THE QUEEN v LAURENCE IAN HOOK [2000] NZCA 362 (30 November 2000)

PUBLICATION OF NAME OR IDENTIFYINGPARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985.

IN THE court of appeal of new zealand

ca298/00

THE QUEEN

V

LAURENCE IAN HOOK

Coram:	Gault J Keith J Blanchard J
Judgment (On the papers):	30 November 2000

judgment of the court DELIVERED BY KEITH J

[1] The appellant was found guilty by a jury in the High Court at Auckland in 1995 of two charges of sexual violation and was sentenced to five years imprisonment.He has since been released from jail and now appeals against his conviction.He also applies for leave to appeal out of time.The delay does present difficulties for some of the grounds of appeal but in this judgment we do address them before returning to that application.

[2] The appellant applied for legal aid in respect of this appeal. The Registrar declined the application after the necessary consultation under s15 of the Legal Services Act 1991.The appellant has filed written submissions and the appeal is determined on the basis of them.

[3] In June 1988 the appellant married the mother of the two child complainants.By the end of 1988 the couple had separated but they attempted to reconcile a number of times over the following year.It was during one of these reconciliations, when the appellant was babysitting the two children, that the offending occurred.At the time of the offending the girl complainant was four years of age.While she was sleeping the appellant climbed onto her bed, removed her pyjama pants and sexually violated her by licking her genital area.In a similar incident the appellant entered the room of the six year old boy complainant while he was sleeping.The appellant beat the boy before removing his pyjamas and sodomising him.

[4] When spoken to by police the appellant denied committing any of the offences, stating that it would have been his ex-wife who would have influenced the complainants to make the allegations.Both of the complainants and their mother gave evidence at trial.The defence elected not to call evidence. Clearly the jury accepted the complainants' evidence which provided a clear basis for their findings and convicted the appellant of two counts of sexual violation.

[5] The appellant raises a number of grounds in support of his appeal.The appellant submits that the complainants' mother gave inadmissible hearsay evidence of statements made to her by the complainants which did not constitute evidence of recent complainant.The evidence was not however challenged before or during the appellant's trial.There is no indication of what significance, if any, it was given in that trial and no basis for finding a miscarriage of justice.

[6] The appellant next contends that the fact that a member of the jury was a child counsellor should have been disclosed to the defence and that that person should have been prevented from sitting on the jury by the trial judge.The issue in the present case was essentially one of credibility.It was for the jury to decide whether they believed the complainant's version of the facts or the appellant's, as outlined in his videotaped interview with police.The evidence of the specialist interviewers was introduced only to outline the procedure involved in interviewing the complainants.There was no evidence as to the consistency of the children's behaviour with other victims of abuse or anything of that nature. The method of interviewing was not challenged at trial and indeed the evidence of the interviewers was read by consent.We are not satisfied that there was any danger of bias resulting in a miscarriage of justice in the present case.

[7] The appellant further submits that he was unable to hear what was being said in court because of his partial hearing. Any problem of this nature should have been dealt with at trial and we are not satisfied in any event that such a problem would have given rise to a miscarriage of justice.

[8] Similarly the appellant's objection to police officers sitting with the witnesses during their testimony should have been dealt with at trial.Again we have been provided with no basis for concluding that the presence of the officers resulted in a miscarriage of justice.

[9] The appellant also says that he was unsure of this right to give evidence and that when he asked his lawyer why he not been able to give evidence, he was told that there was no need to.Essentially this is a challenge to the advice of trial counsel that the appellant should not give evidence at trial.There is no suggestion that counsel acted contrary to instructions, nor is it said how this constituted a radical mistake that led to a miscarriage of justice in the appellant's case. The issue at the appellant's trial was one of credibility and the videotaped interview played to the jury was sufficient to put the essential elements of the defence case before the Court.We do not consider that counsel's advice in the present case constituted anything like a radical mistake.This ground must also fail.

[10] For the reasons given we do not consider that the grounds for appealing against conviction have real strength.Nor do other matters which the appellant has mentioned in his correspondence with the Court.We accordingly refuse leave to appeal out of time.