The Queen v Stewart Malcolm Rolton

Publication of names or identifying particulars of complainants prohibited by s 139, Criminal Justice Act 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA257/00

THE QUEEN

STEWART MALCOLM ROLTON

Hearing:	31 October 2000
Coram:	Gault J Anderson J Penlington J
Appearances:	S J Hembrow for Appellant J A Farish for Crown
Judgment:	6 November 2000

JUDGMENT OF THE COURT DELIVERED BY PENLINGTON J

This is an application for leave to appeal against conviction in a sexual case. There were three complainants – the appellant’s daughter, “X”; and two of her friends, “Y” and “Z”.
In respect of his daughter, who was 14 and 15 years old at the relevant times, the appellant was charged with four counts of sexual violation by rape, one count of attempted sexual violation, and eight counts of sexual violation by unlawful sexual connection. As an alternative to these counts he was charged with a single but representative count of incest. He also faced two counts of indecent assault, one of Y and the other of Z.
On arraignment the appellant pleaded guilty to the incest count and not guilty to the other counts.
The appellant was convicted on all the counts to which he pleaded not guilty, except one count of sexual violation by unlawful sexual connection in respect of X upon which he was discharged.
The Crown case rested on a number of incidents involving sexual activity between the appellant and X which occurred between early 1998 and late August 1999. The appellant had separated from his wife in the early 1990’s. In the first half of 1998 the appellant took his 14 year old daughter to Kaikoura on a motor cycle. The appellant pulled up at a paddock without any houses nearby and there had sexual intercourse with X. The Crown case was that this was rape. Under cross-examination X denied that she consented.
While X was still aged 14 years the appellant took her to a motor cycle rally in Waiau in North Canterbury. Originally it was intended that the girl should sleep in one tent and the appellant in another. The appellant, however, told X that there were two people with big beards and that they were going to come in and have sex with her. This distressed her and she slept in the appellant’s tent. During the night she awoke to find the appellant on top of her and that he had penetrated her vagina with his penis. When X said “no” the appellant told her to shut up and he put his hand on her throat. He then told her that if she did not shut up he would knock her out. This incident gave rise to another charge of sexual violation by rape.
On the following morning the appellant again tried to have sexual intercourse with X but was unsuccessful. This founded the charge of attempted sexual violation by rape.
Lastly there were a number of incidents at the appellant’s Christchurch home on the night of 20-21 August 1999. X lived there with the appellant.
X’s two girlfriends, Y and Z, had come to stay that night. Both of them, like X, were then aged 15 years. The appellant brought three adult friends to the house and there was a considerable amount of drinking by all of them. The Crown case was that during the course of the evening the appellant, first in the sunroom and later in his own bedroom, raped X and had sexual connection with her by means of oral sex, penile and digital penetration of her anus, digital penetration of her vagina, and penetration by means of a plastic penis of her vagina.
At one stage after the appellant had put his penis in X’s vagina, according to X, the appellant told her to “take Y’s pants off”. When X refused, the appellant said that he would “put his penis or dick up her bum”.
Y gave confirmatory evidence of the appellant taking X on the first occasion from her bedroom, and X returning to her bedroom in a distressed state about half an hour later. She also gave evidence of the appellant dragging X away on a second occasion, hearing X saying that it hurt, the appellant saying “turn over and we’ll try it this way”, and X returning to her bedroom again in a distressed state. Y said that at this point she told X “it’s not right, it’s not normal” and that she should do something about it. Later in the morning X went with Y to the latter’s place where Y’s father was informed and the police were subsequently notified.
Additionally, during the same night, the Crown case was that Y and Z were indecently assaulted by the appellant. In the case of Z, earlier in the evening she had gone off with her boyfriend to the city. On her return to the appellant’s house, according to her, he had threatened to telephone her brother unless she slept with him. She said that she did not want her brother to know that she had been out with her boyfriend and she gave the appellant a false telephone number. She alleged that a little later the appellant touched her vagina and breasts. In the case of Y she alleged that the appellant pulled the covers off her bed and tried to unzip her jeans.
After the police had been notified by all three complainants, the appellant was located. He relied on the right to silence and did not make a statement. At the trial he did not call or give evidence.
The essential issues on the charges relating to X were an absence of consent on her part and an absence of a reasonable belief on the part of the appellant that she was consenting; and in relation to the two charges of indecent assault concerning Y and Z whether the assaults occurred or not.
The Crown case was that X did not consent and that the circumstances were consistent with an absence of consent on the part of X and a want of belief on reasonable grounds on the part of the appellant that she was consenting. In particular, the Crown relied on the appellant’s age at the time of the events; the father/daughter relationship; the absence of a mother figure; and the absence of any other place to which X could go to live to avoid being with her father. The Crown also pointed to confirming evidence from Y, to which reference is set out above.
The Crown’s case in respect of Y and Z depended on those two complainants, and in the case of Z as well some observation evidence by one of the adult guests who had stayed the night at the appellant’s home.
After the trial and before sentence, the appellant dismissed his trial counsel, Mr Bunce. Fresh counsel, Mr Hembrow, was assigned. The latter subsequently appeared for the appellant on sentence and before us in support of the appeal.
In the appellant’s notice of application for leave to appeal he attacked the conduct of his trial counsel. The appellant asserted that he wanted to give evidence; that he was advised by Mr Bunce not to do so; that he was overborne by his counsel; and that ultimately he agreed not to give evidence. He also pleaded that he instructed his counsel to call two named persons to give evidence and that his counsel did not do so. On the basis of these matters he asserted that the trial was unfair and that a new trial should be granted. Here it is to be noted that the complaint concerning the non calling of the two named persons was not pursued in the appellant’s points on appeal.
The appellant gave the Crown a waiver of privilege in relation to Mr Bunce. Subsequently the appellant filed an affidavit concerning the conduct of Mr Bunce, and the Crown filed an affidavit from Mr Bunce in reply.
Ultimately, at the hearing of the appeal, three complaints were pursued. It was contended that individually and collectively they resulted in a miscarriage of justice. They were:-
[i]That trial counsel, Mr Bunce, failed to follow the appellant’s instructions that he wished to give evidence.
[ii]That Mr Bunce failed to cross-examine the complainants effectively and to confront them with the proposition that their evidence was fabricated.
[iii]That the trial Judge made a comment in his summing-up relating to a contention made by defence counsel in his address to the jury which amounted to an expression of incredulity on his part and a suggestion that the defence was nonsensical.
We now deal with each of the complaints in turn.

