The Queen v Moussa Ibrahim Eraki

[2003] NZCA 68

IN THE COURT OF APPEAL OF NEW ZEALAND

CA73/03

THE QUEEN

v

MOUSSA IBRAHIM ERAKI

Hearing:1 April 2003

Coram:Blanchard J
Anderson J
Glazebrook J

Appearances:  D G Young and M R Scherb for Appellant

J C Pike for Crown

Judgment:1 April 2003 

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]       This is an appeal against a conviction for indecent assault and a sentence imposed in the District Court at Auckland of eight months imprisonment.  Mr Eraki is an Egyptian who has lived in New Zealand in recent years with his family.  The complainant lived next door to him with her husband and family.  The appellant was known by the complainant to be a taxi driver.  In fact his licence to drive a taxi had recently been suspended although the complainant was not aware of this.  We were told from the bar that the suspension was on the ground of lack of adequate geographical knowledge but it so happened that there had recently been a complaint by another woman, unconnected with the complainant in any way, that she had been indecently touched by Mr Eraki in the course of a taxi ride.  We will refer again to this matter, which resulted in a not guilty verdict at the same trial, when we deal with the sentence appeal.

Facts

[2]       The complainant made arrangements with the appellant for him to drive her to a bingo session at the Takapuna Rugby Club on 20 April 2001.  This was to occur using his private car because he told her his taxi was at the panelbeaters.  He drove her to the bingo session and afterwards picked her up from the rugby club at about 10.20pm.  During the return journey it was cold.  According to her evidence, she was in the front passenger seat.  She was relatively lightly clad and on several occasions the appellant rubbed his hand up and down her arm commenting that she was cold.  She said he did this about four times.  When they reached the appellant’s carport, which was adjacent to the complainant’s carport, she gave him an agreed fare of $20.  While she was still in her seat he lent over and kissed her on the cheek.  She made a move to get away and unbuckle her seatbelt.  He put his hand to her head, turned her face and tried to kiss her.  At various points in her evidence her description of the latter part of this incident differed but she clearly said that he had stuck his tongue into her mouth, although at another point describing his tongue being about two inches from her face. 

[3]       She finally managed to unbuckle the seatbelt and he then grabbed hold of her arm and tried to pull her back, asking for “one kiss”.  She was able to leave the car.  She said she was bawling at him and “slammed the door shut and booted his car a couple of times”.  She then went to her house where her husband, who had heard the arrival of the car but not apparently the shouting or the kicking of the car, was in the process of opening the door.  The husband’s evidence was that his wife was distressed and appeared to be composing herself as she came in the door.  When he asked her what was wrong she burst out crying and told her husband that the appellant had attacked her, explaining that he had kissed her on the cheek and tried to stick his tongue down her throat.

Conviction appeal

[4]       The appeal against conviction was advanced on three bases.  The first was that the jury’s verdict was unreasonable and cannot be supported having regard to the evidence.  The second was that trial counsel had made a radical error in the conduct of the trial, namely by failing to put some essential points in the defence to the complainant while cross-examining her and that, to the disadvantage of the appellant in the eyes of the jury, these points had not emerged until he himself gave evidence in his own defence.  By way of example, the appellant claimed that the complainant was in the rear seat of the car.  The third ground was that there had been a number of irregularities in the conduct of the trial, in particular relating to interaction with the trial Judge when the appellant was giving evidence, the cumulative effect of which was said to have deprived him of the right to a fair trial.

[5]       We are satisfied that the “unreasonable verdict” ground has no merit.  There were, it is true, some inconsistencies in the complainant’s account and, to a limited degree, between what she said in evidence and what her husband recounted having heard and observed.  But it was well open to the jury to accept the essential elements in the complainant’s account and to be satisfied of her truthfulness notwithstanding these discrepancies.  This was very much a question of the credibility of the witnesses which was for the jury to assess.  Having read the entirety of the evidence we do not find it all surprising that the jury accepted that there had been an indecent assault and rejected the suggestion that for possible motives, which were aired before the jury, the complainant had invented the story of an assault. 

[6]       The second ground, namely of counsel incompetency, is one which could not properly be advanced in this Court in the absence of an affidavit from the appellant concerning the instructions given to his trial counsel (who was not of course either of the counsel representing the appellant in this Court) and a waiver of counsel’s privilege, which would have enabled trial counsel to provide, if able to do so, affidavit evidence justifying the course taken.  There has been no affidavit from the appellant and no waiver of privilege despite a warning in writing from Crown counsel last week that they were necessary if the ground was to be pursued.  Mr Young nevertheless invited us to conclude from our perusal of the trial record that there had been a radical error in the way in which the defence was conducted.  We are not able to come to any such conclusion.  Without affidavit evidence we simply have no idea what information or instructions may or may not have been given to trial counsel by the appellant.  And the unfairness to trial counsel of his not having an opportunity of addressing the complaint by the appellant will be obvious.

