The Queen v Percy Awaroa Thompson

[2003] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND

CA361/02

THE QUEEN

v

PERCY AWAROA THOMPSON

Coram:Tipping J
Anderson J
Glazebrook J

Appearances:  P J O'Driscoll for Appellant

A Markham for Crown

Judgment (On the papers):     19 March 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]       This application for leave to appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001 have been considered by the members of the Court who have conferred and agreed upon this judgment.

Nature of the application

[2]       The applicant faces trial in the District Court on an indictment alleging four counts relating to violence said to have been used by him against a woman whose chronological age is now 38 years but whose functional age is, by reason of intellectual impairment, that of a young child.  In the opinion of a registered psychologist, evidence of which was before the District Court, the complainant has communication skills at a level that would be expected of an average child of five years and three months; her daily living skills are those of a six year six month old child; and her socialisation skills are that of a five year nine month old child.  Overall, her adaptive behaviour is equivalent to that of a child of five years eight months.  The evidence of the psychologist indicates that as well as being intellectually impaired the complainant is emotionally very fragile and also suffers from some physical disability.  She requires crutches for mobility and presented to the psychologist as seeming to have a right-sided weakness in her limbs.

[3]       The Crown applied to the District Court for a direction permitting part or the whole of the evidence in chief of the complainant to be admitted in the form of a videotaped interview, which had been produced at the preliminary hearing, and for further evidence in chief to be given and examined by way of closed circuit television.  That application was opposed on behalf of the applicant.

[4]       If the counts had alleged sexual offences in terms of ss128-142A and 144A of the Crimes Act 1961 the District Court would have had a specific statutory power to give directions in terms of the Crown’s application.  The statutory authority is contained in the regime stipulated by ss23C to 23I of the Evidence Act 1908.  In the particular case, however, any such direction could only be given lawfully if it were within the Court’s inherent power.  The case for the applicant was and is that the District Court has no such inherent power.

[5]       The District Court Judge held that there was such a power.  In a carefully reasoned judgment he adverted to the opinion of the registered psychologist and the decisions of this Court in R v Moke & Lawrence [1996] 1 NZLR 263 and Accused v Attorney-General (1997) 15 CRNZ 148.  He concluded that just as the District Court has been held to possess the inherent power in relation to persons under 17 years of age who are the victims of non-sexual offences so also must the power exist in relation to intellectually impaired persons over 17 years of age in similar cases.  Having determined that there was a relevant power he then examined the merits of the application in terms of the complainant’s features and in terms of the effect or otherwise in relation to the applicant’s civil rights.  He concluded that the applicant’s rights would not be infringed in any way and that the jury would of course need to be warned as they are in cases where the Evidence Act specifically authorises the use of the evidential techniques in question.

Arguments

[6]       The case for the applicant in this Court, as it was in the District Court, is that there is no express statutory power for the orders made and that there is no inherent jurisdiction because the power exercised is not one ancillary to a statutory power. 

[7]       The case for the Crown is that the two previous decisions of this Court, mentioned above, are determinative of the existence of an inherent jurisdiction in the District Court to make orders of the nature in question and that the merits of the Crown’s application are plain from the expert evidence before the District Court.

Discussion

[8]       The Crown’s application was in the nature of a s344A application for the determination of admissibility of evidence before trial, and it is expedient to treat it as such just as this Court treated a similar application in Moke & Lawrence.  This Court has, accordingly, jurisdiction to entertain the application for leave to appeal.  That application was made late but we would not decline leave on that basis because, according to counsel’s memorandum, the applicant has had some health difficulties.

[9]       In Moke & Lawrence this Court examined in detail the question whether the inherent jurisdiction of the District Court extended to permitting evidence to be given by way of pre-recorded videotaped interviews of three child complainants on the trial of their parents for alleged ill-treatment not amounting to sexual offending within the ambit of s23C-23I of the Evidence Act 1908.  In the course of its reasons for concluding that such power existed this Court said at p268, line 30:

The notion that the Court should exercise its inherent jurisdiction in harmony with the relevant legislation seems irrefutable.  Parliament is to be presumed to have enacted the legislation in the public interest and, in matters touching upon the work of the Courts, to further the ends of justice.  Where it is necessary to utilise the Court’s inherent jurisdiction it is done for the same purpose.  Parliament and the Courts can effectively function in tandem.

[10]     In the present case the learned District Court Judge held, in effect, that where inherent jurisdiction existed to apply the statutory regime analogously to persons under the age of 17 years in cases of alleged offending other than sexual crimes then it could equally be applied to the other class of witnesses acknowledged as appropriate for such purposes, namely persons 17 years or over suffering from intellectual impairment.  The logic of the argument is indisputable.

[11]     This Court has also held that orders in the nature of those sought do not breach s376 of the Crimes Act, nor do they necessarily infringe the rights assured by ss25 and 27 of the New Zealand Bill of Rights Act 1990; see Accused v Attorney-General (1997) 15 CRNZ 148.

[12]     We agree with the District Court Judge’s cautionary observations about directions to the jury not to take any inference adverse to the accused from the procedure adopted.  And in the particular case, given the existence of the jurisdiction, the merits of the Crown’s application are clear.

[13]     For the above reasons leave to appeal is granted but the appeal is dismissed.

Solicitors:

Crown Law Office Wellington