The Queen v MacDonald

[2009] NZCA 85

IN THE COURT OF APPEAL OF NEW ZEALAND

CA493/2008
[2009] NZCA 85

THE QUEEN

v

SCOTT AARON MACDONALD

Hearing:10 March 2009

Court:Robertson, Rodney Hansen and MacKenzie JJ

Counsel:J Soondram for Appellant

T Epati for Crown

Judgment:19 March 2009 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

[1]       The appellant was convicted following trial in the District Court at Auckland before Judge Gaskell and a jury on one count of indecent assault.  He appeals against the conviction, on the grounds that there has been a miscarriage of justice arising from the refusal of the trial Judge to permit further cross-examination of the complainant following an answer given by her in re-examination as to the circumstances in which a written statement was made by her.

Facts

[2]       On Tuesday, 4 May 2006, the appellant was a patron at a boxing fund-raising event at the Westpac Trust Stadium in Henderson, Auckland.  The complainant who was aged 17 was working as a waitress serving alcohol and clearing tables, including the appellant’s table.  The Crown case was that as the evening progressed the appellant began making inappropriate comments to the complainant and, as she was leaving the table, the appellant groped her buttocks with his hand.  The complainant immediately advised two nearby police officers that the appellant was intoxicated and would not be served any more alcohol.  She did not at that stage complain that she had been indecently assaulted. 

[3]       The appellant was removed by police, some force being used.  The actions of the two arresting police officers became the subject of an investigation by the Independent Police Complaints Authority, apparently as a result of media coverage of the incident.

[4]       The complainant described in evidence in chief the circumstances in which she made a statement to police.  She said:

Q.And what was the next thing that you heard about this incident?

A.Um, Joshua Jones called me up and asked for me to have a statement on the evening because some things were going on about the pepper spraying and um, he said that he just needed to get a statement off me.  So he came round to my house and I said my statement.

Q.And do you recall how long after the incident that was?

A.A few weeks.

Q.You gave a statement to the police?

A.Yes.  O yeah, one of the policemen rang me and I said a statement and then Joshua Jones came round for me to sign the statement.

Q.So you spoke to a police officer over the phone?

A.Yep, I’m not sure who it was.  It wasn’t Josh.

Q.You gave a statement and then you’ve come and given evidence here today.

A.Yes.

[5]       The complainant was cross-examined on matters relating to her credibility.  Trial counsel, Mr Comesky, established that she had been telephoned by a police officer, Senior Sergeant Miller, a couple of weeks after the incident, and that she had lied to him by saying that she had not been serving alcohol that evening.  Counsel also established that when Senior Sergeant Miller telephoned she did not mention the buttock grabbing.  Counsel put to the complainant that Constable Jones, (one of the arresting officers, and the officer who witnessed her written statement) was under investigation for pepper spraying the accused while he was handcuffed and that she may have been motivated by a wish to help her friend Constable Jones.  She denied that he was a friend.  She said that Constable Jones had asked if he could come and get her to sign her statement and whether she wanted to go to the Henderson Police Station or for him to come to her house.  She asked him to come to her house.  It was put to her that he arrived with a pre-prepared statement, that she read it, talked it over, then she signed it, and she agreed.  Counsel did not explore in cross-examination that aspect of the evidence which had been elicited, that the statement as to buttock grabbing was not mentioned to Senior Sergeant Miller, but was in the signed statement prepared from that telephone discussion.

[6]       The complainant was asked in re-examination for her response to the suggestion that she gave a statement to police to help out a friend, Constable Jones.  She denied that.  She was asked why she did not tell police that night about the buttock grabbing and said that she did not think that it was necessary.  She was then asked:

Q.…  how did it come up later that you told the police about the grope.

A.Because when Josh came to my house and he went over my statement, and I had just casually mentioned, “Oh, the reason why I went up to you that night was because he grabbed my ass.”  And Josh was like, “Okay, well, you need to put that into your statement then,” and I was like, “That’s fine.”

[7]       Mr Comesky sought leave to cross-examine on that answer.  His submission was that her answer was inconsistent with the fact that the statement signed by the complainant was typed without any interpolations. He submitted that if events had transpired as she described them there would have been an alteration to the typed statement when it was signed.  The Judge ruled on the application in these terms:

Well it’s sort of unusual and I don’t think it’s of such fundamental importance that I should allow you to have another shot, another chance to cross-examine so I’m going to decline your application for leave to do that.

[8]       The essence of this appeal is whether the Judge’s refusal to allow a further opportunity for cross-examination has resulted in a miscarriage of justice. The grounds of appeal now pursued are put in the written submissions for the appellant in these terms:

1.          That there has been a miscarriage of justice, in that

a.The complainant misled the jury by stating that she only mentioned the indecent assault to Constable Jones when he visited her address in order for her to sign her statement and that the complaint was inserted into the statement;  and

b.The learned DCJ had been alerted to the issue and failed to allow the issue to be rectified, by refusing counsel the right to continue cross examination on the issue and by not allowing the written statement to be produced as an exhibit;  and

c.That the Crown prosecutor was aware of the issue and presented his closing address on the basis that what the complainant said was true;  and

d.That the issue is critical to the complainant’s credibility and accordingly a vital issue in this case.

Other grounds as set out in the Notice of Appeal are no longer being pursued.

[9]       The re-examination related to a matter arising out of evidence given by the witness in cross-examination.  Re-examination was accordingly permissible under s 97(1)(a) of the Evidence Act 2006 and s 97(2) had no application.  Whether or not an opportunity for further cross-examination should have been given was a matter within the discretion of the trial Judge.  This Court could only interfere with the exercise of the discretion if the consequences were sufficient to lead to a miscarriage of justice. 

[10]     We are satisfied that no possibility of a miscarriage arises.  In the first place, both the statement prepared from Senior Sergeant Miller’s telephone discussion with the complainant, and the prepared statement signed with Constable Jones, had been disclosed to the appellant.  Counsel was able to pursue any inconsistency between those statements in cross–examination.  The fact that counsel chose not to do so weighed against allowing further cross-examination when the matter was elaborated on in re-examination. 

[11]     Secondly, the appellant’s contention that the complainant misled the jury in the re-examination is not established.  The fact that there was no hand-written alteration to the typed statement signed with Constable Jones is not necessarily inconsistent with the complainant’s evidence in re-examination.  The matter was not canvassed with her in re-examination in such detail as to exclude the possibility that Constable Jones took the statement away to have it amended and returned later for it to be signed. 

[12]     Thirdly, counsel was able to address the jury on issues relevant to the complainant’s credibility.  Counsel submits that central to the issue of credibility must be the issue of when the complaint was made, how it came about, and the reason for the delay in the complaint.  All of those were matters which were able to be pursued in cross-examination, to the extent that counsel considered it appropriate. 

[13]     Fourthly, the possible inconsistency (and it is no more than a possible inconsistency for the reasons we have given) between the complainant’s answer in re-examination and the form of the type-written statement, was peripheral to the main issue.  It did not relate to her evidence as to the offence itself.  The complainant was unequivocal in her evidence in chief that she had been groped by the appellant and was not shaken in cross-examination.  That was not challenged by other evidence.  The issue which arose in re-examination was not so critically important as to require a departure from the ordinary trial procedure in the way that counsel for the appellant submits. 

[14]     The appellant has not demonstrated that the trial Judge wrongly exercised her discretion, or that a miscarriage of justice has resulted.

[15]     For these reasons, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington