The Queen v Adams

[2007] NZCA 211

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA218/06
[2007] NZCA 211

THE QUEEN

v

WAYNE ANDREW HERBERT ADAMS

Hearing:21 March 2007

Court:Chambers, Robertson and Arnold JJ

Counsel:S J Shamy for Appellant

T M Gresson and I R Murray for Crown

Judgment:29 May 2007     at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Two sexual incidents in Timaru

[1]       Following trial before Judge Philip Moran and a jury, the appellant was found guilty of various crimes arising from two sexual incidents which took place in Timaru back in 2002. 

[2]       The first occurred on 19 July.  The jury found the appellant had unlawfully entered the complainant’s home and raped her twice.  The appellant’s defence was that the complainant had invited him in and they had engaged in consensual sex. 

[3]       The second incident occurred on 6 December.  The jury found the appellant had returned to the complainant’s home and once again unlawfully entered it.  On this occasion, sexual intercourse did not take place, but the jury found the appellant had indecently assaulted the complainant.  The defence to this incident had been that the appellant never entered the house on the second occasion and that no indecent assault ever occurred. 

[4]       Judge Philip Moran subsequently sentenced the appellant to a total sentence of 10 years’ imprisonment.  He also ordered the appellant serve a minimum period of imprisonment of five years.

[5]       Because it has some bearing on the issues arising in this case, we should point out this was in fact the appellant’s third trial.  He was convicted at the first trial, but those convictions were quashed on appeal.  The jury were unable to agree at the second trial. 

Issues on the appeal

[6]       The appellant appeals against both his convictions and the sentence. 

[7]       The appeal against conviction is principally based on alleged trial counsel incompetence.  The appellant swore an affidavit for the purposes of the appeal which made a number of allegations against his counsel at the third trial, Michael Radford and his junior, Sarah Saunderson-Warner.  Mr Radford did not respond to the appellant’s affidavit as, since this trial, he has become a judge of the District Court.  Ms Saunderson‑Warner did, however, respond.  Her affidavit made it clear that the appellant’s complaints in certain respects could not be sustained.  Mr Shamy, the appellant’s counsel on this appeal, responsibly acknowledged that, but submitted there were two relevant complaints.

[8]       The first related to the way in which the defence team dealt with an incident that occurred just outside the Hoyts cinema in Dunedin on 21 February 2004.  It was on that occasion that the complainant recognised the appellant as the man who had raped her.  The police were called.  Subsequently the police interviewed the appellant and he was arrested and charged.

[9]       The second issue related to the way in which the defence team dealt with the evidence of Detective Constable Stanley Leishman and Detective Jenepher Glover. 

[10]     Mr Shamy submitted, in reliance on R v Sungsuwan [2006] 1 NZLR 730 (SC), these trial errors had led to a miscarriage of justice.

[11]     A third issue arose on the appeal against conviction.  This was a submission that the judge’s lies direction had been in error. 

[12]     Mr Shamy advanced two submissions on the appeal against sentence.  The first was that the sentence was manifestly excessive.

[13]     The second was that this was an inappropriate case for the imposition of an order fixing a minimum period of imprisonment (“an MPI order”). 

Did a miscarriage of justice arise from defence counsel’s handling of the Hoyts incident?

[14]     Two Crown witnesses gave evidence concerning the Hoyts cinema incident.  The first was the complainant, the second her friend.  The gist of the complainant’s evidence was that she and the friend had gone into the cinema to purchase tickets for a film.  As they were walking out of the foyer, the complainant saw a man whom she immediately recognised as the person who had raped her.  The man was with a woman.  The complainant and the man made eye contact.  The man quickly moved away.  The complainant told her friend that was the man who had raped her in Timaru. 

[15]     The two women decided to go back into the cinema foyer so that the complainant could “make sure it was him”.  The man looked uncomfortable and flushed and, after making his purchase, quickly left the cinema with his female associate. 

[16]     The complainant and her friend decided to follow him, perhaps with a view to getting a car number plate.  The man walked quickly away, looking behind from time to time as he did so.  Eventually, the man and the woman he was with went into the Southern Cross Hotel.  The women at that stage gave up the pursuit and went to the police. 