[7]       We advised present counsel for the appellant that the Court was unable to entertain this ground of appeal in the circumstances.  Counsel was offered the opportunity of an adjournment but the Court was told that Mr Eraki’s instruction was that he wished the appeal to proceed today.  No adjournment was sought.  The second ground of appeal thus must fail.

[8]       The final ground of appeal against conviction relates to the trial Judge’s questioning of the appellant which was said to amount to “badgering” and to have had a negative effect on the jury’s assessment of the appellant’s credibility.

[9]       We have read the passages in question and are satisfied that, while the Judge’s displeasure with the appellant’s evasiveness does emerge, what occurred has not, in the context of the trial as a whole, given rise to a miscarriage of justice.  We would be less than frank if we did not say that the appellant seems to have given a most unimpressive performance in the witness box.  Although the materials before the Court suggest that he has a reasonable command of the English language – he is a very well educated man with more than one university degree – he elected to have the services of an interpreter and there is every appearance that he sought to take full advantage of the situation thereby created.  His responses in cross-examination tended, as we have indicated, to be evasive and when challenged he became argumentative.  He was disinclined to give direct answers when the Judge sought to clarify what he was actually telling the jury.  Added to that, the appellant’s story appeared to shift in significant respects as his evidence proceeded.  The Judge took quite a firm line with the appellant in trying to get him to address the questions which were being put to him.  Overall, we are not persuaded that what the Judge did is likely to have given rise to a miscarriage of justice.

[10]     The appeal against conviction is dismissed

Sentence appeal

[11]     We are, however, persuaded that the sentence of eight months imprisonment is manifestly excessive.  Mr Pike candidly accepted that it could not be supported.  There is some background which must have influenced the Judge.  The appellant faced two charges of indecent assault, the other of which related to the earlier incident with another woman which has already been mentioned.  Counsel then acting for the appellant was able to persuade the police not to proceed with the other charge.  The appellant pleaded guilty to the present offending in the summary jurisdiction and was sentenced to a fine of $300. 

[12]     Possibly because he then realised that the existence of a conviction would jeopardise his chance of getting back a licence to drive a taxi, the appellant changed counsel and applied to the High Court seeking leave to change his plea and have the conviction and sentence vacated.  He was successful in that endeavour but the High Court Judge, anticipating that the police would proceed with both charges, gave a warning that, if convicted, the appellant faced imprisonment. 

[13]     The police then laid both charges indictably and they were tried together.  The jury acquitted the appellant on the other charge.  He has therefore been convicted only in respect of the one indecent assault.  But the Judge, appears to have seen the earlier procedural events, particularly the repudiation of the guilty plea, as counting against the appellant.  It also seems to have counted against him in the eyes of the Judge, and understandably so, that the appellant made an allegation that the complainant had offered to drop her complaint in exchange for a payment of money.

[14]     A further matter which led the Judge to impose a sentence of imprisonment was that he considered that there had been a breach of trust because the appellant was a taxi driver who had taken advantage of a female passenger.  There have been several cases in which sentences of imprisonment have been imposed in such circumstances because deterrence has been considered by the court to be the prime sentencing factor.  In this case, however, Mr Young submitted that in some respects the appellant was more a neighbour doing a favour for the complainant than acting truly as a taxi driver. 

[15]     In our view, a short sentence of imprisonment was appropriate because, despite the matter mentioned by Mr Young, we think the complainant was entitled to regard Mr Eraki as performing the services of a taxi driver.  She was unaware that he was currently unable to act as such and she understood that he was using his private vehicle only because the taxi was unavailable.  There was accordingly an element of breach of trust in what occurred.

[16]     However, although the incident must have been disturbing for the complainant, it was relatively transitory and very much at the bottom end of the scale of indecent assaults.  The complainant was a mature woman and proved well able to cope with the situation.  The incident occurred in circumstances where her husband was close at hand so she was in no real danger.  She was, however, as might be expected, upset and distressed by what had occurred.

[17]     The appellant has already spent time in prison before and after sentencing.  We have concluded that the most appropriate course is for the Court to allow the appeal against sentence, quash the sentence of eight months imprisonment, which we do, and to impose in lieu a sentence which will enable his release from imprisonment tomorrow.  According to the calculations provided to the Registrar of the Court by the Department of Corrections, the sentence which will achieve that is a sentence of five months two weeks imprisonment which we now impose.

Solicitors:
Crown Law Office, Wellington