The Queen v McLean
[2001] NZCA 233
•12 September 2001
Publication of the name, address and occupation of the appellant, the nature of the charges and the result of the appeal permitted.
Otherwise not to be published in news media or on Internet or other publicly accessible database until completion of re‑trial. Publication in law report or law digest permitted.
Publication of name and identifying particulars of complainant prohibited
by s139, Criminal Justice Act 1985.
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 157/01 CA 167/01 |
THE QUEEN
V
COLIN ANDREW McLEAN
| Hearing: | 3 September 2001 |
| Coram: | Richardson P Keith J Blanchard J Tipping J McGrath J |
| Appearances: | M S McKechnie and S V McKechnie for S P France and M F Laracy for Crown |
| Judgment: | 12 September 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
Colin Andrew McLean appeals against conviction on a charge of sexual violation by rape and a charge of assault on a female. The Solicitor‑General seeks leave to appeal against the sentence of five years imprisonment which was imposed by the trial Judge following conviction.
The background to the trial
Mr McLean was a Police Officer stationed for many years at Mangakino. He was committed for trial and was facing an indictment containing five counts, two of sexual violation and three of assaults alleged to have been committed on his partner at the particular time. The first charge was of sexual violation on his wife, "X", in late 1994. They parted in 1996. The next set of charges all related to the complainant, "Y": one was of sexual violation on 15 December 1997, two were of assault on 22 December 1997 and 7 February 1998 respectively. The final charge was of an alleged assault on 15 January 1999 on his current partner, "Z".
He applied for separate trials. The Crown opposed severance of the trials involving X and Y on the footing that the evidence relating to each complainant was admissible as similar fact evidence at the trial of the other. Randerson J rejected the Crown submission and ordered separate trials. It was accepted that the remaining count involving Z should be the subject of a separate trial. Z had never complained to the police and had not made a statement to the police. The foreshadowed third trial will not take place, the Crown having given notice following Mr McLean's convictions on the charges which are the subject of this appeal that it would not pursue that assault charge.
The first and second trials were expected to take place at Rotorua only six weeks or so apart. Randerson J, concerned at the real risk of prejudicial publicity, made extensive orders in respect of non‑publication of evidence, submissions and summings up in each trial until the verdict on the last of them was delivered. The non‑publication orders did not extend to the name and occupation of the accused and the nature of the charges against him, those matters already being in the public arena through widespread media publicity.
On a different point Randerson J recorded, in relation to the recent complaint evidence of Ms Debenham which was the subject of a pre‑trial admissibility application, that by agreement of counsel it would be dealt with at trial and on the footing that the complainant's (Y's) evidence would be the subject of a voir dire.
The trial involving the charge of sexual violation against the appellant's ex‑wife was held over several days in February/March 2000. He was acquitted. There was extensive local newspaper publicity within the limits of the non‑publication order.
Four weeks later the second trial began. The first charge was of sexual violation at Tokoroa on or about 12 December 1997. That night the complainant and Mr McLean had gone together to the Police Christmas party from Tokoroa to Rotorua and the rape was alleged to have occurred afterwards, when they were staying at her mother's home in Tokoroa. The second, a charge of assault on 22 December 1997 at Taupo, was alleged to have followed the Christmas party of Carter Holt Harvey (her employer) at Taupo. The third was a charge of assault on 7 February 1998 at Mangakino following Sergeant McCullough's wedding. Mr McLean was found guilty on the first and third charges and was acquitted on the second charge.
The grounds of appeal
Mr McKechnie, who was not trial counsel, has advanced four grounds in support of the appeal, submitting that, considered cumulatively, they give rise to a miscarriage of justice. The first concerns the furnishing to the jury of the trial transcript and the editing of it. The Judge had advised counsel at the commencement of the trial that following the practice recommended at the Judges' Conference and by the Law Commission he would give the jury three copies of the transcript immediately before they retired to consider their verdicts and that he would be following the standard direction provided to Judges who wished to give transcripts to juries. Counsel for the accused expressed some concern, not having previously experienced that procedure.