[17]     There was and is no dispute that the man the complainant recognised that night was the appellant.  There is also no dispute that the woman he was with was his wife.  She had also been his wife back in 2002. 

[18]     The appellant’s complaint is that his counsel did not cross-examine the complainant with respect to the Hoyts incident.  And he complains that Mr Radford did not cross-examine the friend at all.  This approach, he says, was quite different from that adopted by Mr Hall, his counsel at the second trial.  Mr Hall had cross‑examined both the complainant and the friend in some detail with respect to this incident. 

[19]     The first point that has to be made is that retrials never take exactly the same course as the earlier trial, even if the same counsel are acting.  If counsel change, as here, then inevitably the new trial will be run somewhat differently: each counsel has the style which he or she has found with experience is most effective.  Indeed, it is noteworthy that Mr Hall told the appellant he should get new counsel for the retrial so that a fresh perspective could be brought to the defence.  Mr Hall recognised that he had not achieved an acquittal for the appellant; perhaps fresh counsel would.  Ms Saunderson-Warner said in her affidavit that she and Mr Radford had discussed with the appellant prior to the trial that fresh tactics would be required, a stance with which she said the appellant had agreed. 

[20]     Since this was the third trial, the new defence counsel, by reading the transcripts of the first two trials, were in an excellent position to make an accurate assessment of the strengths and weaknesses of the Crown witnesses.  In particular, Ms Saunderson-Warner said that she and Mr Radford studied how the friend had responded to cross-examination at the previous two trials.  She said, “We felt that she came across as a credible and reliable witness and there was little to be achieved by cross-examining her.”

[21]     Ms Saunderson-Warner accepted that, at the meetings she and Mr Radford had with the appellant prior to trial, the appellant had indicated to them that he disputed various matters about the women’s accounts.  In particular, he disputed he had looked furtive.  Ms Saunderson-Warner’s account of this discussion is as follows:

We discussed this at some length with the appellant and advised him that it seemed to us that to concentrate on minor details such as how many metres the complainant was behind the appellant when she followed him down the street, whether he looked furtive would not materially advance his case.  The real point was that the complainant did identify the appellant at the picture theatre and did contact the Police, so that the appellant was discovered to be the man who had been with the complainant on the two previous occasions.

[22]     In our view, that was a very sensible trial decision.  At the end of the day, the appellant could not get around the fact the complainant was completely reliable in her identification of the man who had come twice to her home more than a year before.  Further, even if the appellant did look furtive, there was a defence explanation for that furtiveness, as Ms Saunderson-Warner explains:

Even if the appellant had recognised the complainant in the picture theatre and looked furtive, it would hardly be surprising given that he was in the company of his wife who did not know anything about this adultery.  We took the view these actions were just as consistent with a consensual extra‑marital affair as they were with rape.  So it was not a case that we didn’t have an answer for this part of the case.

[23]     At the pre-trial meeting where witnesses were discussed, counsel drew up a list of all the Crown witnesses (“exhibit C”).  They were grouped into three categories.  Category 1 was those witnesses who were to give their evidence orally and be cross-examined.  Category 2 was those witnesses whose briefs of evidence could be read but who would be cross-examined.  Category 3 was those witnesses who were not to be cross-examined.  The complainant’s friend was put into the third category.  The appellant signed that sheet of witnesses, indicating his consent. 

[24]     At the hearing before us, the appellant was cross-examined about exhibit C.  He said he did not understand what he was signing.  We do not accept that explanation.  Exhibit C could not have been clearer.  The appellant was by this stage well versed in criminal trial procedure: he well understood what it meant for witnesses’ evidence to be read rather than given orally from the witness box.  He fully understood the concept of evidence-in-chief and cross-examination.

