R v K CA294/03 [2003] NZCA 411; (2003) 20 CRNZ 799 (17 December 2003)

Last Updated: 11 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA294/03

THE QUEEN

v

_{K (CA294/03)}

Hearing: 3 December 2003

Coram: Tipping J Panckhurst J Salmon J

Appearances: D R La Hood for Appellant

A Markham for Crown

Judgment: 17 December 2003

_{JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J}

_Introduction

[1] Following a District Court trial the appellant was convicted upon two counts of rape and six counts of indecent assault. The offences were committed against two girls, aged between 7 and 11 years at the relevant time. The appeal is against both conviction and sentence. The appellant maintains that a miscarriage of justice was occasioned when, during its retirement, the jury requested that videoed disclosure evidence be replayed, but certain cross-examination of one of the complainants was not read to the jury to provide balance, and, on account of an alleged misdirection in

_{the Judge’s summing-up. The sentence of thirteen years imprisonment, with a}

R V K (CA294/03) CA CA294/03 [17 December 2003]

minimum term of six years, is also challenged as clearly excessive, essentially on account of the appellant’s age and unblemished previous record.

The case background

[2] The first four counts in the indictment related to complainant A and alleged three offences of indecent assault and one of rape committed between August 1998 and February 2002. A was between 7 to 10 years over the relevant time span. The remaining two counts related to complainant B, being allegations of indecent assault and rape committed between October 1999 and February 2002. B was 9 to 11 years during this time.

[3] During the period covered by the charges the appellant resided alone following the death of his wife. He was aged 69 years when sentenced in July of this year. The appellant was a friend of or distantly related to the complainants’ families. An indication of the nature of the relationships was that both girls called him Koro, which may be translated as uncle or grandfather, in the course of their contacts with him.

[4] The allegations came to light when A complained to her cousin (a girl of similar age) who reported the complaint to A’s mother. The mother spoke to her daughter and, subsequently, to complainant B as well. Both girls participated in evidential interviews in late February 2002. The charges resulted.

[5] Complainant A described indecent assaults with reference to identified events. She said that the first abuse occurred in the course of a boat trip to Ward Island during which the appellant indecently touched her. On another occasion she went to pick peaches at the appellant’s house and further interference occurred. Her first evidence of rape was of an occasion at the appellant’s house at night when she said he removed her clothes, lay on top of her and penetrated her with his penis. She said this happened up to five times although she was unsure of the actual number. A explained that the appellant gave her biscuits and also took her to the shops where he bought her lollies of every type.

[6] There was also evidence given by A of an incident in the appellant’s lounge when she felt pain, of which she later complained and as a result of which she was taken to hospital. Some minor blood staining was seen by her mother on A’s underclothing and blood was detected in a urine sample taken at the hospital. This was in January 2000 when A was aged 8 years. She was treated for abdominal pain and vomiting, and an analgesic was prescribed.

[7] When the allegations emerged in February 2002, an internal examination of A was carried out but was essentially normal. The doctor expressed the opinion that it was unlikely full penetration of her vagina had occurred, but partial penetration was not excluded.

[8] Complainant B was raised by her grandparents. Her grandfather was a close friend of the appellant. From the age of about 8 or 9 years B stayed at the appellant’s home on regular occasions. He often uplifted her from the train after school and returned her to his home. For about seven weeks immediately prior to the emergence of the allegations in February 2002, B stayed with the appellant on most nights.

[9] The effect of her evidence was that the appellant indecently touched her both in his van and in his house, as well as hopping into her bed at night. She described pain from the appellant putting his penis into her “minge” and said that the “rape thing” happened regularly throughout the final seven week period.

[10] A genital examination conducted at the same time as the evidential interview revealed that B was genitally mature, tender during the process of examination and that she had a small tear at the 4 o’clock position of her hymen. The tear was described as still bleeding, which suggested an injury of quite recent origin. A swab taken at the same time tested positive for a bacterial infection which was more commonly associated with people who were sexually active, although not exclusively so.

