The Queen v Phillip David Hunt

PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA178/00

THE QUEEN

PHILLIP DAVID HUNT

Hearing:	25 September 2000
Coram:	Gault J Ellis J Robertson J
Appearances:	R M Lithgow for Appellant J C Pike for Crown
Judgment:	26 September 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

This is an appeal against conviction after jury trial on one count of sexual violation by rape. The complainant was a friend of the appellant and flatted with other friends of the appellant.
The appeal originally was notified on the single ground that the verdict of the jury is unsupported by the evidence. But a few days before the hearing, doubtless when counsel turned his mind to the matter, things changed. There was an application for adjournment to allow time to support an application to admit further evidence on appeal. New grounds of appeal were introduced. A last minute application for leave for the appellant to be brought to court for his appeal was made, but refused. Needless to say counsel was reminded of his obligations under the Practice Note.

Factual Background

The appellant associated with the complainant and her flatmates for several months prior to the incident, the subject of the conviction. The complainant described a friendly relationship with the appellant. On occasions they would socialise together, seeing a movie or having a milkshake. Once or twice the appellant slept over at the flat but he would always sleep on a couch in the living area.
The appellant had arranged to go to Australia for a holiday for three months. The Friday night before he was due to leave he arranged to have a farewell party at the flat with mutual friends. After spending some time socialising there the party went to a bar in town. The complainant became intoxicated and the appellant accompanied her home and helped her to bed. The complainant described falling asleep with all her clothes on, but being woken by the appellant who was touching her on the breasts. She protested but the appellant ignored her and closed the bedroom door. He then removed her clothing and his own clothing. He held the complainant by her arms and had intercourse with her despite her protests. After the appellant left for Australia the complainant realised she had become pregnant and had an abortion.
The complainant gave evidence which, if accepted, was sufficient to support the verdict. That was supported by the evidence of two women with whom the complainant worked. They described seeing bruises on the top of her arms on the Monday after the incident. A flatmate also gave evidence of a change in the complainant’s behaviour after the weekend in question.
The appellant elected to give evidence at trial. He did not deny that intercourse had taken place, but contended it was consensual. There were inconsistencies between his evidence at trial and a statement he made to the police when first interviewed. In particular, he told the police that the complainant was very intoxicated and could not stand, but at trial he stated that she was mildly drunk but still in control of herself. Also in his statement he said the complainant instituted intercourse, seducing him. At trial he stated they both participated in the lead-up to intercourse.
There was evidence of a letter written by the appellant from Australia to the complainant and of contact after the appellant returned from Australia, but accounts conflicted as to their significance.
The proposed further evidence is from a former occupant of the flat in which the events occurred. She had been interviewed by the police, to the knowledge of defence counsel, well before the trial but was not called as a witness. It is said now that she has evidence to give about a statement the complainant made in the presence of the appellant on the day after the event and relating to a possible explanation for the bruises on the complainant’s arm or arms. We were not persuaded that this evidence, if obtained, would meet the requirements of freshness and cogency for admission on appeal and declined adjournment.
Grounds of appeal advanced were that the trial Judge failed to direct the jury on lies and on the evidence of good character called for the accused. In the outcome we did not need to deal with these. The oral hearing concentrated on an issue which could be characterised as admission of prejudicial evidence unfairly to the accused, failure of trial counsel (not Mr Lithgow) to have the evidence excluded or failure of the trial Judge to direct the jury on how they should treat that evidence.
The evidence concerned formed part of the interview of the appellant with a police officer. The interview was videotaped and shown to the jury without objection from counsel. A reading of the transcript of the trial shows that this was a trial that presented the jury with a difficult assessment of the credibility of the complainant and the accused. We have no doubt the videotaped interview would have had considerable impact even though the accused gave evidence.
The interview was lengthy. The appellant gave a long, rambling and at times almost incoherent account of his relationship with the complainant and the events of the night in question. This would have tested the patience of the interviewing officer. But that did not justify the way in which the interview developed towards the end. The officer did not confine himself to seeking the reaction of the suspect to aspects of the complaint. He engaged in an increasingly aggressive confrontation of his suspect culminating in which was described by Mr Lithgow in his written submission as:
