THE QUEEN v RAWEL SINGH [2000] NZCA 67 (25 May 2000)

IN THE court of appeal of new zealand

ca517/99

THE QUEEN

v

rawel singh

Hearing:	24 May 2000 (at Auckland)
Coram:	Henry J Robertson J Cartwright J
Appearances:	S J Lance for the Appellant A R Burns for the Crown
Judgment:	25 May 2000

judgment of the court delivered by henry j

1. Rawel Singh was found guilty at trial on one charge of rape.He was sentenced to 7 years imprisonment, and now appeals conviction and sentence.

Conviction

2. The first ground of appeal against conviction concerns jury access during the course of deliberation to transcripts of the videotaped police interviews of the appellant.Two such interviews were conducted.In the first, occupying 32 minutes and contained in 28 pages of transcript, the appellant denied having had sexual intercourse with the complainant.In the second he admitted intercourse had occurred, but claimed that it was consensual.The second interview lasted 34 minutes, and the transcript is contained in 23 pages.At trial the two issues were first whether the complainant was a consenting party to intercourse, and second if she was not, did the appellant lack a belief based on reasonable grounds that she was consenting.
3. The evidence, which for present purposes must be taken as having been accepted by the jury, can be summarised.The complainant, aged 18 years, was employed as a waitress in a Rotorua restaurant.From time to time the owners arranged for a member of the staff to assist the appellant, the 35 year old manager of another restaurant in the same area.On the evening of 28 October 1998 the complainant was requested to assist the appellant, and agreed to work for him as a waitress for that evening.It was the second occasion she had given such assistance.Following the close of business at about 10.30pm the appellant offered the victim a drink.She accepted, and then consumed a considerable quantity of liquor over a relatively short period of time.The appellant made an offer to take her home, which was accepted after an initial refusal.The appellant then drove her to his own home.On arrival, the complainant was unwell as a result of the liquor she had earlier consumed.She went to a bedroom, and lay down on a mattress, having previously gone to the toilet and vomited.The appellant came in to the bedroom and lay down beside her, and despite her protests removed her clothing.He then committed indecencies on her, ultimately resulting in an act of intercourse.The complainant was protesting throughout.
4. For the appellant, Mr Lance submitted that the circumstances were such that allowing the jury to have the transcripts in the jury room constituted a miscarriage of justice.He did not contend that as a matter of law the Judge should not have allowed that to happen, but that there were reasons making it inappropriate and unduly prejudicial to the appellant to do so in the present case, particularly without first enquiring whether there were specific aspects of the interview which the jury had in mind.The circumstances were identified as being a combination of:(a) drawing unnecessary attention to the appellant having lied when denying the fact of intercourse in the first interview;(b) the existence of inaccuracies contained in the transcripts;(c) the absence of a direction as to the proper status of the transcripts at the time when they were provided for use in the jury room;and (d) the jury may have been deflected from the real issues by giving undue attention to inconsequential matters.
5. We are satisfied there is no substance in the complaint.The trial Judge had given a careful and appropriate direction to the jury as to the purpose of the transcripts, and the use to which they could properly be put, immediately prior to the videotaped interviews being played during the course of evidence.Neither the admissibility of the videotapes, nor the provision of the transcripts, was the subject of challenge by the defence at that stage of the trial.In particular, the jury were directed that if they determined there was any difference between what was said in the recorded interviews and what appeared in the transcripts, the videotaped interviews must prevail.When the request was received from the jury that they desired the transcripts to assist their deliberations, the Judge accepted that such a course was desirable, referring to R v Edwards (1991) 7 CRNZ 528 where this Court concluded that, in the circumstances of that case, such a course was sensible.The Judge repeated his directions to the jury as to the purpose of the transcripts, and the use to which they could be put.
6. The interviews were of reasonable length, and the Judge noted in his rulings that at times what the appellant was saying was not altogether clear because he was speaking quickly, and with a pronounced accent.We can see nothing untoward resulting from the procedure adopted in the present case.The Judge reached a carefully reasoned conclusion, and did not allow the transcripts to be available in the jury room simply as a matter of course.The interviews were exculpatory, and contained the appellant’s denial of the offence, including his account of what actually occurred at his home with the complainant.No unfairness resulted.As to inaccuracies, we note that counsel did not raise as an objection at the time a claim that the transcripts were inaccurate.In this Court, Mr Lance was able to refer us only to some omissions in the transcripts, indicating that the transcriber had been unable to discern what was being said.Counsel was unable to point to any example of an omission which could have had any possible adverse effect on the defence case, or the jury’s consideration of it.Our own examination of the written record satisfies us that there is nothing in the point.This ground of appeal must fail.
7. The second ground of appeal concerns what it is suggested were undue restrictions placed on cross-examination of the medical practitioner who had examined the complainant after the offence.The doctor’s evidence included a reference to having found bruising and inflammation of the complainant’s genital area.For the purposes of her personal convenience, the doctor gave evidence before the complainant was called by the Crown.The doctor’s opinion was that the bruising could have been between a few hours and "a couple of days" old.She also said that it was not normal to find bruising following consensual intercourse.The present complaint is that defence counsel was not permitted to cross-examine the doctor on the basis that the complainant had in fact had consensual intercourse some 48 hours before the offence.But counsel was permitted to ask, and did ask without restriction, questions on the assumption or hypothesis that consensual intercourse had earlier occurred and could explain the bruising found on examination.Later, the complainant was cross-examined at some length on an earlier incident of intercourse with her boyfriend, and its possible effect on her physical state.In the course of argument we were not pointed to any aspects of that cross-examination which indicated that the defence was in any way prejudiced by being unable earlier to put to the doctor some aspect of the complainant’s description of that episode, or its possible relevance to the doctor’s findings on examination.The distinction attempted to be drawn by counsel between what was a very limited restriction at the time properly placed on cross-examination of the doctor, if indeed it could be classed as a restriction at all in the circumstances, and what was sought is a distinction without a difference and unrealistic.No possible injustice resulted.

Sentence

8. We can see no basis upon which it could be said that the sentence of 7 years imprisonment was excessive.The term may well have been greater.As has repeatedly been stated, the starting point for a defended charge of rape can generally be regarded as 8 years.The reduction from that allowed by the sentencing Judge gives full weight to all factors which could properly be taken as being favourable to the appellant.We add that in our view there were features of aggravation, and those in mitigation were minimal.

Conclusion

9. For the above reasons, the appeal against conviction is dismissed, as is the appeal against sentence.

Solicitors

S J Lance, Rotorua, for Appellant

Crown Solicitors, Auckland, for Crown