The Queen v Nickolas Chronis
[2001] NZCA 166
•24 May 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA40/01 |
THE QUEEN
V
NICKOLAS CHRONIS
| Hearing: | 17 May 2001 |
| Coram: | Blanchard J Doogue J Randerson J |
| Appearances: | B Davidson and L C Ord for Appellant S P France for Crown |
| Judgment: | 24 May 2001 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
The appellant was convicted on one count of sexual violation by rape, four counts of indecent assault and one count of detaining. He was sentenced to a total of nine and a half years imprisonment: 8 years imprisonment on the rape charge, as well as a cumulative sentence of the following concurrent sentences: three terms of 18 months imprisonment and one term of 9 months imprisonment for the indecent assault charges and 18 months imprisonment for the detaining charge. He appeals both his conviction and sentence.
Facts
The charges related to incidents with three complainants, respectively in 1992, 1997 and 1998.
The appellant was working in a Turkish restaurant in central Wellington. He was the waiter at the 22 year old first complainant’s table when he overheard she was in need of immediate work. The appellant held out the prospect of working in the restaurant and took the complainant to his home the next Sunday afternoon (3 May 1992) to train her. He attempted to seduce her but, when he kissed her, she rebuffed him and wanted to leave. Instead, the appellant pushed her flat on her back, lay on top of her and kissed her again. The incident ended and he took her home. In respect of this matter the appellant was convicted of indecently assaulting the first complainant.
The appellant bought his own restaurant in early 1997. On 27 September 1997, the second complainant (aged 19 years), who then worked for the appellant, was in the restaurant after work waiting for her boyfriend to ring. The appellant deflected the boyfriend’s calls without telling the complainant. He restricted her movements within the restaurant and, when she tried to leave his office, he stopped her. This was the subject of the detaining conviction.
The appellant was also convicted of twice indecently assaulting the second complainant that same night. On the first occasion, he pressed himself to her body, kissed her face, her neck and undid her brassiere with his right hand. He then attempted to touch her left breast before trying to undo her trousers. This was done with sufficient force to rip a button away before she kneed him and managed to escape. When she got to the front door of the restaurant, she found it was locked from the inside, which became a significant feature in the case.
On 17 August 1998 the third complainant (aged 18 years) was working in the restaurant at night. After the restaurant closed for business and the third complainant was alone with the appellant, she said that he removed her clothing and had forcible intercourse with her despite her protests. It took the third complainant some time before she fully came to terms with what had happened and she continued to work at the restaurant for a few days. On 24 August, when she finally decided to leave, the appellant persuaded her to work that evening. After work, he assaulted her in the office upstairs by pressing himself against her. She attempted to get away. She too found the front door locked from the inside.
The appellant was arrested and charged with offences involving the third complainant on 21 September 1998. He was originally tried on four charges involving the third complainant only. He was acquitted on two charges of indecent assault but the jury disagreed on the remaining charges: one of indecent assault and one of sexual violation by rape. A retrial was ordered. The publicity resulting from the first trial led to the first and second complainants approaching the Police. Charges relating to the first two complainants, as outlined above, were included at the second trial. The appellant was convicted at that trial on a count of indecent assault on the first complainant, one count of detaining without consent and two of indecent assault relation to the second complainant and one count each of sexual violation by rape and indecent assault relating respectively to the incidents on 17 August 1998 and 24 August 1998 involving the third complainant.
Appeal against conviction - submissions
It was submitted by Mr Davidson, for the appellant, that at the retrial the Crown placed considerable emphasis on lies told by the appellant. When first interviewed by the Police in relation to offending against the third complainant (21 September 1998), the appellant denied any sexual contact. It was not until the next day that, in speaking to his solicitor, the appellant acknowledged he had lied and wished to retract his earlier statement. The appellant was then re-interviewed by the Police on 20 October 1998, when he admitted sexual contact, but asserted it had been consensual. In addition, at his original trial involving only the third complainant, the appellant had denied knowledge that the restaurant’s front door could be locked from the inside. This was contradicted at the second trial by the second complainant’s evidence that Mr Chronis had unlocked the door with a key to let her out.
Mr Davidson submitted that the trial Judge’s direction on lies was wrong in law and of such significance that there had been a miscarriage of justice. In a context where admitted lies clearly existed, the Judge gave the following directions in his summing up:
There is a third possibility. It is that you may reject his [the appellant’s] evidence on all the important points as being either unreliable or dishonest. In that case, you do not automatically find him guilty, as you might expect. You then just put his evidence to one side because it is not going to help you. You simply proceed as if he had not given evidence, because you must still examine all of the evidence that is left, principally called by the Crown, to decide whether the Crown has proved each of these counts, or all of them, beyond reasonable doubt…
I have told you that when you assess whether or not he may have lied, the consequences of that will be that, if you conclude that he did, you will simply put his evidence to one side. (emphasis added)
The appellant argued that the jury were wrongly led to believe that, if the accused were caught in a lie, all of his evidence must then be put to one side and not considered. As the appellant had plainly lied, he was wrongly stripped of his defence. This was compounded by the Judge’s failure to direct the jury that the appellant’s out of Court statements, which went into exhaustive detail, were also evidence to be considered alongside his evidence in the witness box. In addition, the appellant submitted that this was a case demanding a more elaborate and careful direction on lies.
Alternatively, it was submitted that the Crown was using the lies to strengthen its case, and the jury should therefore have been told they could use those lies to support a conviction only if they were more consistent with guilt than innocence.
The appellant also submitted that the trial Judge erred in his directions on consent by failing to refer to the possibility of a reluctant, regretted or irrational consent.
For the Crown, Mr France submitted that it was simply unrealistic to think that the jury would have imagined that, in circumstances where there was an admitted lie on one matter, they were being told by the Judge to disregard all of the appellant’s evidence. Counsel said that plainly the Judge was telling the jury to put to one side that portion of the appellant’s evidence they believed to be a lie. He had already given the standard direction that the jury was entitled to accept or reject parts of the evidence of a witness. For the Judge’s words in the summing up extracts quoted above to be read or heard literally when there was an admitted lie would be tantamount to telling them that Mr Chronis had no defence at all. That would make a nonsense of the rest of the summing up.
Nor had two experienced defence counsel heard those summing up passages in that way at the time. They did not raise the matter with the Judge at the end of the summing up: something they would surely have done on such a fundamental point if there had been any danger at all of the Judge’s meaning being misinterpreted.
Mr France said also that this case did not call for an elaborate lies direction. It could be seen from the Judge’s summary of the Crown case that the Crown was not contending that lies added to its case. They went only to the appellant’s credibility as a witness.
Appeal against conviction - decision
We are not persuaded that there was any danger at all that, in the context of the summing up as a whole, the jury may have taken literally the Judge’s comments about putting the appellant’s evidence to one side. The Judge was obviously referring only to the portions of the evidence which the jury might think to be a lie, namely, the evidence about the deadlock and the appellant’s initial denial of any sexual contact with the third complainant. As Mr France said, the rest of the summing up would be nonsensical or pointless if a literal interpretation were given to the words in question when an “admitted lie” clearly existed (an expression the Judge himself used only two sentences before the second of the quoted passages). There would be no defence if Mr Chronis’s evidence then had to be disregarded. But plainly the Judge went on to carefully ensure that the defence case was put before the jury. The jury could not have thought this served no purpose.
Mr Davidson supported the suggestion that the jury might have misunderstood the direction by noting that its retirement of one hour contrasted with nine hours of deliberation and a jury disagreement at the first trial. But that difference is entirely understandable. The evidence of the first two complainants had become available in the meantime. Mr Chronis was facing a much stronger case, which was no longer dependent to such a large degree on an assessment of the respective credibility of the third complainant and himself.