[25]     Further, Mr Radford and Ms Saunderson-Warner had sent the appellant prior to trial a detailed four-page letter setting out the proposed trial strategy.  Paragraph 3 of that letter read:

There are a number of areas therefore which we need to think carefully about in terms of whether or not questions need to be asked.  This list is not exhaustive but it is illustrative:

…

(b)The question relating to the identification of yourself at the movies.  We are concerned about this area.  The complainant has throughout the procedure maintained her allegations.  As it happens, she did identify you at the theatre and as it happens you were the person with whom she had intercourse on the earlier occasion and with whom she spoke on the second visit.  Thus, we wonder whether there is much mileage to be gained in going through in great detail the identification issues as they arose in the journey from the theatre to the Southern Cross Hotel.  The question of whether or not you were furtively looking over your shoulder to the complainant who was following you is one where it may be worthwhile considering not drawing too much attention to it.  Again it does not go to the core defence of consent.  Even if the jury accepted the complainants evidence on this point, it is not inconsistent with your statement that the sex was consensual but that your wife was not aware of it. 

[26]     This letter was given to the appellant the Saturday before trial.  We accept Ms Saunderson-Warner’s evidence that it was agreed between the appellant and his trial counsel that no mileage was to be gained from a cross-examination of the friend on the Hoyts incident. 

[27]     If the conclusion drawn by the jury was that the friend’s evidence seemed credible and reliable, then it followed that the complainant’s evidence to like effect was also probably credible and reliable.  If the friend was not to be cross-examined, then it logically followed the complainant should not be either.  Any cross‑examination of the complainant should be focused on the two incidents giving rise to the allegations, where, from a defence perspective, there were potentially a number of good points to be made. 

[28]     We have no hesitation in rejecting this first ground of appeal.  The defence tactics with respect to the Hoyts incident were well thought through, carefully discussed with the appellant, and agreed by him.  No miscarriage of justice could have arisen in those circumstances. 

Did a miscarriage of justice arise from defence counsel’s handling of the evidence of Detective Constable Leishman and Detective Glover?

[29]     The second ground of appeal is concerned with the adequacy of Mr Radford’s cross-examination of Detective Constable Leishman and Detective Glover.  Before describing the alleged inadequacy, we must put the officers’ evidence into context. 

[30]     The Crown’s case, based on the complainant’s evidence, was that at about 2.30 am on 19 July 2002, the complainant woke up to find the appellant in her bedroom.  She asked him to go, but he would not.  The complainant formed the view he was intent on raping her.  She was unable to leave for two reasons.  First, it was a small bedroom and the appellant was blocking the doorway.  Secondly, she had in the room with her her young son whom she felt she could not leave.  She decided the best way to get rid of the appellant as quickly as possible was to co‑operate his sexual demands.  She was very concerned about becoming pregnant from the rape she saw as inevitable.  She procured a condom from beside her bed and encouraged the appellant to put it on.  Sexual intercourse occurred.  When it was over, the condom was nowhere to be seen.  This greatly concerned the complainant, who went to the bathroom to see if she could retrieve the condom from her vagina.  While she was there, the appellant left. 

[31]     The defence case was based on a statement the appellant had given to Detective Glover.  In that statement the appellant had said he was walking in the streets of Timaru at night.  He was intoxicated.  He lent against the fence of a property.  The woman who lived in the house asked him if he was all right.  She asked him in and, at her suggestion, consensual sexual intercourse took place.

[32]     With that background, we turn now to consider the evidence of Detective Constable Leishman and Detective Glover, which Mr Shamy submits was mishandled by defence counsel.

[33]     Detective Constable Leishman said he met the appellant when he came to the Dunedin Central Police Station on 1 March 2004.  Detective Glover asked him to oversee the taking of the appellant’s blood sample.  While Detective Constable Leishman was explaining the blood sample procedure to him, the appellant said to him words to the effect:

Is this about the woman I met in Timaru?  I met her at Shed 101.  We went back to her place and I left in a hurry, and she was angry about that. 

[34]     Detective Constable Leishman told him that his role was simply to get a suspect blood sample from him.  He said he told him he was not involved in the investigation.  (We should also explain at this point that Shed 101 is apparently a bar/hotel in Timaru.)

[35]     A little later that evening, after Detective Constable Leishman had taken the blood sample, Detective Glover went in to see the appellant.  Her evidence was:

Immediately that I entered the room, [the appellant] volunteered a statement to me.  He informed me that he did have sexual intercourse with a woman that he met at a hotel in Timaru, that it was consensual, and that during the intercourse, a condom broke, and she became growly with him and he left. 