Mr McKechnie submitted that giving the notes of evidence to the jury was a radical departure from previous practice. He raised concerns about the literacy of jurors, about the need for uniformity of practice, and about the particular difficulties arising in this case from the extensive editing out exercise undertaken following a ruling late in the trial that considerable evidence which had been adduced was inadmissible; and, he added, without adequate explanation to the jury of the course that was taken.
The second ground is directed to the failure to stop the trial and discharge the jury following disclosure by the complainant in cross‑examination that the accused's ex‑wife had laid rape charges against him, and to the steps that then ensued and their effect on the trial.
The third ground is that in a number of respects trial counsel made radical mistakes in the conduct of the defence. In the course of oral argument it was submitted as a separate ground that the manner in which recent complaint material came before the jury and was dealt with had occasioned a miscarriage of justice.
The fourth ground was that the length of the jury deliberations which totalled some 17 hours over two days was seriously excessive, rendering the verdict unsafe.
It is convenient to go immediately to the second ground and then to the now separate ground concerning recent complaint material.
Disclosure of prejudicial material: the applicable principles
The legal principles are well settled. Where there is inadvertent disclosure of prejudicial information about an accused the trial Judge has a discretion to discharge the jury. Whether it will be proper to do so depends on the facts of the particular case. If the jury is not discharged, whether to give a direction and, if so, what direction in relation to the objectionable passage in the evidence, similarly depends on the facts of the particular case. If the trial proceeds and the accused is convicted the ultimate question on appeal is whether a substantial miscarriage of justice
occurred. (See R v Rongonui [2000] 2 NZLR 385 para [23]; R v Gray (CA 361/96,
judgment 20 February 1997); R v Yeates [1992] 1 NZLR 421; and R v Weaver [1968] 1 QB 353.) The most recent extended discussion is in Gray. That concerned an inadvertent comment in cross‑examination that the accused had been in jail. The appeal against conviction failed. In discussing the question facing the trial Judge of whether or not to discharge the jury, the court endorsed the approach taken in R v Weaver at 359‑360:It follows, as has been repeated time and again, that every case depends on its own facts. It also, as has been said time and again, thus depends on the nature of what has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course.
The court went on to note that on an appeal against conviction the question in such a case is whether a substantial miscarriage of justice has occurred and that the test therefore is whether there is a real danger or a reasonable suspicion that the accused was or might have been prejudiced by what took place.
Disclosure of prejudicial information: the facts
Under cross‑examination the complainant was asked:
When was the first time you spoke on an official basis if I can put it that way to a police officer about your allegation the accused raped you?
She responded:
I was rung up at work by a Detective Ron Frederickson that I needed to be interviewed in regards to my relationship with Colin as Colin's ex‑wife had also laid rape charges against him.
The transcript records that the jury then retired at 12.40 pm and returned at 3 pm when they were addressed by the Judge as follows:
I apologise for the delay that we have had in the trial. As I told you in my opening remarks, there will be times in the trial when I need to discuss matters of law with counsel. The fact that I have to do this is no one's fault and shouldn't be held against one party or the other. You will recall the last answer the complainant gave where she referred to a complaint of rape having been made by the accused's former wife. That is irrelevant to the matters you have to consider. You must completely disregard it.
The cross‑examination continued and the complainant agreed that the first time she told the police about her allegation of rape was in February 2000, over 2 years after the event, when she made a statement after Detective Frederickson approached her.
In his ruling on the defence application to discharge the jury the Judge records that he was caught unawares by the complainant's answer and that:
Although I stopped the complainant as soon as I realised what she was saying, by then the information had come out. Although I believe I may have been talking over her as her last words were said, asking her to stop, we must proceed on an assumption that the jury did hear the words in question. It is on that basis that I am approaching this application.
We pause to add that, referring to what happened when the complainant made that comment, the appellant deposes in his affidavit, and his evidence is supported in that regard by his trial counsel and not disputed for the Crown, "At this stage there were audible gasps from members of the jury".
