THE QUEEN v LOKENI HUI [2003] NZCA 202 (26 August 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA2/02

THE QUEEN

v

LOKENI HUI

Coram: Tipping J

McGrath J

Glazebrook J

Counsel: M J Dyhrberg for Appellant

M F Laracy for Crown

Judgment (On the papers): 26 August 2003

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]	Mr Hui was convicted, following a jury trial in the Auckland High Court, of one count of sexual violation by unlawful sexual connection and one count of sexual violation by rape.He was sentenced to eight and a half years imprisonment.He appeals against his conviction.
[2]	The appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions, which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001 have been considered by members of the Court who have conferred and agreed upon this judgment.

Facts

[3]

In May 2001 the complainant, a South African tourist, spent the night at a central Auckland backpacker hostel.Mr Hui was also staying at the hostel.In the morning, as the complainant was returning to her room from the shared bathroom, she was pushed into her room, held down on the bed, kissed on the mouth, licked on the genitals, and raped.The attack lasted some five to ten minutes, after which her attacker sat on the bed and talked to her for around five minutes before leaving.The complainant dressed, went to the toilet, and then went downstairs to the reception area where she told the receptionist and owner/manager what had happened and gave a description of her attacker.There were essentially two issues at trial – whether the attack had happened and, if so, whether Mr Hui was the perpetrator.

Appellant’s submissions

[4]	Ms Dyhrberg submits that the verdict of the jury was unreasonable and cannot be supported by the evidence.In particular she submits that there were inconsistencies between the complainant’s evidence in Court and her description of her attacker at the time of the attack, such that a jury properly directed must have entertained a reasonable doubt as to whether it was Mr Hui who had sexually violated the complainant.
[5]	In addition, Ms Dyhrberg submits that the jury verdict was unreasonable and cannot be supported by the evidence because there was no DNA evidence linking Mr Hui to the sexual violations of the complainant.On the evidence of the complainant there should have been some scientific evidence to link Mr Hui to the scene.Without such evidence the jury must have entertained a reasonable doubt as to whether Mr Hui had sexually violated the complainant.
[6]	Ms Dyhrberg further submits that the trial Judge’s directions to the jury were incorrect and insufficient having regard to the issue of identification and more specifically the directions relating to an honest but mistaken witness.
[7]	Lastly Ms Dyhrberg submits that trial counsel made a radical mistake in the cross-examination of the Crown medical witness in failing properly and effectively to challenge that witness’s conclusions.In particular she submits that it was a mistake for trial counsel to suggest to the doctor that the trauma she observed in the complainant’s vagina was consistent with use of a finger.She submits that this could have suggested to the jury that Mr Hui was responsible for that trauma but in a different manner.She also submits that an independent medical expert should have been called.In Ms Dyhrberg’s submission these mistakes resulted in a miscarriage of justice.

Crown submissions

[8]	The Crown accepts that there were inconsistencies between the evidence given by the complainant at trial and the evidence of what she said shortly after the attack.However the Crown notes that the Judge alerted the jury to this in the summing up and submits that the inconsistencies raised issues of credibility, reliability and interpretation which are solely matters for the jury.As regards the lack of scientific evidence, the Crown submits that this was also put squarely before the jury by defence counsel and by the Judge in summing up.In the Crown’s submission this was simply one part of the evidential matrix before the jury to be balanced against the other evidence, in particular that of the complainant.
[9]	Turning to the trial Judge’s directions to the jury the Crown submits that the Judge dealt with the issue of identification evidence extensively and correctly.In the Crown’s submission this is not a case where s344D of the Crimes Act was properly called into play.That section is directed at cases in which there is a possibility of mistaken identification but in this case identification involved a process of inference by others from the complainant’s description rather than identification by the complainant herself.Alternatively, if s344D does apply, the Crown submits that the Judge’s direction was adequate as it complied with the spirit of the section by focusing the jury on the danger inherent in identification evidence and alerting the jury to the issues in the case which touched on the reliability of that evidence as well as warning that honest witnesses can make mistakes.
[10]	Additionally the Crown submits that the quality of the identification evidence in this case must be considered.This was not a ‘fleeting glance’ case.Instead the complainant had spent some 15 minutes with her attacker at close quarters and could describe distinctive physical characteristics including a tattoo of the word ‘Vessie’ on his arm that on its own would have identified Mr Hui.
[11]	Finally the Crown submits that there is no substance to the ground of appeal of radical mistake by trial counsel.Defence counsel’s cross-examination was consistent with the line of defence that the complainant’s evidence was not credible or reliable.There was no obligation in the circumstances, where the doctor’s evidence was of limited probative value, to obtain another medical opinion.

Discussion

[12]	The submission that the jury verdict was unreasonable and cannot be supported by the evidence is rejected.The inconsistencies between the complainant’s evidence and her description of her attacker did raise issues of credibility and reliability.The Judge drew attention to a number of these inconsistencies in his summing up.They had also of course been stressed by defence counsel.They were thus squarely before the jury.The assessment of the complainant’s credibility and reliability was a matter for the jury and must be held to have been determined by their verdict. This ground of appeal fails.
[13]	The complainant had allowed swabs to be taken after the attack and these did not result in any DNA evidence that linked Mr Hui to the complainant.That this was the case was also clearly before the jury, both through defence counsel’s closing address and in the summing up.The Judge warned the jury that this required them to assess more carefully the adequacy of the positive evidence.We accept the Crown submission too that the lack of DNA evidence of semen for example was not inconsistent with the complainant’s evidence, for example that her attacker’s penis was not fully erect, that he said he would not ejaculate inside her and that she went to the toilet directly after the attack.
[14]	Turning to the question of identification, we consider that, even if arguably not strictly within the terms of s344D, a warning as to identification evidence had to be given.We accept, however, the Crown’s submission that the Judge dealt with the question of identification adequately and in accordance with s344D.He warned the jury about the danger of relying on identification evidence and that honest mistakes can be made.Although the Judge did not expressly alert the jury to the possibility that a mistaken witness can be convincing this was clearly implied in particular by an exhortation to the jury to scrutinise the complainant’s evidence on this point with particular care so that they could be sure that the person the complainant described was the accused.He also clearly warned the jury that honest witnesses can be mistaken and went through the factors they would need to consider when assessing the quality of that evidence, such as the fact that he was previously unknown to her.We also accept the Crown’s submission that the identification evidence, especially in relation to the tattoo, was strong.
[15]	Turning to the final ground of appeal, we accept the Crown submission that trial counsel’s cross-examination of the doctor was consistent with the defence that the complainant’s evidence was not credible or reliable such that it must be doubted whether she was sexually assaulted at all.Counsel’s suggestion that an object such as a finger could have traumatised the hymenal area, as conceded by the doctor, was directed at establishing that the trauma could have had other causes than the complainant’s account of what happened.It was unlikely to have led the jury to believe that Mr Hui digitally penetrated the complainant as there was no evidence given by the complainant of digital penetration and no suggestion from counsel or the Judge that this might have occurred.Neither do we accept that counsel should have called other medical evidence.The doctor’s evidence was not crucial to the outcome of the case and it is pure speculation whether another doctor would have taken a different view of the evidence or been able to provide additional assistance, as was conceded by Ms Dyhrberg.Therefore it cannot be said to have led to a miscarriage of justice.This ground of appeal also fails.

Result

[16]	The appeal against conviction is dismissed.

Solicitors:

Crown Law Office, Wellington