The Queen v William Peter Stephens

[2003] NZCA 57

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 455/02

THE QUEEN

v

WILLIAM PETER STEPHENS

Hearing:26 February 2003

Coram:Tipping J
McGrath J
Anderson J

Appearances:  B J Horsley for Crown

C J Tennet for Respondent

Judgment:24 March 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the Appeal

[1]       This is a Crown appeal by way of Case Stated on a question of law reserved, pursuant to s380 of the Crimes Act 1961, during the trial of the respondent in the High Court.

[2]       The respondent was arraigned on an indictment containing four counts of alleged sexual offending against a boy, between June 1997 and August 2001.  On 18 August 1997 certain conduct between the respondent and the boy was brought to the notice of the Henderson Police in response to which a member of the Child Abuse Team, Mr Tamatea, went to the respondent’s address to speak with him.  He administered a short caution and advised the respondent of his rights pursuant to the New Zealand Bill of Rights Act.  There followed a discussion in the course of which the respondent admitted that he had, on three or four occasions, touched the boy’s penis over his trousers.  He denied conduct of a more serious nature, but admitted that in order to get his own way with the child he made what can only be construed as threats relating to the vulnerability of the child and his mother to being removed from New Zealand to the country from which they had emigrated.

[3]       At that stage no complaint had been made by or on behalf of the boy and the respondent’s admissions did not prompt a prosecution.  Instead the Police referred the matter to the Children, Young Persons and Their Family Service.  A complaint was not made until four years later when the boy’s mother, according to her evidence at trial, observed conduct between the respondent and her son. 

[4]       The respondent was arrested and remanded to a depositions hearing on 19 July 2002.  Following committal he was remanded to call-over in the High Court at Auckland on 28 August and further remanded for trial on 18 November.  A pre-trial application was scheduled for 22 October, but the matters in issue were resolved by counsel for the Crown and the respondent.

[5]       In the course of preparing for trial counsel for the respondent decided that the respondent’s intellectual capacity warranted expert assessment.  He referred his client to Dr Susan Shaw, a neuropsychologist.  In a written report dated 1 November 2002 Dr Shaw advised that formal psychometric assessment of the respondent’s intellectual abilities placed him within the “borderline impaired” to “extremely low” range of the scale.  In her opinion the respondent’s intellectual difficulties made him very vulnerable to being taken advantage of and that he also appeared to suffer a mild psychiatric condition exacerbated by psychological stress. 

[6]       Counsel for the respondent decided that the neuropsychologist’s evidence was potentially helpful to the defence theory of the case, aspects of which we need not detail for the purposes of this judgment.  Anticipating that reliance on such evidence might raise issues of rebuttal, counsel considered it appropriate to disclose Dr Shaw’s report to the Court and the Crown.  This led to the report being placed on the Court file and read by the Judge assigned to the trial. 

[7]       About a week before trial counsel for the respondent came to the view that he ought challenge the admissibility of the evidence of Mr Tamatea whom the Crown intended to call to prove the fact and nature of the respondent’s admissions in August 1997.  Because of the proximity of the trial and for logistical reasons relating to the respondent, it was arranged that the impugned evidence should be heard on a voir dire on the morning of trial after the jury had been empanelled and the respondent put in charge.  Such inconvenient timing is usually obviated by recourse to the pre-trial procedure under s344A of the Crimes Act 1961, but this is one of the now fortunately rare cases where issues of admissibility arise improvidently close to or in the course of trial. 

[8]       In a wide-ranging cross-examination counsel for the respondent touched on the question of his client’s intellectual capacity but there was nothing in the voir dire which could possibly be regarded as an evidential basis for exclusion for reasons related to intellectual capacity.  Nevertheless the Judge ruled that the evidence was inadmissible for two basic reasons.  The first was a perception of unfair prejudice arising from some of the circumstances giving rise to the Police interest in the respondent in 1997.  The second was expressed by the Judge in the following terms:

by reason of the accused’s particular situation, I am not satisfied beyond reasonable doubt that the admission could be in the true sense of the word, be necessarily regarded as a voluntary one.

