The Queen v Peter Josephs
[2002] NZCA 17
•26 February 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 349/01 |
THE QUEEN
V
PETER JOSEPHS
| Hearing: | 21 February 2002 |
| Coram: | Anderson J Williams J Baragwanath J |
| Appearances: | K R Ryan QC for Appellant K Raftery for Crown |
| Judgment: | 26 February 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
Nature of the appeal
In August 2001 the appellant was convicted of a number of sexual crimes committed between 1983 and 1991 on a girl from the time she was eight years old. Subsequently sentenced to seven years imprisonment he appealed against both conviction and sentence but the appeal against sentence was not pursued and stands to be dismissed without argument.
The complainant’s evidence was that the appellant first molested her when she was in the house of an aunt with whom the appellant was boarding. The appellant approached her in a bathroom and rubbed his erect penis against her back. On a later occasion he put the victim on a bed, removed her lower clothing as well as his own, poured baby oil over her thighs and simulated sexual intercourse to the point of ejaculation. Matters then progressed to regular sexual intercourse and indecencies until the complainant was well into her teens.
The appellant faced an indictment alleging indecent assaults, doing an indecent act with a girl under 12 years, sexual violation by rape, sexual violation by oral genital connection and sexual violation by penetration of the genitalia with a vibrator. The indictment was amended to include counts alternative to the charges of sexual violation founded on s134 of the Crimes Act 1961 including s134(1) which makes it an offence to have or attempt to have sexual intercourse with any girl of or over the age of 12 years and under the age of 16 years not being the offender’s wife. These alternatives were introduced per incuriam because they were barred by s134(7) which imposes a 12 month time limit from the commission of such an offence. These alternative counts were apparently included at the instance of the trial Judge to meet the possibility that the evidence might show acts of sexual intercourse occurred with the possibility of consent. One of the alternative counts was introduced as late as the morning of trial after the Crown had opened.
In the result, the appellant was not convicted on any of the introduced alternative counts except one, and on that he was later discharged pursuant to s347 of the Crimes Act 1961 for want of any evidential basis for the conviction.
The case for the appellant
It was submitted for the appellant that he had not received a fair trial because of the introduction of alternative counts which were in fact statute barred, a direction by the Judge in summing up that the alternative counts had been introduced by the Judge himself, and because prosecuting counsel had intemperately cross-examined the appellant when he gave evidence.
In summing up to the jury the Judge had said:
It was suggested to you by [defence counsel] that the Crown had perhaps thought better of it and decided to put the alternatives in but, in fact, it was me that directed that the alternatives go in so that you could be in a position where if you considered the elements of the first charge proved except in relation to consent the verdict would be not guilty on the first and you then consider the second charge where consent is not an element.
Counsel referred to parts of the Crown’s cross-examination of the appellant in support of a submission that counsel employed language and tactics which inflamed the jury against the appellant and caused prejudice and in questioning the appellant made statements in the guise of or camouflaged as questions, resulting in a miscarriage of justice.
It was submitted on behalf of the appellant, as an example, that it was wrong for Crown counsel to cross-examine in the following terms:
I put it to you Mr Josephs that when [complainant] was between 8 and 16 years of age you groomed her to be your sex partner, your sex toy, that’s what you did, didn’t you?
Counsel for the appellant also took issue with cross-examination which seemed to have the character of factual assertions rather than questions of the appellant. Also, the prosecutor would sometimes preface a question with the expression “Do you remember”, thereby begging the issue whether such event had in fact occurred.
Respondent’s submissions
It was submitted on behalf of the respondent that inclusion of alternative counts could not be considered to have rendered the trial unfair. Such inclusion was likely if anything to be beneficial rather than detrimental to the appellant as it could reduce a risk of the jury wrongly convicting for rape rather than allowing sexual offending, albeit of a lesser nature, to go unpunished.
As for the Judge’s direction in the course of summing up, counsel submitted that any suggestion of support for the Crown case had to be considered in the context of the summing up as a whole and on such a necessary broad approach there was no room for any suggestion of an inappropriate judicial view on the merits.
As to the questioning by the prosecutor, counsel submitted that what was put to the appellant was fairly put in order to lay a foundation for a submission, which was inevitable and not unfair, to the same effect. He submitted that overall the case fell far short of a threshold of intemperance.
Reasons for judgment
We are not persuaded that the appellant’s trial was unfair or that in any respect there has been a miscarriage of justice warranting a new trial.
It is plain from the verdicts which were returned, particularly the verdicts of not guilty in respect of all but one of the alternative counts, that the jury dealt with each offence on a count by count basis. The nature of the verdicts shows that the jury was satisfied that in respect of six counts at least, some being representative in nature, the sexual acts complained of in fact occurred without the complainant’s true consent. The acquittal of the appellant on the alternative counts was therefore an inevitable consequence.
We agree with the submission of counsel for the respondent that in the circumstances of the case the inclusion of the alternative counts was, if anything, more likely to assist the appellant than otherwise. Should the jury find, as it did, that the sexual conduct occurred then it was bound to have been regarded as sustained depravity even if, as the complainant got older, the appellant might be accorded the benefit of the doubt on the issue of consent. The decision for inclusion was of course made before the appellant had to elect whether to give evidence. Having so elected he did not suggest the fact of or his belief in consent by the complainant, his stance being that none of the incidents in question had ever occurred. Notwithstanding such evidence counsel who appeared at trial (not present counsel) adopted the backstop of consent and the Judge, not inappropriately having regard to the nature of the case, left that issue with the jury. In all the circumstances we are not persuaded that the inclusion of the alternative counts, the timing of the inclusion of any and the Judge’s direction thereon rendered the trial in any respect unfair.
Nor are we persuaded that the cross-examination by the prosecuting counsel approached the threshold of intemperance. To question with a preamble “Do you remember…” is not a good practice and Judges often intervene, appropriately, when examination in chief or cross-examination take that form. But here no issue was taken either by the Judge or defence counsel and one must assume that there was no contemporaneous apprehension of injustice.
We also accept the submission on behalf of the Crown that given the evidence in the case it would be by no means inappropriate for Crown counsel to submit to the jury in closing that the appellant had groomed the appellant to be his sex partner, his sex toy and accordingly to put that proposition to the appellant in cross-examination was entirely justifiable.
Having examined the transcript in the light of counsel’s helpful submissions we are far from persuaded that conduct on the part of the prosecutor could be regarded as intemperate and justifying a new trial.
Result
For these reasons the appeals against conviction and sentence are dismissed.
Solicitors
Crown Solicitors, Auckland
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