The Judge saw as a crucial question in considering the application for discharge whether the jury would already have known the prejudicial information given by the complainant in her answer. He concluded from newspaper references he recorded from cuttings handed to him or material drawn from a computer search, that it was almost inevitable that some members of the jury knew that the accused's former wife had made a complaint of rape against him, and that there had been a prosecution and trial with respect to that rape charge. He also considered it almost inevitable that the fact that the accused had recently been tried for rape and acquitted would have been passed on to the other jury members, probably in their first tea break at the trial.
Accordingly, the Judge concluded that the complainant's answer did not create a real danger or reasonable suspicion that the accused might have been prejudiced by that answer and that what had happened could be dealt with satisfactorily by way of appropriate directions to the jury.
The Judge then discussed with counsel what, if anything, should be said to the jury and adopted defence counsel's suggestion of a low key stance of "the less said the better". Both counsel agreed with the direction that the Judge then formulated and subsequently in court gave to the jury (para [16] above).
Later in the trial there was a reference by the Crown Prosecutor in cross‑examining the accused which might be taken as an indirect allusion to the previous trial. It was the subject of considerable discussion in the course of argument before us. In our view and in context the reference is too equivocal and what might be taken from it too speculative to bear on the present issue.
The Judge's bench note relating to his discussion with counsel prior to summing up records that his present intention was just to give the standard directions about sympathy and prejudice and that both counsel were happy with that. It is common ground that nothing was said in the summing up about the complainant's comment in cross‑examination.
Disclosure of prejudicial information: the rival submissions
Mr McKechnie for the appellant submitted that the Judge was in error in not discharging the jury; that there was a real danger that the accused was prejudiced by what took place; and that when the Judge ruled that the trial would continue his directions were insufficient to address the prejudice to the accused.
Mr McKechnie emphasised the similar nature of the charges by the accused's former wife and by this complainant; the reaction from the jury when the prejudicial comment was made; and the length of the time they were left to speculate (12.40 to 3 pm) before the trial resumed. He submitted that the decision to continue the trial was based primarily and wrongly on a presumed degree of knowledge by the jury of the facts of the previous trial. Reference to the newspapers listed by the Judge did not justify the conclusion that the jury had any or adequate knowledge of the complaint by the accused's former wife and that they knew that the accused was acquitted at the prior trial. He submitted, further, that the directions then given to the jury were inadequate to address the prejudice of the disclosure by the complainant to the jury, particularly given the length of time the jury had been sequestered in the jury room. The jury should have been told that the accused had been acquitted of the rape charge laid by his wife.
Mr France for the Crown supported the reasons given by the Judge for continuing the trial and the directions given to the jury at that time. His primary submission, however, was that the jury could be expected to differentiate and to put aside that irrelevant comment just as they are regularly expected to focus on admissible evidence against an accused and disregard evidence implicating him but admissible only against a co‑accused or for other reasons not admissible against the accused.
Disclosure of prejudicial information: discussion and conclusions
We are satisfied that in the result there has been a substantial miscarriage of justice and that the convictions must be quashed.
The comment by the complainant was highly prejudicial to the accused's trial on the complainant's charge against him of raping her. The credibility of the complainant and the accused was the major issue. The comment pointed to a prior incident of rape within a relationship. It was illegitimate similar fact material which the Crown had earlier sought to adduce and Randerson J had firmly ruled out. Clearly the jury was startled by what they heard. Whatever some may have recalled from prior media publicity - and it seems unfortunate that these successive trials were scheduled for hearing in the same provincial city only a few weeks apart - that could never adequately blunt the highly prejudicial impact of the comment which might have suggested to jurors that if he raped his wife he is more likely to have raped his partner. Next, the trial was immediately stopped, indicating to the jury that the complainant's answer was a matter of concern and the jury was then left to speculate for over two hours (including lunch) before the trial resumed.