Failing to follow instructions to call the appellant

As the result of the contents of Mr Bunce’s affidavit, this ground was not pursued. Mr Hembrow acknowledged that up until the end of the trial the appellant did not specifically instruct counsel that he wanted to give evidence and had accepted counsel’s advice not to. We therefore do not consider this complaint any further.

Failure to cross-examine the complainants effectively

Mr Bunce extensively cross-examined all three complainants. Mr Hembrow in his written submissions made a number of specific complaints about Mr Bunce’s cross-examination, namely:-
[i]That he did not ask X as to the reason why she would make a false allegation.
[ii]That she was not challenged as to her confirming evidence in relation to the indecent assault on Y (the reported remark of the appellant to X that she should remove Y’s pants).
[iii]That apart from a challenge to X’s evidence as to an absence of consent in respect of the Kaikoura incident (which was rebuffed by X), there was no other cross-examination in relation to the absence of consent in respect of the other incidents.
[iv]That there was an insufficiency of cross-examination as to the allegation of violence at Waiau.
And as to the other complainants, Y and Z, Mr Hembrow contended that trial counsel did not challenge either complainant as to the physical acts alleged by them, and that that occasioned a comment by the trial Judge in his summing-up to that effect.
Counsel for the Crown in her written submissions closely analysed the cross-examination of X which covered the following matters:-
[i]X was challenged on her ability to reliably recall;
[ii]The consistency of her complaints;
[iii]The lack of complaint at an early stage;
[iv]The absence of any outward signs of fear or trauma;
[v]Her continuing residence with the appellant;
[vi]Her continuing accompaniment of the appellant on motor cycle rally trips;
[vii]Her acknowledgement that she had the ability to stop and prevent the physical acts from occurring; and
[viii]Her knowledge that the acts were wrong.
Counsel for the Crown submitted that the cross-examination of trial counsel clearly showed a tactical decision to run the case on the basis that X consented or that it was reasonably possible that she consented, albeit reluctantly. Counsel emphasised, having regard to the appellant’s affidavit and Mr Bunce’s affidavit in this Court, that trial counsel was not provided with any instructions to cross-examine X in a different way, nor was he directed to put any particular matters to her. And finally, it was submitted that the appellant has not indicated, even now, the matters upon which counsel was instructed on and did not put.
And as to both Y and Z, it was submitted for the Crown that they were adequately cross-examined.
In the course of Mr Hembrow’s oral submissions he urged the view that Mr Bunce ought to have – but in the event did not – adopt “a robust approach” to the cross-examination of X and of the other two complainants, Y and Z. He contended that the absence of any explanation to the police and the tactical decision not to call evidence required such an approach. Mr Hembrow was ultimately obliged, however, to concede that Mr Bunce had real difficulties in his conduct of the appellant’s defence because of the absence of precise instructions from the appellant and the latter’s reticent and uncommunicative attitudes.
We have carefully read the transcript of the cross-examination of the three complainants and the affidavits of the appellant and Mr Bunce. Notwithstanding the careful submissions of Mr Hembrow, we have reached the clear conclusion that Mr Bunce cannot fairly be criticised, in the situation which confronted him, for advising the appellant not to give evidence and for cross-examining in the way that he did.
We agree with the submission of Crown counsel that even now on this appeal the appellant has not put forward any specific matters upon which Mr Bunce should have cross-examined the complainant X as to want of consent on her part or as to the possibility of a belief on reasonable grounds on the part of the appellant that she was consenting. Likewise, even now the appellant has not put forward any specific matters which would have enabled Mr Bunce to challenge Y and Z directly as to the veracity of their assertion that these assaults took place.
