The Queen v Phillip James Cooper
[2002] NZCA 13
•28 February 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 324/01 |
THE QUEEN
V
PHILLIP JAMES COOPER
| Hearing: | 25 February 2002 |
| Coram: | Anderson J Baragwanath J Potter J |
| Appearances: | E R Fairbrother for Appellant R J Collins for Crown |
| Judgment: | 28 February 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
In August 2001 the appellant was convicted by a jury on 15 counts of sexual offences against boys. The grounds are described compendiously on behalf of the appellant as such “that the verdict cannot be regarded as safe” but having regard to the terms of s385(1) of the Crimes Act 1961 we take the grounds to be wrong decisions on questions of law and miscarriage of justice.
Eight of the counts relate to the years between 1987 and 1992 inclusive and concern three complainants all of whom are now adults. Seven counts relate to the period 1 May 1999 to 20 February 2000 inclusive and concern twins who are now 12 years old.
A pre-trial application for severance of trial in respect of each of the adult complainants from each other and from the trial in respect of the twins was declined on the grounds that joinder of counts was justified by relevant factual similarities in the case of each complainant. The appellant appealed unsuccessfully to this Court in December 2000 (CA 410/00 7 December 2000).
The first adult (A1) was aged between 8 and 11 at the time of offending. He came from a broken home, his parents having separated when he was about 6. He lived with his mother who began a relationship with the appellant after her separation. A1’s evidence was that the appellant, naked, would get into bed with him when he was asleep. This complainant would wake up to find the appellant handling his penis and trying to get him to touch the appellant’s penis. Sometimes when the complainant was in the shower the appellant would enter the shower and wash the complainant, trying to touch him and trying to get the complainant to touch the appellant.
The second adult complainant (A2) was a friend of the first. He also came from a broken home and lived with his mother. Sometimes he stayed overnight at the first complainant’s house, where the appellant lived. He also testified to the appellant accosting him in the shower and trying to wash him. At that stage he was in his teens. He also described incidents of oral sex and masturbation with the appellant at that property.
The third adult complainant (A3) was also a friend of the first. He, too, came from a broken home and lived with his mother. Indecencies of which he accused the appellant included being molested by the accused when he was in the shower.
Each adult complainant, through a sad and unjustified sense of guilt and shame kept to himself for many years what the appellant had done. Disclosures to authority came when they were in their twenties in the course of Police investigations arising from complaints made by the parents of the twins.
The appellant became a boarder in the twins’ home and according to the evidence of these complainants he would handle their genitals, penetrate them anally with his fingers or penis, perform oral sex on them. One of the twins gave evidence of being in the shower when the appellant approached him and handled his penis.
The Crown case at trial was essentially dependent on the credit of the complainants, as they presented personally, assessed in the circumstances and bolstered by the evidence of a similar fact nature. The defence case was a denial of any wrong-doing, such being supported by character evidence, a submission that there were no relevant similar facts which might be invoked to bolster the complainant’s credit, and on the implications of the appellant’s evidence, supported by his general medical practitioner that during the period of the alleged offences against the twins and for some time before that he had been sexually impotent. The doctor’s evidence was that the impotence was not referable to a physical condition but was “psychogenic”, a term meaning “having a mental or psychological origin or cause” (Oxford English Dictionary 2nd Edition). If, by reason of impotence, the twins’ evidence about penile penetration of the anus must be wrong doubt must be cast on their evidence as to other sexual activity with the appellant.
The Crown’s closing submissions, dealing with the question of the appellant’s impotence, pointed out that the question related only to the twins and not the other complainants, that the diagnosis was self-reported and was not attributable to a physical cause. A girlfriend of the appellant had raised the matter with the doctor in 1997, at the same time more or less as the appellant himself did. The issue was therefore raised a significantly long time before the incidents with the twins, but, the Crown submitted, maybe it is pre-adolescent boys that arouse the appellant and not women. That proposition had not been put specifically by the Crown to the appellant or his doctor.