[11] After the appellant was charged and while he was on bail there was an occasion when he took B to a solicitor’s office where and told the solicitor that the

allegations were false and that she made them under pressure from her aunty (A’s mother). At trial when asked about this B initially denied that it had occurred, but upon the completion of her evidence and after speaking to her support person she was recalled. B then said that the accused prevailed upon her to speak to the solicitor in these terms.

[12] The appellant was interviewed by the police in July 2002. In a short interview recorded in the interviewing officer’s notebook he denied the allegations. Mr K also gave evidence at trial. He confirmed the fact of a boat trip with A and her family, that she had picked peaches at his home and that she stayed overnight there. However he denied any impropriety.

[13] Likewise with reference to B the appellant agreed with the evidence of association (including that B stayed at his home for some weeks up to February

2002), but denied the allegations of indecent touching and rape. He said that he took B to the solicitor’s office at her insistence and after she had approached him upon getting off a train while he waited unsuccessfully for the arrival of his own grandchildren.

The request to replay the videos

[14] The trial occupied four days between 9-12 June 2003. On the evening of the fourth day the jury while in retirement asked for the evidential video interviews of the complainants to be replayed. Arrangements had already been made for the jury to have an evening meal. In these circumstances the Judge clarified whether the jury wished to hear all of A’s video interview. They did, save for the introductory details and its conclusion, when A made markings on a body diagram. The relevant part of the video interview was played to the jury before the dinner break and B’s cross-examination and re-examination was read to the jury after the break. No complaint is made as to any lack of balance in relation to this complainant.

[15] A similar process was then followed with reference to B’s video-taped interview. Again the jury did not wish to see the introductory section or the concluding part (when B marked a body diagram), and additionally they did not wish

to be refreshed concerning the complaint evidence, that is what A had told B concerning the abuse on her. In relation to cross-examination the Judge indicated she would read only those parts which related to the content of the replayed parts of the video. She requested counsel to follow her reading since she proposed to cut out some passages.

[16] In the result two passages of cross-examination which were not read back to the jury form the basis of the present ground of appeal. The first comprised approximately one page of questions directed to a conversation when her aunt taxed B as to whether she had been abused. The thrust of the questions was that B was placed under pressure by the aunt, although the response to that theme was a mixed one. When Her Honour indicated that the passage would not be read counsel protested but the Judge responded:

I did not read the complaint, we stopped the video at that point. So, since we did not deal with the evidence in chief, I do not think I need to deal with the cross-examination about it.

[17] The second excised passage concerned events on 21 March 2002 (about a month after the allegations emerged) when B voluntarily went to the appellant’s residence and asked him for a ride to her own home. The cross-examination focused upon details of this, the implication being that B’s conduct was odd if the allegations were true. Again the topic was one not covered in the video interview.

[18] Mr La Hood’s submission was that as a matter of balance and fairness any evidence which had the potential to undermine the complainant’s credibility should have been read to the jury. Despite his objection at the point of the first excision the two deletions complained about were made. While accepting that there is an obligation to balance the replaying of a video by reference to cross-examination and re-examination, Ms Markham reminded us that how such balance is to be achieved is very much at the discretion of the trial Judge: R v S (CA215/00, 28 August 2000). In R v O [1996] 3 NZLR 295 (CA) the Court observed that balance was generally best attained by reading either the whole of the cross-examination or at least those parts of it of relevance to the content of the video.

[19] We are unpersuaded that the approach adopted by the trial Judge incurred the risk of a miscarriage of justice. She considered that balance was best achieved by a topic by topic approach. If a topic was covered in the video then cross-examination upon that topic must be read, and visa versa. Mr La Hood contended of course that any cross-examination which had the potential to impact upon the credibility of the complainant should be read, regardless whether it reflected a topic covered in the video interview. There may be cases where an approach fashioned on this basis is necessary in order to achieve balance. Equally a topic by topic approach may be appropriate. Ultimately the circumstances of any given case will determine where the balance should lie, which simply underlines why the issue is very much one for the trial Judge.