[36] Later still that evening, the appellant gave his formal statement. That contained a different account as to how he had met the woman with whom he had ended up having, he said, consensual sex. That is the account given above at [31].

[37]     Mr Shamy submitted that the appellant had told his counsel he denied having said to Detective Constable Leishman and Detective Glover the statements recorded above at [33] and [35].  (We shall refer to these two oral statements as “the oral statements” in contradistinction to the formal statement made later.)  Mr Shamy accepted Mr Radford had cross-examined the two detectives about the oral statements, although, he submitted, “for unknown reasons it was not explicitly put to [Detective Constable Leishman] that the appellant had not made the admission about meeting the woman at Shed 101”.  He further submitted Mr Radford had not “properly tested the Crown case” and had left “the jury in doubt as to whether the appellant was in fact disputing that he had made the statements to the detectives”.  Mr Shamy contrasted Mr Radford’s cross-examination on this topic with the more detailed cross-examination Mr Hall had undertaken at the second trial.

[38]     We are satisfied there is nothing in this complaint.  First, it must be remembered the appellant had made clear he did not wish to give evidence.  On that, there is no dispute.  The appellant had given evidence at his first trial, which had resulted in his conviction.  He did not give evidence at his second trial and did not wish to give evidence at this trial either.  That created a significant difficulty for Mr Radford in challenging what Detective Constable Leishman and Detective Glover said the appellant had told them.  What was Mr Radford to do if the detectives insisted he had said this to them?  He could not say from the bar that the appellant denied making the oral statements in circumstances where he did not intend to call the appellant.  A head-on approach was likely to be ineffective and indeed very counter-productive.

[39]     Secondly, Mr Radford knew from the transcript of the second trial the outcome of Mr Hall’s more detailed cross-examination on this topic.  We have read that part of the transcript.  Mr Hall made no progress on this topic. 

[40]     Mr Radford did challenge the accounts, but rather more subtly.  He emphasised the fact neither police officer had made a written record of the oral statements at the time.  He also cross-examined Detective Glover on the fact she had not challenged the appellant during the taking of the formal statement about the differences as to when and where the appellant had first met the complainant.  From our reading of the transcript, the cross-examination on this aspect was not particularly effective, but it was probably as good as any advocate could have achieved in circumstances where the accused did not wish to give evidence. 

[41]     In our view, Mr Radford’s cross-examination on this topic was adequate in the circumstances.  Mr Shamy’s submission to the contrary overlooks the severe limitation Mr Radford laboured under arising from the fact the appellant did not wish to give evidence.

[42]     As with the first ground of appeal, we have no hesitation in rejecting this ground.  Once again, no miscarriage of justice arose from the way in which this matter was handled. 

Did the judge err in his lies direction?

[43]     The Crown relied on two lies said to have been told by the appellant.  The first related to the appellant’s differing accounts as to when and where he had first met the complainant, as discussed above.  The second was with respect to a particular aspect of the second incident on 6 December.  The Crown relied on the lies as being relevant to the appellant’s credibility. 

[44]     Mr Shamy accepts that, in these circumstances, it was appropriate for the judge to give a “standard” lies direction.  But, he says, the direction actually given was flawed. 

[45]     The judge first referred to the statements which the Crown had suggested to the jury were lies.  The judge then continued:

Well, before any of those lies can assume any relevance at all, you would have to be sure that the accused, in fact, lied.  If you are sure that on one or more of those occasions he told lies, just beware of the temptation to jump to the conclusion that, because he has lied, he must be guilty of any of these crimes he is charged with.  You see, people lie for many reasons – shame, embarrassment, fear.  If you are sure that the accused has lied, then that is relevant to his credibility.  He has given an explanation in a statement to the police of the events of July and December.  Is he a truthful person?  Is he someone whose statements you can accept?  When you are making that assessment, you are entitled to have regard to the fact, if it is a fact, that in the past he lied. 

[46]     Mr Shamy submitted that what the judge said ignored the first step of the enquiry: did the appellant make the oral statements at all?  Only if the jury were sure he had made them could they then go on to consider whether the statements were lies. 

