gravity of the offending or the offending itself was more advanced such that it was closer to being a completed act than simply an attempt. While the starting point in Bowman may only have been a year more than that adopted by the District Court Judge, it is likely — as was intimated by the Court of Appeal — that the starting point adopted by the sentencing Judge in that case was lenient. Therefore, the nominal one-year difference relative to the starting point adopted in Mr Tapp’s sentencing is not disproportionate given the differences between the two sets of facts.
[68] Given I have found the starting point was not manifestly excessive, in the absence of any mitigating factors personal to Mr Tapp, it follows that the final sentence of four years’ imprisonment was also within range.
[69]Accordingly, the sentence appeal must also be dismissed.
61 At [12].
Result
[70]The appeal against conviction is dismissed.
[71]The appeal against sentence is dismissed.
Doogue J
Solicitors:
Crown Law Office, Wellington
8
0