The Queen v Robinson

[2009] NZCA 500

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA184/2009
[2009] NZCA 500

THE QUEEN

v

MAURICE TOBY ROBINSON

Hearing:8 October 2009

Court:William Young  P, Panckhurst and MacKenzie JJ

Counsel:R G Glover for Appellant

B M Stanaway and H McKenzie for Crown

Judgment:22 October 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by MacKenzie J)

[1]        The appellant was convicted following a trial before Judge Callaghan and a jury in the District Court at Christchurch in December 2008 on two counts of indecent assault of a girl under age 12, in respect of two complainants.  He appeals against the conviction.

[2]        Two grounds of appeal were initially relied upon.  The first relates to a matter which arose during the evidence of one complainant.  While that complainant was giving her evidence, a juror indicated that she knew the support person, the grandfather of the complainant.  Inquiries by the Judge indicated that the juror’s husband and the support person had served on a friendly society.  The juror confirmed to the Judge that she did not know the witness and knew nothing about the family at all.  The Judge reminded all jurors of the need to try the case impartially and not to allow personal feelings to influence the decision.  He advised that another support person was to be arranged and the trial resumed following the lunch adjournment after that was done.  The Judge did not accede to a request from trial counsel for the appellant to discharge the juror.  As the jury had already been reduced to 11, that would, in the absence of consent, have required that the trial be aborted.

[3]        This trial took place before the coming into force of the Juries Amendment Act 2008.  Section 374 of the Crimes Act 1961 applied.  The exercise of the discretion under that section was, by virtue of s 374(8), not reviewable (see the discussion in R v Gwaze [2009] NZCA 430 at [111] – [112]. Mr Glover for the appellant acknowledged that limitation and did not pursue this ground of appeal. We consider that that concession was appropriate. It is however appropriate to go further and to express our view that no possibility of a miscarriage of justice has arisen from the exercise of the discretion not to discharge. As this Court noted in R v Pearson [1996] 3 NZLR 275, the ideal, that a juror should not have any knowledge of any kind about the case or any of those involved, is an unrealistic expectation. The circumstances of each case must be taken into account, and must be judged against the test of whether a fair minded and informed observer would conclude that there was a real possibility of bias arising from the degree of knowledge by this juror of those involved in the case. Mere acquaintance with the grandfather of the complainant, without more, does not present a risk of a real possibility of bias.

[4]        The second ground of appeal relates to propensity evidence given by the appellant’s former wife.  The allegation of indecent assault against the appellant, (which in both cases were representative counts) were that he had got into the complainant’s beds when they were sleeping and rubbed his penis against their bottoms.  The Crown sought to adduce propensity evidence from the appellant’s former wife (who was the mother of the complainants) of similar conduct with her.  She described occasions when she was in bed with the appellant in which she would wake up to movements while she was asleep.  She would find the appellant lying behind her with an erect penis, and at times he would be either pumping his penis against her bottom or rubbing his hand against her bottom or underwear.  She would hear him masturbating.  That evidence was the subject of a pre-trial application which was heard by Judge MacAskill.  In the brief of evidence which was under consideration at the pre-trial application, the witness referred to times when she could remember waking up with the appellant’s penis entering her vagina from behind.  Trial counsel has sworn an affidavit to the effect that Judge MacAskill indicated during the course of the pre-trial hearing that that part of the evidence was not admissible, and that counsel then appearing for the Crown had acknowledged that that part would not be led. 

[5]        In his subsequent written judgment, Judge MacAskill ruled the propensity evidence admissible.  He did not specifically refer to that evidence of penile penetration, and the terms of his judgment are consistent with its being directed only to the evidence of the appellant touching his wife’s bottom and masturbating while she was sleeping.  Trial counsel for the Crown was not made aware of the ruling or concession which had been made that the evidence of penetration would not be led.

[6]        The witness gave evidence at trial that:  “There would be the odd time when I can remember waking up with his penis entering me from behind.”  Trial counsel for the appellant objected at that point and the misunderstanding which we have described came to light.  Judge Callaghan apparently found a handwritten note by Judge MacAskill confirming the exclusion of that evidence.  On the hearing of this appeal the Crown accepts that there was an understanding that that part of the evidence would not be led.  Mr Glover for the appellant accepts that the leading of the evidence arose only because trial counsel for the Crown was not aware of that understanding.

[7]        In addressing counsel’s objection to that part of the evidence, it was apparently decided that the Judge would wait until the end of the witness’s evidence before giving a direction for the jury about it.  At the completion of her evidence he gave a direction in which he quoted that part of the evidence which we have earlier set out.  He said that that was not admissible; that it should not have been said but unfortunately it was; and that the jury should not place any weight on it and must put it out of their mind and proceed on the basis that it was not said.  He reminded the jury of that in summing up when he repeated that the evidence was not admissible and that they should put that aspect of the evidence out of their minds.

[8]        Mr Glover for the appellant frankly and appropriately acknowledged that when the full circumstances, as we have outlined them, have become apparent, there is little that can be said to support this ground of appeal.  This was a case where there was an unfortunate disclosure of evidence which it had been agreed would not be led.  The Supreme Court said in R v Thompson [2006] 2 NZLR 577 at paragraph [16].

Whether or not to discharge a jury which has heard a witness disclose illegitimate prejudicial material is for the discretion of the trial Judge on the particular facts. An appellate Court will not lightly interfere with the exercise of that discretion. It depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course.

[9]        As this Court noted in R v E [2008] 3 NZLR 145 at [92], the risk that the jury might draw an improper inference from evidence inadvertently given may be saved by a very strong direction from the Judge given both at the time the evidence was led and in summing up. We consider that the direction given by the Judge at the end of the witness’s evidence, and the reinforcement of that direction in summing up, were appropriate in the circumstances of this case. This is not a case where this Court should interfere with the exercise of the discretion to deal with the matter in that way. That makes it unnecessary for us to discuss the extent to which any illegitimate prejudice might have resulted from the admission of the evidence, or whether the trial strategy of the appellant, which included raising the issue of collusion between the complainant and the witness, might have required that the evidence would come out in any event.

[10]      For these reasons, the appeal is dismissed.

Solicitors:

Raymond Donnelly & Co, Christchurch