A v E CA242/03 [2003] NZCA 406 (9 October 2003)

Last Updated: 23 January 2019

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S.139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA242/03

THE QUEEN

v

E

Hearing: 18 September 2003

Coram: McGrath J Hammond J Ronald Young J

Appearances: G Gotlieb for Appellant

M F Laracy for Crown

Judgment: 9 October 2003

_{JUDGMENT OF THE COURT DELIVERED BY RONALD YOUNG J}

[1] The appellant appeals against conviction on four representative counts of sexual assault on his step-daughter. He was acquitted of four other particular counts by the jury.

[2] The conviction is challenged based on alleged prejudicial actions of Crown counsel resulting in, the appellant says, a miscarriage of justice. The particular

_{conduct alleged to be prejudicial was:}

R V E CA CA242/03 [9 October 2003]

(i) the manner Crown counsel used similar fact evidence in cross-examination of the appellant; and

(ii) the emotive closing of the Crown counsel when he referred to the appellant as a “convicted paedophile”.

[3] The complainant in each case was the same. The appellant was convicted that between July 1996 and April 2001 he induced the complainant to do an indecent act upon him; indecently assaulted the complainant; sexually violated her by unlawful sexual connection; and raped her.

Similar fact evidence

[4] At a pre-trial hearing, the Crown successfully argued for the admission of previous convictions by the appellant of sexual assault on his children in 1992 as similar fact evidence. The convictions involved charges of indecent assault on a boy, indecent act on a boy, inducing an indecent act upon a boy, indecently assaulting a girl, being a male performing an indecent act on a girl, and being a male inducing a girl to do an indecent act upon him.

[5] The appellant alleges that the manner in which Crown counsel used the similar fact evidence was improper and unfairly prejudicial. The appellant said:

The Crown counsel would read the detailed testimony of the complainants from the previous convictions which the appellant had pleaded guilty to and connect those guilty pleas to the present charges simply by asking the appellant “is that not ‘similar’ to what the current complainant is stating”.

[6] The appellant says that the Crown did not use this cross-examination to establish a striking or unique theme between the similar fact evidence and the evidence of the complainant but “instead used language that inferred a general similarity” was enough.

[7] In support of the allegation of a miscarriage of justice, the appellant submits that statements made by the Judge immediately prior to the similar fact evidence

being heard by the jury “could have added to the incorrect assumption of the jury that similarities alone were enough to convict”. The Judge said:

Members of the jury, what [counsel] is indicating to me members of the jury you are about to hear what we call similar fact evidence which is evidence I gather from E of his own children in respect of which he entered a plea of guilty to a charge and he has been punished, so you are going to hear evidence about that – what you’re looking for here is patterns of real identifiable similarity because you must be careful not to convict E just because he has previously been convicted, you got to judge him just on the facts of this case, so a lot of what you hear here is very preferable, you’re looking for something special that might help you to indicate that his behaviour then is mirrored here.

[8] And further at p60:

Members of the jury I gather some of you may have had difficulty in picking up some what the previous video was about. I don’t think it’s essential to pick up fine details on that because what I’ve said to you before, it is similar fact evidence, it is not about really the incident that we’re concerned with here, so so long as you’ve got the general impression of what she said and how far she said things went, then that will be sufficient. But we don’t like to give you the transcript because then you tend to pour over the transcript and get into arguments and minute details with everyone quoting from pages and it just goes on for hours, so the Court of Appeal says that is not the way to handle it. We can give you a copy of the transcript to peruse if you would like that, but we would not like you to take that into the jury room with you and again pour all over it, so I think what we will do is listen to the next one which I understand is a little clearer. If you still feel that there are some questions you want to raise about the previous one, just discuss it together and Mr Foreman you just let me know what those questions are and we will elucidate the problems.

[9] The appellant says that the use of the Judge’s term “patterns of real identifiable similarity” and “so long as you’ve got the general impression of what she said and how far she said things went then that will be sufficient” reinforced Crown counsel’s cross-examination that similarity of events was sufficient.

[10] The respondent says Crown counsel was entitled to establish points of “mere similarity” in cross-examination. Part of the Crown case was establishing there was a distinctive pattern of conduct by the appellant. The respondent says that while some allegations of similarity put to the appellant in cross-examination by counsel for the Crown were well made, others allowed the appellant the opportunity to stress dissimilarities. The respondent submits that the Judge, fully and properly explained

the way similar fact evidence could and could not be used in his summing up and gave a specific propensity warning.

[11] The Crown had to satisfy the jury that this was a case where the evidence of two sets of complainants of sexual assaults was sufficiently similar so that they could “use” the evidence of similar fact in their deliberations. The jury’s function in this case was made somewhat easier by the acceptance of the appellant that the acts of the sexual assaults in 1992 were not in issue.

