The Queen v Teina Pora
[2000] NZCA 233
•12 October 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA225/00 |
THE QUEEN
V
TEINA PORA
| Hearing: | 12 October 2000 |
| Coram: | Thomas J Blanchard J Tipping J |
| Appearances: | M J Dyhrberg and N S Leader for Appellant A R Burns for Crown |
| Judgment: | 12 October 2000 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
Teina Pora appeals his conviction for the rape and murder of Susan Burdett. The first ground is that the trial Judge ruled inadmissible relevant and allegedly crucial evidence, which related to the modus operandi of the alleged principal offender, Malcolm Rewa, and particularly the influence on it of an erectile dysfunction it is said Rewa may have been suffering from. It is said that because of this problem he preferred to operate alone and, on the occasion of Ms Burdett’s death, would not have been accompanied by others such as the appellant.
Secondly, it is said that the trial Judge allowed the Crown to recall a detective after he had already given evidence, in circumstances where this should not have occurred. This is said to have been prejudicial to the appellant as it allowed the Crown to clear up an inconsistency in the evidence which the appellant should have been able to rely upon.
As a result of these matters the appellant says that there has been a miscarriage of justice (s385(1)(c) of the Crimes Act 1961).
Background
On 25 March 1992, Ms Burdett was found dead in the bedroom of her home. She had been sexually violated. Semen was recovered from her body.
The appellant was interviewed by the police twice. He denied any involvement with the rape and murder of Ms Burdett. But when spoken to again almost a year later he volunteered the following:
· That he and two others had followed Ms Burdett home from a tenpin bowling alley on the night of her death.
· That he climbed into her house through the open bedroom window and let his two co-offenders into the unit through the front door, while Ms Burdett was in the shower.
· That he was present while the other two raped her and the fatal blows struck with a softball bat taken to the scene.
· That he physically restrained Ms Burdett while she was raped and encouraged her death by remarks to the effect that she should be killed.
However, DNA profiling of the two co-offenders referred to by the appellant showed that neither man could have been responsible for the semen recovered from Ms Burdett’s body.
In June 1994 the appellant was found guilty as a party to the murder and rape of Susan Burdett and the aggravated burglary of her home. The confession was central to the prosecution case at this trial.
In mid-1995 police established a link between Ms Burdett’s case and several other rape cases with an identical DNA profile, eventually traced to Mr Rewa. There were a number of striking features common to most examples of Mr Rewa’s offending, including the covering of the victim’s head or upper body so as to obscure her vision. In 19 of 27 cases of rape by Mr Rewa, he exhibited at least a degree of erectile dysfunction during the course of the violation. The evidence appeared to show that Mr Rewa was a lone offender. He was found guilty of offending relating to all complainants except Ms Burdett. In relation to her murder and rape, the jury was unable to agree. At retrial in December 1998 Mr Rewa was convicted of the rape of Ms Burdett, but the jury was again unable to agree on the murder count. The Crown has not sought a further trial.
In October 1999 this Court quashed the appellant’s convictions and ordered him to be retried. It did so on the ground that if the evidence of the DNA match to Mr Rewa and the distinctive characteristics of his offending been before the jury at the appellant’s trial in 1994, the jury might not have convicted him on the basis of his confession. The Court of Appeal observed that the evidence had been that Mr Rewa acted alone.
The appellant was retried earlier this year, and convicted once again.
Appellant’s Submissions
First Ground: Inadmissibility of evidence relating to Mr Rewa
At the appellant’s retrial, the trial Judge prohibited counsel for the appellant from eliciting any evidence of Mr Rewa’s modus operandi from Crown witness Detective Inspector Rutherford other than such as could be established from what was found or observed by police at the Burdett homicide scene. Any evidence of what was seen or heard by the other complainants against Mr Rewa was ruled inadmissible.
Counsel for the appellant submitted that this prevented her from questioning Detective Inspector Rutherford in relation to certain evidence from the previous trials of Mr Rewa, and in particular on the following matters:
· That in 19 cases Mr Rewa suffered from erectile dysfunction, in that he had difficulty in achieving or maintaining an erection whilst raping his victims;
· That Mr Rewa masturbated during 15 attacks to achieve or maintain an erection;
· That Mr Rewa had to position victims in a certain way in order to achieve penetration.