Submissions on behalf of the appellant
The way in which the Crown referred to the question of impotence in terms of sexual preference and the Judge’s dealing with the implications of the evidence on that issue give rise to two related submissions in support of the appeal.
Mr Fairbrother argued that it was unfair to the appellant for the Crown to deal with the matter in the way it did. The appellant and his doctor were not warned that their evidence was challenged and were accordingly deprived of an opportunity to answer the challenge. Second, and really consequentially, the appellant was not able to answer the challenge expressed in the Crown closing. He invoked this Court’s observations in R v Gutierrez (1996) 14 CRNZ 108:
…that the rule is simply one of fairness. Has a reasonable opportunity been given to enable the evidence in question to be properly assessed? It is the responsibility of prosecuting counsel or a prosecutor who proposes to attack the credibility of witnesses including the defendant, to cross-examine in a way which makes it plain that the relevant evidence is challenged and gives a witness a fair opportunity to answer the challenge.
Counsel for the appellant also submitted that the question of impotence was too narrowly focused on its relevance to the complaints by the twins. A greater relevance lay in respect of the overall issue of his credibility. Counsel’s written submissions put it in this way:
That the Appellant could adduce cogent evidence, unchallenged, enhancing his credibility on two allegations was deserving of a specific direction. That there was independent evidence enhancing his credibility on two specific allegations entitles the appellant to an enhanced credibility in all areas were the contest was simply allegation against denial.
In counsel’s submission the jury should have been directed along those lines.
Counsel advanced two other grounds, namely that there was insufficient evidence to support a similar fact direction and that there was no direction as to possible collusion.
Submissions on behalf of the Crown
The Crown submitted that there was sufficient evidence to support a similar fact direction as this Court had found in the course of dismissing the appeal against the High Court’s refusal to sever counts and trials. As to there being no direction as to collusion, counsel submitted that the possibility of collusion was never put in issue in the trial in such a way as to require any cautionary direction. The defence approach to the case was not that the possibility of collusion was suggested by similar facts but that there was no relevant similarity of facts at all.
On the evidence it would have been difficult for the appellant to open up any reasonable possibility of collusion. The three adult complainants had not had anything to do with each other for years and their complaints were made in the course of inquiries following the twins’ disclosures. The twins were unknown to the adult complainants.
As to whether the Crown, in closing, unfairly raised the issue of sexual preference in connection with impotence, counsel for the Crown submitted that the issue was alive before counsel made their final addresses. The Crown had sought, unsuccessfully, to adduce evidence by way of rebuttal about an alleged sexual incident between the appellant and a woman thereby indicating that the Crown did not accept that it was physically impossible for the appellant to have achieved penile penetration of the anus. In any event, the question of penile penetration was so central to the Crown’s case in respect of several of the counts relating to the twins that it would be unrealistic for the defence to think that this had ceased to be an issue by the time the Crown closed.
Reasons for judgment
Concerning the ground of appeal that there was insufficient evidence to support a similar fact direction we observe that the evidence at trial substantially conformed to the evidence before the High Court on the pre-trial ruling for severance. On the appeal from that ruling this Court was satisfied that there was relevant similarity in the circumstances and accounts of each complainant to justify the cases being heard together. Nothing that emerged at trial persuades us to take a different view now. Not every detail of the evidence on each count is identical, of course, but there are significant similarities of circumstances and details in respect of the various complainants giving their individual accounts a distinctive similarity which reinforces what each says. It cannot be mere fortuity that, for example, the three adult complainants, each of whom had been a young boy living with a separated mother, should independently claim that the same man had taken opportunities to accost them in a shower and commit indecencies with them. There were other features permeating the accounts of the complainants which by their similarity reinforce the individual accounts.
Nor are we persuaded that there is anything in the submission that the Judge should have given a collusion direction. Apart from the fact that very experienced counsel took no issue with the Judge’s direction at the time of trial nor included this ground originally in the grounds of appeal, we do not consider that the Judge had any obligation to comment upon a merely theoretical speculation which counsel did not seek to put in issue and for which there was no evidential indication at all. The situation was quite outside what this Court envisaged in R v Sanders [2001] 1 NZLR 257, 261 when it remarked at para [22]:
The jury’s attention ought to be directed to the possibility of collusion between complainants as an explanation for the similarity of their stories where this has been suggested on behalf of the defence.
The appellant’s submissions in respect of the issue of impotence call for a careful examination in the light of certain matters. The first is that there was no suggestion of impotence at the time of the alleged offending against the adult complainants. The appellant had in fact fathered children. Next, the last time the appellant’s doctor saw him was February 1999, whereas the offences against the twins were said to have occurred between 1 May 1999 and 20 February 2000 which is the period during which the appellant lived with their family. The result is that the evidence of impotence during that period came only from the appellant himself. Further, the evidence of the adult complainants, if accepted, showed that young boys were not excluded from the appellant’s sexual preferences and at least in the case of one of the adult complainants, as the jury found, the appellant had been capable of and had in fact penetrated a complainant’s anus with his penis. The impotence complained of by the appellant was psychogenic, not physiological in origin. Finally, the twins said he did penetrate them with his penis and whether they should be believed, notwithstanding confirmed evidence of earlier impotence when the appellant had a female partner, was one of the primary issues in the case.
Whether in all the circumstances the Crown’s particular submission was a legitimate appeal to the experience and common-sense of the jury informed by a sufficient factual foundation and context or, conversely, was a matter unfairly introduced on a subject which the general medical practitioner might or might not have had the expertise to comment upon if asked, was very much a matter of opinion and judgment in the context of the case. The learned and experienced Judge dealt with it on the former basis, inviting the jury to:
use your knowledge of human nature and common-sense when you deal with this topic.
Counsel for the appellant submitted that there was an unchallenged positive defence that the appellant was incapable of some of the acts alleged. With respect, that takes the matter rather further than the facts would allow. There was the appellant’s evidence of incapacity supported by his general medical practitioner’s evidence that at a time which was prior to any acts complained of by the twins the appellant had been suffering from psychogenic impotence. As against the appellant’s own evidence that this condition existed at the time of the twins’ complaints was the incompatible evidence of the twins themselves. The result is that although the appellant’s evidence about sexual impotence was plainly not invented, the independent support for it did not extend directly to the period of the twins’ complaints. Such evidence of impotence as there was did not rationally preclude the jury from being satisfied that the twins were each telling the truth about what the appellant did to them.
We are not persuaded that the Judge should have directed the jury to the effect that if he was credit-worthy to the extent that he should not be convicted in respect of the twins he should be considered equally credit-worthy in relation to each of the adult complainants. The jury was told by the Judge, as juries invariably are in cases involving multiple counts, that they must consider the matter count by count and reach conclusions about individual counts depending on the relevant evidence. The type of direction suggested by counsel for the appellant before us seems to run counter to that orthodox approach. It would amount in effect to a direction that if the jury considered there was a reasonable doubt, on the whole of the evidence including the accused’s denial and supporting evidence, whether he had penetrated the anus of the twins with his penis, then his credit must be such as to raise a reasonable doubt whether he committed any other offence to those or any other complainant. To take that course would not be logical and would risk a misunderstanding that the appellant carried some burden of proof in relation to his credit. The point could have been made that in addition to the character evidence, the direction in respect of which is not challenged by counsel, the appellant’s evidence and denial in respect of the twins had some support from the medical evidence but that it was for the jury to decide. Effectively that is what the Judge did.
Conclusion
In the result we are not persuaded that there was any error of law by the Judge nor that for any reason there was a miscarriage of justice. The appeals are accordingly dismissed
Solicitors
Crown Solicitor, Napier
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