The Queen v Frank Maurice Manifold

IN THE COURT OF APPEAL OF NEW ZEALAND

CA544/99

THE QUEEN

FRANK MAURICE MANIFOLD

Hearing:	16 October 2000 (at Auckland)
Coram:	Tipping J Anderson J Fisher J
Appearances:	K P McDonald for Appellant B H Dickey for Crown
Judgment:	17 October 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

The appellant, Frank Maurice Manifold, was found guilty of sexual violation by rape in the High Court at Auckland. He was sentenced to 10 years imprisonment. He has appealed against both conviction and sentence.
When the appeal was called on for hearing Mr McDonald applied for an adjournment which the Crown opposed. Having heard counsel, we refused to adjourn the appeal and now give our reasons. We also deal with the appeal itself on the basis of the submissions which were presented. We gave Mr McDonald leave to address us, in spite of his not having filed either points on appeal or written submissions.
Mr Manifold and a co-offender, Richard John Condren, were indicted jointly on three counts: 1) stupefying the complainant with intent to facilitate the commission of sexual violation (s191 of the Crimes Act 1961); 2) sexual violation of the complainant by raping her; and 3) sexual violation of the complainant by unlawful connection with her anus. During the trial the Judge discharged the two accused on count 1 when it was ascertained that the substance with which they were accused of stupefying her had in fact been administered to her in hospital some hours after the offending ceased. They were each found guilty by the jury on count 2 but not guilty on count 3. Mr Condren appealed on grounds similar to those now advanced by Mr Manifold. His appeal against his conviction and his 10 year sentence was dismissed on 1 June 2000.
In his application for adjournment Mr McDonald indicated he wished to call evidence, not yet formally available, to show that an analysis of the complainant's blood produced to the jury and which showed an alcohol level of 134 was erroneous and should have been reported as showing a level of 110. Furthermore Mr McDonald indicated his client wished to contend that the sample in question had not been taken at 4.30pm or thereabouts as the Crown contended, but at 11.59am, some 4½ hours earlier. We were satisfied by the submissions of Mr Dickey for the Crown that the likelihood of the appellant demonstrating either of these points was remote, and not such as to justify an adjournment of the appeal which had already been outstanding for a considerable period.
The rape of the complainant took place between 7am and 9am on 12 July 1998. She was admitted to hospital later that morning as a result of having fallen down some stairs. A routine blood sample was taken at 11.59am. At that stage the hospital authorities were not concerned with any question of sexual abuse. At about 4pm one of the sexual abuse team doctors arrived and at about 4.30pm took a further sample using a special toxicological kit designed for the purpose. This is the sample which was subsequently analysed at 134. It also contained the drug cyclizine which had been administered to the complainant in the hospital a little earlier, but well after the blood sample which was taken at 11.59am. It was on this basis that the Judge discharged the two accused on the stupefying count.
The 4.30pm sample taken by the sexual abuse team doctor was re-analysed for the purposes of the Condren appeal by an independent analyst. His analysis produced the almost identical result of 133. If this sample had been taken at 11.59am, as the accused now wishes to assert, the presence of cyclizine could not have been explained by what had been administered to the complainant in hospital. By seeking to show that the sample was taken at the earlier time, in effect to lessen the extrapolated level at the time of the rape, Mr Manifold would effectively be undermining the basis on which he was discharged on the stupefying count. What is more, we were satisfied by dint of the different processes for the taking of the hospital samples and those taken by the sexual abuse team doctor, that there was no room for any concern that one of the 11.59am samples has erroneously been treated as the 4.30pm sample. We were also satisfied that there was no tenable basis for suggesting that the 4.30pm sample, independently audited for the purposes of the Condren appeal, should have produced a result of 110. For these reasons we refused the application for adjournment. We did so on the basis that no purpose would be served by giving Mr Manifold the opportunity to produce evidence upon which to pursue his intended line of argument.