Mr Davidson candidly conceded that neither he nor Ms Ord had understood the Judge during the summing up in the way now suggested. But he said they had developed subsequently a feeling of unease that something was wrong with the summing up. With respect to Mr Davidson, and allowing for the fact that he did not have available to him a transcript of the summing up until later, we gained the impression from what he said that the sense of unease really developed once there was an unexpectedly early verdict. It is noticeable that no mention of this point is contained in the original notice of appeal.
We reject also the submission that the lies direction needed to be more elaborate or needed to address the position where lies might provide additional support for the Crown case, rather than being merely relevant to Mr Chronis’s credibility. It is not apparent from the Crown prosecutor’s cross-examination of the appellant, nor from the Judge’s summary of the Crown case in the summing up, that this was anything other than the ordinary situation of lies reflecting on an accused’s credibility. The Crown does not appear to have put its case on the basis that the lies added something to its case.
Mr Davidson raised a subsidiary matter concerning the video interview. In his written submissions he suggested that the jury had not been directed that it was equally evidence which could be taken into account. In fact, however, the Judge told the jury that the evidence consisted of the sworn evidence which they heard the witnesses give and “the exhibits which they produced.” This immediately preceded a discussion of the exhibits, including the videos. The jury could not have been under any misapprehension on this point.
The final alleged misdirection related to the Judge’s failure to refer to a reluctant, regretted or irrational consent. Certainly those words are not mentioned by the Judge. However, he did tell the jury that consent is a true consent given by a person in a position to make a free, informed and rational choice and that a consent exacted as a result of actual force, or threatened force, or the fear of such force, is not a freely given consent. We are satisfied that, in the context of this case, the direction on consent was adequate and that omission of reference to reluctant or regretted consent was immaterial.
Appeal against sentence
The appellant submits that the overall sentence imposed was manifestly excessive in all the circumstances. In addition, the Judge gave insufficient allowance to the adverse impact of the sentence on the appellant’s mother.
The trial Judge found that all three complainants were “profoundly affected” by the appellant’s offending, as evidenced by the victim impact reports. The pre-sentencing report recommended that he be imprisoned, given the seriousness and violence of the conduct, which also fell within s5 of the Criminal Justice Act 1985. The Judge took into account the appellant’s continual denial of all offending. He also expressed concern regarding the appellant’s pattern of similar offending over a 7 year period.
The sentencing Judge considered the various points submitted on behalf of the appellant. Counsel argued that the pre-sentencing report made no reference to the appellant’s mother, an 84 year-old woman, speaking little English, who had been of ill health. The appellant submitted that his mother was dependent on him for her daily needs and psychological support. Significant imprisonment would be unusually hard on both the mother and the appellant, who would suffer a sense of thwarted responsibility. Imprisonment would also result in a loss of self-respect, the appellant’s business, his resources, his friends and his health. In addition, counsel noted that the Human Rights Commission had already imposed a fine as a result of the appellant’s indecent assault on the first complainant.
The Judge accepted that, whenever a term of imprisonment is imposed, the prisoner’s family invariably suffers. The Judge noted that the sentence imposed would be hard for both the appellant and his mother. But he did not consider it appropriate to reduce the sentence on that basis. The Judge expressly considered the totality principal, but felt that the nature of the appellant’s conduct deserved a sentence in excess of the 8 year sentence imposed for the rape conviction. A total sentence of nine and a half years was considered appropriate.
We need only say that we entirely agree. The proper starting point for the rape was eight years. There was the aggravating circumstance of the appellant’s abuse of his position as the third complainant’s employer. The same aggravating feature applied in relation to the second complainant also. There was also the great difference in age. (Mr Chronis is 50.) The only matters available in mitigation were his previous good character, although of course this was repetitive conduct, and the appellant’s expression of remorse. The consequences of the sentence for the appellant’s mother are regrettable, but unfortunately sentences of imprisonment commonly have adverse consequences for relatives of the offender. In any event, even if a somewhat shorter prison term were appropriate, the mother’s position would still be affected in almost the same way.
Result
The appeals against conviction and sentence are both dismissed.
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