The Queen v Lester Edward Mounsey

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 397/00

THE QUEEN

LESTER EDWARD MOUNSEY

Hearing:	7 February 2001
Coram:	Gault J Thomas J Tipping J
Appearances:	I M Antunovic for Appellant J C Pike for Crown
Judgment:	7 February 2001

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

On 15 September 2000 the appellant was convicted of sexual violation by digital penetration. He was subsequently sentenced to two and-a-half years imprisonment.
The appellant met the complainant in the course of selling insurance to her. There had been some contact between them prior to the incident on which the charge was based, but it had been of a limited kind. It also appears that the appellant is a distant relative of the complainant.
The incident giving rise to the charge occurred on the evening of 2 February 2000. The appellant visited the complainant to complete his business with her. While seated on a couch in her lounge the appellant made advances to the complainant, kissing and fondling her. A degree of force was apparently used, although the Crown was to subsequently concede that at this time the appellant could reasonably have believed that the complainant was consenting to his advances.
The complainant alleges, however, that she was an unwilling participant. She repeatedly requested him to leave. At some stage they were interrupted by her son. Finally, the appellant was persuaded to depart.
At the front door the complainant alleged that the appellant renewed his forceful advances. She claimed that he “pinned” her against the wall holding her arms by the biceps. He continued to kiss her, and then forced his hand under her skirt and inside her underwear. It is then, she asserts, that he inserted his finger into her vagina. A security light suddenly came on causing him to loosen his grip. The complainant stated that she then pushed the appellant out the door and locked it behind him. She had a shower until the water ran cold. Considerably upset, she related the incident to her neighbours, and they duly gave evidence of her recent complaint.
Following the incident, the appellant delivered a bottle of wine to the complainant’s home with an apology, which was inconclusive as to the appellant’s guilt, written on the bag in which the bottle was wrapped. There were also some telephone conversations between the two. These conversations were recorded but they were also equivocal in their terms. When spoken to by the Police the appellant said that he would not do what was alleged and that nothing had happened. At trial, however, it was conceded that he could have said, “Nothing like that happened”.
The charge related to this latter incident at the front door and not to what had gone before. When giving evidence, however, the complainant, to the surprise of the Crown, unexpectedly asserted that she had also been sexually violated in the lounge. Defence counsel made much of this unexpected evidence in cross-examination.
Apart from her own direct evidence, and the evidence of her neighbours that she had complained to them at the time, the complainant’s evidence was supported by the evidence of a Dr Smith. He met with the complainant on 3 February. He said that she had been very distressed and agitated. She had not been coherent in her thoughts but had made a statement which had struck him as odd. She had said that “at least, she had not slept with the appellant”. Dr Smith was not able to elicit the context for this statement. She did not want to talk about the incident further apart from stating that unwanted sexual advances had been made to her. Dr Smith did not examine the complainant on that day.
The doctor did, however, conduct a full examination the following day, 4 February. He recorded that the complainant complained of pain in her breasts, over her shoulder blades and upper spine, and in her left and right upper arms. Although tender over her upper arms and shoulders, the doctor noted that there were no visible bruises at that stage.
The complainant returned to Dr Smith on 7 February. She wanted the doctor to observe some bruises which had emerged. There was one faint bruise on her right upper arm and three equally faint bruises on her left upper arm. Dr Smith stated in evidence that these bruises could have been made five days before the examination, that is, on the evening of 2 February. He said that he would not necessarily have seen the bruises on his first examination as bruising sometimes takes a while to come out. He did not have the experience to “age” the bruises. He concluded, however, that the bruising was consistent with the complainant’s evidence that she had been held by her arms.
Mr Antunovic appeared for the appellant in this Court. He contended that trial counsel had acted incompetently, and advanced six grounds in respect of which counsel was at fault. These grounds were:
·      Trial counsel failed to give adequate advice to the appellant when he was being spoken to by the Police and, in particular, to advise him that he should make a full exculpatory statement.
·      Trial counsel failed to seek independent expert medical opinion on the complainant’s claim that she received bruises as a result of force used by the appellant during the incident on 2 February.
·      Trial counsel failed to advise the appellant prior to the trial of his right to call evidence of good character when such evidence was available.
·      Trial counsel failed when cross-examining the complainant to put the accused’s written instructions to her relating to the critical events immediately leading up to and during the sexual violation itself.
·      The advice given by trial counsel on the question whether the appellant should give evidence at his trial was totally inadequate.
·      Trial counsel failed to seek copies of any records of counselling received by the appellant.
Mr Antunovic submitted that this series of miscalculations or omissions on the part of trial counsel were such that the trial was unsatisfactory. There had been a miscarriage of justice. He relied on R v Pointon [1985] 1 NZLR 109 and R v P (1991) 8 CRNZ 33.