In support of the appeal itself, Mr McDonald argued that the accused had been prejudiced because his counsel had been required to cross-examine on a factual basis which had no substance. By this we took Mr McDonald to mean that while the stupefying count remained alive, a tactical decision had been made as to how to deal with it in the light of the fact that the Crown was alleging that not only had the complainant been stupefied, but she had also been taken advantage of when she was heavily intoxicated by alcohol. The appellant's tactics at trial were, according to Mr McDonald, to concentrate on the alcohol allegation for the purpose of contending that the complainant was indeed heavily intoxicated (this explaining the symptoms said to be consistent with the stupefying allegation); but she was not so intoxicated as to be unable to give a properly considered consent to the sexual activities that took place. The complainant herself had said that she had only consumed three beers but this was patently inconsistent both with her conduct and with her blood alcohol level. In essence, Mr McDonald was endeavouring to argue that if the stupefying charge had never been brought, different tactics might have been used vis a vis the rape simpliciter charge.
Against that argument must be set the fact, as Mr Dickey stressed, that Mr Manifold himself gave evidence at some length providing his own assessment of the sobriety of the complainant. This evidence in effect did what counsel said he would have liked to have done had he been able to approach the matter without the stupefying count. It must also be borne in mind that the complainant's evidence was based on a very limited recollection of the relevant events. Mr Manifold, through counsel, had the option to ask for a discharge of the jury if he felt he was significantly prejudiced by the dropping of the stupefying count in light of the defence already advanced.
Having considered all that Mr McDonald was able to submit on this point, we are not satisfied that any miscarriage of justice has resulted from the course which the trial took. Mr Manifold's defence was plainly before the jury. He gave evidence as to his view of the complainant's state of sobriety, and his understanding of her willingness to engage in sexual activity. The jury must clearly have rejected that evidence. There was ample evidence, external to the complainant's own testimony, to support the view that she was highly intoxicated at the relevant time. There was also evidence upon which the jury was entitled to act that she did her best to make it clear that she was unwilling to engage in the activities with which Mr Manifold and Mr Condren were charged.
Mr McDonald also raised a complaint about the way in which the Judge had explained to the jury the basis upon which the two accused were being discharged on the stupefying count. Counsel focused on the use by the Judge of the expression "distinct prospect" when he said to the jury that there was the distinct prospect that the cyclizine in the blood specimen taken at 4.30pm was the cyclizine administered at the hospital as medication at 4.26pm. Counsel argued that the Judge should have put the matter more strongly to the jury, ie. rather than saying that there was a distinct prospect, he should have said that the cyclizine in the blood sample was the cyclizine administered at the hospital. In the context of the case we think this is how the jury would almost certainly have understood what the Judge was saying. Mr Dickey, who was counsel at the trial, informed us that this was the whole basis upon which the matter was dealt with in submissions.
During the course of his summing-up the Judge appeared to endorse Mr McDonald's submission that the cyclizine present in the blood sample was that which had been administered at the hospital. The plain fact is that Mr Manifold was no longer at risk of a conviction on the stupefying count, and we think it is far fetched to suggest that the jury might have been influenced in their consideration of the case as it remained, by the thought that there was still a possibility that cyclizine had been administered to the complainant by the accused for the purpose of facilitating rape. All in all Mr Manifold, through counsel, made or endeavoured to make considerable capital out of the fact that the Crown had been shown to be in error in making the stupefying allegation. It seems fair to conclude that the accused decided to take the tactical advantage of carrying on before the same jury rather than seeking a discharge and starting afresh before a new jury when the stupefying tactical advantage would not have been available to them. We do not consider that Mr McDonald has demonstrated any miscarriage of justice on either aspect of his argument in this area of the case.
Mr McDonald also addressed us on his client's appeal against sentence. He endeavoured to distinguish the circumstances of Mr Manifold from those of Mr Condren who also received a 10 year sentence which was upheld by this Court. We have borne in mind the various matters which counsel raised but are not persuaded that they should lead to any distinction being made in the two sentences.
For these reasons the appeal is dismissed, both as regards conviction and sentence.

Solicitors
Kevin McDonald, Auckland, for Appellant
Crown Solicitor, Auckland

[2000] NZCA 291

17 October 2000