R v W CA54/96 [1996] NZCA 244; (1996) 13 CRNZ 561 (25 March 1996)

Last Updated: 21 January 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.54/96}

PUBLICATION OF NAME IDENTIFYING THE QUEEN

PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

v

_W

Coram: Richardson P Gault J McKay J

Hearing: 25 March 1996

Counsel: P A Williams QC and D C S Reid for Appellant

J C Pike and M J Bodie

_{Judgment: 25 March 1996}

_{JUDGMENT OF THE COURT DELIVERED BY GAULT J}

The appellant was convicted upon trial by jury in the District Court of the offences of sexual violation by unlawful sexual connection respectively by connection between his penis and the complainant’s mouth and connection between his finger and the complainant’s anus. The verdicts were given on 14 December 1995. The appellant was remanded in custody and was sentenced on

23 February 1996 to imprisonment for 15 months.

The appellant faced trial on three counts arising out of the same events on 22

January 1995 and involving the same complainant. He was acquitted on the third count of attempted sexual violation by anal intercourse.

The appellant and complainant met in a bar in the early morning of 22

January. They consumed liquor there and in another place for some hours. They then travelled by taxi to the flat where the appellant was living and in a downstairs bedroom engaged in sexual activities. The complainant conceded readily that she was desirous of having a sexual relationship with the appellant and sexual intercourse occurred on a least one occasion and in a fairly robust manner.

The case for the Crown was that the appellant’s conduct went beyond that for which he had the complainant’s consent and into the areas of oral sex and attempted anal intercourse. The evidence was of both parties, and in particular the complainant, being considerably affected by drink and of some arguments towards the end of the activities after which the appellant fell asleep and left the complainant to find her own way home.

The complainant made early complaints of rape and forced anal intercourse. She complained also to a doctor by whom she was examined of vaginal rape. These matters were not the subject of charges but were brought out as going to the credibility and recollection of the complainant and formed a background to the interview conducted by the police of the appellant.

That interview was conducted the same afternoon and was recorded on video tape. Evidence of the interview was introduced as part of the Crown case. In the course of it the appellant admitted the sexual intercourse to which he said the complainant was a willing party. He said that in the heat of the passion he suggested anal intercourse but she declined and he accepted that. He did say however that on the occasions they had vaginal intercourse he inserted his finger into her anus. When asked what her reaction was to that he said that at first she was a bit shocked but after that there was no reaction and it went on for quite a while. He admitted at one stage

pushing his hands through her hair but denied holding her hair and having or attempting to have anal sex.

The interview was conducted upon the complaint of forced anal penile penetration which was not subsequently pursued - instead that charge was of attempt only. The appellant was not questioned at all about oral sex. In the course of the interview the appellant acknowledged certain arrogant behaviour at times on his part and also referred to the arguing before he went to sleep.

At his trial the appellant elected not to give evidence. In an affidavit which we admitted without objection from the Crown he said he did so on the advice of his counsel that he had adequately expressed his defence in the course of the video interview with the police and it would be unnecessary for him to give sworn evidence at his trial.

In the course of cross-examination the complainant acknowledged that at an earlier stage there had been consensual oral sex but maintained that later she was forced to perform oral sex which was not consensual.

Mr Williams advanced two grounds of appeal. The first was of a misdirection in the Judge’s summing-up in this passage:

Now the prosecution has proved in evidence a statement made by the accused when he was interviewed by a police officer. You will recall we saw the video of that police interview yesterday afternoon. In it the accused has made no statement that could amount to an admission or confession of guilt. Whereas here, such a statement has not been confirmed by the accused in the witness box. It is not evidence of the truth of what is in the statement, but it is properly admitted before you because it shows the reaction of the accused when he was questioned about what was claimed to have occurred. His reaction is part of the general picture which you can properly consider.

There appears to be an obvious transcription error in that the fourth sentence should read:

“Where, as here, such a statement has not been confirmed by the accused in the witness box, it is not evidence of the truth ...”

