The Queen v Thomas Charlie Mani
[2001] NZCA 33
•22 February 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 240/00 |
THE QUEEN
V
THOMAS CHARLIE MANI
| Hearing: | 20 February 2001 |
| Coram: | Gault J Robertson J Potter J |
| Appearances: | P T Birks for Appellant J C Pike for Crown |
| Judgment: | 22 February 2001 |
| JUDGMENT OF THE COURT DELIVERED BY POTTER J |
Thomas Charlie Mani appeals against conviction and sentence. He also makes application to adduce further evidence on the appeal.
Thomas Mani was found guilty following trial by jury of a charge that on 2 May 1999 at Rotorua, he sexually violated U by raping her. Following conviction on 31 May 2000 he was sentenced on 29 June 2000 to 8 years imprisonment.
The written submissions of the appellant addressed only the application to adduce further evidence on the appeal. Mr Birks for the appellant, accepted that if that application was not successful there were no grounds on which to pursue the appeals against conviction and sentence.
The Crown filed submissions in relation to the appeals, but apparently the Crown had not been served with or advised of, the application to adduce evidence. Mr Pike made oral submissions to the Court.
Factual background
The appellant is the uncle of the complainant. The complainant is a grown woman and mother. On 1 May 1999, they had both been drinking at a party. The appellant had been drinking all day. The complainant missed her ride home and the appellant suggested that she come back and stay at his house. There is only one bed at the appellant’s house and they shared it. The complainant’s evidence was that she woke up during the night to find the appellant having sex with her. She struggled out from beneath him and went and sought help from a neighbour. She told her family the next day.
Application to adduce evidence by affidavit on appeal
The appellant seeks to adduce evidence from Tautahi Prince Jimialle Morunga. Mr Morunga’s evidence as set out in his affidavit sworn 16 October 2000, relates to events on a Friday night at the end of October 1998.
He states that a group of people including the appellant and the complainant gathered at his place for a few drinks. Drinking started after work at about 4 to 5 pm and went on until 7 pm. The appellant and the complainant danced together “and she danced with him touching his legs and moving as if having sex with him.” The group then moved onto the appellant’s house at Ngongotaha; the appellant and the complainant were in the back seat of the car in which they travelled. He states “I noticed that the complainant had her legs over the appellant’s legs and was touching him. I could not see where she was touching him, I thought this was odd and as I didn’t want to be seen to be too obvious, I didn’t make a point of staring at them.” The appellant and the complainant stayed in the back of the car when they arrived at the appellant’s house at Ngongotaha. He asked the appellant to come inside. The complainant told him to go away. She had her legs on the appellant’s lap and was holding onto his shoulder. He went into the house but was concerned about the situation: “Their manner was more than that of uncle and niece”. So after a short time he went back to the car and pulled the appellant out. The complainant’s legs were still on the appellant’s lap but he could not see her hands.
In the house they had something to eat and the appellant and complainant got up and danced again. “She grabbed him by the waist, held her body close to him front to front, body was going up and down on him and they were kissing.” The other person then present went to sleep. The deponent pretended to be asleep. The appellant and the complainant continued dancing. The complainant then turned off the radio. He heard her say “come on uncle.” He heard them go into the room (presumably a room off the lounge where the group had been). He states, “From the noises that come from the room it was obvious to me that some sort of sexual encounter was going on. I didn’t really know what to do so I lay there still pretending to be asleep, I was embarrassed.” After that the complainant came to him and told him she wanted to go back to her home and he walked with her to where she stayed.
The appellant’s affidavit filed in support of his application, states that he did not tell his lawyer before or during the trial of the ongoing relationship with the complainant because he was “whakama” (ashamed). He was not aware that anyone else was aware of the relationship until after trial and conviction. He seeks leave to adduce the evidence of Tautahi Morunga on the grounds that it goes to consent, and was evidence that could not be given in the jury trial.
Mr Birks, counsel for the appellant, acknowledged that prior to trial the appellant was asked if he had had any sexual relationship with the complainant and denied it. Counsel also questioned immediate family but none had any knowledge.
The appellant went voluntarily to the police following the complaint and gave three video interviews, on the 2, 3 and 6 May 1999. In those video interviews he gave essentially three versions of the events of 1/2 May 1999 in relation to the complainant. In the first he denied that the complainant was at his house at all when she alleges the rape took place. In the second, he describes sex taking place with the complainant on top of him and that it was “against my will and her will”. In the third, he says he woke to find the complainant on top of him with nothing on and having sex with him.
However in all three videos his description of the relationship between him and the complainant is essentially consistent.
¨ Video one - “I am very close to her, being my sister’s daughter. I am very close to her you know. I might as well say she is my daughter also and that is how close I am to U.”
¨ Video two – “I’ve got a strong relationship with U ... and she’s also got a strong relationship with me. That’s how things went on. We drink together, we party together and ... “. He agreed that it was like a father/daughter relationship.
¨ Video three – “Well my sister – because their daughters always drink with me and they trust me that lot. I’m the girls’ uncle and the girls trust me the same as my sister.”
Under s 389(1)(b) the Court may consider new evidence if it considers it necessary or expedient in the interests of justice.
The principles which govern the exercise of the Court’s discretion to admit new evidence are well established and arise from decisions including R v Barr (Alistair) [1973] 2 NZLR 95, R v Barker [1976] 1 NZLR 419, R v Cassidy [1995] 3 NZLR 184, R v Makata (CA 533/94, 28 September 1995), R v Zachan (CA 304/94, 17 August 1995) (as cited in R v Collier (1996) 14 CRNZ 439).
[a] The evidence must be fresh in the sense that it was not available at trial.
[b] The evidence must be cogent in the sense that if presented at trial along with the other evidence in the case, it may have raised a reasonable doubt as to guilt.
[c] The evidence must be credible.
[d] In the circumstances it is in the interests of justice for the Court to exercise its discretion to admit the evidence.
Is this fresh evidence?
The appellant submitted that he did not know of Mr Morunga’s evidence before the trial, and had not advised his counsel before or during the trial about what he now claims was an ongoing relationship with his niece, the complainant, because of “whakama” or “hakama”, meaning shame or abasement. Counsel stressed that “whakama” or “hakama” is a concept that relates to the extended family unit rather than to an individual.
We do not accept that submission. First, the appellant must have known of Mr Morunga’s presence during the events Mr Morunga describes in late October 1998. With the exercise of reasonable diligence, the appellant could have sought from Mr Morunga for the purposes of trial, the evidence he now seeks to adduce. Secondly, the shame for the family the appellant claims led him not to reveal the ongoing relationship with his niece, is difficult to accept when he was prepared in the third video interview to describe his niece indecently assaulting him and in effect, forcing sexual intercourse upon him. The appellant’s firm assertions in three video interviews that his relationship with the complainant was like that of father/daughter, (contrary to the evidence the appellant now seeks to adduce), might be explicable as an attempt to protect the complainant and the wider family because such a relationship between uncle and niece would be regarded as shameful, if it were not that by the third video interview, he was prepared to implicate the complainant in these events, in the way he did.
Is the evidence cogent?
Mr Morunga’s evidence is of events on a single night approximately 6 months prior to the alleged offending. Mr Morunga relies on sounds he says he heard from an adjoining room to infer sexual activity between the complainant and the appellant. The evidence is not of an ongoing relationship between the two. Assuming Mr Morunga’s evidence were accepted as credible, it does not provide a proper basis from which the inference could be drawn that because the complainant willingly participated in some sort of sexual activity at the end of October 1998, she consented to sexual intercourse with the appellant in May the following year. Nor can it be said to corroborate other evidence, as the appellant submitted. There was no evidence at trial of an ongoing sexual relationship between the two. The appellant was at pains to clarify the nature of the relationship as akin to a father/daughter relationship in three separate video interviews; the complainant when asked in evidence in chief how she got on with the appellant, replied, “Oh, we got on well, he was one of my favourite Uncles, was, not any more”. Then asked whether she had ever had sex with the appellant before, she responded, “With Tom? ... No, why would I wanna do it to him, I’ve trusted him, he’s my Uncle, I would never do that to him.” The complainant was not cross-examined about her relationship with the appellant, presumably because the account she gave was consistent with the account the appellant gave.
Conclusions
The evidence the appellant seeks to adduce as to his relationship with the complainant, is in our view indicative of the appellant now wishing to present his defence to the charge in a different way following conviction. It is not open to him to do so. The evidence is neither fresh nor cogent. It is unnecessary for the Court to determine whether it meets the test of being credible.
We are satisfied that it is not appropriate to exercise the Court’s discretion to admit the evidence. The appellant’s application is declined.
The application to adduce the further evidence of Mr Morunga having failed, there are no grounds upon which the appeal against conviction can succeed as counsel for the appellant acknowledged. The appeal against sentence was not pursued. Both appeals are dismissed.
Solicitors:
Crown Law Office, Wellington
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