[20] With regard to the cross-examination concerning the discussion between B and her aunty, we consider that it was an available exercise of discretion to exclude this passage. Perhaps the preferable course may have been to have included it, especially since the Judge excluded nothing from the cross-examination of complainant A. However since this topic was not covered in the video itself, there was a sensible basis for the approach adopted.

[21] Likewise with reference to cross-examination concerning the events of

24 March, we do not differ from the view reached by the trial Judge. It is to be noted that she ceased reading the cross-examination at a point when the subject-matter of the questions which followed had already been identified. To that extent the jury were reminded of the content of the short passage of cross-examination which was not read. Moreover this aspect was an important component of the defence case. It was the subject of submissions from counsel in closing and the Judge drew attention to it in her summing-up. We are in no doubt, therefore, that no prejudice resulted.

[22] For these reasons we are satisfied that there was no risk of a miscarriage of justice arising from the approach adopted by the Judge in relation to this aspect of the case.

Misdirection

[23] Immediately following the completion of closing addresses before lunch on the fourth day of the trial the Judge saw counsel in chambers. She indicated to senior defence counsel (not Mr La Hood) he was wrong to have suggested to the jury in his closing address that complainant B may have been sexually active with someone other than the appellant. The Judge indicated that in her view the submission constituted a possible breach of s23A of the Evidence Act 1908, but that in any event it was an invitation to the jury to speculate in the absence of any adequate factual basis for the submission.

[24] Before the summing-up was delivered after the luncheon adjournment counsel requested to again see the Judge in chambers. Senior defence counsel indicated that he may have gone further than intended, but the aim of the submission was to convey to the jury that if they concluded from the medical evidence that B had been sexually active and accepted the appellant’s denial, then someone else must have been involved with B. The Judge was not prepared to recast her summing-up. She remained of the view that there was no evidence upon which to base the submission and that it amounted to an invitation to the jury to speculate.

[25] Before we turn to the direction and the argument we note that this is another example of trial activity conducted in the absence of the accused. Neither of the two exchanges should have occurred without the accused present. These were discussions of considerable moment in the context of this case. They should have occurred in court, but of course in the absence of the jury and subject to an appropriate direction if required on account of the presence of the media.

[26] At an early stage in the summing-up the Judge gave a conventional direction concerning inferences, namely that the jury may draw inferences from facts otherwise proved in evidence. She warned of the need that inferences be logical deductions, not guesses, and continued:

[13] In closing to you, Mr Nisbet suggested that B might have been sexually active with someone else. There is no evidence of such a thing

happening. So, in making that suggestion to you, he was effectively inviting you to speculate and you must not do that. You must consider the case on the basis of the evidence that you have heard. Once you have decided what evidence you accept, then you may draw inferences from that evidence. But there must be an evidential basis for the inferences you draw, otherwise you would be indulging in speculation.

[27] Mr La Hood submitted that the direction was wrong in principle. The medical evidence that B’s hymen exhibited a recent tear upon examination in February 2002 and that she also suffered from an infection commonly associated with sexual activity, provided a basis for the jury to conclude that she had been sexually active prior to the examination. On the other hand the appellant gave evidence in which he denied sexual contact with B. If this evidence was accepted the only logical conclusion which remained open was that the complainant had been sexually active with someone other than the appellant. This, counsel argued, was an available inference albeit dependent upon acceptance of the appellant’s denial. So viewed the submission did not invite impermissible speculation. The Judge was wrong to so characterise the submission.

[28] With reference to s23A(2) Mr La Hood noted that the prohibition related to evidence and questions related directly or indirectly to the sexual experience of the complainant with any person other than the appellant. Defence counsel had not offended against the section, since it was by submission in closing that the suggestion relevant to sexual experience was made.

[29] Ms Markham’s argument in response was that the Judge’s direction was correct in law. There was no evidential foundation for the suggestion that B had been sexually active with some other unknown person. Put simply the appellant’s denial did not constitute evidence that sexual activity had occurred with someone else.