[47]     We do not accept this criticism of the judge’s summing up.  In the first sentence of the direction quoted in [45], the judge explained that the first inquiry was whether in fact the appellant had lied at all.  “Lied” is a straightforward word: “to lie” means simply “to say something you know to be untrue”.  In the context of this case, the inquiry had to be whether the appellant had said the things Detective Constable Leishman and Detective Glover had said he said.  If the jury found he had said them, then, in the circumstances of this case, they had to be lies.  That is because the statements not only were inconsistent with the complainant’s account but, more importantly, were inconsistent with the appellant’s formal statement on which he relied for his defence.  So, in the context of this case, when the judge said the jury had to be sure the appellant had lied, the jury would have understood that their focus had to be on whether the appellant had in fact made the oral statements at all.  In assessing that, the jury would have had in mind Mr Radford’s closing address which had cast doubt on the reliability of the detectives’ recollection of what the appellant had allegedly said.  Importantly, Mr Radford had never suggested to them that the Shed 101 story was true: the sole focus had been on whether the oral statements had been made at all.

[48]     We do not consider the judge made any error in this regard.  A summing up must always be read in context.  In this case, the context was a dispute as to whether the oral statements had been said at all, not whether, if they had been said, they might have been true. 

[49]     All grounds of appeal against conviction have therefore failed.  The convictions must stand. 

Was the overall sentence manifestly excessive?

[50]     Mr Shamy submitted the sentence of ten years’ imprisonment was manifestly excessive.  He submitted the judge had failed to take into account adequately “the lack of actual violence” and “the appellant’s agreement to use a condom”.  As for the December incident, he said it “did not involve touching under clothes and was really a matter of the appellant lying on the complainant”. 

[51]     There are a number of ways in which a judge could structure a total sentence in a case like this.  The exact methodology Judge Philip Moran adopted is neither decisive nor binding.  What is important is the effective sentence and whether that is within an acceptable range. 

[52]     The current starting point for a contested rape case is, as Mr Shamy accepted, eight years’ imprisonment: R v A [1994] 2 NZLR 129 (CA). To that would have to be added an uplift for any aggravating factors and for the quite separate December incident. Then deductions would have to be made for mitigating factors. It is immaterial in this case whether the judge adopted concurrent sentences or cumulative sentences or a mixture of the two.

[53]     Let us consider the aggravating factors relating to the July incident.  The first, as the judge recognised, was that the appellant’s offending involved “the invasion of [the complainant’s] home by night, not only her home but her bedroom where she was sleeping”.  Indeed, that aggravating factor gave rise to a separate conviction for unlawfully entering a building with intent to commit a crime therein, contrary to s 242 (as it then was) of the Crimes Act 1961. 

[54]     Secondly, the rape occurred in the presence of the complainant’s young son.  He was in bed with her and witnessed the experience.  The judge found he too had been very much a victim of this incident. 

[55]     Thirdly, the judge found the rape was “prolonged”, perhaps, he surmised, because the appellant in his drunken state had difficulty in “achieving satisfaction”.  The rape also caused some tenderness and bruising around the complainant’s perineum. 

[56]     The effect of any rape is usually severe, which is precisely why the courts treat it so seriously and adopt a high starting point.  But in this case, the judge found the impact on the complainant had been particularly severe.  He detailed in his sentencing notes what had happened to this complainant as a result of the two incidents.  We do not need to put the details here.  The judge’s summary says it all: “In short the victim impact statement that runs for some pages paints a picture of a woman whose life has been ruined by these offences.”

[57]     From that we now turn to the December incident.  By this time, for security reasons, the complainant had moved from the sleepout in which she had been sleeping in July to a bedroom within the house.  The appellant, again affected by alcohol, in the middle of the night entered the house through a ranchslider.  The jury found him guilty of breaking and entering a building with intent to commit a crime, that crime being rape.  The appellant went through the house until he found the complainant asleep in bed.  The complainant woke up to find the appellant lying on top of her, pinning her under the bedclothes.  He was making “animal noises”, much as he had when he had raped her back in July.  Her worst fears had come true: the man who raped her had returned to do it again.  The complainant saw the appellant, in the judge’s words, fumbling with the clothing around his crotch area, clearly intent upon sexual intercourse.  On this occasion, she had, what the judge called, “the presence of mind” to talk him out of sex.  In the end, the appellant desisted, apologised to the complainant, and left.  He was found guilty of having indecently assaulted the complainant.

