THE QUEEN v BERNARD HIGGINS [2003] NZCA 219 (9 September 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA91/03

THE QUEEN

v

BERNARD HIGGINS

Coram: Keith J

Blanchard J

Tipping J

Counsel: S D Cassidy for Appellant

M F Laracy for Crown

Judgment (On the papers): 9 September 2003

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1]

This appeal against conviction and sentence has been 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.

Offences and sentence

[2]

The appellant was convicted after a jury trial on one count of sexual violation by rape.The complainant was his ex-girlfriend, with whom he had resumed a friendly relationship.The appellant was sentenced on 14 January 2003 in the District Court at Auckland to eight years imprisonment.He now appeals against conviction and sentence.

Relevant facts

[3]	The appellant and the complainant have known each other from a young age and commenced a sexual relationship in 1998, when they were both 16.Their relationship ended in December 1999 when the appellant left Auckland, where the couple had been living.In March 2001 the appellant returned to Auckland and resumed a platonic relationship with the complainant.On the night of 21 March 2001, the appellant and the complainant went to a nightclub and socialised.In the early hours of the morning on 22 March, the complainant returned with the appellant to his house.They agreed to sleep in the same bed after the complainant made it clear to the appellant that she was not interested in having sexual intercourse.It is the Crown case that the appellant began to touch the complainant shortly after she got into the bed. The Crown alleged that the appellant then pinned the complainant down and raped her.The complainant did not report the incident to the police at this time.
[4]	Contact between the appellant and the complainant ceased for some months after this incident, despite repeated requests by the appellant for their relationship to resume.Then in June 2001, the complainant recommenced a relationship, including a sexual relationship, with the appellant.This lasted some four weeks before it was called off by the complainant.The complainant did, however, remain friends with the appellant until an incident in September of that year.One night in September, the appellant went to the complainant’s flat and climbed through an open window into the house.The complainant was not there, but the appellant got into a bed where the complainant’s sister was sleeping.As a result of this incident, the police were contacted and the complainant was questioned.The day after she was questioned, the complainant contacted the police and complained that she was raped on 21 March 2001.
[5]	The appellant contended that the sexual activity was consensual.The issue at trial was therefore consent.Counsel for the appellant applied for leave under s23A of the Evidence Act 1908 to cross-examine the complainant in relation to an alleged previous allegation of rape.The defence wanted to put to the complainant that she had discussed a former boyfriend, Andrew, with the appellant and had told the appellant that Andrew had raped her.She did not, however, make a complaint to the police.The defence contended that cross-examination was necessary because it showed that the present complaint against the appellant was merely an attention-seeking device.The complainant made it clear that she would deny ever having made such an allegation.In an oral judgment given at the start of the trial, the trial Judge ruled that the evidence or questions were not of such direct relevance to the facts in issue in the proceeding, that to exclude it would be contrary to the interests of justice.Leave to cross-examine the complainant on this topic was therefore declined. This case was not on a par with R v Young (1990) 6 CRNZ 520 where numerous previous allegations of rape had been made and leave was granted to cross-examine the complainant on these.
[6]	The officer in charge of the case, Detective Carley, claimed that the appellant had admitted in an interview that he had physically abused the complainant in the past.The appellant denied saying any such thing and the prosecutor did not intend to lead this evidence from the Detective.However, when giving her evidence in chief at trial, the Detective inadvertently disclosed this admission.At the close of the Detective’s evidence-in-chief, the Judge saw counsel in chambers.Defence counsel asked the Judge to declare a mis-trial in the light of the Detective’s disclosure, but the Judge exercised his discretion against doing so.The trial proceeded and the appellant was ultimately convicted.