It is submitted that in this case the detective went well beyond what is acceptable in these circumstances. In the second hour, he gradually makes the interview his own. Specifically for the last eight to 10 minutes he delivers a largely unbroken jury address of his own expressing fixed views as to what the factual and legal situation in this case is. He starts to raise his voice, gets sarcastic, refers to his own sexual behaviours with his wife, swears, abuses the accused and generally delivers a powerful but legally utterly irrelevant set of supposed beliefs and opinions.
The extracts we were particularly referred to justify that submission. One extract sufficiently conveys the tenor:
Q.So why were you holding her down?
A.I wasn’t.
Q.Well, I say you are. I say holding her by both hands on both shoulders like you said not the arm both shoulders, holding a person down when you are having sex with them. If you are having consensual sex with someone, you don’t need to do that. I don’t buy that’s the position you have sex in.
A.Oh.
Q.All right? When you are having sex with a woman in the missionary position like you are talking, your head is there, her head is there. Your arms aren’t like that. It’s not a natural position to be in. And you can’t tell me it is.
A.Well -
QNow, you started having sex – you started having foreplay with her. She wasn’t – this might be another scenario, you tell me what happened. And she wasn’t resisting you much. Then you thought oh, well, she must want it. So you then decided to have sex with her. At that stage she decided no, I don’t, she’s tried to push you off and you have decided, well, she does want it. Is that how it went down and you have continued?
A.No.
Q.No, it’s not what happened. But you are feeling bloody guilty the next day; you are writing letters to her when you go to Aussie; you are trying everything in your power to make her feel better the next day.
A.Yeah.
Q.But – and you had consensual sex with this woman. Not only consensual sex, but she seduced you, for Christ’s sake. You are trying to – who do you think you are talking to? You obviously think I am a fool sitting here listening to your story -
A.I don’t.
Q.- and believing it blindly.
A.I am just trying -
Q.All I want - you are trying to help yourself. All I want you to do is to do the bloody right thing and to tell the truth.
A. I am telling the truth.
Mr Pike for the Crown fairly accepted that the officer went too far.
It was put in argument that the effect of showing this videotape to the jury was to breach the principle in R v Halligan [1973] 2 NZLR 158.
That case generally is regarded as authority against the improper practice of placing before a jury unproved factual assertions of others in the form of questions on which the accused has been asked to comment. But the principle was broadly stated in the judgment of the Court delivered by Turner J (p162):
This Court has said before, and it now repeats it, that police officers cannot be allowed to introduce evidence for the Crown by making accusations to a suspect, and, when they receive no damaging admission in reply, retailing to the jury what they said as if it were relevant evidence. Where this is the effect of what was done, and it is the effect of what was done here, this Court will not allow a conviction obtained upon such evidence to stand, unless it is clearly demonstrable that without that evidence the jury must have convicted.
In the present case there was placed before the jury in the form of questions at interview not factual assertions of others, but allegations and opinions of a police officer that were not assented to by the accused and were not evidence. The impact is no different, however,. We agree that this material should not have been placed before the jury, but once it was, the jury should have been told that the assertions and opinions of the officer were not evidence and should be ignored to the extent they were not adopted by the accused.
We were informed from the Bar that there was no suggestion of defence counsel wanting this part of the interview before the jury. But there was no objection nor any explanation for that.
This Court in R v P [1996] 3 NZLR 132, 135 said:
As to the principles applicable at the appellate stage, it is necessary for the appellant to show that if objection had been properly taken the Judge would not have admitted the evidence: R v Mason [1988] 2 NZLR 61, 63. If there was a tenable basis for admitting the evidence the appellant will fail.
…
If the appellant is able to overcome that first-hurdle, there is another. The evidence in question must be such as to have had a significant prejudicial effect on the outcome of the trial. This is necessary to bring the situation within the concept of miscarriage of justice in terms of s385(1)(c) of the Crimes Act 1961: R v Horsfall at p 123. Finally, an overarching requirement is that counsel’s failure to take the objection at trial was a mistake of the radical kind needed to invoke the principle in R v Pointon [1985] 1 NZLR 109.
We consider those requirements are met in this case. This was a bad case of overreaching by an interviewing officer. As a result matter prejudicial to the appellant was put before the jury in a case calling for a difficult credibility assessment without direction from the Judge on the significance. That counsel did not object and seek excision of at least the more objectionable parts is surprising.
Overall we are left with real concern for the safety of the verdict. The risk of a miscarriage of justice is such that we are not prepared to allow it to stand.
The appeal is allowed, the verdict is quashed and a new trial is ordered.

Solicitors
Sladden Cochrane, Wellington, for Appellant
Crown Law Office, Wellington

[2000] NZCA 213

26 September 2000