[30] Counsel referred to the decision of this Court in R v Harbour [1995] 1 NZLR

440. The accused was charged with the violation of a boy abducted from his bed at night. The crown case was circumstantial in nature. One element of it was DNA evidence relevant to a blood stain found on an item of the child’s clothing. Such item was recovered on waste land not far from the complainant’s home. A defence

submission made in closing was that the appellant’s children played in the area and that one of them could have occasioned the blood stain. In summing-up the Judge observed that there was no evidence to support this thesis and he warned the jury to guard against speculation. On appeal the direction was criticised on the footing that the Judge’s criticism suggested the existence of an obligation upon the defence to adduce proof in support of its hypotheses.

[31] Hardie Boys J in delivering the judgment of the Court at 449 said this:

Speculation in aid of an accused is no more permissible than speculation in aid of the prosecution. The defence is of course entitled to put hypotheses to the jury. But if there is no evidential foundation for them the Judge is entitled to point that out to the jury. This is not to put an onus on the defence, but simply to keep the case within limits of realism. The Judge must of course make it clear that the onus remains throughout on the Crown.

Ms Markham emphasised the first proposition, while Mr La Hood took comfort from the second.

Decision

[32] We accept the point made on the appellant’s behalf that s23A was not of direct relevance in the present instance. The prohibition it creates is in relation to evidence from, and cross-examination of, a complainant concerning his or her sexual experience, except by leave of the Judge. However, the existence of the section necessarily impacts in relation to what is permissible by way of argument in closing. If, as here, leave to cross-examine has not been sought, then there will not be direct evidence of sexual activity with anyone other than the appellant upon which defence counsel can rely.

[33] Moreover, as this Court observed in Harbour the trial Judge is entitled to point out to the jury the absence of an evidential foundation for a submission made in closing. That principle had application in this case. Although B was questioned in an endeavour to characterise aspects of her behaviour as wayward nothing of consequence emerged from this line of cross-examination. It followed, therefore, that if the medical evidence was accepted as consistent with sexual activity, the only direct evidence to explain those medical findings was that of B that the appellant had

raped her. So viewed the direction against speculation was appropriate, at least in light of the available direct evidence.

[34] Mr La Hood’s argument, however, had its basis in the ability of the jury to draw inferences. He suggested that if the jury interpreted the medical evidence as indicating that B had been sexually active and it also accepted the appellant’s denial, then an inference that B had been sexually active with someone else was open.

[35] This, we think, was to go too far in the particular circumstances of this case. B was only 11 years of age in February 2002. The medical finding in relation to her hymen was significant for the fact that the injury was of such recent origin. Opportunity existed for the appellant to have offended against B over the weeks prior to the examination. By contrast there was no evidence of sexual activity with someone other than the appellant, or of opportunity for it to have occurred, which was hardly surprising considering that B was but a child. It follows in our view that the submission advanced in closing not only lacked an evidential foundation but realism as well.

[36] Perhaps, however, it was unfortunate that the Judge chose to voice her criticism of the submission in the course of her directions concerning inferences. That approach necessarily resulted in a somewhat emphatic and absolute rejection of the submission as a matter of principle and at an early point in the summing-up. The better course may have been to defer comment until the Judge’s summary of the defence case, when a firm observation that the submission lacked an evidential foundation could have been appropriately made. That, we note, was the approach adopted in Harbour.

[37] But we do not accept that the direction was wrong in law and that it occasioned the risk of a miscarriage of justice. Further, we note that when summarising the defence case the Judge said with reference to B that counsel had submitted:

... there was no bruising about the genitalia of B. He says that may have been significant, and he also reminded you that gardnarella (the infection) can occur in a female who has not had sex before, one who was not sexually active. He invited you to find that the tear in the hymen was not conclusive

evidence, either that there had been sexual intercourse or that the sexual intercourse had been with the accused.

At the end of that passage the Judge resiled to a degree from the earlier rebuke.