[58]     We turn now to mitigating factors.  The judge noted the appellant was “in effect a first offender”.  He noted the appellant was “a young man who is a contributing member of the community”, loved and supported by his wife and family, and apparently highly regarded by his employers and others in the community. 

[59]     When one weighs the aggravating factors of the July offending, the circumstances of the December offending, and the personal mitigating factor of general good character, we can only conclude that the two year uplift from A’s eight year starting point was quite unexceptional. 

[60]     A sentence of ten years’ imprisonment was not manifestly excessive.  The appeal against the headline sentence must fail. 

Was this an inappropriate case for the imposition of an MPI order?

[61]     The judge considered an MPI under s 86 of the Sentencing Act 2002 was warranted.  In reaching that decision, he applied s 86 as originally enacted.  That section had been amended by the Sentencing Amendment Act 2004, which came into effect from 7 July 2004 (i.e. between the dates of these offences and the date of sentencing).  But the judge thought the old law should apply.  Although he did not give the authority for that view, he no doubt had in mind this court’s decision in R v Chadderton (2004) 21 CRNZ 566 which mandated that approach. 

[62]     Since Judge Philip Moran sentenced the appellant, however, Chadderton has been overruled.  This court in R v Te Huia CA327/06 21 December 2006 held Chadderton was inconsistent with a later Supreme Court decision, Morgan v Superintendent, Rimutaka Prison [2005] 3 NZLR 1. This court held in Te Huia that the amended s 86 had to be applied to all sentencing taking place after it came into force. 

[63]     Accordingly, although Judge Philip Moran applied the old s 86 in conformity with the appellate authority then current, later authority means he was wrong so to do.  We must, therefore, re-evaluate the MPI in light of the amended s 86.  This does not assist the appellant, however, as the new s 86 widens the range of circumstances in which an MPI will be justified: R v N (CA249/05) 14 December 2006 at [34].  (That was, after all, the basis upon which this court in Chadderton held the old s 86 should continue to apply to pre-amendment offending.) 

[64]     Unfortunately, Mr Shamy had, perhaps understandably, not been aware of Te Huia when he filed his submissions on 2 February this year.  He had prepared his submissions on the basis of s 86 as originally worded.  In particular, he focused on whether this was offending outside “the ordinary range of offending of the particular kind”.  That inquiry would have been relevant under s 86(3) as originally enacted, but that subsection was repealed by the 2004 Amendment Act. 

[65]     The judge had thought an MPI was warranted because of the very serious nature of the rapes and the fact that the appellant had invaded the complainant’s home by night, not once but twice.

[66]     Like Judge Philip Moran, we are satisfied that the standard one-third minimum period provided in s 84 of the Parole Act 2002 would be insufficient for the purposes of holding the offender accountable, denouncing his conduct, and deterring him from committing the same or similar offences.  We are also satisfied he is a man from whom the community needs protection, a factor under the new s 86(2) which was not applicable under the original s 86.  In that regard, we note the pre‑sentence report where the appellant continued his “blanket denial of offending”.  The probation officer remarked that until he accepted responsibility and undertook a relevant sex offender’s programme, there was a significant risk of reoffending. 

[67]     As this court said in R v Taueki [2005] 3 NZLR 372, “in cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon”: at [57]. The same considerations apply in cases of rape. There are many other cases where this court has upheld MPIs at or close to 50% in comparable rape cases: see, for example, R v Affleck CA446/05 14 September 2006 at [61] (50% MPI – six years), R v Boskovic CA33/06 12 December 2006 at [37] (44% MPI – four years), and R v N (CA249/05) 14 December 2006 at [26] and [34] (51% MPI – five years).

[68]     The judge’s decision to impose an MPI in this case was appropriate.  Fixing that MPI at 50% (five years’ imprisonment) was also within his discretion. 

[69]     It follows that the appeal against the imposition of an MPI fails. 

[70]     Both grounds having failed, the appeal against sentence must be dismissed.

Solicitors:
Crown Law Office, Wellington