The Queen v Rangi Tawea Walker

[2000] NZCA 42

PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND	CA492/99

THE QUEEN

V

RANGI TAWEA WALKER

Coram:	Gault J Thomas J Tipping J
Decision:	9 March 2000

(EX PARTE)

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

1. Rangi T Walker was convicted, following a jury trial in the Gisborne District Court,  of indecent assault on a girl under the age of 12.  He was sentenced to 12 months imprisonment.  Mr Walker now appeals against conviction.  Legal aid for this appeal was declined by the Registrar of this Court after the necessary process of consultation.  An application for review of the decision to refuse legal aid was unsuccessful.  The appeal has accordingly been determined on the basis of the grounds of appeal as formulated in the notice of appeal and written submissions subsequently received from the appellant.  The appellant was denied bail pending the determination of the appeal.

2. The prosecution arose out of a single incident during Easter weekend in April 1998.  One night that weekend the complainant, a nine year old girl, stayed at the appellant’s house.  Also present at the house that night were the complainant’s brother, her grandfather and another older male relative of the complainant.  Several men, including the appellant, stayed up late into the evening, drinking.  The complainant and her brother went to bed in the lounge. The complainant alleged that during the night she woke up to find the appellant touching her vagina and buttocks.  He desisted only when someone called to him from outside.  The complainant did not tell anyone about these events until September 1998, when she told her cousin and her stepfather that someone had touched her when she was on holiday earlier in the year.  She named the appellant as the offender.

3. The first ground of appeal was that behavioural evidence was adduced at trial which contained opinion evidence from non-experts and was irrelevant, speculative, and unduly prejudicial.  On the first morning of the trial counsel for the appellant objected to certain evidence the Crown proposed to lead from the complainant’s father and stepfather.  The evidence related to behavioural changes in the complainant between April and September 1998.  The Trial Judge ruled, correctly in our view, that the witnesses could give evidence about characteristics and conduct they had observed in the complainant, but not of the conclusions they drew from her behaviour.  We have reviewed the evidence and are satisfied that the witnesses kept within the bounds of this ruling by excluding opinion and conclusory elements from their evidence.  The evidence was relevant and admissible and there was no undue prejudice to the appellant.

4. The second and third grounds of appeal relate to the dock identification of the accused and the Judge’s direction on that matter.  The Crown wished to have a dock identification at the trial, but the appellant objected on the basis that the circumstances would make the purported identification meaningless.  The trial took place in a closed courtroom and the Judge had already pointed out to the complainant almost everyone in the room, leaving just the two prison officers and the appellant.  The Judge recognised that these circumstances made the dock identification of limited use, but he nonetheless ruled that it could take place and indicated that he would give a special direction in summing up.  The dock identification was duly performed. 

5. One ground of appeal is that the dock identification was overwhelmingly prejudicial to the appellant and had little, if any, probative value.  A related ground was that the Judge gave insufficient warning to the Jury about the dangers of the dock identification, particularly the procedure used. We find these grounds to be without merit.  We agree that, in these circumstances, the dock identification was somewhat futile.  However, the directions given by the Judge to the jury in summing up were adequate to remove any danger of improper prejudice to the appellant.  In addition to giving the usual direction about relying on the correctness of identification evidence, the Judge specifically cautioned the Jury about the problems of dock identification and the steps that were taken to try and reduce the artificiality of the situation.  The Judge recognised that the Jury may take the view that there were not many people for the complainant to point to and he directed the Jury that this was a matter they would need to take into account.  The Jury was thus well aware of the need for caution. 

6. The appellant further contended that the Judge misdirected the Jury on identification evidence generally.  Related to this were submissions regarding the evidence of identity given by the complainant. The appellant essentially contended that the factual circumstances surrounding the commission of the alleged offence, such as the fact that it was at night and the lounge was dark, made it impossible for the complainant to recognise the offender.  These grounds of appeal also fail.  The Jury was properly directed to treat the identification evidence with caution and the Judge specifically told the Jury to look very carefully at the circumstances in which the identification was made.  There was no misdirection and the Jury was entitled to find, on the evidence, that the identity of the offender had been established beyond reasonable doubt. 

7. The next ground of appeal was that the Judge, in summing up, did not properly put the defence case to the Jury.  The Judge expressed the view that there was no need to go over the evidence because the case had been of short duration and the evidence would have been fresh in the Jury’s mind from the closing addresses.  The appellant submitted that the judge unwittingly emphasised the Prosecution case and that this amounted to a misdirection.  We also find this ground of appeal to be without merit.  A summing up will normally review the case for the Crown and for the defence by reference to the points made by counsel on behalf of both parties: R v Foss (1996) 14 CRNZ 1 at 4.  However, this Court recognised in Foss that what is required will depend on the particular circumstances of the case.  In this case, given the shortness of the trial and its relatively straightforward nature, the cases were adequately put to the Jury as part of the Judge’s discussion, at pages 8 to 10 of the summing up, of the two main issues in the trial – whether the alleged events occurred and whether, if they did occur, it was the accused who did any or all of the acts described.  The summing up was fair and adequate in the circumstances. 

8. A further ground of appeal was that the Judge in summing up misdirected the Jury on recent complaint evidence. We are satisfied that, while the Judge’s direction on recent complaint was somewhat wordy, it was not incorrect.  This ground of appeal is rejected.

9. After filing his notice of appeal the appellant sought to introduce new evidence from two new witnesses to the effect that the appellant was not present at his house on the night of the alleged offence.  The appellant also submitted that one of the men who was present should have been called at the trial to give evidence that the appellant was not at the house.  It is not clear why this man did not give evidence at the trial and we note that he has, according to the appellant, recently passed away.  These new grounds of appeal essentially constitute an attempt to raise an entirely new line of defence not pursued at the trial or in the grounds of appeal as formulated in the notice of appeal.  The appellant had ample opportunity to call alibi evidence at the trial and to follow the proper procedure for doing so.  We regard his attempt to raise an alibi defence at this late stage as entirely unpersuasive.  It follows that this ground, or these grounds, of appeal also fail.

10. Other matters raised by the appellant, mostly relating to his personal and family history, do not provide any grounds for an appeal against conviction.  They are relevant, if at all, only to sentence.

11. Accordingly, the appeal is dismissed.