The Queen v Bryce Butler

[2003] NZCA 2

IN THE COURT OF APPEAL OF NEW ZEALAND

CA194/02

THE QUEEN

v

BRYCE BUTLER

Coram:McGrath J
Anderson J
Glazebrook J

Appearances:  W Pyke for the Appellant

A Markham for the Crown

Judgment (on the papers):    27 February 2003 

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

1. This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

2. The appellant was convicted following a jury trial on two charges of indecently assaulting a girl under the age of 12 years and one charge of inducing a girl under the age of 12 years to do an indecent act upon him. The first count was a representative charge relating to conduct over the period of nine months leading up to 27 September 2001.   The other counts concern conduct on that date.  The appellant originally gave notice of appeal against his conviction on all three charges but has abandoned the appeal against the offending that occurred only on 27 September 2001.  The sole ground of appeal against conviction on the representative count is that the verdict is unreasonable and cannot be supported having regard to the evidence.

Background facts

1. At the time of the offending the complainant was nine and the appellant 34 years of age. They are related by marriage.  The complainant and her younger sister regularly stayed overnight at the appellant’s house.

2. On 27 September 2001 the appellant and his wife stayed the night at the home of the complainant’s family.  The Crown case at the trial was that, while the complainant and her sister were asleep in the lounge of the house, the appellant had kissed the complainant on her breast, awakening her, and had touched her vagina. 

3. The appellant also asked the complainant if she had ever touched a boy’s penis.  She told him that she had not and that she did not want to.  The appellant ignored her response, picked up her hand, and placed it on his penis holding it there while moving her hand around.  The complainant subsequently told her parents what had occurred during that night.  During a police interview regarding these events the complainant disclosed that the appellant had also kissed her on her breast on previous occasions when she had been staying at his home.  It is this conduct that resulted in the representative charge which is the subject of this appeal.

Submissions

1. The appellant’s written submissions advanced two main arguments.  The first was that the verdict was unsupported by the evidence (s385(1) of the Crimes Act 1961).  The second ground was that the act of kissing the complainant’s breast area, in the absence of any other evidence of activity indicating indecency, in itself was not indecent.  We address the second argument first.

2. Counsel for the appellant argues that the act of kissing the complainant on her breast area was not in itself indecent.  No allegation of indecency was made in respect of the appellant kissing the complainant’s forehead and in counsel’s submission, kissing her on the breast was no different.  Counsel for the Crown submits that the act of a 34 year old man kissing the breast of a nine year old girl would be considered by any right-minded person as indecent.  This proposition, counsel argues, is strengthened by the fact that the conduct occurred during the night which indicates an element of secrecy and coercion. 

Decision

1. The term “indecent” is not defined in the Crimes Act 1961.  The House of Lords has held that to establish the offence of indecent assault the prosecution must prove that an assault and the circumstances accompanying it, were capable of being considered indecent by right-minded persons, R v Court [1988] 2 All ER 221. This approach was adopted by Gault J in the High Court in Milne v Police (1990) 6 CRNZ 636 a case where a conviction for indecent assault was upheld on appeal where a man touched the complainant around the arms and kissed her on the lips after she had rejected his request that she agree to his doing so.  Gault J said that the word “indecent” was to be given the meaning accorded to it in general use and that what was indecent was to be judged in light of time, place and the circumstances.  The conduct had to warrant the sanction of the criminal law rather than be a trifling or unimportant episode.

2. We take the view that in the present case it is the circumstances in which the kissing took place that are an important indicator that the conduct was not of a kind that was consistent with an innocent and decent expression of affection. Lifting the pyjama top of a young girl and kissing her on the breasts at night while she was asleep certainly has all of the appearances of a preliminary step towards an indecent assault, and we consider it was also open to a jury to find the conduct had actually reached that point. What happened in this case is very different from kissing a child on the forehead in any context.  This ground of appeal is accordingly dismissed.  The next question is whether in this case there was sufficient evidence to support the jury’s finding of guilty.

3. The Crown relies on the following transcript of the complainant’s video evidence which it says amounts to evidence that could satisfy the elements of the offence under appeal.

   GB:Mmm and when you say kissing you can just tell me again what you mean.

   TF:Kissing me there (points to left breast)

   …

   GBYea and what is there anything that happens to your clothes when he does that kissing or

   TF:(shakes head in the negative)

   GB:So is he kissing on top of your clothes or under

   TF:Under my clothes

   GB:Eh

   TF:Under my clothes

   GB:And how does he get to kiss you under your clothes

   TF:He just lifts them up

   GB:Mmm.  And how long does he did you do the kissing for

   TF:About two or three minutes that’s all

   GB:And how many times do you think that he’s done kissing to you like that

   TF:Oh not counting this time

   GB:Yea

   TF:Um probably a couple of times, or once or twice.

   GB:Okay.  Has it always been the same sort of kissing

   TF:(Nods head in agreement)

4. The appellant submits that this passage and other parts of the transcript of evidence referred to in their submissions indicate there was insufficient evidence to convict the appellant.  Counsel also argues that the complainant’s evidence was vague and hesitant.  At the trial the complainant was not cross-examined with respect to this aspect of her evidence.  Nor was it addressed during the evidence in chief nor cross-examination of the appellant.  The appellant submits that in all the circumstances the jury could not have reasonably found the charge proved without improperly relying on the evidence adduced in relation to counts two and three, which related to the events specifically taking place on 27 September 2001.

5. The transcript of evidence shows that both the Crown and defence counsel, at the trial, focused their examination and cross-examination on counts two and three.  The entire police interview video was produced at the trial as part of the complainant’s evidence.  As the Crown points out any questions of credibility and the weight to be attached to her evidence were before the jury for it to decide.

6. We are satisfied, having reviewed the transcript, that there was sufficient evidence for a jury properly to convict the appellant on the representative charge, irrespective of the evidence of the other two convictions.  The complainant’s evidence, with regard to count one, was uncontested at the trial.  She was not cross-examined in relation to the allegation and the appellant did not expressly deny this aspect of his alleged conduct in his evidence in chief.  There was sufficient evidence in the complainant’s uncontested testimony to prove the charge. The Crown is plainly correct in its submission that in this context the Crown cannot be criticised for not cross-examining in relation to that charge.  There is nothing to suggest that the jury’s verdict in relation to count one was unsafe.

7. Both grounds of appeal against conviction on count 1 accordingly fail.  The appeal has been abandoned on the remaining counts.  It is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington