The Queen v Beau Wharepapa
[2000] NZCA 278
•18 April 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 479/99 |
THE QUEEN
V
BEAU WHAREPAPA
| Hearing: | 18 April 2000 (at Auckland) |
| Coram: | Blanchard J |
| Anderson J | |
| Appearances: | J W Watson for Appellant |
| K B F Hastie for Crown | |
| Judgment: | 18 April 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J |
Following a trial in the District Court at Whangarei in September 1999 the appellant was found guilty on one charge of indecent assault on a girl under 12, one charge of sexual violation by rape and one charge of attempted sexual violation of a girl under the age of 12.
There were two other counts in the indictment alleging indecent assaults on the victim of the rape and the attempted sexual violation, on both of which he was acquitted.
The appellant was the uncle of the complainants who are sisters.
In December 1998 PT was residing with the appellant’s wife and family in the North.
She returned to the home at about 11 o’clock on the night of 1 December. She had been drinking and so had the appellant. There was an argument during the course of the early hours the following morning. She alleged, and the jury accepted, that he raped her in a single bed and attempted to insert his penis into her anus which he did not succeed in doing despite three or four attempts.
Prior to this she had been in bed with her aunt and other young children and subsequent to it she returned to that bed but did not say anything to her aunt about the sexual encounters.
Later in the morning she made complaint to her sister (GD) about what had happened. Following the disclosure GD reported how she had been the subject of an indecent assault by the appellant in 1974 when living in the Gisborne area.
That complainant GD, also indicated that in August/September 1998, the appellant had at a party asked her if she remembered what he had done to her as a child and she responded by saying that she wanted to forget it.
The appellant was spoken to by the police on 4 December. The Crown evidence was that police went to the home at about 1 pm and in the course of the discussion the appellant admitted what had happened in the bedroom with PT. He confirmed raping her and showed the detective the bedroom in which it occurred.
In respect of GD he admitted to the detective that he had molested her a long time ago and knew it was wrong.
Subsequently at the police station (where the appellant agreed to a video interview) he denied all the allegations.
He maintained the denials at trial.
In his evidence the appellant denied ever having made admissions to the police or showing the detective where the rape had occurred. He said that the recent complainant PT, was motivated by a desire for revenge because he had thrown her out of the house for inappropriate behaviour of a sexual nature while she was drunk.
The appellant denied that he had admitted to the police the allegations made by the other complainant in respect of an incident 25 years earlier.
A number of grounds of appeal were originally signalled but only two are pursued. First, the effect of refusing a pre-trial application to sever the count relating to GD from the four counts in the indictment involving PT.
The relevant statutory regime appears sometimes to be overlooked in arguments of this sort. Section 340(1) provides :
Any number of counts for any crimes whatever may be joined in the same indictment ...
and s 340(3) :
If the Court thinks it is conducive to the ends of justice to do so it may order that the accused should be tried upon any one or more of such counts separately.
The Judge who heard the matter observed :
The essence of the Crown opposition to the application for severance is that all counts should be tried together because in respect of Count 1 the jury is entitled to hear evidence which is some explanation at least for what might otherwise seem to be the strange decision on the complainant D’s part to raise her own complaint after a lapse of some 24 years. It seems to me that there is a good deal of merit in the argument that is advanced by the Crown. The credibility of the complainants will be a central issue in the trial and given the usual direction from the trial Judge cautioning the jury against propensity to be reasoning it would be wrong to deprive them of the evidence to be called on count 1.
As against that background he said he was :
... satisfied that the probative value of the evidence in relation to count 1 outweighs any prejudicial effect ...
And later :
... not satisfied that the accused has been able to show that any injustice may result to him if the counts are heard together ...
The Judge referred particularly to the decision of this Court in R v W [1995] 1 NZLR 548 where it was specifically held that a jury was entitled to hear evidence which explained why the complainant such as GD made her complaint after a lapse of many years.
The Crown submits that in the present case, as was the situation in W, “the allegations are interwoven or interconnected” and so there exists “the desirability of presenting the case in a realistic rather than an artificial basis.”
We are satisfied that there was no error in the exercise of the Judge’s discretion and no injustice in the outcome. We would go further and say that to have done otherwise would have been quite artificial. When one looks at the narrative as to how matters emerged the interrelationship is clear and unavoidable. The complainant in respect of the Gisborne offending in 1974 may not have initiated any action. However when her younger sibling reported in December 1998 what she had suffered she decided to complain also.
As the case developed the appellant, although allegedly having first admitted offending to the police officers, advanced a defence which was a total denial. In each case this was a man in a position of trust having taken advantage within the home situation of a young person. The interrelationship between the two incidents was of probative value. The jury’s ability to assess the individual matters and the need for proof of each independently as they were clearly and strongly instructed was necessary is demonstrated by the acquittals on two counts in the indictment in respect of the complainant PT.
The second matter related to the Judge’s decision to permit rebuttal evidence to be called by the Crown.
This issue emerged in the course of the trial during the cross-examination of a detective who had gone to the appellant’s house on 4 December. He said that admissions had been made. He said that this had been at approximately 1.10 pm when he was in company with other police officers. The timing was raised in cross-examination and the officer said he was not mistaken and that there were at least two other police officers in the vicinity at the time. As the trial Judge in a ruling noted, there was an aside from counsel after a question :
Counsel: Who were these officers?
Answer: Detective Constable Dalzell and Inspector Paul Carpenter.
Counsel: Are we going to hear from Mr Carpenter?
Court: That is a Crown issue.
It is fair to note that the exact timing of this police visit had not been important up to that stage in the trial. From a purist point of view it might be possible to say that a conflict about its timing then emerged, but the matter in reality only became an issue during defence evidence. When the appellant gave evidence he was not sure about the time of the police visit. However his sister-in-law who was called was adamant it was between 10.30 and 10.45 am and that the appellant had not taken any officer into bedroom number 1. When she was cross-examined on the issue of time she was asked :
Question: Out of fairness I tell you two police officers have told this jury that they arrived at the address 96 Allen Bell Drive at 1.10 pm on 4 December 1998, when they give that evidence are they lying?
Answer: Yes they are.
This is an example of counsel introducing the concept of lying unjustifiably and inappropriately into a case. There were about three questions rolled up in that interchange. One of them was whether the witness agreed with the police officer’s evidence. Whether she thought that someone could have been mistaken or inaccurate in their recollection, or wilfully telling an untruth, was not addressed.
That aside, after that evidence there was a clear conflict as to what had occurred and when. Even without the introduction of the concept of lying, credibility thereafter was a major issue. If it could be demonstrated that the police officers’ recollection of the time of their visit was inaccurate or unreliable, then their recall of their conversation with the appellant could be a matter of substantial importance.
Faced with that situation it could not be said that the Judge erred in his exercise of the discretion to deal with the position which emerged.
The prosecution, until the cross-examination of Inspector Carpenter, could not have reasonably foreseen that the timing of this encounter was of importance. Particularly after counsel’s aside it became important. But even then if there had only been the evidence of the appellant the matter would not have been a substantial issue, as he had no recollection about the time of the visit.
It was not put to the inspector in cross-examination that the appellant’s sister-in-law was going to give such definite evidence about the time of the visit. We are satisfied that once she did it was in the interests of justice that the evidence in rebuttal be admitted.
There is no error demonstrated in either of these grounds and the appeal is accordingly dismissed.
Solicitors
Crown Law Office, Wellington
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