[9]       The terms of the Judge’s decision indicated that he was aware of the contents of the neuropsychological report and was bringing it into account.  In fact, however, the Crown had not agreed to the admission of the report for such purposes and would have wished to test it before the Court should place any reliance on it.  As the Judge notes in the case stated:

I had understood that there would be no objection to the contents of the report being accepted … I accept, however, that I may have been wrong in this assumption.

[10]     Counsel representing the Crown at trial (not present counsel) did not immediately draw to the Judge’s attention that the ruling had been made on an inappropriate basis.  No doubt counsel wished to consider the matter and take advice on it.  But later in the trial, when the jury had retired to consider its verdicts, counsel did draw the matter to the Judge’s attention and asked him to reserve a question of law for the opinion of this Court.  The Judge agreed to do so.  The jury subsequently returned with the verdicts of acquittal on all counts.  The question settled in the Case Stated is in the following terms:

Was I right to find admissions were not voluntary due to the accused not being able to comprehend the caution when no evidence as to his intellect or lack of comprehension was presented during this s344A application?

[11]     Of course the answer to the question must inevitably be in the negative.  Accordingly both counsel marshalled their arguments to the crucial consequential issue whether this Court should set aside the acquittals and direct a new trial. 

[12]     By virtue of s382(2) of the Crimes Act, this Court can deal with an appeal on a question of law by way of Case Stated in the following ways:

(2)  Upon the hearing of any appeal under the foregoing provisions of this Part of this Act, other than section 379A, the Court of Appeal may—

(a)     Confirm the ruling appealed from; or
(b)     If of opinion that the ruling was erroneous, and that there has been a mistrial in consequence, direct a new trial; or
(c)     If it considers the sentence erroneous or the arrest of judgment erroneous, pass such a sentence as ought to have been passed, or set aside any sentence passed by the Court below, and remit the case to the Court below with a direction to pass the proper sentence; or
(d)     If of opinion, where the accused has been convicted, that the ruling was erroneous, and that the accused ought to have been acquitted, order that the conviction be set aside, which order shall be deemed to be an acquittal; or
(e)     In any case, whether the appeal is on behalf of the prosecutor or of the accused, direct a new trial; or
(f)     Make such other order as justice requires:

Provided that no conviction or acquittal shall be set aside, nor any new trial directed, although it appears that some evidence was improperly admitted or rejected, or that something not according to law was done at the trial, or some misdirection given, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage of justice was thereby occasioned on the trial:

[13]     The power to order a new trial even after acquittal is consonant with s380(4) which provides that if the result of the trial is acquittal the accused shall be discharged, subject to being again arrested if the Court of Appeal orders a new trial.

Crown arguments

[14]     The Crown relies on s382(2)(e).  Underpinning its case is the assumption that Mr Tamatea’s evidence is admissible and, on the evidence before the High Court, should have been admitted.  It was therefore wrongly excluded by the Judge from the jury’s consideration and if it had not been there would have been a high likelihood of conviction on all counts in the indictment.  Although such counts included more serious sexual offending than the mere indecent touching over clothing admitted by the respondent, the admissions as a whole were significantly probative in respect of all of the counts.  This is because they were confirmatory both of an indecent interest in and conduct with the complainant, as the boy alleged, and also of the child’s evidence that the respondent had induced with gifts and threatened in relation to immigration matters.  Counsel further submitted that the offending was of a serious nature and the fortuitous exclusion of evidence, the admission of which would have raised a real prospect of conviction, amounted to a substantial miscarriage of justice as required by the first proviso to s382(2).

[15]     Counsel submitted that the appropriate test was that adopted by this Court in R v McFarlane (1995) 13 CRNZ 354 which is whether the Court is satisfied that there is a sufficiently real prospect that the jury would have convicted if the Judge had ruled the evidence admissible and that such prospect would warrant the accused being required to stand trial again.  That test was itself extracted from this Court’s observation in R v Frame CA 42/74, 7 August 1974 as follows:

We do not attempt to lay down a formula applicable in all cases but for the purposes of the present case we accept that the test suggested by Mr Williamson is a fair and satisfactory approach.  So we ask ourselves whether we are satisfied that there is a sufficiently real prospect that the jury would have convicted (if the Judge had himself ruled on the question of admissibility of the complaint) to warrant the respondent being required to stand trial again on the same evidence as that on which he has already been acquitted.

