The Queen v H

[2004] NZCA 453

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA289/03

THE QUEEN

v

H(CA289/03)

Hearing:         16 August 2004

Coram:Anderson P Baragwanath J Ronald Young J

Appearances: J G Rowan QC for Appellant

B M Stanaway for Crown Judgment:    9 September 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]    The appellant is a man who was sexually abusing his own natural, 11 year old daughter. When she was 12 he murdered her. His reasons for doing so relate to the fact that she complained to the police about what he was doing and the police charged him with rape. The killing occurred whilst he was on bail, about two weeks after the complaints were made. He pleaded guilty to murder a relatively short time after his arrest on that charge and was sentenced to life imprisonment. A little over three months later he was arraigned before a High Court Judge and jury, pleaded guilty to one count of incest and one count of having sexual intercourse with a girl

R V H(CA289/03) CA CA289/03 [9 September 2004]

under the age of 12. He pleaded not guilty to a count of rape relating to the first occasion on which sexual intercourse had occurred and was convicted, being sentenced thereon to ten years imprisonment concurrent with his life sentence and sentences of five years imprisonment on the other sex charges. He now appeals against the rape conviction.

[2]    Because the appellant had killed his victim before depositions there was no sworn testimony in any form from her at the rape trial. But her written complaint to the police was admitted in evidence under s 3(1)(a) of the Evidence Amendment Act (No. 2) 1980 which, subject to certain conditions and judicial discretion in respect of unduly prejudicial evidence, permits the admission of what would otherwise be hearsay.

[3]    At the rape trial the reason why the victim was not personally available to give evidence was disclosed to the jury. It appears that the question was discussed in chambers with the Judge in consequence of which Crown counsel, in opening to the jury, commented that the complainant would not be giving evidence because the accused had killed her.

[4]    In a report by trial counsel for the appellant which Mr Rowan has placed before this Court, that counsel recollects being of the view that it would be unreal to proceed without reference to the fact that the appellant had killed his daughter, that his statement was going to be admitted and he could not see how a trial could realistically proceed without the jury being aware of why the girl was not giving evidence in person.

[5]    It is difficult to see how the fact that the appellant had killed the complainant could be kept from the jury without creating a quite artificial context. That might lead to unjustified speculation that the complainant was not prepared to stand up in Court and give evidence, which would operate unfairly against the Crown. There was also, plainly, some relevant connection between the fact of the complaint having been made and the killing. The appropriate course was to take a realistic approach, indicate what had happened and for the Judge to give firm directions to the jury in respect of sympathy and prejudice. That in fact happened and the present appeal is

not founded on a miscarriage of justice by reason of the disclosure to the jury of the reasons why the complainant was not before the Court.

[6]    The grounds advanced in support of the appeal are radical error by trial counsel in:

(a)  failing to make an application for change of venue of the rape trial; and/or

(b)  failing to locate and interview the mother of the complainant and have her called as a witness.

[7]    We do not think that in this case the grounds need to be formulated in terms of counsel error because if there has been a miscarriage of justice for the reasons indicated, error by counsel would be merely causative and not determinative of the issue whether a miscarriage of justice has occurred. The fact however that experienced trial counsel did not apply for a change of venue may well be relevant to a contemporary and interested perception of community attitudes in the locality where the trial occurred. That is, if there had seemed any real cause for concern about a local trial one would have expected the particular barrister, with his criminal experience, to have applied for a change of venue pursuant to s 322 Crimes Act 1961 on the grounds, specified in subs (1), that it would be expedient for the ends of justice that the appellant should be tried in another High Court.

[8]    It is common ground between the Crown and the appellant as to how a Court conventionally approaches s 322 applications. The proper starting point for an inquiry is that all other things being equal, justice should be done and be seen to be done in the community in which the alleged offence is committed. See R v  Houghton CA371/99, 23/11/99. A party seeking a change of venue must  demonstrate that in all the circumstances there is a real risk that a fair and impartial trial may not be possible at the place where an accused has been committed for trial. See R v Tuckerman CA 48/86, 18/4/86; R v Mayer-Hare [1990] 2 NZLR 561.

[9]    In this case Mr Rowan submitted that if there was a real risk that a fair and impartial trial may not have been possible so as to have justified a change of venue

before trial then, by the same token, there must be the same risk after trial, such amounting to a miscarriage of justice. The argument is attractive but not entirely correct because a prognostication is made before trial on the basis of the circumstances as they are known at that time, but an evaluation after trial is informed by additional information which includes the way the jury was directed and the absence or presence of any evidence of community prejudice. One of the matters for prognostication may be whether the quality of public opinion, indicated by whatever evidence or inferences there may be, could remain or become less of a concern at the time a trial is likely to take place. Timing is important because the closer the prognostication is to trial the more reliable it is likely to be. Post trial, the question  of risk is not a matter of prognostication but of inference from known, historical data.

[10]   The circumstances relied on by Mr Rowan include the relatively small size of the city where the killing occurred and the emotional effect on the community of two tragic homicides within a relatively short space of time. Counsel’s submission  is  that not just the fact of the murder but its emotional impact on the community created a real risk of an unfair trial.

[11]   At the request of Mr Rowan, trial counsel has conducted a comprehensive search of media in order to identify the publicity surrounding the events in question. Over the space of about two and a half months, from the time of the killing and the appellant’s immediate arrest, until his guilty plea and life sentence for murder, some 16 newspaper articles were published in the city in question. These were, however, spread over a number of newspapers so that there is a degree of duplication of any particular news item. They show that on one of his early Court appearances some members of the dead girl’s whanau called out “murderer” and “parasite” from the Court gallery, and advanced on him threateningly as he was led to a police car. That was five and a half months before the rape trial occurred. The last news item of any sort about the killing was about three and a half months before that trial and that is a small item reporting the imposition of the life sentence. The report notes that the public gallery was close to empty at the time he was sentenced. Because of the provisions of s 139 Criminal Justice Act 1985, there was no news report within months of the trial or any time thereafter, even indirectly connecting the appellant’s

sexual offending with the murder. The only media report proximate to the trial is  one appearing in a local newspaper the day after the sentencing. There is no suggestion of any interest by the public, let alone public hostility, in connection with the trial. The tenor of the news items, generally, is not extravagant.

[12]   The ground of appeal requires evaluation of risk by reason of the locality of the trial but in reality any risk of prejudice lay not in some smouldering antipathy in the community about the murder but in the obscene and corrupt activity which on his own admissions he had engaged in with his young daughter, and in his protestations that not only was this some pure expression of paternal love but also something which the girl had manipulated him into. The Judge gave very firm directions in that respect and we cannot assume, nor is it suggested we should, that the appellant did not have a fair trial on that account.

[13]   In the course of argument it was suggested that the potential for prejudice by dint of venue was exacerbated by the inability of the defence to cross-examine the complainant on her statement to the police. We note that the Judge directed the jury very firmly in that respect. She said:

[14]  In this case you have had a statement by the complainant, rather than evidence from her. Normally our rules of evidence limit the evidence you can consider to evidence that is called from witnesses who give it in Court, and are questioned on it. An exception is an accused’s  statement  and another exception is the case of a witness who is dead. This is an  exceptional course that you have here; not the evidence of a complainant but the statement that she made to the police. You need to be careful about the statement because of those circumstances, because it is not evidence you have had the opportunity to assess from watching the complainant give the evidence in Court. You will remember questions which have been raised by the defence about the accuracy and reliability of that statement which I will remind you of. But it is evidence for you to use as you see fit.

[15]  Indeed, in this case it is the critical evidence you have to consider. You need to look at it anxiously and be sure it is correct before you would be entitled to convict the accused.

…

[19] This case is unusual because on a critical issue in relation to the count, you have to consider you have not had the advantage of seeing and hearing the complainant to judge her truthfulness and reliability. You only have her statement made to the police. You have to be satisfied beyond reasonable doubt it is true in all essential respects. If because you have not had the opportunity to assess the complainant’s evidence by way of seeing and

hearing her in the witness box, you are left unsure about its reliability, it is your duty to find the accused not guilty, even if that is unpalatable to you. What you must do, because you do not have a more direct way of testing the truthfulness and accuracy of what is said in the statement, is look at the surrounding circumstances. You have to look at the statement itself, whether it convinces you and hangs together internally, and also at the background circumstances.

…

[23] The complainant is not on trial, but you must look closely at her statement. It is not enough to think that you have not had the advantage of hearing her, but it is the fault of the accused. That would be simply to apply prejudice. It is not enough to think it likely the complainant’s statement is true. You must be sure it is, having no doubt about the matter.

[14]   The correctness of this Court’s decision in allowing the girl’s statement to go before the jury cannot be relitigated, nor does Mr Rowan attempt to do so. The statement stands as evidence properly admissible in support of the Crown case. It is in fact remarkably consistent with the appellant’s own statements to the police except on the issue of consent on the particular occasion to which the count of rape relates.