[38] The quoted passage is also significant for the fact that it demonstrates that the medical findings permitted of a less sinister interpretation, namely that B had not necessarily been sexually active with anyone. The availability of this line of argument suggests that the closing submission actually advanced was perhaps ill-advised in any event.

Sentence appeal

[39] The appellant was sentenced to thirteen years imprisonment in relation to the rape charges and four years imprisonment upon the indecent assaults. It was also ordered that he serve a minimum period of imprisonment of six years.

[40] In challenging the sentence Mr La Hood advanced two principal arguments. The first was that the Judge erred in principle in that she assessed as aggravating factors the appellant’s failure to accept responsibility for the offending, his lack of remorse and that he had caused the complainants the additional trauma of giving evidence in court. As Mr La Hood rightly pointed out pleas of not guilty, a failure to accept responsibility and lack of remorse are not aggravating features, but rather neutral factors or, put another way, may in reverse be mitigating factors which were absent in this instance.

[41] Ms Markham accepted this, but drew attention to the format of the sentencing remarks of the Judge. Aggravating features were identified with reference to s9 of the Sentencing Act and set out seriatum numbered 1 to 9 in paragraph [19] of the remarks. Ms Markham submitted that factors 1 to 6 were recognised circumstances of aggravation, whereas the three which followed plainly were not:

7. There is a need for the Court to denounce such conduct and to impose a sentence which might serve to deter others from behaving as you have done.

8. I take into account also that you have failed to accept responsibility for your offending.

9. You have shown no remorse or empathy for either of the girls and you have put both the victims through the additional trauma of having to give evidence in Court and before a jury, which both of them found to be a difficult experience.

[42] Ms Markham’s point was that upon a reading of these sub-paragraphs it appeared they were not intended to be additions to the list of aggravating factors, but rather references to some of the purposes of sentencing identified in s7 of the Sentencing Act (namely the need to denounce criminal conduct and promote a sense of responsibility in the offender), and a reference to the absence of a mitigating factor (remorse and empathy for the victims). Counsel suggested it was likely that the remarks had been misinterpreted in being typed back and that sub-paragraphs 7 to 9 in paragraph [19] should in fact have been reproduced as substantive paragraphs.

[43] While we are attracted to Ms Markham’s submission, we must proceed on the basis of the signed record. At face value it does indicate that three matters were erroneously treated as aggravating factors. In these circumstances, as Ms Markham argued, the issue became whether the sentence ultimately arrived at was clearly excessive in any event.

[44] Mr La Hood’s second argument was that the Judge gave insufficient weight to the appellant’s age and his previous good record. A starting-point of “somewhere between 14 and 15 years imprisonment” was adopted for the totality of the offending, and a deduction was then allowed to arrive at the effective sentence of thirteen years imprisonment. Counsel submitted that the appellant’s previous good record, age (69 years) and his poor health (high blood pressure and asthma) warranted a reduction greater than 1-2 years. Reference was made to previous decisions of this Court involving men of a similar age convicted of serious sexual offending: R v Fahey (CA184/00, 2 November 2000) and R v McL (CA5/96,

14 November 1996).

[45] Ms Markham, however, referred to cases in which sentences comparable to the present one were upheld regardless of the age of the offender. We have

considered the cases cited to us but as always the outcomes reflect the particular circumstances of each case. The advanced age of an offender may carry more weight where in addition the offending was historic in nature. That was not so in this case.

[46] In any event we are not persuaded that the effective sentence was clearly excessive. The starting-point for defended rape involving one victim is eight years imprisonment before aggravating features are brought to account. Here there were two victims, a high level of breach of trust and offending which was both escalating and persistent. The most which can be said is that the sentence was a firm response.

[47] We note also that the Judge imposed a minimum period of imprisonment of six years, when the upper end of the available range was eight years eight months. When we have regard to both the effective sentence and the minimum term, we see no appropriate basis for the intervention of this Court.

Result

[48] The appeals against both conviction and sentence are dismissed.

Solicitors:

Sladden Cochrane & Co, Wellington, for Appellant

Crown Law Office, Wellington