V (CA428/2012) v R
[2013] NZCA 211
•6 June 2013 at 3.30 pm
| NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA428/2012 [2013] NZCA 211 |
| BETWEEN | V (CA428/2012) |
| AND | THE QUEEN |
| Hearing: | 1 May 2013 |
Court: | Arnold, Chisholm and Keane JJ |
Counsel: | F P Hogan for Appellant |
Judgment: | 6 June 2013 at 3.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Arnold J)
Introduction
The appellant, V, was charged with three counts of sexual violation by rape and two counts of unlawful sexual connection, occurring over a four year time period. The alleged victim was a relative, who was aged from 9 to 13 over the period.
The proceedings had a fraught history:
(a)V stood trial first between 29 March and 10 April 2010. The jury retired to consider its verdict on 9 April 2010. On 10 April, when the jury were to continue their deliberations, one of the jurors refused to continue deliberating with the other members of the jury, as a result of which Judge Singh aborted the trial.
(b)V stood trial a second time between 8 and 19 November 2010. On that occasion, the jury was unable to reach a verdict on any count.
(c)A third trial was scheduled to commence on 11 April 2011 but was adjourned as both prosecuting and defence counsel were unavailable. V then sought a stay of proceedings on the ground of undue delay. Judge Moses declined that application.[1]
(d)The third trial was ultimately held before Judge Andrée-Wiltens between 13 and 22 June 2011. The jury acquitted V on all counts.
[1][V] v R DC Manukau CRI-2008-092-18048, 8 June 2011.
V then applied for costs against the Crown under s 5 of the Costs in Criminal Cases Act 1967 (the Act), on the basis that the investigation and prosecution of the case was not conducted reasonably. Judge Andrée-Wiltens declined his application.[2] V now appeals against that decision.
Factual background
[2][V] v R DC Manukau CRI-2008-092-18048, 9 July 2012.
For V, Mr Hogan accepted that Judge Andrée-Wiltens’ outline of the factual background was accurate.[3] The brief summary which follows is based substantially on the Judge’s account.
[3]At [4].
The complainant immigrated to New Zealand with her mother and siblings in 2001. She and her family stayed with V until her father arrived in New Zealand in mid-2002, when they found their own accommodation.
The Crown alleged that shortly after the beginning of the school year in 2002, while the complainant and her family were still staying with V, V raped the complainant. After her family moved into their own accommodation, the complainant and her siblings often stayed at V’s house during the weekends. The Crown alleged that V sexually violated the complainant during those visits on several occasions.
The allegations against V emerged when the complainant told her parents about them in November 2008, over a year after the last incident was alleged to have occurred. The complainant and her parents immediately confronted V at his home and then called the police. The police attended V’s home at 9 pm on 10 November 2008. One of the officers, Detective Donaldson, spoke to the complainant alone for 40–60 minutes and took a notebook statement of what she said.
The other officer, Detective Constable Alley, put the allegations to V, who denied them. V then accompanied Detective Constable Alley to the police station, having been advised of his rights. During the drive, V again denied the allegations against him and suggested that the complainant was lying because she had a boyfriend. V did acknowledge, however, that he had slept in the same bedroom as the complainant and her siblings on numerous occasions.
Detective Donaldson, who had remained at the house, told the complainant and her parents that V would appear in court the following day.
Once at the station, Detective Constable Alley asked V if he would consent to a formal interview. He said he would but wanted a Cambodian interpreter. Detective Constable Alley attempted to contact an interpreter but was told that none was available. Detective Constable Alley suggested that V should give an interview anyway as this would be his last opportunity to say anything. In fact, no interview took place. Shortly after 11 pm, V was arrested and was advised of his rights. Following V’s indication that he wished to speak to a lawyer, a lawyer was arranged for him, to whom he spoke in private. V was then processed and detained overnight.
At some stage, Detective Constable Alley spoke to a Doctors for Sexual Abuse (DSAC) doctor but no medical examination of the complainant was conducted, presumably as a result of the advice received. V’s family members were also interviewed by police.
On 12 November 2008, V was taken before the District Court, where he faced 16 charges involving various sexual violations, including rape. He was granted bail on terms which required him to leave his home and reside with his daughter at another address.
On 9 December 2008, the first evidential video interview of the complainant was conducted. This interview formed the basis for the charges that V ultimately faced. A second evidential interview was conducted on 11 March 2009. There was some inconsistency between these two statements, and between the complainant’s earlier statements, on the timing of the alleged offending, in particular as to when it commenced.
On 25 March 2009, V was committed for trial following depositions conducted on a “hand up” basis, initially to the High Court but then, as a result of middle banding, back to the District Court. As we have said, after three trials V was acquitted.