[15]   We accept that in a case where the credit or cogency of crucial evidence is a matter of fine balance so as to require very careful examination by a jury, a risk of prejudice must be closely scrutinised. That scrutiny might indicate more obviously than in the case of less disputable evidence that the interests of justice require the location of the trial to be shifted. If the matter is poised, an accused should get the benefit of relocation. In short, the issue of real risk of an unfair trial  may be informed by the nature of the evidence as well as other considerations. If the risk of prejudice is low, the risk of an unfair trial is not exacerbated by the nature of the evidence in a case.

[16]   In addition to the directions we have already mentioned, we set out the Judge’s general directions on the issues of sympathy and prejudice:

[3]    The first matter I want to raise with you, because it looms over this trial, is prejudice and sympathy, which both counsel have referred to you. The background to this case is one of terrible tragedy. You would have to be quite inhuman not to feel appalled at what has happened here. It would be natural if you wanted to accept the memory of the complainant by accepting without question her statement to the police, and that the accused must be

guilty  of the charge.   If you were to do that you would be swayed by prejudice and would be false to your oaths to try this case.

[4]   Similarly, you must not be swayed by the continuing sexual contact between the complainant and the accused. It is not relevant to the charge  you have to consider, except insofar as counsel rely on it to show what may have been going on at the time of the count you have to consider. The fact there was continuing sexual contact might be something you strongly disapprove of, it would be unnatural if you did not. Put aside the natural revulsion you feel about that, and be clinical about your assessment of the evidence.

[5]   Similarly, some of you may feel sorry for the accused and believe he was gripped in an obsessive fantasy about the complainant. He said in his video interview about believing he had been in a fairytale with stars. You might have sympathy for someone in that sort of state. Again, that is a  matter of sympathy which is foreign to your task. What you are doing here  is acting as judges. A judge should not allow feelings of sympathy or prejudice to cloud his judgment. Be clinical, dispassionate and look at the evidence put forward.

[17]   We are therefore asked to assume a risk of partiality by the jury, warranting a new trial on the grounds of an actual miscarriage of justice, when

(a)      there is no evidence of such risk but rather indications that there was none; and

(b)     to do so requires us to speculate that the jury may have ignored the firm, extensive and careful directions of the trial Judge on the very issue of impartiality.

[18]   In our view any risk of partiality is not sufficient to satisfy us, even having regard to the nature of the crucial evidence for the Crown, that the appellant’s trial was unfair.

[19]   In the result, we are not persuaded that there has been a miscarriage of justice.

[20]   We turn now to the second principal ground of appeal which is based on the fact that the victim’s mother did not give evidence at trial. She was not available either to the Crown or the defence because her whereabouts were unknown, she having gone to ground and been protected by her family in the tragic circumstances

of the sexual abuse of the victim (for even on the appellant’s own version it could not be described otherwise) and the murder. The criticism of radical error cannot fairly be imputed to defence counsel. More pertinent is the issue whether the fact of the absence of any evidence the mother might give has occasioned a miscarriage of justice.

[21]   Comparatively recent inquiries made on behalf of the appellant by a private investigator, engaged at Mr Rowan’s request, indicate that the mother has no wish whatever to be involved in the appellant’s legal processes. This is of course entirely consistent with her attitude, as it must be inferred, at the time of the trial some years ago. There is a still continuing attitude which in legal terms, relative to a witness, would be hostility. There is no inkling of what she might have been able to say at  the time of the trial except in terms of the appellant’s perception. This is to the effect that she could have attested to a degree of patent physical affection by the girl for her father. But the relationship, indicating fondness before the first act of sexual intercourse and even intimate conduct after that occurrence, have a very limited logical bearing on whether the girl actually consented to the first sexual intercourse and whether there were any reasonable grounds for the natural father of an intermediate school child to think she did. The mother was not an observer to the incident when the appellant, instead of taking the girl shopping as they set out to do, drove her to a secluded area where (consistent with both her statement and his), he removed his clothes and, without any assistance from her, removed her clothes and then penetrated her vagina with his penis.

[22]   The appellant said in evidence that his daughter manipulated him into doing it, made him have sex with her. The jury must have thought, and the Judge expressly stated at sentencing that the evidence showed the appellant set up the opportunity for rape, drove his daughter to a remote location, ignored her tears and overbore her; then blackmailed her with suggestions that if she told she would break up the family. No reasonable person could have come to a different view on the evidence and there is an air of unreality about the appellant’s present argument that the girl’s mother could have given evidence which might have led the jury to think there was a reasonable possibility of his explanation being correct.

[23]   To the extent that the particular ground of appeal criticises trial counsel for not locating the mother, we also reject it. How he was meant to take a brief from and call a person whose whereabouts were unknown even to the police is difficult for us to understand.

Result

[24]   We are unpersuaded on any ground that there has been a miscarriage of justice and the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington