The Queen v Harold Leonard James Mitchell
[2002] NZCA 93
•9 May 2002
| PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985. |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA291/01 |
THE QUEEN
V
HAROLD LEONARD JAMES MITCHELL
| Coram: | Gault J Keith J Blanchard J |
| Counsel: | C Muston for Appellant |
| M Laracy for Crown | |
| Judgment (on the papers): | 9 May 2002 |
| JUDGMENT OF THE COURT DELIVERED BY KEITH J |
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 members of the Court who have conferred and agreed upon this judgment.
Offences and Sentence
The appellant was convicted on 3 August 2001 after a jury trial of sexual offending against two sisters, X and Y, in the late 1970s. He was found guilty of the following offences:
[a] One count of indecent assault of X (representative)
[b] One count of rape of X (specific)
[c] Two counts of indecent assault of Y (specific)
[d] Three counts of rape of Y (specific)
[e] One count of rape of Y (representative)
The appellant was sentenced on 28 August 2001 in the High Court at Whangarei to five years and six months imprisonment. He appeals against conviction only.
Relevant facts
The complainants are sisters and were in the care of their maternal grandmother and her husband, the appellant. The complainants had come into the care of these people as a result of the separation of their parents and the death of their mother when they were both very young. X joined their household at some point between 1972 and 1977. Y did not come into their care until around 1977, having previously been in the custody of several other relatives.
According to the Crown, the appellant’s offending against X occurred between October 1976 and August 1979 at the appellant’s family home in Northland. The offending consisted of raping X on a couch at their home, penetrating her digitally on several occasions and committing other indecencies such as inserting sweets into her vagina. During this time, X was between six and nine years old.
According to the Crown, the appellant’s offending against Y commenced in February 1977 and continued until March 1978. The offending began as indecent assaults, involving digital penetration of her vagina, but soon progressed to rape. Three specific incidents of rape took place and a further representative count of sexual violation by rape covered Y’s ongoing subjection to intercourse. Y was aged nine and ten during the period of this offending.
The appellant has consistently denied any wrongdoing and, accordingly, pleaded not guilty to all charges. He faced a jury trial in the High Court at Whangarei. Before trial, it was ruled that the counts relating to X and Y were to be heard together, and the evidence of the one complainant was to be admitted as similar fact evidence in respect of the other. An appeal against that ruling failed.
Counsel for the appellant applied for leave under s23A of the Evidence Act 1908 to cross-examine the complainants in relation to alleged sexual abuse perpetrated on them by two uncles. The following sequence of events were relevant to this application.
There was a note on X’s Social Welfare file in 1985 stating that it had been alleged that X and Y had been sexually abused by two uncles.
Also around 1985 she complained to a social worker that she had been abused by the appellant.
A counsellor who counselled both complainants for sexual abuse in 1992-1993 had recorded on her file that X had identified three perpetrators of sexual abuse, namely, two uncles and a grandfather. The reference to the grandfather appears to be the appellant.
X made a statement to the police in 1998 that she had been sexually abused by the appellant. This was made after a suggestion by Social Welfare that she return to live in Northland.
The appellant contended that cross-examination was necessary as it would be relevant to the issue whether, deliberately or otherwise, the complainants attributed to the appellant acts which had been perpetrated by others. Further, it was suggested that such cross-examination could reveal an inconsistency in X’s statements. The appellant relied on the fact that there was no reference to any sexual abuse by the appellant in the 1985 Social Welfare file.
In an oral judgment given on 31 July 2001 at the beginning of the trial, the trial Judge considered that as the Social Welfare file did not purport to record complaints by X the omission to mention the appellant could not be accorded great weight. Further, the Judge was of the view that there was no basis for the suggestion that abuse by the uncles was being attributed to the appellant. To permit cross-examination on that issue would, in the circumstances, amount to no more than a fishing expedition. Leave to cross-examine the complainants was therefore declined.
Grounds of appeal
The appeal against conviction is based on two grounds. First, the appellant contends that the trial Judge erred in refusing leave under s23A for defence counsel to cross-examine X as to alleged sexual abuse by persons other than the appellant. This is on the basis that X’s statements reveal an inconsistency. The 1985 Social Welfare report mentioned sexual abuse perpetrated by two uncles, but not by the appellant. The 1993 counsellor’s report recorded abuse by the uncles and the appellant, but the 1998 police statement made no mention of the uncles’ abuse. The appellant submits that these inconsistencies provide support for a defence of “cross-over”, in that there is a possibility that the complainants attributed the acts of the uncles to the appellant. It is argued that the appellant should have been allowed the opportunity to explore this possibility.
The second ground of appeal raised in the notice of appeal is that the trial Judge in his summing up erred in directing the jury that there was a “striking similarity” between the evidence of X and Y. This ground of appeal is not further addressed in the written submissions but has not been expressly abandoned.
Reasons
The Judge’s decision to refuse the appellant’s application to cross-examine the complainants was one involving a matter of discretion. It has not been shown that, in exercising that discretion, the Judge erred in principle or was clearly wrong. Indeed, it is plain, as counsel for the appellant now accepts, that the 1985 statement about the uncles cannot be attributed to X and accordingly cannot form the basis of an inconsistency argument.
Further, there is no inconsistency between the 1993 and 1998 statements. Although the 1998 statement makes no mention of abuse by the uncles, it was made in the context of a suggestion that X be returned to Northland to live with the grandfather. There was reason for X to raise the issue of abuse by the appellant, but there was no reason to mention abuse by the uncles in this context. The statements made by X do include allegations of abuse by the appellant.
Although the appellant has not addressed this issue in written submissions, we have considered the appellant’s contention that the Judge erred in his summing up when directing the jury on the similar fact evidence. The Judge did not direct that there were “striking similarities” between the evidence of X and Y. Rather he made it clear that it was entirely up to the jury to decide whether there were striking similarities between the two complainants’ evidence that demonstrated some sort of pattern or detail of behaviour, so as to enable the evidence of one complainant to support or reinforce the evidence of the other. Although it may have been unnecessary to refer to “striking similarities” at all, the appellant was not prejudiced by this reference. We cannot fault the full warning given by the Judge about similar fact evidence may properly be used.
Decision
The appeal is dismissed.
Solicitors:
Thorne Dallas & Partners, Whangarei for the Appellant
Crown Law Office, Wellington
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