We doubt whether, had an appropriate direction been given immediately at 12.40 pm with the immediate continuation of the trial, the prejudice of the disclosure could have been countered. But we are satisfied that with the passage of time the direction that was given at 3 pm was insufficient to avoid a miscarriage of justice. If the prejudice to the accused was to be significantly reduced the jury needed to be told that there had been a trial a few weeks previously; that the accused had been acquitted on the rape charge; that they must completely disregard that comment by the complainant when considering the present charges and certainly must not speculate or draw any conclusion against or for the accused; and that they must decide the present counts solely on the evidence before them, guarding themselves firmly against being influenced by the complainant's reference to the earlier rape allegation.
It was not suggested for the Crown, and could not possibly be said given that there were conflicting accounts of the sexual violation incident by the appellant and the complainant and credibility was all important, that a conviction was inevitable despite the inadvertent reception of inadmissible evidence. The convictions must be quashed and a new trial ordered. Accordingly, it is unnecessary to deal with other grounds of appeal but we propose to refer briefly to two matters: the recent complaint question, because of its relevance to a re‑trial; and the giving of the notes of evidence to juries and directions as to their use, because of the wider importance of that matter.
Recent complaint evidence
Recent complaint evidence is admissible in sexual violation cases as tending to show consistency in the conduct of the complainant: that what she has said in evidence to the jury is consistent with a prior complaint she made about it, thereby supporting the credibility of her testimony. Admissibility is for the Judge to determine and difficult questions may arise.
The only point of apparent difficulty that arose in this case is that the complainant initially said she spoke about the alleged rape incident to three persons: Ms Debenham, and then immediately to Ms Ray of Women's Refuge, who suggested she call at the centre, which she did the next morning, speaking to Ms Scott. As this court said in R v N [1994] 3 NZLR 641, 646, "What can safely be said is that our Courts have not been prepared to admit a second complaint, remote in time from the first and lacking any connection with it". At the other end of the spectrum the court observed in R v Accused (CA 273/91), (judgment 20 December 1991) at p12 that the events which follow a sexual assault are often of a developing kind with more than one confidence being made within a short period of time; all the confidences can then properly be said to have been made on the same occasion; and it is a matter of degree in the individual case. After referring to that passage the court in R v N observed, "No doubt this was not intended as an exhaustive exposition and a developing or incremental disclosure is but one illustration of circumstances where evidence of separate complaints may be admitted ..." and referred to R v Phillips (1989) 5 CRNZ 405 where the trial Judge ruled evidence as to two complaints admissible where the first was fleeting and limited appropriately by the traumatic circumstances of the moment, and was followed by a more comprehensive
complaint when the complainant arrived home. See also R v Accused (CA 289/95) (1996) 14 CRNZ 399.It appears that the Crown Prosecutor saw these successive complaints as a developing incremental disclosure and all three recipients, Ms Debenham, Ms Ray and Ms Scott, gave evidence at depositions and were listed as witnesses for the trial. Ms Debenham's deposition and evidence at trial were that the complainant said that after the Christmas function the accused had raped her at her mother's house. She said that the complainant told her that probably no more than a couple of weeks afterwards ‑ at trial she agreed it was on 23 December ‑ and said that they then rang Women's Refuge.
The complicating factor is that the rape was alleged to have occurred after the Police Christmas party at Rotorua on 12 December 1997 and the unrelated assault was said to have occurred after the Carter Holt Harvey Christmas party at Taupo on 22 December 1997, less than two weeks later, and Ms Ray and Ms Scott were deposing to what was said to them on 23 December and 24 December respectively. Ms Ray's deposition statement was that the telephone complaint she received on the evening of 23 December was that the complainant had been hit and subjected to rough sex but the deposition is not specific as to date or whether it amounted to rape. She said she calmed the complainant down and advised her to call at the centre, which the complainant did the next day and saw Ms Scott, to whom Ms Ray had passed on details of the previous night's call. Ms Scott's deposition referred specifically to a complaint of rape occurring the previous night (which appears to be a reference to 22 December).
