R v Middleton CA557/99 [2000] NZCA 439 (8 June 2000)

Last Updated: 25 April 2019

PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA557/99

THE QUEEN

V

MARTIN AUGUSTUS MIDDLETON

Coram:	Thomas J Keith J Blanchard J
Judgment (ex parte):	8 June 2000

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1] The appellant was convicted after a jury trial in the High Court at Auckland on two charges of sexual violation by digital penetration, one relating to a specific event, the other being a representative charge; two charges of rape, one relating to a specific event and the other again being a representative charge; and one charge of indecent assault. He was sentenced to six years imprisonment on each charge of sexual violation, ten years imprisonment on each charge of rape, and two years imprisonment on the indecent assault charge, the terms to be served concurrently. He appeals against both conviction and sentence.
[2] The appellant was presented at trial as being an emotionally strong person, who exercised control and domination over the complainant and her mother with whom the appellant had a sexual relationship. The sexual activities, the subject of the charges and convictions, occurred between December 1994 and December 1996 when the complainant was aged twelve and thirteen. These activities included indecent assaults relating to contact with the complainant’s breasts and vagina and sexual violation by digital penetration and rape on a number of occasions. On at least one occasion of rape the appellant, the complainant and the mother were all in bed at the one time, the mother having been persuaded by the appellant that his having sex with the complainant was necessary for the complainant to overcome certain emotional problems she was experiencing at that time.
[3] The appellant applied for legal aid to appeal against his conviction and sentence. That application was declined by the Registrar after consideration of his case in accordance with the Legal Services Act 1991. The appeal has been determined on the basis of written submissions received from the appellant.
[4] The appellant has presented several grounds of appeal. The first set of grounds relate to the possible immunity from prosecution of the mother of the complainant. The appellant first submits that the Crown wrongly failed to disclose the position about that immunity. The officer in charge of the inquiry gave evidence that an application had been made to the Attorney-General for immunity from prosecution for the mother, having regard to her involvement and possible acquiescence in the sexual offending committed on her daughter. By the date of trial that application had been declined but no decision had been made whether the mother would be charged. The jury were told of this position, and also that the mother and the complainant were assured, before making their second statements, that the mother had good prospects of not being prosecuted. According to the officer in charge there was, in any event, sufficient evidence in the first statements to charge the appellant. All those matters relating to the mother were before the jury and there is no possible basis for finding a miscarriage of justice.
[5] A related ground is that the Judge wrongly prevented defence counsel from asking the officer whether the immunity or the decision to charge the mother depended on her evidence at trial. The exclusion of this evidence was within the Judge’s discretion. Again, we would repeat, the jury was made aware of the circumstances surrounding the claim to immunity and the prospect of the mother being prosecuted, and we are satisfied that no miscarriage of justice arose.
[6] The appellant further submits that the trial Judge wrongly omitted to direct the jury in his summing up on the issue of the mother’s immunity from prosecution. While that is so, the Judge did emphasise that the credibility of the complainant, her mother and the appellant was the main issue to be determined by the jury. The possible immunity and prosecution was plainly one element to be considered by the jury when assessing the mother’s credibility. The issue was clearly before the jury, for instance, in the cross-examination of the mother and police officer in charge, and it was not essential that it be mentioned again in the summing up. The grounds relating to the mother’s possible immunity and prosecution are not made out.
[7] The appellant seeks to have a number of witnesses called on the appeal. The relevance of the evidence of two of them, concerning the relationship of the complainant to another partner of her mother, was considered by the trial Judge before trial. He ruled that the possible evidence amounted to nothing more than inappropriate conduct. There was nothing to indicate that the complainant had been sexually violated by that person and the proposed evidence could have no relevance to the proposed cross-examination of the complainant. We agree with the ruling.
[8] The other witnesses, it is suggested, would testify about the collaboration between the appellant’s ex-wife and the complainant’s mother, the manner of the police investigation, verification of his work and his travels and information about events, including the complainant and her mother. It is convenient to take those matters together.
[9] The complaint about the police investigation relates to the police job sheets concerning the investigation. Those documents were not in evidence before the jury. The one police officer who was called was extensively cross-examined by defence counsel concerning the course of the investigation. The appellant also refers to a letter from his ex-wife which he says is full of malice and which his children, if called as witnesses, would have refuted. His lawyer, he says, discouraged him from calling them for that purpose. Again that letter was not before the jury and would appear to have nothing at all to do with the specific charges the jurors were concerned with. The appellant then refers to the relationship between his ex-wife and the complainant’s mother. The particular relevance of that to the charges and the evidence actually before the jury is not made clear. In addition, the essential elements of these matters were known before the trial (even if some further documentation has become available since). The application to call further evidence is accordingly dismissed.
[10] Related to that application are complaints about defence counsel’s failure to call witnesses and produce certain facts. As already indicated, we can see no error in respect of the calling of witnesses. Defence counsel’s cross-examination of the prosecution witnesses – the complainant, her mother, the police officer and the medical practitioners who examined the complainant - was comprehensive and detailed. It went directly to the charges and to the particular evidence adduced in support of them. So too did the evidence of the appellant who denied that any of the events had occurred and who also had the opportunity to explain his view of his relationship with the complainant’s family.
[11] The appellant makes a broad allegation of misrepresentations during the trial. Any matters relevant to the charges which he specified in his written submission have been considered in this judgment. This ground of appeal has no merit.
[12] Finally, on conviction, the appellant submits that since he has hearing difficulties he could not hear the proceedings and was not therefore able to instruct counsel. There is no indication in the trial record that the appellant made his condition known. This ground of appeal also fails.
[13] More generally, the appellant refers to his religious work and his research into violence and corruption within Western Christian nations and families. These efforts do not however put in question in any way the jury’s verdicts. The sentencing Judge summed up the situation aptly:

Well, certainly the behaviour is dramatically at odds with a person of deep spiritual and religious conviction, but that simply is the situation having regard to the jury’s verdict.

[14] The jury must have found the complainant more credible and the charges proved beyond reasonable doubt. On the evidence before it those verdicts were open to the jury.
[15] In support of his appeal against sentence the appellant refers to R v Edwards (High Court, Whangarei, T982270, 31 August 1999, Randerson J), and submits that his sentence is manifestly excessive having regard to the sentence imposed in that case. In Edwards, the prisoner was found guilty by a jury of 13 counts involving sexual offending against two of his stepdaughters and sentenced to six years imprisonment. The starting point for a single contested rape charge is now eight years. In this case, there are serious aggravating factors including a breach of moral duty and the sustained period of the offending. The term of imprisonment is fully justified.
[16] The appellant refers to his medical condition, including a back condition and his hearing difficulties, which he submits were not taken into consideration by the sentencing Judge. It is not apparent that the Judge was made aware of the physical condition of the appellant. In any event, these afflictions are not sufficient to warrant a reduction in sentence given the severity of the offences of which the appellant was convicted. He also mentions that he continues to pay maintenance to the complainant’s family. Such an obligation is distinct from the matters on which he has been sentenced.
[17] All the grounds of appeal having failed, the appeals against conviction and sentence are dismissed.