It was submitted for the appellant that his defence at his retrial was based on the following assertions:
· That his confession was unreliable, as it was deficient in relation to important details, and contained only such information as was already available in the news media; and
· That Mr Rewa was solely responsible for the rape and murder of Ms Burdett. He was a lone sexual predator and it was unlikely that he would have taken anyone else with him when he offended. This was said to be substantiated by the fact that Mr Rewa suffered from erectile dysfunction. Given this, it was unlikely that Mr Rewa would have wanted anyone present with him when he was engaged in raping his victims, including Ms Burdett.
It is said that the appellant’s inability to present the evidence of dysfunction hindered him in asserting that it was probable Mr Rewa acted alone. The jury was not in a position to appreciate fully why it was unlikely that anyone other than Mr Rewa was present when Ms Burdett was raped and murdered. However, counsel confirmed that the question of dysfunction was never actually raised with the Judge. She said that it should have been and that the appellant should not be prejudiced by her failure to do so.
Second Ground: Re-calling of the detective
In a job-sheet prepared on 2 April 1992, Detective Sergeant Grimstone recorded tests conducted on the main bedroom window of Ms Burdett’s residence with a view to ascertaining whether it was a feasible point of entry (i.e. whether it was possible to climb through this window without touching or marking any surfaces, no marks of entry having been found). The job sheet recorded that this exercise was conducted three times and was found to be “virtually impossible”. Yet in his statement, the appellant had said that one of the points of entry was the bedroom window.
At the appellant’s first trial, however, Detective Sergeant Grimstone gave evidence that he had in fact successfully carried out the exercise. According to him, it was possible to enter only when using certain outside furniture to help him up; but he also stated that this was the obvious way of climbing in.
At the retrial of Mr Pora, the Crown elected not to question Detective Sergeant Grimstone on this experiment when he gave evidence, but led this evidence through Detective Inspector Rutherford and a Dr Harbison. As a result of certain matters raised in cross-examination the Crown sought to recall Detective Sergeant Grimstone to clarify inconsistencies revealed in Detective Inspector Rutherford’s evidence. The trial Judge allowed this. His Honour held that there would be no prejudice from recalling Detective Sergeant Grimstone as everyone would be able to get the “full picture.”
The appellant submitted that the Crown’s sole purpose in recalling Detective Sergeant Grimstone was simply to correct the inconsistency created by its own decision not to adduce this evidence earlier and that the Judge erred in exercising his discretion to enable this to be done; that his decision was prejudicial to the appellant, as it allowed the Crown to remedy a crucial inconsistency concerning the confession which the defence could have expected to be able to rely upon.
Crown’s Submissions
First Ground: Inadmissibility of evidence relating to Mr Rewa
The Crown submitted that counsel for the appellant had indicated prior to trial that the defence was not seeking to contend that it was impossible for Mr Rewa to have committed the rape in the presence of others due to his dysfunction. No specific questions were asked in respect of erectile dysfunction; and dysfunction was never expressly put to the Judge as something on which the defence wished to cross-examine. The lack of evidence on erectile dysfunction did not prevent counsel for the appellant from suggesting to the jury that Mr Rewa always operated alone.
The Crown also said that there was no evidential support for the appellant’s assertion that Mr Rewa would not rape in the presence of others because of embarrassment about sexual dysfunction. The appellant’s assertion about dysfunction, and its possible effects on his methods, was said therefore to be merely conjecture.
Second Ground: Re-calling of the detective
For the Crown it is said that the authorities cited by the appellant in written submissions relate to the situation where it is sought to recall a witness after the close of the prosecution case (and sometimes after the close of the defence case). Here, the prosecution had not closed its case. At any rate, the Crown submits that the test set out in R v Nash[1958] NZLR 314 must be correct: that the power to call a witness is a discretionary power which cannot be interfered with by the Court of Appeal unless it should appear that a real injustice has resulted.