[16]     Of course, in this case, the Crown anticipates that on any new trial the respondent would be facing more than the evidence before the jury on the earlier trial and the Crown acknowledges that it would be wrong for the respondent to have to face trial again on the same evidence which failed to persuade a jury of guilt previously.  Mr Tamatea’s evidence would again be amenable to challenge if a new trial were ordered and it might again be excluded.  Accordingly, the Crown recognises that if the evidence were again finally ruled to be inadmissible it would be appropriate for the Solicitor-General to stay the prosecution.

Submissions for respondent

[17]     Mr Tennet accepted that the Judge took into account a report which had not been proved in evidence but submits that a matter going to discretion is the belated manner in which counsel for the Crown at trial took issue.  He submitted that if the Crown had, at a much earlier stage than during the jury’s retirement, brought to the Judge’s attention the erroneous basis upon which the Judge had proceeded, there would have been an opportunity for the admissibility point to be reargued with the neuropsychologist giving evidence and being cross-examined on her conclusions.

[18]     Counsel submitted that psychological evidence of the nature indicated by the doctor’s report could provide a basis for exclusion of the admissions on the grounds of fairness.  The respondent is a man of some intellectual impairment who, without any warning, was interviewed by Police in his bedroom.  The circumstances were such as effectively to diminish the rights about which the Police Officer informed him.

[19]     Further, if the admissions had been put in evidence a challenge to their weight could have been founded on the potential testimony of Dr Shaw and the testimony at trial of the respondent’s brother.  The continuing availability of such evidence bears on the prospects of conviction should a new trial be ordered. 

Discussion

[20]     As mentioned earlier in this judgment and as counsel both accept, the only possible answer to the question reserved is in the negative.  No court can properly take account of factual material not properly before it.  But even if Dr Shaw’s report had been properly in evidence the Judge’s reasons for exclusion would seem to be erroneous.  Concerns about the inference of prior Police interest leading to the August 1997 questioning would have been obviated by Mr Tamatea simply saying that on 18 August 1997 at about 3 p.m., when he was on duty, he had a conversation with the accused.  Evidence of such nature is a commonplace in the courts and the possibility of jury speculation is met by the standard directions to confine attention to the evidence before the Court.

[21]     As to the issue of voluntariness we refer to the observations of this Court in R v Naniseni [1971] NZLR 269 at 274.

What must appear, if a confession is to be voluntary, is in our opinion no more and no less than that it has been made by the prisoner, his will in making it not being overborne by the will of some other person by means of some consideration such as has been mentioned above.  Not that the considerations which we have enumerated are to be narrowly interpreted as constituting a necessarily exhaustive list.  But the factor which is relied upon as having overborne, or as apt to overbear, the will of the prisoner, must be found in the will of some other person, by the exertion of which his confession is induced or is deemed by the law to have been induced.  The will of some other person is essential; the involuntariness cannot be produced from within.  Such consideration as fatigue, lack of sleep, emotional strain, or the consumption of alcohol, cannot be efficacious to deprive a confession of its quality of voluntariness, except, perhaps, so far as any of these may have been brought about or aggravated by some act or omission of other persons to the end that a confession should be made.  Of course such considerations as we have mentioned, while not sufficient to deprive a confession of its “voluntary” quality, may yet be relevant in two subsequent stages of the matter.  They may be relevant in the exercise of the Judge’s discretion, in which he may decide, as a matter of fairness, not to admit the confession in evidence.  Further, if he decides to admit it, the same considerations may be canvassed again before a jury, as a point of criticism against its probative effect.

[22]     In the present case, as in R v Cooney [1994] 1 NZLR 38, the admissions in this case fell to be considered, not in terms of voluntariness but with reference to the Court’s discretion to exclude on the grounds of unfairness. To that end, consideration may be required of the way in which an admission was obtained; or the reliability of an admission; or probative value compared with prejudice; such matters not of course being exhaustive of every consideration.

[23]     It is of course for the Crown, which seeks orders setting aside the acquittals and directing a new trial, to persuade us, in terms of the first proviso to s382(2) that some substantial wrong or miscarriage of justice was occasioned on the trial by the improper rejection of Mr Tamatea’s evidence. 

[24]     There is a universal diffidence about double jeopardy.  Blackstone’s Commentaries (1769, Book 4 at p329) refers to:

This universal maxim of the common law of England, that no man is to be brought into jeopardy…more than once, for the same offence.

The principle is similarly recognised, for example, in Hawkins Pleas of the Crown (8th Edition, 1824, Vol 2 at p515), the New Zealand Bill of Rights Act 1990, s26(2), the International Covenant on Civil and Political Rights, Article 14.7.

[25]     The availability to the subject of a general appeal under s383 of the Crimes Act and this Court’s powers under s385 mean that the Case Stated procedure will, except in the rarest cases, seem inapt for challenging a conviction.  It is more likely to be invoked by the Crown to challenge an acquittal.  Even then, having regard to the availability of the s344A procedure, recourse by the Crown is a rarity.  Accordingly the need to demonstrate that a substantial wrong or miscarriage of justice was occasioned on the trial should not be depreciated.  The acquittal of a subject is not to be lightly set aside. 

[26]     As the above-mentioned citation from Frame indicates, there is no generally applicable formula to apply beyond, of course, the words themselves of that proviso.  The broad issue of substantial wrong or miscarriage of justice becomes more focused, in any particular case, by the nature of the grounds relied on by an appellant. 

[27]     We think, with all respect to the approaches taken in Frame and McFarlane, that more extensive analysis is needed than may have been suggested in those cases.  Where, as in this case, the grounds relate to the wrongful exclusion of evidence, the question whether a substantial wrong or miscarriage of justice has been thereby occasioned will involve considerations such as the nature of the excluded evidence, its cogency and credibility, its relationship with all the other evidence in the case, its causative impact on the verdict of acquittal, the consequential conduct of the defence in view of the rejection of evidence, and any other relevant matters. 

[28]     But even if this Court were of the opinion that a substantial wrong or miscarriage of justice had been occasioned on the trial, there is still a discretion in s382(2) whether to direct a new trial.  Matters which might bear on the exercise of that discretion could include the seriousness of the particular offences; the prospects of conviction or acquittal in the event of a new trial, having regard to other evidence which might be available to the subject; whether the verdict was formally directed or deliberated after a comprehensive trial; the prejudice of delay or of cost in having once more to defend; the amenability of the subject to a greater penalty than previously; any other relevant matters. 

[29]     In the case before us there was evidence from the respondent’s brother and the potential evidence, albeit untested, of the neuropsychologist suggesting that the respondent is of quite limited intelligence and has some psychological vulnerability.  His ability to challenge the impugned statement may well be impaired by his disabilities, the passage of time which has passed since August 1997, and the circumstances in which the statement was taken.  Those matters have a bearing both on admissibility, in terms of the judicial discretion to exclude evidence which would operate unfairly against an accused, and the weight that might be attached to the admissions if they had been or were admitted.

[30]     We are not satisfied that if the impugned evidence had been placed before the jury the respondent would necessarily have been convicted on all or some of the counts.  Even if the evidence had been admitted regard must be had to the way in which it could have been impugned by the defence, in reliance, for example, on Dr Shaw’s evidence.  We note also that with the admissions having been excluded the respondent elected not to give evidence but that his election may well have been different if Mr Tamatea’s evidence had been admitted because there would need to be a more extensive factual foundation for Dr Shaw’s expert opinion.

[31]     Nor do we exclude the reasonable possibility that if a new trial were ordered, then given the opportunity for a more fully developed case for the defence, the evidence in question might be excluded.  The mental characteristics of the respondent, the circumstances in which the admissions were made, the passage of time, might collectively justify the discretionary exclusion of the evidence on the grounds of unfairness.

Result

[32]     For all of these reasons we are not satisfied that a new trial should be directed.  We accordingly answer the question reserved for the opinion of this Court in the negative but we decline to set aside the acquittals.

Solicitors:

Crown Law Office Wellington