[12] The cross-examination by Crown counsel was designed to highlight what the Crown said were similarities between previous and current sexual assaults. It could be said that whether the appellant accepted or rejected the similarities was essentially irrelevant. The decision was for the jury. Crown counsel would inevitably need to identify in either cross-examination and/or in his final address what features of the past offending and what features of the alleged current offending were sufficiently similar to justify the use of the doctrine. Essentially, therefore, the cross- examination highlighted the Crown case that there were a series of similarities between the two situations such that a pattern was established. By itself, therefore, we can see no objection in such cross-examination.

[13] The appellant in particular complained that because the questions of counsel used the word “similar” the jury may have had the impression that general similarity was enough. The appellant illustrates this point with two questions by the Crown to the accused as examples. They were: “That’s what [the complainant] described isn’t it?”, and “Well that’s pretty similar to what [the complainant] has described in her interview isn’t it”. The first question cannot be objectionable at all even based on the appellant’s proposition. The appellant is being asked if the particular behaviour is the same as the other behaviour not just similar. As to the second question, similar fact evidence is typically concerned not with isolating individual behaviour and asking if it is sufficiently similar. It looks for a pattern of behaviour. A series of actions all of which are similar to other behaviour may together provide sufficient for a pattern to be established which shows a unifying theme. We therefore reject the submission of the appellant that because counsel for the Crown referred in cross- examination to similarities that the jury would have the impression in the words of

the appellant that “similarity was enough to substantiate the charge”. It was not suggested anywhere in cross-examination by the Crown to the accused that because there may have been similarities between the two sets of offending he was therefore guilty of the offences before the Court.

[14] Importantly the Judge gave a straightforward and accurate summing up as to the proper use to be made of similar fact evidence if indeed the jury concluded the evidence in this case reached the necessary threshold. We see no miscarriage of justice in this.

[15] The appellant accepts that the Judge properly introduced the subject of similar fact evidence shortly before when he said:

Members of the jury, what [Crown counsel] is indicating to me members of the jury you are about to hear what we call similar fact evidence which is evidence I gather from E of his own children in respect of which he entered a plea of guilty to a charge and he has been punished, so you are going to hear evidence about that – what you’re looking for here is patterns of real identifiable similarity because you must be careful not to convict E just because he has previously been convicted, you got to judge him just on the facts of this case, so a lot of what you hear here is very preferable, you’re looking for something special that might help you to indicate that his behaviour then is mirrored here.

[16] The Judge’s summing up on similar fact evidence was not challenged in this appeal. While the response of the Judge to the jury’s concern about hearing the tape of one of the previous complainants from 1992 might have been better phrased, overall we are satisfied the Judge gave a clear and correct direction on similar fact evidence and the jury could not have been in any real doubt as to how to treat this evidence. We do not consider that there is any miscarriage of justice here.

The “convicted paedophile” comment

[17] Immediately following Crown counsel’s final address to the jury, counsel for the appellant asked the Judge, in the absence of the jury, to abort the trial. There were two grounds on which this application was based which are essentially the further grounds in this appeal. The Judge’s reasons and conclusions for declining the application can be reproduced in full:

I must say, [counsel], that listening to your very thorough closing address, the methodology of comparison of what happened to the children of the first marriage and what happened to A tended to run together to such an extent that I could not decipher one from the other, and the reference to

‘convicted paedophile’ was unfortunate. I am not going to abort the trial at this stage Mr Gotlieb; you have made your point. My comments now will be

recorded, but we shall wait and see, and we will proceed in any event.

I think the point, as I understood Mr Gotlieb to be making it, though, is that you were reading quite lengthy extracts from the evidence of the children of the prior marriage, and, you were endeavouring to compare that with what A was saying but in fact the two ran together so that it was difficult to discern whether you were talking about this offence and A, when you were referring to the previous ones, so there was to some degree, I would have to agree with Mr Gotlieb, a possibility of the jury considering that there was a clear propensity to commit the offences on this occasion, but I am going to endeavour to remedy that and, no doubt, so too will Mr Gotlieb, and we will see where we get to.

[18] The Judge dealt with the convicted paedophile comments in his summing up in this way:

The Crown point to his past history. I think quite unfairly [counsel] referred to him as a convicted paedophile. A paedophile is a complex definition and there is certainly no proof of that. He was convicted on five or six charges of indecent assault on children, so please lay that aside, that comment, I think it was over the top, should not have occurred. [Counsel] has been caned accordingly by my saying this to you now.

[19] The Judge also dealt with the question of prejudice and the fact that the jury knew about the appellant’s previous convictions at several points in the summing up. When dealing with prejudice and sympathy he stressed it was unusual for juries to hear of an accused’s previous convictions. He told the jury they could only use the accused’s past in the limited way (similar fact) as he was to detail in his summing up. He referred to the prejudice to the accused from the jury’s knowledge of his past offending. He repeated the previous conviction warning when introducing similar fact evidence. When dealing with similar fact he said on several occasions the mere fact of previous convictions proved nothing with respect to the charges in front of the jury by themselves. He told the jury that persons of bad character are not to be presumed guilty because of their character. This material was also all relevant to the prosecutor’s comment.

[20] As to the potential confusion arising from the Crown’s address and the running together of two sets of complaints, the Judge did not deal with this directly.

However, a consideration of the Judge’s summing up and his reply to questions by the jury illustrates how he did respond to the complaint of intermingling.

[21] The Judge’s summing up concentrated factually on what the complainant in this trial had said rather than previous complaints. When it came to similar fact evidence the Judge gave examples of what was said to be similarities as well as dissimilarities. He dealt also in detail with how the alleged facts fell within the elements of the charges. During the course of his summing up the Judge indicated he proposed to read back to the jury some passages from A’s evidence. It seems he forgot to do so. After the jury retired, counsel for the Crown pointed out the Judge’s failure to read this evidence. The Judge immediately recalled the jury and read passages of A’s evidence. The jury asked a number of questions of the Judge after retirement. One required an almost complete replay of A’s video and in another selected passages from her evidence were read.

[22] To return to the allegation of prosecutorial misconduct based on the “convicted paedophile” comment. The appellant’s submission was that no form of warning from the Judge could cure this conduct. The appellant submitted that this was effectively an invitation by Crown counsel to the jury to convict based on the appellant’s propensity.

[23] This Court recently has had occasion to consider prosecutorial misconduct in R v Hodges (CA435/02, 19 August 2003). Giving the judgment of the Court, Tipping J said:

We return to the proper role of counsel when representing the Crown in a criminal trial. Counsel is entitled, indeed expected, to be firm, even forceful. Counsel is not entitled to be emotive or inflammatory. The Crown should lay the facts dispassionately before the jury and present the case for the guilt of the accused clearly and analytically. Although different counsel will naturally and appropriately have different styles and different methods of addressing the jury, the Crown's closing address should, at least at some stage, traverse the legal ingredients of the count or counts in the indictment, and call the jury's attention to the evidence which the Crown says satisfies the onus and standard of proof in relation to each ingredient, and in particular those which are the subject of dispute. Crown counsel are important participants in the dispassionate administration of criminal justice. They are entitled to contend forcefully but fairly for a verdict of guilty; but they must not strive for such a verdict at all costs.

[24] The comment by Crown counsel was overly emotive, inappropriate and unfair. We do not, however, consider that in this case it resulted in a miscarriage of justice. There was already prejudice to the accused in having his previous convictions for sexual offending before the jury. The Judge dealt with the comment forcefully and appropriately in his summing up to the jury. He made it clear Crown counsel was being unfair and inaccurate given, as he said, there was no proof the appellant was a paedophile. He told the jury explicitly to set the conduct aside from their deliberations. And Crown counsel had been “caned” for using this phrase.

[25] As we have said, this is with a background of a careful summing up by the Judge on similar fact evidence which stressed the need to guard against propensity reasoning, and the need to ensure the jury did not bring prejudice into their reasoning. Nor was the remark part of any pattern of prosecutorial misconduct. This was one phrase in a final address to the jury. In the circumstances the comment was regrettable but did not in our view result in a miscarriage of justice.

[26] Nor do we consider the intermingling by Crown counsel of allegations of sexual assault from 1992 and the current charges resulted in a miscarriage of justice. As we have detailed, the Judge’s summing up dealt with the allegations A made in some detail. It focused on her allegations and the facts surrounding those allegations. The jury questions also give some confidence that the jury themselves were focused on the issues in the trial. The first two jury questions related to the timing of the specific counts in the indictment. It seems that early in the trial it became clear the complainant had confused the dates on which the specific accounts were alleged to have occurred. The first two questions from the jury focused on that aspect. The appellant submitted that the acquittals on the specific counts and the convictions on the representative counts illustrated that propensity reasoning had been adopted by the jury. Given the cross-examination of the complainant revealed she was mistaken about dates the rejection of the date specific counts was hardly surprising. It illustrates a conscientious regard to the facts by the jury. Question (3) required the Judge to show again most of A’s video interview. Question (5) involved the Judge reading extensive passages of evidence from A about the detail of the rape count.

[27] Considered overall, therefore, we see no danger that the jury themselves would have intermingled complaints or complainants. The comprehensive summing up on similar fact evidence, the focus on A’s evidence and the jury’s obvious focus on A’s evidence satisfy us that any confusion in the jury’s mind from Crown counsel’s address was well and truly dealt with by the Judge.

[28] The appeal therefore will be dismissed.

Solicitors:

Crown Law Office, Wellington