V then applied for a costs order under s 5 of the Act. Section 5 provides:
5 Costs of successful defendant
(1) Where any defendant is acquitted of an offence or where the information charging him with an offence is dismissed or withdrawn, whether upon the merits or otherwise, or where he is discharged under section 184F of the Summary Proceedings Act 1957 the Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.
(2)Without limiting or affecting the Court's discretion under subsection (1) of this section, it is hereby declared that the Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular (where appropriate) to—
(a)Whether the prosecution acted in good faith in bringing and continuing the proceedings:
(b)Whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:
(c)Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:
(d)Whether generally the investigation into the offence was conducted in a reasonable and proper manner:
(e)Whether the evidence as a whole would support a finding of guilt but the information was dismissed on a technical point:
(f)Whether the information was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:
(g)Whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.
(3)There shall be no presumption for or against the granting of costs in any case.
(4)No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or discharged or that any information charging him with an offence has been dismissed or withdrawn.
(5)No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.
As we have said, Judge Andrée-Wiltens rejected the application. Having set out s 5(1) and (2), the Judge noted that an award under the Act was discretionary and recorded the factors referred to by this Court in R v Connolly:[4]
(a)People accused of criminal offences can be put to a great deal of expense in defending themselves. Unlike defendants in civil actions, they cannot simply compromise their positions because their liberty, reputation and pocket may be at risk: see Acuthan v. Coates (1986) 6 NSWLR 472 at 480.
(b)If a prosecution has been brought for a malicious or improper reason, the defendant should receive costs.
(c)It is reasonable that, if a prosecution has been conducted in a negligent manner (for example if the facts have not been properly investigated) that the defendant should receive costs.
(d)Costs should not be awarded simply because a defendant has been acquitted. This arises because of the “lucky to get off factor” as well as because the verdict is expressed negatively as “not guilty”.
(e)In cases where the prosecution has been reasonably conducted, but the defendant has been able to show he or she is definitely or probably innocent by showing a deficiency in the prosecution case or bringing credible witnesses to shed a more favourable light on the circumstances, it will be reasonable for a costs award to be made in favour of a defendant.
[4]R v Connolly (2007) 23 NZTC 21,172 (CA) at [22].
Applying these factors to the circumstances of the case before him (in particular (c) and (e)), the Judge dismissed V’s application. He considered that there was no substantial material indicating that the prosecution had acted other than in good faith in bringing and continuing the prosecution or that the investigation was conducted in an improper or careless manner.
Basis for appeal
Mr Hogan advanced essentially the same arguments on behalf of V as he had before Judge Andrée-Wiltens. In particular, he argued that factors (c) and (e) were engaged in this case. He submitted that the Judge had not provided a reasoned response to the arguments raised and had either misunderstood them or misdirected himself.
More specifically, Mr Hogan submitted that:
(a)The police had failed to identify an innocent explanation for the fact that V slept occasionally in the same room as the complainant and her siblings, namely that it was a cultural practice.
(b)The police formed what was described as a “tunnel view” on the matter from the outset. The nature of the police questions showed predetermination. Moreover, the police failed to pay sufficient attention to the fact that the complainant’s story changed over time.
(c)The lack of a medical examination of the complainant was unsatisfactory as such an examination might have exculpated V by showing that the complainant was still a virgin or had suffered a recent vaginal injury (which, on the Crown case, could not have been caused by V).
(d)The Judge misunderstood the facts because he referred to sleeping pills being given to the complainant rather than to another sibling and referred to a Dr Say when there was no mention of Dr Say in the evidence.
In light of these factors, Mr Hogan said, this Court should conduct its own assessment and make an award to V.
Evaluation
In R v Reid, the Supreme Court dealt with an appeal against an award of costs under the Act.[5] The Court confirmed that the decision to award or not award costs under the Act involves the exercise of a broad discretion and that what might generally be described as an error of principle by the judge must be established if the exercise of the discretion is to be challenged successfully on appeal. In describing the error required as it did the Court no doubt had in mind the discussion in Kacem v Bashir in relation to appeals against discretionary decisions.[6]
[5]R v Reid [2007] NZSC 90, [2008] 1 NZLR 575.
[6]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
As this Court noted in Delamere v Serious Fraud Office, the Supreme Court made it clear that the weight given to the statutory criteria does not engage matters of principle affecting the exercise of the discretion.[7] The Supreme Court also identified the difficulty faced by an appellate court in attempting to capture “the ephemeral but significant impressions which inform the assessments and discretions of the trial judge”.[8]
[7]Delamere v Serious Fraud Office [2009] NZCA 142, [2009] 3 NZLR 94.
[8]R v Reid, above n 5, at [23], noted in Delamere at [27].
