The Queen v Seabrook

[2006] NZCA 114

IN THE COURT OF APPEAL OF NEW ZEALAND

CA429/05

THE QUEEN

v

ROY MALCOLM SEABROOK

Hearing:1 June 2006

Court:O'Regan, John Hansen and Gendall JJ

Counsel:M R Bott for Appellant

K J Beaton for Crown

Judgment:6 June 2006 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by John Hansen J)

[1]       Following a trial before Judge Behrens QC and a jury the appellant was convicted on 2 September 2005 of two counts of doing an indecent act.

[2]       He appeals on the ground of counsel incompetence, alleging that trial counsel should have applied for severance.  As a corollary to that he alleges, because the counts were tried together, he felt pressured into giving evidence, thereby defeating his right to silence.

Background

[3]       On Tuesday 10 February 2004 the appellant was walking around the front of his section fully naked.  The premises are directly opposite a school.  The complainant, who had just completed dropping her children off at school, was standing on the footpath opposite the appellant’s house.  The appellant looked directly at her and began masturbating himself.  On 11 February 2004 a similar incident occurred.

[4]       The complainant advised the police and they kept observation on the appellant’s address on three different mornings.  On one of the mornings a police officer observed the appellant standing behind his van, looking out in the direction of the road.  When a woman walked past the appellant stepped out from behind the van fully naked.  On this latter occasion the constable recorded some of his observations on a video recorder, but did not record the appellant walking naked within view of the public.  A photograph derived from the video recording showed a man, said to be the appellant, who appeared to be completely naked.

[5]       The appellant objected to the admission of the constable’s evidence.  It was ruled admissible in the District Court, and on 29 June 2005 this Court dismissed an appeal against that pre-trial ruling: R v Seabrook CA34/05 7 July 2005.  At [16] this Court said:

[16]      In our view, the assessment of the probative value of the evidence against its prejudicial effect, in accordance with the approach suggested by this Court in R v Holtz, leads to a clear conclusion that the probative value of the Constable’s evidence outweighs its prejudicial effect.  We accept the submission of Crown counsel that the prejudicial effect is not as significant as was suggested by counsel for the appellant, and that the prejudicial effect can be minimised by appropriate directions to the jury.  On the other hand, the evidence has clear probative value in supporting the evidence of the complainant as to identification of the appellant and as to the contention that his actions were not accidental.  …

Submissions

[6]       Mr Bott submitted that the counts faced by the appellant had elements that were embarrassing and likely to arouse the ire of ordinary people.  He submitted that the cumulative effect of facing both counts, combined with the observation evidence, was arguably to make it more likely for a jury to convict on each count, as each count involved an unattractive crime.

[7]       He submitted that because trial counsel had failed to apply for severance the appellant had suffered a miscarriage of justice.

[8]       For the Crown, Ms Beaton submitted that on accepted authority this was not a case where severance was appropriate.  She submitted that it was clear that the complainant’s evidence of what she saw on the first occasion was relevant and admissible to issues of the reliability of her identification of the appellant on the second occasion, and her credibility as to what she saw on the second morning.  She further submitted that the evidence of Constable Stewart was admissible on both counts to support the reliability of the identification by the complainant on both occasions, and to rebut any suggestions that the appellant was naked in his driveway on the days in question accidentally or coincidentally.

Discussion

[9]       The first issue is whether or not severance would have been granted if applied for.  A negative answer to that question means it is unnecessary to consider questions of counsel incompetence or possible miscarriages of justice.  Indeed, Mr Bott concurred with this assessment.

[10]     We agree with the Crown’s submission.  Applying conventional principles established in authorities of this Court (e.g. R v W [1995] 1 NZLR 548; R v Genovese CA151/02 8 September 2005), any application for severance would inevitably have failed. 

[11]     This is an appeal devoid of merit.  It is dismissed.

Solicitors:

Crown Law Office, Wellington