It was common ground that if the statements made by the appellant in the course of the interview were wholly exculpatory the direction could not be said to be incorrect. However as was made clear in R v Tomkins [1981] NZCA 100; [1981] 2 NZLR 170 where the prior statement contains a mixture of inculpatory and exculpatory statements such a direction is wrong. It was there said (174):

Where therefore the statement of an accused person on trial is produced by the Crown the whole of it must be taken into account as evidence by the jury. All of it is material which the jury are entitled to assess whether or not it be supported by other evidence. It follows that they may give different weight to different parts of the same statement or, if it seems more appropriate, attach more importance to those matters which are supported by other evidence. In discussing these matters with a jury different Judges may well approach the task in different ways. But a jury ought not to be told that a statement made by an accused person is evidence only in so far as it is an admission against the accused’s interests and that the exculpatory parts of it are not evidence unless supported by sworn evidence at the trial.

Although, as the Judge said, the statement does not contain admissions or confessions of guilt, we are satisfied that it cannot be categorised as containing no statements against interest and accordingly there was a misdirection.

Mr Pike for the Crown submitted that even if the statements could not be regarded as wholly exculpatory, the misdirection was, in effect, remedied by the manner in which the Judge treated the content of the video interview in later passages in the summing-up. He referred to several passages where statements made in the course of interview were treated effectively as the accused’s evidence on

various points. He submitted that taken as a whole the summing-up would not have conveyed to the jury that the statements in the interview were not evidence of their truth. He added that had the impact of the misdirection been as now asserted on behalf of the appellant his experienced trial counsel (not appearing on the appeal) would have raised objection when invited to do so at the end of the summing-up.

There is strength in Mr Pike’s argument that, the misdirection notwithstanding, the summing-up did contain passages where the appellant’s statements were set against the evidence of the complainant. But we still are left with unease at the verdicts after such a misdirection.

The second ground of appeal arose out of a question by the jury after counsels’ addresses and just before the Judge commenced his summing-up. What occurred is recorded in the answer given by the Judge as follows:

I will deal with the question that has been handed out through you

Mr Foreman. The question was, and I will read it:

What was the plea by the accused on the second charge when the charges were read? Several jurors thought they heard him say “Guilty”.

Normally what would happen when there is a question from the jury, and that normally arises during the course of your deliberations if it is going to arise at all, the trial judge would see counsel about the question, discuss it to see what type of answer is required. I have not seen counsel about your question. I have simply indicated to them how I propose to answer it. As I understand it they agree.

When each of the charges was read out to the accused at the beginning of the trial, that is called the arraignment, the accused very clearly pleaded not guilty to each of those three charges. If any of you think otherwise then it is probably because of the acoustics in this room, or the newness of the situation that you were in and perhaps being a bit overwhelmed by it. I am sure it is simply that you misheard him. You must take it from me that to each of these three charges the accused has entered pleas of not guilty.

We accept the argument advanced by Mr Williams that there must be concern as to possible miscarriage of justice if several jurors listened to the whole of the evidence and the addresses of counsel in the belief that the accused had pleaded guilty to one of the three counts he was facing. The potential for prejudice, not just in respect of that count, by predisposition to the evidence and addresses is real enough. No application was made to discharge the jury, but we accept that the Judge should have gone further and warned the jury of the risk of prejudice to the accused and since that was not done we are left with concern for the safety of the verdicts on this ground also.

There is another point which gives rise to some concern, though it was not the subject of argument before us. In the course of a lengthy retirement the jury sought further assistance from the Judge on the meaning of consent and whether silence could amount to consent. The further directions given were unobjectionable so far as they went but, having regard to the evidence in the case, we think the Judge then should have reminded the jury that the Crown was required to exclude not only consent but also belief on reasonable grounds that there was consent.

These matters taken together lead us to allow the appeal and quash the conviction. We heard argument as to whether we should order a new trial. We have decided not to do so. The appellant could not be retried until after the date on which he becomes eligible for parole. He has served all but two months of the sentence he should expect to serve. The sentence imposed was short indicating that in the view of the trial Judge the offending was not in the gravest category. We do not consider the appellant should have a further trial hanging over him in the circumstances.

The appeal is allowed. The convictions on both counts are quashed. There will be no order for a new trial.

Solicitors

Crown Law Office, Wellington