Like Judge Andrée-Wiltens we have considerable sympathy for V as a result of the delay in the resolution of the charges against him. That resulted in an unfortunate sequence of events, which undoubtedly placed great strain on V. But that does not, of course, of itself justify an award of costs under the Act.
Judge Andrée-Wiltens said that the focus of the analysis should be on the decision of the police to proceed with the prosecution rather than on their decision to arrest V. We agree with that assessment. Mr Hogan submitted that the Judge failed to address his criticisms adequately:
(a)Mr Hogan submitted that the police should have obtained an interpreter for V. However, it is clear from the evidence that they tried to do so but were unsuccessful, for reasons beyond their control, and that V was not interviewed that evening.
(b)Mr Hogan said that Detective Constable Alley’s indication to V that it would be V’s last chance to speak to him showed that he had already decided to arrest V and was acting in bad faith. However, the Detective explained the remark under cross-examination and the Judge was entitled to accept that it did not manifest predetermination or a lack of good faith.
(c)Mr Hogan criticised the police for not conducting an evidential interview with the complainant earlier in the process and not undertaking a more detailed investigation of the circumstances before deciding to arrest V. He submitted that there was no urgency. But the police were called late in the evening to deal with a situation involving allegations of historical sexual abuse within a family. Detective Donaldson interviewed the complainant on her own for somewhere between 40–60 minutes. V ultimately declined to make a statement as he was entitled to do, although he did provide some corroboration of the complainant’s story when he acknowledged that he often slept in the same bedroom as she did. So the decision of the police to arrest V is understandable and there has been no serious argument that they did not have “good cause to suspect” that V had committed an offence punishable by imprisonment.[9]
[9]Crimes Act 1961, s 315(2)(b).
As we see it, Mr Hogan’s criticisms of police conduct are more relevant to their subsequent investigation of the alleged offending. In relation to those criticisms, we make the following points:
(a)Mr Hogan submitted that the police should have arranged a physical examination of the complainant. Although the record is not entirely clear on this point, it appears that the police did discuss this with a DSAC doctor before deciding that such an examination would not be worthwhile. Mr Hogan said that an examination might have shown that the complainant was a virgin or that she had suffered a recent vaginal injury, which could not have been caused by V given that the allegations related to historical offending. This latter point seems to relate to V’s suggestion that the complainant was fabricating the allegations because she had a boyfriend, presumably one with whom she was in a sexual relationship. One obvious difficulty with this, however, is that it invited an examination of the complainant’s previous sexual history, which is generally impermissible.[10] In any event, the complainant denied that she had a boyfriend.
(b)Mr Hogan submitted that there were other reasons why the complainant might have lied. One was to deflect her parents’ attention from her absence from school. However, as Judge Andrée-Wiltens noted, the prosecution did look into that and found that there was nothing more to it than that the complainant was 15 minutes late for school on one occasion.
(c)V accepted that he often slept in the same bedroom as the complainant and her siblings. This was consistent with the complainant’s allegations. Mr Hogan said that if the police had examined this aspect further, however, they would have realised that it was a cultural practice rather than being anything sinister. While the police should obviously have an open mind concerning such explanations, their resolution may well have to be left to the ultimate finder of fact, whether judge or jury.
(d)Following V’s arrest, evidence emerged that V had administered sleeping pills on occasion to at least one of the complainant’s siblings when they were staying with him. The Crown theory was that this was to facilitate access to the complainant; V’s position was that it was simply to assist the recipient to sleep. Again, it is not obvious that the police should be attempting to resolve issues of this type. The question for them is whether there is a prima facie case against an accused and here, of course, V was committed for trial following a “hand up” deposition. Further, at each of the three trials, the case was left to the jury, which indicates that all three Judges considered that V had a case to answer.
[10]See Evidence Act 2006, s 44. This may include evidence of virginity, see Leef v R [2011] NZCA 567 at [16].
Clearly, Judge Andrée-Wiltens understood the points being advanced by Mr Hogan – they are recorded in his judgment. Equally clearly, he rejected them. In our view, the Judge had a proper basis on the evidence for considering that the prosecution was properly initiated and continued. We acknowledge that, even where a prosecution is properly initiated and maintained, an award of costs may be appropriate where an accused is able to show that he or she is definitely or probably innocent (not simply that he or she has been acquitted).[11] Judge Andrée-Wiltens (who, it will be recalled, was the trial Judge) did not consider that the present case fell within that category. We are not in a position to interfere with that assessment.
[11]See subparagraph (e) of the extract from Connolly quoted at [16] above.
The Judge correctly stated the relevant principles and applied them to the facts before him. We see no basis for interfering with the exercise of his discretion.
Decision
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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