Grounds of appeal

[7]	The appeal against conviction is based on two grounds.First, the appellant contends that a miscarriage of justice occurred upon the refusal of the trial Judge to abort the trial after Detective Carley gave evidence that the appellant had admitted physically abusing the complainant in the past.It is submitted that the evidence of prior assaults, not the subject of the charges before the Court, was highly prejudicial.The appellant argues that the jury may have illegitimately taken this evidence – being evidence of the application of force by the appellant to overpower the complainant - into account when determining whether the complainant had consented to the sexual intercourse.The appellant says that this evidence should not have been before the jury and its admission led to a miscarriage of justice.
[8]	Secondly, the appellant submits that the trial Judge erred in refusing leave under s23A for defence counsel to cross-examine the complainant as to an alleged previous allegation of rape.It is said that her sexual experience with someone other than the accused was directly relevant to a fact in issue: it showed a reason for or history of making false complaints of sexual misconduct.The cross-examination was proposed to establish that the complainant was prone to making false allegations and/or that she transferred the hurt of that prior relationship to the present after the appellant ejaculated inside her without using a condom as he had promised.The appellant argues that the proposed line of cross-examination would have given the jury the opportunity to consider the full picture of the complainant and her relationships.There was no suggestion that cross-examination would be for the illegitimate purpose of suggesting that because the complainant had had sexual relations with another man, her evidence was less credible.
[9]	As for the appeal against sentence, the appellant submits that the Judge gave insufficient weight to the conduct of the victim after she was raped and the extent of harm resulting from the offence.The appellant says it is clear that the complainant forgave the appellant, put the rape to one side and recommenced a relationship with him.This demonstrates that the psychological effects of this rape were not as strong for this complainant as for many others.The appellant argues that there is a distinct lack of trauma and adverse long term effects on the complainant in this case and the Judge failed to give sufficient weight to these factors.

Reasons

[10]	We are not persuaded that the fairness of the trial was prejudiced to such an extent that a miscarriage of justice occurred.The prosecutor had agreed not to lead the evidence from Detective Carley relating to the admission of previous assaults.Although it was unfortunate that this evidence was in fact disclosed, it cannot be said that this had any material affect on the fairness of the trial.A key reason is that the complainant had already alluded to prior assaults by the appellant.During cross-examination she stated that the appellant had physically abused her during their relationship and she was not challenged on this issue. The nature of the relationship between the appellant and the complainant was an important issue at trial.We are of the view that the evidence of physical abuse had a bearing upon that relationship and was relevant and admissible for that reason.Evidence of prior physical abuse was therefore before the jury by the time the Detective gave her evidence.The Detective’s disclosure in these circumstances cannot have been significant and did not cause any substantial prejudice of a kind that constitutes a miscarriage of justice.
[11]	The Judge’s decision to refuse the appellant’s application to cross-examine the complainant was one involving a matter of discretion.The Judge has not been shown to have erred in principle or to have been clearly wrong.As a preliminary point, it is questionable whether there was in fact a sufficient evidential foundation for the defence to embark on the proposed line of questioning.The complainant’s position was that she had never made an allegation of rape to the appellant or any members of his family (who were not going to be called at trial) and, if asked, she would deny making any such complaint.However, we do not have to decide this point for the purposes of this appeal.
[12]	As this Court stated in R v McClintock [1986] 2 NZLR 99, a Judge can grant leave under s23A(2) only if she or he is satisfied that the evidence or question is of such direct relevance to facts in issue that to exclude it would be contrary to justice.The Judge applied that test and concluded that the proposed questioning in this case did not reach that high threshold.We agree with his/her assessment.There is no record of the complainant having made a previous allegation of rape apart from the appellant’s own assertion.Defence counsel would therefore have been on something of a “fishing” expedition.Further, the evidence does not support a tendency on the part of the complainant to make false complaints of rape as an attention-seeking device.Neither is the evidence in any way inconsistent with the complainant’s version of events or render her version unlikely.Finally, the proposed evidence could not provide any basis for a possibility of transference.The evidence could, at best, be described as peripherally relevant, but as was said in McClintock, a question or evidence is not to be permitted merely because it is in some way relevant.
[13]	Turning to the appeal against sentence, we do not think that there is any basis for us to disturb the sentence imposed.Any psychological or traumatic effects of rape on a complainant can be considered as aggravating factors by a sentencing Judge when fixing the appropriate sentence.The converse, however, is not necessarily true.The fact that the complainant in this case may not have experienced strong psychological trauma after the rape cannot count in favour of the appellant as a mitigating factor so as to warrant a reduction in sentence. Similarly, the fact that the complainant chose to resume a relationship with the appellant does not mitigate the appellant’s behaviour.In any event, the evidence in this case does not show a distinct lack of psychological trauma.The complainant gave evidence that following the rape she felt upset and felt that her confidence had been taken away.The sentencing Judge also referred to the trauma caused to the complainant by the rape, the circumstances of the complaint and the subsequent trials.
[14]	A sentence of eight years imprisonment cannot be said to be manifestly excessive.The eight year starting point taken by the Judge was entirely appropriate and the appellant’s previous convictions and his relative youth were correctly taken into account as aggravating and mitigating facts.

Decision

[15]	For the above reasons, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington