The Queen v Stephen Geoffrey Rea

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 44/00

THE QUEEN

STEPHEN GEOFFREY REA

Hearing:	16 May 2000
Coram:	Thomas J Robertson J Baragwanath J
Appearances:	T W Fournier for the Appellant
J C Pike for the Crown
Judgment:	17 May 2000

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

The appellant stood trial on three counts, all of which were alleged to have occurred between 1 October 1996 and 31 December 1996 namely :
(a)       Sexual violation by anal penetration of a named boy at a named address in Christchurch.
(b)       Indecently assaulting the same complainant (who was of or over the age of 12 and under the age of 16) by grabbing his groin and ejaculating on him at the same address in Christchurch.
(c)       At a different address in Christchurch sexually violating the same boy by anal penetration.
The appellant also pleaded guilty to a number of other offences. At trial he was acquitted of the sexual violation and indecent assault which had been alleged to have occurred at the first address named, but convicted on the other charge of sexual violation. He was sentenced to an effective term of 6 years imprisonment for all offending.
The appeal against conviction was advanced first, on the ground that a miscarriage of justice arose from the manner in which counsel conducted the defence; and secondly, that there was failure by the trial Judge to put the defence adequately to the jury. There was a sentence appeal which was of relevance only if the conviction appeal was successful.
The appellant who is in his fifties, had a continuing association with two young lads who shared his homosexual orientation. Both were under 16. The appellant pleaded guilty (as he had no option) to indecently assaulting both of them. In respect of the three counts at trial, on the two on which he was acquitted he had denied that any element of the offending had occurred. In respect of the count on which he was convicted he accepted the physical act of anal intercourse had occurred but denied that it had been non consensual.
The appellant filed a lengthy affidavit about the history of the matter including the history of his representation. His first counsel had handed the file onto another barrister because of some connection with someone involved.
The second counsel conducted the depositions hearing, but died prior to trial. A legal aid counsel was thereafter assigned and it is against his conduct of the case that complaint is made. We have had the benefit of not only the affidavit of the appellant about trial conduct issues but also an affidavit from his trial counsel.
This is not a case in which there is complaint made about lack of trial preparation or insufficient time being spent with the appellant prior to or during the trial. It is clear from that counsel spent an inordinate amount of time being briefed if not bombarded with material from the appellant.
We agree with Mr Pike that the complaints now raised about the charges upon which the appellant was acquitted have little relevance or bearing on the hearing of this appeal although we appreciate Mr Fournier’s submission that credibility questions can link the matters.
Specific complaint was made that trial counsel failed to sufficiently exploit variations between the testimony of the complainant at depositions and at the trial.
It is not to be overlooked that what was occurring was within the context of a count of sexual violation where there was admitted anal intercourse, with the sole issue being consent. The appellant gave evidence. He was able to ensure that the jury heard the degree of detail which he apparently considered was necessary to place before the jury.
There is no dispute as between counsel as to the appropriate standard to be applied in determining whether counsel error can give rise to a real possibility of injustice, R v Pointon [1985] 1 NZLR 109.
What is involved is a “radical mistake or blunder”; a situation where as a result of the failure, the defence was never really before the jury, R v McLoughlin [1985] 1 NZLR 106.
This Court also considered some of the issues raised by this appellant in R v Miers, CA 15/92, 1 December 1992, but the facts and circumstances of the two cases are so diverse that Miers is not helpful in the present context.
To make the required objective assessment of the position it is necessary to consider what was really in issue in the trial in light of the accommodation and arrangements which had been made. The real possibility of injustice is now said to arise out of the particular approach which counsel adopted to deal with the situation which had developed after the ambit of the trial had been substantially reduced. Initially there were 13 charges involving two complainants. During negotiations in connection with a s 347 application they were reduced to ten. It was upon that basis that counsel needed to prepare for trial.
Eventually the appellant pleaded guilty to two counts in relation to the other complainant and the remaining four counts in relation to him were not proceeded with.
With regard to the second complainant two counts were admitted at the commencement of the trial, two were not proceeded with, and the other three were involved in the trial. Although the focus is properly on those three counts their interrelationship with the other pleas of guilty cannot be ignored.
The crux however is whether the defence tactics and approach in respect of the sexual violation charge upon which he was convicted might have resulted in a miscarriage of justice.
The vigorous and careful manner in which counsel went about his task is demonstrated by the fact that he was able to obtain an order under 23A of the Evidence Act for leave to permit questioning of the two complainants about their sexual relationship with one another and with another person.