There was no injustice. The defence itself invited the recall of Detective Sergeant Grimstone by putting matters to Detective Inspector Rutherford of which he had no knowledge. There was no unfair consequence to the appellant resulting from the clarification provided by Detective Sergeant Grimstone.
Conclusions
First Ground: Inadmissibility of evidence relating to Mr Rewa
The defence was that Mr Rewa attacked Ms Burdett and was operating alone when he did so. The theory that he would not have committed the rape in the company of other offenders because he had a sexual dysfunction is not supported by any evidence. It is no more than conjecture.
On the other hand, there was actually some evidence to suggest that an associate may have been present when some of Mr Rewa’s attacks took place. Detective Inspector Rutherford said that one way Mr Rewa got control of his victims whose children were present in the home was by telling them that either he or his partner/associate would hurt the children if they did not submit. In the Rewa “crime chart” in the appellant’s own submissions there is a reference to a complainant saying that during his attack on her Mr Rewa sounded as if he was speaking to someone else in Polynesian (although there was no reply and the complainant heard no one else).
At any rate, the appellant was not unreasonably prevented from eliciting clearly cogent evidence which his counsel had indicated a wish to call. The Judge’s ruling that evidence relating to Mr Rewa and the other complainants could be given only insofar as it related to the scene found by police at Ms Burdett’s home was reasonable because it limited the evidence about Mr Rewa to that which appeared to be directly relevant to the violence on Ms Burdett. The appellant cannot complain about the ruling’s limiting effect on the material now in issue when it was never mentioned to the Judge. And in any event the Judge did permit some questioning outside of the ruling.
Ms Dyhrberg has candidly said that she must take responsibility for the failure to raise the matter with the Judge and that the error could be described as a radical one. For the reasons which follow we do not think that if there was error in this respect, it was at all critical to the result of the trial.
We are satisfied that the defence theory was both conjectural and unlikely, in view of the other evidence, to have had any real influence on the verdict. First and foremost, there was the confession, although its force was somewhat weakened by evidence tending to suggest that elements of it might be untrue (e.g. that he said he went to the property in a stolen car, when police could find no records of the car he described being stolen; that he went with two named associates, when one of them was in prison at the time of the offence and that DNA evidence clearly excluded the two associates from any involvement in the rape of Ms Burdett).
But, in addition to the confession, there was other evidence implicating the appellant in the offending relating to Ms Burdett. For example there was evidence from his cousin, that:
The appellant admitted to her over the phone that he “did it” (i.e. the offending in relation to Ms Burdett);
That when she asked the appellant if he had “knifed the old lady” he had said “Nah it’s worse than that”;
That the appellant stated he had given a camera “like” the one stolen from Ms Burdett to “Uncle John”;
That the appellant stated that he had had a bowling trophy (Ms Burdett had had several in her home) and had thrown it into “the water”;
That the appellant told her the Mongrel Mob made him follow Ms Burdett home, because they wanted to get back at her for threatening to “call the cops” when members of the gang caused a disturbance at her property.
That soon after the murder she had twice seen the appellant’s sister wearing earrings of a description which appears very much like those which a photograph shows Ms Burdett wearing.
Importantly also, there was evidence from other persons of an association between the appellant and Mr Rewa.
Second Ground: Re-calling of the detective
Although the further evidence of Detective Sergeant Grimstone was called at the end of the Crown’s case, the Crown had not yet closed its case. The authorities governing the ability of a party which has closed its case to call additional evidence therefore did not apply.
There was nothing unfair about the calling of the further evidence. The defence had not signalled any intention to ask about the matter when the detective gave his evidence. It then chose to question Mr Rutherford on that subject. He had not personally carried out the test. In fairness, the Crown sought and obtained the opportunity of having Mr Grimstone clarify the point. That can hardly have given rise to a miscarriage of justice, even if it did deny the defence an inconsistency to exploit before the jury.
Result
Neither alone nor in combination do these matters give rise to a concern about the jury’s verdict. The appeal is therefore dismissed.
Solicitors
M J Dyhrberg, Auckland for Appellant
Crown Solicitor, Auckland
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