We have considered each of Mr Antunovic’s submitted grounds allegedly demonstrating incompetency on the part of the appellant’s trial counsel. With the exception of the submission relating to the bruising, we do not consider that any of these grounds have merit. To a signal extent they exhibit the benefit of hindsight and do not need to be pursued further in this judgment.
Mr Antunovic’s submission relating to the bruising has obtained considerable force, however, by virtue of a report from a Dr Thomson, an eminent forensic pathologist, which has been produced to the Court. Dr Thomson is adamant that, if it had been caused on 2 February, the bruising would have been visible to Dr Smith at his examination of the complainant on 4 February. He states:
While I would agree with Dr Smith that there is a process of aging in bruises and that bruises may not appear immediately, I simply cannot accept that a delay of 5 days would occur before a superficial bruise of this nature was visible. Bruises in this location, if not present immediately after the injury, would almost certainly be visible the following morning, i.e. the morning of the 3^rd February. There is no doubt that they would have been present at the first thorough examination on the 4^th February. In a fit young adult a small bruise of the type described is likely to have disappeared in under a week, and had these injuries been inflicted on the 2^nd February they would be much more likely to be visible on the 4^th February than on the 7^th February.
Mr Antunovic submitted that Dr Thomson’s expert opinion is highly significant as it would clearly have provided a solid basis upon which to attack the complainant’s credibility. He argued that the only reasonable inference is that the bruises were self-inflicted after the event in order to bolster a false complaint. Trial counsel, he claimed, should have appreciated the significance of the fact no bruises were apparent when the complainant was examined by Dr Smith on 4 February. He should therefore have sought independent expert medical advice prior to trial. In the result, the complainant’s evidence as to the cause of the bruising on her arms was not challenged at trial by defence counsel.
Privilege having been waived, leading defence counsel has filed an affidavit. He states that the complainant’s bruises were certainly raised by the appellant and considered by him. Bruising of the nature contained in the evidence seemed to him to be reasonably consistent with the events which had taken place and consistent with them occurring in the course of a rather passionate consensual activity. There was nothing whatsoever, he claimed, to suggest that the bruises had been self-inflicted by the complainant.
In all the circumstances we are satisfied that there is an unacceptable risk a miscarriage of justice has occurred. We are not prepared to speculate, as invited to do by Mr Pike for the Crown, that the evidence would not have been a significant factor in the jury’s conclusion that the incident was not consensual. In the first place, the presence of bruise marks and Dr Smith’s evidence that they were consistent with the complainant being forcibly held by her arms would tend to confirm the use of an unacceptable degree of force on the part of the appellant. Secondly, evidence that the bruises could not have been caused on 2 February would undoubtedly have presented scope for the defence to attack the complainant’s credibility. The impact of such evidence on the jury had it been adduced could well have been decisive in the appellant’s favour.
While convinced that the conviction should be quashed and a new trial ordered, we would express a reservation about allowing the appeal on the basis that trial counsel was incompetent as contended by Mr Antunovic. As Mr Antunovic himself conceded in argument, this ground of appeal could have been advanced under the heading of fresh evidence. Indeed, he confessed that he had some difficulty determining which ground to press before this Court.
We appreciate Mr Antunovic’s difficulty. On the one hand we are unable to bring ourselves to the view that in all the circumstances trial counsel acted incompetently in not obtaining independent expert advice relating to the bruises. Certainly, it would seem to fall short of a radical mistake. The question of the aging of bruises is notoriously difficult. And the bruising, it could be argued, could have occurred while the complainant and the appellant were in the lounge at a time when the Crown concedes the appellant could reasonably have believed that she was consenting to his advances. It is only with the benefit of hindsight that it is relatively clear that the appellant’s defence would have been materially assisted by having access to an independent medical opinion relating to the bruises. On the other hand, the expert medical opinion now available does not readily meet the accepted criterion for the admission of fresh evidence. Although clearly cogent, it cannot be denied that, with reasonable diligence, the evidence could have been obtained prior to trial.
Being satisfied that the interests of justice require the appellant’s conviction to be set aside, we do not need to resolve the question as to which ground is the more appropriate. Either the evidence now available could have been obtained with reasonable diligence by trial counsel, in which case trial counsel could be said to be at fault or, if not at fault in this regard, the evidence was not evidence which could have been obtained with reasonable diligence, in which case it can be classed as fresh evidence. In substance, this case falls somewhere between the two grounds. But we cannot allow a question of classification to subvert our disquiet at the real possibility a miscarriage of justice has occurred.
The appeal is allowed. The appellant’s conviction is quashed and a new trial is directed.

Solicitors

I M Antunovic, Wellington for Appellant
Crown Law Office, Wellington for Crown

[2001] NZCA 11

7 February 2001