It is important also not to overlook the fact that counsel found the appellant continually in denial as to the appropriateness of his relationship with juvenile males. Both complainants were under 16. The acts of indecency with them could not be defended because consent could not be an issue. The fact that counsel found that the appellant was unable or unwilling to accept that what had occurred was socially unacceptable whether it was a crime or not did not make his task simple when having to deal with a jury.
On the one count which is of relevance there was no question but that the physical act had occurred. The sole question was consent and a reasonable belief in it by the appellant.
There was seen to be a difficult question as to whether the appellant would give evidence. No criticism sensibly is levelled at the manner in which the counsel dealt with this point. Eventually a decision was taken by the appellant that he would give evidence in an attempt to negate the complainant’s evidence that he had “effectively been raped.”
When a substantial mass of words is stripped away, the jury heard and saw the complainant and the appellant. There was no supporting evidence of any consequence but it is not to be ignored that in respect of the count on which he was convicted (as opposed to those upon which he was acquitted) there was evidence of complaint which the jury were able to accept as evidence of consistency.
It was submitted that there were four particular issues upon which the complainant was not effectively cross-examined. We however accept the submission of Mr Pike for the Crown that the highest that could possibly be said is, that there might have been greater emphasis on some points or further elucidation on others, but on crucial matters such as the prior inconsistent statement, counsel took the issues as far as they could be taken. At trial the complainant was vague about details. If he had been heavily taxed there was a real risk that the vagueness would dissipate and the precision of his prior statements would come before the jury.
Arguments about the timing of surrounding circumstances were at most of peripheral value. The issue of the timing of a trip to the lavatory during the occurrence of the anal intercourse interlude (like the very precise timing of the incident during the hours of darkness) was unlikely to have a decisive effect on the central issue of whether the Crown have proved beyond reasonable doubt that the complainant was not consenting and the appellant had no reasonable grounds for believing that he was. The more this complainant was pushed, the more likely it was that his evidence would strengthen and firm up. Some of that occurred at trial. It clearly indicated the prudence of economy which trial counsel adopted.
Specific complaint is made that in leading the evidence of the appellant at trial a number of matters were not developed. Again we are not satisfied that this falls into a Pointon error category. The attitude and approach of the appellant to his admitted behaviour was unlikely to be comprehensible let alone attractive to a jury. An endeavour to restrict matter to a narrow focus and concentrate on critical issues could not be said to be wrong. We are left with no doubt that the errors, submissions and failures referred to even when taken together, could not amount to “radical error in the conduct of the defence case” (R v H, CA 101/99, 17 May 1999).
The second point raised in respect of the conviction was that the Judge failed to adequately put the defence to the jury.
This was a trial that just ran into a second day.
The defence on the count upon which he was convicted was consent. The defence on the other two charges were that they did not occur.
A good deal was made of a comment by the Judge on sentencing with regard to the timing of the lavatory visit during the incident. With respect that issue on the totality of the evidence seems to be less clear cut than had been the case in the depositions. We agree with the Crown that the timing of that issue is in fact somewhat confused.
The determinations to be made by the jury at the trial could not have been more simple and straight forward. As this Court noted in R v Strickland, CA 151/96, 12 August 1996 what is required in summing up is dependant on the circumstances of the case. The Judge did not comment on the evidence from either perspective. No complaint is made as to his directions on the law or his isolation of the issues which they had to determine. In the circumstances we see no error in the approach which was adopted.
There was the need for an application for leave to appeal out of time. Bearing in mind the wide discretion which is granted (R v Knight [1997] 12 CRNZ 332) and the lack of objection by the Crown, we are satisfied that it was appropriate in the circumstances to hear the appeal. The sense of grievance which would have arisen in a refusal to grant leave would have been disproportionate.
There was indicated the possibility of an appeal against sentence but this only became effective if the appeal against conviction on the charge of sexual violation had succeeded. As we are dismissing that appeal the question does not arise.
For completeness it is to be noted that although there was 3 years imprisonment imposed in respect of the indecent assaults on one complainant and 2 years on the other, Mr Fournier’s approach that this could not be justified on the facts is not the sole issue.
The Judge imposed the sentences concurrently. He could have imposed individual sentences cumulatively. The issue is always what is the appropriate effective sentence for the total offending. Assuming that the sexual violation term of 6 years had not existed, we are satisfied that after very late pleas of guilty (as against charges to which there could never have been a defence) an effective sentence of 3 years imprisonment for four offences involving indecent assaults on two lads of 15, could not have been manifestly excessive.
Leave to appeal is granted.
The appeal against conviction is dismissed.
The issue of the appeal against sentence does not arise and this appeal against sentence is dismissed also.

SOLICITORS

Jeremy Daley, Harman & Co, Christchurch
Crown Law Office, Wellington

[2000] NZCA 51

17 May 2000