THE QUEEN v BRENDON HONE LUCAS [2001] NZCA 225 (23 August 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca141/01

THE QUEEN

V

BRENDON HONE LUCAS

Hearing:	23 August 2001
Coram:	Blanchard J Salmon J
	Potter J
Appearances:	C M Clews for appellant
	K Raftery for Crown
Judgment:	23 August 2001

judgment of the court DELIVERED BY POTTER J

[1] Brendon Hone Lucas was convicted of rape following trial by jury and sentenced to 8 years imprisonment.He appeals against conviction.

[2] The sole ground of appeal is that the Judge failed to sum up the case in a way that sufficiently put the accused's defence before the jury; in particular he failed to present to the jury the full context of the alibi defence in terms of the evidence of each side and each witness.

Crown Case

[3] The complainant M gave evidence that some time during the night of Monday 15 May 2000 or the early hours of Tuesday morning Lucas came to the garage which she occupied as a sleep-out at the rear of her mother's property in Te Aroha.He woke her and produced a cannabis tinny.The two went outside the shed and smoked the tinny.She had about half the joint and it affected her.They returned to the garage sleep-out and played some music. She told Lucas he could sleep on the couch.She went to sleep in the bed. Some time later she was disturbed by someone touching her, first on the outside of her clothes.It was Lucas.He rolled her on her back and pulled off her boxers and panties.She tried to prevent him from doing this and moaned "No". Lucas raped her.

Defence Case

[4] The defence was one of alibi.Lucas said that on Monday 15 May, he arranged a ride with a friend Jason Fisher from Te Aroha to Paeroa where his mother and her partner lived.He ended up drinking with his mother, Jason Fisher and Andrew Cairns, her partner.He became drunk and stayed the night, sleeping on the couch.He hitchhiked back to Te Aroha in the early hours of the morning, after Andrew Cairns, a stock truck driver, woke him when Cairns went early to work.He denied raping M, or being in Te Aroha at the time she said the rape occurred.

[5] Andrew Cairns gave evidence which was consistent with Mr Lucas's account in many respects.Lucas maintained that he made two trips to Paeroa - one on a Friday and the other on Monday, 15 May 2000.Andrew Cairns, confirmed two visits, one on Friday 12 and one on Monday 15 May 2000.

[6] The evidence of Lucas as to the two trips to Paeroa was, as the defence conceded, "remarkably confusing".He commenced his evidence by referring to a trip to Paeroa with Jason Fisher and Damion Munro on Friday 5 May.Lucas described the movements and activities on the 5 August trip as being similar to those Fisher and Munro described on Monday 15 May 2000.

[7] Fisher and Munro, however, were adamant that the visit with Lucas to Paeroa was on 15 May.They said they stayed in Paeroa for 2-3 hours and then returned to Te Aroha.Each was able to define the day by reference to (in the case of Fisher) a day off work, he having worked the weekend, and (in the case of Munro) his attendance at a course in Paeroa on that day where Lucas and Fisher collected him.

[8] Another item of confusion entered the evidence in the form of a Harley Davidson belt buckle, said by Cairns to have gone missing on the 12^th and returned by Lucas and another on the 15^th.

Judge's summing up

[9] After describing the Crown case, the Judge had this to say of the defence case -

Turning now to the position of the accused, he, of course, denies that any act of intercourse at all took place.Indeed, he goes so far as to say that this could not have happened at all.He says that he was in Paeroa at the time this alleged rape took place.Hence, the defence is one which lawyers refer to as one of "alibi", and that means in ordinary everyday language that this accused says that he was not at the scene of the crime when it was committed.

As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove that he was elsewhere at the time.On the contrary, the prosecution must disprove the alibi.And even if you conclude the alibi was false that does not of itself entitle you to convict this accused.The prosecution must still make sure of his guilt.You see, it is the case that sometimes an alibi is invented by an accused to bolster a genuine defence.

In this case, the Crown says that it has entirely displaced this alibi.It relies upon the evidence of the complainant herself; the evidence of Damion, and Jason, two young men who you will recall (and I am, of course, summarising here) say that they took the accused back to Te Aroha on the evening in question.Then there is the evidence of the complainant's mother who said that this accused came knocked on her door wanting these "girly" magazines some time after 10.30 p.m.And then the Crown says that the accused's own statement confirms that Damion and Jason came to Paeroa on Monday the 15^th, not the Friday, or not the Monday before.In fact, it appears to me that the Crown is really saying that this accused has changed his story before you in the witness box, simply to avoid the implication of Damion's and Jason's evidence.

I turn now to the position of the defence.Both the accused, and Mr Cairns (he was the accused's mother's boyfriend) in the witness box said he was in Paeroa all night on the night in question, and that he could not therefore have done this thing.Of course, if you have a reasonable doubt as to where the accused was on the night in question, then it is your duty to acquit him.But, even if you find that he was in Te Aroha, then you still have to decide on the Crown evidence that he is guilty of the act as charged.

Conclusions

[10] The duty of the Judge in relation to the defence case is in his summing up to put before the jury -

... clearly and fairly the contentions of either side, omitting nothing from his charge ... of the real matters upon which the defence is based. (R v Clayton Wright [1948] 33 Crim Appeal Reports 22)

[11] Here the Judge put clearly to the jury the essence of the alibi defence -

that he (the accused) was in Paeroa all night on the night in question, and that he could not therefore have done this thing.

The Judge referred to the evidence that supported that defence, namely the evidence of the accused and Andrew Cairns.He directed the jury correctly on how to treat the alibi evidence, explaining to the jury that if the alibi evidence was rejected by them and they found the accused was in Te Aroha on the night of 15 May 2000, they had still to examine the evidence to establish whether the Crown had proved guilt to the required standard.

[12] The jury are the Judges of fact.It is for the jury to determine the credibility and reliability of witnesses.There is no requirement of a Judge to traverse all the evidence.Indeed in this case, where the evidence of the accused as to his visits to Paeroa was confused and confusing, in some details inconsistent with the evidence of Andrew Cairns about the alleged visits, and in contrast with the evidence of Fisher and Munro on crucial aspects, it would have been difficult and perhaps unwise for the Judge to attempt to enter upon an analysis of the evidence which ultimately was for determination by the jury. It certainly was not necessary for him to do so.There was no unfairness to the accused in the way he approached his summing up.

Result

[13] The appeal will be dismissed.

Solicitors:

Crown Solicitor, Auckland