Cross-examination of a complainant in a sexual case depends on the particular circumstances of the case, the attitudes and demeanour of the complainant in the witness box, the complainant’s emotional state when giving evidence, and other matters of that kind. It is very much a matter of style and judgment. The cross-examination must be crafted by counsel to the case in hand. We observe that for a trial counsel to cross-examine effectively, he or she must be provided with a factual basis for cross-examination. In the absence of relevant matters being communicated to counsel, the latter is severely limited in the conduct of that cross-examination and indeed the defence as a whole.
We are satisfied that Mr Bunce’s cross-examination did not occasion a miscarriage of justice and this complaint must therefore fail.

The Judge’s comment

The passage under attack was as follows:-
Well, I suppose that is possible. Anything in life is possible. It is possible, for example, that Martians might after all land in Hagley Park, but in this case, is this reasonably possible? I ask you to adopt a common sense approach when approaching that issue.
Before the Judge made this comment he had summarised, first, the case for the Crown in respect of X as put to the jury by Crown counsel and then the case for the defence as put by Mr Bunce.
Mr Hembrow submitted that the passage in question could be interpreted as an expression by the Judge of incredulity as to the defence of want of consent in relation to X and that the Judge’s words could be interpreted as a suggestion by him that the defence was nonsensical.
The Crown’s submission, on the other hand, was that the comment had to be seen in context. It was preceded by:-
Further, it is his submission that on the 21^st of August X found herself in the company of two friends, one of whom had seriously challenged her about what was going on in the house, and that in order to protect herself X has now embellished matters into rape and unlawful sexual connection. You might think, members of the jury, that that seems to be the central thrust of the defence case.

And followed by:-

It is Mr Bunce’s submission overall then that sufficient doubts have been raised, it is reasonably possible that she was consenting and you should find him not guilty of all of those charges.

Given that context, it was submitted for the Crown, the comment was appropriate “albeit colourful”.
Crown counsel confirmed before us that in Mr Bunce’s final address he had stressed that once Y knew about what was happening to her at the hands of her father she urged X to do something about it; that X was embarrassed as to what had happened to her; and that there was therefore a possibility that X had falsely embellished her story for the purposes of self protection.
It is clear to us from a reading of the transcript that Mr Bunce’s “embellishment” submission to the jury was without any evidential foundation. The suggestion was not put to X under cross-examination. It was therefore mere speculation. In these circumstances we consider that the Judge was entitled to make a comment on Mr Bunce’s submission, although his manner of expression is not one to be encouraged. Having made that criticism, we do not consider that Mr Hembrow’s present submission is made out. In our opinion the comment must be seen in the context of the whole of the summing-up, and in particular the paragraphs before and after the one under attack. In our opinion there was no risk that the words under attack occasioned a miscarriage of justice. This ground must therefore fail.
None of the three grounds of complaint has been made out. In our view there was not a miscarriage of justice. The appeal is dismissed.

Solicitors:
Young Hunter, Christchurch, for Appellant
Crown Solicitor, Christchurch

[2000] NZCA 313

6 November 2000