Unfortunately the Crown Prosecutor had not pursued the course indicated to Randerson J of seeking a voir dire. Rather, he called evidence from the complainant of her speaking in succession to Ms Debenham, Ms Ray and Ms Scott. She said she could not remember what she said to Ms Debenham and to Ms Ray but that she had told Ms Scott about both incidents, that is the rape following the 12 December Police party and the assault following the 22 December Carter Holt party. Not surprisingly in view of the apparent conflicts the complainant was cross‑examined at length about the complaints.
Only part of Ms Ray's deposition statement was read to the jury and she was not examined orally. Ms Scott, who was at the court, was not called by the Crown to give evidence. It seems that by then the Crown Prosecutor had concluded that there was a single complaint to Ms Debenham, not an evolving complaint situation or other circumstances requiring or justifying the adducing of Ms Scott's evidence. This had the effect of denying the defence the opportunity of pointing out apparent discrepancies in that regard between the complainant's complaint evidence and Ms Scott's, if the latter had adhered to her sworn deposition, and even if she departed from it.
The next step as recorded in the Judge's ruling of 30 March was that in the course of the accused's evidence the Judge had become concerned about some of the complaint evidence that had come in. That concern was based, it seems, on reading the deposition statements of Ms Ray and Ms Scott and on the Judge's conclusion that they had not given evidence as to what was said to them. In the result he ruled that considerable evidence adduced in cross‑examination was inadmissible as not being justified under the doctrine of recent complaint. He ruled that 14 passages from the evidence and that part of Ms Ray's statement read to the jury were inadmissible and would be excised or excluded from the transcript to be given to the jury. They totalled some seven pages.
It is unnecessary for present purposes to resolve issues of admissibility on which we heard argument, or to attribute ultimate responsibility for what happened or suggest other steps which might or should have been taken. For a recent discussion in this court see R v A (CA 69/99), (judgment 15 July 1999) where the court observed that to depart from the ordinary practice of holding a voir dire before the complainant gives evidence is to run the risk that the relevant part of her evidence will have been given to the jury and, if ruled inadmissible, the proceedings would have to be aborted (paras [6] and [17] of R v A). The primary question for the re‑trial in this regard will be whether there was a single complaint to Ms Debenham, with the complaint to Ms Scott lacking any connection with it, or whether there was a developing sequential disclosure to the three persons the complainant spoke to about it.
Clearly the court and defence were in a quandary due, it must be said, to the Crown's not having sufficiently thought through ahead of trial the basis on which, and what, complaint evidence might be led and to their not taking the sensible course of seeking a voir dire and a ruling as to admissibility before any complaint evidence was adduced before the jury.
Transcripts of evidence
Over relatively recent times there has been a considerable expansion of the written material provided to juries to assist them in the discharge of their responsibilities. In recent years, and reflected in the Law Commission Report (NZLC R69 Juries in Criminal Cases (2001)) and the ensuing discussions, Judges have been considering the giving of transcripts of evidence to juries and we understand that some trial Judges have begun to make transcripts available to juries.
It is neither necessary nor appropriate in this case to embark on any discussion of the practice. In principle it can be proper to provide the jury with the transcript of the evidence in appropriate cases. Trial Judges have a broad discretion as to the conduct of trials. And whether to provide a transcript and, if so, on what principled basis are for the Judge to determine in the exercise of that discretion, weighing relevant considerations.
Result
Given that there must be an order for a new trial it is unnecessary to comment on other matters raised in support of the conviction except to note: (1) that we have not discerned in the conduct of the defence by trial counsel the kind of radical error that in itself could have led to the quashing of the convictions; and (2) that on the information we were given we would not have had any concerns over the length of the jury's deliberations.
The appeal is allowed, the convictions are quashed and a new trial is ordered. In the result there is no foundation remaining for the Solicitor‑General's application for leave to appeal against sentence and it is dismissed. We record our view that the Crown and the defence will need to consider whether Rotorua is an appropriate venue for the re‑trial.
Solicitors
H E Edward, Rotorua, for Colin Andrew McLean
Crown Law Office, Wellington
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